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2016 DIGILAW 829 (GUJ)

Bharatbhai Nanabhai Hudal v. State of Gujarat

2016-04-13

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. All these appeals are preferred against the judgment and order dated 05.07.2011 passed by learned Sessions Judge, Amreli, in Sessions Case No. 43 of 2010, whereby the appellants herein-original accused Nos. 1 to 5 were convicted for the offences punishable under Section 120-B of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life with a fine of Rs. 5,000/-, and, in default of payment of fine, further rigorous imprisonment for one year was imposed. Accused Nos. 1 to 4 were also convicted for the offence punishable under Section 302 of IPC and ordered to undergo imprisonment for life with a fine of Rs. 5,000/-, and, in default of payment of fine, further rigorous imprisonment for one year was imposed. The accused were also directed to pay an amount of Rs. 50,000/- each towards compensation to the father of the deceased. The accused were acquitted from the charge of offence punishable under Section 135 of the Bombay Police Act. All the sentences were ordered to run concurrently. From the record, it appears that since accused No. 2 had preferred two appeals before this Court, Criminal Appeal No. 1904 of 2011 was disposed of vide order dated 19.1.2016 so far as accused No. 2 is concerned. 2. The complainant is the brother of the deceased. It is the case of the prosecution that on 18.2.2010 at about 9 a.m., the original informant had left his house and gone to Village-Dadma at the shop of Lalbhai and returned at 6.30 p.m. and the deceased Ramesh came for dinner at about 8.30 p.m.. At 9.45 p.m. when the original informant and his elder brother Hasmukhbhai and their father were present in the house, some persons, who were passing therefrom told that some scuffle had taken place in Sardar Chawk. It is further alleged that the deceased Rameshbhai informed the original informant on telephone that he had a scuffle with Shabbir @ Gadba, original accused No. 1. Thereafter, original informant went to Sardar Chawk and many persons had gathered near Ashapura Pan Shop and his brother Ramesh was lying there in a profusely bleeding condition. It is alleged that the original informant had seen four persons on two motor cycles running away from the place of incident. It is further alleged that the deceased had lost Rs. Thereafter, original informant went to Sardar Chawk and many persons had gathered near Ashapura Pan Shop and his brother Ramesh was lying there in a profusely bleeding condition. It is alleged that the original informant had seen four persons on two motor cycles running away from the place of incident. It is further alleged that the deceased had lost Rs. 4 Lacs in cricket betting to accused No. 5 and, therefore, with a view to recover the said amount, original accused Nos. 1 to 4 had come on the motor cycles armed with weapons. It is alleged that accused No. 1 was holding sword and he caused injuries in the head, stomach and hand of the deceased. It is further alleged that accused No. 2 was also holding sword and he caused injuries on the head, stomach and chest of the deceased. It is also alleged that accused No. 3 had caught hold of the deceased so that the other accused can cause injuries to him. It is alleged that accused No. 4 had caused injuries to the deceased with baseball bat and the deceased succumbed to such injuries. So far as accused No. 5 is concerned, it is alleged that since the deceased had lost money in cricket betting, he sent accused Nos. 1 to 4 to recover the same and if he do not pay then asked them to kill him. A complaint was lodged against the accused persons by the complainant in this regard. 2.1 Upon filing of the complaint, investigation was carried out and the accused were arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution has examined following witnesses:- Sr. No. Name Exh. 1 Hareshbhai Maganbhai Gondaliya, Complaint. 28 2 Hasmukhbhai Maganbhai Gondaliya, Eye witness. 43 3 Nalinbhai Nathabhai Tank, Eye witness. 44 4 Dr. Dilipbhai Hakabhai Ugrejiya. 45 5 Bhupatsing Chhanubhai Sarvaiya. 51 6 Rajeshbhai Ranchhodbhai. 52 7 Shaileshbhai Bachubhai Dhakan. 54 8 Ramanbhai Kanjibhai Gediya. 55 9 Dhirubhai Dharamshibhai Tank. 57 10 Manojbhai Balwantray Popatbhai. 58 11 Mahebub Ibrahimbhai Shaikh. 60 12 Rajubhai Mohanbhai. 61 13 Dineshbhai Babubhai Thalela. 63 14 Asif Noormohammed Ghaniwala. 64 15 Jahid Dilubhai Shaikh. 44 4 Dr. Dilipbhai Hakabhai Ugrejiya. 