JUDGMENT Kaushal Jayendra Thaker, J. 1. Criminal Appeal No. 2875 of 2008 is preferred by appellant-original accused No. 2, Criminal Appeal No. 2876 of 2008 is preferred by appellant-original accused No. 3 and Criminal Appeal No. 2687 of 2008 is preferred by appellant-original accused No. 1 under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 8-9-2008 passed by the learned Addl. City Sessions Judge, Court No. 4, in Sessions Case No. 53 of 2008, whereby, the learned trial Judge has convicted the present appellants-original accused Nos. 1, 2 and 3 under Sec. 302 read with Sec. 34 of I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 20,000/- each, in default, to undergo further S.I. for one year. The appellant-original accused Nos. 1 and 2 are directed to pay the compensation of Rs. 2,50,000/- each, to the wife and children of the deceased Rakeshbhai Budhalal Modi till the period of 30 days from the date of judgment and order and the amount of fine paid by accused No. 3 is ordered to be given to the wife and children of the deceased, which is impugned in these appeals. 1.1. The brief facts of the prosecution case is that the accused No. 1-Devang Shaileshbhai Sheth and deceased Rakesh B. Modi both were dealing with the professional business of the stamp vendor having their establishment at Gheekanta. The accused No. 1-Devang Shaileshbhai Seth was having outstanding amount of Rs. 4,50,000/- to be paid by deceased Rakesh B. Modi. It is the case of the prosecution that the deceased Rakesh B. Modi was inclined to pay the outstanding amount of Rs. 4,50,000/- to accused No. 1. In order to get money refund and in alternative in order to eliminate the deceased Rakesh B. Modi, the accused No. 1-Devang Shaileshbhai Sheth, accused No. 2-Pragnesh @ Pako Harshadbhai Darji, accused No. 3-Anil @ Anno Lalabhai Purabia and Bharat @ Kalu Anandbhai Marathi entered into criminal conspiracy and in furtherance of their criminal conspiracy accused No. 1-Devang Shaileshbhai Seth and accused No. 2-Pragnesh @ Pako Harshadbhai Darji had been to the house of deceased Rakesh B. Modi at opposite Hargovind's Pole, Gheekanta, Ahmedabad. The accused No. 1-Devang Shaileshbhai Sheth and accused No. 2-Pragnesh @ Pako Harshadbhai Darji both were occupying and having a new Maruti Car of Swift model went to the house of deceased Rakesh B. Modi. The deceased Rakesh B. Modi was present in his house along with his family members namely Ashitaben, Avniben Modi, and Sumanben Modi. It is further case of the prosecution that the accused No. 1-Devang Shaileshbhai Sheth and accused No. 2-Pragnesh @ Pako Harshadbhai Darji called upon the deceased Rakesh Modi. They had talked for a short while and all the three i.e. accused No. 1, accused No. 2 and deceased Rakesh Modi had left in Maruti Car Swift model under the pretext that they were going to satisfy the amount of Rs. 40,000/- to Girish Patel, stamp vendor. 1.2. It is further case of the prosecution that on that day the deceased Rakesh Modi was to go to hospital along with his wife. However, he was persuaded by accused No. 1 and 2 to go with them. The deceased Rakesh B. Modi went along with them but did not return during the entire day. 1.3. It is the case of the prosecution that at about 10-30 hours Avniben received a telephonic message from deceased Rakesh B. Modi who was inquiring as to whether Ashitaben had gone to the hospital or not, and thereafter, there had been no communication with the Phone No. 9898028618 belonging to Rakesh B. Modi, the deceased. It is further case of the prosecution that thereafter mobile phone of Rakesh B. Modi was reported to be switched off. Thereafter, the father of the deceased Budhalal Modi and the family members of the deceased contacted accused No. 1-Devang Sheth on phone wherein it was informed and replied by accused No. 1 that the deceased Rakesh Modi had left them by taking Rs. Thereafter, the father of the deceased Budhalal Modi and the family members of the deceased contacted accused No. 1-Devang Sheth on phone wherein it was informed and replied by accused No. 1 that the deceased Rakesh Modi had left them by taking Rs. 40,000/- in front of multi-storied building at Lal Darwaja and had left for hospital by hiring auto rickshaw and till then whereabouts of deceased Rakesh B. Modi could not be noticed, and therefore, Manoj B. Modi was informed who returned in the evening and was appraised about the non-returning of deceased Rakesh B. Modi and accordingly, he has contacted with accused No. 1-Devang who informed that he i.e. Devang, Pragnesh accused No. 2 and Rakesh (deceased) had been to Girish Patel for making payment but as Girish Patel was not available at his residence they returned back and Rakesh left at Lal Darwaja and the deceased Rakesh had gone to the hospital by hiring auto-rickshaw. Being not satisfied with the explanation and information given by accused No. 1, Manoj B. Modi has approached Karanj Police Station and lodged the information on 27-7-2007 stating, inter alia, that the deceased Rakesh B. Modi had lastly left the house in the company of accused Nos. 1 and 2 but he has not returned till the time of lodging information. 1.4. It is further case of the prosecution that Rupabhai Vashrambhai Parmar was serving as P.S.I. at Kalol Taluka Police Station and at 15-30 hours he received an information that dead body of the male person is lying in sub-canal of Narmada canal, and therefore, in response to the information received by him, at the instance of Sarpanch Umedji Galaji Thakor, he registered the inquiry for unnatural death vide accident death case No. 163 of 2007. The inquest panchnama came to be drawn and dead body was forwarded to the Medical Officer of the Municipal hospital at Kalol for conducting post-mortem along with the letter of request. 1.5. It is further case of prosecution that whereabouts of deceased Rakesh B. Modi was not known but during the course of inquiry conducted by the friends and relatives of the deceased especially Manojbhai B. Modi, it was apprehended that the accused Nos. 1.5. It is further case of prosecution that whereabouts of deceased Rakesh B. Modi was not known but during the course of inquiry conducted by the friends and relatives of the deceased especially Manojbhai B. Modi, it was apprehended that the accused Nos. 1 and 2 have eliminated the deceased, and therefore, F.I.R. was lodged by Manojbhai B. Modi on 28-7-2007 showing apprehension that his brother must be confined by accused persons in order to extort money. 