Henno @ Anwar Ali Amir vs State Of on 26 March, 2013

[Cites 29, Cited by 0]

Gujarat High Court

Henno @ Anwar Ali Amir vs State Of on 26 March, 2013

Bench: M.R. Shah

  
	 
	 HENNO @ ANWAR ALI AMIR MALEKV/SSTATE OF GUJARAT....Opponent(s)/Respondent(s)
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	R/CR.A/207/2003
	                                                                    
	                           CAV JUDGEMNT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 207 of 2003 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

Whether it is to be circulated to the civil judge ?

================================================================ HENNO @ ANWAR ALI AMIR MALEK & 6....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:

MR MM TIRMIZI, ADVOCATE for the Appellant(s) No. 1 - 3 , 5 MR VAIBHAV A VYAS, ADVOCATE for the Appellant(s) No. 4 and for LD . ADVOCATE MR. KAMAL M SOJITRA, MR KAMAL M SOJITRA, ADVOCATE for the Appellant(s) No. 6 ABATED for the Appellant(s) No. 7 MR KIRTIDEV R DAVE, ADVOCATE for the victim i.e. widows of the deceased MS CM SHAH, LEARNED APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM:

HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE S.H.VORA Date : 26/03/2013 CAV JUDGEMNT (PER : HONOURABLE MR.JUSTICE S.H.VORA)

1. The appellants invoked the powers of this Court under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for short) by filing present appeal, inter-alia, challenging the judgment and order dated 24.12.2002 rendered in Sessions Case No.25 of 2001 by the learned Joint District Judge and Additional Sessions Judge, Fast Track Court No.1, Bharuch, holding the appellants guilty and convicted them under Section 302 read with Section 149 of the Indian Penal Code and sentenced each one of them to suffer rigorous imprisonment for life and imposed fine of Rs.2,000/- in default to undergo simple imprisonment for six months. The learned Trial Court further held the appellants guilty for the offence punishable under Sections 147 read with Section 149 of the Indian Penal Code and imposed sentence upon each of them rigorous imprisonment for six months and further convicted for the offence punishable under Section 148 read with Section 149 of the Indian Penal Code and imposed sentence upon each of them rigorous imprisonment for six months.

Whereas the appellants came to be acquitted from the charge of offence punishable under Sections 120(B) and 323 of the Indian Penal Code and Section 135 of the Bombay Police Act for which the State has not preferred any appeal.

At the outset, we may notice that the present appeal was heard and disposed of by the Division Bench and vide judgment and order dated 18.03.2009, the appeal so far as the present appellant Nos.1 to 4 came to be dismissed, while appellant Nos.5 to 7 came to be acquitted from all the charges alleged against them.

Being aggrieved and dissatisfied with this judgment and order, appellant Nos.1 to 4 carried the decision of the Division Bench before the Hon ble Apex Court by way of Criminal Appeal Nos.1584 of 2012 and 1585 of 2012. Vide judgment dated 01.10.2012, the Hon ble Apex Court set aside the judgment of the Division Bench passed on 18.03.2009 and remanded the case to this Court. Accordingly, the appeal came to be restored to its original file and we heard the learned advocates appearing for the respective parties at length. It may further be noted that pending appeal before this Court, appellant No.7-Abdul Samiya Nur Malek expired on 20.09.2010 and therefore, vide order dated 05.03.2013 passed by this Court, the appeal preferred by appellant No.7-Abdul Samiya Nur Malek came to be dismissed as abated. Now, the appeal remains to be decided for appellant Nos.1 to 6 only.

Now, we may notice the case of the prosecution in brief. As per the information given by the complainant-Yusuf Ismail Abdulla Malek, offence in question came to be registered at Kavi Police Station as I-C.R.No.31/2000. As per the complainant, on 09.10.2000 at about 12:30 p.m., he was on duty as Bus Conductor at Jambusar State Transport Bus Depot and the said bus was to go from Jambusar to Village Sigam. The said bus was bearing Registration No.GJ-1-Z-3882. The departure of the said bus was delayed, as the said bus was required to carry spare tyre along with it for some other bus, which suffered break down near Village Nobar, and therefore, the said bus started from Jambusar for going to Degam-Sigam at about 1:30 p.m. The complainant issued tickets to every passengers and according to the complainant, there were 4 passengers for Village Sigam, 14 passengers for Village Degam, 15 passengers for Kavi, there were 8 students having bus-passes, 7 passengers were having passes for Village Nahar, 7 passengers for Village Sarod, 3 passengers were having passes, 3 passengers with passes for Village Nobar, who boarded the bus from Jambusar. According to the complainant, when the said bus reached the Village Sarod, two passengers boarded the bus and when it reached Village Kavi, 4 passengers boarded the bus for going to Village Degam, and thereafter, 5 passengers boarded the bus for going to Village Sigam. When bus reached at Village Nobar, the extra-tyre was offloaded. As per further version of the complainant, he belonged to Village Degam, where 6,000 residents were residing and he knew majority of the residents of the Village Degam. It is further the version of the complainant that the passengers, who boarded the bus at Jambusar included (i) Musa Mohmmed Bada, (ii) Gulam Raja Baji, (iii) Yusuf Malek Lad, (iv) Henna @ Anwar Ali Amir, (v) Kalu @ Hussein Ali Amir,

(vi) Ikbal Abdul Samiya, (vii) Amir Hasan Baji, (viii) Dawood Ibrahim Nurbha, (xi) Ali Amir Bhaiba, (xii) Abdul Samiya and two other passengers, whose names he did not recollect at the time of lodging complaint. It is further the case of the prosecution that deceased-Gulam Raja Baji and deceased-Musa Mohmmed Bada were sitting on a seat of three persons situated opposite to the seat of the complainant. Before reaching Village Sarod, they had been sleeping while sitting. That one passenger viz. Hamirbhai Hasanbhai was sitting behind the complainant s seat situated after the door and along with him, one passenger viz. Dawood Ibrahim Nurbha was sitting. It was the further case of the prosecution that the said bus after leaving Village Kavi reached three roads leading to Village Gulal at about 2:30 p.m. and at that time, after giving tickets to those passengers, who had boarded the bus from Village Kavi and when turned, he saw that accused No.1-Henna @ Anwar Ali Amir Malek, accused No.2- Kalu @ Hussein Ali Amir Malek, accused No.3-Yusuf Malek Lad Malek and accused No.4-Iqbal Abdul Samiya Malek had knives and accused No.1-Henna @ Anwar Ali Amir Malek gave one blow on the left side of the chest of Musa Mohmmed Bada and Musa Mohmmed Bada fell down on the seat and that accused Nos.2 to 4 gave knife blows on Gulam Raja. At that time, one passenger viz. Ahmed Motaji, who was sitting in the front seat of deceased-Gulam Raja, tried to intervene and at that time, Ali Amir Bhaiba, Haji Mohmmed Khilji and Abdul Samiya, who were standing two seats away from the seat of deceased-Gulam Raja were saying in abusive language kill Gulam Raja and do not spare for Hamir . On hearing such quarrel, when the driver stopped the bus, Amir Hasan Baji and Dawood Ibrahim Nurbha run away and the passengers in the bus also started running away. At that time, the complainant-Conductor came forward and took the passengers viz. Ahmed Motaji Pathan, Iqbal Akbar Mohmmed, Ismail Dada Rasul, Akbar Mohmmed Rahim Sathi, who had remained in the bus and the dead bodies of deceased-Gulam Raja and deceased-Musa Mohmmed Bada to the Police Station. It is further the case of the prosecution that when the door of the bus was opened at Kavi Police Station, the passengers, who had remained inside the bus, had gone away. It is further the case of the prosecution that the accused persons i.e. appellants had entertained hostile enmity towards the deceased-Gulam Raja and deceased-Musa Mohmmed Bada on account of previous enmity as well as the assailants were the workers of the Congress Party and the deceased persons were the workers of BJP and that since the assailants were supporters of one Umar Mohmmed, the candidate of Congress Party for Panchayat Election, there was enmity between two groups and on account of earlier personal enmity, the deceased persons were assaulted with knives, as stated hereinabove. Thus, the appellants committed offence and accordingly, offence against the appellants came to be registered under Sections 147, 148, 149, 120(B) and 302 of the Indian Penal Code against the accused Nos.1 to 4 and under Sections 147, 148, 149, 120(B) and 302 of the Indian Penal Code against accused Nos.5 to 7 for instigating appellant Nos.1 to 4 to commit aforesaid crime.

