JUDGMENT : A.J. DESAI, J. 1. JUDGMENT : A.J. DESAI, J. 1. By way of present Criminal Appeals under Section 374 of the Code of Criminal Procedure, 1973, the appellants herein – original accused have challenged the judgment and award dated 12.02.2016 passed by the learned 2nd Additional Sessions Judge, Amreli in Sessions Case No.294/2001, whereby the appellants have been convicted for the offences punishable under Sections 147, 148, 224, 225, 302, 307, 324, 325, 326, 332, 333, 397 and 398 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced to undergo life imprisonment for the offence punishable under Section 302 read with Section 149 of the IPC; rigorous imprisonment of 10 years for the offence punishable under Section 307 read with Section 149 of the IPC with fine of Rs.2000/- and in default of payment of fine to undergo further simple imprisonment for one year; rigorous imprisonment of 3 years for the offence punishable under Section 147 of the IPC with fine of Rs.500/- and in default of payment of fine to undergo further simple imprisonment for 10 days; rigorous imprisonment of 3 years for the offence punishable under Section 148 of the IPC with fine of Rs.1000/- and in default of payment of fine to undergo further simple imprisonment for 4 months; rigorous imprisonment of 2 years for the offence punishable under Section 224 read with Section 149 of the IPC with fine of Rs.1000/- and in default of payment of fine to undergo further simple imprisonment for 4 months; rigorous imprisonment of 2 years for the offence punishable under Section 225 read with Section 149 of the IPC with fine of Rs.1000/- and in default of payment of fine to undergo further simple imprisonment for 4 months; rigorous imprisonment of 3 years for the offence punishable under Section 324 read with Section 149 of the IPC with fine of Rs.2000/- and in default of payment of fine to undergo further simple imprisonment for 6 months; rigorous imprisonment of 3 years for the offence punishable under Section 325 read with Section 149 of the IPC with fine of Rs.2000/- and in default of payment of fine to undergo further simple imprisonment for 6 months; rigorous imprisonment of 10 years for the offence punishable under Section 326 read with Section 149 of the IPC with fine of Rs.2000/- and in default of payment of fine to undergo further simple imprisonment for 6 months; rigorous imprisonment of 3 years for the offence punishable under Section 332 read with Section 149 of the IPC with fine of Rs.2000/- and in default of payment of fine to undergo further simple imprisonment for 6 months; rigorous imprisonment of 3 years for the offence punishable under Section 333 read with Section 149 of the IPC with fine of Rs.2000/- and in default of payment of fine to undergo further simple imprisonment for 6 months; rigorous imprisonment of 7 years for the offence punishable under Section 397 read with Section 149 of the IPC and rigorous imprisonment of 7 years for the offence punishable under Section 398 read with Section 149 of the IPC. Criminal Appeal came to be admitted on 15.06.2016 and Criminal Appeal No.739/2016 came to be admitted on 04.07.2016. Record and Proceedings were sent by the trial Court alongwith the paper-book. 2. In all 10 persons were prosecuted for the offences punishable under Sections 147, 148, 149, 302, 307, 332, 333, 324, 325, 326, 224, 225, 397 and 398 of the IPC and Section 135 of the Gujarat Police Act by the learned 2nd Additional Sessions Judge, Amreli in Sessions Case No.294/2001. During the pendency of trial, accused No.5 – Vikrambhai Bhagubhai Patgir and accused No.9 – Harjit Pithabhai Helaiya expired and therefore, the trial proceeded against rest of the 8 accused. On the date of judgment, accused No.3 – Khodubhai Babubhai Khuman had also died. Hence, three different appeals came to be preferred i.e. Criminal Appeal No.609/2016 came to be filed by (1) Bhabhlu Naajbhai Dhadhal, (2) Valkubhai Rambhai Lunsar, (3) Chhaganbhai Kalabhai Kansagra, (4) Jethabhai Pithabhai Heliya and (5) Parshottambhai Dhusabhai Goradiya, Criminal Appeal No.739/2016 by Kanabhai Govindbhai Jograna and Criminal Appeal No.604/2016 by Jayesh @ Jaideep Punjabhai Khuman. That, during the pendency of Criminal Appeal No.609/2016, appellant No.2 – Valkubhai Rambhai Lunsar and appellant No.3 – Chhaganbhai Kalabhai Kansagra have expired. Hence, Criminal Appeal No.609/2016 is abated qua appellant Nos.2 and 3. At this stage it is pertinent to mention that original accused No.1 viz. Jayesh @ Jaideep Punjabhai Khuman during the pendency of the criminal appeal was granted temporary bail and he has been absconding since 03.08.2018 and therefore, we have not considered the Criminal Appeal No.604/2016. 