JUDGMENT R. M. CHHAYA, J. The present appeals arise out of the judgment and order dated 17-3-2005 passed by the learned Additional Sessions Judge, Banaskantha at Deesa in Sessions Case No. 42 of 2004 whereby the appellants were convicted for the offence punishable under Sec. 302 read with Secs. 147, 148 and 149 of Indian Penal Code and thus sentenced as under : (1) For the offence punishable under Sec. 147 of I.P.C., the appellants were sentenced to undergo S.I. for three months and fine of Rs. 300/-, in default, to undergo further S.I. for one month. (2) For the offence punishable under Sec. 148 of I.P.C., the appellants were sentenced to undergo S.I. for four months and fine of Rs. 400/-, in default, to undergo further S.I. for one month. (3) For the offence punishable under Sec. 302 read with Sec. 149 of I.P.C., the appellants were sentenced to undergo life imprisonment and fine of Rs. 500/-, in default, to undergo further S.I. for three months. The learned Sessions Judge has also given benefit of set, off. The sentences have been ordered to run concurrently. 2. These four appeals are filed by six original accused. Criminal Appeal No. 597 of 2005 is filed by original accused No. 3-Padji Pratapji Thakore and original accused No. 5-Pratapji Mashruji Thakore. Criminal Appeal No. 792 of 2005 is filed by original accused No. 1-Jentiji Mevaji Thakore. Criminal Appeal No. 2012 of 2005 is filed by original accused No. 6-Bakaji @ Sovanji Chhaganji Thakore and Criminal Appeal No. 1112 of 2005 is filed by original accused No. 2-Natvarji Hariji Thakore and original accused No. 4-Narsinhji Hariji Thakore. For the sake of convenience, the appellants in these appeals are referred to by their original accused number in this judgment. 3. All these appeals are filed against the same judgment, hence they are disposed of by this common judgment. 4. It is the case of the prosecution that original accused Nos. 1 to 5 and deceased Sardulji Mohanji Thakore were ordinary residents of village Balodhar, Taluka Deesa and original accused No.6 was resident of village Bhildi, Taluka Deesa. It is the case of the prosecution that on 1-2-2004, deceased Sardulji Mohanji Thakore was found sitting with original accused Nos. 4. It is the case of the prosecution that original accused Nos. 1 to 5 and deceased Sardulji Mohanji Thakore were ordinary residents of village Balodhar, Taluka Deesa and original accused No.6 was resident of village Bhildi, Taluka Deesa. It is the case of the prosecution that on 1-2-2004, deceased Sardulji Mohanji Thakore was found sitting with original accused Nos. 1, 2 and 3 near Harkai Mata Mandir at 6-00 p.m. It is the case of the prosecution that on the same day at about 7-15 p.m. all original accused constituted an unlawful assembly with an intention to commit murder of deceased Sardulji Mohanji Thakore. It is the case of the prosecution that original accused No. 1 was armed with knife, original accused No.2 was also armed with knife, original accused No.3 was armed with stick, original accused No. 4 was armed with a wooden log. It is further the case of the prosecution that original accused No. 5 instigated other accused and original accused No.6 caught hold of deceased Sardulji to facilitate original accused Nos. 1, 2, 3 and 4 to assault deceased Sardulji. It is further the case of the prosecution that original accused No. 1 inflicted blow, with a knife on the left side of the chest of the deceased, original accused No. 2 gave a blow on the head of the deceased with a knife and original accused No. 3 gave a blow with the stick on the forehead of the deceased. It is further the case of the prosecution that original accused No.4 gave a blow with the wooden log on the back of the deceased. It is further the case of the prosecution that original accused No. 5 instigated all other accused to assault upon the deceased and it is further the case of the prosecution that original accused No.6 caught hold of deceased Sardulji and facilitated other accused with knowledge and intention that the injuries so inflicted upon the deceased would, in ordinary course, result into death of deceased Sardulji. It is further the case of the prosecution that, thus, all original accused constituted an unlawful assembly with an intention to commit murder of deceased Sardulji. 4.1. It is further the case of the prosecution that, thus, all original accused constituted an unlawful assembly with an intention to commit murder of deceased Sardulji. 