J.B.PARDIWALA, J. -
(1.) SINCE both the appeals arise from a common order of conviction and sentence dated 14th July, 2009, passed by the learned Additional Sessions Judge, Gandhidham, Kutch, in Sessions Case No. 39 of 2008, those were heard analogously and are being disposed of by this common judgment and order.
(2.) THESE two appeals are at the instance of four convictedaccused persons of offence under Sections 302 and 324, read with Section 114 of the Indian Penal Code, and are directed against the order of conviction and consequent sentence dated 14th July, 2009, passed by the learned Additional Sessions Judge, Gandhidham, Kutch, in Sessions Case No. 39 of 2008. By the aforesaid order of conviction, the appellants have been sentenced to undergo life imprisonment for the offence punishable under Section 302 of the Indian Penal Code and to pay fine of Rs. 2,000 each, with a further stipulation that in default of payment of fine, the appellants shall suffer simple imprisonment for six months. The appellants have also been sentenced to suffer further simple imprisonment of six months with fine of Rs. 300 each for the offence punishable under Section 324 of the Indian Penal Code. However, all the appellants were ordered to be acquitted of the offence under Section 504 of the Indian Penal Code.
The case of the prosecution:
On 9th March, 2008, the brother of the deceased, namely Mohanbhai Alabhai Dafda lodged a first information report Exh.77/C at the Bhachau Police Station, interalia stating that on 9th March, 2008, at around 2.15 in the afternoon, he was at his house. His two brothers, Melabhai Meghabhai Alabhai and Hari Alabhai had gone out for business, whereas his mother Hemabai had gone to the village to buy few household articles. While the first informant was at his house, his other brother Kana Ala i.e. the deceased, went out to answer nature's call. At around 2.15 hours in the afternoon, the first informant heard a sound of quarrel, coming from the house of his cousin brother, Khimabhai Devjibhai (the original accused No.4). Having felt so, the first informant went near the house of Khimabhai (the original accused No.4) and saw that his brother Kana Ala had been caught by Khima Devji's wife, namely, Khimibai (the original accused No.2) and Khimabhai Devjibhai's mother, namely, Varjuben (the original accused No.1) and Khima Devji (the original accused No.4) along with Ramu Devji (the original accused No.3) were standing next to Kana Ala. It is stated in the FIR that Khima Devji (A/4) and Ramu Devji (A/3) were armed with sickle in their hands and were uttering bad words. It is further stated that while the first informant tried to save his brother Kana, then Khima Devji (A/4) hit a blow with a sickle on the head of Kana Ala, as a result, Kana Ala fell down and collapsed. It is further stated that Ramu Devji (A/3) also attempted to hit a blow on Kana, but as the first informant intervened, the blow could not be executed but in the process, the first informant injured himself on his hand, palms and shoulders. The first informant raised hue and cry, due to which all the accused persons ran away from the place of occurrence. In the meantime, the two brothers of the first informant, Magabhai and Haribhai, along with Chhotibai (the wife of the deceased) came running at the place of the occurrence. It is stated that they found Kana lying unconscious in a pool of blood. In the meantime, other persons residing in the village also arrived at the place of occurrence. It has been stated in the first information report that the motive behind the commission of the crime was that Khima Devji (A/4) had illicit relations with one Rasilaben. Rasilaben happens to be the wife of one Govind, and Govind happens to be the son of the cousin brother, namely Manjibhai, of the first informant and the deceased. In this connection, the deceased had reprimanded Khima Devji and had also asked him not to indulge in such an immoral act. Keeping such spite in mind, on the date of the incident, Khima Devji (A/4) inflicted serious injuries on the head of the deceased, resulting in his death.
(3.) ON complaint being lodged by the brother of the deceased, the investigation had started. The inquest panchnama, Exh.29 of the dead -body of the deceased was drawn in presence of the panch witnesses. The scene of offence panchnama, Exh.26 was drawn in presence of the panch witnesses. The dead -body of the deceased was sent for postmortem examination and the postmortem report, Exh.49/C noted that the cause of death was cardio -respiratory failure due to neurogenic shock as a result of cut injury on the brain tissues. The blood -stained clothes of the deceased worn at the time of the incident were collected by drawing a panchnama, Exh.36 in presence of the panch witnesses. The accused No.3, Ramu Devji was arrested on 15th March, 2008 and his arrest panchnama, Exh.31 was drawn in presence of the panch witnesses. The clothes worn by Ramu Devji (A/3) were collected by drawing a panchnama, Exh.33 in persons of the panch witnesses. The other accused persons were also arrested and their arrest panchnamas were drawn in presence of the panch witnesses. The discovery panchnama of the weapon of offence, Exh.39, at the instance of Ramu Devji (A/3) was drawn in presence of the panch witnesses. The second discovery panchnama of the weapon of offence, Exh.45, at the instance of Khima Devji (A/4) was drawn in presence of the panch witnesses. Ultimately, a charge -sheet against the accused persons was filed in the Court of the learned Judicial Magistrate, Bhachau -Kutch. However, as the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate First Class, Bhachau, committed the case to the Court of Sessions under Section 209 of the Criminal Procedure Code.;