JUDGMENT : Harsha Devani, J. 1. All these appeals arise out of the common judgment and order dated 12.07.2011 passed by the learned Additional Sessions Judge, Viramgam in Sessions Case No. 4 of 2006 and hence, the same were taken up for hearing together and are decided by this common judgment. 2. Criminal Appeal No. 984 of 2011 has been filed by three appellants, viz., (1) Valabhai Gelabhai Bharwad, (2) Mulabhai Gelabhai Bharwad and (3) Merabhai Gelabhai Bharwad. The appellant No. 1 has been convicted for the offence under sections 326, 324 read with section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and fine of Rs.10,000/-, and in default of payment of fine to undergo further simple imprisonment for three months for the offence under section 326 read with section 149, IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for a further period of two months. The appellant No. 2 has been convicted for the offence under section 326, 324 read with section 149, IPC and sentenced to undergo rigorous imprisonment for five years and fine of Rs.10,000/-, and in default of payment of fine to undergo further simple imprisonment for three months for the offence under section 326 read with section 149, IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for a further period of two months. The appellant No. 3 has been convicted for the offence under section 325 read with section 149, IPC and has been sentenced to undergo rigorous imprisonment for four years and fine of Rs.5,000/-, and in default of payment of fine, to undergo simple imprisonment for three months. 3. Criminal Appeal No. 1144 of 2011 has been filed by three appellants being (1) Bhopabhai Tejabhai Bharwad, (2) Viththal alias Kuchiyo Moti Bharwad and (3) Bachuji Ranchhodji Thakor. The appellant No. 1 has been convicted for the offences under section 302, 307read with section 149 of the Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs. 10,000/-, and in default of payment of fine, to undergo rigorous imprisonment for three months. The appellant No. 1 has been convicted for the offences under section 302, 307read with section 149 of the Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs. 10,000/-, and in default of payment of fine, to undergo rigorous imprisonment for three months. The appellant No. 2 has been convicted for the offence under sections 307, 323 read with section 149, IPC and has been sentenced to undergo ten years rigorous imprisonment for the offence under sections 307 and 149, IPC and fine of Rs.10,000/-, and in default of payment of fine, to undergo rigorous imprisonment for one year. For the offences under section 323 read with section 149, IPC, the appellant No. 2 has been sentenced to undergo simple imprisonment for six months and fine of Rs.3,000/-, and in default of payment of fine, to undergo simple imprisonment for one month. The appellant No. 3 has been convicted for the offence under sections 302, 325 read with section 149, IPC. For the offence under section 302 read with section 149, IPC, the appellant No. 3 has been sentenced to undergo life imprisonment and fine of Rs.10,000/-, and in default of payment of fine, to undergo rigorous imprisonment for six months. For the offence under section 325 read with section 149, IPC, the appellant No. 3 has been sentenced to undergo rigorous imprisonment for four years with fine of Rs.5,000/-, and in default of payment of fine, to undergo rigorous imprisonment for two months. 4. Criminal Appeal No. 1203 of 2011 has been filed by the State of Gujarat against the original accused No. 1, 4, 5 and 7, namely, (1) Satabhai alias Haidar Gela Bharwad, (2) Devabhai Samatbhai Bharwad, (3) Naranbhai Samatbhai Bharwad and (4) Udaji Ranchhodji Thakor, challenging the impugned judgment and order, whereby the said accused persons have been acquitted of the charges levelled against them. 5. Criminal Appeal No. 1204 of 2011 has been filed by the State of Gujarat against the original accused No. 3, 6, 8, 9 and 10, namely, (1) Valabhai Gelabhai Bharwad, (2) Viththal alias Kuchiyo Moti Bharwad, (3) Bachuji Ranchhodji Thakor, (4) Mulabhai Gelabhai Bharwad and (5) Meralbhai Gelabhai Bharwad, challenging the conviction of the said accused persons for lesser offences only and not under section 302 read with section 149, IPC. 6. 6. Criminal Appeal No. 46 of 2012 has been filed by Jasubhai Ayubbhai Miyana an injured eyewitness, who has been examined as prosecution witness No. 3, challenging the judgment and order of conviction and sentence for lesser offences and seeks a finding of guilty under section 302 read with section 149 of the Indian Penal Code qua all the four accused, viz., respondents No. 2 to 5. 7. At the outset, Mr. J.M. Panchal, learned Special Public Prosecutor states that in view of the fact that the accused No. 3 - Bachuji Ranchhodji Thakor in Criminal Appeal No. 1204 of 2011 has already been convicted for the offence under section 302, 305 read with section 149, IPC and sentenced to life imprisonment, the question of enhancement of sentence does not arise and he, therefore, does not press this appeal. 8. The facts giving rise to these appeals are that in the aftermath of the unfortunate post-Godhra communal riots, on 28.02.2002, communal disturbances had occurred in many parts of Viramgam, including damaging one Jorawar Pir Ni Dargah, burning of hedges of the agricultural field of one Gulmahammad Raising. It is the case of the prosecution that a mob armed with deadly weapons like sword, dhariya, gupti, stick, etc. was causing damage to the Jorawar Pir Ni Dargah whereupon, some of the residents of Miyana Ni Chali asked them to desist from doing so, whereupon the mob assaulted them with deadly weapons, resulting in the death of (1) Haiderbhai Bavabhai Bhatti, aged 38 years, (2) Jummabhai Jusabbhai Khod, aged 52 years and (3) Imranbhai Ismailbhai Bhatti, aged 14 years. 9. A consolidated first information report, being Viramgam Town Police Station I - C.R. No. 13/2002, was registered in respect of the rioting between 11:00 hours to 15:30 hours on 28.02.2002 in all the different areas of Viramgam town, which was lodged by Mr. T.S. Patel, Police Inspector, Viramgam at 16:00 hours on 28.02.2002 for the offences under sections 395, 302, 153A, 353, 147, 144, 145, 146, 147, 148, 436, 337, 338, 323, 325, 324and 326 of the Indian Penal Code and section 25(1) of the Arms Act. T.S. Patel, Police Inspector, Viramgam at 16:00 hours on 28.02.2002 for the offences under sections 395, 302, 153A, 353, 147, 144, 145, 146, 147, 148, 436, 337, 338, 323, 325, 324and 326 of the Indian Penal Code and section 25(1) of the Arms Act. Upon completion of the investigation, charge-sheet came to be filed against a total of ten accused persons for the offences punishable under sections 143, 147, 148, 149, 323, 324, 325, 326, 302, 307,295 and 153A of the Indian Penal Code before the learned Judicial Magistrate First Class, Viramgam, who committed the case to the Sessions Court, Viramgam, where the same came to be registered as Sessions Case No. 4 of 2006. The Sessions Court framed the charge at Exhibit-4 for the offences punishable under sections 143, 147, 148, 323, 324,325, 326, 302, 307, 295, 435, 436 and 153A read with section 149 of the Indian Penal Code as well as section 135 of the Bombay Police Act. It appears that after three prosecution witnesses had been examined, some of the witnesses filed an application dated 02.01.2010 seeking further investigation under section 173(8) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), which came to be rejected by the trial court. The said order came to be challenged before this court in Criminal Revision Application No. 74 of 2010, which came to be allowed by an order dated 13.07.2010 and further investigation was entrusted to the Deputy Superintendent of Police, Ahmedabad (Rural). 10. To bring home the charge, before the trial court, the prosecution examined in all twenty one witnesses and adduced numerous documentary evidences as follows:- PW No. NAME EXH. No. NATURE 1 Dr. Saumil Premchandbhai Merchant 17 Conducted autopsy of deceased Haiderbhai Bababhai Bhatti. (proved Exh.-21-P.M. Note) 2 Dr. Rampyare Prasad Verma 24 Conducted autopsy of deceased Jummabhai jusabbhai Bhatti. (proved Exh.-29-P.M. Note) 3 Jusabbhai Lagabhai Ghatiya 33 Panch witness of inquest-proceedings of the dead-bodies of Jummabhai Jusabbhai Bhatti and Imranbhai Ismailbhai Bhatti. (Hostile) 4 Balwantbhai Narsibhai Thakor 48 Panch Witness of the scene of offence panchnama (Exh.-49) and panchnama (Exh.-50) of seizure of weapons from A-1 to A-9. (Hostile) 5 Ashokkumar Bhikhabhai Parmar 51 Panch witness of panchnama (Exh.-50) of the seizure of weapons from A-1 to A-9. (Hostile) 4 Balwantbhai Narsibhai Thakor 48 Panch Witness of the scene of offence panchnama (Exh.-49) and panchnama (Exh.-50) of seizure of weapons from A-1 to A-9. (Hostile) 5 Ashokkumar Bhikhabhai Parmar 51 Panch witness of panchnama (Exh.-50) of the seizure of weapons from A-1 to A-9. (Hostile) 6 Husseinbhai Tharubhai Miyana 52 Eye-witness (Hostile) 7 Akhtarhussein Nizambhai Patel 55 Panch witness of the panchnama of the scene of offence (Exh.-49). (Hostile) 8 Gulmohammed Raisingbhai Samtani 63 Eye-witness (Hostile) 9 Nurmohammedbhai Jusabbhai Mowar 67 Eye-witness (Hostile) 10 Dostmohammed Suleimanbhai Miyana 68 Eye-witness (Hostile) 11 Bhairambhai Bodhabhai K. Patel 69 Panch witness of the panchnama (Exh.-70) of the seizure of weapons from A-10. (Hostile) 12 Mehboobbhai Dawoodbhai Mowar 71 Eye-witness (Hostile) 13 Jusabbhai Ayubbhai Miyana 72 Eye-witness (Hostile) 14 Dharmesh Kaushikbhai Thakkar 75 Pancha witness of the panchnama (Exh.-70) of the sizure of weapons from A-10. (Hostile) 15 Mohammedbhai Ayubbhai Miyana 76 Eye-witness (Hostile) 16 Dr. Vimalbhai Lakshmanbhai Prajapati 81 Conducted autopsy of deceased Imranbhai Ismailbhai Bhatti (proved the P.M. Report Exh.-92) as well as gave treatment to a) PW-10 (Exh.-83), b) PW-6 (Exh.-85), c) PW-9 (Exh.-89), d) PW-13 (Exh.-91), e) PW-15 (Exh.-87), 17 Chatrasinh Shivsinh Chavda, P.I.., Viramgaam Town P.S. 95 Effected the arrest of absconding accused A-10 and organized the drawing of seizure-panchanama (Exh.-70) from A-10 18 Keshbhai Joitabhai Prajapati, P.S.O., Viramgaam Town P.S. 99 Registered the complaint (Exh.102) received from PW.-19 into the F.I.R. being 1 st C.R. No. 13/2002. 19 Trikambhai Shankardas Patel, P.I., Viramgaam Town P.S. 101 Informant/complainant of the F.I.R. being 1 st C.R. No 13/2002. 20 Rajeshkumar Ramkumar Bansal, P.S.I., Viramgaam Town P.S. 105 The Investigation officer who carried out the investigation and submitted the charge sheet 21 Sandipsinh Harpalsinh, Dy. S.P., Ahmedabad (Rural) 108 The Investigation officer who, during the pendency of trial, was directed to carry out further-investigation by this High Court. 11. The trial court, after considering the submissions advanced by the learned advocates for the respective parties and appreciating the evidence on record, acquitted four of the accused persons giving them the benefit of doubt and convicted six of the accused persons for various offences and sentenced them to various terms as noted hereinabove. 12. Mr. B.M. Mangukiya, learned advocate for the appellants-convicts, took the court through the entire evidence on record and more particularly, to the testimonies of the witnesses at great length and in detail. 12. Mr. B.M. Mangukiya, learned advocate for the appellants-convicts, took the court through the entire evidence on record and more particularly, to the testimonies of the witnesses at great length and in detail. It was submitted that the entire prosecution case revolves round the testimonies of two eyewitnesses, viz., PW-13, Jusabbhai Ayubbhai Miyana and PW-15, Mahmadbhai Ayubbhai Miyana which suffer from various inconsistencies and do not inspire any confidence as regards the credibility of the said witnesses. Moreover, as per the prosecution case, in all, there are five injured witnesses, however, three of them have not supported the prosecution case and have been declared hostile, whereas the two witnesses who have supported the prosecution case, have a motive to falsely implicate the accused and hence, their testimonies not being trustworthy, cannot be relied upon to base a conviction. It was submitted that while it is true that if the witnesses exaggerate, the principle of separation of the grain from the chaff would apply, however, the said principle cannot be pressed into service in case where the evidence of the witness in its entirety is so interwoven with falsehood, that it is not possible to separate the grain from the chaff. It was submitted that in such a case, the testimonies of such witnesses, like in the case at hand, have to be discarded. It was submitted that if the testimonies of the two witnesses are discarded, there is no other reliable evidence which can prove the guilt of the accused beyond reasonable doubt. 12.1 Mr. Mangukiya further submitted that it is the case of the prosecution that at about 02:00 p.m., the mob attacked the witnesses and the deceased persons near Jorawar Pir Ni Dargah; however, different versions have been given by the prosecution witnesses about the strength of the mob. It was submitted that in all eight persons are stated to have been assaulted by the mob, out of whom, three were killed and five were injured. The injured witnesses claim to have witnessed the incident from some distance, however, though two persons died on the spot and one was seriously injured, all the three persons were lying at the place of the incident for about two hours after which the dead bodies of two persons were brought to the residential area of the witnesses, that is, Miyana Ni Chawl. Thus, the conduct of the witnesses in leaving the three persons at the scene of offence for such a long time is not natural and raises suspicion as regards the truthfulness of the witnesses. 12.2 Referring to the record of the case, it was pointed out that deceased Haiderbhai Bavabhai Bhatti, who had sustained grievous injuries, was brought to the hospital. He however, did not disclose the name of the person who had assaulted him. Referring to the testimony of Dr. Rampyare Prasad Verma, PW-2, it was submitted that from the testimony of the said witness, it is evident that when Haiderbhai Bavabhai Bhatti was brought to the hospital, history had been given to the effect that stick blows had been inflicted on his right leg. Thus, though Haiderbhai Bavabhai had been brought to the hospital in an injured condition, he did not disclose the name of the person who had assaulted him. It was submitted that from the testimony of Dr. Rampyare Prasad Verma, two things emerge. Firstly, unknown persons had assaulted them and that, at the place of incident, there should have been blood, which was not found at the scene of incident, which makes it evident that the place of incident had been changed by the investigating agency. It was submitted that the first version, as stated by the prosecution witness is that the incident had taken place near Jorawar Pir Ni Dargah, whereas the hostile witnesses in their cross-examination have stated that the incident took place at Miyana Ni Chali. It was pointed out that in the cross-examination of Dr. Rampyare Prasad Verma, it has come out that Haiderbhai Bavabhai was fully conscious and could speak and that he sustained serious injuries and died subsequently. That the said doctor had inquired about the history, but Haiderbhai Bavabhai had not informed him about the names of the assailants. Therefore, it is evident that it was unknown persons who had assaulted the witnesses; however, the appellants herein have been falsely implicated in the offence in question. 12.3 Referring to the testimony of PW-13, Jusabbhai Ayubbhai Miyana, it was submitted that he is the star witness. The attention of the court was drawn to the cross-examination of the witness to point out his conduct. 12.3 Referring to the testimony of PW-13, Jusabbhai Ayubbhai Miyana, it was submitted that he is the star witness. The attention of the court was drawn to the cross-examination of the witness to point out his conduct. It was submitted that after sustaining injuries and returning home, this witness did not deem it fit to inform anyone, including the family members of the deceased persons, about the incident. Though he had visited the hospital on the same day, he did not deem it fit to inform anyone at the hospital. According to the learned counsel, the conduct of the witness has to be kept in mind while evaluating his testimony, as the same affects the reliability of the said witness. Similarly, reference was made to the testimony of PW-15, Mahmadbhai Ayubbhai Miyana, to submit that there are various improvements in his version. It was submitted that both the so called eyewitnesses had more than one occasion to disclose the names of the accused; however, the names were not given. It was submitted that the injured witnesses were treated at the Government hospital, but without police yadi and thereafter, the medical officer informed the police and after the approval of the police, they were treated as outdoor patients. Therefore, this was the best opportunity to disclose the names of the accused. However, the names of the accused were not disclosed either to the medical officer or to the concerned police officers who were informed by the medical officer. Moreover, the relatives of Haiderbhai Bavabhai, who was treated at Vadilal Sarabhai Hospital, had also not given the names of the accused either to the medical officers or to the police officers at Ellis Bridge Police Station. It was submitted that the statements of relatives were recorded by the Ellis Bridge Police Station, which show that the deceased persons were injured by some unknown persons. Thus, at the first available opportunity, the names of the accused have not been disclosed. The injured witnesses have admitted in their cross-examination that they have not disclosed the names of the accused though they were present when the bodies were brought and they too were taken to the hospital. It was submitted that having regard to the narration of the incident as given by two witnesses which suffers from many inconsistencies, their testimonies are not trustworthy and cannot be relied upon to base a conviction. It was submitted that having regard to the narration of the incident as given by two witnesses which suffers from many inconsistencies, their testimonies are not trustworthy and cannot be relied upon to base a conviction. 12.4 Next, it was submitted that the investigating agency has also changed the time of the occurrence. It was submitted that one set of witnesses have stated that the incident occurred at 2:00 p.m., another set of witnesses have stated that the incident took place at 5:00 p.m., whereas as per the testimony of the medical officer, the incident must have taken place at about 9:00 p.m. It was submitted that the prosecution has not been fair in this case and the facts which favour the accused have been suppressed and true facts have been concealed from the court, and hence, the investigation is tainted. 12.5 Referring to the panchnama of the scene of offence, it was submitted that as per the police who drew the panchnama, no bloodstains were found at the scene of offence, whereas as per the medical evidence, blood marks should have been found. It was submitted that while it is the case of the prosecution witnesses that they were told that the hedge of Gulmahmad Raisingbhai had caught fire and that they had gone to extinguish the same, however, they had not taken with them any equipment to extinguish the fire. Moreover, the panchnama of the scene of offence does not disclose any equipment for extinguishing the fire having been found at the scene of offence. It was submitted that there is material suppression on the part of the prosecution as far as disclosure of the names of the accused and examination of independent witnesses is concerned. Moreover, no evidence has been brought on record to prove the charge under section 149, IPC. It was contended that no evidence has been led to prove the common object nor has any covert or over act of the accused has been proved to bring home the charge under section 149, IPC. It was submitted that the inference and conviction of the crime under section 149, IPC can be drawn either from the direct evidence or from the circumstances and that there is lack of evidence to prove the charge. It was submitted that the inference and conviction of the crime under section 149, IPC can be drawn either from the direct evidence or from the circumstances and that there is lack of evidence to prove the charge. 12.6 Next, it was pointed out that in the cross-examination of the eyewitnesses, it has been brought out that there was enmity between the said witnesses and the accused persons and hence, the testimony of such witnesses is required to be scrutinized cautiously. According to the learned counsel, the investigation is a tainted one, inasmuch as, independent witnesses have not been examined; the place of incident and time have been changed; and the conduct of the witnesses is wholly unnatural. It was submitted that if the time and place of incident is seen, whole prosecution case falls to the ground. That even the presence of the witnesses is doubtful. It was argued that the accused have raised a probable defence and that once a probable defence is raised and the same is not disproved, the accused would succeed. It was submitted that unnatural conduct of the witnesses is corroborated by the fact of their not naming the accused at the first available point of time. It was urged that in the overall facts and circumstances of the case, the prosecution has not brought home the guilt of the appellants beyond reasonable doubt and hence, conviction cannot be sustained. 12.7 In support of his submissions, the learned counsel has placed reliance upon the decision of this court in the case of State of Gujarat v. Suraj alias Shant Pannabhai Solanki, 2013 (1) GLR 735 , wherein the prosecution case was based upon the testimony of a solitary eyewitness. The court found that the evidence did not inspire confidence due to unusual conduct on the part of the witness and the fact that such evidence was not corroborated by contemporaneous circumstances. The court also took note of the fact that the prosecution had not examined any independent witnesses and held that false implication of the accused could not be ruled out, there being enmity between two sides and accordingly, reversed the conviction. Reliance was also placed upon an unreported decision of this court in the case of Shanaji Dhulaji Thakore alias Chanaji Dhulaji Thakore v. State of Gujarat and another rendered on 26.10.2009 in Criminal Appeal No. 474 of 2002. Reliance was also placed upon an unreported decision of this court in the case of Shanaji Dhulaji Thakore alias Chanaji Dhulaji Thakore v. State of Gujarat and another rendered on 26.10.2009 in Criminal Appeal No. 474 of 2002. It was, accordingly, urged that the appeals deserve to be allowed and the judgment and order of conviction and sentence deserves to be quashed and set aside. 13. Opposing the appeals, Mr. J.M. Panchal, learned Special Public Prosecutor submitted that this is a riot case. The incident took place at a time when the riots were at the peak and the whole State was in the grip of riots. Referring to the panchnama of the scene of offence, it was pointed out that the same shows that a number of riots took place at Viramgam on the same day. The court, therefore, can take judicial notice of the prevailing situation. It was contended that ordinary investigation would stand on a different footing and the standard would not be the same in a situation like this. It was urged that while appreciating the evidence, the court would be required to keep in mind that the police force was not sufficient on those days and police forces from neighboring States and the Central Government were called for and that there was a hue and cry about the action and inaction of the police. Therefore, inaction by the police was a major issue. Considering the prevailing situation, maintenance of law and order was given prime importance and not the investigation. 13.1 It was submitted that the fact that the investigation was not carried out in a proper manner is evident from the fact that the bloodstained clothes of the deceased and the injured witnesses were not seized and sent to the Forensic Science Laboratory (FSL); no map of the scene of offence was prepared; weapons were not sent to the FSL, etc. It was argued that, however, improper investigation would not aid the accused otherwise it would tantamount to playing into the hands of the Investigating officer. It was submitted that if the investigating machinery fails, no fault can be found with the witnesses. It was argued that, however, improper investigation would not aid the accused otherwise it would tantamount to playing into the hands of the Investigating officer. It was submitted that if the investigating machinery fails, no fault can be found with the witnesses. 13.2 As regards the contention that at the first point of time the accused were not named and that in the medical history the names of the accused were not disclosed, it was submitted that on 28th February and 1st March, the hospitals were flooded with injured witnesses and dead bodies and at such a stage, recording of history was not given primacy It was contended that in any case, the doctor has to record a medico legal case, and details regarding the names of the accused etc., are not required to be given. It was further submitted that while evaluating the evidence, the social status of the witness is also required to be considered, inasmuch as, they are labourers and are ordinary persons who would not know the significance of giving the history before the doctor. According to the learned counsel, these are injured witnesses and their testimony will stand on a higher footing and that the mental status of the witness at this stage is also required to be kept in mind and he cannot be expected to state all the details. Accordingly, their evidence has to be appreciated according to their standards. 