JUDGMENT : MOHAMMAD RAFIQ, J. This criminal appeal as well as criminal revision petition are both directed against the judgment and order dated 30.09.2003 passed by Additional District and Sessions Judge(Fast Track) No. 3, Bharatpur(hereinafter referred to as 'the trial court'), whereby the trial court has convicted 12 accused-persons and acquitted remaining 18. Criminal Appeal No. 1464/2003 has been fled by 12 accused-appellants assailing their conviction and sentence recorded by the trial court vide impugned judgment whereas Revision Petition No. 1189/2003 has been fled b y the complainant-Dinesh questioning the correctness of judgment passed by the trial court whereby it acquitted remaining 18 accused-persons. 2. The trial court by the impugned judgment has convicted accused-appellants Prem and Ram Narain for offences punishable under Sections 148, 302, 302/149 and 452 IPC. The trial court has also convicted Ram Narain for offences punishable under Sections 323/149 and 325/149 IPC. All the other accused-appellants; namely-Narpati; Daulat; Bhoop Singh; Soni Ram; Vijay Singh; Sabo @ Sahab Singh; Naresh; Shyam @ Brijesh; Guddu @ Devendra and Vishambhar, for offences punishable under Sections 147, 148, 452, 323/149, 325/149 and 302/149 IPC. Accused-appellants, convicted under Section 302 and/or 302/149 IPC, have been sentenced to life imprisonment with fine of Rs. 2,000/-, in default whereof, to further undergo simple imprisonment of six months. Accused-appellants, convicted under Section 452 IPC, have been sentenced to five years' rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo two months' simple imprisonment. Besides, accused-appellants, for their conviction under Section 148 IPC, have been awarded sentence of three years rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo two months simple imprisonment. Those accused-appellants, convicted under Section 325/149 IPC, have been sentenced with five years' rigorous imprisonment with fine of Rs. 1,000/-, in default whereof, to further undergo three months simple imprisonment. Those, convicted under Section 147 IPC, have been sentenced with two years' rigorous imprisonment. The accused-appellants, convicted under Section 323/149 IPC, have been sentenced with one year's rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo three/two months simple imprisonment. 3. 1,000/-, in default whereof, to further undergo three months simple imprisonment. Those, convicted under Section 147 IPC, have been sentenced with two years' rigorous imprisonment. The accused-appellants, convicted under Section 323/149 IPC, have been sentenced with one year's rigorous imprisonment with fine of Rs. 500/-, in default whereof, to further undergo three/two months simple imprisonment. 3. Factual matrix of the case, essential for deciding the appeal as well as revision petition, is that a Parcha Bayan(Exhibit P-9) was given by Dinesh(P.W.1) at 6.10 P.M. on 04.03.1991 to Gainda Lal Yadav-ASI(P.W.23) at General Hospital, Bharatpur, alleging therein that on that day at 9.00 A.M., while Dinesh was taking food, in the Varandah of his house and his neighbour Ayodhya Prasad was drenching the newly constructed walls of his house, in order to moister them, accused Soni Ram, Ram Narain, Prem, Bhajan Lal, Ajay, Vijay, Radho, Sabo, Keshav, Narpat, Vishambhar, Bhoop, Doli, Radhey Shyam, Guddu, Shyam, Naresh, Vijay, residents of Ganwadi and 20-25 people of that village came and entered the house of Ayodhya Prasad and pulled him out in the lane. Accused Ram Narain brought out licensed gun of Ayodhya Prasad from his house. When these persons entered the house of informant Dinesh, he went into hiding and accused Prem took away licensed gun of Kamal from there. As the informant apprehended for his life, he ran towards fields where he told his uncle Shiv Ram and brother Kamal about the incident, who at that time were cutting “Laha” crop(Mustard). All these persons chased the informant towards the fields. The informant Dinesh, Kamal, Shiv Ram, upon seeing them, ran towards Nagla of Nand Ram(a small village). They scaled the stairs and went up on the roof of house of Man Singh Faujdar. At that time, Ram Narain and Prem fired shots from the guns, which hit Kamal. He further asserted that he, as also Shiv Ram, were assaulted with lathies. Lathi blows were dealt on his head, hands and foot by Guddu, Shyam and Vishambhar. He also stated that Soni Ram and Doli Patwari gave Pharsa blows on the person of Kamal, who was lying down. Kamal died on the spot and other persons of the village also suffered injuries. Dead body of Kamal was removed to Village Ganwadi. It was also stated that incident in question had been seen by the males and females of Nagla Nand Ram. 4. Kamal died on the spot and other persons of the village also suffered injuries. Dead body of Kamal was removed to Village Ganwadi. It was also stated that incident in question had been seen by the males and females of Nagla Nand Ram. 4. On the basis of aforesaid Parcha Bayan(Exhibit P-9), a formal FIR No. 103/1991(Exhibit P-81) was registered at Police Station Sewar for offences punishable under Sections 147, 148, 149, 323, 307, 452, 380 and 302 IPC. The Police fled challan against 23 accused persons, but kept investigation pending under Section 173(8) Cr.P.C. against some other accused persons; namely-Radha Kishan, Vishambhar, Naresh, Guddu, Shyam and Mukut. The police, in its initial conclusion, did not file any challan against accused Ram Narain and Doli Patwari concluding that they were not present at the scene of occurrence, on account of former being hospitalised and latter being on duty. Learned trial court framed charges against 23 accused-persons on 07.08.1992 for various offences, which were later amended in the manner that for some of the accused charge under Sections 302/149 and 148 were also framed. Thereafter, an application under Section 319 Cr.P.C. was fled by the complainant. The trial court, while allowing that application vide order dated 13.01.2003, added and summoned seven accused persons, who were let of by the police, namely Ram Narain, Naresh, Shyam @ Brijesh, Guddu @ Devendra, Vishambhar, Doli Patwari, Radho @ Radha Kishan to face the trial for the aforesaid offences. Thereafter, nine prosecution witnesses, who were earlier examined, were reexamined. The prosecution, in support of its case, examined 27 witnesses and got 98 documents exhibited. Thereafter, statements of the accused-persons under Section 313 Cr.P.C. were recorded wherein they pleaded innocence. The defence produced 18 witnesses and exhibited 36 documents. The trial court vide its judgment dated 30.09.2003 acquitted 18 accused-persons of the charges framed against them and convicted 12 accused-persons and sentenced them in the manner indicated hereinabove. The accused so convicted and sentenced have come in appeal assailing their conviction and sentence whereas the complainant has fled revision petition against acquittal of 18 accused-persons by the trial court. 5. Mr. The accused so convicted and sentenced have come in appeal assailing their conviction and sentence whereas the complainant has fled revision petition against acquittal of 18 accused-persons by the trial court. 5. Mr. Biri Singh Sinsinwar, learned Senior Counsel appearing on behalf of the accused-appellants argued that in the present case, FIR(Exhibit P-81) has been registered by the police on 04.03.1991 at 7.30 P.M., with inordinate delay of more than nine hours whereas as per the prosecution, the incident had already taken place on that day at 9.00 A.M. Learned trial court has proceeded to mechanically convict the accused-appellants unmindful of the fact that genesis of the incident has been completely suppressed by the prosecution and it was a case of gross false/over implication, which is proved from the very verdict of the trial court whereby it has acquitted 18 accused-persons out of total 30 accused-persons. The trial court has failed to appreciate the fact that the incident took place at 9.00 A.M. on 04.03.1991, whereas as per the version of Shyam Lal, S.H.O., Police Station Chiksana(P.W.26), on receiving wireless information from Circle Officer, Bharatpur, he reached at the place of occurrence in village Ganwadi. Soon after his arrival there along with other police officials, he went to house of Dauli Gujar and found dead body of Kamal and Ayodhya Prasad, who was alive. Shyam Lal(P.W.26) prepared four site plans(Exhibit P-10 to Exhibit P-13). Exhibit P-10 is site plan of house of Man Singh Jat situated in Nagla Nandram. Exhibit P-11 is site plan of house of Ayodhya Prasad. Exhibit P-12 is site plan of house of Amar Singh and Exhibit P-13 is site plan of house of Dauli Gujar, from where dead body of Kamal was recovered and Ayodhya Prasad was rescued. Exhibit P-14 is seizure memo of two 12 bore double barrel guns of both deceased Kamal and Ayodhya Prasad, seven empty cartridges and one unused live cartridge of Kamal. Shyam Lal (P.W.26) further stated that cartridge belt of Ayodhya Prasad was recovered from his dead body. Cartridge belt of Kamal with seven empty cartridges and one live cartridge was recovered from dead body of Kamal vide Exhibit P-22. Exhibit P-15 is recovery memo of two ropes with which deceased Ayodhya Prasad was tide. Shyam Lal (P.W.26) further stated that cartridge belt of Ayodhya Prasad was recovered from his dead body. Cartridge belt of Kamal with seven empty cartridges and one live cartridge was recovered from dead body of Kamal vide Exhibit P-22. Exhibit P-15 is recovery memo of two ropes with which deceased Ayodhya Prasad was tide. Blood smeared soil and simple soil were recovered from the house of Doli Gujar vide Exhibit P-16 and one bamboo like lathi having blood stains was recovered from the house of Amar Singh vide Exhibit P-17. An old piece of blanket(Rajai)having blood stains was recovered from the room of Amar Singh vide Exhibit P-18. Two cartridges, one empty and one live were recovered from the roof top of the house of Man Singh vide Exhibit P-19. Blood stained soil and controlled soil was also lifted from the house of Man Singh vide Exhibit P-20. Description of dead body of Kamal was prepared vide Exhibit P-22. Inquest report of dead body of Kamal was prepared vide Exhibit P-23. All these memos were attested by two witnesses namely Shiv Ram(P.W.4) and Surendra (P.W.13). Not only memos were prepared before lodgement of FIR, but the persons seriously injured were sent to hospital for their medical and dead body of the deceased was also sent to the hospital for post mortem. In fact, injury Report of Amar Singh (P.W.6) was prepared at 2.30 P.M. on 04.03.1991 vide Exhibit P-54. Injury report of Dinesh(P.W.1) was prepared at 2.35 P.M. on 04.03.1991 vide Exhibit P-53. Injury report of Smt. Dilip Kumari (P.W.11) was prepared at 2.45 P.M. on 04.03.1991 vide Exhibit P 51. Injury report of Dhabbo(P.W.2) was prepared at 2.50 P.M. on 04.03.1991 vide Exhibit P-50. Injury report of Ram Dayal, who has not been produced as witness, was prepared at 3.00 on 04.03.1991 vide Exhibit P-49. Injury report of Pooran(P.W.10) was prepared at 3.05 P.M. on 04.03.1991 vide Exhibit P-48. Injury report of Fateh Singh(P.W.9) was prepared at 3.10 P.M. on 04.03.1991 vide Exhibit P-47. Injury report of Shiv Ram(P.W.4) was prepared at 3.15 P.M. on 04.03.1991 vide Exhibit P-46. Injury report of Smt. Darbi was prepared at 3.20 P.M. on 04.03.1991 vide Exhibit P-45. Injury report of Daya Ram(P.W.3) was prepared at 3.25 P.M. on 04.03.1991 vide Exhibit P-44. Injury report of Nemo (P.W.5) was prepared at 3.30 P.M. on 04.03.1991 vide Exhibit P-57. Injury report of Shiv Ram(P.W.4) was prepared at 3.15 P.M. on 04.03.1991 vide Exhibit P-46. Injury report of Smt. Darbi was prepared at 3.20 P.M. on 04.03.1991 vide Exhibit P-45. Injury report of Daya Ram(P.W.3) was prepared at 3.25 P.M. on 04.03.1991 vide Exhibit P-44. Injury report of Nemo (P.W.5) was prepared at 3.30 P.M. on 04.03.1991 vide Exhibit P-57. Injury report of Hari Singh(P.W.12) was prepared at 3.35 P.M. on 04.03.1991 vide Exhibit P-55. Injury report of Smt. Battan(P.W.8) was prepared at 3.40 P.M. on 04.03.1991 vide Exhibit P-56. All these steps of investigation including preparation of aforesaid memos and injury reports were taken much prior to receiving of Parcha Bayan(Exhibit P-9) and lodgement of FIR. Therefore, all the aforesaid documents and exhibits are hit by provisions of Section 162 Cr.P.C., as the FIR was registered belatedly at 7.30 P.M. Conviction of the accused-appellants could not be recorded by the trial court on the basis of the same. 6. Learned Senior Counsel further submitted that genesis of the incident has been completely suppressed. In fact, wedding of daughter of Dauli Gujar was fixed on 5.03.1991 and A mar Singh, his cousin, whose house was situated in front of the house of Dauli Gujar, raised objection as to why Dauli Gujar was inviting gujars of another 'gautra' to attend that wedding. Apart from this, these two cousins were supporting two separate groups. While the Sarpanch, who had won the elections, was supporting Dauli Gujar, Ayodhya Prasad, who lost to Ram Narain in the recently held elections of Sarpanch, was supporting Amar