JUDGMENT MR. BHASKAR BHATTACHARYA) 1. This appeal is at the instance of three convicted persons and is directed against an order dated 14th May 2007 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Palanpur, District Banaskantha in Sessions Case No. 128 of 2005 thereby holding the appellants guilty of offences punishable under sections 302 read with section 149 of the Indian Penal Code as also sections 147 and 148 of the Indian Penal Code. By the said order, the appellants were ordered to undergo life imprisonment for the offences punishable under sections 302 read with section 149 of the Indian Penal Code and also to pay fine of Rs.10,000/-each, with a further stipulation that in default of payment of the fine, they would undergo simple imprisonment for six months. No separate sentence was awarded for the offences punishable under sections 147 and 148 of the Indian Penal Code. 2. The following charge was framed by the learned Sessions Judge against the appellants:- “The original complainant of this case, Jetabhai Virmabhai Garasiya was residing in Danta taluka. The brother of the complainant Somira Virmabhai was married to your sister named Saburi and Saburi committed suicide by strangulation before six (6) years of the complaint. You all did Chadotaru (a social custom in which demand of money is made from opposite party on unnatural death) regarding the same and you wanted to take revenge socially and you all used to often say that you would take revenge by killing Somira and this was your common intention. You all formed an illegal assembly in furtherance of your this common intention and became members of the same. To succeed in the common intention of the illegal assembly, you all were armed with lethal weapons such as knife, stick and axe in Ambaji town on 13/5/2005 at 20.00 hrs and when the deceased Somirabhai Virmabhai Solanki was passing from the footpath situated from near to the compound wall of Dharmashala of Diwali Ba Gurubhavan in the town, you all created riot and attacked him with force and by inflicting knife blow on neck part and by inflicting stick blows on face and killed him by causing injury. Thereby, you have committed punishable offence under section 147, 148, 149 and 302 of the I.P.C. Therefore, I order that trial of the said charges should be conducted against you all in this Court.” 3. Thereby, you have committed punishable offence under section 147, 148, 149 and 302 of the I.P.C. Therefore, I order that trial of the said charges should be conducted against you all in this Court.” 3. The case made out by the prosecution is that on 13th May 2005, one Jetabhai Virambhai Garasiya filed a complaint before Ambaji Police Station informing that the deceased Somira Virambhai, the brother of the complainant, was working as a guard in Ambaji Mata Temple. The deceased Somira was married to Saburiben, the sister of the accused persons, who died about six years back by committing suicide. Therefore, the accused were demanding Chadotaru [a social custom in which demand of money is made from the opposite party for unnatural death] from the deceased as they wanted to take revenge socially. On the day of the incident, i.e. 13th May 2005, the accused persons formed an illegal assembly at Ambaji armed with deadly weapons in furtherance of their alleged intention to kill Somera and as Somera passed on the foot path near the wall of Diwali Gurubhavan Inn, the accused persons assaulted him with weapons like knife and stick and committed murder of Somira. 3.1 As the complainant gave the complaint before the Ambaji Police Station, an offence was registered as C.R. No. I-28 of 2005 against the accused persons and investigation of the offence was taken up, the statements of concerned witnesses were taken during the investigation, and necessary panchnamas were drawn. As there were sufficient material against the above three accused persons and two other absconding persons, viz. Samira @ Hamira Asha Garashiya Parmar and Jogabhai Galabhai Garashiya Parmar, a charge sheet for the offence was filed in the court of the learned Judicial Magistrate, First Class at Danta against the three accused persons by showing the two other accused as absconding and the said case was registered as Criminal Case No. 685 of 2005. As the case was exclusively triable by the Court of Sessions, the case was transferred to the Sessions Court under section 209 of the Code of Criminal Procedure. 3.2 The learned Sessions Judge framed charge against the accused persons, who pleaded ‘not guilty’ and claimed to be tried. 3.3 The prosecution produced the following oral evidence in support of its case. 1 Notification of prohibition to keep arms. Exh.15 2 A yadi for preparing map of the scene of offence. 3.2 The learned Sessions Judge framed charge against the accused persons, who pleaded ‘not guilty’ and claimed to be tried. 3.3 The prosecution produced the following oral evidence in support of its case. 1 Notification of prohibition to keep arms. Exh.15 2 A yadi for preparing map of the scene of offence. Exh.26 3 A forwarding letter accompanied with a map of scene of offence. Exh.27 4 Map of the scene of offence. Exh.28 5 P.M. note Exh.42 6 Report showing cause of death Exh.43 7 A yadi handing over a dead body and clothes on it Exh.44 8 A yadi handing over clothes on dead body and blood sample. Exh.45 9 Inquest Panchnama Exh.55 10 Panchnama of local place. Exh.56 11 A Panchnama of seizing clothes on dead body and blood sample. Exh.57 12 Panchnama of seizing the blood stained stones (Bela), blood stained earth, control sample. Exh.58 13 A panchnama of search of the home of the accused No.1 Exh.59 14 A panchnama of search of the home of the accused No.2 Exh.60 15 Arrest panchnama of the accused No. 1, 2. Exh.61 16 Arrest panchnama of the accused No.3 Exh.62 17 A yadi in respect of procuring revenues record Exh.63 18 A yadi in respect of procuring revenues record Exh.64 19 A yadi in respect of procuring revenues record of the land of the accused No.1 Exh.65 20 Revenue record of the land of Ashok Bhagvanji. Exh.66 21 Revenue record of the land of Savitaben Dinesh. Exh.67 22 Revenue record of the land of accused No.1 Exh.68 23 A copy of the application made to the Chief Minister by Savitaben wife of the deceased for probe by C.I.D. (Crime) Exh.90 24 Letter of the Additional Private Secretary Exh.91 25 Copy of the fax of the State Level Minister of Gujarat Government. Exh.92 26 Letter No.VSF-1105-Dha.S.-52 No. of the Home Department, Gujarat Government, Sachivalaya, Gandhinagar. Exh.93 27 A letter written to Accountant Officer (T.R.) Jamnagar by Savitaben wife of the deceased for giving information about the phone of the deceased. Exh.94 28 A letter of BSNL written in connection with the aforesaid letter. Exh.95 29 A letter written to the Additional Director General of Police, CID, Crime and Railway, Gandhinagar by Savitaben wife of the deceased. Exh.94 28 A letter of BSNL written in connection with the aforesaid letter. Exh.95 29 A letter written to the Additional Director General of Police, CID, Crime and Railway, Gandhinagar by Savitaben wife of the deceased. Exh.96 30 A letter written by the complainant and the wife of the deceased about the appointment of the government advocate Exh.97 31 A copy of the application made to the Chief Minster by Savitaben wife of the deceased for probe by C.I.D. (Crime) again. Exh.98 32 An application for getting details in respect of outgoing and incoming calls made in mobile phone of the deceased at the time of incident by the wife of the deceased. Exh.99 33 An application by the wife of the deceased to the Chief Minister for personal meeting for carrying out probe by CID crimes and about appointment of Public Prosecutor. Exh.100 34 Regi. A.D. Receipts of the applications Exhibits No.90, 96, 97, 98 sent to the concerned officers Exh.104 35 Letter No.99/06 of the public Information Officer and Deputy Superintendent of Police Jamnagar Office. Exh.105 36 Letter No. 1684 of Police Superintendent, Jamnagar Exh.106 37 Letter No. Aarabi/2358/1938 of Divisional Police Officer, Jamnagar/ Exh.107 38 Letter No.R.B/R/1897 of the Police Superintendent, Jamnagar Exh.108 39 Letter dated 04/05/05 of PSI Sheth Vadala. Exh.109 40 Charge sheet and show cause notice given to PSI Sheth vadala by the Police Superintendent M.R. Parmar Exh.110 41 Order of fine issued to PSI Sheth vadala by the Police Superintendent M.R. Parmar Exh.111 42 Letter No. 100/06 of the Office of Public Information Officer and Deputy Police Superintendent, Jamnagar. Exh.112 43 A yadi for photographs Exh.113 44 Extract of the Station Diary Entry. Exh.116 45 Extracts of the Station Diary Entry No.7 and 11. Exh.117 46 Discovery Panchnama. Exh.119 47 A yadi of receipt of photographs. Exh.123 48 Total photographs of the local place of the offence, dead body and weapons and articles. Exh.124 49 Inquest form. Exh.126 50 A yadi forwarded for conducting P.M. of the dead body and collecting clothes on the dead body and blood sample. Exh.127 51 Receipt of handing over the dead body. Exh.128 52 Yadi for registration of offence Exh.129 53 FIR Exh.130 54 Report of grave offence. Exh.124 49 Inquest form. Exh.126 50 A yadi forwarded for conducting P.M. of the dead body and collecting clothes on the dead body and blood sample. Exh.127 51 Receipt of handing over the dead body. Exh.128 52 Yadi for registration of offence Exh.129 53 FIR Exh.130 54 Report of grave offence. Exh.131 55 Preliminary report of FSL Mobile Unit, Jamnagar Exh.132 56 Demonstration Panchnama Exh.133 57 Discovery Panchnama of Hero Honda No. GJ-10-N-2664 Exh.134 58 Yadi for incorporating Section 34 of the IPC in FIR Exh.135 59 A yadi forwarded to FSL Junagadh for Muddamal analysis. Exh.136 60 Authority Certificate Exh.137 61 Dispatch Entry. Exh.138 62 Muddamal acknowledgment receipt from FSL Junagadh. Exh.139 63 Forwarding letter accompanied with analysis report of FSL Junagadh Exh.140 64 Muddamal Analysis Report Exh.141 65 A yadi for getting back muddamal after analysis Exh.142 66 A forwarding letter accompanied with report of physics department. Exh.143 67 Muddamal analysis report of FSL, Junagadh Physics department. Exh.144 68 Forwarding letter sending analysis report by the serological department of Junagadh. Exh.145 69 Analysis report of serological department of Junagadh. Exh.146 70 A yadi sent for preparing a scene of offence. Exh.147 3.4 The prosecution also produced the following pieces of documentary evidence in support of its case. Sl.No. Particulars Exh.No. 1 Complaint