JUDGMENT : Biren Vaishnav, J. 1. Criminal appeal No. 773 of 2014 has been filed by the accused Nos. 2 to 5. By judgment and order dated 10.03.2014 rendered in Sessions Case No. 13 of 2009, the learned Additional Sessions Judge, Dhangadhara convicted the accused for offences under sections 302, 307, 324 read with sections 143, 147, 148 and 149 of the Indian Penal Code. While convicting the accused of these offences, the learned Additional Sessions Judge sentenced them to undergo rigorous imprisonment for 10 years. 2. Criminal appeal No. 976 of 2014, therefore has been filed by the State seeking enhancement of the sentence. 3. Sandhaji Hamirkhan, the first informant lodged the complaint on 28.05.2009. According to the complainant, he along with his nephew Mahmadkhan @ Rajbha was on his way to Mafatpara, where Mahamadkhan's house was under construction. His son Mujafkhan and others joined him. While they were near Hussainkhan's shop, Sabarkhan Amirkhan original accused No. 1 (who has died pending trial) confronted them. He questioned them as to why they were passing by through the vicinity of their house. After brief argument with Mahmadkhan, the accused No. 1 Sabarkhan alongwith other four accused brought out their fire arms. They fired shots through this fire arms at Mahamadkhan, Muzafkhan and Hayatkhan Alamkhan. Mahamadkhan and Muzafkhan sustained injuries. Hayatkhan Alamkhan subsequently was carried to the hospital where he succumbed to the injuries. 4. A charge was therefore framed at Exh. 9 by the learned Sessions Judge, implicating the accused, five in number, under sections 143, 147, 148 and 149 of the Indian Penal Code. According to the prosecution, five days prior to the incident in question, a fight occurred between Ayubkhan Alamkhan, Mahomadkhan's brother and the accused. As a result of this, the five accused who possessed fire arm, fired at Hayatkhan, Mahamadkhan and others. Hayatkhan succumbed to the injuries. Therefore, they were also charged for the offences under sections 302, 307 and 324 of the Indian Penal Code. 5. Sandhaji Hamirkhan Malek, the first informant was examined as PW-13 at Exh. 83. In his testimony, he stated that on 28.05.2009, he accompanied Mahammadkhan @ Rajbha. They were going to Mafatiya para to see Rajbha's under-construction house. Hayatkhan Alamkhan and Muzafkhan, his son, were accompanying them. The accused No. 1-Sabarkhan Amirkhan started abusing Rajbha. He questioned his presence in the vicinity of his house. 83. In his testimony, he stated that on 28.05.2009, he accompanied Mahammadkhan @ Rajbha. They were going to Mafatiya para to see Rajbha's under-construction house. Hayatkhan Alamkhan and Muzafkhan, his son, were accompanying them. The accused No. 1-Sabarkhan Amirkhan started abusing Rajbha. He questioned his presence in the vicinity of his house. Sabarkhan then went into his house and brought out a fire arm. Joravarkhan-accused No. 5, Nasirkhan-accused No. 4, Rasidkhan-accused No. 3, and Ahmedkhan-accused No. 2 also joined Sabarkhan with fire arms. Joravarkhan had a revolver. All the five surrounded the complainant and others and started firing gun shots from their fire arms. Hayatkhan Alamkhan sustained injuries on his right shoulder and on the head. Rajbha sustained injuries on the left hand. This witness further states that since all of them were surrounded by the accused, he could not clearly identify who was firing from which weapon. Mujafkhan Sandhaji also had sustained injuries on his hand. Mahammadkhan and Mujafkhan were taken to Surendranagar C.U. Shah hospital. Hayatkhan was carried to the Patdi dispensary in an auto-rickshaw. While on the way to the Patdi dispensary, they transferred him into an ambulance. The doctor at the Government hospital at Patdi declared Hayatkhan dead on arrival. According to this witness, the five accused were implicated in the complaint by one Ayubkhan Alamkhan for having committed theft of wires and diesel. All these five accused had thereafter accosted Alamkhan. He identified the weapons that these accused had used at the time of commission of the offence. They identified article 10 as "tamancha" which was carried by accused No. 1-Sabarkhan Amirkhan. Article 18 was identified by him and he implicated the accused No. 5-Joravarkhan for having carried the gun. They identified the accused who were present in the Court. He confirmed to have lodged the FIR which was at Exh. 84. He further testified that from the place of the incident, cartridges were found. This witness was cross-examined. The defense tried to put suggestions on the incident that had happened in connection with Ayubkhan Alamkhan. This witness denied that he was used as a pawn for wrongly implicating the accused. A suggestion was put by the defense to the complainant that there was an alternate route to go to Mahomadkhan's house, and which was a shorter route. The defense tried to put suggestions on the incident that had happened in connection with Ayubkhan Alamkhan. This witness denied that he was used as a pawn for wrongly implicating the accused. A suggestion was put by the defense to the complainant that there was an alternate route to go to Mahomadkhan's house, and which was a shorter route. 