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9. In addition to this evidence, the prosecution also examined four eye witnesses i.e. PW-10 Bhikhabhai Govindbhai Solanki at exh. 114. According to the prosecution case, this PW-10 Bhikhabhai Govindbhai Solanki at exh. 114 and PW-11 Din Mahmad Gul Mahamad Sindhi at exh. 115 were the witnesses who intervened and the prosecution witnesses could be escaped from further beating, however, PW-10 Bhikhabhai Govindbhai Solanki and PW-11 Din Mahmad Gul Mahmad have not supported the prosecution case. The prosecution obtained permission from the court to cross-examine them. PW-12 Mahmad Karim Malek, driver of the Bus bearing No. GRR-8491 of State Road Transport Corporation, has been examined at exh. 116, wherein according to the prosecution case, the quarrel took place and prosecution witness PW-13 Ahmadali Zulfikarali is examined at ex. 117, who was the Conductor of the said Bus. It is the prosecution case that both the PW-12 and 13 were the eye witnesses of the incident and they in their above said bus, shifted the injured to Community Health Centre, at Amod. However, both these witnesses i.e. PW-12 and PW-13 i.e. Mahmad Karim Malek and Ahmadali Zulfikarali did not fully support the prosecution case and made improvement to the extent that an attack was lodged by a mob and not by the accused on injured though they admitted that the injured were shifted by them to Community Health Centre, Amod. PW-20 Jan Mahmad Gul Mahmad Sindhi who is examined at exh. 124 who is also an eye witness according to the prosecution case, but did not support fully to the prosecution case and stated that a mob attacked the injured and not accused.

2. Bruise 4cm x 2cm on docsal side of right thigh. Bruise is of reddish colour.

The witness was confronted by the weapons i.e. Muddamal Articles nos. 3 to 9 and stated that the injuries which the patient received are possible by the above said weapon. He further stated that the injuries were of such a nature which were not sufficient in the ordinary course to cause death. In examination in cross, he admitted that except injuries to Mahmad Umarji and Ibrahim Umarji, the injuries received by all other injures were simple nature. At the instance of the accused, he replied that he had case papers of the injured and was ready and willing to produce the same on record. At the instance of the accused, these case papers were produced by the witness vide ex. 136 to 142. He admitted that none of the injured stated author of the injuries caused to them. Ex. 138 case papers belonged to Umarji a note has been made by him that in case history it is stated that a mob attacked him. Likewise, in case papers at ex. 139 pertaining to Inayat Ibrahim, there is a note that Inayat Ibrahim in case history said that mob attacked him. He also admitted that none of the injuries caused to any of the injured could have been caused by sharp cutting weapon.

28. Having perused and carefully taken into consideration and scanning the evidence of the prosecution in the case, now the contention raised by ld. advocate for the appellants Mr. BS Patel and ld. APP Mr. IM Pandya are required to be seen.

