JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of a common judgement dated 20.05.2013 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No. 27 of 2010. 2. The prosecution case in brief was that deceased Narendrasinh Bhikhubha Zala lived in the same locality as Dilipbhai Pandit, father of accused No. 1. Said Dilipbhai had spoken to one Heenaben, resident of the same complex making indecent reference. Heenaben's husband had taken up this issue with Dilipbhai. Narendrasinh came to know about this episode and admonished Dilipbhai for such indecent talk. It appears that Narendrasinh even beat up Dilipbhai in the late evening of 09.06.2009. On the same night at about 10:30 when Narendrasinh was passing through Gokuldham area of Rajkot, Yagnesh @ Lalo, son of Dilipbhai (accused No. 1) came there along with his friends (accused Nos. 2 to 6) in a Wagon R car and motorcycles and intercepted Narendrasinh and his friends. Yagnesh first asked who had quarreled with his father and upon finding that it was Narendrasinh, gave a knife blow in his stomach. Accused No. 2, Prakashbhai gave a blow on the head with a baseball bat. The others joined in attacking Narendrasinh and left the scene of the incident barely in a couple of minutes. A charge was therefore, framed against all accused at Exh 15 of having committed offences punishable under sections 143, 147, 148, 149, 302, 188 of IPC. The learned Trial Judge in the impugned judgment, convicted all the accused for offences punishable under sections 143, 147, 148, 149, 188 and 302 of IPC. They were sentenced to life imprisonment. Fines were also imposed. In view of this sentence, the learned Judge did not impose separate sentences for the remaining offences under sections 143, 147, 148 and 188 of IPC. Accused No. 1 has filed Criminal Appeal No. 1151 of 2013. Accused No. 2 has filed Criminal Appeal No. 1181 of 2013. Accused Nos. 3 to 5 have filed Criminal Appeal No. 847 of 2013 and accused No. 6 has filed Criminal Appeal No. 900 of 2013. 3. We may record the gist of evidence. Jaypalsinh Vanrajsinh Jadeja, PW 10, Exh 72, was the first informant and also an eyewitness. He deposed that Narendrasinh (the deceased) was his friend. On 09.06.2009 he was sitting with his friends Shailesh, Hitesh and Rajendrasinh at Kanaiya Hotel near Gokuldham. 3. We may record the gist of evidence. Jaypalsinh Vanrajsinh Jadeja, PW 10, Exh 72, was the first informant and also an eyewitness. He deposed that Narendrasinh (the deceased) was his friend. On 09.06.2009 he was sitting with his friends Shailesh, Hitesh and Rajendrasinh at Kanaiya Hotel near Gokuldham. At that time, at about 9:30, Narendrasinh called from RMC quarters and told him that he had a quarrel with his neighbour Dilipbhai so that Jaypalsinh and others should go there. Thereupon, all the four friends went on their motorcycles to the place where Narendrasinh was living and inquired about the incident. Narendrasinh told them that his neighbour Dilipbhai had misbehaved with Heenaben about 15 days earlier and the quarrel was about it. Heenaben had complained to her husband Ajaybhai about it. Ajaybhai and Dilipbhai therefore, had heated exchange of words. Matter was, however, later on resolved upon intervention of Dilipbhai's son Yagnesh and his friend Prakashgiri. Narendrasinh was angry that the matter was hushed up in this manner since it would only encourage Dilipbhai to misbehave with other women in future. Narendrasinh, therefore, scolded Dilipbhai and he even slapped him a couple of times. According to this witness, the four friends pacified Narendrasinh and took him away with them. When they reached opposite Sagar Hall on 80 ft road, one Maruti Wagon R car came and stopped in front of their vehicles. Soon a Pulsar motorcycle and a Splendor motorcycle came there. Yagnesh, accused No. 1 was on the Pulsar motorcycle. Prakashgiri Kantigiri, accused No. 2 was on the Splendor. Yagnesh @ Lalo asked them who had fought with his father Dilipbhai. Narendrasinh told him that it was he, who had a quarrel with Dilipbhai and had slapped him also. Thereupon, Lalo (accused No. 1) took out a knife from his pocket and gave a blow to Narendrasinh on the stomach. Narendrasinh fell down on the ground. Prakashgiri, accused No. 2, who was with Lalo, was carrying a baseball bat with which, he hit Narendrasinh on the head. The bat broke. After this, four or five people got down from the Wagon R car. They were shouting giving the names of Yagnesh and Prakashgiri instigating them to finish Narendrasinh. They were carrying iron pipes and wooden logs. These four or five people also assaulted Narendrasinh. After that, they ran away in their vehicles. The bat broke. After this, four or five people got down from the Wagon R car. They were shouting giving the names of Yagnesh and Prakashgiri instigating them to finish Narendrasinh. They were carrying iron pipes and wooden logs. These four or five people also assaulted Narendrasinh. After