Holding

The Supreme Court upheld the convictions of all accused except the one granted benefit of doubt, dismissing the appeals against them and allowing the appeal that sought his release.

Summary

The case arose from a night‑time attack on three brothers (Jharmal, Juhru and Mubin) allegedly over a property and personal dispute, in which twelve armed men assaulted the victims, killing the two brothers and injuring Mubin. The prosecution relied on three eyewitnesses, medical autopsy reports and a First Information Report lodged promptly, despite the non‑recovery of the alleged weapons and minor inconsistencies in testimonies. The trial court convicted the accused under sections 302/149, 323/149, 148 and 147 IPC; the High Court affirmed most convictions but acquitted one accused, Daud Khan. On appeal, the Supreme Court examined whether the evidential deficiencies warranted overturning the convictions and whether the benefit of doubt should extend to other accused. It held that the eyewitness accounts, corroborated by medical evidence, were reliable, the FIR need not be exhaustive, and the absence of recovered weapons did not exonerate the accused; consequently, it dismissed appeals 382‑386 and allowed appeal 387, granting release only to the appellant who was on the same footing as the previously acquitted Daud Khan.

Issues considered

Whether the convictions under sections 302/149, 323/149, 148 and 147 IPC are sustainable in view of alleged inconsistencies, non‑recovery of weapons and the contents of the FIR.
Whether the benefit of doubt principle applies to appellants other than the one already acquitted by the High Court.
Whether the application under Section 311 of the CrPC filed by an eyewitness can be entertained.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 311
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 323

Subjects

murderconspiracyeyewitness testimonyidentificationFIRbenefit of doubtnon‑recovery of weaponsSection 311 CrPCIPC sections 302,148,323,147,149criminal appeal

Judgment

UMAR MOHAMMAD & ORS. A
'--+ v.
STATE OF RAJASTHAN
DECEMBER 12, 2007
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] B
Penal Code, 1860 - ss. 3021149, 3231149, 148 and 147 -
~-
Murder of two and injuries to one, over dispute between parties -
Conviction and sentence by Courts below - Sustainability of -
Held: Number ofinjuries inflicted on deceased persons and injured c
show that large number afpersons took part- There was sufficient
light for identification of accused - FIR was lodged in short time
- Oral testimonies of eyewitnesses was corroborated by medical
evidence - Minor contradictions in the evidence of eyewitnesses
would not discredit their testimonies in entirety- Non-disclosure of D
certain facts in FIR and also non-recovery of weapons of offence
would not affect the prosecution case - Thus, orders of courts
below sustainable except for one accused who is given benefit of
doubt - Evidence.
According to the prosecution case, over a property dispute E
12 armed persons including the appellants attacked JM, JR and
M. It is alleged that IA gave exhortation to shoot JM and his
brothers. Accused hit JM and JR with lathis resulting in their
death and assaulted Mon his head and other parts of the body.
First informant ran away from the place of incident and went to F
PW-6, nephew of JM and JR. PW-6 then lodged the FIR. He also
gave his statement. Prosecution examined PW 1-M, injured
witness, PW-4- first informant and PW-8. They were also
eyewitnesses. Trial court convicted and sentenced the appellants
under sections 148, 323/149 and 302/149 IPC. Appellants N, J, G
. ,,. UM, R, A and JL were also convicted and sentenced u/s 147 IPC .
·-,: Aggrieved, appellants filed appeals and the same were dismissed
except appeal of D. Hence, the present appeals.
273 H
274 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A Dismissing Criminal appeal Nos.382-386 of 2004 and
allowing Criminal Appeal No.387 of2004, the Court.
-t-
HELD: 1.1 The injuries inflicted on the two deceased
persons, as also injured witness in details, show that having regard
to number of injuries inflicted on them, it may safely be assumed
B
that a large number of persons took part therein. The gun shot
injuries suffered by JM also establish that shot was fired from a
close distance. Further, both the courts below arrived at a
concurrent finding of fact that there was sufficient light for 'i
c identification
A-B]
of the accused. [Paras 23, 24 and 26) [282-G; 283-