of complainant 14 2 Post-Mortem Note 29 3 Cause of death certificate 30 4 Police yaadi to conduct P.M. of dead-body 31 5 Police yaadi for identification parade 33, 35 6 Panchnama of identification parade 34, 36 7 Panchnama of place of occurrence 39 8 Inquest panchnama of-dead-body 40 9 Discovery panchnama of muddamal 43, 45 10 Panchnama of blood stained clothes of deceased 56 11 Index 59 12 Police yaadi sent to the Exe. Magistrate for inquest panchnama 60 13 Post-mortem requisition form 61 14 Yaadis for identification parade of accused persons 62,63,64 15 Despatch entry 65,66,67 16 F.S.L. receipt of receiving muddamal for examination 68,69 17 Receipt of handing over dead-body 70 18 Analysis report of F.S.L. 71 3.5 After the conclusion of the evidence of the prosecution, the statement of the accused persons were recorded under section 313 of the Code of Criminal Procedure wherein they have denied the allegation of the prosecution by stating that a false case had been registered against them due to animosity. The accused also produced a written ‘further statement’ to the effect that after death of Saburiben, the deceased and the complainant had demanded for their another sister, viz. Bhuriben, but the accused did not send her to them. Therefore, the complainant has kept enmity for the same and they have been falsely implicated in the incident. They have also stated in their ‘further statement’ that there was enmity between the deceased and his family members due to a murder of a person residing in Nakafali of village Ghareda and the family members of the said deceased had left from Nakafali and started residing in village Jambera. They have also stated that apart from that, after the death of their sister, Saburiben, the deceased had illicit relationship with one woman of village Cholav and due to the same, he had further enmity and some of them must have killed him but the accused are innocent in this case. They have further stated that they have neither gone to Ambaji nor have they murdered the deceased. They have neither shown any scene of offence nor shown or produced the weapon allegedly used in the offence and the police have falsely shown the seizure. 3.6 The learned Sessions Judge, at the conclusion of the trial, by the judgment impugned herein, found the appellants guilty and passed order of conviction and consequent sentence, as stated hereinabove. 3.7 Being dissatisfied, the three convicted persons have preferred this Criminal Appeal. 4. Ms. Krishna Raval, the learned advocate appearing on behalf of the appellants, strenuously contended before us that that most of the prosecution witnesses having become hostile, the learned Sessions Judge committed substantial error in convicting the appellants on the basis of evidence given by PW. No.4 and 5 claiming to be eyewitnesses. Ms. Raval further contends that it appears that they were alleged chance witnesses as in ordinary course of business, there was no occasion for them to be present at the scene of offence at the time of murder. Ms. Raval further contends that even there are conflicting version of those two persons inasmuch as one alleges that there were four accused persons while the other contends that there were five accused persons. Ms. Ms. Raval further contends that even there are conflicting version of those two persons inasmuch as one alleges that there were four accused persons while the other contends that there were five accused persons. Ms. Raval further contends that in this case, there was no legal recovery of the weapons used in the murder and, at the same time, the said weapon did not contain any blood mark. At any rate, Ms. Raval contends that no reasonable individual having regard to section 3 of the Evidence Act, would consider the evidence on record to be sufficient for holding the appellants guilty. Over and above, according to Ms. Raval, the motive behind the murder has not been proved and it is preposterous to suggest that six years after the alleged suicide of the sister of the appellants, they would take any revenge by killing their brother-in-law when admittedly they did not even file any complaint for the alleged suicide of their sister. Ms. Raval further contends that the sister of the accused had five children and in the absence of any evidence indicating that in the past the accused persons ever tried to kill him, the prosecution case made out is not believable. Ms. Raval, therefore, prays for setting aside the order of conviction and consequent sentence inflicted upon the appellants. 5. Ms. Chetna Shah, the learned Additional Public Prosecutor appearing on behalf of the prosecution, on the other hand, has supported the judgment impugned and contended that the learned Sessions Judge, who had an occasion to see the demeanour of the witnesses having believed the evidence adduced by PW. No.4 and 5, the two eyewitnesses, this Court should not interfere with the findings based on appreciation of oral evidence. Ms. Shah contends that the existence of the custom of chadotaru has not been denied by the accused persons and no such suggestion had even been given to the prosecution witnesses that such custom does not exist. Ms.Shah further contends that apart from the version of the two eyewitnesses, viz. PW. No.4 and 5, the learned Sessions Judge also took into consideration the evidence given by the son of the deceased against his maternal uncle and also the fact that the brother of the accused, on the very date of the incident, seen the accused persons in the vicinity of the place of incident and even cautioned the deceased. PW. No.4 and 5, the learned Sessions Judge also took into consideration the evidence given by the son of the deceased against his maternal uncle and also the fact that the brother of the accused, on the very date of the incident, seen the accused persons in the vicinity of the place of incident and even cautioned the deceased. At any rate, according to Ms. Shah, the learned Sessions Judge, having taken into consideration the entire evidence on record as well as the evidence given by the investigating officer regarding the course of investigation, we should not interfere with the just decision arrived at by the learned Sessions Judge. Ms. Shah further contends that the other two accused persons are still at large and such fact also indicates that the case alleged by the prosecution was a genuine one. Ms. Shah, therefore, prays for dismissal of the appeal. 6. After hearing the learned counsel for the parties and after going through the materials on record, we find that although the prosecution examined a large number of witnesses including the panch witnesses, most of them became hostile except PW. No.1 who is the complainant and the brother of the accused, PW. No.4 and PW. No.5, two persons of the locality, and PW. No.2, the nephew of the accused person who also happens to be the son of the deceased. We, therefore, proceed to consider the evidence given by the above witnesses, and the evidence given by the Investigating Officer and the Doctor who performed the post-mortem. 7. Jetabhai Virmabhai, the complainant, who is the brother of the victim, is PW. No.1. In his examination-in-chief, he has stated that the name of his elder brother is Somerabhai. The incident of this case occurred in 2005. His brother Somera was married to Saburi at Baraberi village. Somera has been murdered in the incident of this case. Somera has three daughters and two sons. Saburi, the wife of Somera, committed suicide by hanging. As Saburi died, the accused persons were coming to them for Chadetaru. That Chadetaru was about taking revenge of the death of Saburiben. They paid money for the same. Some amount remained to be paid. Therefore, the accused persons were threatening to kill Somera. 7.1 According to this witness, he went to Amblimal village in the morning on the day of the incident to attend a marriage. That Chadetaru was about taking revenge of the death of Saburiben. They paid money for the same. Some amount remained to be paid. Therefore, the accused persons were threatening to kill Somera. 7.1 According to this witness, he went to Amblimal village in the morning on the day of the incident to attend a marriage. When he came to Ambaji at four o'clock, the accused persons were roaming behind the temple of Ambaji Mata. When he came home in Ambaji, Somera was at home. 7.2 At the time of the incident, Somera was doing service as a guard in the temple of Ambaji Mata. Thereafter, he got into the jeep going to Jambera and the accused persons were sitting in front of Ambaji Dining-hall. According to this witness, he waited for Somera till 5.30 hrs. Thereafter, he left in jeep. He met Somera as he was going towards Rinchhadi village. He told Somera that his brothers-in-law had come to Ambaji; they might kill him, and he should take care of himself. Somera told him that he was on night duty in the temple, therefore he will go to the room and after wearing uniform, he will go on duty. 7.3 Thereafter, this witness went to his house in his village and Somera went to Ambaji. Thereafter, a police vehicle came to his house at 9 o'clock in the night. The police informed him that his brother Somera has been murdered. Therefore, Ravta Mona, Rupa Mana and he got into the jeep and came to Ambaji. They went in front of the Diwali Ba Dharmashala in Ambaji. The dead-body of Sumera was lying over there. Sumera had sustained injury on the right side of neck part. The person having a stall over there was inquired as to who has assaulted Sumera. The persons having stall stated that four persons have assaulted Sumera. Thereafter, he lodged complaint in Ambaji Police Station against the accused persons. He has proved the complaint and his thumb impression in the complaint. 7.4 This witness has identified the accused Hindada Asha, Bachuda Asha and Lasma Asha who were present in the Court. 7.5 According to this witness, he gave the complaint of the incident in the night. Thereafter, he went with the police to hospital. After the postmortem of the dead-body, he took the same to his home. 7.4 This witness has identified the accused Hindada Asha, Bachuda Asha and Lasma Asha who were present in the Court. 