JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of a common judgment dated 12.09.2005 rendered by the learned City and Sessions Judge, Ahmedabad in a group of Sessions Cases being Sessions Case No. 149 of 2004, 261 of 2004 and 262 of 2004 as well as another common judgment dated 27.07.2007 rendered by the said Court in Sessions Case Nos. 142 of 2005, 205 of 2005, 98 of 2006 and 219 of 2006. All these sessions cases related to a single incident of rioting and murder which took place in the city of Ahmedabad on 09.11.2003. Different sessions cases were registered against different accused on account of the fact that all the accused could not be arrested at the same time. Some of them were absconding and were arrested at different points of time giving rise to different sessions cases. The first set of sessions cases being Sessions Case No. 149 of 2004 and connected sessions cases were consolidated. Common evidence was recorded and came to be disposed of by the said common judgment dated 12.09.2005. Fresh batch of accused could be arrested later on. The entire sessions trial was re-conducted, witnesses were examined all over again and allowed to be cross-examined by the concerned accused. These sessions cases being Sessions Case Nos. 142 of 2005 and connected sessions cases came to be decided by a common judgment dated 27.07.2007. Evidence is virtually common in both sets of sessions trials. We would record at length, the evidence led by the prosecution in Sessions Case No. 149 of 2004 and connected cases and refer to the evidence in the second set of sessions cases only to the extent a new aspect or evidence may have come on record. 2. Briefly stated the version of the prosecution was that on 09.11.2003 in Juhapura area of city of Ahmedabad an incident of disturbance of peace had taken place. As a sequel to this, one person belonging to the Muslim community, Usmangani was stabbed in the back by a mob of Hindu community in the late evening hours. An agitated crowed of Muslim community therefore, had brought Usmangani to the Kalupur police station for recording his FIR and for prompt investigation. As a sequel to this, one person belonging to the Muslim community, Usmangani was stabbed in the back by a mob of Hindu community in the late evening hours. An agitated crowed of Muslim community therefore, had brought Usmangani to the Kalupur police station for recording his FIR and for prompt investigation. The police authorities present at the Kalupur police station, however, tried to persuade the crowd that it was more important to have the injured treated first, the recording of FIR can wait. Usmangani was sent to the V.S. Hospital for treatment. The members of the mob were however, not pacified. They started stone pelting, upon which, the police authorities had to first resort to lathi charge and then to lobbing of tear gas shells to disperse the crowd. The crowd went in two or three directions. A short while later, this mob attacked a motorcyclist Poras Mehta. He was first beaten up and then set on fire with the petrol from his own motorcycle. The very mob attacked a passenger travelling in an auto rickshaw Madanlal by name. He was also beaten up and thrown in the fire. The police authorities from Kalupur police station upon learning about the disturbances rushed to the spot and found that Poras Mehta had already died of severe burns. Madanlal was critically injured but alive. He was sent to Civil Hospital for treatment. An FIR to this effect was lodged by Police Sub-Inspector Shri S.S. Sonvane of Kalupur police station which was produced at Exh 71, in which, he had named six persons as being part of this mob. Charge was framed in Sessions Case No. 149 of 2004 at Exh 2 in which, these persons were arraigned as accused for offences punishable under sections 143, 146, 147, 148 read with section 149 of IPC. The accused were also charged with offence for sections 302, 153 read with section 149 of IPC for having committed murder of Poras Mehta for communal hatred. They were also charged with attempt to murder injured Madanlal and robbing of his belongings. They were therefore, charged with offences punishable under sections 307, 395 read with section 195 of IPC. 3. The evidence produced by the prosecution before the Court mainly comprises of two sets of witnesses. They were also charged with attempt to murder injured Madanlal and robbing of his belongings. They were therefore, charged with offences punishable under sections 307, 395 read with section 195 of IPC. 3. The evidence produced by the prosecution before the Court mainly comprises of two sets of witnesses. First set of witnesses are police witnesses who reached the spot soon after the incident had taken place and when the mob was still at the site. Second set of witnesses comprise of five members of public who were supposed to have witnessed a part of or the whole of the incident. Two of these witnesses, however, turned hostile and did not support the prosecution. These and other related aspects would come-up for discussion at a later stage when we assess the evidence. For the present, we may note the gist of evidence on record. 4. Santosh Shyambhau Sonvane, PW 1, Exh 20 was the PSI of Kalupur Police Station. He was the first informant. He deposed that, on 09.11.2003, when he was posted at Kalupur police station as PSI, he was busy with patrolling and trying to maintain law and order situation under control after the incident in Juhapura area. At that time, at about 22:30, he saw a crowd of Muslim community opposite Kalupur police station. He inquired about the reason of their presence and learnt that one Muslim person was stabbed by Hindus near the Calico dome and the people were demanding arrest of the culprits. He sent the injured immediately for treatment in a mobile van. The crowd, however, got agitated and started throwing stones at the police. The police had to lob one tear gas shell. The members of the crowd started running helter skelter. The police chased them till Kalupur tower. There also a mob had gathered and people were throwing stones. There also, the police had to lob tear gas shells. The members of the mob ran in two or three directions. In this mob he could identify some of the members whose names he gave. He and the staff members then went to a place where there was fire and saw that one person was burning. They immediately pulled him out. His lower body was burnt. He had head injury. They doused the fire, saw that the motorcycle was set on fire and one person had died due to burn injuries. He and the staff members then went to a place where there was fire and saw that one person was burning. They immediately pulled him out. His lower body was burnt. He had head injury. They doused