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2016 DIGILAW 985 (GUJ)

State of Gujarat v. Dhirubhai Bhailalbhai Chauhan

2016-05-05

A.J.SHASTRI, M.R.SHAH

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JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgement and order of acquittal passed by the learned Additional Sessions Judge and Fast Track Court No. 4, Kheda at Nadiad (hereinafter referred to as "the learned trial court" for short) in Sessions Case No. 119 of 2003, by which the learned trial court has acquitted the respondents herein for the offences punishable under sections 143, 147, 148,153(A), 294, 295, 436, 332, 389 read with section 149 and 34 of Indian Penal Code, the State has preferred present Criminal Appeal. 2. Facts leading to the present Criminal Appeal and prosecution case, in brief, is as under:- Mr. P.K. Rana, Police Inspector of Anand Police Station lodged the complaint with Vasad Police Station on 1/3/2002 at about 1.30 AM, which was registered as CR No. I-48 of 2002. It was the case on behalf of the original complainant that on 28/2/2002 because of the Call for Gujarat Bandh, he was on duty and was petrolling along with other police personnel in Lotiya Bhagol Choki area. According to him, he received Vardhi from Anand Police Control Room at about 22.10 hours in the night to go to village Vadod and to take strict action considering the tensed situation. Therefore, he reached at about 22.30 hours at village Vadod. That near one graveyard (Kabrastan), he had seen that a mob of approximately 1000 to 1500 persons with deadly weapons like stick, Dhariya etc. were causing damage to the properties of both the sides of the road and even they caused damage in the graveyard (Kabrastan) as well as Masjid by setting the properties at fire and all those persons were damaging the properties of a particular community. Therefore, he stopped his vehicle and got down from the vehicle along with other police personnel. According to him, at that time, Dy. Superintendent of Police along with other police personnel came there from headquarter at Anand and he instructed to the mob to disperse, however, the persons from the mob continued to damage the properties and to set the properties at fire and even they threw stones on their police vehicles also and therefore, they resorted to Lathi Charge. In the meantime, he sustained injuries by stone on legs, and eve other home-guards personnel also sustained injuries. In the meantime, he sustained injuries by stone on legs, and eve other home-guards personnel also sustained injuries. According to him, other higher police officers also came there and they resorted to tear-gas, however, despite the same, the mob was not dispersed and therefore, he fired three rounds in air from his service revolver and therefore, persons from the mob tried to run away and out of them, they arrested 7 persons on the spot and from the place of incident. He asked the name of 7 persons who were arrested and on disclosure of their names by the said accused, he named those 7 persons (original accused Nos. 1 to 7 herein) in his complaint. Therefore, he lodged the complaint against above 7 persons and mob of other 1000 to 1500 persons for the offences punishable under sections 143, 147, 148, 153(A), 294, 295, 436, 332, 389 read with section 149 and 34 of Indian Penal Code. The aforesaid complaint was registered as CR No. I-48 of 2002. The same was noted in the police station diary while the said complaint was registered as First Information Report by PW No. 18 Haidarkhan Yasinkhan. The investigation of the aforesaid First Information Report was handed over to PW No. 20 - Ranmalsinh Chandrasinh Rathod - Senior Police Sub Inspector of Vasad Police Station. He recorded statements of concerned witnesses; he also prepared panchnama of the place of incident (Ex. 52); he also prepared arrest panchnama of the persons who were already arrested on the spot and from the place of incident - original accused Nos. 1 to 7 (Ex. 48). He also arrested other accused (original accused Nos. 8 to 19) on the basis of disclosure of their names during the course of investigation. 2.1. Thereafter, after conclusion of the investigation, the said investigating officer filed chargesheet against all accused who are 19 in number in the court of learned Judicial Magistrate (First Class), Anand. 2.2. As the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate (First Class), committed the case to the Sessions Court, Nadiad which was numbered as Sessions Case No. 119 of 2003. 2.3. The learned trial court framed charge against all the accused at Ex. 10 for the offences punishable under sections 143, 147, 148, 153(A), 294, 295, 436, 332, 389 read with section 149 and 34 of Indian Penal Code. 2.4. 2.3. The learned trial court framed charge against all the accused at Ex. 10 for the offences punishable under sections 143, 147, 148, 153(A), 294, 295, 436, 332, 389 read with section 149 and 34 of Indian Penal Code. 2.4. All the accused pleaded not guilty and therefore, they came to be tried by the learned trial court for the aforesaid offences. 