7.5 According to this witness, he gave the complaint of the incident in the night. Thereafter, he went with the police to hospital. After the postmortem of the dead-body, he took the same to his home. 7.6 In the cross-examination, this witness has stated that he was married at the village of the accused persons. He was married six years back. His wife is at his house and she goes to her parental home. He was not used to go to escort his wife back because he was afraid of the accused persons. The police came to his house at 9 o'clock at night and thereafter they reached Ambaji at 9.30 o'clock. The police informed him that his brother has been murdered. He did not ask the police as to who has murdered his brother. He asked the police as to where and at what time he has been murdered. The police informed him that murder was done at eight o'clock in the night. He did not ask the police as to how many persons were there in murdering and as to which place they were. As he asked the police, they told him that there were 4 persons in assaulting. The police also informed him that the person having stall has seen the persons who assaulted Sumera. The police asked him as to who were the four assaulters. He has denied a suggestion that as7 Saburi, the sister of the accused persons died herself, he has given the name of the accused on the basis of suspicion because of the same. 7.7 This witness further stated that he did not know that the accused Hindudabhai and Lachhmabhai go to do labour work in Ambakanta quarry. His occupation is farming. He did not know that there is a quarry of Jamlambhai in Ambakanta or that Babubhai was getting the work done through labourers in the quarry of Jalambhai. He has denied the suggestion that he did not see the accused persons near Ambaji Temple on the day of the incident. He has also denied the suggestion that the accused persons were doing labour work at the quarry of Ambakanta on the day of the incident. He has denied the suggestion that he did not see the accused persons near Ambaji Temple on the day of the incident. He has also denied the suggestion that the accused persons were doing labour work at the quarry of Ambakanta on the day of the incident. 7.8 According to this witness, he went to attend a marriage at the place of Babubhai in Amblimal village. Amblimal is 5 km far from Ambaji. His village is 7 km far from Ambaji. Five of them went to Amblimal village and they all returned together and they went to Jambera via Ambaji. They went to Jambera in jeep. They got into a jeep from Ambaji at 4 o'clock and they got down from the jeep at Rinchhadi and went walking from Rinchhadi to Jambera. He did not know as to whose the jeep it was. Conductor was not there in the jeep. Five to six persons were together in other jeep. Amblimal is situated on the road leading to Abu Road. He has admitted that there is a straight road till the turn of S.T. Depot from Abu Road to Ambaji. First, there was an old check point to R.T.O. and thereafter there was front gate of Ambaji Temple, then there was S.T. Stand and thereafter Golai. They could go to Rinchhadi village from there. 7.9 According to this witness, the persons having stall informed the police about the facts of the incident. Thereafter, the police came to his house. He has denied that he had come to know that Sumera had consumed liquor on the day of the incident. He has also denied that there is a gutter near the Diwaliben Dining Hall or that the gutter was near the compound wall. He has denied that his brother Sumero stumbled and fell into the gutter. He has denied that there was a compound wall around the Diwali Ba Dharmashala and pieces of glass have been fixed on it. He has also denied that a glass pierced into the neck part of Sumero. 7.10 This witness has further stated that five to six persons of his family came from Jareda to reside in Jambera village. If anyone was murdered in their Adivasi caste, the family members of the person who has died take revenge of the death of the person against the person who has murdered. 7.10 This witness has further stated that five to six persons of his family came from Jareda to reside in Jambera village. If anyone was murdered in their Adivasi caste, the family members of the person who has died take revenge of the death of the person against the person who has murdered. There was a street named Nala in Ghareda village. The son of Mona Dungechha was murdered eight months before the incident. He has denied that the persons of Nala were plotting to take revenge. He has also denied that they were roaming in Ambaji and Jambera village. He has denied that the persons of Nala have killed Sumera to take revenge against their family. The policemen did not tell him any such thing. He saw his brother Sumera in Ambaji near Diwali Ba Dharmashala. That place is about ten feet far from the gate of Diwali Ba Dharmashala. He went to the police station at about 10 o'clock. 7.11 According to this witness, Dharmashala of Yevla Bibi was situated opposite to Diwali Ba Dharmashala. He has admitted that Diwali Ba Dharmashala was situated on Ambaji Danta road. 7.12 This witness further stated that his brother Sumero was doing service in Ambaji Mandir since about 15 years. He was doing job as a guard. His duty was as a guard at the gate of the temple. He had to take care to see that that when the pilgrims come to pray, they maintain queue and there is no disorder. A baton was given by the temple to guards. The wife of Sumero has died before about eleven years. The elder son of Sumero was eighteen years old. As Saburi died herself, they did not have to pay revenge money to the accused persons regarding her death. He has denied that they have not paid any money to the accused persons. He has denied that the accused persons did not demand payment from them in connection with the death of Saburi. 7.13 This witness has admitted that he dictated in his complaint that as his sister-in-law committed suicide, they were willing to pay revenge money, but they [the accused] were not taking the money. He has denied that he was falsely stating that some amount was remaining to be paid by them, therefore, the accused persons were threatening Samira to kill him. He has denied that he was falsely stating that some amount was remaining to be paid by them, therefore, the accused persons were threatening Samira to kill him. He has denied that he was falsely stating that they paid revenge money. He has denied that he had stated on that day for the first time that when he got into the jeep, the accused persons were sitting near dining hall. He met his brother Sumero in Rinchhdi after they reached Rinchhdi. Somero met him immediately. He has denied that he was falsely stating that Sumero met him in Rinchhadi. He has also denied that he did not tell Sumero that his brothers-in-law have come to Ambaji, they would kill him and, therefore, he should be cautious. He has denied that Sumero did not tell him at that time that he was on night duty in the temple. Therefore, he will go to his room and wear uniform and then he will go on duty. He has denied that Sumero was not on duty on the day of the incident. 7.14 This witness has denied that he asked the police as to who has killed Sumero. He has also denied that the person having stall informed that four persons have assaulted him. He has denied that he was falsely stating that the accused persons have killed Sumero. 7.15 This witness has denied that the accused persons have not done Chadotaru regarding the death of Saburi. The accused persons were coming for Chadotaru but he has not registered police complaint regarding the same. 7.16 He has denied that he lodged a false complaint about the accused persons and he has implicated the accused persons falsely. 8. Kevlabhai Somirabhai, son of the deceased was examined as Prosecution Witness No.2. In his examination-in-chief, he has stated that the complainant Jetabhai was his uncle. His father Somera has been murdered in the incident. The incident of this case occurred about six months back. The name of his mother was Saburi. His mother had died by committing suicide by hanging. He knew the accused persons of this case. They are his mama (mother's brothers). After his mother died, the accused persons did Chadotaru and they were coming to assault his father. His father was doing service in Ambaji Mandir. His father remarried one Motliben after his mother died. His mother had died by committing suicide by hanging. He knew the accused persons of this case. They are his mama (mother's brothers). After his mother died, the accused persons did Chadotaru and they were coming to assault his father. His father was doing service in Ambaji Mandir. His father remarried one Motliben after his mother died. He, his uncle Jitabhai and all the other persons had gone to attend a marriage on the day of the incident in the morning. His father was on his duty. They came to Ambaji market from the marriage at eight o'clock in the night. They saw the accused persons at Ambaji at that time. Therefore, they hired a special vehicle and went home. They met his father on the way. His uncle told his father that his brothers-in-law of Baraberi village are in Ambaji, therefore, he should go to his job cautiously. Therefore, his father stated that he has night duty at 10.00 hr at night. Therefore, he will go to his room and wear his uniform and then he will go to the temple. Thereafter, they went home and his father went to Ambaji. When they were sleeping at night, police vehicle arrived and the police informed that his father was murdered at Ambaji. The police recorded his statement regarding this. He has identified the accused persons who were present in the Court. 8.1 In the cross-examination, this witness stated that the police came to their house at night after they went to sleep. The police came to his uncle's house. He did not have any conversation with the police. They met his father when they reached Rinchhdi. He has denied that he did not go to attend marriage on that day. He did not talk to his father. He has denied that he did not go to attend marriage and came to Ambaji market at eight o'clock in the night on that day. He has also denied a suggestion that he did not see the accused persons in the Ambaji market. 8.2 This witness has denied that he did not dictate in his police statement that they came to Ambaji market at eight o'clock in the night. He denied the suggestion that he was falsely stating that they went home by hiring a special vehicle. He has admitted that he has not dictated this fact in his police statement. 