1.6. The appellants-accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was laid against the present appellants. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 53 of 2008. 1.7. Thereafter, the Sessions Court framed the charge below Exh. 4 against the appellants for commission of the offence under Sees. 302, 364A, 365, 342, 328, 201 and 34 of I.P.C. and under Sec. 135 of the Bombay Police Act. The present appellants have not pleaded guilty and claimed to be tried. 1.8. To prove the case against the present appellants, the prosecution has examined the' following witnesses: 1. P.W. 1 Dr. Hitendrakumar J. Nayak Exh. 12 2. P.W. 2 Kirit Parshottamdas Parmar Exh. 15 3. P.W. 3 Jitendra Mangaji Thakor Exh. 29 4. P.W. 4 Hasmukhbhai Kantilal Soni Exh. 33 5. P.W. 5 Natvarlal Thakorlal Exh. 35 6. P.W. 6 Chandansinh Chandrasinh Chouhan Exh. 37 7. P.W. 7 Umedsinh Shivsinh Virpura Exh. 49 8. P.W. 8 Habibbhai Noormohmad Vora Exh. 41 9. P.W. 9 Bhikhabhai Govindbhai Parmar Exh. 43 10. P.W. 10 Umedji Galaji Thakor Exh. 45 11. P.W. 11 Ashita Rakeshbhai Modi Exh. 47 12. P.W. 12 Pravinisinh Ramaji Dabhi Exh. 48 13. P.W. 13 Raju Omaprakash Arya Exh. 50 14. P.W. 14 Avniben Ishwarlal Modi Exh. 53 15. P.W. 15 Dharmeshbhai Bharatbhai Dave Exh. 54 16. P.W. 16 Ramniklal Nagindas Bhagat Exh. 60 17. P.W. 17 Girishchandra Manilal Patel Exh. 62 18. P.W. 18 Upendrakumar S. Khatri Exh. 63 19. P.W. 19 Umarbhai Musabhai Malek Exh. 64 20. P.W. 20 Sumanben Budhalal Modi Exh. 65 21. P.W. 21 Tushar Hasmukhbhai Joshi Exh. 66 22. P.W. 22 Manojbhai Budhalal Modi Exh. 68 23. P.W. 23 Devdat Kuligabi Chakravarti Exh. 72 24. P.W. 24 Hiren Jayantilal Laria Exh. 73 25. 62 18. P.W. 18 Upendrakumar S. Khatri Exh. 63 19. P.W. 19 Umarbhai Musabhai Malek Exh. 64 20. P.W. 20 Sumanben Budhalal Modi Exh. 65 21. P.W. 21 Tushar Hasmukhbhai Joshi Exh. 66 22. P.W. 22 Manojbhai Budhalal Modi Exh. 68 23. P.W. 23 Devdat Kuligabi Chakravarti Exh. 72 24. P.W. 24 Hiren Jayantilal Laria Exh. 73 25. P.W. 25 Shital Mahendrabhai Pandya Exh. 74 26. P.W. 26 Dr. Bhavin S. Shah Exh. 75 27. P.W. 27 Manish Rameshbhai Raval Exh. 82 28. P.W. 28 Nilesh Jashwantsinh Raval Exh. 84 29. P.W. 29 Paragbhai P. Rohit Exh. 86 30. P.W. 30 Dilipkumar L. Bhatt Exh. 88 31. P.W. 31 Dr. Vinaybhai B. Bharwad Exh. 91 32. P.W. 32 Vikramsinh D. Gohil Exh. 93 33. P.W. 33 Indrasinh Mansinh Kumpawat Exh. 95 34. P.W. 34 Rupabhai Vashrambhai Parmar Exh. 103 1.9. The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused: 1. Letter to P.I. Kalupur Police Station Exh. 81 2. Letter to P.I. Kalupur Police Station Exh. 94 3. Report under Sec. 173 of Cr.P.C. Exh. 90 4. F.I.R. Exh. 70 5. Panchnama of place where the deceased was kidnapped Exh. 44 6. Panchnama of physical condition of accused No. 1 Exh. 30 7. Discovery panchnama relating to accused Devang Sheth Exh. 59 8. Suchipatra issued by Kalol Taluka Police Station Exh. 104 9. Application Exh. 46 10. Yadi to Executive Magistrate Exh. 105 11. Yadi to M.O. Kalol Exh. 106 12." Panchnama of place from where the dead body of the deceased was recovered Exh. 25 13. Inquest panchnama Exh. 26 14. Certificate issued by Kalol Hospital Exh. 107 15. Panchnama of clothes of dead body Exh. 27 16. Report of Karanj Police Station Entry No. 116 of 2007 Exh. 40 17. Report of Vejalpur Police Station Entry No. 197 of 2007 Exh. 42 18. Panchnama of recovery of Maruti Exh. 38 19. Panchnama of shoes and mobile recovered from accused Devang Sheth Exh. 34 20. Panchnama of recovery of clothes of the deceased Exh. 28 21. Yadi and report of place from where Maruti was lying Exh. 96 22. Panchnama relating to Maruti in presence of F.S.L. Officer Exh. 97 23. Panchnama of physical condition of accused Pragnesh and accused Anil Exh. 61 24. Panchnama of physical condition of Bharat @ Kalu Exh. 36 25. Panchnama of recovery of clothes of the deceased Exh. 28 21. Yadi and report of place from where Maruti was lying Exh. 96 22. Panchnama relating to Maruti in presence of F.S.L. Officer Exh. 97 23. Panchnama of physical condition of accused Pragnesh and accused Anil Exh. 61 24. Panchnama of physical condition of Bharat @ Kalu Exh. 36 25. Yadi addressed to F.S.L. Exh. 98 26. Discovery panchnama relating to accused Pragnesh @ Pako Exh. 49 27. Letter addressed to Area Manager, Airtel Exh. 99 28. Certificate issued by Astha Surgical Hospital Exh. 92 29. Post-mortem Note Exh. 14 30. Muddamal Ravangi note Exh. 100 31. Receipt issued by F.S.L. Exh. 101 32. Forwarding letter, opinion of F.S.L. Exh. 102. 2. Thereafter, after examining the witnesses, further statement of the appellants-accused under Sec. 313 of Cr.P.C. was recorded in which the appellants-accused have denied the case of the prosecution. 3. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 8-9-2008 held the present appellants-original accused guilty of the charge levelled against them under Sec. 302 read with Sec. 34 of I.P.C. and convicted and sentenced the appellants-accused, as stated above. 4. We have heard learned Advocate Mr. J.M. Buddhbhatti for the appellant in Criminal Appeal No. 2687 of 2008 and Mr. Y.C. Contractor learned Advocate for the appellants of Criminal Appeal Nos. 2875 and 2876 of 2008 and Ms. C.M. Shah learned A.P.P. for the respondent-State in all the appeals. 5. The learned Advocates for the appellants have contended that the trial Court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserve to be given the benefit of doubt and they be acquitted. 6. Mr. Contractor learned Advocate for the present appellants-original accused Nos. 2 and 3 has submitted that as it felt from the Court that a chart with dates and events be given. Therefore, he sought time but as the matter was part heard and learned Advocate Mr. Buddhbhatti had began arguing the matter since yesterday and we have gone through practically all the evidences, the learned Advocate Mr. 2 and 3 has submitted that as it felt from the Court that a chart with dates and events be given. Therefore, he sought time but as the matter was part heard and learned Advocate Mr. Buddhbhatti had began arguing the matter since yesterday and we have gone through practically all the evidences, the learned Advocate Mr. Contractor was requested that he may submit the same during the course of the day but he sought time which was refused by us as we were in part-heard. 