Judgment R.M. Chhaya, J.—The present appeals arise out of the judgment and order dated 4.6.2005 rendered in Sessions Case No. 151/1999, by the learned Additional Sessions Judge, FTC-2, Navsari. In all, ten persons were arraigned as accused before the Sessions Court, out of whom, original accused Nos. 1, 2, 3, 5, 6, 7 & 8 came to be convicted and sentenced for the offences punishable under Sections 143, 147, 148, 149, 452, 323 & 302 of the Indian Penal Code [“IPC” for short]. However, they came to be acquitted of the charges levelled against them under Sections 325, 304 & 423 IPC. 1.1 For committing offence punishable under Section 302 IPC, the original accused Nos. 1, 2, 3, 5, 6, 7 & 8 have been sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/- each, and in default of payment thereof, to undergo further S.I for one month. They have been sentenced to undergo R.I for six months, R.I for six months, R.I for six months, R.I for two years and R.I for six months, for the offences punishable under Sections 143, 147, 148, 452 & 323 IPC respectively. All the sentences were ordered to run concurrently. 1.2 By the very judgment, the learned trial Judge has been pleased to record acquittal of original accused Nos. 4, 9 & 10 for all the charges levelled against them. 2. The convicted accused Nos. 1, 2, 3, 5, 6, 7 & 8 have preferred Criminal Appeal No. 1388/2005. The State, being aggrieved by acquittal of original accused Nos. 4, 9 & 10, has preferred Criminal Appeal No. 2125/2005. 3. Since both the appeals arise out of the same judgment and order and incident, they are heard together and are decided by this common judgment. For the sake of convenience, the appellants in Criminal Appeal No. 1388/2005 and respondents in Criminal Appeal No. 2125/2005 are referred to by their original accused numbers as arrayed in the Sessions Case. 4. The facts of the case, in brief, may be stated thus:— 4.1 Deceased Vasantbhai Babubhai and original accused No. 1, Mohanbhai Chhipakabhai Tandel, are ordinary residents of village Krushnapur, Taluka & District : Navsari. The deceased and original accused No. 1 had partnership business of troller. There was a dispute in the partnership business and, therefore, a civil suit was instituted by the deceased against original accused No. 1. The deceased and original accused No. 1 had partnership business of troller. There was a dispute in the partnership business and, therefore, a civil suit was instituted by the deceased against original accused No. 1. The suit came to be decided and decreed in favour of the deceased few months before the date of the incident, which resulted into animosity between the accused and the deceased. 4.2 It is the case of the prosecution that on 6.7.1999 at about 8.00 pm, while the deceased was passing through the Bazar, original accused Nos. 2 & 3 picked up a quarrel with the deceased and assaulted the deceased, because of which, the deceased received some injuries. It is the case of the prosecution that keeping grudge of the earlier dispute and animosity, the accused, who are relatives and are from the same family, armed with deadly weapons like pestle, iron rods, axe, sticks, with a preplanned common object to commit murder of deceased Vasantbhai, formed an unlawful assembly and forcibly entered the house of the deceased at wee hours at 2.00 am (night) on 7.7.1999, and while the deceased was asleep, inflicted several blows to the deceased and caused severe injuries to Babaliben, wife of the deceased, Babubhai Bhagvanbhai, father of the deceased and Anand, son of the deceased, with deadly weapons. The deceased and injured persons were shifted to Navsari in a tempo and admitted in a private hospital of Dr. Parmar, where deceased Vasantbhai was declared to be dead. Therefore, Babaliben, wife of the deceased, lodged FIR with Jalalpore Police Station for the offences punishable under Sections 302, 143, 147, 148, 149, 452, 323, 325, 304 & 423 of the Indian Penal Code. 5. On the basis of the FIR lodged by the wife of the deceased, the offence was registered and investigated and ultimately, charge sheet was filed in the Court of learned J.M.F.C.Navsari, who, in turn, committed the case to the Court of Sessions at Navsari, as the offences alleged against the accused were exclusively triable by a Court of Sessions. Upon the case being committed, it was registered as Sessions Case No. 151/1999. 6. The learned Judge of the trial Court framed charge against the accused at Exh.1 for the offences punishable under Sections 302, 143, 147, 148, 149, 452, 323, 325, 304 & 423 IPC. Upon the case being committed, it was registered as Sessions Case No. 151/1999. 6. The learned Judge of the trial Court framed charge against the accused at Exh.1 for the offences punishable under Sections 302, 143, 147, 148, 149, 452, 323, 325, 304 & 423 IPC. The charge was read over and explained to the accused, who pleaded not guilty to the same and claimed to be tried. 7. After recording of evidence of the prosecution witnesses was over, the learned Judge explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required by Section 313 of Cr.P.C. In their further statements, the case of the accused was that they had not committed the offence and were falsely implicated in the offence. However, no evidence was led by them to substantiate their defence. 8. After appreciating the evidence adduced by the prosecution and hearing the learned counsel for the parties, the learned Judge has convicted and sentenced the original accused Nos. 1, 2, 3, 5, 6, 7 & 8, as referred to above; whereas acquitted original accused Nos. 4, 9 & 10, by judgment and order dated 4.6.2005, giving rise to these appeals. 9. Heard Learned Advocate Mr. Asim Pandya for the appellants in Criminal Appeal No. 1388/2005 and respondents in Criminal Appeal No. 2125/2005 and learned A.P.P. Mr. Sejpal for the State, at length and in great detail. 10. Learned Advocate Mr. Pandya has extensively taken us through the oral evidence of eye witnesses Babaliben Vasantbhai (PW.6), Babubhai Bhagwanji Tandel (PW.7) and Anandbhai Vasantbhai Tandel (PW.8), Dr. Mukeshbhai Harivadan Parmar (PW.9), who examined the deceased as well as the injured witnesses PW.6, 7 & 8, Dr.Parimalaben Jitendrabhai Joshi (PW.10), who performed autopsy on the dead body of the deceased, Executive Magistrate Mr. Amratlal Kuvarji Mehta (PW.12), Dr. Rajeshbhai Balvantbhai Desai- Radiologist (PW.13) who examined the injured eye witnesses PW.6, 7 & 8, Police Station Officer Mr. Prahaladbhai Nimbabhai (PW.14), who recorded the FIR, as well as Lalsinh Jitsinh Solanki, I.O. (PW.15). 11. Learned Advocate Mr. Pandya has submitted that the FIR is in two parts. Amratlal Kuvarji Mehta (PW.12), Dr. Rajeshbhai Balvantbhai Desai- Radiologist (PW.13) who examined the injured eye witnesses PW.6, 7 & 8, Police Station Officer Mr. Prahaladbhai Nimbabhai (PW.14), who recorded the FIR, as well as Lalsinh Jitsinh Solanki, I.O. (PW.15). 11. Learned Advocate Mr. Pandya has submitted that the FIR is in two parts. The first part narrates the earlier incident, which took place at about 8.00 pm in the previous night (on 6.7.1999) and the second part is the narration of the incident, which, according to the prosecution, had taken place at about 2.00 am (night) on 7.7.1999. Mr. Pandya has submitted that the whole case of the prosecution hinges on oral testimonies of PW. 6, 7 & 8, who are projected as eye witnesses to the incident. Mr. Pandya further submitted that the tenor of the FIR itself establishes the fact that it is a tutored version. He submitted that there is a delay of five hours in lodging the FIR, for which no explanation is offered by the prosecution. The learned counsel has pleaded that all the three eye witnesses are relatives of the deceased and they have been got up. Mr. Pandya has further submitted that there are major contradictions and omissions in the version of the three eye witnesses and, therefore, their testimonies are untrustworthy. The learned counsel has submitted that all the three eye witnesses were admitted to the hospital and their dying declarations had also been recorded. Mr. Pandya has argued that upon reading their dying declarations as well as their depositions before the Court, it would be evident that there are major contradictions, omissions and inconsistencies in their version. Mr. Pandya has stressed that the three eye witnesses have also involved the other members of the family of the accused, who are not even prosecuted. Mr. Pandya has submitted that the original accused Nos. 5, 6, 7 & 8, who are sons-in-law of original accused No. 1, were staying at Navsari, which is at a distance of about 30 Kms from village Krushnpur, have been implicated in the present offence by the eye witnesses only with a view to ensure conviction of all the members of the family of original accused No. 1. 