M.R. Shah, J.(Oral)Both the appeals arise out of the impugned judgment and order passed by learned Sessions Judge, Patan (hereinafter referred to as "the trial Court") passed in Sessions Case No.27 of 2008. One appeal is preferred by the original accused against their conviction by the trial Court and the another is preferred by the State for enhancement of sentence imposed by the trial Court while convicting the original accused. Both the appeals are, therefore, decided and disposed of by this common judgment.

2. At the outset it is required to be noted that all accused Nos.1 to 14 were in fact charged by learned trial Court for the offences under sections 147, 148, 307, 324, 325, 504, 506(2), 427, 452, 337 and 149 of the Indian Penal Code (IPC) and section 30(A) of the Arms Act, however, at the conclusion of trial, by the impugned judgment and order, learned trial Court has convicted all the accused and imposed sentence as under:

1 to 14

u/s147, 148 IPC

Fine of Rs.1000/- i/d no separate imprisonment.

1 and 7

under section 326 r/w 149 IPC

R.I. Of 2 years + Rs.35,000/- (towards compensation)

2 to 6 and 8 to 14

under section 326 r/w 149 IPC

R.I.of 2years + Rs.500/- i/d 10 days.

1 to 14

u/s 324 and 149 IPC

Fine of Rs.2000/-, i/d 15 days

1 to 14

u/s 325 r/w 149 IPC

R.I.of 2 years

1 to 14

under sections 504, 506(2) r/w 149 IPC

No separate sentence is passed as the accused are already convicted under section 326 IPC.

3. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the original accused have preferred Criminal Appeal No.947 of 2011. At this stage, it is required to be noted that, so far as original accused No.1 Sangrambhai Jakshibhai Bharward is concerned, he has passed away during pendency of the present appeal and, therefore, vide earlier order passed by this Court, present appeal was ordered to be abated qua original accused No.1. Therefore, present appeal is required to be considered qua original accused Nos.2 to 14.

3.1 Having not satisfied with the quantum of sentence imposed by learned trial Court, the State has preferred Criminal Appeal No.969 of 2011 under section 377 of the Cr.P.C for enhancement of the sentence imposed by learned trial Court.

3.2 At this stage it is required to be noted that, as such the original complainant-injured eye witness also preferred Criminal Appeal No.935 of 2011 challenging the impugned judgment and order acquitting the original accused for the offence under sections 307, 452 etc. of the IPC, however, the same came to be withdrawn in view of the State having filed appeal for enhancement of sentence and with a view to assisting learned A.P.P.

4. As per the case of prosecution, prior to 2 to 3 days of the incident in question, tractor of the son of original complainant, i.e. Ganeshbhai, touched the motorcycle of one Bharvad Ratnabhai Bhikhabhai and due to said incident, by keeping a grudge, on 10.10.2007 at about 12.30 hours at village Panchasar, assembled and formed an unlawful assembly and initially went to the place of said Ganeshbhai with deadly weapons, like tamancha, dharia and sticks. However, Ganeshbhai did not open his house and they, with a common object, proceeded further and went to the place of original complainant Gelabhai and attacked him. As per the case of prosecution and the original complainant, original accused No.1 was armed with a tamancha, original accused No.7 was armed with a dharia and other accused were armed with sticks. As per the case of prosecution, original accused No.1 advanced tamancha and told other accused to beat the complainant who was sleeping in the courtyard. All the accused thus attacked the complainant and caused serious injuries on him. Thereafter, they had thrown the original complainant/injured eye witness who at the time of incident was aged about 80 years and gave threats and thereafter all of them went back/returned with threats that he will be killed. The injured eye witness Gelabhai was taken to Civil Hospital, Mehsana where he was given treatment. He remained as an indoor patient for more than 40 days. He sustained number of fractures on legs as well as hands and other injuries. He lodged a complaint which was recorded by Police Sub Inspector, Samir Police Station Shri Nathabhai Harjibhai Makwana, PW.13, which was subsequently registered as an FIR being C.R.I No.164 of 2007 against all the accused named in the complaint for the offences under sections 397, 325, 324, 504, 506(2) 147, 148, 149 of the IPC and section 30(A) of the Arms Act. The said FIR was registered by PSO Mafabhai Kalubhai. Offence under section 307 of the IPC was also added. The aforesaid FIR was investigated by one Nathabhai Harjibhai Makwana, PSI, Sami Police Station, PW.13. He also recorded statements of concerned witnesses. He prepared panchnama of the place of incident. He also collected sample of sand having bloodstains. He also recovered clothes of the injured eye witness. He tried to arrest the accused and visited the residence of the accused, however, they were not found. Thereafter, during the course of investigation, he submitted an application before learned JMFC to include the offences under sections 337 & 427 of the IPC and thereafter for the offence under section 452 of the IPC also. At the conclusion of investigation, the investigating officer filed chargesheet against all the accused for the offences under sections 147, 148, 307, 324, 325, 504, 506(2), 427,452, 337 read with section 149 of the IPC and section 30(A) of the Arms Act in the Court of learned JMFC, Sami.