3. To prove the case against the accused, the prosecution examined the following witnesses:- Oral Evidence Oral Evidence PW No. Name of the Prosecution Witnesses Ex.No. 1 Parag Kamalsinh Keshubha Rana – Complainant 32 2 Husenshah Pirshah Diwan 34 3 Kishorsinh Gulagsinh 36 4 Roshanshah Bafatisha 37 5 Janabhai ibrahimbhai 40 6 Naimsha Karimsha 41 7 Sharifabenjanabbhai 42 8 Dr. Nareshkumar Govindlal Bhalja 44 9 Dineshsinh Chandrasinh Parmar 47 10 Vajabhai Chaturbhai Zala 50 11 Bhagvanbhai Fulabhai 51 12 Jitendrabhai Umedbhai 53 13 Ratansinh Karandan Gadhvi 54 14 Kamubhai Sajabhai –ASI 55 15 Dineshbhai Prabhatbhai 58 16 Rumalbhai Hubjibhai 59 17 Prabhatsinh Hemaji 60 18 Haidarkhan Yasinkhan 61 19 Yusufkahn Nasibhkhan 65 20 Ranmalsinh Chandrasinh Rathod 66 3.1. Through the aforesaid witnesses, the prosecution brought on record the following documentary evidences:- Documentary Evidence Sr. No. Particulars Ex.No. 1 Complaint of P.K. Rana 33 2 Panchnama of the arrest of the accused 48 3 Panchnama of the place of offence 52 4 Panchnama of the bullet of the revolver 59 5 Medical certificate of P.K. Rana 45 6 Medical certificate of Krishnabhai 46 3.2. After closing pursis submitted by the prosecution, Further Statement of all the accused were recorded. Their case was of total denial. However, they did not lead any evidence in their defence. 3.3. At the conclusion of the trial, by the impugned judgement and order, the learned trial court has acquitted all the accused for the offences for which they were tried. Hence, the State has preferred present Criminal Appeal challenging the impugned judgement and order of acquittal passed by the learned trial court. 4. Submissions on behalf of the appellant - State:- 4.1. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case and considering the evidence on record, the learned trial court has materially erred in acquitting all the accused for the charges for which they were tried. 4.2. Ms. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case and considering the evidence on record, the learned trial court has materially erred in acquitting all the accused for the charges for which they were tried. 4.2. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the present case, the prosecution has been successful in proving the case against the all the accused by examining original complainant, police officer PW No. 1 and eye witnesses to the incident - PW No. 2 - Husenshah Pirshah Divan and PW No. 4 - Roshansha Bafatisha, as well as investigating officer - PW No. 20. 4.3. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that through the aforesaid witnesses - PW Nos. 1, 2, 4 and 20, the presence of the accused persons at the place of the commission of the offence and they being part of the mob and members of the unlawful assembly with a common object has been proved. 4.4. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that even PW Nos. 2 and 4 have identified most of the accused in the Court. 4.5. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that PW Nos. 2 and 4 in their deposition have given the names of those persons who were part of the mob and members of the unlawful assembly. 4.6. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that PW Nos. 2 and 4 are eye witnesses and their presence at the place of incident was natural as they were residing in the area where the incident occurred. 4.7. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that even the original accused Nos. 1 to 7 as such were arrested on the spot and from the place of incident and same has been proved by the deposition of the PW No. 1 - original complainant - Police Officer, who was on duty at the time of incident. 4.8. Ms. 1 to 7 as such were arrested on the spot and from the place of incident and same has been proved by the deposition of the PW No. 1 - original complainant - Police Officer, who was on duty at the time of incident. 4.8. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that damage to the properties of a particular community and even damage to the graveyard (Kabrastan) as well as Masjid has been established and proved by the Panchnama of the place of incident (Ex. 52). 4.9. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that PW No. 1 - original complainant is trustworthy and reliable and as such his presence at the time of place of incident is natural, as he was police officer and he was on his duty and even he sustained injuries which has been proved from his injury certificate, which is produced at Ex. 45. It is submitted that all the accused were part of the mob and members of the unlawful assembly, who caused damage to the properties of a particular community and even to the graveyard (Kabrastan) as well as Masjid. 4.10. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that when all the accused were members of the unlawful assembly with a common object to cause damage to the properties of a particular community because of the call of Gujarat Bandh pursuant to unfortunate incident happened at Godhara, the learned trial court ought to have convicted all the accused with the aid of section 149 of Indian Penal Code for the offences for which they were tried. 4.11. Ms. 4.11. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that when presence of all the accused at the time of commission of the offence has been established and proved by the prosecution by leading cogent evidence and the prosecution has been successful in proving that the accused were members of the unlawful assembly with a common object to cause damage to the properties of a particular community (minority community), it is requested to quash and set aside the impugned judgement and order of acquittal and convict all the accused for the offences for which they were tried and impose maximum punishment provided. 4.12. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that the findings recorded by the learned trial court acquitting all the accused, are perverse and contrary to the evidence on record, which has resulted in miscarriage of justice and therefore, she has requested to quash and set aside the impugned judgement and order of acquittal and convict all the accused for the offences for which they were tried. 4.13. In support of her above prayers and submissions, Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has relied upon the following decisions:- (1) Mano Dutt and another versus State of Uttar Pradesh, reported in (2012) 4 SCC 79 ; (2) Subal Ghorai and others versus State of West Bengal, reported in (2013) 4 SCC 607 ; (3) Anup Lal Yadav and another versus State of Bihar, reported in (2014) 10 SCC 275 ;; (4) Ashwani Kumar @ Ashu and another v. State of Punjab, reported in (2015) 6 SCC 308 ; (5) Ramesh and others Versus State of Haryana, reported in AIR 2011 S.C. 169 ; 4.14. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has also relied upon the recent decision of the Division Bench of this Court rendered in the case of Javed Shaukat Ali Qureshi versus State of Gujarat in Criminal Appeal No. 736 of 2006 and other allied appeals. Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has also relied upon the recent decision of the Division Bench of this Court rendered in the case of Javed Shaukat Ali Qureshi versus State of Gujarat in Criminal Appeal No. 736 of 2006 and other allied appeals. She has also relied upon two other unreported decisions of this Court in the case of Ajaji Somaji Thakore and others Versus State of Gujarat, rendered in Criminal Appeal No. 1362 of 1999 and another allied appeal and in the case of State of Gujarat Versus Nizamuddin Shahb Uddin Qureshi and others, rendered in Criminal Appeal No. 1177 of 1998 and another allied appeal. Making above submissions and relying upon above decisions it is requested to quash and set aside the impugned judgement and order of acquittal passed by the learned trial court and convict all the accused for the offences for which they were tried and impose maximum punishment provided. 5. Submissions on behalf of the Accused:- 5.1. Present appeal is vehemently opposed by Mr. Tejas Barot, learned advocate appearing on behalf of the respondents - original accused (except original accused No. 6, who died during the pendency of the trial). 5.2. Mr. Tejas Barot, learned advocate appearing on behalf of the original accused has vehemently submitted that as such present is an appeal under section 378 of the Code of Criminal Procedure against the order of acquittal passed by the learned trial court and therefore, unless and until it is found that the findings recorded by the learned trial court are perverse and/or contrary to the evidence on record, which has resulted into miscarriage of justice, appellate court is not justified in interfering with the order of acquittal passed by the learned trial court. 5.3. Mr. Tejas Barot, learned advocate appearing on behalf of the original accused has further submitted that even if two views are possible and the learned trial court on appreciation of evidence has taken one view in favour of the accused and has acquitted the accused, in that case also interference of the appellate court against the order of acquittal is not warranted. 5.4. Mr. 5.4. Mr. Tejas Barot, learned advocate appearing on behalf of the original accused has further submitted that in the present case the findings recorded by the learned trial court while acquitting the original accused are on appreciation of evidence and therefore, the same is not required to be interfered with in exercise of appellate jurisdiction. 5.5. Mr. Tejas Barot, learned advocate appearing on behalf of the original accused has further submitted that in the present case the prosecution has heavily relied upon deposition of PW Nos. 2 and 4 who according to the prosecution are eye witnesses to the incident, however, looking to the deposition of both the witnesses, they cannot be said to be reliable and/or trustworthy and therefore, the learned trial court has rightly discarded their deposition. 5.6. Mr. Tejas Barot, learned advocate appearing on behalf of the original accused has further submitted that even PW No. 1 - original complainant has categorically stated in his deposition that he does not identify any of the accused in the court. It is submitted that therefore when identity of the accused at the time of commission of the offence has not been established and proved, the learned trial court has rightly acquitted the original accused. 5.7. Mr. Tejas Barot, learned advocate appearing on behalf of the original accused has further submitted that as such no overt act has been attributed to any of the accused. It is submitted that assuming that from the evidence on record identity of some of the accused is established and proved and/or their presence in the mob, has been established and proved, in that case also, since no overt act has been attributed to any of them, their mere presence in the mob would not make them guilty for the offences for which they were tried and it cannot be said that they were involved in the crime. 