H. B. ANTANI, J. ( 1 ) AS all the appeals preferred by the appellants under Section 374 (2) of the Code of Criminal Procedure, 1973 (the Code for short) arise out of judgment and order dated 25. 07. 2003 passed by the learned Joint district Judge and Additional Sessions judge, F. T. C. No. 1, Bharuch in Sessions case No. 85 of 2002 convicting the appellants for the offence punishable under section 147 of IPC for a period of one years' R. I. , under Section 148 of IPC for two years' R. I. and under Section 302 read with Section 149 R. I. for life and fine of rs. 1,000/-, in default, S. I. for two months, they are heard together and disposed of by this common judgment. ( 2 ) THE short facts giving rise to the present appeals are as under :- ( 3 ) THE complainant and other witnesses, proceeding on horse in the sim of village old Diva on 02. 03. 2002 at about 5 O'clock in the evening, had a quarrel with the appellants with regard to plucking of pulses from the field of one witness Isab Ismaile badabhai. The quarrel ensued between the appellants and complainant as well as other witnesses. The appellants, who were armed with deadly weapons like axe, sticks etc. , assaulted Ibrahim Mohammad Gangat and other persons, who were standing nearby and caused serious injuries to them. The complaint was given by Ahmad Yusufbhai to the Ankleshwar Police Station on 02. 03. 2002. In pursuance of the complaint filed by Ahmedbhai, investigation was set in motion. Investigating Officer registered the offence against the appellants and visited the place of incident and prepared panchnama of the place of incident in the presence of panch-witnesses. Panchnama of the person of accused was also prepared by the investigating officer. The deceased was sent to the hospital and the inquest panchnama was prepared. Panchnama of the clothes put on by the deceased was prepared in presence of the panch witnesses. P. M. was carried out on the dead body of Ibrahim Mohammad. Muddamal recovered was sent to F. S. L. for the purpose of detailed analysis and the appellants were arrested during the course of investigation. On receipt of F. S. L. report and P. M. report etc. P. M. was carried out on the dead body of Ibrahim Mohammad. Muddamal recovered was sent to F. S. L. for the purpose of detailed analysis and the appellants were arrested during the course of investigation. On receipt of F. S. L. report and P. M. report etc. , the appellants were produced before the learned Judicial Magistrate First Class, ankleshwar, who, in turn, committed the case to the Sessions Court under Section 209 of the Code as the case was exclusively triable by the Sessions Court. The charge against the appellants was framed by the learned Judge vide Exh. 6 for the offence punishable under Sections 147,148, 149 and section 302 of IPC as well as under Section 135 of the Bombay Police Act on 07. 12. 2002. The appellants pleaded not guilty to the charge levelled against them. Therefore, the matter was set down for full-fledged trial before the learned Sessions Judge. ( 4 ) THE prosecution has examined following witnesses. Sr. No. PW Names Exhs 1. 1 Ahmad Yusuf Danka 11 2. 2 Panch witness-Musabhai Kasambhai 13 3. 3 Panch witness - Melabhai Ishwarbhai Vasava 22 4. 4 Panch witness-Bharatbhai Durlabhbhai Patel 24 5. 5 Panch witness-Gulam Mohammad Suleman Manjara 25 6. 6 Iqbal Yusuf Mehta 28 7. 7 Yakubbhai Ibrahimbhai 30 8. 8 Eye witness Mohammad Faruk Yusufbhai 31 9. 9 Eye witness Aslam @ Babu Yusufbhai 34 10. 10 Panch witness ASI-Amratbhai Narsinhbhai 35 11. 11 Panch witness - Bharatbhai Ranchhodbhai Patel 36 12. 12 Circle Officer-Vinodbhai Harkishanbhai Rana 37 13. 13 ASI-Raimalbhai Fulabhai 41 14. 14 Dr. Omkar Sitaram Chaudhary 42 15. 15 Police Sub-inspector-Rameshbhai Dalabhai Patel. 46 The defence side has examined following witnesses. Sr. No. DW Names Exhs . 1. 1 Ketankumar Bipinbhai Gandhi 55 2. 2 Kiritbhai Zaverbhai Gandhi 60 3. 3 Chhagan Raijibhai Vasava 61 ( 5 ) THE prosecution has produced following documentary evidence to establish the guilt of the appellants. Sr. No. Documents Exhs . 