that, they ran away in their vehicles. The witness further deposed that he had called the ambulance but without waiting for the ambulance, he and his friend Shailesh took Narendrasingh to H.J. Doshi hospital where, after 15 to 20 minutes, the doctor came and told him that Narendrasinh had died. Besides the injuries on the stomach and the head, there were also injuries on the back, legs, side of the body with iron pipes and wooden logs. His FIR was recorded at the hospital which is produced at Exh 73. He identified the knife and other weapons allegedly used for commission of the offence. In the cross examination, he agreed that at the place of the incident, there is presence of people till 12:00 or 12:30 at night. At the hospital, he had given his name to the doctor but the doctor had not made any further inquiries. He was at the hospital till about 2:15 at night. Though he denied that there were as many as eight criminal cases registered against Narendrasinh, agreed that there were three or four such cases. At the hospital it was inquired who had brought Narendrasinh there, to which, he had declared that he had brought him. He identified the accused before the Court. In the FIR Exh 73 this witness had given similar version of the incident except that he had referred to the registration number of the Wagon R car as GJ 3CA 3270. 4. Shaileshbhai Pranjivanbhai Chavda, PW 11, Exh 75, was another eyewitness. He deposed that on 09.06.2009, he alongwith his friends Jaypalsinh, Hitesh and Rajendrasinh were sitting at Kanaiya Hotel when, at about 9:30 at night Narendrasinh called on the phone of Jaypalsinh and called them because he had a quarrel with Dilipbhai. All four friends, therefore, went there and asked Narendrasinh about the incident. Narendrasinh told them about Dilipbhai having misbehaved with Heenaben some fifteen days back because of which, Heenaben and her husband had a quarrel with Dilipbhai. The issue was resolved with the intervention of Yagnesh and Prakashgiri. Narendrasinh came to know about it and got angry. All four friends, therefore, went there and asked Narendrasinh about the incident. Narendrasinh told them about Dilipbhai having misbehaved with Heenaben some fifteen days back because of which, Heenaben and her husband had a quarrel with Dilipbhai. The issue was resolved with the intervention of Yagnesh and Prakashgiri. Narendrasinh came to know about it and got angry. He, therefore, had a quarrel with Dilipbhai. They stayed at Narendrasinh's place for about half an hour after which, Narendrasinh and the four friends left on two motorcycles. Narendrasinh was sitting on his motorcycle. The others were on the motorcycle of Jaypalsinh. They were going towards Kanaiya hotel when a Wagon R car stopped in front of them. Soon Yagnesh on Pulsar motorcycle and Prakashgiri on Honda motorcycle came there. They asked who had fought with Dilipbhai, Narendrasinh told them that it was he who had a fight. Thereupon, Yagnesh took out a knife from his pocket and gave a blow to Narendrasinh in his stomach. Narendrasinh fell down. Prakashgiri who had come with Yagnesh gave a blow on the head of Narendrasinh with a log. People from Wagon R car which were four or five in number got down with logs and pipes. They were shouting to Yagnesh and Prakashgiri instigating them to finish Narendrasinh. All these people also started beating Narendrasinh. The witness also mentioned about calling the ambulance but shifting the injured Narendrasinh to the hospital on a motorcycle without waiting for the ambulance. The witness identified four out of the five persons who had got down from the Wagon R car and stated that the fifth person was not present. (We are informed that fifth accused being juvenile, his trial was separated). In the cross examination, the witness stated that at the hospital, all details were provided by Jaypalsinh. He stated that the distance between Sagar Hall and Kanaiya Hotel is about 150 to 200 ft. These places were at a distance of about half a kilometer from Banlab. When he had spent half an hour at the place of Narendrasinh he neither met Heenaben nor her husband Ajaybhai. The incident took place before they actually reached the Kanaiya hotel. 5. Heenaben Ajaybhai Sanchna, PW 13, Exh 81 deposed that she lived in quarters opposite Banleb with her husband, husband's younger brother and her son. In the same quarters, one Dilipbhai Luhana lived earlier. The incident took place before they actually reached the Kanaiya hotel. 