ORDER 1. Three brothers, Chhuttan (P.W.4), Firoz (P.W.15) and Liyakat Ali (P.W.16) along with their dulhabhai (son-in-law of the family) Abdul Wahid had received injuries on 28.3.2003 at 6:00 PM in village Kotsua falling within the jurisdiction of police station Sultanpur, District Kota. As a result of injuries received, Abdul Wahid died on the spot. Occurrence was also witnessed by the fourth brother, Haider Ali (P.W.1). Four independent eye-witnesses namely, Reshma (P.W.5), Latoor (P.W.6), Ramratan (P.W.10) and Babulal (P.W. 11), have not supported the prosecution case and have turned hostile. 2. Haider Ali (P.W.1) immediately after the occurrence had telephonically informed the police station Sultanpur. The said call was received by Om Prakash Sharma (P.W. 9), who was then posted as ASI at police station Sultanpur. Haider Ali had disclosed to the police officials that three persons had received injuries and one had died in the occurrence at village Kotsua. 3. Three injured persons namely, Chhuttan (P.W.4), Firoz (P.W. 15) and Liyakat (P.W.16) and deceased Abdul Wahid were transported by their cousin Iqbal in Jeep to MBS Hospital, Kota. On 20.3.2003, Pardesi Ram (P.W.18) posted as ASI in Rural Police Control Room, Kota, received an information from MBS Hospital, Kota that one person had died due to receipt of injuries in village Kotsua, and three persons in injured condition had been admitted in the Hospital. On receipt of information, Pardesi Ram (P.W.18) reached the Emergency Ward and recorded statement of Firoz (P.W. 15), who was lying admitted at bed No.15 of the Ward. The statement (Exhibit-P/26), subsequently through Constable Prabhu Lal (P.W.13) was sent to Police Station Sultanpur, where on the basis of said statement (Exhibit-P/26), formal FIR (Exhibt-P/27) was registered. It is to be noted that statement (Exhibit-P/26) made by (Firoz P.W.15) was recorded by ASI Pardesi Ram (P.W.18) on 28.3.2003 at 10:10 PM, and formal case was registered on the same intervening night i.e. 29.3.2003 at 2:10 AM. 4. The statement (Exhibit-P/26) made by Firoz (P.W.15) when translated into English reads as under: "Today on Jumma, day, Friday, I and my brother Chhuttan were doing masonary work on the bank of river. At about 12:30 PM, after taking our bath, we had performed our Namaz and after taking our meals had resumed our work. At about 6:00 PM, after completing work when we were about to leave, Abdul Kareem s/o. Kallu, Mohd. At about 12:30 PM, after taking our bath, we had performed our Namaz and after taking our meals had resumed our work. At about 6:00 PM, after completing work when we were about to leave, Abdul Kareem s/o. Kallu, Mohd. Ali s/o. Abdul Kareem, Ramjani s/o. Kallu, Zakir s/o. Madar, Kalam s/o. Kallu, Mannan s/o. Subrati, Hannan s/o. Subrati, Gheesa Meena, Nazar s/o. Khwaja, all residents of Kotsua armed with Sword, Gandasi, Dhariya, Gupti and Wood came with common intention to kill us. On reaching, Nazar and Kalam with sword in their hands, caused me injuries. Kalam gave a sword blow on left side of my head. Nazar gave a sword blow on my left foot. Abdul Kareem gave an injury with wood on my left rib. An injury was caused to my brother Chhuttan with wood. He ran. Nazar chased him and gave him beating. Then my brother Liyakat and Dulhabhai Wahid came running to save us. The above said all persons caused them injuries on their head with sword, dhariya and gandasi. Labourers Kali Bai, Reshma and Latoor saw the occurrence. Our uncle's son Iqbal brought us in a Jeep to Hospital, where we are under treatment. We have been told that Wahid has died. He had sufferred many injuries on the head. Nobody bore grudge against me. If the assailants had any grudge with my brothers, same is not in my knowledge. Signed Firoj." 5. On the basis of above statement, the case was registered against ten persons. Investigating Agency after conclusion of the investigation, submitted the report under Section 173 Cr. P.C. and had sent ten accused appellants for trial. 6. Court of Additional Session Judge No.2 (Fast Track), Kota vide impugned judgment dated 14.11.2003 held appellants namely, Abdul Kalam, Abdul Mannan, Abdul Hannan, Nazar Mohammad and Mohammad Ali, guilty of offence under Section 302 IPC and remaining five accused namely, Ramjani, Abdul Kareem, Gheesya Zakir and Pappu were convicted for the offence of murder under Section 302 read with Section 149 IPC. The trial court convicted Abdul Kalam, substantively, for the offence under Section 326 IPC and convicted remaining nine accused with aid of Section 149 IPC. The accused appellants, Abdul Kareem, Abdul Kalam, Nazar Mohammad and Ramjani were, substantively, convicted for the offence under Section 324 IPC, whereas, remaining accused were convicted with the aid of Section 149 IPC. The trial court convicted Abdul Kalam, substantively, for the offence under Section 326 IPC and convicted remaining nine accused with aid of Section 149 IPC. The accused appellants, Abdul Kareem, Abdul Kalam, Nazar Mohammad and Ramjani were, substantively, convicted for the offence under Section 324 IPC, whereas, remaining accused were convicted with the aid of Section 149 IPC. All the accused were acquitted of the offence under Section 307, 307/149, 325, 325/149, 323, 323/149 IPC. The trial court having convicted the appellants for the above said offences, vide a separate order of even date had sentenced them as under:- Accused-Abdul Mannan, Abdul Hannan, and Mohammad Ali: U/s. 302 IPC - Life imprisonment and a fine of Rs. 3,000/- each, in