JUDGMENT : Mohammad Rafiq, J. 1. Since all these three appeals have been filed challenging the common judgment dated 25.01.2012 and order dated 01.02.2012 passed by Additional Sessions Judge No. 3, Kota (for short the trial court), therefore, they were heard together and are being decided by this common judgment. 2. Criminal Appeals No. 165/2012 and 261/2012 have been filed by accused-appellants Mohammed Akram, Pallu @ Parvez, Ajimuddin and Shakeel respectively challenging aforesaid judgment passed by the trial court whereby each of the accused-appellants has been convicted under Section 148 IPC and sentenced to one year's simple imprisonment and fine of Rs. 1,000/- in default whereof, to further undergo one month's additional simple imprisonment. The trial court has further convicted each of the aforesaid accused- appellants for offence under Section 302 read with Section 149 IPC and sentenced each of them to life imprisonment with fine of Rs. 10,000/- in default whereof, to further undergo one year's rigorous imprisonment. Both the sentences were ordered to run concurrently. Criminal Appeal No. 260/2012 has been filed by the complainant Ram Singh challenging the aforesaid judgment and order passed by the trial court in so far as it relates to acquittal of accused-respondent Hatim Qureshi and Sayed Qureshi of the charges under Sections 148 and 302 read with Section 149 IPC. 3. Facts of the case as emerging from the record are that Ram Singh Gurjar (PW-10) submitted a written report (Exhibit P- 15) to Sub-Inspector, Police Station Kunhadi, Kota in MBS Hospital, Kota alleging therein that on 19.07.2008 at about 2.00 P.M. he along with one Rakesh Nama (PW-3) were going on motor cycle from Keshavraipatan to Nanta Village. His elder brother Dara Singh was also going on another motor cycle No. RJ-08-SC-9502 about 40-50 feet ahead of them to Nanta Village. When they crossed Naya Kheda village and reached near first turn of the canal, 7-8 persons suddenly emerged from behind the bushes and attacked his elder brother. The informant and his companion Rakesh Nama (PW-3) stopped their motor cycle at some distance because they were frightened. Dara Singh tried to run away from there, but all the accused caught hold of him and started inflicting injuries to him by knife and also opened fire. When Dara Singh became unconscious, these persons considering him as dead, ran away from the place of occurrence on their motor cycle. Dara Singh tried to run away from there, but all the accused caught hold of him and started inflicting injuries to him by knife and also opened fire. When Dara Singh became unconscious, these persons considering him as dead, ran away from the place of occurrence on their motor cycle. Aslam Kabadi and his son Akram and Wahid Khunta were amongst those persons and there were 4 and 5 other persons also. They were armed with knives and revolver/country made pistol. Informant and his companion went to Dara Singh and noticed that he had received many knife injuries and was profusely bleeding. He had already died. They informed relatives and the police. The police came there and took dead body of Dara Singh to MBS Hospital, Kota. It was stated that accused had committed murder of Dara Singh owing to fact that his brother was main witness against them with regard to incident of communal riot, which took place last year at Patan. It was prayed in the written report that action be taken. 4. That the police, on receipt of aforesaid written report, chalked out regular FIR No. 229/2008 (Exhibit P-61) for offences under Sections 147, 148 and 302 IPC. After completion of investigation, challan was filed against six accused before the concerned court where from the case was committed to the Court of Sessions, Kota and it was transferred to the Court of Additional Sessions Judge No. 1, Kota for trial. Ultimately, the case was made over to the Court of Additional Sessions Judge No. 3 for trial. The trial court framed charges against the accused under Sections 148 and 302/149 IPC, which the accused denied and claimed to be tried. In support of its case, the prosecution examined as many as 35 witnesses and exhibited 73 documents. Statements of accused under Section 313 Cr.P.C. were recorded wherein they pleaded innocence and stated that they have been falsely implicated in the case. The defence produced ten witnesses and exhibit 44 documents. The trial court, on conclusion of trial, vide judgment and order dated 25.01.2012 and 01.02.2012, though acquitted accused Hatim Qureshi and Sayed Qureshi of the charges framed against them, but convicted and sentenced the accused-appellants Mohammed Akram, Pallu @ Parvez, Ajimuddin and Shakeel, in the manner indicated above. Hence, two appeals have been filed by the accused-appellants and one appeal has been filed by the complainant. 5. Hence, two appeals have been filed by the accused-appellants and one appeal has been filed by the complainant. 5. Mr. Sanjay Mehrishi, learned counsel appearing on behalf of accused-appellant Mohammed Akram in Appeal No. 165/2012 argued that the trial court has erred in convicting the accused-appellant Mohammed Akram under section 148, and section 302 read with 149 IPC. It is argued that Rakesh Pal (PW-26), Investigating Officer, has categorically stated that he had received information of the occurrence on 19.07.2008 at 2.30 PM, during the day, and he had left the Police Station after recording the said information in Rojnamcha of the Police Station. He also stated that on the site Ram Singh Gurjar had informed him that 7 or 8 persons had murdered Dara Singh. He further stated that having reached the scene of occurrence, he left for Nanta-Dabi in search of the accused-assailants after directing Shri Indra Singh A.S.I. to safe-guard and preserve the site. He had also admitted that the complainant did not hand over the written complaint, in his presence nor was the same recorded by him. He also stated that he was informed on the site by an informer that three boys, who had committed the murder, had run towards Dabi on an unnumbered motor cycle and that the accused appellant and co-accused Hatim Qureshi and Sayed Qureshi had instigated them to commit murder of Dara Singh. The above facts prove that F.I.R. (Exhibit P-15) lodged by Ram Singh Gurjar (PW-10) is a wholly tainted document and result of afterthought, which has been prepared after great deliberations and has been introduced with the object of falsely implicating the accused-appellant and no reliance should be placed on the same. 6. It is argued that FIR in the present case was hit by Section 162 Cr.P.C. as it was recorded much after the investigation commenced and Investigating Officer had already left to search for the accused. 