4.1. It is further the case of the prosecution that when the incident occurred P.W. 2-Rameshji Joraji Thakore, and P.W. 8-Dilipji Mavaji Thakore witnessed the said incident as they had gone near the scene of occurrence to answer nature's call. It is further the case of the prosecution that P.W. 2-Rameshji Joraji Thakore and P.W. 8-Dilipji Mavaji Thakore as well as original accused No.6 went to the house of P.W. 1-Madarji Pratapji Thakore and informed about the incident. It is also the case of the prosecution that original accused No.6 ran away from the house of P.W. 1 immediately. It is further the case of the prosecution that P. W. 1, P. W. 2 and P. W. 8 went to the scene of occurrence and found deceased Sardulji lying injured and bleeding. It is further the case of the prosecution that as P.W. 2-Rameshji Joraji Thakore and P.W. 8-Dilipji Mavaji Thakore raised shouts, original accused ran way from the scene of occurrence. First Information Report came to be lodged with Bhildi Police Station for offence under Sec. 302 read with Secs. 147, 148 and 149 of I.P.C. The Investigating Agency investigated the offence, recorded statements of the witnesses and filed a charge-sheet before the learned J.M.F.C., Deesa for the offence punishable under Sec. 302 read with Secs. 147, 148 and 149 of I.P.C. As the offences were exclusively triable by a Court of Sessions, the learned J.M.F.C. committed the case to the Sessions Court and the same came to be registered as Sessions Case No. 42 of 2004. 5. Charge was framed at Exh. 6. The same was read over and explained to the appellant-accused to which they pleaded not guilty and claimed to be tried. 6. The trial Court proceeded with the trial. After considering evidence led by the prosecution came to the conclusion that the prosecution has successfully established the charges levelled against the appellant-accused and believed the case of the prosecution. The trial Court recorded conviction of the appellant-accused as aforesaid. Being aggrieved by the same, the present appeals are filed. 7. Heard Mr. Manubhai Barot, Mr. Padhya and Mr. Devang Joshi for the respective appellant-accused and Mr. K. L. Pandya, learned A.P.P. for State in all the appeals. 8. Mr. The trial Court recorded conviction of the appellant-accused as aforesaid. Being aggrieved by the same, the present appeals are filed. 7. Heard Mr. Manubhai Barot, Mr. Padhya and Mr. Devang Joshi for the respective appellant-accused and Mr. K. L. Pandya, learned A.P.P. for State in all the appeals. 8. Mr. Manubhai Barot appearing for original accused Nos. 2, 4 and 6 has taken us through the oral testimony of P.W. 1-Madarji Pratapji Thakore (Exh. 14), First Information Report (Exh. 15), oral testimony of P.W. 7-Talaji Jehaji Thakore (Exh. 32) as well as oral testimony of P.W. 8-Dilipji Mavaji Thajkore (Exh. 53). Mr. Barot submitted that both the eye-witnesses are got up. Mr. Barot further argued that the behaviour of these two eyewitnesses is unnatural and conduct of these two eye-witnesses creates doubt about the veracity of their testimonies. Mr. Barot further submitted that the eye-witnesses are relatives of the deceased, and are therefore, interested witnesses. Mr. Barot further argued that even though independent eyewitnesses were available to the prosecution, the prosecution has not examined any such independent witness. Mr. Barot, therefore, submitted that on close scrutiny of oral testimonies of the two eye-witnesses, the same cannot be taken at its face value. Mr. Barot submitted that oral testimonies of both these eye-witnesses are unrealistic, untrustworthy, and therefore, cannot be made basis of conviction. 8.1. Mr. Barot further argued that there is lacuna in the investigation inasmuch as the blood group of the accused is not taken. Mr. Barot further submitted that the manner in which the incident has happened and the injuries upon the deceased raise doubt about involvement of the accused in the present crime. Mr. Barot further submitted that the accused have been wrongly roped in the present offence. Mr. Barot further submitted that there is no evidence on record that all the accused had assembled together and there is no evidence to come to a conclusion that an unlawful assembly was constituted. Mr. Barot further submitted that even on examining the medical evidence, at the most, original accused No. 1 can be held responsible for the death of deceased Sardulji. Mr. Barot further submitted that even if the evidence is taken at its face value, original accused No. 1 is found to have inflicted fatal injury. 