STATE OF GUJARAT Vs. RAKESH SARJUPRASAD KAHAR

JUDGEMENT

(1.) Present Criminal Appeal has been preferred by the appellant - State of Gujarat under Sec. 378 of the Criminal Procedure Code, 1973 against the judgment and order dtd. 13/06/1997 passed by the learned Additional Sessions Judge, Surat in Sessions Case No.107 of 1995 acquitting the respondent Nos.1 to 4 - original accused Nos.1 to 4 from the offence punishable under Sec. 302 and 34 of Indian Penal Code and under sec. 135 of the Bombay Police Act. It is pertinent to note that the respondent Nos.2 and 4 - original accused Nos.2 and 4 have expired during the pendency of the proceedings and hence the present appeal stood abated qua respondent Nos.2 and 4 vide order dtd. 08/09/2022.

(2.) Facts of the case, in brief, are as under:- The complainant - Hanif Mohammad Yasin Shekh lodged the complaint stating that all the four accused and deceased Mohammad Rafik Mohammad Yasin Shekh were residing at Fulwadi Juppadpatti, Bharimata Road, Surat. On the date of incident i.e. on 27/02/1995 at 12.15 hours all the accused and Mohammad Rafik Mohammad Yasin Shekh (hereinafter referred to "Rafik" for short) were passing near the Roshan Bekari, Fulwadi Juppadpatti and at that time accused No.1 - Rakesh Kahar had inflicted a stick blow to the deceased and therefore, there was quarrel and the accused had assaulted on the deceased wherein the accused No.2 - Jayesh Zeena (now deceased) had caught hold the deceased and accused No.1 inflicted knife blow on various parts of the deceased and thereby caused injuries whereas the accused nos.3 - Dashrath Ishvarlal and accused No.4 (Bharat Ramchandra Kanoje (now deceased) instigated the accused Nos.1 and 2. The deceased was taken to the hospital where the deceased died. It is alleged that all the accused with a view to fulfill their common intention, inflicted fatal injuries with knowledge that the injuries would be sufficient to cause death of the deceased and thereby committed the alleged offence.

(3.) On the basis of the said complaint, investigation was started, statement of witnesses were recorded, inquest panchnama was carried out, panchnama of scene of offence was carried out, postmortem report was obtained and after through investigation, as there was sufficient evidence against the respondents - accused persons, Chargesheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Sec. 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Additional Sessions Judge, which has been numbered as Sessions Case No.107 of 1995.