JUDGMENT : A.C. RAO, J. 1. The present Criminal Appeal arises out of the judgment and order dated 29.01.1994 passed in Sessions Case No.125 of 1992 whereby the learned Additional Sessions Judge, Gondal acquitted all the accused of the offences punishable under Sections 302 read with Section 149, 307 read with Sections 149, 143, 148 and 504 of the Indian Penal Code as well as Section 135 of the Bombay Police Act. 2. The prosecution case, in nut shell, is as under : 2.1 On 16.04.1992, during 9:45 to 10:00, the deceased Banesing along with his brother Pravinsinh and Narvirsinh were working at the field situated at Sim of Village Bhimora. The accused – respondents herein were grazing their cattle near the field of the deceased Banesing. At one point of time, cattle of the accused entered into the field of deceased, and when the deceased and his brothers were trying to get the cattle out of the field, quarrel took place with the accused. During the scuffle, accused Natha Maka pelted stones at the head of deceased Banesing and accused Naran Sanga inflicted stick blow on the head of deceased Banesing. When Pravinsinh – brother of the deceased intervened to save the deceased, accused Amra Samant and Batuk Bhika inflicted stick blows on his head. Meanwhile when his brother Narvirsinh intervened, accused Devarkhi Pancha inflicted stick blow on his head and on the other parts of the body. It is the case of the prosecution that all accused were beating Banesing indiscriminately. Thereafter, all the three injures were taken to Bhimora Primary Health Center wherefrom they were taken to Upleta Government Hospital for further treatment where Banesing had given complaint before Head Constable between 12:00 and 1:00 noon. Thereafter, all the three were referred to Junagadh Government Hospital for further treatment. From Junagadh Hospital injured Banesing and Pravinsinh were referred to Ahmedabad for further treatment. However, on the way to Ahmedabad, Banesing succumbed to injuries. Therefore, his dead body was handed over to Rajkot Civil Hospital for postmortem and Pravinsinh was admitted in the Ahmedabad Civil Hospital on 17.04.1992. From Junagadh Hospital injured Banesing and Pravinsinh were referred to Ahmedabad for further treatment. However, on the way to Ahmedabad, Banesing succumbed to injuries. Therefore, his dead body was handed over to Rajkot Civil Hospital for postmortem and Pravinsinh was admitted in the Ahmedabad Civil Hospital on 17.04.1992. 2.2 The Investigating Officer recorded statements of witnesses, drew necessary panchnamas and recovered the alleged weapons used in the commission of crime and having found ample involvement of the accused, the chargesheet for offences under Sections 302 read with Section 149, 307 read with Section 149, 143 and 148 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act was submitted before the learned Judicial Magistrate First Class, Upleta, who having found the case as sessions triable, committed the case to the Court of Sessions as per Section 209 of the Code of Criminal Procedure. The Sessions Court framed charges vide Exh.1 against the accused against which the accused pleaded not guilty and requested to be tried. Their further statements under Section 313 were recorded wherein also they pleaded not guilty. To prove its case, the prosecution has examined 41 prosecution witnesses and has produced about 39 documentary evidences. However, the learned Additional Sessions Judge, Gondal, at the end of the trial, vide judgment and order dated 29.01.1994 acquitted all the accused of the offences with which they were charged. 3. Mr.H.K.Patel, the learned Additional Public Prosecutor appearing for the appellant – State has contended that the judgment and order of acquittal passed by the trial Court is contrary to law and evidence on record. It is contended that trial Court has wrongly discarded the evidence of the eye-witnesses whose evidence is acceptable and believable. It is contended that the presence of prosecution witnesses Pravinsinh Khimaji (Exh.16) and Narvirsinh Khimaji (Exh.17), who are injured eye-witnesses to the incident, at the scene of offence cannot be discarded. It is contended that the evidence of these eye-witnesses is corroborated with the evidence of Jagatsinh Jilubha (Exh.18). It is also contended that medical evidences have supported the case of the prosecution. The injuries sustained by the injured eye-witnesses get corroboration from the medical evidences. However, the trial Court has given much credentials to the minor contradictions and discrepancies appearing in their evidence which has resulted into miscarriage of justice. It is also contended that medical evidences have supported the case of the prosecution. The injuries sustained by the injured eye-witnesses get corroboration from the medical evidences. However, the trial Court has given much credentials to the minor contradictions and discrepancies appearing in their evidence which has resulted into miscarriage of justice. It is contended that the order of acquittal passed by the trial Court is erroneous, improper and illegal and requires to be quashed and set aside. The respondents herein – original accused need to be convicted for commission of such heinous offence. It is contended that the trial Court has not considered that the respondents herein attacked on the injured eye-witnesses and the deceased and caused fatal injuries. The persons having such mentality or mindset may not be allowed to roam free in the society. Though there is clear evidence of the eye-witnesses supported by the medical evidence has not considered the same and acquitted the respondents herein – original accused of the offences with which they were charged. 4. Mr.Adil Mehta, the learned advocate for the original accused respondents has contended that, incident has taken place at about 9:40 p.m. on 16.04.1992. It is contended that prosecution has not examined Mangubhai who has accompanied the injured from Junagadh to Ahmedabad. It is contended that the deceased Banesing had not named all the accused in the history before the Medical Officer. It is contended that it is alleged that mischief was played in the field of Kanti Kachra but he is not examined. It is contended that the father of the victim had not taken care to take their injured sons to hospital but he had driven buffaloes to handover them to Panchayat Panjrapole (Dabbo). It is also contended that such action on the part of father of the injured is not natural and totally unbelievable . It is contended that though some of the accused sustained injuries, but no medical evidence or treatment in that regard has come on record and, therefore, genesis of occurrence of the incident has become doubtful. It is contended that in the panchnama blood was found only from one particular place, however, there were three different injured. The prosecution has not explained or failed to explain as to how blood of all injured persons could find at particular place and not from three different places. It is contended that in the panchnama blood was found only from one particular place, however, there were three different injured. The prosecution has not explained or failed to explain as to how blood of all injured persons could find at particular place and not from three different places. Even though as per the say of the injured eye-witnesses they were at different places. As per medical evidence there were no wheel-mark injuries on the body of the injured witnesses and, therefore, it cannot be said that the injured were beaten by sticks. The alleged complaint against the accused – respondents herein is not exhibited, and, therefore, said FIR cannot be read into evidence. It is contended that looking to the overall evidence on record, there is no illegality or error committed by the learned trial Court and, therefore, the order of acquittal passed by the learned trial Court does not require any interference. It is contended that the order of acquittal shall be interfered with if two views are possible. 5. Having heard learned advocates for the parties and having gone through the evidence on record, we think it fit to observe each and every evidence minutely and in detail and, therefore, the evidence of the prosecution witnesses have been gone through as under: 5.1 The prosecution has examined Bavanji Karshanbhai as Prosecution Witness No.1 vide Exh.10. He is the panch witness. He has stated that on 17.04.1992, at about 7 O'clock in the morning, when he was going towards Bhaodr river, he and Rama Harijan were called by the police at the place of incident. In the field he saw Jagatsinh Jilubha was present there who had shown the place of incident. This witness has stated in his evidence that in his presence police recovered control earth from the pool of blood, one torn cloth (Gaabho) containing blood stains, stones having blood stains, one vessel (Vaatko) containing blood stains on it. He has stated that he saw footprints of about four to five persons and footprints and dung of buffalo. He has identified each article which were recovered during the panchnama in his presence. He identified his own signatures and signatures of another panch-witness. In cross examination nothing adverse has come on record. 5.2 Jagabhai Ugabhai is examined as P.W.No.2 [Exh.17]. He is the panch witness to the recovery panchnama of clothes. He has identified each article which were recovered during the panchnama in his presence. He identified his own signatures and signatures of another panch-witness. In cross examination nothing adverse has come on record. 5.2 Jagabhai Ugabhai is examined as P.W.No.2 [Exh.17]. He is the panch witness to the recovery panchnama of clothes. This witness is declared as hostile witness and in his cross examination has also not supported the case of the prosecution. 5.3 Raghuvirsinh Amarsinh is examined as P.W.No.3 [Exh.18]. He is the panch witness of recovery panchnama of clothes collected from the injured witness Narvirsinh. He has stated that on 17.04.1992 at about 11:30 at Junagadh Government Hospital panchnama was prepared. The another panch witness Jayeshkumar Maganbhai was present there. The cream colored pent and white shirt contained blood stains were on the body of injured Narvirsinh. There was simple bandage on the head of Narvirsinh. He has stated that police collected clothes of Narvirsinh. He and another panch witness put their signatures on the panchnama. He has identified his signature on the panchnama. He has also identified the clothes as had been produced by Narvirsinh. From the cross-examination it reflects that the injured Narvirsinh is his relative and he stayed with him. He has stated that on the day of incident he had not seen the police at Junagadh Hospital. He has stated that when he met Narvirsinh at Junagadh Hospital, Pravinsinh and deceased Banesing were also at the hospital. 