JUDGMENT : (Ravindra Kumar Agrawal, J.) : 1. Since both the appeals arise out of same crime and same sessions case, they are being heard and decided together by this common judgment. 2. Challenge in these appeals are the judgment of conviction and sentence dated 21.09.2023 passed by the Additional Sessions Judge, Durg in Sessions Case No. 130/2020 whereby the appellants have been convicted and sentenced as under : Accused Offence Sentence Raj Mishra, Rishab Paswan, Somnath @ Akshay IN CRA No. 1860 of 2023 302/149 IPC Life imprisonment and fine of Rs.1000/- each, in default of payment of fine amount, additional RI for 6 months to each accused. U/s 148 IPC RI for three years with fine of Rs.1000/-, in default of payment of fine amount, additional RI for 6 months to each accused. Ramkuber Gupta, Sunil Gupta, Munir Gupta, Ramesh Jangade, Gopirao IN CRA No.2078 of 2023 302/149 IPC Life imprisonment and fine of Rs.1000/- each, in default of payment of fine amount, additional RI for 6 months to each accused. U/s 148 IPC RI for three years with fine of Rs.1000/-, in default of payment of fine amount, additional RI for 6 months to each accused. All the sentences have been directed to run concurrently. 3. Brief facts of the case are that the deceased Shailesh Yadav was having shoe business and for the purposes of his business he borrowed a sum of Rs. 50,000/- from the accused Raj Mishra. Since he failed to repay the borrowed amount, the accused Raj Mishra was not happy with him and shown his angerness. On 10.03.2020 at about 10:15 am, the accused Raj Mishra called Shailesh Yadav through mobile phone near Andhra School, Camp-1, Bhilai to celebrate Holi festival. Shailesh went to the house of Raj Mishra along with his friend Manish Yadav. The accused Raj Mishra took them by his Car towards Andhra School. When they reached near Andhra School, the accused Raj Mishra came out from his Car and called his friends Rishabh Paswan, Munir Gupta, Ramesh Jangde, Gopirao, Somnath, Sunil Gupta and Ramkuber Gupta, who were in ambush near that placed armed with Lathi. When Shailesh deboarded from his Car, the accused Raj Mishra took an iron rod from his Car and all the accused persons started assaulting Shailesh. They also chased Manish Yadav, however, he fled away from the place of occurrence. When Shailesh deboarded from his Car, the accused Raj Mishra took an iron rod from his Car and all the accused persons started assaulting Shailesh. They also chased Manish Yadav, however, he fled away from the place of occurrence. When the witness Harishchand Yadav tried to intervene, the accused persons have threatened him also. Shailesh Yadav received various injuries on his head and other parts of his body. He fell down and went unconscious. The accused Raj Mishra runs his Car over the body of Shailesh and all the accused persons fled away. The deceased was firstly taken to Sparsh Hospital, Supela from where he was shifted to Sector-9 Hospital Bhilai, but he declared died. 4. Intimation about death of deceased Shailesh Yadav was given by the doctor to Station House Officer, Police Station Sector-6, Bhilai vide Ex. P/44 where the merg intimation Ex. P/43 was recorded by the police of police Station Bhilai Nagar. Unnumbered merg intimation was sent to the jurisdictional police station Vaishali Nagar, District Durg, where numbered merg intimation Ex.P/45 was recorded. The inquest of the body was prepared on 12.03.2020 in presence of the witnesses vide Ex.P/4 and dead body was sent for its postmortem to Govt. Hospital, Supela, Bhiali. Postmortem of the dead body of the deceased was conducted by a team of doctors consist of Dr. A. Shrivastava PW-9, Dr. A. Nagdev and Dr. SK Walvandre. After postmortem examination, they gave their report Ex. P/37. While conducting postmortem, the doctors found the following injuries on the dead body of the deceased : “Fracture of nasal bone, incised wound 6x2x1.5 cm over forehead oblique. Deep bony. Superficial injury above right eyebrow 1x1x0.5 cm & below eyebrow 1X1x05 cm. Blackening of both eyes. Colour of face pink Gulal colour of Holi. Wound at post auricular region left 1x1x1 cm. Abrasion over left cheek 3x2x0.5 cm. Browninsh black contusion over whole of right shoulder joint. 4X3 cm contusion over right elbow. Three contusions over right arm 1x1x0.25 cm around elbow. All interdigital clefts of right hand contusion present. Fracture on left shaft of numerous. Fracture at right wrist joint. Contusion 10x0.5x0.5 cm over left shaft of numerous. 2nd and 3rd interdigital cleft . Contusion present. Abrasion hip joint 7x1x0.5 cm. Contusion left hip joint 3x2x.05 cm. Abrasion right axilia 4x3x0.5 cm. Three contusions over right arm 1x1x0.25 cm around elbow. All interdigital clefts of right hand contusion present. Fracture on left shaft of numerous. Fracture at right wrist joint. Contusion 10x0.5x0.5 cm over left shaft of numerous. 2nd and 3rd interdigital cleft . Contusion present. Abrasion hip joint 7x1x0.5 cm. Contusion left hip joint 3x2x.05 cm. Abrasion right axilia 4x3x0.5 cm. Abrasion over both knees 1x1x0.25 cm.” The doctor opined that cause of death is due to shock and hemorrhage resulted by poly trauma associated with multiple rupture of vital organs and multiple fractures. With respect to mode of death, the doctors advised to correlate the circumstances and evidence. Time elapsed since death could not be opined as the dead body was kept in a freezer. 5. Short postmortem report Ex. P/38 was also given by the doctors who conducted the postmortem in which the same opinion was reiterated as given in the postmortem report Ex. P/37. Another query was made by the police from the doctors who conducted postmortem vide Ex. P/40-A which has been answered by the doctor A. Shrivastava, PW-9 as follows : Query Answer D;k e`rd ds 'kjhj ij dkj pढ+kus ds lcwr gSA In my opinion, no tyre marks found over the body as the subject was wearing clothes which had already been preserved. D;k dkj pढ+kus ls e`rd ds vax {kfrxzLr gq;s gSA In my opinion, poly trauma of internal organs may be due to overriden heavy vehicle which may be Car. 6. FIR Ex. P/43, and P/48 was registered on 12.03.2020 against the appellants/accused persons for the offence under Sections 302 and 120-B IPC in which all the 8 accused persons were named. On 12.03.2020, the father of the deceased i.e. Radhe Prasad Yadav has given a written report to the police of police Station Vaishali Nagar Bhilai vide Ex. P/65 in which he also named the accused persons as assailants of his son. On 11.03.2020 itself, the police have seized the bloodstained soil and plain soil from the spot vide seizure memo Ex. P/49. The clothes of the deceased sent from the Hospital was also seized on 12.03.2020 vide seizure memo Ex. P/50. Spot map Ex. P/5 was prepared by the police and Ex. P/42 was prepared by the Revenue Inspector, Municipal Corporation, Bhilai. P/49. The clothes of the deceased sent from the Hospital was also seized on 12.03.2020 vide seizure memo Ex. P/50. Spot map Ex. P/5 was prepared by the police and Ex. P/42 was prepared by the Revenue Inspector, Municipal Corporation, Bhilai. The accused persons were taken into custody on 13.03.2020 and the police have recorded their memorandum statements and based on their statement various seizures have been made as under : Name of accused Memorandum statement Seizure Seized Article Sunil Kumar Gupta Ex.P/6 Ex.P/21 Bamboo lathi Somnath @ Akshay Ex.P/7 Ex.P/22 Bamboo lathi Ramkuber Gupta Ex.P/8 Ex.P/18 Bamboo lathi Shambhu Gupta @ Munir Gupta Ex.P/9 Ex.P/16 Bamboo lathi Gopi Rao Ex.P/10 Ex. P/17 Bamboo lathi Ramesh Jangde Ex.P/11 Ex.P/19 Bamboo lathi Rishabh Paswan Ex.P/12 Ex.P/20 Bamboo lathi Raj Mishra Ex.P/13 Ex.P/14 Verna Car No.CG-07-MB279 Ex.P/15 Iron rod having blood like stained 7. In all the weapons seized from the accused persons, blood like stained were noticed and the weapon of assault were sent for its query report to the doctor who conducted postmortem of the dead body, from where the query report Ex. P/39 was given by the doctor and opined that on examination of clothes, rod, lathi and danda, the injuries mentioned in MLC form may come from the aforesaid rod, Lathi and Danda. On 20.03.2021, the father of the deceased again made a complaint to the police Station Vaishali Nagar vide Ex. P/52 regarding threatening given to him by the accused persons. 8. During investigation, the statement under Section 161 CrPC of the witnesses were recorded. The statement of eyewitnesses under Section 164 CrPC have also been recorded. The seized Lathi, iron rod, clothes of the deceased, bloodstained and plain soil were sent for FSL examination to State FSL, Raipur, from where FSL report Ex. P/65 was received, according to which, except from the plain soil, all the sent articles i.e. Lathi, Danda, iron rod, clothes of the deceased and bloodstained soil were found stained with human blood, whereas, the blood found on the underwear, belt and bracelet of the deceased was disintegrated. After completion of usual investigation, charge sheet was filed before the Judicial Magistrate First Class, Durg, against the accused persons for the offence under Sections 302, 120-B, 147 and 148 IPC. The case was committed to the Sessions Court from where it has been transferred to the trial Court for its trial. 9. After completion of usual investigation, charge sheet was filed before the Judicial Magistrate First Class, Durg, against the accused persons for the offence under Sections 302, 120-B, 147 and 148 IPC. The case was committed to the Sessions Court from where it has been transferred to the trial Court for its trial. 9. The trial Court has framed charges against the accused persons for the offence under Sections 148 and 302 read with Section 149 IPC. The accused persons abjured their guilt, denied the charge, and claimed trial. 10. In order to establish the charge against the accused persons, the prosecution has examined as many as 15 witnesses. 5 defence witnesses Saroj Verma, DW-1, Jai Prakash Jaiswal DW-2, Dikesh Kumar Dewangan DW-3, Somvati DW-4 and Sharda Shinde DW-5, have also been examined by the accused persons. Statement under Section 313 CrPC of the appellants have also been recorded in which they denied the circumstances appears against them and have submitted that they are innocent and have been falsely implicated in the offence. 