The Investigating Officer commenced the investigation, went inside the bus, visited scene of offence, prepared the site plan and recorded the statement of the witnesses. The bodies of the deceased persons were taken into custody. Thereafter, the dead bodies of both the deceased were persons subjected to the postmortem, which was prepared by Dr.D.S. Darji. During the investigation, the accused persons were arrested and the cloths and knives came to be recovered and the same were taken into possession as per the panchnama prepared in the presence of two panchas. The recovered articles were sent to the FSL Department and on receipt of the report of the FSL and based upon the oral statement and documentary evidence collected during the course of the investigation and after having found sufficient material against the appellants, the Investigating Officer submitted chargesheet as provided under Section 173(3) of the Code to the Court of Judicial Magistrate First Class, Jambusar.

As the Court of the Judicial Magistrate First Class has no jurisdiction to try the case, it committed the case to the Sessions Court, Bharuch, in accordance with the provisions of Section 209 of the Code. Upon committal, the Sessions Court, Bharuch framed the charge vide Exh:11 against the appellants for the offence, as aforesaid on 08.10.2001.

In order to bring home charge, the prosecution had examined as many as 19 witnesses and placed the various documentary evidence before the Trial Court. P.W.Nos.6, 7, 12 and 14 were projected/shown as eye-witnesses. However, during the course of their evidence before the Trial Court, P.W.Nos.6 and 12 were declared as hostile, as they did not support the case of the prosecution and thus, the case of the prosecution primarily rests upon the evidence of P.W.Nos.7 and 14 coupled with the evidence of hostile witness P.W.Nos.6 and 12 to the extent its supported the prosecution case. Of course, there are other evidences in form of P.M. Report, Report of FSL and other attendant circumstances brought on the record during the course of examination of other witnesses, which will be referred to at the relevant time.

The defence has not examined any witnesses in order to substantiate their case as to they being framed falsely due to political rivalry and further they were framed in this case by pressurizing the Conductor through P.W.No.16-Jaydevsinh Jitendrasinh Solanki, who acted at the instance of political party viz. BJP.

On conclusion of the trial, the learned Trial Judge pointed out the various incriminating circumstances appearing in the evidence against the appellants so as to obtain their explanation/answer to such circumstances as required under Section 313 of the Code.

The defence of the appellants was of denial, pleaded ignorance and all the accused persons specifically stated that the deceased persons had many enemies due to political and social rivalry and because of which, someone would have committed murder of the deceased persons and it was further specifically stated that after pressurizing the complainant i.e. Conductor of the bus, P.W.No.16- Jaydevsinh Jitendrasinh Solanki created false case against them at the instance of BJP.

We have heard Mr.M.M. Tirmizi, learned advocate and Mr.Vaibhav A. Vyas, learned advocate appearing for the appellants, at length and we have been taken through evidence both oral and documentary evidence adduced before the Trial Court. Based on evidence, we have examined respective contentions raised by the learned advocates for the respective parties to the proceedings in light of the various decisions cited at Bar.

While challenging the impugned judgment rendered by the learned Trial Court, the gist of the contention raised on behalf of the learned advocates appearing for the appellants can be summarized as under:-

12.1. While relying upon the evidence of P.W. No.6-Yusuf Ismailbhai-Complainant (Conductor), the complainant elicited in Paragraph-11 of the deposition recorded below Exh:53, it is urged that though incident alleged to have occurred at about 2:00 p.m. on 09.10.2000, the signature on the complaint at Exh:58 was put by the complainant at about 2:30 a.m. (late night of 10.10.2000). Whereas, as per the prosecution case, the said FIR is recorded at about 4:15 p.m. on 09.10.2000, as per the Station Diary Entry at Exh:100. While taking this contention, it is further urged that the FIR Exh:58 is got up at the instance of P.W.No.16-Jaydevsinh Jitendrasinh Solanki, who acted at the behest of BJP so as to falsely frame the appellants who belonged to the Congress Party, as FIR Exh:58 was not sent to the learned Magistrate immediately. So the FIR Exh:58, is ante-timed and same has been recorded after due deliberation and was then recorded ante-timed to give it colour of promptly lodged FIR.

12.2. The next contention raised is such that though the independent witnesses, who were easily available in the bus, the Investigating Agency chosen only highly interested witnesses having political rivalry and previous enmities. Therefore, non-examination of the independent witnesses is sufficient to raise serious doubt regarding prosecution case, and therefore, omission to examine independent witnesses is fatal to the case of the prosecution.

12.3. The next contention raised by the learned advocate appearing for the appellants is such that the presence of P.W.Nos.7 and 14 at Jambusar on the day of incident is highly unreliable and the prosecution failed to prove any reason for the presence of P.W.Nos.7 and 14 at Jambusar, either in order to purchase grocery by P.W.No.7 or to purchase ochada for the bullock and baba suits for children of P.W.No.14. Therefore, both P.W.Nos.7 and 14 being chance witnesses, no reliance could be placed on their evidence.

12.4. The next contention, based on evidence of P.W.No.7, recorded below Exh:60 in Paragraphs-11 to 13 and the evidence of P.W.No.14 recorded below Exh:71 in Paragraphs-6, 7, 10 and 14, raised by the learned advocates appearing for the appellants, is that the conduct of both these witnesses as exhibited in the bus, on the field and when they ran towards Kavi Police Station, was absolutely unnatural and unbelievable.

12.5. In the facts and circumstances of the case, the conduct of P.W.Nos.7 and 14 was abnormal and it was incompatible with the normal behaviour of a person who witness such heinous crime and, therefore, they are unreliable witnesses.

