CHANDUBHAI MALUBHAI PARMAR AND ORS.versusSTATE OF GUJARAT

         CHANDUBHAI MALUBHAI PARMAR AND ORS.                                      A
                                      v.
                          STATE OF GUJARAT

                               APRIL 4, 1997

           [M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.)                                B

      Criminal Law :

      Penal Code, 1860: Sections 302/ 149/34/ 147/148, 3251149, 323/ 149 and
436/149.
                                                                                  c
      Group rivalry-Riotous mob of 100/ 150 persons attacked members of
a community and caused death of 4 persons and injuries to 13 eyewit-
ness-Some members of mob ransacked houses and set them afire-Held :
Presence of Injured eyewitnesses at the scene of incident could not be
doubted-Their evidence reliable-OccwTence took place during day time and
the accused known to wit111::sses-Hence, there was no question of mistaken        D
identity-Jn the cirwmstances of the case, the accused were 1ightly convicted
by the trial court.

       Common intention or object-lnference of sharing of-Time fac-
tor-Riotous mob chased the deceased and other injured persons of a com-
munity from bus stand till they reached their village-Wizen the mob reached       E
near the village three of the accused went to the house of one of the witnesses
and set his house on fire-Other members of mob continued the said
chase-Thereafter, witnesses heard firing sounds coming from that
direction--Held: fa the circumstances of the case, the said three accused
could not be said to have shared the common object of Committing                  F
murder with other accused who caused death of 4 persons by using fireanns
and other deadly weapons-In such circumstances time factor assumed
impo1tance-Co11viction of the three accused could not be sustained with the
aid of S. 149 or S. 34--1heir conviction under S. 302/ 149 set aside-However,
conviction under S. 436/34 confimicd.

      The appellant-accused were convicted by the Designated Court for
                                                                                  G
offences under Sections 302/149/34/147/148, 325/149, 323/149 and 436/149
of the Indian Penal Code, 1860. Hence this appeal.

      According to the prosecution, a dispute arose over the allotment of
the land to Vankars for which the Harijans laid a claim under· the belief         H
                                     633
                                                                                 -- _,,(.

    634                  SUPREME COURT REPORTS                 [1997) 3 S.C.R.

A that it was reserved and earmarked for them. Some of the Vankars had
  constructed the houses on this land, which was 11bjected to by Harijans.
  Some of the Harijans went to the disputed land and questioned the right
  ofVankars to carry on the construction of house thereon. There was some
  altercation between the two group and a riotous mob consisting of 100/150
  persons started chasing Vankars from the bus stand until they reached
B their village causing death of 4 persons and injuries to 13 eyewitnesses.
  When the mob reached near the village A-34, A-35 and A-36 went to the
                                                                                            •
  house of one of the witness, set his house on fire ancl other members of the
                                                                                            1
  mob continued to chase the Vankars. Thereafter, the witnesses heard firing
  sounds coming from that direction. Some members of the mob also ran·
C sacked the houses of the Vankars and set 3 houses on fire. The entire
  incident took place during the daytime. A First Information Report was
  lodged and a post-mortem held.

        In the appeal before this Court on behalf of the accused persons it
  was contended that the riotous mob consisted of 100/150 persons and if·
D this be so, mistaken identity of the accused persons could not be ruled out;
  that the prosecution evidence was not reliable and that accused Nos. 34,
  35 and 36 did not share the common object of the unlawful assembly and,
  therefore, they could not be convicted with the aid of Section 34 or Section
  149 of the Penal Code.
E
          Allowing the appeal, this Court

         HELD : 1.1. It cannot be ignored that the occurrence in question took
  place during daytime and in fact the appellants were chasing the deceased
  and other injured persons right from the bus stand till they reached the
F village where two persons were shot down and two were assaulted wi.th
  lethal weapons. The presence of the injured eyewitnesses at the scene of
  incident cannot be doubted. Their evidence is reliable. The witnesses had
  sufficient opportunity to identify the appellants and they also knew them.
  Hence there is no question of mistaken identify. The trial court therefore,
G rightly convicted the appellants. [643-D-H]
        1.2. On the evidence on record, it cannot be said to be conclusively
  established that A-34, A-35 and A-36 also shared the common object of
  committing the murder with other accused who had caused the death of 4
  persons by using firearms and other deadly weapons. The time factor in
H this behalf assumes great importance because when A·34, A-35 and A-36
            C.M. PARMAR v. STATE (S.P. KURDUKAR, J.]                635

were engaged in setting the houses on fire and the other appellants A
committed the murders of four persons. Hence, their conviction with the
aid of Section 34 ot Section 149 of the Indian Penal Code, 1860 cannot be
sustained. However, their conviction under Sections 436/34 IPC must
stand confirmed. [645-C-D; G]

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                 B
95 of 1988 Etc.

