JUDGMENT : A.Y. KOGJE, J. [1] These five convicts of two Sessions Case No.44 of 2013 and 10 of 2014 have filed four separate appeals against the judgment and order of conviction dated 22.08.2019 passed by the Additional Sessions Judge, Porbandar. [2] In the aforesaid trial, eight accused were tried of whom six were convicted and two were acquitted. The case of the prosecution was based on the evidence of eye witnesses. [3] This is the case where the facts are that the accused namely Bharat @ Bagho Keshav Lodhari was arrested by the police under the provisions of prohibition act on a secret information received by the police. Thereafter, Bharat @ Bagho Keshav Lodhari had a belief that it is the complainant’s father namely Ramji @ Paga Devsi Panjri and his brother Jitu and Ramesh had given the said information, as a grievance, on 24.01.2012 the accused had beaten Rameshbhai and Ashokbhai. Thereafter on account of such grievance, the accused conspired prior to 3 days from the date of incident and pursuant to the said conspiracy the accused by forming an unlawful assembly on 06.07.2013 at about 12 o’clock in the night hours, the accused had stopped the deceased at Vandri Chowk, Kharwawad, Porbandar and started beating with weapons like iron pipe to the deceased by using filthy language. During the incident, the accused namely Pratap Vinjha had taken out the knife and ran after the complainant. It is further stated that one Hiraben and auntie of complainant (foi) namely Dhanuben came and tried to save the deceased. It is therefore alleged that the accused namely Bharat @ Badha Keshav had given a push to Dhanuben and on shouting, the accused ran away from the scene of offence by shouting that “one is left”. [4] It is reflected from the complaint that thereafter the deceased was taken to Government hospital and thereafter the deceased was further advised to take to hospital at Rajkot. While shifting the deceased to Rajkot in an ambulance, the deceased succumb to the injuries while on the way to the hospital at Rajkot and therefore the deceased was taken to Porbandar and post-mortem was carried out. [5] It is in this manner the complaint came to be registered before the Kirtimandir Police Station being C.R.No.I-39 of 2013. While shifting the deceased to Rajkot in an ambulance, the deceased succumb to the injuries while on the way to the hospital at Rajkot and therefore the deceased was taken to Porbandar and post-mortem was carried out. [5] It is in this manner the complaint came to be registered before the Kirtimandir Police Station being C.R.No.I-39 of 2013. Thereafter, the investigation was carried out and chargesheet was filed before the Learned Judicial Magistrate First Class, Porbandar and Criminal Case No. 3047 of 2013 was numbered. Since, the offence triable by the Court of Sessions, the case was committed to the Sessions Court, Porbandar and the Sessions Case was numbered as Sessions Case No. 44 of 2013 and was tried by the Learned Additional Sessions Judge, Porbandar. Thereafter the accused namely Mukesh Ramyibhai Panjri came to be arrested and supplementary chargesheet came to be filed being Criminal case No. 616 of 2014 before the Learned Judicial Magistrate 1st lass, Porbandar and thereafter the case was committed to the Court of Sessions being Sessions case No. 10 of 2014 and both the cases were tried together. [6] It has been reported that out of the present appellants, Nitesh @ Nitin Dhabhi Shivlal Kanojiya is absconding and by separate order warrants are issued against him and his appeal No.883 of 2020 is separated. The name of Bharat @ Bagho Keshav Lodhari is not reflected in the charge as well as in the impugned order, as his trial is conducted separately. [7] Under the impugned judgment and order, the appellants have been convicted as under: (i) The accused persons-No.1) Mukesh @ Karo Lalji Masani, accuse no. 2) Pratap @ Bhelvalo Vija Gohel, accuse no. 3) Dayo @ Kagdo Govind Chauhan, accuse no.4) Satish @ Gofano Parshottam Rathod, accuse no. 5) Mukesh @ Babukali Khimji Vandariya, accuse no. 8) Nitesh @ Nitin Dhobi Shivlal Kanojiya - these accused persons (names and nos, as per the Judgment)are held guilty for the offence under Section-302 of Indian Penal Code – reading with section -149 and it is ordered to undergo sentence of life imprisonment and penalty of Rs. 20,000/- (Twenty Thousand). (ii) The accused persons–No.1- Mukesh @ Karo Lalji Masani, accused no. 2) Pratap @ Bhelvalo Vija Gohel, accused no. 3) Dayo @ Kagdo Govind Chauhan, accused no. 4) Satish @ Gofano Parshottam Rathod, accuse no. 5) Mukesh @ Babukali Khimji Vandariya, accused no. 20,000/- (Twenty Thousand). (ii) The accused persons–No.1- Mukesh @ Karo Lalji Masani, accused no. 2) Pratap @ Bhelvalo Vija Gohel, accused no. 3) Dayo @ Kagdo Govind Chauhan, accused no. 4) Satish @ Gofano Parshottam Rathod, accuse no. 5) Mukesh @ Babukali Khimji Vandariya, accused no. 8) Nitesh @ Nitin Dhobi Shivlal Kanojiya - these accused persons are held guilty for the offence committed as per Section-149 of Indian