JUDGMENT Hon'ble Naheed Ara Moonis, J.—The instant appeal has been filed against the judgment and order dated 3.9.1982 passed in Sessions Trial Nos. 441 of 1981 & 524 of 1980 by the learned Additional & Sessions Judge Gorakhpur whereby both the appellants have been convicted and sentenced under Sections 302/149 IPC to undergo life imprisonment and three years rigorous imprisonment under Section 148 IPC for committing the murder of Basant and Vindhyachal. 2. Accused Ram Adhar who has absconded since the commencement of trial and has evaded to face the trial is still absconding hence he shall hereinafter to be referred to as an “absconder”. 3. The genesis giving rise to the prosecution case is that an F.I.R. vide Ext. Ka.1 was lodged by Ramanand (P.W.1) against three persons namely Paras, Ram Adhar (the absconder) and Nizamul and three unknown persons on 20.3.1980 at 8.05 p.m. in respect of an incident occurred at about 5.00 p.m. on the same day vide case Crime No. 68 of 1880 under Sections 147/148/149/307/302 IPC contending that on 20.3.1980, the complainant and his brother Rajendra (PW.4) cousin Basant,Vindhyachal Singh Ramdhari and Prabhunath (P.W.3) reached on the bank of river Rapti situated near Chanda Ghat of village Malaon after collecting tehbazari at about 5.00 p.m, they saw that Paras armed with country made pistol, Ram Adhar and Nizamul equipped with gun accompanying with three unknown persons equipped with bomb and country made pistol were standing there with an intention to kill them. All the accused persons with common intention and object attacked upon them hurling abusive and pejorative words extending threats that it is the apposite opportunity to wreak vengeance of old animosity. On the exhortation and threats an unruly scene developed causing helter and skelter.Vindhyachal out of fear ran towards river and his brother Rajendra and other persons ran towards village Majgawan. Basant ran towards south where wheat was sown in the field. Ram Adhar (absconder) and Paras who were equipped with gun and country made pistol chased and fired at Basant. Nazimullah and his one associate equipped with country made pistol and bomb chased Vindhyachal Singh. Two unknown persons chased the complainant and his brother Rajendra Lal and others accompanying with them ran towards Majgawan. Ram Adhar (absconder) and Paras who were equipped with gun and country made pistol chased and fired at Basant. Nazimullah and his one associate equipped with country made pistol and bomb chased Vindhyachal Singh. Two unknown persons chased the complainant and his brother Rajendra Lal and others accompanying with them ran towards Majgawan. The complainant and his associates succeeded in saving their lives but his cousin Basant and Vindhyachal were done to death with the lobbing of bombs and indiscriminate firing made with country made pistol. The incident was witnessed by the complainant and the others but could not chase them due to fear. Leaving behind the dead body of Basant and Vindhyachal, he went to lodge the First Information Report for taking appropriate action. On the basis of the First Information Report, Ramji Rai (P.W.5) Head Moharrir prepared the chick report vide Ext. Ka.4 and registered a case in the G.D. Entry vide Ext. Ka. 5. After registration of the case, the investigating officer Gopalji Singh P.W.6 swung into action and recorded the statement of the complainant at the police station and thereafter reached at the spot at about 11.30 p.m. He collected plain and blood stained earth in separate container from the place of occurrence. He found the dead body of Basant in the field where wheat crop was standing. The dead body of Vindhyachal could not be found inspite of search. The inquest of Basant could not take place for want of light. The corpse of Vindhyachal was taken from the bank of the river rapti on 21.6.1980 at about 6.00 p.m. and from the same place seven empty cartridges were recovered. These incriminating article were kept in a sealed cover and the recovery memo was prepared. The investigating officer prepared the inquest report, challan lash, photo lash on 21.3.1980 in respect of cadaver of Basant and Vindhyachal vide Ext Ka.6 and Ka. 11 respectively. The corpse of Vindhyachal and Basant was handed over in a sealed cover to constable Ram Agyan and Chhotak Singh at about 7.10 a.m. and 7.20 a.m. for being taken to mortuary. 4. The post-mortem of deceased Vindhyachal was performed by Dr.K.M.Singh (P.W.2) on 22.3.1980 at about 1.30 p.m. Following ante-mortem injuries were found on the person of deceased Vindhyachal. 1. 4. The post-mortem of deceased Vindhyachal was performed by Dr.K.M.Singh (P.W.2) on 22.3.1980 at about 1.30 p.m. Following ante-mortem injuries were found on the person of deceased Vindhyachal. 1. Blast injury on the right side head and forehead and face, blackening and charring of the skin present swelling about 10'’ x 8'’ present. 2. Lacerated wound 01 x 01/4" x bone deep over outer side of the right eye brow. 3. Two lacerated wound 01'’ x ’’ x muscle deep each would ’’ apart, 1 ‘’ below left eye. 4. Blast injury 30'’ x 6'’ on the front and medial side of the right thigh, right leg and right ankle joint. Blackening of skin and swelling present. Yellow powder present over various parts of the injury. On external examination, the doctor found presence of clotted blood under ante-mortem injury No. 1 together with linear fracture 3" long on the right side parietal bone was found. Semi-digested food was found in the stomach. Large and small intestines were full of faecal matter and gases. The death of the deceased caused due to shock and haemorrhage. The injury No. 1 to 4 were sufficient to cause death and the injury No. 2 and 4 sustained on account of fall or due to splinters or friction which could have been caused at about 5.00 p.m. on 20.3.1980. Dr. K.M. Singh (P.W.2) conducted the post-mortem of Basant on the same day i.e. 22.3.1980 at about 2.30 p.m. Following ante-mortem injuries were found on the person of deceased Basant. 