13.3 Next, it was contended that in case of an unlawful assembly, no specific role is required to be proved. It was submitted that mere lapse of investigation like non-examination of witnesses cannot benefit the accused. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of C. Muniappan v. State of T.N. (2010) 9 SCC 567 : AIR 2010 SC 3718, for the proposition that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc., which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. 13.4 Reliance was also placed upon the decision of the Supreme Court in the case of Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654 : AIR 2011 SC 1403 , wherein while dealing with a question of shoddy investigation of case, the court held that if primacy was given to such negligent investigation or to the omissions and lapses committed in the course of investigation, it will shake the confidence of people not only in the law enforcing agency, but also in the administration of justice. It was held that the failure on the part of the investigating officer in sending the bloodstained clothes to the FSL and the empty cartridges to the ballistic expert would not be sufficient to reject the version given by the eyewitnesses. 13.5 Insofar as the evidence of hostile witness is concerned, it was pointed out that most of the witnesses have been won over to the extent that one of the witnesses, namely, Dostmohmmad Suleman (PW-10) had filed a petition for further investigation, however, even the said witness was won over and he has not supported the prosecution case and has been declared hostile. It was submitted that obtaining an admission in cross-examination of a hostile witness cannot be given any importance and that the hostile witnesses cannot discredit the testimonies of the witnesses who support the prosecution case. It was submitted that obtaining an admission in cross-examination of a hostile witness cannot be given any importance and that the hostile witnesses cannot discredit the testimonies of the witnesses who support the prosecution case. It was submitted that the evidence of the hostile witness cannot be discarded to the extent the same supports the main case and if they are totally hostile, the testimonies of such witness cannot be relied upon. 13.6 Dealing with the contention raised by the learned counsel for the appellants that in terms of the medical opinion, bloodstains should have been found at the scene of offence, whereas the panchnama of the scene of offence does not disclose any bloodstains, the learned Special Public Prosecutor invited the attention of the court to the panchnama of the scene of offence, to point out that it was a general panchnama made in relation to various offences that had taken place throughout Viramgam and that the panchnama had been made under the lights of the Government vehicles. It was further pointed out that the scene of offence panchnama was not prepared in the presence of the witnesses but it was prepared by the police inspector who had gone to the scene of offence and drawn the panchnama. It was submitted that in these circumstances, when the panchnama is carried out under the lights of the Government vehicle and the exact place where the offence was committed was not pointed out, it was quite possible that the bloodstains might not have been detected by the persons who drew the panchnama. 13.7 As regards the testimonies of the eyewitnesses, it was submitted that the mental condition of the witnesses has to be taken into consideration and that they cannot be expected to state the facts as if something had happened under normal circumstances. It was submitted that both, PW-13 and 15, are injured witnesses and the injuries are proved through the testimonies of the Medical Officers. As regards the contention that the two eyewitnesses who have supported the prosecution case were inimical to the accused persons, it was submitted that the suggestion regarding the said witness being involved in prohibition cases has no relevance and that nothing has come on record to show that the witnesses were prosecuted at the instance of the accused. As regards the contention that the two eyewitnesses who have supported the prosecution case were inimical to the accused persons, it was submitted that the suggestion regarding the said witness being involved in prohibition cases has no relevance and that nothing has come on record to show that the witnesses were prosecuted at the instance of the accused. It was submitted that the presence of the two injured eyewitnesses is natural and their presence is not disputed. Furthermore, it has not been established that there were any enmity with the accused so as to falsely implicate them. 13.8 Reliance was placed upon the decision of the Supreme Court in the case of Mano Dutt v. State of U.P., (2012) 4 SCC 79 , wherein the court held that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. It was submitted that therefore, the testimonies of the injured witnesses carry great weight and that they are truthful witnesses, inasmuch as, there is no parrot type version in the testimonies of the two witnesses. 13.9 As regards the conduct of the witnesses, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Rana Pratap v. State of Haryana, (1983) 3 SCC 327 , wherein the learned Sessions Judge doubted the presence of the witnesses in view of their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. The court held that every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. The decision of the Supreme Court in the case of Bhag Singh v. State of Punjab, (1997) 7 SCC 712 , was cited wherein the court observed that it is a general handicap attached to all eyewitnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if they speak to all the events very well and correctly, their evidence becomes vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed from broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case, an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone. It should be remembered that what he witnessed was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone. 13.10 Reliance was also placed upon the decision of the Supreme Court in the case of Sucha Singh v. State of Punjab, (2003) 7 SCC 643 , wherein the court in the facts of the said case observed that so far as inaction of PWs 9 and 10 therein, in not coming to the rescue of the deceased is concerned, it had been noted by the trial court and the High Court that both of them were unarmed and bare-handed and the accused were armed with deadly weapons. The court held that how a person would react in a situation like this cannot be encompassed by any rigid formula. It would depend on many factors, like in that case where witnesses were unarmed, but the assailants were armed with deadly weapons. In a given case, instinct of self-preservation can be the dominant instinct. That being the position, their inaction in not coming to the rescue of the deceased could not be a ground for discarding their evidence. 13.11 The decision of the Supreme Court in the case of Umesh v. State of Maharashtra, (2007) 15 SCC 393 , was cited wherein the court was unable to accept the contention of the learned counsel for the appellant that the conduct of the eyewitnesses was unnatural as they had not disclosed the genesis of the incident to the members of the family of the deceased on the same day or they had not immediately reported the matter to the police. On scrutiny of the evidence of the eyewitnesses, the court held that they were natural and truthful witnesses. Their evidence was cogent, reliable and convincing and there was no good reason to disbelieve and discard their consistent and truthful version. The court held that it is well settled that every person who witnesses a murder reacts in his own way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate the evidence in a wholly unrealistic and unimaginative way. Mr. The court held that it is well settled that every person who witnesses a murder reacts in his own way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate the evidence in a wholly unrealistic and unimaginative way. Mr. Panchal submitted that for non-examination of witnesses, the investigating agency and the prosecution can be blamed, but not the witnesses. What is to be seen is whether the evidence on record is sufficient to base a conviction. If the evidence is not sufficient, non-examination may bear some significance. However, where evidence itself is sufficient, the non-examination of certain witnesses would not vitiate the prosecution case. 13.12 Reliance was placed upon the decision of the Supreme Court in the case of Kathi Bharat Vajsur v. State of Gujarat, (2012) 5 SCC 724 , for the proposition that when an eyewitness behaves in a manner that perhaps would be unusual, it is not for the prosecution or the court to go into the question as to why he reacted in such a manner. When faced with what is termed as "an unusual reaction" of an eyewitness, the court must only examine whether the prosecution story is in any way affected by such reaction. If the answer is in the negative, then such reaction is irrelevant. 13.13 Next, it was pointed out that in all there were ten accused out of whom only two, viz., accused No. 2 and 8 were convicted for the offence under section 302, IPC and were sentenced to undergo life imprisonment, whereas the accused No. 6, 3, 9 and 10 were convicted for lesser offences. In case of accused No. 1, 5, 4 and 7, there was a total acquittal. It was submitted that in the present case, the charge is under section 149, IPC; all the accused having formed unlawful assembly; and the trial court has convicted the accused persons for the relevant offences together with section 149, IPC. It was submitted that once it is established that there is an act of unlawful assembly, if any member thereof commits an offence, the whole assembly would be liable. It was submitted that individual role or overt act of an individual is not required to be proved once it is established that section 149, IPC is attracted. It was submitted that once it is established that there is an act of unlawful assembly, if any member thereof commits an offence, the whole assembly would be liable. It was submitted that individual role or overt act of an individual is not required to be proved once it is established that section 149, IPC is attracted. What is required to be taken into consideration is the conduct and behaviour of the accused persons immediately before the incident (proximity in time) at the time of incident and immediately thereafter. When all the persons are armed with weapons, it is an unlawful assembly. It was submitted that in the facts of the present case, the unlawful assembly indulged in acts of violence causing injuries and three murders and hence, the common object can be inferred, namely, to cause death and injuries. It was submitted that a person who is not a member of the unlawful assembly would prevent the accused from committing the offence or disassociate himself from them. In case all the members of the unlawful assembly continue till the common object is achieved, every member would be liable for the act of a single person. It was argued that it is not the case of defence that the accused were passersby and onlookers. Their defence is of total denial. Therefore, the nature of the assembly would speak for itself. It was submitted that in these circumstances, it is not permissible in law to say that there is no overt act on the part of a particular accused. Reliance was placed upon the decision of the Supreme Court in the case of Ramesh v. State of Haryana, AIR 2011 SC 169 : (2010) 13 SCC 409 , wherein the court was of the opinion that the common object of an unlawful assembly has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrence. The court held that it is an inference which has to be deduced from the facts and circumstances of each case. To attract the mischief under section 149 of the Penal Code, it is not necessary that each of the accused must commit some illegal overt act. The court held that it is an inference which has to be deduced from the facts and circumstances of each case. To attract the mischief under section 149 of the Penal Code, it is not necessary that each of the accused must commit some illegal overt act. When the assembly is found to be unlawful and if an offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. It has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. The learned Special Public Prosecutor submitted that the prosecution has only to prove the formation of an unlawful assembly and the commission of an offence and not the overt act of each member of the unlawful assembly. 13.14 In support of his submission, the learned Special Public Prosecutor placed reliance upon the decision of the Supreme Court in the case of Subal Ghorai v. State of W.B., (2013) 4 SCC 607 , wherein the court held thus: "52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section . Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section . Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly. 53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution." 13.15 It was submitted that in the facts of the present case, the accused persons who were members of the unlawful assembly indulged into acts of violence of damaging the Dargah and when they were requested not to do so, they attacked the deceased and the witnesses. It was submitted that the accused were armed with deadly weapons and had knowledge about the weapons wielded by the others; they started to use the weapons and assaulted the witnesses; and they came in a group and went back in a group, which is clearly suggestive of an unlawful assembly. The decision of the Supreme Court in the case of Om Prakash v. State of Haryana, (2014) 5 SCC 753 , was cited for the proposition that common object of an unlawful assembly can also be gathered from the nature of the assembly, the weapons used by its members and the behaviour of the assembly at or before the scene of occurrence. It cannot be stated as a general proposition of law that unless an overt act is proven against the person who is alleged to be a member of the unlawful assembly, it cannot be held that he is a member of the assembly. It cannot be stated as a general proposition of law that unless an overt act is proven against the person who is alleged to be a member of the unlawful assembly, it cannot be held that he is a member of the assembly. What is really required to be seen is that the member of the unlawful assembly should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of section 141 IPC. The core of the offence is the word "object" which means the purpose or design and in order to make it common, it should be shared by all. Needless to say, the burden is on the prosecution. It is required to establish whether the accused persons were present and whether they shared the common object. It is also an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object has developed at the time of incident. It was submitted that in the facts of the present case, the prosecution has duly established that the accused had formed an unlawful assembly and that the trial court was, therefore, not justified in convicting the accused No. 3, 6, 9 and 10 for lesser offences, while convicting the accused No. 2 and 8 of the offences under section 302, IPC. It was submitted that moreover, the trial court was not justified in totally acquitting the accused No. 1, 5 and 7. 13.16 It was submitted that the fact that the injured witnesses have turned hostile, will not change the scenario. It was submitted that two of the eyewitnesses have duly supported the prosecution case and that the defence has not been able to dislodge the veracity of the testimonies of the said witnesses. It was submitted that while it is true that there are various lapses on the part of the investigating agency in drawing a common first information report, scene of offence panchnama and not sending the weapons to the Forensic Science Laboratory, etc., the lapses on the part of the investigating agency would not corrode the testimonies of the eyewitnesses. It was pointed out that the witnesses have categorically stated only one place of incident, namely, Jorawar Pir Bava Ni Dargah on the way to Valana railway crossing. It was pointed out that the witnesses have categorically stated only one place of incident, namely, Jorawar Pir Bava Ni Dargah on the way to Valana railway crossing. It was submitted that before the court, certain statements have been elicited from the hostile witnesses, however, that would not come to their aid, inasmuch as, the contradictions are proved through the testimonies of the investigating officer and hence, their testimonies have to be discarded in toto as they do not in any manner support the prosecution case. 13.17 It was submitted that insofar as the history of assault is concerned, the doctors have recorded medico legal cases and that the two eyewitnesses have not given any history and hence, there is no question of any contradiction in their testimonies. Reliance was placed upon the decision of the Supreme Court in the case of Namdeo v. State of Maharashtra, (2007) 14 SCC 150 , for the proposition that it is well settled that it is quality of evidence and not quantity of evidence which is material. Quantity of evidence was never considered to be a test for deciding a criminal trial and the emphasis of courts is always on quality of evidence. The court placed reliance upon its earlier decision in the case of Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 : 1957 Cr.L.J. 1000, for the proposition that as a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Whether the corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the judge before whom the case comes. It was observed that the court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. 13.18 It was submitted that in the facts of the present case, the witnesses are injured eyewitnesses. They have no personal enmity with the accused persons. 13.18 It was submitted that in the facts of the present case, the witnesses are injured eyewitnesses. They have no personal enmity with the accused persons. Their testimonies do not suffer from any serious inconsistencies and hence, conviction can be based upon the testimonies of the two eyewitnesses. Reliance was also placed upon the decision of the Supreme Court in the case of Veer Singh v. State of U.P., (2014) 2 SCC 455 , for the proposition that it is settled law that the testimony of the hostile witness need not be discarded in toto and that portion of testimony in the chief-examination which supports the prosecution case can be taken for consideration. The court further held that the legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. The evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under section 134 of the Evidence Act. As a general rule, the court can and may act on the testimony of a single witness provided he is wholly reliable. It was submitted that when the accused are known to the witnesses, there is no question of a test identification parade. It was submitted that on the evidence which has been brought on record, the involvement of nine persons in the unlawful assembly has been clearly established. Therefore, all the other co-accused should also be convicted with the aid of section 149, IPC. It was submitted that the ocular evidence is required to be given primacy and not medical evidence and that in the present case, when cogent, overwhelming, reliable and trustworthy evidence has been adduced, the appeals deserve to be allowed by convicting the accused persons for the offence under section 302, IPC with the aid of section 149, IPC. 14. Mr. It was submitted that the ocular evidence is required to be given primacy and not medical evidence and that in the present case, when cogent, overwhelming, reliable and trustworthy evidence has been adduced, the appeals deserve to be allowed by convicting the accused persons for the offence under section 302, IPC with the aid of section 149, IPC. 14. Mr. S.M. Vatsa, learned advocate for the appellant in Criminal Appeal No. 46 of 2012 adopted the submissions advanced by the learned Special Public Prosecutor and further submitted that in the facts of the present case, the presence of the respondents accused at the scene of offence at the time of the incident wielding deadly weapons along with specific overt acts in causing injuries to the deceased, viz., Haiderbhai Bavabhai Bhatti, deceased Jumabhai Jusabbhai Khod and deceased Imran Ismail Bhatti, has come on the record and hence, it is clear that they were all the members of the unlawful assembly sharing the common object. Therefore, the impugned judgment convicting the respondents for lesser offences is contrary to the overwhelming evidence appearing against them in the accounts of the injured eyewitnesses. It was submitted that the testimonies of the injured eyewitnesses are duly corroborated by the injury certificates and the medical evidence in respect of description of wounds and cause of death as recorded in the three postmortem reports and other circumstantial evidences like recovery. The attention of the court was invited to the fact that the first information report was not lodged by any of the injured witnesses, but by the Police Inspector on the basis of the message received from the Viramgam Control Room. It was submitted that the contents of the first information report in relation to the incident in question, is on the basis of a yadi received from a Control Room. It was pointed out that Dr. Vimalbhai Prajapati, who has been examined at Exhibit-16, had treated the five injured witnesses and had stated that after examining them, he had sent a yadi and commenced treatment after the police arrived. The attention of the court was invited to the testimony of Dr. Vimalbhai Prajapati and more particularly, to the cross-examination, wherein the said witness has denied that while recording the history of the injured witnesses, he had asked them as to who had inflicted injuries upon them, at which place and with which weapons. The attention of the court was invited to the testimony of Dr. Vimalbhai Prajapati and more particularly, to the cross-examination, wherein the said witness has denied that while recording the history of the injured witnesses, he had asked them as to who had inflicted injuries upon them, at which place and with which weapons. The attention of the court was invited to the injury certificate issued by the said witness, to point out that the injuries sustained by the two eyewitnesses who have supported the prosecution case, are duly established through the testimony of the said witness. It was pointed out that from the testimony of the said witness, the injuries sustained by the other witnesses who have subsequently turned hostile and have not supported the prosecution case, are also proved. It was submitted that the conduct of the prosecution witnesses No. 13 and 15 is natural having regard to the circumstances of the case and their background, etc. Under the circumstances, there is no reason to disbelieve the testimonies of the said witnesses who are trustworthy and reliable and who have withstood the cross-examination at the instance of the learned advocate for the respondents. It was pointed out that in the cross-examination, it has been sought to suggest that there was a previous enmity between the parties; however, all the prohibition cases registered against the eyewitnesses are of the year 2007 onwards, whereas the incident in question occurred in the year 2002, which was much subsequent thereafter. The attention of the court was invited to the fact that the charge-sheet came to be submitted in the year 2006 and it was only after the charge came to be known, that the offences came to be registered against the two prosecution witnesses to submit that the complaints are not accidental. 14.1 Referring to the testimony of PW-19, Trikamdas Shankardas Patel, the Investigating Officer, it was pointed out that in his testimony, it has been stated that he is not aware as to whether Bipin Jayantilal Mehta, Head Constable had recorded statement of deceased Haiderbhai Bavabhai and the persons who took him to the hospital for treatment. It was submitted that under the circumstances, non-examination of this witness cannot even be said to be a defect affecting the prosecution case, inasmuch as, the said witness has merely given intimation to the Viramgam Police Station. It was submitted that under the circumstances, non-examination of this witness cannot even be said to be a defect affecting the prosecution case, inasmuch as, the said witness has merely given intimation to the Viramgam Police Station. 14.2 Referring to the testimony of PW-6, Hussainbhai Tharubhai Miyana, Exhibit-52, it was pointed out that he has not stated anywhere that the railway crossing was manned by anyone to submit that in these circumstances, the question of examining any such person who was not there would not arise. As regards the difference in timings, it was submitted that the learned counsel for the accused has placed reliance upon the evidence of the medical officer for the purpose of establishing the time of incident. Reference was made to the decision of the Supreme Court in the case of Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 , for the proposition that a medical witness called in as an expert to assist the court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the court. Mr. Vatsa submitted that a mere bald assertion on the part of the medical officer will not rule out the reliable cogent evidence of the injured eyewitnesses in the absence of the medical officer having enlightened the court on the technical aspect of the case by explaining as to how he had come to such opinion. The learned counsel also placed reliance upon the decision of the Supreme Court in the case of Thangavelu v. State of T.N., (2002) 6 SCC 498 , for the proposition that where there is evidence of eye witnesses and other circumstantial evidence, the doctor's evidence is only a probability and the court is required to consider other materials independently of the evidence of the doctor. 