ANANT S. DAVE, J.

1. Criminal Appeal No.1226 of 2005 is filed by the appellant, State of Gujarat, under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence qua original accused Nos.1 to 7 and 13 who came to be convicted pursuant to the judgement order dated 10.12.2004 passed by learned Additional Sessions & Joint District Judge, (Fast Track Court No.4) Bharuch in Sessions Case No. 119 of 2002.

2. Criminal Appeal No.23 of 2005 is preferred under Section 374 (2) of Code of Criminal Procedure, 1973 against the very judgement by the appellants, original accused Nos.1 to 7 and 13 against the conviction order passed vide judgement order dated 10.12.2004 passed by learned Additional Sessions & Joint District Judge, (Fast Track Court No.4) Bharuch in Sessions Case No. 119 of 2002.

3. The accused persons were tried in the Court of learned Additional Sessions & Joint District Judge, (Fast Track Court No.4) Bharuch in Sessions Case No.119 of 2002 for the offences punihjsbale under Sections 143, 147, 148, 149, 337, 332, 436, 427, 188, 120B of Indian Penal Code and Section 135 of the Bombay Police Act and at the end of the trial the learned judge convicted the accused Nos. 1 to 7 as well as accused No.13 inflicting three months simple imprisonment for the offence punishable under Sections 143, 147 and 149 and fine of Rs.200/- and in default of that further seven days simple imprisonment while simple imprisonment for one year and fine of Rs.500/- and in default of that further fifteen days simple imprisonment for the offences punishable under sections 332, 337 and 149 and fine of Rs.200/- and in default of that further seven days simple imprisonment. While simple imprisonment for one year and fine of Rs.500/- and in default of that further fifteen days simple imprisonment for the offences punishable under Sections 332, 337 and 149 of Indian Penal Code, as well as simple imprisonment for one year and fine of Rs.500/- and in default of that further fifteen days simple imprisonment for the offences punishable under Sections 427 and 149 of Indian Penal Code. The learned Judge also convicted the accused persons for the offences punishable under Sections 188 and 149 and directed to pay fine of Rs.100/- and in default of that further seven days simple imprisonment. It is however, no separate punishment was warranted for the offences under Section 135 of the Bombay Police Act. All the punishments were directed to run concurrently.

4. That learned Sessions Judge has been pleased to acquit the original accused Nos. 8, 9, 10, 11 and 12 from the charges levelled against them after giving benefit of doubt.

5. The brief facts leading to the case is as under:

5.1. The complainant Jasvantbhai Dhirajsinh, Head Constable attached to Bharuch City ‘B’ Division Police Station has lodged the complaint alleging inter-alia that on 1.3.2002 at about 14 hours when he along with other police personnel were present at Old Mamlatdar Officer at fixed point duty, at that time mob comprising of 50 to 100 persons of minority community came from Hajipir Kirmani Mosque towards Lalbazar Pkhalivad, Rajput street shouting “Marro Kaapo and set ablaze the houses”. The complainant along with other police personnel ordered mob to disperse, but the mob did not comply with the order and started pelting stones. Since mob was having lethal weapons in their possession a message was transmitted to the police mobile and hence other police personnel were reinforced and ordered the mob to disperse but the mob did not comply with the order. Hence, four gas cells were fired from the Gas Gun, at that time gunman Mehbubkhan received stone injuries and therefore he was sent to the hospital for medical treatment. It is the further case of the prosecution that some of the members of mob tried to ignite the houses and also set ablaze auto-rickshaw. Hence, police intercepted the accused persons (1) Abdulvahab (2) Gulam Murtuja (3) Mohammad Saffi (4) Vali Mohammad (5)