JUDGMENT : (Delivered by Hon. Bharat Bhushan, J.) 1. Appellants have assailed the judgment and order dated 22.1.1983 passed by the then IInd Additional Sessions Judge, Hamirpur in Sessions Trial No 82 of 1981 (State Vs. Girja and others) arising out of Crime No.189 of 1980, under Sections 302 read with Section 149, 148 and 147 of Indian Penal Code (in short I.P.C.), P.S. Rath, District Hamirpur whereby seven accused/appellants, viz. Girja, Sarua, Ram Sanehi, Raghunath, late Bhoora, Ram Swaroop and Brijbhan were convicted and sentenced to undergo life imprisonment for the offence punishable under Section 302 IPC read with Section 149 IPC. Accused/appellants Girja, Sarua, Ram Sanehi and Raghunath were further convicted and sentenced to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 148 IPC and appellants late Bhoora, Ram Swaroop and Brijbhan were sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 147 IPC. All the sentences were directed to run concurrently. 2. During pendency of this appeal, appellant Bhoora died, hence, appeal filed on his behalf stands abated vide order dated 09.10.2009. This Court is now concerned only with the appeal of remaining appellants, namely, Girja, Sarua, Ram Sanehi, Raghunath, Ram Swaroop and Brijbhan. 3. Prosecution story in brief is that on 20.10.1980 around 8 am. Nathuram informant (P.W.1), Shanti (P.W. 2), Ram Kripal (P.W.3) and Smt. Sita Rani had gathered at their Gurwahi Bakhari (cattle shed) for tending their cattle. Site plan(Ex. Ka-9) indicates that a part of northern side of this Bakhari (cattle shed) was being used as shop by one Sri Chand, a tenant. Deceased Dhanpat was sitting in the shop of Sri Chand with Sri Chand and one Parmeshwari Dayal. Suddenly accused persons, viz, Girja, Sarua and Ram Sanehi armed with their respective guns and other accused persons, namely, late Bhoora, Ram Swaroop, Brijbhan, Raghunath and three unknown persons armed with spears (Bhala) came over there and fired a shot at Dhanpat. They also challenged Dhanpat. Sarua opened fire upon Dhanpat. Dhanpat managed to escape and ran inside the Bakhri (cattle shed) and tried to climb over the Khaprail (tiles) in the south-eastern corner of the Bakhari. Accused persons chased deceased Dhanpat inside the Bakhari (cattle shed) and again opened fire upon him. 4. They also challenged Dhanpat. Sarua opened fire upon Dhanpat. Dhanpat managed to escape and ran inside the Bakhri (cattle shed) and tried to climb over the Khaprail (tiles) in the south-eastern corner of the Bakhari. Accused persons chased deceased Dhanpat inside the Bakhari (cattle shed) and again opened fire upon him. 4. Prosecution story discloses that three gun men, namely, Girja, Sarua and Ram Sanehi each opened fire upon Dhanpat while he was trying to climb over Khaprail (tiles). Deceased Dhanpat dropped dead on the ground. Accused persons felt the corpse of deceased with the tip of spears and lathies to confirm his death and thereafter they fled from the spot. 5. Prosecution has further stated that informant, Nathuram father of deceased (P.W.1), Shanti, widow of deceased (P.W. 2), Ram Kripal, brother of deceased (P.W. 3) and Smt. Sita Rani, mother of deceased were present inside the Bakhari (cattle shed) while this crime was being committed. They beseeched the assailants to spare the life of Dhanpat but of no avail. 6. P.W. 1 Nathu Ram, informant went to the police station Rath along with Sita Ram, chawkidar at 1:30 pm. He lodged the oral FIR which was recorded as Ex. Ka-1 by Police. Crime was entered into General Diary (G.D.) of Police Station (P.S.) Rath which is available on record as Ex. Ka-3. Investigation was entrusted to Sri Rafat Kamal (P.W. 6). The Investigating Officer (I.O.) immediately reached the place of occurrence with other police personnel. He conducted the inquest proceedings and prepared inquest report (Ex. Ka-4). He also prepared relevant legal documents at the place of occurrence. The cloths of the deceased were also taken into possession. The body of deceased was initially taken to police station Rath and thereafter in the morning i.e. on 23.10.1980 postmortem was conducted by Dr. A.K. Srivastava (P.W. 4). 