26.04.17 In the cross-examination, he denied a suggestion that primarily, the altercation occurred between Mahammadkhan and the accused No. 1 Sabarkhan Amirkhan. This witness stated that Ayubkhan Alamkhan who had filed a complaint against the accused five days prior to the incident was the younger brother of the deceased Hayatkhan. The witness was cross-examined and the Investigating Officer handed over the clothes to the deceased. 6. Mahomadkhan Hussainkhan Malek, who was the person whose house was under construction was examined as PW-18 at Exh. 18. This witness testified that at around 10:30 or around 11 in the morning of 28.05.2009, he along with his cousin Hayatkhan, Mujabkhan Sandhaji and his uncle Sandhaji Hamirkhan (first informant) went to Mafatpara to see the construction of his house. On way to the house, they met Sikandar. All of them on their way to the house, passed through the house of the accused No. 1 Sabarkhan Amirkhan. Sabarkhan Amirkhan questioned their presence at the place. They entered into an argument. After a brief heated exchange of words, Sabarkhan Amirkhan went into his house and brought a gun. Soon Jorawarkhan Rahematkhan and the other accused Nasirkhan, Rashidkhan and Ahmedkhan with their firearms attacked the deceased Hayatkhan. Jorawarkhan and others were also in possession of firearms. Mujabkhan sustained injuries as a result of knife. Mujabkhan and Mahammadkhan were carried to Civil Hospital whereas Hayatkhan was taken to Patdi dispensary. This witness identified the accused No. 2, accused No. 3 and accused No. 4 who were present in the Court on that date. He identified the muddamal gun and pistol as articles 10 and 18. Mahomadkhan was cross-examined. The defense side suspected this witness's credibility on questioning him on his past criminal antecedents. Further suggestions were put to this witness that the incident had happened on a busy thoroughfare. In the cross-examination, this witness denied that the sole exchange occurred only between himself and Sabarkhan Amirkhan. He denied a suggestion that he also was carrying a gun. 7. Mujabkhan Sandhaji was examined as PW-15 at Exh. 92. Further suggestions were put to this witness that the incident had happened on a busy thoroughfare. In the cross-examination, this witness denied that the sole exchange occurred only between himself and Sabarkhan Amirkhan. He denied a suggestion that he also was carrying a gun. 7. Mujabkhan Sandhaji was examined as PW-15 at Exh. 92. Mujabkhan was also one of the persons who had accompanied the complainant and Mahomadkhan. According to this witness, when he along with Mahomadkhan and Sandhaji Hamirkhan were on their way of Mafatiyapara, they were intercepted opposite the accused No. 1's house. The accused No. 1-Sabarkhan Amirkhan started abusing them. Mahammadkhan tried to pacify the accused and explained that they were only passing by the accused's house on their way to their under construction house. Sabarkhan Amirkhan went into his house and returned with the gun in his hand and fired shots at Mahammadkhan and Hayatkhan. At the point when Sabarkhan returned with a gun in his hand, remaining four accused with fire arms in their possession, encircled the other including Mahammadkhan, Hayatkhan and Mujabkhan and fired shots from their fire arms. Hayatkhan sustained injuries. This witness further stated that he has sustained injuries due to a knife. The defense may suggest that this witness was projected as an eyewitness and in order to lend credibility to the evidence of other witnesses who were present at the scene of offence i.e. viz. Kamuben and Dilawarkhan is added as an eyewitness. The witness further stated that one of the five accused warned them of dire consequences. He informed them that all of them should leave promptly otherwise they will have to face serious consequences. Javedkhan, after arriving at the scene, carried the two injured on his motorcycle. Hayatkhan was taken to Patdi dispensary. This witness also reiterated that the motive behind the incident was lodging of a complaint by Hayatkhan's brother Ayubkhan Alamkhan, wherein the accused was implicated for the offences of theft of diesel and wires. Upset with the lodging of the complaint, these accused had attacked Ayubkhan Alamkhan. Defense also tried to suggest to this witness that there was an alternative route to approach the under-construction house of Mahammadkhan, which was denied. He also denied a suggestion that he was not present at the scene of the offence. 