default of payment of fine to further undergo three months' S.I. U/s. 326/149 IPC - Three years R.I. and a fine of Rs. 3,000/- each, in default of payment of fine to further undergo three months' S.I. U/s. 324/149 IPC - One year R.I. and a fine of Rs. 1,000/- each, in default of payment of fine to further undergo one month's S.I. Accused-Ramjani and Abdul Kareem: U/s. 302/149 - Life imprisonment and a fine of Rs. 3,000/- each, in default of payment of fine to further undergo three months' S.I. U/s. 326/149 IPC - Three years' R.I. and a fine of Rs. 3,000/- each, in default of payment of fine to further undergo three months' S.I. U/s. 324 IPC - One year's R.I. and a fine of Rs. 1000/- each, in default of payment of fine to further undergo one month's S.I. Accused-Nazar Mohammad: U/s. 302 IPC- Life imprisonment and a fine of Rs. 3,000/- in default of payment of fine to further undergo three months' S.I. U/s. 326/149 IPC-Three years' R.I. and a fine of Rs. 3,000/- in default of payment of fine to further undergo three months' S.I. U/s. 324 IPC-One year R.I. and a fine of Rs. 1000/- in default of payment of fine to further undergo one month's S.I. Accused- Abdul Kalam: U/s. 302 IPC-Life imprisonment and a fine of Rs. 3,000/- in default of payment of fine to further undergo three months' S.I. U/s. 326 IPC-Three years' R.I. and a fine of Rs. 3000/- in default of payment of fine to further undergo three months' S.I. U/s. 324 IPC-One year's R.I. and a fine of Rs. 3,000/- in default of payment of fine to further undergo three months' S.I. U/s. 326 IPC-Three years' R.I. and a fine of Rs. 3000/- in default of payment of fine to further undergo three months' S.I. U/s. 324 IPC-One year's R.I. and a fine of Rs. 1000/- in default of payment of fine to further undergo one month's S.I. All the sentences were ordered to run concurrent. Accused-Pappu, Gheesiya and Zakir: All the accused appellants were sentenced u/s. 302 read with Section 149 IPC to life imprisonment and a fine of Rs. 3000/- each, in default of payment of fine to further undergo three months' S.I. All the accused appellants were sentenced u/s. 326 read with Section 149 IPC to three years' R.I. and a fine of Rs. 3000/-each in default of payment of fine to further undergo three months' S.I. All the accused appellants were sentenced u/s. 324 read with Section 149 IPC to undergo one year's R.I. and a fine of Rs. 1000/- each, in default of payment of fine to further undergo one month's S.I. 7. Two separate appeals have been filed in this Court. Pappu s/o. Gopal Singh, Gheesiya @ Radheyshyam and Zakir Hussain have preferred Criminal Appeal No. 1675 of 2003, whereas remaining seven accused have preferred Criminal Appeal No. 15 of 2004. By this common judgment, we shall decide both the appeals, as they have been filed to assail conviction pronounced and sentence awarded by the trial court vide same impugned judgment dated 14.11.2003 rendered by Addl. Sessions Judge No.2 (Fast Track), Kota. 8. It is admitted case of the parties that sending of special report to the Ilaqa Magistrate has not been proved even though it was sent through a Constable. Thus, utmost it can be said that the prosecution has failed to prove reaching of the special report to the Area/Ilaqa Magistrate. In the present case, the inquest was also not accompanied by the statement made by the complainant leading to registration of case. For the first time, version unfolded in the FIR had reached Ilaqa Magistrate on 30.3.2003, when application was submitted for seeking remand of accused. 9. Mr. A.K. Gupta, the learned counsel for the appellants, has made the following five submission before us: Firstly, delay in reaching of the special report to Illaqa Magistrate, per se, is fatal to the prosecution case. 9. Mr. A.K. Gupta, the learned counsel for the appellants, has made the following five submission before us: Firstly, delay in reaching of the special report to Illaqa Magistrate, per se, is fatal to the prosecution case. Secondly, the delay in reaching of the special report proves that FIR was lodged at highly belated stage and the delay was used for consultations and deliberations to over implicate the accused and thus, even though injured witnesses have deposed in the court, they suffer from blemish of inflating number of accused. Thirdly, it is submitted before us that once we condemn the witnesses who have inflated number of accused in the facts and circumstances of the case, it is not possible for us to find out as to which accused is victim of over implication. Thus, we should throw the entire prosecution case out. Fourthly, it is contended that Section 149 IPC is not attracted in the facts and circumstances of the case, and lastly, since deceased Abdul Wahid had intervened to save other injured, offence on the part of the appellants will not fall under Section 302 IPC, but under Section 304 Part I, IPC. 10. To deal with above arguments, we will recapitulate testimony of four material witnesses namely, Haider Ali (P.W.1), Chhuttan (P.W. 4), Firoz (P.W.15) and Liyakat (P.W.16). We shall also notice testimony of Dr. Govind Prasad Gupta (P.W.17), who had performed autopsy on the dead body of deceased Abdul Wahid, and Dr. P.K. Tiwari (P.W.12), who had medico-legally, examined Chhuttan (P.W.4), Firoz (P.W.15) and Liyakat (P.W.16). We shall also notice statement of Om Prakash Sharma, ASI, (P.W.9), Constable Prabhu Lal (P.W.13), ASI Pardesi Ram (P.W.18) and Ramlal Verma, SHO, police station Sultanpur (P.W.8), who had participated in registration of the case and investigation. 