45 5 Bhupatsing Chhanubhai Sarvaiya. 51 6 Rajeshbhai Ranchhodbhai. 52 7 Shaileshbhai Bachubhai Dhakan. 54 8 Ramanbhai Kanjibhai Gediya. 55 9 Dhirubhai Dharamshibhai Tank. 57 10 Manojbhai Balwantray Popatbhai. 58 11 Mahebub Ibrahimbhai Shaikh. 60 12 Rajubhai Mohanbhai. 61 13 Dineshbhai Babubhai Thalela. 63 14 Asif Noormohammed Ghaniwala. 64 15 Jahid Dilubhai Shaikh. 66 16 Nitinbhai Shambhubhai Chavda. 67 17 Idrishbhai Iqubalbhai Pathan. 69 18 Amin Usmanbhai Shekhda. 70 19 Mahobatkha Rahematkha. 72 20 Yunusbhai Ismailbhai Qureshi. 73 21 Rajakbhai Ganibhai Bilakhiya. 75 22 Hamidbhai Valibhai. 76 23 Razakbhai Yasinbhai Shaikh. 78 24 Husenbhai Gaffarbhai Mogal. 79 25 Mahebubbhai Habibbhai Qureshi. 82 26 Dr. Jignesh Manuskhbhai. 88 27 Maganbhai Khodabhai Parmar. 93 28 Hareshbhai Harikishanbhai Rajpara. 97 29 Manubhai Alubhai Jiniya. 100 2.3 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Descrption Exh. 1 Yadi written by Medical Officer, Amreli to PI, Amreli. 101 2 Complaint. 29 3 Inquest panchnama of the deceased. 53 4 Panchnama of the place of offence. 56 5 Report regarding the place of offence given by officer of FSL. 102 6 Discovery panchnama of the muddamal. 62 7 Panchnama of collection of clothes an blood sample from the dead body of the deceased. 59 8 Arrest panchnama of accused Ismail Ibrahim. 65 9 Arrest panchnama of accused Sabbir @ Gadba. 69 10 Panchnama of seizure of clothes of accused Sabbir. 77 11 Arrest panchnama of accused, Rizvan Mohd, bhai. 71 12 Panchnama of production of motor cycle by accused Rizvan, which was used in the offence. 80 13 Panchnama of seizure of motor cycle used in the offence from accused Bharat Nanabhai. 74 14 Panchnama of collection of blood sample from the body of the deceased. 83 15 Arrest panchnama of accused, Haresh Balshankar. 84 16 Panchnama of seizure of sealed blood sample by PSO, Amreli. 85 17 MLC certificate of accused Bhara Nanabhai. 91 18 MLC certificate of accused Ismailbhai Ibrahimbhai. 92 19 Report by dog holder. 95 20 Police report to Civil Surgeon for postmortem. 103 21 PM Note of the deceased. 50 22 Receipt for handing over dead body of the deceased. 104 23 Map of the place of offence. 99 24 Dispatch note for sending muddamal to FSL. 94 25 OPD case of the deceased Rameshbhai. 46 26 Yadi written by medical Officer, Amreli to PI, Amreli. 103 21 PM Note of the deceased. 50 22 Receipt for handing over dead body of the deceased. 104 23 Map of the place of offence. 99 24 Dispatch note for sending muddamal to FSL. 94 25 OPD case of the deceased Rameshbhai. 46 26 Yadi written by medical Officer, Amreli to PI, Amreli. 47 27 Register used for sending samples for chemical analysis. 49 28 Serological report of FSL. 106 2.4 At the end of trial, the Court below recorded further statements of the accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred by the accused before this Court. 3. Mr. N.D. Nanavaty, learned Senior Advocate appearing for accused No. 5 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against accused No. 5. He submitted that practically each and every witness of the prosecution side has turned hostile and not supported the case of the prosecution. He has taken us through the evidence of Hareshbhai Maganbhai Gondaliya, PW-1, Hasmukhbhai Maganbhai Gondaliya, PW-2 and contended that it cannot be said that PW-1 and PW-2 are the eye witness to the incident. He further submitted that as per the evidence of these witnesses, names of the accused were given to them by one Sabbir, when said Sabbir went to collect the amount by claiming that he has been asked to do it by accused No. 5. He further submitted that there is nothing adverse against accused No. 5 in the evidence of these witnesses. In the cross-examination of PW-1, it is stated that he was having previous knowledge that this dispute is with regard to the money of accused No. 5 and no talk with regard to the same had taken place on the date of the incident. He has also taken us through the evidence of Investigating Officer, Maganbhai Khodabhai Parmar, PW-27 and contended that nothing is proved against accused No. 5 even by the evidence of this witness. He submitted that this witness has stated in his deposition that at the time of addition of Section 120-B no investigation was made as to whom the money was belonging and no proof is found in that regard. He submitted that this witness has stated in his deposition that at the time of addition of Section 120-B no investigation was made as to whom the money was belonging and no proof is found in that regard. He also submitted