5.8. Mr. Tejas Barot, learned advocate appearing on behalf of the original accused has further submitted that even as per the case of the prosecution and even the original complainant there was mob of approximately 1000 to 1500 persons and therefore, it was not possible for the prosecution witnesses to identify the accused. It is submitted that, therefore, the learned trial court has not committed any error in acquitting the original accused discarding the deposition of PW Nos. It is submitted that, therefore, the learned trial court has not committed any error in acquitting the original accused discarding the deposition of PW Nos. 1, 2 and 4 and deposition of the investigating officer. He has submitted that even otherwise, the prosecution has miserably failed to establish and prove by leading cogent evidence the presence of the accused in the mob and at the time of commission of the offence. It is submitted that since no overt act is attributed to any of the accused, the original accused cannot be convicted even with the aid of section 149 of Indian Penal Code for the offences for which they were tried. 5.9. In support of his above submissions, Mr. Tejas Barot, learned advocate appearing on behalf of the original accused has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Kuldip Yadav and others Versus State of Bihar, reported in (2011) 5 SCC 324 , and another decision of the Hon'ble Supreme Court in the case of Shaji and others Versus State of Kerala, reported in (2011) 5 SCC 423 . No other submissions have been made. Making above submissions and relying upon above decisions, it is requested to dismiss the present appeal and confirm the judgement and order of acquittal passed by the learned trial court. 6. Conclusion:- 6.1. Heard the learned advocates appearing on behalf of the respective parties at length. We have perused the impugned judgement and order of acquittal passed by the learned trial court and the reasoning given by the learned trial court while acquitting the original accused. We have re-appreciated the entire evidence on record. 6.2. At the outset, it is required to be noted that all the accused (who are 19 in numbers) were charged and tried for the offences punishable under sections143, 147, 148, 153(A), 294, 295, 436, 332, 389 read with section 149 and 34 of Indian Penal Code. Damage to the properties of a particular community and even to the graveyard (Kabrastan) and Masjid has been established and proved by examining the investigating officer who prepared Panchnama of the place of incident and even from the Panchnama of the place of incident (Ex. No. 52). Therefore, damage to the properties of a particular community by fire and by stone throwing has been established and proved by the prosecution. No. 52). Therefore, damage to the properties of a particular community by fire and by stone throwing has been established and proved by the prosecution. Even the same is not disputed by the learned advocate appearing on behalf of the respondents - original accused. 6.3. To prove the case against the original accused and to prove their presence in the mob and prove that the accused were members of the unlawful assembly with a common object to cause damage/destroy the properties of a particular community including religious place, the prosecution has heavily relied upon the deposition of PW Nos. 1, 2 and 4 and investigating officer. The prosecution has also heavily relied upon the complaint given by PW No. 1 which was subsequently registered as First Information Report being CR No. I-48 of 2002 which has been given by the PW No. 1, who at the time of incident was on duty as a police officer. According to the case of the prosecution, both, PW Nos. 2 and 4 were eye witnesses to the incident. However, it is the case on behalf of the respondents - accused that relying upon the deposition of the PW Nos. 2 and 4, accused cannot be held guilty and according to the accused, PW Nos. 2 and 4 cannot be said to be eye witnesses to the incident. However, considering the deposition of PW No. 1 - original complainant and complaint given by him, which was given at about 1.35 AM - early morning on 1/3/2002 and even suggestion made by the accused Nos. 1 to 7 in the cross-examination of the investigating officer, we are of the opinion that the prosecution has been successful to prove the presence of the original accused Nos. 1 to 7 at the time of commission of the offence and that they being part of the mob and members of the the unlawful assembly with a common object to damage/destroy the properties belonging to a particular community. 6.4. PW No. 1 - original complainant in his deposition has specifically stated that the original accused Nos. 1 to 7 at the time of commission of the offence and that they being part of the mob and members of the the unlawful assembly with a common object to damage/destroy the properties belonging to a particular community. 6.4. PW No. 1 - original complainant in his deposition has specifically stated that the original accused Nos. 1 to 7 were arrested on the spot and their names were asked and on disclosure of their names by the accused, their names have been mentioned in the complaint itself, which was immediately given by the original complainant and which was lodged before Vasad Police station on 1/3/2002 at about 1.35 AM - early morning. At this stage it is required to be noted that the incident took place at about 8.30 PM and onwards on 28/2/2002 and the original complainant - PW No. 1 reached at the place of incident at about 10.30 PM on 28/2/2002. According to the original complainant PW No. 1, he also sustained injuries because of stone throwing in the incident which has been established and proved by the prosecution from his injury certificate produced at Ex. 45. His presence at the time of incident is natural. He was on duty being Police Officer and he was in Bandobast because of the Call of Gujarat Bandh after Godhara riot. After receiving call from the Control Room, he immediately reached at the place of incident at about 10.30 PM on 28/2/2002. Even none of the original accused Nos. 1 to 7 have suggested that they were not arrested on the spot, as stated by the PW No. 1 - original complainant. Even there is no enmity alleged by the original accused Nos. 1 to 7 with the complainant. Except bare denial in their Further Statement recorded under section 313 of the Code of Criminal Procedure, no evidence in their defence has been led by the original accused Nos. 1 to 7. 