RAVI R. TRIPATHI, J. ( 1 ) THE present Appeal is filed under section 374 (2) of the Code of Criminal Procedure, 1973 being aggrieved by the conviction and sentence by the learned 3rd Additional Sessions Judge, Nadiad in Spl. Case No. 62 of 1997. The learned Sessions Judge was pleased to convict accused nos. 1 and 6 for the offence punishable under section 304 read with section 149 of the Indian Penal Code and was pleased to sentence three years rigorous imprisonment and fine of Rs. 2000/-; in default to undergo one months rigorous imprisonment. The learned Judge was also pleased to convict them for the offences punishable under section 323 read with section 149 of the Indian Penal Code and sentenced them to 1 year rigorous imprisonment and fine of Rs. 500/-; in default to undergo one months rigorous imprisonment. The learned Judge was also pleased to convict them for the offence under section 3 (1) (10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act") and was pleased to sentence them to 2 years rigorous imprisonment and fine of Rs. 500/-; in default to undergo one months rigorous imprisonment. 1. 1 accused nos. 2, 3, 5 and 7 were convicted for the offences under sections 304 (1) read with section 149 of the Indian Penal Code and was pleased to sentence each of them to 10 years rigorous imprisonment and fine of Rs. 1000/-; in default one months rigorous imprisonment. Accused nos. 2, 3, 5 and 7 were also convicted for the offence under section 323 read with section 149 and were sentenced to one year rigorous imprisonment and fine of Rs. 250/-; in default to undergo 15 days rigorous imprisonment. These accused were also convicted for the offence under section 3 (1) (10) of the Act and were sentenced to 2 years rigorous imprisonment and in default to undergo one month rigorous imprisonment. The learned Judge was pleased to order to grant set off to accused no. 2 and also pleased to order that all the sentences to run concurrently. The learned Judge was pleased to order that an amount of Rs. 5000/-, from the fine deposited be paid to the complainant and the witnesses as compensation. The learned Judge was pleased to acquit accused no. 4 of all the charges levelled against him. 1. 2 and also pleased to order that all the sentences to run concurrently. The learned Judge was pleased to order that an amount of Rs. 5000/-, from the fine deposited be paid to the complainant and the witnesses as compensation. The learned Judge was pleased to acquit accused no. 4 of all the charges levelled against him. 1. 2 the case of the prosecution is that in the noon hours of 13. 3. 1997 at Village Jalundh of Taluka Khambhat, District Kheda, when the complainant demanded water from the well of accused no. 2 in his field, accused no. 2 insulted the complainant and his witnesses by saying, "i will not give water to dheda chamadiya (an abusive reference to the caste of the complainant ). Thereafter, keeping grudge at about 9. 30 PM the accused gathered together forming an unlawful assembly with common object near rohitvas Naka of Village Jalundh and assaulted the complainant and his witnesses with Farsi, Dharia and sticks and caused injuries to the witnesses. Accused nos. 5 and 6 caused injuries to the complainant on left hand elbow, on the thigh, on the back with sticks and to the brothers of the complainant. They also caused injuries to the wife of the complainant with sticks, while accused no. 7 also assaulted the wife of the complainant with sticks on the back and the chest and accused no. 1 inflicted Farsi blow on the head of the witness, Muljibhai causing serious injuries. Accused nos. 5 and 6 caused injuries to the witness, Kamlaben and Kanubhai with sticks on hands and on legs and also on the back. The case of the prosecution is that all the accused forming unlawful assembly used weapons to achieve common object, used force and resorted to violence, and caused injuries to the complainant and witnesses. Accused no. 2 gave a Dharia blow to the father of the complainant who succumbed to the injuries. Accused no. 1 gave Farsi blow to the deceased on the forehead and thus, caused injuries on the vital part of the body, the deceased succumbed to the injuries while under treatment. That the accused cornered the complainant and the witnesses and uttered words, "sala Chamadia Ne Mari Nakho" (threatened to kill with abusive expressions ). Accused no. 1 gave Farsi blow to the deceased on the forehead and thus, caused injuries on the vital part of the body, the deceased succumbed to the injuries while under treatment. That the accused cornered the complainant and the witnesses and uttered words, "sala Chamadia Ne Mari Nakho" (threatened to kill with abusive expressions ). On the basis of the complaint of the complainant Khambhat Rural Police Station registered an offence being C. R. No. I-0017 dated 13. 