JUDGMENT : A.C. RAO, J. Since these three captioned Appeals were arising out of self-same judgment passed by the learned 4th Additional Sessions Judge, Surat (hereinafter referred to as the trial court) in the Sessions Case No.183 of 2013 dated 26.11.2014, they were heard analogously, and are being disposed of by this Common Judgment and Order. 2. The Criminal Appeal No.255 of 2015 is filed at the instance of the accused Nos.1 and 3 challenging the order of conviction passed by the trial Court, the Criminal Appeal No.1465 of 2014 is filed by the complainant challenging the order of acquittal of accused Nos.2, 4, 5 and 6, whereas, the Criminal Appeal No.128 of 2015 is filed by the State challenging the acquittal of accused Nos.2, 4, 5 and 6. However, neither the complainant nor the State of Gujarat has challenged the order of acquittal for the offence punishable under Sections 323, 324, 201, 188 and 120-B of IPC passed in favour of the appellant - original accused No. 1 and under Sections 324, 201, 188, 120-B of IPC passed in favour of the appellant - original accused No.3. 3. These appeals are at the instance of the appellants – original accused, complainant and the State of Gujarat under Section 378 of the Code of Criminal Procedure, 1973, (for short “the Cr.P.C.”) questioning the judgement and order dated 26.11.2014, passed by the 4th Additional Sessions Judge, Surat, in the Sessions Case No.183 of 2013, whereby, the trial court had imposed the following sentences upon the accused persons : [i] The trial court convicted accused No.1 - Anand Jamrala for the offences punishable under Sections 143, 147, 148, 302 r/w. Section 149 of IPC. [ii] The trial court also convicted accused No.3 - Dhaval alias Dhaval Mansukhbhai for the offences punishable under Sections 302, 323, 143, 147, 148 r/w. 149 IPC. [iii] The trial court acquitted accused No.1 for the offence punishable under Sections 323, 324, 201, 188 and 120-B of IPC. [iv] The trial court acquitted accused No.3 for the offence under Sections 324,201, 188, 120-B of IPC. [v] The trial court sentenced both the accused to suffer R.I for life and to pay fine of Rs.25,000/-, in default, to suffer R.I for 6 months for the offence under Section 302 of IPC. [iv] The trial court acquitted accused No.3 for the offence under Sections 324,201, 188, 120-B of IPC. [v] The trial court sentenced both the accused to suffer R.I for life and to pay fine of Rs.25,000/-, in default, to suffer R.I for 6 months for the offence under Section 302 of IPC. [vi] The trial court sentenced both the accused for the offence under Section 143 of IPC to suffer R.I for 6 months and to pay a fine of Rs.3000/-, in default, to suffer R.I for one month. [vii] The trial court sentenced both the accused for the offence under Section 147 of IPC to suffer R.I for 2 years and fine of Rs.5,000/-, in default, to suffer R.I for 2 months. [viii] The trial court sentenced both the accused for the offence under Section 148 of IPC to suffer R.I for 2 years and fine of Rs.5,000/-, in default, to suffer R.I for 2 months. [ix] The trial court sentenced both the accused for the offence under Section 149 of IPC to suffer R.I for 2 years and fine of Rs.5,000/-, in default, to suffer R.I for 2 months. All the substantive sentences were ordered to run concurrently. [x] The trial court on appreciation of evidence acquitted the original accused No.2 - Jignesh alias Jigo Jerambhai, accused No.4 - Rameshbhai alias Ramesh Narsingbhai, Accused No.5 - Dineshbhai alias Sahil Mohanbhai, Accused No.6 - Niteshbhai Shrisonilal from all the offences with which they were charged. 4. The short facts leading to filing of present Appeals are in nut-sheet as under:- 4.1 The case in brief relates to the so-called harassment by accused No.3 to the prosecution witness Bhargav on account of demand of mobile of Apple Company. That, Raju Devabhai informed the deceased Lalabhai about harassment being caused by accused No.3 Dhaval to his friend Chetan's friend Bhargav on account of Apple Mobile. This communication took place on 31.10.2012 at about 7.00 p.m. Thus, inquiry about Dhaval came to be made and the deceased Lalabhai informed Chetanbhai to call Bhargav near Gajera Circle. Chetan was directed to come with Bhargav near Gajera Circle. Dhaval was contacted on phone and he informed that he would contact after five minutes. Deceased Lalabhai inquired from Bhargav, where Dhaval could be found and Bhargav informed that Dhaval might be available at Pandit's Galla near Nani Ved. Chetan was directed to come with Bhargav near Gajera Circle. Dhaval was contacted on phone and he informed that he would contact after five minutes. Deceased Lalabhai inquired from Bhargav, where Dhaval could be found and Bhargav informed that Dhaval might be available at Pandit's Galla near Nani Ved. 4.2 Thus, on this information, the complainant, deceased and Nitesh went in their i20 car bearing No.GJ.5.CS.0066 and went to Nani Ved, Pandit's Pan Galla. Bhargav and Chetan came to Pandit's Pan Galla on their motorcycle. 4.3 Dhaval was informed by Bhargav on phone that they had come to Pandit's Galla and thereafter, Dhaval in company of accused Anand and one another unknown person, came at Pandit's Galla. According to the complainant, the deceased Lalabhai told Dhaval “We will not give Apple Mobile to you, do whatever you want”. On so saying, Dhaval went aside and talked with somebody on mobile and two persons came on motorcycle near Pandit's Galla. It was about 8.30 p.m. to 8.45 p.m. when all the five came near Pandit's Galla and Dhaval gave a slap to deceased Lalabhai. Thereafter, Dhaval took knife from Pandit's Pan Galla and inflicted knife blow on the complainant, which the complainant warded off by his left hand resulting into injury. 4.4 Thereafter, the complainant and Lalabhai with a view to save themselves, ran towards Nani Ved Road, and the complainant hide himself on the side of the road whereas, the accused Anand and the accused Dhaval chased Lalabhai and inflicted knife blows and three unknown persons had caught hold of Lalabhai. The injuries were sustained on the left side of the stomach and on the back and on the left thigh. The injuries were fatal and thereby they committed murder of Lalabhai. 5. The complaint came to be registered before the Chowkbazar Police Station, Surat vide I-C.R. No.69 of 2012. The Investigating Officer, after carrying out investigation and collecting sufficient evidence against the appellants – accused, had laid the charge-sheet in the Court of Judicial Magistrate, First Class, Surat where the case was registered as Criminal Case No. 2178 of 2013. The case being triable by the Court of Sessions, the same was committed to the Sessions Court under Section 209 of the Cr.P.C., where it was registered as the Sessions Case No.183 of 2013. 6. The case being triable by the Court of Sessions, the same was committed to the Sessions Court under Section 209 of the Cr.P.C., where it was registered as the Sessions Case No.183 of 2013. 6. The trial court had framed the charge against all the accused for the offences punishable as mentioned above. The appellants – accused having denied the charges levelled against them, the trial was conducted by the Sessions Court. The prosecution, to prove the guilt of the accused, had examined as many as 55 witnesses, and had also produced 75 documentary evidence. After the evidence of the prosecution was over, the further statements of all the appellants - accused were recorded under Section 313 of the Cr.P.C., wherein, they had denied the allegations levelled against them. They have stated that they were not present at the scene of offence and there was no identification parade and they were wrongly identified before the Court and they are innocent and they have not committed any offence. The Sessions Court, after appreciating the evidence on record, had convicted the appellants herein i.e. original accused Nos. 1 and 3 and acquitted original accused Nos. 2,4 5 and 6 vide impugned judgement and order. Being aggrieved by the same, the appellants – original accused, the original complainant and the State of Gujarat have filed the present appeals respectively. 7. Heard learned counsel for the respective parties and learned APP appearing for the State. 8. We would like to refer to the relevant prosecution evidence for the purpose of this appeal. 8.1 As per PW-29 – Lalabhai Dehurbhai Bhuva the complainant, in his deposition at Exh.-118, has stated that on 31.10.2012, at the scene of incident, at Pandit's galla Dhavalbhai had slapped Lalabhai and he went to Pandit Pan Parlour and brought knife by which he had inflicted first blow on him, in defence whereof, he got knife injuries on the left hand and he and Lalabhai, so as to save their lives, went towards Nani Ved village. When he was hiding in the darkness of road side then he saw that Dhaval and Anand Gabani @ Anand Jamrana had inflicted knife blow on the back side of Lalabhai and about three unknown persons had caught hold of Lalabhai. When he was hiding in the darkness of road side then he saw that Dhaval and Anand Gabani @ Anand Jamrana had inflicted knife blow on the back side of Lalabhai and about three unknown persons had caught hold of Lalabhai. 8.2 As per PW-34 – Jay Rasikbhai Parmar, in his deposition at Exh.-132, has stated that at the scene of incident he had seen that Lalabhai had told Dhaval that mobile would not be given therefore, Dhaval got angry and called someone and thereafter, two strangers came on motor-cycle. Dhaval while talking on the phone went to Pandit Pan Parlour and slapped Lalabhai. Thereafter, Dhaval brought knife from there and inflicted the same on the left hand of deceased Lalabhai's friend Lalabhai Dehurbhai. All the five persons namely, Dhaval, Anand, Jigo and two strangers rushed towards them. At that time, Anand Jamrada brought knife from Pandit Pan Parlour. At that time, deceased Lalabhai and Lalabhai Gehurbhai went towards Nani Ved. At that time, he hide himself on the road side and saw that Jigo and two other persons have caught hold of Lalabhai Devabhai and Anand Jamrada and Dhaval inflicted knife blows on stomach and back of Lalabhai. He identified Anand Jamrada. 8.3 As per PW-35 – Nitesh @ Nitu Hawaldarbhai, in his deposition at Exh.-133, has stated that at the time of incident there was a quarrel when Dhaval got angry and slapped Lalabhai Dabhaliya and other four persons rushed towards them. At that time, Dhaval brought knife from Pandit Pan Parlour and inflicted knife blow on the elbow of Lalabhai Bhuva and also inflicted knife blow on back of Lalabhai Dambhaliya. He has also stated that Lalabhai Bhuva and Lalabhai Dambhaliya went towards Nani Ved and he had seen that three persons caught hold of Lalabhai Dambhaliya and one person gave knife blows on the stomach and back of Lalabhai. 