6.5. Apart from the above, even in the cross-examination of the investigating officer, there is a suggestion that all the original accused Nos. 1 to 7, who were arrested on the spot, were trying to extinguish the fire by pouring water. Meaning thereby the presence of the accused at the time of incident and commission of the offence has been admitted and proved. 1 to 7, who were arrested on the spot, were trying to extinguish the fire by pouring water. Meaning thereby the presence of the accused at the time of incident and commission of the offence has been admitted and proved. It should be over and above the fact that their names were disclosed by the original complainant - PW No. 1 in the complaint lodged by him immediately after the incident and at the earliest and in the complaint, which was given by PW No. 1 at Vasad Police Station on 1/3/2002 at 1.35 AM - early morning. 6.6. Considering the aforesaid facts and circumstances of the case and considering the evidence on record, the prosecution has been successful in proving the presence of the original accused Nos. 1 to 7 at the time of commission of the offence and they being part of the mob and members of the unlawful assembly with a common object to damage and/or destroy the properties belonging to a particular community. 6.7. It is true that the PW No. 1 in his deposition has stated that he is now in a position to identify the accused by name in the Court, however, he has clearly identified those persons by stating that those persons who are named in the complaint as accused are present in the court. Naturally after so many years, the original complainant would not be in a position to identify the accused in the Court by name but they are as such identified by saying that those who are named in the First Information Report are present in the Court. 6.8. Now, so far as the rest of the accused i.e. original accused Nos. 8 to 19 are concerned, on re-appreciating the entire evidence on record, including deposition of the PW Nos. 2 and 4, we are of the opinion that their presence at the time of commission of the offence cannot be said to have been proved by the prosecution beyond reasonable doubt by leading cogent evidence. In absence of any other corroborative evidence and solely relying upon deposition of PW Nos. 2 and 4, it is not safe to convict the original accused Nos. 8 to 19. Admittedly no identification parade of the original accused Nos. 8 to 19 has been held and conducted. Their names have not been disclosed by the PW No. 1 in the complaint. 2 and 4, it is not safe to convict the original accused Nos. 8 to 19. Admittedly no identification parade of the original accused Nos. 8 to 19 has been held and conducted. Their names have not been disclosed by the PW No. 1 in the complaint. They were arrested subsequently by the investigating officer. Nothing is forthcoming on what basis and on the basis of what evidence gathered during the course of the investigation, original accused Nos. 8 to 19 were arrested. 6.9. PW No. 2 has stated that he has given complaint before Vasad Police Station, however, investigating officer has denied having complaint given by the PW No. 2 on the next day. He has admitted in the cross-examination that he was shown as witness in another case, i.e. Sessions Case No. 155 of 2002 with respect to similar incident, however, in that case, he has been declared hostile. In the present case, PW No. 2 has identified some of the accused in the Court, however, which is after 2 years of the incident. He has stated that he had shown the incident and the accused persons from the terrace and in the street light. Considering the deposition of the PW No. 2, we are of the opinion that in the mob of 1000 to 1500 persons, he could not have identified original accused Nos. 8 to 19. Even his deposition is full of material contradictions. He has stated in his deposition that his statement was not recorded on 19/3/2002, however, investigating officer has categorically stated that his statement was recorded on 19/3/2002. Considering the deposition of the said PW No. 2, we are of the opinion that it is not safe to rely on the deposition of the PW No. 2 and convict the original accused Nos. 8 to 19 relying on the deposition of 6.10. Similarly, on re-appreciating the entire deposition of PW No. 4 - Roshansha Bafatisha, we are of the pinion that he cannot be said to be eye witness to the incident and it is not safe to rely on his deposition and convict the original accused Nos. 8 to 19 relying on the deposition of PW No. 4. He has named some persons who were not even arraigned as accused. 8 to 19 relying on the deposition of PW No. 4. He has named some persons who were not even arraigned as accused. Under the circumstances and on appreciation of the entire evidence on record, we are of the opinion that the prosecution has failed to prove the presence of the original accused Nos. 8 to 19 at the time commission of the offence and they being part of the mob and/or members of the unlawful assembly. Under the circumstances, the learned trial court has not committed any error in acquitting the original accused Nos. 8 to 19. 