Judgment J.C. Upadhyaya, J.—Seven accused persons came to be tried by the Learned Addl. Sessions Judge, City Civil & Sessions Court No. 3, Ahmedabad City, in Sessions Case No. 161/2001 and at the end of the trial, the appellant original accused No. 1 - Sabir @ Sabir Madam Shaukatali Reshamwala in Criminal Appeal No. 443/2004, the appellant original accused No. 2 - Javedhussain Haji Ahmed Ramjan Shaikh in Criminal Appeal No. 1917/2005, the appellant original accused No. 3 Mohmed Ramjan @ Gabbar Abdul Rehman Reshamwala in Criminal Appeal No. 1217/2005 and the appellant original accused No. 4 - Abdul Rasid @ Chunha Abdul Rahim Reshamwala in Criminal Appeal No. 1792/2008, came to be convicted by the judgment and order dated 30/12/2003 for the commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code [IPC] and each of the four appellants accused persons came to be sentenced to undergo rigorous imprisonment [RI] for life and fine of Rs. 250/-, in default of payment of fine, RI for 15 days for the offence punishable under Section 302 read with Section 34 of the IPC. The remaining three co-accused, namely, co-accused No. 5 - Hajratkhan Joravarkhan, co-accused No. 6 - Abdulgani Abdul Raheman and co-accused No. 7 - Jakirhussain Shaukatiali Reshamwala came to be acquitted of all the ofences charged against them by the trial Court. The State did not challenge their acquittal by preferring any appeal under Section 378 of the Code of Criminal Procedure [CrPC] before this Court. 2. The prosecution case, in nutshell, is that on 17/9/2000 there was election of Ahmedabad Municipal Corporation in the City of Ahmedabad. During the course of election process, so far as election in Jamalpur ward is concerned, the 4 appellants accused attempted to cast bogus votes, to which deceased Salim Haji Shafi objected and thereupon, some altercation took place. As police arrived, all the 4 appellants made their escape good. However, police apprehended one person and thereupon, at about 5.00 pm to 5.45 pm in the evening the first informant P.W. 1 Liyaqatali Allaudin and the deceased Salim decided to go and meet one Devdiwala to see that the person who was apprehended by the police can be released, they both proceeded on a scooter driven by the first informant Liyaqatali and deceased Salim was the pillion rider. When they passed Munda gate and the area called Gajipir and reached in a street called Momnavad, Navi Masjid, at thet time the 4 appellants convicted accused came behind in a rickshaw and they alighted from the rickshaw and the scooter was intercepted. The appellant original accused No. 2 - Javedhussain put a sword on the shoulder of first informant Liyaqatali and the remaining 3 appellants accused, namely accused No. 1 - Sabir, accused No. 3 - Mohmed Ramjan and accused No. 4 - Abdul Rasid armed with dagger and knives respectively started inflicting blows with their respective weapons on the body of deceased Salim. After sustaining some injuries, deceased Salim ran towards one house situated on the street, but all the 3 accused, namely accused Nos. 1, 3 and 4 chased him with their weapons and started inflicting blows with dagger and knives on the body of deceased Salim. Salim fell on the ground. It is further the case of the prosecution that at the time when the incident occurred P.W. 2 - Jakirhussain was following the scooter driven by the first informant Liyaqatali wherein deceased Salim was the pillion rider and P.W. 2 Jakirhussain witnessed the incident along with first informant Liyaqatali. First informant Liyaqatali getting afraid of the incident, ran away from the place of the incident and subsequently he came to know that deceased Salim was removed to V.S. Hospital, Ahmedabad and there he succumbed to the injuries and, therefore, First informant Liyaqatali went to V.S. Hospital, Ahmedabad and there he reported the incident to police and his FIR was registered. During the course of investigation, statements of material witnesses were recorded. Weapons came to be seized. Necessary panchnamas were drawn in presence of panchas. After collecting the required material for the purpose of lodgement of charge-sheet, charge-sheet came to be filed in the Court of learned Metropolitan Magistrate, Ahmedabad. Since the offence was exclusively Triable by the Court of Sessions, learned Magistrate committed the case to the City Civil & Sessions Court, Ahmedabad City, which is numbered as Sessions Case No. 161 of 2001. 