4.1 As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to learned Sessions Court, Patan, which was registered as Sessions Case No.27 of 2008. Learned trial Court framed charges against all the accused for the aforesaid offences. All the accused pleaded not guilty and, therefore, all of them came to be tried by learned trial Court for the aforesaid offences.

4.2 To prove the case against the accused, prosecution examined the following witnesses:

PW.

Exibit

1.

Complainant Gelabhai Kuberbhai

Ex.30

2.

PW Darthiben Shankarbhai Nadoda

Ex.32

3.

PW Ganeshbhai Gelabhai

Ex.33

4.

PW Shankarbhai Gelabhai

Ex.35

5.

PW Chavda Dipakbhai Vajubhai

Ex.37

6.

Revabhai Parmarbhai

Ex.38

7.

Govindbhai Jivabhai

Ex.42

8.

Ismailbhai Vapalbhai Kureshi

Ex.46

9.

Dr.Girishbhai Dhanabhai

Ex.49

10.

Dr.Tusharbhai Mohanbhai Sitalwad

Ex.51

11.

Prahladbhai Somabhai

Ex.54

12.

PSO Mafabhai Kalubhai

Ex.56

13.

PSI Nathabhai Harjibhai Makwana

Ex.58

14.

Rupabhai Naranbhai

Ex.63

15.

Dr.Hitendra Prahladbhai Patel

Ex.72

4.3 Through the aforesaid witnesses, the prosecution also brought on record, following documentary evidence:

1.

Depute Order

Ex.57

2.

Yadi

Ex.59

3.

Complaint of Gelabhai Kuberebhai

Ex.31

4.

Panchnama of the place of offence

Ex.39

5.

Panchnama drawn while collecting clothes

Ex.43

6.

Panchnama of physical condition of accused & taking in custody of weapon

Ex.64

7.

-do-

Ex.47

8.

Medical Certificate of PW Vajubhai

Ex.50

9.

Medical Certificate issued by Civil Hospital Mehsana

Ex.52

10.

Map of the place of offence

Ex.62

11.

Report of addition of offences under section 337, 427

Ex.60

12.

Report of addition of section 452

Ex.61

13.

Original case papers of complaint

Ex.74

5. After cosing the pursis submitted by the prosecution, further statements of all the accused came to be recorded under section 313 of the Cr.P.C. All of them denied having committed any offence. They stated that due to old rivalry, members of one family were falsely implicated in the case. They did not examine any defence witnesses nor produced any documentary evidence in support of their defence.

5.1 At the conclusion of trial, by the impugned judgment and order, learned trial Court has held all the accused guilty for the offences under sections 147, 148, 326, 324, 325, 504, 506(2) read with section 149 of the IPC and imposed sentence as stated hereinabove.

5.2 Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, original accused (now original accused Nos.2 to 14) have preferred Criminal Appeal No.947 of 2011. Not satisfied with the sentence imposed by learned trial Court while convicting the original accused for the aforesaid offences, the State has also preferred Criminal Appeal No.969 of 2011 for enhancement of sentence. As observed hereinabove, original complainant-injured eye witness has also filed an appeal, being Criminal Appeal No.935 of 2011, challenging the impugned judgment and order acquitting the original accused for the offence under sections 307, 452 of the IPC etc. However, the same came to be withdrawn by learned advocate appearing for the original accused, i.e. injured eye witness, in light of the appeal preferred by the State for enhancement of sentence, however, with liberty to assist learned APP.

6. Shri Haresh M.Joshi, learned advocate, has appeared on behalf of the original accused (now accused Nos.2 to 14) in Criminal Appeal No.947 of 2011 (conviction appeal) and Shri K.P.Rawal, learned A.P.P. has appeared on behalf of the State. In both the appeals, Shri Krutarth Pandya, learned advocate, has appeared on behalf of the original complainant-injured eye witness. Shri Joshi, learned advocate appearing on behalf of original accused Nos.2 to 14 in Criminal Appeal No.947 of 2011 has stated at the Bar that he has no instructions to appear on behalf of original accused Nos.2 to 14 in Criminal Appeal No.969 of 2011 preferred by the State. Therefore, he has stated at the Bar that, though he is appearing on behalf of original accused Nos.2 to 14 in the conviction appeal, being Criminal Appeal No.947 of 2011, he is not appearing on behalf of the original accused Nos.2 to 14 in Criminal Appeal No.969 of 2011 preferred by the State. Though served, nobody appears on behalf of original accused Nos.2 to 14in Criminal Appeal No.969 of 2011.

