JUDGMENT Shiv Kumar Sharma, J.
1. The six appellants, who were the accused on the file of learned Special Judge (Prevention of Sati) and Additional Sessions Judge, Jaipur City bearing Sessions Case No. 42/1997, found guilty for having committed offences under Sections 302/149 and 148 of the Indian Penal Code vide judgment dated 14.12.1998 and each of them was convicted and sentenced as under:
under Section 148, IPC to suffer three years R.I. All the sentences were directed to run concurrently. 2. The appellants, in the instant appeal, seek to impugn the aforequoted judgment.
3. As per the prosecution story some unknown person on 12.4.1996 around 4.45 p.m. gave a call on telephone to Police Station, Vidhayakpuri, Jaipur City that quarrel had been picked up near Prince Tailors at M.I. Road. The information was entered in Rojnamcha at No. 1077 (Ex. P. 43A) and Rajendra Singh SHO (PW-14) reached at the spot where Naeem Ahmed (PW-1) handed over him a written report (Ex.P. 1) at 5.15 p.m. It was inter alia stated in the report by Naeem Ahmed that he along with his brother Hasin PW-3 and Jahin (PW-2) were standing outside Delux Hotel and chewing betels. Muin Ahmed (now deceased) then came out of the Hotel and proceeded to meet one Baboo ji. But shortly that after muin Ahmed was seen running in the midst of noises and chased by Ajij, Sakir, Riyajuddin, Mohammed Umar, Mohammed Hussain and Salam. Abdul Aziz was armed with Chhuri, Riyaz and Salam were armed with Farsies, Mohd. Umar was having iron pipe and Sakir and Mohammed Hussain were armed with Sariyas (iron rods). Aziz shouted at Muin Ahmed that he was the root cause of quarrel, lest he should not be spared and all of them started beating up Muin. When Naeem and his brothers attempted to intervene the accused chased them waving the weapons and forced them to rush to their life. After some time when they came back, the police had already taken his brother to the Hospital. SHO Rajendra Singh sent the report to Police Station, Vidhayak Puri through constable Hargyan Singh where FIR No. 143/96 was registered under Sections 147, 148, 149, 333, 324 and 307 IPC. The report was entered in the Rojnamcha at No. 1080 at 5.25 p.m. and investigation commenced.
4. Another report (Ex. D. 6) was entered in the Rojnamcha at No. 1083 at 5.50 p.m. to the effect that constable Ramavtar (PW-.7) came to the police station alongwith accused Riyajudeen and Umar and informed that while he and constable Vinod Kumar (PW-9) were on patrolling duty at M.I. Road they heard noise around 4.30 p.m. near the shop of Prince Tailors and there he saw two armed persons running after beating one Muin. Leaving constable Vinod Kumar at the place of occurrence, Ramavtar chased them. Near Animal Hospital at Gopi Nath Marg they threatened Ramavtar that one had already been killed by them and he also would not be spared. Ramavtar then aimed his rifle at them and warned them to stop. Those two persons were Riyazuddin and Umar. Riyazuddin was armed with Pharsa and Umar was having iron pipe. Ramavtar took both of them under control, brought them in a tempo to the police station and surrendered them with their arms.
5. On receiving the information about death of Muin, Section 302 IPC was added. Necessary memos in regard to inquest report, site plan, recoveries of blood stained clothes and shoes of the deceased, blood, piece of road and soil, iron pipe, piece of Nal Diary and Photostat Marksheet and Heropuch No. RJ 14- 5/M/3916 were drawn. Post mortem on the dead body of Muin was conducted. Statements of witnesses under Section 161, CrPC were recorded. Accused were arrested and at their instance arms and blood stained cloths were recovered. Injuries on the person of appellants Mohd. Hussain and Abdul Aziz were got examined. Articles were sent to FSL. On completion of investigation charge sheet was laid. In due course the case came up for trial before the learned trial judge. Charges under Sections 302/149 and 148 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution examined as many as 24 witnesses and got exhibited 55 documents. The appellants claimed innocence in their statements under Section 313, CrPC. One witness in defence was examined by the appellants. The learned trial judge on hearing the final submissions convicted and sentenced the appellants as indicated hereinabove.