3. 1997 and on investigation having found evidence against the accused filed charge sheet on 11. 6. 1997 before the Special Judge. The learned Judge was pleased to frame charge at exhibit 7 and recorded their statements vide Exhibits 8 to 14 and on their denying the offence, put them to trial. The learned 3rd Additional Sessions Judge, Nadiad after appreciating oral as well as documentary evidence on record found the accused nos. 1, 2, 3 and 5, 6 and 7 guilty of the offence charged against them and sentenced them, the details of which are set out hereinabove while acquitted accused no. 4. The finding of guilt and the sentence imposed on the accused is assailed by the convicts by the present Appeal. It is to be noted that the State has not challenged acquittal of the accused no. 4. ( 2 ) IN order to bring home the guilt to the accused persons, the prosecution had examined; Ashok Ambalal Rawal Panch Witness Exh. 19 Bhailalbhai Jethabhai Rohit Panch Witness Exh. 21 Mohamedbhai Ibrahimbhai Panch Witness Exh. 22 Badruddin Umraomiya Panch Witness Exh. 26 Dr. Nayan Keshubhai Modi PW 5, Exh. 26 Dr. Devendra Keshavlal Sachdev PW6 Exh. 33 Rameshbhai Bhikhabhai Panch Witness Exh. 45 Mohammed Sabir Abdul Habib Panch Witness Exh. 47 Ala Hasif Ala Safar Panch Witness Exh. 50 Yusub Ali Ala Ali Panch Witness Exh. 52 Dr. Narayanbhai Pujabhai Parmar PW 11 Exh. 53 Kantibhai Kachrabhai Rohit, PW12 (Complainant) Exh. 57 Kanubhai Kachrabhai PW 13 Exh. 59 Vinubhai Kachrabhai PW 14 Exh. 60 Muljibhai Kachrabhai PW 15 Exh. 61 Dr. Kitul Arvindbhai Sanghvi PW 16 Exh. 62 Savitaben Kantibhai PW 17 (Panch Eye Witness) Exh. 71 Kamlaben Muljibhai PW 18 Exh. 72 Babubhai Karshanji Jadeja, PSI PW 19 Exh. 74 Kishorkumar Babulal Mehta,dy. SP PW 20 Exh. 75 Shaileshbhai Mangalbhai Katara PW 21 (Divisional Police Officer) Exh. 60 Muljibhai Kachrabhai PW 15 Exh. 61 Dr. Kitul Arvindbhai Sanghvi PW 16 Exh. 62 Savitaben Kantibhai PW 17 (Panch Eye Witness) Exh. 71 Kamlaben Muljibhai PW 18 Exh. 72 Babubhai Karshanji Jadeja, PSI PW 19 Exh. 74 Kishorkumar Babulal Mehta,dy. SP PW 20 Exh. 75 Shaileshbhai Mangalbhai Katara PW 21 (Divisional Police Officer) Exh. 76 ( 3 ) BESIDES the oral evidence the prosecution also produced relevant documentary evidence, namely, Panchnama of scene of offence, exhibit 20; Panchnama of physical condition of the deceased, exhibit 23; Panchnama of physical condition of the accused Budhabhai, exhibit 24; Panchnama of Dharia produced by Budhabhai, exhibit 25; Yadi for Postmortem Notes, exhibit 30; Postmortem Note, exhibit 31; Cause of Death Certificate, exhibit 32; Police Yadi for giving certificate of treatment, exhibit 34; Certificate referring to Vadodara, exhibit 35; Injury Certificate of Muljibhai, exhibit 36; Injury Certificate of Kantibhai Kachrabhai, exhibit 37; Injury Certificate of Kanubhai Kachrabhai, exhibit 38; Injury Certificate of Kamuben Muljibhai, exhibit 41; Injury Certificate of Vinubhai Kachrabhai, exhibit 42; Inquest Panchnama, exhibit 46; Panchnama of clothes produced by accused no. 1 Pravinbhai, exhibit 48; Panchnama of taking weapons into custody, exhibit 49; Panchnama of physical condition of the accused and of the weapons, exhibit 51; Injury Certificate of Muljibhai Kachrabhai, exhibit 54; Injury Certificate of Kamlaben Muljibhai, exhibit 55; Injury Certificate of Kanubhai Kachrabhai, exhibit 56; Original complaint, exhibit 58; Police Yadi to Medical Officer, Krishna Hospital, Nadiad, exhibit 63; Injury Certificate of Muljibhai, exhibit 64; Medical papers of Muljibhai K. Rohit, exhibit 65; Injury Certificate of Vinubhai Kachrabhai, exhibit 66; Medical papers of Vinubhai Kachrabhai, exhibit 67; Injury Certificate of Kamlaben Muljibhai, exhibit 68; Medical papers of Kamlaben Muljibhai, exhibit 69; Discharge Certificate of Kamlaben Muljibhai, exhibit 70; Forensic Science Laboratory Report, exhibit 77; Serological Report, exhibit 78; Map of the scene of offence, exhibit 79. ( 4 ) MR. K. B. Anandjiwala, the learned advocate for the appellants produced a xerox copy of the death certificate of Bhailalbhai Trikambhai Patel, accused no. 1-appellant no. 1, original accused no. 1. The said appellant expired on 12. 