11. First we shall notice medical evidence. Dr. Govind Prasad Gupta (P.W. 17), on 29.3.2003 at 12:00 PM had conducted autopsy on the dead body of Abdul Wahid aged about 45 years. He found nine injuries on the person of deceased. 12. Injury no.1 was an incised wound having dimension of 15 x 1/2 cm, bone deep, on the right parieto occipital region. Injury no.2 was an incised wound having dimension of 2 x 1/4 cm, present on the finger of left hand. Injury no.3 was incised wound having dimension of 7 x 1 cm, on right forearm. 12. Injury no.1 was an incised wound having dimension of 15 x 1/2 cm, bone deep, on the right parieto occipital region. Injury no.2 was an incised wound having dimension of 2 x 1/4 cm, present on the finger of left hand. Injury no.3 was incised wound having dimension of 7 x 1 cm, on right forearm. Injury no.4 was incised wound having dimension of 1 1/2 x 1/2 cm, on right forearm. Injury no.5 was abrasion having dimension of 3 x 1 cm, having difuse swelling on the right frontal area. Injury no.6 was multiple abrsasions on the right and left arm forearm and elbow. Injury no.7 was abrasion present on the back of chest near mid-line. Injury no.8 was a bruise on clevical area. Injury no.9 was a bruise on the back of chest lower part of mid-line. 13. On dissection of skull, the Medical Jurist had found presence of homotoma on the right parieto occipital region of skull. There was a fracture of right parieto occipital bone. Number of contusions were found on the brain. There was injury on the right parieto occipital lobe. As per doctor, who conducted autopsy, cause of death was injury caused to skull and brain. A glance on the injuries will reveal that injury no.1 had proved fatal. 14. Dr. P.K. Tiwari (P.W. 12) on 29.3.2003, at 10:20 had examined Firoz (P.W.15). He had found six injuries on his person. Injury No.1 was an incised wound on the left temporal region. Injury no.2 was also an incised wound present on the left parietal frontal region. Injury no.3 was an incised wound present on the left foot having dimension of 6x1 cm. Injury no.4 was an incised wound having dimension of 2x1 cm, present on right leg. Injury no.5 was complain of pain and tenderness on the left side chest. Injury no.6 was an incised wound having dimension of 6 x 0.5 cm, present on left side of chest. All injuries were declared simple. 15. On the same day, Chhuttan was examined at 10:30 by Dr. P.K. Tiwari (P.W.12). He had found four injuries on his person. Injury no.1 was a lacertated wound having dimension of 3 x 1 cm, present on the frontal region. Injury no.2, was an incised wound having of 3 x 0.8 cm, present on left hand. 15. On the same day, Chhuttan was examined at 10:30 by Dr. P.K. Tiwari (P.W.12). He had found four injuries on his person. Injury no.1 was a lacertated wound having dimension of 3 x 1 cm, present on the frontal region. Injury no.2, was an incised wound having of 3 x 0.8 cm, present on left hand. Injury no.3 was a reddish mark having dimension of 4 x 4 cm, present on left arm. Injury no.4 was a contusion present on little finger of left hand. Injury no.4 was declared grievous and other injuries were found simple. 16. Liyakat had suffered two injuries. Injury no.1 was an incised wound on right wrist and Injury no.2 was an incised wound on index finger and thumb of left hand. Injury no.2 was declared grievous. 17. Now we shall summarize the statement of eye witnesses. 18. Chhuttan (P.W.4), stated that on 23.3.2003, at about 6:00 PM, after finishing work, they were going towards their village, when they reached opposite to Bada of Dhanraj Meena, Kalam, Abdul Hannan, Abdul Mannan, Abdul Kareem, Mohammad Ali, Ramjani, Nazar Mohammad, Zakir, Pappu @ Radheyshyam, accused present in the court came armed with Sword and Gandasi. He further stated that he is not aware as to who was armed with which weapon. They caused injuries with Sword and Gandasi. He further stated that he cannot tell which accused caused which injury. He further stated that in order to save themselves, they ran. Accused caught hold of them and started giving them beating. Firoz suffered injury on the head and feet. Accused also gave him injuries with Sword on the head and another injury on nose. He stated that he cannot tell as to which accused had caused which injury. They raised noise which attracted Liyakat and Abdul Wahid to the spot, they intervened to separate them. Accused also gave them injuries. Abdul Wahid died due to receipt of injuries from Sword and Gandasi. Liyakat also suffered injuries on both the hands. This witness stated that he cannot specify as to which accused has caused injury to whom and at what portion of the body. This witnes stated that occurrence was also witnessed by Haider Ali. Accused ran away from the spot. Haider Ali went to village and made a telephonic call to police station. They remained at place of occurrence. This witness stated that he cannot specify as to which accused has caused injury to whom and at what portion of the body. This witnes stated that occurrence was also witnessed by Haider Ali. Accused ran away from the spot. Haider Ali went to village and made a telephonic call to police station. They remained at place of occurrence. Then Iqbal came with Jeep and brought them to Hospital. Abdul Wahid was also brought to the hospital. Police came there. His clothes along with clothes of Firoz and Liyakat were stained with blood and the same were taken into possession by the police. 