Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 340 (GUJ)

Javed Shaukat Ali Qureshi v. State of Gujarat

2016-02-11

G.B.SHAH, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. Riots, resulting in serious injuries or even death, are of frequent occurrence in this State and cases relating to such riots require very careful handling. A large number of persons are generally involved and the evidence is often entirely of a partisan character. There is, moreover, great danger of innocent persons being implicated along with the guilty, owing to the tendency of the parties, in such cases, to try to implicate falsely, as many of their enemies, as they can. The parties generally give widely divergent versions of the riot and in such cases, the Police usually prosecute members of both the parties and place the divergent versions and the evidence in support before the Court. It is for the Court to ascertain, in such cases, as to which of the two versions is correct. Broadly speaking, in riot cases, the appreciation of evidence is mostly limited to the extent of role played by each rioter and not to the collateral effect of the incident since it is highly improbable to ascertain the individual role of every member of a rioting mob. 2. All these appeals arise out of the common judgment and order and involve common questions on law and facts, hence, they are decided by this common judgment. 3. Challenge in these appeals is to the judgment and order passed by the learned Addl. Sessions Judge, Court No. 9, Ahmedabad City in Sessions Cases No. 160/2005 and 161/2005 dated 17.03.2006 whereby, original accused No. 1 to 6 & 13 were convicted for the offences punishable u/s. 396, 395, 307, 435 & 201 r/w. Section 149 IPC and were imposed sentence as under; For Conviction Sentence Imposed u/s.396 r/w. 149 IPC Sentence Imposed Imprisonment for life and fine of Rs. 1000/- each and in default, RI for a further period of one month. u/s.395 r/w. Section149 IPC RI for life and five years and fine of Rs. 1000/- each and in default, RI for a further period of one month. u/s.307 r/w. Section149 IPC RI for life and five years and fine of Rs. 1000/- each and in default, RI for a further period of one month. u/s.435 r/w. Section149 IPC RI for three years and fine of Rs. 1000/- each and in default, RI for a further period of one month. u/s.307 r/w. Section149 IPC RI for life and five years and fine of Rs. 1000/- each and in default, RI for a further period of one month. u/s.435 r/w. Section149 IPC RI for three years and fine of Rs. 1000/- each and in default, RI for a further period of one month. u/s.201 r/w. Section149 IPC RI for three years and fine of Rs. 1000/- each and in default, RI for a further period of one month. All the sentences were ordered to run concurrently. The sentence already undergone by the accused persons were given set-off. Whereas, original accused No. 7 to 12 were acquitted of all the charges framed against them. 4. The facts in brief are as under; On 07.11.2003 the City of Ahmedabad was under the grip of communal riots and a mob of around 1500 people had gathered at Shah Alam area of the City. At around 1000 hrs., while Baldev Gangaram (PW-1) was passing through that area on his two-wheeler, the crowd stopped him. Some members from the crowd inquired about his identity and thereafter, began to assault him. They burnt down his two-wheeler. The rioting mob also stopped an auto-rickshaw carrying passengers, compelled them to alight the auto-rickshaw and thereafter, assaulted them. They also snatched a gold necklace from one of the lady passengers, named, Gitaben Bhailal. The mob also assaulted a delivery boy, named, Hemubhai Savabhai Jadav (PW-3), who was carrying LPG cylinders on a bicycle cart and thereafter, looted all the LPG cylinders. Likewise, the rioting mob assaulted and looted several other individuals and caused damage to public as well as private properties. Ajay Vasantlal Shah (PW-13) was passing through the area on his two-wheeler bearing registration No. GJC 883 while Mukeshbhai was riding pillion. During that time, a mob of around 20 - 25 persons stopped the vehicle and began to assault both of them. Some rioter stabbed Mukeshbhai on account of which he fell down. However, Ajay fled the scene of offence by riding pillion on some unknown persons two-wheeler. Information regarding the aforesaid incident was given to Maninagar Police Station. The police party reached the scene of incident and took preemptive steps for disbursing the crowd. Injured Baldev Gangaram was taken to L.G. Hospital for necessary treatment, where he gave his complaint vide Exh. 29. Necessary investigation was done and statement of witnesses were recorded. Information regarding the aforesaid incident was given to Maninagar Police Station. The police party reached the scene of incident and took preemptive steps for