1. Complaint given by Ahmadbhai Isab Danka 12 2. Slip signed by panch witnesses 14-15 3. Panchnama of the place of incident 16 4. Slip signed by the panch witnesses 17 to 20 5. Panchnama with regard to seizure of clothes put on by the deceased 21 6. Panchnama of the person of accused 23, 26 & 27 7. Inquest Panchnama 29 8. Map with regard to place of incident 39 9. Panchnama of the place of incident 16 4. Slip signed by the panch witnesses 17 to 20 5. Panchnama with regard to seizure of clothes put on by the deceased 21 6. Panchnama of the person of accused 23, 26 & 27 7. Inquest Panchnama 29 8. Map with regard to place of incident 39 9. Police Yadi 40 10. Yadi which was sent to Medical Officer 43 11. P. M. report 44 12. Receipt of F. S. L. 47-48 13. Letter received from F. S. L. 49 14. Dead body handed over to the family of the deceased and receipt thereof. 50 ( 6 ) THE learned Judge, at the conclusion of the trial, recorded further statement of the appellants under Section 313 of the code and put incriminating material to the appellants. The appellants denied the questions put to them and submitted that false case was foisted on them. ( 7 ) THE learned Judge, after going through the entire gamut of oral deposition and the documentary evidence, held that the death of Ibrahim Mohammad was caused in a most unnatural way. The appellants, alongwith the other accused, formed an unlawful assembly with the common intention to cause fatal injuries to the deceased. After forming an unlawful assembly, the appellants caused fatal injuries to the deceased on his face, in the abdomen and on the chest with deadly weapons like axe, stick etc. The learned judge held that the prosecution has established the entire link connecting the appellants with the commission of offence punishable under Sections 147, 148, 149 and Section 302 of IPC. The learned Judge further held that the evidence adduced by the prosecution is trustworthy and inspires confidence and, therefore, he convicted the appellants for the offence punishable under sections 147, 148, 149 and Section 302 of IPC. ( 8 ) THE appellants, being aggrieved by the said judgment, preferred the present appeals under Section 374 (2) of the Code. ( 9 ) LEARNED Advocate Ms. Sneha Joshi for the appellants submitted that the prosecution has examined as many as 15 witnesses in order to prove involvement of the appellants in the commission of offence. The case of the prosecution hinges on the depositions adduced by two witnesses, namely, Mohammadbhai-PW-8 vide Exh. 31 and Aslam @ Babubhai-PW-9 vide exh. 34. ( 9 ) LEARNED Advocate Ms. Sneha Joshi for the appellants submitted that the prosecution has examined as many as 15 witnesses in order to prove involvement of the appellants in the commission of offence. The case of the prosecution hinges on the depositions adduced by two witnesses, namely, Mohammadbhai-PW-8 vide Exh. 31 and Aslam @ Babubhai-PW-9 vide exh. 34. On perusal of the depositions adduced by these two witnesses, it becomes clear that the appellants formed an unlawful assembly and they were having deadly weapons in their possession. After forming unlawful assembly, they had assaulted the deceased and also caused serious injuries to the other witnesses. Save and except the depositions adduced by these two witnesses, there is nothing on record to support the prosecution story indicating involvement of the appellants in the commission of offence. The learned Advocate submitted that even the depositions adduced by these two witnesses bristle with contradictions and, therefore, the same are required to be discarded. The learned Advocate submitted that the charge against the appellants has been framed vide Exh. 6 to the present case and, on perusal of the same, it becomes clear that after forming an unlawful assembly and with the common intention to cause fatal injuries to the deceased, the appellants attacked the deceased and cause serious injuries. However, on perusal of the depositions adduced by PW-8 - Mohammad faruk Yusufbhai vide Exh. 31 and PW-9 -Aslam @ Babu Yusufbhai vide Exh. 34, it becomes clear that use of weapon-axe, while attacking deceased Ibrahim mohammad Gangat, has not been mentioned. The learned Advocate submitted that the depositions adduced by these two witnesses cannot be said to be trustworthy and, therefore, the judgment and