12. Learned Advocate Mr. Pandya has vehemently submitted that the oral testimony of PW.6, Babaliben, is not reliable at all. Mr. 12. Learned Advocate Mr. Pandya has vehemently submitted that the oral testimony of PW.6, Babaliben, is not reliable at all. Mr. Pandya has pleaded that the veracity of her testimony is completely doubtful, as in her dying declaration, she involves even three of the daughters of original accused No. 1. Mr. Pandya has submitted that PW.6 has no regards for the truth and, therefore, her testimony is unreliable and requires to be discarded. Mr. Pandya has further submitted that PW.6 has admitted in her deposition that she read the FIR ten times before giving oral testimony before the trial Court. Mr. Pandya has pleaded that she is an interested witness and in order to achieve conviction of the accused, the whole family of original accused No. 1 was involved, including original accused Nos. 5, 6, 7 & 8, who are sons-in-law of original accused No. 1 and are staying at Navsari. Mr. Pandya has argued that the ocular evidence of PW.6 is contrary to the medical evidence on record. Mr. Pandya has asserted that the oral testimony of PW.6 is a bunch of major contradictions and comparing her version with her dying declaration, there is discrepancy even about the manner in which the incident had taken place. Mr. Pandya has submitted that PW.6 has stated in her deposition that her father-in-law Babubhai(PW.7), escaped and hid himself in the house of neighbour. Mr. Pandya has asserted that thus, the oral testimony of PW.6 is completely unnatural and raises doubt about the presence of accused Nos. 5, 6, 7 & 8 at the time of incident, benefit of which should go to the appellants-accused. 13. Learned counsel Mr. Pandya has submitted that the version of PW.7, Babubhai Bhagwanji Tandel, is also unrealistic and unbelievable. Mr. Pandya has pleaded that there are contradictions and omissions in the oral testimony of PW.7 and his presence at the time of the incident is also not free from doubt, as he escaped and hid himself in the house of a neighbour, as per the oral testimony of PW.6- Babaliben. Mr. Pandya has asserted that PW.7 has been wrongly got up as an eye witness to the incident/actual occurrence. Mr. Pandya submitted that, therefore, the oral testimony of PW.7 is also unreliable and liable to be discarded. 14. Mr. Mr. Pandya has asserted that PW.7 has been wrongly got up as an eye witness to the incident/actual occurrence. Mr. Pandya submitted that, therefore, the oral testimony of PW.7 is also unreliable and liable to be discarded. 14. Mr. Pandya has submitted that similarly the oral testimony of PW.8, Anandbhai, son of the deceased, also suffers from major contradictions and improvement. Mr. Pandya has further submitted that in the dying declaration given before the Executive Magistrate, PW.8 has stated that deceased Vasantbhai received injuries when he went to the rescue of his father, Babubhai (PW.7). Mr. Pandya has pleaded that upon close scrutiny of the oral statements made by way of dying declarations before the Executive Magistrate as well as the oral testimony before the trial Court, it would be evident that there are material improvements and contradictions in the version of PW.8. Mr. Pandya has submitted that even if it is accepted that PW.8 had witnessed the incident, he had not named original accused Nos. 4, 9 & 10. 14.1 Mr. Pandya has submitted that, thus, the oral testimonies of all the three eye witnesses, on which the prosecution case hinges, do not inspire any confidence. Mr. Pandya has argued that the prosecution has failed to prove the charges levelled against the appellants-accused. Mr. Pandya has further argued that the oral testimonies of the three eye witnesses are the tutored versions and a totally got up case has been put forward by the prosecution. Mr. Pandya has submitted that from the version of all the three eye witnesses, it would be clear that the tendency of these witnesses, who are directly related to the deceased, is to involve innocent persons from the family of accused No. 1. Mr. Pandya has also submitted that the conduct of these eye witnesses, after the incident also, is not free from doubt. He submitted that instead of going straightway to the hospital with the deceased, eye witnesses went to the house of their uncle Lallubhai at Navsari. Mr. Pandya has submitted that they had sufficient time for consultation and after due deliberation with Lallubhai, the first information report was lodged, which gives vivid picture of the occurrence involving as many as possible members of the family of accused No. 1. Mr. Pandya has stressed that there are lot of exaggerations and embellishments in the versions of these three eye witnesses. 15. Mr. Pandya has stressed that there are lot of exaggerations and embellishments in the versions of these three eye witnesses. 15. Learned counsel Mr. Pandya has pleaded that there is unexplained time-lag of three hours even in reaching the hospital. Mr. Pandya has submitted that according to the prosecution case the incident occurred at 2.00 am and the evidence on record establishes the fact that the deceased as well as the injured witnesses were admitted to the hospital of Dr. Parmar at 5.30 am at Navsari, which is at a distance of 30 Kms only from village Krushnapur and the prosecution has not explained this time-lag even in giving treatment to the deceased as well as the injured persons. 15.1 Mr. Pandya has submitted that the prosecution has not been able to establish the unlawful assembly allegedly formed by the accused. Mr. Pandya has further submitted that original accused Nos. 5, 6, 7 & 8 as well as the acquitted persons had been wrongly involved in the present offence. Mr. Pandya has stressed that original accused Nos. 5, 6, 7 & 8 were staying at a distance of 30 Kms from the place of occurrence and it is not believable that at the time of incident, i.e. at 2.00 am, they were available at Krishnapur from Navsari. Mr. Pandya has pleaded that it is an admitted position that accused Nos. 5, 6, 7 & 8 are residents of Navsari and, therefore, the accused have also indirectly pleaded the plea of alibi. He argued that accused Nos. 5, 6, 7 & 8 had received no injury, which indicates that they were not present at the time of incident. Mr. Pandya has further submitted that even though independent witnesses were available, no independent witness has been examined by the prosecution only with an intention to conceal the truth of the matter. 15.2 Learned counsel Mr. Pandya has submitted that the oral testimonies of the three eye witnesses, even if taken at their face value, do not inspire any confidence and they are tutored witnesses and have deposed before the Court as represented and tutored by the interested parties. Mr. 15.2 Learned counsel Mr. Pandya has submitted that the oral testimonies of the three eye witnesses, even if taken at their face value, do not inspire any confidence and they are tutored witnesses and have deposed before the Court as represented and tutored by the interested parties. Mr. Pandya has further submitted that on the contrary the prosecution has preferred to drop the independent witnesses which creates doubt in the veracity of the case of the prosecution and even though no overt-act has been attributed by the so-called eye witnesses, majority of the family members of original accused No. 1 have been implicated in the present offence. Mr. Pandya has submitted that the prosecution has totally failed in establishing the common object and unlawful assembly allegedly formed by the accused, and none of the ingredients of unlawful assembly is attracted. 16. Mr. Pandya, Learned Advocate for the appellants-accused, has submitted that the version of the prosecution witnesses and more particularly, three eye witnesses, is full of exaggeration and is not corroborated by the medical evidence, more particularly, the injuries sustained by the deceased as well as other injured witnesses. Mr. Pandya has further submitted that even the scene of occurrence, as projected by the prosecution, is not free from doubt. Mr. Pandya submitted that, therefore, the learned trial Judge wrongly convicted the appellants. In his alternative submission, Mr. Pandya lastly submitted that even if it is believed that the prosecution has been able to establish unlawful assembly allegedly formed by the accused, the case of original accused Nos. 5, 6, 7 & 8 stands on different footing and even if the oral testimonies of three eye witnesses are believed in toto, original accused Nos. 5, 6, 7 & 8 can, at the most, be said to have committed offence punishable under Section 323 IPC and not the offence of murder punishable under Section 302 IPC. Mr. Pandya has urged that, therefore, the appeal filed by the convicted accused deserves to be accepted and the conviction and sentence awarded on them by the trial Court deserves to be set aside. In support of his submissions/contentions, learned counsel Mr. Pandya has placed reliance on the following decisions:— (1) Pandurang Chandrakant Mhatre & Ors. vs. State of Maharashtra, 2009(10) SCC 773 ,(2) Sikandar Singh & Ors. vs. State of Bihar, AIR 2010 SC 3580 (3) Dharam Singh & Ors. In support of his submissions/contentions, learned counsel Mr. Pandya has placed reliance on the following decisions:— (1) Pandurang Chandrakant Mhatre & Ors. vs. State of Maharashtra, 2009(10) SCC 773 ,(2) Sikandar Singh & Ors. vs. State of Bihar, AIR 2010 SC 3580 (3) Dharam Singh & Ors. vs. State of Punjab, AIR 1993 SC 319 ,(4) Shivjee Singh & Ors. vs. State of Bihar, AIR 2009 SC 417 , and (5) Jayantibhai Bhenkaarbhai vs. Sate of Gujarat, AIR 2002 SC 3569 . 