7. Postmortem report (Ex.Ka-2) found following ante mortem injury on the person of deceased Dhanpat: "(1) Gunshot (would) entry 1.5 cm x 1cm an outer aspect of right forearm 5cm above wrist joint. Clots present. (2) Gun shot exit wound 2cm x 1.5 cm on inner aspect of writs joint. Injury (1) communicating with injury no. (2). clots present. (3) Seven gun shot entry wounds on right buttock 10 cm x 8 cm in area. Clots present. (2) Gun shot exit wound 2cm x 1.5 cm on inner aspect of writs joint. Injury (1) communicating with injury no. (2). clots present. (3) Seven gun shot entry wounds on right buttock 10 cm x 8 cm in area. One largest wound 4.5 cm x 2 cm x skin deep and rest six wounds 1 cm x 1 cm x skin to muscle deep. Clots present. Three pallets found. (4) Gun shot entry (would) 3 cm x 1.5 cm on back aspect of neck on left half lower 1/3. Clots present. Three pellets found. (5) Gun shot exit 1 cm x 5 cm on left side of rack, 5 cm below angle of left lower jaw. Clots present. (6) Abrasion 3 cm x 2 cm on left side of face, 5 cm from outer angle of left eye. On cutting congestion is present. (7) Gun shot entry would 3 cm x 3 cm just above left at. Cup. Iliac spire. Clots present. (8) Two gun shot exit each 1 cm x 1 cm in size present in vertical line, 5 cm x 1 cm in area just above unblicun. Injury (7) communicating with injury no. (8). Clots present. Four pellets palpable, above umbilicus, 10 cm 9 cm in area. All pellets found and sealed. (9) Abrasion 1 cm x 1 cm just above injury no. (7). On cutting congestion is present. On internal examination, the Autopsy Surgeon found that first, second and third ribs of left side chest on front aspect were fractured and left lung was lacerated and congested. The heart was also lacerated and congested. Three pellets and one wad were found in the heart. In the chest cavity two lbs blood with clots was found on left side cavity and on the abdominal cavity ½ lb blood with clots was found. Liver was lacerated and congested and two wads were found seated in the liver. Peritoneum was congested and the large intestines which were partly filled were perforated at two places. Stomach, small intestines and bladder were empty. The three wads and 10 pea size pellets recovered from the body as well as the underwear of the deceased were sealed in a packet and given to the police along with the post mortem report. Peritoneum was congested and the large intestines which were partly filled were perforated at two places. Stomach, small intestines and bladder were empty. The three wads and 10 pea size pellets recovered from the body as well as the underwear of the deceased were sealed in a packet and given to the police along with the post mortem report. In the opinion of the Autopsy Surgeon the death was caused due to shock and hemorrhage as a result o the ante-mortem injuries which were about one day old." 8. I.O., Rafat Kamal also took samples of blood soaked and simple earth and prepared memorandum (Ex. Ka-10). Simultaneously blood stained cloths of deceased were recovered and a memorandum was prepared which is available on record (Ex. Ka-7). 9. The I.O. then recorded the statement of informant Nathu Ram at P.S. Rath itself. However, the statement of Sita Rani (mother of deceased) and Ram Kripal (brother of deceased) were recorded on 24.10.1980 while the statement of Shanti widow of deceased was recorded on 28.10.1980. Initially one accused Brijbhan was arrested. Later on other accused persons also surrendered before Magistrate and thereafter committed to court of sessions. 10. On conclusion of investigation a charge sheet (Ex. Ka-11) under Sections 147, 148, 149, 452, 302 IPC was submitted against seven accused, namely, Girija, Sarua, Ram Sanehi, Raghunath, late Bhoora, Ram Swaroop and Brijbhan. The Trial Judge framed charges against accused persons under Sections 148 and 302 IPC read with Section 149 IPC. Accused persons denied the charges levelled against them and desired to be tried. The statement of accused persons were recorded under Section 313 Cr.P.C. wherein they again denied all allegations and claimed false implication on account of previous enmity. However, they did not adduce any evidence in defence. On conclusion of trial learned Sessions Judge found all the appellants guilty of offence under Sections 302 read with Section 149,148 and 147 IPC and sentenced seven appellants to life imprisonment. Similarly, accused Girja, Sarua, Ram Sanehi and Raghunath were convicted and sentenced to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 148 IPC and appellants late Bhoora, Ram Swaroop and Brijbhan were sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 147 IPC. This judgment is under challenge before this Court. 