6. It is argued that FIR in the present case was hit by Section 162 Cr.P.C. as it was recorded much after the investigation commenced and Investigating Officer had already left to search for the accused. Rakesh Pal (PW-26) had started investigation of the case after recording report (Ex.P-3) in the Rojnamcha of the Police Station of the offence under section 302 IPC, and on reaching the spot proceeded to arrest the accused persons and the alleged F.I.R., Ex.P-15 was delivered to Pranvir Singh (PW-34) by Ram Singh Gurjar (PW-10) in the Hospital at 5.05 PM and the same is inadmissible in evidence under section 162 Cr.P.C. as Pranvir Singh (PW-34) admits that he had prepared the panchnama and sent the body for postmortem and seized the clothes of the deceased and delivered the dead body to the relatives of the deceased before registering the Case No. 229/08 under section 147, 148, 302 IPC, on the basis of written report (Ex.P-15) and the investigation of the case is highly tainted one and the conviction of the accused-appellant on the basis of the same is wholly illegal. Learned trial court has erred in holding that from Exhibit D-8, the occurrence is not only proved to have taken place at 2.30 PM on 19.07.2008, but from the statements of Rakesh Nama (PW-3) and Ram Singh Gurjar (PW-10) it is not corroborated. Therefore, the judgment of the learned trial court is wholly illegal. Conduct of Rakesh Nama (PW-3) and Ram Singh Gurjar (PW-10) has been highly abnormal at the time of the alleged occurrence and no reliance can be placed on their testimony. According to the prosecution case itself, F.I.R. (Ex.P-15) is a false document as in addition to the accused-appellant, Aslam and Wahid Qureshi were also named in the same as those present among 7 or 8 assailants of deceased Dara Singh, who were alleged to be hiding behind the bushes and were armed with knives/revolver/desi katta, but their names have been dropped from the array of the accused by the investigating agency as their implication has been found to be false and no reliance can be placed on the prosecution story. 7. 7. It is argued that learned trial court has erred in believing the testimony of Ram Singh Gurjar (PW-10) regarding his disclosing the name and presence of the accused-appellant on the scene of occurrence as he also belongs to town Keshav Rai Patan and in further holding that the said testimony was corroborated by the evidence of Ramlal Gurjar (PW-17) and Devlal Gurjar (PW-23), who had deposed about the accused-appellant Mohammed Akram having planned on his shop with co-accused Pallu @ Parvez and Ajimuddin and others nearly one or one and a half month before to do away with deceased Dara Singh when he would be going towards Kota, and the judgment of the learned trial court is wholly illegal. Evidence of Ramlal Gurjar (PW-17) and Devlal Gurjar (PW-23) about their having heard the accused-appellant Mohammed Akarm and co-accused Pallu @ Parvez and Ajimuddin planning on the shop of the accused-appellant Akram Kabadi to murder deceased Dara Singh, nearly one or one and a half month before, is on the face of it concocted as the said fact was not disclosed by the witnesses before anybody during the long period of one or one and a half month and it is highly improbable that a conspiracy to murder will be hatched at an open place and in the hearing of strangers, who had no reason to go to the shop at that time and no reliance should have been placed on the same. 8. If the accused-appellant Mohammed Akram had the motive to murder Dara Singh, there was no reason for his standing behind the bushes, while the other co-accused Pallu @ Parvez, Ajimuddin and Shakeel were assaulting him with pistol and knives. Testimony of Ram Singh Gurjar (PW-10) about presence of the accused-appellants at the time of the alleged occurrence behind the bushes, is wholly false and concocted. Learned trial court has wrongly taken presence of the accused appellant on the scene of occurrence as proved on the basis that the name of the accused-appellant is mentioned in F.I.R. (Ex.P-15), lodged on the day of occurrence. Fact about the accused-appellant being present on the scene of occurrence was disclosed by Ram Singh Gurjar (PW-10). Ram Singh Gurjar (PW-10) stated in his evidence that the accused-appellant was standing behind the bushes. Fact about the accused-appellant being present on the scene of occurrence was disclosed by Ram Singh Gurjar (PW-10). Ram Singh Gurjar (PW-10) stated in his evidence that the accused-appellant was standing behind the bushes. It is argued that the above circumstances are neither singly nor collectively sufficient to prove involvement of the accused-appellant Mohammed Akram in the murder of deceased Dara Singh especially when there is no evidence on the record of the case to prove as to when and how did the accused-appellant Mohammed Akram escape from the scene of occurrence. Entire prosecution case against the appellant is a concocted one. Learned trial court has wrongly held that Nand Lal (PW-5) and Brij Mohan (PW-6) were present on the place of occurrence at the time of the alleged incident and has wrongly believed their evidence although their presence has not been disclosed even in F.I.R. (Ex.P-15). The fact that the accused-appellant was seen coming out of the bushes at the time of the alleged incident has not been corroborated by Nandlal (PW-5) and Brij Mohan (PW-6). No reliance should have been placed on the testimony of Rakesh Nama (PW-3) and Ram Singh Gurjar (PW-10), who are highly partisan and interested witnesses. There is no basis for the finding of the learned trial court that the accused-appellant was present on the scene of occurrence with co-accused Ajimuddin, Pallu @ Parvez and Shakeel. Learned trial court has given a positive finding on Page 37, of its judgment that it were co-accused Ajimuddin, Pallu @ Parvez and Shakeel, who had inflicted injuries on the person of deceased Dara Singh, with revolver and knives and ran away on Motor Cycle towards Nanta. The accused appellant was neither present with them on the place of occurrence, nor did any witness depose about the appellant that he was seen going away from there. But the learned trial court has illegally convicted the accused-appellant Mohammed Akram for offences under section 148 and 302 read with 149 IPC. Neither any overt act has been attributed to the appellant during the course of beating of deceased Dara Singh, by co-accused Ajimuddin, Pallu @ Parvez and Shakeel, nor was it alleged that the appellant possessed any specific weapon, much less a deadly weapon. No case under section 148 and 302 read with section 149 IPC, is therefore made out against the appellant. No case under section 148 and 302 read with section 149 IPC, is therefore made out against the appellant. Learned trial court has erred in believing the testimony of Mukut Bihari (PW-20) and Mahavir (PW-18) on one ground and Ramlal (PW-17) and Devlal (PW-23) on another ground in holding that they had heard the accused talking about their quarrel with deceased Dara Singh and in treating the said evidence, as the evidence of motive of the accused to kill Dara Singh. Thus, the judgment of the learned trial court is wholly illegal. 