3. Learned trial Judge framed charge against all the 7 accused persons including 4 appellants, for the offences punishable under Sections 147, 148, 302 read with Section 149 of the IPC and Section 135 of the Bombay Police Act, to which they did not plead guilty and claimed to be tried. 3. Learned trial Judge framed charge against all the 7 accused persons including 4 appellants, for the offences punishable under Sections 147, 148, 302 read with Section 149 of the IPC and Section 135 of the Bombay Police Act, to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. After the prosecution concluded its oral evidence, learned trial Judge recorded further statements of the appellants under Section 313 of the Cr. P.C and they denied generally all the allegations levelled against them by the prosecution and stated that they were falsely implicated in this case. After evaluating the evidence adduced by the prosecution and considering the submissions made on behalf of both the sides, as stated above, the trial Court recorded acquittal of original accused Nos. 5, 6 and 7, but recorded conviction of the appellants who are original accused Nos. 1, 2, 3 and 4 for the offence punishable under Section 302 read with Section 34 of the IPC and awarded the sentence as hereinbefore referred to in this judgment. 4. Learned Advocate Mr. Mangukia for the appellants in Criminal Appeal Nos. 443/2004 and 1792/2008 [original accused Nos. 1 and 4] and learned Advocate Mr. Shaikh for the appellant in Criminal Appeal No. 1917/2005 [original accused No. 2] and learned Advocate Mr. Agrawal for appellant in Criminal Appeal No. 1217/2005 [original accused No. 3], who is absconding, submitted that the trial Court erred in recording the conviction of aforesaid 4 accused persons. Ld. Advocate Mr. Agrawal for the absconding appellant original accused No. 3 - Mohmed Ramjan submitted that the absconding appellant accused is represented by him and he is prepared to argue out the matter and submitted that the evidence recorded by the trial Court qua the absconding appellant is inseparable from the evidence adduced by the prosecution against the remaining 3 appellants. Ld. Advocate Mr. Mangukia for the appellant original accused No. 1 in Criminal Appeal No. 443/2004 also submitted that the accused No. 1 is absconding, but he is represented by him and even the evidece qua the absconding accused is such which cannot be separated from the evidence adduced against the other appellants convicted accused. It is submitted on behalf of the appellants that the entire prosecution case rests upon the evidence of two witnesses, namely P.W. 1 Liyaqatali and P.W. 2 Jakir. It is submitted on behalf of the appellants that the entire prosecution case rests upon the evidence of two witnesses, namely P.W. 1 Liyaqatali and P.W. 2 Jakir. Their evidence is inconsistent and contradictory. The trial Court erred in recording the conviction of the 4 appellants relying upon their evidence. Considering the evidence of P.W. 1 Liyaqatali, his unnatural and improbable conduct is clearly revealed. There is no cogent and clear evidence about the place where the incident occurred. Even the scene of offence panchnama is not admitted in evidence by exhibiting the same. The evidence regarding the identification of the appellants is shaky and untrustworthy. No Test Identification Parade [TI Parade] was arranged in presence of P.W. 1 and P.W. 2. The evidence of P.W. 1 Liyaqatali contradicts his FIR Exhibit 62 on material particulars. Whether the FIR was recorded by the police at V.S. Hospital or at Police Station is in doubt. As per the prosecution case, alleged incident took place between 5.00 and 5.45 pm., but the FIR was recorded at 9.15 pm and was registered at 9.30 pm. It is further submitted that prior to the recording of the FIR at 8.30 pm, the inquest panchnama of the dead body of deceased Salim was drawn. Thus, the inquest panchnama was drawn before the recording of the FIR. No names of any of the assailants emerge in the inquest panchnama. 