6. To bring home the guilt against the appellants the prosecution placed reliance on the evidence of eight eye witnesses namely Naeem Ahmed (PW-1), Jahin Ahmed (PW-2), Hasin (PW-3), Abdul Malik (PW-5), Naushad (PW-6), Ramavtar Sharma (PW-7) Jiyauddin (PW-8) and Vinod Kumar (PW-9) besides the find of human blood on the weapons allegedly recovered at the instance of the appellants and on their clothes.
7. Naeem (PW-1), Jahin (PW-2) and Hasin (PW-3) are the real brothers of the deceased. Naeem in his examination in chief stated that he had seen the appellants armed with Chhuri, Farsies, iron pipe and Sariyas and they were chasing Muin. After instigation of appellant Aziz that Muin was the root cause of quarrel, all the appellants assaulted Muin. When he and his brothers Jahin and Hasin attempted to intervene the appellants chased them waving the weapons and forced them to rush to their life. In the cross examination Naeem admitted that he and Muin were involved in a murder case. When he saw his brother Muin running towards Hotel, Muin did not receive injury till then. He did not see as to on which part of Muin's body first injury was caused but he did see injury caused on the back of Muin with Farsi. Naeem further deposed that at 4.30 p.m. when two police persons came at the spot, he was not present only two minutes before 4.45 p.m. he ran to his life, at that time Muin was lying. When he came back to the spot he found Rajendra Singh SHO and other police persons there. After running for his life he neither went to the police station to lodge the report nor did he inform the police on telephone. He alone came back to the spot, his brothers Jahin and Hasin did not come back although all the three brothers ran for their life together. Naeem further deposed that when appellants were beating up Muin neither did he make hue and cry nor he called any body to help. When he came to the spot police asked him as to how the incident had happened then he narrated the incident to the police. The police then asked him to write the report. He did not go to the Hospital that day.
8. Jahin (PW-2) in his examination-in-chief almost reproduced the version narrated by Naeem. He only added that after running to their life he and his brother Hasin went to the Hotel from where Hasin informed about the incident to the Police Station, Vidhayakpuri. After sometime when they went back to the place of occurrence police had already arrived and there they came to know that Muin was removed to Hospital. He then went to the Hospital and came to know that Muin was dead. In the cross-examination Jahin admitted that he was charge sheeted by police under Gunda Act and was implicated in a murder case. He further deposed that when he came back to the place of incident he did not disclose to police that he had seen the incident. He did not even disclose his name to police.
9. Hasin (PW-3) also repeated the same version which was narrated by his brother Naeem and Jahin. In his cross-examination he stated that as soon as he reached Hotel he gave a telephonic call to police and informed that quarrel had been picked up at M.I. Road. He however admitted that he did not inform the police that the appellants were beating up Muin. From the roof of the Hotel he and Jahin gazed at the road but they could only see crowd and police persons, Muin was not there on the road. When they reached at the place of occurrence they found Naeem writing the report. He admitted that he was chargesheeted under the Gunda Act and remained in Jail for eleven months in a murder case.
10. Sampat Raj Dy. S.P. (PW-4) in his deposition stated that on receiving information at 4.30 p.m. that quarrel had been picked up near Khetan Bhawan M.I. Road, when he reached at the spot he found an injured person lying unconscious on the road opposite Khetan Bhawan. With the help of police he took the injured to the SMS Hospital and informaed Control Room on wireless. The person gathered there informed him that the injured was Muin, an owner of Delux Hotel and the assailants ran towards 'Panch Batti'. In his cross-examination Sampat Raj deposed that no body from the crowd disclosed the names of assailants to him.
