JAYANTIBHAI BHENKARBHAIversusSTATE OF GUJARAT

                     JAY ANTIBHAI BHENKARBHAI                                  A
                                      v.
                            ST ATE OF GUJARAT

                          SEPTEMBER 11. 2002

               [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]                            B


      Evidence Act, 1872:

       s. 11, J//ustration (a) ands. 103-Defence of alibi-Burden of proof-
Nine persons prosecuted for offences interalia u/s. 3021149, lPC-Defence of C
alibi raised by one of them namely A-9-His plea not accepted-He along
with eight others· convicted and sentenced by trial court-High Court also not
accepting his defence of alibi, but acquitting four others giving them benefit
of doubt-Appeal before Supreme Court by A-9 only, reiterating his plea of
alibi-Held, an obligation is cast on the court to weigh in scales the evidence D
adduced by the prosecution in proving the guilt of the accused and the evidence
adduced by the accused in proving his defence of alibi-if the evidence adduced
by the accused is of such a quality and of such a standard that the court may
entertain some reasonable doubt regarding his presence at the places and
time of occurrence, the court would evaluate the prosecution evidence to see
if the evidence add1'ced on behalf of the prosecution leaves any slot available E
lo fit therein the defence of alibi-The burden of the accused 11/s. 103 is
undoubtedly heavy-However, while weighing the prosecution case and the
defence case, pitted against each other, if the balance tilts in favour of the
accused, the prosecution would fall and the accused would be entitled to
benefit of that reasonable doubt which would emerge in the mind of the F
court-In the facts and circumstances of the case and keeping in view the
nature of the accusations made against the accused-appellant and weighing
the same agairist the overwhelming defence evidence adduced by the accused-
appellant in support of his plea of alibi, a reasonable doubt is created in the
prosecution case so far as the participation of A-9 in the incident is concerned--
The High Court itself has arrived at a finding in favour of A-9 that his G
presence at the place stated by him upto 11.00 a.111. on the date of the incident
cannot be doubted. That being so, it is rendered highly improbable if A-9
could have reached back at the place of occurrence by the time the incident
happened -A-9 is entitled to benefit of doubt and his appeal is allowed-With
the acquittal of A-9, though the charge with the aid of s.149 /PC may fail, yet H
                                    255
    256                    SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A   non-appealing accused could still have been held liable to conviction with the
    aid of s.34 /PC in which event the sentences would have remained the same.
    However, inasmuch as the other accused have chosen not to file any appeal
    of their own, the sustainability of their conviction is not examined-Pena/
    Code, 1860-ss. 3021149. 14711481452-Criminal lau~Defence of alibi.

B        CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No.555
    of 200 I.

         From the Judgment and Order dated 24.8.1998 of the Gujarat High
    Court in Crl. A. No.114/91.

C         Tanuj Bagga Sharma, Advocate (A.C.) for the Appellant.

         Divyang K. Chhaya, Hemantika Wahi and Aruna Gupta, for the
    Respondent.

          The following Order of the Court was delivered :
D       In an incident which took place in village Singpur of Taltik Songadh,
  Gujarat on 6.7.1989 at about 8.30 p.m. one Lallubhai Naranbhai died on
  account of injuries inflicted on him. Nine accused persons were charged with
  having committed offences punishable under Sections 302/149 and 147/148/
  452 IPC. Four accused persons, namely, accused Nos. 2.,4,5, and 8 were
E directed to be acquitted by the trial Court as the charges ~gainst them were
  not proved and they were entitled to the benefit of doubt. Accused Nos. I,
  3, 6, 7 and 9 were held guilty of having committed the offence punishable
  under Section 302/149 IPC. These five accused persons were sentenced to
  undergo imprisonment for life and a fine of Rs. 250 each and in default to
F further undergo rigorous imprisonment for one month each. They were further
  sentenced to undergo rigorous imprisonment for one year each for having
  committed offences under Sections 147/148 and 452 !PC and also to pay a
  fine of Rs. 125 and in default of payment to undergo further imprisonment
  of one month each. The sentences were directed to run concurrently. All the
  five convicted accused persons preferred appeal before the High Court which
G has been dismissed. Accused Nos. 1, 3, 6 and 7,, namely, Singha Magan,
  Dina Afiniya, Digniya Rama and Rupa Singha have accepted the judgment
  of the High Court and have not pursued challenge to their conviction upto
  this Court. It is only the accused No. 9 Jayantibhai Bhenkarbhai who has
  filed this appeal by special leave.