4. 2001. ( 5 ) MR. ANANDJIWALA submitted that this is a case of false implication of all the family members without any rhyme or reason inasmuch as accused no. 1-appellant no. 1, original accused no. 1. The said appellant expired on 12. 4. 2001. ( 5 ) MR. ANANDJIWALA submitted that this is a case of false implication of all the family members without any rhyme or reason inasmuch as accused no. 4, Manubhai Bhailalbhai Patel, who was at Mumbai at the relevant time, whose alibi is accepted by the learned Additional Sessions Judge and also Dashrathbhai Bhailalbhai Patel, accused no. 6 and Bhailalbhai Trikambhai Patel, accused no. 1, who were at Ahmedabad at the relevant time. The learned advocate submitted that the father, Bhailalbhai Trikambhai Patel and his five sons with one grand son, all were implicated in the case. The learned advocate submitted that taking into consideration the aspect of false implication, the case of the complainant ought to have been disbelieved and the accused ought to have been acquitted of all the charges. He submitted that in the present case the evidence of four doctors is on record. Dr. Nayan Keshubhai Modi, PW 5, exhibit 29 is the one who performed Postmortem of the deceased, Kachrabhai Kalyanbhai Rohit. The certificate indicating the cause of death is at exhibit 32 wherein it is stated that the death was caused due to cranio Cerebral damage following trauma. The Postmortem Notes are at exhibit 31; column 17 thereof contains external injuries. The injuries mentioned therein are : (i) sutured wound 2. 0 cm leg brownish black contused margins 1. 5 cm surrounding 4 swelling over Rt frontal region about 10 x 5 cm in size towards medial size. (ii) sutured wound 1. 5 cm long with brownish black surrounding contusion of 2 cm. (Contused areas of both above injuries are overlapping between sutured wounds ). Depressed fracture of Rt frontal region palpable. (i) fracture deformity of Rt elbow joint upper ends of radius - ulna. (ii) fracture deformity of Rt. wrist joint and hand with Fracture of 2nd, 3rd metacorpus. (iii) fracture, Rt side of ribs. 2nd, 3rd and 6th. ( 6 ) THE learned advocate submitted that in his deposition, the Doctor has deposed that the injuries mentioned in column 17 were of serious nature, that he would not be in a position to give a definite opinion as to whether these injuries can be caused by a weapon like Dharia and Farsi. He has further deposed that the said injuries were possible with hard and blunt substance. He has further deposed that the said injuries were possible with hard and blunt substance. He has also deposed that depressed facture is possible with hard and blunt substance and linear fracture is possible on account of depressed fracture. He further deposed that if a person is hit by hard and blunt substance, a depressed fracture is possible. The learned advocate submitted that from the aforesaid deposition of the doctor, it is clear that the complainant has concocted the story of attack with Dharia and Farsi. ( 7 ) THE next doctor examined by the prosecution is Dr. Devendra Keshavlal Sachdev, PW 6, Exhibit 33, who had examined Kachrabhai, Mulji Kachra, Kanti Kachra, Kanu Kachra, Kamuben Mulji, Savita Kanti, Vinu Kachra and Budha alias Ishwar Bhailal. The learned advocate submitted that Dr. Devendra Keshavlal Sachdev was the first doctor to examine the deceased Kachrabhai and other injured. On examining Kachrabhai Kalyanbhai Rohit, he noticed that: (i) clw size about 2 1/2 cms. x 1 cm x bone deep over Rt. Temporal region; above and lateral to Rt. eyebrow oblique. Bleeding clinically fracture (on part portion ). (ii) clw size about 3 cms x 1 cm x bone deep over Rt. frontal eminance, oblique. Bleeding and clinically (on part portion ). (iii) c/o bleeding from nostrils and from mouth following injury. The learned advocate submitted that to this doctor, history of