JUDGMENT : K.S. Jhaveri, J. 1. These appeals arise out of a common judgment and order dated 31.03.2011 passed by the Additional Sessions Judge, Fast Track Court No. 2, Bhuj - Kachchh in Sessions Case No. 54 of 2007 whereby original accused Nos. 1 to 5 were convicted for the offence punishable under section 302 r/w 149, 143, 147, 148, 427 of Indian Penal Code and sentenced to life imprisonment and fine of Rs. 1000/-, in default, simple imprisonment for thirty days under Section 302 r/w 149 of Indian Penal Code. No separate sentences was imposed under sections 143, 147, 148, 427 of Indian Penal Code. Being aggrieved by the said conviction, original accused Nos. 1, 3 & 4 have preferred Criminal Appeal No. 573 of 2011, original accused No. 2 has preferred Criminal Appeal No. 616 of 2011 and original accused No. 5 has preferred Criminal Appeal No. 731 of 2011. 1.1 Original accused No. 3 - appellant No. 2 of Criminal Appeal No. 573 of 2011 has expired on 01.04.2014 and therefore Criminal Appeal No. 573 of 2011 stands disposed of as having been abated qua appellant No. 2 - original accused No. 3. Criminal Appeal No. 573 of 2011 is therefore heard qua original accused Nos. 1 & 4. 2. The short facts of the prosecution case as narrated in the complaint lodged with Mandvi Police station is that on 11.07.2007 at around 1600 to 1700 hours situated at Garib Chowk, village Moti Mau, Mandvi, the complainant heard some public noise outside his shop and when he saw from the shop he saw some persons pulling the deceased out of the Tavera Car and started giving him blows. The complainant has further stated that the said persons took the deceased in the car again to some other location and thereafter it was learnt that the victim had expired. A complaint therefore was registered against the said persons. 2.1 Pursuant to the complaint, investigation was carried out. During the course of investigation the accused persons were identified and they were arrested. After investigation, on the basis of material collected against the accused, since the Investigating Officer found a prima facie case against the accused, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions. The trial Court framed charge against the accused. After investigation, on the basis of material collected against the accused, since the Investigating Officer found a prima facie case against the accused, chargesheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions. The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 2.2 Trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides : P.W. No. Name of Witness Exhibit No. 1 Dr. Madan Prasad 57 2 Hitesh Thakkar 67 3 Abdul Aagraiya 72 4 Razak Sumra 73 5 Ramjibhai Thakkar 78 6 Umeshbhai Luhar 80 7 Rajarambhai Shekhva 82 8 Girishbhai Majethiya 86 9 Harunbhai Raima 90 10 Chandershbhai Sindhal 91 11 Mehulbhai Parmar 92 12 Ishaqbhai Nareja 94 13 Bharatsinh Sodha 95 14 Ishawbhai Memon 101 15 Devrajbhai Gadhvi 102 16 Mehboob Pathan 105 17 Javed Suleman Luharvadha 106 18 Bhavesh Bhojwani 109 19 Niranjansing Khalsa 110 20 Ramshi Gadhvi 111 21 Kaushik Chandarana 115 22 Sunil Gadhvi 117 23 Sanjay Soneta 118 24 Vasantkumar Sharma 134 25 Rupeshbhai Soni 137 26 Kamleshbhai Sharma 138 27 Bhupendrasinh Kalyansinh 140 28 Jayendrasinh Bariya 142 29 Hetubha Zala 145 30 Vasantlal Solanki 146 31 Mangalbhai Vijoda 149 32 Hasan Sumra 151 33 Mangalbhai Maheshwari 152 34 Noormamad Mandhra 154 35 Dr. Kishoregiri Goswami 166 36 Kuldeepsingh Kootra 177 2.3 The prosecution also relied upon the following documents as documentary evidences which have been perused by us such as complaint at Ex. 68, post mortem note at Ex. 59, cause of death certificate at Ex. 60, yadi sent to Mandvi P.I at Ex. 61, inquest panchnama at Ex. 79, body condition panchnama at Ex. 74, panchnama of clothes of deceased at Ex. 81, panchnama of car at Ex. 83, panchnama of local place at Ex. 87, map of local place at Ex. 148, MLC certificate at Ex. 161, FSL report at Ex. 186 etc. 2.4 At the end of the trial and after recording the statement of the accused under section313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the trial court convicted accused as mentioned aforesaid. 87, map of local place at Ex. 148, MLC certificate at Ex. 161, FSL report at Ex. 186 etc. 2.4 At the end of the trial and after recording the statement of the accused under section313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the trial court convicted accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the accused have preferred the present appeals. 3. We have heard Mr. Premal Joshi, learned advocate appearing for original accused No. 1, Mr. Kshitij Amin, learned advocate appearing for original accused No. 2, Mr. K.B. Anandjiwala, learned advocate appearing for original accused No. 4, Mr. Yogesh Lakhani, learned Senior Counsel appearing with Mr. S.M. Chudasama, learned advocate appearing for original accused No. 5, Mr. Deep Vyas, learned advocate appearing for original complainant and Ms. C.M. Shah, learned APP appearing for respondent - State. 