8.2. Mr. Barot further submitted that original accused No.2 has been wrongly involved as there is no injury on the head. Mr. Barot further submitted that even if the evidence is taken at its face value, original accused No. 1 is found to have inflicted fatal injury. 8.2. Mr. Barot further submitted that original accused No.2 has been wrongly involved as there is no injury on the head. Mr. Barot further submitted that similarly original accused Nos. 4 and 6 have also been wrongly implicated in the present offence and it creates doubt on the role played by accused Nos. 4 and 6. Mr. Barot further submitted that there is contradiction between the ocular evidence and the medical evidence and the prosecution has not been able to prove the charges levelled against the appellants beyond reasonable doubt. Mr. Barot submitted that the learned Sessions Judge has thus erred in convicting the appellants. Mr. Barot, therefore, submitted that the judgment and order of conviction and sentence impugned in the present appeals deserves to be set aside and the appeals deserve to be accepted. 9. Mr. Devang Joshi appearing on behalf of original accused No. 1 in Criminal Appeal No. 792 of 2005 submitted that the so-called eye-witnesses are chance witnesses. Mr. Joshi further submitted that unnatural conduct of the eye-witnesses is writ large on the face of their version and their oral testimonies does not inspire any confidence. Mr. Joshi further submitted that there is no evidence on record to show that who caused the provocation. Mr. Joshi, as an alternative argument submitted that the present case would fall within Exception-I to Sec. 300 of I.P.C. and submitted that, original accused No. 1 has been wrongly convicted under Sec. 302 I.P.C. He, therefore, submitted that accused No. 1 ought to have been given benefit of doubt. Mr. Joshi further submitted that, as stated aforesaid, the whole incident, even on the basis of the evidence on record, triggered suddenly and there was no intention on the part of original accused No.1 to commit murder of the deceased. Mr. Joshi further submitted that the appeal, therefore, deserves to be allowed by altering the conviction and sentence from Sec. 302 for murder to that of culpable homicide not amounting to murder under Sec. 304 Part-I I.P.C. Mr. Joshi also adopted the other arguments raised by Mr. Barot. 10. Mr. Padhya appearing for original accused Nos. 3 and 5 in Criminal Appeal No. 597 of 2005 also adopted the arguments made by Mr. Barot. Mr. Joshi also adopted the other arguments raised by Mr. Barot. 10. Mr. Padhya appearing for original accused Nos. 3 and 5 in Criminal Appeal No. 597 of 2005 also adopted the arguments made by Mr. Barot. Mr. Padhya further submitted that the prosecution has not been able to prove the motive, which is an important facet. Mr. Padhya, therefore, submitted that the learned Sessions Judge has erred in convicting the appellants in absence of such an important aspect. Mr. Padhya further submitted that there is no iota of evidence to show that all the accused together had a common intention to commit murder of deceased Sardulji. Mr. Pandya further submitted that even if the evidence led by the prosecution is taken at its face value, only original accused Nos. 1, 2 and 3 were noticed talking with deceased Sardulji. Mr. Pandya further submitted that there is contradictions between the ocular evidence and medical evidence on record. Mr. Padhya further submitted that original accused No. 5-Pratapji Mashruji Thakor has been wrongly implicated in the present offence. Mr. Padhya further submitted that no role is attributed to original accused No.5 except the fact that he instigated the other accused. Mr. Padhya further submitted that no blood is found from the clothes of original accused No.5. Mr. Padhya, therefore, submitted that appeal qua original accused No.5 deserves to be allowed in toto and the sentence and conviction qua original accused No. 5 deserves to be set aside. 11. The learned Advocates for the appellants have relied upon the judgment of the Apex Court in the case of Malhu Yadav v. State of Bihar, reported in 2002 (5) SCC 724 and judgment rendered by this Court in the case of Kantibhai Anarji v. State of Gujarat, reported in 2001 (3) GLR 2292 . The learned Advocates, therefore, submitted that the appeals deserve to be allowed and the judgment and order of conviction and sentence deserve to be set aside. 