JUDGEMENT
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(1.)The appellant-ori. Accused no. 3 has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 23.4.2007 passed by the learned Sessions Judge, Vadodara in Sessions Case No. 115/2006, whereby, the learned trial Judge has convicted the appellant- ori. Accused under sec. 302 of IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default, to undergo S/I for 30 days, which is impugned in this appeal.
(2.)1 The case of the prosecution is that the complainant Chandubhai has two sons namely Kanchan and Kanji, and one daughter Rekha. His elder son Kanchan was residing separately with his wife Ganga, mother Ujiben and his two sons in a house given by the complainant's father Shantibhai Chhotabhai rathodiya. The complainant has three younger brothers namely, Karshan, Raman and Balu. The complainant Chandu and his two brothers karshan and raman are residing separately in Indira Colony, whereas, the youngest brother Balu is residing separately with his family in Old Colony adjacent to Kanchan's house. The complainant's son Kanchan, from the very beginning was residing with his grandfather shantibhai, and due to love and affection, Shantibhai decided to give the said house to Kanchan, treating him as his fifth son. However,comlainant's three brothers and their family members were not happy with this decision, and they were, of and on, insisting upon Kanchan to vacate the said house and to give share to them.
2.2 On 25.4.2006,at about 8.00p.m., Ganga w/o Kanchan had come to New Colony and told the complainant that "Balukaka is insisting to vacate the house, and, Balukaka by catching private part (Sunvalo) of Kanchan, pulled out him from the house." After half an hour, Kanchan himself came to meet the complainant Chandubhai and told that Balukaka has beaten him for vacating the house. Upon the request made by Kanchan, the complainant himself accompanied with Kanchan went to meet Karshan and Raman for taking their help, but, instead of helping, both Karshan and Raman, as also Ripin s/o. Karshan started beating Kanchan.
Thereafter, the complainant Chandubhai and his wife Baluben went to Old Colony with Kanchan, and they decided to meet Sarpanch of the village Haripura, and to request him to intervene for resolving the dispute about the ancestral house. While complainant Chandu, his wife Baluben, his son Kanchan and Ganga w/o Kanchan were going to the house of Sarpanch, at about 10.30, when they reached near the house of Mahendra Jaysing Surve, all the four accused,namely Balu, Karshan, Raman and Ripin who were hidden in dark, suddenly attacked with sticks and knife on Kanchan. First of all, Karshan inflicted blow on back of Kanchan, due to which he fell down and when he was trying to get up, and escape, Balu caught Kanchan, and at that time, Raman caused injury to Kanchan by inflicting knife blow on the right side of stomach. When Kanchan fell down, Balu and Ripin inflicted blows on his back by lathies (sticks). The complainant Chandubhai, his wife Baluben, Ganga w/o Kanchan immediately shouted for help, and therefore, all the accused ran away from the place of incident. Due to injuries, there was severe bleeding,m and to restrain it, Kanji, younger son of the complainant taking a handkerchief from Vikram s/o. Balu tied that part of bleeding. Many persons came thee from nearby area. Immediately, Kanchan was shifted to Jarod Referral Hospital by Three Wheeler Tempo of Kamlesh K. Aye, but, unfortunately, the doctor after examining Kanchan, declared him as 'dead'. Therefore, a complaint was lodged.
2.3 The appellant accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellant. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 115/2006.
2.4 Thereafter, the Sessions Court framed the charge below Exh. 3 against the appellant for commission of the offence under section 302 of IPC. The appellant-accused has pleaded not guilty and claimed to be tried.
2.5 To prove the case against the present appellant, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocate for the appellant.
1. Chandubhai Shantilal Rathodiya Ex. 11
2. Gangaben Kanchanbhai Ex. 13
3. Mahendra Jaysingrao Surve Ex.14
4. Rameshbhai Dahyabhai Ex. 15
5. Ranchhodbhai Govindbhai Parmar Ex. 20
6. Kalpeshkumar Girvatsinh Chavda Ex. 25
7. Savajibhai Jerambhai Vaghasiya Ex. 27
8. Dr. Chetana Naginlal Panchal Ex. 32
2.6 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused.
1. Complaint Ex. 12
2. Panchnama of place of incident Ex. 16
3. Inquest panchnama Ex. 18
4. Panchnama of clothes seized from the dead body of the deceased Ex. 19
5. Panchnama of body of accused no. 3 Ex. 21
6. Panchnama of recovery of knife Ex. 22
7. Panchnama of body of accused no. 1,2 & 4 Ex.26
8. Letter to FSL Ex. 28
9. FSL Report Ex. 29
10. Panchnama of recovery of lathies Ex. 30
11. PM Note Ex. 33
(3.)Thereafter, after examining the witnesses, further statement of the appellant-accused under sec. 313 of CrPC was recorded in which the appellant-accused has denied the case of the prosecution.