11. Abdul Malik (PW-5) stated that around 4 and 4.30 p.m. when he was at the corridor of his shop and instructing his worker Naushad about the work, he heard noise. He then saw appellants Mohd. Hussain, Abdul Salam, Abdul Aziz, Mohd. Umar, Riyajuddin and Shakir who were beating up Muin with Chhuri, iron rods, Farsis, and iron pipe. Aziz was instigating to kill Muin as he was the root cause of the quarrel. Hasin, Jahin and Naeem came over there to rescue Muin but they were chased by the appellants and they ran to the life. After some time two police persons came, on seeing them all the five assailants fled away. Riyazuddin and Mohd. Umar ran towards Panch Batti and were followed by two police persons. In his cross-examination Abdul Malik deposed that the police recorded his statement after one week of the incident. He admitted that his shop was closed on the day of incident as it was Friday. He had remained at the place of occurrence till 7 p.m. and around 7.30 and 8 p.m. he proceeded to Tonk. He came back from Tonk on 18th. Naushad did not go to Tonk but he remained at Jaipur. He however did not state in the police statement that he had gone to Tonk and remained there upto 18th. He did not know that till 7 p.m. when he remained at the place of incident Rajendra Singh Incharge Police Station, Vidhayakpuri came over there or not. Site plan was drawn in his presence around 6 p.m.. He had seen the incident at a distance of 15 steps but he did not make any attempt to intervene.
12. Naushad (PW-6) in his examination-in-chief almost repeated the narration given by Abdul Malik. In his cross-examination he stated that on that day he did not inform the police that he and Abdul Malik had seen the incident. His statement was recorded by the police on 17.4.1996. On that day a police constable came to him and told him to reach at the Police Station. He further stated that all six assailants ran towards 'Panch Batti'. When Police Officer came in a Gypsi at the place of incident he did not disclose to him the names of the assailants.
13. Constable Ramavtar Sharma (PW-7) was on patrolling duty along with constable Vinod Kumar at M.I. Road on the date of incident. In his deposition he stated that while he and constable Vinod Kumar were reached near the shop of Prince Tailors they found crowd near the shop and saw six persons armed with Pharasas, iron pipe, Iron rods and Chhuri given beating to one person who was lying in a pool of blood. Seeing them in uniform, they started running. He chased two persons aimed, his rifle at them and warned them to stop. Those two persons who were Riyazuddin and Umar surrendered and thereafter he took them in an autorickshaw to the police station, Vidhayakpuri and produced them there with their arms. The person who was given beating was Muin of Deluxe Hotel, who subsequently died at the Hospital. In his cross-examination Ramavtar stated that he had surrendered the two assailants around 5 p.m.. He also submitted an application around 5.30 p.m. and entered the report in the Rojnamcha. Next day he got copied the application which was kept by him in his house. But neither the written application nor its copy could be produced by Ramavtar in the trial Court. He however admitted that the fact that six persons were beating up one person was not mentioned in the report entered in the Rojnamcha Ex. D.6. He further stated that after surrendering the two assailants he went back to the place of incident and informed Rajendra Singh around 6 p.m. that he had surrendered two assailants alongwith arms to the police station.
14. Jiyauddin (PW-8) stated that on the date of incident around 4.30 p.m. he had gone to M.I. Road to purchase 'India today". There he had seen the appellants given beating to Muin with Pharsis, Chhuri, Iron pipe and Iron Sariyas. He repeated the version given by Naeem word by word. In his cross-examination he stated that he was illiterate and was unable to read and write. He did not know the price of 'India today'. He went for the first time to purchase such a book. He further stated that he did not know that his statement was recorded by the police on 17.4.1996 but he gave statement to the police after five days of the incident.