19. In cross-examination, this witness stated that police came at Hospital, Kota on the next date. On the day they received injuries, no police man came to them. He remained admitted in the hospital for ten to eleven days. This witness further stated that “it is correct that Zakir and Radheyshyam were saying “give beating to them” but both have not caused any injury.” ^^;g lgh gS fd tkfdj o jk/ks’;ke us ;g dgk Fkk fd ekjks lkyks dks ysfdu mu nksuks ds }kjk eSusa fdlh dks ekjrs ugh ns[kkA** 20. It is to be noted that this witness has not assigned any specific injury to any accused, but has stated in categoric terms that Zakir and Radheyshyam were exhorting other accused, but they themselves have not caused any injury. 21. Firoz (P.W.15) stated that six to seven months ago when he along with his brother Chhuttan after finishing work, were going towards house, accused Abdul Kalam, Abdul Hannan, Abdul Mannan, Abdul Kareem, Mohammad Ali, Ramjani, Nazar Mohammad, Gheesiya Sarpanch and Zakir encircled them. Abdul Kalam, Nazar Mohammad, Mohammad Ali were armed with Sword. Pappu was armed with Gandasi. Many other accused were also armed with Sword. Abdul Kalam gave an injury on the left side of his head. Nazar Mohammad also caused him injury by Sword on head. Ramjani gave an injury with Gandasi on his foot. His brother Chhuttan was given injury by Abdul Kalam, Nazar Mohammad, Abdul Hannan, Abdul Mannan. Liyakat and Abdul Wahid came to save them. Abdul Kalam, Abdul Hannan, Abdul Mannan, Nazar Mohammad and Mohammad Ali caused injuries to Abdul Wahid. They also caused injuries to Liyakat. Nobody else was present at the spot. Abdul Wahid died due to receipt of injuries. Sarpanch had exhorted accused to cause injuries. Liyakat and Abdul Wahid came to save them. Abdul Kalam, Abdul Hannan, Abdul Mannan, Nazar Mohammad and Mohammad Ali caused injuries to Abdul Wahid. They also caused injuries to Liyakat. Nobody else was present at the spot. Abdul Wahid died due to receipt of injuries. Sarpanch had exhorted accused to cause injuries. They were brought by Iqbal to the Hospital at Kota. As to why the accused had given injuries witness stated that he cannot divulge any reason. Police came to hospital and recorded his statement. 22. This witness in cross-examination stated that he was admitted in the hospital on 28.3.2003. After his admission in the hospital, police arrived within one and a half hour. Abdul Wahid was son-in-law of his maternal uncle (Mamaji). This witness also stated in the cross-examination that Zakir and Radheyshyam had not caused injuries. They were exhorting other accused to cause injuries. He further stated that Gheesiya Meena is also known by the name of Radheyshyam, and Gheesiya Meena is Sarpanch of the village. In cross-examination this witness further admitted that he had not lodged any report at the police chowki at Kota Hospital. He further admitted that when they reached hospital, police met them at the gate of the hospital, but they had not asked anything. He further admitted in the cross-examination that as to who caused injuries to whom, he cannot narrate the sequence. This witness further stated that as to why the name of Pappu was not mentioned in the statement (Exhibit P/26) he cannot give any reason. ^^c;ku izn’kZ ih&26 es eqy- iIiw dk uke ugh fy[kk gqvk gSA D;ks ugh fy[kk eSa dksbZ dkj.k ugh crk ldrk eSus rks iqfyl dks crk;k FkkA** 23. Liyakat Ali (P.W.16) stated that on 28.3.2003 at about 6:00 PM all the accused were giving beating. At that time, Abdul Kalam, Abdul Mannan, Abdul Hannan, Mohammad Ali were armed with Sword. Ramjani was armed with Gandasi. Zakir and Gheesiya were armed with Sword. They were causing injuries to Firoz and Chhuttan. He and Abdul Wahid came forward. Abdul Kalam, Abdul Hannan, Abdul Mannan, Nazar Mohammad and Mohammad Ali caused injuries to Abdul Wahid bhai. This witness stated that Abdul Kalam gave injury on the forehead of Abdul Wahid. Abdul Hannan and Nazar Mohammad also caused injuries on the head. Abdul Mannan gave injury on hand of Abdul Wahid. 24. He and Abdul Wahid came forward. Abdul Kalam, Abdul Hannan, Abdul Mannan, Nazar Mohammad and Mohammad Ali caused injuries to Abdul Wahid bhai. This witness stated that Abdul Kalam gave injury on the forehead of Abdul Wahid. Abdul Hannan and Nazar Mohammad also caused injuries on the head. Abdul Mannan gave injury on hand of Abdul Wahid. 24. In cross-examination, this witness stated that police came to the hospital on the next date of their admission. Police came on 29.3.2003, whereas they were admitted on 28.3.2003. He further admitted that in statement (Exhibit-D/5) name of the persons who have caused injuries to Abdul Wahid have not been mentioned. He further admitted that in the statement (Exhibit-D/5) as to who caused injuries to him or to Firoz, details have not been given. 25. Haider Ali (P.W.1) had not received any injury in the occurrence. This witness stated that he had seen all the accused causing injuries to Abdul Wahid, Firoz, Chhuttan and Liyakat. This witness stated that he cannot tell as to why accused had given injuries. He had not intervened. Police came on the next date and interrogated him. He had shown place of occurrence to the police and in his presence, police had lifted blood stained earth and simple earth. 26. In cross-examination, this witness stated that he had gone from the spot to make a telephonic call to police station. He had made a telephonic call from the house of Ganjya Meena and told the police that a fight had taken place. He had not divulged the name of injured and the accused, as the same were not asked. He had only told the police that one person had died and three had suffered injuries. He had disclosed his name to the police. He came to the hospital, Kota after 18 hours. 