1.2 The evidences of the three eye witnesses, namely, PW-1,
PW-4 and PW-8 are almost identical. They narrated the whole
incident and described the manner in which it took place. Some
D minor contradictions had been pointed out but the said
contradictions are not such which would discredit their testimonies
in their entirety. [Para 29) [284-B)
1.3 FIR was lodged within a short time. It appears from the
cross-examination that apart from the alleged land dispute with
E MJ, a dispute existed between the parties in regard to one woman,
R. Further, immediately after the lodging of the FIR, the
Investigating Officer came to the place ofincident. Inquest report
was also prepared without any loss of time. Even at that time, M
was unconscious. Inquest reports were witnessed, by PW-2 and
F PW-3. Presence of the informant, was also testified by the said
\
witnesses. [Paras 27 and 30) [283-B; 284-C] "i

1.4 Oral testimonies of the said eye witnesses got
corroborated by the medical evidence. No discrepancy between
G the ocular evidence and medical evidence was brought to the
notice: Homicidal nature of death of JM and JR and injuries
suffered by M are not in dispute. Although the evidence of PW- ...
6 was not relied upon by Trial Judge in regard to his statement
of hatching of a conspiracy by all the accused persons to commit 'r

H the said offence as the same had not been disclosed in the FIR,
UMARMOHAMMAD & ORS. 275
v. STATE OF RAJASTHAN
there is no reason to disbelieve his statement to the effect that A
he scribed the FIR at about 5.00 a.m. on 26.10.1996 and that at
~
the request of PW-4 he wrote down the same. Further, the informant
did not disclose the fact in the FIR that PW-1 was lying
unconscious. It is now well settled that FIR need not be
encyclopedic. It was a fact. It was found to be correct. [Paras 31 B
and 32) [284-D-G)
1.5 There is no force in the submission that the weapons of
y offences were not recovered. In any event, non-recovery of
incriminating material from the accused cannot be a ground to
exonerate them of the charges when the • eye-witnesses examined c
by the prosecution were found to be trustworthy. [Para 34] [285-D]
Krishna Machi & Ors. v. State of Bihar 2002 (6) SCC 81 -
relied on.
D
1.6 As all the appellants were named in the FIR, it was also
not necessary to hold a test identification parade. [Para 36) [285-G)
-::1,
1. 7 The defence examined six witnesses who in their
depositions alleged that some unknown persons had committed
murder of JM and JR and caused injuries on the person of M. E
DW-6, who was a part of the investigating team, alleged that
during his investigation it was found that IA, D and S did not
commit the offence. Both the courts had categorically held that
the testimonies ofDW-1 to DW- 5 were not reliable. So far as the
statement ofDW-6 is concerned, it was based on his opinion. IA F
t died. D was acquitted by the High Court. [Para 33) [284-H;
285-A-C]
1.8 In view of the fact that D was given the benefit of doubt,
as J stands on the same footing, he is also entitled to similar
benefit and should, thus, be accorded benefit of doubt. [Para 37] G
[285-H; 286-A]