disbursing the crowd. Injured Baldev Gangaram was taken to L.G. Hospital for necessary treatment, where he gave his complaint vide Exh. 29. Necessary investigation was done and statement of witnesses were recorded. The dead body of deceased Mukesbhai was found from Chandola Lake. Inquest was carried out and the dead body was sent for performing post-mortem. On the basis of evidence collected, initially, 11 accused persons were arrested. At the end of investigation, charge-sheet was filed before the magisterial Court, which, ultimately, culminated into Sessions Case No. 160/2005. Subsequently, the sole accused came to be arrested and charge-sheet was filed against him. Thereafter, Sessions Case No. 161/2005 was registered and both the Sessions Cases were consolidated and heard together. 5. During the trial, the prosecution examined 37 witnesses; Sr. No. Name of Prosecution Witness Exhibit No. 1 Baldev Gangaram 27 2 Gitaben Bhailalbhai 30 3 Hemubhai Savabhai Jadav 31 4 Pratapsingh Punjabhai Baraiya 32 5 Dineshbhai Bhikhabhai Panchal 33 6 Abdulkasam Abdulsabir 34 7 Rafikbhai Sadikbhai Memon 35 8 Madinabibi Mohammad Iliyaz 36 9 Dr. Hitesh Dayabhai Patel 43 10 Prakashbhai Dinkarbhai 45 11 Chandrabha Satishchandra 47 12 Rajeshkumar Ramkumar 53 13 Ajaybhai Vasantlal Shah 56 14 Lalit Jethanand 59 15 Ankitkumar Dipakkumar Bhatt 61 16 Raju Nandkishor 63 17 Dr. Dharmesh Somabhai 64 18 Dr. Shantuni Devjibhai Jivani 66 19 Dr. Sunil Raichand Prajapati 68 20 Dagdubhai Budhabhai 71 21 Mahesh Ramanlal Thakkar 72 22 Dr. Vipul Prafulchandra 74 23 Dr. Bhadresh Narendrabhai Rathod 77 24 Rajendra Ratilal Patel 81 25 Arifkhan Faridkhan 83 26 Sanjay Muljibhai Patel 84 27 Dhulabhai Jivrajbhai Desai 85 28 Dr. Bijay Vinaykant Parikh 86 29 Manilal Nathabhai Panchal 95 30 Sajidkhan Dilawarkhan Rathod 98 31 Nayanbhai Kanaiyalal Jain 99 32 Kantibhai Ladubhai Damor 101 33 Dilipsinh Poonamsinh Dabhi 102 34 Babubhai Ishwardas Patel 113 35 Chunilal Ramjibhai Vandarwala 127 36 Himanshu Chandravadan Pathak 129 37 Mohammad Yunus Abbasbhai Ansari 133 5.1 The prosecution also placed reliance upon several documentary evidence, particularly, the complaint at Exh. 29, panchnama regarding seizure of Scooter at Exh. 37, inquest panchnama at Exh. 37, Injury Certificate of I.O.-Mr. Vandarwala, Injury Certificate of Baldevbhai Gangaram at Exh. 75, Injury Certificate of Ajaybhai Shah at Exh. 79, panchnama of scene of offence at Exh. 29, panchnama regarding seizure of Scooter at Exh. 37, inquest panchnama at Exh. 37, Injury Certificate of I.O.-Mr. Vandarwala, Injury Certificate of Baldevbhai Gangaram at Exh. 75, Injury Certificate of Ajaybhai Shah at Exh. 79, panchnama of scene of offence at Exh. 100, FSL Reports at Exhs.122 & 123, Serological Report at Exh. 124 and Chemical Analysts Report at Exh. 125 6. At the end of trial, the Court below recorded further statement of accused u/s. 313 Cr.P.C. and ultimately, passed the common impugned judgment and order, which has led to the filing of present appeals. 7. The matters were heard at length yesterday, i.e. on 10.02.2016 but, on account of paucity of time, it could not be concluded and therefore, the hearing was adjourned for today with the clear understanding that all the learned counsel shall remain present when the matter is taken up for hearing. Today, when the matter was called out, except learned counsel Mr. Hashim Qureshi, all the other learned counsel were present before the Court, including learned counsel Mr. Ekrama Qureshi, who is appearing along with learned counsel Mr. Hashim Qureshi. Therefore, the Court proceeded with the hearing of the appeals today. 8. Mr. Qureshi, learned counsel appearing for original accused No. 6, submitted that the Court below committed serious error in law in convicting original accused No. 6 for the alleged offence. He submitted that the main allegation against original accused No. 6 is that he was seen retrieving the Scooter belonging to deceased from Chandola lake. However, the prosecution has not led any cogent evidence to prove his involvement in the alleged crime. Further, the evidence of none of the prosecution witnesses establish the presence or role played by original accused No. 6 beyond reasonable doubt. Hence, the Court below committed serious error in law and on facts in convicting original accused No. 6. 8.1 Learned counsel Mr. Qureshi further submitted that the Court below placed heavy reliance upon the evidence of Gitaben Bhailalbhai (PW-2) to record conviction of original accused No. 6. However, PW-2 has deposed contradictory facts in her police statement and deposition before the Court below. Her evidence stands contradicted by the evidence led by Investigating Officer - Chunilal Ramjibhai Vandarwala (PW-35). Hence, the Court below ought to have discarded the evidence of PW-2. 