27. Reshma (P.W.5), Latoor (P.W.6), Ramratan (P.W.10) and Babulal (P.W.11) have not supported the prosecution case. 28. Wajid Ali (P.W.2) had attested Panchayatnama/Inquest (Exhibit-P/4). Hidayat Ali (P.W.3) was examined to prove the recovery of clothes and weapon. This witness has not supported the prosecution and has turned hostile. 29. Mahesh Chandra (P.W.7) was posted as Constable at police station Sultanpur. He had taken sixteen packets in sealed condition to FSL, Jaipur. 30. 28. Wajid Ali (P.W.2) had attested Panchayatnama/Inquest (Exhibit-P/4). Hidayat Ali (P.W.3) was examined to prove the recovery of clothes and weapon. This witness has not supported the prosecution and has turned hostile. 29. Mahesh Chandra (P.W.7) was posted as Constable at police station Sultanpur. He had taken sixteen packets in sealed condition to FSL, Jaipur. 30. Devendra Singh, Head Constable (P.W.14) stated that on 2.4.2003, he was In-charge of Malkhana and he had handed over sixteen packets to the Constable Mahesh Chandra (P.W.7) for depositing the same in FSL. 31. As stated earlier, Om Prakash Sharma (P.W.9) had received telephonic message regarding the occurrence at village Kotsua. Thereafter, through Prabhulal, Constable (P.W.13) he had received statement (Exhibit-P/26) made by Firoz (P.W.15) on basis thereof he registered formal FIR (Exhibit-P/27). 32. Prabhu Lal (P.W.13) had carried statement (ExhibitP/26) from control room, Kota to Police Station Sultanpur. 33. Pardesi Ram (P.W.18) on 28.3.2003 had gone from Rural Control Room to record statement of Firoz (P.W.13) after he had received information regarding arrival of one dead body and admission of three injured. 34. Pradhuman Singh (P.W.19) Sub Inspector, being SHO, Police Station Sultanpur, had proved various facets of investigation. 35. After prosecution closed its evidence, statement of all accused was recorded under Section 313 Cr. P.C. All incriminating evidence was put to them. They denied the same and pleaded false implication. Accuseed in defence had examined four witnesses. 36. Manzoor Ali (D.W.1) was examined to prove alibi on behalf of accused Abdul Kalam and Mohammad Ali. This witness also stated that on 30.03.2003 accused were arrested from their house. 37. Abdul Haleem (D.W.2) stated that on 30.03.2003 police came to arrest Abdul Kalam. He told that for two days before arrest accused was with him. 38. Abdul Qayyum (D.W.3) was examined to prove alibi on behalf of accused Abdul Hannan and Abdul Mannan. 39. Kailash (D.W.4) was also examined to prove alibi on behalf of accused Abdul Kalam. 40. Having noted the entire gamut of prosecution case, we shall now proceed to deal with the arguments raised before us. 41. The occurrence in the present case has taken place in village Kotsua, on 23.3.2003 at 6:00 PM. Immediately, Haider Ali (P.W.1) had relayed the information to police station Sultanpur by making a telephonic call. 40. Having noted the entire gamut of prosecution case, we shall now proceed to deal with the arguments raised before us. 41. The occurrence in the present case has taken place in village Kotsua, on 23.3.2003 at 6:00 PM. Immediately, Haider Ali (P.W.1) had relayed the information to police station Sultanpur by making a telephonic call. The said call was received by Om Prakash Sharma (P.W.9), but he had not noted the contents of the telephonic call in the case diary or Rojnamcha. So, at what time, the call was received, the Investigating Agency has suppressed this fact. Though the witness stated that it was recorded in the Rojnamcha that a telephonic call was received relaying information that in village Kotsua, one person was killed and three persons had received injureies, neither Rojnamcha has been produced, nor entry thereof had been proved. In cross-examination, Om Prakash Sharma, ASI (P.W.9) stated that as per instructions given by S.P. Sahib, in case injured are admitted in the hospital, the statement are to be recorded by officials of the Control Room. 42. Firoz (P.W.15) stated that when they reached at hospital, Kota, they had met police officials at the gate of the hospital. This witness further stated that the statement was recorded at the hospital after one or one and a half hour of their arrival. It is to be noted that the statement of Firoz (P.W.15) was recorded by Pardesi Ram (P.W.18) at 10:30 PM. Thus, so far recording of the statement of the injured Firoz (P.W.15) is concerned, there is no considerable delay. It has also come in evidence that after recording of statement by Pardesi Ram (P.W.18), Prabhu Lal (P.W.13) had taken statement to Police Station, Sultanpur. In pursuance thereof, a formal FIR was registered by Om Prakash Sharma, ASI (P.W.9) at Police Station, Sultanpur at 2:10 AM on the intervening night of 28/29.03.2003. Thus, so far registration of the case is concerned, there is no delay. Thus, we find no substance in the first argument raised by Mr. A.K. Gupta, counsel for the appellants to D.B. Criminal Appeal No. 15/2004. 43. Now, the question arises as to when did the special report reach the Illaqa Magistrate? Om Prakash Sharma, ASI (P.W.9) stated that copy of the FIR (Exhibit-P/27) was sent by him to the court. Thus, we find no substance in the first argument raised by Mr. A.K. Gupta, counsel for the appellants to D.B. Criminal Appeal No. 15/2004. 