7.1. Now, so far as original accused Nos. 1 to 7 are concerned, original accused No. 6 has died during the pendency of the trial and therefore, trial qua him was ordered to be abated. Therefore, present appeal is required to be considered qua original accused Nos. 1 to 5 and 7 only. 7.2. At the outset, it is required to be noted that so far as the original accused Nos. 1 to 5 and 7 are concerned, all of them were named by the PW No. 1 - original complainant in the complaint, who is a police officer and was on duty of Police Bandobast because of Call of Gujarat Bandh at the time of incident and he gave complaint before the Vasad Police Station at about 1.35 AM - early morning on 1/3/2002 i.e. immediately. Even original accused Nos. 1 to 5 and 7 were arrested on the spot. The original complainant - PW No. 1 has categorically stated in his deposition that original accused Nos. 1 to 5 and 7 were arrested on the spot and they disclosed their names and that is how their names were given in the complaint. There is no suggestion whatsoever in the cross-examination disputing the above. Even PW No. 1 - original complainant has also stated in his deposition that in the said incident he sustained injuries by stone throwing. The same has been duly proved by the prosecution by producing his injury certificate. PW No. 1 has also identified original accused Nos. 1 to 5 and 7 in the Court also by stating that those persons who were arrested on the spot and named in the complaint, are present in the Court, however because of long lapse of time, he has not been able to identify them by names. PW No. 1 has also identified original accused Nos. 1 to 5 and 7 in the Court also by stating that those persons who were arrested on the spot and named in the complaint, are present in the Court, however because of long lapse of time, he has not been able to identify them by names. However, the same will not affect the case of the prosecution adversely. 7.3. At this stage, it is required to be noted that even in the cross-examination of the investigating officer, there was a suggestion by the aforesaid accused that they had gone there to extinguish fire by pouring water. Meaning thereby they have virtually admitted their presence at the time of incident. The aforesaid would be over and above the aforesaid finding that the prosecution has successfully proved the presence of the original accused Nos. 1 to 5 and 7 at the time of incident and they being part of the mob and members of the unlawful assembly with a common object to damage and destroy the properties of a particular community. 7.4. Now, so far as the submissions made by Mr. Barot, learned advocate appearing on behalf of the original accused Nos. 1 to 5 and 7 that since no overt act is attributed to any of the said accused, they cannot be held guilty and reliance placed upon the decision of the Hon'ble Supreme Court in the case of Shaji and others (supra) and another decision of the Hon'ble Supreme Court in the case of Kuldip Yadav and another (supra) are concerned, it is required to be noted that in the present case the prosecution has been successful in proving that original accused Nos. 1 to 5 and 7 were part of the mob and they were members of the unlawful assembly with a common object. Therefore, section 149 of Indian Penal Code would be clearly attracted. 7.5. In the case of Subal Ghorai and others (supra), it has been held by the Hon'ble Supreme Court that overt act is not necessary for imposition of liability with aid of Section 149 Indian Penal Code. Therefore, section 149 of Indian Penal Code would be clearly attracted. 7.5. In the case of Subal Ghorai and others (supra), it has been held by the Hon'ble Supreme Court that overt act is not necessary for imposition of liability with aid of Section 149 Indian Penal Code. It is further held in the aforesaid decision that 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 the aforesaid decision it is also further held that identification of accused for the first time in Court is 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. 7.6. In the case of Anup Lal Yadav (supra), the Hon'ble Supreme Court has 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 under section 149 of Indian Penal Code. 7.7. In the case of Kishanpal and others (supra), the Hon'ble Supreme Court has observed and held that once membership of unlawful assembly is established, it is not incumbent on the part of the prosecution to establish whether any specific overt act has been shown to any accused or not. It is further observed that mere membership of unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed. 7.8. In the case of Bhanvarsing and others (supra), the Hon'ble Supreme Court has observed and held that common object of unlawful assembly depends firstly on whether such object can be classified as one of those described in section 141 and secondly such common object need not be the product of prior concert but may form on spur of the moment. In the case of Bhanvarsing and others (supra), the Hon'ble Supreme Court has observed and held that common object of unlawful assembly depends firstly on whether such object can be classified as one of those described in section 141 and secondly such common object need not be the product of prior concert but may form on spur of the moment. It is further observed that finally nature of this common