11. After appreciation of oral as well as documentary evidence led by the parties, the trial court has convicted and sentenced the accused persons as mentioned in the opening paragraph of this judgment. Hence these appeals. 12. Learned counsel for the appellants in CRA No.1860 of 2023 would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material inconsistency in the evidence of eyewitnesses as well as other witnesses. Eye witnesses PW-1 Harishchand Yadav, PW-4 Sunil Pandey and PW-5 Ramhari Gond have not been identified the appellants Raj Mishra, Rishabh Paswan and Somnath @ Akshay. In their 164 CrPC statement they have not stated anything against these accused appellants. Other eyewitness PW-6, Manish Yadav has not named the present appellants as the assailants, and he named only five other co-accused persons. He would further submit that the motive also has not been proved in the present case. The so-called eyewitnesses are the residents of different places and their presence on the place of occurrence at the relevant point of time is highly suspicious. They are planted witnesses by the police. No motive has been proved in the case. There is delay in recording 161 CrPC statement of the so-called eyewitnesses. The memorandum and seizure witnesses are also not reliable, and they have not supported the prosecution’s case. They are planted witnesses by the police. No motive has been proved in the case. There is delay in recording 161 CrPC statement of the so-called eyewitnesses. The memorandum and seizure witnesses are also not reliable, and they have not supported the prosecution’s case. In absence of any blood group of the blood found on the weapon of offence, the same is also not reliable. It was not established that the seized articles/weapon of offence were kept in safe custody and were not tempered. The doctor has not clearly opined death of the deceased was homicidal in nature. Therefore, in absence of any clear finding about homicidal death of the deceased, the accused persons cannot be convicted for the offence of murder and as such they are entitled for their acquittal. 13. Learned counsel for the appellants in CRA No.2078 of 2023 would also submit that the witnesses who allegedly seen the incident i.e. witnesses Satyendra Yadav, Thakur Prasad Yadav and Mithai Lal Yadav have not been examined by the prosecution. Sanjay Yadav, PW-2, who have been examined as an eyewitness is infact not an eyewitness. FIR has been registered after enquiry from these four witnesses and out of these four witnesses, three of them have not been examined and the witness Sanjay Yadav, PW-2, has made self-contradictory statement. They would further submit that the socalled eyewitnesses PW-1 Harishchand Yadav, PW-4 Sunil Pandey, PW-5 Ramhari Gond and Manish PW-6 were not named in the FIR. The witnesses have not named the three accused persons in their evidence i.e. Raj Mishra, Rishabh Paswan and Somnath, but has implicated five other co-accused persons and therefore, their evidences are not reliable. The prosecution has not examined the important witness. They would also submit that from the evidence of PW-5 Ramhari Gond, it appears that he informed about the incident and the name of assailants to the father of the deceased i.e. Radhelal PW-14, at Sparsh Hospital on 10.03.2020, however, he did not inform about the same immediately to the police. He made a complaint after about two days i.e. on 12.03.2020. He made a complaint after about two days i.e. on 12.03.2020. It is also submitted that the 161 CrPC statement of the Sanjay Yadav P.W. 2, brother of the deceased and Radhe Prasad Yadav P.W. 14, have been recorded after about 3 days and statement of so-called eye witnesses have been recorded after about 23 days, they are stated to be the closely related with the deceased but they did not inform about the incident till their statements were recorded, therefore, there is unexplained delay in recording of their 161 CrPC statement which is fatal to the prosecution. The written complaint made by the father of the deceased Radhe Prasad was not made as a part of the charge sheet and was kept in a case diary which has been admitted by the investigating officer Lallan Singh, PW-13 which also creates doubt on the prosecution case. It is also submitted by them that the prosecution has failed to prove that the accused persons have shared a common object and were members of unlawful assembly. Thus, in absence of any cogent and clinching evidence which unerringly pointed out towards the guilt of the accused persons, they cannot be convicted for the alleged offence of commission of murder of the deceased Shailesh Yadav. Therefore, they also prayed for acquittal of the appellants in CRA NO.2078 of 2023. 14. On the other hand, the counsel for the State opposes the arguments advanced by the counsel for the respective appellants and have submitted that the prosecution has proved its case beyond reasonable doubt. The evidence of eyewitnesses are reliable and corroborative with each other, but for minor omissions or contradiction, nothing could be extracted from their evidence so as to disbelieve the same in toto. In a case of eyewitnesses, the motive does not have any significance. The motive is the state is mind which can play only either in the mind of deceased or the accused persons. He further submits that even though the witnesses are not related to each other and are residents of different places, their presence at the relevant point of time on the place of occurrence cannot be doubted merely on the ground that they are not the residents of same vicinity. He further submits that even though the witnesses are not related to each other and are residents of different places, their presence at the relevant point of time on the place of occurrence cannot be doubted merely on the ground that they are not the residents of same vicinity. Further, in view of the evidence of eyewitnesses, the injuries found on the body of the deceased as also in view of evidence of the doctor who conducted the postmortem of the dead body of the deceased, the death is proved to be homicidal death, which cannot be doubted even if the doctor has not mentioned any specific word of homicidal death, but it can safely be inferred from the the evidence available on record that the death of the deceased was homicidal in nature, which the trial court has rightly considered for the same holding it to be homicidal death. 15. It is also argued by the counsel for the State that recovery of weapon of offence on the memorandum statement of the accused persons have duly been proved by the witnesses and by their examination report it has also been proved that the injuries found on the body of the deceased could have been inflicted by the said weapons. 16. The involvement of appellants in crime in question has further been proved by the FSL report in which the weapons of assault seized from the possession of respective appellants were found stained with human blood, for which the accused persons have not offered any explanation in their 313 CrPC statement. Considering the entire facts and circumstances of the case and the evidence available on record, the trial Court has rightly held the guilt of the appellants for commission of murder of deceased Shailesh Yadav and has rightly sentenced them which are absolutely justified and needs no interference of the court. 17. We have heard the rival contentions put forth by the counsel for the parties and perused the records. 18. The first issue for consideration of the court in the present case would be as to whether the death of the deceased Shailesh Yadav is homicidal or not? 19. 17. We have heard the rival contentions put forth by the counsel for the parties and perused the records. 18. The first issue for consideration of the court in the present case would be as to whether the death of the deceased Shailesh Yadav is homicidal or not? 19. PW-12, Jairaj, who was posted as H.A. Nursing at casualty ward of Sector-9 Hospital have stated in his deposition that on 10.03.2020 at about 3:07 pm, the deceased was brought in the hospital for which he has given an intimation to Bhilai Nagar Police Station at 17:05 hours on the same day which has been recorded in the merg intimation Ex. P/43. He also has given the hospital memo to the police which is Ex. P/44, in which the signature of Dr. Chetan Agrawal of casualty ward of the hospital is there. 20. PW-13, Lallan Singh, the investigating officer, has stated in his deposition that on 11.03.2020 at about 12 in the noon he received information from Jairaj PW-12, and thereafter he recorded the merg intimation regarding death of the deceased Shailesh Yadav vide Ex. P/45 and proceeded towards the place of incident. After issuing notices to Panch witnesses he prepared the inquest Ex. P/4 in presence of the witnesses and sent the body for its postmortem to Govt. Hospital Supela. PW-9, Dr. Abhishek Shrivastava, who conducted the post-mortem of the dead body of the deceased along with two other doctors namely Dr. Avinash Nagdave and Dr. Sanjay Walvandre, have stated in his evidence that on 12.03.2020 at about 11:30 am the dead body of the deceased Shailesh Yadav was brought before them. While conducting the postmortem, they noticed following external injuries on the dead body: “Fracture of nasal bone, incised wound 6x2x1.5 cm over forehead oblique. Deep bony. Superficial injury above right eyebrow 1x1x0.5 cm & below eyebrow 1X1x05 cm. Blackening of both eyes. Colour of face pink Gulal colour of Holi. Wound at post auricular region left 1x1x1 cm. Abrasion over left cheek 3x2x0.5 cm. Browninsh black contusion over whole of right shoulder joint. 4X3 cm contusion over right elbow. Three contusions over right arm 1x1x0.25 cm around elbow. All interdigital clefts of right hand contusion present. Fracture on left shaft of numerous. Fracture at right wrist joint. Contusion 10x0.5x0.5 cm over left shaft of numerous. 