5. Heenaben Ajaybhai Sanchna, PW 13, Exh 81 deposed that she lived in quarters opposite Banleb with her husband, husband's younger brother and her son. In the same quarters, one Dilipbhai Luhana lived earlier. Once, Dilipbhai had told her that he had seen her sleeping with her brother-in-law. She denied this and kept quiet for about fifteen days but later told her husband and brother-in-law about the same. Her brother-in-law a couple of days later, spoke to Dilipbhai and objected about his remarks. Sometime later, Dilipbhai and his son Yagnesh had come to her brother-in-law and Yagnesh had quarreled with him. She identified Yagnesh before the Court and referred to one more person who was present before the Court who had come with Yagnesh on that day. About an hour later, Munnabhai (i.e. deceased Narendrasinh) had gone to the house of Dilipbhai and admonished him about his behaviour. Dilipbhai was, however, unrepentant, upon which they had a quarrel. Later at night, she learned that Munna was murdered. In the cross examination she clarified that in her statement she had referred to Yagnesh as Lalo since Dilipbhai used the said pet name. 6. Ajaybhai Chhaganbhai Sanchna, PW 12, Exh 80, husband of Heenaben deposed that his wife had told him about Dilipbhai making allegation of her sleeping with her brother-in-law. About this, he had spoken to his brother Vijay. Vijay had, in turn, spoken to Dilipbhai objecting to such remarks. Dilipbhai's son Yagnesh had come to threaten them. After that Munna i.e. Narendrasinh who lived in his flat had also spoken to Dilipbhai admonishing him about his remarks, upon which, he and Dilipbhai had heated exchanges. Later at night, he learned that Munna was murdered. 7. Dr. Poonam Naidu, PW 7, Exh 60, was the Medical Officer at the H.J. Doshi hospital, Rajkot. She deposed that at 10:45 at night on 09.06.2009 one Jaypalsinh had come to the hospital with Narendrasinh. She had declared him dead and informed the police about it. After which, the police had taken the body for postmortem to the Civil Hospital. In the cross examination she agreed that in the note Exh 61 prepared by her, she had not referred to the history. She had declared him dead and informed the police about it. After which, the police had taken the body for postmortem to the Civil Hospital. In the cross examination she agreed that in the note Exh 61 prepared by her, she had not referred to the history. We may, however, note that in the said document Exh 61 the doctor had put a remark that "He was brought by Mr. Jaypalsinh of Junction Plot/Rail Nagar, Rajkot." 8. Dr. Altaf Osmanbhai Dal, PW 6, Exh 53 had carried out the postmortem at Civil Hospital, Rajkot on 10.06.2009. In the postmortem note Exh 55 he had recorded the following injuries: "1. Incised wound present over lt. Side of abdomen 6 cm; lat. To Umbilicus, vertical, oval in shape, upper end comparatively blunt, lower end sharp sized about 4 cm x 1 1/2 cm up to cavity deep margin of this wound are sharply cut and red in colour and freshly clotted blood present on examination some loop of intestine protruded out from this wound and small intestine loop are sharply cut and lower pole of lt. Kidney vertically cut and fresh clotted blood around wound. 2. 3x3 cm Red colour contusion present over Rt. Side of fronted rg 3 cm about Rt. Eyebrow. 3. One lacerated wound present over upper part of occipital region in sagittal plane 5 cm longx2 cm x up to bone deep margin are irregular Red in colour and underline scalp are contuse. 4. Two parallel contusion on lat. Surface of Rt. Arm appear one third of Rg. Oblique in direction 5 cm long 1 1/2 cm breath and 2 cm apart from each other underline muscle are contuse. 5. Two parallel contusion on Rt side of back of chest oblique in direction 4 1/2 cm long and 2 cm breath and 2 cm apart from each other underline muscle are contuse this wound is just 3 cm below to shoulder joint. 6. Two parallel contusion on rt side of back of chest 2 cm middle inju. No. 5 and 1 1/2 cm below to inju. No. 5 oblique in direction 5 cm long 2 cm breath and 2 cm apart from each other under line muscle are contuse. 7. Two parallel contusion of lt. 6. Two parallel contusion on rt side of back of chest 2 cm middle inju. No. 5 and 1 1/2 cm below to inju. No. 5 oblique in direction 5 cm long 2 cm breath and 2 cm apart from each other under line muscle are contuse. 7. Two parallel contusion of lt. Side back of chest in scapular oblique in direction 4 cm long and 2 cm apart from each other under line muscle are contuse. 8. Two parallel contusion of Lt side back of chest 2 cm below and 1 1/2 cm middle of inju. No. 7 oblique in direction 5 cm long x 2 cm breath and 2 cm apart from each other under line muscle are contuse. 9. Multiple Reddish color contusion in both gluten rg and back of upper thigh approx 12-15 no present in oblique and horizontal direction and underline muscle are contuse." 9. According to the doctor, there was no fracture on the skull. The cause of death was the injuries on the stomach with sharp edged instrument. Injury No. 1 was sufficient in the ordinary course of nature to cause death. He was shown muddamal article No. 10 and agreed that the said injury could have been caused by the said weapon. Injuries No. 4 to 9 could be caused by a stick, pipe or a log. Injuries No. 2 and 3 could be caused by such weapons or also by stones. In the cross examination, he agreed that except for injury No. 1 the remaining injuries could not have caused death and they were simple injuries. 