JUDGMENT 1. Present appeal has been preferred by Mohammed Mohsin Khan @ Bhooria to assail the judgment dated 23rd November, 2004 passed by Additional Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur whereby appellant was found guilty of the offence under Section 302 IPC. Having convicted the appellant for the said offence, vide a separate order of even date, appellant was sentenced to undergo life imprisonment and pay a fine of Rs. 5000/- in default thereof, to undergo further six months simple imprisonment. 2. Prosecution in all, had sent sixteen persons for trial. Besides appellant, other fifteen persons who were tried alongwith appellant, they were named as Mohammad Naushad Alam S/o Mohd. Fazlu Hussain, Raju @ Khemu S/o Motiram, Shamsher Khan S/o Mohd. Qayyum, Mohammad Mazhar S/o Mohd. Zenul, Mohammad Rabbani S/o Mohammad Yasin, Tabresh Khan S/o Mohammad Mohsin Khan, Mohammad Ramzan S/o Mohammad Salim, Akbar S/o Azim, Mohd. Zahid Akhtar S/o Ohd. Asif, Abdul Wahab S/o Dreesh Shah, Nafis Ahmed S/o Mohammad Nasrullah, Kamal Jain S/o Daya Ram, Rajesh Patel S/o Purshottam Bhai Patel, Ahmed Khan S/o Puttan Khan and Mohammad Nabi Alam S/o Mohd. Aijazul. 3. Out of the above sixteen persons, accused Mohammad Nasushad Alam, Raju @ Khemu, Shamsher Khan, Mohammad Mazhar and Mohammad Rabbani were acquitted by the trial Court and Tabresh Khan son of the petitioner who was tried by the Juvenile Justice Board was acquitted also. Mohammad Ramzan, Akbar, Mohd. Zahid Akhtar, Abdul Wahab, Nafis Ahmed, Kamal Jain and Rajesh Patel absconded during the trial and proceedings were initiated against them under Section 299 Cr.P.C. Two of the accused Ahmed Khan and Mohammad Nabi Alam died during the trial. 4. Criminal proceedings were set into motion at the instance of PW-12 Ikramuddin. He had presented written report Ex.P/43 before Meva Ram, PW-15, in- charge of police Post, Ramganj. On the basis of the written report, formal First Information Report Ex.P/44 was registered at Police Station, Ramganj. 5. As per prosecution, occurrence in the present case had taken place on 12th April, 1993 at 2 or 2.30 P.M. Written complaint was presented before PW-15 Mevaram who was then in-charge of police Station, Ramganj at 4.00 P.M. On the basis thereof, formal FIR was registered. 6. 5. As per prosecution, occurrence in the present case had taken place on 12th April, 1993 at 2 or 2.30 P.M. Written complaint was presented before PW-15 Mevaram who was then in-charge of police Station, Ramganj at 4.00 P.M. On the basis thereof, formal FIR was registered. 6. Ikramuddin, PW-12 in the First Information Report stated that they were having a showroom in Ramganj Bazar and near to the showroom, accused Mohammad Mohsin Khan, present appellant was running a hotel under the name and style of M.M. Khan Hotel. A dispute was pending between the complainant party and the accused regarding the land on the back of the shop. Earlier thereto, accused had also caused injuries to the complainant party and a case was pending before the Court. On 12th April, 1993 at 2.00 or 2.30 P.M. Mohammad Mohsin Khan, present appellant alongwith his brother and son Tabrez armed with knife and Barchi came inside the shop. They dragged Shahbuddin brother of the first informant outside the shop and brought him on the road. Brother of the present appellant and son of appellant Tabrez caught hold of Shahbuddin and Mohammad Mohsin Khan, present appellant gave one knife blow on the back of Shahbuddin, due to which he fell on the spot, in the pool of blood. At that time other brothers of complainant and deceased namely; Azim (PW-18), Udin Irfan (PW-17), Abid (PW-13) and Islam who were taking food in the showroom came running to the place of occurrence. Accused also caused them injuries. Servants of Mohammad Mohsin Khan pelted stones. Brothers of the complainant suffered numerous injuries. At that time, mob had gathered. Meraz, Udin, Raees and Iqbal etc. came at the spot and saved the complainant party, otherwise more harm would have been caused. Shahbuddin who was in pool of blood, in the injured condition, was brought to the hospital. 7. The above said FIR was investigated and charge sheet was submitted against 16 persons. As already stated, two persons died during the trial. Seven accused absconded by deserting the trial. Five persons were acquitted by the trial Court and one by the Juvenile justice Board. 8. Appellant was charged by the Court of Additional Sessions Judge, Fast Track, No. 2, Jaipur on six counts. 