Judgment

MITTER, J.:- In this appeal by special leave from a judgment of the Gujarat High Court the point canvassed before us was that inasmuch as the High Court found itself unable to rely fully on the evidence of six of the main prosecution witnesses with regard to at least two of the appellants before it in view of the evidence as to alibi, it had gone wrong in accepting the evidence with regard to the appellants before us and upholding their conviction.

2. The relevant facts for the disposal of the appeal may be stated as follows. The village of Nani Naroli in the District of Surat has a population of roughly 3,500 The Bhora community to which the appellants belong command a majority thereof. The other community which has any strength is that of the Maleka commanding a population of about 1,000. Both these communities are Muslim. Besides these two there is a small population of other people composed of Hindus and Vasavas. There was a good deal of hostility between Bhoras and the Maleks mainly engendered as a result of the Gram Panchayat elections in the middle of the year l967 whereat the Bhoras carried the day, and the original accused No. 1 and one Lalji were elected as Sarpanch and Deputy Sarpanch defeating the two Malek candidates. A Vasava by name Punia Jafra was murdered a few weeks before November 9, 1967 when the incident out of which this appeal arises took place. Some of the Maleks, namely Gulab Amir and his sons Vazir and Kalu, the last two losing their lives in the aforesaid incident, had helped the police in tracing out the dead body of Punia and had taken part in the investigations. This was followed by the arrest by the police of the original accused 1 to 10 in this case. Although they were released by the Judicial Magistrate on bail on October 11, 1967 applications were made to him as well as to the Sessions Judge at Surat to cancel their bails. It was alleged in these applications that the said accused were threatening to kill the persons who had helped the police in the investigation of Punia s murder and had given evidence against them. The Judicial Magistrate at Kathor had fixed the hearing of the application to cancel the bail of accused 1 to 10 on 7th November, 1967, but the application was not heard on that day because the notices had not been served on the accused persons. Not unnaturally this action of Gulab and his sons considerably angered the Bhora community and in particular the said ten accused. What exactly sparked off the trouble on the 9th November is not quite clear. The prosecution case and the defence version about its origin conflict with each other. However there can be little doubt that some sort of affray did take place a short while before this incident and accused No. 7 (one of the appellants before this Court), accused Nos. 28 and 36 and one Ayeshabibi were injured. A complaint was lodged at the police station against four of the Maleks including the three persons who lost their lives later. According to the prosecution, about 4.30 p. m. on November 9. 1967 a large crowd of Bhoras collected near a well about 140 feet from the house of Vazir armed with weapons like dharias, spears, axes and sticks and proceeded towards the house of Vazir. Two of the accused i.e., Nos. 12 and 13 (appellants before this Court) were also in the crowd with their guns. On seeing the crowd approaching. Vazir s wife Subhanbibi (P. W. 36) closed the front as well as the back doors of their house but the crowd began to break them open. Vazir who was in the house went upstairs in order to avoid capture. Some members of the crowd rushed towards the back of Vazir s house while some of them managed to get on to the upper portion of Vazir s house and others scaled the roof of his house. Vazir managed to get into Mohmad s house next door through a window on the first floor. This however did not save him from the crowd, some members whereof got inside Mohmad s house and catching Vazir in the upper portion of Mohmad