12.6. Lastly, it was submitted by the learned advocates appearing for appellant Nos.1 to 4 that there is a clear contradiction between ocular and medical evidence inasmuch as the nature of injuries shown on the body of the deceased were not possible by the muddamal knives vide Article No.13 which was armed by accused No.1, Article No.16 armed by accused No.2, muddamal Article No.19 armed by accused No.3 and muddamal Article No.22 armed by accused No.4. Therefore, medical evidence improbalized or at-least creates doubt about the truthfulness of oral evidence of prosecution witnesses and more particularly P.W.Nos.7 and 14.

While supporting the findings recorded by the leaned Trial Court leading to the holding the appellants guilty for the offence as charged, it is submitted by the learned APP Ms.C.M. Shah and also learned advocate Mr.Kirtidev R. Dave appearing for the widows of both the deceased that the FIR Exh:58 is recorded within two hours and fifteen minutes after occurrence of the incident by P.W.No.17-Bhavsingh Chhagansinh through Writer P.W.No.18 Vikramsinh Trambaksinh and coupled with the fact that the FIR Exh:58 was received by the concerned Magistrate on the next day of 11:00 a.m. i.e. on opening of the Court. The said FIR was recorded in the station diary vide entry Exh:100 at about 4:15 p.m. on 09.10.2000 and necessary reference of I-C.R.No.31 of 2000 along with the offences has been made in the inquest report Exh:21 which commenced at 5:15 p.m. and concluded at 7:00 p.m. This very fact proves that the FIR Exh:58 is not ante-timed and further it falsifies the serious allegations so as to frame the appellants in this offence by P.W.No.16-Jaydevsinh Jitendrasinh Solanki at the behest of BJP. It is further urged that P.W.No.17-Bhavsingh Chhagansinh (who is referred to as Shri Bilva by P.W.No.18) was not in regular charge of Kavi Police Station, but as regular P.S.I. Mr.Rathod was on leave, one Mr.Bilva i.e. P.W.No.17 was in charge of Kavi Police Station and on the instructions of Shri Bilva, he got recorded complaint Exh:58 through P.W.No.18 (writer).

13.1. It is submitted that the injury inflicted upon both the deceased persons was with the knowledge and intention to kill them. Further, looking to the fact that the injuries on both the deceased persons are on the chest i.e. very vital part of body, and therefore, this is nothing but pre-planned and premeditated attack to commit the murders of both the deceased and the same stands proved with the help of the oral evidence of P.W.No.15-Dr.Baldevbhai Shankarbhai Darji read with postmortem Exhs:75 and 76, wherein it is noticed by P.W.No.15-Dr.Baldevbhai Shankarbhai Darji to the effect that on the dead body of deceased-Musa Mohmmed Bada, there was an incised puncture wound on the left side of the chest. He further noticed fracture of three ribs having size of 15 cm X 3 cm X 5 cm, which reflects the force applied by accused No.1. Similarly, Postmortem Note of deceased-Gulam Raja Baji at Exh:76 shows that he sustained 13 injuries over his body and out of these, 11 were incised wounds one CLW and one injury of four abrasions and all those injuries were on or around the chest.

13.2. It was further submitted that both the witnesses P.W.Nos.7 and 14 are relatives of not only deceased persons, but they are also relatives of the appellants herein in one way or the other way. Therefore, there is no reason for both these witnesses to lie before the Court.

13.3. It was urged that though P.W.No.6-Conductor of the bus turned hostile, he admits in his evidence that the active role was played by accused Nos.1 to 3 in commission of the murder of the deceased persons.

13.4. While relying upon the evidence to the extent which supported the prosecution case, it is urged that P.W.Nos.7, 12 and 14 were present in the bus on the date of incident, and therefore, the submission with regard to the conduct of these witnesses and more particularly, P.W.Nos.7 and 14 to be unnatural or abnormal or that they are chance witnesses cannot be accepted. Since, the presence of P.W.Nos.7 and 14 stands proved beyond reasonable doubt at the time of incident, the prosecution established its case as to how appellant Nos.1 to 4 have actively participated in the commission of offence in question.

13.5. It is further submitted that all the appellants were present in the bus at the time of incident and both the deceased had gone to attend the Court in the case against the accused. In the return journey, the appellants boarded the bus with knives which proves the premeditation of the minds on the part of the appellants to eliminate both the deceased coupled with the fact that the part of the body selected for giving knives blow on the deceased persons proves intention to commit murder. In this offence, the liability of appellant Nos.5 to 7 cannot be lessened as they boarded the bus and they have not only instigated appellant Nos.1 to 4, but have used filthy and abusive language and have spoken in no uncertain terms to kill Gulam, and therefore, appellant Nos.5 to 7 being members of unlawful assembly, they have shared the intention to kill both deceased persons Gulam and Musa.

13.6. Lastly, it is urged that defence has made allegations of political rivalry and further allegations against P.W.No.16-Jaydevsinh Jitendrasinh Solanki that due to political pressure from BJP, the appellants are framed in this case. P.W.No.6-Complainant could not disprove the prosecution version as such motive is not probabalized by the defence during the course of the examination of the various witnesses and also more particularly, in their further statement recorded under Section 313 of the Code. In nutshell, after making such submissions based on evidence before the learned Trial Court, it is urged that the learned Trial Court has, after appreciating the evidence in view of the principle of law applicable for the appreciation in criminal trial rightly came to the conclusion to record the findings of guilt against the appellants and there is no reason or grounds shown by the defence to disturb the finding recorded by the learned Trial Judge leading to the impugned judgment, and therefore, the appeal deserves to be dismissed.

Before evidence adduced before the learned Trial Court is reappreciated, reassessed and reevaluated at our hands, we have noticed that the complaint is not admitted into evidence as a whole, but the learned Trial Judge has only exhibited signature part of the complainant. As such, defence side has not raised any contention in this regard, but we would like to mention here that the complaint has been duly proved through the evidence of P.W.Nos.6, 17 and 18 but the learned trial Judge failed to give proper exhibit and therefore, it shall be taken that the complaint given by P.W.No.6 stood proved in accordance with the provisions of law and so, same will be referred to as admitted into evidence as a whole and not only signature of the complainant.

First of all, we would like to deal with the arguments advanced on behalf of learned advocate Mr.Tirmizi appearing for appellant Nos.1 to 3 and 5 that the weapon Muddamal Article No.13 attributed to accused No.1 could not have caused the injuries to deceased-Musa Mohmmed Bada. The Muddamal Article No.13 is blunt on one side. According to P.W.No.15-Dr.D.S. Darji, the said Muddamal Article No.13 could not have caused the injury, which is noticed and described by him in Paragraph-2 of his evidence recorded below Exh:72. In Paragraph-4 at the bottom line of Page-4, it is admitted by Dr.D.S. Darji that the injury in question could have been possible with the knives having sharp edge on its both the sides. Similarly, the Weapons-Muddamal Articles-16, 19 and 22 attributed to accused Nos.2, 3 and 4 respectively, could not have caused the injuries, more particularly, as described in Page-2 of the evidence of Dr.D.S. Darji because Dr.D.S. Darji admitted on Page-5 of his deposition that Injury Nos.1 to 8 could not be caused by the said muddamal articles. Based on this evidence, learned advocate Mr.Tirmizi tempted to argue before us that there is conflict between the medical evidence and oral evidence in relation to the weapon used in causing injuries to the deceased persons and consequences thereof.