that no proof is found against accused No. 5. He further submitted that PW-1 and PW-2 being the brothers of the deceased have supported the case of the prosecution and no independent witnesses were examined in support of the prosecution case. He further submitted that no call details of accused No. 5 were produced on record in support of the allegations levelled against him. He, therefore, submitted that the trial Court has committed an error in convicting accused No. 5 for the offence punishable under Section120-B of IPC. In this regard, he has relied upon the decision of the Apex Court in P.K. Narayanan v. State of Kerala, reported in (1995) 1 SCC 147, wherein it is observed as under:- "9. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation." 3.1 In view of above, Mr. Nanavaty prays to allow this appeal by setting aside the conviction of the appellant-accused No. 5. 4. Mr. Ashish Dagli, learned advocate appearing for accused No. 4 has accepted the submissions made by Mr. Nanavaty and further contended that there are serious contradictions in the evidence of PW-1 and PW-2. He contended that as per the evidence of PW-1 names of the accused were given by Sabbir on 31st December when he had come to collect money from the deceased, whereas PW-2 has stated that all the accused were present at the scene of offence. Therefore, there is serious contradiction in the statements of both these witnesses. He further submitted that though TI parade is mandatory, it was not conducted in the present case. He submitted that, therefore, even if the accused were identified before the Court, it could not have been relied on by the trial Court to convict the present appellant-accused. In this regard, he has relied upon the decision of the Apex Court in Sukhbir Singh and Another v. State of Punjab, reported in (2011) 11 SCC 436 , wherein it is observed as under:- "13. We have considered the arguments advanced by the learned counsel for the parties. It will be seen that the incident happened at about 9 p.m. on the 26th December 1991. In the FIR recorded about 8 hours later, the appellants had been described as two Sikh youth 25/30 years of age wearing kurta pajamas. The appellants were arrested on the 21st May 1992 by Sub-Inspector Pyara Singh, (who was not examined as a witness) and they were identified for the first time in Court by Naranjan Singh on the 21st September 1993. We are of the opinion that the physical description of the appellants given in the FIR would fit millions of youth in Punjab, and could not by itself pin the murder on them. We are of the opinion that the physical description of the appellants given in the FIR would fit millions of youth in Punjab, and could not by itself pin the murder on them. The prosecution has also not come out with the steps in the investigation which had led to their identification as the primary assailants. It was, in this background, obligatory on the part of the prosecution to have produced Sub-Inspector Pyara Singh who could have testified to the steps in the investigation made by him which had enabled him to identify the appellants as the killers. This was not done. In this view of the matter, the judgments cited by Mr. Patwalia fully apply to the facts of the case. 14. There is absolutely no evidence other than the identification in court made by Naranjan Singh long after the incident. It is true that there is no inflexible rule that an identification made for the first time in Court has to be always ruled out of consideration but the broad principle is that in the background there is no other evidence against an accused on identification in Court made long after the event is clearly not acceptable. The judgment cited by Mr. Kuldip Singh of Malkhansingh's case (supra) is on the facts of that particular case, as a prosecutrix, who was the victim of a gang rape, had identified some of the accused for the first time in Court on which this Court opined that the identification was acceptable as a good piece of evidence." 4.1 He further submitted that nothing was recovered from accused No. 4 and no substantial evidence has come on record against accused No. 4. He, therefore, submitted that accused No. 4 is required to be acquitted by allowing his appeal. 