8.4 PW-36 – Chetan Rasikbhai Parmar, in his deposition at Exh.-134, has stated that there was quarrel by which Dhaval got angry and slapped Lalabhai. Thereafter, Dhaval went to Pandit Pan Parlour and called someone and thereafter, two persons came on bike. After their arrival, Dhaval slapped Lalabhai. He saw all five persons rushed towards them and therefore, this witness had ran away and he had called Rajubhai who is the brother of Lalabhai and narrated about the incident. Thereafter, Dhaval went to Pandit Pan Parlour and called someone and thereafter, two persons came on bike. After their arrival, Dhaval slapped Lalabhai. He saw all five persons rushed towards them and therefore, this witness had ran away and he had called Rajubhai who is the brother of Lalabhai and narrated about the incident. 8.5 PW-37 – Bhargav Ghanshaym, in his deposition at Exh.-136, has stated that at the time of incident Dhaval went to Pandit Pan Parlour and brought one knife with him whereby, he inflicted blow on left hand elbow of Lalabhai Bhuva and also inflicted knife blow on the back of Lalabhai Dambhaliya. He had also seen that Jogi and other two persons caught hold of Lalabhai Dambhaliya and at that time Anand Jamrada brought knife from Pandit Pan Parlour and thereafter, Dhaval and Anand Jamrada inflicted knife blows on Lalabhai's stomach and back and Lalabhai fell down. 8.6 PW-39 – Rajubhai Devabhai, in his deposition at Exh.-139, has stated that on the day of incident, one Chetanbhai called him and informed him that there is a quarrel at Nani Ved, so he should come there. When he reached there, he saw people gathered there and saw his elder brother lying down and bleeding. When police had inquired from him as to with whom his brother had come there, then he informed that his brother had come with Lalabhai Bhuva and Nitubhai Rajput. Police told him to call both of them. Upon calling, Lalabhai Bhuva came there and the police inquired from him. 8.7 PW-27 – Dr. Deepakkumar Maheshkumar Singhal, in his deposition at Exh.-106, has stated that he had performed Post-mortem on the body of the deceased Lalabhai Devabhai Bambhaliya. He had described the injuries in his deposition and at last he had confirmed that the injuries which are seen on the body of the deceased could only be possible with sharp edged weapon like knife. He has stated that considering the depth of the injuries, the weapon might have been used forcefully. 8.8 PW-30 – Dr. Rashmikant Shivubhai Patel, in his deposition at Exh.-121, has stated that on the date of incident Lalabhai Deharbhai Bharvad at about 9.00 pm. in the evening came there with his injuries and told that he was inflicted by knife and there was some mobile issues, due to which the said injuries were caused. 8.9 PW-33 – Dr. Rashmikant Shivubhai Patel, in his deposition at Exh.-121, has stated that on the date of incident Lalabhai Deharbhai Bharvad at about 9.00 pm. in the evening came there with his injuries and told that he was inflicted by knife and there was some mobile issues, due to which the said injuries were caused. 8.9 PW-33 – Dr. Arvindkumar Dashrath Singh, in his deposition at Exh.-120, has stated that on the date of incident he had treated Lalabhai Dehurbhai Bhuva. Upon asking Lalabhai about the incident, he told that at around 8.30 p.m. at Ved road, he was assaulted by knife and thereafter, he had taken primary treatment at Baroda Prestige Hospital. 9. At the time of arguments, Mr. A.D. Shah, learned counsel appearing for the appellants - original accused nos.1 and 3 has contended that from the evidence of the prosecution witnesses on the aspect of motive, PW-34 Jay Rasikbhai Parmar, PW-36 Chetan Rasikbhai Parmar, Pw-37 Bhargav Ghanshyambhai, it clearly transpires that before 31.10.2012, there was no communication with deceased Lalabhai about harassment by accused Dhaval to Bhargav on demand of Apple mobile and threats being administered by him. The grievance of demand and threats is conveyed by Bhargav to Chetan and Jay for the first time on 31.10.2012 at about 8.30 a.m. As per the prosecution case, Chetan communicated about this aspect to Lalabhai on 31.10.2012 at about 9.00 a.m. Lalabhai told that in the evening he would come with them and persuade Dhaval to settle the dispute. Thus, upto 8.00 p.m. on 31.10.2012, there was no communication from Chetan, Bhargav or Jay to resolve the dispute of demand of Apple mobile from Bhargav. It is only in the evening at about 7.30 or 8.00 on 31.10.2012 that Chetan, after contacting the deceased Lalabhai contacted Bhargav conveying him about their visit to Gajera Circle and thereafter, Bhargav went to Chetan's house. Thus, till this period, there is nothing to show that the accused Anand and/or accused Dhaval were at all aware about the deceased Lalabhai being contacted by Chetan, Jay and Dhaval in respect of Apple mobile. 9.1 It is contended by the learned counsel that the evidence of all these three witnesses clearly revealed that when Chetan and Bhargav went near Gajera Circle, the deceased Lalabhai was in company of the complainant Lalabhai and Nitu with i20 car. 9.1 It is contended by the learned counsel that the evidence of all these three witnesses clearly revealed that when Chetan and Bhargav went near Gajera Circle, the deceased Lalabhai was in company of the complainant Lalabhai and Nitu with i20 car. It is contended that at this stage, Lalabhai told Bhargav to contact Dhaval on phone and thereby they could meet him. It is contended that when Dhaval was contacted by Bhargav on telephone, Dhaval only told that he is busy. On such information, Bhargav told deceased Lalabhai about the message given by Dhaval and thereafter, deceased Lalabhai inquired as to where they can contact Dhaval, and Bhargav informed that generally Dhaval used to sit at Pandit's Pan Parlour. 9.2 It is contended that it is the prosecution case that Chetan had told Jay to stay at the residence, however, Jay went on his motorcycle to Gajera Circle. It is contended that there is nothing to establish that how Jay had got the idea to go at Gajera Circle, more particularly when Chetan and Bhargav left the residence to meet Lalabhai. It is contended that though Jay went to Gajera Circle, he did not go near Bhargav and Chetanbhai and saw Bhargav and Chetanbhai talking to deceased Lalabhai. Thereafter, Lalabhai and others left Gajera Circle. It is also the case of the witness Jay that all of them proceeded towards Pandit’s Pan Parlour on their respective vehicles and he also followed them towards Pandit’s Pan Parlour. It is claimed by the witness Jay that he stood at a distance near grill and at that time, he received telephone from Dhaval and started abusing and also inquired where he was. It is contended that as per this witness, he informed Dhaval that he was at his residence. According to this witness, he was frightened and so he went to Lalabhai who was standing near Pandit’s Pan Parlour and informed about Dhaval’s phone. As per this witness, he received another phone call from Dhaval and Dhaval was using abusive language on phone, so he handedover phone to his brother Chetan and thereafter, Chetan had talked with Dhaval. The mobile record reflects call details of Dhaval with Jay on 31/10/2012 during the period from 7.32 p.m. to 8.30 p.m. However, the location of tower is not available for these call details. The mobile record reflects call details of Dhaval with Jay on 31/10/2012 during the period from 7.32 p.m. to 8.30 p.m. However, the location of tower is not available for these call details. It is claimed by the witness that thereafter Dhaval came in a car and talked with Lalabhai and at that time Lalabhai informed that mobile would not to be given. Dhaval got enraged and then contacted someone on phone and thereafter two persons came on motorcycle. 9.3 It is contended that none of the three witnesses, namely, Jay Rasikbhai, Chetan Rasikbhai and Bhargav Ghanshyambhai, after witnessing such incident, did not contact police immediately and all of them went away to their respective homes. It is contended that as per the witness Bhargav, he had witnessed infliction of blows on the deceased Lalabhai and the deceased Lalabhai falling down at the place and the witness Bhargav being frightened went to Dhaboli cross roads. It is further revealed that mobile data clearly reflects the tower location of Bhargav near Dhaboli road at about 4.54 p.m. and at about 8.46 p.m. when Bhargav talked with Jay and Chetan. Bhargav deposes that after reaching Dhaboli cross roads, he had contacted Chetanbhai (as per mobile record at 8.46 p.m.) and inquired as to what happened to Lalabhai and at that time Chetanbhai told that Lalabhai is murdered. Thus, the claim of witness Bhargav about his witnessing incident of infliction of blows by accused Dhaval and Anand on deceased Lalabhai does not sound to be true and trustworthy. It is contended that the learned Judge seriously erred in placing reliance on the evidence of Bhargav, Chetan and Jay. It is contended that as per the call details of mobile on 31/10/2012, it clearly transpires that all the three were at different places and they could not have been present near the scene of offence. Thus, the prosecution case entirely depends on the evidence of the complainant Lalabhai Dehurbhai. As per the evidence of Lalabhai, on arrival of the accused Anand, accused Dhaval and one unknown person in a car, told Dhaval that they have not to give any mobile to him. Lalabhai’s intervention was sought to solve the dispute between Dhaval and Bhargav. It is contended that it was expected that Lalabhai should hear Dhaval about his grievance. As per the evidence of Lalabhai, on arrival of the accused Anand, accused Dhaval and one unknown person in a car, told Dhaval that they have not to give any mobile to him. Lalabhai’s intervention was sought to solve the dispute between Dhaval and Bhargav. It is contended that it was expected that Lalabhai should hear Dhaval about his grievance. There is nothing to show that Lalabhai had made any inquiry about the dispute from Bhargav. It is contended that Lalabhai told Dhaval that no mobile is to be given, there was no reason for Lalabhai and the complainant to stay over at the place. It is contended that there is nothing to show that any other accused was armed with weapon. It is contended that when complainant had received injury over upper portion of left elbow, the complainant and Lalabhai ran towards Nani Ved. The complainant had crossed the road and hid himself in darkness, whereas three persons caught hold of Lalabhai and the accused Dhaval and Anand inflicted knife blow. The complainant also saw Lalabhai falling