17. Mr. Pandya also submitted that the learned trial Judge, on correct appreciation of evidence on record, has been pleased to record acquittal of original accused Nos. 4, 9 & 10. Mr. Pandya has pleaded that the prosecution has not been able to prove involvement of original accused Nos. 4, 9 & 10 at all. He, therefore, submitted that appeal against acquittal of original accused Nos. 4,9 & 10 filed by the State is devoid of any merits and the same does not warrant interference of this Court under its appellate jurisdiction. Therefore, the appeal filed against acquittal by the State requires to be dismissed and the order of acquittal recorded by the learned trial Judge deserves to be confirmed. 18. Learned Additional Public Prosecutor Mr. D.C. Sejpal for the State has opposed the appeal filed by the convicted accused. He submitted that this is a foolproof case and the prosecution has been able to prove the guilt of the convicted accused to its hilt. Mr. Sejpal contended that only because the three eye witnesses are relatives of the deceased, they cannot be labelled as interested witnesses. He submitted that the manner in which the accused armed with deadly weapons, trespassed into the house of the deceased at wee hours (i.e. 2 am) at night, clearly establishes the fact that all the accused with predetermined mind to commit the murder of deceased Vasantbhai and cause grave injuries to other members of his family, assaulted upon the deceased as well as the injured witnesses with deadly weapons. Mr. Sejpal further submitted that the oral testimonies of these witnesses are fully corroborated by the medical evidence as well as serological report and the prosecution has been able to prove the charges levelled against the accused beyond any reasonable doubt. Mr. Sejpal further submitted that the oral testimonies of these witnesses are fully corroborated by the medical evidence as well as serological report and the prosecution has been able to prove the charges levelled against the accused beyond any reasonable doubt. He also submitted that the version of the three eye witnesses, who were injured by the accused, is natural and trustworthy and all the three eye witnesses have clearly stated the occurrence, which is supported by the medical evidence on record. Mr. Sejpal has submitted that the first version involving original accused Nos. 5, 6, 7 & 8 is there on record and, therefore, it is incorrect to state that only because they were staying at Navsari, they could not be even present at the time of the incident. Mr. Sejpal has submitted that accused Nos. 5, 6, 7 & 8 are sons-in-law of original accused No. 1 and their presence with original accused No. 1 as well as original accused Nos. 2 & 3 to achieve the common object is established and proved by the prosecution. Mr. Sejpal has submitted that no plea of alibi was taken before the learned trial Judge and it has not been pleaded here also. He submitted that being residents of Navsari is one thing and their presence at village Krushnapur, which is supported by the prosecution witnesses, is another thing. Mr. Sejpal has submitted that only because original accused Nos. 5, 6, 7 & 8 are ordinary residents of Navsari, it could not be construed that they could not be the members of the unlawful assembly formed by the accused at village Krushnapur which is at a distance of 30 Kms from Navsari. Mr. Sejpal has submitted that the earlier incident had taken place only 6 hours before the commission of the crime and all the accused armed with deadly weapons, in furtherance of their common intention and object to commit murder of the deceased and cause severe injuries to the members of his family, trespassed into the house of the deceased during night hours when all were asleep and involved themselves in such a heinous crime, which has been proved beyond reasonable doubt by the prosecution. 19. Learned A.P.P. Mr. 19. Learned A.P.P. Mr. Sejpal submitted that the incident occurred at 2 am and it has also come in evidence that because of night hours, the prosecution witnesses found it difficult to make arrangement for vehicle for going to hospital at Navsari. Mr. Sejpal has vehemently contended that merely informing the uncle of the deceased, who was staying at Navsari, about such an incident having been occurred in the family and requesting him to accompany them to the hospital of Dr. Parmar and halting for five minutes at the residence of their uncle, would not mean that the first informant as well as the other witnesses had sufficient time for concoction. Mr. Sejpal submitted that Babaliben (PW.6) was also injured and, therefore, it is also an admitted position that the husband of PW.6, i.e. deceased Vasantbhai, was also severely injured along with her father-in-law and son and, therefore, recording of FIR at 7.30 am is a natural corollary, of the manner in which the incident had occurred. Mr. Sejpal has argued that the dying declarations recorded by the Executive Magistrate are in the nature of statements, as all the three injured witnesses were treated and came out from the injuries received by them. He has submitted that there are no contractions nor any improvement nor embellishment in the oral testimonies of the three eye witnesses. Mr. Sejpal has pleaded that the version of these three eye witnesses is fully corroborated by the medical evidence as well as the serological report on record. 20. Learned A.P.P. Mr. Sejpal has asserted that from the evidence on record the prosecution has been able to establish beyond reasonable doubt that all the accused armed with deadly weapons, in furtherance of their common object to commit murder of the deceased and cause grave injuries to his family members, with predetermined mind and preparation, went to the house of the deceased at about 2 am and attacked upon four family members of the deceased and inflicted fatal blows upon them with deadly weapons like pestle, iron rods, axe, sticks etc. Mr. Sejpal has further submitted that even from the exhaustive cross-examination, it transpires that the defence has not touched the actual occurrence and no cross-examination in main is found. Mr. Mr. Sejpal has further submitted that even from the exhaustive cross-examination, it transpires that the defence has not touched the actual occurrence and no cross-examination in main is found. Mr. Sejpal has lastly submitted that the learned trial Judge has rightly believed the case of the prosecution and the appeal filed by the convicted accused is devoid of any merits and the same deserves dismissal. 21. Mr. Sejpal, learned A.P.P for the State, has contended that the learned trial Judge erred in recording acquittal of original accused Nos. 4, 9 & 10 because the presence of the acquitted accused at the time of commission of crime is also proved by the prosecution and, therefore, in a case of unlawful assembly, every person, present at the time of occurrence, is equally liable for the incident in main. Mr. Sejpal has submitted that the acquitted accused had full knowledge that their participation in an unlawful assembly would cause grave injuries to the deceased as well as the injured witnesses and, therefore, it could not be said that they were not involved in the crime. Mr. Sejpal has argued that the acquitted accused are also the family members of the convicted accused and, therefore, they should also be held liable for the offence of murder of deceased Vasantbhai punishable under Section 302 read with Sections 143, 147, 148, 149, 452, 323, 325, 304 & 423 IPC being the members of an unlawful assembly. Mr. Sejpal, learned A.P.P for the State lastly submitted that since the learned trial Judge has erred in recording acquittal of original accused Nos. 4, 9 & 10, Criminal Appeal No. 2125/2005 deserves to be allowed by setting aside the order of acquittal recorded by the trial Court and they may be convicted for the offences with which they are charged. 22. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 23. The case of the prosecution mainly rests on the testimonies of three injured eye witnesses, namely, Babaliben Vasantbhai (PW.6), Babubhai Bhagwanji Tandel (PW.7) and Anandbhai Vasantbhai Tandel (PW.8). 