43. Now, the question arises as to when did the special report reach the Illaqa Magistrate? Om Prakash Sharma, ASI (P.W.9) stated that copy of the FIR (Exhibit-P/27) was sent by him to the court. This witness stated that it was sent to the court at Dhigodh, and copy of special report was sent in the morning of 29.3.2003. This witness stated that it is correct that regarding the receipt of copy of FIR in the court, no seal has been affixed. As per this witness, the special report was sent through Narendra Singh, Constable (670). This witness further stated that he does not recollect at what time Narendra Singh (670) had left with the FIR. 44. Pradhuman Singh (P.W.19), the Investigating Officer, stated that copy of the FIR was not sent by him to the court. He stated that when he reached at the police station, copy of the FIR had already been sent through a Constable to the court at Dhigodh. The constable after returning had informed him that he had handed over the copy of the FIR to the court. 45. Mr. A.K. Gupta, the learned counsel for the appellants, has submitted that below the FIR, it is noted “29.3.2003, 1:20 PM, Narendra Singh (670), Sultanpur”. Counsel submits that below the endoresement given, there is only a line and it contains no signature of the Magistrate. Counsel has submitted that neither the Constable Narendra Singh has been examined, nor any official of the court has been examined to say that the copy of the FIR (Exhibit-P/27) was received by the concerned Magistrate. 46. Having ourselves examined the record, we are in agreement that the prosecution has not examined the constable, who carried the special report, or any other officer of the court of the concerned Magistrate to say that the special report reached Illaqa Magistrate. Even if we assume that the copy of the FIR had reached Illaqa Magistrate on 29.3.2003, at 1:30 PM, there is apparently delay in reaching of the special report, as it was not sent in the night to the Magistrate. 47. Even if we assume that the copy of the FIR had reached Illaqa Magistrate on 29.3.2003, at 1:30 PM, there is apparently delay in reaching of the special report, as it was not sent in the night to the Magistrate. 47. Having held that there is delay in reaching of the special report, we have to consider what is the effect of delay in reaching of the special report. 48. Mr. Gupta, the learned counsel for the appellants has submitted that as per rule 5.5 of the Rajasthan Police Rules, one copy of the FIR is required to be sent to the Magistrate empowered to take cognizance of the offence under Section 157 of Cr. P.C. Mr. Gupta has relied upon Shivlal and Another vs. State of Chhattisgarh, AIR 2012 SC 280 , to contend that if there is a failure on the part of the prosecution to send copy of the FIR to Magistrate, as required under Section 157(1) of Cr. P.C. and no explanation is given by the prosecution to this effect, then the same will cast doubt upon the prosecution case. 49. In our opinion, non-reaching of the special report or delay in reaching of the special report, perse, is not fatal to the case of the prosecution. 50. In Bijoy Singh & Another vs. State of Bihar, 2002 (9) SCC 147 , the Hon'ble Supreme Court has held as under: “6. This Court in Meharaj Singh (L/Nk.) vs. State of U.P. held that FIR in a criminal case and particularly in a murder case, is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eyewitnesses, if known to the informant. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. 7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. 7. Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 Cr PC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring it self as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. (Emphasis supplied). It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. 8. In the instant case, the copy of the report referred to in Section 157 Cr PC is shown to have been received by the Magistrate on 27-8-1991. Even though there is a mention in the FIR that its copy was sent through special messenger, yet no date or time of sending the said report is mentioned. The Magistrate, receiving the copy of the report, has also not noted the time of its receipt on 27-8-1991. We are of the opinion that the Magistrate receiving reports under Section 157 Cr PC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. We are of the opinion that the Magistrate receiving reports under Section 157 Cr PC, particularly when it relates to the commission of the heinous crime are required to note not only the date but also the time of the receipt of the copy thereof. Mr. B.B. Singh, learned counsel appearing for the State has pointed out the existence of various circumstances which may perhaps be the cause of delay in sending the copy of the report and its receipt by the Magistrate but surely there is a difference between the “may be” and “must be”. The prosecution has apparently failed to explain the delay in sending the copy of the said report in terms of Section 157 Cr PC to the Magistrate of the area. This aspect has been highlighted by the learned counsel for the appellant to contend that many of the accused were innocent and wrongly roped in the case allegedly on account of enmity existing between the complainant and the accused party. There is some substance in such a submission. “ 51. Recently, in Brahm Swaroop & Another vs. State of Uttar Pradesh, 2011 (6) SCC 288 , the Lordship of Hon'ble Supreme Court has held as under: “Delayin sending report to the Magistrate 14. Undoubtedly, there