Criminal Appeal No.947 of 2011:

7. Shri Joshi, learned advocate for original accused, has, looking to the number of accused and number of injuries, submitted that it is a clear case of over implication and/or false implication of all the accused.

7.1 It is further submitted by Shri Joshi, learned advocate for the original accused, that as such the complainants side have exaggerated the narration of the incident and have involved more number of accused persons so as to invoke the provisions of sections 147, 148 & 149 of the IPC. It is submitted that, looking to the number and nature of injuries, it is clearly established that such injuries can be caused by two-three persons only and not by 13-14 persons with their active participation.

7.2 It is submitted by Shri Joshi, learned advocate for the original accused, that the information given by the complainant appears to be, prima facie, unnatural and parrot-like version. It is submitted that it is impossible to attribute participation of 14 accused persons (including original accused No.1) with their weapons and with infliction of injuries on the part of the body of the complainant.

7.3 It is further submitted by Shri Joshi, learned advocate for the original accused, that PW.2 Dhartiben Shankarbhai, who has been examined at Ex.32 and who is alleged to be the eye witness, has tried to implicate all the accused persons with their participation in the alleged offence, but this is an improvement in her deposition. It is submitted that she has admitted in her cross-examination that it is true that she had given only three names to the Police, rest of the names were not given by her in her police statement. It is submitted that, likewise she has also admitted that she has not stated in her police statement that these Bharwads were beating her grandfather with sticks.

7.4 It is further submitted that even the area of the place of incident was so small that it was impossible that 14 accused persons would have attacked and beaten the original complainant-injured eye witness. It is submitted that the investigating officer, PW.13, in his cross-examination has admitted that the place of incident was a small room of 15 x 10 ft. and the surrounding area was 150 sq. ft. It is submitted that, therefore, it is impossible that 14 accused persons, out of which 13 accused persons present with lethal and sharp cutting weapons, would inflict the injured person.

7.5 It is further submitted by Shri Joshi, learned advocate for the original accused, that even as per the deposition of Dr. Setalwad, PW.10, the injured had received seven injuries, out of which injury Nos.2, 3, 4, 5 & 7 were cut injuries and these injuries were possible with sharp-edged weapon. It is submitted that, according to the Doctor, rest of the injuries, i.e. injury No.1 & 6, are contused lacerated wounds possible with hard and blunt objects. It is submitted that the injured had fractures in right hummers, left TIBIA and Fibula.

7.6 It is further submitted that even the complainant has exaggerated the version given in the complaint by describing therein that original accused No.1 was present with fire arm and had given threat with fire arm. It is submitted that no such fire arm has been recovered. It is submitted that even learned trial Court has acquitted the original accused for the offence under section 30(A) of the Arms Act.

7.7 It is further submitted by Shri Joshi, learned advocate for the original accused, that even the injuries were not on vital part of the body and, therefore, it cannot be said that there was any intention to cause death of the injured eye witness.

7.8 It is further submitted that even the so-called motive projected by the prosecution appears to be false.

7.9 It is submitted that the complainant and the accused persons belong to one community, i.e. Bharwad community, and as such are doing the business of cattle (maldhari) and carrying stick with them was a common object in village people. It is submitted that, as such all family members are implicated in the case. It is submitted that three sons of Jakshibhai Bharwad, three sons of Bhikhabhai Bharwad, three family members of Karmanbhai Bharwad and other two persons of Bhikhabhai (of one family member) are implicated in the case.

7.10 It is further submitted that the weapons which were recovered were not having any bloodstains. It is submitted that, therefore, it is clearly established that it is a case of false implication.

7.11 Making the above submissions, it is requested to allow the criminal appeal preferred by the original accused and quash and set aside the impugned judgment and order of conviction.

8. The present criminal appeal preferred by the original accused is vehemently opposed by Shri K.P.Rawal, learned APP, appearing on behalf of the State.

8.1 It is vehemently submitted that the findings recorded by learned trial Court while convicting the original accused are on appreciation of evidence.

8.2 It is submitted that, in the present case the prosecution has been successful in proving the case against all the accused by leading cogent evidence, more particularly by examining the injured eye witness-original complainant PW.1. It is vehemently submitted by Shri Rawal, learned APP, that names of all the accused were disclosed by the injured eye witness right from the very beginning, i.e. in the complainant itself, and so stated by him in his deposition. It is submitted that even from the deposition of the Doctor, it is proved that even when he gave history before Dr. Setalwad, he disclosed names of all the accused. It is submitted that the said witness has been fully and thoroughly cross-examined by the defence, however, he has stood by what he has stated in his deposition and in the complaint.

