( 1 ) FIVE appellants, original accused in Sessions Case No. 193/99, have filed five separate appeals challenging the judgment and order of conviction and sentence dated 21-8-95 passed against them by the learned Additional Sessions Judge, Surat convicting them: (I) for the offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code and sentencing each of them to undergo Life Imprisonment and to pay a fine of Rs. 1000. 00,indefault to undergo S. I. for one year; (II) for the offence punishable under Section 323 read with Section 149 of the Indian Penal Code and sentencing each ofthem to undergo S. I. for six months and to pay a fine of Rs. 250. 00, in default to undergo S. I. for fifteen days; and (III) for the offence punishable under Section 135 of the Bombay Police Act and sentencing each of them to undergo S. I. for six months and to pay a fine of Rs. 250. 00, indefault to undergo S. I. for fifteen days. The sentences imposed on each of the appellant have been ordered to run concurrently.

( 2 ) SINCE all these appeals arise out of the aforesaid judgment and order dated 21-8-95, we have decided to hear and dispose them of by this common judgment.

( 3 ) IT may be noted that original accused Nos. 3,4 and 5 have not surrendered to the jail authority after the expiry of the furlough leave granted to them and have remained absconding. Therefore, Mr. M. A. Bukhari, learned Additional Public Prosecutor has raised an objection against the hearing of the appeals of the absconding appellants. Since this Court, while admitting the appeals on 24-6-96, refused bail on the sole consideration that the matter would be heard in the month of June, 1997, and that if the appeals are not heard and decided by the said outer time limit, liberty was reserved to the appellants to move this Court for bail, on behalf of the appellant of Criminal Appeal No. 857/95, it was pointed out to us that for no fault of his, he has to remain in jail and merely because other accused are absconding, that is not a ground not to take up the hearing of his appeal. Considering the facts and circumstances of the case, we have decided to hear all the appeals together by over-ruling the objection of the learned Additional Public Prosecutor in view of the decision of this Court in State of Gujarat vs Narubhai Amrabhai Chunara , 1997 (1) Crimes, 197, wherein it is laid down that the Appellate Court can hear and decide the appeal against acquittal in absence of the accused when provisions contained in Section 82 of the Criminal Procedure Code were duly complied with. That was a case wherein appeal against acquittal was filed and the accused got declared proclaimed offender in appeal and the question involved was whether appeal could be said to be ready for purpose of same being enlisted on the final hearing board ? While answering the question in affirmative, this Court held that even though the case was of acquittal but the principle remains the same.

( 4 ) ALL the above accused have been convicted for the offence of forming unlawful assembly having common intention to cause murder of deceased Dinky @ Hosedar Rohington Bhujwala and in furtherance of the said common intention, on 14-6-94 at about 10. 30 a. m. when the deceased and the complainant , Rakesh @ Rocky Champaklal Rana (PW 1, Ex. 16) ,were going on a motor cycle driven by the deceased and the complainant as a pillion rider, the motor cycle was stopped and the deceased was attacked by all the accused having deadly weapons like gupti, knife and stick on the main road in the busy locality of Nanavat area of the city of Surat with the result the deceased and the complainant fell down. The prosecution has alleged that the deceased was a Karate Champion having black belt. It is also the prosecution case that the acused side were also engaged in the profession of Karata and, therefore the motive alleged was that of professional rivalry. The complainant Rakesh also