Singh. The fact that blood stained lathi and an old piece of blood stained blanket(Rajai) was recovered from the house of Amar Singh indicates that dispute originally started from his house, which fact finds mention in the initial version given by most of the prosecution witnesses in their police statements recorded under Section 161 Cr.P.C. Police statement of Dhaboo(P.W.2) was recorded vide Exhibit D-3. Police statement of Daya Ram(P.W.3) was recorded vide Exhibit D-5. Police statement of Nemo(P.W.5) was recorded vide Exhibit D-9. Police statement of Fateh Singh (P.W.9) was recorded vide Exhibit D-11. Police statement of Amar Singh(P.W.6) was recorded vide Exhibit D-13. Police statement of Smt. Battan(P.W.8) was recorded vide Exhibit D-15. Police statement of Smt. Dilip(P.W.11) was recorded vide Exhibit D-18. Police statement of Hari Singh(P.W.12) was recorded vide Exhibit D-20. Police statement of Nemo(P.W.5) was recorded vide Exhibit D-9. Police statement of Fateh Singh (P.W.9) was recorded vide Exhibit D-11. Police statement of Amar Singh(P.W.6) was recorded vide Exhibit D-13. Police statement of Smt. Battan(P.W.8) was recorded vide Exhibit D-15. Police statement of Smt. Dilip(P.W.11) was recorded vide Exhibit D-18. Police statement of Hari Singh(P.W.12) was recorded vide Exhibit D-20. All these statements were recorded on 04.03.1991 itself, even before the lodgement of FIR. The prosecution, in order to change the genesis of the incident, has completely changed the story. Mangal(D.W.4) has also stated that he had gone to attend weeding at the house of Dauli Gujar. He was helping Dauli Gujar in the wedding of his daughter. Suddenly at 9.30 A.M. on 04.03.1991, a pellet fired by fire arm hit in his stomach. That fire arm was opened by Ayodhya Prasad. He became unconscious and taken to hospital. He was medically examined and Exhibit D-23 is his injury report. Learned Senior Counsel argued that no question was put to him in cross examination by the prosecution as to Ayodhya Prasad did not fire at him. The prosecution witnesses have also proved incident of fire in t he house of Dauli Gujar. In this connection, learned Senior Counsel referred to statement of Fateh Singh(P.W.9), who in his cross examination has admitted that he heard the sound of gun fire from the house of Dauli Gujar and he pallets of such fire defected from the wall and then hit Mangal and Roop Kishore, members of the complainant party. Learned Senior Counsel referred to statement of Dinesh(P.W.1) recorded under Section 161 Cr.P.C.(Exhibit D-2), which is the first version given by him to police. If the original story introduced by these witnesses is analysed, it would make it clear that complainant party was aggressor, which attacked the accused party at the house of Dauli Gujar, whose daughter was to get married on the following day. They came fully armed. While Kamal and Ayodhya Prasad were armed with guns and belts of cartridges, others were having variety of weapons including lathies etc. Three of the accused namely Mangal Singh, Lakhan Singh and Roop Kishore sustained injuries, out of which two sustained fire arm injuries. Injury Report of accused Mangal Singh is Exhibit D-23, which shows that he had received gun shot injury. Three of the accused namely Mangal Singh, Lakhan Singh and Roop Kishore sustained injuries, out of which two sustained fire arm injuries. Injury Report of accused Mangal Singh is Exhibit D-23, which shows that he had received gun shot injury. Injury report of accused Lakhan Singh is Exhibit D-34, which shows that he had received one incised wound and Injury report of accused Roop Kishore is Exhibit D-35, which shows that he received gun shot injury on chest. All these three accused have been acquitted by the trial court, but nevertheless it indicates that fire arm was first used by the complainant party, who came to the rescue of Amar Singh and then attacked accused party at house of Dauli Gujar, which led to escalation of the dispute. The prosecution, in order to change the initial story, recorded 'titamba'(supplementary) statements of aforesaid witnesses under Section 161 Cr.P.C., so as to show that the accused party was aggressor and they first attacked at house of Ayodhya Prasad and then went to Nagla of Nandram and fired at Kamal Singh and gave beating to other injured namely Daya Ram(P.W.3), Smt. Darbi, Shiv Ram(P.W.4), Fateh Singh(P.W.9), Pooran Singh(P.W.10), Ram Dayal, Smt. Dhaboo(P.W.2), Smt. Dalip Kumari(P.W.11), Dinesh(P.W.1), Amar Singh(P.W.6), Hari Singh(P.W.12), Smt. Battan(P.W.8) and Nemo (P.W.5). 7. Mr. Biri Singh Sinsinwar, learned Senior Counsel further submitted that no convincing explanation has been given by the prosecution witnesses as to how and in what manner, 13 of them received injuries and at whose instance. The story has thus been completely changed by the prosecution. All the aforesaid witnesses were confronted with their first version given t o t he police on 04.03.1991 in their statements recorded under Section 161 Cr.P.C. prior to lodgement of FIR, but they failed to give any satisfactory explanation for such a serious deviation. It is submitted that there are contradictions in testimony of prosecution witnesses inasmuch as it cannot be believed that the accused party, especially Dauli Gujar, whose daughter’s marriage was due to take place on the following day, would commit murder of one person and/or cause fatal injuries to another and bring their bodies to his house. Such an assertion, in all human probabilities, is difcult to believe. Such an assertion, in all human probabilities, is difcult to believe. In fact, Girraj Singh(D.W.15), ex-sarpanch of village Ganwadi, went along with Mukut, son of Daulat Singh Gujar, who was constable in the police and Upsarpanch Naresh Chand Thakur to residence of Superintendent of Police, Bharatpur, but they were not allowed to enter and were asked to come to his office. Then, they went to his office at 10.00 A.M. and submitted an application requesting that they apprehend that opposite party may cause disturbance at the time of marriage of their family. Superintendent of Police, Bharatpur assured them of necessary police help. Immediately when they came out of his office, in formation was received by them that the incident had already taken place in the village leading to loss of one life, which shows that the accused party was more apprehensive than the complainant party and had taken all precautionary steps to avoid the incident. Cross case was also lodged, but the prosecution did not lodge the cross case against the complainant party and therefore, the accused party had to file criminal complaint in the court. Thereafter, on 18.03.1991, FIR(Exhibit D-36) was registered in the cross case, but the trial court concerned had wrongly acquitted the complainant party in that case. 8. It is submitted that Ayodhya Prasad had died due to receiving superfluous injuries. Allegation of the prosecution that Ayodhya Prasad, after he was subjected to severe beatings, was dragged from his house to the house of Dauli Gujar, has not been proved by the prosecution by producing ample evidence. The allegation that dead body of Kamal was taken in a procession from house of Man Singh and Chandan Singh in Village Nagla of Nandram to the house of Dauli Gujar has also not been proved by any evidence. Neither any marks of dragging of Ayodhya Prasad, nor any blood trail from the house of Chandan Singh to that of Dauli Gujar have been proved. In fact, Ayodhya Prasad, who was found in injured condition, died after nine days of the incident on 13.03.1991, which shows that the accused in fact had no intention to commit his murder and they merely acted in their defence. In fact, Ayodhya Prasad, who was found in injured condition, died after nine days of the incident on 13.03.1991, which shows that the accused in fact had no intention to commit his murder and they merely acted in their defence. It is argued that Exhibit P-12 is site plan of place of incident wherein house of Dauli Gujar has not been shown and vice versa in site plan(Exhibit P-13), house of Dauli Gujar has been shown, but house of Amar Singh, situated in front of that house, has not been shown, which clearly shows that the prosecution wanted to suppress the genesis of the incident. Learned Senior Counsel argued that 10 of the prosecution witnesses are highly interested as they are family members of Amar Singh. Three witnesses namely Shyam Bihari(P.W.15), Gajendra Singh(P.W.16) and Bachchu Singh(P.W.18) were the family members of Ayodhya Prasad. No independent witness has been produced by the prosecution with the sole intention of withholding of genesis of the incident from the trial court. Additional Superintendent of Police and Circle Inspector, who also reached at the place of incident, had also not been produced. Smt. Angoori(P.W.22), wife of Man Singh, at whose house roof top, Kamal Singh was allegedly fired by accused, has denied the incident having taken place in her house. Smt. Omwati, wife of Chandan Singh, at whose house roof top, Kamal Singh allegedly moved from roof top of house of Man Singh has not been produced by the prosecution, but she was produced by the defence as D.W.6. She has also denied about any such incident having taken place on the roof of her house. In fact, Exhibit P-10, site plan of house of Man Singh and Chandan Singh shows that two houses are divided by a lane(Gali) of about 7-8 foot and two roofs do not join and, therefore, it was impossible for Kamal Singh to move from roof top of house of Man Singh to the roof top of house of Chandan Singh. In this connection, learned Senior Counsel referred to statement of Dinesh(P.W.1), who in his cross examination stated that width of the lane(Gali) was 5-7-8 foot. Even if, that be so, it was virtually impossible for Kamal, who had received a gun shot injury on the roof top of house of Man Singh to jump over to the roof top of house of Chandan Singh. Even if, that be so, it was virtually impossible for Kamal, who had received a gun shot injury on the roof top of house of Man Singh to jump over to the roof top of house of Chandan Singh. While one empty cartridge and one used cartridge has been recovered from the roof of house of Man Singh vide Exhibit P-19, no such recovery has been made from the roof of house of Chandan Singh whereas blood smeared soil has been recovered from the roof of house of Chandan Singh, but no such recovery has been made from the roof of house of Man Singh. Therefore, the whole story of the prosecution does not inspire confidence. Shiv Ram(P.W.4), in his cross-examination, having asked a question that whether there was 8-10 foot wide lane(Gali) between two houses, has stated that there was a Kuchha wall connecting two houses, but he could not explain as to why he did not make such statement to police in his statements recorded under Section 161 Cr.P.C. (Exhibits D-6 and D-7). 9. Learned Senior Counsel argued that 7 out of 18 accused named in the Parcha Bayan have been acquitted by the Trail Court. Ram Babu @ Rammuni(P.W.14) and Shyam Bihari (P.W.15) were cited as eye witnesses, but both of them have not supported the prosecution case. Shyma Lal(P.W.26), Investigating Officer, in his cross examination, failed to satisfactorily explain why first information report was not registered before preparation of more than 20 memos by him and getting the injured medically examined. He has rather admitted that he received Parcha Bayan when he reached the hospital. This implies admission on his part that all he investigation that he carried there before would be hit by Section 162 Cr.P.C. The Prosecution sent neither two guns nor empty and live cartridges to Forensic Science Laboratory. This was serious lacuna on the part of the prosecution. Cartridges found on roof top of the house of Man Singh and the guns recovered from the house of Dauli Gujar have not been connected by the prosecution. Shyam Lal (P.W.26), Investigating Officer, has categorically stated that when initially statements under Section 161 Cr.P.C. were recorded by him from 04.03.1991 to 11.03.1991, witnesses did not name either Ram Narain or Chidhi @ Chagan Lal as accused. Shyam Lal (P.W.26), Investigating Officer, has categorically stated that when initially statements under Section 161 Cr.P.C. were recorded by him from 04.03.1991 to 11.03.1991, witnesses did not name either Ram Narain or Chidhi @ Chagan Lal as accused. Even the complainant Dinesh(P.W.1) in his statement under Section 161 Cr.P.C. recorded on 04.03.1991 did not name Chidhi @ Chagan Lal. 10. Learned Senior Counsel further argued that Shyam @ Brijesh, Guddu @ Devendra, Naresh all sons of Udai Singh and Vishambhar son of Sahab Singh were not present at the place of occurrence. Shyam Lal, Investigating Officer(P.W.26) also made enquiries for Shyam @ Brijesh at Agra; Naresh at Bharatpur and Guddu @ Devendra at Udaipur. Learned Senior Counsel in this connection referred to statement of Kishan Singh(D.W.5), retired Principal of Maharaja Surajmal Inter College, Agra, who has proved that Shyam Singh @ Brijesh son of Udai Singh had come to him on 12.02.1991 and stayed with him up to 10.03.1991 and he did not go anywhere