order passed by the learned Judge convicting the appellants, on the basis of the depositions adduced by two witnesses, deserves to be quashed and set aside and the appellants be acquitted forthwith for the offence punishable under Sections 147, 148, 149 and Section 302 of IPC. The learned advocate submitted that even the deposition adduced by Dr. Omkar chaudhary do not support the prosecution story about involvement of the appellants in the commission of offence. If the P. M. report, vide Exh. 44, is perused in proper perspective and the injuries sustained by the deceased, narrated in Column-17, are taken into consideration, then it becomes clear that no such injuries could be inflicted on the deceased. Omkar chaudhary do not support the prosecution story about involvement of the appellants in the commission of offence. If the P. M. report, vide Exh. 44, is perused in proper perspective and the injuries sustained by the deceased, narrated in Column-17, are taken into consideration, then it becomes clear that no such injuries could be inflicted on the deceased. The cause of death makes it clear that deceased-Ibrahim Mohammad gangat died due to traumatic, neurogenic and hypovolumic shock leading to cardio-respiratory failure due to multiple injuries on the face and head i. e. skull and brain. Thus, the oral depositions and the documentary evidence do not support the prosecution story indicating the involvement of the appellants in the commission of offence. In fact, the appellants were not armed with deadly weapons as alleged by the prosecution and framed in the charge at Exh. 6. Therefore, there is major lacuna in the prosecution case and, as there are many chinks in the armour of the prosecution case, benefit of the same is required to be given to the appellants and they be acquitted forthwith for the offence punishable under Sections 147. 148, 149 and Section 302 of IPC. Panch witnesses, who were examined by the prosecution, have turned hostile and not supported the prosecution case. On perusal of the depositions adduced by the other prosecution witnesses, the same do not appear to be trustworthy and, therefore, deserve to be discarded Thus, considering the overall evidence on record of the case, the prosecution has miserably failed to prove the involvement of the appellants in the commission of offence beyond all reasonable doubt and, therefore, the appellants deserve to be acquitted. ( 10 ) LEARNED A. P. P. Ms. Chetna Shah, representing the State, submitted that the prosecution has examined 15 witnesses in order to prove inextricable involvement of the appellants in the commission of offence punishable under Sections 147, 148, 149 and Section 302 of IPC. The defence side has examined three witnesses but nothing turns out from the depositions of the said witnesses. The prosecution has produced documentary evidence such as complaint given by complainant vide Exh. 12, panchnama of the seizure of clothes put on by the deceased vide Exh. 21, panchnama of the person of the accused vide Exhs. 23, 26 and 27, inquest panchnama vide Exh. 29, p. M. report vide Exh. The prosecution has produced documentary evidence such as complaint given by complainant vide Exh. 12, panchnama of the seizure of clothes put on by the deceased vide Exh. 21, panchnama of the person of the accused vide Exhs. 23, 26 and 27, inquest panchnama vide Exh. 29, p. M. report vide Exh. 44 and the report of f. S. L. vide Exh. 48 to the present case. The depositions adduced by the prosecution witnesses, namely, Yakub Ibrahim-PW-7 vide Exh. 30, Mohammad Faruk-PW-8 vide exh. 31 and Aslam @ Babu - PW-9 vide exh. 34, make it clear that the appellants were involved in the serious offence of murder. The appellants were armed with deadly weapons and having common intention to cause death of Ibrahim mohammad Gangat. After approaching the witnesses and the other persons near the field, they had a quarrel with the complainant and the other witnesses. The appellants assaulted deceased Ibrahim and other witnesses. The deposition adduced by these witnesses gets necessary corroboration from the deposition of dr. Omkar Sitaram-Medical officer vide exh. 42 and documentary evidence i. e. complaint vide Exh. 12, panchnama