3. The short facts arising from the record are as follows: 3.1 That, on 18.04.2001 an incident took place at village Mekda of Savarkundla Taluka of District Amreli between the police officers of Dindoshi Police Station of Mumbai, Maharashtra as well as the villagers of the aforesaid village at around 6 a.m. of the said day. In all four persons lost their lives including one police officer from Maharashtra and a panch witness who had travelled from Mumbai alongwith the police party and two persons from the accused side. That, a Criminal Case No.7/2011 was registered with Savarkundla Town Police Station for the offences punishable under Section 302 etc. In all four persons lost their lives including one police officer from Maharashtra and a panch witness who had travelled from Mumbai alongwith the police party and two persons from the accused side. That, a Criminal Case No.7/2011 was registered with Savarkundla Town Police Station for the offences punishable under Section 302 etc. of the IPC against the police officer who had allegedly opened fire and had lost life in the incident whereas FIR being I-CR No.8/2001 was registered with the same police station against Jayesh @ Jaideep, Sarpanch of village Mekda, his brother and brother of Jayesh @ Jaideep (who were not named in the FIR and have lost their lives in the incident), who were part of the mob. We are concerned with the FIR being I-CR No.8/2001 registered with Savarkunda Town Police Station. 3.2 One Laxman Ramchandra Khamkar who was Head Constable of Dindoshi Police Station of Malad (E), Mumbai, Maharashtra lodged an FIR with Savarkundla Town Police Station declaring that on 15.04.2001 at around 23.30 hours they left Mumbai alongwith one Jayesh @ Jaideep Khuman in connection with the recovery of muddamal in connection with FIR being CR No.500/2000 offences registered with Dindoshi Police Station for the offences punishable under Sections 392, 394, 395 etc. of the IPC. That, PSI Mr. Nandkumar Dethe, Police Constable Mr. Dipakbhai Babasaheb Kamble, the complainant Mr. Valisha Rahimsha Sai of CR No.500/2000 registered with Dindoshi Police Station, a Panch viz. Rajnikant Shah, resident of Mumbai (who has lost his life in the incident) as well as another Panch Driver Mr. Shinde hired a private Tata Sumo vehicle from Mumbai. The accused Jaideep who was arrested and accused in the said crime alongwith his wife also traveled in the said vehicle. 3.3 That, when they reached at village Mekda at around 6 a.m. on 18.04.2001 and were inquiring about the house and relatives of Jaideep, a mob of 20 to 25 persons came, in which Sarpanch of village Mekda, brother of the Sarpanch, 2 to 3 elderly persons and elder brother of Jaideep came with deadly weapons like axe, stick, sword etc. That, the brother of Jaideep had a knife in his hands and all of them attacked with said weapons to rescue Jaideep. At that time, to save the police party who had traveled from Mumbai, when PSI Mr. That, the brother of Jaideep had a knife in his hands and all of them attacked with said weapons to rescue Jaideep. At that time, to save the police party who had traveled from Mumbai, when PSI Mr. Dethe opened fire from his service revolver, brother of Jaideep snatched away the service revolver of PSI Mr. Dethe and subsequently the members of the mob gave indiscriminate blows to PSI Mr. Dethe, complainant himself and another Head Constable Mr. Kamble, Driver Mr. Shinde were also given indiscriminate blows. At that time, local police in jeep and all the four injured persons were shifted to government hospital of Savarkundla where the FIR came to be recorded. At that time it was revealed that PSI Mr. Dethe had succumbed to the injury in the hospital. At this stage though it is not mentioned in the FIR, it is clarified that on the same day i.e. on 18.04.2001 itself, Panch Mr. Rajnikant Shah who had traveled from Mumbai also succumbed to the injury. 