JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of the common judgment dated 20.06.2012 rendered by the learned District and Sessions Judge, Tapi at Vyara in Sessions Case No. 41 of 2009. By the said judgment, the learned Judge convicted original accused Nos. 1 & 2 for offences punishable under section 302 read with section 34 IPC and sentenced them to life imprisonment. The rest of the accused were convicted for offences punishable under section 201 read with section 114/34 IPC alongwith accused Nos. 1 & 2 and sentenced to simple imprisonment for three years. Original accused Nos. 2 to 5 have challenged this judgment in Criminal Appeal No. 910 of 2012, original accused No. 1 has challenged the same judgment in Criminal Appeal No. 1153 of 2012. We are informed that accused Nos. 3 to 5 have served out the sentence and are already released. We have therefore focused only on the correctness of the conviction of accused Nos. 1 and 2. 2. Briefly stated, the prosecution version was that, on 14.04.2009 at about 08'O clock in the morning, deceased Anilbhai had a quarrel with accused No. 1 - Kishanbhai Bhagabhai and his wife Ramilaben Kishanbhai - accused No. 2. Kishanbhai gave a blow on the head of Anilbhai with a brick and followed it up with several blows on the head with steel glass. This happened near the house of Kishanbhai. Later, Kishanbhai came with more help and again assaulted Anilbhai and his mother Manjulaben, P.W. 2, Ex. 55 at their house. The assailants carried Anilbhai to a nearby well and threw him in the well. All the accused were, therefore, charged with offences punishable under sections 302, 323, 201, 114 read with section 34 IPC. 3. Dr. Ranjitbhai Valavi, P.W. 1, Ex. 36 had carried out the post mortem of the dead body. In the post mortem report, Ex. The assailants carried Anilbhai to a nearby well and threw him in the well. All the accused were, therefore, charged with offences punishable under sections 302, 323, 201, 114 read with section 34 IPC. 3. Dr. Ranjitbhai Valavi, P.W. 1, Ex. 36 had carried out the post mortem of the dead body. In the post mortem report, Ex. 40, he had recorded the following external injuries: "(1) CLW - (Rt) Parietal region - 1 x 1/4 bone deep (2) CLW - (Lt) Temporal site above 6 cm x 1/2 cm x bone deep (3) Occipital region CLW - 1 cm x 1/2 cm x scalp deep - 3 cm x 1/4 cm x bone deep - 2 cm x 1/4 cm x bone deep - 1 1/2 cm x 1/4 cm x bone deep (4) Abrasion sternum - 8" x 1/2 cm (5) Bluish contusion (rt) elbow (6) Multiple abrasion (Rt) palm - fore- (Lt) palm dorsal (7) Abrasion (Lt) arm 2 cm x 2 cm (8) Multiple abrasions on both lower limbs posteriorly/late - (Rt) buttocks - 5 cm x 2 cm - Near (Rt) ischial spine - 5 cm x 4 cm." 3.1 In the column for opinion as to cause of death, he had remarked that viscera was preserved and the opinion is reserved. Before the court, he was shown the FSL report which showed that there was no case of poisoning. The specimen of lungs showed no deposit of water. On the basis of such evidence, he opined that the death had occurred before the person was thrown in the water. He stated that the injuries indicated in the post mortem note could have been caused with a hard blunt substance and were sufficient in ordinary course of nature to cause death. He agreed that such injuries could be caused with sticks or with a brick if hit behind the head with force. 3.2 This doctor had also treated Manjulaben on the same day who was attacked with sticks. He had given the injury certificate, Ex. 48 in which he had found multiple bruises on her body. He had also treated Jayeshbhai - brother of the deceased Anilbhai and Mayaben Anilbhai - daughter of Anilbhai. Both had complained of being kicked and given stick blows. They were complaining of tenderness and pain but did not carry visible injuries. 4. He had given the injury certificate, Ex. 48 in which he had found multiple bruises on her body. He had also treated Jayeshbhai - brother of the deceased Anilbhai and Mayaben Anilbhai - daughter of Anilbhai. Both had complained of being kicked and given stick blows. They were complaining of tenderness and pain but did not carry visible injuries. 4. P.W. 2, Manjulaben Patel - mother of Anilbhai, Ex. 65 was also the first informant. She deposed that on the date of the incident she was at her field. At about 8'O clock in the morning, there was a quarrel between her son Anil and Kishanbhai - accused No. 1. Upon hearing shouts, Anilbhai's wife Urmilaben had gone there and had seen Kishanbhai giving blows to Anilbhai on the head with a steel glass and a stick. Kishanbhai's wife Ramilaben was also present at that time. She and Kishanbhai's brother were sitting when other 8 to 10 people came and gave stick blows on her legs and on the back. They also gave stick blows to her son Anil on the head and on the back. They then threw him in the well which Anilbhai's daughter Maya had told her. She identified the accused before the court and also identified them during the T.I. parade. 