of the clothes put on by the deceased vide Exh. 21, inquest panchnama vide Exh. 29, P. M. report vide Exh. 44 and F. S. L. report vide exh. 48. In view of the overwhelming oral deposition and documentary evidence indicating involvement of the appellants in the commission of offence, the learned judge rightly convicted all the appellants for the offence punishable under Sections 147,148,149 and Section 302 of IPC and as there is no infirmity in the judgment rendered by the learned Judge, the same does not call for any interference in the appeals preferred by the appellants. Thus, the learned A. P. P. submitted that as the prosecution has, by adducing cogent and conclusive evidence, proved the inextricable involvement of the appellants in the commission of offence punishable under sections 147, 148, 149 and Section 302 of ipc, the appeals preferred by all the appellants deserve to be dismissed. ( 11 ) WE have re-appreciated the entire gamut of oral deposition and documentary evidence adduced by the prosecution in order to prove involvement of the appellants in the commission of offence. As per the prosecution case, incident in question took place on 02. 03. 2002 at about 4:30 in the afternoon in the sim of village old Diva. ( 11 ) WE have re-appreciated the entire gamut of oral deposition and documentary evidence adduced by the prosecution in order to prove involvement of the appellants in the commission of offence. As per the prosecution case, incident in question took place on 02. 03. 2002 at about 4:30 in the afternoon in the sim of village old Diva. The complainant, his son Ismaile Zuber and one witness Mohhamadbhai were riding on horse and they had an altercation with the appellants, who were plucking the pulses from his field. The appellants, alongwith other 8 to 10 persons, formed an unlawful assembly and assaulted deceased Ibrahim mohammad and other persons with stick and axe. The complaint was given by ahmedbhai Yusufbhai Danka to the ankleshwar Police Station on 02. 03. 2002. The prosecution has examined 15 witnesses in order to bring home the guilt against the appellants. The complainant, who gave the complaint, has been examined vide Exh. 11. He has deposed in his testimony that the incident took place on 02. 03. 2002 at about 4:30 p. m. in the evening. On the date of incident, Faruk Yusuf, Ismile Zuber and ibrahim Mohammad Gangat were proceeding on the horse with a view to take round in the field. The accused had quarreled with the complainant and the other witnesses on flimsy ground and assaulted them with stick and axe. The injured were immediately taken to the hospital for providing treatment. PW-2-Musabhai Kasambhai is examined at exh. 13. He is one of the panch witnesses, who was called for preparing the panchnama with regard to place of incident. He had identified the muddamal during the course of deposition. He prepared the panchnama with regard to seizure of clothes put on by the deceased on the next date and put signature below the panchnama. PW-3-Melabhai Vasava has been examined vide exh. 22. He has been examined by the prosecution as one of the panch witnesses but he has not supported the prosecution case about recovery of stick which was used in the commission of offence. Likewise, PW-4-Bharatbhai at Exh. 24 and pw-5-Gulam Mohammad at Exh. 25, who were called as panch witnesses to prepare the panchnama of the person of accused as well as PW-7-Yakub Ibrahim Sabat at exh. 30 and PW-11-Bharat Ranchhodbhai patel at Exh. 36 have turned hostile and not supported the prosecution case. Likewise, PW-4-Bharatbhai at Exh. 24 and pw-5-Gulam Mohammad at Exh. 25, who were called as panch witnesses to prepare the panchnama of the person of accused as well as PW-7-Yakub Ibrahim Sabat at exh. 30 and PW-11-Bharat Ranchhodbhai patel at Exh. 36 have turned hostile and not supported the prosecution case. The prosecution has examined PW-8-Mohammad Faruk vide Exh. 31 and eyewitness PW-9-Aslam @ Babu vide Exh. 34. Both the witnesses have deposed in their testimony that the incident took place on 02. 03. 