12. Mr. K. L. Pandya, learned A.P.P. has opposed these appeals. Mr. Pandya submitted that the prosecution has been able to prove the charges levelled against the appellants to its hilt and beyond reasonable doubt. Mr. Pandya submitted that the prosecution has been able to establish the fact that there was animosity between the deceased and original accused Nos. 1 and 2 and there is evidence on record that there was previous quarrel also. Mr. Mr. Pandya submitted that the prosecution has been able to establish the fact that there was animosity between the deceased and original accused Nos. 1 and 2 and there is evidence on record that there was previous quarrel also. Mr. Pandya further submitted that the oral testimonies of the eyewitnesses clearly establish the guilt of the accused. Mr. Pandya further submitted that P.W. 1-Madarji Pratapji Thakore, the first informant, had seen the deceased with original accused Nos. 1, 2 and 3 at 6-00 p.m. on the day of incident. However, the incident has occurred at 7-15 p.m. i.e. after a period of about 1-15 hours, which has been witnessed by P.W. 2-Rameshji Joraji Thakore and P. W. 8-Dilipji Mavaji Thakore. Mr. Pandya further submitted that the oral testimonies of eye-witnesses is fully corroborated by the medical evidence as well as evidence in the form of serological report. Mr. Pandya further submitted that the defence has also not brought on record any evidence that it was deceased who caused provocation. Mr. Pandya further submitted that the blood stains are found on the weapons knives and stick and clothes of original accused No. 1 2, 3, 4 and 6 and all these incriminating evidence bears human blood of the blood group of the deceased. Mr. Pandya, therefore, submitted that the learned Sessions Judge has rightly appreciated the evidence on record and the judgment and order of conviction and sentence passed by the learned Sessions Judge deserves to be confirmed and the appeals deserve to be dismissed. 13. We have examined the record and proceedings in the context of rival submissions made by both the sides. 14. We find that the case of the prosecution is mainly based on the oral testimonies of P.W. 1, First Informant, Madarji Pratpji Thakore, P.W. 2 Rameshji Joraji Thakore and P.W. 8 Dilipji Mavaji Thakore, who are eye-witnesses to the incident. 15. Upon reading the evidence of P.W. 8-Dilipji Mavaji Thakore (Exh. 44), we find that at 7-15 p.m. on the day of incident, while he was going with Ramesh Joraji and when they reached near the school of the village, he found accused No.5 armed with stick, accused No.2 armed with knife and accused No. 1 also armed with knife, and accused No.4 armed with a wooden log (dhoko). 44), we find that at 7-15 p.m. on the day of incident, while he was going with Ramesh Joraji and when they reached near the school of the village, he found accused No.5 armed with stick, accused No.2 armed with knife and accused No. 1 also armed with knife, and accused No.4 armed with a wooden log (dhoko). He has further stated that accused No.6 caught hold of the deceased and accused No.3 assaulted upon the deceased with stick, accused No.2 inflicted knife blow on the forehead of the deceased and accused No. 1 inflicted knife blow on the left side of the chest of the deceased. We also find that he has stated that accused No.4 gave a blow on the back side of the shoulder with the wooden log. He has further stated that on raising shouts, all the accused ran way. He has further stated that he and Rameshji went near the deceased and found blood oozing out of the head and chest of deceased Sardulji and found Sardulji dead. He has further stated he and Rameshji went to inform the brother of the deceased and even accused No.6 accompanied them. He has further stated that he found brother of the deceased Pratapji was not at his residence, and therefore, he informed about the incident to his son, the first informant, P. W. 1-Madarji Pratapji Thakore. He has also stated that accused No.6 ran away from the house of the first informant. We also find that he has stated that he had seen the occurrence and had identified all the accused and has also identified the weapons knife, wooden log and the stick. We find that he has stood the test of cross-examination and has denied certain suggestions made by the defence. 