--..." 1.9 It is not a case where stricto sensu the provisions of
Section 311 Cr.P.C. could have been invoked. The very fact that
such an application was filed by PW-1 nine months after his H
276 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A deposition is itself pointer to the fact that he had been won over.
It is absurd to submit that he, after a period of four years and that .r--
too after his examination-in-chief and cross-examination was
complete, would file an application on his own will and volition.
Therefore, the application u/s 311 Cr.P.C. was rightly dismissed.
B [Para 38) [286-C-D)
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.382-386 of 2004.
From the Judgment and Order dated 29.5.2003 of the High Court
c of Judicature for Rajasthan at Jaipur Bench, in D.B. Cr!. A. Nos. 57I
1999, 810/1998, 807/1998, 138/1999 and 374/2003.
WITH
CRIMINAL APPEAL NO. 387 of2004
D Brijender Chahar, AltafHussain and ILL. Bajaj, Ranbir Singh
Yadav and Vijay K. Pandit for the Appellants. ;-
Naveen Kumar Singh (for Aruneshwar Gupta), Manish Kumar
and Ansar Ahmad Chaudhary, for the Respondent.
E The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Appellants were convicted for commission of
offences under Sections 302/149, 323/149 and 148 of the Indian Penal
Code, inter alia, for committing murder of Jharmal and Juhru and also
F causing hurt to Mubin on 26th October, 1991 at about 1.00 a.m.
2. The First Information Report in relation to the said incident was
lodged at about 7.00 a.m. on the same day by Kannu son ofChhote
Khan (brother of the deceased Jharmal and Jharu). The distance between
the place of occurrence and the police station is said to be about six
G kilometers. The first informant had to walk to the police station for the
prnpose oflodging the First Information Report.
3. In the said First Information Report, it was alleged that when
at about 1.00 a.m. on the previous night the deceased and injured were
H thrashing bazra, they were attacked by 12 persons, namely, Mohd.
UMAR MOHAMMAD & ORS. v. STATE OF 277
RAJASTHAN [SINHA, J.]
Ishaq, Sahid, Abdul Salam, Umar Mohd., Narangi, LiyakatAli, Gernal, A
:i Jamalu, Alladdin, Rustam, Jamil, Mewan and Bilag.
It was furthennore alleged that Sahid and Gemal were carrying 12
Bore guns, Mohd. Ishaq Abdul and the rest of the accused were having
lathis. B
4. On exhortation given by Mohd. Ishaq ordering to shoot down
Jhannal and his two brothers, Sahid and Gema! allegedly fired shots
·r from their guns.
5. The infonnant ran away from the said place and climbed on a c
nearby hill. He cried for help. Jhannal and Mubin also cried for help.
They ran towards a well situated nearby. Accused killed Jhannal and
Juhru by hitting them on their heads with lathis and Tachia (a weapon like
Farsa). Mubin was also assaulted on his head and other parts of the
body. Presuming all the three brothers to be dead the accused ran away. D
Allegedly the wooden portion of the gun of Sahid fell down at the place
-~, of occurrence.
6. The motive for commission ofthe said offence is said to be that
Majid had some dispute in respect of a house with Jhannal.
E
7. It was also alleged that the accused persons took away a sum
ofRs.1950/-from the pocket ofthe 'kurta', Juhruhad then been putting
on.
8. The learned Sessions Judge, while holding the appellants guilty
' } of commission of the said offences, acquitted Majid, Umrao, Akhe F
Singh, Nooru, Kehar, Risal from the charge of conspiracy to murder the
deceased. Sahid Ahmad, Daud Khan, Mohd. Ishaq, Abdul Salam,
Narangi, Namalu, Umar Mohd., Rustam, Alladin and Jamil were also
acquitted of the charges levelled against them under Sections 307 and
307/149 IPC. The learned Trial Judge also acquitted Liyaqat from the G
'"" -(
charges levelled against him.
9. Charges were found to have been proved against SahidAhmad,
Dau Khan, Mohd. Ishaq,Abdul Salam, Narangi, Jamalu, Umar Mohd.,
Rustam, Alladin and Jamil under Sections 148, 323/149, 302/149 IPC. H
r

278 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R. '
A Charges under Section 147 were also found to have been proved against
Narangi, Jamalu, Umar Mohd., Rustam, Alladin and Jamil. They were J-
sentenced to undergo rigorous imprisonment for life and to pay a fine of
Rs. I 000/- for commission of the offence under Section 302/149 IPC;
one month's rigorous imprisonment under Section 3231149 IPC as also
B a fine ofRs.200/-. Narangi, Jamalu, Umar Mohd. Rustam,Alladeen and
Jameel were also sentenced to undergo one year rigorous imprisonment
and to pay a fine of Rs.500/- for commission of an offence under
Section 148 IPC.

c 10. On appeals having been preferred by the accused, the High
Court, while dismissing the appeals ofNarangi, Jamalu, Umar Mohd.
Rustam,Alladeen and Jamil, Sahid, Mohd., Ishaq and Abdul Salam,
allowed the one preferred by Daud Khan.
11. Mr. Brijender Chahar, learned counsel appearing on behalf of
D the appellants, in support of this appeal, inter alia, would submit that all
the prosecution witnesses upon whom reliance h~ been placed by the ):
learned Sessions Judge as also the High Court, being interested witnesses,
the judgment of sentence and conviction are not sustainable.