9. Learned counsel alleged that the absence of accused-appellant on the scene of occurrence has been proved by the testimony of Madanlal (DW-1) and Harun (DW-2) that on the date of occurrence, the accused-appellant was present on his shop throughout the day and the implication of the accused appellant in the above case is wholly false one. Prosecution has come with a positive case in the F.I.R. (Ex.P-15) that 7 or 8 persons armed with knives and desi kattas had participated in the occurrence out of those persons the investigating agency had found the implication of Aslam and Wahid, who had been named in the F.I.R. as false and as such no charge sheet had been filed against them. The case against other two accused namely Hatim Qureshi and Sayed Qureshi has not been found to be proved by the trial court and as such the remaining four accused cannot be taken to be members of unlawful assembly. The conviction of the accused-appellant and co-accused Ajimuddin, Pallu @ Parvez and Shakeel danger under sections 148 and 302 read with 149 IPC, is not sustainable. But the learned trial court has arbitrarily convicted the appellant for the said offence and the judgment of the learned trial court is liable to be set aside. Learned counsel for the accused-appellant therefore prayed that appellant Mohammed Akram be acquitted of the charges framed against him. 10. Mr. Abdul Rahim Khan, learned counsel appearing on behalf of accused-appellants Pallu @ Parvez, Ajimuddin and Shakeel in Appeal No. 261/2012 argued that findings arrived at by the learned trial court and conviction as well as sentence passed against the accused-appellants is patently illegal and perverse to the facts on the record. 10. Mr. Abdul Rahim Khan, learned counsel appearing on behalf of accused-appellants Pallu @ Parvez, Ajimuddin and Shakeel in Appeal No. 261/2012 argued that findings arrived at by the learned trial court and conviction as well as sentence passed against the accused-appellants is patently illegal and perverse to the facts on the record. The trial court has failed to consider that while appreciating evidence in a criminal case, the court should keep in view the two cardinal principles; (i) the guilt of the accused must be proved beyond reasonable doubt and (ii) the burden on the accused is not so heavy to prove the plea taken by him as it lays on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of probability in favour of the plea taken by him. It is argued that FIR was lodged by brother of the deceased Dara Singh wherein he referred names of Aslam Kabadi, Akram and Wahid Khan whereas allegations were leveled that in all there were 7-8 persons as assailant meaning thereby appellants were admittedly not named in the FIR and they have been later on implicated in the case on account of information by co-accused, which cannot be read against the appellants. This aspect of the case has not been adjudicated in proper perspective by the learned trial court. It is apparent from the conclusion of Investigation Officer that the information with regard to crime was transmitted to the Station House Officer by some unidentified person, despite that FIR was lodged after about 6 hours delay. It is apparent from the investigation as well as the statements of prosecution witnesses that the cause of delay was to create eye witness to the incident since as per the FIR, complainant along with other person was riding on the motor cycle just 40-50 fts away from the motor cycle of deceased Dara Singh, even then he did not intervene in the scuffle/incident and did not tried to protect his own brother. This very aspect is unnatural and indigestible to any prudent mind of this earth. This very aspect is unnatural and indigestible to any prudent mind of this earth. Further the learned court below miserably failed to appreciate the issue which goes to the root of case and is apparently vital for the case of prosecution, particularly on the count that the delay in lodging FIR has not been reasonably explained by the witnesses of investigating team as well as by the other so called eye witnesses. 11. Learned counsel further argued that statements of Ram Singh Gurjar (PW-10) and Rakesh Kumar Nama (PW-3) have been recorded with inordinate delay which creates justifiable suspicion as to whether they were actual eye witness to the incident or has been created afterthought. Recording of statement under Section 161 Cr.P.C. after such delay has not been explained by the investigating officer, who appeared before the learned trial court which further creates doubt about culpability of appellants. More over their presence at the time of occurrence being doubtful. It is further argued that identification parade conducted by the investigating agency cannot stand to hold conviction since the appellants were behind the bars in some other offence and they have been brought on production warrant for identification, prior to which their photographs were published in the newspaper. Hence such identification parade cannot be taken as limb to rest the conviction, more particularly when all the witnesses have been cross examined on this aspect and their evidence has been substantially shuttered. On this count also, the judgment passed by the trial court deserves to be quashed and set aside. Learned counsel argued that recoveries of weapon and articles are also seriously doubtful since the site from where recoveries have been shown were not under the possession of the appellants. More over, there is overwriting on the recovery memo/wallet which further creates doubt on the recovery. Pistol recovered at the behest of Ajimuddin was not in working condition and hence cannot be deemed as the weapon used in the crime in question. Learned trial court