Penal Code – reading with section - 143 and it is ordered to undergo rigorous imprisonment of 6 (six) months and penalty of Rs. 1,000/- (One Thousand) each. (iii) The accused persons No.1) Mukesh @ Karo Lalji Masani, accuse no. 2) Pratap @ Bhelvalo Vija Gohel, accuse no. 3) Dayo @ Kagdo Govind Chauhan, accuse no. 4) Satish @ Gofano Parshottam Rathod, accuse no. 5) Mukesh @ Babukali Khimji Vandariya, accuse no. 8) Nitesh @ Nitin Dhobi Shivlal Kanojiya - these accused persons have been held guilty for the offence committed as per Section-149 of Indian Penal Code – reading with section -147 and it is ordered to undergo rigorous imprisonment of 2 (Two) years and penalty of Rs. 1,000/- (One Thousand) each. (iv) The accused persons–No.1) Mukesh @ Karo Lalji Masani, accuse no. 2) Pratap @ Bhelvalo Vija Gohel, accuse no. 3) Dayo @ Kagdo Govind Chauhan, accuse no. 4) Satish @ Gofano Parshottam Rathod, accuse no. 5) Mukesh @ Babukali Khimji Vandariya, accuse no. 8) Nitesh @ Nitin Dhobi Shivlal Kanojiya - these accused persons are held guilty for the offence committed as per Section-149 of Indian Penal Code – reading with section - 148, it is ordered to undergo rigorous imprisonment of 3 (Three) years and penalty of Rs. 2,000/- (Two Thousand) each. (v) The accused persons-No.1) Mukesh @ Karo Lalji Masani, accuse no. 2) Pratap @ Bhelvalo Vija Gohel, accuse no. 3) Dayo @ Kagdo Govind Chauhan, accuse no. 4) Satish @ Gofano Parshottam Rathod, accuse No. 5) Mukesh @ Babukali Khimji Vandariya, accuse no. 8) Nitesh @ Nitin Dhobi Shivlal Kanojiya - these accused persons are held guilty for the offence committed as per Section-135 of Gujarat Police Act, it is ordered to undergo simple imprisonment of 6 (six) months and penalty of Rs. 500/- (Five Hundred) each. 4) Satish @ Gofano Parshottam Rathod, accuse No. 5) Mukesh @ Babukali Khimji Vandariya, accuse no. 8) Nitesh @ Nitin Dhobi Shivlal Kanojiya - these accused persons are held guilty for the offence committed as per Section-135 of Gujarat Police Act, it is ordered to undergo simple imprisonment of 6 (six) months and penalty of Rs. 500/- (Five Hundred) each. [8] Learned advocate for the appellants submitted that the prosecution is unable to prove its case beyond reasonable doubt with regard to the specific role attributed to the accused participating in the crime i.e. specific allegation with regard to causing injuries to the deceased. In addition to the above, it was dark and hence, it cannot be said that by which weapon the injuries were caused to the deceased. He submitted that the appellants were not present when the incident taken place but their name was subsequently added by the prosecution to settle the score as there was an enmity between them. In addition to the above, in the complaint, no role is attributed to appellants and hence, the appellants are required to be acquitted. [9] That, the prosecution is unable to prove the conspiracy hatched against the deceased by the accused as alleged in the compliant. Looking to the deposition of investigating officer below Exh.193 whereby the said witness had specifically deposed that on the basis of the statement of co-accused, Section 120 (B) of the Indian Penal Code was added, however there is no direct or indirect evidence with regard to the conspiracy. Merely making the telephone call between the accused would not implicate the accused with the crime and the statement of the co-accused of the present evidence as per Indian evidence Act and hence looking to the aforesaid facts and circumstances of the case, the appellants are required to be acquitted by this Court. [10] Even looking to the deposition of the complainant, Exh. 111, eyewitness Hiraben, position below Exh. 115 as well as Hiralal, deposition position below Exh. [10] Even looking to the deposition of the complainant, Exh. 111, eyewitness Hiraben, position below Exh. 115 as well as Hiralal, deposition position below Exh. 117, wherein all had deposed that the place of incident is a public place and there were several persons present when the incident had taken place even though the prosecution had conveniently not examined any independent evidence though available and had only chosen to examine related witnesses and therefore the depositions of the related witnesses may be examined with great care and caution and a single infirmity goes to the root of the case and fatal the case of prosecution. Therefore, depositions of the eyewitnesses create great doubt with regard to the actual occurrence and their presence when the incident had taken place. Hence, the appellants are required to be acquitted by this Court. That the Learned Trial Judge ought to have appreciated that the prosecution has failed to prove its case beyond reasonable doubt and therefore, benefit of doubt to be given to the accused-appellants. [11] Learned advocate has submitted that the prosecution has recorded evidence of three eye witnesses. However, these eye witnesses are the close relatives of the deceased. They are vitally interested witnesses and therefore