E 12. It was pointed out that the prosecution case being based on
the alleged motive in regard to land dispute by and between Majid and
the deceased for commission of the offence and the State having failed
to prove the same, the impugned judgment cannot be sustained.
13. It was contended that the 'farsa' and 'guns' which were said
F to be the weapons of offence having not been recovered, the prosecution f
story should not be relied upon. The theory of criminal conspiracy having
been discarded, it was urged, it would not be safe to uphold the judgment
of conviction and sentence as against the appellants.

G 14. Mr. Ranbir Singh Yadav, learned counsel appearing on behalf
of the appellant, Jamallu and others, also contended that the case of
,
Jamallu being on the same footing as that ofDaud Khan and the High )-
Court having acquitted Daud Khan, there is absolutely no reason as to
why Jamallu would not be similarly treated.
H
UMAR MOHAMMAD & ORS. v. STATE OF 279
RAJASTHAN [SINHA, J.]
15. Mr. Navin Kumar Singh, learned counsel appearing on behalf A
~
of the respondent, however, supported the impugned judgment.
16. The incident, as noticed hereinbefore, took place at the dead
of night. Two persons died and one was injured in the incident. The first
informant went to Bhullu, PW-6, for getting the report written down. He B
immediately proceeded to the police station and got the FIR lodged.
Twelve persons were named in the FIR.
"(
17. Bhullu, PW-6, however, at a later stage disclosed that all the
accused persons entered into a conspiracy for committing the murder.
On the basis of the said statement, in all, eighteen persons were put to c
trial.
18. The Trial Judge acquitted eight of them. One of the accused
persons, namely, Gemal has been absconding. One of them, Ishaq, is
said to be dead. As noticed hereinbefore, the High Court also by reason D
-1. of the impugned judgment, acquitted one other.
19. The rest eight accused are before us.
20. PW-1, Mubin was an injured witness. He was mercilessly
beaten. He, although ultimately found to have suffered simple injuries, E
had fainted at the place of occurrence. Even when the first informant
went to the police station to lodge the FIR, he was lying unconscious at
the place of occurrence. Apart from Mubin, Kannu the first informant
and Deena examined themselves as PW-4 and PW-8 in support of the
prosecution case. Besides Mubin, they were aiso eye witnesses. F
21. Autopsy on the body of the Jhannal and Juhru was conducted
by Dr. Ram Swaroop Gupta who examined himself as PW-5. We may,
at the outset, notice the external injuries found on th.e dead bodies :
"JUHRU (EXp-14):- . G
1. Lacerated wound with # of scalp, over Rt. Pareito occipital
-y
' area of scalp with its tributaries mea-;uring 3'"x 1/3" x bone
deep and W'x 1/4" 1/6"brain tissue over the surface.
2. Incised wound 3"xl/3" line deep segietal sntume. H
280 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 3. Incised would 2"x l /3 "x bone deep just in front of and to left
of injury No.2 over left parietal area, longitudinally; 't-

4. Lacerated wound 3" x 'l'.z" x bone deep, just to the left on
parietal to injury No.3 over left parietal area of scalp.
B 5. Incised wound 1-W'xl/4" x bone deep over middle of the
sagital suture, longituadinally.
6. Incised wound l" x W' x bone deep, obliquely over Rt.
Parietal area of scalp near interior hair lime."
c JHADMAL (EX.P-15)
1. Incised wound, 4"xl" x Brain deep with cutting ofbone part
of brain with its menings underneath it, over scalp of Rt.
Parietal Eminence. A piece of bone l "x 112" is cut separated.
D Brain in lacerated and exposed on surface through the defect
in the brain.
J-
2. Incised would 3"x2,1/2"x bone deep over Rt. Parietal
eminence. A flap of soft tissues is separated, 2, 112" long,
attached at its base.
E
3. Incised would 5"xl/4"x bone deep over occipital region
behind and parallel to injury No.3.
4. Incised would 4.5"xl/4"x bone deep over occipital region
behind and parallel to injury No.3
·.~
l;