down in bleeding condition. Thereafter, after killing Lalabhai, all the five ran away and from there he went to one Shivam Hospital, opp: Baroda Prestige. The Medical certificate (Exh.122/P.620) clearly reflects that the complainant Lalabhai went to Shivam Hospital at about 9.30 p.m. on 31/10/2012. It also clearly shows that there were two incised wounds over left arm posterior and Muscle deep. The medical certificate also discloses that stitching of wound was done under local anesthesia. It is vehemently contended that the claim of the complainant about his sustaining one injury being inflicted by accused Dhaval is not substantiated by medical evidence and the complainant does not refer at all to any other blow having been received by him. The evidence of Dr. Rashmikant Shivubhai Patel (PW-30/Exh.121/P.617) clearly reflects that the complainant had come to Shivam Hospital at about 9.30 p.m. and he had left the hospital around 10.30 p.m. It is contended that the complainant though claims to have witnessed the incident and after sustaining injuries went to Shivam Hospital, he did not inform the relatives of the deceased Lalabhai. As per his evidence, he was under treatment at Shivam Hospital, he received phone call of Rajubhai-brother of the deceased Lalabhai inquiring as to where the complainant was. As per this witness, he informed about his sustaining injuries. As per his evidence, he was under treatment at Shivam Hospital, he received phone call of Rajubhai-brother of the deceased Lalabhai inquiring as to where the complainant was. As per this witness, he informed about his sustaining injuries. As per his evidence, he was called at the place of incident by Rajubhai and he went to the place of incident where he noticed the deceased Lalabhai lying on road and he was dead. The witness had stated that thereafter police had come and made inquiries from the complainant. According to his evidence, he was taken to Chowk-Bazar police station and his compliant was recorded between 10.30 to 10.45 p.m. It is contended that from the evidence of Nitesh alias Nitu Havaldarbhai (PW.35/Exh.133) that when they returned from Navsari at about 7.00 p.m., Rajubhai was present at the office and he told his elder brother (deceased) that “Chetan is my friend and Bhagav is his friend; Dhaval is harassing him (Bhargav) and they should meet him (Dhaval) at Gajera Circle.” It is claimed by the witness that thereafter deceased Lalabhai contacted Chetan and informed him that he was coming to Gajera Circle and he also asked Chetan to come with Bhagav at Gajera Circle. According to this witness, after they reached Gajera circle, Chetan and Bhargav also reached there and the deceased Lalabhai told Bhargav to contact Dhaval. Thereafter, Bhargav telephoned Dhaval and Dhaval told that he was busy and he would contact after some time. 9.4 It is contended that as per the witness Nitesh, the accused Dhaval had inflicted knife blow on the complainant Lalabhai and thereafter inflicted another knife blow on the back of the deceased Lalabhai. According to the learned counsel, this is a new version and contrary to the case of the complainant. It is contended that from the evidence of this witness, it emerges that after the deceased and the complainant ran away from that place, he had seen three persons catching hold of Lalabhai and one person inflicting blows on back and abdomen of the deceased Lalabhai. The witness does not refer to the infliction of blows by accused Dhaval at that place when three persons are alleged to have caught hold of the deceased Lalabhai. In the cross-examination, he has admitted that he learnt about the incident on next day from Bharwad community friend. The witness does not refer to the infliction of blows by accused Dhaval at that place when three persons are alleged to have caught hold of the deceased Lalabhai. In the cross-examination, he has admitted that he learnt about the incident on next day from Bharwad community friend. He also admitted that he has not stated in his police statement about infliction of blows on abdomen of Lalabhai. The Cross-examination also reveals that this witness may not be present and considering his conduct after the accused are alleged to have run away, he went away from the place of incident without waiting to render any assistance to the deceased. The entire evidence of this witness, prima facie, appears to be untrustworthy and appears to have been subsequently gotu-p as witness. It is contended that till the complainant, deceased and Nitesh as well as Chetan and Bhargav went near Pandit’s Pan Parlour, it was not within the knowledge of accused No.3 that these people had gathered at Pandit’s Pan Parlour with a view to resolve any dispute about mobile telephone with Bhargav. It is contended that as per the prosecution case, the accused No.3 arrived at the scene of offence with knowledge that there is a possibility of some incident taking place is not probablised at all. It is vehemently contended that upto 7.30 p.m., there was no meeting in contemplation and at least accused No.3 had no knowledge that Chetan and Bhargav had sought help from the deceased and others. Thus, there was no question of accused No.3 preparing for such eventuality. It is contended that there is no positive evidence about the accused Nos.1 and 3 meeting prior to 7.30 p.m. Even mobile records of Anand Gabani - 8141423142 on 31/10/2012 clearly revealed that Anand Gabani is moving at different places from 7.22 p.m. to 9.01 p.m. and all these areas are not around the place of incident. The mobile details of Anand Gabani, thus, clearly reflect that from 8.30 p.m. to 10.41 p.m. Anand Gabani was contacting different persons on their mobile. It is contended that there is no evidence of conspiracy before the trial court. 9.5 It is vehemently contended that the prosecution has not examined the second panch witness – Sanjay Batukbhai when the panch witness has supported the case of the prosecution. It is contended that there is no evidence of conspiracy before the trial court. 9.5 It is vehemently contended that the prosecution has not examined the second panch witness – Sanjay Batukbhai when the panch witness has supported the case of the prosecution. It is contented that the prosecution has also examined Jayesh Dayabhai Parmar (PW-22/Exh.97) to discover clothes and weapons under a panchnama prepared on 12.01.2013 (Exh.98) and this panch witness has turned hostile. It is contended that Exh.98 is a panchnama drawn in the style of discovery panchnama, however, there is no incriminating statement at the time of preliminary panchnama. Thus, the preliminary panchnama is absolutely silent about any incriminating statement suggesting authorship of concealment. It is contended that though the search of the house of the accused No.3 was carried out, no incriminating article was recovered. It is contended that when there is no incriminating material is found, the said panchnama cannot be relied and it clearly hits by Section 25 of the Evidence Act. It is contended that the Investigating Office knew about the residential address of the accused, but no attempt was made from 31.10.2012 to the date of arrest of the accused No.3 to search his residential premises. It is contended that no attempt is made by the Investigating Officer to locate the place where the complainant claimed to have hide himself after receipt of the injuries and from the said place he claims to have witnesses the incident and the panchnama of the scene of offence (Exh.47) is absolutely silent as to the place where the complainant hide himself and saw the incident. The presence of blood stain at such place would have been of great importance to ascertain the veracity of the claim of the complainant. Thus, the investigating agency has not taken steps to ascertain the claim of the complainant about the assault on the deceased and attempted to bring on record the evidence in the nature of panchnamas and therefore, the conviction imposed by the trial Court cannot sustain in the eye of law. 10. The learned counsel appearing for the appellants has also made elaborate submissions on the evidence of Mobile Tower data, absence of motive, etc. as under :- [A] SUBMISSION ON MOBILE TOWER DATA 10.1 Learned counsel appearing on behalf of the convicted accused has placed much reliance on the mobile tower location. 10. The learned counsel appearing for the appellants has also made elaborate submissions on the evidence of Mobile Tower data, absence of motive, etc. as under :- [A] SUBMISSION ON MOBILE TOWER DATA 10.1 Learned counsel appearing on behalf of the convicted accused has placed much reliance on the mobile tower location. Relying on the mobile tower data it is contended that the accused were not present at the place of incident. It is contended that as per the call details after 8.30 p.m. in respect of mobile number of Dhaval, no details are found about Dhaval contacting someone on mobile. There is no evidence coming on record with regard to mobile cell phone Nos.9879717309 and 9979122949. 10.2 It is contended that after the incident, witness Jay went to his residence and after some time came to Pandit's Pan Parlour to take his motorcycle. At that time, he saw police and learnt about death of Lalabhai and injury to the complainant Lalabhai. Thus, on the aspect of motive about demand of amount by accused No.3 Dhaval from Bhargav or witness Jay, the same is not trustworthy and at least there was no occasion before 31/10/2012 to find-out solution in respect to demand of mobile by Dhaval. 10.3 The learned counsel has contended that so far as the case of prosecution regarding conspiracy is concerned, the trial court has not believed the prosecution case about conspiracy and accused Nos.1 and 3 have been acquitted of the charge of conspiracy. There is no appeal preferred by the State against the order of acquittal in favour of accused Nos.1 and 3 for the offence of conspiracy. Considering the evidence as to motive, there is no question of any of the accused entering into conspiracy, more particularly in view of the fact that upto 7.32 p.m. on 31/10/2012, there was no question of accused Dhaval being called to solve the so-called dispute of demand of mobile and/or amount of Rs.10,000/- at the behest of the deceased Lalabhai. It is contended that the call details of the deceased Lala Deva (Mobile No.9825564774), also shows that the deceased had talked with Chetan only on 31/10/2012 between 7.39 p.m. to 8.29 p.m. and the location of tower reflects different places. It is contended that the call details of the deceased Lala Deva (Mobile No.9825564774), also shows that the deceased had talked with Chetan only on 31/10/2012 between 7.39 p.m. to 8.29 p.m. and the location of tower reflects different places. 