the fire, saw that the motorcycle was set on fire and one person had died due to burn injuries. His dead body was sent to the hospital and in an ambulance the injured was also sent to Civil Hospital. It was found that the deceased was Poras Mehta of Swaminarayan Mandir road and the injured was Madanlal of Delhi and had come to Ahmedabad for some work. Before the Court, he identified the accused but could not give their names. He stated that since he was working in Kalupur area, he knew the accused. In the cross examination, he agreed that in the FIR he had not stated that he could identify the accused by their faces. He agreed that Mohammad Hussain @ Kaliyo Fakir Mohammad Salat, accused No. 5 (Sessions Case No. 149 of 2004) was not a resident of Kalupur area. He admitted that no test identification parade was carried out. He denied that injured Madanlal was taken to the hospital by the residents of the area in a pedal rickshaw. He agreed that before the incident, he had not come in contact with any of the accused. 5. Khumansinh Manshukhbhai, PW 3, Exh 31, was the ASI at Kalupur police station. He also gave a similar version and stated that when he was on duty at the police station, at about 10:30, one person came to the police station and complained that he was stabbed near calico dome. P.I. Shri Gamit told him to first get treated and that the FIR would be registered later. He had, therefore, gone in a van to drop this injured at the V.S. Hospital. When he returned, he was sent near Kalupur tower where near Tinlimbdi mosque, a motorcycle was burning. One person had also caught fire and a mob was present there. When the police arrived, members of this mob ran towards Kalupur darwaja. He saw two persons there. One of them being Salimbhai Chandbhai Mansuri, accused No. 1 (Sessions Case No. 149/2004) and the other person whom he could not name. One person had also caught fire and a mob was present there. When the police arrived, members of this mob ran towards Kalupur darwaja. He saw two persons there. One of them being Salimbhai Chandbhai Mansuri, accused No. 1 (Sessions Case No. 149/2004) and the other person whom he could not name. He identified Salimbhai before the Court and Abdul Kadar Pir Mohmadbhai Shaikh, accused No. 2 (Sessions Case No. 149/2004) as the other person. He also referred to the dead body of Poras Mehta. In the cross examination, he stated that when he reached the place, the motorcycle was burning and the person had also caught fire. He had not seen anybody stopping the motorcycle, setting the motorcycle on fire or attacking the passenger from the auto rickshaw. He agreed that at the time of the incident, there was no curfew imposed in the area. In the area, there were many eating places which would be open till late at night. He was posted in Kalupur police station area only three months before the incident. He also agreed that the incident took place during Ramzan month and that after the 10 O'clock night prayers, many people from Muslim community gathered in the locality. Particularly, due to Ramzan month there is normally a big crowd for shopping and eating joints. 6. One Savjibhai Nemaji, PW 4, Exh 34 was the member of the surveillance squad at Kalupur. He also referred to the incident of injured Usmangani, the agitation of the crowd which had started stone throwing for which, tear gas shells had to be lobbed. He had also reached Tinlimbdi masjid area where the motorcycle was burning. One person was taken out from the fire in severely burnt condition. One person was lying dead there. He referred to the presence of Mohammad Habib Abdul Rehman, accused No. 4 (Sessions Case No. 98/2006), Tajuddin @ Bhuriyo Mayuddin Malek, accused No. 1 (Sessions Case No. 142/2005), Salim Khoja (not named as accused in any of the cases), Amar Shaikh, accused No. 2 (Sessions Case No. 205/2005). He, in fact, referred to the professions of these accused and their addresses. In the cross examination, he also agreed that there was no curfew at the time of the incident and in the area, there were many eating joints attracting large number of people till late at night. He, in fact, referred to the professions of these accused and their addresses. In the cross examination, he also agreed that there was no curfew at the time of the incident and in the area, there were many eating joints attracting large number of people till late at night. He stated that when he reached the spot, 22 to 25 policemen were already there who had reached there before him in two police vans. 7. Kishorekumar Chandrakant Jagdale, PW 5, Exh 35, was also a police official at Kalupur police station. He was assigned the duty in mobile van. He also referred to the agitation of the crowd comprising of Muslim community. He also referred to the incident of Usmangani, whom he had accompanied to the hospital. Upon returning, he was instructed to reach Kalupur tower. He also referred to the burning of a motorcycle near Tinlimbdi masjid from where one person was brought out in injured condition, another person died. He could identify Irfan Mehboobkhan Pathan, accused No. 4 (Sessions Case No. 149/2004). He had also referred to their addresses. He identified Irfan before the Court but stated that the other accused was absconding and therefore, not present. The APP however, later on, corrected this error and asked him to identify Babu Shakur also which this witness had done. In the cross examination, he agreed that before he reached, other police officials had already reached. Regarding identification of the accused, he stated that he knew Irfan Pathan and Babu Shakur since they were social workers. 8. Ashirali Ayubkhan, PW 6, Exh 36, was part of the surveillance squad of Kalupur police station. He also referred to the gathering of the mob alongwith Usmangani, the use of force by the police to disperse them. He had also gone alongwith other police officers to Tinlimbdi masjid area and found one person injured in burning condition and another having died out of burn injuries. He had seen Amar Shaikh, accused No. 2 (Sessions Case No. 205/2005), Iqbal Hussain @ Iqbal Bapu, accused No. 2 (Sessions Case No. 261/2004), Abdul Salam @ Babu Abdul Shakur Shaikh, accused No. 6 (Sessions Case No. 149/2004). He had also given addresses of these accused. He identified Salimbhai Chandbhai, Babu Shakur and Iqbal Hussain Saiyed. He had seen Amar Shaikh, accused No. 2 (Sessions Case No. 205/2005), Iqbal Hussain @ Iqbal Bapu, accused No. 2 (Sessions Case No. 261/2004), Abdul Salam @ Babu Abdul Shakur Shaikh, accused No. 6 (Sessions Case No. 149/2004). He had also given addresses of these accused. He identified Salimbhai Chandbhai, Babu Shakur and Iqbal Hussain Saiyed. We may record that when his deposition was being recorded in Sessions Case No. 149 of 2004 and other cases, fourth accused namely Amar Shaikh was absconding. This witness had, however, later on when recalled in connection with Sessions Case No. 205 of 2005 and connected cases had identified this accused also. In the cross examination, he agreed that there was an SRP point at Kalupur tower. He had not seen the incident of a motorcyclist being stopped and attacked since he reached only after the incident was over. He agreed that due to disturbances, many people residing in the locality were running helter skelter. The fire was doused by fetching water from nearby lorries selling food stuffs. 