given exaggerated versions. Their evidence is full of contradictions and are also inconsistent with each other. He submits that each of these were informed about the incident of assault by some third person, none of these witnesses have named such person, in fact such person is not even cited as witness and therefore, the fact that these witnesses are eye witnesses, is itself doubtful. [12] Learned advocate also submitted that the version of the informant is also doubtful as the informant had a chance to disclose names at the hospital where the deceased was taken and he therefore, disclosed the name there but there, but there was no reason for disclosing again before the PSO at the police stations and that too after three four hours. Therefore, there was a scope of over implication. It is submitted that the conduct of eye witness can be treated as unnatural as though the deceased was their near relatives, none of the witnesses tried to save him especially the son of the deceased. [13] Learned advocate submitted that as the appellants doubted the entire investigation, an application was made for re- investigation. It is submitted that the conduct of eye witness can be treated as unnatural as though the deceased was their near relatives, none of the witnesses tried to save him especially the son of the deceased. [13] Learned advocate submitted that as the appellants doubted the entire investigation, an application was made for re- investigation. The Investigating Officer, in response to this, filed his reply, wherein it is stated that the statements were recorded of the persons, who are residing near the place of incident as well as the statements of other eye witnesses were also recorded which are as (1) Minaxiben–wife of Navnit Chinu Khokhari, (2) Ramaben–wife of– Ashok Keshu Khorva, (3) Vijyaben – wife of – Govind Dhana, (4) Bhavan Ratansinh Gohel, (5) Karshan Jetha Malam, (6) Nanuben – wife of – Ladhu Hira Bharda, (7) Muktaben – wife of – Hiralal Vijabhai Panjri, (8) Vijay Ranchhod Todarmal, (9) Manish Jethalal Motivaras, (10) Nooman Akbar Ali Sadikot. That, statements of several eye witnesses, who are independent have been recorded. However, no such independent eye witnesses have been examined by prosecution and thereby, raising question of intention of prosecution. [14] Learned advocate submitted that there was no common intention to commit murder as all the injuries were only on the limbs, which is non-vital part of the body. Lastly, it is submitted that the prosecution has failed to establish the motive behind committing of the offense. [15] Learned Additional Public Prosecutor submitted that that the appellants are creating false ground to suspect the investigation particularly by referring to disclosure of names by informant at the hospital and then as an afterthought in the police station. Learned APP referred to the chronology of Janvajog entry, then entries were made in station diary about the death and depositions of PSI Vaghela, who under the instructions, proceeded to the hospital and submitted that their chronology is in natural course and cannot be manipulated. It is submitted that the motive of these appellants is clear from the deposition of the wife of deceased, particularly about appellants indulging in nefarious activities for which two FIRs were registered by the deceased husband and his brother also. [16] Learned APP has also referred to Exh.284 which is the purshish by which the eye witness Dhanuben who has stated about threats issued by convicts against giving of threats. [16] Learned APP has also referred to Exh.284 which is the purshish by which the eye witness Dhanuben who has stated about threats issued by convicts against giving of threats. Learned APP therefore submitted that over and above the eye witness, there are sufficient corroborative evidence. It is submitted that the panchnama drawn regarding the weapon used does indicate blood stains. [17] Learned advocate for the original complainant adopts the arguments of the learned Additional Public Prosecutor and has further relied upon the judgment of the Apex Court in case of Gajoo v/s. State of Uttarakhand, reported in 2012 (9) SCC 532 to submit that the evidence of eye witnesses who are relatives cannot be discarded. [18] Learned advocate for the appellants in rejoinder argued that though prosecution has placed on record the CDR of each of the accused, but the same is not proved in accordance with law. The Court finds the aforesaid Call Detail Record was placed on record regarding the intense contact between the accused during the night of offense to establish conspiracy. However, when the Sessions Court has not believed the theory of conspiracy, the Court may not well upon it any further. [19] Heard learned advocates for the parties and perused the documents placed on record. It appears that this is a case where the accused were charged that on account of suspision by accused Bharat @ Bagho Keshav Lodhari, as to who provided tip off liquor to police and having discord in this regard, the