16. Upon reading the evidence of P. W. 2-Rameshji Joraji Thakore (Exh. 16), who is another eye-witness, we find that he has narrated the occurrence of the crime that took place while he was with P.W. 8-Dilipji Mavaji Thakore. We find that this witness has also stood the test of cross-examination. We find that in his cross-examination, he has stated deceased Sardulji made attempts to relieve himself while he was hugged. We find that he has also stated in his cross-examination that, out of fear, he did not made attempt to save deceased Sardulji. We find that this witness has also stood the test of cross-examination. We find that in his cross-examination, he has stated deceased Sardulji made attempts to relieve himself while he was hugged. We find that he has also stated in his cross-examination that, out of fear, he did not made attempt to save deceased Sardulji. We also find that he has denied various suggestions made by the defence. 17. The prosecution has also examined P.W. 1-Madarji Pratapji Thakore (Exh. 14) who is the first informant, and P.W. 9-Pratapji Mohanji Thakore (Exh. 45) elder brother of the deceased. P.W. 1-Madarji Pratapji Thakore (Exh. 14), the first informant, has stated in his deposition that while he was coming at 6 O'clock, he saw his uncle deceased Sardulji sitting with accused Nos. 1, 2 and 3. He has also stated that thereafter at about 7-15 hours P.W. 2-Rameshji Joraji Thakore and P.W. 8-Dilipji Mavaji Thakore came to his house and narrated the occurrence of crime. We find that he has stated that thereafter accused No. 6 ran away from his house, who has accompanied P.W. 2 and P.W. 8. We also find that he has stated that thereafter they went near the scene of occurrence and found his uncle Sardulji having succumbed to injuries. We find that this witness has also stood the test of cross-examination and has also supported the case of the prosecution. 18. We find that similarly P.W. 9-Pratapji Mohanji Thakore (Exh. 45) has stated that on the day of incident he had gone to village Vara as his relative was sick. He has further stated that between 8-00 p.m. to 8-30 p.m., his son Hemji and Rameshji Varsangji came to the said village in a jeep and informed about the incident. We find that this witness has also supported the case of the prosecution and has stood the test of cross-examination. 19. Upon reading the evidence of P.W. 4-Dhiraji Devabhai Jagania (Exh. 19), the Medical Officer, who performed autopsy on the dead body of the deceased, we find that he found the following external injuries: (1) Dark redish contusion on the right temporal region, size about 2.5 cm. x 1 cm. obliquely placed. (2) Contused lacerated wound on the right parietal region 3.5 cm. x 0.5 cm. in size, obliquely placed blood clotted, dark red on wound. (3) Contused lacerated wound on the right occipital region 2 cm. x 1 cm. obliquely placed. (2) Contused lacerated wound on the right parietal region 3.5 cm. x 0.5 cm. in size, obliquely placed blood clotted, dark red on wound. (3) Contused lacerated wound on the right occipital region 2 cm. x 0.5 cm. in size, obliquely, placed blood clotted, dark red. (4) A stab wound on the left side of lower chest mid clavicular line at the level of inter costal space in between 7th and 8th rib deep abdominal cavity and thoracic cavity. The edges cutting one blunt and one sharp. The blunt bruising medially and short cutting laterally obliquely medially to laterally dark red blood clotted on wound. Everted margin. (5) An abrasion on the right thigh anatomically, size 4 cm. x 1.5 cm., vertically placed blood clotted dark red. We also find that he noticed the following internal injuries upon the dead body of the deceased : (1) A stab wound on in between 7th and 8th rib. Cut lower border of 7th rib. Ruptured left lower part. Blood and mucus in trachea. Ruptured and collapsed left lung. Lower part. A stab wound 2 cm. x 0.5 cm. deep. Lung substance Haemothorax left sided. (2) A stab wound left ventricles and left atrium size 1 cm. x 0.5 cm. Cut left pulmonary vessels. (3) A stab wound on the left side of lower chest. Ruptured peritoneum and ruptured diaphragm left side. Abdominal cavity full of dark red blood. Semi-digested food in stomach. In small intestines digested food. Gas and digested food in long intestines. (4) Ruptured spleen. Stab wound on spleen. Empty bladder. Semi-digested food and mucus in stomach. We find that he has further stated that as per his opinion the cause of death was haemorrhagic shock due to injuries to heart and left lung. He has further stated that injury No.1, 2 and 5 would be possible with weapon stick and injury No.4 with knife. We find that this witness has also stood the test of cross-examination. 