Judgment ( 1. ) THE judgment shall dispose of both the appeals, as these appeals have been preferred by the accused/appellants calling in question the legality of conviction and sentence imposed upon them by Second Additional sessions Judge, Burhanpur in Sessions Trial No. 13/96 whereby, the appellants have been convicted under Section 147 of I. P. C. and sentenced to rigorous imprisonment for 1 year and fine of Rs. 1000/- each in default, further rigorous imprisonment for 2 months. They also stand convicted for commission of offence u/s. 302 read with Section 149 of I. P. C. and sentenced to imprisonment for life and fine of Rs. 10,000/-each in default, further rigorous imprisonment for 2 years each. They have also been convicted U/s. 307 read with Section 149 of i. P. C. and sentenced to 7 years rigorous imprisonment and fine of Rs. 2000/- each and in default, further rigorous imprisonment for 4 months each. The substantive sentences were directed to run concurrently. ( 2. ) THE prosecution case in short is that on 30th May, 1994, elections of Gram panchayat were held at village Adgaon. ASI Shri T. K. Chouhan, PW-19 was posted on election duty with Zonal Officer Shri Vijay Koshla. After polling was over, counting of votes took place at about 7 p. m. and was completed by 10. 30 p. m. in the night Madhukar was declared elected defeating accused Devanand by margin of 16 votes. Devanand insisted the Zonal Officer Vijay Koshla for recount of the votes and upon recount, the result remained the same. Devanand did not accept the recounting and wanted the recounting; to be done by himself and through his agents. The elected candidate Madhukar went away at about 11 p. m. Thereafter, Devanand and his supporters did not permit the election party to move out of the counting place and started raising slogans. Devanand. caught hold of the ballot box and was not ready to permit its removal. His supporters gathered outside the polling booth and started raising slogans, near about 200 to 250 people assembled there. Considering the situation, the Zonal -Officer Vijay Koshla requested T. K. Chouhan PW-19 to call police reinforcement The police reinforcement reached the place of counting at 1. 00 Oclock in the night. His supporters gathered outside the polling booth and started raising slogans, near about 200 to 250 people assembled there. Considering the situation, the Zonal -Officer Vijay Koshla requested T. K. Chouhan PW-19 to call police reinforcement The police reinforcement reached the place of counting at 1. 00 Oclock in the night. Shri Kailash Pathrod, SHO of Police Station Shahpur reached the spot in order to rescue the election party along with three armed constables of SAF. On seeing the SHO arriving at the spot. Ramesh and others exhorted and started pelting stones upon them. Kailash Pathrod was surrounded by large number of persons and was done to death. Injuries were also caused to 6 police personnel. In self-defence, the firing was made by the police in which three rioters Gulab, Pandit and Bhimrao died. The autopsy was performed by Dr. M. P. Garg, PW-3, who submitted his report Ex. P/6. The injured were examined by Dr. K. M. Gupta pw-2. Dr. K. M. Gupta medically examined ASI T. K. Chouhan PW-19, Phoolchand Dwivedi, Bhagwan Singh, Constables of Police Station Shahpur, Vishnu Pandey and Rajaram of 1st Battalion, SAF and found injuries on their persons. Injury reports Ex. P/1 to Ex. P/5 were submitted by the doctor PW-2. The service revolver of Kailash Pathrod was snatched by accused Ramesh, Anil, Sunil and gyaneshwar. The service revolver was seized from the well at the instance of accused Ramesh pursuant to information memo Ex. P/10. It was seized vide seizure memo Ex. P/11. Blood stained "dhoti" of accused Ramesh was also seized vide seizure memo Ex. P/12. After due investigation, the accused were charge-sheeted. ( 3. ) THE accused abjured the guilt and contended that they have been falsely implicated due to election dispute. ( 4. ) THE prosecution has examined in all 20 witnesses. The trial Court has convicted the appellants 22 in numbers for commission of the aforesaid offence. Hence, the appeals have been preferred. During pendency of the appeal, accused/appellant Sanjay in Criminal Appeal No. 2395/2000 has expired. His name has been ordered to be deleted. ( 5. ) SHRI S. C. Dart, learned senior counsel appearing with Shri Sidharth Datt in criminal Appeal No. 2395/2000 and Shri