14.3 The learned counsel submitted that the evidence of the medical officer is only in the nature of an opinion evidence and cannot be given primacy over the testimony of the injured eyewitness. In support such submission, reliance was placed upon the decision of the Supreme Court in the case of Mangu Khan v. State of Rajasthan, (2005) 10 SCC 375, for the proposition that acceptable ocular evidence cannot be dislodged on such hypothetical basis for which no proper grounds were laid. 14.4 The attention of the court was invited to the testimony of PW-6 and PW-8, both of whom have not supported the prosecution case, to point out that the versions given by the witnesses in their examination-in-chief are inter se contradictory. Referring to the testimony of PW-10, Dostmohmmad Suleman, it was submitted that the conduct of this witness is required to be seen, inasmuch as, this witness had initially moved an application before the trial court for further investigation and had challenged the order of the trial court rejecting the application, in revision before the High Court. However, he has subsequently been won over and has not supported the prosecution case. Referring to the panchnama, Exhibit-50, which is the recovery panchnama of the weapons recovered from the accused persons, it was submitted that though the panchas have not supported the prosecution case, the seizure can also be proved during the testimony of the Investigating Officer which has been done in the present case. It was submitted that in the present case, the persons who have been acquitted were part of the unlawful assembly, and without any provocation, all the accused persons had immediately started indiscriminately attacking the witnesses and the deceased. That all that the witnesses did was ask them to desist from damaging the Dargah and these witnesses were not armed. Referring to the testimonies of the eyewitnesses, it was pointed out that despite the fact that the accused persons had been specifically named and their role had been described, the trial court has acquitted them. It was submitted that when an assault is indiscriminate, it is not possible to state which weapon was used by which assailant. The learned counsel had co-related the testimonies of the witnesses and the role attributed to each of the accused with the weapons which they had wielded, reference to which will be made at a later stage. It was submitted that when an assault is indiscriminate, it is not possible to state which weapon was used by which assailant. The learned counsel had co-related the testimonies of the witnesses and the role attributed to each of the accused with the weapons which they had wielded, reference to which will be made at a later stage. It was submitted that all the accused persons were wielding weapons which would lead to an inference that they shared a common object. It was urged that surrounding and confining a person by wielding weapons is sufficient to establish common object and hence, section 149, IPC would be squarely applicable to the facts of the present case. 14.5 It was further submitted that the injuries sustained by the deceased and the injured persons are duly corroborated by the recoveries from the accused and the testimony of the Medical Officers. It was submitted that having regard to the gravity of the situation, the defects do not go to the core of the prosecution case and cannot be dislodged by the testimonies of hostile witnesses who have been won over. It was submitted that formation of an unlawful assembly has been proved and established beyond reasonable doubt and consequently, each member with weapons cannot claim that he was not a member. Moreover, overt acts have been proved and that except for accused No. 4 - Devabhai, all the accused persons deserve to be convicted for the offence under section 302 read with section 149 of the Indian Penal Code. 14.6 Reference was made to the decision of this court in the case of Varjuben W/o. Devji Dahya Dafda v. State of Gujarat, 2014 JX (Guj.) 536, wherein the court has observed that the appreciation of ocular evidence is a hard task and there is no fixed or strait-jacket formula for appreciation of the ocular evidence. The court has enumerated the judicially evolved principles for appreciation of ocular evidence in a criminal case in paragraph-17 of the said decision. Reliance was also placed upon the decision of this court in the case of State of Gujarat v. Hasmukh alias Bhikha Gova Harijan, 1996 (1) GLR 292 , wherein it was held that it is only regarding the injury part that his evidence being of an expert is straightway admissible under section 45of the Evidence Act. Reliance was also placed upon the decision of this court in the case of State of Gujarat v. Hasmukh alias Bhikha Gova Harijan, 1996 (1) GLR 292 , wherein it was held that it is only regarding the injury part that his evidence being of an expert is straightway admissible under section 45of the Evidence Act. But so far as the evidence of the doctor regarding disclosure of name of assailant is concerned, that stands on a different footing as there the doctor is merely an ordinary witness and as such witness, it is the duty of the investigating officer to record his statement under sections 161 and 162 of the Criminal Procedure Code, 1973. The court observed that if while giving history of the assailants, the injured gives out the name of the assailant, and the manner in which the incident took place, then in that case, it is indeed the bounden duty of the Doctor to record the same as it is and he cannot be permitted to turn a deaf ear to it. It was submitted that while stating the history before the Medical Officer, it is not a sine qua non that it should contain names. Reference was made to the decision of the Supreme Court in the case of Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 , as regards the question of the weight to be attached to the evidence of a witness who was himself injured in the course of the occurrence. The court held that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. The court further held that where there is a contradiction between medical evidence and ocular evidence, ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence. Convincing evidence is required to discredit an injured witness. The court further held that where there is a contradiction between medical evidence and ocular evidence, ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence. The court further observed that in the facts of the said case, a very large number of assailants attacked one person, thus the witnesses cannot be able to state as to how many injuries and in what manner the same had been caused by the accused in such a fact situation, discrepancy in medical evidence and ocular evidence is bound to occur. However, it cannot tilt the balance in favour of the appellants. It was submitted that the testimonies of the prosecution witnesses are required to be evaluated in the light of the principles laid down in the above decision. 14.7 As regards the contention that the witnesses when they went to extinguish the fire were not carrying any equipment with them, the attention of the court was invited to the testimony of PW-8, to point out that in his examination-in-chief, he has stated that there was a well situated in his field. It was submitted that, therefore, there was no necessity for taking any buckets, etc. with them for the purpose of extinguishing the fire. It was submitted that having regard to the overall evidence which has come on record, the prosecution has duly established the charge against all the accused for the offences under section 302 read with section 149 of the Indian Penal Code and hence, the impugned judgement and order of the trial court, to the extent the same convicts the respondents for lesser offences only, is required to be set aside and the respondents are required to be convicted for the offences under section 302 read with section 149, IPC also. 15. In rejoinder, Mr. B.M. Mangukiya, learned advocate for the accused submitted that what is required to be examined by this court is whether the testimonies of the two eyewitnesses have minor discrepancies or whether the versions given by them are wholly unreliable. Referring to the testimonies of the injured eyewitnesses, it was pointed out that as per the versions given by them, several blows with weapons like sword, dharia, etc. have been inflicted upon the deceased; however, no corresponding injuries are found, which creates a doubt about the trustworthiness of their version. Referring to the testimonies of the injured eyewitnesses, it was pointed out that as per the versions given by them, several blows with weapons like sword, dharia, etc. have been inflicted upon the deceased; however, no corresponding injuries are found, which creates a doubt about the trustworthiness of their version. It was submitted that while it is the case of the witnesses that they had gone along with other witnesses to extinguish the fire on the hedge of the field of PW-8, they did not take any equipment with them to extinguish the fire, nor did they inform the fire brigade and that there was no source of water nearby. Moreover, the scene of offence panchnama also does not disclose any equipment for extinguishing the fire having been found. It was urged that in this background, the question that arises is whether the investigation is defective or tainted. According to the learned counsel, this is not a case of defective investigation, but a case of tainted investigation. It was submitted that the fact that there is no recovery of the clothes of the deceased or injured eyewitnesses, does not make the investigation defective but tainted because the clothes would have disclosed the nature of the injuries received. It was pointed out that as per the testimony of the medical officer, considering the nature of the injuries sustained by the deceased, blood would have trickled on the ground, however, though the panchnama of the scene of offence was drawn from 5:00 to 8:00 pm, but there is no recovery of bloodstained earth from the scene of offence. It was emphatically argued that the conduct of the two so-called eyewitnesses is also required to be seen. It was pointed out that the said witnesses have acted unnaturally in not disclosing the names of the accused at the relevant point of time. Referring to the testimonies of the Medical Officer who had treated the deceased Haiderbhai Bavabhai, it was pointed out that the injured witness who died subsequently did not disclose the name of the assailants. It was submitted that thus deceased Haiderbhai Bavabhai has not disclosed the names of the accused at either of the two hospitals where he was admitted. Not only that, even the relatives of Haiderbhai Bavabhai have not given the names of the accused and hence, it is evident that they were assaulted by unknown persons. It was submitted that thus deceased Haiderbhai Bavabhai has not disclosed the names of the accused at either of the two hospitals where he was admitted. Not only that, even the relatives of Haiderbhai Bavabhai have not given the names of the accused and hence, it is evident that they were assaulted by unknown persons. It was submitted that, therefore, both the witnesses are not reliable and the investigation is not fair. It was submitted that it is a settled legal position that the complainant should not be the Investigating Officer and therefore also, the entire investigation stands vitiated. Referring to the testimonies of the Investigating Officers, it was pointed out that both of them have stated that they have not visited the scene of offence, which is not a tenable version. Thus, this is not a case of defective investigation but a case of no investigation. 15.1 It was submitted that the medical evidence is in the nature of expert evidence and when the eyewitness says that there is use of sharp cutting weapons and medical evidence says otherwise, the ocular evidence is required to be discarded. Referring to the testimony of Dr. Vimal Prajapati, it was pointed out that he has categorically deposed that the life of the injuries sustained by Imran Ismail Bhatti is not beyond twelve hours, to submit that the same clearly falsifies the prosecution case that the incident had taken place in the afternoon. It was submitted that there is no evidence whatsoever so as to attract the provisions of section 149, IPC and that the evidence adduced by the prosecution is not consistent with the guilt of the accused. Therefore, the impugned judgment and order of conviction and sentence is required to be quashed and set aside and the appellants are required to be acquitted of the charges leveled against them and that the acquittal appeals filed by the respondent State of Gujarat and the injured witness, are required to be dismissed. 16. This court has considered the submissions advanced by the learned counsel for the respective parties and has minutely examined the record and proceedings of the case and has also perused the decisions cited at the Bar. 17. 16. This court has considered the submissions advanced by the learned counsel for the respective parties and has minutely examined the record and proceedings of the case and has also perused the decisions cited at the Bar. 17. From the evidence adduced by the prosecution and the rival submissions advanced by the learned counsel for the respective parties, it is apparent that the prosecution case mainly hinges upon the testimonies of the two injured eyewitnesses. Before evaluating the evidentiary value of the testimonies of the two injured eyewitnesses, reference may be made to the law laid down by the Supreme Court in this regard. 17.1 In Mano Dutt v. State of U.P. (supra), on which reliance has been placed by the learned Public Prosecutor, the Supreme Court held thus: "30. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. We need not discuss more elaborately the weight age that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. 31. We may merely refer to Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 where this Court held as under: "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar, (1973) 3 SCC 881 , Malkhan Singh v. State of U.P., (1975) 3 SCC 311 , Machhi Singh v. State of Punjab, (1983) 3 SCC 470 , Appabhai v. State of Gujarat, 1988 Supp SCC 241, Bonkya v. State of Maharashtra, (1995) 6 SCC 447 , Bhag Singh, (1997) 7 SCC 712 , Mohar v. State of U.P., (2002) 7 SCC 606 , Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270 , Vishnu v. State of Rajasthan, (2009) 10 SCC 719, Annareddy Sambasiva Reddy v. State of A.P (2009) 12 SCC 546 and Balraje v. State of Maharashtra, (2010) 6 SCC 673 .] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: '28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube well. In Shivalingappa Kallayanappa v. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629 , a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. 29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629 , a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459 ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.' 30. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." To the similar effect is the judgment of this Court in Balraje. 17.2 Thus, the testimony of the injured witness should be relied upon unless there are strong grounds for rejection of their evidence on the basis of major contradictions and discrepancies therein. Accordingly, the testimonies of the two injured witnesses viz. PW13 and PW 15 are required to be tested on the anvil of the above principles 18. Since, the testimonies of these two witnesses form the core of the prosecution case, it may be necessary to refer to the same in detail. PW-13, Jasubbhai Ayubbhai Miyana, who has been examined at Exhibit-72, has, inter alia, deposed that, on 27.02.2002, in the afternoon, the incident of burning of a train at Godhra had taken place, in relation to which the Vishwa Hindu Parishad had declared Gujarat Bandh. The bandh was declared on 28.02.2002. At the time of the incident, he was residing at Miyana Ni Chali, at Viramgam along with his mother and his brothers. The bandh was declared on 28.02.2002. At the time of the incident, he was residing at Miyana Ni Chali, at Viramgam along with his mother and his brothers. At that time, he was doing casual labour work. On 28.02.2002, in the afternoon at about 01:45 pm, he was at home and at that time, Gulmahammad Raising and Husseinbhai Tharubhai came to his house on a scooter. Gulmahammad Raising told him that the hedge of his field was burning and asked him to come to extinguish the fire. Upon his saying so, he and Gulmahammad Raising, together with Hussein Tharubhai, Ibrahimbhai Ismalbhai, Haiderbhai Bavabhai, Jummabhai Jusabbhai, Noormahammad Jusabbhai, Mahebubbhai Daudbhai, Mahamad Ayubbhai, Dostmohammad Sulemanbhai, all set off to extinguish the fire on the hedge of Gulmahammad's field. While they were going and on the way they reached near Jorawar Pir Ni Dargah, they saw that the Bharwads of Valana village, Bharwads residing near Kokta Fatak and Thakors had assembled with sticks, dharias, guptis and swords and were damaging the dargah. At that time, Hussein Tharu told them not to damage the dargah, whereupon the Bharwads and Thakors rushed at them. Kunchiya Bharwad of Valana village inflicted a stick blow on him which landed on the thumb of his right hand. At that time, Haider Bharwad had inflicted a sword blow on his hand and caused injury on his left arm. Valia Bharwad had inflicted a stick blow on his left thigh. Muliya Bharwad had inflicted a stick blow on his back. These people also started assaulting the other persons who were with him. Thereafter, he escaped and ran towards the village and stopped at a little distance. While standing at a distance, he saw that Muliya Bharwad had beaten Jummabhai Jasubbhai with stick and his companion Merabhai Bharwad was holding a stick, Bachu Ranchhod was holding a dhariya and Bhopabhai Bharwad was holding a gupti and they had indiscriminately inflicted blows on Jummabhai Jasubbhai. Thereafter, he returned to his house at the chali. Those of them who had sustained lesser or more injuries had also come back. At that time, Jummabhai Jusabbhai, Haiderbhai Bavabhai and Imranbhai Ismailbhai had not come back. Thereafter, Maheboobbhai Daudbhai and Noor-mahammad Jusabbhai had gone near Jorawar Pir Ni Dargah and brought Haiderbhai Bavabhai Bhatti home. Thereafter, he returned to his house at the chali. Those of them who had sustained lesser or more injuries had also come back. At that time, Jummabhai Jusabbhai, Haiderbhai Bavabhai and Imranbhai Ismailbhai had not come back. Thereafter, Maheboobbhai Daudbhai and Noor-mahammad Jusabbhai had gone near Jorawar Pir Ni Dargah and brought Haiderbhai Bavabhai Bhatti home. They, that is, Noormahammad Jusab and Maheboobbhai Daudbhai, told that Jummabhai Jusabbhai and Imranbhai Ismailbhai had died on the spot on account of the injuries sustained by them. Thereafter, Haiderbhai was at first taken to the Gandhi Hospital and then, he was taken to the V.S. Hospital, at Ahmedabad. He (the witness) had sustained injuries and hence, he had gone to Gandhi Hospital and obtained treatment. On 1st March, Haiderbhai died at Ahmedabad. The incident took place at around 4:30 in the evening. The police had inquired from him in connection with the incident. He does not remember as to after how much time, the police had questioned him. He does not remember even approximately as to when was the last time the police had recorded his statement prior to recording of his testimony. He has stated that he could identify the accused who were present in the court. He was shown the muddamal, whereupon he was in a position to identify the same. He was shown the muddamal dharia, stick, gupti, sword, etc whereupon he had stated that the same had been used by the accused on the date of incident. 18.1 In his cross-examination at the instance of the learned advocate for the accused, the witness has stated as follows: he has admitted that Haiderbhai Bavabhai was his real brother-in-law and was married to his elder sister Janubahen; he has admitted that Mohammedbhai Ayubbhai, who was a witness, was his elder brother; he has also admitted that the road from Miyani Ni Chali towards Machhardani Mill was a tar road and was known as the Mill road and that there were hotels, shops, pan-gallas, etc. belonging to Muslims on Mill road; he has also admitted that Gulubhai Raisingbhai's hotel was also situated on Mill road, which was set on fire by the Hindu mob and that Hasam Ayab was his brother and that at the time of the incident, he was plying a rickshaw, which was of his ownership. belonging to Muslims on Mill road; he has also admitted that Gulubhai Raisingbhai's hotel was also situated on Mill road, which was set on fire by the Hindu mob and that Hasam Ayab was his brother and that at the time of the incident, he was plying a rickshaw, which was of his ownership. The witness has also stated that he did not know that on the date of the incident, a Hindu mob had come to their chali and had set the rickshaw of his brother Hasam ablaze and that he had come to know about the same later on; and that he was not aware as to whether the police had come to draw a panchnama of the burnt rickshaw. He has admitted that on the date of the incident, in the Hindu and Muslim areas, Hindus and Muslims had burnt shops belonging to the other community and that on the date of the incident; Hindus had damaged dargahs and mosques of Muslims and that he had not gone to stop such damage. He has denied that their chali was at a distance of 5 kilometers from Valana village and has stated that it was approximately at a distance of 3 kilometers. He has admitted that Jorawar Pir Ni Dargah was at a distance of ten minutes on foot from Valana village. In his cross examination, he has further admitted that as per his knowledge, earlier, prior to the Godhra incident, Bharwads and Thakors of Valana and Kokta Fatak villages had not damaged the Jorawar Pir Ni Dargah. He has denied the suggestion that the people belonging to all communities have faith in Jorawar Pir Ni Dargah and they come for darshan. He has denied the suggestion that he does not know the people of the nearby villages and has stated that he does not know all the people, but he knows some of them and that he does not know the names of their fathers. He has also stated that he does not know the names of all the Hindus of Viramgam village and the names of their fathers. He has admitted that the police have not carried out any test identification parade of the accused before him. He has also admitted that he had been arrested in connection with a wire theft and a charge-sheet has been filed and the case is pending. He has admitted that the police have not carried out any test identification parade of the accused before him. He has also admitted that he had been arrested in connection with a wire theft and a charge-sheet has been filed and the case is pending. He has also admitted that about twenty days prior to the recording of his evidence, the Mamlatdar had obtained security under sections 107 and 151 of the Criminal Procedure Code for maintaining peace. He has admitted that Gulubhai Raisingbhai and Noormahmad Jasubbhai had filed an application against him before the police for threatening them and his surety was obtained in that regard. In his cross examination, it has further come out that it took him half an hour to reach his house on foot from the scene of incident and that he returned home through the agricultural fields; that after coming home, he had not narrated the incident to the people residing in the chali and had also not gone to the police station to lodge a complaint. He had gone to the hospital on his own at around 8 to 9 O'clock in the evening. The doctor had given him treatment and had asked him as to how he had sustained the injuries. He has admitted that it is true that he has not named the persons who had inflicted injuries on him, to the doctor. In his cross examination it is also revealed that the police had not given him any yadi for treatment; that when he had gone to the hospital, the police were not present there and that no one had accompanied him to the hospital. He has stated that all of them had not gone to the police station to lodge a complaint as regards the injuries sustained by them. He has admitted that before going to the hospital, his brother-in-law Haiderbhai had been brought home and all the people of the chali had gathered there and that he had not asked any of the people to inform the police about the incident. He has admitted that Haiderbhai had been taken to the hospital at 8 O'clock and that the police had come to the hospital and a yadi had been given for further treatment of his brother-in-law and he had been sent to Ahmedabad. He has admitted that Haiderbhai had been taken to the hospital at 8 O'clock and that the police had come to the hospital and a yadi had been given for further treatment of his brother-in-law and he had been sent to Ahmedabad. In his cross examination it has also come out that he had stayed at Gandhi Hospital for half an hour, and at that time he had not informed the police anything about the incident; when Haiderbhai was taken to the hospital, he was present, but he had not gone along with him to Ahmedabad; and that before he went to the hospital, deceased Jummabhai and Imranbhai had been brought to their chali. He has denied that upon these two persons being brought, a police bandobust had been arranged at their maholla. He has admitted that after obtaining treatment, he had not gone out of his house and that he had gone out of his house, on the next day. He has denied that the police had come to take the dead bodies of Jummabhai and Imranbhai for postmortem and had taken the dead bodies to the hospital. He has stated that he does not know as to who had taken the dead bodies to the hospital and as to when the police had come to their mohalla after the incident. He has stated that he had got the news about his brother-in-law Haiderbhai Bavabhai having passed away on 01.03.2002 on the same day at night and has admitted that he had not tried to lodge a complaint with the police in that regard; and that on the second