8. Kamuben was examined as PW-16 at Exh. 99. Defense also tried to suggest to this witness that there was an alternative route to approach the under-construction house of Mahammadkhan, which was denied. He also denied a suggestion that he was not present at the scene of the offence. 8. Kamuben was examined as PW-16 at Exh. 99. She also, as is evident from the testimony of Mujabkhan, was present at the scene of the incident. Her house was adjacent to Hussainbhai's shop, where the incident is said to have occurred. This witness stated that on hearing the commotion outside, she, along with Dilawarkhan who was present at his home, ran outside. She saw Sabarkhan Amirkhan-accused No. 1 arguing with Mahammadkhan @ Rajbha. After a moment, she saw Sabarkhan Amirkhan going into his house and returning with a gun. The other four accused also came over carrying fire arms. Shots were fired from the revolver and Desi Tamancha. Hayat, Mahammadkhan Mujabkhan sustained injuries. She further stated in her testimony that Mujabkhan sustained injuries as a result of being stabbed by a knife. She denied however, the knowledge of the knife injuries caused at the ends of the accused. Hayatkhan was carrying to the hospital in an auto-rickshaw. She ascertained the testimony that she had seen the accused and the accused had yielded a firearm and had fired at the deceased Hayatkhan, Mahammadkhan and Mujabkhan in her presence. She identified the muddamal article weapons, article Nos. 17 and 18. Kamuben was cross-examined. She denied a suggestion that she was not present when the incident happened. This witness, when a suggestion was being put to her also that there is an alternative route to reach Mahamadkhan's house, she denied the same. According to her, the only way to Mahamadkhan's house was through a lane and the accused No. 1's house would have to be crossed. 9. PW-17 was Dilawarkhan Sujaji Malek who also was present at Kamuben's house. In his testimony, he stated that on hearing commotion, both he and Kamuben came out from their house. He saw all the five accused carrying fire arms. Sabarkhan Amirkhan had a gun, Jorawar was carrying a revolver and the other three accused had 'tamancha'. All of them resorted to indiscriminately firing the people present viz. Hayatkhan, Mujabkhan and Mahammadkhan. Kamuben had tried to confront Hayat. Dilawarkhan was cross-examined. He saw all the five accused carrying fire arms. Sabarkhan Amirkhan had a gun, Jorawar was carrying a revolver and the other three accused had 'tamancha'. All of them resorted to indiscriminately firing the people present viz. Hayatkhan, Mujabkhan and Mahammadkhan. Kamuben had tried to confront Hayat. Dilawarkhan was cross-examined. In his defense, he agreed that initially there was an argument between Sabarkhan and Mahammadkhan @ Rajbha. He denied the suggestion that Mahammadkhan @ Rajbha was also carrying a firearm and that Hayat sustained injuries as he intervened between the exchange of fire between Sabar and Mahammadkhan. 10. Sikandarkhan Mahamadkhan Malek was another eyewitness who was examined as PW-14. He was the nephew of the complainant Sandhaji Hamirkhan. This witness also had accompanied Mahammadkhan, Mujabkhan and the complainant. From the testimony of this witness what is revealed is that he also categorically mentioned the unfolding of the event. In his testimony, he states that while Mahammadkhan alongwith others was passing by the house of the accused No. 1-Sabarkhan Amirkhan, Sabarkhan questioned his presence. After a brief exchange of "words" Sabarkhan went into the house, brought a gun. The remaining accused who were also carrying firearms, started firing shots from their firearms. Hayat, Mahammadkhan and Mujabkhan sustained injuries. This witness further stated that Nasirkhan Bismilakhan at that point of time, pointed a gun towards him and warned him that he would meet the same fate as Hayat if he would not immediately leave the scene of offence. This witness had identified that he had seen all the five accused carrying varied firearms. When the muddamal guns were shown to him, he identified the same. Sikandarkhan was also cross-examined. A suggestion put by the defense was denied that only Mujaf and Sabar had a heated argument and others were not involved. This witness in the cross-examination categorically admitted the prosecution case that it was Sabar who started abusing Mahammadkhan. Sabar went into his house and brought a gun and the remaining four accused also started firing shots from the firearms in their possession. 