2nd and 3rd interdigital cleft. Contusion present. Abrasion hip joint 7x1x0.5 cm. 4X3 cm contusion over right elbow. Three contusions over right arm 1x1x0.25 cm around elbow. All interdigital clefts of right hand contusion present. Fracture on left shaft of numerous. Fracture at right wrist joint. Contusion 10x0.5x0.5 cm over left shaft of numerous. 2nd and 3rd interdigital cleft. Contusion present. Abrasion hip joint 7x1x0.5 cm. Contusion left hip joint 3x2x.05 cm. Abrasion right axilia 4x3x0.5 cm. Abrasion over both knees 1x1x0.25 cm.” On internal examination, they found the following injuries on the dead body: “Brain congested. Fracture of 8-9 Ribs of right side and 2,3,4 and 5 ribs on left side. Left lower lobe of lung ruptured. Right middle lobe of lung ruptured. Thoracic cavity found with blood.” 21. After conducting postmortem, they opined that cause of death is due to shock and hemorrhage resulted by poly trauma associated with multiple rupture of vital organs and multiple fractures. With respect to mode of death, the doctors advised to correlate the circumstances and evidence. Time elapsed since death could not be opined by the doctor as the dead body was kept in a freezer. 22. The postmortem report Ex. P/37 is proved by PW-9 Dr. Abhishek Shrivastava, who also gave the short postmortem report Ex. P/38. He also examined the weapons of offence seized from the respective accused persons and gave his examination report Ex. P/39. Further, when a query was made from the doctor vide Ex. P/40-A regarding any sign of crushing deceased by a Car and any corresponding injuries over the body, the doctor has opined in his report Ex. P/40 that, (i) in my opinion, no Tyre marks found over the body as the subject was wearing clothes which had already been preserved and (ii) poly trauma of internal organs may be due to overridden heavy vehicle which may be Car. 23. From consideration of the evidence with respect to circumstances in which the dead body was found, the injuries found on the dead body, the weapons used in assault, the postmortem report and the opinion of the doctors who conducted postmortem & examined the weapons, the trial court comes into conclusion that death of the deceased is found to be homicidal in nature. There is no any infirmity or illegality in the said findings. Therefore, we affirm the findings that death of the deceased was homicidal in nature. 24. There is no any infirmity or illegality in the said findings. Therefore, we affirm the findings that death of the deceased was homicidal in nature. 24. The second question involved in the case is whether the accused persons have constituted an unlawful assembly armed with iron rod and Lathi, shared their common intention and in furtherance of their common object have assaulted and committed offence of rioting and murder of the deceased Shailesh Yadav. 25. The case of prosecution rests on the evidence of eyewitnesses i.e. PW-1 Harischand Yadav, PW-4 Sunil Pandey, PW-5 Ramhari Gond and PW-6 Manish Yadav. 26. The eyewitness PW-1 Harishchand Yadav, have stated in his deposition that he identified five accused persons namely Shambhu Gupta @ Munir Gupta, Ramesh Jangde, Gopirao, Sunil Gupta and Ramkuber Gupta and has not identified three other co-accused persons Raj Mishra, Rishab Paswan and Somnath. He states that at the time of Holi festival his Truck was parked at Petrol Pump near Amrapali Colony. He had gone to give food to his Driver and when he was returning back, he saw that near Andhra School the accused persons Shambhu Gupta, Ramesh Jangde, Gopirao, Sunil Gupta and Ramkuber Gupta were assaulting the deceased. Ramkuber Gutpa was having flattened iron rod. Ramkuber Gupta has assaulted the deceased on his head. The accused Gopirao assaulted finger punch on the face of the deceased. Accused Sunil Gupta, Ramesh Jangde and Munir Gupta @ Shambhu Gupta were assaulting the deceased by iron rod and Lathi. When he tried to intervene the accused persons who were in drunken condition, threatened him and then he left the place. He had gone to the house of the deceased for giving information about the incident, but his house was found locked and thereafter he came back to his house. After about two days he again had gone to the house of deceased to know about the incident. The police has recorded his 164 CrPC statement and his court statement has also been recorded which is Ex. P/1. At this stage, this witness was declared hostile. 27. After declaring him hostile, he denied giving his police statement Ex. P/2 that the accused Raj Mishra was having rod in his hand and other accused persons were having Lathis and they were assaulting the deceased. P/1. At this stage, this witness was declared hostile. 27. After declaring him hostile, he denied giving his police statement Ex. P/2 that the accused Raj Mishra was having rod in his hand and other accused persons were having Lathis and they were assaulting the deceased. He also denied giving his statement to the police that when the deceased fell on the ground, the accused Raj Mishra and his three friends sat in the Car and the accused Raj Mishra crushed the deceased by running his vehicle upon the deceased and thereafter they fled away. In cross examination, he admits that the police persons have convinced him about his 164 CrPC statement as to what he has to say. He admits that at the time of giving 164 CrPC Statement he has not disclosed anything about the accused Raj Mishra, Rishabh Paswan and Somnath. When he confronted with his 164 CrPC Statement, he denied by giving the said statement with respect to above three accused persons Raj Mishra, Rishabh Paswan and Somnath. He admits that after about 25 days his statement was recorded. He admits that his 164 CrPC statement and police statement was recorded under the instructions of the police persons. He also states that on the date of incident his Truck was parked near Housing Board and if it has been written in his police statement Ex. P/2 that his Truck was parked near Amrapali colony, he could not tell the reason. He went Amrapali colony through under bridge of Road No.18 and return back from the same route. He admits that Andhra School is neither situated on the way of Road No.18 nor visible from Road No.18. He admits that the lane of Andhra School is very narrow in which the houses of other persons are situated in both sides of the lane. He admits that the persons who are standing in front of Andhra School were not visible from Road No.18. 28. This witness has further stated that threatening given by the accused persons to him was disclosed in his police statement by him, but if it is not there, he could not tell the reason. He denied giving statement as made in paragraph 3 of his deposition to his police statement. 28. This witness has further stated that threatening given by the accused persons to him was disclosed in his police statement by him, but if it is not there, he could not tell the reason. He denied giving statement as made in paragraph 3 of his deposition to his police statement. He admits that on the next day when he went to the house of the deceased, met with his father and asked about the incident, then his father informed him that he died and thereafter he told him that he was present on the spot and he will tell the entire facts to the police. He admits that for about one month he has not lodged any report to any police station and the police has not recorded his statement also. He admits that he himself has not disclosed before any police officer that he witnessed the incident. At the time when he reached near Andhra School, the persons of the vicinity were celebrating Holi festival and their faces were coloured. He states that he was unknown about the persons of the vicinity of Vrinda Nagar, and it was also very difficult to identify the persons having colour in their faces. He denied that deceased was crushed by any person by the vehicle. He has not given any intimation to the police nor called for any medical help. The police have not got identified of the accused persons from him. The names of accused persons and news about the incident was published in daily newspaper. 29. From the evidence of this eyewitness, it appears that he was very well known to the family of the deceased. When he saw the incident that the deceased was being assaulted by the accused persons, he neither informed the police nor called for any medical help. He went to his own house and on the next day when he went to the house of deceased, he himself inquired about the incident from his father. Despite having known to the deceased and had gone next day of the incident to his house, he has not lodged any report and has not got recorded his statement with the police that he has seen the incident and is an eyewitness of the case. Despite having known to the deceased and had gone next day of the incident to his house, he has not lodged any report and has not got recorded his statement with the police that he has seen the incident and is an eyewitness of the case. He is the resident of another vicinity; the accident took place in another vicinity; the accused persons are the residents of different vicinity and on the date of incident the accused persons and others were having their faces coloured due to Holi festival, therefore identification of accused persons by their names by this witness is highly doubtful. Further, in his 164 CrPC statement he has named Raj Mishra, Rishabh Paswan and Somnath, but in his deposition made before the court he completely denied that he has identified these three accused persons and has named the other five accused persons Shambhu Gupta, Ramesh Jangde, Gopirao, Sunil Gupta and Ramkuber Gupta, which makes the evidence of this witness doubtful. Therefore, there is material omission and contradictions in the evidence of PW-1 Harishchand Yadav with that of his 161 & 164 CrPC statement. 