1. Gunshot wound ’’ x3/4'’ rounded on the back of the right chest, 4'’ away from middle line, 06'’ below neck, Blackening and tattooing present around the wound. Wound of entry. 2. Contusion 4'’ x 4'’ on the front of the left side of the chest 4'’ away from the middle line, 4'’ below the neck. 3. Two gun shot wounds ‘’ wounds of exit’’ 1/10'’ x 1/10'’ rounded each 1/4'’away from each other. 5. On external examination laceration ’’ x ’’ of pleura and laceration through and through of right lung under injury No. 1 were noticed and laceration in left lung ’’ x ’’ was also found. Two cork pieces and three metallic pellets were found embedded in the left tissues which were taken out and duly kept in an envelop that was sealed. Two cork pieces and three metallic pellets were found embedded in the left tissues which were taken out and duly kept in an envelop that was sealed. The small and large intestines were found full of gases and faecal matter while the stomach was found to be empty. External injury No. 1 gunshot wound was sufficient in the ordinary course to cause death 6. The doctor opined that external injury No. 1 gunshot wound was sufficient in the ordinary course to cause death. The death occurred due to shock and haemorrhage as a result of ante-mortem injury. There were possibility that death could have occurred on 20.3.1980 at about 5.00 p.m. 7. The investigating officer proceeded with the investigation and recorded the statement of the complainant and the witnesses under Section 161 Cr.P.C and also completed the necessary formalities. The investigating officer submitted charge-sheet against Nizamul, Paras and the co-accused Ram Adhar after collecting credible and clinching materials showing their complicity in the commission of the said offence. 8. The co-accused Ram Adhar had not been apprehended till now despite submission of the charge-sheet and the process under Sections 82/83 Cr.P.C. The case was committed to the Court of Sessions and the charges were framed only against the appellants Nizamul & Paras under Sections 147/148/149/302 IPC by the learned trial judge which were read over and explained to the appellants. The accused appellants denied all the charges and claimed to be tried. 9. In order to prove guilt of the appellants, the prosecution has examined six witnesses in support of its case. Out of whom three witnesses of facts namely informant Ramanand P.W.1, Prabhunath P.W.3 and Rajendra P.W.4 were examined who corroborated the prosecution version. P.W.5 Ramji Ram proved the chick F.I.R.and G.D. entry. Dr. K.N.Singh, Medical Officer Incharge, Medical Care Unit, City Dispensary Zafra Bazar Gorakhpur was examined as P.W.2 who conducted the post-mortem report on the corpse of the deceased Basant and Vindhyachal. Sri Gopalji Singh Station Officer was examined as P.W.6 who investigated the case and submitted the charge-sheet against the accused persons namely Paras, Ramadhar (absconder) and Nizamul. 10. The accused persons in their statement under Sections 313 Cr.P.C. denied all the charges levelled against them and pleaded for innocence. They pleaded that they have been entrapped in the present case out of personal vendatta and old animosity. 10. The accused persons in their statement under Sections 313 Cr.P.C. denied all the charges levelled against them and pleaded for innocence. They pleaded that they have been entrapped in the present case out of personal vendatta and old animosity. The learned trial judge on the basis of material on record held that the prosecution has proved its case beyond all reasonable doubt and accordingly convicted & sentenced the appellants under Sections 302/148/149 IPC to undergo life imprisonment. 11. The argument of the learned counsel for the appellants is that the judgment and order passed by the learned trial judge is per se illegal and erroneous whereby the appellants have been awarded life imprisonment merely on suspicion while there are serious irregularities and lapses on the part of the prosecution. All the witnesses produced by the prosecution were highly partisan and interested who wanted to satiate their lust of grudge. The investigation was also done in a very perfunctory and casual manner. All the witnesses are claiming themselves to be present at the crucial juncture of incident but none of them has sustained any injury. No efforts were made to save the victim while they were in numbers. There are material inconsistency in the prosecution version and the statement of the witnesses which itself creates great suspicion about the manner of assault, time and the place of occurrence. The First Information Report has been lodged with considerable deliberation and consultation as there is no plausible and cogent explanation about the delay in lodging the First Information Report. The medical evidence also does not corroborate the prosecution version. The presence of the witnesses is highly doubtful. The witnesses would have come at the place of occurrence