11. Dr. Jay Bhaskarbhai Pancholi, PW-11, was examined at Exh. 61. He was the doctor who treated the two injured eyewitnesses Mahomadkhan Hussainkhan Malek and Mujabkhan Sandhaji. In his testimony, the doctor stated that Mahomadkhan Hussainkhan Malek was brought to the hospital at around 12:45 in the afternoon. 11. Dr. Jay Bhaskarbhai Pancholi, PW-11, was examined at Exh. 61. He was the doctor who treated the two injured eyewitnesses Mahomadkhan Hussainkhan Malek and Mujabkhan Sandhaji. In his testimony, the doctor stated that Mahomadkhan Hussainkhan Malek was brought to the hospital at around 12:45 in the afternoon. He had in the history that was recorded stated that he had sustained injuries due to the gunshot fired by the five accused. In the history so recorded, he specifically named the five accused Nasirkhan Bismilakhan, Sabarkhan, Jorawarkhan, Ahmedkhan and Rashidkhan. The doctor recorded that injured Mahomadkhan sustained five injuries. There were punctured wounds. The injury certificate was produced at Exh. 62. In the opinion of the doctor the injuries that Mahomadkhan had sustained were grievous in nature. Mahomadkhan was subsequently referred for further medical treatment to the Ahmedabad medical hospital. In the opinion of the doctor, when shown the firearm articles 17 and 18, he admitted that the wounds that this injured Mahomadkhan had sustained, possibly could have been caused due to use of such fire arms. As far as the nature of injuries that Mujabkhan had sustained this doctor testified that Jorawarkhan and Ahmedkhan had attacked him with a knife. This doctor recorded that Mujabkhan sustained injuries which were incised wounds which should be sustained as a result of use of a knife. The doctor was cross-examined. He admitted that in the certificate that he had issued to Mujaf, he had not specifically referred the history. 12. Dr. Rajesh Thakur was the doctor who carried out the postmortem of Hayatkhan's body. In the opinion of this doctor and in examination, he found that the deceased had sustained seven injuries which were caused due to the use of a circular fire arm. In a certificate issued for the details of the injuries, he enlisted the injuries. In the opinion of the doctor, such injuries that the deceased sustained were possible due to use of a 12 bore standard country made pistol. In the testimony of this doctor, the pellets were found embodied in the body of the deceased. The doctor had recorded that deep brown wounds had occurred on the various parts of the body which was possible due to pellets used by the 12 bore gun or a country-made pistol. Corresponding external injuries and the internal injuries were the soft tissues had torn. Dr. Rajesh was cross-examined. The doctor had recorded that deep brown wounds had occurred on the various parts of the body which was possible due to pellets used by the 12 bore gun or a country-made pistol. Corresponding external injuries and the internal injuries were the soft tissues had torn. Dr. Rajesh was cross-examined. He denied a suggestion that injury on the vital part could be restricted only to the head. A further suggestion that had the patient received an immediate medical attention, he would have survived, was also denied by the doctor. 13. Scientific evidence in terms of the forensic science laboratory report and the serological report are on record at Exhs. 170 and 172 respectively. On a collective reading of the report of the forensic science laboratory, what emerges is that the barrels of the gun that were used and examined were found to have remains of fresh gun powder. The report suggested that the pistol and other gun had been used to fire. The remnants of the gun powders and the particles when examined, showed nitrite and led indicative of the fact that these firearms were used in the immediate past. 14. Based on the nature of evidence which has come on record what needs to be examined is whether the accused, five in number, had as a part of an unlawful assembly, with a common object, with the fire arms in their possession, carried out the offending act and their conviction for the offences under sections 302, 324 read with sections 143, 147, 148 and 149 was justified. 