4.1. It is further submitted that P.W. 2 Jakirhussain is mere chance witness. His presence at the time of incident is not duly proved. Neither P.W. 1 Liyaqatali nor P.W. 2 Jakir intervened at the time when the deceased was sustaining injuries. They did not take any step to remove the deceased to the hospital, but both the witnesses ran away. Their evidence does not get corroboration through the medical evidence on record. While causing injuries to the deceased, whether 3 weapons, namely dagger and two knives were used or one weapon was used, is not made clear. P.W. 10 Dr. Jariwala does not depose about the size of injuries. Thus, he was not in a position to give opinion about the nature of weapons used. There is no evidence on record as to who brought deceased Salim to the hospital. The prosecution failed to prove the motive behind the incident. 4.2. P.W. 10 Dr. Jariwala does not depose about the size of injuries. Thus, he was not in a position to give opinion about the nature of weapons used. There is no evidence on record as to who brought deceased Salim to the hospital. The prosecution failed to prove the motive behind the incident. 4.2. So far as the appellant accused No. 2 - Javedhussain in Criminal Appeal No. 1917/2005 is concerned, on his behalf it is submitted that even considering the evidence of P.W. 1 Liyaqatali and P.W. 2 Jakir admittedly stated that the accused No. 2 - Javed did not inflict any blow with any weapon on the body of deceased Salim. The only role attributed to accused No. 2 - Javed is that he placed sword on the shoulder of First informant Liyaqatali. Considering the evidence of First informant Liyaqatali, not only the identity of accused No. 2 Javed has become doubtful, but the incident of placing sword on his shoulder cannot be said to have been duly proved. The trial Court did not accept the case of the prosecution that there was a formation of unlawful assembly having common object of killing the deceased, no overt act is attributed to accused No. 2 - Javed in the incident. 4.3. Ultimately, it is submitted that the four appeals may be allowed. 5. Per contra, Learned APP Mr. Shah for the State vehemently opposed these appeals and submitted that the trial Court rightly recorded conviction of the appellants for the offence of murder of Salim punishable under Section 302 read with Section 34 of the IPC. It is submitted that the evidence of P.W. 1 Liyaqatali and P.W. 2 Jakir is cogent, convincing, trustworthy and reliable. They have witnessed the incident and their evidence is consistent and supported by medical evidence on record. Considering the PM report, 12 external injuries of the nature of stab wounds and incised wounds came to be sustained by the deceased. Medical opinion clearly reveals that the injuries were possible by dagger and knives. There is no delay in lodgment of FIR. Considering the PM report, 12 external injuries of the nature of stab wounds and incised wounds came to be sustained by the deceased. Medical opinion clearly reveals that the injuries were possible by dagger and knives. There is no delay in lodgment of FIR. Considering the evidence of First informant P.W. 1 - Liyaqatali and P.W. 11 PSI Chavda, who recorded the FIR, it is duly established that the FIR was recorded at V.S. Hospital and the names of all the 4 appellants are referred in the FIR and, therefore, there was no reason whatsoever for holding T I Parade. Both the witnesses knew the appellants even prior to the date of incident. 5.1. It is submitted that so far as the role attributed to appellant accused No. 2 - Javed is concerned, he admittedly did not cause any injury with his weapon sword to the deceased, but he placed sword on the shoulder of P.W. 1 Liyaqatali and, therefore, Liyaqatali was not in a position to escape or even to shout for help. All the 4 appellants came together armed with deadly weapons. Thus, the trial Court rightly recorded his conviction for the offence of murder punishable under Section 302 with the aid of Section 34 of the IPC. 5.2. Ultimately, it is submitted that all the four appeals may be dismissed. 6. We have examined the record and proceedings in the context of the submissions made by rival sides. 