11. This judgment is under challenge before this Court. 11. Heard Sri Rahul Mishra, learned counsel for appellants and learned A.G.A. Sri Amit Sinha on behalf of State. 12. It is evident that deceased was done to death by murderous attack on him. Postmortem report indicates presence of large number of ante mortem injuries. Doctor has also opined that deceased died on account of ante mortem injuries, therefore, homicidal death of Dhanpat is evident. Who was or were responsible for death of deceased Dhanpat is a question needs to be adjudicated. 13. Learned counsel for appellants has argued that his clients have been falsely implicated in the case; that no independent witness has been produced despite their availability. Prosecution has only produced partisan and interested witnesses against appellants. It is argued that genesis of case is doubtful. He has also submitted that medical report is inconsistent with ocular testimony. Submission is that the presence of stated eye witnesses on the place of occurrence has not been established. There is no evidence on record to demonstrate that informant, father, brother, widow and mother were present on the spot at the time of incident. Learned counsel for appellants has also drawn the attention of this Court towards the significant discrepancies, arguing that these discrepancies render the prosecution evidence untrustworthy. Inquest report does not indicate the kind of papers sent with the report of inquest, again weakening the prosecution case. It is further argued that FIR was ante timed for the simple reason that inquest report does not indicate annexures annexed with it and the fact that while the cadaver of deceased was dispatched from the place of occurrence at 4:50 pm. on 22.10.1980, it reached the mortuary on 23.10.1980. It is argued that provisions of Section 157 Cr.P.C. were violated as FIR reached the court of Magistrate on 27.10.1980. Leaned counsel for appellants has also submitted that description of weapons in the FIR in the hands of assailants are different from that of oral testimony of witnesses. 14. Per contra learned AGA has argued that injuries disclosed by postmortem report are consistent with the basic prosecution story. He has argued that it is inconceivable that the father, mother, brother and widow would spare the real culprits and falsely implicate the appellants. He has submitted that medical report should not be compared with ocular testimony in mechanical manner. 14. Per contra learned AGA has argued that injuries disclosed by postmortem report are consistent with the basic prosecution story. He has argued that it is inconceivable that the father, mother, brother and widow would spare the real culprits and falsely implicate the appellants. He has submitted that medical report should not be compared with ocular testimony in mechanical manner. The fact that no blackening, scorching and tattooing were found on the person of deceased indicates that guns were used with considerable distance. In this connection he has drawn the attention of this court towards the site plan (Ex. Ka-9) which shows that the fire arms were used from the distance of at least 10 paces. 15. A bare perusal of evidence would reveal that prosecution has produced three eye witnesses. All three of them are closely related with Dhanpat deceased. The informant Nathu Ram (P.W. 1) father of deceased, Smt. Shanti, widow of deceased (P.W. 2), Ram Kripal, brother of deceased (P.W.3) have been produced to support the prosecution case. All three witnesses were in close proximity of accused. The presence of eye witnesses on the place of occurrence is not doubtful at all. 16. If we carefully observe the necessities of village life then it would be apparent that the animals are very important and essential part of life of village folks. Gurwahi Bakhari (cattle shed) was essentially the place of occurrence. This Gurwahi Bakhari belonged to deceased and his family. Gurwahi Bakhari (cattle shed) in the village are used for tethering the cattle. The evidence indicates that two bullocks, one cow and a calf were tethered in the cattle shed. In the night cattle sheds are locked from outside. However, the cattle sheds are cleaned in the morning and animals are given fodder. For untethering and feeding the animals of the cattle house, large number of people are required. Therefore, the