4.1 In the cross examination, she stated that she stayed with her husband in a hut in the field. Their sons Jayesh and Anil lived separately with their families in different huts. The field of Kishanbhai is a couple of fields away from theirs. The incident had taken place near the hut of Kishanbhai. She learnt about the incident when she was informed about it by her daughter-in-law Urmilaben. When she reached the place of incident, her son was bleeding profusely. She agreed to the suggestion that she had not reported the FIR but it was as per the information supplied by her daughter-in-law. 5. In the FIR, Ex. 66, there was slightly different version given by Manjulaben. According to the contents of the FIR, Urmilaben had seen the first incident when Anilbhai was assaulted by Kishanbhai. Urmilaben brought him home in injured condition and went to the police station to lodge a complaint. After that accused Nos. 1 and 2 came there and again assaulted Anilbhai. They came with more help and gave stick blows to Anilbhai and then threw him in the well. Urmilaben brought him home in injured condition and went to the police station to lodge a complaint. After that accused Nos. 1 and 2 came there and again assaulted Anilbhai. They came with more help and gave stick blows to Anilbhai and then threw him in the well. 6. Urmilaben, wife of deceased Anilbhai, P.W. 3, Ex. 68 deposed that on the date of the incident when she was at the field, her children reported to her that her husband was being beaten by Rajubhai (one of the aliases of accused No. 1 Kishanbhai). She, therefore, went and saw that Rajubhai was hitting her husband with a brick. Ramilaben was beating him with her hands. When she reached there, many people had gathered. Her husband was bleeding and he was made to lie down. She brought her husband home and then went to the police station for lodging complaint. When she returned, she learned from her mother-in-law that the accused had again beaten up her husband with sticks and then threw him in the well. 6.1 In the cross examination, she agreed that upon hearing the shouts she rushed to the spot and her husband was lying unconscious. No one else was present at that time. She had gone to the police station for lodging the FIR but returned because she could not meet anybody. 7. Mayaben Anilbhai, P.W. 5, Ex. 77 was aged about 8 years at the time of the incident. After verifying her mental abilities, the learned Judge recorded her deposition in which she stated that on the date of the incident her father had gone to the hut of accused No. 1 when he was assaulted. The hut was next to their field. Her mother and others rushed towards the field of accused No. 1. She had also gone there and had seen accused No. 1 hitting her father with a stick on the head. There were other persons present but only accused No. 1 was beating her father. After that accused No. 1 called more people from the village and beat up her father and grandmother with sticks. The accused No. 1 thereafter attacked her father and threw him in the well. 8. Supposedly there were several other witnesses. However, many of them turned hostile. We may not, therefore, refer to the evidence of all of them except to the extent it is relevant. The accused No. 1 thereafter attacked her father and threw him in the well. 8. Supposedly there were several other witnesses. However, many of them turned hostile. We may not, therefore, refer to the evidence of all of them except to the extent it is relevant. P.W. 17, Ex. 102, Hoopabhai Padvi was also one of the eye witnesses who had turned hostile. However, in his deposition he had stated that he had heard shouts and seen the quarrel which involved Anilbhai and an old lady. Anilbhai was given stick blows by Tulsibhai and Natubhai i.e. accused Nos. 5 & 6. He also stated that the persons who beat up Anilbhai and his mother were present before the court. 8.1 In the cross examination by the learned Additional Public Prosecutor, he agreed that at about 10 O'clock, noises had come from the hut of Jayeshbhai (brother of Anilbhai) and the accused Nos. 5 & 6 were also giving stick blows to Jayeshbhai, Meenaben and Manjulaben i.e. brother, daughter and mother respectively of the deceased. 