4. Learned advocates appearing for original accused Nos. 1 & 4 have submitted that the trial court has committed an error in observing that the said incident has not occurred at Darbargadh. It is further submitted that the panchas have turned hostile and therefore the panchnamas have not been proved by the prosecution. Learned advocates for the accused Nos. 1 & 4 have drawn the attention of this Court to the evidence of P.W. 1, P.W. 31 and P.W. 35 and submitted that even if the prosecution case is accepted it is clear that the accused Nos. 1 & 4 were not the aggressors and that the complainant side were the aggressors and that they had attacked first. 4.1 Mr. Kshitij Amin, learned advocate appearing for original accused No. 2 and Mr. Yogesh Lakhani, learned advocate appearing for original accused No. 5 submitted that the prosecution has not been able to prove the case against original accused Nos. 2 & 5 beyond reasonable doubt. It is submitted on their behalf that most of the witnesses have turned hostile and that the trial court has wrongly relied upon the deposition of the complainant who was close friend and relative of the friends of deceased. It is submitted that due to enmity between the accused and the brothers of the complainant, the names of present accused Nos. 2 & 4 were given. It is submitted that due to enmity between the accused and the brothers of the complainant, the names of present accused Nos. 2 & 4 were given. It is submitted that the prosecution failed to examine independent witness though the alleged incident took place in broad daylight. 4.2 It is further submitted that the trial court has erred in relying upon only star witness and complainant Hitesh Karsandas Thakkar at Ex. 67. It is submitted that neither in the complaint nor in the deposition of P.W. 2, the role played by accused Nos. 2 & 5 is narrated. He submitted that the witnesses do not enunciate about the role played or weapon carried or alleged injury given by accused Nos. 2 & 5. 5. Ms. C.M. Shah, learned advocate appearing for respondent - State has been ably assisted by Mr. Deep Vyas, learned advocate appearing for the complainant. Ms. Shah has strongly supported the impugned judgment and order. She has submitted that considering the evidence on record, more particularly the evidence of P.W. 1 and other hostile witnesses it has come on record that the place of offence is near the shop of the complainant and therefore his presence is proved beyond reasonable doubt. It is submitted that considering the panchnamas and medical evidence on record, it is very clear that the prosecution has proved the case against the appellants beyond reasonable doubt. 6. We have carefully considered the evidence, materials on record and the rival contentions and gone through the judgments of the court below. It emerges from the evidence, more particularly, the ocular as well as medical evidence that the death of the deceased was a result of culpable homicide amounting to murder. The evidence of P.W. 1 - Dr. Madan Prasad, the medical officer who conducted the post mortem of the dead body of deceased shall throw much light on this aspect. P.W. 1 has stated the cause of death to be severe haemorrhage due to traumatic deep wound and shock i.e. cardio-respiratory failure. The injuries sustained by the deceased as per column No. 17 of the post mortem report are as under: "(1) At left knee joint - antero medial part of the middle knee joint clean cut - cut wound size - 1 x 1/2 x 1/4 cms vertical cut. The injuries sustained by the deceased as per column No. 17 of the post mortem report are as under: "(1) At left knee joint - antero medial part of the middle knee joint clean cut - cut wound size - 1 x 1/2 x 1/4 cms vertical cut. (2) Anterior part of the middle of the left knee joint, abrasion 01 x 1/2 cm, reddish - brown colour, blurred margin. (3) 02 inches below post part middle of the shoulder joint (left), a linear abrasion - horizontal, size 03 inches, colour -reddish brown (4) 02 inches below left elbow joint - antero-lateral part of dersal surface of forearm cut - wound, clean cut, 02 x 01 x 01 cm (5) Middle of the Rt. Upper eyebrow in size 3.5 inches above, clean cut, vertical 04 x 01 x 01 x cm in size. Incised wound. (6) In the Rt. Side of buttock - below 01 inches from lower end of coccyx, midline portion of the opening of the anus 2.5cm laterally clean cut margin 01 x 1/2 x 1/2 cm in size slight vertical in nature. (7) 2.5 cm below from the wound No. 6, a deep wound stab wound, margin clean cut and inverted size 3 cm x 1/2 cm x 11 cm. (8) In the left side buttock 07 cm - laterally from the midline opening of anus - three (03) linear abrasion apart 01 cm, size 03 x 1/2 cm - reddish brown in colour" 6.1 P.W. 1 has stated that the injuries sustained by the deceased were possible by way of muddamal weapons and the said injuries were sufficient in the ordinary course of nature to cause death. From the evidence of this witness, it is borne out that the death of the deceased was a result of culpable homicide. 