appellants and Bharat @ Bagho Keshav Lodhari had beaten and caused fractures in leg and hand of deceased-Ramji @ Paga Devshi Panjari’s son Jitu on 06.01.2012 and Ramesh and Ashok on 24.01.2012. Due to vengeance of the same, accused Bharat @ Bagha gathered the accused persons and accused Jitendra @ Jitu Lalji Masani before about three days of the incident at the dry fish dock located at seashore of Javar village and made pre planned an assault to kill Ramji @ Paga Devshi. The accused persons-Mahendra @ Bhuro Harji Gohil and Dipak @ Dipu Hiralal Jungi and Jitendra @ Jitu Masani kept close watch on the movement of deceased. The accused persons-Mahendra @ Bhuro Harji Gohil and Dipak @ Dipu Hiralal Jungi and Jitendra @ Jitu Masani kept close watch on the movement of deceased. The accused persons gathered and formed illegal group and were armed with iron pipes and as per pre-planned conspiracy, when the accused met deceased Ramji @ Pago Devshi Panjri on 06.07.2013 at 24:00 hours on the road opposite side of Hanuman Dairy, Vandri Chawk, Kharvawad, Porbandar, they used abusive language and caused injuries in leg and hand of deceased and killed him by inflicting iron pipe blows indiscriminately. Jitendra @ Jitu Lalji Masani chased accused Mukesh Ramjibhai to kill him with knife in his hand. In this case, accused Bharat @ Bagha kept the knife in his hand and pulled hair of the witness Dhanuben w/o Laljibhai Lodhari and pushed her down. The accused persons threatened the complainant and witness Hiraben, Dhanuben to kill them. [20] The prosecution has examined PW-35 Dr. Kailash Rameshbhai Trivedi at Exh.89. This witness has examined the victim when he was still alive and had referred to higher centre. However, on the way, the victim died and though this witness performed the postmortem, from his evidence, it is coming out that the deceased was inflicted with 20 injuries which can be caused by hard and blunt substances. In fact, this witness even in cross-examination has confirmed that these injuries are possible by hard and blunt substances, but not possible by a knife. His opinion in para 19 of his deposition clearly indicates that these injuries were too many and has resulted due to excessive blood loss resulting to cardio respiratory failure. The prosecution has therefore, established the homicidal death. [21] Attempt was made by the appellants to submit that none of 20 injuries are on vital part of the body. Nonetheless the excessive numbers of injuries on the limbs and that being the cause of death. The submission that there was no intention, cannot be accepted. The presence of large number of injuries definitely indicate that this is a handiwork of more than one person. Nonetheless the excessive numbers of injuries on the limbs and that being the cause of death. The submission that there was no intention, cannot be accepted. The presence of large number of injuries definitely indicate that this is a handiwork of more than one person. So far as the argument of no injury on the vital part is concerned, it would be relevant to observe that all the accused had indiscriminately started assaulting the deceased and by natural human conduct when under attack takes a defensive position by which the vital parts of the body like head, chest, stomach get automatically covered by the limbs. This explains the high number of injuries on the limbs of the deceased and this in fact enhances the gravity of offense and shows the determined intentions of the assailants. [22] The Court has taken into consideration the evidence of the eye witness PW-36 Mukesbhai Ramjibhai, son of the deceased at Exh.111, PW-37 Hiraben Ramjibhai Panjari, wife of the deceased at Exh.115 and PW-38 Hiralal Devshibhai Panjari, brother of the deceased at Exh.117. In each of the evidences of the eye witnesses, the evidence is absolutely consistent with each other. Each of these witnesses have shown the presence of the assailants and role of giving indiscriminate blows by pipes. [23] Attempt is made by appellants to doubt their presence at the scene of offense by indicating their unnatural conduct of not intervening to save the deceased though related in this connection, this witness Hiraben has deposed that she and her sister in law Dhanuben did try to intervene, but Dhanuben was flung by pulling her hair and Hiraben was chased away at the knife point. Moreover, Exh.284 is a relevant document regarding Dhanuben. [24] Submission of learned for advocate for the appellants that upon being informed by some third person about the incident, the eye witness could not have reached the place of incidents. In this connection, the sketch of the scene of offense alongwith the marks where the witnessness were located when the received information is found is perused. Exh. 203 is the sketch which shows all the three witnesses were in the close vicinity of the scene and so the doubt raised is unjustified. Not only that in the cross-examination of these eye witnesses in this regard has not brought out anything contrary tot his. Exh. 203 is