8.3 It is further submitted that, in the present case all the accused persons formed an unlawful assembly with a common object and went to the place of the injured eye witness-original complainant. It is submitted that, therefore, all of them are rightly convicted with the aid of section 149 of the IPC. It is further submitted by Shri Rawal, learned APP, that as such the injuries on the injured eye witness inflicted by dharia and lathis are proved by examining Dr. Setalwad as well as the medical evidence. It is submitted that Dr.Setalwad in his deposition has categorically stated that some of the injuries were possible by dharia (caused by accused No.7) and rest of the injuries were possible by hard and blunt substance (by lathis). It is submitted that even the original complainant-injured eye witness sustained multiple injuries on his hands and legs. It is submitted that, therefore, when the original accused formed an unlawful assembly and went to the place of the original complainant and caused injuries by dharia and lathis and when they are convicted with the aid of section 149 of the IPC, then the prosecution is not required to prove the overt act of each and every accused. In support of his above submission, he has relied upon the following decisions of the Honble Supreme Court:

>(1) Ramesh and Ors. v. State of Haryana etc. reported in AIR 2011 SC 169 [LQ/SC/2010/1140] .

(2) State of Uttar Pradesh v. Kishanpal and Others reported in (2008) 16 SCC 73 [LQ/SC/2008/1632] .

(3) Bhanwar Singh and Others v. State of Madhya Pradesh reported in (2008) 16 SCC 657 [LQ/SC/2008/1278] .

9. Thus, in the present case the prosecution is successful in proving the identity of all the accused at the time and place of commission of the offence and the prosecution has also been successful in proving the unlawful assembly formed by all the accused with a common object. It is submitted that, therefore, when all the accused persons, by forming an unlawful assembly in furtherance of their common object, have committed the offence and all of them were armed with weapons, learned trial Court has not committed any error in convicting all the accused with the aid of section 149 of the IPC. It is submitted that to attract the provisions of section 149 of the IPC, it is not necessary for the prosecution to prove any over act by each of the accused. It is submitted that when the assembly formed is unlawful and if the offence is committed by any member of such unlawful assembly in prosecution of a common object, every member of such unlawful assembly shall be guilty of the offence committed by another member of the assembly.

10. Now so far as the submission on behalf of the accused that as the area of the place of incident was very small and therefore it was not possible that 13-14 persons might have attacked the complainant, it is submitted by Shri Rawal, learned APP appearing for the State, that as such a specific question was asked in cross-examination to Ganeshbhai Gelabhai, PW.3 examined at Ex.33, with respect to above and he has categorically stated that the area of the place of incident was such that 15-16 persons could have attacked. It is submitted that the incident had taken place in a falia (courtyard) of 15 x 10 ft. and the surrounding area was 150 sq. ft. It is submitted that, therefore, it was possible for 14-15 persons to attack.

10.1 It is further submitted that even the Doctor has stated that the injuries sustained by the injured eye witness were serious. Relying upon a decision of the Honble Supreme Court in the case of State of Madhya Pradesh v. Imrat & Anr reported in AIR 2008 SC 2967 [LQ/SC/2008/1412] , it is submitted that what is required to be considered is the intention and not the actual injury sustained.

10.2 It is submitted that, in the present case all the accused, after forming an unlawful assembly and with a common object, went to the place of the complainant with deadly weapons, and one of them was having a dharia and others were having lathis, and attacked and caused injuries on the original complainant who, at the time of the incident, was aged 80 years. He sustained multiple fractures and, in fact, he remained in hospital as an indoor patient for more than 40 days.

10.3 It is further submitted by Shri Rawal, learned APP appearing for the State, that as such learned trial Court has committed an error in not convicting the original accused for the offence under sections 307 & 452 of the IPC.

10.4 It is submitted that, even learned trial Court has not at all considered the case against all the accused for the offence under section 452 of the IPC. It is submitted that, in any case, the impugned judgment and order passed by learned trial Court against the original accused is on appreciation of evidence which is not required to be interfered by this Court in exercise of its appellate jurisdiction, more particularly considering the deposition of PW.1-injured eye witness, corroborated by the deposition of Dr. Setalwad.

Criminal Appeal No.969 of 2011:

11. Shri Rawal, learned APP appearing for the State, vehemently submitted that, in the facts and circumstances of the case, the sentence imposed by learned trial Court while convicting the original accused for the offence under section 326 of the IPC read with section 149 of the IPC, i.e. imposing sentence of only two years R.I. with fine of rupees one thousand, cannot be said to be just and adequate punishment commensurate with the gravity of the offence committed.