assault with bhala and lakdi was given which is mentioned in Injury Certificate, exhibit 35. The learned advocate emphatically submitted that the fact the doctor noticed CLW, there was no possibility of use of sharp edged weapon like Dharia and Farsi. The learned advocate also submitted that the case of the complainant was required to be discarded in view of the fact that though the history of assault with bhalla and lakdi was given, no puncture wound was found either on the body of the deceased or any of the injured. He submitted that this aspect of the matter assumes importance and is required to be considered taking into consideration the totality of the circumstances of the case, more particularly the implication of all the family members including five sons, father and a grand son. The learned advocate Mr. Anandjiwala submitted that Dr. He submitted that this aspect of the matter assumes importance and is required to be considered taking into consideration the totality of the circumstances of the case, more particularly the implication of all the family members including five sons, father and a grand son. The learned advocate Mr. Anandjiwala submitted that Dr. D. K. Sachdeva had also examined Mulji Kachra and in the Injury Certificate it is recorded that he noticed the following injuries on the persons of Mulji Kachra: (i) clw size about 5 cm. x 1 cm x bone deep over Rt side frontal region and Rt parietal region (illegible) part extending anteroposteriorty about 2 cm. lat. to middle. Bleeding. (ii) multiple contusions over back all over. In the Injury Certificate, history of assault with farsi and lakdi is recorded. The Injury Certificate of Kantibhai Kachrabhai Rohit, Exhibit 37 and the injury notes read as following: (i) tenderness, deformity, swelling upper part of left forearm. History of assault with lakdi is noted. The Injury Certificate of Kanubhai Kachrabhai Rohit is at Exhibit 38, wherein it is recorded that there were no marks of external injury, while the history of assault with lakdi is recorded. ( 8 ) THE Injury Certificate of Kamuben Muljibhai Rohit, Exhibit 39 has recorded the history of assault as assault with lakdi and injuries as following: (i) abrasion size about 2 cm x 2 cm over posterolateral aspect of Rt elbow (illegible ). (ii) tenderness, swelling, deformity Rt hand. (iii) contusion size about 5 cm x 3 cm post aspect of left shoulder. The Injury Certificate of Savitaben Kantibhai Rohit is at Exhibit 40, wherein history of assault with lakdi is noted and so far as injuries are concerned it is recorded that, "no mark of external injury", but then it is also noted that there was "chest pain following injury". ( 9 ) THE Injury Certificate of Vinubhai Kachrabhai Rohit, is at Exhibit 42, wherein history of assault with "hockey and pipe" is mentioned and injuries are as under: (i) clw size about 2 cm x 1/2 cm x 1/2 cm, left upper eye lid, lateral part. Transverse bleeding, (ii) abrasion size about 4 cm x 2 cm. Post aspect of Rt shoulder. (iii) swelling. Tenderness left (illegible) angle. (iv) complaint of pain left heel following injury. Transverse bleeding, (ii) abrasion size about 4 cm x 2 cm. Post aspect of Rt shoulder. (iii) swelling. Tenderness left (illegible) angle. (iv) complaint of pain left heel following injury. ( 10 ) THE learned advocate submitted that though it is the case of the complainant that all these persons were injured in the same incident, the history of assault with different weapons/ objects is given. In one case it is Farsi and lakdi, while in other case it is bhala and lakdi, in yet another case it is "hockey and pipe". This shows that there is no consistency. The only object of the complainant appears to implicate all the family members of the accused. The accusation of assault by various weapons is made without having any regard to the truth. ( 11 ) THE next doctor examined is Dr. Naranbhai Punjabhai Parmar, PW 11, Exhibit 53. He is the doctor who had examined Mulji Kachra, Kamla Mulji and Kanu Kachra at SSG Hospital, Vadodara. The Injury Certificate of Muljibhai Kachrabhai Rohit is at Exhibit 54 wherein it is recorded that there was an assault by farsi. The following injuries are noted in the Certificate: (i) incised and Rt parietal regions at 3 x 2 1 cm. (ii) incised and mid frato