JUDGMENT Anant S. Dave, J. At the outset, it is brought to our notice that Accused No.4 - Vora Ibrahim @Ghadiyali Abdulkarim died during the pendency of the appeal on 16.03.2016 and death certificate dated 06.04.2016 issued by the Birth & Death Registration authority of Vadodara Municipal Corporation is produced on record. Hence Criminal Appeal No.1268 of 2013 filed by Accused No.4 - Vora Ibrahim @Gadiyali Abdulkarim stands abated qua him. 1.1 Accused No.6 - Vora Yakubbhai @Ghadiyali Abdul Karim has filed Criminal Appeal No.1269 of 2013, Accused No.5 - Vora Arifbhai @Maharaj Umarbhai has filed Criminal Appeal No.444 of 2013, Accused No.2 - Vora Salimbhai @Vakil Abdul has filed Criminal Appeal No.884 of 2013, accused Nos.1 and 4 - Vora Mehbubbhai @Ghadiyali Abdul Karim and Vora Ibrahimbhai Ghadiyali Abdul Karim respectively have filed Criminal Appeal No.1268 of 2013, and accused No.3 - Vora Yunus @Barlakh Noormohammad has filed Criminal Appeal No.1377 of 2013 challenging the judgment and order dated 28.02.2013 passed by the learned Additional Sessions Judge, Anand in Sessions Case No.47 of 2009 convicting all the accused persons under Sections 141, 146, 148, 149, 302 and 323 of the Indian Penal Code and sentencing them to undergo 6 months RI with fine of Rs. 500/-, in default to undergo 15 days SI for the offence punishable under Section 141 read with Section 143 of the IPC; 2 years RI with fine of Rs. 1,000/-, in default to undergo 1 month SI for the offence under Section 146 read with Section 147 of the IPC; 3 years RI with fine of Rs. 1,000/-, in default to undergo 1 month SI for the offence under Section 148 read with Section 149 of the IPC; 1 year RI with fine of Rs. 500/-, in default to undergo 1 month SI for the offence punishable under Section 323 of the IPC; and imprisonment for life with fine of Rs. 2,000/-, in default to undergo 3 months SI for the offence punishable under Section 302 read with Section 149 of the IPC, and ordered to run all the sentences concurrently. 1.2 All the accused are acquitted for the offence punishable under Section 120B of the IPC since the prosecution failed to prove its case beyond reasonable doubt qua the charge framed under Section 120B of the IPC. 2. 1.2 All the accused are acquitted for the offence punishable under Section 120B of the IPC since the prosecution failed to prove its case beyond reasonable doubt qua the charge framed under Section 120B of the IPC. 2. For the purpose of deciding all these appeals, we have gone through entire evidence direct as well as oral in the backdrop of the case of the prosecution, which is as under: 2.1 As per the case of the prosecution, on 11.10.2009 at around 6:30 pm when the complainant Idrishbhai Ahmedmiya Shaikh PW-4, who is also original first informant and eye witness to the case along with one Mehbubbeg Shaikh [deceased], brother Nasrubeg PW-23 and injured eye witness - Suman Chauhan, Riyazbhai Rasulbhai Shaikh, altogether were present and sitting near a tea stall of one Rafiqbhai. It is further alleged that between 8:00 to 8:15 pm, all accused persons armed with lethal weapons in their hands formed unlawful assembly and attacked Mehbubbeg and Nasrubeg from behind. That original accused No.1 inflicted a knife blow on the lower part of the neck of Mehbubbeg@Chinabhai, Accused No.2 inflicted two blows of sword on Chinabhai, accused No.5 inflicted a knife blow on the stomach of injured Nasrubeg, accused No.3 inflicted a knife blow on both the hands of injured Nasrubeg and accused No.6 inflicted a blow of iron pipe on the injured witness Nasrubeg. That upon alarm being raised by witnesses, all the accused persons left the place and ran away in the same direction from which they had arrived. Injured Chinabhai@Mehbubbeg was taken to Nagarpalika Hospital at Anand and the Medical Officer In-charge Dr. Arvind Dalwadi PW-1 referred the patient to Shri Krishna Hospital, Karamsad for better treatment and injured - Chinabhai @Mehbubbeg succumbed to injuries. So far as injured Nasrubeg is concerned, after receiving treatment, he was discharged from the hospital. At the end of the investigation and upon filing the charge-sheet for the offences punishable under Sections 302, 307, 323, 504, 143, 147, 148, 149 and 120B of the IPC since the case was triable by the Sessions Court, learned Chief Judicial Magistrate, Anand committed the case to the court of Sessions Anand under Section 209 of the Code, 1973 and accordingly charge was framed for all the above offences. 2.2 During the trial, the prosecution examined 34 witnesses and 74 documents. 2.2 During the trial, the prosecution examined 34 witnesses and 74 documents. The case of the prosecution based on the above evidence, which was examined, analyzed and considered by the learned trial Judge specifically on the evidence of the eye witnesses Idrishbhai Ahmedmiya Shaikh PW-4 and injured eye witness Nasruddin Mirza PW-23 and medico legal evidence of PW-1 Dr. Arvind Dalwadi, who examined deceased and injured both on 11.10.2008 around 8:15 pm i.e. on the day of incident itself. In addition to the above, PW-2 Dr. Chetan Jani conducted autopsy and prepared postmortem note of the deceased along with cause of death and Dr. Arunkumar PW-3, who is doctor at Shri Krishna Hospital, Karamsad examined Nasiruddin injured around 9:06 pm on the same day. Relevant injury certificate about injuries on the deceased as well as injured witness Exhs.18 to 24 were issued for which there is no serious dispute. Exh.32 is yadi to medical Officer Shri Krishna Hospital, Karamsad through Anand Town Police Station, Exh.56 is the first information report to Anand Town Police Station and various panchnamas were drawn viz. inquest, recovery of certain articles used in commission of crime, scene of offence panchnama, panchnama of recovery of clothes of deceased and also of clothes of the injured and that of panchas of clothes of original accused Nos.1 and 4 and of original accused Nos.2 and 3 vide Exhs.65, 66, 67, 88, 90, 95 and 106 respectively. Mention is to be made about panchnama of discovery of weapon allegedly used by original accused Nos. 5 & 6 vide Exhs. 137 and 139. FSL report relating to 23 articles in all excluding samples of cotton gauge and blood samples, serological reports together are at Exhs.201, 204, 207, 208, 212 and 213. About dispatch of samples, articles and other items sent to FSL, receipt thereof and forwarding reports, etc. were established by prosecution and believed by the learned trial Judge. 2.3 Upon considering nature of evidence, the trial Judge concluded that prosecution failed to prove its case beyond reasonable doubt qua Section 120B of the IPC, since, material on record was not sufficient so as to believe hatching of conspiracy by all the accused persons. were established by prosecution and believed by the learned trial Judge. 2.3 Upon considering nature of evidence, the trial Judge concluded that prosecution failed to prove its case beyond reasonable doubt qua Section 120B of the IPC, since, material on record was not sufficient so as to believe hatching of conspiracy by all the accused persons. At the same time, all the accused came to be acquitted for the offences under Sections 307 of the IPC, but were convicted under Section 302 of IPC, under Sections 143, 147, 148, 149 of IPC and sentencing them to undergo life imprisonment, etc. to which reference is made in earlier paragraphs. 3. Mr. Pratik Barot, learned counsel for the accused Nos.1 and 6 viz Vora Mehbubbhai @Ghadiyali Abdul Karim and Vora Yakubbhai @Ghadiyali Abdul Karim, respectively, vehemently contended that case of the prosecution suffers from material contradictions, major discrepancies and inconsistencies and if testimonies of eye witness PW-4 Idrishmiya Shaikh is considered in juxtaposition to testimonies of injured witness PW-23 Nasruddin Mirza and that of PW-1, PW-2, PW3, concerned doctors who examined injured and deceased, conducted autopsy and postmortem report was prepared and PW-3 issued certificate of injury qua injured Nasruddin PW-23. It is further submitted that the witnesses viz. PW-4 and PW-23 are interested witnesses since they are driver and brother of the deceased. As per the case of the prosecution, the accused came from behind while the above PW-4, deceased, injured PW-23 and other persons were sitting on 'otta' nearby the tea stall. The incident described by the above witnesses is unbelievable inasmuch as after inflicting the injuries, accused had immediately ran away and it may not be a case of false implication, but certainly a case of over implication inasmuch as Mehbubbeg @Chinabhai was bleeding profusely and he was taken to hospital by PW-4, but clothes of this PW-4 were not seized by the Investigating officer. In spite of presence of two other witnesses viz. Suman Chauhan and Riyazbhai Shaikh, they were not examined and admitted facts remained that there was no enmity of the deceased with Salimbhai - accused No.2. In spite of presence of two other witnesses viz. Suman Chauhan and Riyazbhai Shaikh, they were not examined and admitted facts remained that there was no enmity of the deceased with Salimbhai - accused No.2. Though admission appears on the part of the witness PW-4, no mention was made in the complaint about manner in which Salimbhai assaulted Chinabhai @Mehbubbeg and not to the deceased with sword because he had not seen the assault by sword, and therefore, it was not mentioned in the complaint. That description of weapons viz. sword, knife, stick, etc. are at variance with that of evidence of doctor and absence of light at the scene of offence. If the incident had taken place around 8:00 to 8:15 pm taking injured to the Nagarpalika Hospital at Anand around 8:15 pm as deposed by PW-1 is not possible. As the fight was sudden and though assault by chasing, no investigation is made in this regard and credibility of this witness is eroded for suppressing the vital fact about the quarrel preceding the incident. 3.1 That evidence of Nasrubeg PW-23, injured witness also admitted that incident was sudden and accused came from behind and after commission of crime ran towards railway line. That possibility of assault by other accused was not ruled out in view of serious criminal antecedents of deceased and this witness admitted that no description was given about weapons before the Mamlatdar/Executive Magistrate and admitted facts remain that names of accused were not disclosed to doctor by this witness. In addition to the above, in his cross-examination he has admitted that information about assault and injuries was received by him from other persons. This witness could not notice about the manner in which incident had taken place. 