8.2 Learned counsel Mr. However, PW-2 has deposed contradictory facts in her police statement and deposition before the Court below. Her evidence stands contradicted by the evidence led by Investigating Officer - Chunilal Ramjibhai Vandarwala (PW-35). Hence, the Court below ought to have discarded the evidence of PW-2. 8.2 Learned counsel Mr. Qureshi further submitted that PW-2 has not given any description about the identity of the accused person, who is alleged to have snatched her chain. However, after a long period of almost two years, this witness abruptly identifies original accused No. 6 for the very first time and that to before the Court below during trial. No Test Identification Parade was held prior to such identification by the witness in the Courtroom. It was, therefore, submitted that the Court below committed serious error in law and on facts in convicting original accused No. 6. 8.3 Learned counsel Mr. Qureshi submitted that conviction of original accused No. 4 is also erroneous for the reason that there is nothing on record to involve the accused in the alleged offence. None of the prosecution witnesses name original accused No. 4 as a member of the rioting mob. Hence, the Court below committed serious error in convicting original accused No. 4 for the alleged offence. 8.4 In support of his submissions, learned counsel Mr. Qureshi placed reliance upon the following decisions; "(a) Kanan and others v. State of Kerala, 1979 Cri.L.J. 919(1) : It has been held that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. Parade to test his powers of observations. The idea of holding T.I. Parade u/s. 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If no T.I. Parade is held, then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. If no T.I. Parade is held, then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. (b) Wakil Singh and others v. State of Bihar, 1981 Cri.L.J. 1014(1) : It has been held that where none of witnesses in a trial for dacoity with murder gave any description of dacoits in their statements or in oral evidence nor gave any identification marks, such as stature of accused and only one witness identified dacoits after certain days from T.I. Parade, then conviction cannot be based only on identification by single witness. (c) Radha Kumar v. State of Bihar, (2005) 10 SCC 216 : It has been held that where a witness gives a statement for the first time in Sessions Court several months after the alleged occurrence by certain alleged eyewitnesses, without there being any reasonable excuse for their not having named accused before the police, then such witnesses could not be relied upon, more so since the prosecution case had not been supported by the informant, who also claimed to be an eye-witness and another eyewitness had been disbelieved by the trial Court itself. (d) Mulla and another v. State of U.P., AIR 2010 SC 942 : It has been held that failure to hold Test Identification Parade does not render the evidence of identification in Court inadmissible but, where the evidence relating to identification of accused has been made for the first time only in the Court, then it should not form the basis of conviction and that it can be used only as corroborative evidence. (e) Dandu Jaggaraju v. State of Andhra Pradesh, (2011) 14 SCC 674 : This case was based on circumstantial evidence where statements of two witnesses u/s. 164 Cr.P.C. were recorded for the first time about four months after the incident and the witnesses deposed as to identify the appellant therein (paternal uncle of deceased victim allegedly done to death by him) who was stranger to them and no effort had been made to hold a test identification parade. However, another witness, a completely independent witness testified that he did not know the appellant therein personally but claimed that he had seen the appellant therein at bus depot on relevant day along with the deceased. However, another witness, a completely independent witness testified that he did not know the appellant therein personally but claimed that he had seen the appellant therein at bus depot on relevant day along with the deceased. The said independent witness was called upon to identify the appellant therein for the first time in Court two-and-a-half years after incident. On the aforesaid set of facts, the Apex Court held that the aspect of last seen together could not be acceptable. (f) Iqbal and another v. State of Uttar Pradesh, (2015) 6 SCC 623 . It was held that evidence of identification in TIP is not substantive evidence and conviction cannot be based solely on identification of accused by witnesses in TIP. The prosecution has to adduce reliable substantive evidence connecting accused with the crime to prove offence beyond reasonable doubt." 