in between. Shyam Singh @ Brijesh had fallen ill in between and he was got treated. Dr. Mahendra Pal Sharma(D.W.7), who was Senior Lecturer of B.Ed. in Ganj Gundwara College, District Eta has stated that Vishambhar Singh S/o. Sahab Singh was student of B.Ed. and on 04.03.1991, at 8.00 A.M. he was checking hostel and Vishambhar was in the hostel. Police had enquired from him about Vishambhar’s presence in the hostel, which he verified. Roop Kishore Yadav(D.W.10), student in Ganj Gundwara B.Ed. College has stated that he was student of that college and staying in Room No. 54 in the hostel. Vishambhar Singh was also staying in that hostel in Room No. 58 and he stayed in that hostel with him in February and March, 1991 continuously. Dr. Ramesh Kumar Bhargava(D.W.8) was Associate Professor and Head of Department in Agricultural University, Udaipur. He has proved presence of Devendra Singh son of Udai Singh at Udaipur on the relevant time. He has asserted that Devendra remained at Udaipur from the end of February, 1991 till the end of March, 1991. Vimal Kumar Jain (D.W.9), who was student of M.Sc. at the relevant time at Udaipur, has stated that he was room mate in Room No. 54 of P.G. Hostel. Devendra Singh was also studying M.Sc. and they were staying in the same hostel. Vimal Kumar Jain (D.W.9), who was student of M.Sc. at the relevant time at Udaipur, has stated that he was room mate in Room No. 54 of P.G. Hostel. Devendra Singh was also studying M.Sc. and they were staying in the same hostel. Devendra submitted his thesis in the last week of February, 1991 and thereafter, he stayed in his room till the end of April, 1991 when viva voce was conducted. Girraj Singh (D.W.15) has categorically stated that Naresh son of Udai Singh went with him and son of Daulat Singh to Superintendent of Police, Bharatpur for seeking police help and he remained present there with them till 7.30 P.M. on 04.03.1991. In this connection, learned Senior Counsel referred to statement of Bharat Singh (P.W.27), Sub Inspector, Subsequent Investigating Officer, who also stated that he did not find worth fling charge sheet against Vishambhar, Shyam @ Brijesh, Guddu @ Devendra and Naresh as their plea of alibi stood substantiated. It is argued that defence taken by the accused-appellants namely Shyam @ Brijesh; Guddu @ Devendra; Naresh and Vishambhar in their statements under Section 313 Cr.P.C. has, thus, been amply proved and there was no justification for the learned trial court to convict these accused-appellants especially when it has accepted plea of alibi set up by accused-appellants Dauli Patwari and Radho @ Radha Kishan. In support of plea of alibi, learned Senior Counsel relied upon the decisions of the Supreme Court in Jayantibhai Bhenkarbhai Vs. State of Gujarat, 2002 SCC(Cri) 1873 and Sunil Vs. State of Maharashtra, 2008 XI AD(SC) 440. 11. Learned Senior Counsel cited judgment of the Supreme Court in Lakshmi Singh & Others Vs. State of Bihar, 1976 SCC(Cri) 671 and argued that failure of prosecution to explain the injuries caused to the accused would show that this could be a case of private defence. Citing judgment of the Supreme Court in State of Haryana Vs. Ram Singh, (2002) 2 SCC 426 , learned Senior Counsel argued that defence witnesses have to be treated at par with prosecution witnesses because the evidence tendered by defence witnesses cannot always be termed to be a tainted one. Relying upon the decision of the Supreme Court in Awadhesh & Another Vs. Ram Singh, (2002) 2 SCC 426 , learned Senior Counsel argued that defence witnesses have to be treated at par with prosecution witnesses because the evidence tendered by defence witnesses cannot always be termed to be a tainted one. Relying upon the decision of the Supreme Court in Awadhesh & Another Vs. State of Madhya Pradesh, 1988 SCC(Cri) 361, learned Senior Counsel argued that delay in fling/lodging FIR and need of associating independent witness would make the case of the prosecution suspect. Reliance is also placed upon decision of the Supreme Court in Muluwa son of Binda & Others Vs. The State of Madhya Pradesh, (1976) 1 SCC 37 and argued that evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Learned Senior Counsel cited judgment of the Supreme Court in Vadivelu Thevar Vs. The State of Madras, (s) AIR 1957 SC 614 and argued that as per the ratio of aforesaid judgment, there are three categories of witnesses, namely (1) wholly reliable; (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. Judgment of the Supreme Court in Sarwan Singh Rattan Singh Vs. State of Punjab, (S) AIR 1957 SC 637 has also been cited to argue that there may be element of truth in the prosecution story against the accused, but there is inevitably long distance to travel between “may be true” and “must be true” and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. Lastly, relying upon the decision of the Supreme Court in Vidhya Singh Vs. State of Madhya Pradesh, 1971 SCC(Cri.) 469, learned Senior Counsel argued that the courts have to be rely more on human probabilities than on the assertions of the witness to take an overall view of the case and if a right of self defence is made out from the evidence on record, that right should not be construed narrowly because the right of self defence is a very valuable right and it has a social purpose. 12. Mr. A.K. Gupta, learned Senior Counsel appearing on behalf of the accused-appellant Ram Narain, at the outset has adopted all the arguments advanced by Mr. 12. Mr. A.K. Gupta, learned Senior Counsel appearing on behalf of the accused-appellant Ram Narain, at the outset has adopted all the arguments advanced by Mr. Biri Singh Sinsinwar, learned Senior Counsel appearing on behalf of other accused-appellants and in addition, he cited judgment of the Supreme Court in The State of Bombay Vs. Rusy Mistry and Another, AIR 1960 SC 391 and argued that the entire investigation carried out by Shyam Lal(P.W.26) from his arrival at the place of occurrence soon after the incident had taken place on 04.03.1991 at 9.00 A.M. till 7.30 P.M. on that day when the FIR was registered was illegal, being hit by Section 162 Cr.P.C. Name of accused Ram Narain was given in the written report and on that basis, investigation was conducted, which would also be hit by Section 162 Cr.P.C. In the statements recorded by the investigating officer under Section 161 Cr.P.C., name of accused Ram Narain was not mentioned as one of the assailant and the same has been accepted by the defence and the prosecution witnesses. These witnesses when confronted with their first version before the trial court, they could not give any satisfactory explanation as to the false implication of Ram Narain. Learned Senior Counsel in this connection referred to statement of Shyam Lal(P.W.26), investigating officer, who has stated that while recording statements of prosecution witnesses under Section 161 Cr.P.C. namely Dhaboo @ Dhawal Singh, Daya Ram, Shiv Ram, Nemo, Fattey @ Fateh Singh, Amar Singh, Battan, Smt. Dilip, Hari Singh, Ramdayal, Puranchand, Mohar Kaur on 04.03.1991 or 08.03.1991 or 11.03.1991, they did not name Ram Narain or Chidhi @ Chagan Lal as one of the assailants. Had they told their names, he would have definitely mentioned the same in their statements. Learned Senior Counsel also referred to statement of Bharat Singh (P.W.27), subsequent investigating officer, who has also stated that he did not file challan against Ram Narain, as in his investigation it was proved that at the time of incident he was hospitalized in Khirni, District Sawai Madhopur for treatment. Reference of this fact was also accordingly made by Ram Narain in his examination under Section 313 Cr.P.C. wherein he took a categorical defence that he went to Mathura on 02.03.1991 for meeting his cousin Prayagraj, who was not feeling well. Reference of this fact was also accordingly made by Ram Narain in his examination under Section 313 Cr.P.C. wherein he took a categorical defence that he went to Mathura on 02.03.1991 for meeting his cousin Prayagraj, who was not feeling well. This cousin was in government service at Roopwas and had taken medicines from Roopwas, but not benefited. He then had taken him to Dr. Mahesh Chand Gupta at Roopwas, who was later transferred from Roopwas to Bonli, Sawai Madhopur. Therefore, Ram Narain took him to Bonli, District Sawai Madhopur. While they were returning back from Bonli after prescription of medicines by the doctor on 03.03.1991, Ram Narain suffered from acute stomach pain at Khirni. He, therefore, had to stay there and was eventually hospitalized at 7.00 P.M. in Government Hospital, Khirni and was discharged from there on the following day at 9.30 by Dr. Meena. When he returned back to Bharatpur, his younger brother Bhagwan Singh told him about the incident, which had taken place at village Ganwadi. At that time he learnt that his name had been falsely implicated. Ram Narain further stated that there was dispute between him and Shiv Ram, Har Narayan and Ram Dayal with regard to construction of latrine tank for which he fled a civil suit in which he had gone up to the High Court and owing to that rivalry, Shiv Ram and Dinesh had falsely implicated him in a case. 13. Learned Senior Counsel, in this connection, referred to statement of Mohan Lal Goyal(D.W.2), who has stated that on 03.03.1991 by Bill No. 2341(Exhibit D-22) issued in the name of Ram Narain has sold the medicines written on the prescription of Dr. Ram Phool Meena, who was in charge of the Primary Health Centre at Khirni and Bharat Singh(P.W.27) had enquired from him about the said bill and also saw the carbon copy of the same (Exhibit D-22A). Prayag Raj Sharma(D.W.3) has also stated that he was serving as Sanitary Inspector at Roopwas and had gone to his house at Mathura because he had fallen sick. Ram Narain, who happens to be his maternal uncle, visited him at Mathura on 02.03.1991. Ram Narain accompanied him to Primary Health Center, Bonli on 03.03.1991 and took him to Dr. Ramesh Chand Gupta, who had treated him earlier at Roopwas. Ram Narain, who happens to be his maternal uncle, visited him at Mathura on 02.03.1991. Ram Narain accompanied him to Primary Health Center, Bonli on 03.03.1991 and took him to Dr. Ramesh Chand Gupta, who had treated him earlier at Roopwas. While they were returning back to Mathura, Ram Narain suffered acute stomach pain at Khirni, due to which, they alighted from the bus and he, in emergent circumstances, had to be hospitalized in Primary Health Centre, Khirni. Doctor prescribed certain medicines, which were purchased by him from Agarwal Medical Store, Khirni. Ram Narain remained hospitalized by night on 03.03.1991 and on the following day morning on 04.03.1991, he was discharged at 9.00 A.M. This witness also proved bill of the medicines(Exhibit D-22) and stated that treatment was given by Dr. Meena and that the police had enquired from him about such statement. Reference is made to the statement of Dr. R.P. Meena(D.W.13), who has stated that he was in charge of Primary Health Centre, Khirni. On 03.03.1991, Ram Narain approached him around 7.00 P.M. He was accompanied with one person. He had complaint of acute stomach pain. He prescribed some medicines to him and prescription of medicines was Exhibit D-25. This witness also produced OPD Register, in which at Serial No. 1056, entry of Ram Narain was made on 03.03.1991, which was exhibited and proved as Exhibit D-26. Photo stat copy of entry of Ram Narain in the OPD Register was produced as Exhibit D-26A. Ram Narain was discharged at 9.30 A.M. on 04.03.1991, which shows that Ram Narain was present there. Discharge Certificate was produced as Exhibit D-27. This witness has also stated that distance between Khirni and Bharatpur by train must be about 200-250 kms., but distance between two places by bus would be about 300 kms. Police had made enquiry from him about aforesaid. Learned Senior Counsel referred to statement of Dinesh(P.W.1) and submitted that in his cross-examination he stated that when Ayodhya Prasad was being subjected to beatings, he did not see Ram Narain. Learned Senior Counsel further referred to statement of Dhabbo(P.W.2), who when required to explain why in police statement(Exhibit D-3) he did not name Ram Narain and Chidhi amongst those, who had pulled Ayodhya Prasad out of his house, he failed to give any satisfactory explanation. Learned Senior Counsel further referred to statement of Dhabbo(P.W.2), who when required to explain why in police statement(Exhibit D-3) he did not name Ram Narain and Chidhi amongst those, who had pulled Ayodhya Prasad out of his house, he failed to give any satisfactory explanation. The public prosecutor had the opportunity to re-examine investigating officer on the aspect of plea of alibi. Since he failed to do so , therefore, the prosecution is bound by his statement. 