15. The first information report which is at Exh. 84 filed at the hands of the complainant Sandhaji Hamirkhan, Mahammadkhan's uncle, indicates that when Mahammadkhan was going to his house which was under construction, he was accompanied by Hayat, Muzzafarkhan and Sikandar. The complainant too was with Mahammadkhan. While passing-by the house of the accused Sabar, Sabar challenged their presence. He started abusing Mahammadkhan. When Mahammadkhan tried to explain, Sabar did not relent and the argument escalated into verbal exchange. The remaining accused viz. Joravarkhan, Nasirkhan, Rashidkhan and Ahmedkhan joined soon. Sabar went into his house and returned with a gun. The first information report further reveals that the remaining four accused were already carrying fire arms. All of them started firing at Hayat, Mahammadkhan and Mujabkhan. Hayat sustained serious injuries as a result of gun shots which were fired. The remaining accused viz. Joravarkhan, Nasirkhan, Rashidkhan and Ahmedkhan joined soon. Sabar went into his house and returned with a gun. The first information report further reveals that the remaining four accused were already carrying fire arms. All of them started firing at Hayat, Mahammadkhan and Mujabkhan. Hayat sustained serious injuries as a result of gun shots which were fired. While Hayat was carried to the Patdi hospital, Mahammadkhan and Mujabkhan were taken to the Surendranagar hospital. In his testimony which is recorded at Exh. 83, the first informant, PW-13, unequivocally repeats the chain of events that unfolded after Mahammadkhan and Sabarkhan enter into an argument. The testimony of this witness further indicates that when Sabar came out with a gun, the four accused were also present at the scene of the offence circling Mahammadkhan, Mujabkhan and Hayatkhan and all the five started firing from their fire arms. This witness in his testimony states that he could not clearly pinpoint that who fired from which firearm and as a result of such indiscriminate firing, which was responsible for causing death of Hayat. All the three Mahammadkhan, Mujabkhan and Hayat were encircled by the five accused. This witness therefore stood by the version in the FIR. He categorically named accused Sabarkhan together with four others who were carrying fire arms. According to this witness, the incident occurred when Mahammadkhan was passing by the others in their company through the house of the accused. All the five, according to the first informant, were carrying firearms and through their firearms, serious injuries were inflicted on Mahammadkhan, Hayatkhan and Mujabkhan. The motive behind the incident was an incident that had occurred five days preceding the present one. Hayat, the deceased's brother Ayubkhan had lodged a complaint against the five accused as they had committed theft of diesel and wires. What is evident from the testimony of this witness is that Sabar-the accused No. 1, challenged the presence of these two injured witnesses and the deceased in the company of the complainant. Apparently, he was unrelenting, he went back into his house and brought out a gun. The four accused were already yielding firearms, encircled the two injured witnesses and Hayat and deceased and fire shots at all three of them. Hamirkhan, the complainant named all the five accused. Apparently, he was unrelenting, he went back into his house and brought out a gun. The four accused were already yielding firearms, encircled the two injured witnesses and Hayat and deceased and fire shots at all three of them. Hamirkhan, the complainant named all the five accused. A suggestion was put in the cross-examination that even Mahammadkhan was carrying a fire arm, was emphatically denied by this witness. What emerges from the evidence of these witnesses is that the incident got triggered at the hands of Sabarkhan challenging the presence of Mahammadkhan, Mujabkhan and the complainant in front of his house. When Mahammadkhan tried to explain that it was a natural action on his part of passing by his house, as he needed to go to his Mafatpara house, Sabar did not relent. The defense has in his cross-examination, tried to put suggestions and dent the credibility of this witness by suggesting that the incident occurred at a public place and when the investigating machinery did not examine any independent witness. From the testimony of this witness, what comes-forth is that the narrative in the FIR stands confirmed that the five accused carried fire arms and that they operated such fire arms resulting in causing serious injuries to PW-15 Mujabkhan and PW-18 Mahammadkhan stands sufficiently proved. 