15. Constable Vinod Kumar (PW-9) stated that on 12.4.1996 he and constable Ramavtar were on patrolling duty. Both were in police uniform and had rifles. Around 4.30 p.m. they found one person lying in a pool of blood and six persons were beating him with Pharsis, Chhuri, Iron pipe and Iron Sariyas. Seeing them in uniform they ran towards 'Panch Batti'. They followed the assailants Ramavtar was ahead of him. Vinod Kumar can only five to seven steps and came back to the person lying on the road. Thereafter he became busy in making telephone call to the police station but could not have any contact. When he came to the place of occurrence he was told that Dy. S.P. took the injured in a Gypsi to the Hospital.
16. Rajendra Singh Shekhawat, Investigating Officer (PW-24) in his cross-examination stated that he reached at the place of incident around 4.55 p.m. and found Vinod constable there. Naeem already had a written report with him that was handedover to him at 5.10 p.m. Constable Vinod then did not tell him that he had seen the incident. He further stated that when he was posted as SHO Police Station, Jalupura, a murder case was registered against the deceased Muin, Naeem, Hasin and Jahin and all of them remained in Jail.
17. Dr. P.N. Mathur (PW-21), conducted post mortem on the dead body of Muin. As many as fifty eight antemortem injuries were sustained by Muin out of which twenty nine were caused by the sharp edged weapons. Cause of his death was shock and haemorrhage as a result of multiple injuries.
18. Mr. S.R. Bajwa, learned Senior Counsel for the appellants contended that presence of alleged eye witnesses Naeem (PW-9) Jahin (PW-2) Hasin (PW-3), Abdul Malik (PW-5) Naushad (PW-6) and Jiyauddin (PW-8) at the spot is doubtful. Naeem, Jahin and Hasin undeniably were daredevils and involved in murder case and the cases under the Gunda Act. It is unbelievable that they would meekly move away so as to facilitate the killing of Muin by the appellants. Their conduct was highly unnatural. It is further urged by the learned counsel that the statement of each eye witness Naeem, Jahin, Hasin, Abdul Malik, Naushad and Jiyauddin is verbatim the same as that of others. Narrations and sequence of events are meticulously in the same order. Therefore it is not safe to place reliance on these witnesses. Reliance is placed on Suresh Rai v. State of Bihar, , Dharam Singh v. State of Punjab AIR 1993 SC 3219 and Sevi v. State of Tamilnadu, . It is next contended by the learned counsel that the Investigating Officer did not record the statement of eye witnesses on the first day despite sufficient opportunity. It raises doubt about the authenticity of the contents of FIR and also the testimony of eye witnesses. Reliance is placed on State of U.P. v. Bhagwan and Ram Ashrit v. State of Bihar . Learned counsel further contended that the Investigating officer had deliberately failed to record the FIR on receipt of congnizable offence and had prepared the FIR after reaching the spot after due deliberations, consultation and discussion, the conclusion becomes inescapable that the investigation is tainted and it would therefore be unsafe to rely upon such a tainted investigation. Reliance is placed on State of A.P. v. Punati Ramallu, . Learned counsel also urged that FIR was sent to Ilaqa Magistrate after three days i.e. on April 15,. The delay was meaningful and it was not explained. Delay in sending FIR to the Ilaqa Magistrate was fatal in view of ratio indicated in Arjun Marik v. State of Bihar, 1994 Supp. (2) SCC 372. Learned counsel next urged that constable Ramavtar (PW-7) in the written application submitted on the date of incident around 5.30 p.m. giving all the details of the incident, he also kept a copy of the application but despite directions of the trial Court those documents were deliberately withheld by the prosecution. The only inference that the trial Court could draw was that if those documents had been produced they would have gone against the prosecution. Reliance is placed on Baljit Singh v. State of U.P. and Ram Das v. State of Maharashtra, . Learned counsel also contended that the Investigating Officer fabricated the evidence of recovery of clothes and weapons and those recoveries were not backed by the information under Section 27 of the Evidence Act. No blood on the weapons and the clothes of the appellants was detected. Recoveries of weapons and clothes from the exclusive possession of the appellants Ajiz, Sakir, Mohd. Hussain and Salam were not established. Reliance is placed on Chandram v. State of Madras, . Rameshwar Prasad (PW-11) who was Malkhana Incharge did not say that the seals on the 22 packets handed over to him were intact. Material witnesses namely Rituraj Associates, S.I. Ram Lal, ASI Bharat Singh H.C. Ghanshyam Pareek Panwala, various police officers who had arrived at the scene of occurrence and Auto Rickshaw Driver were deliberately withheld by the Investigating Officer. Investigating Officer Rajendra Singh kept the seized articles for four weeks without any explanation. Learned counsel canvassed that all the appellants are entitled to acquittal.