presence of informant Nathu Ram (father), Ram Kripal (brother), Shanti Devi (wife) and Siya Rani (mother) at Gurwahi Bakhri in the morning was required. The testimony of P.W. 2, Shanti Devi has shown that her father-in-law, Nathu Ram (P.W. 1) was required for untethering the cattle. P.W. 3 Ram Kripal was required for feeding the cattle and two women, namely, Shanti, widow of Dhanpat (P.W. 2) and her mother-in-law Sita Rani were required for cleaning the cattle shed. The testimony of P.W. 2, Shanti Devi has shown that her father-in-law, Nathu Ram (P.W. 1) was required for untethering the cattle. P.W. 3 Ram Kripal was required for feeding the cattle and two women, namely, Shanti, widow of Dhanpat (P.W. 2) and her mother-in-law Sita Rani were required for cleaning the cattle shed. Tending and attending the cattle is a substantial work in which cooperation of large number of family members is necessary. Therefore, the presence of these persons in the Bakhari (cattle shed) right in the morning is not baffling. Fact of the matter is that their absence from Bakhari would have been surprising. Deceased Dhanpat was siting in the shop of Sri Chand for buying betel nuts etc. Site plan (Ex. Ka-9) has disclosed that the shop of Sri Chand was in fact the part of this Bakhari. The topography of this area indicates that north-western portion of this Bakhari was used as shop tenanted by Sri Chand. Between the shop and Bakhari there was one Khiraki (small door) for entering Bakhari. There was another door for entering Bakhari towards western wall of Bakhari. The Bakhari in which the murder of Dhanpat was committed is located in village Paharibir. We believe that the presence of three eye witnesses at the Bakhari (cattle shed) was quite natural, probable and trustworthy. 17. Three eye witnesses of prosecution, viz, P.W.1 Nathu Ram, P.W. 2 Shanti and P.W. 3 Ram Kripal have emphatically testified that they were busy in their respective work in Bakhari (cattle shed). Suddenly, accused persons arrived on the spot and one of the accused Sarua opened fire at Dhanpat. However, deceased Dhanpat managed to escape inside the Bakhari. As accused persons forcibly entered the Bakhari deceased Dhanpat tried to climb upon the Khaprail (tiles) on eastern side of Bakhari to escape into a small lane towards eastern side between the house of Tulsi and Bakhari of Nathu Ram. As deceased Dhanpat was climbing the Khaprail (tiles), the three gunmen out of ten assailants opened fire upon Dhanpat ignoring the entreaties and mercy pleas of family members of Dhanpat. It is evident that all the three eye witnesses were in close proximity of assailants, therefore, there is no question of missing the identities of the known perpetrators of crime. As deceased Dhanpat was climbing the Khaprail (tiles), the three gunmen out of ten assailants opened fire upon Dhanpat ignoring the entreaties and mercy pleas of family members of Dhanpat. It is evident that all the three eye witnesses were in close proximity of assailants, therefore, there is no question of missing the identities of the known perpetrators of crime. As stated earlier, the site plan has indicated that shots were fired by three assailants from the distance of about ten paces. This distance accounts for absence of blackening, scorching and charring upon the person of deceased Dhanpat. 18. The eye witness account of all three witnesses is highly trustworthy, natural and in accordance with normal human conduct. We believe that core of prosecution story is intact in spite of presence of some minor discrepancies. The stated discrepancies in fact merely indicate that witnesses have not been tutored. It must be understood that it is not expected from witnesses to give precise account of the incident. We also do not give any credence to the argument of learned counsel for the appellants that eye witnesses should not be believed because they are close relatives of deceased. We do not believe that the testimony of close relatives can be discarded merely because they are relatives of deceased. Evaluation of testimony of witnesses has to be done on the yardstick of truthfulness. If evidence of close relatives is trustworthy than accused cannot be acquitted merely because prosecution has established its case merely by testimonies of close relatives. 