5. Incised would 3"xl/3" xl/8" over upper part of back of
neck.
6. Incised would 1,1 /2"xl/3" bone deep over Rt. Parietal
Eminence.
G
7. Incised would 2"x.'::l/4"x bone deep over left parietal ar~a
infrontofinjury No.7.
8. Lacerated wound 4,l/4"xl/4" x Bone deep over Rt. Side
of upper part of forehead, transversely.
H
UMAR MOHAMMAD & ORS. v. STATE OF 281
RAJASTHAN [SINHA, J.]
9. Irregular lacerated wound 2"xl/4"x bpne deep just left eye A
~ brown, transversely.
10. Incised wound, slanting downwards, 3, 1/2'', Yi" x bone
deep over face transversely from left ear to angle oflt. eye
Left maxilla is fractured. B
11. Incised wound I" x 1.1.i" whole thickness oflt. angle of mouth.
12. Lacerated wound l ''xl/4"xl/4" behind left ear.
13. Gunshot wounds, two in number, over back of trunk, 9"
apart, one just outside of angle ofLt. Scapula, another in the c
rnidline at L 2-3 spine level, each about 4mm x 4mm in size
with charred margins and base involving only partial thickness
of skin No. pallet is seen or felt in either of the wounds nor
any pallet recovered on dissecting the wounds. Underlying
tissues are healthy. D

-:le. 14. Incised wound l" xl/4"xl/4" over back of upper third of
lt. thigh.
15. Incised wound l "xl/4"xl/4" over back of upper third ofleft
1" below injury No.14. ·E

16. Incised wound 1"xl/4"xl/4" over back of middle third of
left thigh.
17. Bruise 4"x 1" over front of upper third ofleft arm."
1- F
22. Mubin (PW. I) also sustained injuries which as per injilly
report (Ex.P-13) are as under :-
"I. Bruise with abrasion 3"x l" over Lt. Side of front of chest
over 6th 7th ribs near costal margin.
G
2. Abrasion l,l/2"xl/3" over back of middle third of Lt.
Forearn.
"(
3. Bruise 1/.i" x W' over ulnar aspect of wrist.
4. Brise l,l/2"xl' over Lt. Leg daist above lateral melleolus. H
r