8.2 This witness has denied that he did not dictate in his police statement that they came to Ambaji market at eight o'clock in the night. He denied the suggestion that he was falsely stating that they went home by hiring a special vehicle. He has admitted that he has not dictated this fact in his police statement. He has denied that he was falsely stating the fact that his uncle told his father that persons of Baraberi have come therefore go cautiously. He has denied that his father did not tell his uncle that he was on night duty, therefore he would wear uniform at ten o'clock and he will go on duty. He has denied a suggestion that the accused persons have not murdered his father. He denied the suggestion that his father sustained injury with the glass of compound wall. 8.3 He further stated that no one of Gharela Nala Fali has come to reside in his village. He has denied that his family members committed murder in Gharela Nala Fali who came to stay in their village. He has admitted that there was revenge going on regarding the same. 8.4 This witness further stated that his uncle went to hire jeep to go to their house. He did not know as to whose jeep it was. Driver was alone in the jeep. He has denied that his uncle and he had conversation regarding the death of his father that as the accused persons are his maternal uncles, strong case has to be registered against them and they would have witnesses of their own house. He has denied that as his mother died, his uncle Jetabhai told the accused persons to get his masi (mother's sister) married with his father. He has also denied that as the accused persons said no for the same, they got his masi married to their village. His masi was married at their village. He has denied that as his masi was not married to his father, due to objection by his mama, his uncle has filed false case against the accused persons. He has also denied that he was falsely stating the fact that after his mother died, the accused persons came and did Chadotaru. He has also denied that he was falsely stating that they used to come to assault his father. He has also denied that he was falsely stating the fact that after his mother died, the accused persons came and did Chadotaru. He has also denied that he was falsely stating that they used to come to assault his father. He has also denied that he was falsely stating the fact that more than six months have passed since the murder of Somira. There were about ten to fifteen other persons in the jeep and half of them were women and children. He has also denied that he was falsely stating the fact that they went to attend a marriage in Amblimal and came back to Ambaji and hired a jeep to go to his house so as to raise witnesses and evidences. According to this witness, he went to police station after the accused persons were caught. His uncle Jetabhai was with him and Ramjibhai and Babu Vanjara were also with him. He did not meet police. Thereafter, he has stated that he did not go to the police station but his uncle alone went to police station and he did not know as to for how many times his uncle went to the police station. 9. Virabhai Somirabhai is PW. No.4. In his examination-in-chief, he has stated that he knew the deceased Somira Virma. The incident of this case took place on about 13th day of 5th month in the year 2005. The deceased was working in the Ambaji Temple. The deceased was allotted a quarter from the temple in the rest-house. 9.1 According to this witness, Somira was married at Bavabairi. The name of Somira's wife was Saburi. She committed suicide by hanging herself. Saburi died before two-three years of the death of Somira. The accused persons are brothers-in-law of Somira and he knew them. Saburi had died by hanging herself and therefore, Somira had deposited some amount and some amount was due. This amount was due as the amount of compensation. Thereafter, the accused wanted to kill Somira. The accused persons also beat him once. He was beaten by the accused persons in Ambaji bus stand. As Somira and he belonged to the same village, the accused persons beat him. 9.2 This witness stated that on the day of the incident, they had gone to attend a marriage. They went to Ambalimala village. They came on foot from the patiya of Ambalimala village. He was beaten by the accused persons in Ambaji bus stand. As Somira and he belonged to the same village, the accused persons beat him. 9.2 This witness stated that on the day of the incident, they had gone to attend a marriage. They went to Ambalimala village. They came on foot from the patiya of Ambalimala village. Nana Bhura was with him. They reached to Ambaji at about 7-00 hrs in the evening. Nana Bhura was working in the factory of Sompura. Nana Bhura had not gone to the factory for two days. Therefore, he said that he has some work at the factory and asked them to go to the factory. The factory was situated on the road leading from Ambaji to Hadad. After going to the factory they sat there for some time. Nana Bhura talked with the owner of the said factory that he would join the work on the next day onwards . Thereafter, at about 7-45 hrs in the night, both left from there and went to bus stand. The bus of their village had already left. Thereafter, they went on Danta road from where passengers get Jeeps. They reached in front of the Aavkar Hotel. There was an ice-handcart and they saw that Samira was going there. He saw Lashma Hasa and there was a stick in his hands. He gave a blow of stick at the back part of Samira. Therefore, Samira was pushed forward. Other person Joga Asha caught hold of the shirt of Samira. There were total four persons. There was a knife in the hand of Bachura Asha. He gave a blow of knife in the throat of Samira. The collar of the shirt was torn because of that. He went there to save and he came in front of them and therefore they returned. Samira fell down due to injuries sustained by the knife blow. Thereafter, they ran away towards the house. The accused persons ran to assault them and therefore, they ran away towards the jungle. Samiro was lying there and they came to know that he died there only. 9.3 This witness further stated that they were going to the house of Samira running through the jungle to inform but before them, the police reached the house of Samira. The police took their statement regarding this incident. He has eye witnessed the incident. Samiro was lying there and they came to know that he died there only. 9.3 This witness further stated that they were going to the house of Samira running through the jungle to inform but before them, the police reached the house of Samira. The police took their statement regarding this incident. He has eye witnessed the incident. 9.4 This witness identified the accused persons with their names who were in the court at present. He has also stated that Joga Gela and Samira Asha were the other accused persons and these two persons were not present in the court. 9.5 This witness also identified the shirt worn by Samira at the time of the incident and at the part of its collar, a cut mark with knife was also there. He has also identified the muddamal article No.6, knife, which was with Bachura Asha and with which he gave a blow in the right side in the throat of Sumera. He has also identified muddamal article No.4 Hoe, and muddamal article No.5, stick which the other accused persons used at the time of the incident. 9.6 In the cross-examination, this witness had denied that he has not gone to Amblimal village but has stated that they went in the Amblimal village taking persons in four to five Jeeps and some 100 to 200 persons went to Amblimal village from Jambera village. He has denied that they all together had gone to Jambera village. They two left from Amblimal village on foot at about 4-30 hrs. They came on foot up to Ambaji. They reached Ambaji at about 6-45 hrs. The factory is two km. away from Ambaji. According to this witness, they stayed in the factory for half an hour. They left from factory on foot. It might have taken half an hour when they reached the bus stand from the factory. They might have stayed for about one hour at the bus stand. From the bus stand they went to inquire for Jeep. They went there on foot. It might take about 5 minutes to reach at the place of Jeep from the bus stand. He has denied that it has not been dictated in the statement before the police that they went to bus stand and then they went to inquire about Jeep. They went there on foot. It might take about 5 minutes to reach at the place of Jeep from the bus stand. He has denied that it has not been dictated in the statement before the police that they went to bus stand and then they went to inquire about Jeep. He has denied that the fact has not been dictated that he met Nanapura Sheth in the factory. He has also denied that it has not been dictated in the statement before the police that from the Amblimal patiya they came on foot. This witness denied that he has falsely stated the fact of coming on foot to match the time of the incident. He has also denied that he was stating for the first time the fact that he reached to bus stand at 7-45 hrs. He has denied that for the first time he was stating the fact that the bus had already left. He has also denied that for the first time he was stating the fact that Samira got pushed forward. He has denied that stick was not there in the hands of Lashma Hasa. He has also denied that for the first time he was stating the fact that Joga Asha caught hold of the shirt of Samira and there were total four persons. He had dictated about four persons before the police. He has denied that he was falsely stating the fact that he had seen Bachura Asha and he gave a blow to Samira with the knife in his hand. He has denied that for the first time he was stating the fact that because of the blow the collar of the shirt got cut. He has also denied that for the first time he was stating the fact that he came in front of them and therefore, they returned. This witness has denied that for the first time he was stating the fact that they ran towards the house. He has denied that he has not dictated the aforesaid facts before the police. According to this witness, they did not meet the police there. The police immediately met them. The police inquired from him on the same day. He has denied a suggestion that he has not eye witnessed the incident and accused persons have not beaten Somera. Somera was his brother in family relation. According to this witness, they did not meet the police there. The police immediately met them. The police inquired from him on the same day. He has denied a suggestion that he has not eye witnessed the incident and accused persons have not beaten Somera. Somera was his brother in family relation. He has denied that as Somera was his brother in family relation, he was falsely stating the names of the accused persons. Somera might have run for about two-three minutes. His house was 5 km. away from Ambaji. He did not feel to go to the Ambaji police station. He has denied that the police station was only 300 ft. away from the place of incident. Some other persons were residing in the quarter in which Somera was residing and Methabhai was residing with him. He did not feel it proper to go to the quarter. He did not find it proper to go to Mithabhai in Ambaji Temple. This witness denied that the place of incident was situated in a crowded area. He was not aware of the fact that about 25 persons were living in the quarter. He has denied that he was falsely stating the fact that they ran in the jungle. 