H         The prosecution case briefly stated is that the accused No. 1 Singha
            .Ii\ YANTIBHAl BHENKARBHAI v. STATE OF GUJARAT                    257

Magan came to visit the house. of one Lalji Rajia at about 6.00 p.m. on A
6.7.1.989. Lalji Rajia was not at his house. Singha Magan demanded liquor
from Ashwin, a minor son ofLalji Rajia, which was objected to by Ushniben.
the wife of Lalji Rajia. There was some verbal altercation. Singha Magan (A-
 l) was speaking in foul language and was argumentative insisting on fulfilling
his demand for liquor. At this point of time, Lalubhai and his brother Kantibhai, B
who were next door neighbourers of Lalji Rajia came out, and intervened and
chastised the accused Singha Magan by telling him that in the absence of
Lalji.Rajia, the accused should not have harassed the lady who was alone in
the house. The accused was asked by Lalubhai to leave that locality and go
away. This annoyed the accused and he left threatening that he would see
him later.                                                                            c
      At about 8.00 p.m. on the same day, accused No. 1 Singha Magan
returned to the house of the deceased accompanied by accused Nos. 2 to 9.
The accused persons were severally armed. Accused No. 1 Singha Magan
was armed with a knife, accused No. 7 Rupa Singha had a pestle with him.
Accused No 6 Digniya Rama and accused No. 9 Jayantibhai Bhenkarbhai                   D
were armed with sticks. The incident was witnessed by Kantibhai and
Thakorebhai, brothers of the deceased. The accused persons fled away after
assaulting the victim. Thakhorebhai went to Channabhai Dhirubhai and
narrated to him the incident. He advised for a report being lodged with the
police. Thakorebhai accompanied by Channi!bhai Dhirubhai went to Ukai                 E
police station situated at a distance of about 10-12 Kms. and lodged F.l.R.
of the incident at 6.00 a.m. on 7.7.1989. A cognizable offence was registered
and investigation commenced.

      Shortly after the incident of.assault Lalubhai succumbed to his injuries.
Post-mortem on the dead body was performed by Dr. Surendra, Medical                   F
Officer, General Hospital, Songadh. The deceased was found to have sustained
22 injuries out of which 3 were incised wounds and remaining were contused
lacerated wounds or abrasions, On internal examination, the deceased was
found to have sustained fracture of right 5th and 6th ribs at the level of right
midclavicular line and fracture of left 7 th, 8th and 9th ribs at the level of left
midscapular line. The injuries were ante-mortem. The incised wounds could             G
have been caused by sharp cutting weapon such as knife while other injuries
could have been caused by blunt object such as stick, pestle or back portion
of dharia.

      The short question for decision in this appeal is whether Jayantibhai, H
    258                     SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A the accused- appellant can be held to have participated in the incident of
    assault and as a member of unlawful assembJy9

           The accused denied his participation in the incident of assault on the
    deceased. His defence is that a day before the incident he had left village
    Singpur and gone io Ahmedabad in order to attend hearing in an election
B   appeal filed by him before Additional Development Commissioner which
    was scheduled to be heard on 6.7.1989 at Gandhinagar. According to the
    accused-appellant there was yet another case - a criminal case under Section
    409 !PC wherein he was accused and pending for trial in the Court of Judicial
    Magistrate at Vyara. Therein, also the date of hearing was appointed as
C   6. 7.1989 and his personal appearance was required. In the election appeal
    Kantilal Shah, DW-3 was the advocate appointed by him. The election appeal
    had come up for hearing on 14.6.1989 and was adjourned for hearing on
    6.7.1989. ln the criminal case at Vyara Dhansukhbhai DW-4 was the counsel
    appointed by the accused-appellant. Kantilal Shah DW-3 had, on the hearing
    being adjourned on 14.6.1989, sent a postcard to the accused-appellant
D   informing him that the hearing would positively take place on 6.7.1989 which
    he must attend. As the accused appellant could not have attended both the
    cases, i.e., the criminal case at Vyara and the election appeal at Gandhi
    Nagar, both fixed for 6. 7.1989, he had through counsel Shri Dhansukhbhai
    DW-4 moved application in the Court of Judicial Magistrate, Vyara seeking
E   exemption from personal appearance and an adjournment. This application
    was rejected on 6. 7.1989 and the learned Judicial Magistrate at Vyara directed
    warrants to be issued against the accused. However, the accused-appellan't
    did attend the hearing before the Addi. Development Commissioner on
    6.7.1989. :fhe hearing commenced after 11.00 a.m. and continued upto 2.30
     p.m.
F
          The version of the defence proceeds to say that the accused-appellant
    went to see and was going around the zoo at Ahmedabad for about half an
    hour commencing at 4.00 p.m. Thereafter, he went to Gandhi Nagar to meet
    one Rahulbhai who is employed as a clerk in the Secretariat at Gandhi Nagar.
    He secured pass for entry in the Secretariat and he signed the entry register
G   wherein his name is mentioned alone with his signatures. The accused then
    returned to Ahmedabad and went to stay with one Manekhbai DW-2. It was
    at about midnight that Manekhbai and Dineshbhai went to see off the accused-
    appellant at the bus station at Ahmedabad where the accused-appellant boarded
    a bu~ originating from a station in Rajasthan and proceeding to Songadh and
H   reached Singpur in the morning of 7.7.1989. This register was summoned in
            JAY ANTJBHAI BHENKARBHAI v. STATE OF GUJARAT                  259
evidence and the accused-appellant appearing as DW-2 has deposed on oath          A
to the entry made in his presence by the concerned clerk and the signatures
put up by him on the register.

