(1.) BY these three appeals, challenge is made to the judgment and order passed by learned Additional Sessions Judge, 6th Fast Track Court, Surat, dated 31.3.2006 in Sessions Case No. 93/2004, by which five accused persons came to be convicted for the offence punishable under sec. 302, 34 and 120B of IPC, and are sentenced to undergo R/I for life. Fine of Rs. 5000.00 is imposed against each of the convict and in default, R/I for five months is ordered.
(2.) CRIMINAL Appeal No. 883/2006 is filed by Mukesh Arjanbhai Rabari, who was original accused no. 4, Criminal Appeal No. 1075/2006 is filed by Raju Pratapbhai Vala, who was original accused no. 3 and Criminal Appeal No. 1268/2006 is filed by three persons, namely Dinesh Sangram Khatana- original accused no. 1, Anak Chaprajbhai Udak-original accused no. 2 and Sanjay @ Choti Pundlik Kheir-original accused no. 5. Since all these three appeals are arising out of the same judgment of the learned Sessions Judge, they are considered and decided by this common judgment, and for the sake of convenience, the appellants are referred to as their original status before the trial Court. These five accused were arrested on 10.7.2003, for the offence which had taken place on 22.6.2003, the accused
(3.) IT is contended on behalf of the appellants that the impugned conviction is based on the deposition of so-called eye witnesses who are got up witnesses. It is also contended that there is discrepancy in the timings of recording of FIR, including an attempt to ante time it and therefore the prosecution case is vitiated from its inception, the conduct of projected eye witnesses is unnatural, each witness, who claims to be an eye witness; is silent regarding presence of other eye witnesses at the time of incident, independent witnesses whose statements are claimed to have been recorded by police are not examined and only interested witnesses and friends witnesses are examined. It is also contended that the prosecution has not pointed out how, after about 20 days of occurrence, all five accused came to be arrested and what led to their arrest. The manner and method of recovery of clothes of the accused and weapons alleged to have been used in the commission of offence is also high lighted to assail the prosecution theory. The identity of the accused is also contended to have been not established. Concealing the material regarding the rickshaws claimed to have been used for the commission of offence and the one in which the victim was claimed to have been taken to hospital is also highlighted on behalf of the appellants. Non examination of the persons who claimed to have accompanied the bother of the victim, who is projected as the first informant and non recovery of his cloths; who claimed to have taken the victim to the hospital is also highlighted on behalf of the appellants. It is pointed out that the charge framed against the appellants did not show offence under Sec.149 of IPC. The appellants have contended that there is no legally acceptable material on record to connect the accused with the commission of offence and it is urged that the conviction recorded by the trial court be interfered with.