parietal region at 7 x 1 x bleeding. (iii) contusion about (4)a no. 3 x 2a she Red Cons on its shoulder. (iv) (Illegible) (7) Nrs. about 4a x 3a Red lower over back (illegible) region. The Injury Certificate of Kamlaben Muljibhai Rohit is at Exhibit 55, wherein it is noted that there was an assault by lakdi. The injuries mentioned are : (i) (illegible) swelling on Rt hand (illegible ). (ii) coatesn. Lt. side shounder at 3 x 2a. (iii) (Illegible) on Rt knee (illegible ). The Injury Certificate of Kanabhai Kachrabhai Rohit, Exhibit 56, too has recorded assault by lakdi; so far as injuries are concerned it is mentioned that, "he (illegible) on Rt forearm (illegible ). ( 12 ) MR. ANANDJIWALA, the learned advocate submitted that in these certificates also there is no consistency about the weapon used and except one Injury Certificate, at exh. 54, in no certificate any incise would is recorded. ( 13 ) THE last in sequence is Dr. Kintul Arvindbhai Sanghavi, PW 16, Exhibit 62, who had examined Muljibhai Kacharabhai and two others, the injured at Shri Krishna Hospital, Karamsad. 54, in no certificate any incise would is recorded. ( 13 ) THE last in sequence is Dr. Kintul Arvindbhai Sanghavi, PW 16, Exhibit 62, who had examined Muljibhai Kacharabhai and two others, the injured at Shri Krishna Hospital, Karamsad. He examined the injured on 19. 3. 1997. Muljibhai Kachrabhai Rohit, Vinubhai Kachrabhai Rohit and Kamlaben Muljibhai Rohit were brought to him with Police Yadi. The Injury Certificate of Muljibhai Kachrabhai Rohit is at Exhibit 64, wherein injuries recorded are: Two sutured wound cut on frontal region or scalp. One which is anteriorly is 7. 8 cm long. One which is posteriorly 6. 7 cm long. The Injury Certificate of Vinubhai Kachrabhai Rohit is at Exhibit 66. The injuries recorded are: Sutured wound of 3 cm length on outer aspect of left eye. Abrasion on back of lt. scapula. The Injury Certificate of Kamlaben Muljibhai Rohit is at Exhibit 68, wherein the injuries recorded are: Over colossal aspect of Rt hand swelling is present. Heeled abrasions on back of shoulder (4 cm x 3 cm ). Mr. Anandjiwala, the learned advocate submitted that from the aforesaid medical evidence it is clear that the injuries were not of the nature which could have been caused by a sharp edged weapon like Dharia or Farsi. He emphatically submitted that the deposition of Dr. Nayan Keshubhai Modi, is very clear, he has not given any definite opinion of the injuries being caused by Dharia and Farsi. On the contrary, the doctor has opined that the injuries could have been caused by a hard and blunt substance. He submitted that thus, the complainants case is not only not supported by the medical evidence but is negatived in toto and hence the same ought to have been disbelieved by the learned Judge. ( 14 ) THE learned advocate Mr. Anandjiwala submitted that the accused, Dashrathbhai Bhailalbhai Patel (accused no. 6, appellant no. 5) was at Ahmedabad and he was not present at the time of occurrence of the alleged incident. He submitted that to prove the same three witnesses were examined by the defence, viz. (i) Himmatsinh Kishansinh Rathod, DW 1, Exhibit 78. The deponent was serving as Section Engineer in Ahmedabad Electricity Company (hereinafter referred to as "aec") in Electrical Maintenance Department. He has deposed that on 13. 3. 1997 between 8. 00 and 10. He submitted that to prove the same three witnesses were examined by the defence, viz. (i) Himmatsinh Kishansinh Rathod, DW 1, Exhibit 78. The deponent was serving as Section Engineer in Ahmedabad Electricity Company (hereinafter referred to as "aec") in Electrical Maintenance Department. He has deposed that on 13. 3. 1997 between 8. 00 and 10. 00 PM said Shri D. B. Patel was present along with other persons, namely, V. C. Patel, Khambhu and B. S. Patel. He has deposed that on that day, 20 boys had registered their names of which 19 names were noted down by the deponent in his hand writing while 20th name was written by Shri D. B. Patel in his hand writing. 14. 1 the defence has next examined one Nayan Haribhai Shah, DW 2, Exhibit 91. The deponent was a senior officer for last 12 years with the AEC. He has deposed that on 12. 3. 1997 the duty hours of Dashrathbhai Patel were 7. 00 AM to 11. 00 AM and that at 12. 