11.1 It is submitted that, as such while imposing sentence, learned trial Court has not properly exercised the discretion judiciously. It is submitted that, while imposing sentence, learned trial Court has not considered the manner in which the accused committed the offence for which they were tried.

11.2 It is further submitted by Shri Rawal, learned APP appearing for the State, that, in the present case while imposing sentence, learned trial Court ought to have considered the fact that all the accused, which are 14 in number, had constituted an unlawful assembly with a common object and went to the place of the complainant with weapons like dharia and lathis and attacked the original complainant-injured eye witness who was taking rest/sleeping and who, at the time of the incident, was aged about 80 years, and caused serious injuries on that old man aged 80 years.

11.3 It is submitted that all the accused are convicted for the offences under sections 147, 148, 326, 324, 325, 504, 506(2) read with section 149 of the IPC. It is submitted that the punishment for the offence under section 326 of the IUPC is life imprisonment or upto ten years with fine. It is submitted that, therefore, in the fact and circumstances of the case, imposing only two years R.I. cannot be said to be just punishment/sentence. It is further submitted by Shri Rawal, learned APP, that as per catena of decisions of the Honble Supreme Court, it is the duty of the Court to impose adequate, just and proportionate punishment which is commensurate with the gravity, nature of crime and the manner in which the offence is committed. It is submitted that, in catena of decisions the Honble Supreme Court has observed that, while imposing punishment/sentence, misplaced sympathy is not warranted. In support the above submission and his request to impose maximum punishment for the offence under section 326 of the IPC, Shri Rawal, learned APP, relied upon the recent decision of the Honble Supreme Court in the case of Raj Bala v. State of Haryana reported in (2016) 1 SCC 463 [LQ/SC/2015/1035] as well as another decision of the Honble Supreme Court in the case of Abdul Waheed v. State of Uttar Pradesh reported in (2016) 1 SCC 583 [LQ/SC/2015/1119] .

11.4 Making the above submissions, it is requested to allow the criminal appeal preferred by the State and enhance the sentence and impose the maximum punishment/sentence provided under section 326 of the IPC.

12. Shri Pandya, learned advocate appearing for the original complainant-injured eye witness, has adopted the submissions made by learned APP and requested to impose the maximum punishment/sentence as provided for the offence under section 326 of the IPC.

13. As observed hereinabove, though served, nobody appears on behalf of accused Nos.2 to 14 in the criminal appeal preferred by the State. As noted hereinabove, Shri Joshi, learned advocate appearing on behalf of original accused nos.2 to 14 in Criminal Appeal No.947 of 2011, has stated that he has no instructions to appear on behalf of accused Nos.2 to 14 in the criminal appeal preferred by the State.

Criminal Appeal No.947 of 2011:

14. Present is an appeal preferred by original accused Nos.2 to 14 challenging their conviction by learned trial Court for the offences under sections 147, 148, 326, 324, 325, 504, 506(2) read with section 149 of the IPC.

14.1 At the outset it is required to be noted that all the accused are convicted for the aforesaid offences read with and/or with the aid of section 149 of the IPC. As per the case of prosecution, except original accused No.7, all the accused were armed with sticks and original accused No.7 Popatbhai Bhikhabhai Bharwad was armed with a dharia. As per the case of prosecution, all the accused after having formed an unlawful assembly with a common object, went to the place of the original complainant-injured eye witness Gelabhai and attacked and caused injuries on the injured eye witness-original complainant Gelabhai. Presence of all the accused at the time of commission of the offence and at the place of the injured eye witness Gelabhai has been established and proved by the prosecution by leading cogent evidence, more particularly by examining the injured eye witness-original complainant himself as PW.1 at Ex.30. Names of all the accused were disclosed by the original complainant right from the very beginning, i.e. while giving the complaint when he was admitted in hospital and which was given at the earliest. In the evidence he has stood by what he has stated in the complaint. He has fully supported the case of the prosecution. The said witness has been fully cross-examined by the defence, however, the defence has not been successful in proving anything against the case of the prosecution. The injuries sustained by the original complainant-injured eye witness and narrated by him to have been inflicted by dharia and sticks have been fully corroborated and supported by the deposition of Dr. Setalwad who was been examined as PW.10 at Ex.51. As per the deposition of Dr. Setalwad as well as medial evidence on record, the injured eye witness sustained following injuries:

1. CLW of about 5 cm x 2 cm x bone deep in size on the rt. Leg middle one third, anterior aspect compound fracture.

2. Incised wound of about 3 cm x 1 cm x skin deep inside on the forearm middle one third anterior aspect oblique in direction.

