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2015 DIGILAW 544 (GUJ)

Aher Khima Manda v. State of Gujarat

2015-05-05

G.B.SHAH, JAYANT M.PATEL

body2015
JUDGMENT G.B. Shah, J. 1. Criminal Appeal No. 427 of 1996 has been filed by the appellant-original accused No. 1 against the judgment and order of conviction and sentence dated 4-6-1996 delivered by the learned Addl. Sessions Judge, Junagadh, in Sessions Case No. 73 of 1995 whereby original accused No. 1 was convicted and sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for one year for the offence punishable under Section 304 Part-II of Indian Penal Code. 2. Criminal Appeal No. 640 of 1996 has been filed by the State of Gujarat against the judgment and order dated 4-6-1996 delivered by the learned Addl. Sessions Judge, Junagadh, in Sessions Case No. 73 of 1995 acquitting original accused Nos. 2 to 6 and convicting and sentencing original accused No. 1 under Section 304 Part-II of Indian Penal Code. 3. Short facts are that as per the complaint, on 4-1-1995 the complainant Rasilaben and her sister Ramaben were in their field since 10.00 a.m. and were putting manure into their farm. At about 11.00 a.m., their father Chhaganbhai came to their farm and when he reached near the western boundary of their farm, one Khima Mandan Aher having an orchard near their farm also came there with a simple thick stick in his hand and said Khima Mandan started altercation with the deceased Chhaganbhai presuming that he would close his way of coming in the farm and Khima Mandan got instigated and he hit on the head of Chhaganbhai with said stick as a result thereof, Chhaganbhai screamed and fell down and hence, complainant and her sister Rama ran towards that side. Meanwhile, from the side of the orchard of Khima Mandan, Jagmal Ramsi came there with a shovel (pavda), Babu Khima, Karshan Khima and Rami Khima with sticks and Bheniben Khima also with stick. Out of these persons, Bheniben and Jagmal Ramsi hit the complainant with stick on back and on the side causing injury and Babu Khima hit Rama on back and on hand. As Chhaganbhai Muljibhai sustained serious injuries, he was taken to Veraval Municipal Hospital by his relatives and Villagers where he was declared dead by the doctor. The police was informed by the Medical Officer of Veraval Municipal Hospital and police reached the hospital and a complaint was lodged and offence was registered. As Chhaganbhai Muljibhai sustained serious injuries, he was taken to Veraval Municipal Hospital by his relatives and Villagers where he was declared dead by the doctor. The police was informed by the Medical Officer of Veraval Municipal Hospital and police reached the hospital and a complaint was lodged and offence was registered. At the end of investigation, as there was a prima facie case against the accused persons, charge sheet was filed against them. 4. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions for disposal on merits. The learned Judge framed charge against the accused. The charge was read over and explained to the accused. The accused denied all the charges and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 5. To prove the guilt against the accused, prosecution examined in all 12 witnesses and produced and relied upon several documentary evidence numbering 17. 6. On submission of closing pursis by the prosecution, further statement of the accused under Sec. 313 of Code of Criminal Procedure was recorded qua incriminating evidence. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned Addl. Sessions Judge, Junagadh, delivered the impugned judgment convicting and sentencing original accused No. 1 and acquitting original accused Nos. 2 to 6 as aforesaid in the earlier part of this judgment giving rise to prefer the present appeals. 7. Heard learned Senior Advocate, Mr. N.D. Nanavaty with Mr. Nirad such for M/s. Nanavaty Advocates for the original accused and learned APP, Mr. Hardik Soni for the State. 8. Mr. N.D. Nanavaty, learned Senior Advocate mainly submitted that there is a delay in lodging the F.I.R. in as much as although the Investigating Officer of Prabhas Patan Police Station was informed by the Medical Officer on duty about the murder at about 12.35 p.m., no F.I.R. was lodged for two and half hours and no satisfactory explanation is coming forth for the said delay. According to him, F.I.R. at Exh. 25 given by witness Rasilaben Chhaganbhai is not an F.I.R. at all and it is only an information to the police. He further submitted that the inquest panchnama at Exh. 14 drawn by the investigation before recording the F.I.R. does not bear the names of the accused or even the eye witnesses. According to him, F.I.R. at Exh. 25 given by witness Rasilaben Chhaganbhai is not an F.I.R. at all and it is only an information to the police. He further submitted that the inquest panchnama at Exh. 14 drawn by the investigation before recording the F.I.R. does not bear the names of