5.4 Prosecution Witness No.4 viz. Vikrambhai Bhavanbhai is examined at Exh.22. He has stated that on 19.04.1993 police called him at Bhimora Panchayat Office between 9:00 and 10:00 O'clock where Amra Samant was present, who wanted to handover the weapons. This witness has stated in his testimony that at the instance of the accused Amra Samant, muddamal stick used by him in commission of offence was discovered in the presence of police personnel. This witness has described the muddamal stick and stated that it contained blood stains. He also stated that said muddamal stick was recovered by the police. The seal was applied. He signed panchnama as panch witness. He has identified his signature on the panchnama. He has also identified muddamal article stick which was recovered in his presence. He has not supported recovery of stick from accused Batuk Bhikha. He also stated that said muddamal stick was recovered by the police. The seal was applied. He signed panchnama as panch witness. He has identified his signature on the panchnama. He has also identified muddamal article stick which was recovered in his presence. He has not supported recovery of stick from accused Batuk Bhikha. However, he has identified his signature as panch witness on the slip contained in the bag wherefrom muddamal stick recovered at the instance of Batuk Bhikha. This witness is declared as hostile and not supported the recovery of stick from accused Batuk Bhikha. In the cross-examination this witness has stated that when he reached to police station, all the accused were present. He has stated that he signed panchnama at the place wherefrom stick was recovered whereas other panchnamas he signed at Panchayat Office. 5.5 Prosecution Witness No.5 viz. Bhavan Raghavbhai is examined at Exh.25. He has stated in his evidence that he was called at Panchayat Office as panch witness to the recovery panchnama of the weapon used by accused Natha Moka. He turned hostile. However, he has identified his signature in the panchnama. He has specifically stated that in his presence muddamal article no.14 i.e. stick under the recovery panchnama [Exh.23] was recovered from accused Amra Samant and the panchnama bears his signature as panch witness no.1 and signature of Trikam Bhavan as panch witness no.2. In his cross-examination, he has not denied the facts regarding recovery of the weapon, in his presence, at the instance of accused Natha Moka and has accepted that in his presence, during the panchnama, accused Amra Samant had shown the stick used by him in the commission of crime. 5.6 Prosecution Witness No.6 Popatbhai Anandbhai is examined at Exh.26. He is the panch witness and as per his evidence in examination-in-chief at the instance of accused Batuk muddamal weapon i.e. stick used by him in commission of crime was recovered. He has identified his signature in the panchnama at Exh.28. In his cross examination he has stated that police had asked him to be the panch witness when he was at Panchayat office. The police had informed to accompany for the purpose of recovery the muddamal stick. 5.7 Prosecution has examined Dr.Kiranbhai Kalabhai Sagothia as Medical Officer at Upleta Kotej Hospital, Upleta as Prosecution Witness No.7, at Exh.30. In his cross examination he has stated that police had asked him to be the panch witness when he was at Panchayat office. The police had informed to accompany for the purpose of recovery the muddamal stick. 5.7 Prosecution has examined Dr.Kiranbhai Kalabhai Sagothia as Medical Officer at Upleta Kotej Hospital, Upleta as Prosecution Witness No.7, at Exh.30. He has stated that on 16.04.1992, in the morning at about 11:10 a.m. injured Narvirsinh Khimaji, Banesing Khimaji and Pravinsinh Khimaji were brought there with Yadi issued by Primary Health Center, Bhamora. He examined injured Narvirsinh as indoor patient and issued injury certificate, which is at Exh.32 which shows the injury caused on his head. No fracture was found at internal part of head injury. The x-ray report of the right hand of the injured suggests ulna fracture which is at Exh.34. The injury certificate shows the injuries on the head, on the right hand and on left knee of the injured Narvirsinh. This witness has opined that injury sustained by Narvirsinh could be possible by hard and blunt substance and also by muddamal article no.13 i.e. stick. He has stated that such injury could cause death if the injured is not treated in time. He has stated that he had referred the injured Narvirsinh at about 2:00 to 3:00 p.m. to Junagadh Hospital for further treatment. He had examined Bensing Khimaji as indoor patient and issued injury certificate at Exh.38. It shows that Bensing sustained injuries on his head, it caused fractures of the head. The x-ray are at Exhs.39 and 40. He stated that Bensing was admitted at about 11:00 a.m. and referred to Junagadh hospital at about 3:00 pm. for further treatment. This witness has stated that injury caused to Bensing was serious in nature on the vital organ. This witness has opined that injuries caused to injured could be possible by hard and blunt substance like article no.13 stick. This witness has examined injured Pravinsinh Khimaji as indoor patient who sustained injuries on his head. X-ray reports which are at Exhs.44 and 45 show two fracture in his head. This witness has issued injury certificate at Exh.42 and opined that injuries were on the head and were serious in nature. Therefore, the witness had referred to the injured Pravinsinh also to Junagadh Hospital. X-ray reports which are at Exhs.44 and 45 show two fracture in his head. This witness has issued injury certificate at Exh.42 and opined that injuries were on the head and were serious in nature. Therefore, the witness had referred to the injured Pravinsinh also to Junagadh Hospital. This witness has opined that injuries caused to Pravinsinh could be possible by hard and blunt substance like muddamal stick and such injuries were enough to cause death in ordinary course of nature. In his cross-examination, this witness stated that there is possibility of more than one injury on the head of Banesing. However, since the injury is of 'Y' shape, it may be inflicted more than one time. However, the witness has stated that the history Banesing negated that the injury caused to him by stone and confirmed that such injury caused by stick. This witness during cross examination has stated that Narvirsinh and Pravinsinh did not disclose any history about injury caused to them. After examining these witnesses he made phone call to Police Station. This witness has stated that injured Pravinsinh sustained two bone deep injuries of the same size. However, this witness has stated that there was no wheel-mark injury. He has stated that he could not say that fracture on the external part of scalp of the injured could cause death of an injured. This witness has stated that if such an injured walks unevenly an injury caused to his brain could be resulted into fatal injury. 5.8 Prosecution Witness No.8 Kishorkumar Gokaldas Joshi who is examined at Exh.48. He has stated in his evidence that he was working at Mamlatdar office as Circle Inspector. On 21.04.1992, Mamalatdar received Yadi from PSI, Patanvav for preparing map of place of offence registered bearing IC. R.No.40 of 1992 which is at Exh.49. Mamlatdar instructed this witness to prepare the map and accordingly map was prepared by him. He has stated that when he reached at the place of incident he did not find any blood mark. In his cross examination, he has stated that there is contradiction between the map at Exh.49 and the panchnama. In the panchnama of scene of offence blood mark is shown. This witness has stated that he had gone at the place of incident for preparing map on 07.10.1992. It is an admitted fact that incident occurred on 16.04.1992. In his cross examination, he has stated that there is contradiction between the map at Exh.49 and the panchnama. In the panchnama of scene of offence blood mark is shown. This witness has stated that he had gone at the place of incident for preparing map on 07.10.1992. It is an admitted fact that incident occurred on 16.04.1992. Nothing adverse has come out in cross-examination of this witness. 5.9 Bhupatbhai Becharbhai is examined as Prosecution Witness No.9 at Exh.52. This witness is panch witness to the inquest panchnama of persons of the accused. However, he is declared hostile and has not supported the case of the prosecution. 5.10 Prosecution Witness No.10 – Dada Ababhai is examined at Exh.53. He is the panch witness to the recovery panchnama of weapons from the accused. However, he is also declared hostile and has not supported the case of the prosecution. 5.11 Prosecution Witness No.11 Musa Amadbhai is examined at Exh.54. He is the panch witness. He has stated in his evidence that on 19.04.1992 he was called by the police as panch witness when he reached at the Panchayat Office, another panch witness Bhovan Patel and accused Natha Moka were present. In his presence accused Natha Moka had shown willingness to produce stick. Panchnama was prepared at Panchayat office. He has stated that in his presence at the instance of the accused Natha Moka, stick was recovered and seal was applied with the slip of his signature as panch witness. He has identified his signature in Court. His evidence is unshaken in his cross examination. He has fully supported the case of the prosecution recovery of muddamal stick at the instance of accused Natha Moka. 5.12 Prosecution Witness No.12 Batuksinh Jalamsinh is examined at Exh.56. This witness has stated that on 20.06.1992 he had visited Ahmedabad Civil Hospital to meet Pravinshin, at about 11:00 O'clock. Police had recovered his clothes in his presence under the panchnama. He has stated that the said clothes were having blood stains. He has identified his signatures in the panch slips of muddamal articles and on panchnama at Exhs.57 and 58. In his cross-examination he has stated that Pravinsinh is his relative. Nothing adverse is found in his cross-examination. 