5. Mr. P.M. Lakhani, learned advocate appearing for accused Nos. 1 and 2 has adopted the arguments of Mr. Dagli and contended that since there are similar allegations against accused No. 2 and accused No. 4, he is has not reiterating what is submitted by Mr. Dagli. He further submitted that the prosecution has failed to prove the presence of the accused and the motive for the offence. He also submitted that there were no blood stains on the clothes of accused No. 2-Rizvan and there is no evidence against him. Dagli. He further submitted that the prosecution has failed to prove the presence of the accused and the motive for the offence. He also submitted that there were no blood stains on the clothes of accused No. 2-Rizvan and there is no evidence against him. In view of these, he submitted that the trial Court has committed an error in convicting both these accused also and they are also required to be acquitted. 6. Mr. Krutarth Pandya, learned advocate appearing for Mr. P.P. Majmudar, learned advocate for accused No. 3 has also adopted the arguments of Mr. Dagli. He further submitted that except the allegation of catching hold of the deceased, there is no other allegation against accused No. 3. He further submitted that no weapon was recovered from him. Therefore, he is required to be acquitted by granting benefit of doubt. 7. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused Nos. 1 to 5 is just and proper and she has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. She further submitted that this is a case in which all the accused have conspired to commit murder of the deceased and with a pre-planning, accused Nos. 1 to 4 attacked the deceased with deadly weapons. She has also taken us through the evidence of PW-1, PW-2, PW-26 and PW-27. She has also taken us through Exh. 91 and 92 and contended that accused Bharat and Ismail have taken treatment immediately after the incident, therefore, their presence at the scene of offence and their involvement in the offence is proved. She has also taken us through FSL report, Exh. 94 and 105 and submitted that this establishes that there were blood stains on the pants of accused No. 3-Ismail, pant and t-shirt of accused No. 4-Bharat, pant and t-shirt of accused No. 1-Sabbir and the same were also found at the place of offence. She further submitted that even the muddamal weapons were recovered at the instance of Sabbir and Bharat. She also taken us through Exh. 91 and 92 clearly established that accused Nos. She further submitted that even the muddamal weapons were recovered at the instance of Sabbir and Bharat. She also taken us through Exh. 91 and 92 clearly established that accused Nos. 3 and 4 had taken treatment immediately after the incident. She has also taken us through the panchnama of recovery of motor cycles, page Nos. 227 and 239 of the paper book, which clearly establish the involvement of the accused Bharat and Rizvan. She has contended that in view of Exh. 22 application and the order passed thereon, it is clear that the witnesses were threatened by the accused and four witnesses have turned hostile after this incident. She has also taken us through panchnama of recovery of base ball bat, Exh. 56, and contended that all the accused are rightly convicted by the trial Court. So far as accused No. 5 is concerned, she submitted that he is the mastermind of the whole offence and everything is done by accused Nos. 1 to 4 at his behest. She further submitted that in a case of conspiracy express agreement need not be proved, nor actual meeting of two persons is necessary. She further submitted that it is also not necessary to prove the actual words of communication, however, the evidence as to transmission of thoughts sharing the unlawful design may be sufficient. She submitted that in this case from the evidence of PW-1 and PW-2 it is clear that accused Nos. 1 to 4 have acted at the instance of accused No. 5 and the motive for the offence was recovery of money of cricket betting, which was due to accused No. 5. Therefore, she submitted that accused No. 5 is also rightly convicted by the trial Court. In supported of her submissions, she has relied upon the decision of the Apex Court in Kehar Singh and Others v. The State (Delhi Admn.), reported in AIR 1988 SC 1883 , wherein the Apex Court has observed as under:- "272. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review 1974, 297 at 299) explains the limited nature of this proposition: "Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been an express verbal agreement it being sufficient that there was "a tacit understanding between conspirators as to what should be done." 273. I share this opinion, but has been to add that the relative acts or conduct of the parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. We must thus be strictly on our guard." 