9. Anilbhai Avchitbhai, PW 9, Exh 40, was the Police Constable at Kalupur police station. He had also reached the spot like other policemen soon after the incident. He had identified Iqbal Bapu, accused No. 2 (Sessions Case No. 261/2004) and Amjadkhan Nawabkhan Pathan, accused No. 3 (Sessions Case No. 149/2004) and Abdul Kadar Pir Mohmadbhai Shaikh, accused No. 2 (Sessions Case No. 149/2004) in the mob. He identified these accused before the Court. He also agreed that there was no curfew in the area. The area was populated with many eating joints and people would usually come till late at night. 10. Vishnukumar Govindbhai Parmar, PW 10, Exh 41 was a member of surveillance squad at Kalupur. He had also reached the spot where the motorcycle was burning. He had seen Tajudding @ Bhuriyo Mayudding Malek, accused No. 1 (Sessions Case No. 142/2005) and Mohammad Hussain @ Kalio Fakir Mohmad Salat, accused No. 5 (Sessions Case No. 149/2004). He also identified this accused before the Court in two separate depositions. 11. Dineshbhai Vinodbhai Nayak, PW 11, Exh 44 according to the prosecution was the pillion rider on the motorcycle which was being driven by deceased Poras Mehta. He deposed that he was a resident of Swaminarayan temple of Kalupur. He had a tea stall near Zaveri Vad. Poras Mehta was his friend. 11. Dineshbhai Vinodbhai Nayak, PW 11, Exh 44 according to the prosecution was the pillion rider on the motorcycle which was being driven by deceased Poras Mehta. He deposed that he was a resident of Swaminarayan temple of Kalupur. He had a tea stall near Zaveri Vad. Poras Mehta was his friend. On the date of the incident, Poras Mehta met him at 7 O'clock in the evening and took him to his in-law's place at Bapunargar. From there they were returning at about 9 O'clock at night. When they passed by Kalupur tower they saw a large mob of Muslim community. They were screaming and shouting. He asked Poras to apply brake upon which, the motorcycle slipped. He jumped from the motor cycle and saw that the crowd had hit Poras with brick and thereafter set on fire by dousing with petrol from his motorcycle. He had seen that Amjadkhan Nawabkhan Pathan, accused No. 3 (Sessions Case No. 149/2004), Ismail @ Pango, accused No. 7 (Sessions Case No. 219/2006) and Gabbar @ Sharif Khan, accused No. 3 (Sessions Case No. 261/2004) had caught Poras and hit him with the brick and then poured petrol from the bike. After the incident, he went home. He was extremely scared and went to Kadi. Next day, he saw the photographs of Poras and found that he had died. He had not informed anybody about the incident. His statement was recorded by the police later on. He clarified that since he used to visit Kishkola pole occasionally for tea and was also active in election work and the accused were also active in the same activity, he knew them. He had identified the said three accused before the Court in two different depositions. In the cross examination he denied that in his police statement he had not mentioned that since he and the accused were active in election work, he knew them. He agreed that for going to swaminarayan temple from Kalupur circle, one can also go via Prem Darwaja which is a wider road with less traffic as compared to the road via Kalupur tower. In his police statement, he had not referred to applying the brake of the motorcycle slipping and him jumping from the motor cycle. He agreed that for going to swaminarayan temple from Kalupur circle, one can also go via Prem Darwaja which is a wider road with less traffic as compared to the road via Kalupur tower. In his police statement, he had not referred to applying the brake of the motorcycle slipping and him jumping from the motor cycle. He also denied not having stated in his police statement that in the mob, Amjadkhan Pathan, Ismail @ Pango Usmangani Shaikh and Mohammad Sharif @ Gabbar Abdulhaq Akubhai Qureshi caught Poras and hit him with the brick on the head and set him on fire with motorcycle petrol. He denied of not having stated that he had not gone to Kadi. These contradictions were brought on record by the defence through the evidence of the Investigating Officer. He stated that the persons from this mob had ran after him but he had stopped near Bhanderi pol which was at a distance of about 150 to 200 yards from the incident. He reached home at quarter to 11, took one pair of clothes and left for Kadi that very night though in the police statement he had stated that he had left the next day. He had travelled in a private vehicle to Kadi and had been about 15 to 20 days at his maternal uncle's place. At Kadi also, he had not narrated this incident to anybody nor even to police officers at Kadi. He had not made any attempt to contact Ahmedabad police on phone. Before giving his police statement, he had not mentioned about the incident to anyone else. After returning to Ahmedabad, he had met the widow of Poras Mehta after which, he had gone to the police for his statement. He was also questioned about his relations with Poras. He said that he was not studying with Poras. He did not know when Poras had got married which may be about a year back. He had not attended the marriage since he was not invited. He did not know the name of wife of Poras. He was not aware whether Poras was adopted by his uncle. While he left for Kadi, his relatives had not asked him about the reason for his sudden departure. He had voluntarily gone to the police station for giving his statement. 12. He did not know the name of wife of Poras. He was not aware whether Poras was adopted by his uncle. While he left for Kadi, his relatives had not asked him about the reason for his sudden departure. He had voluntarily gone to the police station for giving his statement. 