3.4 The accused persons came to be arrested and on completion of investigation, charge-sheet came to be filed before the competent criminal Court. The case being triable by the Court of Sessions, was committed to the concerned Sessions Judge who was having jurisdiction to try the same. 3.5 The charge came to be framed vide Exh.61 on 19.08.2006. Each of the accused denied the charges and therefore, trial proceeded in accordance with law. 3.6 Initially the learned advocate appearing for the accused in the present case requested the learned Sessions Judge for joint trial of both the cases i.e. case arising out of CR No.7/2001 and the FIR being I-CR No.8/2001, which was rejected. However, it reveals from the record that since two persons died pursuant to fire injury in the cross case and the fire was opened at the instance of PSI Mr. Dethe, who had succumbed to the injury, the report submitted by the investigating agency to abate the case, was accepted by the learned Sessions Judge vide order dated 09.03.2016. Hence, there was no further trial in the cross case. 3.7 The prosecution examined in all 30 witnesses and filed closing purshis. The accused did not examine any witness in their defence. The learned Sessions Judge after scrutinizing the evidence of the witnesses and the documentary evidences on record convicted the accused as stated hereinabove. Hence, present appeals. Hence, there was no further trial in the cross case. 3.7 The prosecution examined in all 30 witnesses and filed closing purshis. The accused did not examine any witness in their defence. The learned Sessions Judge after scrutinizing the evidence of the witnesses and the documentary evidences on record convicted the accused as stated hereinabove. Hence, present appeals. 4. Learned Senior Advocate Mr. Yogesh S. Lakhani with learned advocate Mr. Dhruvin Bhuptani have appeared for the appellants of Criminal Appeal No.609/2016 and learned advocate Mr. Ruturaj Nanavaty has appeared for the appellant of Criminal Appeal No.739/2016. 5. Learned Counsel Mr. Lakhani would submit that the trial Court has committed a grave error in convicting the accused persons. He would submit that none of the accused persons were named in the FIR (Exh.151). He would submit that from the allegations in the FIR which is recorded immediately, it is alleged that one Sarpanch and brother of Jaideep had given blows to PSI Mr. Dethe. Similarly, brother of Jaideep viz. Shivraj has also lost his life pursuant to the fire at the instance of PSI Mr. Dethe. He would submit that none of the other accused has been named in the FIR. He would submit that there is no Test Identification Parade (TI Parade) arranged by the Investigating Officer qua any of the accused. 5.1 By taking us through the deposition of complainant Laxman Ramchandra Khamkar (PW-8, Exh.150), learned Counsel Mr. Lakhani would submit that there is much improvement in the deposition which is established from his own cross-examination as well as from the deposition of Writer viz. Mukeshkumar Balwantrai Jani (PW-28, Exh.220), who happens to be the Writer Constable of Investigating Officer Mr. C.R. Vandarwala, who had expired during the pendency of the trial. He would submit that the trial Court ought to have appreciated the fact that one of the accused viz. Jaideep who was accused in the crime registered with Dindoshi Police Station and had traveled under the custody from Mumbai to Amreli was known to each one of the party who had traveled from Mumbai. He would submit that the cross-examination establishes that when the police party was allegedly attacked by the mob, Jaideep was sitting in the jeep alongwith his wife and his daughter aged 3 years. He would submit that Jaideep and deceased Panch from Mumbai Mr. He would submit that the cross-examination establishes that when the police party was allegedly attacked by the mob, Jaideep was sitting in the jeep alongwith his wife and his daughter aged 3 years. He would submit that Jaideep and deceased Panch from Mumbai Mr. Rajnikant Shah had alighted from the jeep but had not seen any of them but when he regained his consciousness, he saw Jaideep having a stick in his hand. However, he has admitted that when Jaideep came out of the jeep, he had no weapon in his hand. He has also categorically admitted in his cross-examination that he has not alleged that Jaideep had given any stick blow to the complainant Laxman Khamkar. Even it is not his say that Jaideep had given any stick blow to any of the deceased or the complainant and another injured witness viz. Deepak Kamble. He would further submit that the complainant has admitted in his Cross-examination that when the history was given to the Medical Officer, no details were supplied as to who gave injury to whom and by which weapon. It is also admitted that he is unable to identify any of the accused who had given blow to him. He knows only Jaideep and name of his brother Shivraj. He has also admitted in his cross-examination that he is unable to say as to which accused was having which type of weapon. He, therefore, would submit that in absence of any TI Parade as well as non-identifying any of the accused except Jaideep, who was well known to the complainant, trial Court ought not to have convicted any of the accused relying upon this witness though he might have sustained injury. 