19. Learned counsel for appellants has also argued that independent witnesses were available and yet they were not produced. In this connection, they have taken the names of Sri Chand and Parmeshwari Dayal. Learned counsel for appellants has submitted that despite the presence of Sri Chand, Parmeshwari Dayal and other neighbours, they have not been produced without any explanation. It is pertinent to point out that evidence itself discloses that Sri Chand and Parmeshwari Dayal had scampered away as soon as attack was made. The absence of inmates of nearby houses is not puzzling at all. Ten assailants armed with various kinds of weapons including fire arm weapons attacked deceased in virtually daredevil manner in the wee hours of morning without worrying and bothering about the presence of other persons. The absence of inmates of nearby houses is not puzzling at all. Ten assailants armed with various kinds of weapons including fire arm weapons attacked deceased in virtually daredevil manner in the wee hours of morning without worrying and bothering about the presence of other persons. The nature of attack indicates that the atmosphere of nearby area must have been terror stricken. Therefore, the absence of village folks is hardly surprising. They did came over as soon as they became assured about the departure of assailants. It is pertinent to point out that guns are not silent weapon. They create noise and can deter even the bravest person from interfering in an attack of this nature. Ordinary citizens are too frightened to interfere in this kind of daredevil crime. 20. We have carefully examined all material on record. The material indicates that most of the people nearby did not arrive at the place of occurrence. In fact Sri Chand and Parmeshwari Dayal, who were siting inside the shop, also ran away from there. Therefore, non examination of other witnesses is not fatal to the prosecution case especially in the light of the fact that available evidence of three eye witnesses is highly credible and trustworthy. 21. We believe that father, mother, widow and brother would not ordinarily spare the real culprit and falsely implicate the innocent. The Apex court in Bhupendra Singh and another Vs. State of U.P. 2010 (1) SCC (Cri) 275 and Ram Gopal Vs. State of Rajasthan 1998 (6) SCC 441 has held that the testimony of family members or interested witnesses cannot be discarded merely on the ground of their relationship. The Apex Court in Rajnarain Singh and another Vs. State of U.P. 2010 (1) SCC (Cri) 327 has held that every witnesses present on the spot need not be produced during trial. Section 134 Indian Evidence Act does not contemplate a specific number of witnesses. The Apex Court also held that witnesses are not counted, their evidence is weighed. The Court acknowledged that whenever a serious and grave offences are committed in public place, the ordinary people are reluctant to depose in the court of law on account of fear and terror. Section 134 Indian Evidence Act does not contemplate a specific number of witnesses. The Apex Court also held that witnesses are not counted, their evidence is weighed. The Court acknowledged that whenever a serious and grave offences are committed in public place, the ordinary people are reluctant to depose in the court of law on account of fear and terror. The Court further held that if the evidence of close relatives is trustworthy then their testimony cannot be rejected merely on the ground that all witnesses present on the spot have not been produced. 22. The Apex Court in State of Punjab Vs. Suraj Prakash and another with Rani Vs. State of Punjab AIR 2016 SC 1015 has held that if the testimony of relative witnesses is coherent and trustworthy then the fact that they are relative of deceased, cannot discredit or adversely affect the probative value of their testimony. 