12. Ghanshyambhai Sitaram Nayak, PW 14, Exh 48, claimed that he and his two friends Deepal Shah and Ilesh Shah were passing by the same place at night, all three of them on one motorcycle. He deposed that he and his friend Ilesh Shah had gone to their common friend Deepal at his graphics office. The three had then gone on one motorcycle for snacks. They were going towards railway station. They were passing by Kalupur tower area when they saw a huge group in front of them near Kalupur tower of Muslim community. They stopped the bike. Someone from the group shouted for Deepal. He had seen Manirudding @ Panjabi Chudgar Mehrudding Shaikh, accused No. 4 (Sessions Case No. 261/2004) and Tajuddin @ Bhuriyo Mayudding Malek, accused No. 1 of (Sessions Case No. 142/2005). He had identified these accused before the Court in different depositions. He had tried to identify these accused before the Court but identified wrong persons. While his deposition was recorded in connection with Sessions Case No. 149 of 2004, at that time, Tajuddin as well as Bhuriyo were both absconding. This witness, however, identified other accused who were part of the said sessions case. In the cross examination, he stated that his statement was recorded about four or five days later. During this entire period, he was at Ahmedabad. In his police statement, he had not mentioned about the decision to go for snacks towards railway station. Apparently, he had also not mentioned about someone from the group shouting for Deepal. He was not called for test identification parade. He agreed that on the night of the incident, they had gone through Kalupur police station to Kalupur tower. He had found only one or two policemen outside Kalupur police station. He had not noticed any untoward incident having taken place there or any evidence of lobbing of tear gas shells. 13. Deepalbhai Nareshchandra Shah, PW 15, Exh 49 was another passenger on the motorcycle. He was a resident of Kalusha pol in Kalupur. He had found only one or two policemen outside Kalupur police station. He had not noticed any untoward incident having taken place there or any evidence of lobbing of tear gas shells. 13. Deepalbhai Nareshchandra Shah, PW 15, Exh 49 was another passenger on the motorcycle. He was a resident of Kalusha pol in Kalupur. According to him, on 09.11.2003 when he was at his office, his two friends, Ganshyam and Ilesh came at about 9 O'clock at night. After about half an hour, they decided to go for snacks. They started going towards Kalupur circle on his motorcycle which is before Kalupur tower. They found a group of 200-300 people of Muslim community. They were shouting. They could see smoke coming out. Someone from the crowd shouted asking him to stop. They were threatened to kill Hindus. He could identify about five persons in this mob who were Saiyed Iqbal @ Bapu Saiyed Hussain Saiyed, accused No. 2 (Sessions Case No. 261/2004), Munirudding @ Panjabi Chudgar Mehruddin Shaikh, accused No. 4 (Sessions Case No. 261/2004), Mohmed Aarif Allarakhabhai Memon and his brother Mohmed Imran Allarakhabhai Memon, accused Nos. 5 and 6 (Sessions Case No. 219/2006). He wrongly identified Saiyed Iqbal before the Court and Abdul Kadar Pir Mohammad Shaikh and Amjadkhan Pathan by faces but could not identify by their names. He had found no crowd near Kalupur police station nor found that any untoward incident had happened nor any evidence of bursting of tear gas shells. 14. Mohammad Irfan Iqbalbhai Shaikh, PW 7, Exh 37 was supposed to have been an eyewitness. He was a resident of Saudagar pol near Kalupur tower. He, however, turned hostile and did not support the prosecution case. Likewise, Mohammad Ibrahim Iqbalbhai Shaikh, PW 8, Exh 38 had an eating joint in the area and according to the prosecution, have witnessed the incident. He also turned hostile and did not support the prosecution. 15. Vinayakbhai Gordhanbhai Patel, PW 16, Exh 67 had recorded in the statements of witnesses Mohammad Irfan Iqbalbhai Shaikh and Mohammad Ibrahim Iqbalbhai Shaikh, who are brought from Surat by Police Sub-Inspector Shri Shaikh. He had taken-over investigation from 17.11.2003 when PI Shri Gamit had gone on leave due to illness. Through him, the prosecution had sought to bring in the contradictions in the police statements of these witnesses. 16. He had taken-over investigation from 17.11.2003 when PI Shri Gamit had gone on leave due to illness. Through him, the prosecution had sought to bring in the contradictions in the police statements of these witnesses. 16. Ravindrabhai Damabhai Gamit, PW 18, Exh 17 was the PI of Kalupur police station. He was present when Usmangani was brought before the police station for lodging FIR. He had sent him for treatment to the hospital. He referred to the FIR lodged by Shri Sonavane. He had sent a yadi for recording a dying declaration of Madanlal. In the cross-examination, he agreed that such dying declaration was recorded by the Executive Magistrate. During investigation, he had also read the dying declaration. The defence wanted the dying declaration to be exhibited which the learned Judge at this stage refused permitting the defence to examine the concerned Executive Magistrate for such purpose. 17. Gopalsinh Jagatsinh Barad, PW 20, Exh 78 was the Police Inspector of Sabarmati police station. He was given temporary charge of Kalupur police station on 18.11.2003 on which date, he had recorded the statements of three witnesses Deepal, Ganshyam and Ilesh Shah. In the cross-examination, he was grilled on being given charge of Kalupur police station though Sabarmati area of which he was a Unit Police Inspector was not contagious to the said region and several other areas of police stations abutted areas of Kalupur. 18. The defence examined one Mohammad Yunus Abbasbhai Mansuri, DW 1, Exh 88. He was Executive Magistrate, Ahmedabad. He had recorded the dying declaration of Madanlal on the morning of 10.11.2003. He produced such dying declaration at Exh 90. He deposed that when he went to the burns ward, no doctor was present there. He had not taken the endorsement of the doctor before or at the end of the dying declaration that the patient was conscious. In the dying declaration Exh 90, Madanlal is supposed to have stated that he was going from Kalupur to Laldarwaja in an auto rickshaw. Somewhere on Relief road, he was dragged out from rickshaw and beaten. The mob had also tried to set him on fire. Some unknown people saved him, put him on a paddle rickshaw and brought to the hospital. 19. This, in the nutshell, is the evidence on record. Somewhere on Relief road, he was dragged out from rickshaw and beaten. The mob had also tried to set him on fire. Some unknown people saved him, put him on a paddle rickshaw and brought to the hospital. 