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 that in respect of accused Vijay, Rishiraj, Samrat, Ajay and Hani, it has been argued that their conviction with the aid of Section 149 of IPC is not in accordance with law. They submit that as per alleged FIR, no overt act has been assigned to these accused persons and nowhere it has been mentioned that they exhorted other accused/appellants to kill the deceased Gudda Sonkar. They submit that the allegation of exhortation is nothing but an improvement and this fact is also evident from the statement of IO who has admitted that no such fact was recorded by him while making entry in the diary. Likewise, PW-1 Lallan in his Court statement has not deposed anything about the exhortation by the accused persons.

 there is absolutely no evidence that the object of the so-called unlawful assembly was to commit murder of the deceased persons.

 while referring to para-41 of the evidence of PW-12, it has been argued that while recording his diary statement, he had not disclosed to the police regarding exhortation made by some of the accused persons and he informed that the accused persons fled from the spot after firing four times. They submit that this part of the statement of PW-12 has been admitted by the IO in para-77 of his deposition.

 that in relation to conviction of the accused persons with the aid of Section 149 of IPC, it has been argued that all the accused persons were standing surrounding the deceased persons and while altercation was going on between the two groups, accused/appellant Jai pointed pistol at deceased Gudda Sonkar and during altercation, accused/appellant Manoj snatched pistol from Jai and caused gunshot injury to Gudda Sonkar and thereafter, with the same weapon, accused/appellant Jai caused gunshot injury to Nanka Sonkar who came to the rescue of Gudda Sonkar. Thereafter, the other accused persons exhorted that Gudda Sonkar is alive, shoot him and then all the accused persons fled from the spot. As soon as the pistol was taken out and used, provisions of Section 149 of IPC attract, particularly when there is no evidence that the other accused persons in any manner tried to pacify the dispute or prevent accused Jai and Manoj from firing, rather the evidence shows that they exhorted them to kill the deceased persons. In these facts and circumstances, their conviction under Section 149 of IPC is absolutely justified and requires no interference by this Hon'ble Court.

In para-26 he states that after recording FIR (Ex.P/33) and merg intimations (Ex.P/34 & P/35) he did not do anything after 2.40 am and in the next morning, inquests were prepared by him. In para-31 he has stated that after receiving information he proceeded for Intercity hotel along with two constables, however, both the constables have not been made witnesses in this case. According to him, deceased Nanka was taken to Apollo hospital in a police jeep. He admits that in the police station, within half an hour he received information about death of both the injured but he did not go to those hospitals and there is no reason for this. He states that at the place of occurrence, no report was lodged and he could not know the names of the assailants and the persons who were present there were not having any idea about the incident. He admits that in the notice to inquest and on the memo sent for postmortem, crime number and merg number have not been mentioned. He states that he met PW-12 Jugal Kishore in police station at 2.30 in the night and before that he never met him either at Intercity hotel or at CIMS, Bilaspur. He states that FIR (Ex.P/33) is not in his handwriting, but it bears his signature. He states that it is in the handwriting of his Reader-Sandeep Yadav (Constable). He further admits that the FIR was required to be sent to the concerned Magistrate immediately, but he did not do the same. He also filed the Counter Nalishi with the charge sheet. He has denied the fact that in the documents Ex.P/1 to P/4, crime number has not been mentioned because till that time, offence was not registered. In para-48 he admits that during investigation, fired bullets were not seized from the place of occurrence. In para-56 also he has admitted the fact that he had not made any seizure of fired bullet from the place of occurrence. He has admitted the criminal record of deceased Gudda Sonkar. He admits that he did not make any effort to lift fingerprints from the pistol used in commission of the offence. In para-66 he states that Ex.P/33 to P/35 i.e. FIR and merg intimations are forged and fabricated documents. In para-71 he states that on 14.6.2010 he received instructions from the superior officers that copy of FIR be sent to the Magistrate and acknowledgment be obtained and further that .9 MM pistol which was seized, be also sent to CFSL, Chandigarh. When the question was put to him by the Court as to from whom and when .9 MM pistol was seized, he states that no such pistol was seized. In para-72 when this witness was confronted with the police case diary he states that on 9.6.2010 itself he had forwarded copy of FIR to the Magistrate, however, there is no mention of the same in the diary. Likewise he had not mentioned the names of witnesses to the seizure from the spot effected on 9.6.2010. He further states that in the diary he recorded that on 9.6.2010 he could not get any physical evidence on inspection of the spot. He states that witnesses to the seizure Ex.P/23 from the spot are Ravindra Nirmalkar and Baran Yadav, however, their names have not been correctly mentioned in the diary and in the diary, even the number of pistol seized from accused Jai @ Gudda has been shown as 532344. In para 75 he has denied the fact that from the pistol which was sent to armourer on 1.8.2010, five round fire was made in the police station and then five empty cartridges and three bullets were sent to CFSL. In para-77 he has stated that only once he recorded statements of the witnesses and as per diary, Jugal Kishore (PW-12) had informed that each of accused Jai and Manoj had fired two-two gunshots. He admits that in the statement of PW-12 it has not come that the accused persons were exhorting, "Gudda zinda hai, usko mar do". He has clarified that in the diary short statements of witnesses are recorded. In para-80 he states that on 17.7.2010 he recorded statements of PW-2 Ramnarayan and PW-4 Praveen Keshari. In para- 81 he states that in diary it has not come as to which of the accused persons was carrying which weapon. He admits that in his statement Ex.D/3, PW-2 Ramnarayan had not informed about the presence of accused Samrat and likewise, he did not inform that accused Rishi was having revolver like weapon and while lodging FIR (Ex.P/33), PW-12 Jugal Kishore had not informed him that deceased Gudda informed Jugal Kishore about any quarrel being taken place. Similarly, Jugal Kishore had not informed that other accused persons were exhorting "jaan se maro, jaan se maro". In para-93 he admits that while lodging merg intimations (Ex.P/34 & P/35), Jugal Kishore (PW-12) had not informed that the other accused persons were exhorting "jaan se maro, jaan se maro". Likewise, it was also not informed that other accused persons were having weapons. He admits that notice of Ex.P/48 was given to accused Hani on 9.6.2010 in which there is no mention of barrel number of the weapon and four cartridges. He has admitted the fact that father of Hani made a complaint to superior officers of police for falsely implicating his son Hani, however, he is not aware as to whether any complaint was there against the police regarding forcible entry in the house of father of Hani on 9.6.2010 and recovery of licensed gun. He admits that the first remand of Hani was obtained on 13.6.2010.