T. K. Modh, learned counsel in Criminal appeal No. 2555/2000 have submitted that large number of persons have been implicated in this case. His name has been ordered to be deleted. ( 5. ) SHRI S. C. Dart, learned senior counsel appearing with Shri Sidharth Datt in criminal Appeal No. 2395/2000 and Shri T. K. Modh, learned counsel in Criminal appeal No. 2555/2000 have submitted that large number of persons have been implicated in this case. There were 200 to 300 persons who had assembled on the spot. Thus, it would* not be safe to convict the accused persons on the basis of uncorroborated evidence of so-called eye witnesses, which suffers from material inconsistencies and some of the accused persons have been named only by one of the witness. Hence, in the absence of corroboration by other witnesses as to the presence and participation of the accused persons, it would not be safe to convict them for the alleged offences. It was also submitted by the learned counsel for the appellants that it could not be said that the object of the unlawful assembly was the same. Some of the members of the unlawful assembly had stopped the election party from moving away as they were demanding recounting of votes. The common object or intention of committing the murder of Kailash pathrod, SHO, PS Shahpur could not be attributed to all the accused persons. ( 6. ) SHRI S. K. Rai, learned Government Advocate has supported the judgment. He submitted that unlawful assembly was clearly formed on the spot and its common object was not only to restrain the election party and police personnel, but it was bent upon and shared common object of committing murder of Kailash pathrod, SHO, who came as rescue party. There is no rule that the testimony of single reliable witness cannot be accepted or acted upon and if large number of persons were present there obviously, there is bound to be some difference as to the persons named by the different witnesses. Even otherwise, the version of truthful witnesses cannot be discarded applying the mechanical rule of insisting corroboration by more than one witness. ( 7. ) IN the instant case, from the evidence on record it emerges that on the same day the election was held for which the counting was done at village Adgaon. The recounting was also done at the instance of accused Devanand. After recounting was over, the result remained. unchanged. The declaration of result was not accepted by Devanand. ( 7. ) IN the instant case, from the evidence on record it emerges that on the same day the election was held for which the counting was done at village Adgaon. The recounting was also done at the instance of accused Devanand. After recounting was over, the result remained. unchanged. The declaration of result was not accepted by Devanand. He and his supporters did not permit the ballot box to be taken away by election party and the police personnel from the counting centre/booth. Some of the supporters entered the school building where the counting had taken place and slogan shouting was started. In the meantime, the winning candidate namely Madhukar had left the polling booth/counting center, is also not disputed. The Zonal Officer Vijay Koshla requisitioned for police. reinforcement in the situation as the place was surrounded by large number of persons and some of them had also entered the prohibited zone. Slogans were being raised. Police reinforcement reached the spot with Kailash Pathrod, SHO of Police Station Shahpur along with five other constables at village Adgaon. In order to rescue the election party, when Kailash Pathrod was trying to enter the school building, he was surrounded by unlawful assembly. He was over powered and some heavy stones were in fact thrown upon his head. ( 8. ) IN the instant case, we find in all eight eye witnesses namely Basant PW-8, Sopan PW-9, Aran PW-10, Jankiram PW-11, Madhukar PW-12, Sanjay pw-15, Eknath PW-16, T. K. Chouhan PW-19. On consideration of the evidence adduced by the prosecution in this case, we found that R. G. Joshi PW-1 was the presiding officer of the polling booth No. 123 at- village Adgaon. He stated that after the recounting was done, Devanand and his supporters were not satisfied with the result and therefore, they started raising slogans etc. Police reinforcement was called upon. What was happening outside, he was not aware. Bhagwan pw-4 had reached with police rescue party at about 1/00 Oclock in the night. Vijay