23. Learned counsel for appellants has submitted that there are some discrepancies between the FIR and the oral testimony. FIR indicates that three assailants, Girja, Sarua and Ram Sanehi were using guns and other seven assailants were wielding spear (Bhala) while during testimony it was stated by P.W.1 Nathuram that Girja, Sarua and Ram Sanehi were indeed holding guns but some of the accused persons, namely, Bhoora, Ram Swaroop and Brijbhan were wielding lathies while appellant Raghunath and three unknown persons were holding spears(Bhala). P.W. 2 Shanti Devi (widow of deceased) has claimed that barring Girja, Sarua and Ram Sanehi who were using guns, others were holding lathies. P.W.3 Ram Kripal (brother of deceased) stated that Girza, Sarua and Ram Sanehi were using guns while other were wielding lathies and spear (Bhala). He did not specify the weapons of seven other persons. It was argued that genesis of case has not been placed before the court correctly and that; prosecution has tried to hide something from the court. Learned counsel for appellant has further argued that on account of this falsity in the story, the entire prosecution case should be discarded. We are not impressed by this argument of learned counsel for appellants at all. It is pertinent to point out that deceased was done to death by fire arm weapons. The story is very clear. Deceased was not killed by use of lathies and spears. We are not impressed by this argument of learned counsel for appellants at all. It is pertinent to point out that deceased was done to death by fire arm weapons. The story is very clear. Deceased was not killed by use of lathies and spears. It is stated by witnesses that some of the accused persons later on felt and touched the corpse of deceased with the tip of spears and lathies after killing him in order to find out whether he was dead or not. Deceased died instantaneously as a result of gun shot injuries. Evidence discloses that spears or lathies were not used at all. This fact has been fortified by the testimony of P.W. 4 Dr. A.K. Srivastava who found several fire arm injuries of entry and exit on the person of deceased. Two abrasions were also found but certainly they were not caused by lathies and spears. The evidence also discloses that deceased shot down while he was trying to climb over the Khaprail (tiles). The deceased fell down after receiving gun shot injuries. This fall from the height explains two abrasions on the person of deceased. 24. The trial judge concluded that these discrepancies are unnecessarily being blown out of all proportion. To use the words of trial court, it is nothing but an attempt of hair-splitting of the case. We are in complete agreement with the trial judge. Prosecution would not have gained anything by introducing lathies for the simple reason that lathies and spears were not used by accused persons at all. 25. There may be some minor discrepancies but fact of the matter is that discrepancies are not surprising at all. Nathu Ram and his family members woke up in the morning and started their normal domestic work and suddenly his young married son was brutally murdered in the broad daylight by assailants despite their entreaties and mercy pleas of entire family. The entire family must have been shocked and stunned. Some persons were armed with spears, which have a long handle. It is very much possible that some of the desperadoes used their spears from handle side to poke at the corpse of Dhanpat giving an impression to a rustic wife of deceased with veil that other accused were holding lathies. In any case, in our opinion the stated discrepancies are immaterial and does not affect the core of prosecution evidence. It is very much possible that some of the desperadoes used their spears from handle side to poke at the corpse of Dhanpat giving an impression to a rustic wife of deceased with veil that other accused were holding lathies. In any case, in our opinion the stated discrepancies are immaterial and does not affect the core of prosecution evidence. 26. We are also not impressed by the argument of learned counsel for appellants that medical report is inconsistent with the oral testimony. The oral testimony discloses that the first shot was fired by appellant Sarua. Deceased Dhanpat first entered into Bakhari (cattle house) and thereafter tried to escape by climbing over the Khaprail (tiles) and dropped down after receiving gun shot injuries. It is apparent that at the time of receiving gun shot injuries, deceased Dhanpat was in middle of his effort to climb over the Khaprail (tiles). He was facing eastern side with his back towards assailants, who fired upon him from behind. The ante mortem injury reproduced above clearly corroborates version given by witnesses. All the gun shot wounds of entry were found on the back side of deceased. 