     From the Judgment and Order dated 12.6.87 of the Designated
Court, Kheda, Nadiad in Cr!. Case No. 1 of 1986.

     T.U. Mehta, Jatin Jhaveri, Narayan Singh Gohil, Harish J. Jhaveri,
                                                                           c
Vimal Dave, Ms. Neetu Singh, Ms. Hemantika Wahi, R.K. Shah and S.K.
Sabharwal for the appearing parties.

     The Judgment of the Court was delivered by
                                                                           D
      S.P. KURDUKAR, J. People belonging to Vankar community resid-
ing in village Golana in District Khera (Gujarat) had an awful day when
they saw some of their fellow Vankars being chased, four of them killed
and many others injured by a riotous mob comprising Rajputs, Harijans
and other persons residing in the same village. The incident in question   E
took place on 25.1.1986.

        (2) The genesis of this incident was a dispute over a plot of land,
which according to the Vankar community was allotted to it by the Govern-
ment of Gujarat under a scheme called allotment of plots to landless
persons for construction of houses. The Harijans, however carried the F
belief that part of the said plot was given to and reserved for them by the
Government for constructing their houses. It was this misunderstanding
between the two communities viz., the Harijans and Vankars which led to
the incident in question. According to the prosecution, on 25.1.1986 at
about 8 a.m. the accused Nos. 1, 2, 3, 5, 39 and Lakhabhai (deceased) had G
gone to this land with some construction materials for the purposes of
erecting poles and construction of huts thereon. These accused persons
initially requested the Vankars to desist from making unauthorised con-
struction but realising that Vankars were not agreeable, accused No. 1 tried
to attack Itchabhai with a Dharia and while warding off the said attack he H
    636                   SUPREME COURT REPORTS               [1997] 3 S.C.R.

A sustained and injury between his thumb and finger. The above accused
    persons thereafter left the place.

        (3) Pochabhai, the complainant then decided to go to Khambat
  Police Station to lodge a complaint and, therefore, they came to the bus
  stand along with injured Itchabhai. They hired a truck to go to Khambat
B Police Station. In the meantime many persons belonging to Harijan and
  Rajput communities came to the bus stand, armed with deadly weapons
  and started raising shouts "beat Vankars". It is alleged by the prosecution
  that accused Nos. 19, 20, 21 were armed with guns. Accused No. 22 was
  carrying dha1ia and other accused persons were armed with sticks, dantas,
C kodali etc. These accused persons thereafter pulled down the Vankars who
  were sitting in the cabin of the lorry and started abusing them. They
  encircled the truck. The other Vankars who were sitting in the rear portion
  of the truck, sensing a serious trouble, got down and started running
  towards their locality called Vankarvas. The riotous mob then started
D chasing them. This incident took place at about 9.30 a.m.

          (4) It was alleged by the prosecution that in the meantime many
    residents of village Golana belonging to the accused party armed with
    deadly weapons came in the direction of Vankarvas where these Vankars
    were running to their respective houses. The riotous mob consisting of
E   100/150 persons started chasing Vankars, of them some entered into the
    houses of Vankars. Accused Nos. 19, 20 and 21 who were members of the
    riotous mob fired at Vankars as a result of which Prabhudas and Pochabhai
    sustained gun shot injuries and died on the spot. Other members of the
    unlawful assembly assaulted Mohanbhai and Khodabhai with sharp edged
F   weapons and sticks as a result of which they also died on the spot. In
    addition to these four deaths 13 persons belonging to Vankar community
    also sustained injuries during the said assault.