even failed to appreciate the role of investigating officer, who was specifically questioned in the cross examination. Bare perusal of his cross examination would go to show that the conduct of I.O. was highly suspicious, which renders the investigation doubtful. Resultantly, the conviction based on the trial conducted upon such investigation deserves serious interference by this Court. Learned trial court even failed to appreciate the role of investigating officer, who was specifically questioned in the cross examination. Bare perusal of his cross examination would go to show that the conduct of I.O. was highly suspicious, which renders the investigation doubtful. Resultantly, the conviction based on the trial conducted upon such investigation deserves serious interference by this Court. Ingredients of common object under Section 149 IPC were neither available in the outcome of investigation nor adequately substantiated by evidence before the learned trial court, hence the conviction for section 302 read with section 149 IPC is wholly perverse and not legally sustainable. 12. It is further argued that Dr. Vishwa Deepak (PW-1), Medical Jurist, who conducted postmortem specifically admits in the cross examination that duration of death could be 7 to 10 hours even though it has been noted on PMR as 12 hours. More over injury no. 4 and 5 are alleged have been caused by firearm were not having blackening on the entrance. Dr. Vishwa Deepak admitted that he could not give any opinion with regard to distance from which fire was shot. In view of statements of so called eye witnesses Ram Singh Gurjar and Rakesh Kumar Nama that the injuries were inflicted by short distance stands falsified. In these circumstances also appeal deserves to be accepted and the impugned judgment of conviction deserves to be set aside. The eye witness Rakesh Kumar Nama (PW-3) admitted, in a criminal case relating to communal riots, he was an accused along with deceased Dara Singh. It was also admitted by the witness that brother of deceased Dara Singh was a practicing advocate. Further he stated that complainant Ram Singh was his close friends since childhood, meaning thereby that if the statement of PW-3, is taken in totality, it would be revealed that he had wrongly been projected as eye witness. No conviction can rest on such evidence. The medical evidence available on record is not at all corroborative to the statement deposed by so called eyewitness, which renders the judgment of conviction as illegal and the same is liable to be set aside. Delay in lodging of the FIR has not been considered in true perspective, which further calls for interference by this Court. The medical evidence available on record is not at all corroborative to the statement deposed by so called eyewitness, which renders the judgment of conviction as illegal and the same is liable to be set aside. Delay in lodging of the FIR has not been considered in true perspective, which further calls for interference by this Court. In the given circumstances and on the face of material available on the record, ingredient of the offence under section 302 IPC are not substantiated. The learned trial court not made proper appreciation of the plea taken by the accused appellants as well as witnesses produced by them in their defence. Thus the sentence awarded by the trial court is very much excessive looking to the facts and circumstances of the present case. It is, therefore, prayed that appeal filed by accused-appellants Pallu @ Parvez, Ajimuddin and Shakeel be also allowed and they be acquitted of the charges framed against them. 13. Mr. R.S. Raghav, learned Public Prosecutor and Mr. Praveen Jain, learned counsel for the complainant opposed the appeals filed by the accused-appellants and submitted that accused-appellants have rightly been convicted for the alleged offences. The trial court was perfectly justified in convicting them because charges against them were substantiated by ocular as well as documentary evidence. It is argued that apart from Ram Singh Gurjar (PW-10) and Rakesh Nama (PW-3), who were going to Nanta Village with the deceased on another motor cycle, Nand Lal (PW-5), Brij Mohan (PW-6) are also other eye witnesses. Learned Public Prosecutor, as also learned counsel for the complainant has taken the Court through statements of these witnesses and also referred to statements of Ram Lal (PW-17), Mahaveer (PW-18), Mukut Bihari (PW-20) and Hari Singh (PW-21). It is contended that pistol with cartridges was recovered at the instance of Ajimuddin and knife was recovered at the instance of Pallu @ Parvez vide Exhibit P-32. Pulsar motor cycle without registration number on which the accused ran away was recovered at the instance of Pallu @ Parvez vide Exhibit P-33. Mobile handset of Nokia belonging to the deceased with mobile chip was recovered at the instance of Pallu @ Parvez vide Exhibit P-43. Another knife was recovered at the instance of accused Shakeel vide Exhibit P-47. Pulsar motor cycle without registration number on which the accused ran away was recovered at the instance of Pallu @ Parvez vide Exhibit P-33. Mobile handset of Nokia belonging to the deceased with mobile chip was recovered at the instance of Pallu @ Parvez vide Exhibit P-43. Another knife was recovered at the instance of accused Shakeel vide Exhibit P-47. Learned Public Prosecutor as also learned counsel for the complainant referred to the post mortem report (Exhibit P-1), which has been proved by Dr. Vishvdeepak (PW-1) and argued that role of the accused is fully substantiated by number and nature of injuries because apart from three abrasions, deceased sustained four stabbed wound and one incised wound and also two fire arm injuries. In the test identification parade conducted in the jail, all the three accused namely Pallu @ Parvez, Ajimuddin and Shakeel were identified by Rakesh Nama (PW-3) and Nand Lal (PW-5). Accused Ajimuddin was identified vide Exhibit P-4; Pallu @ Parvez was identified vide Exhibit P-5 and accused Shakeel was identified vide Exhibit P-6. Dinesh Nagori (PW-35), Judicial Magistrate has proved aforesaid test identification memos. 