after hearing about the said incident and have roped the appellants on account of suspicion. No strong motive has been attributed for committing the said incident. The motive assigned to the appellants for committing the gruesome and hellish murder of two persons does not inspire any confidence corroborating its verity and truthfulness. Nizamullah and Paras were assigned the role of causing injuries to the victims with country made pistol and bombs but there is no fire-arm injury on the person of the deceased Vindhyachal. According to the post-mortem report, victim Vindyachal had sustained blast injuries on the right head and the forehead. Nizamullah and Paras were assigned the role of causing injuries to the victims with country made pistol and bombs but there is no fire-arm injury on the person of the deceased Vindhyachal. According to the post-mortem report, victim Vindyachal had sustained blast injuries on the right head and the forehead. According to the version of the First Information Report, Ramadhar is alleged to have fired on Basant. There is only one gunshot wound on the person of Basant. It cannot be ascertained whose gunshot had hit to the victim. Thus the medical evidence also does not corroborate with the prosecution case. Paras has been convicted and sentenced under Sections 302/149 IPC. Ram Adhar who has not faced the trial is allegedly absconding while there is specific role of firing attributed to him. 12. The presence of the complainant becomes highly doubtful and under suspicion that he had not received any injury in spite of firing and lobbing of bombs indiscriminately. It is conspicuously explicit from the site plan prepared by the investigating officer that the complainant who was pursued and chased by the other accused persons could not have seen the manner of assault inflicted upon the victims. It is borne out from the statement of the witnesses that they ran away to save their lives towards Majgawan village. They could not have seen the manner of assault as they were in helter skelter loosing balance of sense. The presence of P.W.4 Rajendra is highly improbable who had given conflicting statement about the number of assailants who were equipped with bomb and country made pistols or lathi. The complainant who is also claiming himself to be an ocular witness of the incident has given conflicting and contradictory statement that he was chased by the assailants and ran towards Majgawan village and remained there about 10 to 15 minutes and thereafter arrived at the place of occurrence where Vindhyachal and Basant had been attacked. The corpse of Basant is alleged to have been lying in the field of one Ram Dutta Yadav and the corpse of Vindhyachal is alleged to have been lying on the brink of river Rapti whereas the investigating officer has stated that the corpse of Vindhyachal was recovered from the river next day. The version of the prosecution stands fully uncorroborated that they had seen the corpse of Vindhyachal on the same day of occurrence. The version of the prosecution stands fully uncorroborated that they had seen the corpse of Vindhyachal on the same day of occurrence. From the connecting circumstances of the case, it transpires that the victims were looted by some unknown miscreants while coming back after collecting the Tahbazari. On their resistance they were done to death and the corpse of Vindhyachal was thrown in the river so as to obliterate its identity. On the next day, as per statement of the investigating officer, who had prepared the recovery memo, the corpse of Vindhyachal was taken out from the river and the empty cartridges were found near the river. The doctor who had conducted the autopsy of the deceased had found blast injury on the right side head and forehead and fracture on the parietal bone which would have been caused by explosion of bomb but there is no recovery of any splinters. There was no swelling on the person of Vindhyachal who was lying in the river and was fished out from the river next morning. There is a bundle of contradictions in the prosecution version, medical testimony and the statement of the witnesses. The corpse of Basant was taken into custody by the investigating officer in the night and was brought at Malaw crossing and was kept their overnight while the corpse of Vindhyachal was recovered next morning at about 5.00 to 6.00 a.m. both the corpse were put together and the inquest was conducted by the investigating officer. According to the First Information Report, the complainant alone went at the police station to lodge the First Information Report. 13. The falsehood and contradictions are so evident that it would obliterate the verity and probity of the entire prosecution version. It is trite fact that both the victims had met to unnatural death which is corroborated from the medical report but who was the real assailants cannot be deduced by implicating the innocent persons merely in the guise of suspicion. The learned trial judge has erroneously passed the impugned judgment and order attaching pivotal significance to the prosecution witnesses without vetting and weighing the material inconsistency in the prosecution version, medical evidence and the statement of the witnesses. The prosecution has failed to corroborate that the accused persons were not only a member of unlawful assembly but also shared the common object at all the crucial stages. The prosecution has failed to corroborate that the accused persons were not only a member of unlawful assembly but also shared the common object at all the crucial stages. The conviction of the appellants placing reliance on the eye-witness account is not proper for want of independent corroboration as the presence of the eye eye-witnesses on the spot is highly doubtful. 