We are not at all impressed with these submissions for more than one reasons. Firstly, there is no presumption that medical witness or doctor is always witness of truth, and therefore, his evidence needs to be appreciated like that of any other witness as per Sections 3 and 114 of the Evidence Act. Secondly, while appreciating the medical evidence vis-a-vis ocular evidence in murder trial, the Hon ble Apex Court has consistently taken the view that except where it is totally irreconcilable with the medical evidence, oral evidence has primacy and in this regard, it is fruitful to reproduce observations recorded in Paragraphs-38 to 40 in case of Abdul Sayeed Vs. State of M.P. reported in (2010) 10 SCC 259 and reiterated by the Hon ble Apex Court in the case of Kuriya and another Vs. State of Rajasthan reported in (2012) 10 SCC 433 in paragraph 19 which reads as under:-

19. This Court has consistently taken the view that except where it is totally irreconcilable with the medical evidence, oral evidence has primacy.

In Abdul Sayeed v. State of M.P. this Court held as under: (SCC p.274, paras 38-40)

38. In State of U.P. v. Hari Chand this Court reiterated the aforementioned position of law and stated that: (SCC p. 545, para 13)

13. ...In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primary.

Thus, the position of law in cases where there is a contradiction between medical evidence and ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

40. In the instant case as referred to hereinabove, a very large number of assailants attacked one person, thus the witnesses cannot be able to state as how many injuries and in what manner the same had been caused by the accused. In such a fact situation, discrepancy in medical evidence and ocular evidence is bound to occur. However, it cannot tilt the balance in favour of the appellants.

Thirdly, in view of the evidence of P.W.No.15-Dr. D.S. Darji, it can be said that the medical evidences do not corroborate with the weapons seized by the Police. P.W.No.15-Dr.D.S. Darji in his examination-in-chief clearly opined that injuries noticed by him on the dead body of both the deceased could be possible with Muddamal Articles Nos.13, 16, 19 and 22 and in the cross-examination, the said witness stated that the injuries noticed by him could not be possible with the said weapons, but he specifically admits that the knives having sharp edge on both the sides could have caused the injuries. Meaning thereby, the version of the doctor is inconsistent with regard to the weapons used in the offence could have caused injuries in question or not.

Fourthly, We have further noticed that there is no cross-examination at the hands of defence so far as Injury Nos.9 to 13 are concerned. As such, an attempt is made to rely upon some of the alternative possibilities opined by Dr.Darji as to whether particular injury could be attributed to the particular weapon, or not. In any event, we are not agreeable to disbelieve the ocular evidence in view of the evidence of P.W.No.15-Dr.Darji because there is no such presumption that the doctor is always witness of the truth and further there is no universal rule whether ocular evidence should be relied upon or the medical evidence, as the same will depend upon the facts and circumstances of each case. Fifthly, the learned advocates appearing for the appellants could not point out hard and fast rule in this regard, but by and large, we have noticed and found in catena of decisions that where evidence of eye-witnesses is found credible and reliable and medical opinion points to alternative possibilities it cannot be accepted as conclusive. In the case of Solanki Chimanbhai Ukabhai Vs. State of Gujarat reported in AIR 1983 SC 484, the Hon ble Apex Court has held that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. Unless the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between weapons used vis-a-vis nature of injuries. Similarly, in the case of Darshan Singh Vs. State of Haryana reported in 1996 (10) SCC 283, wherein the Hon ble Apex Court has held that the opinion of doctor as to how an injury was caused cannot override unimpeachable testimony of eye-witnesses.

Considering the medical evidence of Dr.Darji, it appears that both the deceased persons died due to injuries suffered by them, and therefore, the death of both the deceased stands proved as homicidal death and as such, there is also no dispute on the part of the learned advocates appearing for the appellants that the death of both the deceased was homicidal death. In the case on hand, there is not much dispute on the part of the appellants that the death of both the deceased was homicidal death. Normally sufficient weightage needs to be given to the evidence of the doctor, who performed/conducted postmortem on the dead body of the deceased, but giving weightage does not ipso-facto mean that each and every statement made by medical witness should be accepted on its face value even if it is self-contradictory or when medical evidence is not consistent in its opinion. So the submission that the muddamal knives could not be caused injuries found on the dead body of the deceased persons, and therefore, ocular version of the eye-witnesses should be discarded cannot be accepted.

18. Reliance has been placed by the learned advocate for the appellants in the decisions rendered by the Hon ble Apex Court in the cases between Mayappa Dhondanna Padeade, Vs. State of Maharashtra, reported in AIR 1981 SC 173 and Thulia Kali Vs. The State of Tamil Nadu, reported in AIR 1973 SC 501. In the said cases, as a matter of fact, the Hon ble the Apex Court did not believe the prosecution story as to why the accused should leave the knife, exh. 1 in his bed in the house of Chakravarthi, PW-9 when he had ample opportunity to throw away the knife in some lonely place before arriving at the house of Chakravarthi. In the case of Mayappa, the Hon ble the Apex Court did not find any specific role assigned to the accused, either in FIR or in trial, when 22 persons were said to have participated in the assault. As such, the said decision was not on any law point but based on facts. The Hon ble the Apex Court held that the High Court was not right in converting the acquittal into conviction. An attempt is made by the learned advocate for the appellants that in the case on hand, after 18 days of the alleged offence, yet the strained knives were kept by the appellant Nos. 1 to 4 in their pockets. According to the appellants, this is improbable story. In fact, there cannot be any hard and fast rule as to what will be conduct of the accused after commission of the crime and no inference can be drawn that after commission of crime an accused person would act in a particular manner while dealing with the weapon used in commission of any crime. But in the case on hand, evidence of PW-7 and PW-14 is found by the trial Court and also by us reliable and truthful as to occurrence of the incident as recorded hereinabove.

Any variance in medical evidence or recovery effected by the police, cannot impeach the ocular version of eye-witnesses for the reasons we have recorded hereinabove.