          (5) The other members of the unlawful assembly who had forcibly
    entered into the houses of Vankars had damaged, their houses by throwing
G   stones and committed theft of their belongings and thereafter set the
    houses on fire in which the inmates of these houses sustained injuries.;

          (6) The prosecution then alleged that the three incidents at three
    different places, namely, at Khalwat, at bus stand and at Vankarvas formed
H   one transaction.
            C.M. PARMAR v. STATE [S.P. KURDUKAR, J.]                 637

      (7) it appears that a report of disturbance reached the Senior PSI of A
Khambat Police Station within a short time and, therefore, Shri Dhani, CPI
arrived at village Golana in the afternoon and went to Vankarvas where he
recorded the complaint of Pochabhai Kalabhai (Ex. 203). CPI then
returned to Khambat Police Station, registered the offence and left for the
place of occurrence at about 5.00 p.m. and commenced the investigation. B
He recorded the statement of eye witnesses and also arrested the accused.
The accused Nos. 1 to 4 and 39 belong to Harijan community. The accused
No. 5 died during the pendency of trial, A-10 is Kumbhar, A-11 to 17 are
Vaghris, A-18 is Vala and remaining 27 accused persons are Rajputs. This
is how all 41 accused persons came to be arrested in the present crime.
CPI Dhami submitted the charge-sheet against 41 accused parsons in the C
Court of Judicial Magistrate First Class. After about three months he
submitted a report to the Court and sought permission to add charge under
Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1985
(for short the 'TADA') and the said prayer was granted. This was how 41
accused persons came to be charge sheeted for offences punishable under D
Sections 147, 148, 452, 302, 307, 325, 324, 323, 396, 398, 436 and 427/149
IPC, under Section 3 of TADA and also under Section 25(1)(c) of the
Arms Act. The criminal case was then committed to the Designated Court
of Kheda at Nadiad for trial.

       (8) The accused denied the accusations made against them and in E
their statements recorded under Section 313 Cr.P.C. they stated that they
have been falsely implicated in the present crime because of rivalry be-
tween the two groups viz., Vankars on one hand and the Rajputs, Harijans
etc., etc., on the other hand. They claimed that they were innocent and
accordingly prayed that they be acquitted.                                F

       (9) The prosecution in support of its case examined a number of
witnesses including 31 eye witnesses of whom 13 were injured. In addition
to this evidence prosecution also examined medical officers who performed
the post mortem examination on the dead bodies. Injury certificates of
injured witnesses and various panchnamas were also produced on record. G
The Learned Designated Court on appraisal of oral and documentary
evidence on record concluded that 18 arraigned accused along with many
other unidentified persons belonging to the rival group formed an unlawful
assembly with a common object to assault Vankars and in prosecution
thereof two were shot dead and two sustained several incised injuries and H
    638                   SUPREME COURT REPORTS                    [1997] 3 S.C.R.

A died on the spot; caused injuries to 13 eye witnesses; committed theft of
    belongings of Vankars and set three houses on fire. The Learned trial judge
    convicted and sentenced 14 accused persons/appellants before us on
    various counts and sentenced them to undergo various terms of sentences
    and fines including life imprisonment under Section 302/149 IPC. Four
    accused persons were convicted for minor offences who did not choose to
B   file an appeal and, therefore, details thereof are not set out. The trial court
    however; found the evidence adduced by the prosecution was not sufficient
    to convict the remaining 23 accused persons and accordingly recorded the
    order of acquittal in their favour. All accused persons were also acquitted
    of charge under Section 3 of TADA. The impugned order is dated
C   12.6.1987. It is this judgment and order of conviction which is the subject
    matter of challenge in Criminal Appeal No. 95 of 1988 filed by the
    appellants-accused. The State of Gujarat has filed Criminal Appeal No.
    354 of 1987 against 18 accused persons challenging the order of acquittal.
    Since these appeals arise out of a common judgment, they are being
D   disposed of by this Judgement.

          (10) At the outset it may be stated that prosecution witnesses can be
    divided into three groups, (1) witnesses to the incident at Khalwat, (2)
    witnesses relating to the assault on Vankars at bus stand and (3) witnesses
    who testified to the chasing of Vankers and causing assault on them with
E   deadly weapons, committing theft and setting the houses on fire.