14. Mr. Praveen Jain, learned counsel for the complainant argued that the trial court was not justified in acquitting accused Hatim Qureshi and Sayed Qureshi because their participation in the crime is fully proved by evidence adduced by the prosecution. The trial court failed to appreciate that it was an organised crime. Dara Singh was star witness in the case against accused-respondents who are habitual offenders. This fact is mentioned in the charge sheet itself. They committed murder of Dara Singh in a pre planned manner. Motive of the accused in committing murder of Dara Singh is fully substantiated by testimony of Ram Lal (PW-17); Mahaveer (PW-18) and Mukut Bihari (PW-20). Investigating Officer has proved all the stages of the investigation and various memos not only against those who have been convicted, but also against two accused Hatim Qureshi and Sayed Qureshi, who have been acquitted. Impugned judgment to the extent of their acquittal is liable to be set aside and they are also liable to be convicted. 15. We have given anxious consideration to rival submissions and perused the material on record as also record of the case. 16. Impugned judgment to the extent of their acquittal is liable to be set aside and they are also liable to be convicted. 15. We have given anxious consideration to rival submissions and perused the material on record as also record of the case. 16. As per the first version that is emerging from the written report (Exhibit P-15) submitted by Ram Singh Gurjar (PW-10), brother of the deceased, he was accompanied by Rakesh Nama (PW-3). It was stated by him in the written report that his elder brother Dara Singh was going on another motor cycle 40-50 feet ahead of him. Seven accused suddenly emerged from behind the bushes and attacked him by, opening fire and knives. Motorcycle of Dara Singh skidded and he fell on the ground. According to Ram Singh (PW-10), he stopped his motor cycle at some distance and witnessed the incident from there. The accused inflicted repeated knife blows on the deceased and when Dara Singh lost his conscious, they ran away from there on motor cycle. Here the informant has named Akram, Aslam and Abdul Wahid, but not attributed any overt act to them, although stated that apart from that, he already knew them from before and could identify his 4-5 companions, if produced before him. It was alleged that accused were armed with knives and revolver/ country made pistol. Ram Singh Gurjar (PW-10) when appeared in the Court, in his initial part of statement, maintained somewhat same version, but then he further stated that when Dara Singh tried to flee from them, a young boy of wheatish colour and another young boy of blackish colour caught hold of him and started inflicting knife blows. Then boy with blackish colour, thereafter, this witness, corrected themselves by saying that boy with wheatish colour, who had red hairs, sat on the motor cycle and started the same. Then, another boy of blackish colour opened fire in the chest of his brother Dara Singh. While fleeing from there, they took away mobile of his brother wherein sim card of his number 9829183260 was inserted. This witness (Ram Singh Gurjar) and Rakesh Nama (PW-3) watched the entire incident by concealing themselves behind the bushes about 40-45 feet away. Then this witness stated that actually assailants were only three in number and their other companion were also standing in the bushes and they were Akram, Aslam, Abdul Wahid Khunta. This witness (Ram Singh Gurjar) and Rakesh Nama (PW-3) watched the entire incident by concealing themselves behind the bushes about 40-45 feet away. Then this witness stated that actually assailants were only three in number and their other companion were also standing in the bushes and they were Akram, Aslam, Abdul Wahid Khunta. All three were residents of village Keshoraipatan and were known to him. In cross-examination, this witness has stated that after some time, Nand Lal (PW-5) and Brij Mohan (PW-6), who are residents of their village, also came there and told that they have seen three accused fleeing from there on motor cycle of Pulsar make. He stated that he was called in Central Jail, where he correctly identified the accused. Memos of identification parade are Exhibits P-7, P-8 and P-9. This witness in the Court correctly identified accused Ajimuddin as the one who opened fire on his brother Dara Singh; Pallu @ Parvez and Shakeel, who inflicted knife blows. He stated that Mohammed Akram, fourth accused was the one who was watching the incident at some distance from behind the bushes. In further cross-examination, he stated that the place where the incident took place is having bushes on both sides and the accused emerged out of the bushes on the road side. There were only three assailants and others did not actually participate in the incident. He did not mention the fact in the written report (Exhibit P-15) that mobile phone and sim card of his brother were taken away by the accused and could not explain reason thereof. He also did not mention the fact in the written report (Exhibit P-15) about Nand Lal and Brij Mohan coming to them at the place of incident and having stated that they saw three accused fleeing on the motor cycle. He further stated that he himself did not inform at his home about the incident, but rather sent Nand Lal and Brij Mohan to his house for information. He denied knowledge of the fact that the deceased Dara Singh had 8-10 criminal cases registered against him. 17. Rakesh Kumar Nama (PW-3) is the only eye witness, who apart from informant Ram Singh, has been named as such in the written report (Exhibit P-15). He denied knowledge of the fact that the deceased Dara Singh had 8-10 criminal cases registered against him. 17. Rakesh Kumar Nama (PW-3) is the only eye witness, who apart from informant Ram Singh, has been named as such in the written report (Exhibit P-15). He has stated that he was going with Ram Singh on his motor cycle to village Nanta to meet Chittar Ji Gurjar and following Dara Singh, who was about 40-50 feet away from them. When they reached Nanta crossing, suddenly 7-8 persons intercepted motor cycle of Dara Singh. One person opened fire at him and two persons inflicted injuries on his body by knife. Dara Singh fell on the ground. They, due to fear of their lives, concealed them behind the bushes. When these persons started running from the place of occurrence after the incident, Ram Singh told him that one of them was Aslam, his son Akram and third one was Wahid Khunta. One of the accused while fleeing from the place of incident opened fire on Dara Singh which hit him. Ram Singh and this witness went close to the deceased Dara Singh, who was profusely bleeding. This witness stated that Ram Singh then made a phone call to Chittar Ji. It is around this time that Nand Lal (PW-5) and Brij Mohan (PW-6), who were coming from the direction of their village reached there and they (Rakesh Nama and Ram