3.2 Therefore, both the above witnesses viz. eye witness PW-4, who was also a complainant and injured witness PW-23 admit that fight was sudden and had no enmity with the deceased. Since assault was made by the accused who came from behind and immediately left in the same direction and witnessing the crime by them is not believable. PW-1 Dr. 3.2 Therefore, both the above witnesses viz. eye witness PW-4, who was also a complainant and injured witness PW-23 admit that fight was sudden and had no enmity with the deceased. Since assault was made by the accused who came from behind and immediately left in the same direction and witnessing the crime by them is not believable. PW-1 Dr. Arvind Dalwadi admits to have witnessed both the injured Chinabhai @Mehbubbeg, who succumbed to injuries later on and Nasrubeg at Nagarpalika Hospital, Anand around 8:15 pm and when the history of the crime was given several persons were present and in police yadi, names of the accused were given by PW-1, but it was reported about the crime only. Even medical certificate about injuries issued after one month and even injured Nasrubeg had not given the name of the accused. There appears to be veracity about number of weapons used in commission of crime, since medical case papers Exh.24 reveal only three weapons. Even possibility of injury Nos.1 and 2 by a weapon like sword or wooden log, the above witness was not in position to say conclusively and such injuries may be caused even due to fall. That PW-32, Laxman Raval, in a complaint it was mentioned that accused No.1 was about to assault him and he had given stick blow, but no such injuries were found. It was deposed to Dr. Arunkumar PW-3 that several persons attacked with weapons, but neither their names nor type of weapons used was described. No doubt, telephonic vardi was given by this PW around 9:20 pm, but in cross-examination PW-33 laxman Raval admitted that the deceased was a history sheeter and had criminal antecedents since 1990 including serious crimes. No witness made any statement with regard to assault by Salim - accused No.2 on the chin of the deceased and also about assault on the front part by sword on deceased. That absence on the part of the injured Nasrubeg about sword before Executive Magistrate, however improves in his testimonies in the court. The manner in which weapons were found including the sword from public place, which was accessible to every one and it was not possible to believe the theory of prosecution about usage of sword, knife, stick, etc. That absence on the part of the injured Nasrubeg about sword before Executive Magistrate, however improves in his testimonies in the court. The manner in which weapons were found including the sword from public place, which was accessible to every one and it was not possible to believe the theory of prosecution about usage of sword, knife, stick, etc. if the injuries on the body of the deceased and injured are considered in juxtaposition to the testimonies of PW-1, PW-2 and PW-3. It is not in dispute that injured Nasrubeg while taken to PW-3 Dr. Arunkumar, neither name of the accused nor weapons used was disclosed and that injured Nasrubeg was conscious. That over implication of accused in a serious crime attributing lethal weapons in their hands so as to substantiate charges under Sections 143, 147, 148, 149 and 302 of the IPC cannot be ruled out. 3.3 That seizure of various articles, including weapons used in commission of crime and sent for FSL conclusively do not support the case of the prosecution. The articles are Parcel-B pipe, Parcel-D knife, Parcel-E knife, Parcels F and G viz. cotton guages whereby sample was taken from the spot of offence and blood marks from the road at the most reveal blood group of 'B' of human being. Parcel-J dasto and Parcel-P knife. Other articles viz. clothes of the deceased and footwear also contain blood group B. 3.4 By taking us through testimonies of Investigating Officer PW-34, Gopinath Rao, it is submitted that in his examination in chief he has admitted his signature on various documents including Yadis sent to medical officer so as to receive postmortem note and injury certificates of the deceased as well that of injured, of summoning FSL officer, dispatching various articles to FSL vide Exh.197 and receipt thereof Exh.198. Likewise, report of FSL along with forwarding letter vide Exhs. 199, 200 and 201 and so that of serological vide Exh.202, 203, 204 along with other forwarding letters Exhs. 205, 206, 207 and 208. However, one of the important facets of investigation which can be termed as major lacuna was absence of scientific investigation in spite of the fact that as per the case of the prosecution, dagger remained in body of the deceased throughout, but no finger prints were obtained. 205, 206, 207 and 208. However, one of the important facets of investigation which can be termed as major lacuna was absence of scientific investigation in spite of the fact that as per the case of the prosecution, dagger remained in body of the deceased throughout, but no finger prints were obtained. In his cross-examination, the Investigating Officer admits in the statement before the Executive Magistrate, injured Nasrubeg had not mentioned about sword in possession of accused No.2. That in spite of availability of independent witnesses viz. Suman Chauhan and Riyazbhai Shaikh, they were not examined as prosecution witnesses and quarrel took place when assault was made by chasing injured before the incident in question is not free from doubt. The above witness further admits that in a statement recorded by him and that of Executive Magistrate injury inflicted by accused No.3 upon injured Nasrubeg was not mentioned. Likewise, in a complaint, no injury is attributed to accused No.4. The above fact is reiterated by injured Nasrubeg that no mention was made about accused No.4 about weapon used on which part of the body. That admission on the part of the Investigating Officer in his cross-examination that no mention was made by Aarif @Maharaj - accused No.5 of causing injury by a knife to Nasrubeg PW-23. Though noticed by the Investigating Officer about injuries of minor in nature caused to some of the accused persons, but fact about quarrel is disputed. 3.5 Therefore, when learned Judge has not believed the case of the prosecution qua charge No.1 viz. about conspiracy under Section 120B of the IPC, formation of unlawful assembly and common object, possession of lethal weapons and the nature of discrepancies, inconsistencies and contradictions in the testimonies of eye witnesses and injured witnesses emerge on record, conclusion of guilt of the accused by believing the case of the prosecution have proved beyond reasonable doubt deserves to be interfered with by quashing and setting aside the judgment of the conviction and sentence rendered by the learned trial Court. 3.6 Alternatively, it is submitted that role of the accused no.6 at the most even if the case of the prosecution is believed to have been proved beyond reasonable doubt would fall under Section 325 read with Section 149 and the sentence commensurate with the guilt deserves to be awarded instead of life imprisonment imposed by the trial court. 3.6 Alternatively, it is submitted that role of the accused no.6 at the most even if the case of the prosecution is believed to have been proved beyond reasonable doubt would fall under Section 325 read with Section 149 and the sentence commensurate with the guilt deserves to be awarded instead of life imprisonment imposed by the trial court. 3.7 So far as Criminal Appeal No.1377 of 2013 is concerned, learned counsel Mr. M.M.Tirmizi while adopting the submissions made by Mr. Pratik Barot, submitted that injured Nasrubeg PW-23 has not implicated the accused but only the complainant did so. Even injury on abdomen by this accused upon injured Nasrubeg is deposed to in cross examination, mention is made about the same. That nature of discrepancies, inconsistencies and contradictions of material in nature in the testimonies of PW-4 eye witness and PW-23 injured witnesses are shown, but reference to which is not necessary since we have recorded the submissions of Mr. Pratik Barot, learned counsel appearing for accused Nos.1 and 6. Our attention is drawn to the decision of the Apex Court in the case of Pandurang Chandrakant Mhatre vs. State of Maharashtra, (2009) 10 SCC 773 in support of his submission that even if accused are charged for the offences under Sections 143, 147, 148, 149, 302, etc., it is always open for the court concerned to look into the purpose and design of members of unlawful assembly and overt act on their part, particularly, evidence of witnesses in this regard is not consistent. In the above case, acquittal ordered by the trial court of all the accused in an appeal preferred by the State of Maharashtra, High Court convicted accused reversing the acquittal order and being aggrieved by and dissatisfied with such reversion, one of the accused preferred criminal appeal before the Apex Court, the appeal came to be partly allowed by considering individual role of the accused convicting the accused convict against whom evidence with regard to chasing and assaulting the deceased was not consistent and out of 12 convicts 8 appellants were held guilty and offence punishable under Sections 148, 149, and 326 of the IPC. It is accordingly submitted that in the facts of this case even if the case of prosecution is believed qua other accused considering the role of this accused and nature of evidence so emerged and that injuries are not inflicted on the deceased, may be convicted under Section 326 read with Sections 148, 149, etc. of the Indian Penal Code. 3.8 Mr. Pratik Barot, learned advocate appearing on behalf of the appellant relied on the following decisions: [1] Raju alias Rajendra and Another vs. State of Rajasthan, (2013) 2 SCC 233 in support of his argument that in a case where accused are convicted under Sections 141, 149 and 302 of Indian Penal Code, common object of unlawful assembly can be gathered no doubt from the manner in which crime is committed and weapons used by offenders and nature of injuries but at the same time in case if upon entire appreciation of evidence sub-groups are discernible in the group of unlawful assembly, the Court can exercise discretion at least by imposing lesser sentence. [2] Krishnegowda and Others vs. State of Karnataka by Arkalgud Police with Nanje Gowda and Another vs. State of Karnataka by Arkalgud Police, (2017) CriLJ 2830 in support of his submissions that when medical evidence and ocular evidence are at variance and inconsistency is of such a nature namely evidence of Medical Officer that injury sustained by the deceased was not on vital part forehead so described by the witness, accused is entitled to benefit of doubt and even in a case when the testimony of eye witnesses who are close relatives of the deceased suffer from contradictions particularly about description of the manner in which crime was committed and though independent witnesses are available, either not examined or if examined do not provide any corroboration, the Court may consider such variations in evidence of eye witnesses as to exact time of incident, presence of people at scene of offence, time of arrival of police at the scene of offence and registering case if any infirmity is found in this regard it will prove fatal to the case of the prosecution. [3] Vinubhai Ranchhodbhai Patel vs. Dudabhai Patel and Others, (2018) AIR SC 2472 wherein the Apex Court was considering the case under Sections 149 and 302 of Indian Penal Code in the backdrop of trial Court failing to frame charges in accordance with the provisions of Criminal Procedure Code when the learned trial Judge convicted original accused nos. 10 and 12 under Sections 302 & 148 of Indian Penal Code and also other accused were convicted for different offences namely under Sections 326 & 323 of Indian Penal Code and rest of the accused namely accused nos. 2, 3, 4, 6, 7, 8, 9, 11, 13 & 14 were given benefit of doubt and came to be acquitted and when appeal was preferred challenging conviction and sentence by accused no. 10 and 12, it came to be dismissed by the High Court and appeal filed by accused no. 1 and 5 for conviction of the offences under Sections 323, 326 etc was partly allowed. It is submitted that in the above case, the Apex Court addressed the relevant sections and that section 149 is a specific offence and for determining liability of members of unlawful assembly or fastening liability on such members under Section 149 of Indian Penal Code it is not necessary that every member of unlawful assembly should commit offence in prosecution of common object of assembly and that mere knowledge of likelihood of commission of such offence by members of the assembly is sufficient and identification of common object essentially requires assessment of state of mind of members of unlawful assembly and such assessment of state of mind can be normally established so as to bring the guilt of the accused home by inferential logic, but at the same time in view of the passage of time the Apex Court awarded compensation to members of the family of each of the deceased and also injured witnesses. [4] As against the law so pronounced in the backdrop of the facts of that case, another decision is relied on by Mr. [4] As against the law so pronounced in the backdrop of the facts of that case, another decision is relied on by Mr. Barot in the case of Joseph vs. State of Tamilnadu with Sahayam and Others vs. State of Tamil Nadu, (2018) AIR SC 93 in which the accused were charged for commission of offence under Section 302 read with Sections 