7.1 She also relied on the decision of the Apex Court in Nazir khan and Others v. State of Delhi reported in (2003) 8 SCC 461, wherein it is observed as under:- "16. In Halsbury's Laws of England (vide 4th Ed. Vol. We must thus be strictly on our guard." 7.1 She also relied on the decision of the Apex Court in Nazir khan and Others v. State of Delhi reported in (2003) 8 SCC 461, wherein it is observed as under:- "16. In Halsbury's Laws of England (vide 4th Ed. Vol. 11, page 44, page 58), the English Law as to conspiracy has been stated thus: "58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however, it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other." 17. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. (See: Bhagwan Swarup Lal Bishan Lal etc. v. State of Maharashtra ( AIR 1965 SC 682 at p. 686). 18. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. v. State of Maharashtra ( AIR 1965 SC 682 at p. 686). 18. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. 21. The conspiracies are not hatched in open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence [See E.K. Chandrasenan v. State of Kerala ( AIR 1995 SC 1066 )]. 42. In the case at hand, the entire planning for commission of offence punishable under Section 364-A was masterminded and executed by Umar Sheikh who has managed presently to go out of net of law. In his case, death sentence may have been appropriate. But in case of the co-conspirators (the present six accused-appellants) similar approach is not warranted on the peculiar facts found/established. No distinctive feature has been indicated to impose two different sentences i.e. death sentence for three and life sentence for three others. There is no appeal by the prosecution to enhance the sentence in those cases where life sentence has been imposed. It would be therefore appropriate to impose life sentence on all the six accused-appellants." 7.2 Learned APP has taken us through the evidence of PW-1, wherein he has deposed that accused No. 1 was having sword in his hand and there were blood stains on it. He further deposed that accused No. 4 was having baseball bat and he had attacked the deceased, thereafter, they fled away from the scene of offence on a motor cycle. It is also deposed by this witness that other two persons had also fled away from the place of offence on another motor cycle. He has individually recognized each of the accused in the Court. It is also deposed by this witness that other two persons had also fled away from the place of offence on another motor cycle. He has individually recognized each of the accused in the Court. She further submitted that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in Court, which may be examined by the Court in view of other attendant circumstances. In this regard, she has relied on the decision of the Apex Court Shyamal Ghosh v. State of West Bengal, reported in (2012) 7 SCC 646 , wherein the Apex Court has observed as under in paragraph 81:- "81. Identification Parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named accused in the case are actually the culprits. The Identification Parade primarily belongs to the stage of investigation by the police. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. Thus, it is only a relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case." 7.3 Ms. Shah, learned APP has further submitted that not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. She submitted that the Court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. In this regard, she has relied upon the decision of the Apex Court in the case of State of U.P. v. Naresh, reported in 2011 Cri. Law Journal 2162 , wherein it is observed as under:- "26. The High Court has also fallen into error in giving significance to a trivial issue, namely, that in respect of the morning incident all the accused had not been named in the complaint/NCR. It is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. The High Court has also fallen into error in giving significance to a trivial issue, namely, that in respect of the morning incident all the accused had not been named in the complaint/NCR. It is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. [Vide: Rohtash v. State of Rajasthan, (2006) 12 SCC 64 : (2007 AIR SCW 44); and Ranjit Singh and Ors. v. State of Madhya Pradesh, JT 2010 (12) SC 167) : ( AIR 2011 SC 255 )." 