5.13 Prosecution has examined Ramesh Narsibhai (P.W.No.13) at Exh.62. He is panch witness at Pranagar Police Station, Rajkot, on 17.04.1992. He has identified his signatures in the panch slips of muddamal articles and on panchnama at Exhs.57 and 58. In his cross-examination he has stated that Pravinsinh is his relative. Nothing adverse is found in his cross-examination. 5.13 Prosecution has examined Ramesh Narsibhai (P.W.No.13) at Exh.62. He is panch witness at Pranagar Police Station, Rajkot, on 17.04.1992. In the police station, he saw muddamal articles 10 and 11 i.e. clothes of the deceased on the table having blood stains on it. He had signed panchnama. He has identified his signature on the panchnama at Mark 9/6. 5.14 Prosecution has also examined Banoj Harjivandas as (P.W.No.14) at Exh.63. He has stated that on 17.04.1992 he was called by the police at Hospital at Rajkot. In the postmortem room there was one dead body having injury on the head and on back side. Police had prepared panchnama. He had signed it. This witness is declared hostile, however, in his cross examination he had described details about direction of dead body and injuries on it with blood stains on the face. 5.15 Prosecution has examined Kesubhai Ramjibhai (P.W.No.15) at Exh.64. He is the panch witness to the inquest panchnama. In his examination-in-chief, he has stated that on 17.04.1992 panchnama was prepared at the postmortem room of the Civil Hospital where dead body was lying. However since it was covered he could not find injury on it. He was declared hostile as he has not supported the case of the prosecution. 5.16 The prosecution has examined Pravinsinh Khimaji (P.W.No.16) at Exh.65. He is an injured eye-witness to the incident. He has named all accused in his evidence. He has stated that on 16.04.1992 at about 9:45 to 10:00 a.m. he and his brothers were in the field, the accused came with buffaloes. It entered in the field of deceased as well as in the field of Kanjibhai. Therefore, Banesing (deceased) had gone to talk with Natha Maka. However, Natha Maka gave foul abuses to Banesing and gave blow on his head. Thereafter Naran Sanga also gave stick blow on head of Banesing. He tried to intervene but Amra Samant gave stick blow on his head so he fell down on the ground and at that time Batuk Bhika also inflicted stick blow on his head. Therefore, Narvir [ brother of this witness] had intervened to whom Devarkhi Pancha gave stick blow on his head. He tried to intervene but Amra Samant gave stick blow on his head so he fell down on the ground and at that time Batuk Bhika also inflicted stick blow on his head. Therefore, Narvir [ brother of this witness] had intervened to whom Devarkhi Pancha gave stick blow on his head. Devarkhi Pancha had inflicted stick blows on the legs of Narvarsinh. Meanwhile Jagdishbhai and the parents of this witness had come there and the accused had gone towards Ganod village. He has stated that as soon as accused had gone, the father of this injured witness got those buffaloes in the Panchayat cage (Dabba). All the injured were taken to Primary Health Center by Jagdishbhai where they reached at about 10:00 O'clock where they were given treatment. They were referred to Upleta Hospital. He has stated that all the injured reached at Upleta Hospital at about 11:00 O’clock where Banesing had given his complaint before concerned police personnel of Patanvaav. From the Upleta Hospital all the three were referred to Junagadh Hospital where they reached at about 2:30 to 3:00 O’clock. Thereafter he and Banesing were further referred to Ahmedabad Civil Hospital for further treatment whereas Narvirsinh was stayed at Junagadh Hospital. On the way towards Ahmedabad in the ambulance, Banesing died and his dead body was taken to Rajkot Civil Hospital where he stayed for 1015 minutes. This witness was admitted in Ahmedabad Government Hospital for 11 days as indoor patient. He has identified his clothes recovered by police. He could not identify sticks with which his brothers were beaten. In his cross examination he has supported the case of the prosecution and disclosed occurrence of incident. However, he has stated that since the police or doctor had not asked as to who caused injuries he did not disclose it to the police or doctor at Upleta. He has stated that doctor had inquired as to with which weapon injury caused to him but did not inquire as to by whom injury caused to him nor the doctor asked as to how incident occurred. He has denied other suggestions. 5.17 Prosecution has examined Narvirsinh Khimaji as witness No.17 at Exh.66. He is an injured eye witness to the incident. He has named all accused in his evidence. He has denied other suggestions. 5.17 Prosecution has examined Narvirsinh Khimaji as witness No.17 at Exh.66. He is an injured eye witness to the incident. He has named all accused in his evidence. In his examination-in-chief he has supported the prosecution case stating as to how incident occurred, as to which accused had armed with which weapon and which accused caused injury at which part of the body of the injured including him and the deceased. In all, he has supported the evidence of another injured eye witness to the incident viz. Pravinsinh Khimaji [(P.W.No.16), Exh.65]. He has supported the fact of recovery of his clothes from Junagadh Hospital and the recovery panchnama. He has stated that Banesing had given complaint at Upleta Hospital. In his cross examination at the end of learned APP before the Sessions Court he has identified the clothes having blood stains as he wore the same at the time of incident. In his cross examination, he has stated that accused Devrakhi Pancha had firstly given him stick blow on his head and then on his leg. So he fell down on the ground. He had stated history to the doctor that it was sustained by the stick. However, the doctor had not asked about assailants. He has stated that police had collected his bloodstains clothes from the hospital. 5.18 Prosecution has examined Jagdishsinh Julubha as Prosecution Witness No.18 at Exh.67. He is an independent eye-witness to the incident. He has named all accused in his evidence. He has stated in his evidence that on the day of incident i.e. on 16.04.1992 he was present at the field. He has stated that all persons viz. Pravinsinh, Banesing and Narvirsinh were at the field. He has stated that at about 9:45 the accused were going towards field of Banesing with buffaloes and, therefore, Banesing had stopped them. At that time, accused Natha Maka Rabari got excited and he gave foul abuses to Banesing and pelted stone at Banesing which caused him bleeding. At that time Naran Saga had given stick blow on head of Banesing which caused him falling down on the ground. He was thereafter beaten indiscriminately by the accused. On intervention of Pravinsinh for rescue of Banesing, Batuk Bhika gave stick blow on head of Pravinsinh. At that time Naran Saga had given stick blow on head of Banesing which caused him falling down on the ground. He was thereafter beaten indiscriminately by the accused. On intervention of Pravinsinh for rescue of Banesing, Batuk Bhika gave stick blow on head of Pravinsinh. Therefore, both Pravinsinh and Banesing made 'hubbub' and, therefore, Narvirsinh rushed there to save them to whom Devarkhi Pancha gave stick blow on his head which caused him fell down on the ground. Therefore, the father of the injured rushed there, who were working in other field, and thereafter accused leaving their buffaloes at the field ran way towards village Ganod. Thereafter this witness along with one Khimaji took injured to Bhimaro clinic wherefrom all the three were taken to Upleta Hospital and on advice of the doctor they were referred to Junagadh Hospital. This witness has stated that he returned after the injured persons were taken to Junagadh hospital in ambulance meaning thereby he accompanied injured till Upleta Hospital. However, at about 4 or 5 O'clock in the evening this witness visited injured at Junagadh where at about 8 O'clcok the doctor advised to shift both injured Banesing and Pravinsinh to Ahmedabad Hospital. This witness, however, returned to Bhimora and did not accompany said injured to Ahmedabad. On the next day this witness came to know about the death of Banesing. His evidence is not shaken in cross-examination. 5.19 Prosecution Witness No.19, Dr.Jasmatbhai Dayabhai is examined at Exh.72. He has stated that when he was serving as Medical Officer at Bhimora Primary Health Center, on 16.04.1992, at about 9:50 in the morning all the injured had brought to him for preliminary treatment. He had issued injury certificate stating that injury could be possible by hard and blunt substance. In his cross examination, he referred to all injured to Upleta Hospital. He has stated in his cross examination that injured Banesing and Narvirsinh had given name of Batuk Bhikha and others as the person who caused them injury. 5.20 Prosecution Witness No.20 viz. Nikhilkumar Puskarrai Buch is examined at Exh.79. He has stated in his evidence that while he was on service at Junagadh Hospital, at about 2:20 at noon, all the injured Narvirsinh Khimaji, Pravinsinh Khimaji and Banesing Khimaji were referred to him by Upleta Hospital. He had given treatment to them. 5.20 Prosecution Witness No.20 viz. Nikhilkumar Puskarrai Buch is examined at Exh.79. He has stated in his evidence that while he was on service at Junagadh Hospital, at about 2:20 at noon, all the injured Narvirsinh Khimaji, Pravinsinh Khimaji and Banesing Khimaji were referred to him by Upleta Hospital. He had given treatment to them. He has stated that all were admitted as indoor patient and there was fracture on the head of Banesing. He accordingly issued injuries certificate and has stated that such injuries which were sustained by the injured could be possible by hard and blunt substance. In his cross examination he has stated that injury caused to Banesing was serious in nature. 5.21 Prosecution Witness No.21 Hasumatiben Ranchhodbhai is examined at Exh.91. She has stated that when she was at Ahmedabad Civil Hospital, on 17.04.1992, at about 6:20 in the morning, injured Pravinsinh Khimaji was brought for treatment. He was referred by Junagadh Government Hospital with head injury. She has stated that doctors have examined him and on 27.04.1992 Pravinsinh was discharged from the hospital. This witness is not cross-examined by the defense. 