         (11) Mr. T.U. Mehta, the Learned Senior Counsel appearing in
  support of the criminal appeal filed by the convicts urged that the prosecu-
  tion story is not all trustworthy. The prosecution evidence as to what
F happened at the bus stand was totally untrustworthy inasmuch as the ocular
  evidence thereof was propped up by the missionaries to gain favour from
  Vankars. He urged that in fact the missionares had played a very vital role
  to support the prosecution case by falsely implicating the appellant. He
  then urged that the identification of the accused persons sought to be
  established in the Court was totally unreliable because it was impossible
G for any of the prosecution witnesses to identify any of the accused and pin
  point his role when the riotous mob consisted of 100-150 persons. He then
  urged that assuming that the evidence of eye witnesses could be accepted
  then at best each of the accused would be held liable for his individual act.       la
  He urged that there was no unlawful assembly and even if there was one,             \[!
H it did not share any common object to commit the murders of or assault
             C.M. PARMAR v. STATE [S.P. KURDUKAR, J.]                   639

any of the Vankars. He further submitted that the prosecution witnesses        A
were partisan witnesses and it was not safe to accept their evidence as
credible. He then submitted that it was not clear from the evidence of
prosecution witnesses as to who were the accused who chased the Vankars
and caused the death of four persons and injured many. He therefore,
urged that the conviction of original accused Nos. 34, 35, and 36 under
Sections 302/149 was unsustainable. The conviction of the appellants under     B
Sections 302/149 of the Indian Penal Code was bad and at the most if
identity of the assailants could be established vis-a-vis their alleged acts
they could be convicted for their own individual acts and not with the aid
of Section 149 of IPC.
                                                                               c
       (12) Before we deal with the aforesaid submissions raised before us
on behalf of the appellants and determine the involvement and complicity
of each of the appellants in the present crime we may broadly indicate the
substratum of the prosecution case. Village Golana where the incident took
place is mainly consisted of Rajputs. Harijans and Vankars. In the present D
episode Rajputs and Harijans were on one side and Vankars on the other.
Initially a dispute arose over the allotment of the land to Vankars for which
the harijans laid a claim under the belief that it was reserved and ear-
marked for them. Some of the Vankars had constructed the houses on this
land which was objected to by Harijans. On 25.1.1986 some of the Harijans
went to the disputed land and questioned the right to Vankars to carry on E
the construction of house tl;iereon. It was alleged by the prosecution that
there was some altercation between the two groups resulting into causing
an injury to Itchabhai Lalbhai by means of a dharia. Vankars came to the
bus stand hired a truck to go to the police station and lodge a complaints.
They boarded the truck. In the meantime Harijans had gone to the abadi F
and returned to the bus stand along with a few Rajputs and other fellow-
men. Some altercation took place between Pochabhai Kalabhai, Khorabhai,
Mittanbhai, Itchabhai Lalbhai, Kalabhai, Nathabhai, Premjibhai Shyambhai
and the Rajputs. Vankars who were sitting in the truck got down and
sensing a danger to their lives at the hands of the Rajputs who had gathered
there, started running towards Vankarvas where they were residing. In the G
meantime more than 100 persons belonging to Rajput community and their
supporters came at the bus stands and chased the person belonging to
Vankar community. The members of the riotous mob were armed with
deadly weapons like fire arms, dharia, lathis etc. Of them A-19, A-20 and
A-21 were carrying the fire arms. The common object of the riotous mob H
    640                   SUPREME COURT REPCRTS                  [1997) 3 S.C.R.