7. We are not convinced by the submission made by learned Advocate Mr. Contractor, though appear to be based on Art. 21 of the Constitution as far as law of justice is concerned. As far as criminal jurisprudence is concerned, we would go by the submissions made by learned Advocate Mr. Buddhbhatti and the fact that we are first appellate Court, the question of evaluating and re-evaluating of the judgment of the trial Court is required to be done and that is why we have been persuaded by the learned Advocate Mr. Buddhbhatti to go through the entire evidence. Having considered minutely the evidence on record, oral as well as documentary evidence, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court. We have read the evidence minutely of all the 34 witnesses, more particularly, there are certain witnesses though can be said to be related witnesses of the deceased, but cannot be termed as interested witnesses and that they have said that the accused Nos. 1 and 2 went along with the deceased. The theory of last seen together as far as accused Nos. 1 and 2 is concerned, the same is amply proved. However, it is rightly been pointed out by learned Advocate Mr. Buddhbhatti that in catena of decisions it has been held that in a case of circumstantial evidence only the theory of last seen together cannot be the basis for conviction. Learned Advocate Mr. Buddhbhatti has made the submissions that accused No. 1 parted with the deceased at 11-00 a.m. at Lal Darwaja. The accused No. 1 and deceased were good friends and it was the deceased who was invited to the accused and there have been no injury which have been found on the body of the accused. Learned Advocate Mr. Buddhbhatti has made the submissions that accused No. 1 parted with the deceased at 11-00 a.m. at Lal Darwaja. The accused No. 1 and deceased were good friends and it was the deceased who was invited to the accused and there have been no injury which have been found on the body of the accused. A further submission was made that the accused was a person who was driving the vehicle and it was he who had only thing incriminated with the Maruti Swift vehicle belonged to him. The chain of circumstance is not over, and therefore, he is entitled to benefit of doubt, and lastly it has been submitted that the accused is in custody since the date of commission of the so-called offence, some leniency be shown in the Section which may be applied on him. 8. Learned Advocate Mr. Contractor has contended that four people were there. It was the Court who agreed that there is no eye-witnesses as far as accused No. 3 is concerned. There is nobody who says that the chain of circumstances is over. How he came in the picture is not mentioned. The panchnama on which reliance is placed by the learned trial Judge and on the touch-stone of Constitutional mandate, he could not have been punished. Accused No. 3 is a poor person and only his clothes were handed on hut and he is convicted. It is not shown how accused Nos. 2 and 3 committed the crime. It is not the case how accused No. 3 joined accused Nos. 1 and 2. The police investigation is also faulty and how the clothes are found is not known. If the accused No. 4 is not convicted, he is on a better footing and he cannot be convicted as he had not gone to the house of the deceased. He has, however, submitted that he has relied on the written submissions made before the trial Court and the authoritative pronouncement relied on by his counter-part before the trial Court. 9. Mr. Contractor has further submitted that which accused gave which blow is not known. Accused No. 2 did not come individually at the place of the offence and he was accompanied by accused No. 1. There is no motive for accused Nos. 2 and 3 to do away with the deceased as they are not hired killer. 9. Mr. Contractor has further submitted that which accused gave which blow is not known. Accused No. 2 did not come individually at the place of the offence and he was accompanied by accused No. 1. There is no motive for accused Nos. 2 and 3 to do away with the deceased as they are not hired killer. They do not have such friendship with accused No. 1 that they will help in killing the deceased, and therefore, benefit does exists as gaps are there. Therefore, even if it is believed that there was some overt-act, benefit does exists as gaps are there. Lastly, it is contended that if this Court feels that the benefit of doubt is not given as they have not contributed in the death taking place, they should be given minimum sentence. 10. On the other hand, learned A.P.P. Ms. Shah has strongly opposed the contentions raised by the learned Advocates for the present appellants and has taken us through the F.S.L. report and has relied on the panchnamas. She has further submitted that the trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of me case as well as the material, in the form of oral and documentary evidence, produced before it, and hence, no interference is called for and all the appeals deserve to be dismissed. Learned A.P.P. Ms. Shah has relied on the decisions in the cases of (1) Vahaji Ravaji Thakore v. State of Gujarat, reported in 2004 (1) GLR 777 , (2) Rumi Bora Dutta v. State of Assam WITH Probal Dutta v. State of Assam, reported in AIR 2013 SC 2422 , and (3) Shyamal Ghosh v. State of West Bengal, reported in 2012 (7) SCC 646 . 11. It will be relevant for us to first go through the post-mortem report, which shows the following injuries on the deceased: 1. Incised wound of size 4 x 1 x 1 cm. present in middle part of forehead. 2. Abrasion with contusion of size 5x3 cm. on middle part of parital region of head, irregular shape. 3. Abrasion with contusion of size 5x4 cm. on middle part of occipital bone of head. 4. Incised wound of size 2.5 x 0.5 x 1 cm. just below right eyebrow on letral side. 5. Stab wound of size 2 x 1 x 4 cm. on middle part of parital region of head, irregular shape. 3. Abrasion with contusion of size 5x4 cm. on middle part of occipital bone of head. 4. Incised wound of size 2.5 x 0.5 x 1 cm. just below right eyebrow on letral side. 5. Stab wound of size 2 x 1 x 4 cm. present over left submendibalar region 4 cm. is going outward and laterally. 