the sketch which shows all the three witnesses were in the close vicinity of the scene and so the doubt raised is unjustified. Not only that in the cross-examination of these eye witnesses in this regard has not brought out anything contrary tot his. [25] The Apex Court in connection with relative witness, Gajoo v/s. State of Uttarakhand (Supra) in paragraph No.15, held as under: “15.Once, the presence of PW2 and PW3 is shown to be natural, then to doubt their statement would not be a correct approach in law. It has unequivocally come on record through various witnesses, including PW4, that there was a ‘Satyanarayan Katha’ at the house of Chetu Ram which was attended by various villagers. It was on their way back at midnight when PW2 and PW3 had seen the occurrence in dark with the help of the torches that they were carrying. The mere fact that PW2 happens to be related to PW1 and to the deceased, would not result in doubting the statement of these witnesses which otherwise have credence, are reliable and are duly corroborated by other evidence. In such cases, it is only the members of the family who come forward to depose. Once it is established that their depositions do not suffer from material contradictions, are trustworthy and in consonance with the above-stated principles, the Courts would not be justified in overlooking such valuable piece of evidence.” [26] In case of Guiram Mondal v/s. State of West Bengal, reported in (2013) 13 SCC 284 in paragraph No.16, held as under:- “16. We are also not impressed by the argument of Ms. Rupali S Ghose, learned counsel appearing for the appellant, that not much reliance could be placed on the evidence of eye-witnesses as most of them are relatives of Amrita Dome and not a single independent witness was examined by the prosecution. In our view, merely because a witness is a relative of the deceased is not a reason for discarding his evidence. Many a time, strangers will not come forward depose as witnesses, even if they have witnessed the crime. Further, possibility of influencing such witnesses is also not uncommon. Evidence of relatives can be acted upon if the court finds that the evidence of such a witness is reliable and trustworthy. Many a time, strangers will not come forward depose as witnesses, even if they have witnessed the crime. Further, possibility of influencing such witnesses is also not uncommon. Evidence of relatives can be acted upon if the court finds that the evidence of such a witness is reliable and trustworthy. In this connection reference may be made to the Judgments of this Court in Seeman v. State, Alamgir v. State (NCT Delhi), Dalbir Kaur v. State of Punjab, State of U.P. v Jodha Singh, Labh Singh v. State of Punjab and Visveswaran v. State.” [27] The Court on perusal of the evidence of these three eye witlessness, though related to deceased does not find anything on record to doubt the credibility of evidence. [28] Over and above, the discovery panchnama is drawn for discovery of the weapons used by accused Exh.50-Mukesh @ Karo Laljibhai Masani-pipe, Exh.60 Pratap @ Pratap Bhelwalo Vijabhai Gohel pipe and knife, Exh.63 Dahyo @ Kagdo Govindbhai Chauhan, Satish @ Gofno Parshottambhai Rathod and Mukesh @ Babukali Khimjibhai Vandariya-iron pipes. The contents of the panchnama were referred by Investigating Officer PW-44, Moren Maksudbhai Laliwala at Exh.193, these pipes were found with the blood stains and the panchnama exhibited the authorship of concealment. This the defense counsel has not challenged during the evidence of the Investigating Officer. The serological report of the pipes thus discovered also shows presence of blood (Page 1431 paper book). Therefore, this is sufficient corroboration of the version of the eye witness. [29] The Court has considered the submission regarding chronology of reporting of incident and naming the accused at the hospital and then at police station. Perusal of personnel of Exh.200, 201 and 202 alongwith the evidence of PSI, U.L. Vaghela PW-43 Exh. 143 gives the exact chronology who acted under the direction of the Investigating Officer and therefore, rules out the possibility of manipulation or an afterthought as is argued by the appellants. [30] Lastly, it would be appropriate to take into consideration the document at Exh. 239, 240, 241, 242 and 243, each of these documents are the list of several offenses registered against each of the appellants. [30] Lastly, it would be appropriate to take into consideration the document at Exh. 239, 240, 241, 242 and 243, each of these documents are the list of several offenses registered against each of the appellants. [31] The attempt by appellants to doubt investigation for not recording the evidence of independent eye witnesses, the Apex Court in case of Darya Singh v/s. State of Punjab and Haryana, reported in AIR 1965 SC 328 , has taken cognizance of the very issue and held in paragraph Nos.11 and 12 as under:- “11. Mr. Bhasin. Mr. Bhasin further argued that the murder having taken place in a locality where a large