the accused or even the eye witnesses. He further submitted that though statements of three witnesses namely, Rasilaben Chhaganbhai, Govindbhai Chhaganbhai and Ramaben Govindbhai were recorded before lodging the F.I.R., said fact has been suppressed by the prosecution from the trial court and since it is a serious lapse on the part of the prosecution, the whole trial is required to be vitiated. He further submitted that it is coming from the depositions of alleged eye witnesses Rasilaben Chhaganbhai and Ramaben Chhaganbhai that their attention was drawn when the deceased fell on the ground and as such, the alleged eye witnesses have not seen the incident and, therefore, no reliance can be placed on the evidence of those alleged witnesses and their evidence require to be discarded being interested witnesses related to the deceased as daughters. Further, the Medical Officer, who conducted postmortem on the body of the deceased, has admitted in his cross-examination that the injuries sustained by the deceased could have been caused by falling on the ground and therefore, accused No. 1 should not have been convicted based on the evidence of these alleged eye witnesses and under the circumstances, the accused No. 1 be given the benefit of doubt and he may be acquitted. According to him, the accused No. 1 is innocent and has been falsely implicated in the crime in question. The whole story has been concocted to falsely involve him with the crime in question. He, therefore, submitted that since the prosecution has failed to establish the case against the accused No. 1 beyond reasonable doubt, he is required to be acquitted and the judgment and order of conviction and sentence require to be quashed and set aside. 9. As far as original accused Nos. 2 to 6 are concerned, Mr. He, therefore, submitted that since the prosecution has failed to establish the case against the accused No. 1 beyond reasonable doubt, he is required to be acquitted and the judgment and order of conviction and sentence require to be quashed and set aside. 9. As far as original accused Nos. 2 to 6 are concerned, Mr. Nanavaty submitted that the trial court, on an appreciation of entire oral as well as documentary evidence on record, came to the conclusion that there was no evidence connecting these accused with the crime in question and since the prosecution could not establish the offence charged against them, they were rightly acquitted by the trial court by giving them benefit of doubt. He, therefore, submitted that the impugned judgment and order of acquittal of original accused Nos. 2 to 6 being just, legal and proper do not require to be interfered with. 10. Learned APP, Mr. Soni, took us through oral as well as documentary evidence and relevant portion of reasoned judgment delivered by the court below. According to him, there is no delay in lodging the F.I.R. He submitted that the incident is alleged to have taken place at 11.00 a.m. and the injured was taken to the hospital immediately from where Medical Officer on duty has informed the police about the incident and thereafter, police also came to the place of incident and F.I.R. was recorded and, therefore, the delay of two and half hours is not a delay in the eye of law. He further submitted that there are two witnesses of incident and their presence at the time of incident in the field is established. He further submitted that merely because they are daughters of the deceased, their testimonies cannot be discarded especially when they are telling the truth. He further submitted that case of the prosecution gets support from the evidence of Medical Officer, post mortem report and also from the complaint filed by the complainant at the earliest. He also submitted that even motive in the commission of offence is also established. He further submitted that case of the prosecution gets support from the evidence of Medical Officer, post mortem report and also from the complaint filed by the complainant at the earliest. He also submitted that even motive in the commission of offence is also established. He further submitted that it is an incident wherein the accused have given blows on the vital part of the body resulting into an offence under Sec. 302 and hence, no leniency should be shown to the accused No. 1 by treating the case under Part II of Sec. 304 of IPC and the accused should be punished severely by quashing and setting the judgment and order of acquittal of accused Nos. 2 to 6 and enhancing the conviction and sentence of accused No. 1. 11. We have also gone through the oral as well as the documentary evidence shown to us by the learned counsel for the respective parties together with the reasoned judgment delivered by the court below. 