10.4 It is contended that similarly, the call details of Bhargav (Mobile No.8866763547), clearly shows that Bhargav had talked with Jay between 8.17 p.m. to 9.40 p.m. on 31/10/2012. The tower location clearly reflects different places and surprisingly there is no evidence coming on record about the conversation between Jay and Bhargav between 8.48 p.m. to 9.40 p.m. It is contended that the mobile record of Bhargav in respect to talk with Chetan on 31/10/2012 clearly reflects that Bhargav had talked between 7.53 p.m. to 10.32 p.m. and the location of tower clearly reflects different places. There is no evidence about the conversation between Bhargav and Chetan during this period and considering the different locations of mobile tower, the claim of these three witnesses, namely, Jay, Chetan and Bhargav about their presence near Pandit's Pan Parlour becomes very doubtful. 11. We do not find any substance in the submissions made by the learned counsel for the appellants – accused nos.1 and 3. In this regard we would like to refer the book Richmond Journal of Law and Technology Volume 18 | Issue 1 Article 4 of year 2011 on the Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of a Cellular Phone. The relevant paras – 11 and 13 thereof are reproduced as under :- “(11) A cell phone’s signal will often be received simultaneously by more than one cell site when operating in areas with a high concentration cell sites and overlaps in coverage. When this occurs, a mathematical process called triangulation may determine the phone’s location if either : (1) three points receiving the signal are known; or (2) two points receiving the signal are known, along with the direction in which the cell site received the signal. The accuracy of triangulation varies depending on a number of factors, such as the density of cell sites. The accuracy of triangulation varies depending on a number of factors, such as the density of cell sites. Urban areas tend to have a higher density of cell sites; therefore, triangulation is most feasible in those areas xxx xxx [13] Often historical cell site records only indicate the date, time, and duration of calls, whether calls are inbound or outbound, and show the originating and terminating cell sites for calls received or placed on the phone. Accordingly, triangulation cannot determine the location of the phone because either the phone connected with only one site (i.e., the originating and terminating cell sites are the same) or only two sites are known at different times (i.e., at the beginning and end of the call) without directional information. This gap in the records occurs because no business purpose exists for recording real-time cell site data, and cellular companies tend to only keep records of historical cell site data that are useful for billing purposes or to measure call traffic. An additional problem may arise in obtaining cell site data, because companies may only store data for six to twelve months before purging it from a cellular company’s system. If triangulation is not possible from the available records, then these records only show, at most, the phone’s coverage areas at the beginning and end of the call.” 12. Applying the above technical aspects to the facts of the case on hand, we are of the view that when there is no positive evidence pinpointing the location of mobile phone, it cannot be said that the accused were not present at the place of incident. From the data of single cell tower certainly date, time and duration of calls, including whether calls were incoming or outgoing could be established. But to prove alibi, from the place of offence, the defence has to establish pinpointing location of mobile phone using expert evidence, which has remained to be established by the defence. [B] MOTIVE: 13. It is contended by Mr. A.D. Shah, learned counsel for the appellant – accused that the motive is not established by the prosecution. It is contended that till the accused No.3 reached the place of incident, he was not aware that the deceased was present at the place of incident. 14. Per contra, learned counsel Mr. [B] MOTIVE: 13. It is contended by Mr. A.D. Shah, learned counsel for the appellant – accused that the motive is not established by the prosecution. It is contended that till the accused No.3 reached the place of incident, he was not aware that the deceased was present at the place of incident. 14. Per contra, learned counsel Mr. Popat appearing on behalf of the complainant has submitted that absence of motive is insignificant when the injured witness's evidence is available to the court. Normally an injured witness would enjoy more credibility than other witnesses. In this regard, he has relied on the decision in case of Jarnail Singh v. State of Punjab [2009 (0) GLHEL-SC 44410] wherein it is held that:- 21. In State of U.P. v. Kishan Chand and Ors. (2004) 7 SCC 629 , a similar view has been re-iterated 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 & Ors. 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. 14.1 Mr. Popat has also relied on the decision in case of Mano Dutt v. State of Uttar Pradesh [2012 (0) GLHEL-SC-50981] wherein it is held that :- 23. In our view, non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. We may merely refer to the case of Abdul Sayeed v. State of Madhya Pradesh [ (2010) 10 SCC 259 ], where this Court held as under: '28. 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 this 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 v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.] 29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) '28. 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 tubewell. In Shivalingappa Kallayanappa v. State of Karnataka 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. 29. 29. In State of U.P. v. Kishan Chand 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). Thus, we are of the considered opinion that evidence of Darshan Singh (PW-4) has rightly been relied upon by the courts below.' 30. 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.' 14.2 Mr. Popat has relied on the judgment of the Apex Court in the case of Baleshwar Mahto vs. State of Bihar, reported in [ 2017 (3) SCC 152 ], wherein it is held as under :- “Now, coming to the another aspect, it is evident that Bindeshwar and Anandi both sustained injury during said course and were examined by PW-2 as well as by CW-2 as referred by the treating doctor. The evidence of injured witness cannot be brushed aside in normal phenomenon rather their evidence should be considered with more weightage because of the fact that presence of injury suggest presence of witness at the place of occurrence. The same view has been reiterated by the Hon'ble Apex Court in a case Bhajan Singh @ Harbhajan Singh v. State of Haryana reported in (2011) 7 SCC 421 . "36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. The same view has been reiterated by the Hon'ble Apex Court in a case Bhajan Singh @ Harbhajan Singh v. State of Haryana reported in (2011) 7 SCC 421 . "36. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness 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." Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Abdul Sayeed v. State of M.P. (2010) 10 SCC 259 ; Kailas v. State of Maharashtra (2011) 1 SCC 793 ; Durbal v. State of U.P. (2011) 2 SCC 676 and State of U.P. v. Naresh (2011) 4 SCC 324 .)” 15. Mr. H.K. Patel, the learned APP appearing on behalf of the State has fully supported the submissions of learned advocate for the complainant and in addition, he has contended that the case of the prosecution is based on evidence of the complainant who is an injured witness i.e. PW-29 and the evidence of the complainant is corroborated by the evidence of PW-30 – Dr. Rashmikant Shivubhai Patel, who had treated the complainant. The medical certificate (at Exh.122) and prescription (at Exh.123) are issued by PW-30. It is contended that the doctor has clearly stated in his deposition that he had issued the medical certificate and prescription. In the FIR itself, all the accused persons have been attributed with specific role. It is contended that there are allegations regarding formation of unlawful assembly. The medical certificate (at Exh.122) and prescription (at Exh.123) are issued by PW-30. It is contended that the doctor has clearly stated in his deposition that he had issued the medical certificate and prescription. In the FIR itself, all the accused persons have been attributed with specific role. It is contended that there are allegations regarding formation of unlawful assembly. The evidence of the complainant who is an injured witness is to be taken into consideration by placing his evidence on different pedestal in view the principles laid down by the Apex Court. It is contended that the evidence of the injured witness is getting corroboration from the evidence of other eyewitness i.e. PW-35 – Nitesh @ Nitu, PW-36 – Chetan Parmar and PW-37 – Bhargav Pipaliya. It is contended that the learned trial court has wrongly acquitted the accused when the complainant – injured witness has identified the accused before the Court and also during the course of TI Parade. 16. So far as question of motive is concerned, we are of the view that when there is direct evidence to relegate the accused with the crime, motive does not have any signification to establish guilt of accused. In this regard, we would like to refer the case of Stalin v. State represented by Inspector of Police in Criminal Appeal No.577 of 2020 decided on 9.9.2020, in which the Hon'ble Supreme Court has held that :- “6. Now, so far as the submission on behalf of the accused that the prosecution has failed to establish and prove the motive and/or that the motive alleged of the incident is prior to four months of the incident in question, learned counsel appearing on behalf of the State has vehemently submitted that, as rightly observed by the High Court, in a case where the eyewitnesses are available, the motive becomes insignificant. It is submitted that, in the present case, PWs 1, 2 and 3 are the eyewitnesses to the incident and therefore, the motive is insignificant in the present case. Heavy reliance is placed on the decision of this Court in the case of Sukhpal Singh v. State of Punjab (2019) 15 SCC 622 .” In the present case, since there are eye-witnesses to the incident including injured complainant, the motive become insignificant. Heavy reliance is placed on the decision of this Court in the case of Sukhpal Singh v. State of Punjab (2019) 15 SCC 622 .” In the present case, since there are eye-witnesses to the incident including injured complainant, the motive become insignificant. The submissions made by learned counsel for the appellants-accused that the prosecution has failed to establish the motive and therefore, the conviction cannot sustain, are devoid of merits. [C] EXCEPTION (4) TO SECTION 300 OF IPC: 17. It is vehemently submitted by learned counsel for the appellants that the alleged incident had taken place without any premeditation in a sudden fight in a heat of passion upon a sudden quarrel and therefore, the trial court should have considered the case under Exception-4 to Section 300 of the IPC. 17.1 In support of his submission, learned counsel for the appellants accused has relied on the judgment of Apex Court in case of Arun & Anr. v. State of Chhattisgarh [2017 LawSuit (SC) 116], wherein it is observed that :- “19. The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC. 20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of Chandigarh (1989) 2 SCC 217 , it has been explained as under :- “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly…………..” 