A was to cause fatal injuries to persons belonging to Vankar community,
  destroy the houses by fire and to commit robberies and create terror. In
  pursuits of the said common object and while chasing these Vankars, they
  assaulted Prabhudas, Pochabhai, Khorabhai and Mohanbhai with deadly
  weapons. Prabhubhai and Pochabhai sustained gun shot injuries and other
B injuries causing their instantaneous deaths. Khodabhai and Mohanbhai
  were assaulted with deadly weapons causing incised and lacerated wounds
  to them as a result of which both these brothers died on the spot. A-34,
  A-35 and A-36 entered and ransacked the houses of Vinodbhai s/o Val-
  Iabhbhai, Balabhai s/o Phulabhai and Vallabhbhai s/o Phulabhai and there-
  after burnt down their houses. Many prosecution witnesses were injured in
C the incident. It may also be stated that as far as A-34, A-35 and A-36 are
  concerned the role attributed to them in the present incident was mainly
  confined to ransacking and setting the three houses of Vankars on fire
  although they were also tried for various offences including four murders
  with the aid of Section 149 IPC being members of an unlawful assembly.
D There are 31 eye witnesses of them 13 were injured to which reference will
  be made a little later. It is on these allegations, the trial proceeded before
  the learned trial Judge against 41 accused persons and on appraisal of oral
  and documentary evidence on record the trial court convicted 18 accused
  persons for various offences of whom four were for minor offences who
  did not prefer any appeal against their convictions and sentences. 14
E appellants before us, stood convicted by the impugned order for offences
  punishable under Sections 302/149/34/147/148, 325/149, 323/149 and
  436/149 of the Indian Penal Code for various terms of sentences. All
  sentences were ordered to run concurrently. 41 accused persons were also
  put up for trial under Section 3 of TADA but all were acquitted by the
  trial court. The State of Gujarat has filed the appeal challenging the order
F
   of acquittal against original accused Nos. 15 to 18, 19 to 22, 24 to 28, 32,
  33 to 36 and 41. The Judgment of the Designated Court is dated 12.6.1987.

            13. There is no serious challenge before us that Pochabhai, Prabhub-
     hai, Khodabhai and Mohanbhai met with homicidal deaths in an incident
G    which took place on 25th January, 1986 at Vankarvas. All the four dead
     bodies were found on the road. Dr. Sachdev (P.W. 8) performed the
     autopsy on the <lead body of Pochabhai and the post-mortem report is at
     Ex. 162. He noticed as many as 27 external injuries on his person including
                                                                                     i
                                                                                    -1
     five incised wounds. There were also gun shot injuries and in all 99 pellets
H    were removed from the dead body. All these injuries were ante mortem
                                                                                     l
                                                                                     c
                                                                                     I
             CM. PARMAR v. STATE [S.P. KURDUKAR, J.]                      641

and were sufficient in the ordinary course of nature to cause death. Dr.         A
Sachdev testified that Pochabhai died because of shock and profused
bleeding.

       (14) Dr. Sachdev held the autopsy on the dead body of Prabhubhai
@ Prabhudas and P.M. examination report is at Ex.161. Dr. Sachdev noted
12 external marks of injuries including three incised wounds, three gun shot     B
entry wounds and two gun shot exit wounds. One gun shot wound was over
right anterior lateral aspect in the lower part of the neck. The size of the
hole was 3 ems. x 2 ems. The middle and lower lobes of right lungs were
badely lacerated. This injury Dr. Sachdev testified that must have been
caused by fire arm from a very close range and that this injury together         C
with the resultant internal injury was sufficient in the ordinary course of
nature to cause the death. All these injuries were ante mortem and the
injured died because of shock and extensive bleeding.

       (15) Dr. Deven Desai (P.W. 15) who performed the post mortem
examination on the dead body of Khodabhai found as many as 17 external           D
marks of injuries on his person. There was a stab injury on the back of
forearm and an incised wound on upper lip. There was fracture of lower
part of the third right femur. He sustained fracture of left scapula and
fracture of left 4th and 5th ribs resulting in laceration of pleura. Dr. Desai
testified that injuries mentioned in Column No. 17 of his report Ex. 185         E
were correct. He further testified that Khodabhai died because of injuries
caused to the vital parts of the body which were sufficient in the ordinary
course of nature to cause death. All these injuries were ante mortem.

      (16) Dr. Sachdev held the autopsy (Ex. 153) on the dead body of
Mohanbhai and noted four external injuries on his person. There was a            F
contusion in the size of 15 ems. x 5 ems. extending over posterior angles of
6th to 19th ribs by right side. The deceased had also sustained a lacerated
wound over lateral aspect, middle part of right thigh. There were fractures
of posterior angles of 6th, 7th, 8th and 9th ribs on the right side. Dr. Desai
stated that fractures of the ribs resulting in big contusion over the right      G
lung, middle and lower lobs and this fatal injury was sufficient in the
ordinary course of nature to cause death. All these injuries were ante
mortem.