282 SUPREME COURT REPORTS [2007] 13 (Addl.)S.C.R.

A 5. Bruse 4"x3/4" longitudinalty over Rt. Shoulder.
~
6. Bruse 3" x3/4" antero posteriorly over Rt. Shoulder across
injury No.5
7. Bruise 7"x3/4" over upper part of Rt. Scapula region and
B back of Rt. Shoulder.
8. Bruise 3"x3/4" over it Rt. Scapula area below and parallel
to inj. No.7.
9. Bruise 9" x3/4" longitudinally over Lt. Side of back of chest
c just to Rt. of Mid. Line.
10. Bruise 4-112" x %"over lower ribs on Lt. Side of back of
chest.
11. Bruise 1-112" x 1,114" just below and medial to inj. No.11.
D
12. Bruise 4"x3/4" transversely across lower most ribs over Rt.
,r
Blank.
13. Lacerated wound 2 - Yi cm x Yz cm x Yz cm over middle
of scalp.
E A lineat scare 5 cm x V. cm transversely over antero lateral
aspect of middle third of Rt forearm."
23. The injury report marked as Ex.P-13 in relation to Mubin
(PW-1) revealed that he suffered as many as thirteen injuries. Injury
F No.13 was a lacerated wound, being 2.5 cm x Yz cm over middle of
scalp. A linear; scare 5 cm x V. cm transversely over antero lateral
aspect of middle third of Rt. forearm.
24. We have referred to the injuries inflicted on the two deceased
persons, as also injured Mubin, in details, only with a view to show that
G having regard to number of injuries inflicted on them, it may safely be
assumed that a large number of persons took part therein.
25. Two gun shot injuries were suffered by Jharmal. Both the
deceased had also suffered incised and lacerated wounds.
H
UMARMOHAMMAD&ORS. v. STATE OF 283
RAJASTHAN [SINHA, J.]
26. Both the courts below have arrived at a concurrent finding of A
~ fact that there was sufficient light for identification of the accused. The
gun shot injuries suffered by Jharmal also establish that shot was fired
from a close distance. Juhru also suffered a lacerated wound as also an
incised wound in the pareito occipital area of scalp.
B
27. FIR was lodged within a short time. It appears from the trend
ofcross-examination that apart from the alleged land dispute with Majid,
'{ a dispute existed between the parties in regard to one woman, Rehmati
by name. According to the prosecution, Rehmati the wife ofFulel, who
was involved in a murder case, started living with the brother of PW-I. c
Appellant themselves suggested i.rt cross-examination ofthe prosecution
witnesses that there had been dispute between the family ofFulel and
the family of the accused persons qua Rehmati.
28. It will bear repetition to state that PW-I was an injured witness.
He narrated the whole incident and described the manner in which it D
:l took place in some details. He was assaulted by lathis. He, although
became unconscious, had sufficient time to notice the assaults caused by
some of the appellants on Jharmal and Juhru. He had also disclosed the
motive for commission of the said offence by the appellants.
E
29. PW-4 Kannu was the first informant. He, of course, in his
statement before the police as also before the Court implicated a few
persons who had not been named in the FIR but the same by itself
cannot be a ground to discredit his testimony in its entirety. In his evidence,
...r he gave in details the manner in which death was caused to Jharmal and F
Juhru and injuries to Mubin. PW-8 was Deena. According to this witness,
he, at the time of occurrence, did not see Liyakat and Jamallu. We have
noticed hereinbefore that the High Court had acquitted Liyakat. We may
furthermore place on record that the counsel for the appellants other
than Liyakat and Jamallu, brought to the notice of the said witnesses the G
statements made by him under Section 161 of the Code of Criminal
'Y, Procedure where he had named Liyakat and Jamallu. An objection was
taken thereto by the counsels for Liyakatand Jamallu but the same was
over-ruled. It has been pointed out before us that according to the said
witness exhortation was given by Md. Ishad that Jharmal should not be H
r