9. As already stated, two persons died during the trial. Seven accused absconded by deserting the trial. Five persons were acquitted by the trial Court and one by the Juvenile justice Board. 8. Appellant was charged by the Court of Additional Sessions Judge, Fast Track, No. 2, Jaipur on six counts. 9. Charge No. 1 stated that on 12th April, 1993 at about 2 or 2.30 P.M. appellant alongwith members of unlawful assembly who were more than five in number had given beating to Ikramuddin and members of his family, therefore, had committed offence under Section 147 and 148 IPC. Charge No. 2 stated that appellant alongwith others had caused murder of Shahbuddin by causing him injuries, therefore, he had substantively committed offence under Section 302 IPC and in alternate offence under Section 302 readwith Section 149 IPC. For having caused injuries to Ajimmudin (PW-18), Mohd. Irfan (PW-17), Mohd. Abid (PW-13) and Mohd. Islammudin and for murderous assault, appellant was charged for offence under Section 307 and 307/149 IPC. Since, the appellant was also member of unlawful assembly, which had pelted stones, 4th charge against the appellant was framed qua offence punishable under Sections 336, 336/149 IPC. Similarly, appellant was charged for offences under Sections 323, 323/149, 324, 324/149 IPC. 10. The appellant pleaded not guilty and claimed trial. 11. Four material witnesses for consideration of this Court are PW-12 Ikramuddin, who had lodged the FIR, PW-13 Abid, PW-17 Mohd. Irfan and PW-18 Ajimuddin alongwith evidence of doctor PW-11 Dr. P.C. Vyas who had conducted Medico Legal Examination of the injured and the Medical Jurist PW-16 Dr. Sheetal Jain who had conducted an autopsy on the dead body of Shahbuddin. Besides this, it will be necessary for us to notice evidence of the Investigating Officer. Even though, prosecution had examined 19 witnesses, we confine ourselves to above evidence, as their deposition and testimony is germane to decision of the case. 12. It is time for us to take notice of medical evidence emerging in the deposition of Dr. PC Vyas, PW-11. He stated that on 12th April, 1993 at 4.20 P.M. Ajimuddin (PW-18) was brought in emergency of SMS Hospital,Jaipur. He had four injuries on his person. Injury No. 1 was a incised injury bone deep on the parietal region of the head. Injury No. 2 was an abrasion on the finger of right hand. PC Vyas, PW-11. He stated that on 12th April, 1993 at 4.20 P.M. Ajimuddin (PW-18) was brought in emergency of SMS Hospital,Jaipur. He had four injuries on his person. Injury No. 1 was a incised injury bone deep on the parietal region of the head. Injury No. 2 was an abrasion on the finger of right hand. Injury No. 3 was a swelling on the left hand and injury No. 4 was a complaint of pain on the left arm. All injuries on this person were found to be simple. Mohd. Irfan PW-17 was medico legally examined on 12th April, 1993 at 4.45 P.M. in observation ward and there were seven injuries on his person. Injury No. 1 was on the left wrist, Injury No. 2 was on wrist, injury No. 3 was a swelling and complaint of pain in the finger. Injury No. 4 was swelling on the right side of parietal region. For determining the nature of injuries No. 1 ,2 and 3, same were referred to the Radiologist. Mohd. Abid, PW-13 was medico legally examined on 12th April, 1993 at 4.30 P.M. there were two injuries on his person, injury No. 1 was an abrasion, Injury No. 2 was incised wound 3 x half centimeter was on the left nasal lobule fold. On the same day at 4.05 P.M., in the operation theater, injuries of Mohd. Islammuddin, were also examined. There were seven injuries on his person. Injury No. 1 was on parietal and Occipital region of the head. Injury No. 2 was a swelling on the left side, injury No. 3 was a liner cut on the chest. Injury No. 4 was a contusion on the chest and abdomen. Injury No. 5 was an abrasion on the finger. Injury No. 6 was an abrasion on left hand and injury No. 7 was a collection of blood on the lower part of the right lip. 13. Dr. Sheetal Jain on 12th April. 1993 conducted autopsy on the dead body of deceased Shahbuddin @ Bada Mulla aged 22 years. There were 11 injuries on person of Shahbuddin. Injury No. 11 was an incised wound having depth of 3.5 x 2 cm. on the thoracic cavity. This injury on the back was present between 6th and 7th thoracic space. This injury was spindle shaped and had caused a cut on the left lung. There were 11 injuries on person of Shahbuddin. Injury No. 11 was an incised wound having depth of 3.5 x 2 cm. on the thoracic cavity. This injury on the back was present between 6th and 7th thoracic space. This injury was spindle shaped and had caused a cut on the left lung. The cause of death was shock as a result of injury to the left lung. It is apparent that besides injury No. 11 which has proved fatal, rest of the injuries were simple in nature on various parts of the body being, swelling, abrasion or incised wound. 