14. Learned Senior Counsel submitted that Dinesh(P.W.1), in his statement, has categorically stated that police reached at place of occurrence after half an hour or an hour and then sent the injured to the hospital including Fattey(P.W.9), Amar Singh (P.W.6), Dhabbo(P.W.2) and thereafter, the police came and took his Parcha Bayan(Exhibit P-9) in the hospital. Shyam Lal(P.W.26), investigating officer has also stated that upon receiving information on wireless from Circle Officer, Bharatpur, h e immediately reached at the residence of Dauli Gujar in Village Ganwadi and inspected place of occurrence and prepared Inquest Report of Kamal Singh(Exhibit P-23). Thereafter, C.O., Bharatpur, Additional Superintendent of Police, Bharatpur also reached there. He also prepared site plan of the house of Amar Singh, Dauli Gujar and recovered two 12 bore double barrel guns. Learned Senior Counsel argued that from this it is evident that the police was informed immediately and there was no occasion for the police for not lodging the FIR at first and then proceed with the investigation. However, the police has acted in a reverse way by starting investigation and making substantial progress in it at first and thereafter, registering FIR. Even w hen FIR was not lodged, all the steps had been taken, which were hit by provisions of Section 162 Cr.P.C. No document has been brought on record as to in what manner, the police received information of occurrence and thus, no opportunity was given to the defence to cross examine the police witnesses on this aspect. Column No. 2 of Inquest Report of deceased Kamal Singh(Exhibit-23) clearly indicates that investigation started at 4.00 P.M. on 04.03.1991 and dead body was handed over for post mortem on that day at 6.15 P.M. Shiv Ram(P.W.4) has stated that the police had stopped him in the village as attesting witness of the site plans, seizure memos of blood, ropes and guns and thereafter, took him to the hospital. Therefore, it was duty of the police to obtain first information report from him at that place. No explanation has been given by the prosecution thereabout and this gave opportunity to the complainant party to cook a story and implicate as many as persons, which is proved from the fact that 18 accused have been acquitted by the trial court. Entire prosecution case, thus, becomes doubtful. Injury report of Shiv Ram(Exhibit P-46) again show that how the investigation is tainted one. This shows that Inquest Report of deceased Kamal Singh(Exhibit P-23) is forged one and time of starting investigation has falsely been mentioned in that document. While Injury Report of Shiv Ram(Exhibit P-46) was prepared at 3.15 P.M. on 04.03.1991 after Shiv Ram having been taken to hospital whereas Inquest Report of Kamal Singh (Exhibit P-23) has been prepared at 4.00 when Shiv Ram(P.W.4) would not be in Village at that time. It is further argued that Injury Report of Ayodhya Prasad(Exhibit P-52) was prepared at 2.15 P.M. on 04.03.1991. If all the injured had reached in the hospital by 2.00 P.M., then why any Parcha Bayan was not recorded by the police. Therefore, FIR (Exhibit P-81) and Parcha Bayan(Exhibit P-9) are hit by Section 162 Cr.P.C. 15. Learned Senior Counsel also referred to statement of Genda Lal Yadav, ASI(P.W.23) and argued that this witness stated that S.H.O., Kotwali, Bharatpur has instructed him to go to the hospital and accordingly, he reached hospital at Bharatpur and recorded Parcha Bayan of Dinesh(P.W.1), but he did not remember if he had given requisition to the duty doctor for recording Parcha Bayan of Dinesh(P.W.1) and obtained certificate of his fitness. Neither he verified from the duty doctor, nor he put a note on the Parcha Bayan that the injured was ft to give statement. Learned Senior Counsel submitted that Inquest Report of deceased Kamal Singh(Exhibit P-23) indicates that in that report FIR No. 103/1991 for offences under Sections 147, 148, 149, 323, 380, 452, 307 and 302 IPC has been mentioned at Page No. 1 whereas FIR was registered at 7.30 P.M. on that day. This is a serious contradiction because FIR was not lodged by 4.00 P.M. on 04.03.1991, then how FIR number with various offences could be mentioned at page No. 1 of the Inquest Report. This is a serious contradiction because FIR was not lodged by 4.00 P.M. on 04.03.1991, then how FIR number with various offences could be mentioned at page No. 1 of the Inquest Report. It is further argued that at page No. 1 of Inquest Report of deceased Kamal Singh(Exhibit P-23) date 04.03.1991 has been mentioned whereas at page No. 3 of the report date has been mentioned as 05.03.1991. All these lacuna show that genesis of the occurrence has been withheld from the trial court. Injuries on the persons of Mangal Singh, Lakhan Singh and Roop Koshore, members of accused party have not been explained. Admittedly, the guns were of deceased Kamal and Ayodhya Prasad and if they were found having their guns, the prosecution owes an explanation, which is absolutely missing. Sequence of the incident has been completely changed and it is not explained that how dead bodies were found in the house of Dauli Gujar. Dhabbo(P.W.2) has stated that he identifies Dharam and Vishambhar, but he did not name Ram Narain. In the cross-examination he stated that he told name of Ram Narain and Chiddi, but why their names have not been mentioned in his police statement, it is not known to him. Daya Ram(P.W.3) has stated that he named appellant Ram Narain for dragging Ayodhya Prasad, but why this has not been mentioned in his police statement(Exhibit D-5) could not be explained. He also stated that he told the police that appellant Ram Narain was having the gun, but why this fact has not been mentioned in his police statement(Exhibit D-5), he cannot say. Shiv Ram(P.W.4) is not an eye witness and he was told by Dinesh(P.W.1) about the incident and, therefore, his evidence is hearsay evidence. In cross-examination, he stated that name of the appellant Ram Narain does not find place in his police statement(Exhibit D-6 and D-7). He has also admitted that there was civil dispute with Ram Narain. Nemo(P.W.5) has stated that name of appellant Ram Narain does not find place in his police statement(Exhibit D-9). He also stated that the fact that appellant Ram Narain was having a gun was not mentioned in his police statement. Amar Singh (P.W.6) has stated that in his police statement(Exhibit D-13) recorded on 08.03.1991, name of appellant Ram Narain was not mentioned. He also stated that the fact that appellant Ram Narain was having a gun was not mentioned in his police statement. Amar Singh (P.W.6) has stated that in his police statement(Exhibit D-13) recorded on 08.03.1991, name of appellant Ram Narain was not mentioned. Statement of Nattho(P.W.7) under Section 161 Cr.P.C. (Exhibit D-8) was recorded after 10-12 days of the incident and he did not name the appellant Ram Narain. Battan(P.W.8) has stated that she told name of appellant Ram Narain at first time, but she could not explain as to why it does not find mentioning in her police statement(Exhibit D-15). Fattey(P.W.9) also could not explain why did he not make allegation against Ram Narain of forcibly taking gun of Ayodhya Prasad in his police statement (Exhibit D-11). Pooran(P.W.10) is not a reliable witness because he is an injured witness and his statement under Section 161 was recorded after ten days of the incident. 16. Mr. A.K. Gupta, learned Senior Counsel, in support of his arguments, relied upon judgments of the Supreme Court in Raja Ram Vs. State of Rajasthan, JT 2000 (7) SC 549; Mukhtiar Ahmed Ansari Vs. State(N.C.T. Of Delhi), AIR 2005 SC 2804 ; and Javed Masood and Anr. Vs. State of Rajasthan, AIR 2010 SC 979 . Learned Senior Counsel further submitted that whatever may be statements given by the prosecution witnesses or defence witnesses, it is the duty of the prosecution to bring the truth before the Court. In this connection, reliance has been placed upon judgment of the Supreme Court in Jamuna Chaudhary and Others Vs. State of Bihar, AIR 1974 SC Page 1822. Learned Senior Counsel cited judgment of the Supreme Court in Shri Gopal & Another Vs. Subhash and Others, AIR 2004 SC 4900 and argued that if the prosecution witnesses are naming some accused whereas certain witnesses are naming other accused, it is a serious contradiction and fatal to veracity of the case. Learned Senior Counsel, therefore, submitted that presence of Ram Narain at the scene of occurrence was, thus, highly doubtful and rather he has succeeded in proving that he was not present there. Therefore, conviction of Ram Narain has been mechanically recorded by the learned trial court. 17. Learned Senior Counsel, therefore, submitted that presence of Ram Narain at the scene of occurrence was, thus, highly doubtful and rather he has succeeded in proving that he was not present there. Therefore, conviction of Ram Narain has been mechanically recorded by the learned trial court. 17. Learned Senior Counsels appearing on behalf of the appellants as well as learned Public Prosecutor both submitted that accused-appellants namely (1) Narpati S/o. Shri Ratan Singh; (2) Soni Ram S/o. Shri Mohan Lal and (3) Sabo @ Sahab Singh S/o. Shri Shibbi have died during pendency of the appeal and appeal to the extent of accused-appellants namely Narpati and Soni Ram has already been abated by this Court. 18. Mr. R.S. Raghav, learned Public Prosecutor and Mr. M.K. Kaushik, learned counsel for the complainant have supported the judgment passed by the trial court and justified conviction of the 12 accused persons. It is argued that the learned trial court has already considered all the arguments, which have now been raised on behalf of the appellants-accused before this Court and dealt with them in detail and rejected all those arguments in its judgment, especially the argument with regard to beating of Ayodhya Prasad and no blood trail being found on the way, on which he was dragged from his house to the house of Dauli Gujar. No such proof was found at the residence of Ayodhya Prasad. No member of family of Ayodhya Prasad has been produced as witness by the prosecution. The trial court has, thus, by detailed reasoning rejected the arguments, which have now been raised by learned Senior Counsels appearing on behalf of the appellants-accused. The trial court has also rejected the arguments with regard to roofs of houses of Man Singh and Chandan Singh and that no independent witness was produced and there was disparity/contradiction in ocular evidence and medical evidence with regard to fire arm injuries of deceased Kamal. These arguments were also dealt with in detail and rejected by the learned trial court. It is further argued that argument relating to plea of alibi with regard to aforesaid five accused-appellants, namely, Shyam @ Brijesh; Vishambhar, Guddu @ Devendra, Naresh and Ram Narain has been dealt with in Argument No. 18 in detail by the learned trial court, which has not been found to be proved and rejected. It is further argued that argument relating to plea of alibi with regard to aforesaid five accused-appellants, namely, Shyam @ Brijesh; Vishambhar, Guddu @ Devendra, Naresh and Ram Narain has been dealt with in Argument No. 18 in detail by the learned trial court, which has not been found to be proved and rejected. It is argued that Shiv Ram(P.W.4), in his statement, has categorically stated that the roofs of houses of Man Singh and Chandan Singh are connected by a Kaccha wall. If deceased Kamal, after receiving fire arm injury, jumped over from the roof of house of Man Singh to the roof of house of Chandan Singh, it was quite natural and spontaneous reaction on his part and version of Dinesh(P.W.1) ought to have been believed. The distance between the two wall was hardly five foot and jumping of some one, having eminent danger to his life, is not unnatural. It is further argued that minor deviations by some of the prosecution witnesses in their initial statements about the manner in which the incident started cannot be a reason to discard entire prosecution case, especially when two persons died and 13 persons received injuries, five of whom sustained fractures. Case of the defence that the complainant party was the aggressor also cannot be believed because of enormous mismatch in the number of deceased and injured of the complainant party and number of injured of the accused-party. While apart from two deceased, each of 13 injured had received injuries ranging from 3 to 12 whereas on the accused side only three persons received injuries. Even if two of them had received pellet injuries, it cannot be said that their injuries have not been explained by the firearm used. In the present case, two persons died in a mob of 30-35 people, who had attacked the complainant party at the house of Ayodhya Prasad and dragged him to the house of Dauli Gujar and chased Kamal, Dinesh and after murdering Kamal, they brought his dead body on bamboos in a procession to the house of Dauli Gujar, therefore, case of the defence that complainant party was aggressor is highly doubtful and it does not inspire any confidence. 19. 