3. Incised wound of about 4 cm x 1 cm x skin deep in size on the ant aspect of the middle one third of it leg, upper part.

4. Incised wound of about 2 cm x cm x skin deep in size on the left leg below knee outer aspect.

5. Incised wound of about 1 cm x cm x skin deep in size on the upper rd left leg, anterior aspect.

6. Abrasion & contusion 10 cm x 6 cm in size, irregular in shape with D.T.S.over the left forearm lower one third.

7. Incised would of about 1 cm x cm x skin deep in size, on the Ft. arm lateral aspect.

8. D.T.S. and fracture deformity Rt. Arm, middle part on which Redish contusion of abut 8 cm x 2.5 cm in size oblique in direction on the anterolateral aspect.

1. Fracture of shaft hummers (right)

2. Fracture on Left TIBIA and Fibula

3. Fracture of Radius and Ulna.

14.2 As per the Doctor, the aforesaid injuries were possible by dharia and sticks. On re-appreciation of the entire evidence on record, we are of the opinion that the findings recorded by learned trial Court that all the accused formed part of unlawful assembly with a common object and they attacked the original complainant-injured eye witness at his place cannot be said to be contrary to the evidence on record. We concur with the findings recorded by learned trial Court.

15. Now so far as the submission on behalf of the original accused that, looking to the smallness of the area of the place of incident it is not possible for 13-14 persons to attack the injured eye witness is concerned, the same has no substance. It is required to be noted that the place of incident is falia/courtyard outside the house. Even the area of the courtyard is 15 x 10 ft. and the surrounding area is 150 sq. ft. It was an open place. A specific question was asked to one witness Ganeshbhai Gelabhai in his cross-examination and he has specifically denied the aforesaid allegation and he categorically stated that the area of the place of incident was such that it was possible for 14-15 persons to attack.

16. So far as the submission on behalf of the original accused that only 8 injuries were found and as per the case of prosecution 13 persons caused the injuries and, therefore, there is exaggeration and/or over-implication is concerned, it is required to be noted that all the accused were members of unlawful assembly with a common object. All of them attacked the original complainant-injured eye witness at his place. All of them were charged for the offene under section 149 of the IPC also and they are in fact convicted with the aid of section 149 of the IPC. As per catena of decisions of the Honble Supreme Court as well as this Court, to attract the provisions of section 149 of the IPC, once membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed. In the case of Kishanpal (supra), while considering section 149 of the IPC, in paragraphs 47 to 53, the Honble Supreme Court has observed and held as under:

"47. Now let us consider the other relevant issue, namely, allegation of absence of evidence relating to the specific overt act or role attributed to each accused as well as the evidence of the prosecution in respect of a charge under Section 149 IPC. Before going into the merits of the above issue, it is useful to refer to Section 149 which reads thus:

"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."

It is well settled that once a membership of an unlawful assembly is established it is not incumbent on the prosecution 35 to establish whether any specific overt act has been assigned to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed.

48. In Bhagwan Singh and Others v. State of M.P., (2002) 4 SCC 85 [LQ/SC/2002/417] , this Court while considering unlawful assembly/sharing of common object held as under:-

"9. Common object, as contemplated by Section 149 of the Indian Penal Code, does not require prior concert or meeting of minds before the attack. Generally no direct evidence is available regarding the existence of common object which, in each case, has to be ascertained from the attending facts and circumstances. When a concerted attack is made on the victim by a large number of persons armed with deadly weapons, it is often difficult to determine the actual part played by each offender and easy to hold that such persons who attacked the victim had the common object for an offence which was known to be likely to be committed in prosecution of such an object. It is true that a mere innocent person, in an assembly of persons or being a bystander does not make such person a member of an unlawful assembly but where the persons forming the assembly are shown to be having identical interest in pursuance of which some of them come armed, others though not armed would, under the normal circumstances, be deemed to be the members of the unlawful assembly."

The same principle has been stated in State of A.P. v. Veddula Veera Reddy and Others, (supra) and Sahdeo and Others v. State of U.P. (2004) 10 SCC 682 [LQ/SC/2004/647] .

49. In the case on hand, the accused persons have been proved to be in inimical terms with the complainant party, the accused persons who came on the spot are shown to have armed with deadly weapons i.e. guns and pistols. The facts and circumstances of the case unequivocally prove the existence of the common object of such persons forming the unlawful assembly who had come on the spot with weapons and attacked the complainants party. In consequence of which three precious lives were lost and another three sustained firearm injuries.