19. Without being influenced by the submissions made by the learned advocates appearing for the appellants as to the weapons attributed to accused nos.1 to 4 could not cause the injuries to both the deceased, now we would like to see whether the evidence of eye-witnesses-P.W.Nos.7 and 14 is found to be credible and trustworthy and if yes, whether appellants are rightly convicted for the offences for which they are charged. So this takes us to examine the various contentions impeaching credibility of evidence of P.W.Nos.7 and 14 on various aspects, as recorded hereinabove. The present case rests on the evidence of two eye-witnesses viz. P.W.Nos.7 and 14. It is settled principle of law that the prosecution has to establish its case against the appellants beyond reasonable doubt, whereas on the other hand, the defence has to probabalize its defence as to framing of the appellants in the case falsely at the instance of P.W.No.16-Jaydevsinh Jitendrasinh Solanki at the behest of BJP. The defence also tried to probabalize its case by eliciting evidence as to pendency of civil/criminal cases and also disposed of criminal cases in which either deceased persons or their relatives were witness/accused and in some of the cases relatives of the appellants and/or appellants are shown as accused or witnesses in such cases to say that such dispute being a motive to frame the appellants. Based on evidence, more particularly of P.W.Nos.6, 7 and 14, the prosecution is not able to discover any particular or specific motive because the appellants and deceased persons have checkered history of various litigations, wherein some of the appellants and/or deceased persons have been involved either as accused or as witness. But fact remains that both the parties i.e. the appellants and the deceased persons were not at all in good terms. As such evidence as to motive would go a long way, but when there are credible and reliable eye-witnesses, the prosecution is not required to establish the motive. In other words, if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to occurrence could not be discarded only by reason of the absence of motive. It is well settled that no one knows what lurks in the mind of man . In fact, motive is in the mind of the accused alone and it may not be possible for the prosecution to explain what actually prompted accused to commit a particular crime. So looking to the evidence on record and more so, there is a direct evidence of the eye-witnesses showing and proving involvement of appellant Nos.1 to 4 in crime. P.W.No.6-Complainant though turned hostile, he in terms admitted in Paragraph-8, when he was under cross-examination at the hands of the learned APP before the learned Trial Court that a dispute was going on between appellant Nos.1 to 3 and deceased- Musa Mohmmed Bada on the other hand. So failure on the part of the prosecution to prove a particular motive to commit a crime would not stand in the way of the conviction because evidence of the eye-witnesses is clear and reliable. So far as the issue of motive is concerned, it is settled legal proposition that motive has great significance in a case involving circumstantial evidence but where direct evidence is available, which is worth relying, motive loses its significance.

20. Keeping in mind such background of this case, we are required to appreciate the direct evidence of P.W.Nos.7 and 14 so as to see whether their version is reliable and trustworthy or not, or it is tainted with some purpose.

21. The manner of occurrence as has been deposed by P.W.No.7 at Exh:60 shows that on the fateful day, he came at Jambusar Bus Depot at 1:00 p.m. In Paragraph-1, he deposed as to boarding of the appellants and deceased and P.W.No.12-Ahemad Motaji Pathan and P.W.No.14-Amirbhai Hasanbhai in the bus and further deposed that at that time, P.W.No.6-Yusuf Ismailbhai was a Conductor in the bus and he identified his ticket at Exh:57. He also deposed that the some other passengers also boarded in the bus at the time when the bus was on his way from Jambusar-Degam-Sigam. According to him, when bus left from Kavi at about 2:30 p.m. and when it reached a place near Gulam Patiya, appellant Nos.1 to 4 suddenly stood up and accused no.1-Henno @ Anwar Ali Amir Malek gave one blow with knife on the left side of chest of the deceased-Musa Mohmmed Bada, who was in sleeping mode at that time and so deceased fell down in the seat and at that time, accused Nos.2 to 4 gave knives blow on deceased-Gulam Raja along with whom this witness was sharing the seat. At the time when appellant Nos.2 to 4 were giving knives blows on deceased-Gulam Raja, P.W.No.12-Ahemad Motaji Pathan, who was sitting in the front seat of the deceased tried to intervene and he got injuries on his fingers, and therefore, the said P.W.No.12 went back. This witness further deposed that at the time of incident, the complainant-Conductor returned back to his seat and at that time, appellant Nos.5 to 7 were instigating by saying abusive and filthy language to kill Gulam and do not spare Hamir. P.W.No.14 almost in identical manner narrated the incident, as deposed by P.W.No.7. In the cross-examination of P.W.Nos.7 and 14, an attempt was made to elicit such answer so as to project/brand, this witness as chance witness. An attempt was also made to show that he is relative of the deceased persons and his conduct in and outside the bus was very unnatural and further elicited in the cross-examination that in earlier quarrels, one or other persons has been killed on the side of the appellants or the deceased persons.

22. Now it is also relevant and important to look into the evidence of the complainant recorded at Exh:56. As such, this witness has turned hostile, but in Paragraph-4 of his cross-examination by the learned APP, he admitted that he disclosed the names of the passengers in the complaint, who are known to him and who are residents of Village Degam. In the complaint at Exh:58, this witness has categorically given the names of appellant Nos.4 to 7 and P.W.Nos.7 and 14 as passengers travelling in the said bus on the fateful day and appellant Nos.4 to 7 and P.W. Nos.7 and 14 are residents of the Degam. In Paragraph-7 of his cross-examination by the learned APP, he admitted that appellant Nos.5 to 7 are his relatives in some or other capacity and lastly in Paragraph-8 of his deposition, he admitted that some dispute between appellant Nos.1 to 3 and deceased-Musa Mohmmed Bada was going on. Though this witness turned hostile, but he admitted presence of appellant Nos.1 to 3 in the bus on the fateful day and admitted presence of appellant Nos.4 to 7 and P.W.Nos.7 and 14 in indirect manner in Paragraph-4 of his cross-examination by the learned APP. In examination-in-chief, he deposed the role of appellant Nos.1 to 3 in clear terms.

23. The learned advocates appearing for the appellants vehemently emphasized on the fact that the prosecution failed to examine independent witnesses, and therefore, it furnishes sufficient ground to disbelieve the case of the prosecution. This submission cannot be accepted on two counts because there is no straitjacket formula which can be enunciated regarding the necessity to examine independent witnesses. It is day to day experience that witnesses are not always willing to come forward and to depose in the Court of law. Secondly, it has come in the evidence of P.W.No.7 that the deceased persons and accused Nos.1 to 5 are relatives of this witness in some or other capacity, and therefore, it is not gainsaid to say that he is not an independent witness. Similarly, P.W.No.14 is relative of accused Nos.4 to 7 and the deceased persons in some or other capacity. On analysis of the evidence of both these witnesses, we have found that both these witnesses are not amicably deposed towards the appellants though related to the deceased and in this case also to the appellants, so we are not and we cannot accept the submissions that the prosecution has examined only highly interested witnesses being relatives of the deceased persons. As such, the contention that the independent witnesses from the bus had not examined, is wholly misconceived because P.W.Nos.7 and 14 were independent witnesses and during their cross-examination, no reason has been elicited to infer that the witnesses have any agenda to implicate any of the appellants. It is well settled that if independent persons were not willing to say against the accused the prosecution cannot be blamed for non examination of independent witness as eye-witnesses and the evidence of the witnesses examined as eye-witnesses cannot be doubted, on that count.

24. The next limb of the submission was such that there was no reason on the part of P.W.Nos.7 and 14 at Jambusar on the fateful day, and therefore, according to the defence, both these witnesses are chance witnesses. In order to support this contention, it is urged that though P.W.No.7 had gone to Jambusar to purchase grocery and P.W.No.14 had gone to Jambusar to purchase ochada for his bullock and baba suit for children, no bills were produced to show such purchase and further P.W.No.14 and was not able to give the name of shop. Because of this reason, the defence has tried to improbabalize the version of P.W.Nos.7 and 14 that both had gone to Jambusar to purchase the items, as stated hereinabove. Merely because P.W.Nos.7 and 14 did not have the bills of the respective purchase or inability to show the shop from where respective purchase is made at the time of recording of their evidence, it cannot be inferred that both these witnesses had not gone to Jambusar to purchase the items as stated above on fateful day of the incident. In fact, P.W.No.14, in his deposition at Paragraph-6, said that he did not remember the name of shop but he deposed that he could point out the shop today and he further stated that the said shop is situated on the road from Police Chaowki to Depot. The said witness specifically deposed that though he did not remember the name of the shop, but it was of one Dabhoya, but he could not recollect the name of the shop owner. So the criticism on the part of the defence that P.W.Nos.7 and 14 are chance witnesses is not justified so as to discard their evidence.

