JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals involve in all four accused, all of whom have been convicted by the learned Additional Sessions Judge, Surat, for offence of murder and other offences and sentenced to life imprisonment by the impugned judgment dated 10.1.2013 passed in Sessions Case No. 217/2006 and 251/2006. Though there are two separate Sessions cases, the accused are referred in continuous accused numbers and that is how we would continue to address them. 2. Briefly stated, the prosecution version was that Vinod Amarsing Maurya accused No. 1 and Pramod Amarsing Maurya accused No. 2 were brothers. Satish alias Tipu Surendranath Gupta accused No. 3 and Dinesh Narayan Mahajan accused No. 4 were their friends and residents of the same locality. Deceased Shankarsing Nandkishoresing was a professional money lender. He had lend seizable amount to Vinod Maurya and Pramod Maurya. On the date of the incident i.e. on 1.7.2006 at about 9 O' clock at night, Shankarsing was called by these accused. Shankarsing went there with his companion Ravichandra and Pintoo. Soon after this, three people arrived at the appointed place. The four accused and other people who had gathered there, first pelted stones at them and when all these people fell down from their motorcycles, Vinod Maurya accused No. 1 stabbed Shankarsing several times on his stomach causing serious injuries. Pramod Maurya accused No. 2 injured Ravichandra. Pintoo also received injuries at the hands of accused No. 3 and 4 and other persons present. All the three were left bleeding on the ground. The police arrived and rushed them to a hospital where shortly Shankarsing died. 3. A charge was framed under exh.7 alleging that the four accused had committed offences punishable under sections 147, 148, 149, 338, 302, 307, 325, 504 and 118 of the IPC. Though the charge itself referred to involvement of four and, therefore, reference to the formation of unlawful assembly and offences committed by such assembly would appear somewhat incongruent, the prosecution evidence, particularly, that of Ravichandra, would suggest that there was a crowd of more than 10 people who had participated in the assault. Thus when the charge refers to formation of unlawful assembly and offences committed by members of such assembly in furtherance of its common object, while charging only four accused, this is only a technical defect. 4. We may record the gist of the evidence. Thus when the charge refers to formation of unlawful assembly and offences committed by members of such assembly in furtherance of its common object, while charging only four accused, this is only a technical defect. 4. We may record the gist of the evidence. Several witnesses who were supposed to have seen the incident turned hostile and did not support the prosecution. These witnesses would include Prahlad Mahamul Gupta PW-9 exh. 53, Rajbir Ramlakshman PW-10 exh. 54, Subersing Sardarsing Rajput PW-12 exh. 57 and Rajendra Prasadsinh PW-13, exh. 64. 5. Vijaykumar Nandkishoresing, PW-14, exh. 69, the brother of the deceased had no personal information. He could give no first hand useful information except that upon being informed about the incident on telephone, he rushed to the place near Kiran Motors and found his brother Shankarsing and his companion Ravichandra lying on the ground covered with blood. 6. It appears that Pintoo, the companion of deceased Ravichandra had at the first available opportunity escaped and was not traceable for recording his evidence before the trial Court. The eyewitness account of the incident thus is confined to that of Ravichandra Jaykaranprasad Yadav, PW-19, exh. 124. He was also the first informant who had filed FIR exh. 125. In his deposition, the witness stated before the Court that he was working for deceased Shankarsing. In the evening when he was on duty, Shankarsing received a call on his mobile. After the call was over, Shankarsing told him that it was a call from Vinod Maurya. He and Shankarsing thereupon started on their respective motorcycles to go to Panchsheel Nagar. On the way, they met Shankarsing's friend Pintoo and also took him along with them. Near Kiran Motors, accused No. 1 Vinod Maurya and accused No. 2 Pramod Maurya told them that he would return with money. After going some distance, he hit Shankarsing with a stone and then stabbed him with a sharp instrument on the stomach. When the witness tried to run away, accused No. 2 Pramod and others caught him and then Pramod Maurya and Vinod Maurya both had given blows to him with their sharp instruments. Someone called the police who soon arrived and took all the three of them to the hospital where Shankarsing died. He himself was taken to a private hospital next day. Someone called the police who soon arrived and took all the three of them to the hospital where Shankarsing died. He himself was taken to a private hospital next day. He identified accused No. 1 and 2 before the Court by name but did not know the names of accused No. 3 and 4. In the cross examination, it was suggested that he and others had gone to collect money and in the process entered some private houses and enraged large number of people, upon which, a crowd of 100 people had gathered and beaten them up. He however denied such suggestions. The defence also tried to suggest that there were many other people in the crowd and it was therefore, not possible for the witness to attribute any particular role to any of the accused. He agreed that accused No. 3 and 4 were never offered for test identification parade. Though he agreed that Shankarsing was engaged in money lending, denied that he charged exorbitant interest. 