10. Prosecution Witness No. 5, Nanabhai Bhurabhai, in his examination-in-chief has stated that the deceased Somira Virma belonged to his village and he knew him. He knew the accused persons and they belonged to Baraberi village. The accused persons were brothers-in-law of Somira. The incident took place on 13th May 2005. On the day of the incident, about 20 to 25 persons of their village went to Ambalimala village at 8-00 hrs in the morning to attend a marriage. Vira Samira and he came to Ambaji at about 4-00 hrs. in evening on foot from Ambalimala village. The other persons who were with them had left earlier. After coming to Ambaji, as he was working at the place of Girishbhai Sompura and as he had gone in the marriage without telling him, he went there to say that he would join the job on the next day onwards. At that time, Vira Samira was with him. From there, they went to Ambaji bus stand but the bus for Danta had already left. From there, they came to the place where passengers get Jeeps for Danta. They stood in front of Aavkar Hotel. At that time, Vira Samira was with him. From there, they went to Ambaji bus stand but the bus for Danta had already left. From there, they came to the place where passengers get Jeeps for Danta. They stood in front of Aavkar Hotel. At that place, Samirabhai was coming on foot in front of us. He reached near the handcart of ice. At that time, Lashma Asha gave a blow of stick at the back part to Samira Virma. Therefore, Samirabhai fell on the front side. Hinduda Asha caught hold of Samira Vira by running. Juga Gala and Somira Asha also caught hold of Somirabhai. At that time, Bachura Asha inflicted a knife blow in the right side of the throat of Samira Virma. On sustaining the knife blow, blood gushed out and Somirabhai fell down due to the scuffle. They both ran to save him but as there were five persons and as they had axe, stick etc., they reached to Jambera village through jungle. Before them, the police had reached there. 10.1 According to this witness, the wife of Somira Virma had committed suicide by hanging herself. As per the custom of the society, Somira Virma deposited two lac thirty thousand rupees. In spite of that after eight years, Somira has been murdered to take revenge. At that time, three accused persons Bachura Asha, Lasma Asha and Hinduda Asha were present in the court. The accused Joga Dala and Somira Asha are not present right now. 10.2 In his cross-examination, he has stated that the deceased Somiro and he belong to the same caste and so the deceased was his brother by caste. He has denied that only five persons had gone to Amblimal village from the village. He has denied that the persons who had gone returned in one Jeep only. He has denied that he and Vira did not go to Amblimal village. He has denied that he was falsely stating the fact of coming to Ambaji from Amblimal on foot. He has denied that he has dictated such fact in his statement before the police that coming to the patiya of Amblimal village, they reached Ambaji at about 7-00 hrs. by a jeep. He talked with Girishbhai in the factory. He has denied that on the day of the incident he was on duty. He has denied that he has dictated such fact in his statement before the police that coming to the patiya of Amblimal village, they reached Ambaji at about 7-00 hrs. by a jeep. He talked with Girishbhai in the factory. He has denied that on the day of the incident he was on duty. He has denied that he was stating the fact that he and Vira Somira went to the bus stand. He has denied that he was falsely stating the fact that they stood in front of Avakar Hotel. This witness has denied that he was falsely stating the fact that the time when they were standing near Avkar, at that time, Samira was coming in front of them. Somira Virma was given a blow of stick in the back part of his head. He has denied that he was falsely stating the fact that Hindua Asha caught hold of Samira by running and Somira Asha also caught hold of Somira and at that time, Bachura Asha inflicted knife blow in the right side of the throat of Samira Virma. He has denied that he was falsely stating the fact that scuffle had taken place. He has denied that he was falsely stating that all these five persons were there and they had axe, stick etc. His statement and Vira's statement were taken by the police at the same time. 10.3 According to this witness, the police station was near the factory of Sompura. He has denied that he was falsely stating that they had gone in the jungle on foot. They went straight on Pansa road from the place of offence. The village was situated two kilometer inside, from the patiya of Pansa village. They have not gone towards Ambaji on foot by running. He has admitted that it has been dictated in his statement before the police that running towards Ambaji, they reached to Jambera village through the way of jungle. Whatever he has dictated before the police was true. What he was stating on the day he gave evidence has been said differently as time has passed. Somiro did not run at the time of the incident. He fell down. He had dictated the fact before the police that Somiro had run. According to this witness, five to six persons of their village work in Ambaji. What he was stating on the day he gave evidence has been said differently as time has passed. Somiro did not run at the time of the incident. He fell down. He had dictated the fact before the police that Somiro had run. According to this witness, five to six persons of their village work in Ambaji. Out of them, some persons live in quarters and some live in houses. This witness has denied that he was falsely stating the fact that Somira Virma had deposited two lac thirty thousand and despite the fact Somira has been murdered after eight years to take revenge. 11. PW. No.11 is Dr. Jayantibhai Ambaram Patel, who conducted the post-mortem of the dead-body of the deceased. In his examination-in-chief, he has stated that on 14th May 2005, he was on duty as medical officer in Cottage Hospital, Ambaji. At that time at 745 hrs. in the morning, the dead-body of Somirabhai Virmabhai Solanki was brought to him for the postmortem with police inquest and a yadi. 11.1 He started the postmortem of the dead-body at 10-00 hrs. and completed at 11-35 hrs. 11.2 On conducting external examination of the dead-body, this witness stated that the age of the victim was about 40 yrs. A slate coloured shirt and below it a white baniyan were worn. Khakhhe coloured pant was worn and inside it an underwear having strips was worn. Sandals made of rubber were worn in both legs. Collar of the shirt was cut at the right side. The clothes were smeared with blood. 3 to 4 c.m. long black coloured hair were on the head. Dried blood was accumulated in the head. The dead-body was cold. His physique was normal. Rigor mortis was present all over the dead-body. Postmortem lividity was seen at back part, back of chest and on both parts of hips and its colour was bluish. Appearance of the dead-body was normal, it was not swollen. Eyes were open. Pupils in the eye were dilated. Tongue was pale, mouth was open. All teeth were present. Dried blood was present on the mouth, nostrils and right ear. Dried blood was on the skin of face, neck, front side of chest and back. No injury was there on genital organ. 11.3 According to the witness, the following injuries were found on the dead-body. [1]. An oblique stab wound measuring 3 cm. All teeth were present. Dried blood was present on the mouth, nostrils and right ear. Dried blood was on the skin of face, neck, front side of chest and back. No injury was there on genital organ. 11.3 According to the witness, the following injuries were found on the dead-body. [1]. An oblique stab wound measuring 3 cm. long and 1.5 cm. wide at middle part and narrow at the ends. Its depth was 5 to 6 cm. The wound was at the right side and in the middle part. It was extending up to right side trachea by cutting muscles and vessels. Its margin was bent inward. Clotted blood was filled therein. There was a swelling on the neck around it. [2]. There was an oblique incised wound of the size 1 cm. x ½ cm. x ¼ cm. beside nose on the right side at upper lip. On external examination, no fracture was found. The above injuries were ante-mortem. 11.4 According to the witness, on conducting internal examination of dead-body, the following facts were found:- 11.5 There was no injury at the part of the head. Brain and its upper layer were normal. Wall and ribs were normal. Lung partition was normal. Trachea was cut in the size of 1.5 c.m. x 0.5 c.m. on the right side of upper part of trachea. Both lungs were normal. Heart was normal and empty. Large vessel was cut on the right side of neck. Upper layer and internal layer of the abdomen were normal. Food-pipe was normal. Stomach was normal and empty. Small intestine was normal and filled with mucus. Large intestine was normal and filled with gas. Liver was pale. Spleen and kidneys were normal. Bladder was normal and empty. Genital organ was normal. The stomach was empty. Death of deceased might have occurred twelve to eighteen hours before conducting P.M. 11.6 According to the opinion of this witness, the probable reason for death was on account of excessive bleeding and shock due to stab injury on neck. 11.7 He prepared a P.M. note regarding this and he as identified the post-mortem report and his signature on it. 11.8 He has also identified the cause of death certificate issued by him. 11.9 According to this witness, for conducting the P.M., he received a yadi from the Police Inspector of Ambaji along with the dead-body. 11.7 He prepared a P.M. note regarding this and he as identified the post-mortem report and his signature on it. 11.8 He has also identified the cause of death certificate issued by him. 11.9 According to this witness, for conducting the P.M., he received a yadi from the Police Inspector of Ambaji along with the dead-body. He put his signature on the office copy for receiving the yadi. 11.10 The death of Somirabhai, whose P.M. was conducted by him, did not occur in the ordinary course of nature. 