Kumar Koshla PW-5, the Zonal Officer had stated that recounting was done, but the result after the recounting was also not accepted by loosing candidate devanand and his supporters who entered the counting place of the center. Surajpal Singh PW-6 has also supported the aforesaid fact and he too was inside the school where the counting was held. Vijay Kumar Koshla PW-5, the Zonal Officer had stated that recounting was done, but the result after the recounting was also not accepted by loosing candidate devanand and his supporters who entered the counting place of the center. Surajpal Singh PW-6 has also supported the aforesaid fact and he too was inside the school where the counting was held. Prakash PW-7 has also supported the factum of recounting of votes by accused Devanand and the raising of slogans by his supporters and was not aware as to what was happening outside as he was inside school on election duty. Thus, it is apparent that after recounting was done, the unlawful assembly was formed. Effort was made to take the ballot box in his possession by Devanand and in the circumstances, the police reinforcement was called as situation was grim. ( 9. ) BASANT. PW-8 an eye witness of the incident has stated as soon as Shri pathrod SHO came with reinforcement, he tried to persuade the unlawful assembly gathered there, but they did not listen and started beating him. The stones were thrown upon him by Ramesh, Anil, Sunil, Jagan, Badu, Bhimrao, pandit, Gulab, Devidas and Chintamani. He also named Gyaneshwar, Manohar as persons who had thrown stones on the person of deceased Kailash Pathrod. Head injury was caused to the deceased. He cried that he was dying, other police personnel should save their lives. In cross-examination, this witness has denied the suggestion that there was any pelting of stones of by the two factions of winning and loosing party. He has clearly stated that stones were thrown on the police personnel when the reinforcement had reached. Sopan PW-9 has also stated that when police reinforcement came Anil, Ramesh, Sunil, Ramesh, shyamrao, Chandrakant, Baliram, Sitaram, Dhairyasheel, Nana and Manohar were throwing stones on the police personnel. They did not listen to the understanding given by deceased Kailash Pathrod. Kailash Pathrod sustained head injury. While he fell down, he asked the police to fire and requested the other police personnel to save their lives. They did not listen to the understanding given by deceased Kailash Pathrod. Kailash Pathrod sustained head injury. While he fell down, he asked the police to fire and requested the other police personnel to save their lives. The winning candidate had left the place earlier after declaration of the result at about 11 p. m. Arun PW-10 has stated that when the reinforcement party came, Ramesh, Shyamrao, Anil, Sunil, Ramesh, bhimrao, Vishwas, Ravindra Narayan, Baliram, Sitaram, Jairam and Dayaram had thrown the stones on Shri Pathrod due to which he sustained injuries and fell down. Police had fired in self defence due to which Gulab, Pandit and Bhimrao had died and Chudaman sustained injury on his leg. He has also stated that there was no pelting of stones from both the sides. Stones were thrown only by the party of Devanand towards the school. Jankiram PW-11 has named Ramesh, sunil, Anil, Bhaskar, Sanjay, Chintaman, Badu, Pandit, Bhimrao and Gulab as assailants who had thrown the stones upon Pathrod and caused injuries. Madhukar pw-12 has stated that when Mr. Kailash Pathrod came along with police force, stones were pelted upon him by Anil, Sunil- Ramesh, Ramesh Shyamrao, Baburao, Devidas, Kapur, Bajirao, Devidas, Ashok and one driver whose name he could not recollect. Chudaman, Gulab, Pandit and Bhimrao were also present, who had thrown stones on Pathrod due to which he died. Next eye witness is Keshav Prasad, who has stated that when the recounting was done, Devanand was still not satisfied and raised hue and cry. Sunil and Anil came inside the school and said that they wanted to count the ballot papers themselves and would not allow the ballot box to be taken away even if they had to kill somebody. 200-300 persons had assembled outside the counting center. Around 1. 