19. This, in the nutshell, is the evidence on record. The learned Trial Judge, on the basis of such evidence, convicted four of the original accused for offence under section 302 of IPC who are Amjadkhan Nawabkhan Pathan, accused No. 3 (Sessions Case No. 149/2004), Mohammad Sharif @ Gabbar Abdulhaq Akubhai Qureshi, accused No. 3 (Sessions Case No. 261/2004), Mohammad Imran Mustakim Ansari, accused No. 3 (Sessions Case No. 98/2006) and Ismail @ Pango Usmangani Shaikh, accused No. 7 (Sessions Case No. 219/2006). They were sentenced to imprisonment for life for such offence. The learned Judge also convicted besides these four accused, Tajjuddin @Bhuriyo Mayuddin Malek, accused No. 1 (Sessions Case No. 142/2005), Mohammad Habib @ Mama Abdul Rehman Hakimji, accused No. 4 (Sessions Case No. 98/2006), Mohammad Arif Allarakhabhai Memon, accused No. 5 (Sessions Case No. 219/2006) and Mohammad Imran Allarakhabhai Memon, accused No. 6 (Sessions Case No. 219/2006) for lesser offence i.e. sections 143, 147 and 148 of IPC and sentenced them to imprisonment ranging from six months to three years. This judgement has been challenged by all four murder convicts. Criminal Appeal No. 2325 of 2005 was filed by Irfan Mehboobkhan Pathan, accused No. 4 (Sessions Case No. 149/2004). He, however, withdrew the appeal since he had served out the sentence. Some of the accused have not appealed before us. 20. The learned Sessions Judge recorded that Dineshbhai Vinodbhai Nayak, PW 11 was the solitary witness to the incident of killing of Poras Mehta. She has placed heavy reliance on the evidence of this witness to convict the four accused for having caused the death of Poras. She also relied on the other two civilian witnesses Deepal and his companion Ganshyam. She also found the evidence of the police officers reliable with respect to identification of the different accused present in the mob through these witnesses. The learned Judge believed that they were part of unlawful assembly. Without so stating the learned Judge obviously did not believe the common object of this unlawful assembly was to commit murder. She also found the evidence of the police officers reliable with respect to identification of the different accused present in the mob through these witnesses. The learned Judge believed that they were part of unlawful assembly. Without so stating the learned Judge obviously did not believe the common object of this unlawful assembly was to commit murder. It was, therefore, that she convicted the four accused for offence of murder against whom, according to her, reliable evidence of overt acts was available. The rest of the accused were convicted for being part of an unlawful assembly. We may recall the State has not challenged, this judgement of the learned Sessions Judge and, to the extent of discarding the prosecution version of the common object of the unlawful assembly of committing murder the issue is accepted by the prosecution. 21. We, therefore, have seven appeals filed by the following accused which are as under: 1 Criminal Appeal No. 2226 of 2005 Mohammad Sharif @ Gabbar Abdulhaq Akubhai Qureshi 2 Criminal Appeal No. 2228 of 2005 Amjadkhan Nawabkhan Pathan 3 Criminal Appeal No. 1310 of 2007 Mohammad Imran Mustakim Ansari 4 Criminal Appeal No. 1063 of 2007 Tajuddin @ Bhuriyo Mayuddin Malek 5 Criminal Appeal No. 1064 of 2007 Mohame Habib @ Mama Abdul Rahiman Hakimji 6 Criminal Appeal No. 1474 of 2007 Mohamed Arif Allarakhabhai Memon 7 Criminal Appeal No. 1318 of 2007 Ismail @ Pango Usmangani Shaikh 22. At this stage, we may assess the evidence on record. As noted, principally, the evidence can be divided into two parts. The evidence of the members of the public and the evidence of the police witnesses. Insofar as the incident and the genesis for the same is concerned, there can be little doubt in anybody's mind. Witnesses after witnesses pointed out that one Usmangani who was stabbed near calico dome area with the sharp weapon was brought before the Kalupur police station by a group of persons belonging to Muslim community. They were highly agitated and demanded recording of FIR and arrest of culprits immediately. Shri Gamit, Police Officer present at the Kalupur police station tried to explain to them that it was more important to ensure medical treatment to the patient. He first ensured taking the injured to civil hospital in a police van and tried to pacify the crowd. The members of the crowd were, however, not pacified. Shri Gamit, Police Officer present at the Kalupur police station tried to explain to them that it was more important to ensure medical treatment to the patient. He first ensured taking the injured to civil hospital in a police van and tried to pacify the crowd. The members of the crowd were, however, not pacified. They were shouting and soon started pelting stones. The police had to resort to lathi charge and even lobbing of tear gas shells. This repelled the crowd but did not completely disperse it. The mob went in three different directions. Near Kalupur tower, an ugly incident took place where one motorcyclist Poras was beaten and then burnt to death. Another passenger in an auto rickshaw Madanlal was dragged out and thrown in the fire causing serious injuries. 23. As soon as these incidents were reported to the police officers, they rushed to the site. 25 to 30 policemen tried to control of the situation. They found that one person in severely burnt condition was in fire. Another person was lying already dead out of burns. The question is of involvement and identification of the accused whose roles can be identified. As noted, since the learned Sessions Judge has discarded the theory of murder in the common object of the unlawful assembly, only if the role of any of the accused is found through reliable evidence, their conviction for offence under section 302 can be sustained. On the other hand, we are not prepared to accept the defence version that the presence of any person by itself would not indicate him being a member of unlawful assembly. This was sought to be highlighted on the premise that the area was densely populated. The month was of Ramzan. After night prayers many people would be on the street, shopping and enjoying street food. Merely because a person was cited there, according to the defence, would not imply his being part of an unlawful assembly. This theory begs the question that the incident did not happen in the spur of the moment but as a sequel to the altercation with the police officers at Kalupur police station. When the police resorted to use force to disperse the mob, part of it went towards Kalupur tower. This theory begs the question that the incident did not happen in the spur of the moment but as a sequel to the altercation with the police officers at Kalupur police station. When the police resorted to use force to disperse the mob, part of it went towards Kalupur tower. The incident of stopping the motorcyclist, identifying as belonging to a particular community, beating him, pouring petrol from his motorcycle and setting on fire followed by stopping an auto rickshaw, dragging a passenger and also trying to burn him alive would certainly take sometime. If any person was a mere bystander, a passerby or even a curious observer he had enough time and reason to leave the place. If, therefore, there is any reliable evidence from any of the witnesses pointing to the presence of any of the accused in such mob which undoubtedly had, as correctly held by the learned Judge, formed unlawful assembly, his conviction to that extent shall have to be upheld. 