day also, he had not given any complaint. He has also stated that his brother-in-law was buried at Ahmedabad and that his brother Dostmohammad had gone for the burial ceremony on the next day, that is, 02.03.2002. In this cross examination it has come out that on the next day, he was at home throughout the day and that they all wanted to lodge a complaint in connection with the injuries sustained by them. He has admitted that on the next day, both the brothers desired to inform the police about the incident, however, they had not gone. Similarly, on the third day also, they had gone, however, there was curfew in the town. The police had come to his house and had recorded his statement on 04.03.2002. He has admitted that on the next day, both the brothers desired to inform the police about the incident, however, they had not gone. Similarly, on the third day also, they had gone, however, there was curfew in the town. The police had come to his house and had recorded his statement on 04.03.2002. Upon the police coming to pick him up, he had gone to the police station and the police had recorded his statement. He has stated that he does not know as to when his brother had gone for recording his statement. He has denied the suggestion that he had not stated in his police statement that Hussein Tharu and Gulmahammad Raising had come to his house. He has voluntarily stated that he had stated the same before the police, but the police had not recorded it. He has denied the suggestion that he has not stated before the police that when they reached the dargah, it was being damaged. He has also denied the suggestion that in his police statement, he has not stated that at the time of the incident, upon Haider Bharwad dealing a blow with the sword that he was wielding in his hand, he had sustained an injury on the left arm and that upon Valia Bharwad inflicting a blow with a stick he had sustained an injury on his left thigh; and that, Muliya Bharwad had inflicted stick blow on his back. He has also stated that when Hussein Tharu told them (the mob) not to damage the dargah, they were at a distance of about ten feet from the dargah and he had heard the same. He has denied the suggestion that at the time when the incident took place, Husseinbhai Tharubhai was not present at the dargah. He has admitted that in his police statement, he has stated that the incident took place between 2:30 to 3:00 hours in the afternoon. In his cross-examination, it has further come out that the fire on Noormahammad's hedge was to be extinguished with buckets and water. He has admitted that they had not taken any steps for making a phone-call to the municipality for sending the fire brigade. He has also admitted that they had not taken any equipment for extinguishing the fire with them. He has admitted that they had not taken any steps for making a phone-call to the municipality for sending the fire brigade. He has also admitted that they had not taken any equipment for extinguishing the fire with them. He has also admitted that in Viramgam, the population of Hindus is more than the population of Muslims and that the atmosphere was tense on that day. He has admitted that they had set off to go to the scene of incident in such a tense atmosphere. He has admitted that they had gone running and that the Valana crossing comes on the way to the scene of offence and that there is a room at the crossing. They had gone there and got buckets and water and extinguished the fire. He has further stated that they had seen people damaging the dargah from a distance of about 10 to 15 feet. At that time, there were approximately ten persons at the dargah. He has stated that he was not aware as to whether the person, namely, Zakir Hussein who used to offer prayers at the dargah, was present there or not. He has denied the suggestion that there was a mob of more than fifty to sixty persons vandalizing the dargah. He has stated that at that time, the persons were vandalizing the dargah with weapons like sticks, swords, guptis, dharias, etc. and that they had broken the door of the dargah. At that time, none of them had lodged a complaint with the police. He has further admitted that in connection with the offence, they had not informed any other person belonging to the Muslim community about the damage caused to the dargah and that none of them had made any phone call to inform anyone and had also not informed the person at the crossing about the same. That they had not inquired as to whether Zakir Hussein who used to offer prayers at the dargah was present or not. He has denied the suggestion that he had not stated before the police that they had extinguished the fire with buckets of water. He has admitted that they had gone to the dargah at the instance of Gulmahamad Raising and Hussein Tharu and that they had both come with them. He has denied the suggestion that he had not stated before the police that they had extinguished the fire with buckets of water. He has admitted that they had gone to the dargah at the instance of Gulmahamad Raising and Hussein Tharu and that they had both come with them. He has further deposed that in the incident, Maheboob Daud and Gulmahamad Raising had also sustained injuries, which he had seen. He, however, does not recall exactly how many injuries they had sustained and both of them were near him at that time. He has deposed that he does not remember as to who caused injuries to them. He has admitted that in his application for further investigation, he had not mentioned that Haider Bharwad having inflicted a sword blow on his left arm and Valia Bharwad and Muliya Bharwad having inflicted stick blows on him. He has stated that Kuchia Bharwad had beaten him with a stick on the road in front of the Dargah and that he had beaten him with force. On account of the injuries, his thumb was fractured and blood was oozing out. He has admitted that prior to the police having recorded his statement on 4th March, he has not informed anyone that Kuchia Bharwad had assaulted him with a stick. He has denied the suggestion that he has not produced the bloodstained clothes before the police; he stated that he had given the same, but the police had not taken them. 18.2 In his cross-examination, the witness has further stated that from where he was standing he had seen Jummabhai being beaten and that, he cannot state as to exactly how many blows Bhopabhai had inflicted on Jummabhai with a gupti and that he was indiscriminately inflicting blows on him. He has categorically stated that Bhopabhai had inflicted blows with a gupti on Jummabhai. He has further stated that he cannot say as to exactly how many blows had been inflicted by Bachubhai Ranchhodbhai with a dharia. Similarly, he cannot say as to how many stick blows had been inflicted by Muliya Bharwad and Merabhai Bharwad. He has stated that all of them were assaulting Jummabhai who had fallen on the road and that he was bleeding. He has stated that he did not try to save him and that Jummabhai was lying on the ground and was bleeding. He has stated that all of them were assaulting Jummabhai who had fallen on the road and that he was bleeding. He has stated that he did not try to save him and that Jummabhai was lying on the ground and was bleeding. He has further stated that he had shown the police the place in front of the dargah where Jummabhai had fallen down and had also shown the bloodstains to them, however, the police had not drawn any panchnama at that time. The police had not recorded his statement. He wanted to save Jummabhai at the time of the incident; however, there were many persons from the opposite side and hence, he had not gone to rescue him. He has stated that after the incident, he had stayed at home for four days and had not made any written application to the police. He has admitted that Haiderbhai was brought in an injured condition by Maheboob Daud and Noormahamad Jusab. Both of them had lifted him and brought him to their mohalla. He has denied the suggestion that his brother Mohammad Ayub is carrying on the business of distilling liquor at the boundary of Kofta village and when the village people had informed the police, the police had registered a case against him and had arrested him. He had denied the suggestion that it is because of this reason that both the brothers had given statements before the police narrating the details of the incident. He has denied the suggestion that Haiderbhai Bharwad, Valia Bharwad, Muliya Bharwad and Kuchia Bharwad have not inflicted any injuries on him and Jummabhai. He has denied that in view of enmity with the accused, he has falsely implicated them in the offence and has falsely testified against them. 19. PW-15, Mahamadbhai Ayubbhai Miyana has been examined at Exhibit-76. He has, inter alia, deposed that on 28.02.2002, at about 2:00 to 2:15 hours, Gulmahmad Raisingbhai and Husseinbhai Tharubhai had come and informed that the hedge next to the wheat field near Jorawar Pir Ni Dargah was ablaze and smoke was coming out and that they had to go to extinguish the same, hence, they had gone to extinguish the fire. Gulmahmad Raisingbhai, Husseinbhai Tharubhai, Maheboob Daud, Jumma Jusab, Imran Ismail, Haider Bava, Dostmohmmad Suleman and Jusab Ayub had gone to extinguish the fire on the hedge. Gulmahmad Raisingbhai, Husseinbhai Tharubhai, Maheboob Daud, Jumma Jusab, Imran Ismail, Haider Bava, Dostmohmmad Suleman and Jusab Ayub had gone to extinguish the fire on the hedge. The Thakors of Valana village and Kofta Fatak and the Bharwads of Valana village were vandalizing the dargah. They were armed with weapons like swords, sticks, gupti, etc. At that time, Gulmahamad and other persons asked them not to damage the dargah, whereupon the mob got provoked and they started indiscriminately assaulting everyone. At that time, Kuchiya Bharwad had inflicted a stick blow on his head and when he was about to deal another blow on this head with a stick, he had put his hands across and had sustained injuries on the fingers of his hands. Kuchiya Bharwad had also inflicted a blow with a stick on his back. At that time, he had run away towards Gulmahamad Raisingbhai's field and stood there and saw that Valiyo Bharwad was inflicting stick blows on Haider Bava. Bhopa Bharwad had a gupti in his hand and he was indiscriminately inflicting blows with the gupti on Haider Bava. Mera Gela Bharwad had a stick in his hand and he had also inflicted blows on Jumma Jusab. Muliya Bharwad was wielding a stick in his hand and he too had inflicted blows with the stick on Jumma Jusab. Moreover, Bhopa Bharwad was wielding a gupti and he too had indiscriminately dealt blows with the gupti on Jumma Jusab. Moreover, at the time of the incident he had seen that Naran Sarpanch of Valana village had a dhariya in his hand and with that dhariya, he had caused injuries to Imran Ismail Bhatti. At that time, Kuchiya Bharwad had inflicted blows on Imran Ismail with a stick. Udaji Ranchhodji also had a stick and he had inflicted blows on Imran Ismail. The Bharwads and Thakors had inflicted serious injuries on Imran Ismail and Haiderbhai Bavabhai and had thereafter left the scene. Thereafter, Mehboob Daudbhai came and had taken away Haiderbhai Bavabhai. He had initially taken him home. Haiderbhai Bavabhai had sustained injuries on his face, abdomen, legs, etc. and was thereafter taken to Viramgam Hospital for further treatment, where he had passed away on 1st March, 2002 at 11:45 at night. Thereafter, Mehboob Daudbhai came and had taken away Haiderbhai Bavabhai. He had initially taken him home. Haiderbhai Bavabhai had sustained injuries on his face, abdomen, legs, etc. and was thereafter taken to Viramgam Hospital for further treatment, where he had passed away on 1st March, 2002 at 11:45 at night. He has further deposed that the incident of beating Haiderbhai Bavabhai and Imran Ismail had taken place at about 02:30 to 03:00 hours in the afternoon on 28th February, 2002. In this incident, Imran Ismailbhai Bhatti had fallen at the scene of offence near Jorawar Pir Ni Dargah and died. Similarly, Jummabhai Jusabbhai had died on the spot near the crossing near Jorawar Pir Ni Dargah. At the time when the incident had taken place, he was residing at Miyana Ni Chali. The police had not interrogated him. He has further deposed that two or three days after the incident, a police vehicle had come to his house and his statement was recorded. He has identified the accused in the court as well as the weapons that were wielded by them. He has further stated that he had availed of treatment at Gandhi Hospital. 19.1 In his cross-examination at the instance of the learned advocate for the accused, he has deposed that he does not know as to whether the police have recorded his statement after the death of Haiderbhai Bavabhai. He has admitted that the police had recorded his statement on 03.03.2002. He has stated that his statement was recorded two days after the death of Haiderbhai Bavabhai. In his cross-examination, he has further stated that the police had recorded his correct statement. He has also admitted that Haiderbhai Bavabhai is his brother-in-law and that in his statement before the police he had not stated that Haiderbhai Bavabhai was his brother-in-law. He has denied the suggestion that he was a got up witness and therefore, he has not stated in his police statement that Haiderbhai Bavabhai is his brother-in-law. In his cross-examination, he has further stated that Kuchia Bharwad had forcibly inflicted a blow on his head with a stick and that there was a crack on his head and his head was bleeding and that his clothes had got stained with blood. That he had shown injury to the doctor who had treated him. No stitches were taken and that after giving him treatment, he was discharged. That he had shown injury to the doctor who had treated him. No stitches were taken and that after giving him treatment, he was discharged. He has denied the suggestion that he had not sustained any injuries on the head and that the doctor had not given any treatment. He has denied the suggestion that he has not stated in his police statement that upon Kuchia Bharwad trying to inflict a blow with a stick on his head, he had put his hands across and had injured the fingers of both his hands. He has also denied the suggestion that he has not stated in his police statement that Kuchia Bharwad had inflicted a stick blow on his back. He has denied a suggestion that he has been tutored as regards what he should depose against the accused. 19.2 He has denied the suggestion that he has not stated in his police statement that Imran Ismailbhai had fallen near the dargah and had died on the spot. He has admitted that he has not stated in his police statement that Jummabhai had died on the spot near the crossing at Jorawar Pir Ni Dargah. He has admitted that the police have not carried out any T.I. Parade of the accused in his presence. It appears that the weapons used by the accused were shown to him; however, he had co-related the wrong weapon with the wrong accused. He has admitted that there were no special marks on the weapons used by the accused at the time of the offence. He has admitted that from the date of the incident till date, the police have not shown him the muddamal weapons and got them identified. He has denied the suggestion that in 1994, a complaint had been lodged against him, Daud Hasam, Sheriya Isa, Salim Isa and Mahammad Ayub by the Bharwads of Kofta Fatak, namely, Bhalabhai, Mulabhai and Laljibhai for assaulting them. He has also denied the suggestion that an offence has been registered against him under section 307, IPC, which complaint has been lodged by Bhalabhai Gelabhai Bharwad and that he was arrested in connection therewith. He has denied that any offence has been lodged against him vide Viramgam Town Police Station I - C.R. No. 55/94. He has also denied the suggestion that an offence has been registered against him under section 307, IPC, which complaint has been lodged by Bhalabhai Gelabhai Bharwad and that he was arrested in connection therewith. He has denied that any offence has been lodged against him vide Viramgam Town Police Station I - C.R. No. 55/94. He has admitted that in the year 2007, the police had arrested him in connection with illegal possession of liquor, which was registered as C.R. No. 353/07 (Prohibition). He has admitted that an offence for distilling liquor was registered against him being Town Police Station C.R. No. 37/10, which case is pending against him. He has stated that he does not remember that he had admitted the offence with regard to distilling of liquor on 18.02.2007 in the Lok Adalat being Criminal Case No. 404/06 as well as in relation to Town Police Station C.R. No. 119/07, Court Case No. 1443/07 and that he had paid fine of Rs. 50/-. He has admitted that the testimony of Gulbhai Raisingbhai has been recorded in this case and that he is aware that he has not supported the prosecution case. The witness has voluntarily stated that he (Gulmahmadbhai Raisingbhai) has falsely deposed before the court. He has denied the suggestion with regard to the fact that he along with others had attacked Gulmahmadbhai Raisingbhai for not supporting the prosecution case. He has admitted that in connection with the complaint lodged by Gulmahmadbhai Raisingbhai, the police had arrested them and had taken bail bonds from them for maintaining peace. He has denied the suggestion that he had threatened Gulmahmadbhai Raisingbhai that after the case is over, he would inflict knife blows and injure him. He has denied the suggestion that he was carrying on the illegal business of distilling liquor near Valana Crossing due to which, the Bharwads of Valana village had made an application to the D.S.P. and that he was removed from that place. Various suggestions have been made to the witness regarding carrying out illegal activities relating to liquor, which he has denied. 19.3 The witness has admitted that on the date of the incident, he had not gone to save or extinguish the fire on any property in Viramgam town. Various suggestions have been made to the witness regarding carrying out illegal activities relating to liquor, which he has denied. 19.3 The witness has admitted that on the date of the incident, he had not gone to save or extinguish the fire on any property in Viramgam town. He has also admitted that he does not know the names of all the Bharwads and Thakors residing in Viramgam and that he knows some of them. He has stated that the distance between Viramgam and Valana is three kilometers and the distance between Viramgam and Kokta Fatak is about three to four kilometers. He has stated that he does not know that distance between Bhojwa and Viramgam is two kilometers and that he does not know if the distance from Hansalpur to Viramgam is two kilometers. He has also stated that he does not know if Sokli is at a distance of two kilometers, but has admitted that all these villages fall within the jurisdiction of the Viramgam Town Police Station. He as further stated that he does not know each of the Bharwads and Thakors residing in these villages by their names. He has denied the suggestion that the incident had taken place at 4:00 to 4:30 and has categorically stated that the incident took place between 2:30 and 3:00 O'clock. He has stated that on the date of the incident, he had gone to the scene of incident on foot and it had taken him half an hour to reach there. Since Gulubhai was residing with them in the chali, he had gone with him to extinguish the fire on the hedge of his field. He has stated that they had not taken any equipment with them for extinguishing the fire and had also not taken any weapons for self-defence. He has stated that it took about half an hour to extinguish the fire and for the purpose of extinguishing the fire, they had used a bucket and water from the field of Gulmahmad Raising. That approximately five to ten buckets of water had been used to extinguish the fire on the hedge and that no one was called from the neighborhood to extinguish the fire. He has admitted that he has not stated in his statement before the police that the fire was extinguished by fetching water in a bucket. That approximately five to ten buckets of water had been used to extinguish the fire on the hedge and that no one was called from the neighborhood to extinguish the fire. He has admitted that he has not stated in his statement before the police that the fire was extinguished by fetching water in a bucket. He has denied the suggestion that he had not gone to the scene of incident and that they have not extinguished the fire and therefore, he has not stated the details in his police statement. He has admitted that the areas near the scene of incident are populated by Hindus. He has stated that when he went to the scene of incident, he felt that his life was in danger, despite which, he had gone. He has admitted that Haiderbhai Bavabhai was his brother-in-law and that he had sustained injuries, but he had not carried him home and he also had not gone to seek help from anyone from the neighborhood. He has admitted that there are fields of Shabirbhai and Altafbhai near the scene of incident, but he had not gone there for help. When he returned from the scene of incident, the situation was tense and quiet and he had not met anyone on the way. He has admitted that after he returned to the chali, he had not asked anyone for any help and he had not taken any steps to inform the police about the incident, nor had he sent anybody from his chali to the police station. He has admitted that the members of the chali have got rickshaws, cars, tempos, etc. and that he had not tried to go to the police station by taking any vehicle and also not informed the police through telephone. He has deposed that his brother-in-law was brought to the chali at around 8 to 9 O'clock, and till then, he had not come out of the chali. He has admitted that he and Dostmohammad had made an application for further investigation before the High Court in connection with which, his further statement was recorded. He has deposed that his brother-in-law was brought to the chali at around 8 to 9 O'clock, and till then, he had not come out of the chali. He has admitted that he and Dostmohammad had made an application for further investigation before the High Court in connection with which, his further statement was recorded. He has admitted that on that day, he knew as to who had caused injuries to Haiderbhai, Imranbhai and Jummabhai Jusabbhai and that he had stated such facts in his statement recorded by the D.S.P. He has denied the suggestion that in his statement recorded on 19.08.2010, he had not given details as to which accused had caused which injuries and with which weapon. He has denied the suggestion that in his statement he had only stated that a mob of Bharwads and Thakors had caused injuries to these three persons. He has admitted that in his police statement, he has stated that at that time, the mob of Bharwads and Thakors was causing damage to the Jorawar Pir Ni Dargah, and that when they asked them to desist from damaging the dargah, the persons in the mob got incited and assaulted them and that in this assault, Imranbhai and Jummabhai of their chali had died on the spot and Haiderbhai Bavabhai had sustained serious injuries and he and his younger brother Dostmohammad and the others who were with him, had also sustained injuries. He has denied the suggestion that Haiderbhai, Imranbhai and Jummabhai had sustained injuries during the assault by a Hindu mob in an incident which took place at around 5 to 6 O'clock in the evening. He has denied the suggestion that Maheboob Daud and Noormohammad Jusab had taken away Haiderbhai Bavabhai at around 5:30 p.m. from Fulvadi Area, opposite Machhardani Mill. 19.4 In the cross-examination of this witness it has further come out that the doctor who gave him treatment had examined all the injuries. He has admitted that the doctor who had treated him had asked him as to where he had sustained injuries and who had inflicted such injuries. He has denied the suggestion that he had not informed the doctor as to who had caused him injuries. He has stated that after availing treatment, he had not gone to the Town Police Station. He has admitted that after returning to the chali, he had not gone anywhere. He has denied the suggestion that he had not informed the doctor as to who had caused him injuries. He has stated that after availing treatment, he had not gone to the Town Police Station. He has admitted that after returning to the chali, he had not gone anywhere. He has denied the suggestion that there was a mob of more than twenty five persons vandalizing the dargah. He has admitted that Gulmahmad Raising and Maheboob Daud were with him and when he sustained injuries, both of them were about ten feet away from him; like him, they too were assaulted; he does not know the names of the persons who assaulted them and with which weapons and that he is now aware as to on which part of the body they had sustained injuries. He has further stated that when he went to the hospital for availing of treatment, he had not taken Gulubhai and Maheboobbhai with him. He has denied the suggestion that no one had assaulted these two persons and that they had not sustained any injury despite which he was lying on oath. He has admitted that from Valana railway crossing to railway chokdi, there are baval (babool) trees on the both sides of the road and that Jorawar Pir Ni Dargah is situated on the left side. He has admitted that there is a moat between the dargah and the road, and a small culvert has been constructed thereon, and that there is a compound wall surrounding the dargah. The dargah is at a distance of 5-10 steps from the gate of the compound wall. He has admitted that the dargah has a door and that there is a room next to the door. He has stated that he does not know that there is a moat on the right side of the dargah and the hedge of Gulubhai's agricultural field is situated behind it and his field comes thereafter. He has denied the suggestion that when the hedge was burning even the big bavals which were there were burnt. He has stated that he is not aware that the level of the road near Gulubhai's field