19. Learned counsels argued that trial in the present case was enormously delayed because of fling of number of revision petitions one after another and record of the case being summoned by this Court. Even though the incident was of 1991, but recording of statements of witnesses in the trial court had remained stayed for quite some time. Statements of most of the prosecution witnesses were recorded in the months from March, 2003 to July, 2003, thus with delay of 12 years after the date of incident. In this situation, if there are minor contradictions here and there, they cannot be taken to be vital to the prosecution case. Even then, the prosecution witnesses have remained firm and stood the scrutiny of cross examination in proving the guilt of the accused. It is denied that no explanation has been given for the place and the manner in which most of the prosecution witnesses have received injuries. Learned counsels referred to statements of injured namely Daya Ram(P.W.3); Nemo(P.W.5); Amar Singh(P.W.6); Nattho(P.W.7) and Smt. Battan(P.W.8) to show that most of them were given beatings by the members of the accused party because they objected to the manner in which an elderly person of the village, who was erstwhile Sarpanch, Ayodhya Prasad was dragged and beaten by them. They went for his help, which was not liked by the accused party and they gave beatings to each one of them. They were beaten by the mob of the accused in their own houses or in front of their houses. Nature of injuries sustained by Ayodhya Prasad were not of such nature that he would have bleeded profusely and therefore, it was quite possible that blood trail was not found, but it cannot be a reason for not believing the version of the prosecution. Besides, dead body of Kamal was brought in a procession of 30-35 people after it was tide by the bamboos and if such large number of people would follow the procession in a Kachha way, it is quite possible for the blood trail to disappear. It is argued that testimony of witness namely Dinesh(P.W.1); Dhabbo(P.W.2); Daya Ram(P.W.3); Nemo(P.W.5); Amar Singh(P.W.6); Nattho(P.W.7); Smt. Battan(P.W.8) amply prove the guilt of the accused-appellants, even if fre arms and used and live cartridges were not sent to Forensic Science Laboratory for examination. It is argued that testimony of witness namely Dinesh(P.W.1); Dhabbo(P.W.2); Daya Ram(P.W.3); Nemo(P.W.5); Amar Singh(P.W.6); Nattho(P.W.7); Smt. Battan(P.W.8) amply prove the guilt of the accused-appellants, even if fre arms and used and live cartridges were not sent to Forensic Science Laboratory for examination. In fact, the trial court in its judgment has dealt with this aspect in Argument No. 12 and observed that the report of ballistic expert was received and available on the case diary, but due to mistake of the prosecution, this was not formally exhibited and, therefore, could not be looked into. Therefore, non-production of ballistic report cannot be said to be fatal to the prosecution case as the charges against the accused-appellants were proved. Learned Public Prosecutor, in support of his arguments relied upon the judgments of the Supreme Court in Ram Bali Vs. State of U.P., (2004) 10 SCC 598 ; Dayal Singh & Ors. Vs. State of Uttaranchal, AIR 2012 SC 3046 and Krishnappa & Others Vs. State of Karnataka, (2012) 11 SCC 237. Reliance has also been placed upon the decision of this Court in Shakoor Vs. State, 2012 (3 WLC(Raj.) 161 and Jhabarmal & Ors. Vs. State of Rajasthan, 2015 (3) WLC(Raj.) 9. 20. Mr. M.K. Kaushik, learned counsel for the complainant, in support of revision petition fled by the complainant questioning the correctness of acquittal of 18 accused, argued that their acquittal has illegally been recorded by the learned trial court. There was ample evidence on record, which proved their guilt beyond any shadow of doubt. The trial court has failed to appreciate the fact that in the present incident, two persons died and 13 persons received injuries ranging from 3 to 12, out of which 5 were fractures. The trial court has not properly read the version of the eye witnesses, who had also named these 18 acquitted accused persons. When ample evidence was available on record there against, there was no justification with t he trial court for their acquittal. Even otherwise, they being members of unlawful assembly, their participation in the incident from the beginning to end make them equally responsible in the same manner, in which the accused, who attacked and played an active role in the incident. The trial court failed to appreciate that incident has taken place in two parts of Village Ganwadi. Even otherwise, they being members of unlawful assembly, their participation in the incident from the beginning to end make them equally responsible in the same manner, in which the accused, who attacked and played an active role in the incident. The trial court failed to appreciate that incident has taken place in two parts of Village Ganwadi. In the first part of the village, Ayodhya Prasad was brutally beaten and in second part of the village which took place in Nagla of Nandram where Kamal was killed. All accused persons including 18 accused, who were acquitted, were in the company of remaining 12 accused, who were convicted by the trial court. Since they all were members of unlawful assembly, there was no justification for dividing them in two classes. The trial court in this regard was not wholly justified in discarding testimony of 13 eye witnesses, whose presence at the place of occurrence could not be doubted. Most of them received injuries ranging from 3 to 12. The trial court has wrongly read and appreciated the statements of Daya Ram(P.W.3) and Nattho(P.W.7) for acquitting 18 accused persons. The trial court was also not justified in believing the plea of alibi for acquitting Radho @ Radha Kishan and Dauli Patwari. It is further argued that the trial court has wrongly acquitted injured accused Mangal Singh, Lakhan Singh and Roop Kishore, whose participation in the crime was proved by the sheer fact that they received injuries and this also makes them members of unlawful assembly. Learned counsel for the complainant argued that the defence put a specific question to Shyma Lal(P.W.26), investigating officer and he has categorically replied that statements under Section 161 Cr.P.C. were recorded by him after the FIR was registered and that fact has been clarified by the investigating officer in response to the specific query by the defence and even if all the statements were recorded on 04.03.1991, without any indication of time, such statements cannot be said to be recorded prior to lodgement of FIR. Learned counsel for the complainant, in support of his arguments, cited judgment of the Supreme Court in Bastiram Vs. State of Rajasthan, 2014 CRI.L.J. 1761 and argued that opinion given by doctor examining victim of crime could be rejected by relying on cogent and trustworthy eye-witness testimony. 21. Learned counsel for the complainant, in support of his arguments, cited judgment of the Supreme Court in Bastiram Vs. State of Rajasthan, 2014 CRI.L.J. 1761 and argued that opinion given by doctor examining victim of crime could be rejected by relying on cogent and trustworthy eye-witness testimony. 21. We have given our thoughtful and anxious considerations to the rival submissions, scanned the material on record and studied the cited decisions. 22. At the outset, we must take note of submission made by learned Senior Counsels appearing on behalf of the accused-appellants and learned Public Prosecutor that during pendency of the appeal, appellants namely Narpati, Soni Ram and Sabo @ Sahab Singh have died. Appeal to the extent of those accused-appellants would obviously stand abated. 23. Perusal of the impugned judgment indicates that the trial court, after taking into consideration the evidence adduced by the prosecution as well as defence in the light of their arguments, formulated in Para 43 of the judgment 18 arguments namely:- (1) That the FIR was lodged with delay of nine hours. (2) That the names of all the injured prosecution witnesses have not been mentioned in the Parcha Bayan(Exhibit P-9). (3) That two kinds of changed stories have been put forward by the prosecution regarding beatings of deceased Ayodhya Prasad. (4) That where the deceased Kamal received gun shot injury fired by fire arm in Nagla Nandram, either on the roof of house of Man Singh or on the roof of house of Chandan Singh or on the roofs of both the houses. (5) That no independent witness has proved incident of Nagla Nandram. (6) That no independent witness has been produced for proving the incident of Village Ganwadi. (7)That no intention of the accused for murdering deceased Ayodhya Prasad and Kamal has been explained. (8)That most of the witnesses, in their statements recorded under Section 161 Cr.P.C., have not named all the accused and that their such statements were recorded with enormous delay. (9) That all the three site plans of Village Ganwadi along with seizure memos have not been prepared at the instance of any of the eye witnesses/injured witnesses. (10) That no blood trail has been found to show dragging of deceased Ayodhya Prasad from his house to the house of Dauli Gujar and no blood has been found in the house of Ayodhya Prasad. (10) That no blood trail has been found to show dragging of deceased Ayodhya Prasad from his house to the house of Dauli Gujar and no blood has been found in the house of Ayodhya Prasad. Even no family member of Ayodhya Prasad was produced as witness to prove the incident, which took place at his house. (11) That there is enormous difference between ocular and medical evidence with regard to fire arm injuries on the body of deceased Kamal. (12) That FSL and Ballistic Inspection Reports have not been produced. (13) That the investigation has already started before lodgement of FIR. (14) That no explanation has been given by the prosecution for the injuries on the person of three accused. (15) That no specific evidence has produced by the prosecution as to which accused caused which injury on the person of deceased Ayodhya Prasad. (16) That story of defence that the complainant party was aggressor, who started the incident at the house of Dauli Gujar, is more probable and near to truth. (17) That there was enmity between Ayodhya Prasad & Company and Amar Singh & Company prior to the incident. (18) That some of the accused have set up defence of plea of alibi that they were not present at the time of incident. 24. The trial court from Para 47 onwards of the impugned judgment has examined all the aforesaid arguments, therefore, we do not deem it appropriate to deal each and every arguments in detail again. However, the most significant argument is that the investigation, in the present case, started before lodgement of FIR and substantial progress was made in the investigation much prior to lodgement of FIR and, therefore, the FIR as well as such investigation were hit by Section 162 Cr.P.C. The trial court has dealt with this question as Argument No. 13 and observed that Shyam Lal, S.H.O.(P.W.26), in his statement has clarified that he has recorded statements of prosecution witnesses under Section 161 Cr.P.C. only after the FIR was registered. We have examined his statement and find that this question was specifically put to him by the defiance and the same has been explained by him stating that he indeed recorded statements under Section 161 Cr.P.C. after lodgement of FIR. We have examined his statement and find that this question was specifically put to him by the defiance and the same has been explained by him stating that he indeed recorded statements under Section 161 Cr.P.C. after lodgement of FIR. The trial court was of the view that Shyma Lal(P.W.26) and some other police officials reached at the place of occurrence some time after the incident and they found dead body of deceased at the house of Dauli Gujar as well as Ayodhya Prasad in critical condition and some others in injured condition, some of them being even unconscious. The police had taken immediate steps by removing the dead body of deceased Kamal and injured to the hospital. In the Parcha Bayan(Exhibit P-9), it has been mentioned that Dinesh (P.W.1) was made to put his left hand thumb impression because owing to drip in his right hand and injury on the wrist, he could not sign. This itself shows the genuineness of the efforts made by the police to take timely steps for the investigation and recording of statements of the prosecution witnesses. The entire case of the prosecution cannot be thrown for this reason and the reason of preparation of Inquest Report(Exhibit P-23) and some of the memos such as site plans etc. much prior to lodgement of FIR. 25. The Supreme Court in Dayal Singh & Others(Supra) observed that the Investigating Officer as well as the doctor, who are dealing with the investigation of a criminal case are required to act in accordance with the police manual and the known canons of medical practice respectively. They are both obliged to be diligent, truthful and fair in their approach and investigation. A default or breach of duty, intentionally or otherwise, can some times prove fatal to the case of the prosecution. An Investigating Officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Whether the default and omission is so flagrant that it s peaks volumes of a deliberate actor such irresponsible attitude of investigation, no court can afford to overlook it, whether it did or did not cause prejudice to the case of the prosecution. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can so return its finding. The Supreme Court in Ram Bihari Yadav and Others Vs. It is possible that despite such default/omission, the prosecution may still prove its case beyond reasonable doubt and the court can so return its finding. The Supreme Court in Ram Bihari Yadav and Others Vs. State of Bihar & Others, (1995) 6 SCC 31 has noticed that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency, but also in the administration of justice. In the case of Sathi Prasad Vs. The State of U.P., (1972) 3 SCC 613 , the Supreme Court held that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the Court to see if the evidence given in Court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, The Supreme Court in Dhanaj Singh alias Shera & Others Vs. State of Punjab, (2004) 3 SCC 654 held that in the case of a defective investigation, the Court has to be circumspect in evaluating the evidence. But, it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer, if the investigation is designedly defective. In Paras Yadav Vs. State of Bihar, AIR 1999 SC 644 , the Supreme Court enunciated the principle, in conformity with the previous judgments, that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. 26. In the case of Zahira Habibullah Sheikh and Another Vs. State of Gujarat & Others, (2006) 3 SCC 374 , the Supreme Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. State of Gujarat & Others, (2006) 3 SCC 374 , the Supreme Court noticed the importance of the role of witnesses in a criminal trial. The importance and primacy of the quality of trial process can be observed from the words of Bentham, who states that witnesses are the eyes and ears of justice. The Court issued a caution that in such situations, there is a greater responsibility of the Court on the one hand and on the other the courts must seriously deal with persons, who are involved in creating designed investigation. The Supreme Court held that efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance if not more, as the interest of the individual accused. The courts have a vital role to play. In Human Rights Commission Vs. State of Gujarat, (2009) 6 SCC 767 , it was held by their Lordships that the concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community it serves. 27. In the case of State of Karnataka Vs. K. Yarappa Reddy, AIR 2000 SC 185 , while dealing with the question of defective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case, the Supreme Court held that if the other evidence, on scrutiny, is found credible and acceptable, the court should not be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It can be a guiding principle that as investigation is not the solitary area for conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. The Court must have predominance and preeminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In Ram Bali(supra), the Supreme Court observed that in case of defective investigation, the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect and if done so, would tantamount to playing into the hands of the investigating officer, if the investigation is designedly defective. As regards discrepancies between ocular and medical evidence, it was held by the Supreme Court in the case of Kamaljit Singh Vs. State of Punjab, 2004 Cri.L.J. 28 that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eye witnesses, the testimony of the eye witnesses cannot be thrown out. The Supreme Court in Madan Gopal Kakad Vs. Naval Dubey & Anr., (1992) 3 SCC 204 held that where the eye witness account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. 28. In Ram Bali(supra) one of the arguments before the Supreme Court was that the gun was not sent for forensic test. The Supreme Court relying on its earlier judgment in Karnel Singh Vs. State of M.P., (1995) 5 SCC 518 held that in the case of a defective investigation, the Court has to be circumspect in evaluating the evidence, but it would not be right in acquitting an accused person solely on that account. The Supreme Court relying on its earlier judgment in Karnel Singh Vs. State of M.P., (1995) 5 SCC 518 held that in the case of a defective investigation, the Court has to be circumspect in evaluating the evidence, but it would not be right in acquitting an accused person solely on that account. The Supreme Court after relying on its various decisions further held that it would have been certainly better, if the fire-arms were sent to the forensic test laboratory for comparison, but the report of the ballistic expert would merely be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eye witnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the investigating officer cannot affect credibility of the prosecution version. The allegations against the accused in the case of Bastiram(supra) was that they armed with pistols, barchi etc. surrounded deceased and others and fired at them causing fire arm injuries to deceased resulting in their death. Cogent and consistent testimony of eye witnesses relating to presence of appellant-accused therein was available on record. Appellant's plea of alibi therein was not supported by any of defence witnesses and there was overwhelming evidence given by eye witnesses about use of firearms by accused persons. The Supreme Court found that the accused persons had common intention of causing death of deceased persons and injured since they were armed with pistols and had fired at their victims with the intention of killing them. Their conviction for offences under Sections 302 read with Section 34 IPC was upheld by the Supreme Court in the aforesaid case. The Supreme Court in the aforesaid case finally concluded that if there is any conflict in opinion given by doctor, the same could be rejected by relying on cogent and trustworthy eye witnesses testimony. In that case, the Supreme Court while dealing with conflict between ocular and medical evidence observed that opinion given by the doctor could be rejected by relying on cogent and trustworthy eye-witness testimony. 29. In that case, the Supreme Court while dealing with conflict between ocular and medical evidence observed that opinion given by the doctor could be rejected by relying on cogent and trustworthy eye-witness testimony. 29. In view of above judgments, even if the guns/fire arms could not be sent to ballistic expert/forensic science laboratory for opinion, that would not be fatal to the prosecution case because there is enormous evidence available on record supporting finding of conviction recorded by the trial court in the present case as already discussed above. Besides, report of Ballistic Expert was indeed received, but due to fault on the part of the prosecution agency, it could not be formally exhibited on record. That lacuna, therefore, should not work to the advantage to the accused and the prosecution case cannot fail on account of such lapse and, therefore, non-production of Ballistic Inspection Report also cannot be a reason to discard the prosecution case entirely because the allegations against the accused are otherwise supported by overwhelming evidence of the prosecution witnesses which find substantial corroboration from various other evidence. 30. Argument made by learned Senior Counsels appearing on behalf of the accused-appellants that blood trail was not found on the way from the house of Ayodhya Prasad to the house of Dauli Gujar and from the house of Man Singh to the house of Dauli Gujar also cannot be a reason to discard the prosecution case because the trial court has dealt with this issue by observing that Ayodhya Prasad was subjected to so severe beatings that he sustained 17 injuries out of which 4 were fractures and most of the injuries were contusions by blunt weapon. The trial court has rightly observed that if there was mob of 30-35 people, blood trail being not found either in the case of dragging of Ayodhya Prasad from his house to the house of Dauli Gujar or in the case of bringing of dead body of Kamal from the house of Man Singh to the house of Dauli Gujar, was not unnatural because in both the routes, there was mob of 30-35 people and soon thereafter, large number of police personnel and battalion of RAC had arrived there on the Kachha way. In such a scenario, presence of blood trail on the Kachha way would be quite difficult. 31. In such a scenario, presence of blood trail on the Kachha way would be quite difficult. 31. As regards injuries of three accused namely Mangal Singh, Lakhan Singh and Roop Kishore, who have been acquitted by the trial court, each of the three accused sustained one injury. While Mangal Singh and Roop Kishore sustained one fire arm pellet injury each, accused Lakhan Singh sustained a lacerated wound of any insignificant nature. In a fight of this magnitude, where the accused party had caused injuries to 13 persons and two persons died, if one pellet injury each was sustained by two of the accused and one lacerated wound was sustained by one accused, this would itself bear an explanation because in such a crowd, it was quite natural for them to receive such type of minor injuries. 32. Adverting now to the argument of plea of alibi set up by the accused-appellants Ram Narain, Shyam Singh @ Brijesh, Vishambhar, Guddu @ Devendra and Naresh, the trial court has rightly decided their plea of alibi and has given detailed reasons in support of its findings. The trial court in Argument No. 18 has observed that the prosecution witnesses at the time of recording of their statements were neither cross-examined nor put any suggestion by the defence in this regard and, therefore, their plea of alibi prima facie is liable to be rejected. However, we will again deal with Argument No. 18 relating to plea of alibi set up by the aforesaid accused with reference to the evidence produced on record. But before that, we first observe that the findings of the trial court on that aspect cannot be faulted with only because the investigating officers namely Shyam Lal(P.W.26) and Bharat Singh(P.W.27) have supported conclusion of their investigation stating that they found plea of alibi set up by the accused substantiated in their investigation, but the trial court on the basis of evidence adduced by large number of prosecution witnesses took cognizance against these accused under Section 319 Cr.P.C. and made them to join the trial. Contention of defence that the prosecution is bound by the evidence of its witnesses, therefore, conviction of the accused cannot be justified, is noted to be rejected. Contention of defence that the prosecution is bound by the evidence of its witnesses, therefore, conviction of the accused cannot be justified, is noted to be rejected. If that was the case, the very purpose of Section 319 Cr.P.C., which empowers the Court to join even those as accused against whom the police has not fled charge sheet, would be rendered meaningless. This has to be decided on the basis of evidence of the eye witnesses whether the charges against those accused proved or not and they cannot be acquitted only because the investigating officer supports results of his investigation. 33. We shall now first of all deal with the plea of alibi set up by accused Ram Narain. Dr. R.P. Meena(D.W.13), Medical Officer, In Charge of Primary Health Centre, Khirni, District Sawai Madhopur has stated that he issued prescription of medicines to Ram Narain, who came to him at 7.00P.M. at 03.03.1991 and admitted him in the hospital. He had made an entry of hospitalisation of Ram Narain in O.P.D. Register(Exhibit D-26) on 03.03.1991 at Serial No. 1056. The trial court did not find any reason to accept plea of alibi set up by accused Ram Narain because in O.P.D. Register(Exhibit D-26), name of Ram Narain was mentioned at Serial No. 1056, which was the last entry on that day. This entry was made not only in different hand writing, but also in diferent ink. The trial court did not believe Dr. R.P. Meena, In Charge of Primary Health Centre, Khirni, District Sawai Madhopur that O.P.D. Register(Exhibit D-26) contained the entry of the name of Ram Narain because Indoor Register was not produced. The reason of ailment that the accused Ram Narain had stomach ache was not accepted by the trial court as valid reason for hospitalisation of the accused. Accused Ram Narain had produced Mohan Lal Goyal, a Chemist at Khirni as D.W.