00 Oclock, Mr. Pathrod came with police reinforcement on being requisitioned. Ramesh Rao had exhorted others that Pathrod has arrived, he be not permitted to go back alive and thereafter, ramesh Rao, Anil, Sunil, Baburao, Gyaneshwar and others started petting stones. Pathrod sustained injuries then his service revolver was snatched by Ramesh, Anil, Sunil and Gyaneshwar. Thereafter, the police opened fire in self-defence. Sanjay PW-15 another eye witness to the incident has stated that after recounting, unlawful assembly had gathered and the stones were thrown on the police reinforcement. Ramesh, Sunil, Anil, Baliram, Ashok, Pandit. Pathrod sustained injuries then his service revolver was snatched by Ramesh, Anil, Sunil and Gyaneshwar. Thereafter, the police opened fire in self-defence. Sanjay PW-15 another eye witness to the incident has stated that after recounting, unlawful assembly had gathered and the stones were thrown on the police reinforcement. Ramesh, Sunil, Anil, Baliram, Ashok, Pandit. Jagan and Bhimrao had thrown stones upon the deceased Kailash Pathrod, SHO. Eknath PW-16 is another eye witness, who has stated that when Pathrod came with police reinforcement, stones were thrown upon him. The accused persons were present in the unlawful assembly. There was sufficient light on the spot. Thus, visibility was clear. T. K. Chouhan PW-19 was present along with the Zonal Officer V. K. Koshla. He reached village Vapora on 30. 5. 94 at about 10 p. m. in the night when he was informed by head constable Ramyash Tiwari that at village Adgaon the loosing candidate along with his supporters were agitating and pelting stones by forming unlawful assembly. On being asked by the Zonal Officer, he had sent the requisition for sending the police reinforcement. The jeep by which he reached the village Adgaon was badly damaged by the crowd which had gathered there. Ramesh, Sunil and others were exhorting the unlawful assembly to throw the stones at the instance of Devanand the loosing candidate. As soon as Kailash pathrod alighted from the jeep, Ramesh exhorted that Pathrod should be killed. His son Sunil, Anil and his associates started throwing stones upon Shri pathrod. Numerous injuries were sustained by Pathrod, who fell down on the ground. Bhimrao, Anil etc. had thrown stones on the deceased. There after, in self-defence, the police opened fire. However, this fact that Bhimrao, Anil and sunil had thrown stones on Pathrod has not been specifically mentioned in the fir or in the police statement. ( 10. ) WHAT emerges from the aforesaid evidence is that the name of the accused ramesh has been taken by all the witnesses Basant PW-8, Sopan PW-9, Arun,pw-10, Jankiram PW-11, Madhukar PW-12, Sanjay PW-15, Eknath PW-16, T. K. Chouhan PW-19. Similar is the case of accused Ramesh, Anil and Sunil. ( 10. ) WHAT emerges from the aforesaid evidence is that the name of the accused ramesh has been taken by all the witnesses Basant PW-8, Sopan PW-9, Arun,pw-10, Jankiram PW-11, Madhukar PW-12, Sanjay PW-15, Eknath PW-16, T. K. Chouhan PW-19. Similar is the case of accused Ramesh, Anil and Sunil. They have also been named by all the witnesses whereas, accused Devanand was the main person behind the incident, who had instigated the supporters to surround the school building and was the key person for inciting the crowd to gather there and not to permit the election party to move away along with the ballot box inspite of the facf that recounting has also been done at his request. His presence and instigation by him is established by over whelming evidence on record and he was the chief architect of the incident which had taken place: with respect to accused Kapur, he has been named by Jankiram PW-11 and madhukar PW-12. Balu @ Badu has been named by Basant PW-8 and Jankiram PW-11. Chudaman has been named by Madhukar PW-12 and T. K. Chouhan PW-19. Baliram has been named by Sopan BW-9, Madhukar PW-12, keshav PW-14 and T. K. Chouhan PW-19. Devideen has been named by Basant pw-8 and Jankiram PW-11. Chintaman has been named by Basant PW-8, Jankiram pw-11 and T. K. Chouhan PW-19. Ashok has been named by Madhukar PW-12 and sanjay PW-15. Jagannath has been named by Basant PW-8 and Sanjay PW-15. ( 11. ) NOW, we are left with accused Bhaskar, who has been named by only witness Jankiram PW-11. Accused Bajirac has been named by Madhukar pw-12. Iqbal has been named by T. K. Chouhan PW-19. Vishwanath has been named by Arun PW-10 alone. Accused Ravindra has been named by Arun pw-10. Jairam has been named by only witness Arun PW-10. Accused dhairyasheel has been named by Sopan PW-9. Subjective choosing of person is not ruled out as election had been held on the