6. Stab wound of size 2 x 1 x 3 cm. present 2 cm. above the injury No. 5 and going outward and laterally on left submendibular region. 7. Stab wound of size 3 x 1 x 3 cm. present on left submedibular region 9 cm. away from midpoint of chin going outward and laterally. 8. Stab wound of size 2 x 1 x 3 cm. of front of anterior aspects of neck, which is 6 cm below the chin going slightly outward and laterally. 9. Stab wound of size 3x2, this injury going deep into neck, which is present on lower side of neck near chest on left side of injury No. 8. 10. Stab wound of size 3 x 2 x 4 cm. present on back side of neck, below hair line on middle part, on side of vertreboral colour, going straight. 11. Stab wound of size 2 x 2 x 5 cm. present on back side of neck 1 cm. below the injury No. 10 going straight. 12. Stab wound of size 2 x 2 x 4 cm. present on back side of neck lcm below the injury No. 11, going straight. 13. Incised wound of size 5x3 cm. and 10 cm. going downward and medially, muscle deep present over abdomen on lower part on left side which is 11 cm. away or left to umbilicus, horizontally. 14. Incised wound of size 3 x 1 x 1 at web space or right thumb. 15. Incised wound of size 4 x 2 x 2 cm. base of left index finger of palmer side on lateral side. 16. Contusion of size 1 x 1 cm. on tip of the third finger of right hand (ring). 17. Stab wound of size 2 x 1 x 3 cm. present on back, just right to midline, 38 cm. below the top of head, going straight. 18. base of left index finger of palmer side on lateral side. 16. Contusion of size 1 x 1 cm. on tip of the third finger of right hand (ring). 17. Stab wound of size 2 x 1 x 3 cm. present on back, just right to midline, 38 cm. below the top of head, going straight. 18. Incised wound of size 18 x 42 muscle deep present over inner side of left thigh on lower 1/3 of thigh. 12. P.W. 1-Dr. Hitendra J. Nayak Exh. 12, is possessing the M.B.B.S. degree. He has examined in all 50 dead bodies and has conducted the postmortem and has also formed an opinion of the cause of death. This witness has deposed before the Court in his deposition Exh. 12 that he had opportunity to examine dead body of the deceased on 28-7-2007. He received dead body of the deceased from Police Officer of Kalol Taluka Police Station. The dead body was subsequently identified to be of Rakesh B. Modi. He and his fellow Dr. Mahesh B. Makwana started the autopsy of the dead body on 28-7-2007 between 10-30 to 12-10 hours. Accordingly to the evidence of P.W. 1, in all, 18 injuries were found on the person of the deceased Rakesh B. Modi. Three injuries were noticed on head which were incised wound and abrasion. Four injuries were noticed on face out of which three were stab wound injuries and one was incised wound. Five injuries were noticed on neck out of which all the injuries were stab wound. One injury was noticed on abdomen. Another incised wound was noticed to have been caused on right thumb. The wounds were also noticed on right hand and left thigh. The external injuries which were noted by P.W. 1-Dr. Nayak in Column No. 17 of post-mortem Exh. 13 have caused internal injuries. The contusions were noticed on the mid-transverse region of sculf. Hairline fracture was also found on occipital parietal region of sculf of the deceased. Haemottage was also noticed in the frontal and parietal region. Subdural haemottage was also found present in the middle part of occipital region of brain. Left internal carotid artery was found to be affected because of the external injuries. This witness has arrived to the conclusion that the deceased has died because of haemorrhage and shock due to the injuries sustained over all body. 13. Subdural haemottage was also found present in the middle part of occipital region of brain. Left internal carotid artery was found to be affected because of the external injuries. This witness has arrived to the conclusion that the deceased has died because of haemorrhage and shock due to the injuries sustained over all body. 13. P.W. 1 has further expressed his opinion that all the injuries sustained to the deceased were anti-mortem in nature and they were sufficient to cause his death in ordinary course of nature. The evidence of this witness has been tested by searching cross-examination but nothing has been taken on record by which it can be said that deceased Rakesh B. Modi has not died as homicidal death. The evidence of P.W. 10-Umedji Thakor Exh. 45 along with the evidence of P.W. 34-Rupabhai Parmar Exh. 103 coupled with Exhs. 26 and 25 lends assurance to the deposition of P.W. 1. According to P.W. 10, he noticed dead body lying in the canal, and therefore, he reported the matter to Kalol Taluka Police Station vide application Exh. 46 P.W. 34 Rupabhai rushed to the place of incident and recovered the dead body of the deceased under the execution of panchnama Exh. 25 and drawn the inquest panchnama Exh. 26, and thereafter, forwarded the dead body of the deceased for conducting autopsy of the dead body. 14. If the evidence of P.W. 1-Dr. Hitendrakumar J. Nayak, Exh. 12 is assessed with the help of contents of post-mortem Exh. 13 coupled with the oral testimony of P.W. 10-Umedji Thakor Exh. 45 and P.W. 34-Rupabhai Vasrambhai Exh. 103 along with the contents of Exh. 25 panchnama and Exh. 26 inquest panchnama, it is revealed that dead body which was recovered from the sub-canal was identified to be of Rakesh B. Modi. It is further found to be proved beyond reasonable doubt that the deceased Rakesh B. Modi has not died natural death but he has passed away because of shock which arose because of the injuries sustained to his body. As this Court discussed in the earlier part of the judgment in all 18 injuries were found on the external body of the deceased corresponding to the internal injuries. Further, P.W. 1 has expressed his opinion that if any person is thrown in the water duly sustained with the injuries, injuries caused on the occipital region can be caused. As this Court discussed in the earlier part of the judgment in all 18 injuries were found on the external body of the deceased corresponding to the internal injuries. Further, P.W. 1 has