K.S. Jhaveri, J. - (1.) THESE Criminal Appeals have been directed against the judgment and order dated 07/07/2008 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Jamnagar in Sessions Case No. 89 of 2006 whereby, the learned Sessions Judge was pleased to convict the accused Nos. 6 and 7 for the offence punishable under Sections 302, 201 and 34 of the Indian Penal Code, 1860 ('the IPC' for brevity) and awarded life imprisonment and fine of Rs. 1,000/ - each and in default, further simple imprisonment for 03 years for the offence punishable under Sections 302 and 34 of the IPC and 07 (seven) years' rigorous imprisonment and fine of Rs. 1,000/ - each and in default, further simple imprisonment for one year for the offence punishable under Sections 201 and 34 of the IPC and acquitted the accused Nos. 1 to 4 for the offence punishable under Sections 302, 395, 396, 397, 143, 147, 148, 149 and 34 of the IPC; the accused No. 5 was acquitted of the offence punishable under Section 412 of the IPC and accused Nos. 6 and 7 were acquitted of the offence punishable under Sections 395, 397, 143, 147, 148, 149 and 34 of the IPC. Accordingly, Criminal Appeal Nos. 2282 of 2008 and 2731 of 2008 have been filed by the appellants - original accused Nos. 6 and 7 respectively, against conviction whereas, Criminal Appeal Nos. 2893 of 2008 and 2894 of 2008 have been filed by the State respectively against acquittal and for enhancement of sentence awarded against the original accused Nos. 6 and 7.
(2.) BRIEF facts of the prosecution case are that on 24/04/2006 in the midnight at Udyognagar in Jamnagar deceased - Ramesh Bahadur Gurkha was serving as watchman in a factory known as Yogi Cast (Foundry), at that time, the accused Nos. 1 to 4, in abetment of accused Nos. 6 and 7, with a view to commit robbery, entered into the premises and on being challenged by the deceased, they assaulted the deceased with Gupti and caused multiple injuries and looted 600 kg. Brass and though, it was allegedly known to accused No. 5 that the muddamal article was obtained by way theft, he purchased the same and thereby, the accused persons committed the offence charged against them and for the said alleged offence, complaint came to be lodged against them. 2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge -sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Sessions Court, Jamnagar. 2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence. 2.3 In order to bring home the charge against the accused, the prosecution has examined as many as 40 witnesses and also produced several documentary evidence. 2.4 At the end of the trial and after recording Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 ('the Code' for brevity) and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the accused Nos. 1 to 5 of the charges levelled against them whereas, convicted accused Nos. 6 and 7 for the offence punishable under Sections 302 and 34 of the IPC as well as under Sections 201 and 34 of the IPC, as aforesaid, by impugned judgment and order. 2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellant - State as well as the accused Nos. 6 and 7 have preferred the present appeals. Mr. Barot, the learned advocate for the appellants - original accused Nos. 6 and 7 submitted that the case is based on the circumstantial evidence and except discovery of clothes and weapons under Section 27 of the Evidence Act and blood stains found on the clothes of the accused and mobile details and history before the doctor by the accused No. 6, there is nothing on record to show that the accused were involved in the crime in question. He took us mainly to the evidence of following witnesses: 3.1 Mr. Barot, the learned advocate for the appellants - original accused Nos. 6 and 7 further submitted that the case is based on the circumstantial evidence as stated above and therefore, conviction of life for the offence punishable under Sections 302 and 34 of the IPC was unwarranted and is required to be set aside.
(3.) PER contra, Ms. Shah, learned Additional Public Prosecutor appearing for the State, took us to the evidence on record and contended that in view of the Panchnama and more particularly, the evidence of P.W. Nos. 7, 8, 9, 13 and 17, it is clear that the conduct of accused No. 7 - Mahesh immediately on the dead -body being found in the premises and P.W. No. 16, who found the dead -body in the factory premises in the morning and shouted at that time, the accused No. 7 was present and vomited and ran away from the factory speaks a volume. Apart from that, she further contended that the articles which were seized being muddamal article Nos. A to I clearly show that all the accused ought to have been convicted. She took us to the judgment and order of the trial Court where the trial Court, after discussing the evidence of each of the witnesses and the documentary evidence, has completely described the evidence and circumstances, which are against the accused Nos. 6 and 7 and accordingly, convicted them, whereas, wrongly acquitted the other accused by giving benefit of doubt though there was ample evidence available on record against them also.;