00 midnight he has reported for duty and his duty hours were over at 8. 00 AM on 13. 3. 1997 and that thereafter he had reported for duty at 12. 00 midnight on 13. 3. 1997. Thereafter, on 14. 3. 1997 also he had reported for duty at 12. 00 midnight. His duty hours were over on 15. 3. 1997 at 8. 00 AM. Thus, he had worked during night shift, i. e. 12. 00 midnight to 8. 00 AM on 12, 13, 14 and 15th March 1997. The deponent also produced Muster Roll -- page 7, which is Exhibit 92. The defence has also examined one Liyakatali Jaminali Qadri, DW 3, Exhibit 94, who was serving as Deputy Manger with AEC Sabarmati Employees Cooperative Vividh Karyakari Mandali Limited (hereinafter referred to as "mandali" ). He has deposed that, the said Mandali gives loans and advances to the employees of the company and accepts Savings and Fixed Deposits. The accounts of the Mandali are audited every year and that there is an internal audit also. For the year 1996-97, D. B. Patel and B. S. Patel were appointed as Internal Auditors. He has deposed that on 13. 3. 1997, D. B. Patel (present appellant no. 5) had audited accounts of the society (Mandali) and a noting was made in the hand writing of B. S. Patel. For the year 1996-97, D. B. Patel and B. S. Patel were appointed as Internal Auditors. He has deposed that on 13. 3. 1997, D. B. Patel (present appellant no. 5) had audited accounts of the society (Mandali) and a noting was made in the hand writing of B. S. Patel. Relevant documents are produced at Exhibits 95, 96 and 97. 14. 2 the defence has also examined one Baldevbhai Pusabhai Shrimali, DW 5, Exhibit 104. The deponent was serving as Compounder with Dr. Ritaben P. Shah at Shalimar Complex. Dr. Ritaben is a Child Specialist. The deponent has deposed that on 20. 2. 1997 Dashrathbhai (appellant no. 5) had come to the hospital for treatment of his daughter, Dhara who is suffering from asthma. The witness has further deposed that on 13. 3. 1997 between 12. 00 noon to 2. 00 PM Dashrathbhai had brought his daughter as she was having some breathing problem. On that day baby, Dhara was administered nebuliser which was done by the deponent. He has also deposed that after 13th, again on 15th Baby, Dhara was brought and she was admitted for two days. On 15th Baby, Dhara was brought by her mother and father. 14. 3 the learned advocate Mr. Anandjiwala submitted that from the aforesaid evidence it is clear that Dashrathbhai Patel was present at Ahmedabad on the day of the incident, i. e. 13. 3. 1997 and this evidence ought to have been believed by the learned Additional Sessions Judge and should have held Dashrathbhai Patel was not present at the scene of occurrence. He submitted that the learned Judge has committed error in not believing the aforesaid evidence, ignoring an important aspect of the matter that Dashrathbhai Patel is an ordinary employee of AEC and there is hardly any possibility of any of the witnesses coming forward to depose anything other than truth. 14. 4 mr. Anandjiwala, the learned advocate submitted that in fact Dr. Samip Indravadan Dani, DW 4, Exhibit 100 was examined to prove alibi qua Shri Bhailalbhai Trikambhai Patel, accused no. 1, appellant no. 1. However, he sought leave of the Court not to press the same as accused no. 1-- appellant no. 1 had expired. 14. 5 mr. 14. 4 mr. Anandjiwala, the learned advocate submitted that in fact Dr. Samip Indravadan Dani, DW 4, Exhibit 100 was examined to prove alibi qua Shri Bhailalbhai Trikambhai Patel, accused no. 1, appellant no. 1. However, he sought leave of the Court not to press the same as accused no. 1-- appellant no. 1 had expired. 14. 5 mr. K. B. Anandjiwala, the learned advocate emphatically submitted that as almost all the family members of the deceased have been falsely implicated indiscriminately the evidence is required to be discarded. He submitted that when it is clear from the evidence that there is a deliberate and definite false implication of innocent persons in serious charge of murder, then not only the evidence of such witness is required to be discarded qua such proved false implication but the same is required to be totally eliminated and such practice is required to be strongly deprecated. In support of his aforesaid submissions he relied upon the judgement of this Court in the matter