14. In support of his contention, learned counsel for the appellants has cited the judgment of the Apex Court in Niwas v. Ram Bharosey, 1994 Cr LJ 1384, Jagdish Murav v. State of U.P. and others, (2007) 2 SCC (Crl) 234, and Tapinder Singh v. State of Punjab and another, 1970 Cr LJ 1415. Emphasis has also been laid by the learned counsel for the appellants that the First Information Report is ante-time. There is material discrepancy with regard to sending the corpse in Form 13 wherein time is shown as 8.20 p.m. while the First Information Report was allegedly lodged at 20.05 p.m. Moreover, when the inquest was conducted,merely date is mentioned. No specific time has been incorporated which all goes to show that the First Information Report was not in existence when the inquest of both the corpse viz. Basant and Vindhyachal were conducted by the investigating officer. The entire prosecution story is rested on uncorroborated facts and evidence and the guilt of the appellants not having been proved to the hilt by the prosecution, the appellants are entitled to be given benefit of doubt and their conviction and sentence may be set aside. 15. Per contra learned AGA Sri Rajeev Gupta appearing on behalf of State opposed the contention of the learned counsel for the appellants that all the appellants and the absconder co-accused Ram Adhar have been named in the First Information Report. It is a case of double murder in broad day light in a devilish and diabolical manner with firings indiscriminately and lobbing of bombs. The date, place of occurrence and the manner of assault is fully corroborated by the prosecution witnesses. The appellants, co-accused Ram Adhar and the unknown persons were equipped with fire-arms and bombs with a pre concerted plan of eliminating the complainant’s party. The date, place of occurrence and the manner of assault is fully corroborated by the prosecution witnesses. The appellants, co-accused Ram Adhar and the unknown persons were equipped with fire-arms and bombs with a pre concerted plan of eliminating the complainant’s party. The victims tried to flee away from the place of occurrence when they reached near village Malav on the embankment of Rapti river in order to save their lives but the appellants and the co-accused Ram Adhar in association with unknown persons chased the complainant’s party. The complainant and the other persons ran towards Majgawan village. The victims Vindhyachal and Basant also tried to flee away looking the precarious and horrendous position of the assailants who were chasing them with country made pistols and bombs. The victim Basant tried to run towards south from the embankment and was chased by the appellant Paras and the co-accused Ram Adhar. The co-accused Ram Adhar succeeded in chasing Basant and fired at him from a close range with his gun and the co-accused Paras fired with country made pistol as a result of which he sustained fatal gunshot injuries and succumbed to death on the spot. The victim Vindhyachal ran towards the river Rapti being pursued by the appellant Nizamul and unknown culprits. The unknown persons lobbed bombs upon Vindhyachal and the appellant Nizamul fired with country made pistol which hit seriously to the victim Vindhyachal who succumbed to injuries on the spot at the brink of the river Rapti. 16. The post-mortem reports of the victims also corroborate that the injuries were caused to victim Vindhyachal with bombs and fire-arm and to the victim Basant with fire-arms. On external examination of Vindhyachal, presence of clotted blood under ante-mortem injury No. 1 together with linear fracture 3" long on the right side parietal bone was found. On the external examination of Basant, laceration ’’ x ‘’ pleura and laceration through and through on right lung under injury No. 1 was found. Two cork pieces and three metallic pellets were found embedded in the left lung which were taken out from the corpse. On the external examination of Basant, laceration ’’ x ‘’ pleura and laceration through and through on right lung under injury No. 1 was found. Two cork pieces and three metallic pellets were found embedded in the left lung which were taken out from the corpse. Minor discrepancy and aberration in the prosecution version will not overshadow or overcast the entire prosecution case as the First Information Report was lodged just after the occurrence of the incident naming the appellants, co-accused Ram Adhar who in association with the unknown persons had committed ghastly murder of two persons. There is no embellishment in the prosecution version. The victims had succumbed to unnatural death. There is no reason to disbelieve the presence of the accused persons as the defence has not been able to put forth any material contradiction or conflict in the statement of the witnesses. Their testimony has been sifted and vetted by the learned trial judge in arriving at the conclusion. The investigating officer collected credible and clinching evidence showing the complicity of the appellants and the co-accused Ram Adhar on the basis of which they were charge-sheeted. The appellants have been convicted and sentenced on the same set of evidence and the co-accused Ram Adhar is absconding in a very