24. With this background, we may refer to the specific evidence. Since Dineshbhai Vinodbhai Nayak, PW 11, Exh 44 is the principal and sole witness who claims to have witnessed the incident of attack and burning of Poras Mehta, we may first refer to his testimony. We may recall, he claims to be a friend of Poras Mehta. According to him, he had accompanied Poras Mehta to his in-laws' place at Bapunagar. While returning, near Kalupur tower they saw a mob. He asked Poras to apply brakes to the motorcycle upon which, the motorcycle slipped. He jumped from the motor cycle and therefore escaped the mob. Poras was caught by the mob. After ensuring that he belonged to Hindu community, he was first beaten and then set on fire with the help of petrol from his own motorcycle. This person also claims to have seen and identified certain accused in the mob. For several reasons mentioned here-in-after, we do not find the testimony of this witness reliable. Firstly, he could not, in any manner, establish his familiarity with Poras. He did not know when Poras had got married, what is the name of his wife. Though Poras, according to this witness, had married barely a year before the incident, he was not invited for such marriage. Firstly, he could not, in any manner, establish his familiarity with Poras. He did not know when Poras had got married, what is the name of his wife. Though Poras, according to this witness, had married barely a year before the incident, he was not invited for such marriage. He also could not support his presence at Bapunagar at Poras's in-laws' place though he stated that Poras went out with his wife and child leaving him alone for over half an hour. He claimed that he had not met anybody during such time. Even the route, which according to him, he and Poras had taken on the night of the incident, was not logical. In the cross examination, he agreed that from Bapunagar to go towards Bhadrakali, the road via zaveri vad is shorter and wider. He could not explain why therefore they had taken the route via Kalupur tower. Most importantly, however, it is his conduct which does not fit the natural human tendencies. After such a ghastly incident, which he claimed to have witnessed, where his own friend was subjected to a murderous attack by a mob, he simply left the city to go to his uncle's place at Kadi that very night without informing anybody whatsoever about such an incident. Throughout his stay at Kadi for nearly ten days, he neither informed his relatives nor the local police, nor the police at Ahmedabad about him being a witness to such a crime. His statement was recorded on 18.11.2013 i.e. nearly nine days later. It was only to explain this delay that this witness claimed the theory of having gone away to Kadi which simply defies logic. Last but not the least, we are also not convinced about the manner in which, he claimed to have seen the incident. If we go by his account, he realized that the mob was of the other community and had murderous intention. It was, therefore, that he asked his friend to apply the brakes to the motorcycle to such an extent that the motorcycle slipped. In such a situation, any human being would have only one of the two reactions. If he has abnormal or almost superhuman courage, he would try to run away with his friend and not leave him alone. This would, however, be most rare. In such a situation, any human being would have only one of the two reactions. If he has abnormal or almost superhuman courage, he would try to run away with his friend and not leave him alone. This would, however, be most rare. Under normal circumstances, the most natural human conduct would be to run away as far and fast as possible to safety. He did agree that the members of the mob chased him but then claimed that he stopped at a distance barely 150 yards away. This theory has two defects. Firstly, if he was standing so close to the mob there was no reason why some of the members of the mob would not have tried to catch him. Secondly, the distance of 150 to 200 yards is no mean distance from where a person can accurately see an incident and identify the process, role played by each accused in a mob of not less than 300 odd people. There are number of other improvements and contradictions in this version from the police statement that he had given. For all these reasons, we need to discard the testimony of this witness. 25. Depositions of Ghanshyambhai Nayak, PW 14 and Deepalbhai Shah, PW 15 also raise multiple doubts. These witnesses together with their third friend Ilesh Shah claimed to be going on their motorcycle for snacks late at night when they came across the mob. These persons had not seen any attack either on Poras or on Madanlal by the mob but claimed to have identified some of the accused as part of unlawful assembly. These persons claimed to have passed by Kalupur police station before reaching the place of incident. Both these persons claimed that they had noticed nothing untoward at Kalupur police station nor had seen any evidence of lobbing of tear gas shells. This is a strong factor which raises a serious doubt about their presence at the scene of the incident, as claimed. We may recall, it was at the Kalupur police station where the trouble had first started. Crowd of Muslim community had protested against the police not recording the FIR of attack on Usmangani. This followed by stone pelting and lobbing of tear gas shells by the police. This happened minutes before the part of the mob went towards Kalupur tower where the ugly incident took place. Crowd of Muslim community had protested against the police not recording the FIR of attack on Usmangani. This followed by stone pelting and lobbing of tear gas shells by the police. This happened minutes before the part of the mob went towards Kalupur tower where the ugly incident took place. If the three, as claimed by the witness, had passed through Kalupur police station, it was impossible that they would not have noticed some fresh trouble at the spot. The stones thrown by the mob and the evidence of tear gas shells would be all too visible for anyone to miss. Their entire version of having passed through this area to reach Kalupur tower, therefore, is belied. Even otherwise, the