2002. On the date of incident, the complainant and other witnesses i. e. Ismile zuber, Faruk Yusuf, Babu Yusuf and ibrahim Gangat were proceeding on the horse to take a round in their field and they wanted to pluck the pulses from their field. The appellants had an altercation with the complainant and other witnesses and assaulted Ibrahim Mohammad Ganat with stick. They were accompanied by 8 to 10 other persons. The appellants, thereafter, immediately left the place of incident. Both the witnesses do not mention about the axe used by the appellants in the commission of offence while assaulting the complainant and the other witnesses. The charge against the appellants is framed vide Exh. 6 wherein, it has been clearly mentioned that the appellants were armed with stick, axe and other deadly weapons and assaulted the complainant and other witnesses. Therefore, there is major contradiction in the charge at exh. 6 and the depositions adduced by mohammad Faruk vide Exh. 31 and Aslam @ Babu vide Exh. 34 to the present case. We have perused the deposition adduced by pw-14-Dr. Omkar Sitaram Chaudhary vide exh. 42. On perusal of the same, it becomes clear that doctor Omkar carried out autopsy on the dead body of Ibrahim Mohammad gangat on 03. 03. 2002 at about 7:15 in the morning and it was over by 9:00 O'clock. The doctor has deposed in his testimony about the external and internal injuries sustained by the deceased. The external injuries have been mentioned in Column no. 17, which are as under:- 1. Lacerated cut wound Ext. from medial end of the Lt. Eye upwards. Linear, oblique, dark red size 5cm. X 1cm. X bone deep 2. Lacerated cut wound on upper part of frontal region of head on Rt. Linear, oblique, dark red. Size: 3. 5cm. X 1. 5cm. X bone deep 3. 17, which are as under:- 1. Lacerated cut wound Ext. from medial end of the Lt. Eye upwards. Linear, oblique, dark red size 5cm. X 1cm. X bone deep 2. Lacerated cut wound on upper part of frontal region of head on Rt. Linear, oblique, dark red. Size: 3. 5cm. X 1. 5cm. X bone deep 3. Lacerated cut wound on later part of the Lt. Eyebrow. Linear, Horizontal, dark red. Size: 2. 5cm. X 1. 5cm. X bone deep 4. Lacerated cut wound on Lt. side of chin. Linear, Horizontal, dark red. Size: 2. 5cm. X 1. 5cm. X 0. 5cm. 5. Bluish black colour contusion extending from Lt. Sternoc joint of upward to the Lt. side of neck posteriorly upto Lt. side of scapula. linear, oblique. Size: 22 cm. X 5 cm. 6. Bluish black colour contusion on middle of chest on lower Linear, Horizontal size: 16 cm. X 2. 5 cm. The doctor has deposed in his testimony that the cause of death was due to multiple injuries on the face and head i. e. skull and brain. He has also deposed that injury nos. 1, 2, 3 and 4 could have been caused with axe and the fracture on the head could have been caused with the stick. P. M. note is produced alongwith the deposition adduced by the doctor and, on perusal of the same, it becomes clear that the deceased had sustained lacerated wound because of the injuries in the scuffle as per Column no. 17 of the P. M. report. This also raises doubt about the use of weapon axe in the commission of offence by the appellants. PW-15-Patel Rameshbhai Dalabhai has been examined vide Exh. 46. He has deposed in his testimony that the incident in question took place on 02. 03. 2002. On the strength of the complaint received by him, the investigation was carried out. Panchnama with regard to place of incident was prepared by him in the presence of panch witnesses. He had identified the inquest panchnama and the signature made therein by panch witnesses during the course of the deposition. Panchnama with regard to muddamal articles was prepared in his presence and the muddamal recovered was sent to F. S. L. for detailed analysis. He had identified the inquest panchnama and the signature made therein by panch witnesses during the course of the deposition. Panchnama with regard to muddamal articles was prepared in his presence and the muddamal recovered was sent to F. S. L. for detailed analysis. He has deposed in his cross-examination that it is true that it has been mentioned in the complaint that 7 to 8 persons were plucking the pulses from the field. 