     (17) After going through the medical evidence of both the doctors
we are satisfied that these four persons died unnatural deaths because of        H
   642                   SUPREME COURT REPORTS                 [1997) 3 S.C.R.

A number of injuries sustained by them during the incident in question. We,
    therefore, see no hesitation in concluding that Pochabhai. Prabhubhai,
    Khodabhai and Mohanbhai met with homicidal deaths.

         (18) The prosecution in order to prove the complicity of the appel-
B lants in the present crime examined as many as 31 witnesses of them 13
  had sustained injuries during the incident in question. We may first deal
  with the prosecution evidence relating to the complicity of the three
  accused, namely, Chandubhai (A-19), Jamubhai (A-20) and Nathubhai
  (A-21) . These three accused persons were said to have been carrying the
  fire arms (guns) with them. Pochabhai Kalabhai (P.W. 17) in his evidence
C stated that when Pochabhai and Prabhubhai (since deceased) were running
  towards Vankarvas, A-19, A-20, A-21 along with the appellants and other
  members of the unlawful assembly were chasing them and shouting that
  these Vankars should not be allowed to escape. These three accused
  persons while chasing both the deceased fired at them causing bleeding
D injuries and as a result thereof both of them fell down. In the meantime
  the appellants and other members of the unlawful assembly assaulted the
  deceased with spears and other lethal weapons and thereby caused their
  instantaneous deaths. Pochabhai further deposed that Pratap Amarsen
  (A-22), Amarsen Takhatsingh (A-24), Dhiru Mvubhai (A-25) Keharsingh
  (A-26), Amarsingh Dipsingh (A-27), Ranchor Singh (A-28), Nathu (A-32),
E Kalu (A-34) were having sticks and the other accused were having sharp
  edged weapons. They all assaulted Prabhubhai and Pochabhai with sticks
  and sharp edged weapons like Dharia and swords. The witness has given
  minute details as to how both the deceased were mercilessly assaulted by
  the appellants. This witness was searchingly cross-examined on behalf of
F the defence but we do not find any material to discredit his evidence. The
  evidence of Pochabhai is corroborated by host of other eye witnesses,
   namely, Icchalala (P.W. 18), Kala Latcha (P.W. 19), Prema Punji (P.W.
  20), Chika Raghav (P.W. 21), Ghelaganesh (P.W. 22), Nathasewa (P.W.
  23), Ratna Punja (P.W. 24), Leela Rowa (P.W. 25) and Bhika Ganga (P.W.
   26). Their evidence in substance is that A-19, A-20 and A-21 were chasing
G both the deceased and fired through their guns and as a result of fire arm
   injuries they fell down. All these witnesses again pointedly referred to the
   presence of more than 100 persons from Golana village belonging to
   Rajput, Harijan and other communities. All these appellants hailed from
   the same village were personally known to them and, therefore, there was
H no difficulty in identifying them. All these witnesses have given the neces-
·>---·
                     C.M. PARMAR v. STATE (S.P. KURDUKAR, J.]                 643

         sary particulars about the assault on the deceased persons with the sticks A
         and other deadly weapons.