27. First gun shot entry wound was found on outer aspect of right fore-arm 5 cm above wrist joint. Similarly seven gun shots entry wounds were found on the right buttock. Another gun shot entry wound was found on the back aspect of lower one third of neck on left half. Another gun shot entry wound was found just above left anterior superior iliac spine. Exit wounds are corresponding to the wounds of entry. Abrasions are obviously result of the fall of deceased from height as a consequence of fire arm injuries. The narration by prosecution witnesses is detailed and trustworthy. The absence of blackening, tattooing, scorching and charring can be explained by the site plan (Ex. Ka-9) which says that fire arm injuries were caused by distance of at least 10 paces. 28. Learned counsel for appellants has repeatedly tried to use some discrepancies as stated earlier. These discrepancies are merely result of normal human weakness. Backdrop of incident reveals that every member of family must have been shocked and horrified at the brutal murder of Dhanpat. The entire family was beseeching and making mercy pleas to the assailants. 28. Learned counsel for appellants has repeatedly tried to use some discrepancies as stated earlier. These discrepancies are merely result of normal human weakness. Backdrop of incident reveals that every member of family must have been shocked and horrified at the brutal murder of Dhanpat. The entire family was beseeching and making mercy pleas to the assailants. In this condition and confusion to expect photographic description of events with mathematical precision would be unnatural and illogical. 29. Learned counsel for appellant has argued that the documents prepared at the spot were sent to the higher authorities with considerable delay. It indicates that documents were not in existence at the stated time of their execution and this by itself is sufficient for the acquittal of accused persons. We are not in agreement with counsel for the appellants on this score that stated delay in forwarding FIR to the court of Magistrate is sufficient to discard the entire prosecution case. There is no material on record to suggest that FIR was fabricated or delay in sending the FIR to the court was used for doubtful purposes. It is true that it was incumbent upon the Investigating Officer as well as police personnel to dispatch the FIR of the any case to the senior officer or the court promptly but delay per se is not enough or sufficient ground to discard the trustworthy evidence of prosecution in every case. It is incumbent upon the defence to establish either independently or from the evidence already on record that such delay was used for fabrication, manipulation or antedating of documents. In this connection the judgment of Apex Court in Susanta Das Vs. State of Orrisa with Ashok Das alias Gopal Das Vs. State of Orissa AIR 2016 (SC) 589 can be referred wherein argument of automatic rejection of prosecution case merely on delay of dispatch of these documents to the courts was not accepted. We believe that unless it is shown that delay in sending requisite documents to the court and senior officers was used for fabrication or antedating of documents, such delay alone cannot be used for acquittal of accused persons if the prosecution evidence is otherwise sufficient to establish their guilt. 30. We believe that unless it is shown that delay in sending requisite documents to the court and senior officers was used for fabrication or antedating of documents, such delay alone cannot be used for acquittal of accused persons if the prosecution evidence is otherwise sufficient to establish their guilt. 30. Learned counsel for appellants has further stated that statements of some of the witnesses were recorded with considerable delay and that; Investigating Officer has not given any reasonable explanation for such delay. We are not convinced of this argument as well. The statements of some of the witnesses were recorded on the same day as stated by I.O., Rafat Kamal (P.W.6). However, he could not record the statement of other witnesses immediately for the simple reason that women folks were grieving for and mourning the death of deceased Dhanpat. One was young widow and another had lost her young son. This brutal murder was committed in their presence. Therefore, it was not possible for Investigating Officer to immediately record their statements. He, therefore, recorded the statement of Sita Rani, mother of deceased, Ram Kripal, brother of deceased on 24.10.1980 and Smt. Shanti Devi, young widow of deceased on 28.10.1980, all within 7-8 days of the incident. 