11.11 This witness has further stated that the cut which has taken place on the shirt of muddamal article No.3, the injury No.1 mentioned in column No.17 of the P.M. note and the internal injury mentioned in column No.20 has been caused with the same blow and these injury are corresponding to each other. These injuries, according to this witness, were sufficient to cause death of the deceased. After looking at the knife of the muddamal article No.6, this witness has further stated that if a blow is given with this knife on the throat in straight manner, the injury No.1 mentioned in column No.17, the injury of trachea mentioned in column No.20 of the P.M. note and the cut which is on the shirt of muddamal article No.3 can be sustained. 11.12 In his cross-examination, he has denied that the injury mentioned by him can be sustained if a person falls on the glasses fitted on a wall. The colour of blood which he had mentioned in P.M. lividity can occur within six to twelve hours. He has denied that the colour of blood turn black after twelve hours. He has denied the injury No.1 of column No.17 and the internal injury of column No.20 have been shown contrary to each other by him. The injury No.1 shown in the column No.17 was 1.5 cm. wide on the upper part. After looking at the muddamal knife this witness stated that the wound was 3 cm. long and 1.5 cm. wide. The thickness of the muddamal knife seems to be 0.5 cm. He has denied that the injury mentioned by him can not be sustained with the muddamal knife. He has denied that the injury mentioned by him was sustained with glass. 12. PW. long and 1.5 cm. wide. The thickness of the muddamal knife seems to be 0.5 cm. He has denied that the injury mentioned by him can not be sustained with the muddamal knife. He has denied that the injury mentioned by him was sustained with glass. 12. PW. No. 25, Bhailalbhai Jagajibhai Patel, the Investigating Officer, in his examination-in-chief has stated that he was discharging duty as Police Inspector in Ambaji Police Station on 13th May 2005 and on that day, the roll call of the police persons was on at 20:00 Hrs. Thereafter, the In charge PSO Shri Natubhai Amulakhbhai, B.No: 769 had given him the Vardhi at 20:05 Hrs that one unknown person has informed through telephone that a quarrel has occurred among the persons of Garasiya community in front of Diwali Ba Dharmashala. Therefore, as it was informed to reach immediately there, he arrived near footpath of road in front of Diwali Ba Dharmashala on Danta Road in Ambaji Town. According to this witness, there was one person lying on footpath in blood smeared condition. On examining the said person, he was dead. Many persons had gathered there. Therefore, regarding identification of the said person, on asking the person namely Ramajibhai Badarbhai Sathavara having cart of ice gola, he had informed that he is a guard in Ambaji temple and he is a native of village Jambera. As other persons of Garasiya of village Jambera were serving as guardmen in Ambaji Temple Trust, by sending the Police persons in the second mobile of their Police station, the natives of village Jambera and guards of Ambaji temple namely Mithabhai Bhikhabhai Solanki and Saradarbhai Galabhai Solanki were called. Thereafter, on getting identification of the said person done, they had told such that the said deceased person is of their village and his name was Somirabhai Viramabhai Solanki, he was serving as a Guardman in Ambaji temple. Therefore, the beat head constable namely Maganbhai Harakhabhai was sent to village Jambera in second mobile of their police station for calling guardian and brother of the said deceased person. Younger brother of the deceased Jetabhai Viramabhai was told that his brother Somiro was dead, and he was brought to Ambaji Police Station and his complaint was recorded and an offence was registered at 21:30 and he took over the charge of further investigation. Younger brother of the deceased Jetabhai Viramabhai was told that his brother Somiro was dead, and he was brought to Ambaji Police Station and his complaint was recorded and an offence was registered at 21:30 and he took over the charge of further investigation. The Complaint was lodged by Jetabhai Viramabhai and he had written the same as per his dictation. In the said Complaint, the Complainant has made his right hand thumb impression and he made his signature therein. 12.1 Thereafter, according to this witness, as the said offence was constituted for visitation of the Deputy Superintendent of Police at Palanpur, the wireless message was conveyed for his visitation. Thereafter, by preparing the special report of the grievous offence, the arrangement was made to sent to the Superior officer along with the copy of the Complaint. The copy thereof was kept for the case. Thereafter, the message was sent for sending the Dog squad at the scene of incident and as the accused persons have escaped after committing the offence, the message was conveyed to carry out legal proceedings by carrying out investigation. Thereafter, the wireless message was sent to the Executive Magistrate, Danta for filling the Inquest Panchnama of the deceased. Thereafter, they had arrived at the scene of incident. As it was dark at night, and the Panchnama thereof was to be drawn in the early morning, the requisite Bandobast was kept for maintaining the said place. Thereafter, the witnesses namely Mithabhai Bhikhabhai Solanki and Saradarbhai Galabhai Solanki who were present at the scene of incident and the statements of the eyewitness in this case, viz. Ramajibhai Badashahbhai Sathavara and Babubhai Gopalbhai Vanajara were taken, written down on paper and included in the case. By arriving at the scene of incident on 14th May 2005, by calling two panchas at the scene of incident, the Inquest Panchnama of dead-body of deceased Somirabhai Viramabhai Solanki in this case was drawn before the Panchas. This witness had written down the said panchnama as per dictation of the Panchas, wherein, the Panch no. 1 had made his signature in his handwritings, the Panch no. 2 had made his right hand thumb impression therein and he had made his signature as before him. Thereafter, by filling the post-mortem examination form for dead-body of the deceased, the same was included in this case. 1 had made his signature in his handwritings, the Panch no. 2 had made his right hand thumb impression therein and he had made his signature as before him. Thereafter, by filling the post-mortem examination form for dead-body of the deceased, the same was included in this case. Thereafter, for performing post-mortem of the dead-body of the deceased in this case, the Yadi was sent to the Medical officer of Cottage Hospital, Ambaji. Thereafter, by calling two Panchas, the Panchnama of the scene of offence was drawn before the Panchas as dictated by the Panchas, wherein, both the panchas had made their signatures and he had made his signature as “before me”. The panchnama drawn before the Panchas in this case regarding recovery of weapon from the accused and his arrest was made. The certificate for cause of death and PM report were produced in the case. The statements of witnesses Naranabhai Bhurabhai Solanki and Virabhai Somirabhai Solanki have been taken on 14th May 2005. As there was a presence of Joga Gala Parmar, resident of Baraberi, Ta: Khedbrahma as the accused, already there have been four accused persons in FIR, the presence of the said accused was found as the fifth accused, the said offence being constituted as per section – 147, 148, 149, 302 of the IPC, the report was sent to Ld. J.M.F.C. to incorporate the section therein. Thereafter, the accused persons Hinduda Asa and Lasma Asa were found from sim area of village Baraberi on 15th May 2005. Thereafter, the procedure for their arrest was done. According to this witness, first, there was Natubhai Amulakhbhai as in charge PSO. During his charge, the phone call regarding the incident of the unknown person had arrived at 20:05 Hrs. By taking the extract of the telephone register regarding the said telephone, the same was included for the case of offence. The PSO, B.No: 809, namely, Ladubhai Homabhai had seized blood stained clothes on the dead-body of deceased in this case. The panchnama drawn thereof was included in the case. The Yadi was sent to Mamalatdar for preparing map of the scene of offence. Thereafter, the Yadi was sent for the identification parade of both the accused persons. Thereafter, the remands were obtained by producing both the accused persons. As he was going on leave, the investigation of the offence was handed over to the PSI Shri D.N. Patel. The Yadi was sent to Mamalatdar for preparing map of the scene of offence. Thereafter, the Yadi was sent for the identification parade of both the accused persons. Thereafter, the remands were obtained by producing both the accused persons. As he was going on leave, the investigation of the offence was handed over to the PSI Shri D.N. Patel. After resuming duty on 9th June 2005, he had taken over charge of further investigation. Among the absconding accused of this offence, the accused Bachura Asa Parmar, resident of Baraberi was arrested in connection of section – 41(1) of the Cr.P.C. on 6th July 2005 by PSI of Posina Police Station. After the same, as it was informed to them through wireless message, he had arrived at Posina Police station and on giving written report to the PSI of Posina Po.St. for handing over the accused to them, custody of the accused was taken at 18:15 Hrs for the case of this offence. Further, he had taken over custody of the papers regarding arrest of the aforesaid accused and panchnama of his body condition. Thereafter, they had arrived at Ambaji by taking the accused. The entry was made in the Arrest register and the accused was produced within the time before the Court and his remands were obtained. On interrogating during the said remand, as he was willing to show the scene of offence, by calling two persons at the Police station to remain as the panch, on asking the name and address of the accused and the scene of offence before the panch, the