9. Mr. M.M. Tirmizi, learned counsel appearing for original accused No. 1 to 3, who are appellants in Criminal Appeal No. 882/2006, submitted that conviction recorded by the Court below is erroneous since no overt act is attributed to any of the appellants. It was submitted that the evidence of witnesses only prove their presence in the mob and no overt act has been attributed to any of them. He submitted that mere presence in the mob would not signify that the appellants were involved in the crime. The place where the alleged incident took place is a thickly populated area and therefore, the presence of the appellants in the mob could not be termed as unnatural. 9.1 It was further submitted by learned counsel Mr. Tirmizi that none of the witnesses have given any description about the alleged role played by any of the appellants. There is all probability that the alleged offence might have been committed by some other members of the mob and that the appellants have been wrongly identified as the miscreants. Therefore, the appellants cannot be fastened with the liability u/s. 143, 147, 148 & 149 IPC in the absence of cogent evidence against them and they deserve to be granted benefit of doubt. 9.2 Learned counsel Mr. Tirmizi further submitted that no Test Identification Parade was conducted by the investigating agency to identify the accused persons either by the police witnesses or by the injured prosecution witnesses. 9.2 Learned counsel Mr. Tirmizi further submitted that no Test Identification Parade was conducted by the investigating agency to identify the accused persons either by the police witnesses or by the injured prosecution witnesses. It was submitted that identification of the appellants in the Court room during trial, in the absence of any earlier Test Identification Parade, is of no significance, particularly when, at the time of alleged offence, the appellants were unknown to the victims or injured witnesses. Hence, in the absence of Test Identification Parade, the identification of the accused before the Court room does not have any evidentiary value. It was further submitted that nothing incriminating has been recovered from the appellants, which could remotely connect the accused with the crime in question. In view of the above, the Court below committed serious error in convicting the appellants for the alleged offence. 9.3 In support of his submissions, learned counsel Mr. Tirmizi placed reliance upon the following decisions; "(a) Sukhram v. State of Madhya Pradesh, AIR 1989 SC 772 : Para-9 of the said decision is relevant, which is reproduced hereunder; "9. If the inconsistencies noticed in the evidence of PW-3 Chhoteram and PW-1 Gendalal and the totally different version given by PW-6 Badrilal are taken note of, there is considerable room for doubt regarding the appellant being one of the two miscreants who had set fire to the hut belonging to PW-1 Gendalal and PW-3 Chhoteram and about the appellant rendering himself liable for conviction for having committed the offences in question in pursuance of a common intention between him and the other accused. Even if the appellant was seen running away from the scene by PW-3 Chhoteram it may be that the fire had been set by the other miscreant and the appellant had not shared any common intention with him to commit the offences and had run away from the scene out of fear. In such circumstances, the conviction of the appellant under the two charges cannot be sustained." 10. Mr. Soeb Bhoharia, learned counsel appearing for appellant No. 7, original accused No. 13, in Criminal Appeal No. 882/2006 and for appellant, original accused No. 5, in Criminal Appeal No. 902/2006, adopted the arguments canvassed by both learned counsel Mr. Qureshi and Mr. Tirmizi. He submitted that the evidence of none of the prosecution witnesses establish the guilt of either of the accused persons. Qureshi and Mr. Tirmizi. He submitted that the evidence of none of the prosecution witnesses establish the guilt of either of the accused persons. However, the Court below failed to appreciate the evidence on record in its proper perspective and thereby, committed serious error in convicting both accused No. 5 & 7. 10.1 In support of his submissions, learned counsel Mr. Bhoharia placed reliance upon the following decisions; "(a) Harish Natvarlal Mistry and others v. State of Gujarat, 1993(1) Crimes 451 : It has been held by this Court that identification by a witness of an accused, who was not known to him prior to the incident, for the first time in the Court, is almost valueless unless that identification is buttressed, corroborated or supported by an identification by that very witness of that very accused at a test identification parade, soon after the arrest of that accused by the police. The identification made by the witness of the concerned accused in the court cannot be the basis for finding that particular accused guilty. (b) State of Karnataka v. Mallu Kallappa Patil and others, 1994 Cri.L.J. 952 : In that case, there was a long standing dispute about cleaning of well and levelling of land and large group of villagers, including women, children as well as accused, came to the spot. A quarrel broke out on the spot and some accused persons committed certain acts of violence on the deceased, etc. It was held that the accused would be liable for their individual acts in such situation and that by-standers or others coming from village cannot be said to be members of unlawful assembly with common object of attacking deceased. (c) Kuldip Yadav and others v. State of Bihar, 2011 Cri.L.J. 2640 : In that case involving murderous assault, conviction was sought to be done with the aid of Section 149 IPC. On the facts of the case, the Apex Court held that no overt act had been attributed to any other accused person except accused No. 1 and that had the other accused persons intended or shared common object to kill, they must have used weapons allegedly carried by them to facilitate the alleged common object of committing murder. Thus, when common object was not known to other accused persons, it was not safe to convict other accused persons u/s. 149IPC. (d) Bharat Soni etc. Thus, when common object was not known to other accused persons, it was not safe to convict other accused persons u/s. 149IPC. (d) Bharat Soni etc. v. State of Chhattisgarh, 2012 (12) SCC 657 : It has been held that determination of the common object of an unlawful assembly or the determination of the question whether a member of the unlawful assembly knew the offence that was committed was likely to be committed is essentially a question of fact that has to be made keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene and host of similar or connected facts and circumstances that cannot be entrapped by any attempt at an exhaustive enumeration." 11. Mr. J.M. Panchal, learned Special Public Prosecutor, submitted that the appellants herein were members of a rioting mob that had gone on a rampage destroying both public as well as private properties and causing harm to the general public. It was submitted that the Court below placed reliance on the testimony of those witnesses, who were either independent witnesses or had sustained injuries in the incident and whose presence at the scene of offence was natural. Therefore, no error or illegality has been committed by the Court below in placing reliance upon their evidence. 11.1 Learned counsel Mr. Panchal emphasized the point that prosecution is not required to establish the commission of overt act by every member of unlawful assembly in order to attract the provisions of Section 149 IPC. He submitted that if it is established that accused persons were members of a rioting mob sharing common object at different stages, then their individual role is not required to be proved. Hence, the Court below was completely justified in convicting the accused persons with the aid of Section 149 IPC. He submitted that if it is established that accused persons were members of a rioting mob sharing common object at different stages, then their individual role is not required to be proved. Hence, the Court below was completely justified in convicting the accused persons with the aid of Section 149 IPC. 11.2 In support of his submissions, learned Special P.P. placed reliance upon the following decisions; "(a) Mano Dutt and another v. State of Uttar Pradesh, (2012) 4 SCC 79 : It has been 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 assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. (b) Subal Ghorai and others v. State of West Bengal, (2013) 4 SCC 607 : It has been held that overt act is not necessary for imposition of liability with aid of S.149 IPC. Mere presence in an unlawful assembly may attract vicarious/constructive liability, without any overt act having been proved against such person, if such person can be proved to have been a member of unlawful assembly and to have shared common object, at crucial stages of the incident. In an attack by very large group (200/250 persons) on deceased persons, there are bound to be some omissions or discrepancies in evidence of witnesses and on account of embellishment, evidence of witnesses need not be discarded if it is corroborated on material aspects by other evidence on record. It was further held that identification of accused for the first time in Court was admissible in evidence if the eye-witnesses had seen the accused from close quarters and that if the eye-witnesses had identified some of the accused in Court for the first time, then there is nothing unusual in it. (c) Anup Lal Yadav and another v. State of Bihar, (2014) 10 SCC 275 : It has been held that once it is established that unlawful assembly had a common object, it is not necessary that all persons forming unlawful assembly must be shown to have committed some overt act, rather they can be convicted u/s. 149 IPC. (c) Anup Lal Yadav and another v. State of Bihar, (2014) 10 SCC 275 : It has been held that once it is established that unlawful assembly had a common object, it is not necessary that all persons forming unlawful assembly must be shown to have committed some overt act, rather they can be convicted u/s. 149 IPC. (d) Ashwani Kumar @ Ashu and another v. State of Punjab, (2015) 6 SCC 308 : It has been held that if a witness is trustworthy and reliable, then mere fact that no test identification parade was conducted, would not be a reason to discard his evidence." 