-2, who in his cross-examination has crumbled and shown ignorance whether Ram Narain was admitted in hospital or not. He also stated that he did not know, who had taken medicines from his shop because Ram Narain was not known to him. Prayag Raj Sharma(D.W.3), cousin of Ram Narain has stated that Ram Narain had come to see him at Mathura and he went with him to Bonli in District Sawai Madhopur for his treatment. He also stated that he did not know, who had taken medicines from his shop because Ram Narain was not known to him. Prayag Raj Sharma(D.W.3), cousin of Ram Narain has stated that Ram Narain had come to see him at Mathura and he went with him to Bonli in District Sawai Madhopur for his treatment. This plea has been held to be unbelievable by the learned trial court and in our opinion, rightly, because someone to travel a great distance from Mathura to Bonli for treatment of an unspecified ailment is hard to believe and it does not inspire confidence at all. This witness further stated that when they were returning back to Mathura, Ram Narain had acute stomach ache and, therefore, they alighted from the bus at Khirni and went to Primary Health Centre, Khirni for his treatment. Surprisingly, Ram Narain claims to have taken admission in the hospital in evening at 7.00 P.M. on 03.03.1991 and got discharged at 9.30 A.M. on the following day, i.e., 04.03.1991, as if this stomach ache would come to his rescue only for justifying plea of alibi in this case. 34. Similarly, Kishan Singh Jat(D.W.5) has been produced to prove absence of accused Shyam Singh @ Brijesh. This witness has rightly not been believed by the learned trial court because he has merely stated that Shyam Singh was introduced to him in March, 1991 when he came to him for taking guidance of B.Ed. examination. He was preparing for B.Ed. examination at Shikohabad. At the askance of his father, he came to him on 12.02.1991 and stayed with him till 03.03.1991. This version was later improved by this witness by stating that he stayed with him till 10.03.1991 for the purpose of guidance and did not deserted during this period. This witness further stated that in between, Shyam Singh fell sick and he got him treated. In the first place, this witness appears to be tuited one because in cross-examination he admitted that their college had students from Class 6 to Class 12 and that there was no B.Ed. class in the college and that he did not take B.Ed. guiding classes. Distance of his village and college was 7 Kms. only. Moreover, this witness in cross-examination stated that he could not know as to in which year and in which college, accused Shyam Singh took admission in B.Ed. course. class in the college and that he did not take B.Ed. guiding classes. Distance of his village and college was 7 Kms. only. Moreover, this witness in cross-examination stated that he could not know as to in which year and in which college, accused Shyam Singh took admission in B.Ed. course. Therefore, the trial court was perfectly justified in not believing this witness. 35. Dr. Mahendra Pal Sharma(D.W.7) has stated that he was Senior Lecturer in B.Ed. College of Gunj Gudawara of District Eta. He was also Warden of hostel in 1991. Even though statement of Dr. Mahendra Pal Sharma(D.W.7) was recorded on 23.07.2003, this witness has stated that on 04.03.1991 at 8.00 P.M., Vishambhar was available in hostel at the time of checking. The police had enquired from him and he told the police. This witness stated that record of the hostel was not permanently maintained and he had issued certificate dated 3 1.03.1991 produced by the investigating officer. In cross-examination, he stated that merely 100 students are admitted every year, but that number would fuctuate some time. Apart from that students of special course were also admitted. He further stated that in the relevant academic session there must be around 500 such students. Capacity of hostel was 120 students. He knew most of the students by face, who stayed in the hostel. Vishambhar and Roop Kishore Yadav were students of the hostel at that time. Allotment Register and Attendance Register of students were being maintained, but he did not bring them in the Court. He has retired from service 11 years ago. Even this witness could not substantiate what he sought to prove that Vishambhar was present in the hostel and there was no possibility of his being available at the place of incident. 36. Roop Kishore Yadav(D.W.10) has also been produced to prove plea of alibi set up by accused Vishambhar. This witness has stated that he was student of B.Ed. in College at Gunj Gudawara in March, 1991. He was staying in Room No. 54 of the hostel. Vishambhar was also inmate of that very hostel and staying in Room No. 58. They used to go to Mathura on holidays. In the cross examination, this witness stated that during Holi and Diwali holidays, they used to go to their native. Even during holidays like Sunday, they used to go to their native. Vishambhar was also inmate of that very hostel and staying in Room No. 58. They used to go to Mathura on holidays. In the cross examination, this witness stated that during Holi and Diwali holidays, they used to go to their native. Even during holidays like Sunday, they used to go to their native. Some times even Vishambhar would alone go to his native. He stated that during Diwali in the year 1990 and Holi in the year 1991, he went to his native. He believes that even Vishambhar might have gone to his native on these both festivals. 37. Dr. Ramesh Kumar Bhargava(D.W.8) has been produced as a witness to prove absence of Guddu @ Devendra from the scene of occurrence. He has stated that Devendra had submitted his thesis of M.Sc. during fourth semester on 26-27 February, 1991. Thesis is sent to the external examiner who within one month thereafter comes to hold viva voca and the student is required to stay in the college during the period of one month, as the external examiner could fx the date of viva voce any day. Although with permission, the student could leave the college. This witness further stated that Devendra stayed at Udaipur for the period from the end of month of February, 1991 till end of the month of March, 1991. Devendra was subjected to viva voce and thereafter, he was recommended for degree. According to him, 3-4th of April, 1991 was fixed by the external examiner. When this witness was asked as to the total number of students in M.Sc., he stated that there was six students in M.Sc. out of which four students were with him and two students were with another professor. When he was asked to name remaining three students who were with him at the relevant time, he failed to name anyone of them, yet he remembered name of Devendra Singh. When a suggestion was given to him that Devendra could go and present in Village Ganwadi on 04.03.1991, he simply stated that he could not accept this because any student leaving college without permission was liable to punishment. Even this statement does not conclusively prove presence of Devendra at Udaipur and is not sufcient to discard testimony of so many eye witnesses, who were consistent in mentioning about his presence at the place of occurrence. 38. Even this statement does not conclusively prove presence of Devendra at Udaipur and is not sufcient to discard testimony of so many eye witnesses, who were consistent in mentioning about his presence at the place of occurrence. 38. Vimal Kumar Jain(D.W.9) was also produced to prove presence of accused Guddu @ Devendra at Udaipur. He has stated that he was also student of M.Sc. in the college at Udaipur, which was afliated to Rajasthan Agricultural University. He was staying in Room No. 54 of P.G. Hostel. Devendra was also a student of M.Sc. He was also an inmate of that hostel. He has further stated that student has to vacate his hostel room after submission of thesis, yet he has to stay at the headquarter till viva voce takes place. Devendra had submitted his thesis at the end of February, 1991 and vacated his hostel room. Thereafter, he stayed in his room and he did not leave the hostel in between. In cross examination, this witness stated that he did not have any record to prove that on which dates, Devendra stayed at Udaipur after submission of his thesis. This version also cannot be believed because if Devendra had submitted thesis at the end of February, 1991, he was under obligation to stay at headquarter till the viva voce was fixed, which naturally took place on 3rd or 4th April, 1991 as per Dr. Ramesh Kumar Bhargava(D.W.8). That means that for more than a month, Devendra or any other student in his status was under obligation to stay at the headquarter, which cannot be accepted. If this was the rule, why student would be compelled to vacate the hostel room and if the student has vacated hostel room, who prevent him to go back to his native to his parents and family till the viva voce is actually fixed. Testimony of this witness is also rather a weak evidence for believing the plea of alibi set up by accused Guddu @ Devendra. 39. As regards plea of alibi set up by accused Naresh, copy of the application which he allegedly submitted before the Superintendent of Police, Bharatpur has not been produced. Admittedly, Girraj Singh(D.W.15), who claims to have accompanied Naresh to the Office of Superintendent of Police, Bharatpur, also became Sarpanch by defeating the deceased Ayodhya Prasad, therefore, his rivalry with the deceased was well known. Admittedly, Girraj Singh(D.W.15), who claims to have accompanied Naresh to the Office of Superintendent of Police, Bharatpur, also became Sarpanch by defeating the deceased Ayodhya Prasad, therefore, his rivalry with the deceased was well known. Besides, Girraj Singh(D.W.15), Naresh Chand Thakur, Up-Sarpanch of the village also allegedly accompanied them, but this witness has not been produced. No other evidence has been produced to substantiate absence of the accused Naresh at the place of incident or his presence else where. 40. As regards plea of alibi set up by the aforesaid accused-appellants, we would only cite judgment of the Supreme Court delivered in the case of Jitender Kumar Vs. State of Haryana, (2012) 6 SCC 204 wherein it has been held that burden of proving plea of alibi only lay upon the accused. If the appellant-accused fails to bring on record any such evidence which would, even by reasonable probability, establish their plea of alibi, such plea cannot be accepted. Plea of alibi, in fact, is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the place of occurrence and in the house which was the home of their relatives. A critical examination of the evidence produced by the defence for setting up plea of alibi in favour of accused Shyam @ Brijesh; Vishambhar; Guddu @ Devendra; Naresh and Ram Narain would clearly show that they miserably failed to prove plea of alibi, which has rightly been rejected by the learned trial court. Contention of learned Senior Counsels for the appellants that first version of the incident, that Ayodhya Prasad came to rescue of Amar Singh given by most of the prosecution witnesses, has been changed by them in their supplementary statements given to the police and thereafter, in cross statements also, cannot be accepted because even though, these witnesses have been confronted with their first version given to the police, yet the trial court has given cogent and valid reasons for convicting the accused-appellants. In our view, rightly, because such a minor deviation could not be a reason to throw away the entire prosecution case where the accused party acted in a most brutal and ghastly manner by not only murdering Kamal Singh, but also the manner in which they carried his dead body from the house of Amar Singh to that of Dauli Gujar and also dragged Ayodhya Prasad, an elderly person, who was former Sarpanch of the village, after beating him mercilessly. We, therefore, find that Dhaboo(P.W.2), Daya Ram(P.W.3), Nemo(P.W.5), Amar Singh(P.W.6) and Fattey(P.W.9) did not give any such categorical version in their police statement recorded on 04.03.1991 that Ayodhya Prasad came to rescue of Amar Singh. Although, they did state that Amar Singh was also subjected to beatings by some of the accused, but only Smt. Battan(P.W.8), Dilip(P.W.11) and Hari Singh (P.W.12) in their police statements (Exhibit D-15, D-18 and D-20 respectively) have stated about Ayodhya Prasad coming to rescue of Amar Singh, but that incident appears to have taken place earlier than the incident, in which Ayodhya Prasad was pulled out from his house, then severally beaten and dragged from his house to the house of Dauli Gujar and thereafter, deceased Kamal was chased to the house of Man Singh and Chandan Singh and after murdering him brought his dead body to the house of Dauli Gujar in procession. 41. Now, we would examine next argument of the appellants that as to in what manner injured received various injuries. Dhabbo(P.W.2), after naming all the accused, has stated that when he saw these persons beating and dragging Ayodhya Prasad from his house, he tried to intervene. Dauli Gujar inflicted lathi blow on his head. Mukut inflicted lathi blow on his shoulder. Vijay Thakur delivered lathi blow on his another shoulder. Maharaj Singh inflicted lathi blow on his hand. Bhoop also inflicted lathi blow on his hand. Daya Ram(P.W.3) has also similarly stated that when he saw that these accused were dragging and beating Ayodhya Prasad, he and his uncle tried to intervene, but these accused subjected Daya Ram to beating. 42. When his father tried to intervene, he was also subjected to beatings. This witness also received a lathi blow on his shoulder at the hands of Bhoop. He stated that Amar Singh and Fattey also received injuries at the hands of these persons. 