30. Another eyewitness PW-5, Ramhari Gond, have stated in his deposition that he has not identified the accused Raj Mishra, Rishab Paswan and Somnath, but he could identify the other co-accused persons namely Shambhu Gupta, Ramesh Jangde, Gopirao, Sunil Gupta and Ramkuber Gupta. Deceased Shailesh Yadav was his friend. On the date of incident, the deceased Shailesh Yadav called him to celebrate Holi festival and when he went to Vrinda Nagar, Road No.18, near Andhra School, he saw that Ramkuber Gupta asked his wife for a weapon and then his wife has given him a flattened iron rod by which Ramkuber Gupta has given a blow on the back side of the head of the deceased. Thereafter, Gopirao has given a blow by iron punch which inflicted on the forehead of deceased. Munir Gupta and Sunil Gupta were assaulting the deceased by iron rod. Ramesh Jangde was assaulting by thick bamboo club. On account of assault made by the accused persons, the deceased died on the spot. He has taken the deceased to the Hospital with the help of another person who was also standing there who identified him as Dubey and thereafter in the motorcycle of Dubey, he has taken the deceased to Sparsh Hospital where he was declared brought dead. On account of assault made by the accused persons, the deceased died on the spot. He has taken the deceased to the Hospital with the help of another person who was also standing there who identified him as Dubey and thereafter in the motorcycle of Dubey, he has taken the deceased to Sparsh Hospital where he was declared brought dead. He left dead body at the hospital and had gone to the house of the deceased to inform about the incident to his family members, but his house was found locked. He returned back to Sparsh Hospital and by that time his father already reached there. The deceased was being taken to Sector-9 Hospital and he informed the father of the deceased that five accused persons namely Munir Gupta, Ramesh Jangde, Gopirao, Sunil Gupta and Ramkuber Gupta have assaulted the deceased. The dead body was kept in mortuary of Lal Bahadur Govt. Hospital, Supela. The police recorded his statement after about one month of the incident. He stated the same version in his deposition also whatever earlier stated in his police statement. He further states that while recording his statement before the Magistrate, he named only five accused persons i.e. Munir Gupta, Ramesh Jangde, Gopirao, Sunil Gupta and Ramkuber Gupta as the assailants. He has not disclosed the names of other accused persons. His 164 CrPC statement is Ex. P/34. At this stage, he also declared hostile and after declaring him hostile he denied giving some part of police statement that Raj Mishra was assaulting deceased by iron rod and crushed the deceased by his Car and fled away. He also denied disclosing names of Raj Mishra, Rishabh Paswan and Somnath as the assailants in his police statement. He reiterated that he has named only five accused persons before the Magistrate while recording his statement. In his cross examination, he has stated that deceased was his childhood friend. He denied of his giving police statement Ex. P/35. He could not tell as to whether Hanuman Mandir is situated at eastern direction of Andhra School and Road No. 18. He admits that distance between Andhra School and Road No.18 is about 400-500 meters. From Andhra School to Hanuman Mandir, the houses of various persons are situated in both sides of the lane. He further states that he disclosed in his police statement Ex. He admits that distance between Andhra School and Road No.18 is about 400-500 meters. From Andhra School to Hanuman Mandir, the houses of various persons are situated in both sides of the lane. He further states that he disclosed in his police statement Ex. P/35 that the wife of accused Ramkuber Gupta has given him (Ramkuber Gupta) a flattened iron rod by which Ramkumar Gupta has made assault on the back side of his head, and if it is not there in his police statement, he could not tell the reason. Likewise, the assault made by Gopirao by iron punch was also made in his police statement. If it is not there, he could not tell the reason. He has also stated that deceased died due to assault made by the accused persons is being disclosed by him first time before the court. He admits that the date of 10.03.2020 was a day of Holi festival and all the persons of vicinity were drenched in colour and Gulal. Taking the deceased by the motorcycle of Dubey, he was declared brought dead and going to the house of the deceased to inform his family members, his house was found locked and again returned back to Sparsh Hospital. All these facts have been disclosed in his police statement Ex. P/35. He also informed the father of the deceased about the names of assailants and if it is also not there, he could not know the reason. He admits that he himself has not given intimation about the incident to the police and has not tried to call the Ambulance at the time of incident. Even after reaching at Sparsh Hospital, he has not informed the police about the incident. He did not know as to who has given intimation about the incident to the father of the deceased. From Sparsh Hospital to the house of deceased Shailesh Yadav he has not informed any police persons about the incident. He admits that at the time when the deceased was being taken by him to hospital, the deceased was in drunken condition. He admits that he along with the father of the deceased had gone to Sector-9 Hospital and just beside emergency ward of Sector-9 Hospital, the police room was there, but has not informed any police persons about the incident. He admits that he along with the father of the deceased had gone to Sector-9 Hospital and just beside emergency ward of Sector-9 Hospital, the police room was there, but has not informed any police persons about the incident. Neither any police persons called him for his statement, nor he has made any contact with the police person. 31. From the evidence of this witness, it is crystal clear that the deceased was his childhood friend; he saw the deceased assaulting by five accused persons; he has taken the deceased to the hospital and informed the father of the deceased about the incident, however neither he informed the police nor the police has recorded his statement about the incident and after about a month his statement was recorded. In his 164 CrPC statement, he denied involvement of three accused persons namely Raj Mishra, Rishabh Paswan and Somnath. Despite having opportunity neither he informed the police, nor named the assailants who committed murder of his childhood friend. This makes the evidence of PW-5, Ramhari Gond also doubtful. Further, recording statement of this witness under Section 161 CrPC after a period of about one month itself create doubt upon truthfulness of the evidence of this witness. 32. The other eyewitness PW-6, Manish Yadav, have stated in his deposition that on 10.03.2020 when he was celebrating Holi festival in his vicinity at Camp-1, Shailesh Yadav came and asked him to come near Andhra School to celebrate Holi. After about 10-15 minutes when he reached near Andhra School he saw that five persons were assaulting Shailesh. Ramkuber Gupta was assaulting by sword, Gopirao by finger punch like weapon, Munir Gupta by rod, Ramesh Jangde by Club and Sunil Gupta by rod. When he tried to intervene, Munir, Ramkuber and 2-3 other persons have chased him and then he fled away, but, from the place where he hides himself, he has seen the incident. After having assault on the deceased Shailesh Yadav, two persons came in bike and have taken Shailesh along with them but he doesn’t know the persons who have taken the deceased. He had gone to the house of deceased to inform his family members about the incident, but his house was found locked and thereafter he went to Raipur. The police have recorded his statement in which he named only five accused persons. He had gone to the house of deceased to inform his family members about the incident, but his house was found locked and thereafter he went to Raipur. The police have recorded his statement in which he named only five accused persons. At this stage, this witness was also declared hostile and thereafter he has stated that he disclosed in his police statement Ex. P/36 that the deceased told him that Raj Mishra has called him in his house and thereafter he had gone to the house of Raj Mishra along with him and from where Raj Mishra took them to Andhra School by his Car and when they reached near Andhra School Raj Mishra called his friends and then Rishabh Paswan, Sunil Gupta, Ramesh Jangde, Gopirao, Somnath, Sunil Gupta and Ramkuber Gupta came there armed with Lathi and Danda, Raj Mishra took out an iron rod from his Car and all the accused persons started assaulting the deceased Shailesh. He also denied giving his police statement that at the time of recording of his police statement he has stated that in the Car Raj Mishra, Rishabh Paswan, Ramesh and Munir were also present in the Car and thereafter they crushed the deceased by running his vehicle over him and they fled away. He denied A to A part of his police statement Ex. P/36 and shown his ignorance as to how it has been written in his police statement. In cross examination he has admitted that he has not seen these three accused persons namely Raj Mishra, Rishabh Paswan and Somnath on the place of incident. He further denied various parts of his police statement and stated that he has not given such statements to the police and how the police have written the same in his statement, he could not tell the reason. He has not identified the persons who have taken the deceased in motorcycle. In between 11-12 am, he had gone to the house of the deceased to inform his family members about the incident, he found his house was locked and then he had gone to Raipur and has not informed the incident to anyone. He does not know as to how the police came into knowledge of his name as the witness. He denied the fact that deceased died due to crush by the car. He does not know as to how the police came into knowledge of his name as the witness. He denied the fact that deceased died due to crush by the car. He has stated that he has not seen that the accused persons have run their vehicle over the deceased. He also states that the weapon of offence carried by the accused persons have been disclosed by him in his police statement, he could not tell if it is not there. It is also notable here that 161 CrPC statement of this witness has been recorded on 09.04.2020 i.e. almost one month after the date of incident. 