12. We have heard learned counsel for both the sides and perused the oral as well as documentary evidence on record. The main line of argument is that the appellants are victims of mis-identity since they have been arraigned not on the basis of a proper Test Identification Parade held immediately after the alleged incident but, on the basis of mere identification by a witness in the Court-room during the course of trial and that to after a period of almost two years. The alternate submission is that even if it is believed that appellants were members of the mob that ran havoc on the date of alleged incident but, there is nothing on record to establish that any of the accused committed any overt act in the entire incident and therefore, the accused not to have been convicted with the aid of Section 149 IPC. 13. While considering the submission regarding non-holding of Test Identification Parade, we find that prosecution has placed heavy reliance upon the testimony of Gitaben Bhailalbhai (PW-2), who is a victim of chain-snatching, to prove the identity of original accused No. 6. In her examination-in-chief, she categorically deposed that on the date of incident, while she was traveling in an auto-rickshaw along with five other passengers and passing through Shah-alam area, a mob stopped the auto-rickshaw and surrounded them. The mob compelled the passengers to alight from the auto-rickshaw and thereafter, began to assault them. She further deposed that some member of the mob snatched the gold-chain from her neck, during which time, she sustained nail injuries on her neck. She was also slapped by some body. The mob compelled the passengers to alight from the auto-rickshaw and thereafter, began to assault them. She further deposed that some member of the mob snatched the gold-chain from her neck, during which time, she sustained nail injuries on her neck. She was also slapped by some body. On witnessing original accused No. 6 in the Court-room during trial, this witness categorically deposed that it was original accused No. 6, who was one of the members of the crowd that had ran havoc on the date of alleged incident and had snatched the gold-chain off her neck. 13.1 In her cross-examination, PW-2 categorically deposed that it was original accused No. 6 who had snatched the gold-chain off her neck and in which process, she had sustained nail injuries on her neck. However, she did not take any treatment at that time. She also deposed that police never called her for any Test Identification Parade. She categorically deposed that she noticed the assailant while he was snatching her chain and that the assailant was original accused No. 6 who is present before the Court. She also deposed that she had averred in her police statement that she could identify the assailant who had snatched her chain if the assailant is brought before her. 13.2 Thus, it is established from the evidence of this witness that she had sufficient time and opportunity to notice the assailant while her chain was being snatched. We may also keep in mind the fact that the alleged incident took place in broad day-light while this witness was traveling in an auto-rickshaw. The sequence of events that unfolded after the auto-rickshaw was stopped by the mob goes to show that the witness had sufficient time and opportunity to recollect and identify the assailant who had snatched her chain, particularly when, the incident of chain-snatching took place while this witness was still sitting in the auto-rickshaw, which is evident from her examination-in-chief. 13.3 In an incident of mob fury, it is understandable that assailants are unidentifiable but, in an incident of chain-snatching, particularly when the victim is seated in an auto-rickshaw, sufficient opportunity would be available to the victim to notice the assailant. It is an undisputed fact that PW-2 is an independent witness and that her presence at the scene of offence was natural. She has no enmity or motive against original accused No. 6. It is an undisputed fact that PW-2 is an independent witness and that her presence at the scene of offence was natural. She has no enmity or motive against original accused No. 6. The involvement of original accused No. 6 is also established from the discovery panchnama (Exh. 50), which has been proved by the prosecution by examining Chandrabha Satishchandra (PW-11). 