JUDGEMENT
-
(1.)CRIMINAL Appeal No. 1160/2007 under sec. 374(2) of the Code of Criminal Procedure, has been preferred by the Appellant -Original Accused No. 1 against the judgment and order of conviction and sentence dated 8.5.2007 passed by the learned Presiding Officer, Fast Track Court No.9, Gondal, camp at Upleta in Sessions Case No. 58/2005, whereby, the learned trial Judge has convicted the present appellant ori. Accused no. 1 under sec. 302 of IPC and sentenced to undergo R/I for life and to pay a fine of Rs. 5000/ -, in default, to undergo further R/I for one year. He is also convicted under section 135 of the Bombay Police Act and sentenced to undergo R/I for one month.
(2.)CRIMINAL Appeal No. 2142/2009 has been preferred by the State under sec. 377 of the Code of Criminal Procedure, against the judgment and order dated 8.5.2007 passed by the learned Presiding Officer, Fast Track Court No.9, Gondal, camp at Upleta in Sessions Case No. 58/2005, whereby, the learned trial Judge has convicted the respondents - ori. Accused no. 2, 3, 4, and 5 under section 114 and 115 IPC and sentenced them to undergo R/I for two years and to pay a fine of Rs. 1000/ -each, in default, to undergo R/I for three months and acquitted the accused of the charges under section 143, 147, 148, 149, 34, 323 and 506(2) of IPC leveled against them. Since both the appeals arise from common judgment and order of the trial Court, they are heard and decided by this common judgment.
2.1 The brief facts of the prosecution case is that complainant is residing at punjabi colony, near hutment, Upleta along with his wife Prabhaben and is doing the business of iron scrap. It is further the case of the prosecution that father -in -law Lakhman Somabhai Makwana as well as his sister -in -law Manjuben Lakhmanbhai is also residing near the same colony and said Manjuben had purchased one room situated near the house of accused no. 1 Bhana Lancha and accused No. 4 Hanu Pancha, which was not liked to the accused persons, and therefore, all the accused persons in abatement of each other assaulted upon father -in -law Lakhman Somabhai and sister -in -law Manjuben Lakhmanbhai with deadly weapons like knife and pipe and committed the murder of Lakhman Somabhai and Manjuben daughter of Lakhmanbhai. Therefore, the complaint was filed by the complainant against the accused persons for committing murder of Lakhman Somabhai and Manjuben daughter of Lakhmanbhai.
2.2 The accused came to be arraigned for committing the murder. After the investigation, was complete, the charge -sheet was laid against the accused. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 58/2005.
2.3 Thereafter, the Sessions Court framed the charge below Exh. 1 against the accused for commission of the offence under section 302, 143, 147, 148, 149 and 506(2) of IPC and under section 135 of the Bombay Police Act. The accused have pleaded not guilty and claimed to be tried.
2.4 To prove the case against the accused, the prosecution has examined the following witnesses:
1. PW -1 Kishorkumar Babulal Ex. 22 2. PW -2 Rameshbhai ramabhai Ex. 24 3. PW -3 Satarbhai Noormamadbhai Ex. 26 4. PW -4 Kasambhai Amadbhai Ex. 28 5. PW -5 Shabbirbhai Motimiya Ex. 29 6. PW -6 Noormamad Ibrahim Ex. 33 7. PW -7 Pirzada Rasidmiya Husenmiya Ex. 35 8. PW -8 Irfan Ikbalkadri Ex. 37 9. PW -9 Imran Hanifbhai Ex. 38 10. PW -10 Iqbal Hasambhai Ex. 41 11. PW -11 Bodu Sattar Saiyed Ex. 42 12. PW -12 Husen Hajibhai Ex. 47 13. PW -13 Prabhaben Rameshbhai Ex. 48 14. PW -14 Nimuben Mithabhai Ex.51 15. PW -15 Kantaben Lakhmanbhai Ex. 52 16. PW -16 Dr. Kiranbhai Kalabhai Sagathiya Ex.53 17. PW -17 Jagdishchandra Nagindas Dave Ex.60 18. PW -18 Natvarsinh Jilubha Chudasama Ex. 63 19. PW -19 Rajendrasinh Takhatsinh Vala Ex. 66 20. PW -20 Khumansinh Devubha Parmar Ex.69
2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the accused.
1. Inquest panchnama Ex. 23 2. Complaint Ex. 24 3. Panchnama of scene of offence place Ex. 27 4. Panchnama of cltohes of deceased Ex.30 5. Panchnama of muddamal knife Ex. 34 6. Panchnama of clothes of accused Ex. 36 7. Arrest panchnama Ex. 39 8. Panchnama of clothes of accused Ex. 40 9. PM Note of Lakhmanbhai Somabhai Ex. 54 10. PM Note of Manjuben d/o Lakhmanbhai Ex. 55 11. Injury certificate of complainant Ex. 56 12. Yadi for blood sample Ex. 57 13. Yadi for PM Ex. 58 14. Yadi for preparing map Ex. 61 15. Yadi of sending map Ex. 62 16. Death form Ex. 64 17. Death form Ex. 65 18. Copy of entry No. 22/2005 Ex.67 19. Order by PSO for investigation Ex. 68 20. Dispatch note of sending muddamal to FSL Ex. 70 21. Receipt of FSL Ex. 71 22. FSL Report Ex. 72 23. Serological report Ex. 73 24. Notification Ex. 74 25. Yadi about sending of blood sample and cloths Ex. 75
(3.)THEREAFTER , after examining the witnesses, further statement of the accused under sec. 313 of CrPC was recorded in which the accused have denied the case of the prosecution.
After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 8.5.2007 held the present appellant - original accused no. 1 guilty of the charge levelled against him under sec. 302 of IPC and convicted and sentenced the appellant - accused no. 1, as stated above.