33. PW-2, Sanjay Yadav, who is the elder brother of deceased Shailesh Yadav have stated in his deposition that on 10.03.2020 in the morning hours after receiving telephone call from Raj Mishra, his brother Shailesh had gone to the house of Raj Mishra. After a considerable time when he did not return back and was also not responding the mobile calls, he started his search. When he reached Vrinda Nagar, near Andhra School he saw a mob there and Ramkuber Gupta was standing there having a flattened iron rod, Munir Gupta, Sunil Gupta, P. Gopirao, Ramsh Jangde and Raj Mishra all of them were having clubs in their hands. Ramkuber Gupta was hurling threat that if anybody would give evidence against him, he would also be assaulted by him like Shailesh Yadav. At that time, someone told him that his brother was being taken to Sparsh Hospital. When he reached the hospital, he found his brother not responding. He shifted him from Sparsh Hospital to Sector-9 Hospital where he was declared brought dead. Since he was not having mobile phone at that time, he could not inform about the incident to anyone. After some time, they had gone to Vaishali Nagar Police station to lodge report where his statement was recorded, but report was not registered at that time and they returned from the hospital keeping the dead body in mortuary. In the next morning his father along with other persons of vicinity went to lodge report. He was present in the inquest proceeding. In cross examination he has stated that on 10.03.2020 the police have not recorded the FIR. He denied that police have not recorded his statement on 10.03.2020. In the next morning his father along with other persons of vicinity went to lodge report. He was present in the inquest proceeding. In cross examination he has stated that on 10.03.2020 the police have not recorded the FIR. He denied that police have not recorded his statement on 10.03.2020. When the police have not registered the FIR, his father approached to Superintendent of Police along with other persons of vicinity. He could not tell as to after how many days the police has recorded his statement. Whatever he deposed in chief examination, the same have been stated by him in his police statement Ex. D/2 and if it is not there in his police statement, he could not tell the reason. He admits that the police have not recorded his statement as per his own version, but has recorded in a very short manner and summarily which was not read over to him also. He admits that non recording of his statement properly have not been complained by him to any of higher police authorities. He has not made any request to the police also to record his statement afresh. His police statement was recorded on 13.03.2020. He came to know about the incident on 10.03.2020 itself. He also admits that he himself has not lodged any report on the date of incident and his statement were also not recorded on the same date. He admits that on 10.03.2020 when the police persons have not registered the FIR, they have not made any complaint to any of the higher authorities. In paragraph 29 of his deposition he admits that he has not seen the incident and in his police statement Ex. D/2 he has not stated that he identified by face and names the accused persons Raj Mishra, Rishabh Paswan and Somnath. On 12.03.2020 he has not disclosed to the police as to who has committed murder of his brother. There was no dispute or enmity of his brother with the accused Somnath, Rishabh Paswan or even with Raj Mishra. Though there was money transaction between Raj Mishra and his brother, however there was no dispute between them with respect to any money transaction. 34. From the evidence of this witness also it is clear that he is not an eyewitness to the incident. Though there was money transaction between Raj Mishra and his brother, however there was no dispute between them with respect to any money transaction. 34. From the evidence of this witness also it is clear that he is not an eyewitness to the incident. He reached on the spot after the incident and when his brother was already taken to Hospital. In his statement he has stated that he saw the accused persons were standing. Accused Raj Mishra was also standing there armed with weapon. His police statement was recorded on 12.03.2020 i.e. after about two days of incident. From the evidence of other eyewitnesses, it appears that Raj Mishra fled away from the spot by his car immediately after the assault made upon the deceased, but this witness have stated that he has seen the accused Raj Mishra standing there having club in his hand. Further there is no report by him on the date of incident itself and he has not made any complaint to the higher authorities with respect to non-lodging of FIR by the police against the alleged incident. He also denied the material part of his police statement by giving it to the police. By not supporting his police statement, he himself makes his evidence doubtful that he actually has seen the incident. 35. PW-8, Smt. Usha Yadav, mother of deceased is the witness of fact that on the date of incident his son was called by the appellant Raj Mishra by his mobile phone and then his son left his house saying that he is going to play Holi and thereafter at about 3 pm the Doctor of Sector-9 Hospital have informed her that her son is being murdered. Factually, she is the witness of motive for which her evidence will be discussed later on. With respect to calling by appellant Raj Mishra, she has stated that she could not know mobile number of her son as well as the appellant Raj Mishra. She has not given her police statement for about a year because she was not in a position to give her statement till that time. 36. With respect to calling by appellant Raj Mishra, she has stated that she could not know mobile number of her son as well as the appellant Raj Mishra. She has not given her police statement for about a year because she was not in a position to give her statement till that time. 36. PW-14, Radhe Prasad Yadav, the father of deceased, have stated that on the date of incident when he was in his house along with his wife and son Shailesh (since deceased), an incoming call of Raj Mishra was received in the mobile phone of his son Shailesh. He asked about his presence at Bhilai and then he called him to play Holi. Thereafter, Shailesh left his house saying that he is going to play Holi as Raj Mishra has called him. When he did not come back for a considerable time, his wife called him on mobile thrice however he did not respond and therefore her elder brother son Sanjay was being asked to make his search. When Sanjay Yadav had gone to Vrinda Nagar, near Andhra School, he saw a mob and someone has informed him that his brother Shailesh is being murdered and he was taken to Hospital. When Sanjay reached on the spot, he saw appellant Ramkuber Gupta having weapon in his hand and hurling threat that whoever give evidence against him, he too will be treated like Shailesh. On information received from the spot, his son had gone to Sparsh Hospital. He too received a telephonic call from Sparsh Hospital and asked him to come hospital as early as possible and informed him that his son has been murdered. When he went to Sparsh Hospital, he saw the dead body of his son having various injuries all over his body and thereafter he has taken his son (Shailesh) to Sector-9 Hospital, Bhilai where he was declared brought dead. At that time, the police also reached in the hospital. They kept the dead body in mortuary and lodged a report at Vaishali Nagar Police Station. When the police have not arrested any accused persons, he again went to the police station along with people of vicinity and community and requested the police persons to arrest the accused persons. In the meantime, the appellant Raj Mishra was being taken to police station and he (Raj Mishra) disclosed the names of assailants of his son. When the police have not arrested any accused persons, he again went to the police station along with people of vicinity and community and requested the police persons to arrest the accused persons. In the meantime, the appellant Raj Mishra was being taken to police station and he (Raj Mishra) disclosed the names of assailants of his son. The appellant Raj Mishra have disclosed the names of 8 accused persons i.e. Ramkuber Gupta, Munir Gupta, Sunil Gupta, Gopirao, Ramesh Jangde, Somnath and Rishabh Paswan. The fact that the wife of Ramkuber Gupta gave a sword like weapon to Ramkuber Gupta was disclosed by witness Ramhari Gond. At the time when the appellant Raj Mishra have disclosed the incident to the police, till that time the offence was not recorded, and he has taken the dead body of his son to his house. When the offence was not registered, he approached before the higher police authorities where they asked him to give his statement and then only the police proceedings could be started and he gave his statement. After about a year, the wife of Ramkuber Gutpa and Ramesh Jangde came to his house and asked him not to give his evidence against their husband which was reported by him with the police and his complaint is Ex. P/52. He came to know about the assailants of his son from the witnesses. In cross examination, he has admitted that he is not an eyewitness. He did not know as to whether his son Shailesh was having any enmity with the appellant Raj Mishra, Rishabh Paswan and Somnath. He denied some part of his police statement Ex. D/3 about telephonic call made by Raj Mishra to his son which was heard by him and his wife and that his son left his house for Vrinda Nagar to play Holi on a call received from accused Raj Mishra. He also denied that when he had gone to the police station along with the persons of vicinity and community members for lodging report and arresting the assailants, the appellant Raj Mishra was being taken to police station and he disclosed the name of assailants. He admits that on 10.03.2020 neither his statement was recorded by the police, nor he has given any written complaint to the police. He voluntarily states that he has given written complaint to the police on 11.03.2020. He admits that on 10.03.2020 neither his statement was recorded by the police, nor he has given any written complaint to the police. He voluntarily states that he has given written complaint to the police on 11.03.2020. He further states that on 12.03.2020 he has given a written complaint to police station Vaishali Nagar for registration of offence for commission of murder of his son Shailesh Yadav vide Ex. P/65. He admits that he has given his 161 CrPC statement to the police on 13.03.2020. He also admits in his statement Ex. D/3 that there is no mention about the fact that Raj Mishra was being called to police station and he disclosed the names of assailants. He admits that in his written complaint Ex. P/65 it is not mentioned that who was present along with Raj Mishra while he was giving his statement to the police. 