5.2 By taking us through the deposition of another Police Constable Mr. Dipakbhai Babasaheb Kamble (PW-6, Exh.145) who had traveled from Mumbai, learned Counsel Mr. Lakhani would submit that the said witness has admitted that Sarpanch had a stick in his hands and deceased Shivraj, who was referred to as brother of Jaideep, had sword in his hand and both of them attacked PSI Mr. Dethe. He would submit that qua this witness also, there is no TI Parade carried out at the instance of the investigating agency. Dethe. He would submit that qua this witness also, there is no TI Parade carried out at the instance of the investigating agency. He would submit that except accused Jaideep who was known to this witness, since he had traveled alongwith this witness in the car, however for the first time in general, has identified the accused for the first time in the Court stating that all the accused who present in the Court had attacked them, however, has failed to describe or identify any of the accused as to which accused has given blows to whom and with which weapon. By taking us through the cross-examination of the said witness, learned Counsel Mr. Lakhani would submit that this witness has also admitted that after a period of 10 years from the date of offence he had seen all the accused for the first time in the Court. He has also admitted that no one is named in the FIR and he is unable to say that which accused had used which weapon. The said witness has categorically admitted that he cannot say as to who had attacked him as well as other team members of the party. He has also admitted that when they went to village Mekda, they were not in police uniform. He has admitted that his Dying Declaration (Exh.146) which was recorded on 18.04.2001 (now cannot be treated as Dying Declaration) has also admitted that no names were referred to in the said Dying Declaration except deceased Sarpanch and deceased Shivraj who happened to be the brother of Jaideep. 5.3 By taking us through the deposition of another eye-witness viz. Valisha Rahimsha Sai (PW-7, Exh.147) who happened to be the complainant of CR No.500/2000 registered with Dindoshi Police Station, learned Counsel Mr. Lakhani would submit that he is unable to identify any of the accused and there was no TI Parade arranged by the investigating agency. Learned Counsel Mr. Lakhani would therefore submit that prosecution has miserably failed in establishing their case against any of the accused including the remaining appellants – convict about role alleged to have been played by them in the crime. 5.4 By taking us through the arrest panchnama (Exh.168) and discovery panchnama (Exh.169) at the instance of Bhabhlubhai (one of the appellants), Mr. Lakhani would therefore submit that prosecution has miserably failed in establishing their case against any of the accused including the remaining appellants – convict about role alleged to have been played by them in the crime. 5.4 By taking us through the arrest panchnama (Exh.168) and discovery panchnama (Exh.169) at the instance of Bhabhlubhai (one of the appellants), Mr. Lakhani would further submit that the said panchnama was prepared after two days of the incident i.e. on 20.04.2001 between 15.45 hours to 16.30 hours. He would submit that the panchnama suggests that Bhabhlubhai had sustained injuries on his left thumb and bandage was applied thereon and also sustained one minor injury on left side of his chest. The weapon viz. sword has been discovered at his instance whereon blood stains have been found and was sent for analysis to Forensic Science Laboratory. He would submit that though sword has been discovered at his instance, none of the eye-witness has alleged that Bhabhlubhai had given sword blow to any of the deceased or any of the injured. He would further submit that other eight accused came to be arrested on 20.04.2001 and a common panchnama (Exh.169) was prepared which include their arrest as well as production of alleged weapon used in the crime. He would submit that all the accused were arrested from one place after two