is delay of 5 days in sending the special report. This Court in Badam Singh vs. State of M.P. while considering this issue held that where the investigating officer categorically stated that he was not in a position to give any explanation for the delay in sending the special report, it may be fatal to the prosecution's case. 15. However, a larger Bench of three Judges in Balram Singh vs. State of Punjab, held as under: “10. We notice that in reality there is no delay in preparing the FIR but there was some delay in transmitting the said information to the Jurisdictional Magistrate. Having been satisfied with the fact that the FIR in question was registered in the morning of 6-5-1990, we do not think that the delay thereafter in communicating it to the Jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document (FIR) was created after much deliberations. Having been satisfied with the fact that the FIR in question was registered in the morning of 6-5-1990, we do not think that the delay thereafter in communicating it to the Jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document (FIR) was created after much deliberations. At any rate, while considering the complaint of the appellants in regard to the delay in the FIR reaching the Jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case.” 16. In State of Rajasthan vs. Teja Singh, this Court held that the receipt of the special report by the Magistrate is a question of fact and the prosecution may explain the delay in sending the special report. However, the explanation so furnished by the prosecution must be convincing and acceptable. The same view has been reiterated in Ramesh Baburao Devaskar vs. State of Maharashtra. 17. In Sarvesh Narain Shukla vs. Daroga Singh, this Court held that delay in forwarding the special report to the Magistrate could not raise a suspicion that FIR had been written later and was ante-timed. Suspicion of manipulation of the documents prepared during the initial investigation would not dislodge the documentary and oral evidence on the spontaneity of the lodging of the FIR. 18. In Aqeel Ahmad, this Court held that the forwarding of the report to the Magistrate is indispensable and absolute and it must be sent at the earliest, promptly and without any undue delay as the purpose is to avoid the possibility of improvement in the prosecution's case and the introduction of a distorted version by deliberations and consultation and to enable the Magistrate concerned to keep a watch on progress of investigation. However, no rule of universal application can be laid down that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. If there has been some lapse on the part of the investigating officer that would not affect the credibility of the prosecution's witnesses.” 52. It would depend upon the facts of each case. If there has been some lapse on the part of the investigating officer that would not affect the credibility of the prosecution's witnesses.” 52. In view of the law noted above, we find that it has been stated by Om Prakash Sharma, ASI (P.W.9) that special report was sent through constable Narendra Singh. Below the copy of the FIR, time has been noted as 29.3.2003 at 1:30 PM and the name of constable has also been noted. Whether there is sign or signature of the Magistrate, the same has not been proved by the prosecution by examining the constable, or the Magistrate, or the official of the court. 53. By harmonizing law laid down in Bijoy Singh (supra) ad Brahma Swaroop (supra), we are of the view that there is delay in reaching of the special report and at the most, we can say that the injured witnesses, as a result of consultations and delibrations may have inflated number of accused. Thus, we partly accept second argument raised by counsel for the appellants. 54. Out of ten accused, which accused is victim of over implication, having put to gurad, we shall sift grain from the chaff. 55. A perusal of the FIR reveals that the appellant Pappu has not been named in the FIR. Firoz (P.W. 15) has also admitted in the court that he cannot explain as to why name of Pappu has not been specified in the statement (Exhibit-P/26). We have already reproduced relevant portion of his testimony in the earlier part of the judgment. 56. Chhuttan (P.W.4) and Haider Ali (P.W.1) have not assigned any role to any accused. Rather, Chhuttan has categorically stated that Zakir and Radheyshyam have not caused any injury in the occurrence. They were only exhorting other culprits. To similar effect is the statement of Firoz (P.W.15). He has also stated that Sarpanch had exhorted other accused persons to cause injuries. Sarpanch referes to accused-appellant Radheyshaym. Thus, no injury has been attributed in the occurrence to Pappu, Gheesiya @ Radheyshyam and Zakir, appellants to D.B. Criminal Appeal No. 1675/2003. Therefore, taking delay in reaching of the special report and the fact that no specific role has been assigned except exhortation to Gheesiya and Zakir, we shall extend benefit of doubt to both the appellants namely, Gheesiya @ Radheyshyam and Zakir. Therefore, taking delay in reaching of the special report and the fact that no specific role has been assigned except exhortation to Gheesiya and Zakir, we shall extend benefit of doubt to both the appellants namely, Gheesiya @ Radheyshyam and Zakir. Since Pappu has not been named in the FIR and no specific injury has been assigned to him, we shall also extend benefit of doubt to him. 57. Firoz (P.W.15) and Liyakat Ali (P.W.16), both