149, 341, 324, 147, 148 and 323 read with Section 149 and Section 326 of Indian Penal Code and ordering sentence of imprisonment imposed upon each of them in all accused no. 1 to 11 by the Sessions Court upon filing Criminal Appeal against the conviction. Madras High Court at Madurai Bench dismissed the appeal and in the above backdrop all the accused were before the Apex Court. In the above case, the Apex Court addressed self imposed restriction to re-appreciate evidence in a case where conviction is ordered by the trial Court remained undisturbed in an appeal filed before the High Court unless some serious infirmity or perversity is shown and then addressed itself to various judgments of the Apex Court whereby principles governing interpretation of Section 149 of Indian Penal Code in two parts was considered normally first part of Section 149 of Indian Penal Code states about the commission of an offence in prosecution of the common object of the unlawful assembly whereas the second part takes within its fold knowledge and likelihood of commission of offence in prosecution of the common object. Our attention is drawn to the facts of the above case wherein other than accused nos. 1, 2 and 3 remaining accused never shared any common object of the unlawful assembly nor they had knowledge of likelihood of commission of that offence in prosecution of common object. Even though accused other than accused nos. 1, 2 and 3 inflicted blows of 'Aruval' and used sticks for inflicting injuries and injured, their conviction under Section 302 with the aid of Section 149 of Indian Penal Code was found to be suffering from serious infirmities and conviction so ordered was quashed and set aside and rest of the accused were convicted under Sections 324, 323 read with Section 149 by modifying the sentence. However, conviction ordered qua accused no. However, conviction ordered qua accused no. 1, 2 and 3 under Sections 302 and 149 of Indian Penal Code was modified as conviction under Section 302 read with Section 34 of Indian Penal Code. [5] Sudhakar alias Sudarshan vs. State Rep. By Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu, (2018) CriLJ 1947 was cited in the context of appreciation of evidence of interested witness cautiously so as to exclude possibility of false implication and the difference between related witness and interested witness so discussed in the above judgment. [6] Inder Singh and Others vs. State of Rajasthan, (2015) 2 SCC 734 . In the above case, rule of caution laid down in Masalti, (1965) AIR SC 202 was applied and based on the evidence surfaced from the record and when number of accused are implicated and sub-groups are discernible, only that sub-group against which there was clear evidence available, is to be convicted with the aid of Section 149 IPC. 3.9 Learned counsel Mr. E.E. Saiyed appearing for accused No.2 in Criminal Appeal No.884 of 2013 would rely on testimonies of Laxman Raval PW-33 and that of PSI Malik vide Exhs. 174 and 175 that FIR ought to have been registered by PSO himself in view of knowledge about incident and not by the complainant. That submissions made by learned advocates appearing for accused No.1 with regard to other contentions are adopted by Mr. Saiyed and also about nature of conviction and punishment to be inflicted upon accused No.2 in the context of evidence available against him. 3.10 So far as Criminal Appeal No.444 of 2013 is concerned accused No.5, learned counsel Mr. Ashish Dagli would contend that no witness clearly or specifically attribute any overt act on the part of the accused and even that of usage of any weapon by him. 3.11 That the accused is falsely implicated and had no previous animosity or enmity arising out of earlier sessions case in which accused No.1 was convicted under Section 307 and sentenced for 5 years. Our attention is drawn to para 3 of the charge framed and non-examination of other eye witnesses viz. Suman Chauhan and Riyazbhai Shaikh and rest of the submissions are adopted of the learned counsel Mr. Pratik Barot, learned counsel appearing for accused Nos.1 and 6. Mr. Our attention is drawn to para 3 of the charge framed and non-examination of other eye witnesses viz. Suman Chauhan and Riyazbhai Shaikh and rest of the submissions are adopted of the learned counsel Mr. Pratik Barot, learned counsel appearing for accused Nos.1 and 6. Mr. A.M. Dagli, learned advocate appearing on behalf of one of the co-convicts in the appeal relied on the decision in the case of Akbar Sheikh and Others vs. State of West Bengal, (2009) 7 SCC 415 in support of his submission that Section 142 of the Indian Penal Code postulates that whoever, being aware of facts which render any assembly an unlawful one, intentionally joins the same would be a member thereof but at the same time whether an assembly is unlawful one or not would depend on various factors mainly a common object formed by the members thereof to commit an offence specified in one or the other clauses contained in Section 141 IPC. In the very judgment, the Apex Court considered the contention of Sections 141 and 149 of Indian Penal Code and requirement of matters to be established by prosecution so as to fasten constructive liability on a person on the ground of being a member of unlawful assembly. It is submitted that in the above case also, the Apex Court relied on a decision in the case of Baladin vs. State of U.P., (1956) AIR SC 181 and Masalti vs. State of U. P, (1965) AIR SC 202 and in the facts of that case when no overt act was attributed to accused Akbar and Kanku though named by witnesses were given benefit of doubt in sharing of common object and committing crime. 4. Mr. Mitesh Amin, learned Public Prosecutor appearing for the respondent - State of Gujarat would contend that conviction recorded by learned trial court convicting all the accused under Sections 302, 147, 148 and 149 of the IPC and sentencing them for life imprisonment and fine for the offence under Section 302 of the IPC and various other sentences for conviction under different offences is based on well appreciation of record viz. evidence, not only established, but proved beyond reasonable doubt by the prosecution and acquittal of accused for the offence under Section 120B of the IPC qua part-I of the charge framed and under Section 307 read with Sections 143, 147, 148, 149 of IPC will not make any dent to the core of the case of the prosecution. That clear evidence emerge on record in testimonies of eye witness and injured witnesses PW-4 and PW-23 get due corroboration from medico legal, FSL, serological and other evidences. That nature of discrepancies, inconsistencies, improvements and contradictions are to some extent omissions on the part of the witnesses are not material or significant and witnesses of the prosecution have remained unshaken. If the consequences of events followed by commission of crime including that of taking both the injured to the nearby Nagarpalika Hospital, Anand and then to Shri Krishna Hospital at Karamsad, medical papers available vide Exh.24 and other such documents along with testimonies of PW-1, PW-2, P-3, Medical Officers and independent witnesses about nature and description of injuries so certified and deposed in the court, possibility of injuries on the body of the deceased and injured by usage of weapons like dagger, knife, sword, pipe, etc. for which even if some variance appeared, the same is of no significance since all major injuries corroborate ocular version of PW-4 and PW-23. That in registration of FIR, commencement of investigation by Investigating Officer, recording statements of witnesses, completion of investigation, filing charge sheet, etc., no lacuna of major in nature is pointed out. As a rule of prudence, testimonies of witnesses are to be read as a whole and bits and pieces are not to be taken out of such testimonies in different context. Even in a given case, failure to describe nature of weapon, injuries on body of injured or even absence of naming the accused in FIR will not be fatal if evidence of eye witnesses and injured witness appear to be trustworthy, reliable and inspiring confidence. It is further submitted that all three medical experts PW-1, PW-2 and PW-3, respectively noticed injuries on injured Nasrubeg and deceased Chinabhai @Mehbubbeg. PW-2, who carried out postmortem confirms and do not rule out such injuries by a weapon like dagger, knife, sword, pipe, etc. It is further submitted that all three medical experts PW-1, PW-2 and PW-3, respectively noticed injuries on injured Nasrubeg and deceased Chinabhai @Mehbubbeg. PW-2, who carried out postmortem confirms and do not rule out such injuries by a weapon like dagger, knife, sword, pipe, etc. It is evident from the record that dagger/big knife by which accused was assaulted remained in the body throughout till postmortem was carried out and accused No.1 has inflicted injury by dagger and Salim - accused No.2, as per FIR and deposition of Investigating Officer, inflicted blows on chin and hand. That initially about nine injuries were noticed on the body of the deceased while carrying postmortem by PW-2 Dr. Chetan Jani and injuries on Nasrubeg, injured witness were deposed to by PW-1 and PW-3 both, and none of the above medical experts ruled out possibility of such injuries caused by usage of weapons which were seized and sent for FSL on which blood Group 'B' of the deceased was found. Even clothes recovered of the deceased also contain blood marks. By taking us through various paras of the judgment under challenge, wherein findings, reasons and conclusions are recorded by learned trial judge for believing the case of the prosecution, it cannot be said that any of the accused was entitled for benefit of doubt. By taking us through the ingredients of Section 149 of IPC, it is submitted that overt act on the part of members of unlawful assembly is not envisaged and what is to be gathered is object on the part of the members of the unlawful assembly and in case a person, who is not a member of unlawful assembly to join such unlawful assembly later on can be held guilty of the commission of crime. 5. Heard learned counsels for the accused and learned Public prosecutor for respondent - State of Gujarat and perused voluminous record of the appeals. 5.1 For deciding all these appeals, testimonies of Idrishmiya Shaikh, eye witness, PW-4 Exh.55 and Nasruddin Mirza PW-23 Exh.142, who is brother of the deceased, are very important. In his examination-in-chief PW-4 admits that he was driver of the deceased receiving Rs. 5.1 For deciding all these appeals, testimonies of Idrishmiya Shaikh, eye witness, PW-4 Exh.55 and Nasruddin Mirza PW-23 Exh.142, who is brother of the deceased, are very important. In his examination-in-chief PW-4 admits that he was driver of the deceased receiving Rs. 3,000/- p.m. towards salary and on the day of incident i.e. on 11.10.2008 around 18:00 hours he along with deceased, injured Nasrubeg PW-23 and brother of the deceased and another friend Suman, all were sitting together on chairs nearby a tea stall of Rafiq. Around 20:00 to 20:15 hours, accused No.1 - Vora Mehbubbhai @Ghadiyali Abdul Karim with dagger, accused No.2 - Vora Salimbhai @Vakil Abdulgani with sword, accused No.5 Vora Arifbhai @Maharaj Umarbhai with knife, accused No.3 - Vora Yunus @Barlakh Noormohmmad with knife, accused No.4 - Vora Ibrahimbhai @Ghadiyali Abdulkarim with knife and accused No.6 - Vora Yakubbhai @Ghadiyali Abdulkarim with iron pipe arrived from behind, the side of railway track and attacked on the deceased and injured Nasru. That dagger blow was received by Mehbubbeg Shaikh on the back and below neck while accused No.2 also inflicted blow of sword on Mehbubbeg @Chinabhai, while accused No.3 inflicted blow of knife on injured Nasrubeg PW-23 on abdomen and accused No.6 also inflicted pipe blow on injured Nasrubeg PW-23 though accused No.5 inflicted a blow but on what part of the body was not known to him. The assailants escaped in the same direction from where they had come and injured was taken to hospital firstly at Nagarpalika Hospital, Anand and then to Shri Krishna Hospital, Karamsad where Mehbubbeg @Chinabhai was declared