14. PW-12 Ikramuddin stated that Shahbuddin was his younger brother. He used to sit at their showroom which was below Dadu House Haveli. His 3-4 brothers also used to sit with deceased Shahbuddin. At a distance of two-three shops, Mohammed Mohsin Khan, accused was having a hotel under the name and style of MM Khan. On 12th April, 1993 at about 2/2.30 P.M. their brothers are taking food on the back side of the shop. Shahbuddin was sitting in the front of the shop when accused Mohammed Mohsin Khan came alongwith his brother Ahmed and his son Tabrez and they all dragged Shahbuddin out of the shop. Mohammed Mohsin Khan, accused appellant gave a knife injury to Shahbuddin and thereafter, brother and son of the appellant Mohammed Mohsin Khan gave beating to Shahbuddin and they were also having knife as weapon in their hand. Thereafter, their servants came. Somebody was carrying wood and others were carrying stones. Then people intervened. His brother Azimmuddin, Ifran and Islam also received injuries. He gave name of servants as Nafiz and Kamal and stated that he knew them by their face. This witness further stated that after the injury was caused, number of people arrived at the spot and seeing them, accused ran away from the spot. They brought injured brother Shahbuddin into the taxi. He had submitted report to the police Ex.P/43. Police had prepared inquest report Ex.P/2. Police had also prepared site plan which also contain his signatures. He further stated that three accused present in the Court had participated in the occurrence. He further stated that they had lodged the report against the accused appellant earlier, accused had threatened them to arrive at a compromise. 15. Police had prepared inquest report Ex.P/2. Police had also prepared site plan which also contain his signatures. He further stated that three accused present in the Court had participated in the occurrence. He further stated that they had lodged the report against the accused appellant earlier, accused had threatened them to arrive at a compromise. 15. Shri N.C. Choudhary assisted by Shri Vijay Choudhary appearing for the appellant has drawn our attention to portion of the cross-examination where witness was confronted with written complaint Ex.P/43 submitted by him. We find that none of the improvements allegedly made by the witness are material to merit our attention. However, counsel for the appellant has drawn our attention to the fact that witness was duly confronted with the statement Ex.D/3 made before Juvenile Justice Board where he had not supported the prosecution case against co-accused Tarbez. The witness has duly confronted with the portion C to D of Ex.D/3 made by this witness before the Juvenile Justice Board, we deal with this contention later. 16. Abid injured witness PW-13 stated that they are having the shop No. 118 in Dudu House. 3 to 4 brothers used to sit in the said shop. Ten years ago at 2.30 P.M., they were working in the shop, his brother Ikram had brought the meals. Shahbuddin and Ifran were also in the shop. They were having a dispute with Mohammed Mohsin Khan over the land, due to which earlier occurrence had taken place. On fateful day Mohammed Mohsin Khan had given injuries to Shahbuddin with bunki. They had dragged brother Shahbuddin by catching hold of hairs. At that time, Mohammed Mohsin was accompanied by 2-3 brothers alongwith son Tabrez. They had taken Shahbuddin to hospital. He had also suffered injuries on the nose and on the left hand. He was treated for 15 days. Shahbuddin had died on the day of occurrence. This witness was duly confronted with his previous statement recorded to the police as he had not stated the fact that accused had caused injuries with bunki to Shahbuddin. 17. PW-17 Mohd. Irfan with little variation has reiterated the prosecution case so far broad features are concerned. To similar effect is the statement made by PW-18 Ajimuddin. 18. This witness was duly confronted with his previous statement recorded to the police as he had not stated the fact that accused had caused injuries with bunki to Shahbuddin. 17. PW-17 Mohd. Irfan with little variation has reiterated the prosecution case so far broad features are concerned. To similar effect is the statement made by PW-18 Ajimuddin. 