       The accused himself chose to appear in witness box and took oath to
depose in support of his own version. He also examined Kantilal Shah,
Advocate DW-3 and Ramanbhai DW-5 clerk in the office of the Additional            B
Development Commissioner, According to Ramanbhai DW-5 the Additional
Development Commissioner was regular in coming to the office at I 0.30
a.m. and his routine was to attend to miscellaneous work, including disposal
of the mail received, for about half an hour and commence hearing of cases
at 11.00 a.m. The appellant's case was at item No. 4. The first three cases did   C
not proceed and therefore the hearing of the appellant's case was taken up
at about 11.30 a.m. and lasted upto 2.00 or 2.30 p.m. In the records maintained
in the office of Addi. Development Commissioner, the presence of the accused-
appellant alongwith his counsel Kantilal Shah DW-3 is recorded and both
have signed in token of their having attended the office of Addi. Development
Commissioner and participated in the hearing. Ramanbhai DW-5 has further          D
deposed that he used to remain present during the course of hearings by the
Additional Development Commissioner and take notes of the submissions
made which he did on 6.7 .1989 also. In view of the involvement of the
accused-appellant having been alleged in the incident, he moved an application
to the AddL Development Commissioner to issue certificate showing his             E
presence in the office of the Addi. Development Commissioner on 6.7.1989.
Certificate in that regard was issued though the time at which the accused-
appellant was present before the Addi. Development Commissioner was not
mentioned in the certificate; obviously because record of such time is not
maintained. The fact remains that the accused-appellant was in attendance in
the office of Additional Development Commissioner at Gandhinagar some             F
time after 11.00 a.m. on that day. The post-card dated 19.6.1989 written by
Kantilal Shah. Advocate to the accused-appellant and sent through post bearing
postal stamps and seals was produced in evidence wherein it has been
co~municated by the counsel to the appellant that his default in appearance
on 14.6.1989 was viewed seriously and his appearance on 6. 7 .1989 was a          G
must. On this very ground the appellant had moved an application before the
judicial Magistrate Vyara seeking exemption from personal appearance on
6.7.1989. In support of the said application the post-card sent by advocate
Kantilal Shah was filed. The record of this application accompanied by post-
card was summoned in the Trial Court and proved by Dhansukhbai, Advocate
DW-4 appearing for the accused-appellant before the Magistrate's Court at         H ·
    260                     SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Vyara.
           The accused-appellant also produced in evidence two tickets of zoo
    purchased by him for himself and Dineshbhai on 6.7.1989. He also produced
    the bus tickets issued by the conductor of the bus by which he travelled from
    Ahmedabad to Singpur. The appellant had boarded the bus at about 1.00
B   a.m., that is, a little afterthe midnight of6.7.1989 and reached Singpur in the
    morning of 7.7.1989.