12. Before considering the above submissions made by the learned advocates for the parties, it is desirable to refer to the further statement of the accused No. 1 recorded on 18-5-1996 qua incriminating evidence. During the course of recording of said further statement, the accused No. 1 had produced written reply, which was taken on record and the same had been incorporated as part of said further statement recorded vide Exh. 2. It is in vernacular language and translated version of the same in English is reproduced hereunder: "1) I have not made any fatal attack on Darji Chhagan Mulji on 4/1/95 at about 11-00 hours in the morning or on any other date or at any other time, or I have not caused either simple or grievous injury to him, and I have not committed his murder. I am completely innocent in this case. I have not committed any kind of offence. 2) As per the revenue-record of Exh. 16 and 17 produced in this case, the land of survey No. 47 situated in the outskirts of Umba village is a waste-land of the government. I, the accused and some other farmers of Umba village have been moving through this land since so long, and we take carts and farming-equipments through this way and thus, this cart-route was in use as it was up to 3/1/95. I, the accused and some other farmers of Umba village have been moving through this land since so long, and we take carts and farming-equipments through this way and thus, this cart-route was in use as it was up to 3/1/95. We were using and enjoying that cart-track as of our right. 3) On 4/1/95, at about 11-00 hours in the morning, I left from my orchard in my cart for going to Umba village. My residential house is situated in this orchard and my house is there in Umba village also. I had gone in cart to load seeds of Mandavi from there. 4) When I came in the government-waste-land situated towards the southern of the farm of the deceased Chhagan Mulji by riding the cart, a wall of 'toda'-stone had been erected there. I went somewhat ahead after moving stones of it when I found that one other tall wall had also been erected and I was unable to take my cart further without moving away this wall. Hence, after getting down from the cart, when I was about to move the wall, the deceased Chhagan Mulji who was removing 'dhro' (a type of grass) in his agricultural land with his pickaxe suddenly rushed towards me shouting and speaking abusive terms, and he told me that, 'I have raised this wall and you do not dare to touch it'. Therefore, I told Chhagan Mulji that 'this causes a hurdle in our way of government-waste-land'. Hence, Chhagan Mulji became very much instigated and used abusive terms indiscriminately and said that, "is it Your land that I am invading?", and "if you move the wall, you will not be spared". After saying so, he raised the pickaxe for hitting me and I became fairly apprehensive that Chhagan Mulji would kill me. The deceased scuffled with me in which he fell down on the stony land below and thereafter, I went back to my orchard in my cart. 6) I have not hit Chhagan Mulji with stick or I have not hit Rasila or Rama - the daughters of Chhagan Mulji or any other accused. Rama and Rasila were quite far from the place of the incident situated in the government-waste-land and none of them has eye-witnessed this incident. 6) I have not hit Chhagan Mulji with stick or I have not hit Rasila or Rama - the daughters of Chhagan Mulji or any other accused. Rama and Rasila were quite far from the place of the incident situated in the government-waste-land and none of them has eye-witnessed this incident. However, since both of these sisters heard the uproar and came running, it is possible that they might have fallen down on the stony hard land and sustained injury. 7) I have not caused injuries in the head of Chhagan Mulji or in the chest or in any body-part with stick. The stick of muddamal article No. 5 is not mine at all and I have not produced that stick at the time of my arrest by the police. 8) I had such reasonable fear that if I do not prevent Chhagan Mulji from hitting me with pickaxe, and if I do not fight with him and knock him down, he would kill me. 9) Taking into consideration the above explanation of mine, be pleased to acquit me from all the aforesaid charges and release me." (Emphasis Supplied) 13. As regards the contention regarding delay in filing the F.I.R., it is required to be noted that police has been informed at the earliest by the Medical Officer on duty. The incident has taken place at about 11.00 a.m. in the field when Rasilaben Chhaganbhai and Ramaben Chhaganbhai were in the field and Chhaganbhai was then taken to the hospital and thereafter, police also came to the hospital and recorded the complaint at the hospital at about 3.00 p.m. on the same day. Thus, it appears that at the earliest, F.I.R. has been lodged and, therefore, under any circumstances, it cannot be said that there was any delay in lodging the F.I.R. Apart from that, name, role and the weapon used in the commission have been described in detail by the complainant along with the names of eye witnesses, who have witnessed the incident and, therefore, it is very difficult to believe that there was any delay in filing the F.I.R. or that the F.I.R. was concocted to falsely implicate the accused. According to us, there is no delay and at the earliest, F.I.R. has been lodged narrating the incident in detail. 