18. Shri NC Choudhary assisted by Shri Vijay Choudhary appearing for the appellant has also drawn out attention to statement of Usman Khan PW-14 who had attested inquest proceedings Ex.P/2. In cross-examination, this witness stated that after the deceased was put in auto, half an hour later, he had seen Mohammed Mohsin Khan coming after offering his Namaz. Attention to the testimony of this witness has been drawn to say that present appellant has been falsely implicated and he had arrived at the scene of occurrence after half an hour, when deceased was being taken to the hospital in an auto rickshaw. Admittedly, Usman Khan is not an eye witness of the occurrence. 19. PW-7 Abdul Kareem who had also attested inquest proceedings Ex.P/2 also admitted in the cross-examination that when inquest proceedings were being conducted, number of relations of Shahbuddin had gathered there and stated that Mohammed Mohsin Khan is to be named as accused as he is doing 'netagiri'. 20. Meva Ram, PW-15 before whom written compliant was submitted has stated that before registration of the FIR, information was received in the police station regarding the occurrence. This witness further stated that he heard at the place of the occurrence that at the time of occurrence, Mohammed Mohsin Khan was offering Namaz in Masjid as he is Nayab Sadar of Masjid. 21. Chaggan Lal, PW-19 on 12th April, 1993 was SHO Police Station, Ramgarh. He has proved various facets of investigation and documents 53 exhibited at the instance of prosecution. 22. What is necessary to be noticed by us is the cross-examination of the Investigating Officer. Investigating Officer stated that before his arrival at the spot, he had received information regarding the occurrence. He arrived at the spot and was presented written report Ex.P/43. He was already engaged in investigation before receipt of written report Ex.P/43. He reached at the spot at 2 or 2.30 P.M. After receipt of report Ex.P/43 half an hour later, he reached SMS Hospital, Jaipur and had prepared Panchnama/inquest of the dead body. He arrived at the spot and was presented written report Ex.P/43. He was already engaged in investigation before receipt of written report Ex.P/43. He reached at the spot at 2 or 2.30 P.M. After receipt of report Ex.P/43 half an hour later, he reached SMS Hospital, Jaipur and had prepared Panchnama/inquest of the dead body. This witness however, admitted that near the shop of complainant there is another shop of scrap dealer. He had not taken into consideration damage caused to the wall between the shop of the complainant and scrap dealer. He further admitted that when he arrested the accused they were having some injury on their person. He had not noticed the details of the injury in the arrest memo. This witness further stated that he got all the accused medically examined but medical examination of the accused was not part of the record. 23. After examination of the investigating Officer who is witness No. 19, prosecution closed its evidence and statement of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to the accused. He denied the same and pleaded alibi. He stated that on the day of the occurrence he being a Nayab Sadar of of Masjid, had performed Namaz and when he reached at the place of occurrence, mob had gathered there and they had pelted stones and he had also received injuries due to pelting of stones. 24. The accused examined eight witnesses in defence. DW-1 Mohammad Shamim stated that he is running a shop for sale of iron. He stated that one Azimbaksh was having a shop near the shop of the complainant party. on the day of occurrence, Shahbuddin, Ifran, and Ikram alongwith 10-15 persons had a fight with Abdul Hakim. This witness further stated that Irfan brought knife from the shop, he intended to cause an injury to Ahmed, Ahmed turned away and the knife landed on the person of Shahbuddin. Thereafter, people had pelted stones. The present accused was in the Masjid. He was called and, thereafter, again pelting of the stones had ensued. DW-2 Mirza Amzad Ali was examined to prove alibi of the appellant to the effect that at the time of occurrence, he was in the Masjid performing Namaz. DW-3 Ashfak Ahmed again reiterated as what was stated by DW-1 Mohammed Shamim regarding causing of injury by Ifran to deceased. DW-2 Mirza Amzad Ali was examined to prove alibi of the appellant to the effect that at the time of occurrence, he was in the Masjid performing Namaz. DW-3 Ashfak