7. Considering the evidence on record and the submissions made on behalf of both the sides, it clearly transpires that the entire prosecution case rests upon the evidence of two witnesses, namely First informant P.W. 1 - Liyaqatali and P.W. 2 Jakirhussain. Considering the evidence of P.W. 1 Liyaqatali about the incident, he stated that while he was driving the scooter and the deceased Salim was pillion rider and when they reached from Gajipir to the road proceeding towards Momnavad, Navi Masjid, at that time the 4 appellants accused alighted from a rickshaw and the accused No. 1 Sabir, accused No. 3 - Mohmed and accused No. 4 Abdul Rasid dragged the deceased from the scooter and accused No. 2 Javedhussain placed a sword on his shoulder. According to him, accused No. 1 Sabir armed with dagger, accused No. 3 - Mohmed armed with knife and accused No. 4 Abdul Rasid armed with knife, inflicted blows with their weapons on chest, abdomen, neck and other parts of the body of the deceased. After sustaining some injuries, deceased Salim tried to escape, but when he reached near Ota of one house, again he was assaulted by the accused and inflicted blows and the deceased fell on the ground. He immediately left the place of incident on his scooter and came to Munda gate where father of the deceased met him and he informed him about the incident and told the father of the deceased to immediately go to the place of incident. After about half an hour, he reached to V.S. Hospital, Ahmedabad and came to know that Salim succumbed to the injuries and he reported the incident to police in V S Hospital. His FIR is Exhibit 62. 7.1. So far as role attributed to accused No. 2 - Javed is concerned, according to the evidence of P.W. 1 Liyaqatali and considering the FIR exh.62, the role attributed to accused No. 2 - Javed is that he placed a sword on the shoulder of P.W. 1 Liyaqatali and remaining 3 appellants inflicted blows on the body of the deceased. However, P.W. 1 Liyaqatali in his evidence states that when deceased reached near Ota of one house, all the 4 accused persons inflicted blows on the body of the deceased. However, in his cross-examination, he stated that he does not remember as to whether in his FIR he has stated that all the 4 accused inflicted blows on the body of the deceased. Considering the FIR Exhibit 62, nothing emerges that accused No. 2 Javed inflicted any blow with sword on the body of the deceased. In this connection, considering the evidence of P.W. 11 PSI Chavda, he stated that he recorded the FIR of Liyaqatali at V.S. Hospital, Ahmedabad. He admitted in his cross-examination that the first informant P.W. 1 Liyaqatali did not mention in his FIR that all the 4 accused persons inflicted blows on the body of the deceased. The prosecution examined P.W. 10 Dr. Jariwala, who performed post mortem on the body of the deceased and the P M Report is produced at Exhibit 56. Considering the evidence of Dr. The prosecution examined P.W. 10 Dr. Jariwala, who performed post mortem on the body of the deceased and the P M Report is produced at Exhibit 56. Considering the evidence of Dr. Jariwala, he categorically stated that the deceased sustained 12 external injuries, but none of the injuries was possible by Muddamal article No. 15 - sword which was allegedly armed with by accused No. 2 - Javed. Further statement of the first informant Liyaqatali was recorded by PI Jadeja P.W. 12 and considering the evidence of P.W. 12, he admitted that even in the further statement of the first informant Liyaqatali, he has not stated that all the 4 accused inflicted blows on the body of the deceased. 7.2. Considering the FSL Report Exhibit 80 regarding the corresponding cut marks found on the shirt of the deceased, the FSL opined that the corresponding cut marks were possible by Article No. 13 Gupti, Article No. 19 knife and article No. 23 knife. The FSL report Exhibit 80 regarding corresponding cut marks does not suggest that all or any of the cut marks were possible by sword. 7.3. Considering the evidence of P.W. 1 Liyaqatali, he admitted that he did not sustain any injury on his shoulder by the sword. He further admitted in his cross-examination that the assailant who placed sword on his shoulder was unknown to him. He further admitted that he does not know as to whether the assailant who placed sword on his shoulder, was placed from his front side or from his back side and whether at that time the sword was inside its case or without any case. He further deposed that he cannot say as to whether the sword was placed on his left shoulder or on his right shoulder. P.W. 2 Jakirhussain in his evidence about the placing of