                (19) Kalaitcha (P.W. 19), Bhikaganga (P.W. 26), Leelarewa (P.W.
         25), Itchalala (P.W. 18), Chika Raghav (P.W. 21) and Nathasewa (P.W. 23)
         were the injured eye witnesses. Their injury certificates are on record. The B
         presence of these witnesses at the time of incident, therefore, could not be
         doubted. Mr. T.U. Mehta, Learned Senior Counsel seriously challenged
         the evidence of these witnesses, firstly, on the ground that they are partisan
         witnesses and have tried to rope in as many persons as possible as accused
         from the Rajput, Harijan and other communities. He further urged that all
         these witnesses deposed that the mob of more than 100 persons was C
         chasing the deceased and other injured Vankars and if this be so mistaken
         identity of the accused persons could not be ruled out. To support this
         submission he urged that the trial court had acquitted a large number of
         accused persons and, therefore, the appellants are also entitled for acquit-
         tal and at any rate they are entitled for the benefit of doubt for want of D
         proper identification. We have very carefully gone through the evidence of
         these eye witnesses and we find no substance in any of these contentions.
         It cannot be ignored that the occurrence in question took place during day
         time and in fact the appellants were chasing the deceased and other injured
         persons right from the Golana bus stand till they reached Vankarvas where
         two persons were shot down and two were assaulted with sharp edged and E
         other with lethal weapons. The witnesses in our opinion had sufficient
         opportunity to identify the appellants and they were also known to them.
         After careful perusal of oral and documentary evidence on record we are
         of the considered view that the prosecution had successfully established the
         guilt of the appellants for which they were tried and convicted by the trial F
         court. There is enough material on record to show that the appellants came
         together with lethal weapons, started giving slogans and abusing Vankars
         and also chased them until 4 Vankars fell down on the ground <lead an<l
         many others were injured. Since the evidence of these eye witnesses is
         identical in all material particulars we do not think it necessary to
         reproduce the same. Mr. Mehta, learned counsel for the appellants inspite G
         of his strenuous efforts was unable to persuade us to reject the evidence
         of any of the witnesses for any sustainable reason. We, therefore, <lo not
         see any error in the judgment and order of conviction passed by the trial
         court in respect of A-19, A-20, A-21, A-22, A-24, A-25, A-26, A-27, A-28,
         A-32 and A-41. We accordingly uphold the order of convictions and H
    644                  SUPREME COURT REPORTS                  (1997] 3 S.C.R.

A sentences of these appellants/accused passed by the trial court.

          {20) Coming to the appeal of Kalabhai {A-34), Kalabhai {A-34),
    Kesharbhai {A-35) and Karsanbhai {A-36) who were also convicted along
    with the appellants for the offences punishable under Sections 147, 148,
                                                                                  -
B   302/149 of the IPC we are of the opinion that their case in view of the
    evidence of the eye-witnesses, stands on a different footing.

         {21) These three accused persons were alleged to have ransacked
  and set on fire the houses of Vinodbhai, Vallabhbhai and Balabhai. The
  prosecution in this behalf led the evidence of Nathabhai (P.W. 23),
C Vithalbhai (P.W 41), Narsinghbhai (P.W. 43), Balubhai (P.W. 44) and
  Manibhai (P.W. 47). Vithalbhai (P.W. 41) in his evidence has stated that
  he was sitting at his house at the time of incident which took place in the
  Vankarvas. He saw some persons belonging to his community were coming
  towards Vankarvas from the side of bus stand. A mob consisting of 100-150
D persons of Rajput, Harijan and other communities was chasing Vankars.
  He further stated that he identified A-34, A-35 and A-36 as they belonged
  to the same village. When he saw them coming to his house he closed the
  shutters of his door and stayed inside the house. These accused persons
  and other members of the riotous mob went towards the house of
E Vinodbhai. They were raising slogans "burn dhedwada''. When he came out
  of his house he saw A-34, A-35 and A-36 were setting the house of
  Vinodbhai on fire. At that time no other member of the riotous mob was
  present at that place. He, however admitted that he did not see A-34, A-
  35 and A-36 had set on fire the houses of Vallabhbhai and Balabhai. The
  houses of Vallabhbhai and Vinodbhai were adjacent to the house of
F Vinodbhai and it appears that they also caught fire. This witness was again
  searchingly cross examined by the defence but no material could be
  brought out on record to discredit his evidence. The evidence of this
  witness finds corroboration from the evidence of Nothibhai (P.W. 23),
  Narsinghbhai (P.W. 43), Balubhai (P.W. 44) and Naniben {P.W. 47). All
G these witnesses have consistently stated that A-34, A-35 and A-36 had set
   on fire the house of Vinodbhai. All these witnesses further stated that when
  these three accused were setting the house of Vinodbhai on fire they heard
  the sound of gunshot coming from the nearby place. It was not the claim
   of any of these witnesses that either of these three accused persons had
H used the fire arm and/or caused assault on the deceased persons.
                 C.M. PARMAR v. STATE [S.P. KURDUKAR, J.]                  645

          (22) It is no doubt true that these eye witnesses had deposed that      A
    A-34, A-35 and A-36 were the members of the unlawful assembly/riotous