50. In State of Rajasthan v. Nathu and Others, (2003) 5 SCC 537 [LQ/SC/2003/558] , this Court held:

"17.....If death had been caused in prosecution of the common object of an unlawful assembly, it is not necessary to record a definite and specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. Once an unlawful assembly has come into existence, each member of the assembly becomes vicariously liable for the criminal act of any other member of the assembly committed in prosecution of the common object of the assembly."

51. In Rachamreddi Chenna Reddy and Others v. State of A.P., (1999) 3 SCC 97 [LQ/SC/1999/133] , with reference to common object and how the same has to be interfered with, this Court held thus:

"7. .... .... The question whether the group of persons can be made liable for having caused murder of one or two persons by virtue of Section 149 IPC depends upon the facts and circumstances under which the murder took place. Whether the members of an unlawful assembly really had the common object to cause the murder of the deceased has to be decided on the basis of the nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the settings and surroundings under which the occurrence took place.

9. In Bolineedi case (1994 Supp (3) SCC 732) this Court held that for arriving at a conclusion of constructive liability, what the courts have to see is whether they had the common object and members of the assembly knew it likely to be committed in prosecution of that object. In the aforesaid case, the fact that all the accused persons chased and surrounded the deceased and inflicted injuries with their respective weapons was held to be sufficient to conclude that they had the common object to kill the deceased."

52. In the case on hand, the prosecution witnesses have clinchingly demonstrated how the accused persons formed an unlawful assembly at a particular spot with deadly weapons like guns and pistols and that all had fired at the injured and 38 deceased. The number of injuries on the deceased as per the Post Mortem report as well as the firearm injuries sustained by the three injured persons clearly demonstrate the common object of accused Nos. 1 to 10 was to kill the complainants party.

53. In Yunis @ Kariya v. State of M.P. (2003) 1 SCC 425 [LQ/SC/2002/1301] , this Court held:

"Even if no overt act is imputed to a particular person, when the charge is under Section 149 IPC, the presence of the accused as part of an unlawful assembly is sufficient for conviction. The fact that the accused was a member of the unlawful assembly is sufficient to hold him guilty."

Following the above principle, in Jaishree Yadav v. State of U.P., (2005) 9 SCC 788 [LQ/SC/2004/871] , in an identical circumstance, this Court interfered with the acquittal of the High Court. It is relevant to refer to para 28 of the said decision.

"28. In view of the above principle in law, since the trial court has found these respondent-accused guilty of being members of an unlawful assembly with the common object of causing the murder of the deceased, and the High Court having not differed from the said finding, it erred in acquitting these respondent-accused solely on the ground that there is no evidence to show that they had taken part in the actual assault. In our opinion, assuming that the High Court was correct in coming to the conclusion that these respondent-accused have not taken part in the attack even then they having come together with the other accused armed, and having been members of the unlawful assembly and having shared the common object, they will be guilty of 39 an offence punishable under Section 302 read with Section 149 IPC."

17. Similar view has been expressed by the Honble Supreme Court in the case of Bhanwar Singh (supra).

17.1 In the case of Ramesh & Others (supra), the Honble Supreme Court has observed and held that common object has to be gathered from the nature of assembly, arms possessed by them and behaviour of the assembly at or before occurrence. It is further observed that each of the accused need not commit some illegal overt act. Assembly not unlawful initially, subsequently may become unlawful.

17.2 Analyzing the materials on record, it is proved that all the accused, 14 in number, formed an unlawful assembly, went to the place of the original complainant armed with dharia and lathis, collectively, all of them attacked the original complainant in which the injured eye witness sustained serious injuries narrated hereinabove, out of which some were caused by original accused No.7 Popatbhai Bhikhabhai Bharwad by a dharia and others by lathis. Considering the aforesaid facts and circumstances, it cannot be said that learned trial Court has committed any error in convicting the original accused.

18. Insofar as the submission on behalf of the accused that there was no injury on the vital part of the body and, therefore, learned trial Court has erred in convicting the original accused for the offence under section 326 is concerned, it is required to be noted that, as such all the accused collectively and after forming unlawful assembly went to the place of the original complainant-injured eye witness and attacked an old man aged 80 years in which he sustained multiple fractures along with other injuries. In the case of Imrat & Anr. (supra), under similar circumstances, the Honble Supreme Court has specifically observed that, it is not essential that bodily injury capable of causing death should have been inflicted and it is sufficient to justify conviction under section 307 of the IPC if there is presence and intention coupled with some overt act in execution thereof. Considering the aforesaid overall facts and evidence on record, more particularly deposition of the injured eye witness-original complainant-PW.1, who can be said to be reliable and trustworthy and whose deposition is corroborated by Dr.Setalwad, it cannot be said that learned trial Court has committed any error in convicting the original accused. We wee no reason to interfere with the impugned judgment and order passed by learned trial Court. Under the circumstances, the impugned judgment and order passed by learned trial Court convicting the original accused for the offences under sections 147, 148, 326, 324, 325, 504, 506(2) read with section 149 of the IPC is hereby confirmed.