5.22 Prosecution Witness No.22 Ramprasad Rasiklal is examined at Exh.94. He has is serving as Medical Officer at Rajkot Civil Hospital. On 17.04.1992, injured Pravinsinh Khimaji was treated by him. The dead body of Banesing Khimaji was brought to him. Both were referred to Ahmedabad from Junagadh Hospital for further treatment. He prepared case papers of injured Pravinsinh as outdoor patient. He opined that he was in condition to be taken to Ahmedabad Hospital. He has issued injury certificate [Exh.96]. He has stated that dead-body of deceased was taken for postmortem. 5.23 Prosecution Witness No.23 Bhartiben Navinchandra is examined at Exh.98. She has stated that on 17.04.1992 when she was Medical Officer at Rajkot Civil Hospital, dead body of Banesing Khimaji was brought for postmortem. She started postmortem at about 6:40 in the morning and concluded it at about 7:40. She has issued Postmortem Note which is at Exh.99. In his cross examination she has stated that dead-body was identified by Govindsinh Jilubha Chudasma. She has stated that injuries sustained by the deceased were serious in nature. 5.24 Prosecution Witness No.24 Vallabbhbhai Jethabhai is examined at Exh.101. He has stated in his evidence that incident occurred at about 10:00 O'clock in the morning. However, he has stated that he has not seen the incident. She has stated that injuries sustained by the deceased were serious in nature. 5.24 Prosecution Witness No.24 Vallabbhbhai Jethabhai is examined at Exh.101. He has stated in his evidence that incident occurred at about 10:00 O'clock in the morning. However, he has stated that he has not seen the incident. This witness is declared hostile. 5.25 Prosecution Witness No.25 Jilubha Nagjibhai is examined at Exh.104. He has stated in his evidence that incident occurred on 16.04.1992. At about 10:00 or 10:15 in the morning when he was at shop of Bhikhubha, he heard that his son Jagatsinh had gone to Primary Health Center. Therefore he had gone there, he found injured sons of Khimajibhai viz. Banesing, Pravinsinh and Narvirsinh and blood was oozing from their head. They were taken to Upleta Hospital for further treatment in the bus. In the bus, injured Banesing had described the incident naming all accused persons and their role they played in the commission of offence. They reached Upleta at about 10:13 or 10:45 wherefrom they were referred to Junagadh hospital for further treatment. At night at about 9:45 or 10:00 o'clock, injured Pravinsinh and Banesing were referred to Ahmedabad Hospital for further treatment and this witness along with one Bhikhubha returned to the village. There are some minor contradictions in his cross-examination, however, they are as such not fatal to the case of the prosecution. In his cross-examination, he has stated that from the Upleta to Junagadh, Banesing had travelled in the bus. 5.26 Prosecution Witness No.26 Kavaji Kuberjibhai is examined at Exh.105. On 16.04.1992 he was In-charge of PSO at Upleta Police Station. At about 1330 hrs, Head Constable S.K.Sheth noted down the complaint of Banesing at Upleta Government Hospital and this witness had accordingly registered the same in the Station diary. From the cross-examination of this witness, it appears that he followed all basic formalities while registering the complaint and in turn sent it to Patanvav Police Station. 5.27 Prosecution Witness No.27 Savjibhai Kuvarji Sheth is examined at Exh.108. He has stated in his evidence that for last four years he was serving as Head Constable at Upleta Police Station. On 16.04.1992 he received Janva Jog Entry through PSO Upleta and therefore he went to Upleta Government Hospital. He noted down complaint of Banesing. He has identified the complaint written by his writer Gambhirsinh at the instance of Banesing. He has stated in his evidence that for last four years he was serving as Head Constable at Upleta Police Station. On 16.04.1992 he received Janva Jog Entry through PSO Upleta and therefore he went to Upleta Government Hospital. He noted down complaint of Banesing. He has identified the complaint written by his writer Gambhirsinh at the instance of Banesing. From cross examination of this witness, it appears that he had followed due procedures of registering the complaint. There is nothing adverse elicited in his cross-examination. 5.28 Prosecution Witness No.28 Narendrsinh Dilavarsinh is examined at Exh.110. On 16.04.1992 he was serving as Police Constable at Patanvav Police Station. He had brought complaint from Upleta Police Station which he identified as Mark A and then he handed over the same to the Patanvav PSO who registered as I.C.R.No.40 of 1992. 5.29 Prosecution Witness No.29 Bhagvanji Parsottambhai is examined at Exh.115. He has stated in his evidence that on 16.04.1992 he was In-charge of PSO at Junagadh City Police Station. At about 3:15 he received D.O.No.827/92 from Junagadh Hospital which was prepared by Police Head Constable N.S.Shekh who after his endorsement had returned the said D.O. So he made the entry in that regard in the Police Station Diary. He identified his writing and signature in Station Diary at Exh.116. He has stated that he had sent D.O. [Exh.90], after making his endorsement to PSI, Patanvav. He has also identified his endorsement. In his cross examination he has stated that necessary procedures have been followed by him and nothing adverse could be elicited from the cross examination of this witness. 5.30 Prosecution Witness No.30 Chhaganlal Lakhmanbhai is examined at Exh.117. He has stated in his evidence that on 16.04.1992 he was In-charge of PSO at Pranagar Police Station, Rajkot, between 20:00 (16.04.1992) to 20:00 (17.04.1992). From the evidence of this witness, it is clear that he had followed all the procedures and made necessary entries in that regard and handed over the same to his superior for investigation. He has identified all entries, writings and signatures. Nothing adverse is elicited during his cross examination. 5.31 Prosecution Witness No.31 Somabhai Babarbhai Zala is examined at Exh.119. He has stated in his evidence that in the year 1992 he was Police Sub Inspector at Pranagar Police Station. He has identified all entries, writings and signatures. Nothing adverse is elicited during his cross examination. 5.31 Prosecution Witness No.31 Somabhai Babarbhai Zala is examined at Exh.119. He has stated in his evidence that in the year 1992 he was Police Sub Inspector at Pranagar Police Station. On 17.04.1992 at about 4:30 at night he received Station Diary Entry as Vardhi Report from PSO of police station for investigation. He had gone to Rajkot Government Hospital where in the presence of two panchas inqust panchnama of dead body of Banesing was prepared [Exh.120]. He has identified the death form and yadi for postmortem sent to Medical Officer. From the cross examination of this witness it appears that he had followed all due procedures. 5.32 Prosecution Witness No.32 Mahesh Fakirabhai is examined at Exh.123. He was Police Constable at Pranagar Police Station. He has stated about the procedures of the Vardhi received for postmortem of Banesing. He had collected the clothes from the dead-body and handed over dead-body to his relatives. He has identified the clothes of Banesing as muddamal article nos.10 and 11 which he had sent to the concerned police station. 5.33 Prosecution Witness No.33 Kalusinh Hirasinh is examined at Exh.125. He has stated in his evidence that the entries were made to collect the papers from Upleta Police Station. He, at the time of incident, was serving as Head Constable at Patanvav Police Station. He has identified his signature in the station diary at Exh.126. He has stated that in the evening Police Constable, who had gone to Upleta Police Station, collected the complaint of Banesing. The said complaint is identified by this witness at MarkA. He has identified his endorsement of time and date of receipt. He has identified his signature. He registered the complaint as an FIR vide IC. R.No.40 of 1992 which he has identified as Mark A. He, thereafter, has issued depute order in the name of PSI S.M.Pavar. 5.34 Prosecution Witness No.34 Maheshkumar Dilipsinh Jadeja is examined at Exh.129. He has stated that he was serving as PSI at Patanvav Police Station and on 16.04.1992 he was on leave. On his returned he took over charge of investigation however most of the investigation was completed. 5.35 Prosecution Witness No.35 Mahmadsha Salambhai Shekh is examined at Exh.135. 5.34 Prosecution Witness No.34 Maheshkumar Dilipsinh Jadeja is examined at Exh.129. He has stated that he was serving as PSI at Patanvav Police Station and on 16.04.1992 he was on leave. On his returned he took over charge of investigation however most of the investigation was completed. 5.35 Prosecution Witness No.35 Mahmadsha Salambhai Shekh is examined at Exh.135. He has stated that on 16.04.1992 when he was as Head Constable at Junagadh City Police Station, D.O. No.827/1992 and inquired through wireless Upleta Police Station. Thereafter registered the offence. 5.36 Prosecution Witness No.36 Dr.Sanjaybhai Jaysinhbhai Agraval is examined at Exh.36. He ha stated in his evidence that for last four years he was Assistant of Dr.V.C.Doshi of General Surgery Division at Ahmedabad Civil Hospital. He has stated that Pravinsinh was admitted on 17.04.1992 at about 8:20. 5.37 Prosecution Witness No.37 Dr.Dipakkumar Devkarandas Patel is examined at Exh.140. From the evidence of this witness it appears that injured Pravinsinh was admitted in the Neuro Sergical Deaprtment in Ahmedabad Civil Hospital treated by Dr.M.A.Parikh. From 17.04.1992 to 27.04.1992 he was treated by three different doctors. He has stated that medical papers, nursing chart and x-ray plates show that there was fracture of the head. He has stated that the injury has not caused damage to the brain but infection could cause death of a injured. 5.38 Prosecution Witness No.38 Govindbhai Motiram is examined at Exh.141. He has stated between 2000 hrs of 16.04.1992 and 2000 hrs of 17.04.1992 he was In-charge of Police Choki at Hospital. This witness stated that on 16.04.1992 Banesing had sustained serious injuries on his head with sticks. He was referred to by Upleta Government Hospital and thereafter from Junagadh Hospital who was declared dead by Dr.Agraval. He made necessary entry in Hospital Duty Register. 5.39 Prosecution Witness No.39 Jagdissinh Jitubha Jadeja is examined at Exh.143. He has stated that on 17.04.1992 he was In-charge of Police Station Officer. At about 7:35 he received wireless message from Rajkot Control room about death of Banesing Khimaji. He sent message to Investigating Officer for addition of section 302 and to collect papers. He made necessary entry in the station diary [Exh.143]. Thereafter he handed-over papers to PSI Vaghela for further investigation. 