expressed his opinion that if any person is thrown in the water duly sustained with the injuries, injuries caused on the occipital region can be caused. The instrument of offence article No. 27 has been shown to this witness by the prosecution. This witness has shown his agreement to the fact that the injuries appeared to the person of the deceased would have been caused by weapon like article No. 27. It is worth to mention here that article No. 27 has been sent by the Investigating Officer P.W. 33-Indrasinh Kumpavat Exh. 95 to the F.S.L. for scientific examination and upon scientific examination, it is found that incriminating article No. 27 is having blood-stained of similar group of the deceased. The age of the death is assessed by P.W. 1-Dr. Hitendrakumar J. Nayak between 18-00 hours to 30-00 hours. The intestine of the deceased was contained semi-digested food material. The post-mortem came to be conducted at 10-30 hours on 28-7-2007. If the time is calculated the death of deceased is found to be covered within time which is alleged by the prosecution. 15. The fact that serological report shows blood-stains of the deceased on the clothes of accused Nos. 2 and 3 and 1 also. We have persuaded ourselves to hold that the deceased had died a homicidal death. 16. It would be relevant for us to now decide whether all the three accused were involved in the so-called common intention. The provisions of Sees. 34 and 302 of I.P.C., reads as follows: Sec. 34 : Acts done by several persons in furtherance of common intention:- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Sec. 302 : Punishment for murder:- Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. 17. Sec. 302 : Punishment for murder:- Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. 17. As this Court has arrived to the conclusion that the deceased Rakesh B. Modi has died homicidal death, now the question remains to be adjudicated as to whether the evidence adduced and produced by the prosecution is sufficient to establish the nexus of the accused persons with the assassination of the deceased Rakesh B. Modi. 18. As against this, the case of the prosecution has been challenged by the defence on the ground that evidence of P.W. 11-Ashitaben is not found to be consistent with the case of the prosecution. She has failed to identify the accused persons before the Court. P.W. 14 and P.W. 20 has no opportunity to see the accused persons along with the deceased in the earlier hours at their residence. It is admitted by the witness P.W. 22-Manoj B. Modi Exh. 68 that when accused No. 1 was contacted he informed that the deceased Rakesh B. Modi got down from the car at Multi-storied building, Lal Darwaja, Ahmedabad for going to the hospital. By relying upon the aforesaid circumstances, it is submitted on behalf of the accused persons that since the deceased was alive and was available in the city at about 10-30 hours and he had telephonic talk with P.W. 14-Avniben Modi Exh. 53 then the accused persons cannot be held liable for the reason that they have explained that the deceased has got down from the car at Multi-storied building, Lal Darwaja at 10-30 hours. It is further submitted that the deceased might have gone or rushed to the place of incident mysteriously but the accused persons cannot be connected with the commission of crime. 19. This Court has given thoughtful consideration to the submissions advanced to this regard. P.W. 28-Nileshbhai J. Raval is serving as the Team Manager of Kiran Motors Ltd., situated at Sarkhej Gandhinagar Highway. The evidence of this witness has been relied upon by the prosecution in order to prove the fact of delivery of Maruti Swift Car in favour of accused No. 1-Devang Sheth. This witness has deposed before the Court that Maruti Car bearing engine No. G 13 BBN 374199 was delivered to accused No. 1-Devang Sheth on 21-7-2007. The evidence of this witness has been relied upon by the prosecution in order to prove the fact of delivery of Maruti Swift Car in favour of accused No. 1-Devang Sheth. This witness has deposed before the Court that Maruti Car bearing engine No. G 13 BBN 374199 was delivered to accused No. 1-Devang Sheth on 21-7-2007. The address of the owner is shown to be A-301, Kothawala Flats, Pritamnagar, Ellisbridge, Ahmedabad. This car was not having any registration number with the R.T.O. This fact has not been denied by the defence in express terms. The car has been delivered to the accused by Kiran Motors. After having paid the value of it the papers were prepared wherein the address of the accused No. 1 is shown. The address of accused No. 1 is not disputed. Looking to the contents of Exh. 85 coupled with oral testimony of P.W. 28-Nileshbhai Raval Exh. 84, this Court arrives to the conclusion that the accused Devang S. Sheth had purchased Maruti Car Swift model on 21-7-2007 bearing engine No. G 13 BBN 374199 and in the papers prepared by Kiran Motors the address of owner of the car is shown to be A-301, Kothawala Flats, Pritamnagar, Ellisbridge, Ahmedabad. 20. If the evidence of P.W. 11-Ashitaben Exh. 47, P.W. 14-Avniben Exh. 53 and P.W. 20-Sumanben Exh. 64 are evaluated together all the three witnesses as stated above have unanimously deposed before this Court that in white Mruti car Swift model wherein the accused No. 1 and 2 i.e. Devang and Pragnesh had been to their house on 27-7-2007. All the three witnesses have seen white Maruti car in front of their house and all the three witnesses have specifically deposed that the car was not having any registration number. If the evidence of all these three witnesses are evaluated it leads to the conclusion that the accused Nos. 1 and 2 had been to the house of Rakesh B. Modi in the white Maruti car Swift model. The prosecution has further relied upon the evidence of P.W. 6-Chandansinh C. Chouhan and P.W. 8-Habibbhai Vora Exh. 41 coupled with oral testimony of P.W. 33-Indrasinh Mansinh Kumpawat Exh. 95. P.W. 6-Chandansinh is a panch in whose presence the car was seized by P.W. 8-Habib Nurmohmad Vora. The prosecution has further relied upon the evidence of P.W. 6-Chandansinh C. Chouhan and P.W. 8-Habibbhai Vora Exh. 41 coupled with oral testimony of P.W. 33-Indrasinh Mansinh Kumpawat Exh. 95. P.W. 6-Chandansinh is a panch in whose presence the car was