dead and Nasrubeg PW-23 was admitted in hospital. The assault was due to previous animosity. In the past also, accused No.1 had fired from fire arm on the Mehbubbeg @Chinabhai [deceased] for which he was convicted under Section 307 of the IPC and sentenced accordingly and while enlarged on bail he committed the above crime. The above witness PW-4 admits his signature on the complaint Exh.56 and identifies weapons of assault viz. dagger, Article No.18 which remained in the body of the deceased even after he was declared dead and the above fact appears on record as per testimonies of PW-2, who performed postmortem on the deceased. Likewise, identification of weapon viz. sword used by accused No.3 i.e. article No.31 used by accused No.2 - Vora Salimbhai @Vakil Abdul. dagger, Article No.18 which remained in the body of the deceased even after he was declared dead and the above fact appears on record as per testimonies of PW-2, who performed postmortem on the deceased. Likewise, identification of weapon viz. sword used by accused No.3 i.e. article No.31 used by accused No.2 - Vora Salimbhai @Vakil Abdul. Further, knife article No.38 possessed by accused No.5 - Vora Arifbhai @Maharaj Umarbhai was also identified by him and iron pipe - article No.2 which was used by accused No.6 - Vora Yakubbhai @Ghadiyali Abdul Karim for inflicting injuries on the injured. In his cross-examination when he was subjected to description about scene of offence and topography, the above accused described the same in detail and admitted that nearby the scene of offence, pan shop, eight other shops and a mosque and behind it 500 to 1000 residential houses of Muslim community were situated and for the purpose of offering prayer, the area was visited by those residents. The above witness categorically stated about manner in which attack had taken place. That deceased and injured both were attacked from behind and it was sudden and not apprehended. Suggestion about previous animosity and dispute with regard to outcome of municipal elections and pendency of criminal cases against the deceased - Mehbubbeg@Chinabhai, including that of pending Sessions Case No.48 of 2008 are not denied. That injured Mehbubbeg @Chinabhai, who later on succumbed to injuries was profusely bleeding and was taken to hospital and admitted by this PW-4 and this witness also in turn received blood stain marks on his clothes, is accepted. Even at the time of lodging complaint also, blood stained clothes of PW-4 were noticed by the concerned Police Officer, but such clothes were not presented nor were seized by the police. In his further cross-examination by learned advocate on behalf of accused No.2, this PW denies to have stated in the complaint that while accused No.2 was approaching him to inflict a blow he had given blow of a stick on the head of accused No.2 and denies to have inflicted any injury on the head of accused No.2. Apart from the above PW-4 and PW-23, two other persons were present viz. Sumanbhai Chauhan and Riyazbhai Shaikh and the above fact was stated by him in the complaint lodged by him. Apart from the above PW-4 and PW-23, two other persons were present viz. Sumanbhai Chauhan and Riyazbhai Shaikh and the above fact was stated by him in the complaint lodged by him. About second stage of the event that taking injured, who succumbed to injuries and died and Nasruddin Mirza PW-23, who survived, both were taken immediately to Nagarpalika Hospital, Anand, names of assailants with weapons were given and this PW vividly describes sword, knife, pipe, etc. and that Nasruddin Mirza PW-23 was conscious. According to this witness, it was important to first provide medical treatment to injured and then to lodge complaint before the police, but the time which was taken for providing better medical services at Shri Krishna Hospital, Karmasad, where Mehbubbeg @Chinabhai was brought dead, so declared by the doctor and Nasruddin Mirza PW-23 was provided further medical treatment. About panchnamas viz. scene of offence, etc. drawn in his presence is admitted, including that recovery of various article, viz. article No.10 - wooden log and from the garbage nearby platform No.5 of railway station, sword was discovered upon a sniffer dog reached nearby that place. About absence of light at the scene of offence and that incident lasted for 5 minutes or so, the fact is admitted, but at the same time accused were known persons and it was not that dark so that no identification could be made of the assailants. Likewise, once again this witness is subjected to cross-examination by the advocate on behalf of accused Nos.3, 4 and 6 wherein it is admitted that in the complaint lodged by him, it was not stated that accused No.3 had inflicted any blow on stomach on the injured. It is not true that in his complaint it was not stated by him that accused No.6 had inflicted pipe blow on head. That he reiterates the incident of assault and inflicting injuries by assailants was so sudden and the assailants escaped immediately. Further, he denies that he was not present at the time of incident and that he had seen knife article 38 in the hand of accused No.5 on the day of incident. 5.2 Nasruddin Mirza PW-23 in his examination-in-chief by and large stated about manner in which assailants inflicted grievous injuries with weapons of assault and accused No.1 inflicting dagger blow on his brother viz. Mehbubbeg @ Chinabhai. 5.2 Nasruddin Mirza PW-23 in his examination-in-chief by and large stated about manner in which assailants inflicted grievous injuries with weapons of assault and accused No.1 inflicting dagger blow on his brother viz. Mehbubbeg @ Chinabhai. Accused No.6 inflicted pipe injury on him and upon receiving such blow he fell on the ground. Further, accused No.5 had inflicted a knife blow on left side abdomen and injured figures of his right hand. That previous animosity in which accused No.1 was convicted and sentenced and the incident happened when accused No.1 was on bail. Weapons of articles were identified by this accused so also about registration of various offences under the Indian penal Code, including that of Section 307 against the deceased Mehbubbeg @ Chinabhai while he had no knowledge about the registration of many other offences during the period between 1981 to 1984. The above witness PW-23 confirms about complaint given by PW-4 and denies that he was not present at the time when the incident had taken place and the place also had which was common meeting point and all of them were sitting on chairs in open place. About the time, 20:00 to 20:15 hours when the incident had taken place is admitted by this witness and denies to have stated before the Executive Magistrate the he had inflicted blow of knife and hand by sword. He was conscious while taken to Nagarpalika Hospital at Anand and no question was asked about assailants by the doctor and, therefore, no such information was given by him However, this PW denies that he heard PW-4 disclosing names of weapons before the doctor at Nagarpalika Hospital, Anand. That he was admitted as indoor patient at Shri Krishna Hospital, Karamsad and, therefore, he was not aware about time at which the complaint was lodged. This PW was discharged from hospital within 12 days. That blood stained clothes of this witness were handed over to doctor at Shri Krishna Hospital, Karamsad around 21:00 hours. In para 15 of cross-examination, place of offence and surrounding is described for which similarity appears in the testimonies of PW-4 and denies that it was not possible to identify the accused - assailants and weapons. Further he denies to have not witnessed accused No.2 with sword and attacking the deceased. In para 15 of cross-examination, place of offence and surrounding is described for which similarity appears in the testimonies of PW-4 and denies that it was not possible to identify the accused - assailants and weapons. Further he denies to have not witnessed accused No.2 with sword and attacking the deceased. However, in the cross examination of this witness by learned advocate on behalf of other accused, this witness admits that due to alarm raised and the incident had taken place so suddenly, some persons had arrived there and was not in know of detailed facts about as he was injured and making all efforts to save his brother and himself. That admission on his side about individual role of the accused and usage of weapon of assault, he came to know later on. Further details were given about injuries caused by assailants to doctors at Nagarpalika Hospital at Anand and Shri Krishna Hospital, Karamsad, both. That PW-1 Dr. Arvind Dalwadi, in-charge of Nagarpalika Hospital, Anand was examined vide Exh.17. 5.3 However, looking to the serious condition of the injured after providing preliminary treatment, for detailed examination and further treatment he was referred to Shri Krishna Hospital, Karamsad. That possibility of injuries by weapon like sword, knife were not ruled out and injuries were found to have been inflicted in near past and were grievous. Certificates 6/18 was identified Exh.20. All the injuries were sufficient in ordinary course to cause death and admits to have noticed injury No.2 with dagger inside the body and injury No.1 possible by usage of sword. So far as injured is concerned, mainly two injuries were noticed, 4.5 x 1 cm width and depth of 1.5 cms on lower part of the left side of abdomen and head injury of temporal region of 3 cm x 0.3 cms of width i.e. 3 x 0.5 cms. bone deep and the injured were found bleeding and both were referred to Shri Krishna Hospital, Karamsad by Memo Exh.21. Again, this PW reiterates about injury caused on PW-23 were of near past and not serious one. But possibility of injury Nos.1 and 2 both by knife blows is not ruled out. So far as injury No.2 is concerned, it is denied that such injury is possible by usage of iron pipe. Again, this PW reiterates about injury caused on PW-23 were of near past and not serious one. But possibility of injury Nos.1 and 2 both by knife blows is not ruled out. So far as injury No.2 is concerned, it is denied that such injury is possible by usage of iron pipe. In his cross-examination, this witness admits to have provided preliminary treatment to both the injured for about 10 minutes and that he is not seen all injuries in detail. He categorically denies that he has not recorded history of patients. 5.4 No doubt in yadi which was forwarded to police, names of the accused were not stated, but again admits that yadi was sent by him through peon of the hospital. That names of the assailants which were noted down by him for which certificates were issued about injuries by PW-23 such names of the assailants were recorded based on the history of the incident given by PW-4 since injured PM-23 was not in a position to give details about the incident which was taken so disclosed by PW-4. Injuries on head of injured PW-23 possible by sharp cutting weapon is not ruled out. In the case of Mehbubbeg @Chinabhai, this witness himself had recorded the names of the assailants, weapons of assault, including article No.5 knife shown to this witness is identified. In cross-examination, this witness admits that injury No.1 in the certificate Exh.22 was not penetrative one, but slanting wound and possibility of such injury in case if a person who come across such sharp edged weapon, is not ruled out. Again, Exh.24 containing case papers and history given by PW-4 qua injured and deceased - Mehbubbeg @Chinabhai, names of assailants and weapons were admitted. 5.5 Likewise, PW-2 Dr. Chetan Jani, who performed postmortem recorded 9 injuries on the dead body. He admits to have received yadi Exh.32 by him around 20:50 hours on 12.10.2008 from the police constable of Anand Town Police Station. That postmortem was conducted at 9:00 hours of 12.10.2008 and was completed by 10:25 hours. That on the shirt and banian of deceased, 5 and 2 respectively, cut marks were noticed on the left shoulder of shirt. 5.6 Dr. Arunkumar PW-3, who is doctor at Shri Krishna Hospital admits that injuries inflicted Nos.1 to 3 were simple in nature. That postmortem was conducted at 9:00 hours of 12.10.2008 and was completed by 10:25 hours. That on the shirt and banian of deceased, 5 and 2 respectively, cut marks were noticed on the left shoulder of shirt. 