14. According to us, there is no delay and at the earliest, F.I.R. has been lodged narrating the incident in detail. 14. As per the case of the prosecution, Rasilaben Chhaganbhai and Ramaben Chhaganbhai were the eyewitnesses, who were present in the field doing their agricultural activities. It is important to note at this juncture that referring the further statement related to accused No. 1 referred above, the presence of accused No. 1 at the scene of incident is, as such, not under dispute and his scuffle with the deceased is also admitted by him. Moreover, as per the accused No. 1, Ramaben and Rasilaben were at a distance from the place of incident and they both have not seen the incident and therefore, they are not eye witnesses of the incident but as such, the presence of both the daughters of the deceased namely, Ramaben and Rasilaben at the field is also not under dispute. Much has been argued by the learned counsel for the accused drawing attention of the depositions of two eye witnesses to the effect that the trial court ought not to have relied upon the evidence of above referred two daughters because both these witnesses have categorically admitted in their cross-examination that their attention was drawn to the incident only after their father had fallen on the ground and thus, as such, it was the admission on the part of the said witnesses that they have not witnessed the actual attack on their father-deceased Chhaganbhai. This theory of defense as propounded by the accused is not acceptable because it is not in dispute that the two daughters namely, Rasilaben Chhaganbhai and Ramaben Chhaganbhai were there in the agricultural field where the incident had taken place. In fact, both the daughters of the deceased had reached earlier in point of time and Chhaganbhai reached little later in the field on the day of incident. In fact, both the daughters of the deceased had reached earlier in point of time and Chhaganbhai reached little later in the field on the day of incident. If at all for the sake of argument we presume that the attention was drawn after their father had fallen on the ground, then also, it can be very well said that prior to incident or scuffle, altercation between accused No. 1 and the deceased had taken shape and on the altercation being entered into between the deceased and the accused, on the spur of the moment, they have seen the same and immediately rushed towards the place of incident which was, as such, an open field as mentioned in the map at Exh. 27 prepared by the Circle Inspector and no hindrance was there in between the place where the two daughters were working and the incident which had occurred. Under the circumstances, it cannot be said that simply because in the cross-examination above referred two witnesses have deposed that their attention was drawn to the incident only after their father had fallen on the ground, they cannot be said to be not the eye witnesses and their entire deposition is required to be discarded. On the contrary, the story of the defense as propounded by them is not believable. 15. Further, it was stated by original accused No. 1 - Bhikhabhai Mandabhai in his further statement that land of survey No. 47 as per the revenue record at Exhs. 16 and 17 situated in the outskirts of Umba Village is a waste land of the Government where he and other farmers of Umba Village have been moving through as of their right since long and they take carts and farming equipments through this way and said cart-route was in use as it was upto 3-1-1995. The aforesaid theory of further statement also cannot be believed at all because referring to the revenue record at Exhs. 16 and 17, it appears that though the Survey No. 47 may be Government waste land but it was given on lease for the period of 20 years to one Saubhagyachand Vrundavan Shah for the purpose of mining. The aforesaid theory of further statement also cannot be believed at all because referring to the revenue record at Exhs. 16 and 17, it appears that though the Survey No. 47 may be Government waste land but it was given on lease for the period of 20 years to one Saubhagyachand Vrundavan Shah for the purpose of mining. Moreover, if at all for the sake of argument we believe that in the Government Land No. 47 the deceased had made encroachment or was trying to make encroachment, then also, the accused was supposed to take recourse under the law as well as drawing attention of Saubhagyachand Shah as to when land was given on lease. It is the fact that so far as document at Exhs. 16 and 17 is concerned, no much discussion has come on the record but, in our view, when the accused No. 1 has come with specific case as discussed hereinabove