have stated that Abdul Kalam, Abdul Hannan, Abdul Mannan, Nazar Mohammad and Mohammad Ali caused injuries to Abdul Wahid. Liyakat Ali also stated that these five accused had caused injuries to Wahid. These five accused have been substantively convicted for the offence of murder. Firoz has stated that all these five persons were armed with Sword, whereas in the FIR and earlier, it had been stated that these persons were armed with Sword, Gandasi and Dhariya. It is to be noted that as per prosecution, from Abdul Kalam sword (Exhibit-P/12) was recovered, from Abdul Hannan, Gandasi (Exhibit-P/13) was recovered, from Abdul Mannan, Dhariya (Exhibit-P/14) was recovered and from Nazar Mohammad, Sword (Exhibit-P/16) was recovered. Thus, we are of the view that these persons can also cause injuries which have been suffered by Firoz, Chhuttan and Liyakat. Thus, we are of the view that the possibility that accused Ramjani and Abdul Kareem have been named as accused as result of consultations and deliberations cannot be ruled out. They seem to be victims of over implication. Therefore, we shall extend benefit of doubt to Ramjani and Abdul Kareem, who have caused no injury to the deceased. 58. It is to be noted that Chhuttan and Haider Ali in the court have not attributed any injury to anybody. 59. Firoz (P.W.15) had stated that Abdul Kalam had given a Sword blow on his head. Ramjani gave an injury with Gandasi on his foot, but he had received no other injury. Thus, Firoz (P.W.15) has not attributed any injury to Abdul Kareem and so far, injury on the foot is concerned, same is attributed to Ramjani, dimension of this injury is 1x6 cm. As stated earlier, solitary injury attributed to Ramjani, can be caused by others also. 60. Liyakat Ali (P.W.16) has attributed injury on his hand to Abdul Kalam. He further stated that Abdul Kareem also caused injury on the internal side of elbow. As stated earlier, solitary injury attributed to Ramjani, can be caused by others also. 60. Liyakat Ali (P.W.16) has attributed injury on his hand to Abdul Kalam. He further stated that Abdul Kareem also caused injury on the internal side of elbow. In the entire occurrence, this is the solitary injury attributed to Abdul Kareem i.e. with Sword on the elbow of Liyakat Ali. The prosecution has shown recovery of bamboo (Exhibit-P/9) from Abdul Kareem. No other witness had attributed any injury to Abdul Kareem, except Liyakat Ali. In court, this witness admitted that in his statement recorded under Section 161 Cr. P.C. (Exhibit-D/5), it is not noted which accused caused which injury. He further admitted that in statement (Exhibit-D/5) neither causing of injury on hand is specified, nor author of injury has been named. Therefore, we shall extend benefit of doubt to Abdul Kareem also, taking delay in reaching of special report into consideration, holding that this injury can be caused by other accused also, especially when same is not attributed to this appellant in statement made to police by the witness. 61. Consequently, we uphold the conviction of five appellants, namely Abdul Kalam, Abdul Mannan, Abdul Hannan, Nazar Mohammad and Mohammad Ali for the offence under Section 302 IPC. 62. So far the argument regarding application of Section 149 is concerned, the same no longer survives, as we have acquitted the accused who were convicted for offence of murder, with aid of Section 149 IPC. Even otherwise, the common object of the assembly can develop at the time of occurrence. The very fact that the five appellants had caused injuries to the deceased, who came to save others, will not lead to conclusion that the members of the assembly never intended to cause injuries to the deceased. The accused were armed with lethal weapon. They had punished the person who came to rescue others. It is to be noted that deceased was also closely related to other persons, to whom accused were initially causing injuries. In the facts and circumstances of the case, all the five appellants had caused injuries to Abdul Wahid. Thus, by merely saying that only one injury had proved fatal, others cannot be held responsible for murder is not tenable. It is to be noted that deceased was also closely related to other persons, to whom accused were initially causing injuries. In the facts and circumstances of the case, all the five appellants had caused injuries to Abdul Wahid. Thus, by merely saying that only one injury had proved fatal, others cannot be held responsible for murder is not tenable. Taking into account the nature of injury on the head and the fact that it was caused to a person, who came to rescue others, we cannot say that offence will not fall under Section 302 IPC. It is not a case where blow intended to be caused to another person, landed on the head of intervener. It is specific case of the prosecution that Abdul Wahid came to save others and on this account, accused had caused him injuries. Thus, to us, the appellants have been rightly convicted for offence of murder. 63. As a result of above discussion, we accept Criminal Appeal No. 1675 of 2003 and acquit the appellants therein namely, Pappu, Gheesiya @ Radheyshyam, Zakir Hussain by setting aside their conviction and sentence. We also partly accept Criminal Appeal No. 15 of 2004 qua appellants Ramjani and Abdul Kareem by setting aside their conviction and sentence and acquit them of charges. However, we dismiss the same qua appellants namely, Abdul Mannan, Abdul Hannan, Nazar Mohammad, Abdul Kalam and Mohammad Ali by upholding their conviction and sentence.