shrouding and mysterious circumstances making wilful defiance and infraction of penal code. There is no scope for mistaken identity as the accused persons were well known to the complainant and the witnesses. The motive behind the commission of the gruesome and barbarous murder strongly proved by the evidence connecting them with the crime as the appellants party were nurturing animus against complainant party as licence to collect Tehbazari had been granted to Hansraj,father of the complainant and Rajendra Lal (P.W.4) and the appellants in association with Ram Adhar and other unknown persons succeeded in their nefarious design of eliminating two persons namely Vindhyachal and Basant. The appellants denied the charges in the statement recorded under Section 313 Cr.P.C and pleaded for trial. The appellants denied the charges in the statement recorded under Section 313 Cr.P.C and pleaded for trial. There was common intention of all the accused persons to do a particular criminal act and in furtherance of that common intention, all of them joined together with each other in the commission of the act and it is settled law that in case anyone of these persons may not do the act but he helps by his presence, he would be held to have actual participation in the commission of the said incident. There is conspicuous pre-arranged plan anterior in point of time to the commission of the offence and the criminal act has been done in concert pursuant to the pre-arranged plan. 17. The evidence has been judged and weighed cautiously and warily with great circumspection as all the eye-witnesses were examined by the prosecution who had supported the prosecution version with respect to time of incident, place of occurrence and the manner of assault. The dispute with the named accused persons with regard to collection of Tehbazari by Hansraj (deceased) the father of the complainant and on his demise with Ramanand P.W.1 and Rajendra P.W.4 cannot be over sighted as Hansraj was murdered by Ram Kripal and Ram Adhar who were facing trial and are the brother of the appellant Paras. There is no deviation or aberration in the manner of assault as divulged by the prosecution. All the accused persons joined together and committed the gruesome crime in a very dastardly and barbarous manner culminating into death of two innocent persons on account of fatal and grievous injuries with bombs and fire-arm weapons. The accused persons clearly acted in concert and played potential role to liquidate the victims. The minor variation in the evidence of the witnesses and the medical is of no consequence. The presence of the eye-witnesses cannot be doubted. There is no reason to implicate the appellants and the co-accused persons falsely leaving to the actual assailants who had taken the life of an innocent persons. No adverse inference has been elicited in the cross-examination by the defence so as to discredit the prosecution version. Victim Basant died as a result of gunshot wounds. The cork pieces and three metallic pellets were extracted from his body. Vindhyachal died as a result of blast injuries. No adverse inference has been elicited in the cross-examination by the defence so as to discredit the prosecution version. Victim Basant died as a result of gunshot wounds. The cork pieces and three metallic pellets were extracted from his body. Vindhyachal died as a result of blast injuries. There is nothing in the cross-examination to discredit or overshadow the prosecution version. The motive behind the commission of the crime has been re-iterated by all witnesses of fact who had divulged the entire prosecution version in a very natural and unbleached manner. Specific role has been assigned to the accused persons who hit to the victims as a consequence whereof they died on the spot. The appellants and Ram Adhar who is absconding, were named in the First Information Report and there is clinching and credible material showing their complicity. The incident had taken place in a broad day light and there is consistent testimony showing complicity of the appellants thus the appellants do not deserve to be exculpated at the dint of passing the animosity with other persons. The appellants have rightly been convicted for murder as eye-witnesses account was consistent and reliable. The presence of the eye-witness was natural and their evidence was found reliable. The eye-witness testimony was corroborated by the medical evidence. It would not be proper to overshadow the entire prosecution for want of any independent witness when the case is fully corroborated by the testimony of the witnesses and the medical evidence. No adverse inference could be drawn against the prosecution with regard to probability if any suggested by the learned counsel for the appellants. The prosecution has presented a vivid account of the entire occurrence ascribing positive role of all the assailants therefore, the question of any deliberation amongst the members of the prosecution party stands clearly ruled out. There is no improvement or prevarication on the part of the prosecution witnesses. There is no justification to negate the evidence of the eye-witnesses and the medical testimony on the ground of surmises and conjectures as well as preponderance of probabilities. The firing on Basant from the very close range is corroborated by the fact that blackening and tattooing was present around the wound of entry which is proved from his post-mortem report. There is no justification to negate the evidence