24. Upon reading the evidence of PW.6, Babaliben, wife of deceased Vasantbhai, she has stated that in the late evening of the previous day, while she was returning from the adjoining village, she saw accused Nos. 24. Upon reading the evidence of PW.6, Babaliben, wife of deceased Vasantbhai, she has stated that in the late evening of the previous day, while she was returning from the adjoining village, she saw accused Nos. 3 & 4 quarreling with her deceased husband in the market near the Bus-stand. She has stated that accused No. 1 and her deceased husband were partners in the business of troller and a dispute was going on between them with regard to the said business, for which her husband had filed Civil Suit, which was decreed in favour of her husband and because of this grievance/grudge, accused Nos. 2 & 3 had assaulted her husband. She has further stated that her husband had received injuries on his head and she attempted/tried to get him treated by a doctor at Navsari, however, as no transport facility was available, she resorted to traditional treatment at home. She has also stated that at about 1 O’clock on the said night, she, her deceased husband and other family members went to bed and at about 2 O’clock, accused Nos. 1, 2, 4 & 10 along with 4 sons-in-law (i.e. accused Nos. 5, 6, 7 & 8) suddenly entered her house and caught hold of her deceased husband and dragged him to the compound. She has also stated that all the accused assaulted upon the deceased. She has attributed that accused No. 1 was armed with pestle, accused No. 3 was armed with iron rod, accused No. 2 was armed with an axe, who assaulted upon the deceased on the head. She has further stated that accused No. 4 was armed with stick, accused No. 7 was armed with stick, accused No. 5 was armed with iron rod, accused No. 6 was also armed with iron rod. She has also stated that all of them, one after the other, assaulted upon the deceased, while accused No. 9 was abusing. She has stated that as she tried to save her husband, accused No. 1 assaulted her with pestle and accused Nos. 4 & 10 gave her stick blows. She has further stated that she raised shouts and, therefore, neighbours rushed to her house and by the time, all the accused had run away. She has stated that her husband was severely injured and was profusely bleeding. She has also stated that her son Anandbhai (Pw.7) was also profusely bleeding. 4 & 10 gave her stick blows. She has further stated that she raised shouts and, therefore, neighbours rushed to her house and by the time, all the accused had run away. She has stated that her husband was severely injured and was profusely bleeding. She has also stated that her son Anandbhai (Pw.7) was also profusely bleeding. She has also stated that her father-in-law Babubhai Tandel was also injured. She has stated that she and her neighbours took her deceased husband, her father-in-law Babubhai and son Anand to the hospital at Navsari in a tempo. She has also stated that Lallubhai, uncle of the deceased, who stays at Navsari, was informed about the incident and thereafter went to the hospital of Dr. Parmar for treatment. She has stated that Dr. Parmar, after examining, declared that her husband had succumbed to the injuries. She has also narrated the injuries received by her as well as her son. 24.1 In her cross-examination, this witness has stated that she read the FIR before giving the deposition. She has stated that she had witnessed the incident. In her extensive cross-examination, she has clearly narrated the occurrence and stood to the test of cross-examination. 25. Injured eye witness Babubhai Bhagwanji Tandel (PW.7), father of the deceased, who was aged about 80 years, has clearly narrated the incident which occurred in the house in wee hours at 2 O’clock and has stated that he was assaulted by accused No. 1 with pestle and accused No. 3 with iron rod. We find that he has narrated the whole incident as narrated by PW.6, Babaliben, and has clearly attributed the role to accused Nos. 1, 2, 3, 5, 6, 7 & 8 also, in addition to accused No. 4. He has further stated that there was animosity between accused No. 1 and his deceased son Vasantbhai in regard to the business of troller (bore). 25.1 This witness was subjected to cross-examination. He has stated in his cross-examination that his clothes were stained with blood. He has stated that he was conscious enough when the accused assaulted upon the deceased. He has further stated in his cross-examination that the accused broke open the door and first assaulted upon him. He has denied the suggestion of the defence that he was not present when the incident took place. He has stated that he was conscious enough when the accused assaulted upon the deceased. He has further stated in his cross-examination that the accused broke open the door and first assaulted upon him. He has denied the suggestion of the defence that he was not present when the incident took place. The witness has stated that they use to keep the lights on in the compound when they go to sleep. He has further stated that when the accused assaulted upon Anandbhai (PW.8), son of the deceased, he raised shouts. 25.2 This witness has stated in his cross-examination that he has not stated in his statement before the Executive Magistrate that he ran away from the otla when he was assaulted by the accused. He has denied the suggestion of the defence that he saw the injured after he came back to home. He has further stated that he was admitted in the hospital of Dr. Parmar at 6 am. He has also stated that he did not remember that he has stated in his statement before the Executive Magistrate that the accused broke open the door and assaulted upon him in the common room and dragged Vasantbhai out of the room. He has also stated that he has not stated in his police statement as to how and by which weapon his son was assaulted upon. He has also stated that the case with regard to troller was decided in favour of his son. He has denied the suggestion of the defence that he was not present when the incident took place. 26. Upon reading the evidence of Anandbhai Vasantbhai Tandel (PW.8), we find that his father Vasantbhai informed him on the previous evening of the incident that Chhibubhai Mohandbhai and Nareshbhai Mohanbhai quarreled with him because of which he had received injuries. He has further stated that they tried to get Vasantbhai treated by a doctor, but, as transport facility was not available, they resorted to traditional treatment at home. This witness has further stated that on hearing uproar/commotion at about 2 O’clock, he woke up and he heard abuses and saw accused No. 1 armed with pestle, accused No. 2 armed with axe, accused No. 3 armed with iron rod and accused No. 4 armed with wooden log. This witness has further stated that on hearing uproar/commotion at about 2 O’clock, he woke up and he heard abuses and saw accused No. 1 armed with pestle, accused No. 2 armed with axe, accused No. 3 armed with iron rod and accused No. 4 armed with wooden log. He has further stated that accused No. 7 was armed with stick, accused No. 8 was armed with iron rod and accused No. 10 was armed with stick. He has further stated that accused No. 5 was armed with iron rod and accused No. 6 was armed with iron rod. He has further stated that all the accused broke open the door and assaulted upon his grandfather Babubhai (PW.7). He has narrated the manner in which the incident had taken place and the manner in which his father was assaulted upon by the accused. He has stated that he raised shouts and, therefore, neighbours came running to his house and all the accused ran away from the place of incident. He has further stated that he found his father lying unconscious and severely injured and profusely bleeding from the head. He has also stated that his mother as well as his grandfather had also received injuries. He has stated that his father, mother, grandfather and he himself were shifted to Navsari in the tempo of one Deepakbhai and were admitted in the hospital of Dr. Parmar and on examination, the doctor declared his father dead. He has further stated that before giving treatment, the doctor inquired about the injuries received by them and that he had narrated the incident to the doctor. This witness has stated that he was treated as an indoor patient for six days. He has also stated that he had given statements before the police, doctor as well as the Executive Magistrate. He has stated that the Executive Magistrate had also recorded the statements of his grandfather as well as his mother and obtained their signatures thereon. This witness has stated that accused No. 1 and his deceased father were dealing in the business of troller in partnership. He has also stated that a case between them was instituted in Navsari Court and was going on since last 10 years and it was decided in favour of his father. This witness has stated that accused No. 1 and his deceased father were dealing in the business of troller in partnership. He has also stated that a case between them was instituted in Navsari Court and was going on since last 10 years and it was decided in favour of his father. He has also stated that keeping this grudge in their minds, accused No. 1 and his relatives have done his father to death. 