Criminal Appeal No.969 of 2011:

19. Insofar as the criminal appeal preferred by the State for enhancement of sentence imposed by learned trial Court is concerned, it is required to be noted that learned trial Court has, while convicting the original accused for the offence under section 326 of the IPC, imposed sentence of two years R.I. only. So far as original accused No.1 & 7 are concerned, learned trial Court has also passed order directing to deposit Rs.35,000/- each towards compensation to be paid to the injured eye witness.

19.1 However, while convicting the original accused, learned trial Court has also imposed sentence of two years R.I. for the offence under section 325 read with section 149 of the IPC. Looking to the injuries sustained by the original complainant-injured eye witness aged 80 years and the manner in which all the accused collectively attacked the injured eye witness at his place and caused injuries, award of sentence of only two years R.I. cannot be said to be just and adequate punishment commensurate with the gravity of the offence. It is required to be noted that the old-aged man of about 80 years sustained multiple fractures on legs and hands and other injuries on other parts of his body. From the impugned judgment and order passed by learned trial Court, it appears that, while imposing the sentence, learned trial Court has not exercised its discretion judiciously and seems to have missed and/or not considered imposing adequate punishment/sentence. It is also required to be noted that, as such the injured eye witness remained in hospital as an indoor patient for more than 40 days. He also sustained grievous injuries (grievous hurt). As observed by the Honble Supreme Court in Abdul Waheed (supra), it is the duty of the Court to award punishment having regard to the manner in which the offence was committed. In the case of Raj Bala (supra), while elaborating the principles for sentencing in criminal trial and the duty of the Court, it is observed by the Honble Supreme Court that, while imposing sentence in a criminal trial, the Court has to exercise the discretion conferred by the Legislature to impose sentence on reasonable and rational parameters. It is observed that discretion cannot be allowed to yield to fancy or notion and misplaced sympathy is not warranted.

20. In the facts and circumstances of the case narrated hereinabove and the manner in which the accused have committed the offence and caused injuries on the injured eye witness aged 80 years for no fault of him, we are of the opinion that imposing sentence of only two years R.I. for the offence under section 326 of the IPC cannot be said to be just and adequate punishment commensurate with the gravity of the offence. Under the circumstances, interference of this Court insofar as the sentence imposed by learned trial Court is called for. In the facts and circumstances of the case, we are of the opinion that, if all the accused are sentenced to undergo five years R.I. for the offence under section 326 of the IPC and rest of the sentence imposed by learned trial Court for other offences is maintained, the same can be said to be just and adequate sentence commensurate with the gravity of the offence. In view of the aforesaid observation, the impugned judgment and order is required to be interfered with and consequently modified and the appeal preferred by the State is required to be partly allowed to the aforesaid extent.

21. In view of the above and for the reasons stated above, Criminal Appeal No.947 of 2011 preferred by the original accused challenging their conviction is hereby dismissed. The impugned judgment and order dated 08.06.2011 passed by learned Sessions Judge, Patan in Sessions Case No.27 of 2008 for the offences under sections 147, 148, 326, 324, 325, 504, 506(2) read with section 149 of the Indian Penal Code (IPC) is hereby confirmed. It is reported that all the accused are on bail. On their conviction being confirmed and their criminal appeal being dismissed, their bail bonds are cancelled and all accused Nos.2 to 14 are ordered to be taken into custody forthwith for undergoing the remaining sentence and the enhanced sentence as per the present judgment and order.

22. Criminal Appeal No.969 of 2011 is partly allowed and the judgment and order passed by learned Sessions Judge, Patan dated 08.06.2011 in Sessions Case No.27 of 2008 is hereby modified to the extent that, while maintaining and confirming their conviction, all the accused are sentenced to undergo five years rigorous imprisonment for the offence under section 326 of the IPC with the fine/compensation awarded by learned trial Court for the aforesaid offence. Rest of the sentence imposed by the learned trial Court for different offences as narrated above is hereby maintained. Criminal Appeal No.969 of 2011 is partly allowed to the aforesaid extent.

23. Registry is directed to send the Record & Proceeding forthwith.

24. At this stage, Mr.Joshi, learned advocate appearing for original accused Nos.2 to 14 has requested to grant some time to the original accused to surrender to undergo the remaining sentence/enhanced sentence. In the facts and circumstances of the case, accused Nos.2 to 14 are granted time upto 11.04.2016 to surrender for undergoing the remaining sentence.