14. Considering the nature of injuries suffered by PW-2, which has remained non-controverted and the fact that her gold-chain was snatched while she was seated in the auto-rickshaw, sufficient time and opportunity was at the disposal of PW-2 to recollect and identify the assailant. The law on the point is well-settled that if the witness is trustworthy and reliable, the mere fact that no test identification parade was conducted would not be a reason to discard the evidence of the witness. It was observed by the Apex Court in Ashok Debbarma v. State of Tripura reported in, (2014) 4 SCC 747 , as under:-- "21. The above-mentioned decisions would indicate that while the evidence of identification of an accused at a trial is admissible as substantive piece of evidence, it would depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. In Malkhansingh V. State of M.P., this Court clarified that the test identification parade is not a substantive piece of evidence and to hold the test identification parade is not even the rule of law but a rule of prudence so that the identification of accused inside the courtroom at the trial can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable, the mere fact that no test identification parade was conducted, itself, would not be a reason for discarding the evidence of those witnesses...." 15. This principle has been reiterated by the Apex Court in Ashwani Kumar @ Ashu's case (supra). Considering the facts of the case in the backdrop of the principle discussed herein above, we are of the view that Court below has not committed any error in convicting original accused No. 6. This principle has been reiterated by the Apex Court in Ashwani Kumar @ Ashu's case (supra). Considering the facts of the case in the backdrop of the principle discussed herein above, we are of the view that Court below has not committed any error in convicting original accused No. 6. Though the prosecution has not been successful in establishing the alleged role of original accused No. 6 of retrieving the Scooter belonging to deceased from the lake, the fact remains that prosecution has been able to prove the presence of original accused No. 6 as part of a rioting mob and also of committing the offence of chain-snatching. 16. Insofar as the role played by original accused No. 4 is concerned, the testimony of Dhulabhai Jivrajbhai Desai (PW-27) proves the presence of original accused No. 4 along with original accused No. 5, 7, 8 & 10 as members of the rioting mob. It is true that there are certain omissions and contradictions in the evidence of PW-27. However, the fact that this witness was not knowing the assailants, who were members of the rioting mob, by their names, cannot be a ground for discrediting or disbelieving his evidence. In matters relating to riots, it is natural that every member of a rioting mob could not be identified since the events take place quick and fast and the first priority of on-lookers would be to protect their own skin except the security forces. PW-27, being a Police official, is an independent witness, having no motive or enmity against any of the accused. Thus, the evidence of PW-27 proves beyond doubt the presence of original accused No. 4, 5, 7, 8 & 10 as members of the rioting mob. 17. The prosecution examined Aarifkhan Faridkhan as PW-25 at Exh. 83. This witness was serving as Constable at Shah-alam Police Station when the alleged incident took place. He deposed that when he noticed a crowd of around 1500 people at some distance away from Shah-alam Darwaja, he went near Shah-alam Darwaja. At that place, Police Inspector - Vandarwala was already present along with other police personnel. The police party fired rounds of tear-gas shells for dispersing the crowd. However, at that time, the crowd began to pelt stones at the police party and in that incident, P.I. - Vandarwala sustained injury on his face. At that place, Police Inspector - Vandarwala was already present along with other police personnel. The police party fired rounds of tear-gas shells for dispersing the crowd. However, at that time, the crowd began to pelt stones at the police party and in that incident, P.I. - Vandarwala sustained injury on his face. This witness identified original accused No. 1, 2, 5, 8 to 11 and 13 as members of the rioting mob. 17.1 It is true that the afore-mentioned accused persons were identified for the first time in the court-room and that no Test Identification Parade had been held earlier. However, the fact remains that PW-25 has identified original accused No. 1, 2, 5, 8 to 11 and 13 as members of the rioting mob beyond reasonable doubt. The evidence of Sachinbhai Muljibhai Patel (PW-26), who was serving as Police Constable at the relevant time and of Chunilal Vandarwala (PW-35), who was serving as Second Police Inspector at Maninagar Police Station, supports the prosecution case inasmuch as their evidence also proves that original accused No. 1 to 3, 5, 8 to 11 & 13 were members of the rioting mob. All the aforesaid three witnesses, viz. PW-25, PW-26 and PW-35, are independent witnesses. They have no enmity or motive against any of the accused persons. Their presence at the scene of offence is also natural. 