5.6 Dr. Arunkumar PW-3, who is doctor at Shri Krishna Hospital admits that injuries inflicted Nos.1 to 3 were simple in nature. PW-12 Idrishmiya Memon, one of the panchas of the recovery of clothes of accused No.3 confirms to have signed panchnamas and contents thereof and in his cross-examination by learned Advocate on behalf of accused Nos.1, 2, 3, 4 and 5 categorically denies not to have signed the panchnama and that procedure of drawing panchnama had not taken in his presence. 5.7 For the sake of appreciating the evidence, it is necessary to read the evidence of Doctor Chetanbhai Biharilal Jani PW-2 who had done P.M. Dr. Chetanbhai Biharilal Jani, Prosecution Witness No. 2 states in his evidence that, he was on duty on 12/10/08 in Forensic Medicine Department at Karamsad Medical College, at that time, dead body of deceased Mehbubbeg @ Chinabhai Mahamadbeg Mirza was sent for doing P.M. by Police Inspector of Anand Town Police Station. There were Police Yadi, Inquest Panchnama and Post Mortem form along with that. P.M. of dead body was started at 09/00 hours and completed at 10/25 hours. He had worn following clothes on his body. [1] Light sky blue coloured full sleeves shirt, on which a tailor mark of Arvind was there, all the buttons of the shirt were as it is and shirt was full of blood. [2] Sleeveless banyan of Smart Brand was wet by blood. [3] Sky blue coloured underwear having design. [4] There was a black coloured pant of Arvind Brand, and a black coloured belt at waist, and many stains of blood were found on said pant. Following cuts were found of the Shirt. [A] A cut of 11 cm. at left shoulder outside. [B] A cut of 3 cm. at the front side of shirt at right chest, 3 cm. right side from centre line in transverse situation. [C] Approximately 2.5 cm. long cut at the front on left side of shirt towards seven cm. left side at the sixth button in transverse situation. [D] At the back of right side of the shirt, below sewing line at 10 cm. right side from centre line in transverse situation. [C] Approximately 2.5 cm. long cut at the front on left side of shirt towards seven cm. left side at the sixth button in transverse situation. [D] At the back of right side of the shirt, below sewing line at 10 cm. below, there was a cut of L shape of English, its standing point is 3 cm. in length, and Transverse point was 2 cm. in length. [E] Below the cut mark "D", at the right side of back of the shirt, 3 cm. long cut was there. Following cuts were found on Banyan. [A] At the back of right side, there was a cut of 5 cm. long, which was relevant with cut "D" of the shirt. [B] At the right side of the Banyan, at back side, there was a cut of 3 cm, which was relevant with the cut "E" of the Shirt. Further the above witness states that, while external examination of the dead body, following external injuries were found. [1] There was crushed transverse wound of approximately 3.5 X 0.5 cm. below 1.5 cm. at the part of chin. [2] There was a crushed wound of approximately 4.5 X 0.5 Cm. in transverse situated below chin in centre. [3] On 1/3 part of left arm, at the outside, there was stab wound having measurement of approximately 7 X 1 cm. in standing situation, its one point was very sharp and second point is not sharp. This wound was going to below, back and outside at 8 cm. deep of arm. This injury was relevant with the cut "A" injury on shirt. [4] At the front side of chest on right side, at the centre of third rib, there was a stab wound of approximately 2X0.5 cm. at 3 cm. right side from the centre line in transverse condition, and its lower point was outside, and was sharp. Inside point of this wound was in round shape. This wound was going 3 cm. in deep in the wall of chest. But it was not going into cavity of chest. This injury was relevant with cut "B" on shirt and the boundary of Banyan was at below level of the same, no such cut was found on banyan. Inside point of this wound was in round shape. This wound was going 3 cm. in deep in the wall of chest. But it was not going into cavity of chest. This injury was relevant with cut "B" on shirt and the boundary of Banyan was at below level of the same, no such cut was found on banyan. [5] On left side of stomach, on front side from middle line to 8 cm, inside cut wound of 2 x 0.5 cm measurement found and said wound was deepen up to muscle level and it was not passing into cavity of stomach and it was corresponding to "C" cut wound and banyan was found short and there was no cut wound found related to the wound. [6] On back side of right hand side of wrist, C cut wound of 5 cm x 3 x 1 cm measurement found from joints of wrist and same was deepen up to muscle. [7] On back side of throat, one injury found in middle line in which knife was found thumped and such thumped wound was found in slanting condition and which was having measurement 2.5 x 1 cm and it was 12 cm on external occipital pro tour burns on head portion. Right cover of this wound was curved and left corner was sharpening. This injury having 17 cm height was leading inside portion. On throat partition, on back side of fifth ball of spinal code it said wound was 2 cm widen and spinal code is cut on said level, from sixth ball of spinal code, it was cut 1 cm longer and coming outside. Handle of stiletto dagger was around 9.5 cm longer and there were three rivets found on part of wood. Blade of dagger was 25 cm longer and dagger having length of 17 cm was thumped into the body portion. Plastic taps found on fruit of dagger. This dagger was sharpening at side edge. Maximum width of dagger was 3 cm. From handle of fruit, 13 cm fruit was bent in its axes. This witness drew diagram sketch of stiletto in postmortem report. In accordance with evidence of witness, this injury was sufficient to cause death of deceased and such injury might take place with stiletto/dagger. This dagger was sharpening at side edge. Maximum width of dagger was 3 cm. From handle of fruit, 13 cm fruit was bent in its axes. This witness drew diagram sketch of stiletto in postmortem report. In accordance with evidence of witness, this injury was sufficient to cause death of deceased and such injury might take place with stiletto/dagger. [8] On back side of right hand side of dagger, 8 cm from middle line, from scapula bone of shoulder, around 5x1 cm from lower level, wound found in straight position. It was leading from scapula bone to cavity of chest and depth was up to 25 cm and such injury might take place by above mentioned stiletto/dagger and this injury was corresponding to "D" wound on shirt and "A" wound on banyan. [9] On back side of chest, at level of 10th rib, from middle line, at 10 cm right hand side, 3x1 cm thump wound found and end of which was sharpen while other end was curved. This injury was going from chest of wall to 10th intercostals space from cavity of chest. This injury might pass from right hand side lungs and it was capable enough to commit murder on independent basis. This "E" injury on shirt and "B" cut injury on banyan were corresponding. This injury was in slanting condition and outside end was leading on upper portion and depth of lungs was up to 6 cm and all these injuries were prior to death and were afresh. In furtherance, said witness submits as under: [A] Injury No.1 and Injury No.2 can take place with blunt substance. [B] Injury No.3 can take place with sharpen substance. [C] Injury No.4 can take place with Sharpen substance. [D] Injury No.5 and Injury No.6 can take place with Sharpen substance. Injury No.1 to Injury No.6 was not capable enough to commit murder on independent basis. External injury No. 7, 8 and 9 were capable enough to commit murder on independent basis out of which external injury no.7 could take place by stiletto/dagger. External injury no.8 was look-a-like injury as of injury no.7 while external injury no.9 would take place with sharpen weapon [stiletto/dagger found out]. External injury no.9 was on lower portion of right lungs having measurement of 2 x 1 cm x 1 cm in thumped condition. External injury no.8 was look-a-like injury as of injury no.7 while external injury no.9 would take place with sharpen weapon [stiletto/dagger found out]. External injury no.9 was on lower portion of right lungs having measurement of 2 x 1 cm x 1 cm in thumped condition. Due to external injury no.8, on back side of left lungs, thumped wound in 3.1 x 1 cm was found. As per opinion of this witness, changes found on dead body were corresponding to details mentioned at night timings of 8 pm to 9 pm of 11/10/2008. In furtherance, said witness submitted that, ground of death taken place is stab injuries taken place on parts of throat and chest due to sustaining hemorrhage and shock. This witness has during course of postmortem, on throat portion of deceased by stiletto/dagger, blood samples of deceased, cloths no.4 worn by deceased and thread no.2 and samples of viscera for the purpose of chemical analysis and presence of alcohol in blood and proportion blood samples and all such muddamal articles was in sealed condition through Police Constable Narharibhai Kalabhai of Anand Town Police Station forwarded on 13/10/2008 and office copy of said forwarding letter was produced for said matter vide Exhibit: 33. This witness had stiletto/dagger of muddamal articles no.18 with sharpen edge place with blunt substance and such injury could take place with article no.31 blunt part of sword. 5.8 It is essential to discuss, evidence of FSL with evidence of doctor. This witness had stiletto/dagger of muddamal articles no.18 with sharpen edge place with blunt substance and such injury could take place with article no.31 blunt part of sword. 5.8 It is essential to discuss, evidence of FSL with evidence of doctor. As per case of Complainant party, during dog tracking panchnama, in presence of scientific officer of FSL Van, white color cloth, iron steel rod, air gun having wooden handle, black color stiletto/dagger having steel handle having edge of 9.5 inch and other iron rod which is having length of 11 inch and such all muddamal articles was detained and taken into custody in presence of panch persons vide Exhibit: 67 and same was sealed on the place and said panchnama is well supported with evidence of Complainant side witness no.6 Anishbhai Ibrahimbhai Malek and such muddamal article vide Exhibit: 198 was forwarded to FSL Department as on 11/10/2008 and said muddamal articles was received on 23/10/2008 to FSL department which transpires from acknowledgment letter produced vide Exhibit:199 and during course of such FSL Investigation proceedings, white color cloth, iron steel rod, air gun having wooden handle, black color stiletto/dagger having steel handle and presence of human blood having "B" blood group found out and said FSL evidence transpires from Exhibit: 201 and Exhibit: 204. 5.9 It is the matter of Complainant party that, after commitment of said incident, Iddrish lodged Complaint and place of incident taken place was shown to police in presence of panch persons and police executed panchnama of said place and blood lying on said place was obtained with help of cotton gloves and resin cover of said stiletto/dagger and silver color cover of stiletto/dagger, wooden substance, white hand kerchief, sky color sandal, pink color sleeper, controlled clay and controlled glows pieces were marked vide Exhibit: 198 and in forwarding note Mark "F" to Mark "O" vide Exhibit: 198 forwarded to FSL department and such muddamal articles of forwarding note was received from FSL and same is established from record produced vide Exhibit: 199. In accordance with report produced vide Exhibit: 201 of FSL, presence of human blood having "B" group was found out from all such muddamal articles. In accordance with report produced vide Exhibit: 201 of FSL, presence of human blood having "B" group was found out from all such muddamal articles. 