25. Now, coming to the submissions on unnatural conduct of P.W.Nos.7 and 14 in the bus, in the field and at Police Station so as to disbelieve the presence of both witnesses in the bus on fateful day, as is evident, P.W.No.7 in the bus at the time of occurrence, he did not shout, stand up, inform to stop the bus and did not intervene to save the deceased persons till the incident was over. Further, as per the evidence of these witnesses, there was no danger to his life even then he ran away though he has no reason to run away. According to this witness after hiding in the field for one and half hours, he had gone to the Police Station and by opening the door of the bus, which was lying in the compound of the Police Station, he saw dead body of deceased-Gulam Raja and deceased-Musa Mohmmed Bada. However, he did not approach the police to narrate the incident. Based on this conduct, it is urged that P.W.No.7 is unreliable witness to the incident and if he witnessed the incident, his first reaction would be to inform the police about the incident and he would not have left the police station after seeing the dead body of the deceased and further at-least P.W.No.7 would not have slept after taking dinner. So it is urged by the learned advocates for the appellants that if the conduct of this witness is considered as a whole, the presence of this witness becomes absolutely doubtful. Similarly, the defence also attacked on the conduct of P.W.No.14, whose conduct was almost similar to P.W.No.7 and therefore, as their testimony is not corroborated by an independent witness, the presence of P.W.Nos.7 and 14 appears to be absolutely unnatural and doubtful. In the decision rendered by the Hon ble Apex Court in the case of Rana Partap Vs. State of Haryana reported in AIR 1983 SC 680, wherein the Hon ble Apex Court observed that every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far away from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Thus, every one reacts in his own special way. There is no strict rule of natural reaction. Keeping in mind, the aforesaid observation made by the Hon ble Apex Court in the case of Rana Partap (supra), the conduct of P.W.Nos.7 and 14 who witnessed the murder is at-least justified in the realm of appreciation of evidence. So the post conduct of the witnesses varies from person to person and different persons would react differently on seeing the violence, and therefore, their conduct would be different. So the conduct exhibited by P.W.Nos.7 and 14 either in the bus or in the field or at the Police Station, cannot be regarded as abnormal conduct, and therefore, there is no justification in the criticism that their conduct was unnatural. So, we are not in agreement with the submissions made by the learned advocates appearing for the appellants that the evidence of P.W. Nos.7 and 14 should be discarded on the ground that they did not act in a particular manner either in the bus or field or at the Police Station. To discard the evidence of P.W.Nos.7 and 14 on the ground that they did not react in any particular manner would be unrealistic approach to appreciation of their evidence in criminal trial, where the accused persons are facing serious charge of double murder.

26. Reliance on behalf of the learned advocate for the appellants has been placed on the decision rendered by the Hon ble the Apex Court in the case between Bahal Singh Vs. State of Haryana, reported in 1976 Cri.L.J. 1568. In that case, as a matter of fact, the Hon ble the Apex Court found that the presence of PW-4 and PW-5 at the time and place of occurrence, the trial Court entertained grave doubts and the same was further accepted by the Hon ble the Apex Court on appreciation of evidence and at the end, confirmed the acquittal order passed by the trial Court. In the said case, presence of PW-4 and PW-5 was found co-incidental to be at the place of occurrence at the time when it is taking place. Whether, a particular witness is a chance witness or natural witness, depends upon the facts and circumstances of each case. Again, we are unable to understand as to what assistance the learned advocate for the appellants wish to derive from the facts of this case. In the case on hand PW-7 and PW-14 are natural witnesses and we have found their evidence truthful and reliable so as to bring home the charge against appellant Nos. 1 to 4. So, in our opinion, since the decision rendered by the Hon ble the Apex Court is on the facts of the case there and therefore, the same cannot be made applicable here.

27. Apart from reliable and truthful evidence of P.W.Nos.7 and 14, another very material piece of evidence which directly links the appellants to the offence is that blood-stained cloths of deceased-Musa Mohmmed Bada and deceased-Gulam Raja Baji, cloths of Conductor P.W.No.6, cloths of accused Nos.1 to 3 and knives recovered at the instance of accused Nos.1 to 4 which were recovered as per panchnama Exhs:36, 38 and 50, were sent for serological examination to the FSL. The Chemical Analyst had submitted its report Exh:95 after such serological examination in which human blood Group-B, which was also blood group of both the deceased, was found on all these articles viz. pant, shirt of P.W.No.6, shirt, pant and underwear of deceased-Musa Mohmmed Bada, shirt, pant and underwear of the deceased-Gulam Raja Baji, shirt, pant of appellant No.1, shirt of accused no.2, shirt and pant of accused no.3 and on knives muddamal Article Nos.13, 16, 19 and 22 recovered from appellant Nos.1 to 4. This evidence clearly shows and proves involvement of appellant Nos.1 to 4 in this crime.

28. P.W.No.12-Ahemad Motaji Pathan whose deposition was recorded at Exh:68, turned hostile, but in Para-1 of examination in chief, he did state that on the date of incident, appellant Nos.1 to 3, and PW No.7 and 14 were in the bus. At this stage, it is relevant to recall the evidence of P.W.No.6-Complainant, who, in turn deposed in his examination in chief in Paragraph-2 that over and above, appellant Nos.1 to 3, P.W.No.12 also boarded the said bus. As such both P.W.Nos.6 and 12 turned hostile but one fact that stands proved is that on the fateful day, appellant Nos.1 to 3 and PW Nos.7, 12 and 14 were travelling in the bus as passengers. In the cross-examination of P.W.No.12 by the defence, nothing has been elicited from him to disbelieve the presence of P.W. Nos.7 and 14 in the bus or even challenge the presence of P.W.Nos.7 and 14 in the bus. Reliance on behalf of the learned advocate for the appellants has been placed on the decision rendered by the Hon ble the Apex Court in case of Gurpreet Singh Vs. State of Haryana, reported in 2002 Cri.L.J. 4688.

In that case, the Hon ble the Apex Court has laid down the proposition of law that it is now well settled that in the event portion of evidence not being consistent with the statement given under Section 161 and the witness stands declared hostile, that does not, however, mean and imply total rejection of the evidence. The portion, which stands in favour of the prosecution or the accused may be accepted but the same shall be subjected to close scrutiny. Again, we are unable to understand as to what assistance the learned advocate for the appellants wish to derive from the facts of this case. In the case on hand, reliance has been placed on the portion of evidence of PW-6 and PW-12 to the extent it supported the prosecution. When eye-witnesses PW-7 and PW-14 have categorically deposed before the trial Court as to role played by the appellant No. 4, no benefit can be extended to the appellant No. 4 because the complainant - PW-6 did not implicate the appellant No. 4 in the crime or the complainant has not attributed any role to the appellant No. 4. As such, this matter is appreciation of evidence as to which set of evidence shall be relied upon by the Court. So, we are not inclined to accept any portion of evidence of hostile witness PW-6 favouring appellant No. 4.