object is a question of fact to be determined by considering nature of arms, nature of assembly, behaviour of members etc. 7.9. In the case of Ramesh and others, while considering applicability of section 149 of Indian Penal Code, the Hon'ble Supreme Court has observed and held that a common object of an unlawful assembly has to be gathered from the nature of the assembly, arms possessed by them and the behaviour of the assembly at or before the occurrence. It is further observed that it is an inference which has to be deduced from the facts and circumstances of each case. It is further observed that to attract the mischief of section 149, it is not necessary that each of the accused commit some illegal overt act. It is further observed that when the assembly is found to be unlawful and offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. It is further observed that it has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. 7.10. In the present case, original accused Nos. 1 to 5 and 7 were members of a rioting mob that had gone on a rampage destroying the properties of a particular community and even graveyard and Masjid causing harm to the general public. The incident is not in dispute. Damage caused to the properties of a particular community and even graveyard and Masjid has been established and proved by the prosecution by the Panchnama of the place of incident. Under the circumstances, original accused Nos. 1 to 5 and 7 can be held guilty for the offences for which they were tried with the aid of section 149, however, except for the offence under sections 294 and 389 of Indian Penal Code. 7.11. Under the circumstances, original accused Nos. 1 to 5 and 7 can be held guilty for the offences for which they were tried with the aid of section 149, however, except for the offence under sections 294 and 389 of Indian Penal Code. 7.11. Now, so far as the reliance placed by Mr. Barot, learned advocate appearing on behalf of the original accused upon the decision of the the Hon'ble Supreme Court in the case of Kuldip Yadav and others (supra) is concerned, on considering the said decision, we are of the opinion that the same shall not be of any assistance and/or helpful to the accused in the facts of the present case and evidence on record. As observed hereinabove, in the present case, as such the original accused Nos. 1 to 5 and 7 being part of the mob and members of the unlawful assembly with a common object, has been established and proved, which was not there before the Hon'ble Supreme Court in the aforesaid case. 7.12. Similarly decision of the Hon'ble Supreme Court in the case of Saji and others (supra) relied upon by Mr. Barot, learned advocate appearing on behalf of the original accused also shall not be applicable to the facts of the case on hand. In the said case before the Hon'ble Supreme Court, there was no finding recorded by the learned trial court that the assembly was unlawful and/or common object of the assembly was unlawful. In the present case, it has been established both, that the original accused Nos. 1 to 5 and 7 were present at the time of incident and they were part of the mob and they were members of the unlawful assembly with a common object to cause damage to the properties of a particular community. 7.13. In light of the aforesaid findings and evidence on record, next question which is posed for consideration of this Court is what offence, the original accused Nos. 1 to 5 and 7 have been committed. The original accused were charged and tried for the offences punishable under sections 143,147, 148, 153(A), 294, 295, 436, 332 and 389 read with sections 149 and 34 of Indian Penal Code. 1 to 5 and 7 have been committed. The original accused were charged and tried for the offences punishable under sections 143,147, 148, 153(A), 294, 295, 436, 332 and 389 read with sections 149 and 34 of Indian Penal Code. Considering the evidence on record, including the Panchnama of the place of incident and damage caused to the properties of a particular community and the accused being part of the mob and members of the unlawful assembly with a common object that had gone on a rampage destroying the properties of a particular community and even graveyard and Masjid and considering the aforesaid provisions of the Indian Penal Code, we are of the opinion that the the original accused Nos. 1 to 5 and 7 can be said to have committed offences punishable under sections 143, 147, 153(A), 295, 436 and332 of Indian Penal Code and cannot be said to have committed offences punishable under sections148, 294 and 389 of Indian Penal Code. Therefore, all the original accused Nos. 1 to 5 and 7 can be held guilty for the offences punishable under sections 143, 147, 153(A), 295, 436 and 332 of Indian Penal Code and accused Nos. 1 to 5 and 7 are accordingly held guilty for the offences punishable under sections 143, 147, 153(A), 295, 436 and 332 of Indian Penal Code and to that extent the impugned judgement and order passed by the learned trial court is required to be reversed. 8. We have heard the learned advocate appearing on behalf of the original accused Nos. 1 to 5 and 7 on sentence. Mr. Barot, learned advocate appearing on behalf of the original accused Nos. 1 to 5 and 7 has submitted that by now 14 years have passed after the incident and that instead of sending them to jail, it is requested to impose any compensation. 