20. Upon reading the evidence of P.W. 13-Ratansinh Chandansinh Vaghela (Exh. 53), the Investigating Officer, we find that he has narrated the manner in which the investigation was carried out by him in his capacity as Investigating Officer. In his cross-examination, we find that he has supported the case of the prosecution and has denied the suggestions put up by the defence. 21. 53), the Investigating Officer, we find that he has narrated the manner in which the investigation was carried out by him in his capacity as Investigating Officer. In his cross-examination, we find that he has supported the case of the prosecution and has denied the suggestions put up by the defence. 21. Upon perusal of the serological report (Exh. 61), we find that the human blood was found from both the knives bearing blood group 'A', which was the blood group of the deceased. Similarly, we find that the clothes of accused No.1, accused No.2, accused No. 3 as well as accused No. 6 were found blood-stained having blood group 'A', which is also the blood group of the deceased. 22. The sum total of the above discussion would lead to the fact that deceased Sardulji received injuries on being assaulted by accused Nos. 1, 2 and 3. We find that P.W. 1-Madarji Pratapji Thakore, the first informant, had seen deceased Sardulji sitting with accused Nos. 1, 2 and 3 in the outskirts of the town at about 6-00 p.m. i.e. 1-15 hours before the incident. Upon close scrutiny of the oral testimonies of the two eye-witnesses, we find that their testimonies are trustworthy and we find a ring of truth from the testimonies. The prosecution has thus been able to successfully prove the charges levelled against accused Nos. 1, 2, 3 and 6, whereas the prosecution has not been able to prove the charges levelled against accused Nos. 4 and 5. 23. From the evidence on record, it cannot be said that the incident triggered in a sudden manner. Accused Nos. 1, 2 and 3 were found sitting with the deceased, as aforesaid, before the incident and the manner in which the deceased was assaulted by the accused Nos. 1, 2, 3 and 6 collectively establishes the fact beyond reasonable doubt that all four of them with proper preparation and intention to commit murder of deceased Sardulji, assaulted upon him with deadly weapons like knife and stick with full knowledge that such injuries would result into death in ordinary course of nature. 1, 2, 3 and 6 collectively establishes the fact beyond reasonable doubt that all four of them with proper preparation and intention to commit murder of deceased Sardulji, assaulted upon him with deadly weapons like knife and stick with full knowledge that such injuries would result into death in ordinary course of nature. It, therefore, cannot be said that the incident triggered in a sudden provocation, and therefore, accused should be liable for offence of culpable homicide not amounting to murder as envisaged under Sec. 304 Part-I, I.P.C. From the facts and evidence on record, the prosecution has clearly established the fact that the case on hand would not fall under any of the exceptions, much less Exception-I to Sec. 300 I.P.C. The prosecution has thus been able to prove involvement of accused Nos. 1, 2, 3 as well as 6 by further corroboration of medical evidence as well as evidence in the form of serological report. We find that no injuries have been received by other accused Nos. 1, 2, 3 and 6 and have not given any explanation about the blood found on their clothes. 24. The evidence cannot be read in piecemeal basis and on reading the evidence as a whole, we find that the prosecution has been able to establish the charges levelled against accused Nos. 1, 2, 3 and 6. We also find that the conduct of accused No. 6 of running away from the house of first informant coupled with the fact that his clothes were found blood-stained bearing human blood of group 'A' which was the blood group of the deceased, clearly links his involvement in the present offence. 