Ahmed again reiterated as what was stated by DW-1 Mohammed Shamim regarding causing of injury by Ifran to deceased. Abdul Hakim, DW-4 stated that he was having shop No. 119 next to the shop of the complainant party. He further stated regarding dispute with the complainant party and the fact that after offering his Namaz he had learnt that occurrence had taken place. DW-5 Mohammad Saddik had deposed regarding causing of injury by Irfan. DW-6 Mohd. Usman stated that on 8th April, 1993, Abdul Hakim had presented a complaint regarding the dispute with his neighbours i.e. complainant party. DW-7 Mohammad Sabir was examined to prove alibi of the present appellant to the effect that at the time of occurrence, he was in the Masjid offering his Namaz. DW-8 Jahid Ali was also examined to prove alibi of the appellant. 25. Shri NC Choudhary assisted by Shri Vijay Choudhary appearing for the appellant has made four fold submissions before us:- (i) Firstly, it is stated that before registration of the FIR, police had arrived at the spot and the FIR was lodged post investigation. Our attention has also been drawn to statement of the witnesses PW-14 Usman Khan and PW-7 Abdul Karim who had attested inquest to say that present appellant being influential member of the community has been falsely implicated to settle the score and land dispute. It has been urged before us that the appellant was Nayab Sadar of the Masjid and at the time of occurrence, he was offering his Namaz in the Masjid. He had arrived at the scene after half an hour of the occurrence. To fortify this submission, our attention has been drawn to the testimony of defence witnesses. (ii) Secondly, it is urged before us that PW-12 Ikramuddin is unreliable witness while appearing against Tabrez delinquent juvenile in conflict with law, before the concerned Juvenile Justice Board, Ikramuddin had disowned the prosecution version and had taken a categoric stand that he had not witnessed the occurrence. Shri NC Choudhary assisted by Shri Vijay Choudhary appearing for the appellant has submitted that this witness was duly confronted with portion C to D of statement Ex.D/2 made by this witness before the Juvenile Justice Board. Shri NC Choudhary assisted by Shri Vijay Choudhary appearing for the appellant has submitted that this witness was duly confronted with portion C to D of statement Ex.D/2 made by this witness before the Juvenile Justice Board. Thus, it is urged before us that pattern of the prosecution case has been laid by a non-eye witness non-injured PW-12 Ikramuddin who was not present at the spot and, therefore, statement of injured PW-14 Usman Khan, PW-17 Mohd. Irfan and PW-18 Ajeemuddin being witness of the scene of the occurrence cannot believed to be true as they were bound to follow story or version or the pattern of prosecution case unfolded by a non-eye witness. (iii) Thirdly, it is submitted that on the day of occurrence, a dispute regarding wall had taken place, mob had gathered at the spot and they were pelting stones and even if prosecution case is assumed to be correct, appellant had only given one blow in the sudden occurrence without any premeditation and the only injury i.e. fatal injury should be taken into consideration by ignoring other injuries being superficial injuries. (iv) Fourthly, Chhggan Lal Pw-19 admitted that there were injuries on the person of some of the accused and he got them medically examined. For reasons best known, the prosecution has withheld the medico-legal examination of the accused and thus, has suppressed origin and genesis of the occurrence. 26. Having taken note of the arguments raised by the counsel for the appellant, we are of firm opinion that the learned counsel has failed to persuade us to set aside the conviction and judgment against the appellant. Counsel for the appellant by very forcibly advancing the case in favour of the appellant but in his zeal has lost sight of very material facts which we cannot ignore even if we wish to do so. In the present case, occurrence had taken place on 12th April, 1993 in afternoon at about 2.00 and 2.30 P.M.. It is a case of the prosecution that one brother had brought the meals and all brother were taking meals. Shahbuddin who was sitting in front of the shop was dragged by the accused. Since the accused are shopkeepers, their presence in the shop is natural, probable and convincing. It is a case of the prosecution that one brother had brought the meals and all brother were taking meals. Shahbuddin who was sitting in front of the shop was dragged