9. The panchnama of the scene of incident, Ex. 78 showed blood stained pieces of brick near the house of accused No. 1. On the same place, the investigating agency had also noticed spots of blood on the ground and collected such soil. It had also collected a steel glass from the scene of the incident which also carried blood spots. About 200 feet away from this site was the hut of Manjulaben - the complainant and at about 150 feet's distance was the hut of Anilbhai. About 200 feet away was the hut of Jayeshbhai. From these places also, blood soaked clothes of the deceased were collected. About half a kilometer away was the well situated from where the body of Anilbhai was found. 10. On the basis of such evidence on record, the learned Sessions Judge, as noted above, convicted accused Nos. 1 & 2 for offences punishable under sections 302, 201 read with section 114/34 IPC, convicted accused Nos. 3 to 5 for offences punishable under section 201 read with section 114 IPC. Accused No. 6 having died during the pendency of the trial, the case abated against him. The case record would show that the accused Nos. 3 to 5 had to serve out sentence of more than three years as under-trial prisoners by the time the judgment was delivered. Accused No. 6 having died during the pendency of the trial, the case abated against him. The case record would show that the accused Nos. 3 to 5 had to serve out sentence of more than three years as under-trial prisoners by the time the judgment was delivered. Qua these accused therefore the learned advocate for the appellants did not seriously press the appeals since the appeal had become in any case in-fructuous. The sole surviving question is of the correctness of the conviction and sentence of accused Nos. 1 & 2 by the learned Sessions Judge. 11. Ms. Dharitri Pancholi, learned advocate for the appellants submitted that there was no reliable evidence on the involvement of either of the two accused. No other witnesses could be stated to be reliable, their testimonies were full of contradictions and improvements. The role of neither of the accused was established beyond doubt. 12. On the other hand, learned Additional Public Prosecutor Shri Raval opposed the appeals contending that the learned Sessions Judge has given cogent reasons for convicting the said two accused. 13. We may assess the evidence. The facts that deceased Anilbhai died a homicidal death and that his body was found from a well are not seriously in dispute. From the evidence of Dr. Ranjit Valavi, P.W. 1, it is further established that the cause of death was not drowning but the injuries which were received by Anilbhai upon being beaten up. In other words, Dr. Valavi was clear in his opinion that Anilbhai must have died before his body was thrown in the well. The cause of death therefore was not drowning but by the injuries caused on various parts of his body. In the post mortem note, he had recorded several head injuries which could be caused with a hard and blunt substance be it a stick or even with a brick if hit with sufficient force. 14. Manjulaben, P.W. 2 - mother of the deceased in her deposition had referred to the assault on her son which was reported to her by her daughter-in-law Urmilaben. She had then referred to more 8 to 10 people coming and beating Anilbhai as well as hitting her with sticks. The fact that she had herself several multiple injuries which obviously could not have been self inflicted is borne out from the deposition of the doctor - P.W. 1 also. 15. She had then referred to more 8 to 10 people coming and beating Anilbhai as well as hitting her with sticks. The fact that she had herself several multiple injuries which obviously could not have been self inflicted is borne out from the deposition of the doctor - P.W. 1 also. 15. It is true that the version given by this witness in her deposition before the court had some variance with the version given by her in the FIR, Ex. 66. However, that itself would not be sufficient to discard her entire testimony. To the limited extent of believing her presence when her son was assaulted by accused No. 1 with the help of other reinforcements which he brought, her testimony is quite relevant. She herself received injuries and her presence, therefore, was established. 16. Urmilaben, P.W. 3 - wife of the deceased on the other hand was a witness only to the first part of the beating given to Anilbhai i.e. near the hut of accused No. 1. She had rushed to the spot upon having been informed by her children and seeing Anilbhai being assaulted by accused No. 1, she had brought him back near the hut of Jayeshbhai and then gone to the police station for lodging FIR. Thus, she neither saw nor claims to be a witness to the later part of the incident when Anilbhai was assaulted by accused No. 1 with the help of other persons near the house of Anilbhai's brother Jayeshbhai. 