29. The learned advocates appearing for the appellants pointed out certain discrepancies or improvements in the evidence of P.W.Nos.7 and 14, which do not materially affect the case of the prosecution and are insignificant, and therefore, such discrepancies or improvements cannot be made the basis for doubting the prosecution case. In normal course while narrating details of any incident, there may occur minor discrepancies. Such discrepancies must essentially relate to the material particulars of the prosecution case. So any improvements or discrepancies so pointed out in the evidence of P.W.Nos.7 and 14 do not relate to the occurrence, and therefore, the same cannot be made a ground to doubt the testimony of the eye-witnesses. What is to be seen is whether the version presented in the Court was substantially similar to what was said during investigation. In the instant case, P.W.Nos.7 and 14 narrated the incident in the manner, they have seen in the bus and thus proved the involvement of accused nos.1 to 4 in the offence in question.

30. Now coming to the role of accused nos.5 to 7 in commission of this offence, it is evident that they have not taken any active part in the commission of the murder of both deceased. Before fastening any liability on the appellant Nos.5 to 7, it is necessary to look into their role as disclosed by P.W.Nos.7 and 14. On bare perusal of the incident as narrated by P.W.No.7 in his cross-examination, more particularly in Paragraph-3 thereof, it seems that at the time of occurrence of the incident, appellant Nos.5 to 7 stood up from their seat and by saying filthy language spoke to kill decease-Gulam and do not spare Hamir . P.W. No.14 more or less same role attributed to appellant Nos.5 to 7. At this stage, it requires to be noted that P.W.No.14-Amirbhai Hasanbhai is also called by name as Hamir as per his first line of evidence. In the case on hand, persons who were killed are Musa Mohmmed Bada and Gulam Raja Baji. It does not become clear from the evidence led by the prosecution whether there was any intention or attempt on the part of the appellants to eliminate Amirbhai @ Hamir Hasanbhai (P.W.No.14). Further, there is inconsistency in the evidence of evidence of P.W.Nos.7 and 14 as to when appellant Nos.5 to 7 started instigating appellants Nos.1 to 4. As per deposition of P.W.No.7, it is stated that appellant Nos.5 to 7 started instigating at the time of occurrence of the incident, whereas P.W.No.14 alleged such instigation after the incident was over.

31. Under these circumstances, each member of a mob may not necessarily be liable for the action of any other member of that mob. It is well recognized principle of law that every offence which is committed by a member of an unlawful assembly will not necessarily be ascribed to or vicariously fastened upon every other member of that assembly by using Section 149 of the Indian Penal Code. In other words, likelihood of causing of death by the nature of actions of members of assembly must be shown to be within the knowledge of a member, who is to be made vicariously liable for the death. Such unlawful assembly which the member held vicariously liable continues to associate himself with despite these actions seen by him or known to him. It comes on record that P.W.Nos.5 to 7 alleged to have spoken to kill Hamir whereas, the role attributed to P.W.Nos.5 to 7 was such that there was common object/common intention to eliminate Musa and Gulam.

32. The prosecution in the instant case could not specifically refer to any of the object for which the appellants are alleged to have formed the unlawful assembly. It appears from the evidence of the case that appellant Nos.1 to 4 took active participation in committing the offence of murder of the deceased persons-Musa Mohmmed Bada and Gulam Raja, as recorded hereinabove. So merely because accused Nos.5 to 7, who were in the bus instigated in the manner, do not refer to the common objects or intention to eliminate both the deceased persons cannot prove the existence of the common object specifically in the absence of any evidence of the prosecution in that behalf. The evidence is otherwise. At the cost of repetition, it may be stated that accused Nos.5 and 6 did not refer the name of the deceased-Musa Mohmmed Bada, but it is alleged that accused Nos.5 and 6 referred/spoken the name of Hamir. Under the circumstances, the members of the unlawful assembly can be held liable under Section 149 of the Indian Penal Code, if it is shown that all the appellants knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that common object does not require consent and/or common meeting of mind before the attack. It can develop even on the spot, but sharing of such an object by all the accused persons must be shown to be in existence at any time before the actual occurrence. In the instant case, there is inconsistency in the version of P.W. Nos.7 and 14 as to when appellant Nos.5 to 7 spoke abusive words at the time the incident was actually happening and further appellant Nos.5 and 7 did not speak the name of the deceased- Musa Mohmmed Bada at all.

33. In that view of the matter, we are not in a position to agree with the findings recorded by the learned Trial Court holding all the appellants guilty of the offfence punishable under Sections 147, 148, 149 and 302 of the Indian Penal Code. In such a fact situation and when Section 149 of the Indian Penal Code is not applicable to the facts of the case, there is no bar to convict appellant Nos.1 to 4, under Section 34 of the Indian Penal Code as evidence adduced by the prosecution discloses commission of offence in furtherance of their common intention to eliminate deceased persons and does not appear any intention to eliminate Amir/Hamir as he was not attacked though ample opportunity was available in the bus and in the field.

Suffice it to refer the decision rendered by the Hon ble Apex Court in the case of Dahari and others Vs. State of Uttar Pradesh reported in 2012(10) SCC 256 for the proposition of law that non-applicability of Section 149 of the Indian Penal Code is no bar for the purpose of convicting the accused under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code, if the evidence discloses commission of offence in furtherance of common intention of such accused. Identical fact situation exists in the present case inasmuch as the prosecution failed to prove that the number of members of the unlawful assembly were five or more, and therefore, the Trial Court ought to have convicted appellant nos. 1 to 4 with the aid of Section 34 of the Indian Penal Code as the prosecution has successfully established its case that appellant Nos.1 to 4 shared common intention to commit the crime of double murder.

34. Now lastly, the contention raised by the learned advocates for the appellants that FIR Exh:58 is ante-timed requires to be addressed. As it is proved that incident in question has occurred at about 2:00 to 2:30 p.m. on 09.10.2000 and thereafter, the bus was brought to Kavi Police Station. P.W.No.17-Bhavsingh Chhagansinh, who was P.S.I. in charge of Kavi Police Station, recorded the complaint with the help of Writer (P.W.No.18). Recording of the complaint was concluded at 4:15 p.m. on 09.10.2000. The extract of station diary at Exh:100 shows that the offence came to be registered at 4:15 p.m. on 09.10.2000 and the same was registered as complaint being I.C.R.No.31 of 2000. Reference of I.C.R.No.31 of 2000 has been made in inquest panchnama Exh:21 which commenced at 5:15 p.m. and concluded at 7:00 p.m. on 09.10.2000. As such, there is no allegation against P.W.No.17- Bhavsingh Chhagansinh, who recorded the complaint at Exh:58. According to whose evidence, he started recording the complaint from 3:00 p.m. and concluded at 4:15 p.m. Similarly, there is no such suggestion which has been made to the panchas of the inquest panchnama so as to disbelieve the timing of inquest panchnama between 5:15 p.m. to 7:00 p.m.. Similarly, FIR Exh:58 is transmitted to the local Court on 10.10.2000 and it has been received at 11:00 a.m. So on facts, we have not found that the FIR Exh:58 was ante-timed and has not been recorded between at 3:10 p.m. to 4:15 p.m. So considering the external checks like inquest panchnama, evidence of panch-witness and evidence of P.W.Nos.17 and 18, we are satisfied that the FIR is not ante-timed as alleged nor there is a delay in sending the FIR to the Magistrate. In nutshell, nothing has been pointed out by the defence to indicate so as to infer that the prosecution story is improved so as to frame the appellants in this crime after due deliberation and consultation, as alleged.