26.1 In his cross-examination, this witness has stated that all the four sons-in-law of accused No. 1 stay at Navsari and he knew all of them. He has stated in his cross-examination that he does not remember that he has stated before the Executive Magistrate that he was not aware about the names of sons-in-law of accused No. 1. He has stated that the Executive Magistrate had recorded his statement on the 3rd day of the incident in the hospital of Dr. Parmar. He has further stated that he does not remember that he has stated before the Executive Magistrate that as the accused assaulted upon his grandfather, his deceased father Vasantbhai went to the rescue of his father, wherein he received injuries. He has stated that when he woke up, he saw the accused on the otla armed with weapons and on seeing the accused armed with weapons, he got frightened and, therefore, he could not raise shouts. He has also stated that he could have run away from the rear door of the house, but he did not do so. He has also denied the suggestion of the defence that his mother did not go towards village and call his neighbours. He has further stated that he does not remember that he has stated before the Executive Magistrate that his mother went to call his neighbours, but, nobody turned up. He has further stated that he has no relations with sons-in-law of accused No. 1. He has stated that accused No. 7-Naginbhai used to visit his house. He has stated that when the incident took place, he was studying in 12th standard. He has further stated that he was aware about the dispute regarding troller business between his father and accused No. 1. He has stated that except the fact that they were to receive some money of the partnership, he did not know anything more. He has stated that when the incident took place, he was studying in 12th standard. He has further stated that he was aware about the dispute regarding troller business between his father and accused No. 1. He has stated that except the fact that they were to receive some money of the partnership, he did not know anything more. In his grueling cross-examination, this witness has denied the suggestions of the defence, in so far as the incident in main is concerned. 27. We also find that all the three eye witnesses (PW.6, 7 & 8) were admitted to the hospital of Dr. Parmar and as per their oral testimonies, the Executive Magistrate had recorded their statements. 27.1 Babaliben Vasantbhai (PW.6) has given her statement before the Executive Magistrate as under:— “On 6.7.1999, at about 7.00 to 7.30 in the evening, there was a verbal altercation between the son of Mohanbhai Chhipkabhai of our village Krushnapur and my husband Vasantbhai. Thereafter, at about 2.00 am on 7.7.1999, Mohanbhai Chiipkahai, Nareshbhai Mohanhai, Chhibubhai Mohanbhai, Devjibhai Jivanbhai, Naginbhai Somabhai, Ashokbhai Naranbhai, Dolatbhai, Valiben Mohanbhai, Gauriben, Laxmiben Dolatbhai, Shardaben, Nilaben etc., all armed with pestle, iron rod, wooden logs etc., came at our residence. First of all, they started to beat my father-in-law, who raised shouts and hid himself in the adjoining house. Thereafter, they dragged my husband out of the house and they started beating him. They inflicted blows with iron rods on hands and legs of my husband. Fatal blows were also given on his head and they were raising shouts ‘finish, finish. Since my husband fell down, they went away. Thereafter, the neighbours brought us to the hospital.” 27.2 Babubhai Bhagwanji Tandel (PW.7) had given statement before the Executive Magistrate as under:— “On 6.7.1999, at about 2 O’clock in the night, Mohanbhai Chhipkabhai, Valiben Mohanbhai, Chhibubhai Mohanbhai, Nareshbhai Chhibubhai and four sons-in-law, namely, Naginbhai, Ashokbhai, Dolatbhai and Devjibhai as well as daughters came. Mohanbhai was armed with pestle, son was armed with pestle, Valiben was armed with stick and the sons-in-law were armed with iron bars etc. All the persons had come with weapons to beat. I was sleeping on the otla outside the house. I was beaten with pestle. Blows were inflicted on ribs, hands etc. Stick blows were given on back. I, therefore, escaped and hid myself in the adjoining house owned by Shankerbhai. All the persons had come with weapons to beat. I was sleeping on the otla outside the house. I was beaten with pestle. Blows were inflicted on ribs, hands etc. Stick blows were given on back. I, therefore, escaped and hid myself in the adjoining house owned by Shankerbhai. Thereafter, they beat my son severely. I went there and saw my son after they all went away. Thereafter, my family members and neighbours brought me at the hospital.” 27.3 Anandbhai Vasantbhai Tandel (PW.8) had given statement before the Executive Magistrate as under:— “On 7.7.1999, i.e. on 6.7.1999 at about 2 O’clock in the night, Mohanbhai Chhipkabhai, his sons Chhibubhai and Nareshbhai as well as his four sons-in-law, names of whom are not known to me, came and started beating my father-in-law. They were armed with pestle, iron rods, wooden logs etc. When my father tried to rescue him, blows were inflicted on the head of my father. I was also beaten with pestle. Therefore, my mother went to the village for help, but, at that time nobody had come, since it was night time. The family members brought the injured persons to the hospital and since then I am in the hospital.” 28. Dr. Mukesh H.Parmar, who examined PW.6, 7 & 8 as well as deceased Vasantbhai Tandel, has stated in his evidence (Exh.77) that deceased Vasantbhai was brought to his hospital on 7.7.1999 at 5.30 am by his family members and Lallubhai B. Tandel. The doctor has further stated that on examination of Vasantbhai, he was not responding anything and his heart had collapsed and was found dead. He found humerus fracture on right hand and wound on head. Thereafter he made arrangement for autopsy on the dead body of Vasantbhai and informed the police about the same. He has further narrated the treatment given to injured witnesses PW. 6, 7 & 8. In his cross-examination, the doctor has stated that all the three injured and deceased Vasantbhai were brought to the hospital along with 25 relatives, wherein Lallubhai Tandel was the main person and, therefore, the doctor has stated his name. The doctor has stated that he was not knowing Lallubhai Tandel and, therefore, could not recognize Lallubhai. The doctor has stated that he has given the deposition on the basis of the certificates issued by him. The doctor has stated that he was not knowing Lallubhai Tandel and, therefore, could not recognize Lallubhai. The doctor has stated that he has given the deposition on the basis of the certificates issued by him. He has also stated that the history about injuries sustained by deceased Vasantbhai was given by the injured witnesses as well as Lallubhai. He has denied the suggestion of the defence that as the injured witnesses had given other names, he had not mentioned the names in the certificates. He has further stated that he mentioned the names as given by the patients-injured and if there are more names, he would write one or two names. He has further stated that first he gave treatment to the patients-injured and further details were collected by the police. In his further cross-examination, the doctor has stated the injuries sustained by PW.6, 7 & 8. He has denied the suggestion of the defence that he had created the history in order to help the prosecution. 28.1 The doctor found following injuries on the person of PW.6, Babaliben Vasantbhai Tandel:— “1. Lt.thigh – contusion mark 15 x 4 cm size, Ant. Lat-aspect M/3rd, transverserly running, reddish purple marked local tenderness, swelling. 2. Blunt injury over Lt.side back with diffused tenderness. Contusion Rt. scapula 6 x 4 cm size. Blood group is ‘B’ positive.” Following injuries were noticed on the person of Babubhai Tandel (PW.7):— “(1) Lt. Forearm: puncture wound over M/3rd Ulna with contusion 6 x 2 cm size oblique running over ulnar border. Local swelling and tenderness +, All movement with pain. No fracture. 