related to Exhs. 16 and 17 in his further statement, then the facts narrated in the exhibited documents can very well be appreciated. Furthermore, in the written explanation in further statement referred above, the case of scuffle only has been put up by the accused No. 1 as referred above. If we refer cross examination at paragraph 13 of deposition of P.W. No. 1, Rasilaben Chhaganbhai recorded at Exh. 24, it is deposed by the complainant that it is not true that the stick which hit my father was flung in the air unintentionally for self defense by Khima Manda. Thus, it appears that as such the stick in the hand of Khima Manda as per the prosecution case has been admitted by the defense in the cross-examination of the complainant and the theory of self-defense tried to be put up by the appellant-original accused No. 1 appears inconsistent and unbelievable as discussed by the trial court. In the cross-examination of Ramaben, the daughter of the deceased and sister of the complainant, at Exh. 32, not a single question has been asked about the self-defense theory put by the accused No. 1 though, as discussed above, her presence at the field has been admitted by the accused No. 1. In the cross-examination of Ramaben, the daughter of the deceased and sister of the complainant, at Exh. 32, not a single question has been asked about the self-defense theory put by the accused No. 1 though, as discussed above, her presence at the field has been admitted by the accused No. 1. The injuries inflicted by the original claimant No. 1 i.e. three to four stick blows to the deceased also get corroboration from medical evidence which fall under the definition of culpable homicide as discussed at length by the trial court. The opinion of the doctor as to how an injury was caused on the deceased cannot overrule unimpeachable testimony of eyewitnesses. If culpable homicide does not amount to murder, section 304 of IPC gets attracted and as discussed by the learned Trial Judge at length, it can be said without any doubt that accused No. 1 is liable to be sentenced for the offence as stated in part-II of Section 304 of IPC. 16. It is important to note at this juncture that findings and conclusions arrived at by the learned Trial Judge related to accused No. 1 regarding the offence committed by him under Section 304 Part II of IPC appear to be right conclusion but thereafter after hearing the accused No. 1 on the point of imposition of sentence, the learned Trial Judge, considering the facts that two sons of accused No. 1 are respectively studying in College and School and accused No. 1 is the sole bread earning member of the family and he is 56 years of age having no past criminal antecedents, has convicted and sentenced accused No. 1 to undergo rigorous imprisonment for five years with a fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for one year for the offence punishable under Section 304 Part-II of Indian Penal Code. In our view, the learned Trial Judge has shown much leniency without any proper justification more particularly when the minimum imprisonment prescribed under section 304 Part-II of IPC is 10 years and fine. 1,000/-, in default, to undergo further rigorous imprisonment for one year for the offence punishable under Section 304 Part-II of Indian Penal Code. In our view, the learned Trial Judge has shown much leniency without any proper justification more particularly when the minimum imprisonment prescribed under section 304 Part-II of IPC is 10 years and fine. Therefore, the justification for reduction of sentence given by the learned Trial Judge as such is not convincing and not tenable in law but considering the fact that after the present appeals have been admitted by this Court as early as in 1996, appeals have been heard and disposed of after about 18 years and as such, the accused No. 1 is presently aged about 82 years and suffering from age related problems and hence, we thought it fit not to increase the sentence which has been awarded by the learned Trial Judge and accordingly, we leave the said issue to be ended there only. 17. In view of the above, Mr. Nanavaty, the learned Senior Counsel for the accused No. 1 failed to point out any lacuna on the part of the prosecution in leading evidence and establishing the guilt of the accused No. 1. 18. The attempt made by Mr. Nanavaty to reduce sentence of R.I. further and to impose more fine and award compensation to the complainant and family members of the deceased in view of the age of the accused No. 1 and his physical ailment due to age cannot be countenanced for the simple reason that sentence imposed is much less keeping in view of gravity of the offence proved and as recorded by us hereinabove, it would have been a case for enhancement of sentence. However, for age of accused No. 1, we have left the matter at that stage only. But if the sentence is further reduced, it would be a mockery and the purpose of sentence to create deterrent effect would be completely lost. The reference may be made to the decision of the Apex Court in the case of Sumer Singh Vs. Surajbhan Singh and others reported in (2014) 7 Supreme Court Cases 323. Paras 33 and 36 related to exercise of power while imposing sentence which read as under: "33. The reference may be made to the decision of the Apex Court in the case of Sumer Singh Vs. Surajbhan Singh and others reported in (2014) 7 Supreme Court Cases 323. Paras 33 and 36 related to exercise of power while imposing sentence which read as under: "33. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion. It is because the ringing of poignant and inimitable expression, in a way, the warning of Benjamin N. Cardozo in The Nature of the Judicial Process:- "The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life'." 34. .... 35. .... 36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. While imposing the sentence it is the Court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial judge." [Emphasis Supplied] 18.1 The learned counsel for the appellant has also placed reliance on decision of the Apex Court in the case of Ankush Shivaji Gaikwad Vs. State of Maharashtra reported at (2013) 6 SCC page 770 para 48 on which the learned counsel for the appellant has placed much reliance which reads as under: "48. The question then is whether the plenitude of the power vested in the courts under Sections357 and 357-A, notwithstanding, the courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the courts. The question then is whether the plenitude of the power vested in the courts under Sections357 and 357-A, notwithstanding, the courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the courts. In other words, whether courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them?" We have carefully gone through the above referred decision of the Apex Court. Referring to paragraph Nos. 27 and 68, it is clear that sentence imposed under Section 302 of IPC by the Courts below had been converted under section 304 Part-II of IPC and further sentenced to undergo RI for a period of five years and under such circumstances, compensation was awarded by the Apex Court. As discussed hereinabove, in the case on hand, the learned Trial Judge had shown too much leniency without any proper justification as discussed above. In our view, the above referred decision is not applicable to the case on hand, because the benefit which had been considered by the Apex Court had already been granted by the learned Trial Court and as discussed above, we have thought it fit not to increase the sentence which had been awarded by the trial Court. 19. However, looking to the nature of injuries alleged to have been inflicted on other injured persons by the accused Nos. 2 to 6 more particularly accused Nos. 2, 4 and 6 and the acquittal of the said accused do not require any interference on the grounds contended by the learned APP because the ingredients of unlawful assembly are also not satisfactorily proved by the prosecution so far as rest of accused Nos. 2 to 6 is concerned. From the record, it clearly appears that even minor contradictions, omissions, discrepancies or any kind of improvements are not noticed by us in the findings recorded by the learned Trial Judge. However, no error appears on record in appreciating the evidence, oral as well as documentary, findings and conclusions arrived at by the learned Judge in passing the impugned judgment and order of conviction and sentence as well as acquitting the accused Nos. 2 to 6 respectively as discussed above. However, no error appears on record in appreciating the evidence, oral as well as documentary, findings and conclusions arrived at by the learned Judge in passing the impugned judgment and order of conviction and sentence as well as acquitting the accused Nos. 2 to 6 respectively as discussed above. The learned Trial Judge has properly appreciated the oral as well as documentary evidence and no interference is called for by this Court either in exercise of powers under Section 374 or under Section 378(1)(3) of Cr.P.C., 1973. 20. Accordingly, both these appeals are dismissed. Impugned judgment and order dated 4-6-1996 delivered by the learned Addl. Sessions Judge, Junagadh, in Sessions Case No. 73 of 1995 is accordingly confirmed. At this stage, it is reported by learned counsel for the parties that accused No. 1 is on bail. Therefore, his bail bond shall stand cancelled and he is directed to surrender before the jail authority within a period of eight weeks from today to undergo the remaining period of sentence imposed on him by the learned Trial Judge. The period of sentence already undergone by accused No. 1 shall be considered for remission. Remaining part of the impugned judgment and order passed by the trial court including fine, etc. will remain unaltered. 21. Registry shall send back the record and proceedings to the learned trial court.