19. Per contra Mr. U.N. Sharma, Special P.P. for the State contended that the evidence of Naeem Ahmed (PW-1), Jahin Ahemd (PW-2), Hasin (PW-3), Abdul Malik (PW-5), Naushad (PW-6), Ramavtar (PW-7), Jiyauddin (PW-8) and Vinod Kumar (PW-9) is cogent reliable and inspiring confidence. Merely because Naeem, Jahin and Hasin, happened to be the real brothers of the deceased it cannot be a ground to discard their evidence. The prosecution explained the delay in recording the statements of Abdul Malik, Naushad, Jiyauddin and simply on that ground the convincing and reliable evidence given by them cannot be discarded. Reliance is placed on Bhagwan Singh and Ors. v. State of M.P., 2002 Western Law Cases (SC) Criminal 450, Dr. Krishna Pal and Anr. v. State of U.P., 1996 SCC (Cri) 249, Ganpat Ram v. State of Rajasthan, 1994 CrLR (Raj.) 687, Mal Singh and Anr. v. State of Rajasthan, 1984 WLN 211, State of Rajasthan v. Smt. Kalki and Anr., 1981 CrLR (SC) 350, Bhagirath Singh v. State of Rajasthan, 2001 (1) Crimes 26. It is further contended that inconsistencies and discripancies in the statements of witnesses are but natural and too perfect a proof can only be artificial. Reliance is also placed on Kishan Singh v. State of Rajasthan, RLW 1990 (1) 337. It is also contended that defective investigation cannot be made basis for acquitting accused if despite such defects and failures of investigation a case is made out. Reliance is placed on State of U.P. v. Hari Mohan & Ors., 2000 (4) Crimes 234 (SC), State of West Bengal v. Mir Mohammad Omar and Ors., 2000 (4) Crimes 1 (SC), State of U.P. v. Anil Singh, 1988 (3) Crimes 367 (SC). It is further contended that recovery of blood stained articles from the possession of the appellants at their instance is sufficient to convict them, even if serologist does not give groupings. But explanation in regard to presence of blood on those articles by the appellants in their examination under Section 313, CrPC was necessary. Reliance is placed on Meharban and Ors. v. State of M.P., 1997 SCC (Cr.) 118 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, (1991) Crimes (9) SC 82. On the strength of Rattan Singh v. State of H.P., 1997 SCC (Cr.) 525 it is further contended that examination of the accused under Section 313, CrPC is not a mere formality. Learned Public Prosecutor lastly urged that the prosecution has successfully brought home the guilt of the appellants and they were rightly convicted by the Court below.
20. The prosecution scripted the scenario of the incident like this --
(i) Sampat Raj Dy. S.P. (PW-4) was the first police officer who received the information at 4.30 p.m. that quarrel had been picked up near Khetan Bhawan, M.I. Road. When Sampat Raj reached at the spot he found injured Muin lying unconscious on the road opposite Khetan Bhawan. He immediately took Muin to the SMS Hospital and informed control room on the wireless about the occurrence. The names of the assailants were not disclosed to him by the persons gathered at the place of occurrence.
(ii) Then came at the scene Rajendra Singh Shekhawat I.O. (PW-24) around 4.55 p.m. to whom Naeem handed over a written report at 5.10 p.m. when Rajendra Singh reached at the place of occurrence, injured Muin had already been removed to the SMS Hospital. In the report, Naeem had named Ajij, Sakir, Riyajuddin, Mohd. Umar, Mohd. Hussain and Salam as assailants.