Singh) told them about the incident which took place with Dara Singh. Nand Lal and Brij Mohan stated that they have seen three persons fleeing on one motor cycle towards village Nanta and could identify them if brought before them. This witness identified Shakeel, who was present in the Court and had inflicted knife blows on Dara Singh. On that day a note was put on his statement by the trial court that two accused were not present in the Court therefore, when his statement resumed, he also identified Pallu @ Parvez and Ajimuddin. He specifically stated that Ajimuddin was the one, who had country made pistol and Pallu @ Parvez had knife. This witness correctly identified them and proved identification parade memos (Exhibit P-4 to Exhibit P-6). In cross-examination, this witness stated that he had seen only three persons participating in the incident and none else. He specifically stated that Ajimuddin was the one, who had country made pistol and Pallu @ Parvez had knife. This witness correctly identified them and proved identification parade memos (Exhibit P-4 to Exhibit P-6). In cross-examination, this witness stated that he had seen only three persons participating in the incident and none else. He had named Aslam and his sons Akram and Wahid Khunta in the examination in chief only at the instance of Ram Singh. Neither he saw these persons at the place of occurrence, nor he knew them. However, it was correct that he could not see any other person who had hidden himself behind the bushes. He named them only because Ram Singh told him to do so. Ram Singh was his childhood friend. 18. Apart from informant Ram Singh and his companion Rakesh Nama, the prosecution has produced Nand Lal (PW-5) and Brij Mohan (PW-6) as two other eye witnesses, but objection has been raised by the defence that they were not named in the written report and statement of Rakesh Nama (PW-3) amply proves that they reached the place of occurrence after the incident. We have analyzed their statements as well. And it is clear from their statements that they were the ones who claimed to have seen the accused running on motor cycle immediately after the incident towards the Village Nanta. Nand Lal (PW-5) stated that when they were coming on motor cycle and reached near the nala before Naya Kheda, they heard sound of fire. They stopped their motor cycle and saw one person lying on the ground. Two persons were inflicting knife blows on him and one person was standing by their side holding a country made pistol. One motor cycle was lying on the ground. Another motor cycle was parked there. They watched this incident from distance of about 10-15 steps. These three persons then started the motor cycle. The person, who had katta opened fire on the person lying on the ground and then they fled away. This witness correctly identified the accused in test identification parade. Memos of identification are Exhibit P-4 to Exhibit P-6 which bear signatures of this witness. He identified Pallu @ Parvez, Shakeel and Ajimuddin in the dock also and stated that Ajimuddin was the one, who had katta. This witness correctly identified the accused in test identification parade. Memos of identification are Exhibit P-4 to Exhibit P-6 which bear signatures of this witness. He identified Pallu @ Parvez, Shakeel and Ajimuddin in the dock also and stated that Ajimuddin was the one, who had katta. In cross-examination, he further stated that when they reached the place of occurrence, Ram Singh and Rakesh Nama were sitting there by the side of Dara Singh. Dead body of Dara Singh was lying on the ground. He did not see assailants attacking Dara Singh. There was blood all around the place where the body of Dara Singh was lying. This witness further stated in the cross-examination that after the death of Dara Singh till 22.07.2008 when his statement was recorded by the police, he did not disclose to anybody about having witnessed the incident. 19. Brij Mohan (PW-6) is another witness, who has been produced by the prosecution as eye witness. He has stated that he and Nand Lal were coming from Nanta Village on the motor cycle through Naya Kheda Road. Immediately before Nala of the river, they heard sound of fire and stopped their motor cycle. They saw that one person was lying on the ground and two persons were inflicting knife blows on his body. Third person, who was having revolver in his hand, was standing by the side of motor cycle. They stopped at some distance due to fear of their lives. Two persons sat on the motor cycle and third person who had revolver opened fire at the person who was lying on the ground. Then all three fled away from there. This witness stated that he correctly identified accused in jail vide Exhibit P-7 to Exhibit P-9. In cross-examination, this witness admitted that no other person came out of the bushes. He did not see any person coming out of the bushes, thus, he ruled out presence of Mohammed Akram. In cross-examination he further stated that police had noted down their names and addresses at the very place where Dara Singh was murdered. He did not inform the police in the hospital that he was eye witness of the incident because he already told them so at the place of occurrence. 20. In cross-examination he further stated that police had noted down their names and addresses at the very place where Dara Singh was murdered. He did not inform the police in the hospital that he was eye witness of the incident because he already told them so at the place of occurrence. 20. Ram Lal (PW-17) has stated that when he along with Dev Lal (PW-23) went to the shop of Akram Kabadi, he started complaining that Dara Singh had caused immense loss to him and was proving terror to everyone. He stated that they would take revenge from him. Mahaveer (PW-18) has also stated that about 1½ months ago prior to incident, he along with Mukut went to the shop of Dinesh Lakhara for having tea. They saw Hatim, Shahid, Ajimuddin and Pallu sitting there. They heard Hatim and Shahid telling Pallu and Ajimuddin that latter should pick up a fight with someone for their sake. Pallu then stated that who would pay the money. Upon this Hatim assured to them that they should not bother for the money and Shahid also gave similar assurance. This witness then stated that they wetted them to pick up quarrel with Dara Singh. Mukut Bihari (PW-20) has also given similar statement that he accompanied Mahaveer and heard conversation of Ajimuddin, Pallu @ Parvez. Though this witness was declared hostile because he did not name Hatim Qureshi and Sayed Qureshi and resiled from his police statement (Exhibit P-23). Dev Lal (PW-23) has also made similar statement to Ram Lal (PW-17) by stating that he accompanied him to the shop of Akram Kabadi to buy a motor. When they were returning back, Ram Lal (PW-17) informed him that the person sitting in the shop was planning to murder Dara Singh. Even this witness was declared hostile by the prosecution because he resiled from this statement given to the police (Exhibit P-28) wherein he specifically named every person mentioned by Ram Lal (PW-17). 