10. Syamaljibhai Kanjibhai Parmar, PW 17, Exh 98 had reached the hospital and recorded the inquest panchnama between 00:45 to 01:15 on 10.06.2009. He agreed that Jaypalsinh had accompanied the dead body in the ambulance to the Civil Hospital. He agreed that he had not recovered blood stained clothes of any of the witnesses. 11. Mahendrasinh Fatehsinh Jethwa, PW 21, Exh 119 had carried out part of the investigation. He deposed that he learned that one Narendrasinh Bhikhubha has been brought to the hospital who was declared dead and Shri Parmar, PSI was sent there for inquest. He thereupon, immediately went to the hospital and recorded the FIR. He gave the further steps undertaken by him during the course of investigation. He deposed that he learned that one Narendrasinh Bhikhubha has been brought to the hospital who was declared dead and Shri Parmar, PSI was sent there for inquest. He thereupon, immediately went to the hospital and recorded the FIR. He gave the further steps undertaken by him during the course of investigation. In the cross examination, he was questioned mainly on the precise place where the incident had taken place. He stated that the distance between Sagar Hall and Kanaiya Hotel is about 600 ft. He agreed that in the sketch Exh 87 neither Sagar Hall nor Kanaiya Hotel have been shown. During his investigation he had not sized clothes of any of the witnesses carrying blood stains. He had not carried out the test identification parade of any of the accused. He agreed that in the FIR, accusations were made against four or five unknown persons also. No description of such persons was given. He had not recorded the statements of shop owners and the residents where the incident took place since such shops were closed. It was suggested to him that the deceased was brought to the hospital by Jaypalsinh to which he agreed. He agreed that in the FIR only two accused were named and allegations were made against four to five other persons without naming them or giving the descriptions. He, however, did not carry out test identification parade since, according to him, the names of these additional accused were also disclosed during the investigation. The witness, however, did not elaborate in what manner, the identities of these additional accused were established. 12. Having noted the contents of the depositions of the witnesses we may now refer to some of the documents. The important weapon knife was discovered at the instance of accused No. 1 under panchnama Exh 50. This discovery was supported by the panch-witness Piyushbhai Mdhubhai Rajani, PW 5, Exh 49. The panchnama records that accused No. 1 guided the police party and the panch witnesses to a place outside the motor garage where from under a parked Maruti car, the accused took out a knife by removing the sand covering the weapon. 13. As noted, Exh 61 is the certificate issued by Dr. Poonam Naidu certifying that Narendrasinh Bhikhubha was brought to the hospital on 09.06.2009 at 10:45 pm and upon examination, he was declared dead. 13. As noted, Exh 61 is the certificate issued by Dr. Poonam Naidu certifying that Narendrasinh Bhikhubha was brought to the hospital on 09.06.2009 at 10:45 pm and upon examination, he was declared dead. The document contains an endorsement of the doctor that he was brought by Jaypalsinh Jadeja to the hospital. 14. The defence would also rely on a map Exh 74 to contend that the place of the incident was far away from Sagar Hall contrary to what was sought to be suggested by the prosecution. 15. Exh 93 is the Janvajog entry No. 2 of Malaviya Nagar Police Station suggesting that the administrative officer of H.J. Doshi hospital had informed that Narendrasinh Zala was attacked by unknown persons with deadly weapons causing injuries in stomach and head when he was opposite Sagar Hall and that Dr. Poonam Naidu had declared him dead. The person bringing Narendsrasinh was shown as Jaypalsinh. 16. Exh 131 is the call details of mobile phone number 9727399909 used by the deceased. There are other call details, detailed reference to which, however, is not necessary. We would refer to the contents of the document Exh 131 later. 17. Different articles collected by the Investigating Agency were sent for forensic analysis. FSL report read with serological report Exh 141 would show that the deceased had blood group 'B' which was found from his clothes as also from the scene of incident and from the murder weapon knife. 