(iii) Constable Ramavtar (PW-7) who was on patrolling duty at M.I. Road heard noise around 4.30 p.m. near the shop of Prince Tailors and then he saw appellants Riyazuddin and Umar running with arms after beating Muin. Ramavtar chased them aimed his rifle at them and warned them to stop. Riyazuddin was having Pharsa while Umar was having iron pipe. Ramavtar got control over them and surrendered them to the Police Station, Vidhayakpuri along with their arms. A report (Ex. D. 6) to this effect was entered in the Rojnamcha at No. 1083 at 5.30 p.m. In the said report it was specifically mentioned by constable Ramavtar that he had seen two persons given beating to one person.
21. Let us now scan the credibility of the alleged eye witnesses examined by the prosecution. Coming to the testimony of Naeem (PW-1), Jahin (PW-2) and Hasin (PW-3), it is to be noticed that they are the real brothers of the deceased. From their own admission and the evidence of Rajendra Singh I.O. it is established that all of them had been prosecuted in a murder case and remained in jail for a considerable period. Proceedings under Gunda Act were also initiated against them. It is also established that when Sampat Raj Dy. S.P. (PW-4) reached at the place of occurrence and took injured Muin to the SMS Hospital none of the three witnesses was near the site. We find it difficult to swallow that the persons of such criminal back ground would meekly move away being threatened by the assailants so as to facilitate the killing of their own brother Muin by the assailants. Their conduct is highly unnatural and creates doubt about their presence at the time of the occurrence. If Sampat Raj Dy. S.P. was the only person who saw injured Muin in an abandoned state on the road and took him to SMS Hospital in his Gypsi then the version of Naeem, Jahin and Hasin is too good to be true and not worthy of credence. From another angle also the testimony of Naeem, Jahin and Hasin is not credible. Neither they made any attempt to go to the police station nor did they disclose the names of assailants to the police over telephone. They only hidden themselves in the Hotel at the time of the incident leaving Muin at the mercy of the assailants. Such an unnatural conduct of these witnesses can only be consistent with the fact that the deceased may have been assaulted in their absence.
22. That takes us to the evidence of other eye witnesses namely Abdul Malik (PW-5), Naushad (PW-6) and Jiyauddin (PW-9). It is established from the deposition of Abdul Malik that his shop was closed on the date of incident as it was Friday. Although he remained at the place of incident till 7 p.m. he did not know whether Rajendra Singh Incharge Police Station, Vidhayakpuri came over there or not. Around 7.30 and 8 p.m. he proceeded to Tonk and came back at Jaipur on 18th but he did not state in the police statement that he had gone to Tonk and remained there upto 18th. The police recorded his statement after one week of the incident. Naushad (PW-6) admitted that he did not inform the police that he and Abdul Malik had seen the incident and his statement was recorded by the police on 17.4.1996. Jiyauddin (PW-9) admitted that neither could he read nor write, still he had gone to purchase 'India Today' at the book shop. He went for the first time to purchase such a book. He did not know the price of 'India Today' and his statement was recorded by the police after five days of the incident. Mr. S.R. Bajwa learned Senior counsel made an attempt to pursuade us to discard the testimony of these witnesses as according to him they are chance witnesses and no reasonable explanation was offered by the prosecution for their delayed examination. Testimony of a witness, as rightly pointed out by Mr. Upendra Nath Sharma, learned Special P.P., can not be rejected merely on the ground of delay in recording his statement by the police. Hon'ble Supreme Court in Dr. Krishna Pal v. State of U.P. propounded that convincing and reliable testimony of a witness should not be discarded on the ground of delay in recording his statement by the police. In Ramesh v. State of M.P., 1999 (2) Supreme (Cr.) 271, it was indicated by their Lordships of the Supreme Court that delay in examining the witnesses ipsofacto cannot be a ground to discard their testimony when in cross-examination of witnesses nothing tangible had been brought out to impeach their testimony. In yet another case of Leela Ram v. State of Haryana, 1999 (2) Supreme (Cr.) 436, the Hon'ble Supreme Court held that trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The evidence is to be considered from the point of view of trustworthiness.