21. Dinesh Nagori (PW-35), Judicial Magistrate has proved the memos of identification parade (Exhibit P-4 to Exhibit P-9) and stated that Ajimuddin and Pallu @ Parvez were correctly identified by Nand Lal (PW-5), Rakesh Nama (PW-3), Ram Singh (PW-10) and Brij Mohan (PW-6). Shakeel was also correctly identified by Ram Singh (PW-10), Nand Lal (PW-5) and Rakesh Nama (PW-3) and Brij Mohan (PW-6). 22. Shakeel was also correctly identified by Ram Singh (PW-10), Nand Lal (PW-5) and Rakesh Nama (PW-3) and Brij Mohan (PW-6). 22. Rakesh Pal (PW-26), Investigating Officer has proved all the stages of the investigation and various memos of recoveries. He has stated that on 19.07.2008, he received an information about the incident and reached the place of occurrence where lot of people had assembled. Ram Singh (PW-10) informed him that 7-8 persons had murdered his brother Dara Singh whose body was lying there. He got information from his source of information that three persons after committing murder had escaped on a black pulsar motor cycle without registration number towards Dabi. He moved in that direction for search of those persons and returned back around 7.00 P.M. His source of information further revealed that murder has been committed by Ajimuddin, Pallu @ Parvez and Shakeel Danger because deceased Dara Singh had subjected Vijendra Champion to beating, who is friend of the accused. He had also slapped Pallu. Accused wanted to take revenge from him. Intensive search was launched for tracing out the accused. At about 4.00 - 4.30 P.M. information was received that accused might pass through that way. Police barricading made on road at Deoli. At the time, at Thakaria Road Colony, Indrapura at Deoli, two boys were seen coming on black pulsar motor cycle, which was without registration number. When they were given indication to stop, they tried to run away. In the process, they hit the motor cycle with police jeep and fell on the ground. One of them was Ajimuddin and another was Pallu. Country made pistol with three live cartridges were recovered from right side pocket of the pant of accused Ajimuddin. Knife was recovered from right side pocket of Pallu at his instance. Nokia mobile phone No. 9352646645 was recovered at the instance of Ajimuddin. Another Nokia phone was recovered from the possession of Pallu. Investigation revealed that third accused, who accompanied Ajimuddin and Pallu was Shakeel Danger on 01.08.2008 and at his instance, knife was recovered from his room on 09.08.2008. His shoes were also recovered which had blood stains. In cross-examination, investigating officer stated that his investigation revealed that Hatim Qureshi, Sayed Qureshi and Akram had instigated Pallu @ Parvez and Ajimuddin for committing murder of Dara Singh. 23. His shoes were also recovered which had blood stains. In cross-examination, investigating officer stated that his investigation revealed that Hatim Qureshi, Sayed Qureshi and Akram had instigated Pallu @ Parvez and Ajimuddin for committing murder of Dara Singh. 23. We have already gone through the statements of four eye witnesses and do not find any one of them having named Hatim Qureshi, Sayed Kureshi, though some of them have named Mohammed Akram, but shown his presence without active role. Statement of investigating officer in this behalf is, therefore, factually incorrect. Knife was recovered at the instance of Shakeel vide Exhibit P-47 which was placed in packet marked H and numbered as Article No. 12 and as per FSL Report (Exhibit P-56), the same was found to contain human blood. One pair of shoe was recovered at his instance (Exhibit P-47) and placed in packet I and numbered as Article No. 13 and the same was also found to contain human blood of B Group. Shirt (bushet) and vest (baniyan) of the deceased were placed in packets marked as A and B respectively and numbered as Articles 1 and 2 respectively, which were also found to contain human blood of B Group. Pant (Jeans) with leather belt, T-shirt and a pair of shoes recovered at the instance of Pallu @ Parvez (Exhibit P-58B) were placed in packet marked as B and numbered as 9, 10 and 11 respectively and as per FSL Report (Exhibit P-56), pant (jeans) with leather belt was found to contain human blood of B Group but no blood was found on T-shirt but however human blood was found on the pair of shoe. T-shirt, Pant (Jeans) with leather belt and a pair of shoe were recovered at the instance of accused Ajimuddin vide Exhibit P-59 and they were placed in packet marked A and numbered as 6, 7 and 8. While T-shirt was found negative for presence of human blood, pant (jeans) with leather belt was found containing human blood of B Group and pair of shoe was found to contain human blood. Knife (chaku) recovered at the instance of Pallu @ Parvez was placed in packet E and numbered as Article 5 which too was found to contain human blood. Knife (chaku) recovered at the instance of Pallu @ Parvez was placed in packet E and numbered as Article 5 which too was found to contain human blood. FSL Report dated 04.06.2010 indicates that one metallic foreign body was placed in Packet A (M.O.), which was found positive for the presence of human blood, but blood group could not be ascertained. Further, FSL Report dated 25.06.2010 indicated that one 7.65 mm copper jacketted bullet (placed in packet 'A' and marked as 'B/1') was fired from semi auto country made pistol (placed in packet 'A' (I.O.) and marked as 'W/1'). 