16. PW-18 Mahammadkhan was the first person who faced the ire of the accused No. 1-Sabar. He was simply passing by the house of the accused so that he could go to his Mafatpara home. He also, as stated by the complainant was in the company of Hayat and Mujab and the complainant himself. Sikandar joined them later near Hussainkhan's shop. All of them together proceeded towards his home when Sabarkhan challenged their presence. Failing to have explained his genuine action of passing by the accused's house to go to his house, Sabarkhan entered into heated exchange of words with him. Sabarkhan went into his house, brought a gun, the remaining four accused joined him, encircled the three and resorted to firing from their firearms. They identified the Muddamal fire arms No. 17 and 18. This witness categorically stated that it was Sabarkhan, Jorawarkhan, Nasirkhan, Rashidkhan, and Ahmedkhan who encircled them and then fired the gun shot. Mahammadkhan's testimony needs to be examined also in light of the medical evidence which had come on record through Dr. Jay Bhaskarbhai Pancholi, PW-11. They identified the Muddamal fire arms No. 17 and 18. This witness categorically stated that it was Sabarkhan, Jorawarkhan, Nasirkhan, Rashidkhan, and Ahmedkhan who encircled them and then fired the gun shot. Mahammadkhan's testimony needs to be examined also in light of the medical evidence which had come on record through Dr. Jay Bhaskarbhai Pancholi, PW-11. In the history recorded at the ends of Mahammadkhan, this doctor through his testimony, stated that Mahammadkhan sustained grievous injury. The injury was in the nature of punctured wound. In the opinion of the doctor, such injury could have been caused as a result of use of fire arms which he was shown and which he confirmed at the possibility of their use. The presence of the witness at the scene of the incident therefore stands confirmed when his evidence is seen in light of the medical evidence. What further emerges is that the incident did not happen at the spur of the moment or on being provoked by Mohammad. The accused number one, Sadar after a brief altercation went inside his house and returned with a gun. The remaining four accused joined and surrounded the three passers by and shot at them from a close range. The First Informant and this witness too, states that all the five were carrying firearms. Injuries that this witness sustained were gunshot injuries. The suggestion of the defence that Mohammad was carrying a gun is not proved. None of the accused have sustained injuries. 17. The other injured eyewitness Mujabkhan was examined as PW-15 at Exh. 92. He also through his testimony reiterates the facts that the witnesses before him viz. Mahammadkhan and the complainant had narrated. He too, was present in the company of the complainant, Sikandar and Mahammadkhan. All of them together had gone to Mahammadkhan's house. The testimony of this witness also reveals that after a brief heated exchange between Sabar and Mahammadkhan, Sabar went in and returned with a gun. The remaining four accused joined him and circled the three and gun shot was fired at Mahammadkhan, Mujabkhan and deceased Hayatkhan. A suggestion that he was not present at the scene of incident was specifically denied by him. 18. Mujabkhan was an injured eyewitness and that he has sustained injuries is evident from the examination of the Dr. Jay Bhaskarbhai Pancholi, PW-11. 19. A suggestion that he was not present at the scene of incident was specifically denied by him. 18. Mujabkhan was an injured eyewitness and that he has sustained injuries is evident from the examination of the Dr. Jay Bhaskarbhai Pancholi, PW-11. 19. Through the evidence of Mujabkhan, it becomes apparent that the five accused surrounded the four victims, two of them were injured witnesses. After surrounding them as is evident from the evidence of this witness, Nasirkhan challenged them to leave by specifically pointing a gun at Mujabkhan and warning him the same fate unless he left. the suggestion of the defence is that no knife has been said to have been used. None of the witnesses talk of any of the accused wielding a knife. However the serological report does indicate a knife which had blood group "O" that of the deceased. The use of the knife therefore stands confirmed. 