23. Having considered the evidence of Abdul Malik, Naushad and Jiyauddin, from the point of view of trustworthiness we find their conduct most unnatural in not complaining about the incident and keeping quiet for more than five days of the incident. Section 39(i)(v) of the Code of Criminal Procedure directs that every persons, aware of the commission of offence under Section 302 IPC is duty bound to forthwith give information to the nearest Magistrate or police officer of such commission. Omission to give such information is an offence punishable under Section 176 of the Indian Penal Code. Besides their unnatural conduct in not making complaint about the incident, Abdul Malik and Naushad also could not reasonably explain as to why on holiday they had gone to the shop? Why Jiyauddin an illiterate person, did go to the book shop for the first time to purchase 'India Today' at the time of incident and if he had purchased the said book why was he ignorant about its price? We find that the evidence of these witnesses, is replete with inherent improbabilities.
24. We also find that the statement of each eye witness referred to as above is verbatim the same as that of others. Even narrations and sequence of events are meticulously in the same order. All the witnesses gave photographic and dramatic account of the incident. Their Lordships of the Supreme Court in Dharam Singh v. State of Punjab indicated in para 7 that it is not safe to place reliance on the evidence of the witnesses where the statement of each witness is verbatim the same as that of others and narrations and sequence of events are meticulously in the same order. In Sevi v. State of Tamilnadu , it was propounded by the Hon'ble Supreme Court in para 3 as under:
Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and some what dramatic account which they gave of the incident with minute details of the attack on each victims.
25. As already noticed by us Naeem handed over written report (Ex. P.1) to Rajendra Singh I.O. around 5 p.m. at the spot. Rajendra Singh received the information on telephone around 4.45 p.m. that quarrel had been picked up at M.I. Road. After entering the information in the Rojnamcha (Ex. P. 43A) Rajendra Singh proceeded to the spot. The report which was handedover to Rajendra Singh on 12.4.1996 at 5.15 p.m., was received by the Chief Judicial Magistrate, Jaipur at 9.30 p.m. on 15.4.1996. It is true that quite often there are valid reasons for the delay in the despatch of the FIR and it is not always a circumstances on the basis of which the entire prosecution case may be said to be fabricated, but in the facts of the present case, the circumstance of delay in sending the FIR to the Magistrate hardens the suspicion and leads to the definite conclusion that the report (Ex. P.1) was recorded much later in point of time than shown by prosecution.
26. Constable Ramavtar Sharma (PW-7) in the report (Ex. D. 6) entered into Rojnamcha on 12.4.1996 at 5.50 p.m. stated that while he and constable Vinod Kumar were on patrolling duty at M.I. road they heard noise around 4.30 p.m. near the shop of Prince Tailors and there he saw two persons running with the arms after beating Muin. Leaving Vinod Kumar at the place of occurrence he chased them and got those two persons under control and produced them alongwith arms to the police station, Vidhayakpuri. Those persons were Riyazuddin and Umar. Although two persons were named as assailants by Ramavtar in the report but before the trial judge he made improvements in his statement and deposed that he saw six persons armed with Pharsas, iron rods, iron pipe and Chhuri, giving beating to one person who was lying in a pool of blood. He chased and overpowered two persons Umar and Riyazuddin and produced them in the police station, Vidhayakpuri together with their arms. Rameshwar admitted that the fact that six persons were beating up one person was not mentioned in the report entered in the Rojnamcha. Constable Vinod Kumar (PW-9) also deposed that he had seen six persons armed with Pharsis, Chhuri, Iron Pipe and Iron Sariyas beating up one person who was lying in a pool of blood. Ramavtar proceeded to chase two assailants and he became busy in making telephone call when he came back to the spot, the injured person was not there and he was told that Dy. S.P. took the injured to the Hospital in Gypsi. The evidence of Ramavtar and Vinod Kumar is consistent in regard to the appellants Riyazuddin and Umar only. From their statements it appears that they had not seen the appellants prior to the incident therefore it was incumbent on the investigating officer to have arranged for the identification parade for the identification of other four assailants who were not arrested immediately after the incident. We are unable to place reliance on the testimony of Ramavtar and Vinod Kumar in so far it implicates appellants Sakir, Salam, Aziz and Mohd. Hussain. Possibility of over implication of appellants Sakir, Salam, Aziz and Mohd. Hussain cannot be ruled out in view of the fact that in the report Ex. D. 6 which was lodged by Ramavtar at 5.50 p.m. with the P.S., Vidhayakpuri, reference of only two assailants Umar and Riyazuddin was made who were caught immediately after the incident with the arms found by the FSL stained with human blood.