5.10 Cloths worn by injured Nasru bag, Complainant Iddrish produced clothes was detained and taken into custody as per the details of panchnama and vide forwarding note of Exhibit: 198, Mark S, Y, Z was assigned and forwarded it to FSL department and after receipt of such muddamal articles to FSL department, it was analyzed and as per opinion of FSL department, presence of blood visible and in accordance with evaluation result of serological analysis report of Exhibit: 208, presence of human blood having "B" group was found out from all such muddamal articles. 5.11 It is the matter of Complainant party that, after executing postmortem of dead body of Mehbubbeg, thumped stiletto/dagger in body and belt worn by deceased and two threads, four plastic and glass bottles and card board box was sealed and four bottles out of which one made of plastic, two small glass and one small glass tube was obtained by Medical Officer in sealed condition and same was handed over to Police Constable Narsinhbhai Kalabhai buckle no. 200 and said muddamal articles was brought by Police Constable Narsinhbhai Kalabhai and produced in the police station in presence of panch persons and during course of Postmortem, thumped stiletto/dagger in the body of deceased was wrapped in brown paper and sealed it while other articles on body was kept in sealed card box and such muddamal articles were assigned Mark P and Mark Q respectively and forwarding note was forwarded to FSL department and in accordance with opinion of FSL department, clothes of deceased and on said clothes as well as on belt of deceased, presence of human blood having "B" group was found out from all such muddamal articles. Stiletto/dagger thumped vide Mark P on which also presence of human blood having "B" group was found out while, in bottle no.4 of viscera stomach small intestine and plastic bottle no.5 liver and kidney and in small glass bottle no.6, blood containing preservative in which in accordance with opinion of FSL, there is no presence of any chemical poison or presence of alcohol transpired and similarly, presence of blood visible on clothes of deceased was presence of human blood having "B" group was transpired. 5.12 It is the matter of Complainant party that, at the time of commitment of incident, clothes worn by Accused person and weapons used by Accused persons were detained and taken into custody vide panchnama produced vide section 27 of Indian Evidence Act and such entire muddamal articles was forwarded for examination before FSL department vide Exhibit: 209 and same was assigned Mark A-1 to P-1. Considering FSL report produced vide Exhibit: 212, there is no presence of human blood visible on sample K-1 or any other muddamal articles and sample K-1 which is stiletto/dagger and as per matter of Complainant party, Accused person Ibrahim Yakub alias Dhadiyari was under police custody and meanwhile, voluntarily shown willingness to produce stiletto/dagger in presence of panch persons and stiletto/dagger was collected from the place from which it was thrown out for which discovery panchnama was executed in presence of panch persons and said panchnama was taken on record vide Exhibit: 124 and in such panchnama, witness no.16 in favor of Complainant party Altaf Husain Gulam Mohmad produced vide Exhibit: 124 was supporting to panchnama and stiletto/dagger which was detained and taken into custody vide panchnama and same was discovered by Accused person Ibrahim alias Ghadiari from railway line and said stiletto/dagger was forwarded vide Exhibit: 209 by executing forwarding note before FSL Department and during course of FSL, presence of human blood transpired from such stiletto/dagger and similarly during course of serological analysis report produced vide Exhibit: 213, presence of human blood having "B" blood group meaning presence of blood of deceased was transpired except that there is no presence of human blood found out from cloths of Accused person detained and taken into custody and similarly, there is no presence of blood transpired from weapons shown by Accused persons. Similarly, from the evidence of FSL, it is transpired that during course of Investigation proceedings, presence of human blood transpired from stiletto/dagger discovered by Accused person Ibrahim alias Ghadiyali, on voluntary basis in presence of panch persons. 5.13 During Course of Investigation proceedings, clothes worn by Accused person and on said clothes due to thump/slab of weapons, holes visible on clothes and whether such holes or cut can take place by weapons detained and taken into custody and for carry out such Investigation proceedings, Investigation Officer supplied weapons and clothes of deceased before FSL department. 5.13 During Course of Investigation proceedings, clothes worn by Accused person and on said clothes due to thump/slab of weapons, holes visible on clothes and whether such holes or cut can take place by weapons detained and taken into custody and for carry out such Investigation proceedings, Investigation Officer supplied weapons and clothes of deceased before FSL department. If we consider the deposition of Post Mortem executor Doctor Jani than, he had during representation of his deposition, described the injuries which were found on body of deceased and in support of which crystal clear evidence produced about having cut wounds on shirt and banyan of deceased and banyan transpired on stomach and on such part, specific evidence produced in such circumstances, it is pertinent to verify whether, those cut wounds on shirt and banyan of deceased could take place by weapons utilized for committing such offence. Considering above evidence, it is pertinent to discuss the evidence of Doctor Jani. In accordance with evidence of Doctor Jani, following cuts found on shirt and banyan of deceased. Following cuts transpired on Shirt [A] 11 cm long cut on part of left shoulder. [B] 3 cm long cut on right hand side of chest of shirt from middle line, 3 cm right hand side in slanting condition. [C] On front side of shirt, from sixth button, 7 cm on left hand side, 2.5 cm long cut wound in slanting condition found out. [D] On back side of shirt, from stitching line at a distance of 10 cm on lower portion, in English language "L" shape cut and same standing end was 3 cm longer and slanting end was 2 cm longer. [E] Cut Mark, "D" on lower right of shirt on back side 3 cm longer. Following cuts transpired on Banyan. [A] On back right hand side, 5 cm long cut transpired and same was corresponding to the "D" cut shape of shirt. [B] On back side of Banyan, 3 cm long cut visible and it was corresponding to E cut of shirt. If we consider the FSL report, in accordance with evidence produced by Dr. Jani found on shirt and banyan of deceased, whether those cuts transpired can taken place by which weapons used. [B] On back side of Banyan, 3 cm long cut visible and it was corresponding to E cut of shirt. If we consider the FSL report, in accordance with evidence produced by Dr. Jani found on shirt and banyan of deceased, whether those cuts transpired can taken place by which weapons used. 5.14 On external side of left shoulder, 11 cm longer cut transpired and in accordance with evidence of Doctor Jani, on left shoulder, in 1/3 rd portion on external side, 7x1 cm stab wound in standing condition visible and one end of which was sharpen and this wound was 8 cm in depth in muscle of shoulder on lower and back side going on external direction. This injury was corresponding to "A" cut on shirt. in accordance with evidence produced by Doctor Jani, on right hand side of deceased, 3 cm longer from middle line 3 cm on right hand side in slanting condition. Injury no.4 on right hand side of chest on front side from third ribs and middle line, on 3 cm right hand side around 2 x 0.5 cm stab wound in slanting condition and lower end was on external direction as well as sharpen. Inner end of this wound was in round shape. This injury [wound] was 3 cm deepened in wall of chest. This injury was corresponding to cut "B" wound in the shirt. In accordance with evidence of Doctor Jani, on front side from middle line of left stomach, at navel level of 8 cm and in size cut wound of 2 x 0.5 cm which was deepen up to "C" cut would. In accordance with evidence of Doctor Jani, on back side of right hand side, below scapula bone of shoulder, around 5.1 cm from lower level, wound found in straight position. It was leading from scapula bone to cavity of chest and said wound was on back side of 4th, 5th rib and up to depth was up to 25 cm and such injury might take place by above mentioned stiletto /dagger and this injury was corresponding to "D" wound on shirt and "A" wound on banyan. in accordance with evidence of Doctor Jani, On back side of chest, at level of 10th rib, from middle line, at 10 cm right hand side, 3x1 cm thump wound found and end of which was sharpen while other end was curved. in accordance with evidence of Doctor Jani, On back side of chest, at level of 10th rib, from middle line, at 10 cm right hand side, 3x1 cm thump wound found and end of which was sharpen while other end was curved. This injury was going from chest of wall to 10th intercostals space from cavity of chest. This injury might pass from right hand side lungs and it was capable enough to commit murder on independent basis. This "E" injury on shirt and "B" cut injury on banyan were corresponding. Medical Evidence Injuries sustained as per deposition of Dr. Arvindbhai Dalwadi PW-1 Injuries Injuries sustained by deceased Chinabhai Injuries sustained by injured Nashrubeg Injury No.1 Around 1.5 inch cut wound on lower portion of chin On right hand side of stomach on lower portion, one 4.5 inch long 1 cm wide, 1.5 cm deep, slanting cut wound and same was taken place by sharpen weapon from which blood was flowing. Injury No.2 Around 3 cm stab wound in which weapon was present which was on back side of throat on right hand side, On left side of head, on temporal part, one 3 inch long 0.5 cm wide and slanting cut wound having depth of bone and edge of which was sharpen and blood was flowing. Injury No.3 One inch cut wound on right cheek Injuries sustained as per deposition of Dr. Arvindbhai Dalwadi PW-1 Injuries as per evidence of PM executor Doctor Chetan Jani witness no.2 of Complainant party Injuries sustained by deceased Chinabhai Injuries sustained by injured Nashrubeg Injury No.1 On chin portion slanting crush wound having measurement 3.5 x 0.5 cm Injury No.2 On chin portion slanting crush wound having measurement 4.5 x 0.5 cm Injury No.3 On left shoulder in 1/3 rd external portion stab wound of 7x 1 cm in standing condition and one end of which was sharpen and this wound was of 8 cm depth on back side of muscle of shoulder and going to external direction Injury No.4 On front side of right hand side of chest at level of 3rd rib, 2x 0.5 cm stab wound in slanting condition and lower end of which was on external direction and same was sharpen while inside wound was in round shape and same was having depth of 3 cm in wall of chest but, same was not going in cavity of chest. Injury No.5 on front side from middle line of left stomach, at navel level of 8 cm and in size cut wound of 2 x 0.5 cm which was deepen cut would. Injury No.6 On back side of right hand side of wrist, C cut wound of 5 cm x 3 x 1 cm measurement found from joints of wrist and same was deepen up to muscle Injury No.7 On back side of throat, one injury found in middle line in which knife was found thumped and such thumped wound was found in slanting condition and which was having measurement 2.5 x 1 cm and it was 12 cm on external occipital pro tour burns on head portion. Right cover of this wound was curved and left corner was sharpening. This injury having 17 cm height was leading inside portion. On throat partition, on back side of fifth ball of spinal code it said wound was 2 cm widen and spinal code is cut on said level, from sixth ball of spinal code, it was cut 1 cm longer and coming outside. Handle of stiletto dagger was around 9.5 cm longer and there were three rivets found on part of wood. Blade of dagger was 25 cm longer and dagger having length of 17 cm was thumped into the body portion Injury No.8 On back side of right hand side of dagger, 8 cm from middle line, from scapula bone of shoulder, around 5x1 cm from lower level, wound found in straight position. It was leading from scapula