identification of the accused before the Court by these witnesses does not inspire confidence. We may recall, the police never called these witnesses for test identification parade. May be the witnesses had given names of some of the accused; nevertheless when relatively unknown witnesses claimed to have identified presence of some of the accused in a mob of nearly 300 people which mob had nasty intentions and the witnesses were trying to escape from the clutches of such mob even to inspire confidence in the investigation, their test identification parade would have been a perfect tool. This is not to suggest that in absence of test identification parade identification of the accused by the witnesses in no case would be valid. It is only to suggest that in facts of the present case non-conducting of the test identification parade throws one more doubt about the ability of these two witnesses to identify the accused. Additionally, Ghanshyambhai Nayak, PW 14 though had given names of accused in his police statement when he came for identification before the Court recognized the accused by faces without referring to the names. Their explanations for knowing the accused beforehand were also not dependable. They had no occasion to interact with these accused previously. The witnesses and the accused resided in an extremely thickly populated area of the city where thousands of people belonging to both communities lived since centuries. The identification of some of the persons in the mob by the witnesses had to have some background or familiarity in the past. 26. We may now advert to the police witnesses. The witnesses and the accused resided in an extremely thickly populated area of the city where thousands of people belonging to both communities lived since centuries. The identification of some of the persons in the mob by the witnesses had to have some background or familiarity in the past. 26. We may now advert to the police witnesses. The fact that the police reached the site soon after the incident occurred is beyond cavil. The police witness referred to the fire still going on from where Madanlal was dragged out and Poras was found dead. We have no reason to disbelieve several police witnesses pointing to these aspects. Though defence tried to suggest that Madanlal did not receive injuries at that place, we are unable to accept such a contention. Heavy reliance was placed on the dying declaration of Madanlal. However, an isolated statement of this person would not destroy the entire prosecution version and the testimony of several witnesses. Firstly, Dr. Mustaq Ahmed Gulam Rasool Shaikh, PW 19, Exh 75 who had treated Madanlal had stated that the history was given by the police constable as the patient was unable to speak. This may be seen in light of the deposition of Shri Mohammad Abbasbhai Mansuri, DW 1 who agreed that he had not taken the help of a doctor to certify that the patient was conscious and able to give his statement. He clarified that no doctor was available at the burns ward when he went there. At any rate, Madanlal would have been under highly dizzy condition when his dying declaration was being recorded by the Executive Magistrate. His one line statement that he was brought to the hospital in a paddle rickshaw, therefore, would not be sufficient to destroy the evidence of several eyewitnesses suggesting that he was dragged out from the fire by the police party. Unfortunately, we are informed that during pendency of the trial Madanlal expired and was therefore not available for giving his evidence. 27. PW 1 Shri Sonvane, had referred to six accused in the FIR itself as being part of a mob who were running away when the police arrived near Tinlimbdi masjid where the burning incident has taken place. Unfortunately, we are informed that during pendency of the trial Madanlal expired and was therefore not available for giving his evidence. 27. PW 1 Shri Sonvane, had referred to six accused in the FIR itself as being part of a mob who were running away when the police arrived near Tinlimbdi masjid where the burning incident has taken place. Before the Court, however, he identified two accused who had no connection with these cases and were accused in Sessions Case No. 159 of 2009 which was the completely unconnected trial. He identified accused Nos. 1, 2, 4 and 5 of Sessions Case No. 149 of 2004 before the Court but not by name. As identification of these accused therefore, would be highly unsafe to rely upon, more so, since he admitted that he was posted in Kalupur police station barely five months before the incident. This witness, therefore, did not have sufficiently long time in the area to be able to cultivate familiarity with the local residents and at random be able to identify some of them. More importantly his identification before the Court was defective. He identified completely unrelated accused and the rest were identified without referring to their names when he had given names of these persons in his FIR. 28. PW 3 Khumansinh Masukhbhai, Exh 31 had successfully identified before the Court Salimbhai Chandbhai accused No. 1 (Sessions Case No. 149/2004) and Abdul Kadar Pir Mohammad Shaikh, accused No. 2 (Sessions Case No. 149/2004). PW 4 Savjibhai Nemaji had identified Mohammad Habib @ Mama Abdul Rehman Hakimji, accused No. 4 (Sessions Case No. 98/2006), Tajuddin @ Bhuriyo Mayuddin Malek, accused No. 1 (Sessions Case No. 142/2005), Salimbhai Chandbhai Mansuri, accused No. 1 (Sessions Case No. 149/2004), Shaikh Amar Alimiya Arab accused No. 2 (Sessions Case No. 205/2005). Significantly, he had given their addresses and, in some cases, their occupation also. For example, in case of Salimbhai Chandbhai, he had stated that he is a resident of Kalupur mutton market and was engaged in furniture business. Regarding Shaikh Amar Alimiya Arab, he had referred to as a resident of Kazi mohalla, Dariyapur and having a pan shop at Tinlimbdi. Identification of these witnesses as also of Khumansinh Mansukhbhai, PW 3 cannot be discarded. He had no reason to falsely implicate these accused. He was posted in the police station since some time as police official. Regarding Shaikh Amar Alimiya Arab, he had referred to as a resident of Kazi mohalla, Dariyapur and having a pan shop at Tinlimbdi. Identification of these witnesses as also of Khumansinh Mansukhbhai, PW 3 cannot be discarded. He had no reason to falsely implicate these accused. He was posted in the police station since some time as police official. He would therefore have reason to interact and mix with people from different communities. His familiarity with the locations and vocation of the identified accused would further lend credence to his identification. 