same day, some of the witnesses belong to winning candidate group. Thus, the question for consideration is whether it would be safe to base the conviction of those accused who have been named by single witness out of 8 witnesses examined by the prosecution. ( 12. ) SHRI Datt, learned senior counsel has placed reliance upon the decision of the Apex Court in Masalti and others Vs. Thus, the question for consideration is whether it would be safe to base the conviction of those accused who have been named by single witness out of 8 witnesses examined by the prosecution. ( 12. ) SHRI Datt, learned senior counsel has placed reliance upon the decision of the Apex Court in Masalti and others Vs. The State of UP. AIR 1965 SC 202 in which the Apex Court has. laid down that it is true that under the Evidence act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. The Apex Court has laid down thus: "16. Mr. Sawhney also urged that the test applied by the high. Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not; trustworthy would8 not be enough to sustain the conviction. That no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a Sense, the test may be described as mechanical, but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. In a Sense, the test may be described as mechanical, but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case. " ( 13. ) IN Binay Kumar Singh Vs. State of Bihar. 1997 1 SCC 283 , the apex Court has considered the question that where the size of the unlawful assembly is quite large it would be prudent to insist on identification of accused by at least two reliable witnesses. The Apex Court has observed as under: "31. We have noticed that Mritunjaya (A-23) and Parmanand sharma (A-20) and Madan Mohan Sharma, son of Ambica (A-24)were identified by more than two eye witnesses as participants in the occurrence. Out of those witnesses the testimony of PW-10 and PW-32 was accepted by both courts. As for the remaining appellants both courts have accepted the testimony of at least three witnesses each as referring to each appellant. There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single-witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. All the same, when the. size of the, unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouch safe the identification of an accused as a participant in the riotng. All the same, when the. size of the, unlawful assembly is quite large (as in this case) and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouch safe the identification of an accused as a participant in the riotng. In Masalti v. State of U. P. , a Bench of four Judges of this Court has adopted such a formula. It is useful to extract it here: ". . . . . . where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it supported by two or three or more witnesses who give a consistent account of the incident. " ( 14. ) THE Apex Court in Chandra Shekhar Bind and others Vs. State of Bihar. 2001 8 SCC 690 has also considered that where a large number of accused participated. in the incident and several persons would have seen the incident, it would not be unreasonable or irrational to adopt the test that conviction could be sustained only if it is supported by at least two or more witnesses who give consistent account of the incident. The decision of Masalti v. State of U. P was relied upon. The Apex Court has held thus: "9. However, this is an incident in which a large number of accused had participated. The Constitution Bench of this Court has, in the case of Masalti v. State of U. P. held that under the Evidence Act, trustworthy evidence given by a single witness would" be enough to convict the accused persons, whereas evidence given by half-a-dozen witnesses which is not trustworthy would not be enough to sustain the conviction. It was held that where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. It was held that in a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It was held that in a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It was held that even though it is the quality of the evidence that matters and not the number of witnesses, still it is useful to adopt such a mechanical test". "10. This two-witness theory has also been adopted by this Court in the case of Binay Kumar Singh v. State of Bihar. It is held that there is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is held; that it is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. lt