18. This in the nutshell is the evidence on record. Learned advocate Mr. Chandrani for accused Nos. 1 and 2 submitted that neither Jaypalsinh nor his friend Shailesh were eyewitnesses. They have been planted later on. Their versions therefore, do not inspire confidence. Though according to these witnesses, Narendrasinh was carried to the hospital by them on a motorcycle profusely bleeding, neither their hands nor their clothes nor the vehicle showed any blood stain. In the entry in the police station diary, a reference is to Narendrasinh being assaulted by unknown persons. Dr. Poonam Naidu in the certificate Exh 91, did not record the history though Jaypalsinh was present at the hospital. Counsel further submitted that the FIR was registered after a gap of time permitting manipulation. Counsel would heavily rely on the document Exh 131 which is the nature of details of calls made and received on the mobile phone of the deceased. Counsel further submitted that the FIR was registered after a gap of time permitting manipulation. Counsel would heavily rely on the document Exh 131 which is the nature of details of calls made and received on the mobile phone of the deceased. It was pointed out that on 09.06.2009, there were calls exchanged between Jaypalsinh and the deceased and between Rajendrasinh and the deceased between 21:53 till 22:30. This, according to the counsel, would show that the claim of Jaypalsinh and Shailesh that they were with the deceased after 9:30 at night, stands falsified. Counsel submitted that the entire place of incident was deliberately changed. According to the prosecution, the incident took place opposite the Sagar Hall. The sketch, Exh 87, does not show the said place. In fact, as per the map, Exh 47, the place of incident was at a fair distance from Sagar Hall. Counsel pointed out that according to the Investigating Officer, distance between Sagar hall and Kanaiya hotel was about 600 ft. Counsel submitted that the identification of accused Nos. 1 and 2 by the witnesses PW 10 and 11 was not reliable. These witnesses did not know the accused beforehand. No test identification parade was carried out. Their identification before the Court for the first time was, therefore, not reliable. Counsel further submitted that, in any case, accused No. 2 had no motive. Even if the prosecution version is to be accepted in entirety, it was accused No. 1 who had any motive for committing the crime. 19. Learned counsel Shri Umesh Trivedi for accused No. 6 submitted that the name of the said accused did not figure in the FIR or in the statements of any of the witnesses. Even before the Court, the witnesses identified the person without referring to his name. No test identification parade was carried out. No recoveries or discoveries have been made with respect to this accused. 20. Learned advocate Mr. Buch for accused Nos. 3 to 5, in addition to adopting the contentions of Shri Trivedi, submitted that though iron pipes and sticks have been discovered at the instance of these accused, mere discoveries would not be sufficient to prove their involvement in commission of the offence. 21. On the other hand, learned APP Ms. 20. Learned advocate Mr. Buch for accused Nos. 3 to 5, in addition to adopting the contentions of Shri Trivedi, submitted that though iron pipes and sticks have been discovered at the instance of these accused, mere discoveries would not be sufficient to prove their involvement in commission of the offence. 21. On the other hand, learned APP Ms. C.M. Shah opposed the appeals contending that the Wagon R car was recovered from accused No. 6 at the time of his arrest. He was supposed to be the driver of the said car. The number of the car was mentioned in the FIR. The call details of different accused would show that they were in live contact with each other just before and after the incident. Their presence at the scene of offence can also be established through the location of the towers where such conversation took place. With respect to accused Nos. 1 and 2, she submitted that they were identified by the witnesses. The genesis of the incident was properly established. Heenaben and Ajaybhai had pointed out about the previous quarrel between Narendrasinh and Dilipbhai i.e. father of accused No. 1. Jaypalsinh and Shailesh, PW 10 and 11 referred to actual incident when Narendrasinh was assaulted by accused No. 1 with the knife and accused No. 2 with the baseball bat. Others had also joined in the assault. 22. Counsel relied on the following decisions: In case Chhotu and ors v. State of Maharashtra reported in AIR 1997 SC 3501 , in which, it was observed that merely because the Investigating Officer failed to seize the blood stained clothes of the witnesses, would not impair the evidence of such witnesses. In case of Shyamal Ghosh v. State of West Bengal reported in 2012 (7) SCC 646 in which, it was observed that non-conducting of test identification parade would not by itself render evidence of the identification by the witness in the Court inadmissible or unacceptable. In case of State of U.P v. Naresh and ors. reported in 2011 Cri.L.J 262 in which, it was observed that FIR is not an encyclopedia of the entire case and it is not needed to contain all the details. A reference to this decision was made perhaps in the context of non-mentioning of the names of all the