bone to cavity of chest and depth was up to 25 cm Due to external injury no.8, on back side of left lungs, 3x 1 x 1 cm thump wound transpired. Injury No.9 On back side of chest, at level of 10th rib, from middle line, at 10 cm right hand side, 3x1 cm thump wound found and end of which was sharpen while other end was curved. This injury was going from chest of wall to 10th intercostals space from cavity of chest. This injury might pass from right hand side lungs and it was capable enough to commit murder on independent basis. This "E" injury on shirt and "B" cut injury on banyan were corresponding. This injury was going from chest of wall to 10th intercostals space from cavity of chest. This injury might pass from right hand side lungs and it was capable enough to commit murder on independent basis. This "E" injury on shirt and "B" cut injury on banyan were corresponding. This injury was in slanting condition and outside end was leading on upper portion and depth of lungs was up to 6 cm Due to Injury No.9, on lower portion of right lungs, 2x1 cm thump wound transpired Injuries sustained by injured - Nasrubeg as per deposition of Dr. Arunkumar R.Varun, Shri Krishna Hospital, Karamsad As per evidence of Doctor A.R. Varun of Shri Krishna Hospital, injuries sustained by injured Nashrubeg Injuries taken place by which kind of weapon Injury No.1 on lower stomach on right hand side sharp cut margin of 10x 2x 1 cm Normal type of Injury Injury No.2 on left hand side of head sharp wound of 5 x 0.5 x 0.5 cm Normal type of Injury - Take place by iron road pipe type weapon Injury No.3 on right hand knee portion on front side of 5 x 2 x 0.5 cm Normal type of Injury Injury No.4 cut nail on right hand side middle finger Serious type of Injury Muddamal articles forwarded to FSL on 11.10.2008 and forwarding note of it and result of FSL analysys : Sr. No. Description of Muddamal Article From where Muddamal Article traced out Mark Opinion of FSL 1 White Jabbha detained and taken into custody from place where offence committed on Anand Railway Platform of Dog track A Human blood - Blood group undecided 2 Iron rod type pipe detained and taken into custody from place where offence committed on Anand Railway Platform of Dog track B Human blood - Blood group undecided 3 Local Made Air gun in wooden handle detained and taken into custody from place where offence committed on Anand Railway Platform of Dog track C Human blood - Blood group "B" 4 Black color stiletto/dagger detained and taken into custody from place where offence committed on Anand Railway Platform of Dog track D Human blood - Blood group "B" 5 Iron stiletto/dagger of steel handle detained and taken into custody from place where offence committed on Anand Railway Platform of Dog track E Human blood - Blood group "B" 6 Cotton glows containing blood lying on the cement seat kept in one Plastic box detained and taken into custody from place of Old Stare, where offence was taken place F Human blood - Blood group "B" 7 Cotton glows containing blood lying in radius of five feet kept in one Plastic box detained and taken into custody from place of Old Stare, where offence was taken place G Human blood - Blood group "B" 8 Black color regzin cover [Stiletto/dagger] detained and taken into custody from place of Old Stare, where offence was taken place H Human blood - Blood group "B" 9 Silver cover of Stiletto/dagger detained and taken into custody from place of Old Stare, where offence was taken place I Human blood - Blood group "B" 10 One wooden article containing blood marks detained and taken into custody from place of Old Stare, where offence was taken place J Human blood - Blood group "B" 11 Handkerchief containing blood marks detained and taken into custody from place of Old Stare, where offence was taken place J Human blood - Blood group "B" 12 Sky color one pair of sleeper no 7 detained and taken into custody from place of Old Stare, where offence was taken place L Human blood - Blood group undecided 13 One pair of pink strep sleeper detained and taken into custody from place of Old Stare, where offence was taken place M No presence of blood found out 14 Controlled clay in one plastic box detained and taken into custody from place of Old Stare, where offence was taken place N Controlled clay 15 Pieces of controlled cotton glows in one plastic box detained and taken into custody from place of Old Stare, where offence was taken place O Cotton Glows 16 Stiletto kept in brown cover in sealed condition of Shrikrishna Hospital Karamsad Detained and taken into custody from dead body of deceased Mehbubbeg alias Chinabhai during course of PM P Human blood - Blood group "B" 17 Clothes belt and Tavij article of deceased Mehboob alias China in one card box Detained and taken into custody from dead body of deceased Mehbubbeg alias Chinabhai during course of PM Q Human blood - Blood group "B" 18 One glass tube on which EDTA Bulb mentioned Detained and taken into custody from dead body of deceased Mehbubbeg alias Chinabhai during course of PM [Blood samples of deceased] R Human blood - Blood group "B" 19 Stomach with contents, 1 foot small intestine with contains Plastic viscera bottle No.4 Detained and taken into custody from dead body of deceased Mehbubbeg alias Chinabhai during course of PM S Whole stomach small intestine in which there is no presence of either chemical poison or alcohol is traced out 20 Pieces of lever, pieces of half of each kidney in one plastic bottle [No.5] Detained and taken into custody from dead body of deceased Mehbubbeg alias Chinabhai during course of PM T there is no presence of either chemical poison or alcohol is traced out 21 Saturated solution and common salt in Plastic Bottle [No.6] Detained and taken into custody from dead body of deceased Mehbubbeg alias Chinabhai during course of PM U Blood containing Preservative 22 Saturated solution and common salt in Plastic Bottle [No.7] Detained and taken into custody from dead body of deceased Mehbubbeg alias Chinabhai during course of PM V Saturated solution of common salt Preservative 23 One small glass tube [No.8] Blood sample Detained and taken into custody from dead body of deceased Mehbubbeg alias Chinabhai during course of PM W Human blood - Blood group "B" 24 Half sleeve Black color shirt containing smudges of Blood Complainant Iddrishmiya produced cloths of injured Nashrubeg and same were detained and taken into custody after executing panchnama X Human blood - Blood group "B" 25 Jeans pant containing Light blue color blood smudges Complainant Iddrishmiya produced cloths of injured Nashrubeg and same were detained and taken into custody after executing panchnama Y Human blood - Blood group "B" 26 Under wear containing Light blue color blood smudges Complainant Iddrishmiya produced cloths of injured Nashrubeg and same were detained and taken into custody after executing panchnama Z Human blood - Blood group "B" Forwarding note about other muddamal articles sent to FSL as on 11/08/2008 Sr. No. Description of Muddamal Article From where Muddamal Article traced out Mark Opinion of FSL 1 Cotton Jeans Pant of Black color of accused person Mehboob Ghadiyali Detained and taken into custody in presence of panch person Javedbhai Ibrahimbhai in police station A/1 No presence of Blood traced out 2 Whole sleeve yellow lining checks designer shirt Detained and taken into custody in presence of panch person Javedbhai Ibrahimbhai in police station B/1 No presence of Blood traced out 3 Old pant of gray color of Ibrahim alias Ghadiyali Detained and taken into custody in presence of panch person Javedbhai Ibrahimbhai in police station C/1 No presence of Blood traced out 4 Whole sleeve yellow blue color shirt of Ibrahim Detained and taken into custody in presence of panch person Javedbhai Ibrahimbhai in police station C/1 No presence of Blood traced out 5 Cotton Jeans Shirt of Salimbhai alias advocate Clothes worn by accused person were detained and taken into custody in presence of panch persons at Anand Town Police Station E/1 No presence of Blood traced out 6 Cotton Jeans Pant of Black color of Salim alias Advocate Clothes worn by accused person were detained and taken into custody in presence of panch persons at Anand Town Police Station F/1 No presence of Blood traced out 7 Whole sleeve checks design blue color shirt of Yunus alias Barlakh Clothes worn by accused person were detained and taken into custody in presence of panch persons at Anand Town Police Station G/1 No presence of Blood traced out 8 One brown color pant of Yunus alias Barlakh Clothes worn by accused person were detained and taken into custody in presence of panch persons at Anand Town Police Station H/1 No presence of Blood traced out 9 Sword fitted in wooden handle Accused person Salim alias Advocate found out from dense bushes from Railway Platform I/1 No presence of Blood traced out 10 One side sharpen stiletto on one edge Accused person Salim alias Advocate found out from dense bushes from Railway Platform J/1 No presence of Blood traced out 11 One old stiletto fitted in wooden handle having one side sharpen edge Accused person Ibrahim Ghadiyali found out in presence of panch persons K/1 No presence of Blood traced out 12 Whole Sleeve White shirt of accused Aarif alias Maharaj Accused persons produced it before Anand Town Police Station L/1 No presence of Blood traced out 13 Light Green color Jeans Pant of Aarif Maharaj Accused persons produced it before Anand Town Police Station M/1 No presence of Blood traced out 14 Whole sleeve white color shirt of Yakub Ghadiyali Accused persons produced it before Anand Town Police Station N/1 No presence of Blood traced out 15 Ass color checks design pant of Yakub Ghadiyali Accused persons produced it before Anand Town Police Station O/1 No presence of Blood traced out 16 Accused Aarif alias Maharaj searched and produced stiletto fitted in iron handle Accused persons produced it before Anand Town Police Station P/1 No presence of Blood traced out 5.15 By considering evidence of FSL with evidence of Dr. Jani, considering opinion analysis report of Physics Department, FSL produced vide Exhibit: 215, Banyan of sample Q-1, shirt of sample Q-3 and on shirt of sample X, cut marks visible and such cut marks and cut marks containing sword of Mark I-1, stiletto produced vide sample J-1, Stiletto produced vide Sample K-1, Stiletto produced vide Sample P-1 and cut marks of Stiletto produced vide Sample P-1. 5.16 For the matter of offence committed, during course of executing panchanama of place of offence committed, covers of two stiletto [dagger] were found out and panch person of panchnama produced such evidence vide Exhibit: 76. In accordance with analysis report of scientific officer produced vides Exhibit: 215, black color cover is corresponding evidence. And said stiletto/dagger was discovered by Accused person Yunus alias Bar lakhe from dense bushes of platform, in presence of panch persons. Similarly, Accused person Ibrahim Ghadiyali in accordance with forwarding note Article K-1 of FSL, stiletto/dagger fitted with wooden handle on railway line, discovered it from place where offence committed during panchnama proceedings and cover of which was forwarded to FSL vide Mark-I and same is corresponding evidence which transpires from record. 