24. Merely because the police swung into action after receiving telephonic information at 2.30 P.M. on 19.07.2008 but the formal FIR was lodged slightly late on receiving written report from brother of the deceased at 8.00 P.M. on that very day in the hospital cannot be a reason to hold that entire investigation by the police is tainted and was hit by Section 162 Cr.P.C. Defence has sought to support this argument by referring to part statement of Rakesh Pal (PW-26), Investigating Officer, wherein he stated that upon knowing that the accused had gone towards village Dabi on an unnumbered motor cycle, he went after them, but could not find them and returned back in the evening at 7.00 P.M. and then steps were taken to remove the dead body to the hospital. In this process, some time was consumed and therefore, if the written report submitted by Ram Singh was somewhat delayed that does not in any manner adversely impact upon the fairness of police investigation. Nature of injuries, weapons and the corroboration received from the FSL Reports links the accused-appellants Pallu @ Parvez, Ajimuddin and Shakeel with the crime, but at the same time, role of accused-appellant Mohammed Akram is not proved beyond reasonable doubt because none of the witnesses have attributed any overt act to him inasmuch as no recovery of any sort has been made at his instance. Investigating Officer Rakesh Pal (PW-26) has not been able to point out exact role of Mohammed Akram. Investigating Officer Rakesh Pal (PW-26) has not been able to point out exact role of Mohammed Akram. In fact, case of the accused Mohammed Akram cannot be distinguished from Hatim Qureshi and Aslam and Wahid Khunta as they were named in the written report by Ram Singh, who in his court statement himself stated they saw the incident from some distance by concealing themselves behind the bushes and that active role was played by only three accused namely Pallu @ Parvez, Ajimuddin and Shakeel. 25. No doubt defence has attacked credibility of Nand Lal (PW-5) and Brij Mohan (PW-6) by stating that they were not named as eye witness in the written report, which was registered at least five hours after the incident. Had they been present there at the place of incident at that time, they would have certainly been named by the informant as eye witnesses. Defence has also sought to rely on the statement of Rakesh Nama (PW-3) in this behalf, who has categorically stated that he had seen only three persons inflicting injuries to the deceased but he named Aslam, Akram and Wahid in the examination in chief only at the instance of Ram Singh. Neither he saw these persons at the place of incident nor did he know them. Then this witness also stated that when he (Rakesh Nama) and Ram Singh reached near the body of Dara Singh, which was lying on the ground, during that period Nand Lal (PW-5) and Brij Mohan (PW-6) came there and they told them about the entire incident, which happened with Dara Singh. It is thereupon that these persons (Nand Lal and Brij Mohan) told them that they had seen three accused fleeing on unnumbered motor cycle towards Village Nanta. Ram Singh also in his statement before the Court has somewhat waivered about actual role of Mohammed Akram and merely stated that he saw him sitting behind the bushes and did not attribute any active role to him. But at the same time, this witness (Ram Singh) also admitted in his cross-examination that when he (Ram Singh) and Rakesh Nama were sitting by the side of dead body of Dara Singh and were crying, Nand Lal (PW-5) and Brij Mohan (PW-6) came there after sometime and told that they had seen three persons fleeing on a pulsar motor cycle from the place of incident. Obviously, therefore, these two witnesses, Nand Lal (PW-5) and Brij Mohan (PW-6) can be taken as witnesses to the extent that they saw three principal assailants fleeing from the place of incident on the motor cycle and on that basis they can also be accepted. Therefore, their testimony and identification to that extent can also be accepted. But in so far as Mohammed Akram is concerned their version claiming to be eye witnesses in the examination in chief and role of individual accused has to be discarded and cannot be believed. 26. Though, the defence has taken plea of alibi. Mohammed Akram has produced Madan Lal (DW-1), Harun (DW-2) and Om Prakash (DW-3) to prove his plea of alibi. We need not go into statements of these witnesses because we have otherwise not found the charges against the accused Mohammed Akram proved beyond reasonable doubt. Idrish (DW-4) father of accused Shakeel has appeared in defence to prove plea of alibi on behalf of his son. Accused-appellants Shakeel, Ajimuddin and Pallu @ Parvez themselves also appeared as DW-5, DW-6 and DW-7 respectively. Plea of alibi of the accused-appellants cannot be held to have been proved. Each one of them claimed to be present elsewhere and also alleged that they were falsely implicated in a criminal case and their photographs were taken while they were in police custody and were shown to 3-4 persons. Thereafter, their test identification parade was tainted one. Their stand appears to be that they were shown to the witnesses before their identification parade was conducted in jail, but in view of overwhelming nature of evidence against these accused-appellants namely Pallu @ Parvez, Ajimmuddin and Shakeel, this Court is not inclined to discard not only other evidence, but also evidence of identification of these accused by witnesses. In view of what has been discussed above, we are however inclined to uphold acquittal of accused-respondents Hatim Qureshi and Sayed Quresh. 27. In the result, Appeal No. 165/2012 filed by accused-appellant Mohammed Akram is allowed. Impugned judgment passed by the trial court qua accused-appellant Mohammed Akram is set aside, he is acquitted of the charges under Section 302 read with Section 149 IPC and Section 148 IPC. He is in jail and be set at liberty forthwith, if not required to be detained in any other case. Impugned judgment passed by the trial court qua accused-appellant Mohammed Akram is set aside, he is acquitted of the charges under Section 302 read with Section 149 IPC and Section 148 IPC. He is in jail and be set at liberty forthwith, if not required to be detained in any other case. Appeal No. 261/2012 filed by the accused-appellants Pallu @ Parvez, Ajimuddin and Shakeel is partly allowed. Their conviction and sentence for offence under Section 302 read with Section 149 IPC is altered into one under Section 302 read with Section 34 IPC. However, their conviction and sentence for offence under Section 148 IPC is set aside. Appeal No. 260/2012 filed by the complainant-appellant Ram Singh is dismissed. 28. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Mohammed Akram is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgment or on grant of leave, he, on receipt of notice thereof, shall appear before the Supreme Court. Office is directed to place a copy of this judgment on record of each connected appeal. Appeal No. 165/2012 allowed, Appeal No. 261/2012 partly allowed and Appeal No. 260/2012 dismissed.