20. PW-14, Sikandarkhan Mahamadkhan Malek was also an eyewitness who had accompanied the complainant and Mujabkhan, reiterated the sequence of events at the scene of incident. He too in his evidence has specifically named the five accused. He has, in his evidence, stated that Jorawarkhan, Nasirkhan, Rashidkhan and Ahmedkhan joined the accused No. 1, carrying firearms and fired shots on them. Mujabkhan and Mahammadkhan sustained injuries. Hayat too sustained injuries and thereafter shifted to Patdi dispensary. From the reading of the eyewitness' accounts which has come on record, what has emerged is that when Mahammadkhan, in the company of the complainant Hamirkhan, Sikandar and Mujabkhan were going towards their house and passing by the house of the accused, it was Sabarkhan who entered into a heated exchange and thereafter challenged Mahammadkhan. He did not stop there. He went into his house, returned with a gun and as is evident from the account of all the injured eyewitnesses and other three eyewitnesses who were present at the scene of the offence that all the five accused encircled these persons and fired gun shots, causing death of Hayatkhan. Mahammadkhan and Mujabkhan, as is evident from the medical evidence of doctor Jay Pancholi, sustained serious injuries. What further had emerged from the evidence of these eyewitnesses is that all the five accused were in possession of deadly weapons like fire arms. That the incident was at the spur of moment as suggested by defense, cannot be believed. Mahammadkhan and Mujabkhan, as is evident from the medical evidence of doctor Jay Pancholi, sustained serious injuries. What further had emerged from the evidence of these eyewitnesses is that all the five accused were in possession of deadly weapons like fire arms. That the incident was at the spur of moment as suggested by defense, cannot be believed. All the members from the accused, five in number, initially led by the accused No. 1, whose premeditation was apparent from the fact that he went back in the house and brought back a gun and fired shots at them, evidently make it clear that even if initially there was not a common object, subsequently all the five together with their intention to cause death and cause serious bodily injuries to the injured persons, encircled them and fired gun shots. Kamuben and Dilawrkhan PW 16 and PW 17 who were present at the scene. Their presence was natural. The incident occurred near her house. Dilawarkhan was visiting her and therefore his presence too at the place of the incident stands established. The defence would suggest that Dilawarkhan through his testimony could not clearly indicate which weapon was used by each accused. However in an unlawful assembly when the assailants carry out an unprovoked act/attack and fire gunshots from their firearms, a witness who is present may not recall exactly the nature of the weapon used by individual accused. That all the five were carrying weapons and the injuries were sustained through their use has been evidently proved through the medical evidence too. There is therefore no reason why the version of this witness needs to be discarded. Entries P, Q, R in the FSL report read with Serological report confirm that a country made pistol and a tamancha were used and that the scientific evidence suggested presence of gunpowder. 21. From the testimony of the complainant and the other three witnesses when read coherently with the account of the injured eyewitness, especially that of Mujabkhan that the five accused had a common object is evident from even Nasirkhan. Nasirkhan had warned Mujabkhan of dire consequences if he had not left immediately. 21. From the testimony of the complainant and the other three witnesses when read coherently with the account of the injured eyewitness, especially that of Mujabkhan that the five accused had a common object is evident from even Nasirkhan. Nasirkhan had warned Mujabkhan of dire consequences if he had not left immediately. Evidently therefore that all the five accused had formed an unlawful assembly with a common object to cause such injuries with an intention and knowledge that would cause the death and that such act/offence had caused serious injuries to injured eyewitness Mahammadkhan and Mujabkhan, stands proved from the testimony of Dr. Jay Bhaskarbhai Pancholi, PW-11. 22. Corroboration in terms of the scientific evidence is in terms of FSL report and the serological report. It is evident that firearms had been used from the gunpowder, nitrite and barrel of two guns which were found from the ends of the accused Sabarkhan and Jorawarkhan. Serological report at Exh. 172 also shows that the knife would also have been used in the offending act and the knife stained with the same blood group was found. 