of Ashok Shankerbhai Vs. State of Gujarat, reported in 1992 (1) GLH 509 . ( 15 ) THE learned advocate Mr. Anandjiwala submitted that once it is established that the complainant and the other witnesses have falsely implicated at least one of the accused, i. e. Manubhai Bhailal Patel, whose alibi is accepted and who is acquitted by the learned Additional Sessions Judge taking into consideration the fact that the witnesses are interested persons, the learned Judge ought to have held that the evidence of the witnesses is not trustworthy and should have acquitted all the accused. The learned advocate relied upon the decision of the Honourable the Apex Court in the matter of B. N. Singh, etc. Vs. State of Gujarat, reported in AIR 1990 SC 1628 . The learned advocate relied upon para 9 of the judgement which reads as under:"9. We have also examined the evidence of these three witnesses and their cross examination and we are satisfied that they are highly interested witnesses. Apart from false implication of accused no. 3 we are also of the view that the vague allegation that accused nos. 2, 3 and 6 caught hold of deceased appears to be equally false. All these witnesses have stated that they heard the shouts and when they went to the place of occurrence they saw that accused nos. Apart from false implication of accused no. 3 we are also of the view that the vague allegation that accused nos. 2, 3 and 6 caught hold of deceased appears to be equally false. All these witnesses have stated that they heard the shouts and when they went to the place of occurrence they saw that accused nos. 2, 3 and 6 caught hold of the victim and that accused nos. 1, 4 and 5 dealt knives blows all over the body, one of them on the back and the others on the front. The Doctor, PW 13 found 11 injuries all over the body namely on both sides of the chest, clavicular region, hypochondrial region, abdomen, thighs scapula and paravertebral region. If really three persons were holding the deceased in the manner spoken to by these interested witnesses, the other three persons armed with big knives could not have indiscriminately caused the injuries on all parts of the body in that manner. It would not have been possible for them to cause injuries without causing hurt to the persons so holding. Therefore, we are not prepared to accept the prosecution version that accused nos. 2, 3 and 6 caught hold of the deceased and accused nos. 1, 4 and 5 inflicted the injuries in that manner. As a matter of fact, in the report given by PW 4, it is stated that all the accused surrounded the deceased and were beating him. It is further stated that accused nos. 1, 4 and 5 stabbed 4 or 5 times on the chest and thighs of the deceased and accused nos. 2, 3 and 6 held his hands. " ( 16 ) THE learned advocate Mr. Anandjiwala submitted that even according to the prosecution the incident had taken place on a public road where a huge crowd had gathered. Despite that the prosecution has not examined one single independent witness. The witnesses examined are family members of the deceased who have not spared anybody from the family of the accused. Anandjiwala submitted that even according to the prosecution the incident had taken place on a public road where a huge crowd had gathered. Despite that the prosecution has not examined one single independent witness. The witnesses examined are family members of the deceased who have not spared anybody from the family of the accused. He submitted that he is conscious of the fact that only because a witness is related to the deceased, his testimony cannot be discarded solely on that ground, but then at the same time taking into consideration the totality of the circumstances and the fact that the prosecution has not examined one single independent witness, the evidence of the witnesses who are not independent witnesses is required to be appreciated with close scrutiny. He placed reliance on the following observations of this Court in the case of Ashok Shankerbhai Vs. State of Gujarat (supra)". . . . WE under the circumstances are firmly of the opinion that in case, if the evidence of any solitary eye witness, like the one in the instant case, standing alone by itself has displayed a deliberate and definite tendency of falsely involving and implicating