Anant S. Dave, J. - (1.) THIS Appeal preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 ("Code, 1973") is preferred by the appellants (original accused Nos. 1 to 5) against the judgment and order passed by the learned Additional Sessions Judge, Bhuj - Kutch in Sessions Case No. 7 of 2010 on 25.1.2011.
(2.) THE appellants herein are named as original accused Nos. 1 to 5 as show in complaint which came to be filed as I C.R. No. 139 of 2009 registered with Nakhtrana Police Station for offence punishable under Sections 302, 307, 143, 147, 148, 324, 323, 504, 506(2) of the Indian Penal Code and Section 135 of the Bombay Police Act on 9.10.2009. It is respectfully submitted that a complaint came to be lodged by one Jakab Jusab Rayma against present appellants - accused who are named in the FIR for the afore mentioned offences. It is a case of the complainant as reflected in the complaint that due to petty quarrel took place for parking of tractor on the way causing obstruction. In the said incident in question, one Abu Bhakhkhar Amad Rayma was assaulted by accused -appellants. It is alleged in complaint in detail that quarrel took place on 9.10.2009 at about 9:00 a.m. for giving the side of Chakkda driven by deceased Abu Bhakhkhar Amad Rayma. It is the allegation that the accused persons were armed with axes, dhariya and sticks and are alleged to have assaulted injured witnesses including the complainant and the deceased. Since the names of the present appellants were reflected in complaint which came to be registered on 9.10.2009, the appellants were arrested on 19.10.2009. At the end of trial, the conviction and sentence recorded earlier was imposed by the learned Sessions Judge. Being aggrieved and dissatisfied by their conviction and sentence so awarded, learned advocate for the appellants would contend that the imprisonment of sentence for rigorous life under Sections 302 read with 149 of the Indian Penal Code and fine for which the prosecution has not proved its case beyond reasonable doubt and particularly, in absence of any convincing and cogent evidence for bringing home the charge under Sections 143, 147, 148, 149, 323, 324 and 302 of the Indian Penal Code, such conviction and sentence deserves to be quashed and set aside. Accordingly, the learned advocate for the appellants, even as per testimonies of Amad Alias Abdulla Jusab Rayma at Exhibit 55 and P.W. 5 - Jamilaben Jakaria at Exhibit 61, it is evident that in the version of both these witnesses before the police and what was deposed by them before the learned Sessions Judge, there appears to be major contradictions along with vital omissions about actual scene of offence and in fact, none of them could be said to be eye -witness. It is also submitted that reliance placed by the learned Sessions Judge on deposition of P.W. 4 namely Dr. Madanji Suryaprasad at Exhibit 56 and another Dr. Manikant Shrinath Mishra at Exhibit 46 along with injury certificates at Exhibit 47, 48 and 59 as well as P.M. report at Exhibit 50, once again contradiction with regard to accused persons, who had attacked and used weapons so described for commission of crime vis   -vis nature of injury caused during the course of incident and even above evidence is considered in juxtaposition to panchnama of scene of offence and testimonies of expert about injuries on body of the injured, did not reveal intention to cause death inasmuch as sole blow was inflicted.
(3.) INTER -alia, it is submitted that material evidence of investigating Officer namely P.W. 22 at Exhibit 90 reveals that no treatment was taken at Nakhtrana and further shifting of injured to the hospital at Bhuj upon reference by Medical Officer of Nakhtrana, if considered in context of testimonies of the complainant, it reveals that the complainant has not disclosed true facts before the Investigating Officer about nature of incident and therefore, the case of the prosecution is not only unbelievable but it suffers from vital lacuna in investigation especially of registration of cross case being C.R. No. 140 of 2009 with Nakhtrana Police Station, in which, the accused herein were injured by the complainant side for which the treatment was taken at hospital at Nakhtrana was not reflected. The fact as above was deposed by the Dr. Madanji Suryaprasad, P.W. 4 who could only produce register No. , names of persons, who were brought at the hospital and date on which the treatment was given, since the medical papers about the treatment of injuries to the accused as well as injured eye -witness were not available and further, the Doctor allegedly treated the injured on both the sides, had unfortunately died.;