is higher than the field. He has admitted that at the time of the incident the crop of wheat in Gulubhai's field was fully developed. He has stated that he is not aware that the level of the road near Gulubhai's field is higher than the field. He has admitted that at the time of the incident the crop of wheat in Gulubhai's field was fully developed. He has stated that upon being injured he had got down into the moat from the road and had gone through the hedge till a distance of fifteen steps in the field. He has denied that he had fallen down during the incident and has admitted that in his police statement he had stated that the second blow was given on his hand and he had fallen down. He had sustained injuries on the tar road and he had fallen down for about two minutes, at that time, blood was oozing from his head. He had not seen as to whether any blood had fallen on the ground. He has stated that while standing in the field, his feet had not got stuck in the earth on account of the same being watered. He has voluntarily stated that the field was not watered. In his cross-examination, it has further come out that he was standing in the wheat field for about half an hour. During this time he had seen the mob was assaulting the above three persons on the road. He has denied the suggestion that he had seen those persons being assaulted from between the hedge of the field and the bavals on the road and the standing wheat crop. He has stated that there was wheat crop around where he was standing. He has admitted that at the end of the wheat cultivation the hedge of Gulubhai's field is situated towards the road. Thereafter there is a moat after which there were bavals on the road. He had seen from there. When the mob was assaulting these three persons he was frightened and hence he had not tried to save them. He has stated that before he was injured in the incident, he had seen the weapons in the hands of the persons in the mob from a distance of about fifteen steps. At that time, he was not afraid that they would beat him and hence, he had not run away. He has stated that before he was injured in the incident, he had seen the weapons in the hands of the persons in the mob from a distance of about fifteen steps. At that time, he was not afraid that they would beat him and hence, he had not run away. He has admitted that after the mob had assaulted the persons, they had gone from there and that he had run to his chali. In his cross examination it has further come out that he is not in a position to state as to how many blows had been inflicted by the accused at the time of the incident and that he cannot say as to how many blows were inflicted with dharia, with gupti or with sword and as to who had inflicted how many blows with the stick. He has admitted that these three persons had been caused injuries with dharia, sticks and gupti. He has admitted that after the mob had gone, he had not gone to pick up his brother-in-law Haiderbhai from the road, and also he had not gone to see the extent of injuries sustained by Imranbhai and Jummabhai Jusabbhai. He has stated that all these persons were lying on the road in a bleeding condition. He had not seen blood having fallen on the road. He had not shown the scene of offence to the police. He had gone through the path in the agricultural fields and reached the chali during the course of which he must have crossed about four to five fields, after which on the way there is the mill, residential houses of other persons and thereafter their chali. He has denied the suggestion that no such incident has taken place at the scene of offence and that he has not seen any such incident. He had denied the suggestion that as he is involved in the business of liquor, he has good relations with the police. He has denied the suggestion that none of the accused have caused any injuries to him at the scene of offence and that nobody has damaged the dargah. He has denied the suggestion that they had all sustained injuries in the evening of the day of the incident at their mohalla. He has denied the suggestion that none of the accused have caused any injuries to him at the scene of offence and that nobody has damaged the dargah. He has denied the suggestion that they had all sustained injuries in the evening of the day of the incident at their mohalla. He has admitted that the accused hailing from Kokta Fatak, namely Sata @ Haider Gela, Vala Gela, Mulu Gela and Mera Gela are brothers. He knows about it. He has admitted that their agricultural land is situated next to the railway crossing near Kokta village and they have a hotel there on the road. He has denied the suggestion that the Bharwads and Thakors of Valana and Kokta villages were preventing him from distilling illicit liquor on the Gauchar land of Valana and since he had a grudge against them, he was falsely testifying against them. He has denied that Gulmohmad Raising and Hussain Tharu had not come to call him to extinguish the fire on the hedge and that he had not gone with them. He had denied that since Bhalabhai Gelabhai had filed a criminal case against him under section 307, IPC, and he had a grudge against him he was giving false testimony against the accused. 20. Thus, from the testimony of PW-13, it emerges that Kuchia Bharwad, Haider Bharwad, Valia Bharwad and Mulia Bharwad had inflicted injuries on him and that Mulia Bharwad, Mera Bharwad, Bhopa Bharwad and Bachuji Ranchhodji had caused injuries to Jumma Jusabbhai. From the testimony of PW-15, it emerges that Kuchia Bharwad had inflicted injuries on him with a stick, whereas Vala Bharwad had inflicted stick injuries on deceased Haiderbhai Bavabhai; Bhopa Bharwad had inflicted injuries with a gupti on deceased Haiderbhai Bavabhai; Merabhai Gelabhai and Muliabhai Bharwad had inflicted stick injuries on Jumma Jusabbhai, Bhopa Bharwad had inflicted injuries with dharia on Jumma Jasubbhai; and Naran Sarpanch had injured Imran Ismail with a dharia and Kuchia Bharwad, Udaji Rancchod and Valia Bharwad had inflicted stick blows on Imran Ismail. Thus, while PW 13 has seen the accused named by him assaulting Jumma Jusab, PW-15 has witnessed the accused named by him assaulting Jumma Jusab, Haiderbhai Bavabhai and Imran Ismail. From the cross examination of the witnesses, no contradiction has been brought out in this regard. Thus, while PW 13 has seen the accused named by him assaulting Jumma Jusab, PW-15 has witnessed the accused named by him assaulting Jumma Jusab, Haiderbhai Bavabhai and Imran Ismail. From the cross examination of the witnesses, no contradiction has been brought out in this regard. Thus, to the extent of the role attributed to the accused by these witnesses, they have not deviated and nothing has been brought out in the cross examination of these witnesses to dent their credibility in this regard. 21. It may be noted that both these witnesses are injured witnesses and their testimonies carry evidentiary value. The fact that they are injured witnesses finds support in the testimony of Dr. Vimal Prajapati, who had examined them as well as the three injured witnesses and had issued Medico Legal Certificates. The presence of the said witnesses at the scene of offence, therefore, cannot be doubted. The testimonies of both the witnesses are natural and they have deposed in terms of what they have seen and there is no parrot like evidence. From the testimonies of the witnesses it is apparent that they have witnessed the incident from different spots near the scene of offence. Whereas, PW-13 after sustaining injuries in the incident, had managed to escape and had run towards the village and had watched the incident from a small distance, whereas PW-15 after he was inflicted blows by Kuchia Bharwad, had run towards Gulmohmad Raising's agricultural field and has seen the incident from there. Thus, PW-13 has seen the incident from a place towards the village at the small distance from the scene of offence, whereas PW-15 has witnessed the incident from the agricultural field of Gulmohammed Raising, evidently therefore, the witnesses would have viewed the incident from different angles and what may be witnessed by one may not have been witnessed by the other. Consequently, while PW-13 has only witnessed the assault on Jumma Jusab, PW-15 has witnessed the assault in respect of all the three deceased persons. Accordingly, the fact that certain accused persons have been named by one witness and not by the other is a natural outcome of the same. Consequently, while PW-13 has only witnessed the assault on Jumma Jusab, PW-15 has witnessed the assault in respect of all the three deceased persons. Accordingly, the fact that certain accused persons have been named by one witness and not by the other is a natural outcome of the same. However, the trial court, though on an evaluation of the testimonies of the said witnesses, has come to the conclusion that all the three deceased persons died during the course of the incident, has discarded their testimonies to the extent the accused named by one witness had not been named by the other. As noted hereinabove, while PW-13 has deposed regarding having witnessed the incident qua the injuries caused to deceased Jumma Jusab only, PW-15 has deposed regarding the assault on all the three deceased persons. It is therefore, manifest that when PW-13 has not witnessed the assault qua deceased Haiderbhai Bavabhai and Imran Ismail, he could not have named the persons who had assaulted them. It is only PW-15, who had seen the assault on these two deceased persons who could have named the persons who assaulted them. 22. Apart from the testimonies of the above two injured witnesses, in order to establish the charge against the accused, the prosecution has examined the medical witnesses, namely, Dr. Saumil Premchandbhai Merchant at Exhibit-17, Dr. Rampyare Prasad Verma at Exhibit-24 and Dr. Vimalbhai Laxmanbhai Prajapati at Exhibit-81. 23. PW-1, Dr. Saumil Merchant had carried out the autopsy of deceased Haiderbhai Bavabhai. He has deposed regarding the nature of the injuries sustained by the deceased and has stated that the injuries caused to him were sufficient in the ordinary course of nature to cause his death. As per the testimony of the said witness, the cause of death was due to shock as a result of injuries sustained. 24. PW-2, Dr. Rampyare Prasad Verma has deposed that on 28.02.2002, at around 08:30 at night, injured Haiderbhai Bavabhai had been brought to the CHC Hospital. Upon asking his history, he has stated that he had been inflicted stick blows on the leg. There was a fracture on the tibia fibula of the right leg where the stick blows had been inflicted. The doctor has further deposed that the said patient had sustained an injury on the abdomen admeasuring 2 x 1 cm caused by a sharp weapon. There was a fracture on the tibia fibula of the right leg where the stick blows had been inflicted. The doctor has further deposed that the said patient had sustained an injury on the abdomen admeasuring 2 x 1 cm caused by a sharp weapon. The injury extended till the muscles and that there was a swelling on account of the injury. There was a cut lacerated wound of 3 x 3 cm below his lips and there was swelling and bleeding also. Behind his right ear, there was an injury of 1.5 x 1 cm and there was also injury on his head of 7 cm x 2 cm. After providing treatment to the patient on the very same day, he was transferred to the Civil Hospital for further treatment. He has admitted that the injuries sustained by the said patient could be caused by sticks, swords, dharia and gupti, and that the injury on the head of the person could also cause death. This witness has further deposed that on 01.03.2002, Jummabhai Jusabbhai Khod had been brought to him for the purpose of performing postmortem. He has deposed that the deceased had sustained CLW injury on his head of 3.5 cm x 3 cm which injury extended till the brain and that the skull was fractured. He has also deposed that there was a fracture on the tibia fibula of the leg. He has stated that the cause of death was due to extra and intra cranial haemorrhage on account of injury at right tempo parietal region of head. 24.1 In his cross-examination at the instance of the learned advocate for the accused, he has admitted that at the time when Haiderbhai Bavabhai was brought before him, he was fully conscious and in a position to speak. That upon examining him, it was found that he had sustained grievous injuries. He has admitted that as per his duty, he had asked as to who had inflicted the blows and with which weapon. He has admitted that he has made notings in his own handwriting. He has admitted that in the MLC Certificate at Exhibit-31, it has been shown that Haiderbhai Bavabhai had been assaulted by unknown persons with sticks. He has admitted that while asking the history, Haiderbhai Bavabhai had not informed the names of the assailants. He has admitted that he has made notings in his own handwriting. He has admitted that in the MLC Certificate at Exhibit-31, it has been shown that Haiderbhai Bavabhai had been assaulted by unknown persons with sticks. He has admitted that while asking the history, Haiderbhai Bavabhai had not informed the names of the assailants. He has admitted that the injuries caused to Haiderbhai Bavabhai were fresh. He has admitted that the injury on the abdomen was a stab wound and that such injury could be caused with a sharp weapon. He has admitted that in case where the injury is caused with such a sharp weapon, there would be a hole in the clothes. The weapon with which the injury is caused has gone four inches into the body. He has admitted that except for the four injuries, Haiderbhai Bavabhai did not appear to have sustained any other injuries. That each of the four injuries could be caused with single blows. He has stated that he cannot say whether there was any possibility of death on account of such injuries, however, the nature of the injuries was not such as would always result into death. He has admitted that there were two injuries on Jummabhai's body, one on the head and another was on the leg and that each injury had been caused by one blow and that both were cut lacerated wounds. He has admitted that the injuries caused by dharia and sword would be in the nature of incised wounds. He has admitted that in case an injured person lies on the ground for two - three hours, the blood would be found on the ground. It may be pertinent to note that in the postmortem report, Exhibit-29, in the column of "cause of death", the words "the injury caused by hard blunt substance" appear to have been inserted subsequently. Similarly, in Exhibit-31 which is the MLC relating to Haiderbhai Bavabhai Bhatti, the words "(by unknown persons)" have been inserted subsequently. 25. Dr. Vimalbhai Laxmanbhai Prajapati has been examined at Exhibit-81. He has treated five of the injured witnesses and has conducted the autopsy of deceased Imranbhai Ismailbhai Bhatti. He has deposed that apart from conducting the autopsy of the dead body of Imranbhai Ismailbhai, he had examined five injured persons as outdoor patients. 25. Dr. Vimalbhai Laxmanbhai Prajapati has been examined at Exhibit-81. He has treated five of the injured witnesses and has conducted the autopsy of deceased Imranbhai Ismailbhai Bhatti. He has deposed that apart from conducting the autopsy of the dead body of Imranbhai Ismailbhai, he had examined five injured persons as outdoor patients. He had treated the five injured witnesses, namely, (i) Dostmohammad Sulemanbhai on 28.02.2003 at about 8:00 O'clock. He has given history of assault. The patient had sustained two injuries; (ii) Husseinbhai Tharubhai Bhatti on 1.03.2002 at about 12:30 at night. He gave history of assault and had sustained injuries on the right hand and on his head; (iii) Mahmad Ayub Miyana, on 01.03.2002 at about 01:30 at noon. He gave history of assault and had sustained two injuries on the fingers of both hands; (iv) Noormahammad Jusabbhai Movar, on 01.03.2002 at about 11:00 a.m. He had given history of assault and he had sustained injury on the ring finger of his right hand, and (v) Jusab Ayubbhai Miyana, on 28.02.2002 at about 08:30 at night. He had given history of assault. He had sustained injuries above the wrist of his left hand and below the elbow, below the thumb of his right hand and there was a bruise on his left thigh and there was a swelling on his left shoulder. He had also carried out postmortem of deceased Imranbhai Ismailbhai Bhatti. He has deposed that the cause of his death was on account of haemorrhage shock due to intra-cranial haemorrhage. He has further deposed that the deceased was bleeding from his nose, there was a fracture on his nose, a fracture below his eye and there were bruises on his back, each of which were of 7 inches x 4 cms. 25.1 In his cross-examination, he has stated that he had examined all the five patients as outdoor patients. They had suffered simple injuries and that CLW injuries shown in the medical certificates could be caused by hard and blunt substances. All the injured persons had come before him without police yadi. He has admitted that since the history of assault was given, all the cases were considered as medico-legal cases. He has denied having asked the injured persons as to who had caused injuries, at which place and with which weapons. All the injured persons had come before him without police yadi. He has admitted that since the history of assault was given, all the cases were considered as medico-legal cases. He has denied having asked the injured persons as to who had caused injuries, at which place and with which weapons. He has admitted that the injured persons while giving history before him, did not state the names of the persons who caused the injuries as well as the time, place and the weapons with which such injuries were caused. He has admitted that since the persons had come without police yadi, he had informed the police through his office. He has admitted that after the police came, he treated the persons as outdoor patients and let them go. In his cross-examination, he has further stated that deceased Imran was brought to him and he had written his age as stated by his relatives. He has admitted that Imran's relatives did not give him any details as regards who had caused the injuries. He has admitted that he had handed over the deceased Imran's clothes to the police. He has admitted that the injuries sustained by Imran had been caused not more than twelve hours before he was brought before him. He has admitted that all the three injuries sustained by Imran were CLWs which can be caused by hard and blunt substances and that considering the injuries sustained by him, if Imran was lying on the ground for more than an hour, there would be blood on the ground. He has also stated that he had examined injured Mohmad Ayub all over the body and has admitted that he had not sustained any injury on his head and that he had not given him any treatment for head injury. The said witness has proved the medical certificates Exhibits - 82 to 91 and the postmortem report Exhibit-92. Strangely, in the certificate Exhibit-83, which is the medical certificate of Dostmohamad Suleman, the words "sharp cutting edge and sharp cutting weapon" appear to have been written afterwards. Similarly, in the MLC, Exhibit-75, of Husseinbhai Tharubhai, the words "by hard substances" and "hard substances" appear to have been written subsequently. Likewise, in Exhibit-87, which is the MLC of Mohmad Ayubbhai Miyana, the words "by hard substance" are mentioned twice and the same appear to have been written subsequently. Similarly, in the MLC, Exhibit-75, of Husseinbhai Tharubhai, the words "by hard substances" and "hard substances" appear to have been written subsequently. Likewise, in Exhibit-87, which is the MLC of Mohmad Ayubbhai Miyana, the words "by hard substance" are mentioned twice and the same appear to have been written subsequently. In Exhibit-91, which is the MLC of Jusabbhai Ayubbhai Miyana, the words "by sharp cutting weapon, by hard substances and by hard substances" appear to have been written subsequently. It appears that the said certificates have subsequently been tampered in such a manner so as to lead one to believe that the injuries have been caused by hard and blunt substances. 26. From the testimonies of the medical witnesses, it is evident that the deaths of the deceased are homicidal death and there is no dispute in that regard. However, from the words which have been subsequently inserted in the MLC papers and the postmortem report, there appears to be a deliberate effort to show that names of the accused were not disclosed, but the assault was by unknown persons and that the injuries had been caused by hard and blunt substances. 27. The other evidence adduced by the prosecution is in the nature of the first information report, Exhibit-102, the scene of offence panchnama, Exhibit-49 and the recovery panchnama, Exhibit-50, etc. The first information report, Exhibit-102 is a consolidated FIR relating to all the occurrences that had taken place at Viramgam town on that say and is lodged by one T.S. Patel, Police Inspector, wherein in relation to the present case (as translated into English), it has been recorded thus: "Between the Valana crossing and the Jorawar Pir Ni Dargah, there is a distance of half a kilometre. Within the said half kilometre, persons of the Bharwad community forming part of a Hindu mob, had wielded blunt substances and sharp weapons and had become violent and had assaulted Miyanas residing at the Miyana Ni Chali, Opposite Viramgam Textile Mill at the above place and had caused injuries to them, wherein, (1) Jummabhai Jusabbhai Khod, age 52 years, resident of Viramgam Miyana Ni Chali, and (2) Imranbhai Ismailbhai Bhatti, age 14 years, resident of Miyana Ni Chali have been murdered by the unlawful assembly of persons belonging to the Bharwad community on the spot. Further, Haiderbhai Bavabhai Bhatti, age 36 years, who had sustained serious injuries, was sent from the Gandhi Hospital, at Viramgam to the V.S. Hospital, at Ahmedabad, died while undergoing treatment. He, too, has been murdered with blunt substances and sharp weapons by Bharwads." This part of the first information report is recorded on 02.03.2002, that is, two days after the incident. 28. The prosecution has also produced a telephone wardhy dated 02.03.2002 at Exhibit-103, whereby, the PSO, Viramgam Town Police Station has recorded that, under the instructions of the R.M.O., he has received information from Head Constable, Bipin Jayantilal that Haiderbhai Bavabhai Bhatti, aged 38 years, resident of - Opposite Prabhat Mill, Fulwadi Road, has been caused injuries by some persons with sticks and sharp weapons on 28.02.2002 at 17:30 hours and was admitted at 00:50 hours on 01.03.2003 and has died at 23:45 hours and hence, has been sent to the P.M. Room. The incident has taken place near his house while going towards Valana village. Hence, the needful be done and instructions be given for forthwith taking the dead body of the deceased for the last rites. 29. As per the panchnama of the scene of offence, Exhibit-49, the distance between Valana Crossing and Jorawar Pir Bavani Dargah is approximately half a kilometre. The mob has injured in all nine Muslim Miyanas with deadly weapons and two have died during the course of treatment, viz., Jumma Jusab and Imran Ismail. The incident took place in the Baval bushes on the road from Valana Railway Crossing to Jorawar Pir Ni Dargah. There are no signs of blood or any other thing. On the left side of the road, the Jorawar Pir Bavani Dargah is situated which has a verandah around it and there is a gate in front. The cement lattices fitted in the walls of the dargah have been broken. In the room next door, a bundle of cable wires have been burnt. A thorn hedge of the agricultural field on the right side of the road has been burnt. The field has wheat crop belonging to Mulubhai Miyana. The panchnama has been drawn at night in the search light of the Government jeep. 30. In the room next door, a bundle of cable wires have been burnt. A thorn hedge of the agricultural field on the right side of the road has been burnt. The field has wheat crop belonging to Mulubhai Miyana. The panchnama has been drawn at night in the search light of the Government jeep. 30. Thus, the scene of offence panchnama supports the version of the injured eyewitnesses that the Jorawar Pir Ni Dargah was being vandalized by the accused persons and there was a fire on the hedge of the agricultural field. 31. Shri Trikambhai Shankardas Patel, Police Inspector, Viramgam Police Station has been examined at Exhibit-101. He has deposed that in terms of the first information report Exhibit-102, upon the Hindu Muslim mobs on coming face to face at the Juna Mill Ni Chali, had become violent and a ten to twelve year old Muslim boy whose name is not known who was part of the Muslim mob, was beaten up with dangerous weapons by the Hindu mob, had died. Another Muslim also sustained injuries and died. He admits that in the first information report, there is no mention of two Muslim persons having died near Valana village crossing and Jorawar Pir Ni Dargah. Moreover, the names of the present accused are not shown in the complaint. His statement was recorded on 01.03.2002. In his statement, he has said that people belonging to the Bharwad community were the assailants and Muslim persons sustained injuries. He has further deposed that on 22.03.2002, he had recorded the statement of Zakir Hussein who had stated that since the last two years, he was working as the Munjawar of the Jorawar Pir Ni Dargah. That at about 01:30 in the afternoon, upon seeing a mob of about fifty to sixty persons belonging to the Bharwad community come running towards the dargah, he had thought that they had come to attack the dargah and out of fear, he had gone to the village from the outskirts. The Munjhawar has not named any accused in his statement and has not been cited as a witness in the charge sheet. The Munjhawar has not named any accused in his statement and has not been cited as a witness in the charge sheet. The witness has also admitted that no map of the scene of offence has been prepared; he has not obtained the medical case papers regarding the medical treatment given to Haiderbhai Bavabhai at the V.S. Hospital; and that he has never visited the scene of offence. From the testimony of the said witness, it comes out that the Munjhavar had seen the mob when it was at a considerable distance from the scene, and hence, the submission made by the learned counsel of the accused that the prosecution has tried to suppress correct facts by not examining the witness, does not merit acceptance inasmuch as he had fled from the scene and had not actually witnessed the incident. 