number of citizens resided, it was the duty of the prosecution to have examined independent persons staying in the locality to support its case against the appellants and he suggested that if the prosecution failed to examine such witnesses, it was the duty of the Court to have exercised its powers u/s 540 of the Criminal Procedure Code and to call such witnesses to give evidence. Mr. Bhasin argues that u/s 172 of the Code, it is competent to a Criminal Court to send for the police diaries of a case under trial in such Court and if the Court had seen the police diaries, it would have easily found whether -the statements of any independent eye- witnesses had been recorded or not If it found that some statements of independent eye-witnesses bad been recorded. it should have called them in exercise of its powers u/s 540 of the Code; since this has not been done, it has introduced an infirmity in the trial, and this Court should set aside the conviction of the appellants and send the case back with a direction that the Magistrate should exercise his powers u/s 540 as suggested by Mr. Bhasin. In our opinion, this argument is entirely misconceived. It is well settled that in a murder case, it is primarily for the prosecutor to decide which witnesses he should examine in order to unfold his story. It is obvious that a prosecutor must act fairly and honestly and must never adopt the device of keeping back from the Court eye-witnesses only because their evidence is likely to go against the prosecution case. It is obvious that a prosecutor must act fairly and honestly and must never adopt the device of keeping back from the Court eye-witnesses only because their evidence is likely to go against the prosecution case. The duty of the prosecutor is to assist the Court in reaching a proper conclusion in regard to the case which is brought before it for trial. It is no doubt open to the prosecutor not to examine witnesses who, in his opinion, have not witnessed the incident, but, normally he ought to examine all the eye- witnesses in support of his case. It may be that if a large number of persons have witnessed the incident, it would be open to the prosecutor to make a selection of those witnesses, but the selection must be made fairly and honestly and not with a view to suppress inconvenient witnesses from the witness-box. If at the trial it is shown that persons who had witnessed the incident have been deliberately kept back, the Court may draw an inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case. In such a case, if the ends of justice require, the Court may even examine such witnesses by exercising its powers u/s 540; but to say that in every murder case, the Court must scrutinise the. police diary and make a list of witnesses whom the prosecutor must examine, is virtually to suggest that the Court should itself take the role of a prosecutor. The powers of the Court u/s540 can and ought to be exercised in the interests of justice whenever the Court feels that the interests of justice so require, but that does not justify Mr. Bhasin's contention that the failure of the Court to have exercised its powers under s, 540 has introduced a serious infirmity in the trial itself. 12. In this connection, it is necessary to bear in mind that there is nothing on the record to show that any person in the locality who actually witnessed the incident had been kept back. No such suggestion has been made to the investigating officer and no other evidence has been brought by the defence in support of such a plea. In this connection, it is necessary to bear in mind that there is nothing on the record to show that any person in the locality who actually witnessed the incident had been kept back. No such suggestion has been made to the investigating officer and no other evidence has been brought by the defence in support of such a plea. It is well-known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers arc generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits. In the present case, we see no justification for the assumption that any eyewitness has been kept back from the Court, and so, we feel no hesitation in rejecting the argument that the case should be sent back on the hypothetical ground that the scrutiny of the police diary may disclose the presence of an independent eye- witness such an argument is wholly misconceived and can be characterised as fantastic.” [32] In view of the aforesaid discussion, the Court finds no reason to interfere with the judgment of Sessions Court. The appeals deserve to be and the same are hereby dismissed. The order dated dated 22.08.2019 passed in Sessions Case No.44 of 2013 and 10 of 2014 by the Additional Sessions Judge, Porbandar is hereby confirmed. Bail and bail bonds of the accused, if any, stands discharged. R & P, if any, be sent back to the concerned Trial Court, forthwith. [33] In view of the dismissal of the main appeals, Criminal Misc. Applications for suspension of sentence does not survive. Hence, the same stands disposed of accordingly.