37. PW-13, Lallan Singh, have stated in his deposition that on 11.03.2020 at about 12 in the noon, he recorded merg intimation Ex. P/45 on the basis of intimation given by Jairam, PW-12. He went to the spot and gave notices to the witnesses for inquest. Inquest of dead body was prepared by him in presence of the witnesses which is Ex. P/4. On 12.03.2020 at about 22:35 hours the FIR Ex. P/48 has been registered against the accused Raj Mishra, Rishabh Paswan, Munir Gupta, Ramesh Jangde, Gopirao, Somnath, Sunil Gupta and Kuber Gupta. On 11.03.2020 he had gone to the place of occurrence and prepared spot map Ex. P/5, seized the bloodstained and plain soil from the spot vide Ex. P/49. On 12.03.2020 he seized the clothes of the deceased in a sealed packet received from Govt. Hospital, Supela, vide seizure memo Ex. P/15. In cross examination, he admits that before proceeding for inquest he issued notices to witness Sanjay Yadav, i.e. brother of the deceased, Satyendra Yadav, Thakur Prasad Yadav and Shambhu Yadav who were present at the time of inquest, but none of them have named the assailants. He admits that on the basis of written complaint given by the father of the deceased Radhe Prasad Yadav, he registered an FIR Ex. P/48, but written complaint was not annexed with the final report for which he could not tell the reason. He voluntarily states that the written complaint made by Radhe Prasad Yadav is available in the case diary. P/48, but written complaint was not annexed with the final report for which he could not tell the reason. He voluntarily states that the written complaint made by Radhe Prasad Yadav is available in the case diary. He admits that it should have been made part of final report, but he has not annexed it with the final report bonafidely. He admits of his not collecting any call details or CDRs in the case. 38. PW-15, Dilip Singh Sisodiya, DSP, posted as Town Inspector at Police Station Vaishali Nagar on the date of incident, has stated in his evidence that he received case diary of the case for further investigation on 13.03.2020. On 13.03.2020 he recorded memorandum statement of accused Raj Mishra vide Ex. P/13, accused Rishabh Paswan Ex. P/12, accused Ramesh Jangde Ex. P/11, accused Gopirao Ex. P/10, accused Shambhu Gupta, Ex. P/9, accused Ramkuber Gupta Ex. P/8, accused Somnath @ Akshay Ex. P/7 and accused Sunil Kumar Gupta Ex. P/6 in presence of the witnesses. On 13.03.2020 itself a Verna Car bearing registration No.CG-07-MB-0279 was seized from the accused Raj Mishra vide seizure memo Ex. P/14. At the time of seizure, windshield of the said Car was broken. On 13.03.2020 itself a flattened iron rod having blood like stained was seized from accused Raj Mishra vide Ex. P/15. Bamboo club was seized from accused Somnath @ Akshay vide seizure memo Ex. P/22, Bamboo club was seized from accused Sunil Kumar Gupta vide Ex. P/21, Bamboo club from accused Rishabh Paswan vide Ex. P/20, Bamboo club was seized from accused Ramesh Jangde vide Ex. P/19, Bamboo club was seized from accused Ramkuber Gupta vide Ex. P/18 and another Bamboo club was seized from accused Gopi Rao vide Ex. P/17. Seized articles were sent for their FSL examination. He arrested all the accused persons and recorded 161 CrPC statement of the witnesses Harishchan Yadav, Ramhari, manish Yadav, Usha Yadav, Thakur Prasad, Sunil Pandey, Radheprasad Yadav, Satyendra Yadav and Sanjay Yadav. In cross examination, he admits that he recorded the statement of accused Raj Mishra on 13.03.2020 Ex. P/13 at about 8 am. In his memorandum statement he has not stated anything about his Car. There is no evidence in the final report that who is the owner of the Car which is said to have been seized from the accused Raj Mishra. P/13 at about 8 am. In his memorandum statement he has not stated anything about his Car. There is no evidence in the final report that who is the owner of the Car which is said to have been seized from the accused Raj Mishra. He further admits that he recorded the memorandum statement of the accused persons between 8 am to 9:45 am. He also admits that the time of seizure of the Car is mentioned at 8:20 am. The Car has been seized from Sangram Chowk, Vaishali Nagar. He could not explain about his presence in both the places at the same time as he admits that he recorded memorandum statement at police station whereas, at the same time the seizure of Car is shown to be from Sangram Chowk, Vaishali Nagar. He further states that he could not tell the reason as to why evidence with respect to owner of the Car has not been collected. He also states that the place from where the weapon of assault is said to have been seized from the accused persons are an open place and accessible to anyone. He admits that time of taking custody of the accused persons have not been mentioned in the final report. The articles have been seized on 13.03.2020, but the same was sent for its FSL examination after about 1 and ½ months and there is no reason for delay of the same. The seized articles were kept in a safe custody of Malkhana, but no Malkhana register or Rojnamcha was produced in the case to prove the fact that the articles were kept in a safe custody at Malkhana. Even Malkhana Mohrir have not been made witness in the case. He also states that he could not tell the reason as to why the seized weapons of assault were sent for its query report before the doctor after a period of one month. He further states that he has recorded statement of witnesses whatever they have stated, and nothing more than that. The witness Sanjay Yadav have not stated in his police statement that he saw the appellant Raj Mishra having club in his hand. He admits that witness Radhe Prasad Yadav have not stated in his police statement that the appellant Raj Mishra was being taken to police station and he disclosed the name of assailants. The witness Sanjay Yadav have not stated in his police statement that he saw the appellant Raj Mishra having club in his hand. He admits that witness Radhe Prasad Yadav have not stated in his police statement that the appellant Raj Mishra was being taken to police station and he disclosed the name of assailants. He has also not disclosed about the telephonic call made by appellant Raj Mishra to his son about calling him to play Holi. He reiterates that whatever there in 161 CrPC statement of the witnesses, they have stated before him and the same has been reduced in writing in their 161 CrPC statement. The persons of the vicinity of the place where the incident took place have not been made witnesses in the case. In the case diary there is no endorsement that on the date of incident the appellant Raj Mishra has not made any telephonic call to deceased Shailesh Yadav. It was inquired by Constable Ajay Gehlot through True Caller and found that on the date of incident Raj Mishra had not made any telephonic call to deceased Shailesh Yadav. 39. In the present case, the prosecution has projected the evidence of eyewitnesses PW-1 Harischand Yadav, PW-4 Sunil Pandey, PW-5 Ramhari Gond and PW-6 Manish Yadav. The 161 CrPC statement of PW-1 Harishchand Yadav was recorded on 02.04.2020 i.e. after about 23 days of the incident. In his 161 CrPC statement he named all the accused persons whereas, in his deposition before the court he has stated that only five accused persons were assaulting the deceased. He further states that on instructions of the police persons, his 164 CrPC statement has been recorded. Despite having seen the incident, neither he informed the police nor informed the family members although he states in his deposition that when he went to the house of the deceased, his house was found locked, but he did not inform to anyone of nearby vicinity. As per his evidence, after about 2 days of the incident, he went to the house of the deceased to know about the incident which clearly reflects that he himself has not seen the actual incident. There are material contradictions in his evidence with that of his 161 and 164 CrPC statement. As per his evidence, after about 2 days of the incident, he went to the house of the deceased to know about the incident which clearly reflects that he himself has not seen the actual incident. There are material contradictions in his evidence with that of his 161 and 164 CrPC statement. He states that he knows the family of the deceased much prior to the date of incident and despite that his conduct of not having informed about the incident and went to his house makes his evidence doubtful as to whether he actually has seen the incident or not. 40. The other witness PW-4, Sunil Pandey, whose 161 CrPC statement was recorded on 13.03.2020 i.e. after about 3 days of incident, have been declared hostile and have not supported the case of the prosecution. He denied of his giving police statement Ex. P/33 and 164 CrPC statement Ex. P/32. When the prosecution projected him as an eyewitness and he does not support its case, it gives strength to the defence of the accused persons. 