sword on the shoulder of P.W. 1 Liyaqatali, deposed that accused No. 2 - Javed placed sword on the shoulder of Liyaqatali. He also does not say as to whether the sword was placed on the shoulder of Liyaqatali from the front side or back side and whether thereby Liyaqatali sustained any injury or not. He also does not say as to whether the sword was placed on the shoulder of Liyaqatali from the front side or back side and whether thereby Liyaqatali sustained any injury or not. Thus, apart from the question of identification of accused No. 2 Javed and even if it is accepted that his identification is established by the evidence of P.W. 1 Liyaqatali, his deposition as a whole is not cogent and convincing so far as the role attributed to accused No. 2 Javed regarding placement of sword on the shoulder of Liyaqatali is concerned. Admittedly, accused No. 2 Javed did not play any role in inflicting any injury to the deceased with his sword. His role was to place sword on the shoulder of P.W. 1 Liyaqatali. According to the evidence of P.W. 1 Liyaqatali, after seeing the incident he was frightened and thereafter left the place of incident along with his scooter. He does not explain as to how he could manage to escape if accused No. 2 Javed had placed sword on his shoulder. Admittedly, P.W. 1 Liyaqatali did not sustain any injury in the incident. When such is the situation, we are of the considered opinion that the trial Court erred in recording the conviction of accused No. 2 Javed for the offence of murder of deceased Salim. 8. However, so far as the prosecution case as it stands against the accused Nos. 1, 3 and 4 is concerned, considering the evidence of both the above referred eye-witnesses, they inflicted indiscriminate blows with their weapons dagger and knives respectively on the body of the deceased Salim. Their evidence is corroborated by the evidence of P.W. 10 Dr. Jariwala and the P M Report Exhibit 56. It is true that according to Dr. Jariwala, the injuries were possible by dagger and by one of the knives. However, the exclusion of one knife out of the two knives as opined by Dr. Jariwala would not cause any adverse effect upon the ocular evidence of the two witnesses. Considering the evidence of P.W. 10 Dr. Jariwala, nothing is explained clearly as to how the injuries were possible out of the two knives by one knife only. It is true that in his cross-examination, he admitted that to determine the nature of weapons, size of injury plays predominant role and he has not stated the size. 8.1. Considering the evidence of P.W. 10 Dr. Jariwala, nothing is explained clearly as to how the injuries were possible out of the two knives by one knife only. It is true that in his cross-examination, he admitted that to determine the nature of weapons, size of injury plays predominant role and he has not stated the size. 8.1. Considering the FSL evidence pertaining to the weapons - dagger and two knives, the blood of the deceased, namely group “AB” came to be found on dagger and the two knives. As stated earlier, as per the FSL evidence, the corresponding cut marks found on the shirt of the deceased were possible by dagger and two knives. 8.2. However, the evidence of P.W. 1 Liyaqatali is assailed by the appellants as to the place where the FIR Exhibit 62 came to be recorded. It is true that as per the evidence of P.W. 1 Liyaqatali, his FIR was recorded at V.S. Hospital, Ahmedabad. However, in his cross-examination he admits that at V.S. Hospital, he did not inform to the police about the incident. In this connection, considering the evidence of P.W. 11 PSI Chavda, he categorically states that the FIR was recorded at V.S. Hospital, Ahmedabad. It is further pertinent to note that P.W. 12 PI Jadeja recorded further statement of the first informant Liyaqatali. Considering the evidence of P.W. 1 Liyaqatali and P.W. 11 Chavda and P.W. 12 Jadeja, the cumulative effect of their evidence reveals that the FIR was recorded at V.S. Hospital, Ahmedabad and the further statement of the first informant Liyaqatali was recorded at police station. Considering the FIR Exhibit 62, it is clearly referred as place of recording the FIR “V S Hospital”. On behalf of the appellants, it is further stated that there is no cogent evidence on record to come to the conclusion that P.W. 1 Liyaqatali was owner of any