25. We, therefore, find that as per the evidence on record, accused Nos. 1, 2, 3 and 6 with common object to cause injuries upon the deceased, assaulted the deceased and have acted to achieve such a common object. Common intention is capable of cropping at any time, and therefore, it cannot be said that the incident triggered in sudden provocation. On appreciating the oral testimonies of two eye-witnesses, as aforesaid, we find that the prosecution has been able to link accused Nos. 1, 2, 3 and 6 with the present offence. 26. Common intention is capable of cropping at any time, and therefore, it cannot be said that the incident triggered in sudden provocation. On appreciating the oral testimonies of two eye-witnesses, as aforesaid, we find that the prosecution has been able to link accused Nos. 1, 2, 3 and 6 with the present offence. 26. Taking into consideration the ratio laid down by the Hon'ble Supreme Court in Malhu Yadav v. State of Bihar, reported in 2002 (5) SCC 724 as well as by this Court in Kantibhai Anarji v. State of Gujarat, reported in 2001 (3) GLR 2292 , the offences under Secs. 147, 148 and 149 of I.P.C. of constitution of unlawful assembly is not made out by the prosecution. However, from the evidence on record, the prosecution has established the fact that accused Nos. 1, 2, 3 and 6 individually have acted with a common intention, assaulted upon the deceased, and the prosecution has been able to establish the fact that all these four accused were sharing a common intention upon being present at the place of occurrence. 27. The prosecution has not been able to establish the charges levelled against accused Nos. 4 and 5 and the prosecution has not been able to further corroborate the oral testimonies of the prosecution witnesses. The prosecution has thus not been able to establish involvement as well as individual role played by accused Nos. 4 and 5 beyond reasonable doubt. The prosecution has also not been able to establish presence of accused Nos. 4 and 5 at the time of occurrence beyond reasonable doubt, and therefore, accused Nos. 4 and 5 need to be acquitted of the charges levelled against them. 28. We find that though formation of unlawful assembly has not been found to have been proved by the prosecution, there is evidence to indicate that accused Nos. 1, 2, 3 and 6, in consult, caused such injuries to deceased Sardulji, which resulted into his death. This reflects presence of common intention at the time of commission of crime. 29. In view of the foregoing discussion, accused No. 1-Jentiji Mevaji Thakore, accused No. 2-Natvarji Hariji Thakore, accused No. 3-Padji Pratapji Thakore and accused No. 6-Bakaji @ Sovanji Chhaganji Thakore are held guilty of offence of murder of deceased Sardulji and are convicted under Sec. 302 read with Sec. 34 of I.P.C., whereas appeals in respect of accused Nos. 29. In view of the foregoing discussion, accused No. 1-Jentiji Mevaji Thakore, accused No. 2-Natvarji Hariji Thakore, accused No. 3-Padji Pratapji Thakore and accused No. 6-Bakaji @ Sovanji Chhaganji Thakore are held guilty of offence of murder of deceased Sardulji and are convicted under Sec. 302 read with Sec. 34 of I.P.C., whereas appeals in respect of accused Nos. 4 and 5 are allowed and their conviction under Sec. 302 read with Secs. 147, 148 and 149 is set aside. 30. The upshot of the foregoing discussion is that there are no merits in Criminal Appeal Nos. 2012 of 2005 and 792 of 2005 and they stand dismissed. 31. Since, Criminal Appeal No. 2012 of 2005 is dismissed and since appellant-original accused No. 6-Bakaji @ Sovanji Chhaganji Thakore is on bail, his bail-bond stands cancelled and he shall surrender to custody within six weeks from today. 32. Criminal Appeal No. 597 of 2005 is partly allowed. The conviction and sentence in respect of original accused No. 5-Pratapji Mashruji Thakore are set aside. Since, he is on bail, his bail-bond shall stand cancelled. The appeal fails so far as it relates to original accused No. 3-Padji Pratapji Thakore. 33. Criminal Appeal No. 1112 of 2005 is partly allowed. The conviction and sentence in respect of original accused No. 4-Narsinhji Hariji Thakore are set aside. Since he is on bail, his bail-bond shall stand cancelled. The appeal by original accused No. 2-Natvarji Hariji Thakore fails and stands dismissed. 34. Fine paid, if any, by the acquitted accused shall be refunded to them. Order accordingly.