284 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A left alive, whereas according to PW-1, exhortation was directed against
both Jhannal and Juhru. We do not think that the said contradiction is f~
of such a nature that would discredit either his testimony or that of PW-
1. The evidences of the three eye witnesses, namely, PW-1, PW-4 and
PW-8 are almost identical. Some minor contradictions like the one
B which has been noticed by us heretobefore had been pointed out but the
said contradictions, in our opinion, are not such which would discredit
their testimonies in their entirety.
30. Indisputably, immediately after the lodging of the FIR, the
c Investigating Officer came to the village. They went near the farm where
the incident took place. Inquest report was also prepared without any
loss of time. Even at that time, Mubin was unconscious. Inquest reports
Exb. P-6 and P-7 were witnessed, inter alia, by PW-2 and PW-3.
Presence ofKannu, the informant, has also been testified by the said
D witnesses.
31. Oral testimonies of the said eye witnesses get corroborated by
).
the medical evidence. Homicidal nature of death of Jhannal and Juhru
and injuries suffered by Mubin are not in dispute. No discrepancy between
the ocular evidence and medical evidence has also been brought to our
E notice. It may further be placed on record that although the evidence of
PW-6 Guluhad not been relied upon by the learned Trial Judge in regard
to his statement of hatching of a conspiracy by all the accused persons
to commit the said offence as the same had not been disclosed in the
FIR, there is no reason for us to disbelieve his statement to the effect that
F he has scribed the FIR at about 5.00 a.m. on 26.l 0.1996 and that at
f
the request of PW-4 he wrote down the same.
32. Our attention has been drawn to the fact that Kannu did not
disclose in the FIR that PW-1 was lying unconscious. It is now well
G settled that FIR need not be encyclopedic. It was a fact. It was found
to be correct.
33. The defence had examined six witnesses. DW-1 Hussaina, y
DW-2 Ihsav, DW-3 Kallu, DW-4 Hafiz Mohd., and DW-5 Alladin, in
their depositions alleged that some unknown persons had committed
H
UMARMOHAMMAD&ORS. v. STATE OF 285
RAJASTHAN [SINHA, J.]
murder of Jharmal and Juhru and caused injuries on the person ofMubin. A
~.
' j _., DW-6, who was a part of the investigating team, alleged that during his
investigation it was found that Mohd. Ishaq, Daud and Salam did not
commit the offence. Both the courts had categorically held that the
testimonies of DW-1 to DW- 5 were not reliable. They were not
examined by the police. Their statements had not been recorded under B
Section 161 Code of Criminal Procedure. They never volunteered to
give their statement. No suggestion has been thrown to the prosecution
witnesses that they were present at the time of occurrence or they had
the occasion to acquire any authentic knowledge in regard to the incident.
So far as the statement of DW-6 is concerned, it was based on his c
opinion. Ishaq has died. Daud has already been acquitted by the High
Court.
34. We also do not find any force in the submission of the learned
counsel that the weapons of offences were not recovered. In any event, D
non-recovery of incriminating material from the accused cannot be a
-;( ground to exonerate them of the charges when the eye-witnesses
examined by the prosecution are found to be trustworthy.
35. In Krishna Moc hi & Ors. v. State ofBihar [(2002) 6 SCC
81], this Court held : E

"It has been then submitted on behalfofthe appellants that nothing
incriminating could be recovered from them, which goes to show
that they had no complicity with the crime. In my view, recovery
of no incriminating material from the accused cannot alone be F
-t taken as a ground to exonerate them from the charges, more so
when their participation in the crime is unfolded in ocular account
of the occurrence given by the witnesses, whose evidence has
been found by me to be unimpeachable."
36. Furthermore, as all the appellants before us were named in the G
FIR, it was also not necessary to hold a test identification parade.
37. We are, however, of the opinion that in view of the fact that
Daud had been given the benefit of doubt, as Jummal stands on the same
footing, he is also entitled to similar benefit and should, thus, be accorded H
286 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A benefit of doubt.
38. Before parting, however, we may notice that a contention has
been raised by the learned counsel for the appellant that PW-1 who was
examined in Court on 5.7.1994 purported to have filed an application
B of 1.5 .1995 stating that five accused persons named therein were
innocent. An application filed by him purported to be under Section 311
of the Code of Criminal Procedure was rejected by the learned Trial
Judge by order dated 13 .5 .1995. A revision petition was filed thereagainst
and the High Court also rejected the said contention. It is not a case
C where stricto sensu the provisions of Section 311 ofthe Code ofCriminal
Procedure could have been invoked. The veiy fact that such an application
was got filed by PW-1 nine months after his deposition is itself pointer
to the fact that he had been won over. 'It is absurd to contend that he,
after a period of four years and that too after his examination-in-
D chief and cross-examination was complete, would file an application
on his own will and volition. The said application was, therefore,
rightly dismissed.
39. We, therefore, dismiss Criminal appeal Nos.382-386 of2004
[Umar Mohammad & Ors. v. State ofRajasthan] and allow Criminal
E AppealNo.387 of2004 [JamallusonofAsheen v. State ofRajasthan).
If Jamallu is in custody, he shall be released forthwith unless wanted in
connection with any other case.
NJ. C.A. 382-386/2004 dismissed and
F C.A.387 of2004 allowed.