2. Lt.lower chest wall marked swelling & contusion over Lt. 8, 9,10 ribs with reddish discoloration. Local air entry in lung normal. Clinically fracture Lt.side ribs. 3. Pt’s blood group is ‘B’ positive.” Following injuries were noticed on the person of Anand Vasantbhai Tandel (PW.8):— “Pt. Fully conscious & oriented. P.100 /mm Pupil – BERL. (1) CLW 3 x ½ cm over top of scalp frontal region transversely running. Palpable bone fragment of bone in wound suggestive of fracture. Oozing. (2) Lt.shoulder: scratch mark, left deltoid over 3 x ¼ cm with local swelling & tenderness. Fully conscious & oriented. P.100 /mm Pupil – BERL. (1) CLW 3 x ½ cm over top of scalp frontal region transversely running. Palpable bone fragment of bone in wound suggestive of fracture. Oozing. (2) Lt.shoulder: scratch mark, left deltoid over 3 x ¼ cm with local swelling & tenderness. Blood group is ‘B’ positive.” The doctor has further stated that the injured were admitted to the hospital at about 5.30 am on 7.7.1999 and they had given history that they were attacked by the other side at 2 O’clock. The doctor has also stated that a relative of the injured, namely, Lallubhai Tandel had brought them to the hospital and the doctor was informed that no treatment was taken by them. 29. Upon reading the evidence of Dr. Parimlaben Joshi (PW.10, Exh.84), who performed autopsy on the dead body of Vasantbhai, she has stated in her evidence that following external injuries were noticed on the dead body of Vasantbhai:— “(1) 8 cm x 1 cm x bone deep Incised wound – transvers over left parital region cross midline & 2 cm on Rt.side underlying bone parital bone. (2) Echymosis over lids of both eyes. (3) 2 cm x 1 cm x bone deep CLW over frontal region of scalp midline near hairline oblique. Depressed fracture of frontal bone underlying. (4) 2" x 2" abrasion over R leg anterior asp – upper 1/3rd. (5) Fracture of M3 shaft of Rt. humerus with small punctured wound ½ cm x ½ cm x bone deep over lat asp M3 Rt upper arm.” She also found following internal injuries upon the body of the deceased:- “Huge haematoma over frontal – both paritals & occipital region. Linear fracture of both parital bones – Transvers outer table cut – corresponding injury No. 1 column 17. Depressed fracture of frontal bone 1 cm deep. Fracture line goes upto Rt.eyebrow. Posteriorly over Lt. Parital bone. Join to above fracture. One line goes laterally on Rt. Side over frontal bone. Extradural, subdural, subarachnoid haemorrhage present. Crush injury over frontal lobe about 2 cm diameter 2 1/2 cm deep.” She has stated that the injuries caused to the deceased were possible by weapons like stick, iron rod, axe. She has also opined that the death of the deceased must have occurred before 6 to 12 hours of the postmortem. Extradural, subdural, subarachnoid haemorrhage present. Crush injury over frontal lobe about 2 cm diameter 2 1/2 cm deep.” She has stated that the injuries caused to the deceased were possible by weapons like stick, iron rod, axe. She has also opined that the death of the deceased must have occurred before 6 to 12 hours of the postmortem. According to her, the cause of death is due to shock and haemorrhage due to intra-cranial haemorrhage & multiple fractures of skull bones. In her cross-examination, she has stated that the opinion was given on the basis of rigor mortis. She has denied the suggestion of the defence that rigor mortis sets in after 6 to 12 hours of the death, but, she states that it sets in after 3 to 6 hours of the death. She has also admitted that it is difficult to give the exact time of the occurrence on the basis of rigor mortis. In her further cross-examination, we find that she has clearly narrated the manner in which the injuries found on the body of the deceased would occur, on the basis of medical science. 30. The prosecution has examined the Executive Magistrate Mr. A.K.Mehta as PW.12 at Exh.90, who recorded the statements/dying declarations of the three eye witnesses. In his evidence, we find that on the intimation received from the police station officer of Jalalpore Police Station, he went to the hospital of Dr. Parmar, situated at Navsari and recorded the statements of three eye witnesses, namely, Babaliben, Babubhai and Anand (i.e. PW. 6, 7 & 8 respectively). In his cross-examination, we find that he has clearly stated what exactly was narrated by the three eye witnesses, whose statements were recorded by him. 31. The prosecution has also examined Dr. Rajeshbhai Balvantbhai Desai as PW.13 at Exh.93, who treated the three eye witnesses and carried out X’ray of the injuries received by those eye witnesses. In his cross-examination, however, we find that nothing substantial has been culled out by the defence. 32. The prosecution has examined I.O. Mr. Lalsinh Jitsinh Solanki as PW.15 at Exh.114. Rajeshbhai Balvantbhai Desai as PW.13 at Exh.93, who treated the three eye witnesses and carried out X’ray of the injuries received by those eye witnesses. In his cross-examination, however, we find that nothing substantial has been culled out by the defence. 32. The prosecution has examined I.O. Mr. Lalsinh Jitsinh Solanki as PW.15 at Exh.114. Upon reading his deposition, we find that he has indicated the manner in which the intimation regarding the crime having been committed was received by Jalalpore Police Station on 7.7.1999 and has further stated how the investigation, including recording of statements of the witnesses, preparation of panchnama of scene of offence, inquest panchnama etc., had been carried out by him. This witness was subjected to cross-examination and he has denied certain suggestions made by the defence. He has further stated in his cross-examination that it has not come in evidence on record that accused No. 1 used wooden log. In his further cross-examination by the defence, we find that this witness has stated that PW.8 (Anand) has not stated that surrounding lights were on. He has further stated that PW.8 has not stated in his statement that he saw the accused from the window and that he also saw weapons lying on the otla. He has further stated that it is true that PW.8 (Anand) saw the accused for the first time when the door was opened. He has also stated that PW.8 (Anand) stated in his statement that accused pushed his deceased father aside and his father was lying there in unconscious state. 33. Upon perusing the Serological Report (Exh.119), we find that the human blood group of the deceased was “B”. We also find that the group of bloodstains found on the soil collected from the scene of offence as well as on the clothes of the deceased and weapons was also human blood group “B”. 34. The sum total of the above discussion is that accused Nos. 1, 2, 3, 5, 6, 7 & 8 went to the house of the victims at 2 O’clock in the early morning. They all were armed with deadly weapons [viz. pestle, iron rods, stick, axe etc.] and they forced themselves into the house by breaking open the door of the house of the deceased and thereafter committed assault. 1, 2, 3, 5, 6, 7 & 8 went to the house of the victims at 2 O’clock in the early morning. They all were armed with deadly weapons [viz. pestle, iron rods, stick, axe etc.] and they forced themselves into the house by breaking open the door of the house of the deceased and thereafter committed assault. This incident had its roots in an earlier incident that occurred in the previous evening of 6.7.1999 where accused Nos. 2 & 3 had assaulted deceased Vasantbhai Tandel in the market. The fact that accused Nos. 1, 2, 3, 5, 6, 7 & 8 went to the house of the deceased at 2 O’clock in the early morning, the fact that they all were armed with deadly weapons and the fact that they broke open the house of the deceased and committed assault, would leave no room for any imagination or presumption about their common object. The manner in which the assault is committed, nature of injuries caused and the weapons used, would also indicate that they were acting in furtherance of their common object of causing death of deceased Vasantbhai. The intention and knowledge, both, can be inferred from their conduct. This leads us to the conclusion that accused Nos. 1, 2, 3, 5, 6, 7 & 8 had formed an unlawful assembly, the common object of which was to cause death of Vasantbhai Tandel and that they were acting in furtherance of their common object. From the deposition of the three eye witnesses, we find that all the three eye witnesses are injured witnesses. As per the medical evidence on record, the prosecution has been able to establish the fact that all the three eye witnesses received injuries in the same incident, which took place in the house of deceased Vasantbhai at 2 O’clock. As regards the contention raised by the appellants regarding veracity of the oral testimony of PW.6-Babaliben, we find that the version of PW.6 is natural. It has come on record that PW.6-Babaliben herself was injured on vital parts of her body and was hospitalized at Navsari. As per her evidence, the incident occurred at 2 O’clock in the night wherein all major members of the family and deceased Vasantbhai were severely injured. In such circumstances, therefore, the foremost reaction would be to rush to the hospital for getting treatment as early as possible. As per her evidence, the incident occurred at 2 O’clock in the night wherein all major members of the family and deceased Vasantbhai were severely injured. In such circumstances, therefore, the foremost reaction would be to rush to the hospital for getting treatment as early as possible. It has come in evidence on record that Krushnapur is situated only 30 Kms away from Navsari and mere going to the elderly person of the family staying at Navsari would not amount to an unnatural behaviour on the part of the witnesses. As per the evidence, the deceased as well as the injured persons were brought to the hospital of Dr. Parmar situated at Navsari at 5.30 am on 7.7.1999 and, therefore, the immediate corollary would be the treatment first. Therefore, the allegation that the FIR was lodged by PW.6, Babaliben, after 5 hours of the incident does not create any doubt about the veracity