21. Further in the case of Arumugam vs. State, represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 , in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under :- “9. ……. “18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.” 17.2 Relying on the above observations, learned counsel for the appellants has contended that looking to the genesis of the occurrence, more particularly the deposition of the complainant, the accused and the victim were not known to each other and had met for the first time at the place of incident. There was quarrel between them within spurt of moments. During the discussion, there was a sudden fight. The incident had happened abruptly and there is nothing to suggest that there was a pre-plan and the injury as reflected in the P.M. report does not suggest that the appellants had taken an unfair advantage. 18. In order to appreciate the submissions of learned counsel Mr. Shah for the appellants, it would be beneficial to reproduce Exception-4 of Section 300 of the IPC, which reads as under : "Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 19. From the bare reading of Exception-4 of Section 300, it appears that, culpable homicide is not murder if the stipulations contained in the said provision are fulfilled. They are : (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner. All these conditions should be fulfilled otherwise the accused would not be entitled to claim benefit of the Exception 4 of section 300 of IPC. In case of Dhirajlbhai Gorakhbhai Nayak vs. State of Gujarat, reported in AIR 2003 SC 2855 , it has been held in paragraph – 11 as under :- “11. All these conditions should be fulfilled otherwise the accused would not be entitled to claim benefit of the Exception 4 of section 300 of IPC. In case of Dhirajlbhai Gorakhbhai Nayak vs. State of Gujarat, reported in AIR 2003 SC 2855 , it has been held in paragraph – 11 as under :- “11. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.” 20. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to exception (4) of Section 300 of IPC. True the number of wound is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying exception (4). When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the exception (4) engrafted to Section 300 cannot be accepted. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, exception (4) is not attracted and commission must be one of murder punishable under s. 302. Equally for attracting exception (4) it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument of manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under exception (4). 21. Applying the ratio of judgment in case of Dhirajbhai Gorakhbhai Nayak (Supra) to the facts of the present case, we do not find any substance in the submission of learned counsel Mr. Shah for the appellants that the case falls under Exception-4 of Section 300 of the IPC. There is nothing to establish or to show that victim was armed with any weapon, but it was established that the weapon was recovered from the Pandit's Parlour of accused No.6 and three persons had got caught hold of the victim and the injuries were inflicted on him. Under the circumstances, it cannot be said that the accused had not taken any undue advantage of the situation. Considering the Exception-4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further show that the assailant had not taken undue advantage or acted in unusual manner. The expression undue advantage as used in the provision is unfair advantage. So in the case on hand, it is difficult to accept the submission by learned counsel that the assailants had not taken undue advantage. The injuries were caused on the vital part of the body and as per the medical certificate, there were 3 injuries which are independent sufficient to cause death of the victim. They are on vital part of the body that indicates that the assailants had an intention and knowledge that they were sufficient to cause death of the victim. The injuries were caused on the vital part of the body and as per the medical certificate, there were 3 injuries which are independent sufficient to cause death of the victim. They are on vital part of the body that indicates that the assailants had an intention and knowledge that they were sufficient to cause death of the victim. Thus, it would be a case under Section 302 of the IPC only. 22. Further, from the established facts of the case on hand, we are of the view that the accused cannot be given benefit of this Exception. It has come in evidence that all the accused persons came armed. Two appellants accused were armed with knife. Even if it is assumed that they had not come with the intention of killing, the fact that they were armed, they had collected knives from the accused No. 6, clearly indicated that the occurrence did not take place in the heat of passion, or upon a sudden quarrel. As pointed out above, accused Dhaval had called other three accused. Even otherwise, we feel that Exception 4 is not applicable because the manner in which the blow was given right on the middle of the head. The appellants accused should have known that the act which they are performing, of inflicting three knife wound on the unarmed victim, with such great force is so dangerous that any of them were sufficient to cause death. 23. It is further pertinent to note that there was no attempt put forth by the accused during the cross-examination of the prosecution witnesses for bringing their case within Exception-4 of Section 300. On the contrary, the accused in their written statement recorded under Section 313 of the Cr.P.C. had stated that they were not present at the scene of offence. For bringing their case within the Exception-4, the accused have to admit the incident and their presence at the site and also the fight between them and the victim. Such was not the defence put forth by the appellants – accused. Hence also, the question of giving them benefit of Exception-4 of Section 300 would not arise. [D] UNLAWFUL ASSEMBLY: 24. Such was not the defence put forth by the appellants – accused. Hence also, the question of giving them benefit of Exception-4 of Section 300 would not arise. [D] UNLAWFUL ASSEMBLY: 24. It is vehemently contended that the acquittal of accused Nos.2, 4 and 5 as the members of unlawful assembly would clearly lead to an inference that there was no unlawful assembly and there is no question of accused Nos.1 and 3 sharing any common object to commit murder of the deceased Lalabhai and/or to cause injury to the complainant. It is contended that the accused No.1 Anand and the accused No.3 Dhaval have been convicted for the offences punishable under Sections 143, 147, 148, 302 read with Section 149 of the IPC. The charge at Exh.26 clearly refers to formation of unlawful assembly by the accused Nos.1 to 6. There is nothing in the charge to show that except named accused any other accused or any other person was member of unlawful assembly. The charge is specifically clear that the accused Nos.1 to 5 formed an unlawful assembly and they inflicted blows on the deceased as member of unlawful assembly. The accused No.6, Niteshbhai Shrisonilal is alleged to have illegally concealed weapons at his Pan-Parlour. It is further alleged that having seen accused, the complainant and the witnesses exchanging abuses and quarrel taking place, at that time accused No.6 supplied knives to accused Nos.1 and 3. Thus, the charge of unlawful assembly is against the named accused Nos.1 to 5. It is contended that when the trial court acquitted the accused Nos.2, 4 and 5 and it is found that they are not involved in the commission of the offence and benefit of doubt is given, then the conviction of accused Nos.1 and 3 for the offence punishable under Sections 143, 147, 148 and 149 of the IPC is absolutely illegal. It is contended that the Trial Court totally rule-out the existence of unlawful assembly. Thus, when there was no unlawful assembly, there is no question of accused Nos.1 and 3 sharing any common object of such an unlawful assembly. The accused Nos.1 and 3 are thus, convicted for the offence under Section 302 read with section 149 of IPC which is legally not permissible. 25. Thus, when there was no unlawful assembly, there is no question of accused Nos.1 and 3 sharing any common object of such an unlawful assembly. The accused Nos.1 and 3 are thus, convicted for the offence under Section 302 read with section 149 of IPC which is legally not permissible. 25. It is contended by the learned counsel for the appellants that as there was no previous enmity between the accused and the victim as well as the complainant, and the assault was intended only to show superiority and teach lesson to the victim, there was no pre-plan on the part of the accused. Under the circumstances, it cannot be said that the accused were in unlawful assembly. It is further submitted that when the Court has acquitted three persons and convicted only 2 persons, the 2 persons cannot be convicted for the alleged offence of unlawful assemble. 