STATE OF GUJARAT Vs. AMARSHI KHODABHAI AND ANR.

JUDGEMENT

(1.) The State has filed the present appeal under Section 378 of the Code of Criminal Procedure, 1973 ('Cr.P.C.', for short) feeling aggrieved by judgment and order dated 28.02.2006 passed by the learned Additional Sessions Judge, Rajkot in Sessions Case No.47 of 1990.

(2.) It is the case of prosecution that on 09.04.1990 at about 12:15 p.m. the respondents accused, in connivance with each other, armed with deadly weapons like sward, knife etc. have attacked the deceased Popatbhai Nanjibhai Vaghri and intentionally caused his death and thereby committed offences under Section 302, 324 read with Section 114 of the Indian Penal Code, 1860 ('IPC', for short). The offence was originally registered against four accused persons viz. (i) Prabhat Bhanabhai, (ii) Amarshi Khodabhai, (iii) Laxmi @ Lakhuben W/o. Bhanabhai and (iv) Virji @ Bhanu s/o. Shardulbhai. During the course of proceedings, the original accused Nos.1 and 3 viz. Prabhat Bhanabhai and Laxmi @ Lakhuben W/o. Bhanabhai have died and therefore the proceedings got abated qua those accused persons and as such the case was tried against left out accused original accused Nos.2 and 4 viz. Amarshi Khodabhai and Virji @ Bhanu s/o. Shardulbhai respectively. On the premise as aforesaid, by specifically asserting that keeping in mind the earlier episode the respondents accused armed with deadly weapons have attacked wherein original accused No.1 Prabhat Bhana armed with sward had given two sward blows on head of deceased whereas original accused No.2 Amarshi armed with knife has given knife blows on the right- hand side fingers and also on the leg whereas original accused No.3 Lakhuben, who died, had caught hold of the father of the complainant ­ deceased and this has occurred on account of past incident and that motive was alleged whereby the complaint came to be filed for incident in question in which the deceased succumbed to the injuries. Resultantly, the daughter of the deceased named as Muktaben, who happened to be the wife of Mansukh Bhalabhai, had lodged the complaint before 'B' Division Police Station against all the respondents accused by naming and by giving specific attribution. The complaint appears to have been investigated by the Investigating Officer who during the course of investigation has collected materials against the respondents as also executed panchnama of clothes seized of injured Popatbhai and witness Paruben, as also recorded statements of relevant witnesses and after death of Popatbhai the inquest panchnama also came to be drawn and dead-body was sent for postmortem examination. While conducting the investigation, the Investigating Officer has also drawn panchnama of scene of offence, has collected necessary samples for analysis, control sand came to be recovered and then sent to FSL for examination. During the course of investigation, further discovery panchnama also came to be drawn as the accused persons voluntarily surrendered their weapons which were used in crime i.e. sward and knife, the arrest panchnama also came to be drawn and after conducting all steps the recovered muddamal also sent for analysis before FSL and after collecting the report and after taking necessary medical papers since the case has been found against the respondents accused after conducting day to day even Test Identification Parade before Mamlatdar a detailed charge-sheet came to be filed before the learned Magistrate.

(3.) Pursuant to the submission of charge-sheet, papers indicate that since offence in question is triable by Court of Sessions, learned Magistrate, in exercise of jurisdiction under Section 209 of the Cr.P.C., was pleased to commit the case to the Court of Sessions which has come up for consideration before the learned Additional Sessions Judge, Rajkot who registered the case as Sessions Case No.47 of 1990. The records further indicate that after committal case to the Sessions Court, a specific charge came to be framed at Exh.1 and the charge having been read over to the accused persons and making them understand, the accused persons have denied the offence being committed and after recording the plea of respondents accused the case was put up for further trial. With a view to prove the case against the respondents accused, the prosecution has examined as many as 22 witnesses and 16 documentary material to prove the case beyond reasonable doubt and after leading the evidence a closer purshis came to be given by the prosecution pursuant to which further statements of accused respondents came to be recorded under Section 313 of the Cr.P.C. In further statements, the respondents accused have denied the offences being committed.