27. Mr. S.R. Bajwa, learned Senior counsel also criticised the report Ex. D. 6 on the ground that the written application submitted by Ramavtar on 12.4.1996 was deliberately withheld by the prosecution which could have been the best evidence and adverse inference is required to be drawn against the prosecution. Learned counsel also urged that the examination of autorickshaw driver in which appellants Riyajuddin and Umar were allegedly take to the police station was necessary and withholding his evidence creates doubt in the prosecution story. Learned counsel also contended that arms were produced by constable Ramavtar in the police station and seizure of arms does not connect appellants Riyazuddin and Umar with the crime. We are unable to pursuade ourselves with the submissions advanced before us by the learned counsel. In so far the evidence of constable Ramavtar qua the appellants Riyazuddin and Umar is concerned it inspires confidence and we find is trustworthy. Non-examination of auto rickshaw driver and non production of written application does not render it unreliable. Ramavtar had seen appellants Riyazuddin and Umar running with arms after beating up Muin. He got overpowered them and produced them with the arms stained with human blood to the police station immediately after the incident. Ramavtar was on partrolling duty at M.I. road and his presence at the time of incident was quite natural. We see no reason to disbelieve the testimony of Ramavtar in so far it relates to the implication of appellants Riyazuddin and Umar with the crime and we hold that the prosecution has successfully brought home the guilt of the appellants Riyazuddin and Umar and they were rightly convicted by the learned trial judge.
28. In so far as recovery of blood stained weapons and clothes at the instance of appellants Aziz, Mohd. Hussain, Sakir and Salam is concerned, it is difficult to believe that they would not take the precaution of washing of the blood marks from the weapons and the clothes. The recovery was not effected from their exclusive possession and it does not ipso facto establish the presence of Aziz, Mohd. Hussain, Sakir and Salam near the scene of occurrence. The learned trial judge appears to have over looked the infirmities as discussed by us which were extremely damaging to the prosecution case. It would thus be seen that the evidence led on behalf of the prosecution against the appellants Aziz, Sakir, Mohd. Hussain and Salam is wholly unsatisfactory and it cannot be regarded sufficient to found the conviction of the appellants Aziz, Sakir, Mohd. Hussain and Salam for the murder of deceased Muin. The prosecution has failed to prove the charges under Sections 302/149 and 148 IPC against the appellants Aziz, Sakir, Mohd. Hussain and Salam beyond reasonable doubt.
29. In view of what we have discussed hereinabove we dispose of the instant appeals as under:
(ii) Appellants Riyazuddin and Mohd. Umar are convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer six months rigorous imprisonment. They however stand acquitted from the charge under Section 148 IPC.
(iii) Appellants Aziz, Sakir, Mohd. Hussain and Salam are in jail. They shall be set at liberty forthwith if not required in any other case.
(iv) The impugned judgment of the learned trial judge is modified and the appeals stand disposed of as indicated above.