6.2 P.W. 2 - Mr. Hitesh Thakkar, the complainant has been examined at length extensively. This witness has supported the contents of the complaint. This witness has stated that when he was sitting at his shop at about 1600 to 1700 hours, he heard outcry outside on the road and he came out of his shop. This witness has stated that he saw that a mob stopped Tavera car, attacked it and broke its glasses and dragged a man out of it. This witness has stated that when he was sitting at his shop at about 1600 to 1700 hours, he heard outcry outside on the road and he came out of his shop. This witness has stated that he saw that a mob stopped Tavera car, attacked it and broke its glasses and dragged a man out of it. This witness has identified Darbar Pradhyumansinh Ranjitsinh, Jaydipsinh Ranjitsinh, Surendersinh Ranjitsinh, Harishchandra Surendrasinh, Paramjitsinh Pradhyumansinh, Dharmendrasinh Narpatsinh etc of his village Moti Mau from the mob. There were other four unknown persons whom he could not identify. This witness has further stated that original accused No. 1 gave a blow of knife on the shoulder of a person who was caught hold of. Original accused No. 4 gave blow of a sword on his head. Original accused No. 3 was armed with a sword, original accused No. 5 was armed with scythe. Others were empty handed. The person who was caught hold of was crying in profusely bleeding condition. This witness has further stated that after putting this injured in dicky of Indica car, they left from there. As he was scared, he went home after closing his shop. This witness has stated that he went home and informed his father in this regard. As there was land dispute between Bharat and Pradhyuman, this quarrel took place. 6.3 P.W. 31 - Mangalbhai Vijoda has been examined at Ex. 149. This witness has stated that on 11/07/2007, he was discharging his duty as a Head Constable at Gadhshisha out post of Mandvi Police Station. On that day, he remained present at the Court of JMFC, Madvai as there was hearing of the case. During that period, there was call from the PSO. He stated that Police Inspector gave instruction for me to go for Bandobast in connection with an on-going dispute of land at village Mav by taking government vehicle along with staff members of O.P. Therefore, after completion of court proceeding in connection with the hearing of case, he came to Mandvi police station and went Gadhshisha for an O.P. by taking government vehicle. From there, at 1530 hours, they left Gadhshisha alongwith two police constable and reached at the disputed land situated in the south direction of the village Mav. From there, at 1530 hours, they left Gadhshisha alongwith two police constable and reached at the disputed land situated in the south direction of the village Mav. P.W. 31 has stated that thereafter, there was a call from Kotra Saheb-Police Inspector, inquiring about their whereabouts and he told them to go to the village as some incident occurred there. Therefore, they drove their government vehicle to the village. There, they met Pradumensinh who was in the vehicle and he stated that some boys came to Darbar-Gadh and attacked them and he had sustained injury and further told that one out of those boys was injured and lying at Darbar-Gadh. Therefore, they went in a jeep to Darbar-Gadh. One injured person was lying there and he was asking for water. He was injured and bleeding. Therefore, the said injured was taken to C.H.C. Hospital, Gadhshisha by a jeep. Thereafter, the doctor came there and declared him dead after checking him. 6.4 P.W. 31 has stated that the said incident occurred in the market place of the village Mav. When, deceased Pankaj was passing from the market in a vehicle, Pradumensinh and other accused persons dragged Pankaj out of that vehicle by stopping it and they attacked Pankaj with weapons and thereafter, Pankaj was taken to Darbar-Gadh by putting him in a dicky of the vehicle. 6.5 The injuries sustained by Pradyumensinh has been corroborated by the evidence of P.W. 35 - Dr. Kishorgiri Goswami. This witness has stated that on 12/07/2007, as per the record of their hospital, Dr. Shital R. Bhatt was on duty. At that time, a person named Pradumensinh Ranjitsinh Jadeja, who is residing at Moti-Mav, Taluka-Mandvi came along with the police for primary treatment. On examining him, Dr. Bhatt found two injuries as under:-- "[1] There was a cut wound on the right side of the head, 5-6 stitches were taken to the wound. [2] The skin had come out of the little finger of the right hand (Flap)." 