           Having learnt of the accusation against him the accused-appellant had
    moved an application on 10.7.1989 seeking anticipatory bail from the Sessions
C   Courts. The application was rejected. He pursued his prayer for anticipatory
    bail by moving the High Court but thereat also he failed. However, what is
    significant to note is that even in the application for anticipatory bail moved
    on 10.7.1989 the accused-appellant pleaded alibi in support of his prayer for
    anticipatory bail.

D         Babula! PW-9, the investigating officer has admitted during his cross-
    examination that if the road is clear and there are no obstructions then ST bus
    can reach Ahmedabad from Songadh village in 8 hours. However, he further
    admitted that if one has to travel by ST bus from Songadh to Ahmedabad
    then all ST buses go to Ahmedabad from Songadh invariably via Surat which
    would take a little longer time.
E
           The High Court took into consideration the plea of alibi taken by the
    accused-appellant and formed an opinion that the plea was not strictly proved
    as required so as to completely exclude the possibility of the accused having
    been present at the place and time of the incident. The reasons assigned by
    the High Court are that through the prosecution evidence the involvement of
F   the accused in the incident is proved beyond reasonable doubt. As against
    this, the conduct of the accused-appellant appears to be unnatural inasmuch
    as he did not promptly (that is, on 7.7.1989 itself) approach the investigating
    officer to tell him that he was being falsely implicated as he was in fact in
    Ahmedabad on the date and at the time of the incident. In the opinion of the
G   High Court the plea of alibi was not also fully substantiated in view of non-
    examination of Dineshbhai, who had accompanied the accused in Ahmedabad
    while he boarded the. bus for Songarh and Rahulbhai, the clerk in the Secretariat
    to whom the accused claims to have gone to meet at about 5.15 p.m. on
    6.7.1989.

H         These very reasons were assigned by the Trial Court for disbelieving
           JAY ANTIBHAI BHENKARBHAI v. ST ATE OF GUJARAT                    261
the plea of alibi taken by the accused-appellant. However, an additional A
reason assigned by the Trial Court is that in the application for anticipatory
bail the accused has stated his presence in the office of Addi. Development
Commissioner upto 1.00 p.m. only while later on he tried to improve upon
his version by pleading that he had remained present there upto 2.30 p.m.
Vide para 27.1 of the judgment, the High Court while appreciating the defence B
evidence, has arrived at a positive finding that the accused-appellant has been
able to prove by his evidence his presence at about 11.00 a.m. at Gandhi
Nagar in the office of Addi. Development Commissioner. Thus, even in the
opinion of the High Court, the plea of the accused that he had on the date
of the incident gone to Ahmedabad to take part in the hearing of his appeal
fixed before Addi. Development Commissioner is not false and at least at C
11.00 a.m. He was present thereat.

       In the facts and circumstances of this case we propose to begin by
dealing with the evidence of alibi adduced by the accused-appellant. We
have no reason to disbelieve the statement of Kantilal Shah, advoc,ate DW-
3 and Ramanbhai DW-5, clerk who have deposed that the hearing before the            D
Addi. Development Commissioner had taken place on that date and that the
accused was present at the time of hearing. The hearing must have lasted for
a reasonable length of time assuming withoutholding that it had not continued
upto 2 or 2.30 p.rn. We have also no reason to doubt the entry in the Secretariat
register wherein the name and particulars of the accused-appellant are              E
mentioned as one of the visitors to the Secretariat on that date alongwith the
signatures of the accused-appellant against the entry. This shows that on
6.7.1989 the accused did visit Gandhi Nagar. Assuming that the accused-
appellant had departed from the office of Add. Development Commissioner
at the conclusion of hearing of his case, he must have spent a reasonable time
in visiting the Secretariat which would obviously be during the working             F
hours of the day. Thereafter, he may have left Gandhi Nagar for Songadh.
According to the available modes of transport he would have taken a bus
from Gandhi Nagar for Ahmedabad and from Ahmedabad he would have
boarded a bus for Songadh which would proceed via Surat Only. A public
transport required to cover a distance of about 300 Kms., allowing a reasonable     G
margin for time lost in stoppages on way, would take about 8 to I 0 hours to
reach Songadh. It does not appear probable that the accused-appellant could
have reached Singpur and participated in the incident which is said to have
taken place at about 8.00 p.m.