days from an open place near a temple. He would submit that such arrest and discovery of weapon etc. creates doubt with regard to method and manner in which panchnamas are prepared. He would submit that it is difficult to believe that the accused would not change the clothes for two days and all would be found from one place. He would submit that even there is no arrest panchnama prepared qua accused Jaideep. He would submit that even the clothes or weapon has not been discovered by the investigating agency. This type of procedure adopted by the investigating agency also creates doubt about the prosecution case. 5.5 Learned Counsel Mr. Lakhani would submit that though prosecution has examined two Medical Officers viz. Dr. Shobhnaben Manubhai Mehta (PW-19, Exh.181) and Dr. Ashwinkumar Devrajbhai Tank (PW-20, Exh.184), post-mortem note of Mr. Rajnikant Shah has not come on record. Dr. Shobhnaben (PW-19, Exh.181) has referred to a postmortem note of PSI Mr. Nandkumar Dethe wherein she has put her signature alongwith Dr. Lakhani would submit that though prosecution has examined two Medical Officers viz. Dr. Shobhnaben Manubhai Mehta (PW-19, Exh.181) and Dr. Ashwinkumar Devrajbhai Tank (PW-20, Exh.184), post-mortem note of Mr. Rajnikant Shah has not come on record. Dr. Shobhnaben (PW-19, Exh.181) has referred to a postmortem note of PSI Mr. Nandkumar Dethe wherein she has put her signature alongwith Dr. Ashwinkumar Tank (PW-20, Exh.184), however the postmortem note (Exh.182) of one Dilubhai Naazbhai (the Sarpanch) suggests that Dilubhai had succumbed to a single bullet wound, however no postmortem note or injury certificate describing any injury sustained by Mr. Rajnikant Shah has come on record and therefore, the cause of death of Mr. Rajnikant Shah has remained unanswered. He would submit that even the blood of Mr. Rajnikant Shah which might and ought to have been collected by the Investigating Officer has not been sent to Forensic Science Laboratory for its opinion. He would submit that though some clothes of deceased Mr. Rajnikant Shah has been collected by some police officer and sent to Forensic Science Laboratory but the said police officer has not been examined by the prosecution. All these lapses cannot be ignored by the Court when serious allegations have been made by the accused against the manner and method of investigation. 5.6 He would further submit that as per the record, 5 ml blood sample of PSI Mr. Dethe was collected, however it is an admitted position that the laboratory has received 3 ml blood and therefore, the Investigating Officer is supposed to explain the reason for sending lesser amount of blood sample which was collected and sealed during the investigation. 5.7 Learned Counsel Mr. Lakhani in support of his first submission about non-arranging of TI Parade has relied upon the decisions of the Hon’ble Supreme Court in the case of Mohanlal Gangaram Gehani vs. State of Maharashtra reported in (1982)1 SCC 700 and Karan and Others vs. State of Kerala reported in (1979) 3 SCC 319 . 5.7 Learned Counsel Mr. Lakhani in support of his first submission about non-arranging of TI Parade has relied upon the decisions of the Hon’ble Supreme Court in the case of Mohanlal Gangaram Gehani vs. State of Maharashtra reported in (1982)1 SCC 700 and Karan and Others vs. State of Kerala reported in (1979) 3 SCC 319 . He would submit that in both the cases the Hon’ble Supreme Court has held that when the witness/s have had no occasion to know the accused, who have allegedly participated in the crime, the Test Identification Parade would be an important evidence though may be a secondary evidence and in absence of such Test Identification Parade, if a witness identifies the accused for the first time in the Court, it would be valueless and cannot be relied upon. He has also relied upon a decision of the coordinate Bench of this Court in the case of Ramanbhai Bhikhabhai Machhi vs. State of Gujarat reported in 2014 (4) GLR 3017 . 