7. Sanjay Kedarlal Gupta, PW-1, exh. 13, had carried out the postmortem which he had produced at exh. 14. In the postmortem note, he had recorded the following external injuries : "(1) Abrasion present over Right side of face, 4 cm x 2 cm in size, situated just below the R eye and close to R area of nose, red in colour. (2) Red colour abrasion, 3 cm x 1.5 cm in size, present over R side, outer aspect of face, 8 cms R to midline, 1 cm below the outer cantus of R eye. (3) Abrasion present over, outer aspect of R side of neck, 5 cm x 1 cm in size, situated 10 cms R to midline, Red in colour. (4) Stab wound present over, left side, upper part of abdomen, frontal aspect, 4 cm x 1 cm x cavity deep, situated 10 cms L to midline, 112 cm above the L heel inner angle- Acute, outer-blunt intestine protruding. (5) Stab wound, 6 cm x 1 cm, muscle deep, present over left side, lower part, front of abdomen, 8 cm L to midline, 10 cm above the L heel. Inner angle-acute, outer blunt. (6) Stab wound, 5 cm x 1 cm x cavity deep, present over front and middle part of abdomen in midline, 3 cms below the umbilicus, inner angle-Acute(right angle), left angle-blunt, intestine protruding. Inner angle-acute, outer blunt. (6) Stab wound, 5 cm x 1 cm x cavity deep, present over front and middle part of abdomen in midline, 3 cms below the umbilicus, inner angle-Acute(right angle), left angle-blunt, intestine protruding. (7) Stab wound, 4 cm x 1 cm x cavity deep present over back of left side and upper part of abdomen, 12 cm L to midline, 114 cms above the L heel, inner angle-blunt outer angle - Acute." Corresponding to such external injuries, he noted the following internal damages : "Corresponding to ext, injury No. 7, stab wound passing through 11th inter costal space on L side and extending upto back of L kidney. Corresponding to ext injury No. 4, stab would passing through by cutting 7th rib, piercing descending colon & mesentery, extending upto ant surface lower part of kidney of L side in direction of upward, backward toward medially. Corresponding to ext. injury No. 6, stab wound passing to abdominal wall piercing transverse colon and mesentery. Abdominal cavity contain about 500cc blood in direction of upward, backward, toward medially." 8. Dr. Sejal Pravinchandra Bhathavala, PW-11, exh. 55, had produced the medical papers concerning the treatment of Ravikumar at exh. 56. On the basis of such papers, he pointed out that the patient had suffered stab injuries on 10th 11th and 12th level of spinal cord which had caused paralysis on both the legs. The right leg was fractured. Some of the documents could not be produced because of destruction due to floods. 9. Murder weapon knife was discovered at the instance of accused No. 1 under panchnama exh. 50. Panch witness Chunnukumar Shritrilok Prasadsing, PW-7, exh. 48, supported the prosecution. The panchnama shows that the said accused led the panch witness and the police party to an isolated place from where inside the babul bushes, a knife was brought out which was recovered. Like-wise, at the instance of accused No. 2, knife was discovered under panchnama exh. 43. Panch witness Ramavtar, PW-6, exh. 42, turned hostile but admitted his signatures on the panchnama. Such discovery was also referred to by the investigating officer Mahendrasing Ratansing Rathod PW-20, exh. 139 in his deposition. 10. Various articles collected during the course of investigation was sent for Forensic analysis. Serological report exh. 43. Panch witness Ramavtar, PW-6, exh. 42, turned hostile but admitted his signatures on the panchnama. Such discovery was also referred to by the investigating officer Mahendrasing Ratansing Rathod PW-20, exh. 139 in his deposition. 10. Various articles collected during the course of investigation was sent for Forensic analysis. Serological report exh. 146 would show that the deceased had blood group 'B' which was found from his clothes and the scene of the incident. This in the nutshell is the evidence on record. 11. On the basis of such evidence, learned advocate Shri B.C. Dave for the appellants submitted that there was no iota of evidence against original accused No. 3 and 4. Their conviction was erroneously recorded. So far as accused No. 1 and 2 are concerned, in addition to arguing that their roles were not clearly established, in the alternative, he submitted that in any case, this is a case of sudden fight and conviction under section 302 of the IPC was any way not justified. 12. On the other hand, learned APP Ms. Jirgha Jhaveri opposed the appeals contending that there was sufficient evidence to establish the guilt of all the accused who had along with others formed an unlawful assembly. Each member of the assembly therefore, would be responsible for the action of others committed in furtherance of the common object of such unlawful assembly. 