innocent person and that too in the serious charge of murder, then the evidence of such a witness, in absence of any other dependable evidence forthcoming on the record is not only required to be totally eliminated from the consideration, but the same further deserves to be strongly deprecated and strongly dealt with under section 194 of the IPC being a serious offence against the public justice. " ( 17 ) MR. N. D. Gohil, the learned Additional Public Prosecutor supported the judgement and the conviction and submitted that the submissions made by the learned advocate Mr. Anandjiwala are devoid of any merit and the same are required to be rejected and the conviction deserves to be upheld. He submitted that only because the persons injured happen to be related to the deceased, the evidence of the injured witnesses does not become doubtful or unreliable. He submitted that the accused assaulted the deceased and the injured by forming an unlawful assembly near their house and caused various injuries, to which ultimately the deceased succumbed to. ( 18 ) MR. N. D. Gohil, the learned Additional Public Prosecutor while replying the contentions of Mr. He submitted that the accused assaulted the deceased and the injured by forming an unlawful assembly near their house and caused various injuries, to which ultimately the deceased succumbed to. ( 18 ) MR. N. D. Gohil, the learned Additional Public Prosecutor while replying the contentions of Mr. Anandjiwala regarding non examination of independent witnesses from the public relied upon the decision of the Honourable the Apex Court in the matter of Ambica Prasad and another Vs. State (Delhi Administration, Delhi), reported in JT 2000 (1) SC 273 wherein the Honourable the Apex Court was pleased to observed that,"it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. If independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. " ( 19 ) MR. N. D. Gohil, the learned Additional Public Prosecutor submitted that while appreciating the evidence, contradictions, inconsistencies, exaggerations, embellishments and minor variations are required to be ignored if the Court is of the opinion that the evidence is otherwise trustworthy. He submitted that if the Court is of the opinion that evidence is acceptable, the same may not be discarded merely on the ground of presence of minor variations in the evidence. He submitted that in the present case it is the case of the prosecution that the accused gathered together and attacked the deceased and the family members and caused serious injuries to the deceased and injured, the other family members who are witnesses in this case. He submitted that merely because there are some contradictions and some inconsistencies in the evidence of these witnesses but as the central line remains intact the evidence of these witnesses is not required to be discarded. In this regard he relied upon the judgement of the Honourable the Apex Court in the matter of Sukhdev Yadav and others Vs. State of Bihar, reported in (2001) 8 SCC 86 , wherein the Honourable the Apex Court was pleased to observe as under:"it is now well settled that the court can sift the chaff from the grain and find out the true from the testimony of the witnesses. State of Bihar, reported in (2001) 8 SCC 86 , wherein the Honourable the Apex Court was pleased to observe as under:"it is now well settled that the court can sift the chaff from the grain and find out the true from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence. . . . . "". . . . there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment --sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account. . . . . " ( 20 ) MR. N. D. Gohil, the learned Additional Public Prosecution while replying to the submissions of Mr. Anandjiwala, the learned advocate for the appellant about the alibi of appellant no. 5, original accused no. 6 relied upon the judgement of the Honourable the Apex Court in the matter between Rajeshkumar Vs. Dharamvir and others, reported in AIR 1997 SC 3769 wherein the Honourable the Apex Court has observed that,". . . . It is trite that a plea of alibi must be proved with absolute certainty so as to completely exclude the presence of the person concerned at the time when and the place where the incident took place. . . . . " .