-   mob which was chasing the deceased and the other injured persons of the
    Var.kar community from the bus stand until they reached Vankarvas but
    when the mob came near the house of Vinodbhai these three accused
    persons went to the house of Vinodbhai and thereafter set his house on        B
    fire and other members of the riotous mob continued to chase Vankars
    and thereafter they heard the firing sounds coming from that direction.
    The question that needs to be answered on these proved facts is as to
    whether A-34, A-35 and A-36 could be said to have shared the common
    object of committing murders with A-19, A-20 and A-21 who fired from
    their fire arms killing Prabhudas and Pochabhai as other appellants who       C
    caused an assault on Khodabhai and Mohanbhai with the deadly weapons
    as a result of which they also died on the spot. On the evidence on record,
    we find, it cannot be said to be conclusively established that A-34, A-35
    and A-36 also shared the common object to commit the above murders of
    four persons. The time factor in this behalf assumes great importance         D
    because when A-34, A-35 and A-36 were engaged in setting the house of
    Vinodbhai on fire the other appellants committed the murders of four
    persons by using fire arms and other deadly weapons. The trial court
    convicted A-34, A-35 and A-36 for committing the murders of Prabhubhai,
    Pochabhai, Khodabhai and Mohanbhai with the aid of both Sections 149/34
    IPC. On the proved facts we are, however, unable to affirm the conviction     E
    of A-34, A-35 and A-36 for the above murders either with the aid of
    Section 149 or Section 34 IPC but their conviction and sentence under
    Section 436/34 IPC must stand confirmed. It is no doubt true that these
    three accused persons while chasing Vankars caused injuries to variou~
    persons of the Vankar community for which they have been rightly con-
                                                                                  F
    victed and sentenced by the trial court under Sections 324/149 and 325/149
    IPC. The appellants being the members of an unlawful assembly committed
    the offence of rioting and have been rightly convicted under Sections 147
    and 148 of the IPC. In view of our final analysis of the material on record
    we are of the considered view that the conviction and sentence of A-34,
    A-35 and A-36 cannot be sustained under Section 302/149 of the IPC and        G
    consequently it is set aside, however their conviction and sentence for the
    other offences are confirmed.

          (23) As regards Criminal Appeal No. 354 of 1987 filed by the State
    challenging the order of acquittal passed by the trial court in respect of 18 H
    646                  SUPREME COURT REPORTS                  11997] 3 S.C.R.

A accused persons, wc arc of the considered opinion that the view taken by


                                                                                  -
    the trial court in acquitting them docs not suffer from any infirmity and
    they have been rightly acquitted by the trial court.

          (24) For the aforesaid conclusions the convictions and sentences of
    Chandubhai Malubhai Parmar (A-19), Jamubhai Gor<lhanbhai Dodiya
B   (A-20), Nathubhai Pratapsingh alias Prabhatbhai Parmar (A-21), Pratap-
    sang Amarsang Parmar (A-22), Amarsang Takhubhai alias Takhatsingh
    Parmar (A-24), Dhirubhai Mavubhai Parmar (A-25), Bahadurbhai alias
    Keharsingh Nathuhhai Parmar (A-26), Amarsang Dipsang alias Dipubhai
    Parmar (A-27) and Ranchodbhai Rambhai Parmar (A-28), Nathubhai
C   Rambhai Parmar (A-32) and Ganubhai alias Abhesing Mavubhai Parmar
    (A-41) awarded by the trial court on various counts are sustained and their
    appeal to stand dismissed. The conviction arc sentence of A-34, A-35 and
    A-36 under Sections 302/149 or 34 of the IPC is quashed and set aside and
    they arc acquitted of this charge, however their conviction and sentence
    under Section 436/34 !PC is upheld. The convictions and sentences passed
D   by the trial court against A-34, A-35 and A-36 on other counts arc con-
    firmed.

         (25) The appellants who are on bail shall surrender to their bail
    bonds to serve out the remaining part of their respective sentences.
E   Criminal Appeal No. 95/88 is partly allowed as indicated above. Criminal
    Appeal No. 354/87 to stand dismissed.

    V.S.S.                                      Crl.A. No 95/88 partly allowed
                                                  Crl.A. No. 354/87 dismissed.