of the eye-witnesses and the medical testimony on the ground of surmises and conjectures as well as preponderance of probabilities. The firing on Basant from the very close range is corroborated by the fact that blackening and tattooing was present around the wound of entry which is proved from his post-mortem report. The deep rooted animosity between the parties itself tilts towards a very strong probability that the appellants and the absconder (Ram Adhar) in association with the co-accused persons have participated in the commission of the said offence hence their involvement in the present case cannot be apportioned to be an offshoot of got-up affair. There is evidence of overt act sharing the common object at all the crucial stage. The common object has to be inferred from the attending factors like weapons with which the members of the unlawful assembly were armed, their movements, the act violence and the result thereof. The evidence of the doctor who conducted the autopsy of the dead bodies of Vindhyachal and Basant showed that there were fire-arm injuries on one body and blast injuries on the other body. The motive in the present case became insignificant when the prosecution had established through ocular testimony qua forming of the unlawful assembly consisting of the appellants and the other persons to wreak vengeance of long drawn animosity. The connecting circumstances of the case fully supports that the unlawful assembly was formed to commit the heinous crime of murder. 18. In support of his contention, learned AGA has placed reliance upon the judgment of the Apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 , wherein it has been held that the prosecution case for want of corroboration by independent witness cannot be rejected as the public are generally reluctant to come forward to narrate the occurrence in the natural manner. The testimony of the eye-witnesses cannot be discarded. It would not be proper to reject the testimony of the eye-witnesses merely on the ground that they belong to a particular faction or group and are related with the deceased or the informant. The evidence of the eye-witnesses has to be assessed on its own merits. There is no valid reason to discredit or overshadow the testimony of the witnesses whose testimony is consistent with the prosecution version. The evidence of the eye-witnesses has to be assessed on its own merits. There is no valid reason to discredit or overshadow the testimony of the witnesses whose testimony is consistent with the prosecution version. The overt act of the accused persons has conspicuously been proved that they were member of an unlawful assembly and have committed heinous and devilish act of double murder in furtherance of their common object therefore, the impugned judgment and order passed by the Court below may be maintained and upheld and the appellants may be taken into custody as they are still extending threats to the prosecution party. 19. Before expressing any opinion on the merits of the case, it would be feasible to analysis the rival submissions advanced by the learned counsel for the parties in the light of the prosecution version and the defence taken by the accused appellants. It is conspicuous that the First Information Report was lodged by Ramanand P.W.1, the cousin of the victims against the accused appellants, co-accused Ram Adhar and unknown persons divulging the facts that unnatural death were caused to Vindhyachal and Basant on account of lobbing of bombs and gun shot injuries. 20. Learned AGA has stressed that much emphasis has been laid upon the preparation of inquest report. The inquest report is not an admissible piece of evidence. In case some particular is missing in the inquest report, it would not falsify and belie the prosecution case that the First Information Report was not in existence. The inquest report can only be used to connote as to whether death is homicidal or suicidal. The investigating officer P.W.6 Gopal Ji Singh rushed to the place of occurrence after the First Information Report was lodged by P.W.1 Ramannand. He reached at the place of occurrence at about 11.30 p.m. He found the dead body of Basant lying in the field standing of wheat crops which was overshadowed on account of lack of light. The process of the inquest could not be initiated as the corpse of Vindhyachal was not recovered. The police personnel were trying to trace out the corpse of Vindhyachal which was recovered at about 5.00 a.m. on 21.3.1980. The investigating officer commenced the process of preparing the challan lash, photo lash and other requisite formalities for sending both the corpse at the mortuary. Both the corpse viz. The police personnel were trying to trace out the corpse of Vindhyachal which was recovered at about 5.00 a.m. on 21.3.1980. The investigating officer commenced the process of preparing the challan lash, photo lash and other requisite formalities for sending both the corpse at the mortuary. Both the corpse viz. Basant and Vindhyachal were sealed and were taken to the mortuary for autopsy in the custody of Ramagya and Chhotak Singh (constables) at about 7.10 a.m. There is no discrepancy in the ocular testimony with the statement of investigating officer with regard to recovery of dead body of Vindhyachal from the bank of river Rapti and also the injuries existing on the body of the deceased Vindhyachal. Seven empty cartridges were recovered of which recovery memo was prepared and the same was proved by the investigating officer vide Ext. Ka.15. The medical evidence also authenticates the testimony of P.W.1 to P.W.4 viz. Ramannand, Dr. K.M.Singh, Prabhunath Singh and Rajendra Lal. The victim Vindhyachal was pursued by Nizamul and unknown miscreants who lobbed bombs on him. The recovery of the corpse of Vindhyachal from the river Rapti will not drift away the ocular account of the witnesses. P.W.1 Ramanand had stated that the corpse of Vindhyachal was recovered on the bank of river Rapti. In case some part of the body was immersed in the water, it will not instil an adverse inference of alienating the prosecution version. There was no mark of swelling on the person of deceased Vindhyachal in the post-mortem report. 