seized by P.W. 8-Habib Nurmohmad Vora. P.W. 6-Chandansinh though has not supported the case of the prosecution in toto but he has authenticated the fact that the car was seized by the police which was lying in abandoned condition in front of gate of Union Bank of India at Vasna. P.W. 8-Habib Nurmohmad Vora Exh. 41 has authenticated the fact before the trial Court that he was serving as Head Constable, Vejalpur Police Station. His duty was from 8-00 a.m. of 27-7-2007 to 8-00 a.m. of 28-7-2007. He received a message that white Maruti car Swift model is lying in abandoned condition in front of Union Bank of India, Vasna, and therefore, he rushed to the place and found that white Maruti car was parked. When the car was opened, the papers of car were lying in the car. Upon verification of the papers the car was found to be standing in the name of Devang, resident of Kothawala Flat at Paldi, and therefore, the car was seized and he submitted the report to his superior officer Exh. 42. 21. This witness has been tested by searching cross-examination. This witness has stated that he did not find any blood-stains in the Car. This witness has further admitted that he has not written any detail in the panchnama. By relying upon-these two aspects, the evidence of P.W. 8-Habibbhai Exh. 41 is argued to be doubtful and afterthought. This Court has given thoughtful consideration to this regard. Before this Court may enter merits and demerits of this case to this issue, it is worth to mention here that P.W. 33-Indrasinh Kumpawat has taken the possession of this car during the course of investigation and it has been inspected by officer of F.S.L. The rakgine of the Car was taken for scientific examination. Now the question arises that when P.W. 8-Habib Nurmohmad Vora Exh. 41 could not notice any bloodstain then how Mr. Kumpavat managed to get the blood-stains in the Car. 22. As this Court has discussed in the earlier part of the judgment that realistic approach is required to be adopted while rejecting or accepting the case of the prosecution. Now the question arises that when P.W. 8-Habib Nurmohmad Vora Exh. 41 could not notice any bloodstain then how Mr. Kumpavat managed to get the blood-stains in the Car. 22. As this Court has discussed in the earlier part of the judgment that realistic approach is required to be adopted while rejecting or accepting the case of the prosecution. Figmentation of imagination should not be allowed to desist reality. This Court cannot ignore that the Car has been seized by P.W. 8-Habib Nurmohmad Vora in the mid night of 27-7-2007 and 28-7-2007. P.W. 8 has seized this car and when he verified, it was not noticed that Devang was called upon by Karanj Police Station, and thereafter, this car has been seized by P.W. 33-Mr. Kumpavat for the purpose of investigation wherein when it was minutely examined the blood-stains were noticed which might not have been noticed by P.W. 8-Habib Nurmohmad Vora because of the night or dark or he could not have taken in abnormal incident which would have led him to examine the car in its detail account. Ultimately this car has been possessed by accused No. 1. The rakgine which was obtained before the panch witness have been forwarded by Mr. Kumpavat to F.S.L. for its scientific examination wherein blood-stains of Group A are detected thereon. The deceased Rakesh Modi is having blood Group of A. 23. If the evidence P.Ws. 6, 8, and 33 coupled with the evidence of P.Ws. 11, 14 and 20 besides the contents of panchnama Exh. 38, F.S.L. report Exh. 102 are judged independently, the aforesaid evidence is not found to be suffering from any type of infirmities warranting and causing it to be doubtful or result of imagination or the tutoring. On the contrary, the aforesaid evidence is found to be sufficient for inspiring the confidence of the Court to the effect that Maruti Car Swift model was belonging to accused No. 1-Devang Sheth which was delivered to him on 21-7-2007. The accused Nos. 1 and 2 had been to the house of deceased Rakesh B. Modi and Rakesh B. Modi along with accused No. 1 and 2 had left his house and subsequently this Car was found to be lying in abandoned condition in front of Union Bank of India, Vasna which has been seized by P.W. 8-Habib Nurmohmad Exh. 41. 1 and 2 had been to the house of deceased Rakesh B. Modi and Rakesh B. Modi along with accused No. 1 and 2 had left his house and subsequently this Car was found to be lying in abandoned condition in front of Union Bank of India, Vasna which has been seized by P.W. 8-Habib Nurmohmad Exh. 41. Upon scientific examination, this car is found to be stained with blood having similar group of deceased. The another question arises as to whether the presence of deceased Rakesh B. Modi along with accused Nos. 1 and 2 is found to be proved beyond reasonable doubt on 27-7-2007 or not. In order to prove this fact, the prosecution has placed its reliance upon the oral testimony of P.Ws. 11, 14 and 20. P.W. 11-B. Modi, P.W. 14-Avniben is the sister of deceased Rakesh B. Modi and P.W. 20-Sumanben is the mother of deceased Rakesh B. Modi. On one hand their evidence is asked to be reliable and trustworthy and on the other hand the evidence of these three witnesses is challenged to be doubtful for the reason that P.W. 11-Ashita was in the kitchen and P.W. 20-Sumanben was in the shop and P.W. 14-Avniben was at the first floor when the accused persons allegedly had been to the house, and therefore, it was not possible for these three witnesses to see the accused persons. 