26. To support his submission, learned counsel has relied on the decision in case of Najabhai Desurbhai Wagh v. Valerabhai Deganbhai Vagh & Ors. Reported in AIR 2017 SC 2827 , the Hon'ble Supreme Court has held that :- “13. There is no dispute about the occurrence of the incident near the house of the Appellant at 06:00PM on 24.03.98. The oral testimonies of PW-1 to PW-6, who were injured witnesses are consistent. The manner in which the incident occurred, the weapons used by the Accused and the nature of the injuries caused by the accused were stated clearly therein. The Doctor who treated the injured were examined and they have proved the medical certificates issued by them. The doctors who treated the deceased Unadbhai Desurbhai were produced before the court to speak about the cause of death. PW-14 who conducted the Post Mortem on the body of Unadbhai Desurbhai was also examined. The situs of the incident is admitted to be near the house of the Appellant. There is no denial of the incident by the Accused. The submission of Mr. Raval is that the complainant along with others attacked the Accused and in the resultant free fight, persons from both sides were injured. On a careful examination of the totality of the facts and circumstances of the case, it is clear that Accused formed an unlawful assembly. Armed with weapons like axe, iron pipes and spear, they proceeded to attack the Appellant who rebuked the first Respondent in the morning. On a careful examination of the totality of the facts and circumstances of the case, it is clear that Accused formed an unlawful assembly. Armed with weapons like axe, iron pipes and spear, they proceeded to attack the Appellant who rebuked the first Respondent in the morning. After reaching the spot of the incident, they attacked the Appellant and caused injuries to others who came to his rescue. The common object to commit an offence can be inferred from the weapons used and the violent manner of the attack. Having held that the Accused formed into an unlawful assembly to commit an offence, what remains to be decided is whether they can be attributed with the knowledge about murder. One of the members of the unlawful assembly Lakshmanbhai Bhikabhai Vagh (A-10) was convicted and sentenced under section 302 for committing the murder of Unadbhai Desurbhai. The question is whether there was a prior concert by all the members of the unlawful assembly to commit an offence of murder. The background in which the attack was made by the Accused does not show that there was a common object of a murder amongst the accused. Accused No.1 was infuriated on being questioned by the Appellant regarding the damage to the electric pole near his house. Accused No.1 along with the other accused intended to show their superiority and teach a lesson to the Appellant. There is nothing on record to suggest any previous enmity between the parties. Common object to commit a murder cannot be inferred only on the basis that the weapons carried by the accused were dangerous. The above facts would indicate that no knowledge about the likelihood of an offence of murder being committed can be attributed to the members of the unlawful assembly, barring Lakshmanbhai Bhikabhai Vagh (A-10) who has been convicted under Section 302 IPC.” 27. He has also relied on the judgment of the Apex Court in case of Bal Mukund Sharma v. Balmukund Chaudhary Etc. [ 2019 (5) SCC 469 ], wherein it is held that :- “8. The evidence of the eye-witnesses pertaining to the nine accused has been adduced to prove that they were part of the mob that killed the deceased, attacked the villagers and set a portion of PW-2’s house on fire. [ 2019 (5) SCC 469 ], wherein it is held that :- “8. The evidence of the eye-witnesses pertaining to the nine accused has been adduced to prove that they were part of the mob that killed the deceased, attacked the villagers and set a portion of PW-2’s house on fire. However, we find that there is nothing on record to show that these accused had actually taken part in the occurrence or that they had any common object of committing murder and rioting along with the other accused. The evidence with respect to their presence, participation and complicity in the incident in its entirety and, therefore, even in sharing a common object for the commission of any of the acts that occurred during the incident, is vague, scanty, inconsistent and unbelievable, and necessitates giving them the benefit of doubt. Thus, these nine accused are liable to be acquitted of all charges levelled against them. We are, therefore, of the view that there exists cogent evidence only as to the role of the accused Brahamdeo Chaudhry, Kapildeo Chaudhry, Mahendra Rai, Babulal Chaudhry, Bhavesh Chaudhry and Anil Chaudhry (hereinafter referred to as “the six accused”) in the incident. All of these six accused participated in the rioting on the scene of the incident, in which the accused Brahamdeo Chaudhry and Kapildeo Chaudhry were the only persons having guns at the time, of whom the accused Brahamdeo suddenly shot at the deceased and the accused Brahamdeo and Kapildeo shot the injured. We agree with the finding of the Courts that it was the accused Brahamdeo who gave the fatal shot to the deceased. Though there was some evidence (i.e. the deposition of PWs 5 and 6) to the effect that the accused Kapildeo shot the deceased as well, the same was not believed by the Courts. We, too, find this evidence insufficient to conclude that the accused Kapildeo shot the deceased. We may now address the aspect of the constructive liability of the accused Kapildeo Chaudhry, Mahendra Rai, Babulal Chaudhry, Bhavesh Chaudhry and Anil Chaudhry for the murder of the deceased. We, too, find this evidence insufficient to conclude that the accused Kapildeo shot the deceased. We may now address the aspect of the constructive liability of the accused Kapildeo Chaudhry, Mahendra Rai, Babulal Chaudhry, Bhavesh Chaudhry and Anil Chaudhry for the murder of the deceased. It is well-settled that to determine whether an accused, being a member of an unlawful assembly, is liable for a given offence, it needs to be seen whether such act was committed in prosecution of the common object of the assembly, and alternatively whether the members of the assembly knew that the offence was likely to be committed in prosecution of such common object. This, in turn, has to be determined from the facts and circumstances of each case. See Dharam Pal v. State of Uttar Pradesh, (1975) 2 SCC 596 ; Roy Fernandes v. State of Goa, (2012) 2 SCC (Cri) 111). In the instant case, it is evident that the six accused initially accosted the informant, chased him to his house, and on failing to get a hold on him, set fire to a portion of his house and caught hold of his nephew, the deceased, who was done to death by the accused Brahamdeo. It is thus evident that the murder of the deceased was itself not the common object of the unlawful assembly. Moreover, we find that the act of the accused Brahamdeo of shooting the deceased was sudden, and knowledge of the likelihood of the same could not be attributed to the rest of the accused. Though the other accused had followed the accused Brahamdeo, in our considered opinion, the evidence on record and circumstances of this case could not, conclusively and beyond reasonable doubt, show common object being shared by the other accused, in the commission of the offence of murder by the accused Brahamdeo. It is no doubt true that the evidence on record may create grave suspicion in the mind of the Court about the complicity of the other accused also, with the help of Section 149, IPC, however, such grave suspicion cannot take the place of proof. It is for the prosecution to prove its case beyond reasonable doubt. It is no doubt true that the evidence on record may create grave suspicion in the mind of the Court about the complicity of the other accused also, with the help of Section 149, IPC, however, such grave suspicion cannot take the place of proof. It is for the prosecution to prove its case beyond reasonable doubt. Even if the evidence on record creates suspicion in the mind of the Court, though grave, the same would not be sufficient to conclude that the other accused are liable to be convicted for the offence under Section 302 along with the accused Brahamdeo, with the help of Section 149, IPC.” 28. Learned counsel Mr. Shah has also relied on the judgment of the Apex Court in case of Dauwala @ Ganesh Devangan & Ors. v. State of Madhya Pradesh (Now State of Chhattisgarh) [2019 LawSuit (SC) 829 : AIR 2019 SC 1564 ] wherein it is held that :- “10. It is true that in a crime committed by an unlawful assembly by principle of vicarious liability, every member of the unlawful assembly would be guilty of the offence, even if he himself had not done the actual act. But the facts must indicate with clarity that such person was in fact a member of the unlawful assembly. The prosecution did not allege that any of the appellants had stormed inside the house and had dragged the deceased Parasram. The presence of the appellant, at best, going by the version of PWs 2 and 4 was outside the house in the street where 25-30 persons had gathered. Out of such gathering, 17 persons were named to be accused and sent up for trial.” 29. Per contra, learned advocate Mr. Popat has supported the view taken by the trial court and conviction for unlawful assembly. He has relied on the decision in case of Golla Pullanna vs. State of Andhra Pradesh, reported in [1996 (0) GLHEL-SC 9639], wherein it is held as under : “14. Per contra, learned advocate Mr. Popat has supported the view taken by the trial court and conviction for unlawful assembly. He has relied on the decision in case of Golla Pullanna vs. State of Andhra Pradesh, reported in [1996 (0) GLHEL-SC 9639], wherein it is held as under : “14. This Court after referring to its earlier decisions in Marachalil Pakku vs. State of Madras AIR 1954 SC 648 , Sunder Singh vs. State of Punjab AIR 1962 SC 1211 and Harshadsingh vs. State of Gujarat at 1976 (4) SCC 640 has held that "before Sections 34, 149 or 120-B can be applied, the court must find with certainty that there were at least two persons sharing the common intention or five persons sharing the common object or two persons entering into an agreement. The principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons; it depends upon proof of facts beyond reasonable doubt which makes such a principle applicable." This Court has also held that "in the matter of appreciation of the evidence the powers of the appellate court are as wide as that of the trial court. It has full power to review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate court to indirectly or incidentally find out on a reappraisal of the evidence that some of the accused persons have been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government. The effect of such a finding is not tc reverse order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality. Where the evidence examined by the appellate court unmistakably proves that the appellant was guilty under Section 34 having shared a comnon intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding. 15. 