scooter or not, and that the scooter on which the deceased and he himself were proceeding was of his own ownership or not and that there is no evidence to come to the conclusion that P.W. 1 Liyaqatali was holding driving licence to drive the scooter. However, we are of the considered opinion that all these aspects cannot be said to be material one going to the root of the prosecution case. However, we are of the considered opinion that all these aspects cannot be said to be material one going to the root of the prosecution case. Similarly, on behalf of the appellants, it is submitted that as per the evidence of P.W. 1 Liyaqatali, because of speed breaker bump on the road, he reduced the speed of his scooter and, therefore, the scooter was intercepted by the accused. Whereas nothing emerges on record that at the place where the incident occurred, there was any bump. Again we are of the considered opinion that the existence or non-existence of bump at the place of the incident cannot be said to be material aspect going to the root of the prosecution case. The evidence of both the eye-witnesses so far as the accused Nos. 1, 3 and 4 are concerned, is cogent, convincing, reliable and trustworthy. Both the eye-witnesses categorically and unanimously stated about the role played by these 3 accused persons while causing injuries to the deceased with their respective weapons. Their evidence is corroborated on material particulars with the medical and FSL evidence on record. The fact that the inquest panchnama was drawn about 45 minutes earlier to the recording of the FIR and non-mention of name of the assailants in the inquest panchnama would not cause any adverse effect upon the case of the prosecution once the ocular evidence adduced by both the eye-witnesses is found to be cogent, convincing, reliable and trustworthy. Nothing emerges from the evidence of both the eye-witnesses that they had any animosity with accused Nos. 1, 3 and 4. The submission is made on behalf of the appellants that the alleged offence occurred during broad day light in a street, yet the prosecution did not examine any independent witness. However, as emerged from the evidence of P.W. 1 Liyaqatali and P.W. 2 Jakir, on 17/9/2000 when the incident occurred, a holiday was declared on account of election of Ahmedabad Municipal Corporation and all the shops situated in the street were closed. It is true that both the panchas to the panchnama of scene of incident turned hostile, but considering the evidence of P.W. 12 PI Jadeja, he categorically stated that he visited the site and called two panchas and prepared the panchnama of scene of occurrence, which was signed by both the panchas in his presence and he himself signed the panchnama. The panchnama is at mark 20/3. We do not find any cogent and convincing reason as to why, despite such clear evidence of P.W. 12 Jadeja, the trial Court did not admit the panchnama in evidence by exhibiting the same. However, the place of incident is clearly deposed by both the eye-witnesses. 9. Thus, in light of the entire above discussion, we are of the considered opinion that the trial Court did not err in recording the conviction of appellant accused No. 1 - Sabir @ Sabir Madam, appellant accused No. 3 - Mohmed Ramjan and appellant accused No. 4 - Abdul Rasid @ Chunha for the offence punishable under Section 302 read with Section 34 of the IPC. However, the prosecution failed to prove its case beyond any reasonable doubt against appellant accused No. 2 - Javed. Therefore, Criminal Appeal No. 1917/2005 preferred by appellant original accused No. 2 - Javed deserves to be allowed, whereas the remaining three appeals deserve to be dismissed. 10. For the foregoing reasons, Criminal Appeal No. 1917 of 2005 preferred by appellant original accused No. 2 - Javedhussain is allowed and his conviction recorded by the Ld. Addl. Sessions Judge, Court No. 3, Ahmedabad City on 30/12/2003 in Sessions Case No. 161/2001 convicting and sentencing him for the offence punishable under Section 302 read with Section 34 of the IPC is set aside. The appellant original accused No. 2 - Javedhussain is acquitted of all the offences charged against him. Fine, if paid, be refunded to him. Criminal Appeal No. 443/2004, Criminal Appeal No. 1217/2005 and Criminal Appeal No. 1792/2008 stand dismissed. P P P P P