5.8 Learned Counsel Mr. Lakhani by relying upon a decision in the case of Chandra Shekhar Bind and Others vs. State of Bihar reported in (2001) 8 SCC 690 would submit that it has been held by the Hon’ble Supreme Court that where a large number of accused alleged to have participated in the incident and several persons have seen the incident, it would not be unreasonable or irrational to adopt the test that conviction can be sustained only if it is supported by atleast two or more witnesses and that too found to be trustworthy in a particular case. As far as submission with regard to discovery of weapon at the instance of all the accused is concerned, he has relied upon the decision of the Hon’ble Apex Court in the case of Bhupan vs. State of M.P. reported in (2002) 2 SCC 556 . He would submit that it has been held by the Hon’ble Apex Court in the said decision that considering the facts of the case, a conviction cannot be based merely on the recovery of such weapon if the prosecution fails to produce other sufficient evidence to rope the accused in a crime. He has also relied upon a decision of the coordinate Bench of this Court in the case of Rameshbhai Hajabhai Chachiya vs. State of Gujarat reported in 2012 (3) GLR 2250 . He has also relied upon a decision of the coordinate Bench of this Court in the case of Rameshbhai Hajabhai Chachiya vs. State of Gujarat reported in 2012 (3) GLR 2250 . He, therefore, would submit that Criminal Appeal No.609/2016 be allowed. 5.9 Learned Counsel Mr. Lakhani has also relied upon an unreported decision in the case of State of Gujarat vs. Mohammed Fariq Haji Mohmad by which it has been held that it is incumbent upon the prosecution to show what quantity of blood was extracted from the dead body and from the accused’s body and whether the same quantity was sent to the laboratory for analysis. If, before sending the same, some amount thereof was used, it must be shown for what purpose the same was used or why the blood less in quantity than collected was sent to laboratory and in absence of such explanation, it would be fatal to the case of prosecution. 6. Learned advocate Mr. Ruturaj Nanavaty appearing for the appellant of Criminal Appeal No.739/2016 has adopted the arguments advanced by learned Counsel Mr. Lakhani, however has further submitted that the weapon i.e. the stick which is discovered at the instance of appellant – Kana Govind was sent to Forensic Science Laboratory for examination, however blood stains of none of the deceased have been found on the said stick. He therefore would submit that Criminal Appeal No.739/2016 be allowed and the appellant be set free. 7. On the other hand, learned APP Mr. Dharmesh Devnani appearing for the respondent – State of Gujarat would submit that the complainant Laxman Ramchandra Khamkar (PW-8, Exh.150) has not identified any of the appellants even in the court room. He would further submit that one of the witness viz. Deepak Kamble (PW-6), Police Constable from Mumbai has identified all the accused in the Court alleging that all of them have used deadly weapons like stick, pipe, axe etc. He would submit that merely because there was no Test Identification Parade held by the investigating agency, it would not be fatal to the prosecution case. Deepak Kamble (PW-6), Police Constable from Mumbai has identified all the accused in the Court alleging that all of them have used deadly weapons like stick, pipe, axe etc. He would submit that merely because there was no Test Identification Parade held by the investigating agency, it would not be fatal to the prosecution case. He would submit that in a mob when number of persons have participated and are using their deadly weapons and giving blows to different persons indiscriminately, it would be difficult for a person, who was under fear and had sustained injuries, to remember the actual occurrence of crime and weapon used by each of the accused who had participated in the crime. He therefore would submit that the weapons discovered at the instance of appellants of Criminal Appeal No.609/2016 having blood stains of either of the deceased suggests that the said weapons were used in the crime. 7.1 He would further submit that one of the appellant viz. Bhabhlubhai, who is the complainant of cross case had also sustained injuries in the incident and his presence at the scene of occurrence of crime is proved through his arrest panchnama. He would further submit that a sword was discovered at the instance of Bhabhlubhai wherein blood stains have been found of deceased Mr. Rajnikant Shah and therefore, conviction and sentence imposed by the trial Court vide the impugned judgment is required to be sustained. 