5.40 Prosecution Witness No.40 Sursing Mohansing Pavar is examined at Exh.146. On 16.04.1992 when he was In-charge PSI at Patanvav Police Station. He received investigation from PSO vide IC. He made necessary entry in the station diary [Exh.143]. Thereafter he handed-over papers to PSI Vaghela for further investigation. 5.40 Prosecution Witness No.40 Sursing Mohansing Pavar is examined at Exh.146. On 16.04.1992 when he was In-charge PSI at Patanvav Police Station. He received investigation from PSO vide IC. R.No.40 of 1992. He recorded statements of witnesses and prepared panchnamas in the presence of panchas and recovered muddamal articles. Thereafter further investigation was handed over to another PSI. In his cross examination, he has stated that at the time of panchnama he saw bloodstains in the field of Kanji Kachra. There is no fruitful cross-examination of this witness. 5.41 Prosecution Witness No.41 Ranjitsinh Jugaji Vaghela is examined at Exh.147. He has stated that on 17.04.1992 he was PSI Bhayavadar, investigation was handed over to him. He has stated that he carried out investigation, recorded statements of witnesses, injured and collected the clothes having bloodstains. He has identified muddamal before the Court. He had prepared inquest panchnama of the persons of the accused while arresting them. He had recovered muddamal sticks at the instance of the accused. He has stated he recorded statement of injured and some of the witnesses. This witness has recovered the blood stained clothes of the accused and the injured. He recovered muddamal articles, he has prepared inquest panchnama. In his cross examination nothing adverse which may prove fatal to the prosecution case can be elicited. 6. We find that the following findings of the learned trial Court are based on the perverse appreciation of evidence, which are not sustainable in law. The evidence against the accused can be discussed under the following heads. (I) Faulty Investigation: 6.1 The trial Court has observed that when the police has recorded the complaint of Banesing (deceased) at the hospital, injured witnesses Pravinsinh and Narvirsinh were in the same hospital. But the police had not recorded their statements. The trial Court has observed that statement of Narvirsinh (P.W.No.17, Exh.66) was recorded after four to five days. The police has not recorded statement of Jagatsinh on 16.04.1992. The trial Court has observed that there is nothing to show that father of victim has imprisoned buffaloes in the panchayat cage (Dabbo). 6.2 The trial Court has much emphasised faulty investigation and Non-examination of material witnesses by the prosecution. The police has not recorded statement of Jagatsinh on 16.04.1992. The trial Court has observed that there is nothing to show that father of victim has imprisoned buffaloes in the panchayat cage (Dabbo). 6.2 The trial Court has much emphasised faulty investigation and Non-examination of material witnesses by the prosecution. 6.3 So far as faulty investigation is concerned, the law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandra Kanth Lakshmi V/s. State of Maharashtra, AIR 1974 SC 220 ; Karnel Singh V/s. State of Madhya Pradesh, (1995) 5 SCC 518 ; Ram Bihari Yadav V/s. State of Bihar, AIR 1998 SC 1850 ; Paras Yadav V/s. State of Bihar, AIR 1999 SC 644 ; State of Karnataka V/s. K. Yarappa Reddy, AIR 2000 SC 185 ; Amar Singh V/s. Balwinder Singh, AIR 2003 SC 1164 ; Allarakha K. Mansuri V/s. State of Gujarat, AIR 2002 SC 1051 ; and Ram Bali V/s. State of U.P., AIR 2004 SC 2329 ). (II) Non-examination of material witnesses: 6.4 The trial Court has acquitted the respondents – original accused on the ground that the eye-witness Khimaji Gagubhai, who is the father of the deceased Banesing and injured eye-witnesses Pravinsinh and Narvirsinh, is not examined. He had taken buffaloes to Panchayat cage (Dabbo), instead of taking his injured sons to hospital for treatment. Further, one Mangubhai who accompanied the injured and informed the police from Rajkot Government Hospital about the incident is also not examined. He had taken buffaloes to Panchayat cage (Dabbo), instead of taking his injured sons to hospital for treatment. Further, one Mangubhai who accompanied the injured and informed the police from Rajkot Government Hospital about the incident is also not examined. According to the trial Court both were important witnesses to the incident. The trial Court has also observed that it is not possible that within short period the father of the injured to drive 1718 buffaloes to Panchayat cage (Dabbo), which is 2 km away from the place of incident, to reach at hospital at about 9:50. The trial court has doubted the evidence of police witness for no reason. So far as Non-examination of material witnesses are concerned, the findings of the trial Court cannot sustain. In this context, it would be profitable to refer to what has been held by the Apex Court in State of A.P. v. Gian Chand, (2001) 6 SCC 71 . In the said case, the three-Judge Bench has opined that: "14. ... Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution." It has been further ruled therein that the Court is required to first consider and assess the credibility of the evidence available on record and if the Court finds that the evidence adduced is worthy of credence, the testimony has to be accepted and acted upon though there may be other witnesses available, who could also have been examined but not examined. In Takhaji Hiraji v. Thakore Kubersing Chamansingh, (2001) 6 SCC 145 , it has been opined that if the material witness, who unfolds the genesis of the incident or an essential part of the prosecution case, not convincingly brought to the fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution, but if there is an overwhelming evidence available, and which can be placed reliance upon, Non-examination of such other witnesses may not be material. Similarly, in Dahari v. State of U.P., (2012) 10 SCC 256 , while dwelling upon the issue of Non-examination of material witnesses, it has been succinctly expressed that when the witness is not the only competent witness, who would have been fully capable of explaining the factual score correctly and the prosecution stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, it would be inappropriate to draw an adverse inference against the prosecution. (III) Medical Evidence versus Occular Evidence : 6.5 The findings of the trial Court can be said to be perverse as the trial Court has wrongly discarded the evidence of eye-witnesses. It is observed that none of the two injured eye-witnesses have stated that the incident took place in another field. The trial Court has placed much emphasis that as to how aluminum bowl (Vaadko) was found at the place of incident is not explained by anyone. The trial Court has further observed that as per evidence of the doctor, there was no wheel-mark injuries on the body of injured witnesses and according to the doctor if the injured witnesses were beaten up with the stick then there may be wheel-mark injuries. The trial Court has overlooked the fact that prosecution witness No.19 Dr.Jasmatbhai Dyabhai [Exh.72], in his deposition, has stated that the injuries sustained by the injured could be possible by hard and blunt substance like stick. While Prosecution Witness No.7 Dr.Kiranbhai Kalabhai Sagothiya [Exh.30], in his examination-in-chief, has stated that injuries sustained by the deceased Banesing and the injured could be possible by muddamal article stick. While Prosecution Witness No.7 Dr.Kiranbhai Kalabhai Sagothiya [Exh.30], in his examination-in-chief, has stated that injuries sustained by the deceased Banesing and the injured could be possible by muddamal article stick. However, in his cross-examination he has also stated that neither of the injured witnesses sustained wheel-mark injury and further stated that if there is any wheel-mark injury on the body of injured then one can be very sure that such injury is inflicted with the stick. Whenever there is inconsistency between the ocular evidence and medical evidence, such question is no longer res integra. It is now well settled position of law that in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. The trial Court has not applied settled principles of law to the case on hand. (IV) Injured witnesses wrongly discarded : 6.6 The trial Court has also observed that the injured witnesses are not clear about the numbers of assailants and could not say as to which accused was armed with which weapon and, therefore the prosecution has failed to prove its case beyond reasonable doubt. The trial Court has totally discarded the material evidence of the injured eye-witnesses on the flimsy ground that such injured eye-witnesses do not bare wheel-mark injuries and there is some delay on the part of the investigation in recording statements of the injured eye-witnesses. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Apex Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh and Ors. v. State of Bihar, AIR 1972 SC 2593 ; Malkhan Singh and Anr. "Convincing evidence is required to discredit an injured witness". (Vide Ramlagan Singh and Ors. v. State of Bihar, AIR 1972 SC 2593 ; Malkhan Singh and Anr. v. State of Uttar Pradesh, AIR 1975 SC 12 ; Machhi Singh and Ors. v. State of Punjab, AIR 1983 SC 957 ; Appabhai and Anr. v. State of Gujarat, AIR 1988 SC 696 ; Bonkya alias Bharat Shivaji Mane and Ors. v. State of Maharashtra, ( AIR 1996 SC 257 ); Bhag Singh and Ors. (supra); Mohar and Anr. v. State of Uttar Pradesh, ( AIR 2002 SC 3279 ); Dinesh Kumar v. State of Rajasthan, ( AIR 2008 SC 3259 ); Vishnu and Ors. v. State of Rajasthan, (AIR 2009 SC (Supp) 2374); Annareddy Sambasiva Reddy and Ors. v. State of Andhra Pradesh, AIR 2009 SC 2661 ; Balraje alias Trimbak v. State of Maharashtra, (2010 AIR SCW3707). While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab, (2009 AIR SCW7206), where the Apex Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under : "Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube-well. In Shivalingappa Kallayanappa v. State of Karnataka, ( AIR 1995 SC 254 ), this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of U.P. v. Kishan Chand, ( AIR 2004 SC 4671 ), a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In State of U.P. v. Kishan Chand, ( AIR 2004 SC 4671 ), a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006) 12 SCC 459 ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below." The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. (V) UNLAWFUL ASSEMBLY: 6.7 Further, the trial Court has wrongly given much emphasis to the omissions of injured witnesses about the particular role played by the accused and they have not stated that which accused was armed with which weapon and with which weapon accused attacked on injured. This is apparently the case of attack not by particular one person but fifteen persons actively involved in the commission of offence and, therefore Section 149 clearly attracts in the facts of the present case. Merely, the victim could not describe particular role of the attacker/assailant, it may not lean the case in favour of the appellants accused that too in such a serious offence where one life is claimed only on account of their participation in such an offence. Merely, the victim could not describe particular role of the attacker/assailant, it may not lean the case in favour of the appellants accused that too in such a serious offence where one life is claimed only on account of their participation in such an offence. Further, even if we accept the minor contradictions appearing in the evidence of injured witnesses as suggested by learned advocate for the respondent – accused, it is not the case that any of the accused person who was present at the time of incident had not inflicted blow. It also suggests that after the deceased Banesing asked them to get their cattle outside the field, the accused got excited in such trivial matter and with a common intention attacked on the deceased and other witnesses who had later on come to rescue. In cases where a large number of accused constituting an 'unlawful assembly' are alleged to have attacked and killed one person, it is not necessary that each of the accused should inflict fatal injuries or any injury at all. Invocation of Section 149 is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an accused in such an 'unlawful assembly' is sufficient to render him vicariously liable under Section 149 IPC for causing the death of the victim of the attack provided that the accused are told that they have to face a charge rendering them vicariously liable under Section 149 IPC for the offence punishable under Section 302 IPC. Failure to appropriately invoke and apply Section 149 enables large number of offenders to get away with the crime. The Apex Court in Bala Seetharamaiah v. Perike S. Rao, (2004) 4 SCC 557 , para 8. held: "8. Unfortunately, the Sessions Judge did not frame charge against the accused persons for offence punishable under Section 302 IPC read with Section 149 IPC. It is also important to note that the relevant prosecution allegations so as to bring in the ingredients of the offence punishable under Section 302 IPC read with Section 149 IPC also were not incorporated in the charge framed by the Sessions Judge. It is also important to note that the relevant prosecution allegations so as to bring in the ingredients of the offence punishable under Section 302 IPC read with Section 149 IPC also were not incorporated in the charge framed by the Sessions Judge. The accused were not told that they had to face charges of being members of an unlawful assembly and the common object of such assembly was to commit murder of the deceased and in furtherance of that common object murder was committed and thereby they had a constructive liability and thus they committed the offence punishable under Section 302 IPC read with Section 149 IPC. Of course the mere omission to mention Section 149 may be considered as an irregularity, but failure to mention the nature of the offence committed by them cannot be said to be a mere irregularity. Had this mistake been noticed at the trial stage, the Sessions Judge could have corrected the charge at any time before the delivery of the judgment. In the instant case, the accused were told to face a charge punishable under Section 302 simpliciter and there was no charge under Section 302 IPC read with Section 149 IPC. Therefore, it is not possible to reverse the conviction of the accused under Section 326 IPC and substitute the conviction for the offence punishable under Sections 302/149 IPC as there was no charge framed against them for such offence.” When a large number of people gather together (assemble) and commit an offence, it is possible that only some of the members of the assembly commit the crucial act which renders the transaction an offence and the remaining members do not take part in that 'crucial act' for example in a case of murder, the infliction of the fatal injury. It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime. Ram Gope v. State of Bihar, AIR 1969 SC 689 paragraph 5: ".... When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. Ram Gope v. State of Bihar, AIR 1969 SC 689 paragraph 5: ".... When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence." Section 149 IPC is one such provision. It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent wrong doers (who actively collaborate or assist the commission of offences) claiming impunity on the ground that their activity as members of the unlawful assembly is limited. The responsibility of the prosecution and/or of the Court (in a case like the one at hand where large numbers of people (5 or more) are collectively accused to have committed various offences and subjected to trial) in examining whether some of the members of such group are vicariously liable for some offence committed by some of the other members of such group requires an analysis. Such analysis has two components (i) the amplitude and the vicarious liability created under Section 149; and (ii) the facts which are required to be proved to hold an accused vicariously liable for an offence. To understand the true scope and amplitude of Section 149 IPC it is necessary to examine the scheme of Chapter VIII (Sections 141 to 160) of the IPC which is titled "Of the offences against the public tranquility". Sections 141 to 158 deal with offences committed collectively by a group of 5 or more individuals. Section 141 IPC declares an assembly of five or more persons to be an 'unlawful assembly' if the common object of such assembly is to achieve any one of the five objects enumerated in the said section., [See Yeshwant & Others v. State of Maharashtra, (1972) 3 SCC 639 ] One of the enumerated objects is to commit any offence. Section 40 "offence". Section 40 "offence". Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code. "The words falling under section 141, clause third "or other offence" cannot be restricted to mean only minor offences of trespass or mischief. These words cover all offences falling under any of the provisions of the Indian Penal Code or any other law.", [Manga alias Man Singh Vs. State of Uttarakhand (2013) 7 SCC 629 ] The mere assembly of 5 or more persons with such legally impermissible object itself constitutes the offence of unlawful assembly punishable under Section 143 of the IPC. It is not necessary that any overt act is required to be committed by such an assembly to be punished under Section 143. [See Dalip Singh and Ors. Vs. State of Punjab, AIR 1953 SC 364 .] If force or violence is used by an unlawful assembly or any member thereof in prosecution of the common objective of such assembly, every member of such assembly is declared under Section 146 to be guilty of the offence of rioting punishable with two years imprisonment under Section 147. To constitute the offence of rioting under Section 146, the use of force or violence need not necessarily result in the achievement of the common object. In other words, the employment of force or violence need not result in the commission of a crime or the achievement of any one of the five enumerated common objects under Section 141. Section 148 declares that rioting armed with deadly weapons is a distinct offence punishable with the longer period of imprisonment (three years). There is a distinction between the offences under 146 and 148. To constitute an offence under Section 146, the members of the 'unlawful assembly' need not carry weapons. But to constitute an offence under Section 148, a person must be a member of an unlawful assembly, such assembly is also guilty of the offence of rioting under Section 146 and the person charged with an offence under Section 148 must also be armed with a deadly weapon. [Sabir v. Queen Empress, AIR 1916 Mad 788] Section 149 propounds a vicarious liability See Shambu Nath Singh Vs. State of Bihar, AIR 1960 SC 725 . [Sabir v. Queen Empress, AIR 1916 Mad 788] Section 149 propounds a vicarious liability See Shambu Nath Singh Vs. State of Bihar, AIR 1960 SC 725 . in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object. The scope of Section 149 IPC was enunciated by the Apex Court in Masalti Masalti v. State of U.P., AIR 1965 SC 202 . "The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this court in the case of Baladin assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence, and that emphatically brings out the principle that the punishment prescribed by section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly." It can be seen from the above, Sections 141, 146 and 148 create distinct offences. Section 149 only creates a vicarious liability. However, Sections 146, 148 and 149 contain certain legislative declarations based on the doctrine of vicarious liability. The doctrine is well known in civil law especially in the branch of torts, but is applied very sparingly in criminal law only when there is a clear legislative command. To be liable for punishment under any one of the provisions, the fundamental requirement is the existence of an unlawful assembly as defined under Section 141 made punishable under Section 143 IPC. The concept of an unlawful assembly as can be seen from Section 141 has two elements; (i) The assembly should consist of at least five persons; and (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein. For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that such person is a member of an 'unlawful assembly' consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non fatal. For mulcting liability on the members of an unlawful assembly under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying AK 47 rifles collectively attack a victim and cause his death by gunshot injuries, the