21. The stand of the learned counsel for the appellants with regard to ante registration of the First Information Report also stands fully negated as there is no suggestion from the side of the investigating officer or Head Moharrir who has registered the First Information Report. The appellants cannot derive any benefit controverting the factum of the First Information Report without placing any convincing and trustworthy material in rebuttal. 22. The trial judge has unravelled vivid description for rearing animus and grudge against the victims because of long drawn animosity viz. murder of Hansraj, father of the complainant by the brother of accused appellant Paras namely Ram Kripal and Ram Adhar (absconder) as they were not joined to be co-sharer in collecting tehbazari and a case of murder of Zainullah, the brother of accused Nizamul in which the deceased viz. murder of Hansraj, father of the complainant by the brother of accused appellant Paras namely Ram Kripal and Ram Adhar (absconder) as they were not joined to be co-sharer in collecting tehbazari and a case of murder of Zainullah, the brother of accused Nizamul in which the deceased viz. Basant and P.W.1 Ramanand and P.W.4 Rajendra were implicated as the accused. Though the appellants have showed ignorance, it cannot be brushed aside. There is nothing in the cross-examination by the prosecution witness to doubt about the presence of the deceased alongwith Ramanand P.W.1 and Rajendra P.W.4 while accompanying to go to market for recovery of Tehbazari. The presence of the P.W.4 Rajendra Lal being a post master was fully supported from the reference of the First Information Report and the consistency in his cross-examination as the right to collect tehbazari dues was being exercised by him. He had applied for the leave and had gone to the market. The ocular account of the eye-witnesses finds corroboration from the medical evidence and the channel of circumstances connecting with the commission of the offence which has not at all been challenged by the defence. The accused persons had made a pre-arranged plan to eliminate the victims and waylaid them while they were coming back from the market after collecting Tehbazari. The incident started where the embankment fused. The victim Vindhyachal ran in the north side towards river Rapti to save his life who was chased by the appellant Nizamul and one unknown person. The victim Vindhyachal was encircled and was done to death in ghastly and devilish manner with gunshots and bombs. The victim Basant was pursued by appellant Paras and the absconder Ram Adhar in association with unknown persons. The absconder Ram Adhar overtook Basant in the field at a distance of about 50 paces from the embankment and fired at him from a very close range as a result of which he sustained fatal gunshot injuries culminating into his death on the spot. The eye-witnesses have mentioned the names of the accused persons who had committed murder of the victims and had also authenticated time and place of occurrence in an unbleached manner. 23. The double murder had taken place in a broad day light. The inquest proceeding was conducted in the early morning simultaneously. The eye-witnesses have mentioned the names of the accused persons who had committed murder of the victims and had also authenticated time and place of occurrence in an unbleached manner. 23. The double murder had taken place in a broad day light. The inquest proceeding was conducted in the early morning simultaneously. The presence of the eyes witnesses at the place of occurrence cannot be doubted or suspected on account of minor variation or aberration from the prosecution version. The utterances have consistently and umpteen times been repeated by the witnesses who had narrated and unfolded the incident in a very natural and articulatory manner. The overt act of the accused persons accompanied with participatory conduct at the relevant spur of the moment for the victims in a pre-planned manner and the circumstances from which the inference of guilt was drawn is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused persons. All the circumstances were of conclusive nature and the chain of evidence conspicuously shows that within all human probability the act has been done by the accused persons. The manner in which the victims were done to death by bombs and fire-arm has portrayed very inhuman and gruesome state of mind of the accused appellants and his accomplices. The occurrence is fully supported by the testimony of eye-witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. The accused appellants fled away after committing the brutal and gruesome crime. In the course of cross-examining the prosecution witnesses, defence side has tried to evolve a story of false implication to