15. In this case, the High Court has recorded a categorical finding, after re-appreciating the evidence, that Accused Nos. 5 and 7 were wrongly acquitted by the learned Sessions Judge. Therefore, even after the acquittal of Accused Nos.4,6 8 and 10 the High Court was justified in proceeding on the basis that there were more than five persons out of the named accused who had participated in the assault on the deceased and confirming the conviction of Accused Nos.9 and 11 Under Section 302 read with Section 149 I.P.C.” [Emphasis supplied] 30. He has also relied on the judgment of the Apex Court in case of Lalji & Others vs. State of U.P., reported in [ AIR 1989 SC 754 ], wherein it is held as under : “Thus, once the Court hold that certain accused persons formed in unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it.” 31. Mr. Popat has also relied on the judgement rendered in case of Mohan Singh and another vs. State of Punjab, reported in [ AIR 1963 SC 174 ], wherein it is held as under : “In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving, before the court less than five persons to be tried, then s. 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons is composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. Even in such cases, it is possible that though the charge names five or more persons is composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted wore others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because-on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. The failure to refer in the charge to other members of the unlawful assembly unnamed and unidentified may conceivably raise the point as to whether prejudice would be caused to the persons before the Court by reason of the fact that the charge did not indicate that un-named persons also were members of the unlawful assembly.” 32. Relying on the aforesaid judgements, the learned counsel for the complainant has contended that once the common object is proved and the other accused were forming unlawful assembly, the Sessions Court has wrongly acquitted the accused Nos.2, 4 and 5. He has also contended that the accused were identified by the witness in TI Parade before the court and therefore, there is no reason for the Sessions Court to acquit them from the charges levelled against them. 33. Mr. He has also contended that the accused were identified by the witness in TI Parade before the court and therefore, there is no reason for the Sessions Court to acquit them from the charges levelled against them. 33. Mr. Himanshu Patel, the learned APP, has also supported the submission of the learned advocate for the complainant and he has also contended that the common object can be developed at the time of incident and to substantiate his submission he has relied on the judgment of the Apex court in the case of Omprakash vs. State of Haryana, [CRIMINAL APPEAL NO. 1102 OF 2006] decided on 16.04.1947, wherein it is held as under : 15. The aforesaid enunciation of law was considered by a four-Judge Bench in Masalti v. The State of Uttar Pradesh, which distinguished the observations made in Baladin (supra) on the foundation that the said decision should be read in the context of the special facts of the case and may not be treated as laying down an unqualified proposition of law. The four-Judge Bench, after enunciating the principle, stated as Follows :- “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, S. 149 make 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 the assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of 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 S. 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.” 16. Common object of an unlawful assembly can also be gathered from the nature of the assembly, the weapons used by its members and the behavior of the assembly at or before the scene of occurrence. Common object of an unlawful assembly can also be gathered from the nature of the assembly, the weapons used by its members and the behavior of the assembly at or before the scene of occurrence. It cannot be stated as a general proposition of law that unless an overt act is proven against the person who is alleged to be a member of the unlawful assembly, it cannot be held that he is a member of the assembly. What is really required to be seen is that the member of the unlawful assembly should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141 IPC. The core of the offence is the word “object” which means the purpose or design and in order to make it common, it should be shared by all. Needless to say, the burden is on the prosecution. It is required to establish whether the accused persons were present and whether they shared the common object. It is also an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object has developed at the time of incident. (See Lalji v. State of U.P., Bhargavan and others v. State of Kerala, Debashis Daw and others v. State of West Bengal and Ramachandran and others v. State of Kerala). 34. After considering rival submissions, we are of the view that formation of an unlawful assembly with common object being the basic ingredient for invoking Section 149 IPC, the first point to be determined is as to whether formation of such an unlawful assembly is established. In a comprehension of the evidence on record, in our view, the fact that a large assembly was indeed formed, where the members were armed with weapons including knives. Once formation of unlawful assembly at the time of committing of offence is established, the question of specific role of an individual member of the assembly is rendered secondary. In other words, the prosecution need not prove any specific overt act on the part of each and every member of that assembly. The question of identity of the particular accused as the member of this assembly would, of course, require consideration to find if the prosecution case is proved beyond reasonable doubt against him or not. In other words, the prosecution need not prove any specific overt act on the part of each and every member of that assembly. The question of identity of the particular accused as the member of this assembly would, of course, require consideration to find if the prosecution case is proved beyond reasonable doubt against him or not. All eye witnesses has specifically stated that there were five accused but three were not named. The trial Court has given benefit of doubt to three accused. Therefore, there is ample evidence on record in the shape of eye witnesses who had sustained injuries, sounding truth of the prosecution case placed before the trial court. Only because three of the accused were acquitted, it cannot be said that there were less number of accused when the offence was committed. The judgement cited by the learned counsel Mr. Popat in a case of Mohan Singh is a complete answer to the submission made by the learned counsel for the convicted appellants. Under the circumstances, we are of the view that the conviction of the two accused for unlawful assembly is correct and does not require an interference. CRIMINAL APPEAL NO.1465 OF 2014 35. So far as the Criminal Appeal No.1465 of 2014 filed by the complainant is concerned, Mr. Virat G. Popat, the learned counsel appearing on behalf of the complainant, has contended that the call details of one of the accused namely Dhaval indicated that the said accused was called by one of the witnesses named Bhargav on the date of the incident on 31-10-2012 at 20:22 hours. This is the precise case of prosecution that after having reached at the place of incident along with deceased and others, Bhargav had called accused Dhaval as per the call details produced on record. It is contended that so far as the argument that witnesses were internally talking with each other and therefore, they were not present at the time of incident is concerned, it is contended that there is considerable gap between the pre and post incident call between the witnesses and it is apparent that during the time of incident, the witnesses have not spoken to each other on telephone. Mr. Mr. Popat, therefore, has relied on the call details between Jay and Chetan and pointed out that they had talked at 8.16 p.m. before the incident and thereafter, at 8.42 p.m., which is after the incident. While, Jay and Bhargav had talked at 8.28 p.m. before the incident and 8.48 pm., which is after the incident. He has also contended that Bhargav and Chetan had talked with each other at 8.14 p.m. before the incident and 8.46 p.m., which is after the incident. 35.1 It is further contended by Mr. Popat that so far as the acquittal of accused Nos.2, 4 and 5 is concerned, the court has completely erred in the evaluation of evidence qua those accused. The trial court erred in considering the fact that the complainant, injured witness and eyewitness clearly reveal that they might be present at the place of incident. It is contended that the trial court has observed that identification is a weak evidence. While evaluating the evidence of Executive Magistrate, the court finds that there is no infirmity in the identification. This view is clearly perverse. It is contended that the court has accepted the case of the prosecution with regard to formation of unlawful assembly. The court has observed that the description about the clothes, attitude and appearance of the accused ought not to have been considered fatal to the case of prosecution and acquittal based on such consideration is nothing but perverse, which requires interference. It is contended that the court has wrongly given the benefit of doubt to the accused Nos.2, 4 and 5. 35.2 As regards the evidence of Test Identification Parade, it is contended that the evidence of PW-34 – Jay Rasikbhai Parmar is getting corroborated from the evidence of PW-37 – Bhargav Pipaliya and the evidence of PW-36 – Chetan Parmar about the root cause of demand of apple mobile phone. It is contended that PW-35 – Nitesh @ Nitu Rajput had identified the accused Nos.1 to 5 before the Executive Magistrate as well as before the Court. It is contended that the evidence of PW-36 – Chetan Parmar is corroborated from the evidence of PW-34 and PW-37. It is contended that evidence of PW-34, 36 and 37 are congruence with each other. It is contended that the prosecution case is well supported by the deposition of PW-27 i.e. Dr. It is contended that the evidence of PW-36 – Chetan Parmar is corroborated from the evidence of PW-34 and PW-37. It is contended that evidence of PW-34, 36 and 37 are congruence with each other. It is contended that the prosecution case is well supported by the deposition of PW-27 i.e. Dr. Dipak who has specifically stated that the injuries were fatal and serious in nature and sufficient to cause death. The prosecution has also relied on evidence of PW-28 – Ramniklal Dhirajlal Jadav i.e. Exectuive Magistrate who had conducted the TI parade of accused Nos. 1 to 5 and is getting corroboration from the evidence of complainant PW-29 and PW-35 – Nitesh alias Nitu regarding identification of the accused persons. The prosecution has also relied on TI Parade and Panchnama at Exh. 115 qua accused Nos. 1 and 2 (Exh. 113), qua accused No.3 (Exh. 115), qua accused Nos. 4 and 5 (Exh. 117). It is contended that the trial Court has completely lost the sight of the ingredients of Section 149 of IPC and various judgements pronounced by the Apex Court on the aspect of unlawful assembly. 