23. That the incident occurred near the house of the accused number one is not in dispute. The testimonies of all the witnesses including the two injured witnesses whose version carries greater weight, indicate the manner and the method of the incident. Medical as well as scientific evidence supports their version. Cartridges have been found from the scene of the offence. The accused formed an unlawful assembly. The premeditation was apparent. Accused No. 1 went in and came out with a gun. The other four accused who came Immediately were to armed with deadly weapons as country made pistols etc, armed with such firearms they surrounded the three and fired gunshots. Common object therefore though may not have been initially present did develop subsequently. Utterances of the accused, one of them Nasir, warning the injured witness to withdraw lest he face serious consequences made their intentions clear. Witnesses have been consistent naming all the five accused. In an incident of this nature therefore what injuries and which weapon was used by which accused may not assume significance when the presence of the five accused with a common object is established. 24. The suggestion of the defence that the witnesses who are examined are interested witnesses and since related to the deceased, their testimonies cannot be believed. In an incident of this nature therefore what injuries and which weapon was used by which accused may not assume significance when the presence of the five accused with a common object is established. 24. The suggestion of the defence that the witnesses who are examined are interested witnesses and since related to the deceased, their testimonies cannot be believed. Independent witnesses though available were not examined by the prosecution. Merely because the witnesses are related to the victims would not go against them when of the five, two were injured and therefore their testimonies assume significance. Minor contradictions in the narrative of the versions in the nature of weapons used and contradictions would not taint their version. 25. Even if the defense was to argue that some of the accused had not been attributed any role and therefore could not be charged for having committed offence under section 302 read with section 149 of the Indian Penal Code, it is clear from the evidence on record that once each individual forms part of an unlawful assembly, no other tag needs to be established at the hands of the individual once they having been part of an unlawful assembly, each one is equally responsible for the act of the other. Evidence on record therefore establishes the commission of the offence that the accused were charged for. 26. Coming to the appeal of the State being Criminal Appeal No. 976 of 2014, it is evident from the sentence rendered by the learned Sessions Judge, the accused Nos. 2 to 5, having convicted for offences under sections 302 read with sections 143, 147, 149, have been sentenced to undergo rigorous imprisonment for 10 years. What needs to be noted is that the learned Sessions Judge once having found the conviction punishable, the accused having committed offence under section 302 of IPC could not have been sentenced to undergo rigorous imprisonment for the period of 10 years. Evident it is from the reading of provisions of section 302 of IPC that once the offence of murder is established, the punishment envisaged under this section is; whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine. The minimum sentence therefore that this statute envisages is life imprisonment. Evident it is from the reading of provisions of section 302 of IPC that once the offence of murder is established, the punishment envisaged under this section is; whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine. The minimum sentence therefore that this statute envisages is life imprisonment. It was therefore not correct for the learned Judge once having established that accused were guilty for the offence of death, to have sentenced them merely for rigorous imprisonment of 10 years. 27. Looking to this position therefore, this sentence of the accused who have been convicted for offence under section 302 is enhanced to that of life imprisonment. 28. Accordingly, the sentence of rigorous imprisonment for 10 years imposed upon accused Nos. 2 to 5 is enhanced to that of life imprisonment. The rest of the judgment and order stands confirmed. Criminal Appeal No. 976 of 2014 is allowed to the aforesaid extent. Criminal Appeal No. 773 of 2014 stands dismissed. R & P to be transmitted before the Trial Court. The jail record indicates that the accused Nos. 2 to 4 have been enlarged on bail pending the appeal. They shall surrender before the jail authorities. Time to surrender is granted upto 31st of July 2017 so that they too can serve out the remaining period of sentence. Their bail bonds stand canceled. Appeal Partly Allowed.