7.4 She also submitted that considering the evidence on record, the prosecution has proved its case beyond reasonable doubt and, therefore, the accused are rightly convicted by the trial Court. She submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused and, therefore, no interference is called for in the present appeals. 8. We have heard Mr. N.D. Nanavaty, learned Senior Advocate, Mr. Ashish Dagli, Mr. P.M. Lakhani and Mr. Krutarth Pandya, learned advocates for the appellants-accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the impugned judgment, the evidence on record and the judgments relied on by the learned advocates. Before proceeding further, it will not be out of place to mention here that from the medical evidence, postmortem report of the deceased and column No. 17 thereof, it is clear that this is a case of culpable homicide amounting to murder. There were as many as 22 injuries caused to the deceased on vital parts of his body. Before proceeding further, it will not be out of place to mention here that from the medical evidence, postmortem report of the deceased and column No. 17 thereof, it is clear that this is a case of culpable homicide amounting to murder. There were as many as 22 injuries caused to the deceased on vital parts of his body. As per the opinion of the doctor, injuries No. 2, 8 and 10 were the reason for death of the deceased. These injuries were on the head and abdomen of the deceased. It is also clear that the injuries which are shown are possible only with deadly weapons, therefore, this case will not fall under any of the exceptions of Section 300 and it can be said that the offence in question is punishable under Section 302 of IPC. 9. So far as role of the accused persons is concerned, the case of the prosecution mainly depends upon the evidence of PW-1 and PW-2, as they are the persons who reached the scene of offence immediately. PW-1 has deposed in his evidence that accused No. 1 was having sword in his hand and there was blood on it. He further deposed that accused No. 4 was having baseball bat in his hand and he had attacked the deceased, thereafter, both these accused fled away from the scene of offence on a motor cycle. This witness has further deposed that other two accused persons had fled away on another motor cycle. This witness has stated that there were severe injuries caused to the deceased and when he was taken to the hospital, he was declared 'dead' by the doctor. This witness has also identified the accused persons before the Court. This witness has also identified muddamal weapons before the Court. This witness has also stated that he was knowing accused No. 1 and 3 by name and he came to know about the names of accused Nos. 2 and 4 afterwards. PW-2, Hasmukhbhai Maganbhai Gondaliya has also deposed about the manner in which the incident took place. He deposed that when they reached the scene of offence, three persons were beating the accused and one person had caught hold of the deceased. He also deposed that out of three assailants, two were having swords in their hands while one was having baseball bat. He further deposed that accused Nos. He deposed that when they reached the scene of offence, three persons were beating the accused and one person had caught hold of the deceased. He also deposed that out of three assailants, two were having swords in their hands while one was having baseball bat. He further deposed that accused Nos. 1 and 2 caused injuries with sword to the deceased, while accused No. 4 had attacked him with baseball bat. This witness has also identified the accused persons before the Court. This witness has also deposed that the motive for the incident was recovery of money from the deceased. This witness has also identified muddamal articles before the Court. Not only that names of the accused were also mentioned at the time of giving complaint immediately after the incident. From MLC certificates produced at Exh. 91 and 92 it is clear that accused Bharat and Ismail have taken treatment immediately after the incident, therefore, their presence at the scene of offence and their involvement in the offence is proved. From the FSL report, Exh. 94 and 105, it is clear that there were blood stains on the pant of accused No. 3-Ismail, on the pant and t-shirt of accused No. 4-Bharat and, on the pant and t-shirt of accused No. 1-Sabbir and the same were also found at the place of offence. Even the muddamal weapons were recovered at the instance of Sabbir and Bharat. The panchnama of recovery of motor cycles, page Nos. 227 and 239 of the paper book, clearly establish the involvement of the accused Bharat and Rizvan. The panchnama of recovery of base ball bat, Exh. 