accused in the FIR." 23. We may assess the evidence on record. A reference to this decision was made perhaps in the context of non-mentioning of the names of all the accused in the FIR." 23. We may assess the evidence on record. The background for the ill-will or animosity between the deceased Narendrasinh and the prime accused Yagnesh has been brought on record by the prosecution through reliable evidence. Heenaben, PW 13 and her husband Ajaybhai, PW 12 gave similar versions. Particularly, according to these witnesses, Dilipbhai, father of Yagnesh, had once misbehaved with Heenaben making loose remarks about her. Heenaben kept quiet for about fifteen days but, later on confided to her husband and brother-in-law. Her brother-in-law took up the issue with Dilipbhai which led to a heated exchange. At that time, Yagnesh had intervened. This entire episode came to the knowledge of Narendrasinh who was residing in the same complex. According to these two witnesses, therefore, Narendrasinh confronted Dilipbhai about his misbehaviour and admonished him. Dilipbhai was unrepentant upon which, Narendrasinh, fought with him and in fact, slapped him a couple of times. According to both these witnesses, the incident took place at night and later, in the same night, they learned that Narendrasinh was murdered. These witnesses though do not give the date on which Narendrasinh had picked up a quarrel with Dilipbhai, their narration, when seen as a whole, refers to the episode of quarrel between Narendrasinh and Dilipbhai on the same day on which, Narendrasinh was murdered. Thus, there was a fresh quarrel between Narendrasinh and Dilipbhai, on the earlier part of the night of 09.06.2009 and later at about 10:30, he was stabbed at a public place not far from his own house. 24. We may now refer to the two eyewitnesses. Jaypalsinh PW 10 was a friend of Narendrasinh. According to him, Narendrasinh called him at about 9:30 at night to his house because he had a quarrel with Dilipbhai. Jaypalsinh was sitting with three more friends. All of them went to the house of Narendrasinh. After sometime, they went on the motorcycles. Their motorcycles were intercepted by a Maruti Wagon R car followed by two motorcycles. Accused Nos. 1 and 2 were riding on separate motorcycles. Accused No. 1 first confirmed who had quarreled with his father. When Narendrasinh stated that it was he who had done so, Yagnesh took out a knife from his pocket and gave one blow on the stomach. Accused Nos. 1 and 2 were riding on separate motorcycles. Accused No. 1 first confirmed who had quarreled with his father. When Narendrasinh stated that it was he who had done so, Yagnesh took out a knife from his pocket and gave one blow on the stomach. After Narendrasinh fell down, accused No. 2 gave a blow on his head with baseball bat. According to this witness, four or five people got down from the Maruti Wagon R car. They were instigating accused Nos. 1 and 2 to finish Narendrasinh. They were carrying pipes and logs with which, they also assaulted Narendrasinh. According to the witness, he and Shailesh took Narendrasinh on the motorcycle to the hospital. The doctor, after 15 to 20 minutes, came out and declared that Narendrasinh had died. Similar version was given by PW 11, Shailesh Chavda. He was with Jaypalsinh. When Jaypalsinh received a phone call from Narendrasinh, they all went to his house. This witness also referred to the car and two motorcycles intercepting them and accused Nos. 1 and 2 assaulting Narendrasinh with the knife and baseball bat respectively. 25. Evidences of these witnesses get corroboration from the other materials on record. The fact, that Jaypalsinh brought Narendrasinh to the hospital, is established. Dr. Naidu had made such a remark in her certificate Exh 61. In fact, the line of cross-examination of the IO, Mahendrasinh Jethwa, PW 21, would suggest that it was the defence who had suggested that it was Jaypalsinh, who had brought the deceased to the hospital. As per the witness, the incident took place at about 10:30 at night. The documents at the hospital would show that the patient was declared dead at about 10:45. It was Jaypalsinh who had brought Narendrasinh to the hospital. These are the factors lending credence to the claim of Jaypalsinh that he himself was with Narendrasinh when he was assaulted. 26. We have no reason to discard the version of these two important eyewitnesses. These witnesses Jaypalsinh and Shailesh, PW 10 and 11 respectively were friends of Narendrasinh. Their presence with Narendrasinh on the night of the incident was quite natural. The fact, that Jaypalsinh brought Narendrasinh to the hospital in severely injured condition, would further support his version that he was present at the time of the incident. 27. These witnesses Jaypalsinh and Shailesh, PW 10 and 11 respectively were friends of Narendrasinh. Their presence with Narendrasinh on the night of the incident was quite natural. The fact, that Jaypalsinh brought Narendrasinh to the hospital in severely injured condition, would further support his version that he was present at the time of the incident. 