      On the next day the accused-appellant learnt of the Judicial Magistrate       H
    262                      SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Vyara having turned down his prayer for exemption from personal appearance
    before the Court at Vyara on 6.7.1989 and consequently having issued a
    warrant of arrest for securing the presence of accused before him. The accused-
    appellant rushed to Vyara, appeared in the Court and moved an application
    for recalling warrant of arrest stating the factum of his presence before the
B   Additional Development Commissioner at Gandinagar on 6.7.1989. This
    application was allowed and the warrant of arrest was recalled. These relevant
    facts have been deposed to by reference to the documents from the record of
    the Judicial Magistrate, Vyara by Dhansukh Bai, Advocate, DW-4.                     ...
          We have carefully gone through the prosecution evidence. Although
C the Trial Court as well as the High Court have recorded a finding of the
  accused-appellant having participated in the incident but a few prominent
  features of the prosecution case and of the findings arrived at by the two
  Courts need to be noticed. All the four eye witnesses are not specific about
  the overt act attributed to this accused-appellant. While some witnesses attribute
  two specific injuries on the person of the deceased having been caused by
D this ac?used appellant, others only make a generalised statement of this accused
  appellant also having participated in the assault. There is another accused
  also, namely, Digniya Rama (A-6) who was armed with a stick. A stick stated
  to have been used in the incident has been recovered from the accused Digniya
  Rama (A-6). No recovery has been made from the accused-appellant. Secondly,
E the incident took place at about 8 p.m. while the first information report of
  the incident was lodged at 6 a.m. at a police station situated at a distance of
  about JO to 12 Kms. from the village where the incident took place. The
  F.l.R. cannot be said to be belated. But, the fact remains that the first informant
  was in the company of Chhanabhai Dhirupbhai, a political rival of the accused-
  appellant, soon after the incident and before and at the time of lodging of
F F.l.R. A possibility of some embellishment having crept into the F.l.R. in
  view of the political influence wielded by such opponent of the accused-
   appellant cannot be completely ruled out. Thirdly, this accused-appellant,
   from the very beginning, no sooner he learnt of accusation against him, took
   the defence of alibi by informing the necessary facts to the investigating
G officer on 8.7.1989 itself. Thereafter, this plea of alibi has been consistent
   and reflected in several documents of undoubted veracity as also substantiated
   by the testimony of such witnesses who do not have any animus to falsely
   depose in favour of the accused. There is also supporting documentary
   evidence of unimpeachable veracity adduced in support of the defence plea.

H          In view of the overwhelming evidence adduced by the accused-appellant,
           .IA YANTIBHAI BHENKARBHAI v. ST ATE OF GUJARAT                   263

the factum of non-examination of Dinesh Bhai and Rahulbhai pales into A
insignificance. Rahulbhai could have only supplied some more details of the
visit of accused-appellant to him in the secretariat which visit cannot be
doubted on account of entries made in the visitors register. Dinesh Bhai
could have spoken of the accused-appellant's stay at Ahmedabad upto the
mid-night of 6th and 7th July, 1989. His evidence would have been oral and B
subjected to usual criticism. But his non-examination does not water down
the impact of finding that during the delay at least upto after the mid-day the
accused was undoubtedly present in Ahmedabad and Gandhinagar leaving
aside the exact time whether upto 1.00 p.m. or 2.00 p.m. or 2.30 p.m. His
such presence at Gandhinagar and Ahmedabad renders it highly improbable
that he could have been in or reached at, Singpur by 8.00 p.111. the same day. C

      Section 11 of the Evidence Act, 1872 provides that facts not otherwise
relevant are relevant if they are inconsistent with any fact in issue or relevant
fact or if by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or a relevant fact highly
probable or improbable. Illustration (a) of Section 11 reads as under :             D
      Illustrations

       (a) The question is, whether A committed a crime at (Calcutta), on
           certain day. The fact that, on that day A was at [Lahore) is
           relevant.                                                                E
             The fact that near the time when the crime was committed, A
             was at a distance from the place where it was committed, which
             would render it highly improbable, though not impossible, that
             he committed it, is relevant.
       (b) xxx                             xxx                    xxx               F

       The plea of alibi flows from Section 11 and is demonstrated by
illustration (a). Sarkar on Evidence (Fifteenth Edition, p. 258) states the word
'alibi' is of Latin origin and means "elsewhere". It is a convenient term used
for the defence taken by an accused that when the occurrence took place he
was so far away from the place of occurrence that it is highly improbable that G
he would have participated in the crime. Alibi is not an exception (a special
or general) envisaged in the Indian Penal Code or any other law. It is only
a rule of evidence recognized in Section 11 of the Evidence Act that facts
which are inconsistent with the fact in issue are relevant. The burden of
proving commission of offence by the accused so as to fasten the liability of H
    264                      SUPREME COURT REPORTS (2002] SUPP. 2 S.C.R.