56, also points towards the guilt of the accused. Therefore, in our opinion, the prosecution has successfully proved it case against accused Nos. 1 to 4 and accused Nos. 1 to 4 are rightly convicted by the trial Court. We are of the opinion that the prosecution has proved its case beyond reasonable doubt against accused Nos. 1 to 4 and it cannot give rise to any other conclusion except that the accused are guilty of the offence. Therefore, in our view, the prosecution has proved its case beyond reasonable doubt against accused Nos. 1 to 4 and the trial Court has not committed any error in convicting accused Nos. 1 to 4 for the offences punishable under Sections 302 and 120-B of IPC. Therefore, Criminal Appeal Nos. Therefore, in our view, the prosecution has proved its case beyond reasonable doubt against accused Nos. 1 to 4 and the trial Court has not committed any error in convicting accused Nos. 1 to 4 for the offences punishable under Sections 302 and 120-B of IPC. Therefore, Criminal Appeal Nos. 872, 1094, 1108 of 2011 and Criminal Appeal No. 370 of 2012 are required to be dismissed. 10. Coming to the role of accused No. 5, it has come in the evidence of PW-1 and PW-2 that on 31.12.2009, when the accused No. 1-Sabbir had come to recover money from the deceased, he had given name of accused No. 5 and stated that accused No. 5 has asked him to recover money from the deceased, which were due on account of loss in cricket betting. Though accused No. 5 is stated to be the mastermind of the offence, nothing concrete has come in evidence to prove his involvement. In the cross-examination of PW-1, it is stated that he was having previous knowledge that this dispute is with regard to the money of accused No. 5, however, no talk with regard to the same had taken place on the date of the incident. Even the Investigating Officer, Maganbhai Khodabhai Parmar, PW-27 has stated in his deposition that at the time of addition of Section 120-B no investigation was made as to whom the money was belonging and no proof is found in that regard and no evidence was found against accused No. 5. Thus, the prosecution has failed to prove direct involvement of accused No. 5. In the present case, from the evidence on record, it cannot be inferred that accused No. 5 is guilty of offence punishable under Section 120-B of IPC as it can be seen that the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Therefore, even if we have an apprehension that accused No. 5 is the mastermind of the incident, we cannot confirm his conviction on that basis as there is no evidence coming on record against accused No. 5. Though there may be suspicion towards accused No. 5, the prosecution has failed to prove its case beyond reasonable doubt against accused No. 5. Though there may be suspicion towards accused No. 5, the prosecution has failed to prove its case beyond reasonable doubt against accused No. 5. Therefore, we are of the opinion that the trial Court has committed an error in convicting accused No. 5 for the offence punishable under Section 120-B of IPC and benefit of doubt is required to be granted in favour of accused No. 5. Hence, we are of the opinion that Criminal Appeal No. 1093 of 2011 is required to be allowed. 11. For the foregoing reasons, Criminal Appeal No. 1093 of 2011 is allowed. The impugned judgment and order dated 05.07.2011 passed by learned Sessions Judge, Amreli, in Sessions Case No. 43 of 2010 is quashed and set aside so far as present appellant-accused No. 5 is concerned. The appellant herein-accused No. 5 is acquitted of all the charges levelled against him by granting him benefit of doubt. Accused No. 5 is ordered to be released forthwith, if not required in any other case. 12. Criminal Appeal Nos. 872, 1094, 1108 of 2011 and Criminal Appeal No. 370 of 2012 are dismissed. The impugned judgment and order dated 05.07.2011 passed by learned Sessions Judge, Amreli, in Sessions Case No. 43 of 2010 convicting the appellants herein-accused Nos. 1 to 4 is hereby confirmed. At this stage, learned advocates for the appellants-accused Nos. 1 to 4 requested that the accused may be given benefit of remission after completion of requisite period. Therefore, it is observed that upon completion of 14 years' imprisonment, the State Government may consider the case of accused Nos. 1 to 4 for remission. The period of sentence already undergone by accused Nos. 1 to 4 be given set off to them. 13. Bail bonds, if any, of the accused stand cancelled. Record and proceedings be sent to the Court below forthwith.