accused Bachura Asa had come forward and shown the scene of offence. The detailed panchnama thereof was prepared. The said panchnama was true and correct as dictated by the Panchas, both the Panchas had made their signatures therein and there is his signature as “before me”. The detailed panchnama thereof was prepared. The said panchnama was true and correct as dictated by the Panchas, both the Panchas had made their signatures therein and there is his signature as “before me”. Thereafter, on 11th July 2005, as the accused was willing to show the place wherein he had concealed the lethal weapon, i.e. knife, used in the offence, by calling two persons at the Police station who were willing to remain as the Panch, on asking the accused about his name before the panchas, he had told his name Bachura Asa Parmar, resident of Baraberi and as the said accused stated that he had concealed the said lethal weapon, i.e. knife, at his home and he was willing to come forward and show the said place, the Preliminary Panchnama regarding the same was drawn. Thereafter, as indicated by the accused, two panchas, the accused and Police persons had left from Ambaji by boarding in the Government vehicle. Thereafter, by going through Posina Police station, arriving near house of the accused in sim area of village Baraberi, stopping the jeep near boundary of the farm, as the accused stated that the said house belonged to him, they had arrived at his home. As there was a woman present there, the accused had stated before the panchas that the said woman was his mother. Thereafter, he had gone inside the house and taken out one knife from the place of wooden rack. The said knife was seized for the investigation by drawing detailed panchnama and considering its value at Rs 5.00 before the panchas. The writing was done in the said Panchnama as per say of the Panchas. The Panchas had made their signatures in their handwritings. This witness proved his signature therein as “before me”. Thereafter, as the muddamal seized in this case was to be sent to FSL for examination the dispatch note thereof was prepared. The dispatch notes were produced in the case. The dead-body of the deceased was handed over to his brother Jetabhai, the receipt thereof was taken. Jetabhai Viramabhai had made signature. The letter written from FSL for taking the muddamal back and the investigation report of FSL of total five pages was prepared. The dispatch notes were produced in the case. The dead-body of the deceased was handed over to his brother Jetabhai, the receipt thereof was taken. Jetabhai Viramabhai had made signature. The letter written from FSL for taking the muddamal back and the investigation report of FSL of total five pages was prepared. Thereafter, as the order was passed to get the identification parade of the accused Bachura Asa Parmar through the eye witness before Mamalatdar in the Court at Danta, PSI Shri L.M. Chauhan had given a report and after the identification parade of the accused was done, he was produced before the Court. As the panchnama of the identification parade of the accused done by the witness was sent by Mamalatdar on 13th July 2005, the same was included in the case. Thereafter, for the case of this offence, as the accused Somira Asa, Joga Gala, residents of Baraberi were absconding, they were not caught, for their investigation, the written report was sent to PSI of Posina. As the accused was absconding, the report was sent to JMFC, Danta to issue his warrant as per section – 70 of the Cr.P.C. The Panchnama regarding the identification parade was drawn in this case on 17th May 2005 by the Executive Magistrate, Danta. As there was sufficient evidence against the accused persons in this case, the charge-sheet was prepared against them. The accused who were present had been identified by this witness. 12.2 This witness further stated that he had taken statement of the witness Babubhai Gopaji Vanajara of this case. He has dictated such in the statement before him that he and Ramaji were talking by sitting on the bench. Meanwhile, the people of Garasiya community were quarreling at the place towards Ambaji side. Among them, five persons had gone behind one person to beat them. As he was arriving towards Diwali Ba Dharmashala for defending himself, suddenly the sound occurred, they stood up from there and by understanding that they will break the cart, Ramajibhai had taken the cart and he was transferring the bench. Meanwhile, at the place near the wall only, the said five persons had inflicted the blow of stick to the person, he did not know his name but he knew him by his face and he was serving as the guard in temple. The said person was hurt. Meanwhile, at the place near the wall only, the said five persons had inflicted the blow of stick to the person, he did not know his name but he knew him by his face and he was serving as the guard in temple. The said person was hurt. Thereafter, according to this witness, while he was collapsing from there, he was caught in between and inflicted the blow of knife in his throat. As the person who was a guard fell collapsed, all five persons had escaped from there and within sometime he had died. Thereafter, as some one of the persons gathered made a call to the Police, the police had arrived there. In this case, he had taken the statements of Kevadabhai Somirabai, Virabhai Somirabhai, Nanabhai Bhurabhai, Saradarbhai Galabhai, Bachurabhai Galabhai, Bachurabhai Bharamarbhai. 12.3 In the cross examination by the learned Advocate for the accused, this witness has admitted that the Complainant has not dictated such that when he boarded in the jeep, the accused persons were sitting near lodge. He had admitted that Kevadabhai Somirabhai has not dictated in his Statement before the Police that they had arrived in Ambaji temple at eight Hrs at night and they had left from Ambaji by taking special vehicle. He has denied that he had asked only the name and address of Babubhai Gopaji Vanajara and Ramajibhai Badarbhai and he had noted their statements as per his wish. He had noted the statement of the witness Virabhai Somirabhai. He has not dictated such in his statement before him that they had gone to the bus stand and thereafter, they had gone to inquire about jeep; He had met the owner namely Nanapura in the factory; They had arrived from Ambalimal Patiya by walking; They had gone to bus stand at quarter to eight; Bus had left therefrom; Samira had collided in the push ups; Joga Asha had held shirt of Somira and they were total four persons.; Collar of shirt was cut; He had arrived in front of us, therefore, they had gone back; They had rushed towards house; They did not meet the Police there, and the Police had immediately met them. He had taken statement of the witness Nanabhai Bhurabhai. He had taken statement of the witness Nanabhai Bhurabhai. He had admitted that he has not dictated such in his statement before him that they had arrived later on at sign post board of village Ambalimal, by boarding in the jeep, they had arrived at Ambaji at about seven Hrs. 12.4 This witness further stated that he had taken the statement of the witness Saradarbhai Galabhai. This witness has not dictated such in the statement before him that wife of Samera had died by strangulating; Therefore, as he wanted revenge, he was in search of the same; There was a wound on right side of the throat and the collar was cut; The dead-body was lying at five feet away from gate of Diwali Ba Dharmashala. 12.5 This witness further stated that he had taken statement of the witness Bachurabhai Bharamabhai. This witness has not dictated in his statement before him that the accused persons were not taking money; Some money were to be paid. He had admitted that such did not reveal while taking the statement of Bachura Bharama that there was a stick in hands of Bachura. He had denied that Nanabhai Bhurabhai and Vira Somira had met the Police on the day of incident only. He has denied that the Panchnama of Ex – 39 is not drawn before the Panchas. He has denied that the panchnama drawn in this case were drawn by sitting in the Police station and the signatures only of the panchas were taken therein. He has denied that the statements of the witnesses taken in this case are not as per the dictation of the said witnesses. He has denied that such was revealed in his investigation that the accused persons were present for doing labour work in stone quarry situated at Ambagota, they have not arrived at Ambaji only. It did not reveal in his investigation that there was animosity between family members of the deceased people of Naka Fadi in village Ghareda. He has denied that the accused persons had, by causing murder of the deceased Manabhai Dungaicha of village Nakafadi, gone at village Jambera as their family members were there. It did not reveal in his investigation that there was animosity between family members of the deceased people of Naka Fadi in village Ghareda. He has denied that the accused persons had, by causing murder of the deceased Manabhai Dungaicha of village Nakafadi, gone at village Jambera as their family members were there. He has denied that it was insisted on getting marriage of the younger sister of the accused persons with the deceased and family members of the accused persons – means their father had denied the proposal of marriage, therefore, the discord had taken place. He has denied that for the aforesaid reasons, the Complainant and his family members, namely, Nana Bhura and Vira Somira had altogether falsely implicated the accused persons. He has denied that the deceased had affair with another tribal woman of Khedbrahma Taluka, therefore also the deceased was having animosity there. He has also denied that there were two – three more incidents causing animosity of the deceased with other persons and that other persons apart from the accused had caused murder. He has denied that the accused persons have been falsely implicated in the case. He has denied that it has not been revealed in his investigation about the blows of knife and stick inflicted to the accused. He has denied that neither the accused persons had arrived at Ambaji on the day of incident nor had they been implicated in this offence. He has denied that Nanabhura and Vira Somira have been falsely fabricated as the witnesses on second day. He has denied that they were not present in Ambaji on the same day and they have not eye witnessed the incident. 