8 to 10 persons, who were involved in the commission of offence, were not identified and no identification parade was carried out. The F. S. L. report is produced vide Exh. 47 but nothing turns out from the p. M. report or the F. S. L. report so as to indicate the involvement of the appellants in the commission of offence punishable under Sections 147, 148, 149 read with section 302 of IPC. We have perused panchnama of the place of incident vide exh. 16, panchnama of the clothes put on by the deceased vide Exh. 21, panchnama of the person of accused vide Exhs. 23, 26 and 27, panchnama of arrest and detention of the accused vide Exh. 26 and the inquest panchnama vide Exh. 29, produced in the present case. ( 12 ) HOWEVER, considering the overall evidence on record of the case, use of weapon axe has not been stated by PW-1-Ahmadbhai Danka, who has been examined vide Exh. 11 as well as two eye witnesses, namely, Mohammad Faruk vide Exh. 31 and aslam @ Babu examined vide Exh. 34 to the present case. Even the complaint given by Ahmad Yusuf Danka is not consistent with his deposition at Exh. 11 to the present case. In the complaint, he has narrated the incident and stated that the appellants were armed with stick and axe but, in his deposition, he has not mentioned about use of axe by the appellants in the commission of offence. Likewise PW-8-Mohammad faruk Yusuf vide Exh. 31 and PW-9-Aslam @ Babu vide Exh. 34 have also not mentioned about the use of axe by the appellants in the commission of offence. Even, the doctor, who has prepared P. M. note and given deposition vide Exh. 44, has also not mentioned about the injuries caused by axe to the deceased. On perusal of the p. M. note, more particularly. Column no. 34 have also not mentioned about the use of axe by the appellants in the commission of offence. Even, the doctor, who has prepared P. M. note and given deposition vide Exh. 44, has also not mentioned about the injuries caused by axe to the deceased. On perusal of the p. M. note, more particularly. Column no. 17, it becomes clear that the deceased had sustained lacerated wound. That would also raise doubt about use of axe in the offence committed by the appellants. ( 13 ) IN view of the aforesaid evidence of the case, since the prosecution has not established by adducing cogent and conclusive evidence about use of weapon by the appellants in the commission of offence, it would be hazardous to convict the appellants for the offence punishable under Sections 147, 148, 149 read with section 302 of IPC. The evidence adduced by the prosecution bristles with contradictions and when the oral deposition and documentary evidence are not in consonance with each other then, in such circumstances, it is incumbent upon the court to give benefit of doubt to the appellants and, therefore, the appellants, in our considered view, are required to be acquitted forthwith for the offence punishable under Sections 147, 148, 149 read with Section 302 of IPC. ( 14 ) FOR the foregoing reasons, the appeals being Criminal Appeal No. 1170 of 2003 preferred by Rajeshbhai Shanabhai vasava, Criminal Appeal No. 964 of 2003 preferred by Naginbhai Kaliyabhai Vasava, criminal Appeal No. 962 of 2003 preferred by Kaliyabhai Bahadur Vasava and criminal Appeal No. 963 of 2003 preferred by Kaliyabhai Bhailalbhai Vasava are allowed, judgment and order dated 25. 07. 2003 passed by the learned Joint district Judge and Additional Sessions judge, F. T. C. No. 1, Bharuch in Sessions case No. 85 of 2002 is quashed and set aside and appellants i. e. Rajeshbhai shanabhai Vasava, Naginbhai Kaliyabhai vasava and Kaliyabhai Bahadur Vasava are ordered to be set at liberty forthwith, if not required in any other proceedings. As kaliyabhai Bhailalbhai Vasava, appellant of criminal Appeal No. 963 of 2003 is already on bail by virtue of the order dated 30. 01. 2009 passed by this Court in Criminal misc. Application No. 781 of 2009, his bail bond shall stand cancelled. As kaliyabhai Bhailalbhai Vasava, appellant of criminal Appeal No. 963 of 2003 is already on bail by virtue of the order dated 30. 01. 2009 passed by this Court in Criminal misc. Application No. 781 of 2009, his bail bond shall stand cancelled. Muddamal to be disposed of in terms of the directions given by the learned Judge in the judgment impugned in the present appeal. Conviction reversed.