35.3 The learned APP Mr. H.K. Patel has also supported the submissions made by the learned counsel for the complainant and submitted that the Sessions Court has wrongly acquitted the accused Nos.2, 4, 5 and 6. He has also contended that the complainant himself is an injured witness and when the injured is giving deposition, his deposition should be given more weightage than the other witnesses. 36. Mr. S.B. Tolia, learned counsel appearing on behalf of Mr. H.B. tolia, learned counsel for the respondent No.2 in Criminal Appeal no.1465 of 2014, has countered the said submissions and contended that the TI Parade is not reliable piece of evidence and the trial Court has rightly recorded the acquittal. In support of his submission, he has relied on the judgment of the Apex Court in the case of State of Maharashtra vs. Syed Umar Syed Abbas, reported in [2016 (0) AIJEL-SC-57886]. 36.1 Mr. Tolia has also relied on the judgment of the Apex Court in the case of Md. Sajjad @ Raju @ Salim vs. State of West Bengal, reported in [ AIR 2017 SC 642 ], wherein it is observed as under : 15. 36.1 Mr. Tolia has also relied on the judgment of the Apex Court in the case of Md. Sajjad @ Raju @ Salim vs. State of West Bengal, reported in [ AIR 2017 SC 642 ], wherein it is observed as under : 15. In the case in hand, apart from the fact that there was delay in holding the Test Identification Parade, one striking feature is that none of the concerned prosecution witnesses had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particular. Further, no incident or crime had actually taken place in the presence of those prosecution witnesses nor any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the concerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments. 16. In Subash Vs. State of U.P., the aspects of delay as well as absence of any special features for identification and the effect thereof were considered by this court in paragraphs 8 and 9 as under :- “8. Apart from this infirmity we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a note of his features. 9. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha-1 nor in their statements during investigation, the eyewitnesses have given any descriptive particulars of Shiv Shankar. It is relevant to mention here that neither in Exhibit Kha-1 nor in their statements during investigation, the eyewitnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had “sallow” complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ex. Kha-1 or in the statements of witnesses during investigation, it will not be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v. State of Madras, where an identification parade was held about 2 1/2 months after the occurrence it would not be safe to place reliance on the identification of the accused by the eyewitnesses. In another case Mohd. Abdul Hafeez v. State of A.P. It was held that where the witnesses had not given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade.” 17. Similarly the issue of delay weighed with this court in Musheer Khan vs. State of M.P. in discarding the evidence regarding test identification as under: “8. Insofar as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24-1-2001 and the incident is of 29-11-2000, even though A-5 was arrested on 22-12-2000. There is no explanation why his identification parade was held on 24-1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. There is no explanation why his identification parade was held on 24-1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or the High Court on such delayed TI parade for which there is no explanation by the prosecution.” 36.2 Mr. Tolia has also relied on the judgment of the Apex Court in the case of State of Gujarat vs. Mohanlal @ Munno Usmanbhai Chauhan, reported in [ 1996 (1) GLH 919 ], wherein it is observed that the Deputy Mamaltdar did not ascertain the description of the accused so as to select almost similar dummies and therefore, the evidence of TI Parade was not believed and the acquittal by the trial court was confirmed. 37. Mr. Ashish Dagli, learned advocate appearing on behalf of the respondent Nos.2 and 3 in Criminal Appeal No.128 of 2015 has adopted and supported the contentions and submissions raised and tendered by Mr.Tolia, learned advocate for the respondent No.2 in Criminal Appeal No.1465 of 2014. 38. After considering the rival submissions and considering the evidence on record, the court is of the opinion that though the trial Court has not properly discussed the evidence of TI Parade, one cannot escape from the facts of the case on hand that the accused who are acquitted were seen by the prosecution witnesses for the first time at the place of incident and the witnesses had very little time to see the accused. The witness at the time of incident, had also ran away from the place of incident and hide himself in dark place to save his life. Further, the first TI Parade was conducted on 08.11.2012 and the second TI Parade was conducted on 15.01.2013 i.e. almost two and half months after the incident which had occurred on 31.10.2012. The incident was complete within a period of 15 minutes. Under the circumstances, we find that the time for which the eye-witnesses had seen the accused was not sufficient for them to observe the distinguishing feature of the accused, specially when they had run away in different directions, after the incident had occurred. The incident was complete within a period of 15 minutes. Under the circumstances, we find that the time for which the eye-witnesses had seen the accused was not sufficient for them to observe the distinguishing feature of the accused, specially when they had run away in different directions, after the incident had occurred. Having regard to the totality of circumstances, we are of the considered opinion that it would be a very risky proposition to reverse the findings of acquittal of the accused nos.2, 4 and 5 relying upon such a weak piece of evidence of T.I. Parade. CRIMINAL APPEAL NO.128 OF 2015 39. The learned APP Mr. Patel has contended that the scope of the first appeal is very wide even in an appeal against the acquittal. He has also relied on the judgment of the Apex Court in case of Motiram Padu Joshi vs. State of Maharashtra, reported in [ 2018 (9) SCC 429 ], wherein it is held as under : 22. It is fairly well-settled that in an appeal against the order of acquittal, the appellate court would be slow to disturb the findings of the trial court which had the opportunity of seeing and hearing the witnesses. In an appeal against the order of acquittal, there is no embargo for re-appreciating the evidence and to take a different view; but there must be strong circumstances to reverse the order of acquittal. In the appeal against order of acquittal, the paramount consideration of the appellate court should be to avoid miscarriage of justice. 23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 , this Court summarised the principle as under :- “42. From the above decisions, in our considered view, the following general principles regarding powers of the 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. (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 emphasise 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 is 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.” 24. In Kallu alias Masih and others v. State of M.P., (2006) 10 SCC 313 , this Court held as under :- “8. 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.” 40. 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.” 40. There cannot be any disagreement to the proposition of law laid down by the Supreme Court as regards the powers of the High Court in the Appeal against acquittal in the aforesaid cases. The position of law is also reiterated by the Apex Court in the case of State of Goa V. Sanjay Thakran & Anr. Reported in (2007)3 SCC 755 . In para 16 of the said decision the Court has observed as under: "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgement delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 41. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. 42. The Apex Court in the case of Mookiah and Anr. Vs. State rep. Ram Veer Singh & Ors, reported in 2007 AIR SCW 5553 and in Girja Prasad (Dead) by LRs Vs. state of MP, reported in 2007 AIR SCW 5589. 42. The Apex Court in the case of Mookiah and Anr. Vs. State rep. By the Inspector of Police, Tamil Nadu reported in AIR 2013 SC 321 , the Apex Court in para 4 has held as under: 4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal file d against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one mo re possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573 ]" 43. It is also a settled legal position that in an acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. It is also a settled legal position that in an acquittal appeal, the appellate court is not required to re-write the judgement or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981 SC 1417 , wherein it is held as under :- "... This court has observed in Girija Nandini Devi V. Bigendra Nandini Chaudhary (1967) 1 SCR 93 : ( AIR 1967 SC 1124 ) that it is not the duty of the appellate court when it agrees with the view of the trial court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 44. In view of the afore discussed evidence and the settled legal position, we are of the opinion that the judgment of the trial Court being just, reasonable and proper, does not require any interference. There is no sufficient evidence to convict the accused Nos.2, 4, 5 and 6, who are already acquitted by the trial Court. When we have found that the view taken by the trial Court is plausible view, interference by this Court would not be justified. 45. For the foregoing reasons, we do not find any reason to interfere with the findings recorded by the trial Court. Hence, all the appeals i.e. Criminal Appeal Nos.215 of 2015, 1465 of 2014 and 128 of 2015 deserve to be dismissed and are hereby dismissed. The order of conviction and acquittal of the concerned accused passed by the learned trial court are hereby confirmed. Record & Proceedings lying with this Court, shall be returned back to the concerned trial court forthwith.