fact that one or two of the members of the assembly did not in fact fire their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed. The identification of the common object essentially requires an assessment of the state of mind of the members of the unlawful assembly. Proof of such mental condition is normally established by inferential logic. If a large number of people gather at a public place at the dead of night armed with deadly weapons like axes and fire arms and attack another person or group of persons, any member of the attacking group would have to be a moron in intelligence if he did not know murder would be a likely consequence. If a large number of people gather at a public place at the dead of night armed with deadly weapons like axes and fire arms and attack another person or group of persons, any member of the attacking group would have to be a moron in intelligence if he did not know murder would be a likely consequence. (VI) Dying Declaration in the form of complaint is discarded merely on account of Non-exhibition of FIR: 6.8 At the time of hearing of this appeal, learned advocate for the appellant has contended that FIR is not exhibited by the trial Court and, therefore, it cannot be read into evidence. We do not find any substance in the submission made by learned advocate for the appellant. Witness Savji Kuvarji Sheth [P.W.No.27, Exh.108], Head Constable, Upleta Police Station has stated that he had received information about the incident. He had visited hospital for recording the complaint of the complainant (deceased Banesing). He had stated that at that time injured Banesing (the deceased – complainant) was in conscious state of mind while giving his complaint and he has also put his signature on it. He had described the incident and named all the accused in the FIR. Thereafter the injured has expired on a way to Ahmedabad. So the said FIR can be said to be a Dying Declaration. The said witness has also stated that FIR was recorded by the his Writer Gambhirsinh. Thus, the FIR is duly proved and mere non-exhibiting of FIR is procedural lapse on the part of the trial Court but it is not that it cannot be read into evidence as the FIR is duly proved by the prosecution. The trial Court has not considered this Dying Declaration while writing the judgment and has also not considered the evidence of Jilubha Nagjibhai [P.W. No.25, Exh.104]. He has stated that while travelling in a bus for Upleta, injured Banesing described incident naming all the accused and role played by them in the offence. This can also be treated as oral Dying Declaration of the witness. We do not find any inconsistency with these two Dying Declarations. It is needless to say that Dying Declaration can be sole base for conviction while in a case on hand there are emphatically supporting the evidence of these Dying Declarations. This can also be treated as oral Dying Declaration of the witness. We do not find any inconsistency with these two Dying Declarations. It is needless to say that Dying Declaration can be sole base for conviction while in a case on hand there are emphatically supporting the evidence of these Dying Declarations. The trial Court has not considered these Dying Declarations and not discussed the same in its judgment. We are of the view that on this ground also the judgment of the trial Court can be said to be perverse. (VII) POWER OF FIRST APPELLATE COURT: 6.9 It is contended by learned advocate for the respondent that the judgment of the trial Court being one of the acquittal, the High Court should not interfere and set aside the same on mere appreciation of the evidence, if other views are possible than of the trial Court. The judgment of the trial Court is correct and does not require any interference. Further, the power of the appellate Court is very limited in this regard and the acquittal of the accused is when the innocence of the accused is proved, it cannot be interfered with. However, in a case on hand, the trial Court has committed error apparent, in discarding the evidence of injured witnesses and dying declarations of the injured witness. Therefore, this Court can interfere in appeal against the acquittal of the appellants. It may be stated that more or less similar provisions were found in the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code') which came up for consideration before various High Courts, Judicial Committee of the Privy Council as also before the Apex Court. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an appellate Court in an appeal against an order of acquittal, we have confined ourselves to one aspect only, i.e. an appeal against an order of acquittal. 6.10 Bare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. 6.10 Bare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal. 6.11 The first decision was rendered by Judicial Committee of the Privy Council in Sheo Swarup & Ors. V/s. King Emperor, AIR 1934 PC 227 . In Sheo Swarup, the accused were acquitted by the Trial Court and the Local Government directed the Public Prosecutor to present an appeal to the High Court from an order of acquittal under Section 417 of the old Code, (similar to Section 378 of the present Code). At the time of hearing of appeal before the High Court, it was contended on behalf of the accused that in an appeal from an order of acquittal, it was not open to the appellate Court to interfere with the findings of fact recorded by the trial Judge unless such findings could not have been reached by him had there not been some perversity or incompetence on his part. The High Court, however, declined to accept the said view. It held that no condition was imposed on the High Court in such appeal. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that of the Trial Judge, recorded an order of conviction. A petition was presented to His Majesty in Council for leave to appeal on the ground that conflicting views had been expressed by the High Courts in different parts of India upon the question whether in an appeal from an order of acquittal, an appellate Court had the power to interfere with the findings of fact recorded by the Trial Judge. Their Lordships thought it fit to clarify the legal position and accordingly upon the 'humble advice of their Lordships', leave was granted by His Majesty. The case was, thereafter, argued. Their Lordships thought it fit to clarify the legal position and accordingly upon the 'humble advice of their Lordships', leave was granted by His Majesty. The case was, thereafter, argued. The Committee considered the scheme and interpreting Section 417 of the Code (old Code) observed that there was no indication in the Code of any limitation or restriction on the High Court in exercise of powers as an appellate Tribunal. The Code also made no distinction as regards powers of the High Court in dealing with an appeal against acquittal and an appeal against conviction. Though several authorities were cited revealing different views by High Courts dealing with an appeal from an order of acquittal, the Committee did not think it proper to discuss all the cases. 6.12 Lord Russel summed up the legal position thus; "There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result". 6.13 His Lordship, then proceeded to observe: "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. 6.13 His Lordship, then proceeded to observe: "Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code." 6.14 The Committee, however, cautioned appellate courts and stated; “But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice". 6.15 In Nur Mohammad V/s. Emperor, AIR 1945 PC 151 , the Committee reiterated the above view in Sheo Swarup and held that in an appeal against acquittal, the High Court has full powers to review and to reverse acquittal. 6.16 So far as the Apex Court is concerned, probably the first decision on the point was Prandas V/s. State, AIR 1954 SC 36 (Though the case was decided on March 14, 1950, it was reported only in 1954). In that case, the accused was acquitted by the trial Court. The Provincial Government preferred an appeal which was allowed and the accused was convicted for offences punishable under Sections 302 and 323 IPC. The High Court, for convicting the accused, placed reliance on certain eye-witnesses. In that case, the accused was acquitted by the trial Court. The Provincial Government preferred an appeal which was allowed and the accused was convicted for offences punishable under Sections 302 and 323 IPC. The High Court, for convicting the accused, placed reliance on certain eye-witnesses. 6.17 Upholding the decision of the High Court and following the proposition of law in Sheo Swarup, a six-Judge Bench speaking through Fazl Ali, J. unanimously stated: "It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal P. C, to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice". 6.18 In Surajpal Singh V/s. State, 1952 SCR 193 : AIR 1952 SC 52 , a two-Judge Bench observed that it was well established that in an appeal under Section 417 of the (old) Code, the High Court had full power to review the evidence upon which the order of acquittal was founded. But it was equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence could be reversed only for very substantial and compelling reasons. 6.19 In Ajmer Singh V/s. State of Punjab, 1953 SCR 418 : AIR 1953 SC 76 , the accused was acquitted by the trial Court but was convicted by the High Court in an appeal against acquittal filed by the State. The aggrieved accused approached the Apex Court. It was contended by him that there were 'no compelling reasons' for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial Court as regards the credibility of witnesses seen and examined. The aggrieved accused approached the Apex Court. It was contended by him that there were 'no compelling reasons' for setting aside the order of acquittal and due and proper weight had not been given by the High Court to the opinion of the trial Court as regards the credibility of witnesses seen and examined. It was also commented that the High Court committed an error of law in observing that "when a strong 'prima facie' case is made out against an accused person it is his duty to explain the circumstances appearing in evidence against him and he cannot take shelter behind the presumption of innocence and cannot state that the law entitles him to keep his lips sealed." Upholding the contention, the Apex Court said; "We think this criticism is well-founded. After an order of acquittal has been made, the presumption of innocence is further reinforced by that order, and that being so, the trial court's decision can be reversed not on the ground that the accused had failed to explain the circumstances appearing against him but only for very substantial and compelling reasons. 