32. The prosecution has also examined Rajesh kumar Ram kumar Bansal at Exhibit-105. He has deposed that at the relevant time, he was discharging duties as Police Sub-Inspector at Viramgam Town Police Station. He had prepared the scene of offence panchnama and had gathered the certificate Exhibit-5 regarding the medical treatment given to Haiderbhai Bavabhai Bhatti. He had also obtained the MLC Certificates Exhibits-83, 85, 87, 89 and 91 as well as the postmortem report Exhibit-92. Thereafter, he had handed over the investigation to Shri T.S. Patel, who had submitted the charge-sheet. In his cross examination, the prosecution has brought out the contradictions in the testimonies of the hostile witnesses. During the course of his cross-examination, the witness has admitted that at the time when he drew the inquest panchnama of the deceased, Imran Ismail and Jummabhai Jusabbhai, their relatives had not given the names of the accused. He has admitted that on 01.03.2002, in view of the burial of Imran Ismail and Jummabhai Jusabbhai, police bandobast had been provided and at that time also, their relatives had not disclosed the names of the accused. He has admitted that at the time when he carried out the panchnama of the scene of offence near the Jorawar Pir Ni Dargah, he did not find any bloodstains at the site. He has admitted that at the time when he had drawn the scene of offence panchnama, none of the eyewitnesses had shown him the spot. He has admitted that at the time when he carried out the panchnama of the scene of offence near the Jorawar Pir Ni Dargah, he did not find any bloodstains at the site. He has admitted that at the time when he had drawn the scene of offence panchnama, none of the eyewitnesses had shown him the spot. He has denied the suggestion that both the persons, who died in the incident, had sustained injuries when the Hindu mob attacked Miyana Ni Chali. 33. The prosecution has also examined Shri Sandipsingh Harpalsingh, Superintendent of Police, Ahmedabad (Rural), at Exhibit-108. He is the person who carried out further investigation pursuant to the orders passed by this court directing further investigation under section 173(8) of the Code. However, nothing much turns upon his testimony. 34. In the above backdrop, reference may now be made to the evidence against each of the accused individually. 35. Insofar as the accused No. 2, Bhopabhai Tejabhai Bharwad is concerned, PW-13 Jusabbhai Ayubbhai Miyana has testified that when Mulia Bharwad was beating deceased Jummabhai Jusabbhai with a stick, at that time, Bhopabhai Bharwad was indiscriminately inflicting blows with a gupti on him. PW-15 Mohammedbhai Ayubbhai Miyana has deposed that when he escaped to the field of PW-8, he had seen Bhopabhai Bharwad inflicting blows with gupti on deceased Jummabhai Jusabbhai. The recovery panchnama, Exhibit-50 shows that a gupti has been recovered from the accused Bhopabhai Bharwad. The medical evidence shows that the deceased had died due to extra and intra cranial haemorrhage on account of injury at right tempo parietal region of head and the doctor has opined that the injury can be caused by a hard blunt substance. Therefore, the medical evidence does not support the testimonies of the witnesses. However, PW-15 has also deposed that he had seen Bhopabhai Bharwad indiscriminately inflicting gupti blows on deceased Haiderbhai Bavabhai Bhatti. A perusal of the testimony of PW-1 Dr. Saumil Premchandbhai Merchant as well as the postmortem report reveals that the injuries sustained by deceased Haiderbhai Bavabhai Bhatti, inter alia, include the injuries which can be caused by a sharp cutting instrument. Having regard to the fact that a gupti had been recovered from this accused, there is ample evidence against this accused to establish that he had caused fatal injuries to the deceased Haiderbhai Bavabhai. 36. Having regard to the fact that a gupti had been recovered from this accused, there is ample evidence against this accused to establish that he had caused fatal injuries to the deceased Haiderbhai Bavabhai. 36. Insofar as the accused No. 8 - Bachuji Ranchhodji Thakor is concerned, PW-13 has testified that when Merabhai Bharwad was beating Jummabhai Jusabbhai with a stick, at that time, Bachuji Ranchhodji Thakor was indiscriminately inflicting blows with a dharia. PW-15 has also deposed that he had seen Bachuji Ranchhodji inflicting blows with a dharia on Jummabhai Jusabbhai. The testimony of Dr. Rampyare Prasad Verma, PW-2 shows that the injuries sustained by deceased Jummabhai Jusabbhai could be caused by hard blunt substance and that if injuries are caused by a dharia or a sword, they would be in the nature of incised wounds. The recovery panchnama, Exhibit-50 shows that a dharia has been recovered from Bachuji Ranchhodji Thakor. 37. As regards the original accused No. 3 - Valabhai Gelabhai Bharwad, PW-13 has deposed that Valabhai Bharwad had inflicted a stick blow on his left leg. From the testimony of Dr. Vimal Prajapati it has been proved that the witness has sustained a contused lacerated wound 1 cm x 1/2 cm superficial at lateral side of left arm; a contused lacerated wound size about 1 cm x 1/2 x 1/2 cm deep at thumb of the right hand; swelling & pain & subcutaneous haematoma at middle of left lateral thigh; multiple bruise & swelling at left shoulder & backside. Such injuries are also described in the Medico-legal Certificate at Exhibit 91. Thus, it is evident that some of the injuries sustained by the witness could be caused by a weapon like a stick. PW-15 has deposed that he had seen Valabhai Bharwad inflicting stick blows on Haiderbhai. Dr. Rampyare Verma has stated that some of the injuries sustained by Haiderbhai could be caused with a stick. The recovery panchnama, Exhibit-50 shows that a stick has been recovered from Valabhai Bharwad. Thus, from the testimonies of the two injured witnesses and the medical evidence, the presence of the accused at the scene of offence and his overt role in the commission of the offence stand clearly established. 38. As regards the original accused No. 6 - Viththal alias Kuchiyo Moti Bharwad, PW-13 has deposed that he had inflicted a stick blow on his right hand. PW-16, Dr. 38. As regards the original accused No. 6 - Viththal alias Kuchiyo Moti Bharwad, PW-13 has deposed that he had inflicted a stick blow on his right hand. PW-16, Dr. Vimal Prajapati has deposed that the injury sustained by PW-13 which was in the nature of CLW, can be caused by a stick like weapon. The MLC Certificate, Exhibit-91 describes the injury on the thumb of right hand as having been caused by hard substance. PW-15 has deposed that Kuchiyo Bharwad had inflicted stick blows on his head and that while trying to ward off a further blow, the fingers of both his hands were injured. He has further deposed that Kuchiyo Bharwad had also inflicted a stick blow on his back. As per the MLC Certificate, Exhibit-87, PW-15 had sustained a contused lacerated wound on the fingers of both the hands and an abrasion and mild swelling on his back side. The recovery panchnama, Exhibit-50 shows that a sword came to be recovered from Viththal alias Kuchiyo Moti Bharwad. Dr. Vimal Prajapati has testified that the contused lacerated wounds could be caused with the sticks. From the testimonies of the witnesses, it is apparent that though a sword has been recovered from this accused, in terms of the deposition of the injured witnesses he had inflicted stick blows and corresponding injuries have been found to have been caused to both the witnesses, which stand duly established by the medical evidence. Thus, the presence of the witness and his active participation in the offence in question is clearly established. 39. As regards the original accused No. 9 - Mulabhai Gelabhai Bharwad, PW-13 Jusabbhai Ayubbhai Miyana has deposed that Mulabhai Bharwad had inflicted a stick blow on his back. PW-16 Dr. Vimal Prajapati has deposed that there was a swelling on PW-13's back. The medical case papers (Exhibit-90) show that the witness had sustained multiple bruises and swelling on the left shoulder and back. PW-13 has further deposed that Mulabhai Bharwad was indiscriminately beating Jummabhai Jusabbhai with a stick. The recovery panchnama, Exhibit-50 shows that a stick came to be recovered from the said accused. PW-2 Dr. Rampyare Prasad Verma has testified that the head injury sustained by deceased Jummabhai Jusabbhai can be caused with hard and blunt substance like a stick. PW-13 has further deposed that Mulabhai Bharwad was indiscriminately beating Jummabhai Jusabbhai with a stick. The recovery panchnama, Exhibit-50 shows that a stick came to be recovered from the said accused. PW-2 Dr. Rampyare Prasad Verma has testified that the head injury sustained by deceased Jummabhai Jusabbhai can be caused with hard and blunt substance like a stick. Thus, from the evidence of the above witnesses and the documentary evidence produced on record, the prosecution has succeeded in establishing that accused Mulabhai Bharwad was present at the time of the offence and played an active role in the commission of the offence. 40. As regards the original accused No. 10 - Merabhai Gelabhai Bharwad, PW-13 has deposed that he had seen Merabhai Bharwad inflicting blows with a stick on Jummabhai Jusabbhai. PW-15 has also deposed that Merabhai Bharwad was inflicting stick blows on Jummabhai Jusabbhai. As noted hereinabove, Dr. Rampyare Verma has deposed that the injury on the head of deceased Jummabhai Jusabbhai could have been caused by a hard and blunt substance. As per the postmortem report, the deceased had died due to extra and intra cranial haemorrhage on account of injury at right tempo-parietal region of head. The panchnama, Exhibit-70 shows that a stick came to be recovered from Merabhai Gelabhai Bharwad. From the above evidence which has come on record, the prosecution has clearly established the presence and the overt role of this accused in the commission of the offence in question. 41. As regards accused No. 1 - Satabhai alias Haiderbhai Gelabhai Bharwad, PW-13 Jusabbhai Ayubbhai Miyana has deposed that Haiderbhai Bharwad had a sword in his hand and he had inflicted a blow on his arm. PW-16 Dr. Vimal Prajapati has deposed that PW-13 had sustained a CLW above his wrist and below his elbow. The panchnama, Exhibit-50 shows that a stick came to be recovered from the said accused. Thus, though the weapon which was produced by the witness before the police was a stick and not a sword, in terms of the testimony of the injured witness which is duly corroborated by the medical evidence, the presence of the accused at the scene of offence and his active role in the commission of the offence is clearly established. 42. 42. As regards original accused No. 5 - Naranbhai Samatbhai Bharwad, PW-15 Mohammed Ayubbhai Miyana has deposed that Naranbhai Sarpanch of Valana village injured Imran Bhatti with a dhariya. PW-16, Dr. Vimalbhai Prajapati has deposed that the fatal injuries were caused with a blunt weapon. The panchnama, Exhibit-50 shows that a dharia came to be recovered from the said accused. A perusal of the panchnama shows that the dharia produced by Naranbhai Samantbhai Bharwad was fitted with a bamboo handle which was 2 feet and 10 inches long and the blade was 8 inches long. From the testimony of the injured witness the presence of the accused at the scene of offence is established, though the injuries sustained by the deceased do not appear to match with the weapon alleged to have been used by him. However, it may be noted that the dharia wielded by the said accused had a bamboo handle which was 2 feet and 10 inches long. Therefore it is quite possible that the injury may have been caused by the handle and not the blade of the dharia. 43. As regards accused No. 7 - Udaji Ranchhodbhai Thakor, PW-15 Mohammed Ayubbhai Miyana has deposed that Udaji Thakor had inflicted stick blows on Imran Ismail. Dr. Vimal Prajapati has deposed that fatal injuries to Imran Ismail were caused by a hard blunt weapon. The recovery panchnama, Exhibit-50 shows that a stick came to be recovered from him. Therefore, the presence and the active role of the accused has been proved through the testimony of the injured witness, which is duly corroborated by the medical evidence. 44. Insofar as the original accused No. 4, Devabhai Samatbhai Bharwad is concerned, neither of the two witnesses have attributed any role to him in their testimonies. Therefore, the prosecution has failed to establish the participation of the said accused in the offence in question beyond reasonable doubt. 45. In the light of the above discussion it is clear that though the testimonies of the injured eyewitnesses the prosecution has duly established the presence and the active participation of all the accused persons except accused-Devabhai Samatbhai Bharwad. 46. The trial court in the impugned judgment and order has acquitted Devabhai Samatbhai, Satabhai @ Haider Gela Bharvad, Naranbhai Samatbhai Bharvad and Udaji Ranchhodji, mainly for the reason that only one of the two injured witnesses has named them. 46. The trial court in the impugned judgment and order has acquitted Devabhai Samatbhai, Satabhai @ Haider Gela Bharvad, Naranbhai Samatbhai Bharvad and Udaji Ranchhodji, mainly for the reason that only one of the two injured witnesses has named them. As discussed earlier, both the injured witnesses have witnessed the incident from different places, and while PW 15 Mohammed Ayubbbhai Miyana has seen all the three deceased persons being assaulted, PW-13 Jusabbhai Ayubbhai Miyana has witnessed the assault only qua deceased Jumma Jusabbhai. Evidently, therefore, PW-13 would not be in a position to name the accused who caused injuries to Haiderbhai Bavabhai and Imran Ismail Bhatti and merely because the said witness has not named those accused persons is no reason to jettison the testimony of PW-15 to that extent, more so, considering the fact that both the above deceased persons sustained injuries during the course of the very same incident and died as a result thereof. Similarly, PW-15 may not have seen Satabhai @ Haider Gela Bharwad inflict injuries on PW-13, however, considering the fact that the version given by PW-13 is duly corroborated by the medical evidence, there is no reason to disbelieve the participation of the said accused. 47. It may be noted that all the accused have also been charged with the offence under section 149 of the Indian Penal Code. The trial court upon appreciation of the evidence on record has in paragraph 35 of the impugned judgment held that considering the testimonies of the two witnesses and the medical evidence, there is evidence which clearly establishes that the accused had formed an unlawful assembly and had wielded weapons and caused injuries to the deceased and the injured witnesses. However, after invoking section 149, IPC, the trial court has proceeded to examine the individual role of each of the accused and has convicted them accordingly, which is not in consonance with the provisions of section 149, IPC. It would therefore be necessary to look at the legal position in this regard. Reference may, therefore, be made to the decisions of the Supreme Court as regards the circumstances when the provisions of section 149, IPC can be made applicable. 47.1 In Ramesh v. State of Haryana, (2010) 13 SCC 409 , the Supreme Court held thus: "12. We do not find any substance in the submission of the learned counsel. Reference may, therefore, be made to the decisions of the Supreme Court as regards the circumstances when the provisions of section 149, IPC can be made applicable. 47.1 In Ramesh v. State of Haryana, (2010) 13 SCC 409 , the Supreme Court held thus: "12. We do not find any substance in the submission of the learned counsel. In our opinion the common object of an unlawful assembly has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrence. It is an inference which has to be deduced from the facts and circumstances of each case. To attract the mischief of section 149 of the Indian Penal Code, it is not necessary that each of the accused must commit some illegal overt act. When the assembly is found to be unlawful and if offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. It has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly." 47.2 In Om Prakash v. State of Haryana (supra), the Supreme Court held thus: "16. Common object of an unlawful assembly can also be gathered from the nature of the assembly, the weapons used by its members and the behaviour of the assembly at or before the scene of occurrence. It cannot be stated as a general proposition of law that unless an overt act is proven against the person who is alleged to be a member of the unlawful assembly, it cannot be held that he is a member of the assembly. What is really required to be seen is that the member of the unlawful assembly should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 IPC. The core of the offence is the word "object" which means the purpose or design and in order to make it common, it should be shared by all. Needless to say, the burden is on the prosecution. It is required to establish whether the accused persons were present and whether they shared the common object. The core of the offence is the word "object" which means the purpose or design and in order to make it common, it should be shared by all. Needless to say, the burden is on the prosecution. It is required to establish whether the accused persons were present and whether they shared the common object. It is also an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object has developed at the time of incident. (See Lalji v. State of U.P., (1989) 1 SCC 437 , Bhargavan v. State of Kerala, (2004) 12 SCC 414 , Debashis Daw v. State of W.B., (2010) 9 SCC 111 and Ramachandran v. State of Kerala, (2011) 9 SCC 257 ) 17. In the case at hand, as the evidence would clearly show, all the accused persons had come together armed with lathis. Het Ram, who died during the pendency of the appeal, was armed with a gun. The eyewitnesses who are natural witnesses, being brothers, have deposed in an unequivocal manner about the assault by all the accused persons. The common object is clearly evident. In such a situation, attribution of specific individual overt act has no role to play. All the requisite tests to attract Section 149 IPC have been established by the prosecution." 48. The evidence on record reveals that in the case at hand, in view of the incident of burning of a train that has taken place at Godhra on the previous day, the accused persons armed with sticks and other deadly weapons like gupti, dharia, sword, etc. had come to the Jorawar Pir Ni Dargah and were damaging the same. When the witnesses asked them to desist from doing so, they started to assault the witnesses and the other persons accompanying them. The accused who were members of mob, inflicted blows with sticks, gupti, dharia etc. causing the death of three persons and injuring the others. Thereafter, they left the scene of offence together. Evidently, therefore, all the accused were members of the unlawful assembly. 49. From the evidence which has come on record, it is manifest that the accused persons were more than five. The common object of the unlawful assembly in the first place appears to be to damage the Jorawar Pir Ni Dargah. Thereafter, they left the scene of offence together. Evidently, therefore, all the accused were members of the unlawful assembly. 49. From the evidence which has come on record, it is manifest that the accused persons were more than five. The common object of the unlawful assembly in the first place appears to be to damage the Jorawar Pir Ni Dargah. However, upon the PW-13 and PW-15 and others arriving at the scene and one or two members of the group asking the accused to desist from vandalizing the dargah, on the spur of the moment, the members of the unlawful assembly appear to have formed the object of assaulting and killing the members of the community to which the witnesses belonged and have assaulted all of them. Some of the members including PW-13 and PW-15, appear to have escaped with injuries; however, three of the persons who had accompanied them, viz. Haiderbhai Bavabhai, Jummabhai Jusabbhai and Imran Ismail Bhatti, were not so fortunate and were done to death by the members of the unlawful assembly. In Subal Ghorai v. State of W.B., (supra) the Supreme Court has held that if an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of section 149 of the IPC, if they shared common object of the unlawful assembly. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of section 149 of the IPC, the question that he did nothing with his own hands would be immaterial. The court has also held that this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. The court has also held that this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of section 149 of the IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. The court held that these principles laid down by it do not dilute the concept of constructive liability. They embody a rule of caution. 50. Adverting to the facts of the present case, the two injured eyewitnesses have described the manner in which the assault took place and there is no major inconsistency in the versions given by the two witnesses. While it is true that there is some discrepancy with regard to the weapons carried by the accused, however, both the witnesses have stated that all the accused were armed with weapons. The evidence on record discloses that several persons have assaulted the deceased persons mercilessly with weapons. One of the unfortunate deceased persons was a fourteen year old boy. While it is true that there is some discrepancy with regard to the weapons carried by the accused, however, both the witnesses have stated that all the accused were armed with weapons. The evidence on record discloses that several persons have assaulted the deceased persons mercilessly with weapons. One of the unfortunate deceased persons was a fourteen year old boy. In the opinion of this court, considering the fact that several persons were assaulting the deceased persons together, and the witnesses, after sustaining injuries had escaped and watched the incident from a little distance, they may not have been in a position to note the type of weapon carried by each accused. Moreover, one cannot lose sight of the fact that the evidence of the witnesses was recorded after a period of more than eight years. Both the witnesses have been subjected to lengthy cross-examination by the learned counsel for the accused, however, they have withstood the same and the defence has not succeeded in shaking their credibility. Therefore, there is no reason to disbelieve the testimonies of the two injured eyewitnesses. 51. It may also be noted that in their statements under section 313 of the Code, the defence of the accused is of total denial, and it has not been contended that they were innocent bystanders. Having carefully perused the evidence on record, this court has no hesitation in recording that this is not a case where any innocent bystanders are roped in the crime with the aid of section 149, IPC. All the accused (except the accused No. 4) had initially formed an unlawful assembly with a view to vandalize and damage the dargah, and upon the witnesses asking them to desist from doing so, they turned upon them and assaulted them with deadly weapons, causing the death of three of the persons and injuring the other witnesses and thereafter left the scene of offence together. Thus, the conduct of the accused before the assault, at the time of the assault and after the assault clearly indicates that they were members of the unlawful assembly, the common object of which was to kill the persons belonging to the community to which the witnesses belonged. Thus, the conduct of the accused before the assault, at the time of the assault and after the assault clearly indicates that they were members of the unlawful assembly, the common object of which was to kill the persons belonging to the community to which the witnesses belonged. In the opinion of this court, there are sufficient direct and indirect circumstances on record which lend assurance to the prosecution story that all the accused, except accused No. 4 [whose case stands on a different footing as neither of the witnesses have attributed any role to him], shared the common object of the unlawful assembly and in prosecution of the common object of the unlawful assembly, they killed three persons who were accompanying the injured witness and injured the others, including the injured eyewitnesses. As a necessary corollary, therefore, those accused who are stated to have caused lesser injuries to the deceased and the witnesses and those accused who have caused the fatal injuries would also be liable to be convicted for murder and other offences with the aid of section 149 IPC because they were members of the unlawful assembly at all crucial stages and shared common object of the assembly at all stages. 52. The two eyewitnesses who are injured witnesses and hence, their presence at the scene of offence cannot be doubted, have deposed in an unequivocal manner about the assault by all the accused persons except accused No. 4 - Devabhai. The common object of the unlawful assembly being clearly evident, in such a situation, attribution of specific individual overt act has no role to play. In view of the above discussion, all the requisite tests to attract section 149, IPC have been established by the prosecution. 