of the version of this witness. No inference can be drawn that it was after consultation. Some dialogue is bound to be there in such a situation when there is time-lag between the occurrence and lodging of FIR, but cannot be termed as a consultation or deliberation. From the evidence, it transpires that the accused-appellants broke open the door of the house, as aforesaid, and assaulted upon the family members at wee hours. The FIR lodged by PW.6 on the same day of the occurrence and the dying declarations in the form of statements of the injured eye witnesses recorded by the Executive Magistrate, establish the involvement of the appellants-accused in the commission of the crime. We do not find any embellishment or exaggeration in the oral testimony of this witness as far as the incident in main is concerned. Even in her deposition before the Court, PW.6, first informant, has clearly supported the case of the prosecution in toto. A close look at the cross-examination would only show that no question is put to the witness on actual occurrence. And thus, that part of evidence has gone unchallenged. We, therefore, find the ring of truth in her testimony and the same does not raise any reasonable doubt even so far as presence of accused Nos. 5, 6, 7 & 8 is concerned. This witness has clearly stated the manner in which the incident had happened and has attributed individual role played by accused Nos. We, therefore, find the ring of truth in her testimony and the same does not raise any reasonable doubt even so far as presence of accused Nos. 5, 6, 7 & 8 is concerned. This witness has clearly stated the manner in which the incident had happened and has attributed individual role played by accused Nos. 1, 2, 3, 5, 6, 7 & 8. Similarly, the other eye witness PW.7, Babubhai Tandel, aged 80 years, who happens to be the father of the deceased, has also supported the case of the prosecution. This witness has also received injuries on the vital parts of his body and has clearly narrated the manner in which the appellants-accused Nos. 1, 2, 3, 5, 6, 7 & 7 forcibly entered into the house of the deceased at wee hours and assaulted upon all the four family members. We also find ring of truth in the oral testimony of this witness. 35. The third eye witness Anand (PW.8) has also supported the case of the prosecution and only because he is relative of the deceased, it cannot be inferred that he has wrongly involved accused Nos. 5 to 8. 36. We do not find any embellishment or exaggeration in the version of these three eye witnesses. We find that the prosecution has been able to establish the charges levelled against the appellants-accused Nos. 1, 2, 3, 5, 6, 7 & 8. On the contrary, there is no cross-examination by the defence so far as the actual occurrence of the incident is concerned. Recording of FIR after reaching at the hospital at Navsari is natural. At this juncture, it would be necessary to refer to the judgment of the Hon’ble Apex Court in the case of State of U.P. vs. Anil Singh, AIR 1988 SC 1998 . In para-15 of the judgment, the Hon’ble Apex Court has observed as under:— “15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.” 37. From the oral testimonies of all the three eye witnesses, we find that all the three witnesses have supported the case of the prosecution in so far as the incident in main is concerned and embroidery, if any, would not in any manner establish that the prosecution has not been able to prove the guilt at its hilt. The learned trial Judge has rightly come to the conclusion that the prosecution has been able to prove the charges against the appellants-accused Nos. 1, 2, 3, 5, 6, 7 & 8. 38. The contention raised on behalf of the appellants that the accused Nos. 5 to 8 were staying at Navsari situated at a distance of 30 Kms from the place of incident and, therefore, their presence at the place of incident at village Krishnapur was unnatural and that they would not be available at 2 pm at Krishnapur and thus, they have been wrongly roped in, is rightly not accepted by the trial Court. From the evidence, it transpires that in the previous late evening at 8.00 hours, accused Nos. 2 & 3 assaulted upon the deceased with deadly weapon and as the same was left incomplete, appellants-accused Nos. 1, 2, 3, 5, 6, 7 & 8, who are close relatives, entered the house of the deceased in furtherance of their common object and intention and assaulted upon the deceased as well as the injured witnesses. On critical examination of evidence of PW.6, 7 & 8, presence of accused Nos. 1, 2, 3, 5, 6, 7 & 8, who are close relatives, entered the house of the deceased in furtherance of their common object and intention and assaulted upon the deceased as well as the injured witnesses. On critical examination of evidence of PW.6, 7 & 8, presence of accused Nos. 1, 2, 3, 5, 6, 7 & 8 cannot be doubted and the prosecution has been able to establish the common object of accused Nos. 1, 2, 3, 5, 6, 7 & 8 and the learned trial Judge has, therefore, rightly convicted them. 39. Learned Advocate Mr. Pandya for the appellants placed reliance on the decision of the Hon’ble Apex Court rendered in the case of Sikandar Singh & Ors. vs. State of Bihar (Supra) and invited attention of this Court to the observations made in paragraphs 14, 15, 16 & 18, which run as under:— “14. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. 15. In Mizaji and Anr. vs. State of U.P.10, explaining the scope of Section 149 IPC, this Court had observed thus : “This section has been the subject matter of interpretation in the various High Courts of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under S. 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression ‘know’ does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of S. 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all. There is a great deal to be said for the opinion of Couch, C.J., in Sabed Ali’s case, 20 Suth WR Cr 5 (Supra) that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of S. 149, Indian Penal Code cannot be ignored or obliterated. That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of S. 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of S. 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. 16. A ‘common object’ does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The ‘common object’ of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. 18. In Pandurang Chandrakant Mhatre and Ors. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. 18. In Pandurang Chandrakant Mhatre and Ors. vs. State of Maharashtra12, of which one of us (R.M. Lodha, J.) was the author had, however, relying on Masalti ( AIR 1965 SC 202 ) (Supra) and a few other decisions of this Court, cautioned that where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 IPC, only those accused, whose presence was clearly established and an overt act by any one of them was proved, should be convicted by taking into consideration a particular fact situation.” 39.1 Placing reliance on the aforesaid decision, Mr. Pandya pleaded that the provision of Section 149 IPC has essentially two ingredients viz.(i) the commission of an offence by any member of an unlawful assembly and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Mr. Pandya further submitted that the presence and overt act by particular accused has to be established by the prosecution. As discussed earlier, it is clearly evident from the depositions of the three eye witnesses (viz. PW. 6, 7 & 8) that all the appellants were very much present at the time of commission of the offence and a specific role has been attributed to them. Therefore, the ratio laid down by the Hon’ble Apex Court in the above-referred decision would not be applicable to the facts of the present case. 39.2 Learned Advocate Mr. Pandya has also relied on the decision of the Hon’ble Apex Court rendered in the case of Shivjee Singh & Ors. vs. State of Bihar (Supra) and invited the attention of this Court to the observations made by the Hon’ble Apex Court in paragraphs 8, 9 & 10, which run as under:— “8. A plea which was emphasized by the appellants relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. A plea which was emphasized by the appellants relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 have to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly. 9. ‘Common object’ is different from a ‘common intention’ as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The ‘common object’ of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti. 10. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word ‘knew’ used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of ‘might have been known’. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first part, but offences committed in prosecution of the common object would be generally, if not always, be within the second part, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others vs. State of Mysore, AIR 1956 SC 731 .)” 