6.20 In Atley V/s. State of Uttar Pradesh, AIR 1955 SC 807 , the Apex Court said; "In our opinion, it is not correct to say that unless the appellate court in an appeal under S. 417, Criminal P.C. came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. 6.21 It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. 6.22 It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. 6.23 If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated". (emphasis supplied) 6.24 In Aher Raja Khima V/s. State of Saurashtra, 1955 2 SCR 1285 , the accused was prosecuted under Sections 302 and 447 IPC. He was acquitted by the trial Court but convicted by the High Court. Dealing with the power of the High Court against an order of acquittal, Bose, J. speaking for the majority (2:1) stated; "It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial Court was wrong". 6.25 In Venkatarama Ayyar, J. (minority), in his dissenting judgment stated: "Do the words "compelling reasons" in the above passage import a limitation on the powers of a court hearing an appeal under Section 417 not applicable to a court hearing appeals against conviction? If they do, then it is merely the old doctrine that appeals against acquittal are in a less favoured position, dressed in a new garb, and the reasons for rejecting it as unsound are as powerful as those which found favour with the Privy Council in Sheo Swarup V/s. KingEmperor, AIR 1934 PC 227 and Nur Mohammad V/s. Emperor, A.I.R. 1945 P.C. 151. But it is probable that these words were intended to express, as were the similar words of Lord Russell in Sheo Swarup that the court, hearing an appeal under section 417 should observe the rules which all appellate courts should, before coming to a conclusion different from that of the trial court. If so understood, the expression "compelling reasons" would be open to no comment. If so understood, the expression "compelling reasons" would be open to no comment. Neither would it be of any special significance in its application to appeals against acquittals any more than appeals against conviction". (emphasis supplied) 6.26 In Sanwat Singh V/s. State of Rajasthan, (1961) 3 SCR 120 : AIR 1961 SC 715 , a three-Judge Bench considered almost all leading decisions on the point and observed that there was no difficulty in applying the principles laid down by the Privy Council and accepted by the Supreme Court. The Court, however, noted that appellate courts found considerable difficulty in understanding the scope of the words "substantial and compelling reasons" used in certain decisions. Subba Rao, J., (as His Lordship then was) stated: "This Court obviously did not and could not add a condition to s. 417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong". The Court concluded: "The foregoing discussion yields the following results : (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified". 6.27 Yet in another leading decision in Shivaji Sahabrao Bobade V/s. State of Maharashtra, (1973) 2 SCC 793 , the Apex Court held that in India, there is no jurisdictional limitation on the powers of appellate Court. "In law there are no fetters on the plenary power of the appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinize the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive considerations." 6.28 Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, Krishna Iyer, J. said; "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author (Glanville Williams : 'Proof of Guilt') has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from, the conviction of innocent..' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents". (emphasis supplied) 6.29 In K. Gopal Reddy V/s. State of Andhra Pradesh, (1979) 2 SCR 363 : (1979) 1 SCC 355 : AIR 1979 SC 387 , the Court was considering the power of the High Court against an order of acquittal under Section 378 of the present Code. Chinnappa Reddy, J. after considering the relevant decisions on the point stated: "The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and Courts used to launch on a search to discover those 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh & Ors. V/s. State of Rajasthan. In Sanwat Singh's case, this Court harked back to the principles enunciated by the Privy Council in Sheo Swamp V/s. Emperor and reaffirmed those principles. After Sanwat Singh V/s. State of Rajasthan, this Court has consistently recognised the right of the Appellate Court to review the entire evidence and to come to its own conclusion, bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup's case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion. In some cases (Ramabhupala Reddy & Ors. V/s. State of A.P. AIR 1971 SC 460 , Bhim Singh Rup Singh V/s. State of Maharashtra, AIR 1974 SC 286 ), it has been said that to the principles laid down in Sanwat Singh's case may be added the further principle that "if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court". This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable". 6.30 In Ramesh Babulal Doshi V/s. State of Gujarat, (1996) 9 SCC 225 , the Apex Court said; "While setting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then onlyreappraise the evidence to arrive at its own conclusions". In Alarakha K. Mansuri V/s. State of Gujarat, (2002) 3 SCC 57 , referring to earlier decisions, the Court stated; "The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding". 6.31 In Bhagwan Singh & Ors. V/s. State of M.P., (2002) 4 SCC 85 , the trial Court acquitted the accused but the High Court convicted them. Negativing the contention of the appellants that the High Court could not have disturbed the findings of fact of the trial Court even if that view was not correct, the Apex Court observed; "We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not". 6.32 In Harijana Thirupala V/s. Public Prosecutor, High Court of A.P., Hyderabad, (2002) 6 SCC 470 , the Apex Court said; "Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of inn decree in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity". 6.33 In Ramanand Yadav V/s. Prabhunath Jha, (2003) 12 SCC 606, the Apex Court observed; "There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not". 6.34 Recently, in Kallu V/s. State of M.P., (2006) 10 SCC 313 : AIR 2006 SC 831 , the Apex Court stated; "While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court". (emphasis supplied) 6.35 From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 6.36 In case of Khurshid Ahmed Versus State Of Jammu And Kashmir, AIR 2018 SC 2457 it is held that ; “the power of the appellate Court in an appeal against acquittal is the same as that of an appeal against conviction. 6.36 In case of Khurshid Ahmed Versus State Of Jammu And Kashmir, AIR 2018 SC 2457 it is held that ; “the power of the appellate Court in an appeal against acquittal is the same as that of an appeal against conviction. But, in an appeal against acquittal, the Court has to bear in mind that the presumption of innocence is in favour of the accused and it is strengthened by the order of acquittal. At the same time, appellate Court will not interfere with the order of acquittal mainly because two views are possible, but only when the High Court feels that the appreciation of evidence is based on erroneous considerations and when there is manifest illegality in the conclusion arrived at by the trial Court. In the present case, there was manifest irregularity in the appreciation of evidence by the trial Court. The High Court based on sound principles of criminal jurisprudence, has interfered with the judgment of acquittal passed by the trial Court and convicted the accused as the prosecution was successful in proving the guilt of the accused beyond reasonable doubt.” 7. On forgoing discussion and findings of facts recorded by a trial court, it can be held to be perverse as the findings have been arrived at by ignoring, excluding relevant material and by taking into consideration irrelevant/inadmissible material. The finding is "against the weight of evidence", It so outrageously defies logic as to suffer from the vice of irrationality. The decision is arrived on the basis of ignoring evidence of the case and no reasonable and prudent person would act upon it, the order and judgment trial court is perverse. 8. In the case on hand, on trivial issue, respondent accused attacked indiscriminately on the deceased and on the injured who came to rescue. Thus, the conduct of the accused, on such trivial matter, which took away one's life and caused serious injuries, is noticeable. In this regard, we refer to the case of Accused x Versus State Of Maharashtra reported in AIR 2019 SC 3031 . It may not be out of context to note that in case the minimum sentence is proposed to be imposed upon the accused, the question of providing an opportunity under Section 235(2) would not arise. In this regard, we refer to the case of Accused x Versus State Of Maharashtra reported in AIR 2019 SC 3031 . It may not be out of context to note that in case the minimum sentence is proposed to be imposed upon the accused, the question of providing an opportunity under Section 235(2) would not arise. (See Tarlok Singh v. State of Punjab, (1977) 3 SCC 218 ; Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714 ). 9. For the reasons recorded above, Criminal Appeal No.828 of 1994 succeeds and the same is partly allowed. The impugned judgment and order dated 29.01.1994 passed by the learned Additional Sessions Judge, Gondal in Session Case No.125 of 1992 is quashed and set aside. Under the circumstances, the acquittal of accused no.1 to accused no.5 is set aside. They are convicted for offences punishable under sections 302 read with Section 149, 307 read with Sections 149, 143, 148 and 504 of the Indian Penal Code and sentenced to imprisonment for life. They are ordered to pay fine of Rs.1000/each and in default, to undergo simple imprisonment of two months. They shall have time for surrendering upto 28.02.2020. R&P may be transmitted back to concerned trial Court forthwith. No separate sentence is imposed so far as Sections 143, 148, 149, 307 and 504 of Indian Penal Code are concerned. Concerned District Court is directed to execute this order.