JAYANTILAL RAYMALJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CRIMINAL Appeal No.352 of 1999 has been preferred by original accused Nos.1 and 3, whereas, Criminal Appeal No.404 of 1999 has been preferred by original accused No.2, against the judgement and order of conviction and sentence dated 23rd February,1999, passed by learned Additional City Sessions Judge, Court No.3, Ahmedabad in Sessions Case No.273 of 1998, whereby each of the present appellants was convicted and sentenced for life imprisonment and to pay a fine of Rs.1000/ -, in default, further rigorous imprisonment of two months, for the offence punishable under Section 34 read with Section 302 of the Indian Penal Code. Appellants of Criminal Appeal No.352 of 1999 were also convicted and sentenced to undergo four months' simple imprisonment and pay a fine of Rs.250/ - each, in default, to undergo further simple imprisonment of seven days, for an offence punishable under Section 135(1) of the Bombay Police Act.

(2.) IF the facts of the prosecution are unfolded, they are summarized in short, as under:

(3.) IT is the case of the prosecution that on 4th January,1998 at about 22 -15 hours, Ashokbhai Bhanji Vanzara was caught hold by accused No.2 Suraj @ Kanio Budhaji Marwadi (appellant of Criminal Appeal No.404 of 1999) and accused No.1 Rajesh @ Lala Jayantilal Waghela and accused No.3 Jayantilal Raymalji Waghela (Appellants of Criminal Appeal No.352 of 1999) have caused injuries by Katar and Knife respectively to Ashokbhai Bhanji Vanzara on the vital part of the body, who expired on the spot. The incident had taken place near house of the deceased. P.W.No.1 Mukesh Ganpatbhai Marwadi, who is cousin brother of the deceased and who is eye -witness, rushed to Amraiwadi Police Station in the city of Ahmedabad and lodged F.I.R. bearing C.R.No.I -11 of 1998 at 22 -50 hours on 4th January,1998, wherein, clearly name of accused Nos.1 and 3 have been mentioned along with weapons and their roles, whereas, accused No.2 was not named in the F.I.R, but, the narration was given. Other persons had gone to the Hospital with the body of Ashokbhai Vanzara, where he was examined by Doctor and declared dead. It also appears that police constable at the Hospital i.e. P.W. No.9 namely Rameshkumar Gawade had noted in Hospital Telephone Register maintained by him at Exh -24 that Ashokbhai Vanzara has been done to death by one Bharat Dayal. This message was supplied to Amraiwadi Police Station by telephonic message at 23 -05 hours. Thus, the F.I.R. was registered first at 22 -50 hours and, subsequently, this message was received from the Hospital. Thereafter, on the very same day, the accused persons were not traceable and, therefore, necessary messages were sent to the concerned Police Station that the accused mentioned in C.R.No.I -11 of 1998 are not traceable and are likely to be flee away. This message was also received by P.W.No.8 Madarsing Bhikhaji Solanki, who is police witness, who arrested all the accused from Ahmedabad Central Bus Depot. Necessary arrest panchnama of accused was reduced in writing at Exh -20. Shirt of accused No.1 was found blood stained and there was recovery of Katar from accused No.1. Investigation was further carried out by P.W.No.11. Accused were charge sheeted and Sessions Case No.273 of 1998 was registered against the accused persons and, upon evidence, accused Nos.1, 2 and 3 have been mainly convicted and sentenced for an offence punishable under Section 34 read with Section 302 of the Indian Penal Code for life imprisonment and to pay a fine of Rs.1,000/ -, in case of default, further two months' rigorous imprisonment have been awarded. Against this order, these criminal appeals have been preferred by the appellants.