17. Mayaben, Anilbhai's young daughter, however, seems to have seen both the incidents. She had rushed to the house of Kishanbhai when her father was being beaten up. She was also present at the house of her uncle Jayeshbhai when accused No. 1 came up with more help and assaulted Anilbhai as well as Anilbhai's mother Manjulaben. It is true that this girl was barely 8 years old when the incident took place. However, the learned Judge had first asked her general questions to assess her mental abilities and thereafter proceeded to record her deposition. There are no major contradictions in her deposition as compared to her mother's statement. As a child witness, her evidence would call for minute scrutiny but not whole scale discarding without reason. Her version is duly corroborated in part by the deposition of Manjulaben, P.W. 2 and Urmilaben, P.W. 3. Manjulaben had herself received injuries. There are no major contradictions in her deposition as compared to her mother's statement. As a child witness, her evidence would call for minute scrutiny but not whole scale discarding without reason. Her version is duly corroborated in part by the deposition of Manjulaben, P.W. 2 and Urmilaben, P.W. 3. Manjulaben had herself received injuries. The huts of Manjulaben, accused No. 1 Kishanbhai, deceased Anilbhai and his brother Jayeshbhai were at a distance of barely about 100 to 150 feet apart from each other. The presence of these witnesses - Manjulaben, the mother of deceased and Urmilaben, the wife of deceased was therefore natural. 18. The version of these three witnesses if put together would reveal that Anilbhai in the morning had a quarrel near the house of accused No. 1 Kishanbhai where he was given blows with a brick and steel glass. Anilbhai was brought back by his wife Urmilaben near the house of Anilbhai's brother Jayeshbhai. Accused No. 1 came back with more reinforcements and again assaulted Anilbhai there from where his body was dragged and thrown in the well. It is to this latter incident that P.W. 17, Hoopabhai Padvi refers. Though this witness had turned hostile, in part he has supported the prosecution. He had heard the shouts and seen the fight. He had seen Anilbhai and an old lady being beaten up. As noted, from near the house of Kishanbhai, blood soiled pieces of brick, steel glass and blood soaked soil were collected. From near the house of Jayeshbhai, blood stained clothes of deceased were found, the dead body of the deceased was taken out from nearby well. Involvement of the accused No. 1 Kishanbhai therefore was duly established on record. He is the one who had direct motive since the quarrel had taken place between Anilbhai and Kishanbhai. Whether such quarrel was caused because Anilbhai had misbehaved with the wife of Kishanbhai, as stated by P.W. 2, is not important. He had as per the eye witnesses' accounts assaulted Anilbhai right outside his own house and thereafter brought in more people, once again beat up Anilbhai with the help of these people in the process causing injuries to Anilbhai's mother. His conviction and sentence, therefore cannot be faulted. 19. He had as per the eye witnesses' accounts assaulted Anilbhai right outside his own house and thereafter brought in more people, once again beat up Anilbhai with the help of these people in the process causing injuries to Anilbhai's mother. His conviction and sentence, therefore cannot be faulted. 19. Further in so far as accused No. 2, Ramilaben - wife of Kishanbhai is concerned there is absolutely no evidence of any direct role played by her. Her presence at her own house was natural. By mere presence, she cannot be implicated in the offence. None of the witnesses have attributed any role to her or given direct reference to any injuries caused by this accused to Anilbhai. Her mere presence at her house or even later on with her husband near the house of Jayeshbhai would not be sufficient to rope her in causing murder with the aid of section 34 of the Indian Penal Code. Her conviction was totally unjustified. Same is therefore set aside. 20. In the result, Criminal Appeal No. 910 of 2012 is allowed in part by reversing the conviction of original accused No. 2 - appellant No. 1 for offences punishable under sections 302, 201, 114/34 IPC. This appeal qua rest of the accused is disposed of as accused having served out the sentence. Bail bond qua original accused Nos. 2 to 5 shall stand discharged. Criminal Appeal No. 1153 of 2012 is dismissed by confirming the conviction and sentence of original accused No. 1. Both the appeals are disposed of accordingly. R & P to be transmitted to the trial court forthwith.