24. This Court as discussed in the earlier part of the judgment that every case has its own facts and circumstances, merits, demerits and surrounding and each case is required to be judged by considering the fact and circumstances of the case. By considering the law laid down by the Hon'ble Apex Court of India in Anilsingh's case (supra) that India is a country which still lives with the villages having conservative society. P.Ws. 11, 14 and 20 are female who are living with the society which is dominated by male. They are not expert persons to face litigation before the Court. Human being is prone to commit mistake. The mistake should not be intentional. If they are found to be intentional then the evidence of such witness should be excluded. But if any infirmities or inconsistencies arise before the Court because of bona fide or some unidentified fear then it should be ignored. P.W. 11-Ashitaben is the wife who has lost her beloved husband. The mistake should not be intentional. If they are found to be intentional then the evidence of such witness should be excluded. But if any infirmities or inconsistencies arise before the Court because of bona fide or some unidentified fear then it should be ignored. P.W. 11-Ashitaben is the wife who has lost her beloved husband. She was invited to identify the accused persons in open Court. She identified accused No. 1-Devang as Pragnesh and accused No. 2-Pragnesh as accused No. 1-Devang. Both the accused persons were sitting in the Court. It is true that there is mistake in identity but it is not the case that another person who is not charged has been identified as accused by the witness. She might be under Court fear. She might be having some mental state and under such mental fear or mental state if she has committed minor mistake the entire case of the prosecution cannot be brushed aside. This Court cannot ignore the timing and place from where the deceased Rakesh B. Modi was taken by the accused persons. Rakesh B. Modi was invited by the accused persons from his own house where the presence of P.W. 11-Ashitaben, P.W. 14-Avniben and P.W. 20-Sumanben is found to be quite natural. All the three witnesses are female and in the morning hours every member of the family is bound to be present, and therefore, presence of P.Ws. 11, 14 and 20 cannot be said to be doubtful and when their presence is natural and when two persons are coming to their house and calling upon male member of the family, the attention of the family is likely to be invoked and while doing so, it is quite natural that all the witnesses would like to see that who has come and with whom the member of the family is departing. It is true that P.W. 20-Sumanben was in the shop. The shop is at the place from where it was very easy for her to witness the accused persons and his son Rakesh Modi while going in the Car. 25. As discussed by this Court for the reasons stated above, this Court does not find any major contradiction, infirmities, exaggeration or embroideries in the deposition of P.Ws. 11, 14 and 20 warranting to discard their evidence in toto. On the contrary, this Court finds the evidence of P.Ws. 25. As discussed by this Court for the reasons stated above, this Court does not find any major contradiction, infirmities, exaggeration or embroideries in the deposition of P.Ws. 11, 14 and 20 warranting to discard their evidence in toto. On the contrary, this Court finds the evidence of P.Ws. 11, 14 and 20 quite natural and consistent to the case of the prosecution that the deceased Rakesh B. Modi had gone with the accused No. 1-Devang Sheth and accused No. 2-Pragnesh Darji in the Maruti Car Swift model on 27-7-2007. These three witnesses have lastly seen the deceased Rakesh B. Modi alive together with the accused Nos. 1 and 2, and thereafter, till date the deceased Rakesh Modi has not been seen alive by any person to whom he ought to have been seen. The question arises before this Court as to whether the evidence adduced and produced by the prosecution is sufficient to establish the presence of accused persons at the place of incident where dead body of the deceased is recovered. Looking to the evidence of P.Ws. 6, 8 and 33, the dead body of the deceased is recovered from the canal of Santej. Now, it is for the prosecution to prove that the accused persons along with the deceased had been near or at the canal of Santej from where dead body of the deceased is recovered. 26. In order to prove the aforesaid fact, the prosecution has placed its reliance upon the oral testimony of P.W. 32-Vikrambhai Gohil Exh. 93 along with the oral testimony of P.W. 15-Dharmeshbhai Dave Exh. 54. Besides the evidence of these witnesses, the evidence of P.W. 24-Hiren Jayantilal Baria Exh. 73 is also relied upon by the prosecution. According to the deposition of P.W. 32-Mr. Gohil after having reduced the F.I.R. in writing on 28-7-2007 he arrested the accused No. 1 and when accused No. 1 volunteered to point out the place of incident he invited panch witness P.W. 15 to authenticate the happening and according the accused No. 1 has led the I.O. to the place from where dead body of the deceased was recovered. The panchnama to this effect Exh. 54 came to be drawn. This witness has authenticated the place which was shown by the accused No. 1. It is worth to mention here that till the arrest of accused No. 1 P.W. 32-Vikramsinh Gohil Exh. The panchnama to this effect Exh. 54 came to be drawn. This witness has authenticated the place which was shown by the accused No. 1. It is worth to mention here that till the arrest of accused No. 1 P.W. 32-Vikramsinh Gohil Exh. 93 was not aware of the fact that dead body of the deceased has been recovered or discovered. The whereabouts of the deceased Rakesh Modi was not known to any one. It is for the first time when accused No. 1-Devang Sheth volunteered to point out the place where dead body of the deceased was thrown into the water after sustaining the injuries. P.W. 15 appears to be familiar with the witnesses. He is serving with the Bank where brother of the deceased Manoj Modi serves with the Bank. In cross-examination he has agreed that he was present in front of Karanj Police Station. This Court has reason to believe that perhaps this witness has volunteered to be panch because of his relation with Manoj Modi who happens to be the brother of the deceased Rakesh B. Modi, and therefore, in order to have safeguard and word of caution this Court would like to exclude his evidence and after exclusion of his evidence, the evidence of P.W. 32 Vikramsinh Gohil coupled with Exh. 59 remains on record which speaks of volume in what manner and place which has been pointed out by the accused and this place was not within the knowledge of any person including the I.O. P.W. 33-Mr. Kumpavat. It is evident from the record that Page 33 of 39 sample of blood and control sample were obtained which has been forwarded to the F.S.L.. The blood-stain was noticed by the I.O. at the place from where dead body of the deceased was recovered. Besides