1. Thirteen accused convicted by the High Court preferred a special leave petition. This Court granted leave only in respect of original accused 4, 9, 12 and 13 i. e. petitioners 10, 11, 12 and 13 and dismissed the same in respect of others. Those four petitioners (10, 11, 12 and 13) are the appellants in this appeal before us. An incident took place on June 3, 1979 at about 11.30 a. m. at Village Matoda, Ahmedabad District, during the course of which one Cheha Mana, the deceased in the case, was killed and two other persons who figured as PWs 1 and 4 received a number of injuries on vital parts. In relation to this incident, 14 accused were challaned and tried for offences punishable under Sections 147, 148, 302 read with Sections 149, 324 and Section 323 read with Section 149 IPC. The trial court acquitted A-4, A-9, A-12, A-13 and A-14 and convicted the remaining accused under Section 326 read with Section 149 IPC and also under Sections 324 and 326 IPC. Under Section 326 IPC the convicted accused were sentenced to two years RI and in respect of the other offences they were sentenced to various terms of imprisonment. The convicted accused preferred an appeal and the State also preferred an appeal against the acquittal of all the fourteen accused in respect of the murder charge. The High Court confirmed the acquittal of A-14 and set aside the acquittal of A-4, A-9 and A-12 & A-13 and allowed the State appeal and convicted all the remaining 13 accused under Section 304 Part I, IPC read with Section 149 IPC and sentenced each of them to undergo four years RI. All of them, as mentioned above, preferred the special leave petition but we are left with only these four appellants, as stated above

2. The prosecution case is as follows. The accused are all interrelated. They as well as the deceased and the material witnesses belong to the same village. One day prior to the date of the incident, Ajmal (A-1) scolded Raman (PW 1) who had gone for watering his cattle and gave slap to him as he did not remove his cattle. Next at about 10.00 a. m. again PW 1 had gone for watering his cattle and at the same time, A-1 had also gone for watering his cattle and was returning home after his cattle had drunk water. At that juncture, A-1, A-2 and some others surrounded Raman (PW 1) and A-1 gave a dharia blow on his head and when PW 1 shouted, his brother and the deceased came there. PW 4 also came there and some others gathered there. The deceased snatched away the dharia from the hand of A-1 and threw it away but that hurt A-1 and his brother. Thereafter, the accused went to their respective houses and 10-15 minutes later when PW 1, the deceased and PW 4 were sitting outside their house, all the fourteen accused armed with spear, dharia and sticks came uttering words and on seeing them the deceased, PWs 1 and 4 concealed themselves in the house of their uncle Chhela Vala. The uncle tried to persuade the accused persons but they did not agree. Some of them climbed the roof of the house of Chhela Vala and made a big hole in the roof and gave the blows with dharia, spear and sticks on the deceased as well as on PWs 1 and 4. One of the persons cried that the deceased had expired. Some of the accused who were outside broke open the door and went inside and gave the blows with sticks and spear to the deceased and PWs 1 and 4. During the occurrence, the accused were also throwing stones on the deceased and PWs 1 and 4. After committing the offence, the accused left the scene of occurrence. A report was given to the police and they arrived and sent the injured persons in a jeep and they were transferred to the civil hospital at Ahmedabad later. The dead body was lying there which was sent for post-mortem and the doctor (PW 3) who conducted the post-mortem found as many as 32 injuries on the deceased and on internal examination he found a fracture of the right side frontal and temporal bones and comminuted fractures at the base of the skull of right temporal and frontal bones. The sternum was also fractured at the level of third intercostal space and the doctor opined that the deceased died due to these injuries which were sufficient in the ordinary course of nature to cause death. The doctor who examined PW 1 found on him three injuries on the chest, middle finger and thigh. On PW 4, the doctor found four incised injuries and one lacerated wound over the temporal region, parietal region, right hand and on the tibia. The accused were arrested and after the completion of the investigation, the charge-sheet was laid. The prosecution mainly relied on the evidence of two injured witnesses and the accused pleaded not guilty

3. The trial court acquitted original accused 4, 9, 12 and 13 (the appellants before us) on the ground that the two injured witnesses have made some improvements regarding the motive aspect as well as overt acts attributed to them. The learned trial Judge testing their version regarding the overt acts in the light of the medical evidence and also having considered some of the omissions as well as improvements acquitted them. So far as A-14 is concerned, these two injured witnesses deposed that he dealt a blow with an axe and the doctors evidence ruled out that axe was being used and in that view of the matter he was also acquitted

4. The High Court confirmed the acquittal of A-14 but regarding the presence and part played by the appellants, the evidence of PWs 1 and 4 was again considered in detail and the High Court held that the reasons given by the trial court are unsound and do not stand scrutiny. In that view of the matter the High Court found them also guilty. Coming to the nature of the offence, having regard to the fact that the deceased was done to death after inflicting a number of injuries and also having regard to the nature of the injuries on PWs 1 and 4, the High Court held that the common object of the unlawful assembly was to commit the culpable homicide and accordingly altered the conviction and convicted each of them under Section 304, Part I, IPC as stated above

5. The learned counsel for the appellants submits that the view taken by the trial court regarding the acquittal of the appellants is reasonable and since a large number of accused were implicated certain tests applied by the trial court are sound and, therefore, the view taken by the trial court ought not to have been disturbed by the High Court

6. This is a case where a large number of accused, as many as 13 or 14 variously armed went to the house where the deceased as well as PWs 1 and 4 were sitting and in a high-handed manner climbed the roof of the house in which the deceased and the two injured witnesses had taken shelter and made a big hole in the roof and then attacked three persons. In such an occurrence even if the eyewitnesses have improved and have not given consistent version regarding the part played by each of the accused that by itself will not be a ground to acquit the accused. The presence of PWs 1 and 4 has not been in dispute and having regard to the number of injuries on them, it would have been impossible for the witnesses to give a detailed account and in any way if while giving some account they have improved, or there are some omissions, that would not be a ground to acquit the accused persons whose names have been consistently mentioned throughout in a case of this nature and Section 149 IPC is applicable here. What the court has to see is whether the assailants formed into unlawful assembly and shared the common object either by participation or by being present as members of unlawful assembly knowing that such common object would be to cause grievous hurt. As matter of fact, the trial court rightly by being present as members or unlawful assembly knowing that such common object would be to cause grievous hurt. As a matter of fact, the trial court rightly observed that the witness is not there to count blows and had no photographic memory as to what happened and in such a case only general evidence is given. Having made such an observation, the trial court, however, proceeded further to state that if the version given is contradicted by the medical evidence then the evidence has to be naturally discarded. We do not find such direct conflict between the medical evidence and the witnesses. Even otherwise, we agree with the High Court that the evidence of PWs 1 and 4, the injured witnesses, is generally acceptable regarding the presence and participation of the appellants in the sense that they continued to be the members of the unlawful assembly. Therefore, we are unable to agree with the learned counsel that the view taken by the High Court in any way is erroneous. There are no grounds to interfere. In the result, the appeal is dismissed.