is held that even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. It is held that all the same, when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting. " The Apex Court has cautioned in the aforesaid decision that even the testimony of a single witness can be accepted and the Court should insist for corroboration by at least two witnesses if quite large number of persons gathering on the spot, it would not be irrational to apply the aforesaid test. ( 15. ) IN the instant case, it is apparent and is not disputed that 200 to 300 persons had gathered on the spot. It is also apparent that accused Devanand was the main instigator behind the incident and upon his instigation, accused Ramesh and others were not permitting the election party to move from the spot along with the existing police force. The police reinforcement had reached there and the aforesaid accused persons had over-powered Kailash Path rod and stones were thrown upon him resulting into his death. Thereafter, firing was opened by the police. ( 16. ) FIVE police personnel also sustained injuries. Dr. K. M. Gupta PW-2 prepared the injury reports Ex. P/1 to P/5. Dr. The police reinforcement had reached there and the aforesaid accused persons had over-powered Kailash Path rod and stones were thrown upon him resulting into his death. Thereafter, firing was opened by the police. ( 16. ) FIVE police personnel also sustained injuries. Dr. K. M. Gupta PW-2 prepared the injury reports Ex. P/1 to P/5. Dr. M. P. Garg PW-3 had performed the autopsy and submitted his report Ex. P/6. It is apparent from Ex. P/6 that bones in the parietal region were badly crushed and there were several injuries suffered by the deceased due to throwing of stones on him. Kailash Path rod was mercilessly beaten. It was obviously done to kill him. However, as laid down by the Apex court in the aforesaid decisions in Masalti Vs. State of U. P. (supra), Chandra shekhar Bind and Ors. Vs. State of Bihar (supra) and Binay Kumar Singh Vs. State of Bihar (supra) that as the size of the unlawful assembly was quite large and it is not unusual that many witnesses had witnessed the incident, we apply the test that at least two reliable witnesses to vouchsafe as to participating accused in the incident. It would not be unlawful or irrational to adopt the test laid down by the Apex Court in such circumstances that at least two or more witnesses should give consistent account of the incident and if it is accepted, then benefit of doubt must be given to other accused persons in case more than one witness has not stated about their presence/participation in the incident. Thus, accused Bhaskar, Bajirao, lqbal, Ravindra, Jairam; Dhairyasheel and Vishwanath who are named by one witness only are given benefit of doubt. The conviction of rest of the accused persons does not require any interference in the appeals, as obviously, they were the members of unlawful assembly which had gathered there and shared the common object in interfering in the Government work as well as causing death of Kailash Pathrod, SHO. It was only after the stones were mercilessly thrown upon the deceased causing injuries on his head and causing injuries to other persons, the police had opened fire in which three members of the unlawful assembly had died. ( 17. ) SHRI S. K. Rai, learned Government Advocate has relied upon the decision of the Apex Court in Kallu alias Masih and Ors. Vs. The State of Madhya Pradesh. ( 17. ) SHRI S. K. Rai, learned Government Advocate has relied upon the decision of the Apex Court in Kallu alias Masih and Ors. Vs. The State of Madhya Pradesh. AIR 2006 SC 831 wherein, it has been laid down that - "it is not necessary that all eye witnesses should specifically refer to the distinct acts of each member of an unlawful assembly". The facts of instant case are different. It is not on the basis of distinct act of each member that we are giving the benefit of doubt, but rule of prudence envisaged in the aforesaid decisions. The case on facts is distinguishable. ( 18. ) RESULTANTLY, we allow the appeal with respect to accused Bhaskar, Bajirao, lqbal, Ravindra, Jairam, Dhairyasheel and Vishwanath. Their bail bonds stand discharged. The appeal of other convicted accused/appellants is dismissed. The convicted appellants are directed to surrender before the Court below forthwith for undergoing the remaining part of their sentence. Appeal allowed.