35. In further statement of appellant Nos.1 to 4, they have raised substantial defence to the effect that deceased persons had political and social enemies and so somebody could have killed them for which, appellant Nos.1 to 4 are not aware of the said facts. They have categorically stated in their further statement that the present case has been falsely created by P.W.No.16-Jaydevsinh Jitendrasinh Solanki, who at the behest of BJP pressurized P.W.No.6-Conductor to lodge the present complaint at Exh:58 against them. In this connection, we have scrutinized the evidence of P.W.Nos.16 to 18. As such, there is no substance in this defence for the simple reason that when the complaint came to be recorded by P.W.No.17-Bhavsingh Chhagansinh, P.W.No.16-Jaydevsinh Jitendrasinh Solanki was not present at the Police Station. As such, at the relevant point of time, one Mr.Rathod was P.S.I. of Kavi Police Station, but as he was on leave, P.W.No.17 was in-charge P.S.I. of Kavi Police Station who recorded the complaint Exh.58. In view of such evidence, it cannot be inferred that P.W.No.16-Jaydevsinh Jitendrasinh Solanki has been made instrument at the behest of BJP to create false complaint by pressurizing the Conductor (P.W.No.6-Complainant). In fact, though P.W.No.6 turned hostile and did not support the prosecution case, he has specifically denied such suggestion made by the defence that at the instance of P.W.No.16, he filed complaint in the present form. This evidence rules out any possibility of falsely roping in the appellants and more particularly, appellant Nos.1 to 4 in the present crime at the behest of BJP through P.W.No.16. According to the evidence of P.W.No.16, he reached at Kavi Police Station at about 4:05 p.m., after receiving message as to murder of two persons in S.T. Bus at about 3:30 p.m. At about 3:15 p.m., on the date of incident, P.W. No.16 was at his home at Jambusar and on receipt of the message he left Jambusar at 3:30 p.m. so as to reach at Kavi Police Station. According to P.W.No.16, he came at Kavi Police Station at about 4:15 p.m. and in the meantime, recording of the complaint was concluded. In Paragraph-4 of the evidence of P.W.No.16, it becomes evident that at 5:00 p.m. he was directed to take charge of the investigation and accordingly, he took the investigation in his hand from P.W.No.17. This evidence clearly indicates that P.W.No.16 came into picture only at 5:00 p.m. and before that the complaint Exh:58 was already recorded. So all the allegations made against P.W.No.16 as to creating false complaint at the behest of BJP stands disproved and it seems that the appellants made an attempt to save their skin under political colour.

36. Reliance on behalf of the learned advocate for the appellants has been placed on the decision rendered by the Hon ble the Apex Court in the case between Meharaj Singh Vs. State of U. P., reported in (1994) 5 SCC 188. In that case, as a matter of fact, the Hon ble the Apex Court found on facts that the FIR was anti-timed and it came to be recorded later on, after due deliberation and consultation and was then, anti-timed to give it the colour of promptly lodged FIR. So, the Hon ble the Apex Court gave benefit of doubt to the appellant not only on the count that FIR was anti-timed but there was failure on the part of the prosecution to prove other evidence to connect the appellant with the crime. We are unable to understand as to what assistance the learned advocate for the appellants wish to derive from the facts of this case. We are to deal with the present case on its own fact. So this decision is not helpful to the appellants in view of the peculiar facts proved in the case on hand.

37. In light of the above discussion, the prosecution has successfully established that cause of death of the deceased-Musa Mohmmed Bada was due to blows to vital organs like heart, lungs causing acute blood loss shock and death of deceased-Gulam Raja Baji was due to injury to carotid vessels causing acute blood loss shock. The medical expert Dr.Darji has deposed that there are internal injuries corresponding to the external injuries. According to him, each of the injuries suffered by both the deceased persons were sufficient to cause death in the ordinary course of nature to cause death of the deceased persons. The evidence of eye-witnesses P.W.Nos.7 and 14 and the evidence of P.W.Nos.6 and 12 to the extent it supported the prosecution case proved the active participation of appellant Nos.1 to 4 in committing murder of deceased persons-Musa Mohmmed Bada and Gulam Raja Baji in the bus. Further, all the articles recovered during the course of the investigation, human blood of Group-B which was found on all the incriminating materials was blood group of the deceased persons. We have not found any conduct of P.W.Nos.7 and 14 as unnatural so as to doubt their presence in the bus at the time of incident in question. Non-examination of independent witnesses is not fatal to the prosecution case in such type of a case. P.W.Nos.7 and 14 are natural witness when the incident in question occurred and considering the evidence, it cannot be said that they are chance witnesses. We have not found any illegality on the part of Investigating Agency at the stage of investigation so as to implicate appellant Nos.1 to 4 in this case either due to political rivalry or for any other reason. At the same time, we have found that the prosecution has failed to bring home charge against appellant Nos.5 to 7 for instigating appellant Nos.1 and 4 to eliminate deceased persons. So, learned Trial Judge committed mistake in holding that accused nos. 5 to 7 were members of the unlawful assembly and in prosecution of common object of such assembly, accused nos.1 to 7 committed the offence of rioting with deadly weapons. But we have found that appellant Nos.1 to 4 have shared common intention to eliminate both the deceased persons, and therefore, while maintaining their conviction under Section 302/34 of I.P.C. we set aside the order of the learned Trial Court convicting them for the offence under Sections 147, 148 and 149 of the Indian Penal Code and of course, clean-chit to the appellant Nos.5 to 7.

38. Accordingly, we allow the appeal-partly and acquit appellant Nos.5 and 6 from all the charges alleged against them giving them benefit of doubt and appeal of the appellant No.7 stands dismissed, as abated. Bail bonds of appellant nos.5 and 6 stand cancelled. Fine, if any, paid by appellant Nos.5 to 7 be refunded. The appeal of appellant Nos.1 to 4 fails and accordingly, dismissed and they are directed to serve their remaining sentence. However, the conviction and sentence imposed under Sections 147, 148, 149 and 302 are altered under Section 302/34of IPC and each of the appellant nos. 1 to 4 are directed to suffer rigorous imprisonment for life and to pay fine of Rs.2,000/- in default to undergo simple imprisonment for 6 months.

(M.R.SHAH, J.) (S.H.VORA, J.) rakesh/ Page 51 of 51

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