53. Insofar as the evidentiary value of the testimonies of two injured eyewitnesses is concerned, it is settled law as held by the Supreme Court that it is the quality of evidence and not the quantity of evidence which is material. It has been held that the testimony of a solitary witness can be made the basis of conviction. 53. Insofar as the evidentiary value of the testimonies of two injured eyewitnesses is concerned, it is settled law as held by the Supreme Court that it is the quality of evidence and not the quantity of evidence which is material. It has been held that the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness requires to be tested with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as natural, wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony. In the present case, having considered the testimonies of the two injured eyewitnesses, the court is satisfied with the truthfulness of the versions given by them. Both the witnesses have testified in a natural manner and have not tried to match their testimonies. At the cost of reiteration it may be stated that both these witnesses have witnessed the incidents from different spots and hence, have viewed the incidents from different angles. Therefore, it is manifest that what would be seen by one may not have been seen by the other. In these circumstances, the trial court was not justified in jettisoning the testimonies of the witnesses in those cases where an accused was named by only one of them and not both. When a mob attacks, all the witnesses would not see the incident in the same manner nor would they be able to recall the incident in the same manner. While one person may be able to recall the presence of certain persons, another may be in a position to recall some others. It depends upon the imprint the scene has left in the mind of the witness. Moreover, the testimonies of the witnesses are also supported by the medical evidence and the panchnama, Exhibit-50, which shows the weapons recovered from the accused persons. 54. The learned counsel for the accused has sought to discredit the testimonies of the injured witnesses by stating that their conduct at the time of and after the incident is unnatural and therefore, they are not trustworthy. 54. The learned counsel for the accused has sought to discredit the testimonies of the injured witnesses by stating that their conduct at the time of and after the incident is unnatural and therefore, they are not trustworthy. It was submitted that the witnesses despite the fact that the persons who were killed were the persons known to them, did not try to rescue them from the mob and did not make any attempts to take them home after the incident and that after the incident also, they did not deem it fit to inform anyone, nor did they take any steps to inform the police or lodge a complaint. In the opinion of this court, in ordinary circumstances, the submission of the learned counsel may have carried weight. But what is to be kept in mind is that this is not an incident that has taken place in ordinary circumstances. As rightly pointed out by the learned Special Public Prosecutor, this is a riot case and when the incident took place, the riots were at the peak and the whole State was in the grip of riots. A perusal of the panchnama of the scene of offence bears out the fact that a number of riots took place at Viramgam on the same day. From the testimonies of the witnesses, it is evident that there was an atmosphere of terror, and out of fear, the witnesses did not dare to venture out of their houses for several days. The witnesses have also stated that though they would have liked to help the persons who were being assaulted by the mob, the members of the mob outnumbered them and they were armed and therefore, they did not dare to go to their rescue. Considering the tense situation prevailing at that time, it cannot be said that the conduct of the witnesses in not attempting to save the deceased persons or trying to take them home, is so unnatural so as to disbelieve their testimonies. 55. At this juncture, it may be apposite to refer to the decision of the Supreme Court in the case of Rana Pratap v. State of Haryana (supra), wherein it has been held thus: "6. 55. At this juncture, it may be apposite to refer to the decision of the Supreme Court in the case of Rana Pratap v. State of Haryana (supra), wherein it has been held thus: "6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way." 56. In Kathi Bharat Vajsur v. State of Gujarat (supra), the Supreme Court has held that the court must bear in mind that witnesses of a serious crime do not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of the ordinary type in normal circumstances. The court, therefore, cannot reject their evidence merely because they behaved or reacted in an unusual manner. Adverting to the facts of the present case, considering the situation prevailing at the relevant time when there were riots all around and curfew had been clamped, the police force was busy in controlling the law and order situation and investigation had taken a back seat, this court is of the view that the unusual behaviour of the eyewitnesses will not come to the aid of the accused to punch a hole in the prosecution story. The trial court in the impugned judgment and order has recorded that the conduct of the witness has to be considered in the light of the situation prevailing at the relevant time when in the entire area, the atmosphere was one-sided and was against Muslims, due to the tense atmosphere, their mental condition was affected and hence, it is quite possible that the witnesses may not have informed anyone at that time. Moreover, in view of the one sided atmosphere, they may have felt that even if they did talk to someone, no one would listen to them. In the light of the above findings and considering the then prevailing situation, this court is of the view that the conduct of the witnesses cannot be said to be unnatural. 57. The learned counsel for the accused has sought to place reliance upon the testimonies of the hostile witnesses to discredit the version given by the two injured witnesses. It would therefore be necessary to examine as to what extent the testimonies of hostile witnesses can be taken into consideration. In Krishan v. State of Haryana, (2013) 3 SCC 280 , the Supreme Court held thus: "35. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the appellant-accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 Cr.PC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution." 58. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution." 58. In Veer Singh v. State of U.P., (2014) 2 SCC 455 , the Supreme Court held that it is settled law that the testimony of the hostile witness need not be discarded in toto and that portion of testimony in the chief-examination which supports the prosecution case can be taken for consideration. Thus, the testimony of the hostile witness can be taken into consideration to the extent it supports the prosecution case. In the present case, insofar as the testimonies of the hostile witnesses are concerned, the same are required to be discarded in their entirety, inasmuch as, none of them support the main case even in part. Besides, there are major contradictions inter se in the testimonies of the said witnesses which dent the credibility of the said witnesses. Moreover, though three of the hostile witnesses were injured witnesses, they have denied the incident in toto, whereas in the cross-examination of one of the witnesses a case is sought to be advanced that a mob of 1500 to 2000 persons had attacked the chali and all the injured witnesses had sustained injuries during the course of such assault. The contradictions in the testimonies of the witnesses have been brought out in the cross-examination of the said witnesses by the learned Public Prosecutor as well as from the testimony of the Investigating Officer. It may be pertinent to note that PW-10, Dostmohmmad Suleman had during the course of trial, filed an application for further investigation and upon the said application being rejected, had approached the High Court in revision, however, he, too, appears to have been won over and has not supported the prosecution case and has been declared hostile. Evidently, therefore, the testimonies of such witnesses cannot be relied upon as the same are neither trustworthy nor credible. Evidently, therefore, the testimonies of such witnesses cannot be relied upon as the same are neither trustworthy nor credible. However, the mere fact that these three injured witnesses and other two witnesses have turned hostile would not affect the case of the prosecution adversely, inasmuch as, the facts which these witnesses were to prove already stand fully proved by the other two prosecution witnesses who have not turned hostile and instead have fully supported the prosecution case. Besides, the testimonies of the hostile witnesses do not carry any weight as against the testimonies of the two injured eyewitnesses who have withstood lengthy cross-examination without their credibility being dented. 59. On behalf of the accused, it has also been emphatically argued that the investigation is not defective but is tainted. However, nothing has been pointed out as to why the investigating officer would be interested in falsely implicating the accused. Except for a bare assertion that the place and timings of the offence have been changed, no substantial material has been pointed out in support of such submission. It may also be noted that in view of the defects in the investigation as well as in view of the fact that according to the witnesses/injured, their statements under section 161 of the Code had not been recorded in terms of what they had stated, an application, Exhibit-36 came to be filed before the trial court under section 173(8) of the Code, which was rejected by an order dated 19.01.2010. Against the said order, PW-10 Dostmohmmad Suleman, approached this court in Criminal Revision Application No. 74 of 2010 on the ground that proper investigation had not been carried out by the investigating agency. By an order dated 13.07.2010, the application came to be disposed of with a direction to the District Superintendent of Police, Ahmedabad (Rural) to carry out further investigation. By an order dated 13.07.2010, the application came to be disposed of with a direction to the District Superintendent of Police, Ahmedabad (Rural) to carry out further investigation. Insofar as the defects in the investigation are concerned, it is an admitted position that the investigation was defective, inasmuch as, the Investigating Officer has not collected the clothes of the deceased and the injured witnesses and sent them to the Forensic Science Laboratory for testing; the first information report is a consolidated complaint of all the incidents that took place on 28.02.2002 in Viramgam town; the panchnama of the scene of offence is also a consolidated one covering the scene of offence in relation to several incidents which took place on that day and was carried out under the search light of the police jeep, that too, without any witness being called out to point out the exact scene of offence; no map of scene of offence has been prepared, etc. However, the question that arises for consideration is whether the failure of the investigating agency to carry out proper investigation would discredit the testimonies of the injured eyewitnesses or constitute a deficiency of the kind that would affect the prosecution version. In the opinion of this court, having regard to the evidence which has come on record, the answer would be in the negative. This court is of the view that failure on the part of the Investigating Officer to collect the clothes of the deceased and the injured persons and send them to the forensic science laboratory for analysis is, in the circumstances of this case, no more than a deficiency in the investigation. Any such deficiency does not necessarily lead to the conclusion that the prosecution case is totally unworthy of credit. As held by the Supreme Court in Sheo Shankar Singh v. State of Jharkhand (supra), the deficiencies in the investigation by way of omissions and lapses on the part of the investigating agency cannot in themselves justify a total rejection of the prosecution case. If primacy was given to such negligent investigation or to the omissions and lapses committed in the course of investigation, it will shake the confidence of people not only in the law enforcing agency, but also in the administration of justice. A deficiency in the investigation does not corrode the evidentiary value of the eyewitnesses. 60. If primacy was given to such negligent investigation or to the omissions and lapses committed in the course of investigation, it will shake the confidence of people not only in the law enforcing agency, but also in the administration of justice. A deficiency in the investigation does not corrode the evidentiary value of the eyewitnesses. 60. On behalf of the appellants, it has been contended that the injured eyewitnesses had a grudge against them as they were instrumental in various criminal cases being filed against them and hence, had deliberately falsely implicated them in the offence in question. In this regard it may be noted that the trial court has recorded a categorical finding to the effect that the cases against the witnesses had been filed by the Government and not by the accused. Moreover, from the cross examination of PW-15 Mohammed Ayub Miyana, wherein several suggestions have been made regarding his involvement in various prohibition offences, it is evident that all these offences have been registered in the year 2007 and thereafter, that is, much after the occurrence of the incident in 2002. In fact it is only after the charge-sheet came to be submitted in the year 2006, that the offences came to be registered. The contention that the accused have been wrongly implicated in the offence in question on account of animosity on the part of the witnesses, therefore, does not merit acceptance. 61. As noticed earlier, the trial court has convicted accused -Bhopabhai Tejabhai Bharwad for the offence punishable under section 302 read with section 149, IPC; accused - Viththal alias Kuchiyo Motibhai Bharwad for the offence punishable under section 302 and 323, IPC; accused - Bachuji Ranchhodji Thakor for the offence under sections 302 and 325 read with section 149, IPC; accused - Valabhai Gelabhai Bharwad for the offence punishable under section 326 read with section 149, IPC; accused - Mulabhai Gelabhai Bharwad for the offence punishable under section 324 read with section 149, IPC and accused - Merabhai Gelabhai Bharwad for the offence under section 325 read with section 149, IPC, and has acquitted Satabhai alias Haider Gela Bharwad, Devabhai Samatbhai Bharwad, Naranbhai Samantbhai Bharwad and Udaji Ranchhodbhai Thakor. 62. 62. As discussed hereinabove, both the witnesses have not adduced any evidence in respect of the involvement of the original accused No. 4 - Devabhai Samatbhai Bharwad and hence, no infirmity can be found in the impugned judgment and order passed by the trial court in acquitting the said accused. However, having regard to the offences for which the other accused have been convicted, it is evident that the trial court has considered the testimonies of the injured witnesses and considering the roles and weapons attributed to each of the accused and the injuries sustained by the deceased, convicted the accused persons accordingly for the corresponding offences and has acquitted the accused persons who were named by one of the witnesses and not by both of them and in whose cases, the injuries did not tally with the roles and weapons attributed to them. 63. Since the trial court has acquitted accused Satabhai @ Haider Gela Bharwad, Naranbhai Samatbhai Bharwad and Udaji Ranchhodji, it would be necessary to examine the scope of interference by the High Court in respect of a judgment and order of acquittal. In this regard, it is settled legal position, as held by the Supreme Court in Krishna alias Krishnappa v. State of Karnataka, (2014) 15 SCC 596 , that while dealing with appeals against acquittal, the appellate court must bear in mind the following: "(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court." 64. At this juncture reference may be made to the findings recorded by the trial court in the impugned judgment and order whereby it has acquitted four of the accused and has convicted the others for different offences based on the individual role attributed to each accused. 64.1 In paragraph 32 of the judgment and order of conviction and sentence, the trial court has discussed that the roles attributed to the accused persons and the reasons for accepting as well as for not accepting the testimonies of the witnesses. Insofar as Satabhai alias Haider Gela Bharwad is concerned, the trial court has recorded that a stick was recovered from him whereas, in terms of the oral evidence, it is clear that he had a sword in his hand and that Devabhai Samatbhai Bharwad was wielding a dharia, however, no injuries corresponding to the injuries referred to in the oral evidence are found. A sword has been recovered from Viththal alias Kuchiyo Motibhai Bharwad, whereas in terms of the oral evidence, a stick has been recovered from him and a gupti has been recovered from Bhopabhai Tejabhai Bharwad and as per the oral evidence, he has used a gupti. Sticks have been recovered from Mulabhai Gelabhai Bharwad, Valabhai Gelabhai Bharwad, Udaji Ranchhodbhai Thakor and Merabhai Gelabhai Bharwad, whereas a dharia has been recovered from Bachubhai Ranchhodbhai and in terms of the oral evidence, he was wielding a dharia. Sticks have been recovered from Mulabhai Gelabhai Bharwad, Valabhai Gelabhai Bharwad, Udaji Ranchhodbhai Thakor and Merabhai Gelabhai Bharwad, whereas a dharia has been recovered from Bachubhai Ranchhodbhai and in terms of the oral evidence, he was wielding a dharia. The trial court has recorded that the witness Jusabbhai Ayubbhai Miyana has not stated anything regarding accused Naranbhai Samatbhai, whereas Mohammedbhai Ayubbhai Miyana has stated that he has inflicted stick blows on Imranbhai. Both of them have not stated anything about Devabhai Samatbhai. 64.2 The trial court has further recorded findings to the effect that while PW 15 Mohammedbhai Ayubbhai Miyana in his testimony has stated that Imran was present with him, PW 13 Jusabbhai Ayubbhai Miyana has not deposed regarding the presence of Imran, but was of the view that considering the testimony of PW 15, it was clear that Imran was present at the scene of offence. The trial court has further recorded that considering the testimonies of the two witnesses, they have not stated that Haider Bavabhai is their relative, it, however, was of the view that merely because Haider Bavabhai was their relative would not cause any damage to their evidence. The trial court has further noted that as per the testimony of PW 15, he has deposed that Kuchia Bharwad had inflicted a stick blow on his head and there was bleeding, however, a perusal of the medical evidence shows that he had not sustained any head injury and hence it appears that the witness is exaggerating; however, the fact that he had sustained injuries on the fingers of both his hands is proved by the medical evidence; the witness has not been able to identify the muddamal weapons and when he has identified a particular stick as having been wielded by a particular accused, in fact such stick was held by some other accused; it also emerges from the testimony of the witness that he had not seen any distinguishing marks on the weapons. The trial court was of the view that the sticks being of the same kind, it is possible that there might be a mistake in identification; however, the weapons which he has identified have been used by one or the other accused. According to the trial court, when the safety of a person is in question, it is natural that he would not have minutely observed the weapons. According to the trial court, when the safety of a person is in question, it is natural that he would not have minutely observed the weapons. Insofar as the allegations of animosity against the accused on the part of the witness, the trial court has observed that considering the cases registered against this witness, the same have been lodged on behalf of the Government and there is no reference therein that the same have been registered on an application made by the accused. In 1994, there was a case under section 307 IPC, but the witness is not an accused therein. Moreover, the prohibition cases registered against him are not of a period prior to the incident but are for the period 2007 to 2010. Hence there is no reason to believe that due to enmity the accused had been falsely implicated. As regards the conduct of the witness, the trial court has observed that if the conduct of this witness is considered, he has stated that he had gone out of the chali on 28.2.2002; however, merely because he did not go to protect the public property or extinguish other fires, does not mean that he has not gone to scene of offence. On the question of identification of the accused, the trial court was of the view that just because the witness does not know all the Bharwads living in the vicinity, does not mean that he has wrongly identified the accused because the accused frequently pass through the road and hence it is quite possible that he knew them; on a perusal of the evidence, the witness knows some of the persons belonging to the villages of the accused and not all of them; and hence, just because there was no test identification parade does not mean that wrong names have been given. As regard the conduct of the witness, viz., despite the fact that he desired to do so, he had not informed anyone about the incident relating to the death of Haider Bavabhai; on the way to the hospital there was a police chowky, but he has also not informed them; on 2.3.2002, he was at home the whole day but he did not inform anyone; the trial court was of the view that considering this conduct in the context of the mood prevailing at the relevant time, there was a one-sided atmosphere everywhere and there was an anti-Muslim mood, therefore due to the atmosphere of terror, their mental health had been affected, and hence, it is possible that both, PW-13 and PW-15, did not inform anyone about the incident. Moreover, due to the one-sided atmosphere they may have felt that even if they talk to someone about it, no one would listen to them. The trial court has observed that considering the evidence which has come on record it is clear that for two days they did not talk about the incident to anyone; however, considering the situation at the time of the incident, their conduct is natural and there is nothing unnatural about it. The trial court further noted that the witness has stated that after the accused left, he did not go to help the deceased and was of the view that when a mob is armed and the mob has lost its sense of reason, in such a situation when saving one's life and safety is in question, it is but natural that he would not go to save someone. The trial court has further recorded that the witness (PW-15) has stated that he has seen the incident from behind the baval (babool tree), however, the defence in the cross examination has not brought out any fact that the baval bushes were so high and they were so thick that nothing could be seen from behind them. Moreover, when a mob attacks, it is quite possible that one might not be able to say as to who inflicted how many blows and which person used which weapon, more so, considering the period between the occurrence of the incident and the recording of the evidence, which is eight years, which would affect a person's mental position and capacity to remember and observe, etc. 64.3 The trial court has further recorded that it has been submitted on behalf of the defence that considering the testimonies of the two injured witnesses and the medical officer, there is some inconsistency between the ocular evidence and the medical evidence and hence, such evidence cannot be taken into consideration. The trial court has recorded that witness Jusabbhai Ayubbhai has in his testimony mentioned that Sartanbhai @ Haider Gela Bharwad had inflicted a blow with a sword on his left arm. Examining the medical evidence in this regard, Dr. Vimal Prajapati in his testimony recorded at Exh. 81 has deposed that there is a CLW injury 1 X 0.5 above the wrist and below the elbow of the witness, which clearly shows that the same can be caused by a weapon with which one can stab which is supported by the oral evidence. Therefore it is clearly established through oral and medical evidence that the witness had been wounded with a sword on his left hand, however, the other witness does not corroborate the same. Furthermore this witness has stated that Bhopabhai Tejabhai Bharwad had inflicted blows with a gupti on Jusabbhai, however, he does not say on which part of the body such blows were inflicted. On a perusal of the testimony of Dr. Rampyare Prasad Verma, it can be seen that he does not mention any injury with a sharp cutting weapon or a stab wound, hence there is a discrepancy in the testimony of the witness and the medical evidence. However, the witness has stated that Bachuji Thakore had inflicted blows with a dharia on Jusabbhai Ayubbhai Ghatia, however, he does not say on what part of the body such blows were inflicted. However, the medical evidence shows that there is a mention of a CLW 3 cm x 5cm x 3cm on the right side of the head which injured the muscles and the brain and there was a fracture on the skull. However, from the evidence of the Medical Officer it does not come out that the injury was caused by a dharia. Hence, there is a discrepancy in the oral evidence and medical evidence. The trial court has further observed that this witness has stated that Mulabhai Gelabhai Bharwad has dealt blows with a stick on Jusabbhai, but he does not say on which part of the body such stick blows were inflicted. Hence, there is a discrepancy in the oral evidence and medical evidence. The trial court has further observed that this witness has stated that Mulabhai Gelabhai Bharwad has dealt blows with a stick on Jusabbhai, but he does not say on which part of the body such stick blows were inflicted. If the medical evidence in this regard is examined, it appears that Jusabbhai had sustained a fracture on the tibia fibula of the leg which was bleeding and he had also sustained fracture on the arti (sic) temporal bone. On a perusal of the oral evidence, Merabhai Gelabhai Bharwad had inflicted stick blows on Jusabbhai, however, he does not say on which part of the body such blows were inflicted. The witness does not say that the blows were inflicted on those parts of the body shown in the medical evidence. However, it is clear that he has sustained fractures on the leg and skull, but it is not clear as to which accused has inflicted which injury. A perusal of the testimony of the witness, shows that he has mentioned that Merabhai Gelabhai Bharwad and Mulabhai Gelabhai had inflicted blows with a stick and both the injuries are such as could be caused with a hard and blunt substance and hence there is reason to believe that both these accused could have caused those injuries. (It appears that the trial court has wrongly referred to deceased Jummabhai Jusabbhai as Jusabbhai in the findings recorded herein above). 