13. From the evidence on record, it becomes immediately clear that the case substantially rests on the version of sole eyewitness Ravichandra PW-19. His presence at the scene of the incident, cannot be doubted and has in fact, not been seriously disputed. We may recall, Vijaykumar PW-14, brother of the deceased, had rushed to the scene of the incident shortly after the incident, upon being informed about it on the telephone. When he rushed there, he stated that his brother as well as Ravichandra both were lying on the ground profusely bleeding. Ravichandra had received serious injuries. This has been brought on record through his own testimony. Additionally, we have limited documents of his treatment produced by Dr. Sejal Bhathavala, PW-11. According to him Ravichandra had serious injuries on the spinal cord and also fracture on the leg. The injury on the spine was caused with a sharp edged instrument. Ravichandra had received serious injuries. This has been brought on record through his own testimony. Additionally, we have limited documents of his treatment produced by Dr. Sejal Bhathavala, PW-11. According to him Ravichandra had serious injuries on the spinal cord and also fracture on the leg. The injury on the spine was caused with a sharp edged instrument. The fact therefore, that Ravichandra was present with the deceased on the date of the incident and was himself assaulted is beyond any doubt. 14. In this background, we may appreciate his evidence. According to this witness, his employer Shankarsing who was dealing in money lending, the accused owed him sizeable amount of couple of lakhs of rupees. On 1.7.2006, Shankarsing took Ravichandra and later his friend Pintoo to the place where the accused had called them. As soon as they reached the place they were first assaulted with stones. It was Vinod Maurya accused No. 1 who stabbed Shankarsing couple of times on the stomach. Vinod Maurya and Pramod Maurya both assaulted Ravichandra also. Pintoo had also received, according to this witness, injuries. 15. Before we deal with the roles of accused No. 1 and 2, we can complete discussion on the involvement of accused No. 3 and 4. None of the witnesses, not even Ravichandra PW-19 has referred to any specific role of either of these accused. Their identification itself is doubtful. The witness did not know them. He could only therefore, identify them before the Court by their faces but not by their names. The incident took place at 9 O' clock at night. According to the witness, there was a crowd of more than 10 people present. Conducting test identification parade was therefore, extremely important which in the present case was not done. Identification by the witness before the Court long time later therefore, would not inspire confidence. On this twin grounds namely, the doubtful identification of the accused No. 3 and 4 and no specific role having been attributed to them by the witness, they deserve to be acquitted. 16. Coming to the role of accused No. 1 and 2, in our opinion, there is ample evidence of their total involvement. To begin with, Ravichandra PW-1 has given specific account of the role played by each accused. 16. Coming to the role of accused No. 1 and 2, in our opinion, there is ample evidence of their total involvement. To begin with, Ravichandra PW-1 has given specific account of the role played by each accused. Both of them were wielding knives and actually used them with more telling effect on deceased Shankarsing and quite seriously also on Ravichandra. According to the witness, it was Vinod Maurya accused No. 1 who had given blows to Shankarsing. 17. The evidence of this witness gets corroboration from the medical evidence of Dr. Sanjay Gupta PW-1. The postmortem note shows four stab injuries on the stomach, three of them were serious. The witness himself received stab injuries. Weapons were discovered at the instance of the respective accused. The involvement of these accused is thus duly established. 18. It may be argued that it is only accused No. 1 who had given fatal blows and when the theory of formation of unlawful assembly itself is not proved, accused No. 2 at-least cannot be convicted for offence of murder. However, we cannot shut our eyes to the manner in which the incident took place. Shankarsing and his companion were specifically called to the scene of the incident by the accused over the promise of returning the money. As soon as they reached the place, accused No. 1 threw stones and then stabbed Shankarsing three to four times on his stomach. His brother also joined the assault and attacked the witness Ravichandra. The manner in which the incident took place and the attack was carried out would show that the two accused had shared common intention. With the aid of section 34 of the IPC, accused No. 2 also needs to be convicted for offences under sections 302 and 307 of the IPC. 19. In the result, appeals are disposed of in the following manner : "(1) Criminal Appeal No. 373/2013 filed by the original accused No. 3 and 4 is allowed. Their conviction and sentence for all the offences, is reversed. Their bail bonds stand cancelled. (2) In Criminal Appeal No. 374/2013 filed by original accused No. 1 and 2, their conviction for offences punishable under sections 302, 307, 325, 338, 188, 504 read with section 34 of the IPC is confirmed. Their conviction and sentence for all the offences, is reversed. Their bail bonds stand cancelled. (2) In Criminal Appeal No. 374/2013 filed by original accused No. 1 and 2, their conviction for offences punishable under sections 302, 307, 325, 338, 188, 504 read with section 34 of the IPC is confirmed. Their conviction for offences punishable under sections 147, 148, and 149 is reversed." They shall for offence punishable under section 302 read with section 34 of the IPC serve out the sentence. For offence under section 307 read with section 34, their sentence of seven years is confirmed. The sentences shall run concurrently. No separate sentence needs to be imposed for remaining offences. Direction for payment of fine of Rs. 10,000/- remains unchanged. They would serve default sentence of six months in case fine is not paid. R& P may be sent back to the concerned trial Court.