6.6 This witness has stated that both these injuries were minor and could occur due to hard and blunt object. The injuries were sustained before twelve hours. The injuries were such that if no any other trouble occurs to the injuries then it could be healed within two weeks. This witness has further deposed that the city scan of the brain of the patient was performed. The injuries were sustained before twelve hours. The injuries were such that if no any other trouble occurs to the injuries then it could be healed within two weeks. This witness has further deposed that the city scan of the brain of the patient was performed. It was normal. Other three X-rays were also taken, wherein, no any injury like fracture appeared. 7. Basically, as a result of perusal of evidence and other materials on record the factum of existence of a land dispute between Bharat and Pradhyuman is borne out. Moreover, the panchnama of scene of offence and the panchnama of Tavera car supports the case of the prosecution. The panchnama is supported by the investigating officer. From the scene of offence panchnama, the happening of the alleged incident cannot be negated. There were dry blood stains on the portion of dicky of the Tavera car. Though some of the panch witnesses have turned hostile, the same have been supported by Investigating Officer. P.W. 26 - Kamlesh Sharma has also supported the case of the prosecution. 8. However, from the evidence on record, the role played by accused Nos. 2 & 5 has not been narrated by the witnesses. The role played by them is not clear from either the complaint or the witnesses. We are therefore of the opinion that benefit of doubt is required to be granted to accused Nos. 2 & 5. The prosecution has not been able to prove how and which injuries were inflicted by accused Nos. 2 & 5. However, the roles of accused Nos. 1 & 4 has been proved beyond reasonable doubt. We, therefore, are of the view that accused Nos. 1 & 4 are rightly convicted by the trial court. 8.1 However, in a recent decision of the Apex Court in the case of Bhaikon @ Bakul Borah v. State of Assam reported in JT 2013 (10) SC 373 has held as under: "15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen v. B.K. Srivastava & Ors., (2013) 3 SCC 425 , Mohinder Singh v. State of Punjab, (2013) 3 SCC 294 , Sangeet and Anr. [Vide Life Convict @ Khoka Prasanta Sen v. B.K. Srivastava & Ors., (2013) 3 SCC 425 , Mohinder Singh v. State of Punjab, (2013) 3 SCC 294 , Sangeet and Anr. v. State of Haryana, (2013) 2 SCC 452 , Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 , Chhote Lal v. State of Madhya Pradesh, (2011) 8 SCR 239, Mulla and Another v. State of Uttar Pradesh, (2010) 3 SCC 508, Maru Ram v. Union of India & Ors., (1981) 1 SCC 107 , State of Madhya Pradesh v. Ratan Singh & Others, (1976) 3 SCC 470 and Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 ]. 16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case." 9. Accordingly, Criminal Appeal No. 573 of 2011 is dismissed qua appellants No. 1 & 3 - original accused Nos. 1 & 4. The order of conviction and sentence dated 31.03.2011 arising from Sessions Case No. 54 of 2007 passed by the Additional Sessions Judge, FTC No. 2, Bhuj - Kachchh is confirmed qua appellants No. 1 & 3 - original accused Nos. 1 & 4. However, life imprisonment as awarded by the trial court would not be till last breath and the case of original accused Nos. 1 & 4 may be considered by the appropriate authority considering the decision of Apex Court in the case of Bhaikon @ Bakul Borah (supra). Criminal Appeals No. 616 & 731 of 2011 are allowed qua accused Nos. 2 & 5 respectively. The order of conviction and sentence dated 31.03.2011 arising from Sessions Case No. 54 of 2007 passed by the Additional Sessions Judge, FTC No. 2, Bhuj - Kachchh is quashed and set aside qua original accused Nos. 2 & 5. Original accused Nos. 2 & 5 are acquitted of the charges levelled against them by granting them benefit of doubt under Sections 302 r/w 149 of Indian Penal Code and under sections 143, 147,148, 427 r/w 149 of Indian Penal Code. 2 & 5. Original accused Nos. 2 & 5 are acquitted of the charges levelled against them by granting them benefit of doubt under Sections 302 r/w 149 of Indian Penal Code and under sections 143, 147,148, 427 r/w 149 of Indian Penal Code. Original accused No. 2 shall be set at liberty forthwith if not required in connection with any other case. Since original accused No. 5 is on bail, his bail bond shall stand cancelled. Original accused No. 3 - appellant No. 2 of Criminal Appeal No. 573 of 2011 has expired on 01.04.2014 and therefore Criminal Appeal No. 573 of 2011 stands disposed of as having been abated qua appellant No. 2 - original accused No. 3. R & P to be sent back to the trial court forthwith.