A guilty on him remains on the prosecution and would not be lessened by the
  mere fact that the accused had adopted the defence of alibi. The plead of alibi
  taken by the accused needs to be considered only when the burden which lies
  on the prosecution has been discharged satisfactorily. If the prosecution has
  failed in discharging its burden of proving the commission of crime by the
B accused beyond any reasonable doubt, it may not be necessary to go into the
  question whether the accused has succeeded in proving the defence of alibi.
  But once the prosecution succeeds in discharging its burden then it is
  incumbent on the accused taking the plea of alibi to prove it with certainty
  so as to exclude the possibility of his presence at the place and time of
  occurrence. An obligations is cast on the Court to weigh in scales the evidence
C adduced by the prosecution in proving of the guilt of the accused and the
  evidence adduced by the accused in proving his defence of alibi. If the
  evidence adduced by the accused is of such a quality and of such a standard
  that the Court may entertain some reasonable doubt regarding his presence
  at the place and time of occurrence, the Court would evaluate the prosecution
  evidence to the see if the evidence adduced on behalf of the prosecution
D leaves any slot available to fit therein the defence of alibi. The burden of the.
  accused is undoubtedly heavy. This flows from Section l 03 of the Evidence
  Act which provides that the burden of proof as to any particular fact lies on
  that person who wishes the Court to believe in its existence. However, while
  weighing the prosecution case and the defence case, pitted against each other,
E if the balance tilts in favour of the accused, the prosecution would fail and
  the accused would be entitled to benefit of that reasonable doubt which
   would emerge in the mind of the Court.

           Reverting back to the facts and circumstances of the case and keeping
    in view the nature of the accusations made against the accused-appellant and
F   weighing the same against the overwhelming defence evidence adduced by
    the accused-appellant in support of his plea of alibi, in our opinion, a reasonable
    doubt is created in the prosecution case so far as the participation of this
    accused-appellant in the incident is concerned. We have already noted, the
    High Court itself, having arrived at a finding in favour of the accused-appellant
    that his presence at Gandhi Nagar upto 11.00 a.m. on the date of the incident
G   cannot be doubted. That being so, it is rendered high improbable if the
    accused-appellant could have reached back village Singpur by the time the
     incident happened.

        For the foregoing reasons, we are of the opinion that the accused-
H appellant is entitled to benefit of doubt and his appeal therefore deserves to
           JAY ANTIBHAI BHENKARBHAI v. STATE OF GUJARAT                  265
be allowed.                                                                      A
      Though we are holding Jayantibhai Bhenkarbhai, the accused-appellant
before us entitled to acquittal, we are conscious of the fact that the High
Court has held five accused persons guilty and convicted them with the aid
of Section 149 IPC. With the acquittal of Jayantibhai Bhenkarbhai (A-9), the
accused-appellant before us, the number of culprits who participated in the      B
incident is reduced to Jess than five and the charge with the aid of Section
149 IPC falls the ground. We could have, in exercise of our jurisdiction
under Article 136 of the Constitution, entered into the legality and propriety
of the conviction of the non-appealing accused persons also. However, in the
facts and circumstances of the present case, we are not inclined to do so.       C
Though the charge with the aid of Section 149 IPC may fail, yet non-appealing
accusedcpersons could still have been held liable to conviction with the aid
of Section 34 IPC in which event the sentences would have remained the
same. Be that as it may, in as much as the other accused-appellants have
chosen not to file any appeal of their own, we are not inclined to enter into
examining the sustainability of the conviction of the non-appealing accused      D
persons.

       The appeal filed by Jayantibhai Bhenkarbhai, the appellant before us;
is allowed. His conviction under Section 302/149 !PC and Section 147/148/
452 IPC is set aside. He is directed to be acquitted. He shall be released
forthwith if not required to be detained in any other offence.                   E
      We place on record our appreciation of the valuable assjsttmce rendered
by Ms. Tanuj Bagga Sharma, the learned amicus as also of the fairness with
which Mr. Divyang K. Chhaya, the learned counsel for the State argued the
case.
                                                                                 F
R.P.                                                         Appeal allowed.