this, handkerchief duly stained with mud and blood was also recovered and all these articles have been sent to the F.S.L. for its scientific examination. The handkerchief was found to be stained with mud and blood having A group i.e. to say of deceased. As P.W. 15-Dharmeshbhai Dave Exh. 54 as he appears to be interested witness because of his relationship with the brother of the deceased. But the evidence of P.W. 24-Hiren Jayantilal Baria is found to be consistent with the case of the prosecution. P.W. 24-Hiren Jayantilal Baria is serving with Vodafone Cell Phone Company. As P.W. 15-Dharmeshbhai Dave Exh. 54 as he appears to be interested witness because of his relationship with the brother of the deceased. But the evidence of P.W. 24-Hiren Jayantilal Baria is found to be consistent with the case of the prosecution. P.W. 24-Hiren Jayantilal Baria is serving with Vodafone Cell Phone Company. The accused No. 1 is having Mobile Phone No. 9825129762 whereas deceased Rakesh Modi was having Mobile Phone No. 9898028618 and accused No. 2-Pragnesh is also having Mobile Phone No. 9909001983. 27. This witness has deposed on oath that Devang accused No. 1 had telephonic talk with deceased in morning hours from Mobile Phone No. 9825129762 to Phone No. 9898028618. When this talk took place the accused No. 1-Devang was found to be located in area of Swaminarayan temple, Kalupur. Further phone calls detail reveals that he was present at Santej between 10-13 to 11-41 hours. The telephonic record further reveals that accused Nos. 1 and 2 both were at Surkhej at 10-55 hours. It is further evident that Rakesh Modi had used his Phone No. 9898028618 at about 10-55 hours, and thereafter, this phone is found to be switched off and during this period, Devang and his Phone No. 9825129762 is found to be located in Vadsar area and he has stayed at Santej up to 11-41 hours. The evidence of P.W. 24 has been tested by searching cross-examination. The detail of calls is stated to be doubtful because two calls of signal some time causes mistake in determining the distance. This Court is in agreement with the submission to this regard that the towers which are installed for supply the wave of communication may commit mistake in determining the distance but mistake may be for one or two km. and it would not certainly be for number of km. The Court can take judicial notice of distance of Santej and Vadsar from Gheekanta area from where deceased was kidnapped. If the evidence of P.W. 32-Mr. Gohil along with the evidence of P.W. 24-Hiren Jayantilal Baria coupled with the details of the phone calls which are produced as part of record is assessed the presence of the accused persons along with the deceased is found to be moving within area of Santej, Vadsar and Sarkhej. Looking to the panchnama Exh. If the evidence of P.W. 32-Mr. Gohil along with the evidence of P.W. 24-Hiren Jayantilal Baria coupled with the details of the phone calls which are produced as part of record is assessed the presence of the accused persons along with the deceased is found to be moving within area of Santej, Vadsar and Sarkhej. Looking to the panchnama Exh. 59, the route which has been pointed out by the accused No. 1 is having similarity with the phone call details and the tower which has been located or it has been in the contact while following the phone either of accused No. 1 or accused No. 2 or to the deceased. 28. After having close scrutiny of the entire evidence, the following circumstances are found to be proved beyond reasonable doubt against accused Nos. 1, 2 and 3. 1. Maruti Car Swift model was used in the commission of crime which was owned by accused No. 1-Devang Shailesh Sheth. 2. The accused Nos. 1 and 2 had been to the house of deceased Rakesh B. Modi. 3. The deceased Rakesh B. Modi had gone with accused No. 1-Devang Sheth and Pragnesh Darji in Swift model Maruti Car owned by accused No. 1. 4. The deceased Rakesh B. Modi was lastly seen together alive with accused No. 1-Devang Sheth and accused No. 2-Pragnesh Darji. 5. The dead body of the deceased Rakesh B. Modi has been recovered from sub-canal of Narmada Canal, Santej. 6. The place from where dead body is recovered has been pointed out by accused No. 1-Devang Sheth. 7. The instrument of offence and clothes are recovered at the instance of accused No. 4. 8. The clothes of accused Nos. 2 and 3 are found to be stained with blood and that too of similar group of deceased Rakesh B. Modi. 29. Therefore, we are amply convinced that the accused Nos. 1, 2 and 3 were the only persons who have in their common intention and common object, taken the deceased and done him to death. The medical evidence shows that accused Nos. 2 and 3 had also injury which were borne out of this incident. The theory put forward that the deceased was separated at 11-00 a.m., besides, the story as death occurred before 18-00 hours to 30-00 hours to the performance of the post-mortem report. The medical evidence shows that accused Nos. 2 and 3 had also injury which were borne out of this incident. The theory put forward that the deceased was separated at 11-00 a.m., besides, the story as death occurred before 18-00 hours to 30-00 hours to the performance of the post-mortem report. The decisions cited by the learned A.P.P. will apply in full force in this case. Therefore, we hold that the impugned judgment and order of conviction and sentence cannot be found fault with and we are persuaded and convinced that the same is just and proper and the appeals deserve to be dismissed. 30. We are in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 31. In the result, all these appeals are dismissed. The impugned judgment and order of conviction and sentence dated 8-9-2008 passed by the learned Addl. City Sessions Judge, Court No. 4, Ahmedabad in Sessions Case No. 53 of 2008 is confirmed. R. & P. to be sent back to the trial Court forthwith. 32. However, it is clarified that life would not be till last breath and in view of the latest decision of the Apex Court, the State Government may consider the case of all the three accused for premature release as per law looking to their conduct. It is further clarified that if the compensation is not paid, the State shall enforce the same under the provisions of Sec. 357 of Code of Criminal Procedure.