29. Ld. Advocate Mr. BS Patel vehemently and extensively argued and attacked the impugned judgment. He contended that the first and foremost glaring infirmity which prosecution case carries is in respect of the conflict and variance between the medical evidence and the evidence of eye witnesses. My attention has been drawn to the injuries noticed by the PW-22 Medical Officer, Community Health Centre, Amod in respect of PW-1 and other injured. It was contended that as per the medical certificate ex. 131 of Community Health Centre, Amod, PW-1 Ibrahim Umarji Isap had two injuries, while Medical Officer, Civil Hospital, Bharuch noticed six injuries which is evident from ex. 88. It was also contended that the prosecution witness Saheraben Ibrahim has lacerated wound, as examined by the Medical Officer, Community Health Centre, Amod, while according to the Medical Officer, Civil Hospital, Bharuch, she had incised wound which is evident by ex. 90 certificate. It was also contended that so far as the injured witness Inayat Ibrahim is concerned, he also had two injuries as per certificate ex. 132 of Medical Officer, Community Health Centre, Amod. While as per the certificate ex. 95, injured Inayat Ibrahim had in all six injuries in the opinion of the Medical Officer, Civil Hospital, Bharuch. It was contended that the injured witnesses specifically and categorically stated that the weapon like tabal and sword were used in the quarrel. When according to the ld. advocate for the appellants, there were no injuries to any of the injured by sharp cutting weapon. Muddamal Article tabal is a weapon like an Axe. The say of the injured witness therefore is not creditworthy because the say of the injured eye witness are not corroborated by the medical evidence. He relied upon a decision of the Apex Court in the matter of Hallu and Ors. v. State of Madhya Pradesh, as reported in AIR 1974 SC 1936 and argued that when a witness states that an axe was used, there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as a blunt weapon. Therefore, it is contended that when an eye witness states that weapon like tabal and sword were used than in absence of clarification it should be taken that sharp-edged of the weapon were used. But according to the medical evidence in this case, there are no injuries by sharp cutting weapon or incised wound. The say of the eye witnesses, according to the ld. advocate for the appellants, cannot be believed because the same is contradicted by the medical evidence. On probability, it was contended that when seven accused alleged to have attacked the prosecution witnesses with the weapons which are attributed to accused, it is difficult to believe that none of the prosecution witness would suffer grievous injuries. It was contended that only one witness i.e. Mustak had grievous injury of fracture, except that, according to the medical evidence, none of the injuries suffered by the injured witnesses was of grievous nature. The case of the prosecution, therefore, is not probable and doubtful. According to the ld. advocate for the appellants, the evidence of prosecution are in two sets, one set is of injured eye witnesses who are interested, while second set of evidence is of independent eye witnesses. It was contended that the independent eye witness PW-10 Bhikhabhai Govindbhai, PW-11 Din Mahmad Gul Mahmad, PW-12 Mahmad Karim Malek and PW-13 Saiyedali Zulfikarali have not supported the prosecution version and have stated that, in fact, a mob of 50 to 100 persons attacked the injured and caused injuries to witnesses. It was contended that the evidence of the independent witnesses is reliable and is more probable that the incident had occurred as narrated by the independent eye witnesses referred by him. It is contended that on the otherside, evidence of interested injured eye witnesses whose evidence is required thorough scrutiny. On scrutiny of the evidence of interested injured eye witnesses, it is found that the same is tainted by contradiction which lends no credits to their say. According to the ld. advocate for the appellants, the first contradiction in respect of conflict between the medical evidence as well as ocular evidence about the use of the weapon. He pointed out contradiction amongst 7 eye witnesses. It was stated that according to the prosecution witness no. 1 Ibrahim, appellant no. 5 inflicted the blow of tabal to witness Mustak and appellant no. 3 inflicted sword blow to PW-6 Inayat. This is the version of PW-1 in the complaint ex. 156, while in evidence PW-1 stated that the appellant no. 5 inflicted blows by hockey, appellants no. 4 and 2 inflicted sticks blows on witness Inayat. The appellant no. 1 inflicted blows to witness Mustak. He draw the attention of this court on deposition of PW-5 Mustak, PW-6 Inayat, PW-7 Huriben, PW-8 Sayaraben and PW-9 Salim in respect of who inflicted blows with which weapons. Some contradictions were brought to the notice, for example, PW-1 stated in evidence that appellants no. 4 and 2 attacked Inayat with sticks but this fact has not been stated by PW-5 Mustak. While PW-5 Mustak is not stating anything about the injuries caused to Inayat and Huriben. While PW-6 Inayat attributes two injuries of appellant no. 1 by tabal to PW-1. PW-6 Inayat also makes improvement to the extent that he stated that the appellant no. 1 inflicted fist and kick blows to PW-1 Ibrahim. In respect of the use of the weapon and injury, attention was also drawn upon the deposition of PW-7 and 8. It was stated that, therefore, each witness contradicts the other in a manner that one witness did not say about particular injury, while the other witness describes the same. On that count also, the evidence of injured eye witnesses is doubtful. It was contended that important aspect in contradiction is in respect of deposition of PW-7 Huriben who, in her examination in cross admitted that she was attacked by mob of 150 to 200 persons attacked her. She also admitted that there was a crowd of 200 persons. She also admitted that in this scuffle where crowd of 150 to 200 persons were involved, she could not recognised who was fighting with whom and what weapons were used. According to the ld. advocate for the appellants, the whole prosecution case so far as it relates to injured eye witnesses destroyed by the evidence of PW-7 Huriben and this fact supports the version of independent eye witness who stated that a mob of 100 to 150 persons attacked. Likewise, it was contended that PW-5 Mustak injured witness, in his deposition stated that when he reached along with other at bus stand, the bus has already at the bus stand and he found his father in the bus blood smeared and he did not know that who caused those injuries and, therefore, it was contended that in these circumstances and with this contradiction, it is not probable at all that PW-5, PW-6, PW-8 and PW-9 were eye witnesses of the incident. The case of PW-1 is falsified by PW-7 Huriben on account of contradiction above referred. On account of probability, therefore, it is contended that PW-12 Mahmad Karim Malek and PW-13 Saiyedali Zulfikarali, driver and conductor of the said bus involved in the incident, are absolutely independent witnesses and produces true account of the incident occurred. There is no reason to disbelieve hem and above all, they are not declare hostile witnesses by prosecution. The evidence of PW-11 and PW-12 appears to be unimpeachable and in view of this evidence, the evidence of injured witnesses may not be believed. It was also contended that PW-10 Bhikha Govind and PW-11 Din Mohmad Gul Mahmad also are independent witnesses. As per prosecution case itself, both of them intervened and rescued the prosecution witnesses. But none of them supported the prosecution version though they are declared hostile witnesses. In these circumstances as contended by ld. advocate for the appellants, the evidence of injured witnesses is not creditworthy, while second set of evidence that is version given by the independent witnesses who are eye witnesses, according to the prosecution, is creditworthy. On this count, ld. advocate relied on a decision of the Apex Court in the matter of Herchand Singh and Anr. v. State of Haryana, as reported in AIR 1974 SC 344, wherein the Supreme Court held that "in a case where the prosecution leads two sets of evidence, each one of which contradicts the other, it is difficult to found the conviction of the accused." It was, therefore, contended that prosecution led two sets of evidence, one of the injured eye witnesses and the other about gathering of the mob and attack by the mob. In this circumstances, according to the ld. advocate for the appellants, the accused are entitled to benefit of doubt.

34. Ld. advocate for the appellants advanced argument as an alternative argument and on summing up he contended that this is a case of clear acquittal wherein the evidence of injured witnesses being in conflict with medical evidence and contradictory with each other, is not creditworthy, while the version of independent witness is believable and on probability the accused are implicated in this case due to enmity, when according to the independent witnesses, the mob attacked the injured witnesses. He also relied upon the decision of the Supreme Court in the matter of Deepak Kumar v. Ravi Virmani and Anr., as reported in (2002)2 SCC p. 737. It is submitted that appeal be allowed.