29. PW 5, Kishorkumar Jagdale identified Irfan Mehboobkhan Pathan, accused No. 4 (Sessions Case No. 149/2004), though he claimed to have seen co-accused Babu Shakur, at one stage, since Babu Shakur was absconding, there was no question of identifying him. It was only later on when the Public Prosecutor realized that Babu Shakur was not an absconding accused, he urged the witness to identify him. This late identification of Babu Shakur would, therefore, not be reliable. Had the witness known the accused and was in a position to identify him, he would have certainly pointed out that Babu Shakur is also present and not absconding. 30. PW 6 Ashirali Ayubkhan had identified Abdul Salam @ Babu Abdul Shakur Shaikh, accused 6 (Sessions Case No. 149/2004), Salimbhai Chandbhai Mansuri, accused 1 of (Sessions Case No. 149/2004), Saiyed Iqbalbhai @ Bapu Hussain Saiyed, accused No. 2 (Sessions Case No. 261/2004), Shaikh Amar Alimiya Arab, accused No. 2 (Sessions Case No. 205/2005). He had also given the exact residential locations of these accused. His testimony, therefore, insofar as the presence and identification of these accused is concerned, would be acceptable and relevant. 31. PW 9 Anilbhai Avchitbhai had identified Saiyed Iqbal @ Bapu Saiyed Hussain Saiyed, accused No. 2 (Sessions Case No. 261/2004), Amjadkhan Nawabkhan Pathan, accused No. 3 (Sessions Case No. 149/2004), Kadarbhai Hafijbhai Frywala. Vishnukumar Govindbhai Parmar, PW 10 identified Tajuddin @ Bhuriyo Mayuddin Malek, accused No. 1 (Sessions Case No. 142/2005) and Mohammad Hussain @ Kalio Fakir Mohmad Salat, accused No. 5 (Sessions Case No. 149/2004). 32. Testimony of these police witnesses on the presence and identification of the accused is to be accepted. To begin with we have in fact that the police party reached the incident soon after or in fact when the assault on Madanlal was still going on. 32. Testimony of these police witnesses on the presence and identification of the accused is to be accepted. To begin with we have in fact that the police party reached the incident soon after or in fact when the assault on Madanlal was still going on. Had the police not reached on time perhaps Madanlal would have met with the same fate as Poras. These police officers were posted at Kalupur police station since considerable time as police officers, they would come in contact with large number of members of the public. If therefore they could identify some of the members present there we have no reason to doubt or disbelieve their statements. They had no reason to falsely implicate the accused. Many of these witnesses have given the detail locations and in some cases even occupation of the accused persons. Insofar as the identification of the above mentioned accused are concerned their presence and part of an unlawful assembly is duly established. We have already given our reasons for rejecting the defence's version that any innocent bystander or curious observer could also be stopped at the place of the incident we need not repeat our reasons for such conclusions. 33. The sum total of our discussion is if on one hand we find insufficient evidence of direct involvement of any of the accused in playing an overt act of committing the offence of murder punishable under section 302 of Poras or attempt to murder Madanlal punishable under section 307 of IPC. However, the accused whose identification are successfully done by the reliable witnesses, must be convicted for being part of unlawful assembly. To recapitulate, Salimbhai Chandbhai Mansuri, accused No. 1 (Sessions Case No. 149/2004) was seen and identified by PW 3, PW 4 and PW 6, Abdul Kadar Pir Mohmadbhai Shaikh, accused No. 2 (Sessions Case No. 149/2004) was identified by PW 3 and PW 9, Mohmed Habib @ Mama Abdul Rehman Hakimji, accused No. 4 (Sessions Case No. 98/2006) was identified by PW 4. Tajuddin @ Bhurio Mayuddin Malek, accused No. 1 (Sessions Case No. 142/2005) was identified by PW 4 and PW 10. Shaikh Amar Alimiya Arab, accused No. 2 (Sessions Case No. 205/2005) identified by PW 4 and PW 6. Irfan Mehboobkhan Pathan, accused No. 4 (Sessions Case No. 149/2004) identified by PW 5. Tajuddin @ Bhurio Mayuddin Malek, accused No. 1 (Sessions Case No. 142/2005) was identified by PW 4 and PW 10. Shaikh Amar Alimiya Arab, accused No. 2 (Sessions Case No. 205/2005) identified by PW 4 and PW 6. Irfan Mehboobkhan Pathan, accused No. 4 (Sessions Case No. 149/2004) identified by PW 5. Abdul Salam @ Babu Abdul Shakur Shaikh, accused No. 6 (Sessions Case No. 149/2004) identified by PW 6. Iqbal Hussain @ Iqbal Bapu, accused No. 2 (Sessions Case No. 261/2004) identified by PW 6 and PW 9. Amar Shaikh, accused No. 2 (Sessions Case No. 205/2005) identified by PW 4 and PW 6. Amjadkhan Nawabkhan Pathan, accused No. 3 (Sessions Case No. 149/2004) identified by PW 10. 34. Conviction and sentence of these accused by the learned Sessions Judge for offence under sections 143, 147 and 153 read with section 149 of IPC is confirmed whereas conviction and sentence of the concerned accused under section 302, 307, 395, 453 read with section 149 cannot be sustained. However, we find that Mohammad Imran Mustakim Ansari, accused No. 3 (Sessions Case No. 98/2006) and Ismail @ Pango Usmangani Shaikh, accused No. 7 (Sessions Case No. 219/2006) have not been identified by any of the police witnesses. Their conviction, therefore, will have to be set aside. 35. In the result, Criminal Appeal No. 2226 of 2005 and 2228 of 2005 are partly allowed. Insofar as conviction and sentences for offence under section 302, 307, 395, 453 read with section 149 is concerned the same is set aside. Their sentences however, under sections 143, 147, 153 read with section 149 are confirmed. It appears that all these accused have already served out sentence in excess of what we have confirmed before they were granted bail. If however, there is any accused who has not served the full sentence as confirmed by this Court, he will surrender for serving the remaining sentence latest by 15.03.2017. 36. Criminal Appeals No. 1310 of 2007, 1318 of 2007 and 1074 of 2007 are allowed. Conviction and Sentence of the respective accused are set aside. 37. Rest of the appeals are dismissed. The judgments of the Sections Court are set aside in part. All appeals are disposed of accordingly. R & P to be transmitted to the Trial Court. Bail of the accused on bail stands cancelled. Conviction and Sentence of the respective accused are set aside. 37. Rest of the appeals are dismissed. The judgments of the Sections Court are set aside in part. All appeals are disposed of accordingly. R & P to be transmitted to the Trial Court. Bail of the accused on bail stands cancelled. They would, however, have time upto 15.03.2017 to surrender to serve out the remaining sentence.