5.17 Doctor Jani PW-2 specifically produces evidence and said evidence is well supported with evidence of FSL. From evidence of Doctor Jani, injuries wound found on body of deceased are on record. Evidences of Complainant Iddrishbhai and witness injured Nashrubeg are entirely corresponding to each other. Witness Iddrishbhai had during course of his cross-examination, assailants came from back side and thereby attacked and such facts and there was no threat prior to commitment of said incident and such fact is admitted and affirmed. This witness admitted the fact that, there were no light electricity facilities available where offence was committed at cement sheet and said incident was taken place in between 0815 pm to 0830 pm. This witness also affirmed the fact that on the date of offence committed, incident of firing was earlier taken place in which Accused person Aarif Maharaj was not the Accused person. He admitted the fact that, Aarif Maharaj was not punished during previous matter against Chinabhai. Incident was suddenly taken place. On the date of incident was taken place, I was engaged to save and defend myself. He admitted and affirmed the fact that, persons involved in commission of crime, fled away immediately. He admitted the fact that, Aarif Maharaj was not punished during previous matter against Chinabhai. Incident was suddenly taken place. On the date of incident was taken place, I was engaged to save and defend myself. He admitted and affirmed the fact that, persons involved in commission of crime, fled away immediately. In said aspect, this Complainant did not mention any thing about Sword before Doctor Dalwadi but, during course of cross-examination from defending side, such fact was brought on record that, assailants had suddenly attacked and these assailants had assaulted from back side and same fact is well supported with injuries sustained by deceased on body parts. Moreover, this witness admitted and affirmed the fact that assailants assaulted at a time. It was also suggested that, after assaulting, assailants fled away immediately. There were more than one assailant at the time of assaulting and they set with deceased Chinabhai and this witness. They came from back side and all of them assaulted at a time. If we consider the evidence of Nashrubeg, injured person of this matter than, he affirmed and admitted the fact that, incident was taken place on all of a sudden basis. Assailants attacked from back side and thereafter they ran away. Stiletto/dagger in backside vest of Chinabhai was the same stiletto/dagger by which first assault had taken place. Nashrubeg submitted the fact before Mamlatdar that, deceased was having many enemies and on gesture of enemies, we are punished. It doesn't mean that, these Accused persons did not assault and they had sustained injuries. Moreover, this witness submitted that he remembered that was holding the weapon but, such fact is not on record that despite he remembered the fact but he did not inform such fact. 5.18 From evidence of this witness it is transpired that, incident was taken place at 0815 pm in the night and there was no light in nearby and accused person Mehbub Ghadiyali fired on Chinabhai. This place of cement sheet is at a distance of 10 feet from main road. Complainant and injured persons did not know to each other and such facts are not on record. Complainant specifically given name in his Complaint preferred and he also mentioned said names before the Doctor. It is not on record that, Complainant Iddrish was having any enmity or difference of mind with Accused person. Complainant and injured persons did not know to each other and such facts are not on record. Complainant specifically given name in his Complaint preferred and he also mentioned said names before the Doctor. It is not on record that, Complainant Iddrish was having any enmity or difference of mind with Accused person. Complainant Iddrish mentioned in his evidence before Doctor that, assailants came with sword and stiletto/dagger with them out of which they assaulted with stiletto/dagger on back side of deceased and said stiletto/dagger was removed during course of postmortem. Considering the evidence of this witness with evidence of Doctor Dalwadi than Accused person Salim Vakil inflicted injuries on part of chin of Chinabhai and such fact was well supported with evidence of Doctor Dalwadi. As per deposition of Complainant, Salim Vakil assaulted with sword on part of beard of Chinabhai. As per evidence of Doctor Dalwadi, deceased was having injuries of 1.5 inch on part of beard. Evidence produced by Complainant Iddrish is well supported by Doctor Jani who executed postmortem. Doctor Jani mentioned injuries which were transpired during course of postmortem out of which injury no.6 which was taken place on hand of deceased Chinabhai and in accordance with evidence of Doctor Jani, such injuries might take place with sharpen weapon. If we consider the deposition of injured witness Nashrubeg PW-23, then he submitted during course of deposition that, Salim Vakil assaulted with sword on his hand. If we consider the deposition of Complainant Iddrish than such incident had suddenly taken place and assailants ran away after committing offence out of which Accused person no.1 assaulted with stiletto/dagger in body of deceased and same was found in body of deceased up to postmortem executed. Similarly, if we consider evidence of Complainant and injured person, then it transpired on record that, said incident had taken place in which accused No.1 and accused Nos.2 and 3 played pivotal role in commission of crime which is clear on record. Similarly, if we consider evidence of Complainant and injured person, then it transpired on record that, said incident had taken place in which accused No.1 and accused Nos.2 and 3 played pivotal role in commission of crime which is clear on record. Following is the summary regarding presence of the accused at the place of incident and what role each accused has played in the crime : No. As per Complaint who came with which weapon AS per Complaint who beaten whom As per evidence of Indrish, who came with which weapon Evidence of Indrish of the Complainant As per the evidence of Injured Nashruddin, who came with which weapon Evidence of Injured Nashruddin -1 Mehaboob @ Ghadiyali came with Dagger Mehaboob has beaten Dagger to China on his back. Mehaboob came with Dagger Mehaboob had beaten Dagger to China (deceased) on his back Mehaboob Ghanchi came with Dagger in his hand Mehaboobbhai inflicted blow of Dagger to Chinabhai on his back below the neck (2) Salimabdul Gani Vora came with sword. Salimbhai had given two wounds of sword to Chinabhai Salim came with sword Salim has beaten sword to Chinabhai at the part of his chin and hand Salimbhai had come with sword Witness Nashruddin does not state any fact in this regard. (3) Yunus @ Barlakh had come with knife Yunush had beaten knife to Nasharu on his both hands Yunush had come with knife Yunus had beaten knife to Nashru in his stomach Yunus had come with knife This witness does not state any fact in this regard. (4) Ibrahim Ghadiyali had come with knife in his hand. In this regard, it is not mentioned in the Complaint. Ibrahim Ghadiyali had come with knife in his hand. Witness does not state anything in this regard. Ibrahim Ghadiyali had come with knife. Witness does not state anything in this regard. 5 Arif @ Maharaj came with Dagger. Arif had beaten to Sharubeg in his stomach at right side by Dagger. Arif had come with Dagger. Arif had beaten, but do not know where beaten. Arif had come with knife Arif had given injuries to me in my stomach on right side and on right hand and finger using knife. 5 Arif @ Maharaj came with Dagger. Arif had beaten to Sharubeg in his stomach at right side by Dagger. Arif had come with Dagger. Arif had beaten, but do not know where beaten. Arif had come with knife Arif had given injuries to me in my stomach on right side and on right hand and finger using knife. 6 Yakubbhai Vora had come with iron pipe in his hand Yakub had beaten iron pipe to Nasharu in his head Yakub had come with iron pipe Nasru was beaten by pipe in his head Yakub Vora had come with iron pipe Yakub had beaten me by pipe on my head. 6. Having regard to the testimonies of eye witnesses PW-4 and injured eye witness PW-23 are to be considered whether they were present at the scene of offence and had seen assailants with weapons in their hand and in fact inflicting blows of weapons on the body of the deceased as well as injured, we may profitably refer to the decision of Division Bench of this Court in the case of Patel Rasikbhai Bhagwandas v. State of Gujarat, (1999) 1 GLR 717 wherein manner in which testimonies of injured witnesses is to be appreciated by the concerned court is summarized. In para 14 of the above judgment, Division Bench of this Court, based on decisions of the Apex Court and settled position in this regard, culled out which is to be borne in mind while deciding about creditworthiness, reliability and trustworthiness of such witnesses as under: "14. Again in a case of criminal trial particularly, like one on hand, we appreciate the evidence keeping in mind Sec.374 of the Evidence Act, following aspects which have been, particularly, expounded and settled must be kept before the mental-radar. [i] Injured witness person can not be doubted at the venue of offence. Therefore, persons who have sustained injuries, obviously, would be present. [ii] Injured persons have no reason to falsely implicate the accused persons in place of real offenders who gave serious blows to them. [iii] Again, it may, also, be remembered that the evidence of such injured witness carries more weight and high degree of creditworthiness. [iv] It must also be mentioned what was the instantaneous reaction of such witness would depend upon circumstances and improbables. [iii] Again, it may, also, be remembered that the evidence of such injured witness carries more weight and high degree of creditworthiness. [iv] It must also be mentioned what was the instantaneous reaction of such witness would depend upon circumstances and improbables. Therefore, in the place of such witness some minor defective or tiny contradiction can not be regarded as a titanic to sink the whole ship of culpability. Such microlevel inconsistency like slight change in description of weapon, on the spot factual circumstances, and the manner, time or some insignificant unimport, exaggeration or even embellishment ought to be discarded, and they should not be considered defective evidence of such persons. [v] It must, also, be kept in mind while evaluating and scanning the evidence of such witness with the criticism of the court and the evidence kept in focus which attracts the guilt of the accused and not the minor inconsistencies or discrepancies which might have happened which might have generated out of the power of observation, emergent situation, lapse or loss of memory which may happen on account of stereotype, monotonous or at times, faulty, investigation. [vi] It must also be recalled that even in case of a truthful witness by one or other reason there is at times contingency to make improvement or embellishment with a view to pick up correct and true version in his testimony. It, therefore, becomes necessary to see that the exaggerated or untrue aspects are discarded but not the reliable testimony of the injured witness." 7. Keeping these factors in mind and findings, reasonings and conclusions drawn by the learned trial Judge believing testimonies of injured witness Nasrubeg PW-23 and eye witness - complainant PW-4 in no uncertain terms inspire confidence about presence of each accused with weapons of assault hardly any dispute about place of offence injured receiving injuries by weapons like dagger which remained in the body of the deceased - Mehbubbeg @Chinabhai till postmortem was carried out, movement of both injured initially to Nagarpalika Hospital, Anand, thereafter to Shri Krishna Hospital, Karamsad, which is few kilometers away, names of the accused are not in various exhibits, injuries so deposed on body of deceased as well as injured particularly of Dr. Chetan Jani, who carried out postmortem. False implication of the accused or even exaggeration so argued by learned counsel for the appellants cannot be believed. For the offence viz. Chetan Jani, who carried out postmortem. False implication of the accused or even exaggeration so argued by learned counsel for the appellants cannot be believed. For the offence viz. unlawful assembly what is to be considered by the court is presence of a member of unlawful assembly and not of overt act and the design of the crime can be gathered from the manner in which assault is made along with weapons, and every member of unlawful assembly shared common object as discussed and evidence so emerge on record, we find no infirmity in the judgment of conviction and sentence dated 28.02.2013 passed by the learned Additional Sessions Judge, Anand in Sessions Case No.47 of 2009. Accordingly, all these appeals are dismissed.