by the accused. Since the accused are shopkeepers, their presence in the shop is natural, probable and convincing. Furthermore, due to injuries received, presence of three of the witnesses namely PW-13 Abid, PW-17 Irfan and PW-18 Ajimuddin is stamped at the place of occurrence. Therefore, we hold that presence of the witnesses in the shop and place of occurrence was natural and probable and injuries on their person, prove the same. 27. We have taken note of the injuries suffered by these persons. Alimuddin had suffered bone deep injury on the parietal region. This injury is on the head. Mohd. Irfan, PW-17 had also suffered injury No. 4 on the parietal region that is vital portion of the body. Mohd. Islammuddin, had also suffered injury on occipital region of the head which cannot be self-suffered. Admittedly, as per the defence also occurrence had taken place after the Namaz has been offered at 2 or 2.30 P.M. all the three injured were examined at SMS Hospital immediately thereafter, around 4. P.M. thus, the injuries on the person of three accused pertains to the same time on which injuries were caused to Shahbuddin deceased. 28. Presence of the three injured eye witnesses and their deposition is not disputed rather defence has set up the case that there was dispute over wall with one Abdul Hakim and witness had received injuries due to pelting of stones. There are cut injuries (by incised weapon) on person of injured witnesses. This belie version of defence. Furthermore, defence set up a case that Shahbuddin had suffered fatal injury at the hand of his own brother. This is a highly improbable version. Thus, at the touchstone of defence version, we cannot discard the witness. 29. Counsel for the appellant has also raised a very attractive argument that FIR was lodged post investigation and information was received by the Investigating Agency before lodging of the report and they had commenced their investigation and thereafter, the FIR was registered. We cannot miss a very pertinent statement made by the Investigating Officer that when he commenced the FIR written report Ex.P/43 was already received by him. Receipt of written report and registration of the FIR are two different things. We cannot miss a very pertinent statement made by the Investigating Officer that when he commenced the FIR written report Ex.P/43 was already received by him. Receipt of written report and registration of the FIR are two different things. It is upon the written report received i.e. written complaint Ex.P/43, investigation commenced. Investigating Officer cannot postpone investigation to await registration of the FIR because investigation ought to be prompt and swift so that scene of the occurrence is immediately taken note of for purposeful investigation which is later unfolded. 30. Much ado has been made by counsel for the accused over alleged withholding of the purported medical examination of the accused. In the present case, appellant was arrested on the same day of the occurrence i.e. 12th April, 2003 . It is to be assumed that within 48 hours, he was produced before the concerned Magistrate, no request was made for medical examination nor at the time of remand this fact was brought to the notice of the Court. Nothing hinges upon the alleged injuries suffered as it is a definite case of the defence that after offering Namaz, when accused arrived, later at place of occurrence, due to pelting of stones, he had suffered injuries, therefore, defence in categorical terms had raised a plea that injuries were not suffered in the first part of the occurrence. The appellant has taken definite stand that complainant party had a dispute with Abdul Kareem. It is to be noted that one who claims for exception has to prove the same to the hilt. It is true that prosecution has to stand on its own legs and from the prosecution case itself if anything favourable emerge, benefit of the same is to be granted to defence but at the same, it is equal responsibility of the defence to lay some foundation for the argument to be accepted by the Court. 31. Above all, in present case, FIR was registered promptly without any unnecessary delay and the spontaneity of the version ensure its truthfulness. 32. Taking totality of the circumstances, especially the testimony of the injured witnesses, we are of the view that arguments raised by the defence are not such that we should discard the testimony of the injured eye witnesses, thus, we find no merit in the present appeal and the same is dismissed being devoid of merit. *******