27. These two witnesses have given a very clear and constant version of the nature of the incident. The background leading to the quarrel has been given by Heenaben and her husband Ajaybhai. It was because of this quarrel that Jaypalsinh and his other friends went to the house of Narendrasinh upon being called by him. The attack on Narendrasinh took place barely about hour and a half or so. On one hand, the motive was fresh. It was Yagnesh who had taken active interest in his father's troubles. He had intervened when Heenaben's family members had taken up the issue with Dilipbhai and brokered a compromise. It was Yagnesh again who searched out Narendrasinh as to one who had quarreled with his father. By the accounts of the witnesses, Narendrasinh had slapped Dilipbhai a couple of times on the night of 09.06.2009. Yagnesh first ascertained who was the one who had done so and then stabbed in his stomach with the knife. His companion Prakashgiri carrying a baseball bat gave a blow on the head of the deceased. Insofar as involvement of these two accused is concerned, we have no hesitation in confirming the view of the Trial Court. As an additional corroborative piece of evidence, we also have the discovery of the murder weapon knife at the instance of accused No. 1. The forensic analysis showed blood on the said weapon of the group belonging to the deceased. The medical opinion also matched with the version of these witnesses. The knife blow on the stomach was severe and most damaging. It had pierced through the small intestine and also ruptured the kidney. There were also head injuries corresponding to the blow by the baseball bat. The baseball bat was recovered from the scene of incident itself. 28. Before we conclude this, a few loose ends need to be tied up. The certificate Exh 61 issued by Dr. Naidu did not record the history. There were also head injuries corresponding to the blow by the baseball bat. The baseball bat was recovered from the scene of incident itself. 28. Before we conclude this, a few loose ends need to be tied up. The certificate Exh 61 issued by Dr. Naidu did not record the history. This is not the same thing as to state that the history given by the person bringing Narendrasinh to the hospital was in conflict with the version of the witnesses. It only means that the doctor had not recorded the history. That by itself would not destroy the reliability of the witnesses. The police station diary entry referred to Narendrasinh being assaulted by unknown persons. This information was passed on by the Administrative Officer of the Hospital. There is nothing on the record to suggest that he had any direct contact with Jaypalsinh and it was Jaypalsinh, who was the source of information that Narendrasinh was assaulted by unknown persons. The mobile call details Exh 131 does show a few calls exchanged between Jaypalsinh and Narendrasinh on the night of 09.06.2009. One such call was made at 17:04 followed by another at 20:03. Then again on 21:53 and last in line was at 22:30. According to the counsel for the defence, this would destroy the version of the eyewitnesses that they were with Narendrasinh after 9:30 onwards. However, the call duration of these phones are barely eight seconds or so clearly indicating that no serious conversation took place between the two callers. We may recall, according to Shailesh, Narendrasinh was riding as a pillion rider on his motorcycle when they left Narendrasinh's house. It would, therefore, be entirely possible that while trying to reach the common place, brief phone calls may have been made. Further, this very phone number shows call movements even after 22:30 which goes on till 23:48. The hospital records would show that Narendrasinh was declared dead at 10:45. Assault on him therefore, took place sometime before. Merely because the telephone number of Narendrasinh was used even after the assault, would not by itself mean that the entire prosecution version was false. It only means that the phone would have been used by someone else to make calls. 29. In addition to believing that accused Nos. Assault on him therefore, took place sometime before. Merely because the telephone number of Narendrasinh was used even after the assault, would not by itself mean that the entire prosecution version was false. It only means that the phone would have been used by someone else to make calls. 