31. We believe that there was no unusual and unreasonable delay in recording the statement of witnesses, considering the brutal murder in which the young family member was done to death in their presence. Similarly, the argument that postmortem was conducted with delay is not acceptable. The incident occurred way back in 1980. Roads and other means of communication and availability of electricity in backward areas of Bundelkhand region even today are pathetic. One can very well imagine the conditions prevailing 36 years back. Evidence has disclosed that the corpse of deceased was dispatched on the same day from the place of occurrence. However the constable Sri Ram Chandra (P.W. 5) took the dead body to Police Station Rath in the night at about 10:00 pm. Postmortems are ordinarily not conducted in the night on account of paucity of light. Postmortem report and testimony of P.W. 4, Dr. A.K. Srivastava indicate that postmortem was conducted on next day i.e. 23.10.1980 at about 11 am and we believe that postmortem was done at the earliest possible time. Postmortems are ordinarily not conducted in the night on account of paucity of light. Postmortem report and testimony of P.W. 4, Dr. A.K. Srivastava indicate that postmortem was conducted on next day i.e. 23.10.1980 at about 11 am and we believe that postmortem was done at the earliest possible time. Evidence discloses that dead body was continuously in the control of constable, Sri Ram Chandra (P.W.5) and there was no occasion for anybody to interfere with the cadaver of deceased. In fact no such plea has been taken by the counsel for appellants. No such suggestion was given to constable Sri Ram Chandra (P.W.5) during course of his cross examination. Therefore, at this stage to claim that corpse of deceased was sent to the mortuary with suspicious delay is not acceptable. 32. Learned counsel for appellants has also stated that only three persons participated in the gun shot attack on deceased while others were mute spectators. Therefore, appellants cannot be convicted under Section 149 IPC. We are afraid the argument of counsel for appellant is not sustainable for the simple reason that attack indeed was made by ten assailants. All of them were armed with various kinds of weapons. Only three persons used fire arm and killed deceased Dhanpat but rest of the persons were only present but they also made unlawful assembly in furtherance of their common object. All ten assailants present, formed the unlawful assembly to commit the murder of Dhanpat. Three unknown assailants were neither named nor apprehended. Only seven persons have been tried. Three persons opened gun fire shots but in our opinion four other named persons also cannot escape the consequence of act of unlawful assembly. We believe that four other persons are equally liable for the murder of deceased Dhanpat with the aid of Section 149 IPC. We also believe that the Trial Judge rightly convicted all seven accused appellants under Section 302 read with section 149 IPC. 33. We have carefully examined all material on record. We believe that prosecution has been successful to bring home the stated guilt of surviving appellants with trustworthy evidence. The appeal of surviving appellants is liable to be dismissed. 34. In view of the above, the judgment and order dated 22.1.1983 passed by the then IInd Additional Sessions Judge, Hamirpur in Sessions Trial No 82 of 1981 (State Vs. We believe that prosecution has been successful to bring home the stated guilt of surviving appellants with trustworthy evidence. The appeal of surviving appellants is liable to be dismissed. 34. In view of the above, the judgment and order dated 22.1.1983 passed by the then IInd Additional Sessions Judge, Hamirpur in Sessions Trial No 82 of 1981 (State Vs. Girja and others) arising out of Crime No.189 of 1980, under Sections 302 read with Section 149, 148 and 147 IPC, P.S. Rath, District Hamirpur is hereby affirmed. Appeal is dismissed. The surviving appellants, namely, Girja, Sarua, Ram Sanehi, Raghunath, Ram Swaroop and Brijbhan are directed to surrender before the court concerned within fifteen days. Their bails are cancelled. Sureties are discharged. 35. Let a copy of this judgment be certified to the concerned court through Sessions Judge, Hamirpur for compliance within a fortnight. The concerned court will thereafter report the compliance of this judgment to this Court within a month.