18. Insofar as the evidence led by Chunilal Vandarwala (PW-35) is concerned, it is on a better footing since he is the witness, who had sustained injuries in the incident. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit. Therefore, the testimony of such a witness is generally considered to be reliable and trustworthy, as he is a witness that comes with a built-in guarantee of his presence at the scene of crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. Further, the injuries sustained by PW-35 in the incident have been proved by the prosecution by examining Dr. Santuni Dewani (PW-18). We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. Further, the injuries sustained by PW-35 in the incident have been proved by the prosecution by examining Dr. Santuni Dewani (PW-18). Thus, the evidence of PW-35 proves the presence, involvement and role of the accused persons beyond reasonable doubt. 19. Apart from the above witnesses, the evidence led by Prakash Dinkarbhai (PW-10), who is a panch witness to the discovery panchnama (Exh. 46) and of Chandrabha Satishchandra (PW-11), who is a panch witness to the discovery panchnama (Exh. 50) supports the prosecution story. 20. It was vehemently submitted on behalf of the accused persons that in order to convict an accused with the aid of Section 149 IPC, the Court must give a clear finding as to the "common object" of the unlawful assembly whereas in the case on hand the Court below has not given any findings with regard to common object of unlawful assembly. However, in our considered opinion, the common intention of the appellants was writ large that they wanted to create havoc in different areas of the City and to fill terror in the minds of people. In pursuance of this common object, the accused persons killed the deceased besides injuring other people and causing damage to public as well as private properties. Law is abundantly clear that if an offence is committed by any member of an unlawful assembly in furtherance of the common object of that assembly, every member of that unlawful assembly is guilty of that offence. Specific overt act of each member of unlawful assembly need not be proved when the accused are proved to be members of that assembly. After appreciating the entire evidence on record, we are unable to accept the contention advanced by learned counsel for the appellants-accused persons that the accused were merely passive onlookers who joined the mob out of curiosity and they had no intention and did not share the common object of the unlawful assembly. 21. In view of the above discussion, we have no hesitation in coming to the conclusion that the appellants were part of the unlawful assembly sharing the common object of killing, rioting and looting. 21. In view of the above discussion, we have no hesitation in coming to the conclusion that the appellants were part of the unlawful assembly sharing the common object of killing, rioting and looting. Each one of the accused played an active role in furtherance of the common object of the assembly and the Court below was right in convicting the appellants with the aid of Section 149 IPC. However, in our view, the sentence of life imprisonment for conviction u/s. 396 IPC is on the higher side and it would be appropriate if the same is reduced to RI for Ten Years. 22. For the foregoing reasons, the appeals are partly allowed. The impugned judgment and order dated 17.03.2006 is modified to the extent that conviction of appellants, original accused, u/s. 396,395, 307, 435 and 201 r/w. Section 149 and Sections 143, 147, 148 & 337 IPC, u/s. 135 of Bombay Police Act and u/s. 3 & 7 of Prevention of Public Property Damages Act stands confirmed; and, insofar as the sentence part is concerned, the same is reduced to Ten (10) years from life imprisonment for conviction u/s. 396 r/w. Section 149 IPC in respect of all the appellants, original accused. The sentence imposed for conviction under other offences is not disturbed. The impugned judgment and order stands modified accordingly. Rest of the impugned judgment and order remains unaltered. The appellants, original accused, are on bail. Their bail bonds stand cancelled and they are directed to surrender to custody within a period of Twelve (12) weeks from today, failing which the investigating agency shall take necessary action against them, in accordance with the provisions of law.