42. When his father tried to intervene, he was also subjected to beatings. This witness also received a lathi blow on his shoulder at the hands of Bhoop. He stated that Amar Singh and Fattey also received injuries at the hands of these persons. Similar statement has been made by Nemo(P.W.5), Amar Singh(P.W.6), Nattho(P.W.7), Smt. Battan(P.W.8), Fattey(P.W.9), Pooran(P.W.10) and Dilip(P.W.11). All these witnesses have stated that they were at their home. When they saw that Ayodhya Prasad was being beaten, they tried to intervene and save him, but in that process they themselves received severe beatings at the hands of the accused. 43. Dr. Bhopal Singh(P.W.20), Medical Jurist, General Hospital, Bharatpur has proved injuries of the injured. Dr. Satish Chandra Vyas(P.W.19), Radiologist, General Hospital, Bharatpur has proved their fractures. According to their testimony, Daya Ram(P.W.3) sustained one simple injury. Smt. Darbi sustained four injuries, out of which Injury No. 1 was fracture of left shoulder (Exhibit P-7). Shiv Ram(P.W.4) sustained four injuries. Fattey Singh(P.W.9) sustained three injuries, out of which, one was grievous being fracture of left clavicle bone. Pooran Singh (P.W.10) sustained three injuries, out of which there were fractures of both the bones of his left leg(Exhibit P-1). Ram Dayal sustained three injuries. Dhabbo(P.W.2) sustained seven injuries, out of which there was three fractures, which include fracture of fourth metacarpal bone of right hand, fracture of little finger of the right hand and fracture of right shoulder(Exhibit P-5). Smt. Dilip Kumari(P.W.11) sustained four injuries. Deceased Ayodhya Prasad sustained as many as 17 injuries. Apart from 17 injuries, Ayodhay Prasad was found to suffer fracture o f lower end of fibula bone of left leg and fracture of patella bone of right knee joint(Exhibit P-2), which all were opined to be ante mortem in nature. Dinesh(P.W.1) sustained 12 injuries, out of which there was fracture of mid shaft of right ulna bone and fracture of second metacarpal bone of right hand(Exhibit P-2). Hari Singh (P.W.12) sustained two injuries. Smt. Battan(P.W.8) sustained one injury. Nemo(P.W.5) sustained five injuries. A mar Singh(P.W.6) sustained six injuries, out of which one was fracture of middle finger of left hand(Exhibit P-3). All this shows the brutal manner, in which not only deceased Kamal and Ayodhya Prasad were killed, but several other persons were beaten and received injuries. 44. Smt. Battan(P.W.8) sustained one injury. Nemo(P.W.5) sustained five injuries. A mar Singh(P.W.6) sustained six injuries, out of which one was fracture of middle finger of left hand(Exhibit P-3). All this shows the brutal manner, in which not only deceased Kamal and Ayodhya Prasad were killed, but several other persons were beaten and received injuries. 44. Now coming to the acquittal of 18 accused persons by the trial court, we have to examine whether the trial court has given weighty and sufficient reasons for convicting 12 accused persons and at the same time acquitting 18 accused persons. Upon careful examination of evidence on record, we find that the trial court for its such conclusion has given cogent and valid reasons. It has noted that 18 accused namely Prem Gujar, Narpat Gujar, Bhoop Singh Gujar, Soni Ram Brahman, Ajay Brahman, Vijay Brahman, Vijay Thakur, Sabo Gujar, Radhey Shyam Brahman, Bhajanlal Brahman, Keshav Brahman, Ram Narain Brahman, Naresh Thakur, Shyam Singh @ Brijesh Thakur, Guddu @ Devendra Thakur, Vishambhar Gujar, Dauli Patwari and Radho @ Radha Kishan Brahman were named in Parcha Bayan(Exhibit P9), out of which police did not fle challan against the lastly seven accused namely Ram Narain Brahman, Naresh Thakur, Shyam Singh @ Brijesh Thakur, Guddu @ Devendra Thakur, Vishambhar Gujar, Dauli Patwari and Radho @ Radha Kishan Brahman. But, after recording statements of nine witnesses, the trial court took cognizance against the aforesaid seven accused namely Ram Narain, Naresh, Shyam Singh @ Brijesh, Guddu @ Devendra, Vishambhar, Dauli Patwari and Radho @ Radha Kishan under Section 319 Cr.P.C. Apart from this, 12 accused persons namely Mangal, Daulat Gujar, Roop Kishore, Kamal Singh, Maharaj Singh, Dharam Singh Patwari, Ballo Gujar, Bhagwan Singh, Vijendra Singh, Lachman, Chagan Lal and Lakhan Singh were not named in the Parcha Bayan(P-9). Most of these names were included in the police statement of Nattho(P.W.7) recorded under Section 161 Cr.P.C.(Exhibit D-8) on 15.03.1991 and police statement of Pooran (P.W.10) recorded under Section 161 Cr.P.C.(Exhibit D-17) on 22.03.1991. Other prosecution witnesses namely Dinesh(P.W.1), Dhabbo(P.W.2), Daya Ram(P.W.3) and Shiv Ram(P.W.4) etc. have not named most of these acquitted accused either in their initial police statements given to Shyam Lal(P.W.26) on 04.03.1991 or supplementary statements given to Bharat Singh(P.W.27) on 15.03.1991 and thereafter. Other prosecution witnesses namely Dinesh(P.W.1), Dhabbo(P.W.2), Daya Ram(P.W.3) and Shiv Ram(P.W.4) etc. have not named most of these acquitted accused either in their initial police statements given to Shyam Lal(P.W.26) on 04.03.1991 or supplementary statements given to Bharat Singh(P.W.27) on 15.03.1991 and thereafter. The trial court has also noted that Daya Ram(P.W.3), in his earlier court's statement recorded on 18.10.2002, had stated that Dauli Pandit, Bhajan Lal, Roopi, Ajay, Vijay, Radhey Shyam, Radho, Keshav were neither having lathies with them, nor did they play any active role in the incident. But when he was subjected to cross examination on 29.03.2003, he stated that he did not remember what weapons accused Dauli Patwari, Bhajan Lal, Radhey Shyam, Ajay, Vijay, Radha Kishan, Keshav were having in their hands. But he again stated that when the other accused were dragging Ayodhya Prasad and beating him, these accused were merely standing. The trial court has also relied upon the statement of Nattho(P.W.7) by describing him as independent eye witness and observed that this witness has also similarly stated that Bhajan Lal, Radhey Shyam, Radha Kishan, Keshav, Dauli Patwari, Ajay, Vijay and Roop Kishore were present in the village and they had no weapons in their hands, rather they tried their level best to save Ayodhya Prasad and they remained stood as spectator near Pokhar, when the other accused brought dead body of Kamal. This witness, in examination in chief, did not name these accused. 45. Apart from this, learned trial court, in support of its conclusion, examined testimony of other witnesses as well by stating that none of them attributed any specific injury to any one of these accused. On this basis, the trial court concluded that the evidence does not prove beyond reasonable doubt that eight accused namely Roop Kishore, Ajay Brahman, Vijay Brahman, Radhey Shyam, Bhajan Lal, Keshav, Dauli Patwari and Radho @ Radha Kishan were in furtherance with the common object participated in the incident. Besides, name of Roop Kishore was not mentioned in the Parcha Bayan(Exhibit P-9). They were, thus, held entitled to benefit of doubt. Apart from that, the trial court maintained that names of Kamal Singh, Maharaj Singh, Dharam Singh Patwari, Ballo, Bhagwan Singh, Vijendra Singh, Lachhan, Chagan Lal and Lakhan Singh were not mentioned in the Parcha Bayan(Exhibit P-9). Besides, name of Roop Kishore was not mentioned in the Parcha Bayan(Exhibit P-9). They were, thus, held entitled to benefit of doubt. Apart from that, the trial court maintained that names of Kamal Singh, Maharaj Singh, Dharam Singh Patwari, Ballo, Bhagwan Singh, Vijendra Singh, Lachhan, Chagan Lal and Lakhan Singh were not mentioned in the Parcha Bayan(Exhibit P-9). Dinesh(P.W.1) in his Parcha Bayan(Exhibit P-9) stated that he did not know the names of remaining 20-25 persons of the village. If that be so, it was not possible for him to give their names to Shiv Ram(P.W.4), when he reached at Nagla Nandram. Shiv Ram(P.W.4) in turn stated that Dinesh(P.W.1) had told him all these names. Therefore, the learned trial court concluded that Shiv Ram could not narrate names of 32 accused at one go. trial court, thus, found that names of these accused had appeared on record for the first time after 11-18 days of the investigation. They were not named either in the police statements of most of the witnesses recorded initially or in the supplementary police statements recorded later on. Name of accused Kamal Singh was not mentioned by most of the prosecution witnesses even in their Court's statements. Besides, no overt act of causing injury to any of the injured witnesses has been attributed to accused Kamal Singh, Vijendra Singh, Lachhan, Chagan Lal, Lakhan Singh. Apart from that, statement of Nattho (P.W.7), that Lachhan and Chagan Lal had instructed other accused that they should murder members of the complainant party and they would bear expenses of their defence, has not been believed by the trial court which observed that no such statement has been made by him in his police statement and no other witness has supported this deposition. 45. Besides, name of Mangal Gujar was also not mentioned in the Parcha Bayan(Exhibit P-9), though Daya Ram (P.W.3), Shiv Ram(P.W.4) and Fattey(P.W.9) mentioned his name in their police statements(Exhibits D-5, D-6 and D-11 respectively). Fattey(P.W.9) did not mention his name during court's statement. Similarly, Nattho(P.W.7), Smt. Battan(P.W.8) and Hari Singh (P.W.12) also did not mention the name of Mangal Gujar in their court's statement. Besides, name of accused Mangal Gujar was mentioned by Pooran(P.W.10) in his police statement(Exhibit D17), which was recorded belatedly on 22.03.1991. No overt act has been attributed to accused Mangal Gujar by any of the prosecution witnesses. Similarly, Nattho(P.W.7), Smt. Battan(P.W.8) and Hari Singh (P.W.12) also did not mention the name of Mangal Gujar in their court's statement. Besides, name of accused Mangal Gujar was mentioned by Pooran(P.W.10) in his police statement(Exhibit D17), which was recorded belatedly on 22.03.1991. No overt act has been attributed to accused Mangal Gujar by any of the prosecution witnesses. Shiv Ram(P.W.4) has stated that he could not see Mangal in the crowd in Nagla Nandram. The trial court, therefore, also held accused Mangal entitled to benefit of doubt. The trial court then has noted statements of Dinesh(P.W.1), Dhabbo(P.W.2), Nemo(P.W.5), Amar Singh(P.W.6), Smt. Battan (P.W.8) and Fattey(P.W.9), Smt. Dilip(P.W.11) and Hari Singh (P.W.12) and observed that apart from other accused, they have attributed their injuries to Maharaj Singh, Dharam Singh, Ballo and Bhagwan Singh as well. But, as per the analysis made earlier, the trial court held them entitled to benefit of doubt. Similarly, trial court has given ample reasons that why it has decided to hold accused Daulat Gujar guilty, despite his name not being mentioned in Parcha Bayan(Exhibit P-9) because it noted that almost all the prosecution witnesses in their statements recorded earlier on 04.03.1991 had consistently mentioned his name stating that Ayodhya Prasad was given beatings and was taken to his house and deceased Kamal was also brought to his house. All the prosecution witnesses have universally attributed active role to Daulat Gujar. In fact, after the principal role of accused Ram Narain and Prem, accused Daulat Gujar was the next main accused in the crime. 46. In view of above discussion, we do not find any infirmity in the in the judgment of conviction of the accused-appellants passed by the trial court, whose guilt has been found proved beyond reasonable doubt and they, in our opinion, have rightly been convicted for the offences of which they were charged and awarded sentence. At the same time, we do not find any good reason to interfere with the findings of acquittal recorded by the trial court in favour of 18 accused persons. 47. Consequently, Appeal No. 1464/2003 qua appellants namely (1) Narpati S/o. Shri Ratan Singh; (2) Soni Ram S/o. Shri Mohan Lal and (3) Sabo @ Sahab Singh S/o. Shri Shibbi stands abated. 47. Consequently, Appeal No. 1464/2003 qua appellants namely (1) Narpati S/o. Shri Ratan Singh; (2) Soni Ram S/o. Shri Mohan Lal and (3) Sabo @ Sahab Singh S/o. Shri Shibbi stands abated. Appeal qua remaining appellants namely (1) Prem S/o. Shri Ratan Singh; (2) Daulat S/o. Shri Ghoorey; (3) Bhoop Singh S/o. Shri Kishore; (4) Vijay Singh S/o. Shri Udai Singh; (5) Ram Narain S/o. Shri Ishwari Prasad; (6) Naresh S/o. Shri Udai Singh; (7) Shyam @ Brijesh S/o. Shri Udai Singh; (8) Guddu @ Devendra S/o. Shri Udai Singh and (9) Vishambhar S/o. Shri Sahab Singh @ Sabo stands dismissed. Appellants namely Daulat, Naresh, Shyam @ Brijesh, Guddu @ Devendra and Vishambhar are on bail as their sentence was suspended by this Court vide order dated 04.04.2005. They are directed to surrender immediately before the trial court, which will take them into custody and sent them to jail to serve out the remaining sentence of imprisonment. In case, the aforesaid accused-appellants does not surrender within one month from the date of receipt of copy of this judgment, the trial court shall take necessary steps to take them into custody and send them into jail to serve out the remaining sentence of imprisonment. 48. Revision Petition No. 1189/2003 also stands dismissed. Office is directed to place a copy of this judgment on record of revision petition.