8. We have learned advocates appearing for the respective parties and scrutinized the deposition of eye-witnesses, Medical Officers and Investigating Officers. We have also gone through the panchnama, post-mortem note of PSI Mr. Dethe, serological report of Forensic Science Laboratory as well as the Record & Proceedings of the sessions case. 8.1 It is an undisputed fact that in the incident in question which took place on 18.04.2001, four persons i.e. two from the police party which had traveled from Mumbai to village Mekda for discovery of muddamal of alleged loot of diamonds at the instance of one of the absconding accused Jaideep, and two persons from the accused side, have lost their lives. It is proved beyond doubt that the complainant Laxman Khamkar (PW8) alongwith PSI Mr. Nandkumar G. Dethe, Police Constable Mr. Dipak Kamble (PW6), the original complainant of Dindoshi Police Station registered as CR No.5/2001, Mr. Valisha Rahimsha Sai (PW7), local Panch from Mumbai Mr. It is proved beyond doubt that the complainant Laxman Khamkar (PW8) alongwith PSI Mr. Nandkumar G. Dethe, Police Constable Mr. Dipak Kamble (PW6), the original complainant of Dindoshi Police Station registered as CR No.5/2001, Mr. Valisha Rahimsha Sai (PW7), local Panch from Mumbai Mr. Rajnikant Shah and another Panch Mr. Shinde who also drove a private vehicle Tata Sumo, the accused of the crime viz. Jaideep alongwith his wife and minor daughter had reached village Mekda of Taluka Savarkundla at around 6 O’ Clock in the morning and were inquiring about the house of Jaideep and his relatives. As per the say of the complainant as stated in the FIR (Exh.151), 20 to 25 persons including the Sarpanch, his brother and elder brother of Jaideep who had knife in his hand attacked the police party. Though he has stated in the FIR that Police Inspector Mr. Dethe had opened fire, however has not disclosed the same before the Court. It is undisputed fact that though name of Jaideep has been referred to in the FIR but if his deposition is scrutinized, it appears that he has clarified that he knew Sarpanch since Jaideep who had traveled alongwith him had introduced the person as Sarpanch. He has not named any other person who were prosecuted before the trial Court. He has admitted in his cross-examination that no Test Identification Parade has been held by the investigating agency and is unable to identify any of the accused who were present in the Court. He has also admitted that he is unable to pinpoint as to which accused allegedly used which type of weapon and who had given blows to the deceased i.e. PSI Mr. Dethe and Mr. Rajnikant Shah. He has also admitted in his cross-examination that he was not aware about the name of any of the accused except the name of Jaideep and Shivraj (deceased brother of Jayesh @ Jaideep). He has also admitted that before the Medical Officer at Savarkundla Government Hospital, he has not named any of the accused. Similar is the say of another eye-witness viz. Deepak Kamble (PW6). He is unable to say as to which accused had used which weapon and had given blow to whom. He has also admitted that before the Medical Officer at Savarkundla Government Hospital, he has not named any of the accused. Similar is the say of another eye-witness viz. Deepak Kamble (PW6). He is unable to say as to which accused had used which weapon and had given blow to whom. It is true that before the trial Court he has identified the accused persons who were sitting in the Court room, however he is unable to say as to which accused had used which weapon and had given blow to which deceased or the injured witnesses. The third witness viz. Mr. Valisha Sai (PW7) has not named any of the accused and is unable to identify any of the accused. He is not even able to identify the weapon alleged to have been used in the crime. 8.2 It is an undisputed fact that all these three witnesses are from Mumbai, Maharashtra and none of them had ever seen all the accused prior to incident and therefore, it was the duty of the Investigating Officer to arrange for Test Identification Parade before roping in the villagers in the crime. In the FIR it is alleged that 20 to 25 persons had attacked, however the investigating agency has arrested 10 accused persons and there is no explanation as to on what basis they have been arrested and that too after two days of the incident. In such circumstances, the ratio laid down by the Hon’ble Supreme Court in the case of Mohanlal Gangaram Gehani (Supra) would be applicable. In the said case the facts were similar to that of the present case. In the case of Karan and Others (Supra), the Hon’ble Supreme Court has held that failure to conduct Test Identification Parade in respect of the accused unknown to the witness and identification by such witnesses of the accused in the Court raises serious doubt and such testimonies