(1.) Challenged in this Appeal is the judgment and order dated 13.1.2006, passed by learned Presiding Officer, Fast Track Court No.10, Nadiad, in Sessions Case No. 250 of 2005, by which the appellant, who is original accused No.1, has been convicted for the offences under Section-302 of the Indian Penal Code and under Section 27(1) of the Arms Act and sentenced him for rigorous imprisonment for life and fine of Rs.3,000/- and in default to undergo rigorous imprisonment for three months.
(2.) The brief facts that emerge in the present appeal are as under:
(3.) Mr. J.M. Panchal, learned Advocate for the appellant has assailed the judgment of the Trial Court on various grounds. The first contention raised by Mr. Panchal is with regard to the reasons assigned by the Trial Court in accepting three witnesses, namely, Chandubaben Pravinsinh Rana, PW-13, Exhibit-34 complainant, Mumtaz Pravin Rana, PW-14, Exhibit-36,the daughter of the complainant and Taheraben Pravinsinh Rana, PW-15, Exhibit-37, another daughter of the complainant, as eye witnesses to the incident. He has submitted that except these three so called eye witnesses, the prosecution has not examined any independent witnesses, though, it was the case of the prosecution that the incident took place where number of houses are situated. He has submitted that if the depositions of these witnesses are closely and carefully scrutinized, it emerges that they have not witnessed the incident since there are omissions and contradictions in their depositions. He has submitted that the genesis of the occurrence of the offence is missing in the case since neither of these three witnesses is clear about the exact place and manner in which the incident took place. He has submitted that the dispute which took place in the field was over prior to two hours, and as per the prosecution case, the accused persons have played mischief in the fields, which are adjacent to each other. The 'palla' which was prepared by the deceased was broken by the accused persons and, therefore, the deceased had grievance for the same and, therefore, the motive which the prosecution has tried to establish cannot be accepted. It was further argued by Mr. Panchal that the prosecution has tried to involve the head of the family i.e. Jibawabhai Abhesinh Rana in the incident, which was not accepted by the Trial Court and acquitted the accused No.2 and, therefore, the Trial Court has erred in accepting these three witnesses as eye witnesses to the incident and convicting the appellant- accused. He has submitted that the circumstantial evidence in the nature of a discovery of arms at the instance of the present appellant is not proved since the panch witness to the discovery has not supported the case of the prosecution. He has also submitted that the ballistic report does not clearly indicate that the weapon which was discovered at the instance of the appellant accused was used in the said incident. Mr. Panchal has further submitted that there are discrepancies in describing the weapon which was discovered. As per the deposition of the Investigating Officer Mahendrakumar Muljibhai Makwana, PW-17, Exhibit-58, the appellant-accused had discovered a shot gun of 12 bore, however, the FSL report shows that the shot gun is of 20 bore and, therefore, it becomes doubtful whether the discovered weapon was sent for the Ballistic report to the laboratory or not. He has submitted that if the evidence of the witnesses, who posed themselves as eye witnesses are discarded, there is no other circumstances, which would involve the present accused and, therefore, the judgment and order convicting and sentencing the appellant is required to be set aside and the appellant be acquitted from the charges leveled against him.