overshadow the testimony of the eye-witnesses. It can also not be doubted that the eye-witnesses had not seen the accused persons who had perpetrated the crime in a very inhuman and devilish manner. There is no material contradiction in the statement of witnesses regarding manner of participation of the accused persons. The delay in lodging the First Information Report will not falsify the entire prosecution version. The accused persons had equally participated in the commission of crime and it is immaterial to distinguish the role of the accused persons since the joint liability of the accused appellants and his associates can very well be inferred from their conduct and from other relevant circumstances coupled with the medical evidence on record. The accused persons had equally participated in the commission of crime and it is immaterial to distinguish the role of the accused persons since the joint liability of the accused appellants and his associates can very well be inferred from their conduct and from other relevant circumstances coupled with the medical evidence on record. When several persons simultaneously attack with common intent, no distinction between causing the fatal and non-fatal wounds could be drawn while allocating the guilt. The Apex Court in H.P. Thakore v. State of Gujarat, (1976) 4 SCC 640 , succinctly observed: when a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstances that one man’s stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent to accomplish their purpose cumulatively. Section 34 IPC fixing constructive liability conclusively silences such a refine plea of extrication. See Amir Hussain v. State of U.P., (1975) 4 SCC 247 ; Maina Singh v. State of Rajasthan, (1976) 2 SCC 827 . Lord Sumners classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse. They also serve who only stand and wait a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code. Therefore, the judgment and order passed by the learned Additional Sessions Judge being reasoned and judicious deserves to be upheld. 24. In the light of verbose and prolix discussion, we come to the irreversible and irrevocable conclusion that the judgment and order dated 3.9.1982 passed by the learned Additional District & Sessions Judge does not suffer from any infirmity or vulnerability warranting interference by this Court. The conviction and sentence of the appellants as awarded by the learned trial judge is hereby maintained and upheld. 25. The conviction and sentence of the appellants as awarded by the learned trial judge is hereby maintained and upheld. 25. Resultantly this appeal fails and is hereby dismissed. The appellants Nizamul and Paras who are on bail be taken into custody forthwith to serve out the sentence as awarded by the Court below. Office is directed to send back the record to the trial Court. 26. The accused Ram Adhar is playing mockery with the law by abstaining himself from the surrounding of the trial. There is active participation of Ram Adhar in committing the gruesome murder of Basant by firing which stood proved from the material evidence. An absconder cannot be given extra latitude to frustrate the justice and misuse or throttle the process of law, putting at shelf the executing and implementing machinery. He can also be treated at par with other accused appellants who have been convicted and sentenced by the trial Court. Law does not encourage abscondence neither does it encourage multiplicity of proceeding arising out of the same offence. Since the accused Ram Adhar has not illuminated least allegiance and respect to the process of law and is absconding giving a dodge to the legal machinery hence he must be taken to task for the act of defiance and infraction evaluating his entire conduct which is a tacit act to defeat the ends of justice. 27. Mere absconding of the accused Ram Adhar during all these years will not absolve him from his complicity and participation in the gruesome and diabolical murder of two innocent persons whose dependants are wailing and bemoaning since long over the loss of lives of their endeared family members which cannot be made good by any reparation. An absconder who had actively participated alongwith other accused persons as in the present case, cannot go scot free due to lethargic and lackadaisical action on the part of the State machinery which denotes that the State Machinery has failed to discharge its duty as provided under the law. 28. The Chief Judicial Magistrate Gorakhpur is directed to issue non-bailable warrant against the accused absconder Ram Adhar for his arrest and in case, Ram Adhar is not arrested, the Chief Judicial Magistrate will issue coercive process against him through Senior Superintendent of Police Gorakhpur for his arrest and attachment of property. 29. 28. The Chief Judicial Magistrate Gorakhpur is directed to issue non-bailable warrant against the accused absconder Ram Adhar for his arrest and in case, Ram Adhar is not arrested, the Chief Judicial Magistrate will issue coercive process against him through Senior Superintendent of Police Gorakhpur for his arrest and attachment of property. 29. Learned AGA is also directed to place this matter before the D.G.P. U.P.with an object to mobilize the State Machinery to have a watch over the growing lethargic and indifferent attitude of the authorities concerned who have completely failed in discharge of their duties devolved by the statute and the law. 30. Judgment be certified and placed on record. ———————