41. Another eyewitness is PW-5 Ramhari Gond, whose 161 CrPC statement Ex. P/35 was also recorded on 02.04.2020 i.e. after about 23 days of the incident. He is the friend of the deceased and known to his family also, yet after seeing the incident he has not disclosed about the incident either to the police or to the family members of the deceased. Although, this witness has also stated that when he went to the house of the deceased to inform his family members, his house was found locked and when he returned back to Sparsh Hospital, the father of the deceased had already reached there and he along with his father had taken the deceased to Sector-9 Hospital together. He immediately informed the father of the deceased about the names of five assailants who assaulted the deceased. There is material omissions and contradictions also in his evidence with that of his 161 and 164 CrPC statement. This witness has stated that on the date of incident itself he informed about the incident to the father of the deceased PW-14-Radheprasad Yadav, however, Radhe Prasad Yadav have not stated in his evidence that on the date of incident itself PW-5 have informed him about the names of assailants, and he was witness to the incident. This witness has stated that on the date of incident itself he informed about the incident to the father of the deceased PW-14-Radheprasad Yadav, however, Radhe Prasad Yadav have not stated in his evidence that on the date of incident itself PW-5 have informed him about the names of assailants, and he was witness to the incident. PW-5 also have been declared hostile in some part of his police statement and denied of his giving some part of statement Ex. P/35. 42. Other eyewitness is Manish Yadav, PW-6, whose 161 CrPC statement have been recorded on 09.04.2020 i.e. after about 29 days of the incident. He has not informed the incident either to the police or to the family members of the deceased. This witness was having business transaction with the deceased, yet he has not informed about the incident to anyone and had gone to Raipur. He too have been declared hostile and denied some part of his police statement Ex. P/35. There is material omissions and contradictions in the evidence of this witness also with that of his 161 CrPC statement. 43. PW-2, Sanjay Yadav, brother of the deceased, and also claiming to be an eyewitness, have stated that on the date of incident when he reached on the spot, he saw that there was a mob gathered on the spot and accused Ramkuber Gupta was having flattened iron rod, Munir Gupta, Sunil Gupta, P. Gopirao, Ramesh Jangde and Raj Mishra all were also standing there having Lathis. The accused Ramkuber Gupta was hurling threat for dire consequences if anyone gives evidence against him. Immediately after seeing the dead body on the date of incident, he along with his father i.e. PW-14 Radhe Prasad had gone to the police station for lodging of the report, but his 161 CrPC statement has been recorded on 13.03.2020 i.e. after about 3 days of incident. Had he gone to the police station on the date of incident itself and was an eyewitness to the incident, his statement should have been recorded first and not after three days of the incident. Had he gone to the police station on the date of incident itself and was an eyewitness to the incident, his statement should have been recorded first and not after three days of the incident. Further, from the evidence of other eyewitness it appears that the appellant Raj Mishra had crushed the body of the deceased by Car and ran away then the presence of the appellant Raj Mishra on the place of incident as seen by PW-2 is also doubtful particularly when other eyewitnesses have specifically denied about involvement of accused Raj Mishra in the offence in question. 44. The 161 CrPC statement Ex. D/3 of Radhe Prasad Yadav, who is the father of the deceased, was also recorded on 13.03.2020. He has not stated in his deposition that his son Sanjay Yadav, PW-2, have disclosed about the incident and he saw the other accused persons standing there having Lathis in their hand. This witness has stated in his deposition that when he informed the police about the incident on the date of incident itself, the police have not taken any action against any of the accused persons. Thereafter, he along with the persons of the vicinity again went to the police station and in the meantime the accused Raj Mishras was brought in the police station by the police persons and then Raj Mishra has disclosed the names of assailants who have assaulted the deceased. He has further stated that the accused Raj Mishra has disclosed about eight accused persons. 45. From the overall evidence of the eyewitnesses, it appears that there is material inconsistencies in the evidence of all the eyewitnesses. 46. In the matter of Muluwa Vs. State of Madhya Pradesh, AIR 1976 SC 989 , the Hon’ble Supreme Court has held that inconsistency of the eyewitnesses is fatal to the prosecution. In paragraph 18 it has been held as under: “18. It is elementary that the evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted. Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial judge had no basis, whatsoever for stigmatising it as unreliable.” 47. Since the evidence of P.Ws. 5 and 6 suffered from the same infirmities as that of Smt. Jugatia, it cannot be said that the trial judge had no basis, whatsoever for stigmatising it as unreliable.” 47. So far as delay in recording statement of the witnesses is concerned, 161 CrPC statement of the witnesses PW-2 Sanjay Yadav, PW-4 Sunil Pandey and PW-14 Radhe Prasad Yadav was recorded on 13.03.20220 i.e. after 3 days from the date of incident. There is no explanation as to why delay in recording statement was occurred when they were very much available. The Hon’ble Supreme Court in Shahid Khan Vs. State of Rajasthan, 2016 (4) SCC 96 , has held that three days delay in recording statement of eyewitness is fatal to the prosecution’s case in paragraph 20 as under: “20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt.” 48. In Hasan Murtza Vs. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt.” 48. In Hasan Murtza Vs. State of Haryana, 2002 (3) SCC 1 , dealing with the same issue of delay in recording 161 CrPC statement, it was observed as under: “…..The conclusion of ours is further strengthened by the fact that the incident in question is supposed to have taken place at about 7 p.m. but according to evidence on record her statement was recorded only at 10 p.m. after her son had informed the police and this delay also contributes to our doubt as to the presence of PW 4 at the time of incident.” 49. So far as motive is concerned, the prosecution has led evidence of the mother of the deceased, PW-8 Usha Yadav. She has stated in her evidence that her son borrowed Rs. 50,000/- from the accused Raj Mishra. He was harassing him for repayment of the said amount. This witness was also declared hostile on some part of her evidence and have not deviated from her police statement Ex. D/1. There is no clinching evidence with regard to motive for commission of murder of the deceased. The evidence of PW-8 is not of that sterling quality which can be relied upon for considering the motive to commit the offence. In the case based on circumstantial evidence, the motive has an important role to bring home the charge against the accused persons. 50. In a case reported in 2010 (6) SCC 525 , Niranjan Panja Vs. State of West Bengal, in paragraph 15 of its judgment the Supreme Court has held that motive has an important role in a case based on circumstantial evidence. Although, in the present case, the prosecution’s case is based on eye witnesses but they are unreliable and their evidence are untrustworthy, therefore, the motive has an important role in the present case. In the present case, a link of motive is missing to complete the chain of circumstances. 51. Further, while convicting the accused persons the trial court has considered 164 CrPC statement of the witnesses. In the matter of Ram Kishan Singh Vs. In the present case, a link of motive is missing to complete the chain of circumstances. 51. Further, while convicting the accused persons the trial court has considered 164 CrPC statement of the witnesses. In the matter of Ram Kishan Singh Vs. Harmit Kaur & another, 1972 (3) SCC 280 , the Hon’ble Supreme Court has held that statement recorded under Section 164 CrPC is not the substantive evidence, it can only be used for corroboration of the statement of the witnesses. In paragraph 8, it was held as under: “8. A statement under Section 164 of the CrPC is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness. The first information report was considered by the Sessions Judge. Any special consideration of the statement of Hazura Singh under Section 164 of the CrPC could not have produced a different result by reason of the conclusions of the Sessions Judge as to rejecting the oral evidence of Nihal Knur, Harmit Kaur and Hazura Singh as unreliable, untruthful and unworth of credence.” 52. In George and Others Vs. State of Kerala & Another, 1998 (4 ) SCC 605, the Hon’ble Supreme Court has held in para 36 of its judgment as under: “36. We may now turn to the evidence of P.W.50, detailed earlier. From the judgment of the trial Court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164 Cr.P.C. and not his evidence in Court. The said statement was treated as substantive evidence; as would be evident from the following, amongst other observations made by the learned trial Court:- "If Ext. P.42 (the statement recorded under Section 164 Cr.P.C.) is found to be a genuine statement it can be used as an important piece of evidence to connect the accused with the crime". In making the above and similar comments the trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him. Instead of appreciating the evidence of P.W.50 from that perspective the trial Court confined its attention mainly to his statement so recorded and discredited him. Instead of appreciating the evidence of P.W.50 from that perspective the trial Court confined its attention mainly to his statement so recorded and discredited him. This legal infirmity apart, factually also the trial Court committed patent errors. As earlier noticed, one of the grounds for disbelieving him was that in the trip sheet the name of the person who performed the journey, namely, A1 was not shown. If the trial Court had cared to look into the other trip sheets which form part of Ext. P.54 it would have found that in none of them the name of the person who hired the car is mentioned. The trial Court was, therefore, not at all justified in commenting upon such non-mentioning of the name of the hirer and concluding therefrom that the document was suspect. The comments of the trial Court that P.W.50 made the statement before the Magistrate (Ext. P.42) to oblige the police as his brother was arrested in connection with an excise case is also without any basis whatsoever. In drawing the above inference the trial Court was much influenced by the fact that the car in question, namely, KEK 3114 was seized by the police May 31, 19920 and that it was released on June 28, 1990. According to the trial Court it was wrongfully detained by the police for such a long period to compel P.W.50 to make a statement according to its dictate. Once a car is seized in connection with a case it can be returned pursuant to the order of a competent Court only and there is nothing on record to indicate that inspite of such an order the car was not returned so as to entitle the trial Court to comment that the long detention of the car was itself a suspicious circumstance. Having gone through the evidence of P.W.50 we find that each of the reasons canvassed by the trial Court for disbelieving P.W.50 is either legally unsustainable or factually incorrect.” 