64.4 The trial court has further recorded that keeping in view the oral evidence of Mohammedbhai Ayubbhai Miyana and medical evidence, he has stated Bhopabhai had indiscriminately inflicted blows with a gupti on Haider Bava and Jusabbhai. However, as discussed hereinabove, Jusabbhai has not sustained any injury caused by a sharp cutting weapon and hence the testimony of the witness that he was caused injuries with a gupti is not supported by the medical evidence. However, if the evidence in relation to Haider Bava is examined, Dr. Rampyare Prasad Verma has treated Haider Bava. He has stated that there was an injury 2 cm x 1 cm on the abdomen on the right side which was muscle deep till the cavity. Such injury could be caused with a weapon which can cause a stab wound. Hence, the oral evidence of the witness is corroborated by the medical evidence. He has stated that there was an injury 2 cm x 1 cm on the abdomen on the right side which was muscle deep till the cavity. Such injury could be caused with a weapon which can cause a stab wound. Hence, the oral evidence of the witness is corroborated by the medical evidence. The trial court has further noted that the witness has given evidence to the effect that Valabhai Gelabhai Bharwad had inflicted blows with a stick on Haiderbhai Bavabhai. Keeping in view the medical evidence, it emerges that there was a fracture on the right leg and hence, the fact that Valabhai had inflicted a stick blow on the right leg which resulted into a fracture is corroborated by the oral evidence. Moreover, the witness has given evidence to the effect that Naranbhai Samatbhai Bharwad had inflicted stick blows on Imranbhai Ismailbhai. However, he has not stated as to on which part of the body the injury had been caused. Similarly, the witness has stated that Viththal alias Kuchiyo Moti Bharwad had inflicted stick blows on Imranbhai. However, he does not say as to on which part of the body, the stick blows had been inflicted. Moreover, the witness states that the accused had inflicted a blow with a stick on his head; however, as per the medical evidence viz. the testimony of Dr. Vimalbhai Laxmanbhai Prajapati, the witness has not sustained any injury on the head. However the witness has stated that when the accused was going to inflict a second blow he put his hands across and hence the fingers of both his hands were injured and that he had also been given blows on his back. In this regard if one peruses the medical evidence it shows that there are 1 cm x 1 cm injuries on the fingers of both the hands and hence the oral evidence is supported by medical evidence. As per the testimony of the doctor, this witness has also sustained bruises and swelling on his back and as per the oral evidence of the witness, Viththal @ Kuchia Bharwad had inflicted stick blows on his back. Considering the ocular and the medical evidence, the ocular evidence is partly supported by the medical evidence. As per the testimony of the doctor, this witness has also sustained bruises and swelling on his back and as per the oral evidence of the witness, Viththal @ Kuchia Bharwad had inflicted stick blows on his back. Considering the ocular and the medical evidence, the ocular evidence is partly supported by the medical evidence. The said witness has also deposed that Valabhai Gelabhai had inflicted stick blows on Imran and Naranbhai Samatbhai had caused injuries to Imran by a dharia and Udaji Ranchhod Thakore had inflicted stick blow on Imran and dharia blows on Jusabbhai and Mulabhai had inflicted stick blows on Jusabbhai, however, considering the medical evidence, Jusabbhai had sustained three injuries on the leg whereas as per the oral evidence three of the accused had inflicted stick blows, hence it is clear that the injuries have been caused by only one blow and if one looks at the oral and medical evidence there are three injuries which as per the oral evidence are caused by three accused. However, as per the oral evidence the accused have indiscriminately inflicted blows. Considering the situation at the time of the incident when at a time two to four persons are assaulting one person, it cannot be said with certainty as to which person caused injury on which part and how many injuries were caused. If one discusses the medical and oral evidence regarding the injuries sustained by Imran, he had sustained a depressed fracture on the nose, there was a depressed fracture of maxillary bone, and there was a 4 cm (sic 4 inches) x 7 cms blackish bruise on his back. Keeping this fact in mind, as per the oral evidence, Valabhai had inflicted a stick blow on Imran. There is evidence to the effect that Naranbhai had caused injury by dharia and Udaji by a stick. Considering the testimonies of the eye witnesses, they do not state that Udaji inflicted any injury on Jusabbhai, the fact regarding his having caused injuries a with stick to Imran appears to be doubtful, whereas in respect of the other accused, both the witnesses do not depose on oath. Therefore, there is no such discrepancy in the medical and oral evidence so as not to believe the testimonies of the eye witnesses. Therefore, there is no such discrepancy in the medical and oral evidence so as not to believe the testimonies of the eye witnesses. (The trial court, while recording its findings, appears to have wrongly referred to deceased Jummabhai Jusabbhai as Jusabbhai) 64.5 The trial court has further recorded that from the oral and medical evidence, it is clear that the accused have caused injuries to the witnesses as well as the deceased. A major contradiction which has come on record is that Mohammedbhai has deposed that he was inflicted a stick blow on his head whereas as per the medical evidence there is no corresponding injury. However, other than that there is no such discrepancy between the medical and oral evidence so as to disbelieve the testimonies of the witnesses. As per the oral evidence, there was a mob of about fifty to sixty persons and hence there is likely to be a discrepancy as regards collectively on which person they were inflicting injuries. However, upon considering the overall evidence, it is clear that out of the accused persons some of the accused have caused injuries to the witnesses. Keeping in view the panchnama Exh. 50, a dharia has been recovered from Naranbhai and as per the oral evidence, it is clear that he had used a dharia. A stick came to be recovered from Satabhai @ Haider Gela Bharwad where as in terms of the evidence he was armed with a sword. Deva Samatbhai had wielded a dharia in his hand, but in terms of the oral evidence nothing has come on record regarding his having caused any injury to anyone. A sword came to be recovered from Vitthal @ Kuchia Bharwad whereas in terms of the oral evidence he had used a stick. A gupti has been recovered from Bhopabhai Bharwad and as per the oral evidence he has used a gupti. Sticks have been recovered from Mulabhai Gelabhai Bharwad, Valabhai Gelabhai, Udaji Ranchhodji Thakore and Merabhai Gelabhai Bharwad whereas a dharia has been recovered from Bachubhai Ranchhodbhai and as per the oral evidence a dharia had been recovered from him. Jusabbhai Ayubbhai Miyana who has been examined at Exhibit 72 does not state any fact regarding accused Naranbhai Samatbhai whereas Mahmadbhai Ayubbhai Miyana who has been examined at Exh. 76 says that he had inflicted stick blows on him. Jusabbhai Ayubbhai Miyana who has been examined at Exhibit 72 does not state any fact regarding accused Naranbhai Samatbhai whereas Mahmadbhai Ayubbhai Miyana who has been examined at Exh. 76 says that he had inflicted stick blows on him. Both the witnesses do not say that Devabhai Samatbhai had caused injuries to anyone. As per the testimony of witness Jusabbhai, Satabhai Haiderbhai had inflicted a sword blow on him, whereas witness Mohammed does not say that he has caused any injury to anyone; in terms of the recovery panchnama a stick has been recovered from him, however, the evidence is of his having used a sword, therefore it is not established that this witness has caused any injury to anyone. Therefore, there is no clear and cogent evidence against accused Satabhai @ Haiderbhai, Devabhai Samatbhai, Naranbhai Samatbhai and Udaji Ranchhodji and no clear evidence has come on record from the testimonies of the two witnesses regarding their having caused injuries. As discussed earlier, a stick has been recovered from accused Satabhai Haiderbhai whereas as per the oral evidence he has caused injury to the witness with a sword. Considering the testimonies of the two witnesses, PW 13 gives evidence against him, whereas PW 15 does not state anything against him. Thus, it has not happened that both the witnesses have seen him inflicting injuries, due to which the evidence has come of weapon other than the weapon which is recovered from the accused. Since the evidence of both the witnesses is not consistent, the benefit is given to the accused. Similarly looking at the panchnama in relation to Vitthal Kuchia Moti, a sword has been recovered from him, whereas the evidence is to the effect that he has inflicted stick blows on the witness and the deceased. As per the testimonies of the eye witnesses, both of them clearly state that Vitthal @ Kuchia Bharwad has caused injuries with stick. There is no inconsistency in the testimonies of the witnesses in this regard. Therefore the benefit given to Satabhai @ Haiderbhai Gela on account of inconsistency in the testimonies of the witnesses cannot be given to this accused. Considering the evidence against him, he cannot be given the benefit of doubt. There is no inconsistency in the testimonies of the witnesses in this regard. Therefore the benefit given to Satabhai @ Haiderbhai Gela on account of inconsistency in the testimonies of the witnesses cannot be given to this accused. Considering the evidence against him, he cannot be given the benefit of doubt. 64.6 In paragraph 34 of the impugned judgment, the trial court has referred to the various decisions on which reliance has been placed by the learned counsel for the parties. 64.7 The trial court has further held that considering the principles enunciated in the decisions on which reliance has been placed by the learned advocate for the parties, their evidence is required to be scrutinized minutely. As discussed earlier, it has come on record that deceased Haider Bawa is a relative of PW 13 and 15, however, considering the testimonies of the witnesses on oath merely because they are related, the cogent and clear evidence given by them cannot be denied. Merely because in their police statement they have not disclosed that he was their relative, it cannot be said that their testimonies cannot be believed. Considering the testimonies of both the witnesses and the medical evidence discussed hereinabove, they have given clear evidence that the accused had gathered together and formed an unlawful assembly and had wielded weapons and caused injuries to the deceased and injured persons. Considering the principles laid down in the above decisions, the testimonies of these witnesses cannot be totally discarded. To the extent they have exaggerated and there are inconsistencies, the evidence is deficient, but considering the evidence as a whole it is not in the nature of weak evidence. Moreover, if one takes into consideration the fact that the incident has taken place and the situation in which it has taken place and when the mob has indiscriminately inflicted blows then it is possible that the witness cannot clearly state as to which accused inflicted which blow on which part of the body. Also the testimony has been recorded a long time after the incident then in such circumstances, keeping in view the decision of the High Court, if the observation power and memory is considered the evidence cannot be discarded. Also the testimony has been recorded a long time after the incident then in such circumstances, keeping in view the decision of the High Court, if the observation power and memory is considered the evidence cannot be discarded. However, as discussed hereinabove, except in case of accused Devabhai Samatbhai, Sata @ Haider Gela Bharwad, Naranbhai Samatbhai, Udaji Thakore, there is trustworthy and believable evidence against the other accused persons, which has a ring of truth. Hence, the evidence becomes acceptable and though the witnesses have exaggerated to a certain extent, however if the grain is separated from the chaff, the evidence is acceptable. 64.8 In paragraph 62 of the impugned judgment the trial court has held that as discussed by it earlier, if the entire evidence adduced by the prosecution is seen, five witnesses have turned hostile. However, two witnesses have given evidence, wherein there is clear evidence as regards which person has been injured by the accused. The prosecution has been successful in establishing its case on the basis of the testimonies of the two witnesses. The defence has not been able to prove enmity between the accused and the witnesses with certainty, and hence, the allegation that they are giving false evidence on account of enmity is not proved. In this case, witnesses have earlier given statements before the police but have not given evidence in support thereof, in this regard keeping in view the testimony of the Investigating Officer and the principles laid down by the Supreme Court in the decisions referred to in the earlier part of the judgment, the same do not come to the aid of the accused. The trial court has observed that panchnama has been made by keeping a relative of the accused as a panch, and hence, it is possible that a panchnama of the wrong place is drawn. However, on account of deficiencies in this regard, the prosecution case cannot be demolished. Moreover it has come on record through the testimony of the Investigating Officer that the accused were present before the panchas when the panchnama was drawn. The medical evidence shows that the injuries could be caused by the weapons which have been recovered and merely because the weapons were not shown to the medical officer, the prosecution case cannot be discarded and the accused cannot be given the benefit of doubt. The medical evidence shows that the injuries could be caused by the weapons which have been recovered and merely because the weapons were not shown to the medical officer, the prosecution case cannot be discarded and the accused cannot be given the benefit of doubt. 64.9 The trial court has further observed that in this case, if the evidence led by the prosecution is seen, no clear evidence is coming on record in respect of accused Devabhai Samatbhai, Satabhai @ Haider Gela Bharwad, Naranbhai Samatbhai Bharwad and Udaji Ranchhodji and looking to the evidence adduced by the prosecution, witness Jusabbhai does not give any evidence against Naranbhai, whereas PW 15 Mohammedbhai says that he had inflicted injuries with a dharia. Similarly Jusabbhai does not give any evidence against Udaji, whereas PW 15 says that he had inflicted blows but does not give any evidence against Devabhai. Jusabbhai gives evidence against Satabhai, but Mohammedbhai does not say anything against him. Moreover, while it is alleged that they have used swords, sticks have been recovered from them. Keeping in view the aforesaid facts, from the testimonies of the eye witnesses, no clear and cogent evidence is coming out against these four accused. When both the witnesses have seen the incident together, they would both have given evidence against the accused; however, one witness has not said anything about it and hence they are entitled to the benefit of doubt. In view of the above discussion, against the rest of the accused the prosecution has succeeded in establishing its case. 64.10 Accordingly, the trial court has held that considering the above discussion, the prosecution has succeeded in proving its case against accused Bhopabhai Tejabhai Bharwad, Valabhai Gelabhai Bharwad, Mulabhai Gelabhai Bharwad, Vitthal @ Kuchio Moti Bharwad, Bachuji Ranchhodji Thakore and Merabhai Gelabhai Bharwad. 64.10 Accordingly, the trial court has held that considering the above discussion, the prosecution has succeeded in proving its case against accused Bhopabhai Tejabhai Bharwad, Valabhai Gelabhai Bharwad, Mulabhai Gelabhai Bharwad, Vitthal @ Kuchio Moti Bharwad, Bachuji Ranchhodji Thakore and Merabhai Gelabhai Bharwad. Keeping in mind the weapons used and the injuries caused to the deceased and witnesses, Bhopabhai Tejabhai Bharwad appears to be guilty of the offence punishable under section 302, 307 read with section 149, IPC, Valabhai Gelabhai Bharwad is proved to be guilty of the offence under section 326, 324 read with section 149, IPC, Mulabhai Gelabhai Bharwad is proved to be guilty of the offence punishable under section 326, 324 read with section 149, IPC, Vitthal @ Kuchio Moti Bharwad is proved to be guilty of the offence punishable under section 307, 323 read with section 149, IPC, Bachuji Ranchhodji Thakore is proved to be guilty of the offence punishable under section 302, 305 read with section 149, IPC and Merabhai Gelabhai Bharwad is proved to be guilty of the offence punishable under section 325 read with section 149 IPC. The trial court has accordingly, sentenced the accused for the offences in respect of which they were convicted. 65. From the findings recorded by the trial court it is apparent that it has accepted the testimonies of the two injured witnesses qua six of the accused but has discarded their testimonies qua four of the accused. The reason for doing so is that both the witnesses have not named the said accused and the injuries on the deceased do not match with the weapon which they are respectively alleged to have used. As noticed earlier, from the testimonies of the witnesses, it has come on record that insofar as PW-13 Jusabbhai Ayubbhai Miyana is concerned, he has deposed regarding injuries being caused to deceased Jummabhai Jusabbhai; he has not stated anything with regard to any injury being caused to deceased Haiderbhai Bhatti and Imranbhai Ismailbhai. It is only PW-15 who has deposed as regards the injuries inflicted on deceased Haiderbhai Bhatti and Imranbhai Ismailbhai. However, all the above three persons have been injured during the course of the very same incident. Evidently, therefore, it appears that from the place from which PW-13 had witnessed the incident, the occurrence to the extent the accused persons were inflicting blows on Haiderbhai Bhatti and Imranbhai Ismailbhai was not visible. However, all the above three persons have been injured during the course of the very same incident. Evidently, therefore, it appears that from the place from which PW-13 had witnessed the incident, the occurrence to the extent the accused persons were inflicting blows on Haiderbhai Bhatti and Imranbhai Ismailbhai was not visible. Consequently, the said witness would not be in a position to depose as regards the manner in which the said two deceased persons had sustained injuries. As a necessary corollary therefore, witness Jusabbhai Ayubbhai Miyana would not be in a position to state the roles played by accused Naranbhai Samatbhai Bharwad and Udaji Ranchhodbhai Thakor. Insofar as witness Mohammedbhai Ayubbhai is concerned, he has not stated as regards any injury being caused to witness Jusabbhai and hence, has not attributed any role to accused Sata @ Haider Gela Bharwad whereas witness Jusabbhai Ayubbhai Miyana has deposed that accused Haider Bharwad has inflicted a blow with a sword on his left arm. As per the medical evidence, witness Jusabbhai has sustained a contused lacerated wound 1 cm x 1/2 cm at the lateral side of the left arm. Thus, the testimony of the witness stands corroborated by the medical evidence. As discussed hereinabove, when there is an assault by a mob each person tries to save himself and would not be aware of who is assaulting the others, with what weapon and on which part of the body. Therefore, witness Mohammedbhai Ayubbhai may not have noticed as to who was assaulting Jusabbhai, as the primary concern of both the witnesses would be to save their lives. As noticed earlier, after having managed to escape, both the witnesses had witnessed the incidents from different spots and hence, witnessed the incident from different angles, consequently, what was viewed by one witness may not have been witnessed by the other, more so, when the assault was by a mob. The individual roles of each of these accused has been discussed in paragraph 41 to 43 hereinabove and it is clear that the prosecution has duly established their active participation in the offence in question. In these circumstances, merely because one of the witnesses has named certain accused which the other witness has not named, in the opinion of this court, was no reason for the trial court to discard the testimonies of the eyewitness. In these circumstances, merely because one of the witnesses has named certain accused which the other witness has not named, in the opinion of this court, was no reason for the trial court to discard the testimonies of the eyewitness. More so, considering the fact that the trial court has accepted that Haider Bava and Imranbhai Ismailbhai have been injured during the course of the very same incident. The trial court was, therefore, not justified in acquitting the three accused, viz., Satabhai alias Haider Gela Bharwad, Naranbhai Samatbhai Bharwad and Udaji Ranchhodbhai Thakor 66. As discussed hereinabove, the trial court, in the impugned judgment and order, has accepted the testimonies of the two injured eyewitnesses and has also accepted the fact that there was formation of an unlawful assembly, wherein, three persons were killed and other witnesses were injured. However, after recording a finding that there was an unlawful assembly, the trial court has proceeded to convict each individual accused in accordance with the role attributed to him. As held by the Supreme Court in the decisions referred to hereinabove, to attract the mischief under section 149, IPC, it is not necessary that each of the accused must commit some illegal overt act. When the assembly is found to be unlawful and if offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. When the accused persons are charged with an offence not only under section 302, IPC but also read with section 149, IPC, the culpability of such an accused resulting in the death of the persons will not be less than that of homicide amounting to murder. In these circumstances, when three persons have died on account of the injuries sustained by them in the incident in question and the fact regarding the deaths being homicidal has been proved, the trial court was not justified in convicting only two of the accused for the offence under section 302 read with section 149 of the Indian Penal Code and convicting the other accused for lesser offences, as all of them would be guilty of the same offences. 67. For the foregoing reasons, Criminal Appeals No. 984 of 2011 and No. 1144 of 2011 fail, and are hereby dismissed. 67. For the foregoing reasons, Criminal Appeals No. 984 of 2011 and No. 1144 of 2011 fail, and are hereby dismissed. Criminal Appeal No. 1203 of 2011 is partly allowed. While maintaining the judgment and order of acquittal qua accused Devabhai Samatbhai Bharwad, the same is set aside qua accused Satabhai alias Haider Gela Bharwad, Naranbhai Samantbhai Bharwad and Udaji Ranchhodbhai Thakor and the said accused are convicted for the offences punishable under sections 302, 307, 323, 324, 325 and 326 read with section 149 of the Indian Penal Code. Criminal Appeals No. 1204 of 2011 and No. 46 of 2012 are hereby allowed. In addition to the order of conviction and sentence in the impugned judgment and order, accused Valabhai Gelabhai Bharwad is further convicted for the offence under sections 302, 307, 323, 324 and 325 read with section 149 of the Indian Penal Code; accused Viththal alias Kuchiyo Moti Bharwad is further convicted for the offence under sections 302, 324, 325 and 326 read with section 149 of the Indian Penal Code; accused Mulabhai Gelabhai Bharwad is further convicted for the offence punishable under sections 302, 307, 323 and 325 read with section 149 of the Indian Penal Code and accused Merabhai Gelabhai Bharwad is further convicted for the offence under sections 302, 307, 323, 324 and 326 read with section 149 of the Indian Penal Code. 68. This court would now be required to give an opportunity of hearing to the respondents viz., (1) Satabhai alias Haider Gela Bharwad, (2) Naranbhai Samantbhai Bharwad, (3) Udaji Ranchhodbhai Thakor, (4) Valabhai Gelabhai Bharwad, (5) Viththal alias Kuchiyo Moti Bharwad, (6) Mulabhai Gelabhai Bharwad and (7) Merabhai Gelabhai Bharwad, on the question of sentence. The cases are, therefore, adjourned to 25th July, 2016. Accordingly, Issue Notice to the above respondents, returnable on 25th July, 2016. If on that date, they fail to appear before this court, the learned advocate for the respondents shall be heard on the question of sentence.