8.1. On the other-hand, Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has requested to impose maximum punishment provided for the aforesaid offences by submitting that all the aforesaid accused were members of the rioting mob that had gone on a rampage destroying the properties of a particular community and even graveyard and Masjid and therefore, she has requested not to show any leniency. 8.2. In support of her above submission, Ms. 8.2. In support of her above submission, Ms. Nisha Thakore, learned Additional Public Prosecutor appearing on behalf of the State has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Versus Udaibhai, reported in (2016) 4 SCC 116 . 8.3. Having heard the learned advocates appearing on behalf of the respective parties on sentence, we are of the opinion that the manner in which the original accused Nos. 1 to 5 and 7 have damaged/destroyed the properties of a particular community, and all the aforesaid accused were member of rioting mob that had gone on a rampage destroying the properties of a particular community and even graveyard and some portion of the Masjid, they should be dealt with accordingly and no lenient view is required to be taken by awarding only compensation, as requested by Mr. Mr. Barot, learned advocate appearing on behalf of the original accused Nos. 1 to 5 and 7. 9. In view of the above and for the reasons stated above, present appeal succeeds in part. The impugned judgement and order passed by the learned Additional Sessions Judge, 4th Fast Track Court, Kheda at Nadiad in Sessions Case No. 119 of 2003 acquitting the respondent Nos. 8 to 19 - original accused Nos. 8 to 19 is hereby confirmed. However, the aforesaid impugned judgement and order passed by the trial court acquitting the respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 is hereby quashed and set aside and respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 are held guilty for the offences punishable under sections 143, 147, 153(A), 295, 436 and 332 of Indian Penal Code. However, the aforesaid impugned judgement and order passed by the learned trial court acquitting the respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 for the offences punishable under sections offences punishable under sections 148, 294 and 389 of Indian Penal Code, is hereby confirmed. 9.1. The respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 are sentenced to undergo Rigorous Imprisonment for a period of 6 (six) months with fine of Rs. 9.1. The respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 are sentenced to undergo Rigorous Imprisonment for a period of 6 (six) months with fine of Rs. 5000/- and in default, to undergo further Rigorous Imprisonment for a period of 1 (one) month for the offence under section 143 of Indian Penal Code. 9.2. The respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 are sentenced to undergo Rigorous Imprisonment for a period of 1 (one) year with fine of Rs. 5000/- and in default, to undergo further Rigorous Imprisonment for a period of 1 (one) month for the offence under section 147 of Indian Penal Code. 9.3. The respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 are sentenced to undergo Rigorous Imprisonment for a period of 1 (one) year with fine of Rs. 5000/- and in default, to undergo further Rigorous Imprisonment for a period of 1 (one) month for the offence under section 153(A) of Indian Penal Code. 9.4. The respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 are sentenced to undergo Rigorous Imprisonment for a period of 1 (one) year with fine of Rs. 5000/- and in default, to undergo further Rigorous Imprisonment for a period of 1 (one) month for the offence under section 295 of Indian Penal Code. 9.5. The respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 are sentenced to undergo Rigorous Imprisonment for a period of 1 (one) year with fine of Rs. 25,000/- and in default, to undergo further Rigorous Imprisonment for a period of 2 (two) months for the offence under section 436 of Indian Penal Code. 9.6. The respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 are sentenced to undergo Rigorous Imprisonment for a period of 1 (one) year with fine of Rs. 5000/- and in default, to undergo further Rigorous Imprisonment for a period of 1 (one) month for the offence under section 332 of Indian Penal Code. All the sentences to run concurrently. It goes without saying that whatever the period the respondent Nos. 1 to 5 and 7 - original accused Nos. 5000/- and in default, to undergo further Rigorous Imprisonment for a period of 1 (one) month for the offence under section 332 of Indian Penal Code. All the sentences to run concurrently. It goes without saying that whatever the period the respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 have undergone, the same shall be given set off in accordance with law. On conviction of the respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7, their Bail Bonds stand cancelled and they shall be taken into custody forthwith to undergo remaining sentence as per the present judgement and order. At this stage, Mr. Tejas Barot, learned advocate appearing on behalf of the respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 has requested to grant some time to the respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 to undergo the remaining sentence as per present judgement and order. In the facts and circumstances of the case, time to surrender to the respondent Nos. 1 to 5 and 7 - original accused Nos. 1 to 5 and 7 is hereby extended upto 11/07/2016. Registry is directed to return the Record and Proceeding of the case to the learned trial court forthwith.