53. So far as memorandum statement of accused persons and based on it recoveries of weapon of assault is concerned, it is the prosecution’s case that from the accused persons recovery of Bamboo lathis and Verna Car were made (as per detail list provided in the earlier paragraph) which are sought to be proved by its witnesses PW-3, Shahid Husain and PW-7 Kunal Patnayak. PW-3 Shahid Husain have turned hostile and have not supported the case of the prosecution. However, PW-7, Kunal Patnayak, have stated that the weapon of assault have been seized from only five accused persons and in his presence they have given their memorandum statement and seizures have been made from them. He has stated in his deposition that Lathis have been seized from accused Sunil, Somnath, Ramkuber, Shambhu, Gopirao and Ramesh Jangde. He denied seizure of any article or weapon of offence from accused Raj Mishra and Rishabh Paswan. PW-15, Dilip Singh Sisodiya, who is an Investigating Officer, have stated in his deposition that he sent the seized weapon of offence for its FSL examination to FSL Raipur on 23.04.2020 vide memo Ex.P/63. In cross examination he admits that the place from where the clubs were seized from the accused persons are open places and accessible to common people. He further states that the weapon of offence is seized from the accused persons on 13.03.2020 but was sent for its FSL examination after about 1 and ½ months. He admits that there is no reason for delay in sending the seized articles for FSL examination. He also states that seized articles/weapon of offence was given to Malkhana Mohrir to keep it in safe custody at Malkhana, but in the present case neither any Malkhana register has been produced nor Malkhana Mohrir have been made witness to prove that the seized articles/weapon of offence were kept in safe custody and there is no tempering in the same. He states that he could not tell as to why the seized articles were sent for its query to doctor after about a month. 54. Further, there is no blood group detected in the FSL report Ex. P/65 to connect the weapon of offence used by the accused persons and the same blood group was found in it as that of blood group of the deceased. Although, human blood was found on the clubs, but the same itself is not sufficient to connect the accused persons in the offence in question, particularly when the said weapon of offence was seized from open place accessible to all. 55. Recently, in Raja Naykar Vs. Although, human blood was found on the clubs, but the same itself is not sufficient to connect the accused persons in the offence in question, particularly when the said weapon of offence was seized from open place accessible to all. 55. Recently, in Raja Naykar Vs. State of Chhattisgarh, 2024 SCC Online SC 67, the Hon’ble Supreme Court has held that in absence of any report regarding blood group of the deceased and recovery of weapon of offence which have been seized from an open place, the same cannot be used to connect the accused persons in offence in question. In paragraphs 25, 26 and 29 of its judgment it was observed as under : “25.The Property Seizure Memo would show that the dagger was seized from a place accessible to one and all. According to the prosecution, the incident took place on 21st October, 2009 and the recovery was made on 25th October, 2009. 26. As per the FSL report, the blood stains found on the dagger were of human blood. However, the FSL report does not show that the blood found on the dagger was of the blood group of the deceased. Apart from that, even the serological report is not available. xxxx xxxx xxxx 29. It can thus be seen that, the only circumstance that may be of some assistance to the prosecution case is the recovery of dagger at the instance of the present appellant. However, as already stated hereinabove, the said recovery is also from an open place accessible to one and all. In any case, the blood found on the dagger does not match with the blood group of the deceased. In the case of Mustkeem alias Sirajudeen v. State of Rajasthan, this Court held that sole circumstance of recovery of blood-stained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the accused. Thus, we find that only on the basis of sole circumstance of recovery of blood-stained weapon, it cannot be said that the prosecution has discharged its burden of proving the case beyond reasonable doubt.” 56. The accused persons have tried to build up their defence by examining five defence witnesses namely Saroj Verma, DW-1, Jai Prakash Jaiswal DW-2, Dikesh Kumar Dewangan, DW-3, Somvati, DW-4 and Sharda Shinde, DW-5. The accused persons have tried to build up their defence by examining five defence witnesses namely Saroj Verma, DW-1, Jai Prakash Jaiswal DW-2, Dikesh Kumar Dewangan, DW-3, Somvati, DW-4 and Sharda Shinde, DW-5. All the defence witnesses were on the point that deceased died due to road accident. All the witnesses have stated in their deposition that they saw the accident caused by a vehicle and the vehicle was run away after causing accident. Since it is found from the above discussions and the evidence of doctor that no any mark of crushing by vehicle or Tyre marks were found on the body of the deceased, the evidence of these defence witnesses are not reliable and their attempt to build the case as an accident case are deprecated. Even if the accused persons are found that they are taking false defence in the case, that itself would not be sufficient to hold guilty of the accused persons and burden castes upon the prosecution to prove its case against the accused persons beyond any reasonable doubt. The prosecution is under obligation to prove each and every connecting evidence with unimpeachable evidence which pointing out the guilt of the accused persons unerringly. 57. In Raja Naykar Vs. State of Chhattisgarh (Supra), the Supreme Court has again held that false explanation or non explanation of the accused can only be taken into consideration only after proving the case beyond all reasonable doubts by the prosecution, but that is not the situation in the present case as in the present case the prosecution has failed to prove its case beyond all reasonable doubts against the accused persons. In paragraph 31 of its judgment, the Supreme Court has held as under: “31. Insofar as the finding of the High Court that the appellant has failed to give any explanation in his statement under Section 313 Cr. P.C. is concerned, we find that the High Court has failed to appreciate the basic principle that it is only after the prosecution discharges its duty of proving the case beyond all reasonable doubt that the false explanation or non-explanation of the accused could be taken into consideration. P.C. is concerned, we find that the High Court has failed to appreciate the basic principle that it is only after the prosecution discharges its duty of proving the case beyond all reasonable doubt that the false explanation or non-explanation of the accused could be taken into consideration. In any case, as held by this Court in the case of Sharad Birdhichand Sarda, AIR 2011 SC 2769 =2011 INSC 487 (supra), in a case based on circumstantial evidence, the non-explanation or false explanation of the accused under Section 313 Cr.P.C. cannot be used as an additional link to complete the chain of circumstances. It can only be used to fortify the conclusion of guilt already arrived at on the basis of other proven circumstances.” 58. In the present case, the eye-witnesses as projected by the prosecution are not reliable. There are material inconsistencies in their evidence. Delayed recording of their statement are also fatal to the prosecution. The memorandum and recovery of Lathis from the accused persons are not sufficient to connect them in the offence in question as the same were sent for FSL examination after about 1 and ½ months of its seizure. There is no evidence on record that the said articles were kept in a safe custody of Malkhana and there was possibility of tempering with the same. 59. In the result, both the appeals are allowed. The appellants/accused persons are acquitted from all the charges giving them the benefit of doubt. The impugned judgment of conviction and sentence dated 21.09.2023 is set aside. The appellants are reported to be in jail. They be set at liberty, if not required in any other case. 60. Keeping in view the provisions of section 437-A of Cr.P.C., the appellants are directed to forthwith furnish a personal bond in terms of Form No.45 prescribed in the Code of Criminal Procedure of some of Rs. 25,000/- with one reliable surety in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgement or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 61. 61. The trial court records along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.