are required to be excluded. In the case of Karan and Others (Supra), the Hon’ble Supreme Court has held that failure to conduct Test Identification Parade in respect of the accused unknown to the witness and identification by such witnesses of the accused in the Court raises serious doubt and such testimonies are required to be excluded. In the present case it is an undisputed fact and even admitted by the witnesses that they have seen the accused persons for the first time at the time of occurrence and seen them subsequently at the time of trial i.e. after a period of 10 years and therefore, being identified by one of the eye-witnesses that too in general would in our opinion raises serious doubt about whether the real assailants have been arraigned in the crime or not? Similar is the ratio laid down by the Division Bench of this Court in the case of Ramanbhai Bhikhabhai Machhi (Supra). It is also pertinent to note that some clashes have taken place between police personnel who were in civil dress as admitted by one of the witness and villagers wherein number of accused have been roped in and therefore, atleast two witnesses should be found to be trustworthy. Here, in the present case, therefore the ratio laid down by the Hon’ble Supreme Court in the case of Chandra Shekhar Bind and Others (Supra) would be applicable. In light of the above ratio and in the facts of the case as stated hereinabove and in view of the fact that none of the eye-witnesses have identified any of the accused as assailants of the mob, the prosecution has failed to bring home the charges against the appellants. 8.3 It is pertinent to note that a sword has been discovered at the instance of one of the appellants viz. Bhabhlubhai, however none of the witnesses have alleged that said Bhabhlubhai had inflicted blow on any of the deceased or injured witnesses. Therefore, considering other evidence which does not support the prosecution, recovery of sword at the instance of the accused itself would not make him guilty and therefore, sentence could not have been awarded only on that ground. Similar principle is also applicable to other accused from whom the weapons are discovered after two days that too by a joint panchnama. Therefore, considering other evidence which does not support the prosecution, recovery of sword at the instance of the accused itself would not make him guilty and therefore, sentence could not have been awarded only on that ground. Similar principle is also applicable to other accused from whom the weapons are discovered after two days that too by a joint panchnama. In such circumstances, the principle laid down by the Hon’ble Supreme Court in the case of Bhupan (Supra) would be applicable. Similar is the ratio laid down by Rameshbhai Hajabhai Chachiya (Supra). It is also required to be noted that post-mortem note of deceased Mr. Rajnikant Shah has not come on record and less quantity of blood sample has reached to the Forensic Science Laboratory, however the same has not been dealt with in detail by the learned trial Judge while convicting the appellants. 8.4 In view of the fact that in absence of sufficient material on record though the prosecution has examined three eye-witnesses and in view of above all aspects, the appellants ought to have been given benefit of doubt by the learned trial Judge. Hence, we are of the opinion that the appeals require consideration. 9. In the result and as per the above mentioned circumstances, Criminal Appeals are allowed. The judgment and order of conviction and sentence rendered by the learned 2nd Additional Sessions Judge, Amreli in Sessions Case No.294 of 2001 on 12.02.2016 for the offences punishable under Sections 147, 148, 224, 225, 302, 307, 324, 325, 326, 332, 333, 397 and 398 read with Section 149 of the Indian Penal Code, 1860 is set aside. Accused No.2–Bhabhlu Naajbhai Dhadhal, accused No.8–Jethabhai Pithabhai Helaiya, accused No.10-Parshottambhai Dhusabhai Goradiya (appellants of Criminal Appeal No.609/2016) and accused No.7-Kanabhai Govindbhai Jograna (appellant of Criminal Appeal No.739/2016) be released from the prison forthwith, if not required in any other case. Fine, if paid by them, is ordered to be refunded to them. Registry is directed to send the R & P to the concerned Trial Court forthwith. CRIMINAL MISC. APPLICATION NO.1 OF 2021 In view of disposal of Criminal Appeal No.609/2016, Criminal Misc. Application No.1/2021 in Criminal Appeal No.609/2016 would not survive and is accordingly disposed of.