NOORMAMAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All these appeals are preferred against the judgment and order dated 20.6.2006 passed by Additional Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 212 of 2002 and allied cases, whereby accused Nos. 4 and 14 were held guilty for offence punishable under Sec. 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 10,000/ -, and in default of payment of fine, accused Nos. 4 and 14 were ordered to undergo simple imprisonment for three months. By the impugned judgment, accused No. 4 and 14 were also convicted for the offence punishable under Sec. 325 of IPC and sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 1,000/ -, and in default of payment of fine, accused Nos. 4 and 14 were ordered to undergo further simple imprisonment of one month. Accused No. 14 was also held guilty for offence under Sec. 324 of IPC and sentenced to suffer simple imprisonment for six months and to pay fine of Rs. 500/ -, and in default of payment of fine, accused Nos. 14 was ordered to undergo further simple imprisonment for fifteen days. By the impugned judgment, accused No. 3 was held guilty for offence under Sec. 325 of IPC and sentenced to suffer simple imprisonment for one year and to pay fine of Rs. 1,000/ -, and in default of payment of fine, he was ordered to undergo further simple imprisonment for one month. By the impugned judgment, accused Nos. 7 and 11 were held guilty for offence under Sec. 326 of IPC and sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 2,000/ -, and in default of payment of fine, they were ordered to undergo further simple imprisonment for two months. Accused Nos. 1, 5, 6, 8 and 13 were acquitted of the charges levelled against them. Feeling aggrieved by the impugned judgment, accused Nos. 3, 4, 7, 11 and 14 have preferred Criminal Appeal No. 1205 of 2006, while Criminal Appeal Nos. 2176, 2179 and 2180 of 2006 are preferred by the State against acquittal of accused persons from the charges levelled against them.

(2.) The facts in brief giving rise to the filing of present appeal are as under: -

(3.) At the time of hearing of these appeals, Mr. A.D. Shah, learned Senior Advocate appearing for the appellants of Criminal Appeal No. 1205 of 2006 -original accused Nos. 3, 4, 7, 11 and 14 has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellants. He has taken us through the medical evidence of PW -15, Dr. Nileshkumar Hargovinddas and PW 47, Dr. Chetankumar Maganbhai Dharaiya and submitted that medical evidence in this case is not clear and it is not coming out as to which accused had given vital blows to the decease persons. He submitted that from the cross -examination of Dr. Chetan Dharaiya it is revealed that he could not confirm as to whether internal injuries Nos. 7 to 10 are relatable to external injuries No. 1 to 4. He also submitted that considering the size and nature of injury described by Medical Officer, Dr. Nileshkumar, PW -15, injury No. 3, CLW over middle anterior scalp cannot be connected with internal injuries. Therefore, the medical evidence as to fatal injury is not clearly emerging from the prosecution case, as per his submission. He, therefore, submitted that the medical evidence is not sufficient to establish the charge of culpable homicide amounting to murder against accused Nos. 4 and 14. Mr. Shah further submitted that the witnesses have not stated as to which appellant gave which blow and on which part of the deceased's body and it is not clear as to which injury was caused by which accused. He further submitted that the doctor has also not stated which injury was fatal. He further submitted that the deceased attacked by the absconding accused also, therefore, it is not clear as to whether the accused -appellant herein or the absconding accused had given blows on the vital part, which caused death of the deceased. He also submitted that the appellants herein had no common object to murder the deceased and, the trial Court has committed an error in convicting them for offence punishable under Sec. 302 read with Sec. 149 of the IPC. He further submitted that even if the case of the prosecution is believed, at the most, it can be said that the accused are guilty for offence punishable under Sec. 304 Part -I of IPC. In support of his submissions, Mr. Shah has relied upon the following decisions.