39.3 Mr. Pandya has further relied upon the decision of the Hon’ble Apex Court rendered in the case of Pandurang Chandrakant Mhatre & Ors. vs. State of Maharashtra (Supra) to buttress his contention that the prosecution has not been able to establish the common object. However, on appreciation of evidence on record, we find that the prosecution has successfully established its case of common object through the oral testimonies of the eye witnesses, as discussed earlier. 39.4 Relying upon the decision of the Hon’ble Apex Court rendered in the case of Dharam Singh & Ors. vs. State of Punjab, (Supra) Learned Advocate Mr. Pandya submitted that in the instant case also there are contractions, omissions and embellishment in the depositions of the witnesses. 39.4 Relying upon the decision of the Hon’ble Apex Court rendered in the case of Dharam Singh & Ors. vs. State of Punjab, (Supra) Learned Advocate Mr. Pandya submitted that in the instant case also there are contractions, omissions and embellishment in the depositions of the witnesses. He further submitted that the presence of accused Nos. 5, 6, 7 & 8 at the place of the incident is highly doubtful. He also submitted that the facts of the case on hand are similar to the facts of the case under reference. Having examined the evidence on record, more particularly the testimonies of PW.6 (Babaliben), PW.7 (Babubhai) and PW.8 (Anandbhai), presence of the accused is well established and we do not find any omission or contraction or embellishment in the depositions of the said witnesses. 40. Having carefully examined the evidence on record and more particularly, the oral testimonies of the eye witnesses, we find that the prosecution has been able to prove that accused Nos. 1, 2, 3, 5, 6, 7 & 8 formed an unlawful assembly, forcibly entered the house of the deceased as aforesaid and they definitely shared common object of causing fatal injuries to the deceased. The evidence on record clearly establishes the conduct of each of the members of the unlawful assembly at the time of assault. Thus, the ratio laid down by the Hon’ble Supreme Court in above-referred to cases and relied upon by the Learned Advocate for the appellants in support of his submissions, is not applicable to the facts of the present case. Therefore, the Sessions Court has rightly convicted the accused Nos. 1, 2, 3, 5, 6, 7 & 8 for the offences punishable under Section 302 read with Sections 143, 147, 148, 149 IPC. 41. The defence of alibi which is taken by the appellants-accused, more particularly accused Nos. 5 to 8, has to be specifically pleaded and from the evidence on record, as discussed hereinabove, the prosecution has been able to establish the fact that accused Nos. 5 to 8 were present at the time of commission of crime and had abetted accused Nos. 1 to 3. Merely because they were staying at a distance of 30 kms from the scene of offence, would not ipso facto absolve them from the charges levelled against them. 5 to 8 were present at the time of commission of crime and had abetted accused Nos. 1 to 3. Merely because they were staying at a distance of 30 kms from the scene of offence, would not ipso facto absolve them from the charges levelled against them. 41.1 The judgment in the case of Jayantibhai Bhenkaarbhai vs. State of Gujarat, reported in AIR 2002 SC 3569 relied by the Learned Advocate for the appellants would not apply to the facts of the present case. As aforesaid, there is no evidence on record to show that presence of accused Nos. 5 to 8 is in any manner unnatural. It is a matter of fact that accused Nos. 5 to 8 are sons-in-law of accused No. 1 and the evidence on record clearly reveals the role played by them. Only because they have not received any injury, it cannot be inferred that they have been wrongly implicated in the offence. The distance between Krishnapur and Navsari is only 30 kms. We find that the prosecution has proved the guilt of accused Nos. 5 to 8 to its hilt. Accused Nos. 5 to 8 have not adduced any evidence for taking the defence of alibi. The evidence on record leave no doubt about the presence of accused Nos. 5 to 8 at the time of occurrence. The plea of alibi is without any merits, as presence of the accused Nos. 5 to 8 on the date of the incident at the place of occurrence is conclusively proved. 42. According to us, the prosecution has proved its case by examining three eye witnesses and on reappreciation of evidence, we find that their evidence is cogent, reliable, consistent and trustworthy. Their evidence inspires confidence. The learned Judge of the trial Court has rightly placed reliance on such type of dependable, credible and trustworthy evidence. 43. In view of what is discussed earlier, the prosecution has proved its case against accused Nos. 1, 2, 3, 5, 6, 7 & 8 beyond reasonable doubt. There is no infirmity in appreciation of evidence made by the learned Judge of the trial Court and, therefore, the contentions taken by the Learned Advocate for the appellants-accused are devoid of merits and, therefore, Criminal Appeal No. 1388/2005 preferred by accused Nos. 1, 2, 3, 5, 6, 7 & 8 is devoid of merits and the same deserves to be dismissed. 1, 2, 3, 5, 6, 7 & 8 is devoid of merits and the same deserves to be dismissed. 44. So far as Criminal Appeal No. 2125/2005 filed by the State against the acquittal of accused Nos. 4, 9 & 10 recorded by the trial Court is concerned, it may be stated that the learned trial Judge, on proper appreciation of evidence on record, has come to the conclusion that the prosecution has not been able to prove the charges levelled against accused Nos. 4, 9 & 10. The trial Court, after specifically considering the dying declarations given by the injured witnesses (PW.6, 7 & 8) has rightly come to the conclusion that in none of the statements made before the Executive Magistrate, any role is attributed to accused Nos. 4, 9 & 10. The learned Judge has, thus, rightly held accused Nos. 4, 9 & 10 not guilty for the offences. After all, appeal preferred by the State is an acquittal appeal. It is well settled principle of law that in acquittal appeal, the Court should be very slow to interfere with the finding arrived at by the lower Court. This Court can certainly alter the judgment of acquittal provided the finding is palpably wrong, manifestly erroneous or demonstrably unsustainable. We do not find any such infirmity in appreciation of absence of evidence with regard to injuries caused by accused Nos. 4, 9 & 10. We have taken into consideration the principles laid down by the Hon’ble Supreme Court in case of Ajit Savant Majagval vs. State of Karnataka reported in 1997 SCC (Cri.) 992 with regard to appreciation of evidence by the appellate Court while dealing with an acquittal appeal. We are unable to agree with the submission made by learned A.P.P. Mr. Sejpal for the State that the learned Judge of the trial Court has erred in acquitting the accused Nos. 4, 9 & 10. We have found that the learned Judge of the trial Court has given cogent, convincing and plausible reasons for coming to the conclusion and, therefore, we cannot substitute our own decision by reappreciating the same evidence. When two view are possible, the view which is favourable to the accused should be adopted while dealing with and hearing of an acquittal appeal and, therefore, we do not find any substance in the appeal preferred by the State. When two view are possible, the view which is favourable to the accused should be adopted while dealing with and hearing of an acquittal appeal and, therefore, we do not find any substance in the appeal preferred by the State. The appeal preferred by the State is devoid of merits and the same is required to be dismissed. 45. For the foregoing reasons, Criminal Appeal No. 1388/2005 filed by accused Nos. 1, 2, 3, 5, 6, 7 & 8 is hereby dismissed and the judgment and order of conviction and sentence dated 4.6.2005 rendered by the learned Additional Sessions Judge, FTC-2, Navsari, in Sessions Case No. 151/1999, is hereby confirmed. 45.1 It may be noted that conviction of accused No. 1, Mohanbhai Chhipkabhai Tandel is confirmed. However, in view of the Notification issued by the State of Gujarat in its Home Department bearing No. JLK/822010/360(1)/J, dated 29.04.2010, he has been granted remission and he has been released from jail on 1.5.2010, on the occasion of “Swarnim Jayanti Celebration” on completion of 50 years of formation of Gujarat State, in view of the provisions of Article 161 of the Constitution of India, as accused No. 1 is aged 65 years and he has undergone sentence of 5 years & 2 months. 45.2 Original accused Nos. 5, 6, 7 & 8 are on bail and in view of this judgment, their bail bonds shall stand cancelled. Accused Nos. 5, 6, 7 & 8, namely, Ashokbhai Naranbhai Tandel, Devjibhai Jivanbhai Tandel, Naginbhai Somabhai Tandel and Dolatbhai Naranbhai Tandel respectively are hereby directed to surrender to jail on or before 13.07.2011. 46. Criminal Appeal No. 2125/2005 filed by the State challenging acquittal of accused Nos. 4, 9 & 10 is hereby dismissed. Their bail bonds shall stand cancelled.