29. In addition to believing that accused Nos. 1 and 2 had played an active role in causing death of Narendrasinh, we also have no doubt in our minds that there were other culprits who were involved in the assault. The witnesses have referred to a Wagon R car carrying four or five people who also came to the scene of incident carrying different weapons. According to these witnesses, these assailants had given blows with sticks and pipes after Narendrasinh was stabbed by accused No. 1 and, accused No. 2 gave a blow on the head. In addition to the reference by these witnesses of the presence of more accused, the PM note and the deposition of the doctor would show that there were multiple injuries on the body which could be caused by hard and blunt substances such as pipes and sticks. This was thus clearly handy work of more accused than two. The incident had taken place at a public street in a city like Rajkot. The accused would have, therefore, carried out attack in a short time which is also in consonance with what the deceased have referred to. This was clearly the handy work of more people than just two. 30. Having said that however, we have serious doubt about the accuracy of identification of these accused by the witnesses. Accused No. 3 to 6 were not known to the two eyewitnesses. They were not referred by names in the FIR or in the police statement. Before the Court also, these witnesses do not refer to accused Nos. 3 to 6 or any of them by names. No test identification parade was carried out. The incident took place late at night and was completed in barely a couple of minutes. The identification by these witnesses of the accused before the Court for the first time would, therefore, not be reliable. We are conscious that accused Nos. 1 and 2 were also not known to the witnesses. However, their cases were vastly different. Firstly, they arrived on two separate motorcycles and played the lead role. The identification by these witnesses of the accused before the Court for the first time would, therefore, not be reliable. We are conscious that accused Nos. 1 and 2 were also not known to the witnesses. However, their cases were vastly different. Firstly, they arrived on two separate motorcycles and played the lead role. Accused No. 1 first ascertained who was the person who had assaulted his father. When Narendrasinh declared that it was he, who have done so, assault on Narendrasinh was carried out. The witnesses therefore, had sufficient time, opportunity and every reason to be able to recognize these two accused and to identify them later before the Court. In fact, the witnesses suggested that the other assailants were referring to these two accused by names and instigating them to finish the job. It is, in this context, that we have separated the identification of accused Nos. 1 and 2 at the hands of the witnesses as compared to the other accused. Without any further corroboration, it would not be safe to rely on the identification of these accused by the witnesses. 31. The only surviving question is, what offence did accused Nos. 1 and 2 commit? It is argued that this is a case of only one blow and, in any case, accused No. 2 did not share the motive with accused No. 1. However, these contentions ignore the fact that the blow was given on the stomach with the knife with such ferocity that the knife pierced through the intestine and damaged the kidney. Accused No. 2 did not give the vital blow but apparently gave the blow on the head of the deceased with a baseball bat after accused No. 1 had stabbed him in the stomach. This would clearly indicate that accused No. 2 was aware about not only the intention but actually the action of accused No. 1 when he himself played the overt act. He, therefore, cannot escape the liability of having shared a common intention. Both the accused, therefore, would have to be convicted for offence punishable under section 302 read with section 34 of IPC. In absence of identification of the rest of the accused, it is also not possible to ascertain with certainty as to exactly how many persons had actively engaged themselves in commission of the offence. Both the accused, therefore, would have to be convicted for offence punishable under section 302 read with section 34 of IPC. In absence of identification of the rest of the accused, it is also not possible to ascertain with certainty as to exactly how many persons had actively engaged themselves in commission of the offence. Mere presence of a person would not automatically make him part of unlawful assembly. In view of the same, the charges under sections 143, 147, 148, 149 must fail against all accused. 32. In the result, Criminal Appeals No. 1151 of 2013 and 1181 of 2013 are disposed of by holding that accused Nos. 1 and 2 are guilty of offence punishable under section 302 read with section 34 of IPC. Their life sentences are confirmed. They would pay fine of Rs. 10,000/- each. Their convictions for offences under sections 143, 147, 148, 149, 188 are set aside. The accused on bail shall surrender to serve out the remaining sentence. He would have time up to 30.07.2017 to surrender. 33. Criminal Appeals No. 900 of 2013 and 847 of 2013 are allowed. Accused persons are acquitted of all charges. Their bail bonds shall stand cancelled. R & P to be transmitted back to the concerned Trial Court.