12.6 This witness has denied that such has not happened that they might have gone at the place on date thirteenth and Ramajibhai Badarbhai and Babubhai Gopaji might have met them there. He has denied the fact that they might have called Saradara Gala and he might have declared some facts. He has denied that no identification parade has been done in this case. He has also denied that no neutral investigation has been done in this case. He has denied that by implicating the accused, a bogus charge sheet had been filed so as to make a show of the action taken by the police in detecting a serious offence. He has denied that no identification parade has been done in this case. He has also denied that no neutral investigation has been done in this case. He has denied that by implicating the accused, a bogus charge sheet had been filed so as to make a show of the action taken by the police in detecting a serious offence. He has denied that falsely the names were taken under the doubt in the Complaint and false charge sheet has been prepared by following the same. This witness was recalled for further cross-examination and in the further cross examination, this witness has admitted that at the area, while going from Khodi Vadali cross roads, where the jeep is parked to Danta is crowded and there are Hotels, Dhabas, Public toilets, residents of temple employees, Diwali Ba Dharmashala and shops, etc are situated. He has denied that the scene of offence is situated in the middle of the aforesaid place. The scene of offence is situated between gate of Diwali Ba Dharmashala and Public Toilet. He has admitted that both these buildings are situated in eastern side of the road. He has further admitted that on going ahead from the scene of incident, there is Diwali Ba dharmashala and thereafter, the quarters of employees. Thereafter, there is Asopalav hotel and shops. He has also admitted that the area in front is also crowded. He has admitted that the traffic of vehicles is on in the said area till ten Hrs. He has denied that as the place wherein the scene of incident is there is crowded, he has not taken the accused there or he has not shown the place. 13. On consideration of the above evidence on record, we find that the death of the first wife of the deceased, who happens to be the sister of the accused persons, is not in dispute. It has been also established from the evidence on record that no criminal case was initiated when the sister of the accused committed suicide. It has further been proved from the evidence on record that a custom of chadotaru was in existence in the community to which the accused person and the deceased belong. It appears that there is also no dispute that a part-payment was made by the deceased towards chadotaru to the family of the accused. It has further been proved from the evidence on record that a custom of chadotaru was in existence in the community to which the accused person and the deceased belong. It appears that there is also no dispute that a part-payment was made by the deceased towards chadotaru to the family of the accused. We find that the deceased was a guard of the Ambaji Mata Temple and such fact is known also to the accused persons. It appears from the evidence that Ambaji temple is situated in the mid-way and is almost at equal distance from the village of the deceased and that of the accused persons. It is the specific case of the appellants that on the day of the incident, there was a marriage ceremony far away from the village of the deceased person, as a result of which, large number of residents of the community went to that place and at the time of coming back in the afternoon, they all reached Ambaji. From Ambaji, separate bus is available for reaching the village of the deceased but as the last bus having already left, they decided to go to their own village by hiring a jeep. PW. No.4 and 5 are among those persons who went to attend the marriage party along with other persons of their village and in the process they were at the relevant point of time, awaiting at the place of the incident near Ambaji temple. It has also come on evidence that the brother of the victim and another witness also adopted the same procedure for returning to their village after attending the marriage and while passing through Ambaji, they had noticed the accused persons in the vicinity of the temple as a result of which, they, on their way to their village, cautioned the deceased person about the presence of the accused person. 14. We do not find any reason to disbelieve the version of PW. No.4 and 5, who had actually seen the accused persons killing the victim with the use of a knife. Their version of attacking the victim has been well established from the medical evidence adduced by the Doctor who performed the post-mortem. It has also been established that the accused persons, in identification parade, had been identified by the witnesses as the actual assailants of the victim. 15. Their version of attacking the victim has been well established from the medical evidence adduced by the Doctor who performed the post-mortem. It has also been established that the accused persons, in identification parade, had been identified by the witnesses as the actual assailants of the victim. 15. We do not find any substance in the contention of Ms. Raval that simply because there is a slight variation in the evidence between the evidence of PW. No. 4 and PW No. 5, where one had indicated that there were 4 persons including the appellants whereas the other stated that there were five persons, for such minor variation, the evidence given by the uninterested eye witnesses should be disbelieved. No suggestion has been given to those two eyewitnesses giving any imputation of motive of giving false statement against the accused persons. Apart from the fact that from the evidence of PW No. 4 and PW No. 5, the actual killing of the deceased has been established from the evidence given by the other witnesses, viz. complainant and the son of the deceased, it appears that they had seen the accused persons in the vicinity of Ambaji temple while they were going back to their village through Ambaji and this fact also establishes the presence of the accused persons in Ambaji few hours before the actual incident. We find that in the statement under section 313 of the Code of Criminal Procedure , the accused persons have denied that they were present in Ambaji on the relevant date, and according to them, as the deceased wanted to marry their another sister for the second marriage of the deceased, and as the said proposal was refused by the accused persons, due to that animosity, his family members have unnecessarily implicated them in the offence. We find that the said sister of the accused persons has already been married and such fact cannot be a ground for falsely implicating the brothers-in-law of the victim when there are five children born in the wedlock of the deceased and the sister of the accused persons who committed suicide. We find that the said sister of the accused persons has already been married and such fact cannot be a ground for falsely implicating the brothers-in-law of the victim when there are five children born in the wedlock of the deceased and the sister of the accused persons who committed suicide. We also do not find any reason why the son of the accused will unnecessarily implicate his three maternal uncles and in cross-examination, no suggestion has been given to such witnesses regarding false implication of the accused person or regarding any motive of the said nephew of the accused person. 16. We are also not impressed by the submission of Ms. Raval that simply because the weapons used in the killing of the victim has not been recovered in accordance with law, for that reason, we should acquit the accused person by disbelieving the eyewitnesses. If we accept the aforesaid contention, then in all murder cases, simply by destroying the weapon or hiding it, the accused persons can get rid of conviction. 17. On consideration of the entire materials on record, we find that in the facts of the present case, on minute consideration of the entire evidence on record, the learned Sessions Judge rightly believed the version of PW No.4 and 5, and we do not find any reason to disbelieve the version of those two witness when they are not related to the deceased person except that they are members of the same community. Ms. Raval tried to convince us that PW. No.4 admitted that he is a cast brother of the victim, and, therefore, we should disbelieve his version. It is true that they are all belonging to the same caste and in that sense, they are also of the same caste of even the accused persons and are also cast brothers of the accused. 18. Once it is established that two eyewitnesses are wholly reliable coupled with the fact that existence of paying compensation for unnatural death [chadotaru] has been proved, and it has also been proved that the some amount have already been paid and some amount was due, in our opinion, even the motive of murder has been proved by the prosecution. 18. Once it is established that two eyewitnesses are wholly reliable coupled with the fact that existence of paying compensation for unnatural death [chadotaru] has been proved, and it has also been proved that the some amount have already been paid and some amount was due, in our opinion, even the motive of murder has been proved by the prosecution. It is now a settled law that motive or the failure to recover weapon used in the offence, loses their importance when there is a direct evidence of eyewitnesses who are wholly reliable. 19. We have also gone through the entire deposition of the Investigating Officer. We cannot find any flaw in the investigation and it appears that the investigating officer followed the correct approach but if the witnesses become hostile, for that, the prosecution cannot be blamed. Apart from the evidence adduced by the hostile witnesses, even from the evidence given by the witnesses who have not become hostile, it has been well proved that it was the accused persons who participated in the actual killing of the victim by using the weapons. The version of PW. No.4 and PW No.5 have been supported by medical evidence. 20. We, therefore, find that in this case, the finding of fact based on appreciation of oral evidence cannot be disturbed as such findings are quite reasonable. We, thus, find that no merit in this appeal and the same is dismissed. The order of conviction and consequent sentence recorded by the learned Sessions Judge are confirmed.