C.K.BUCH, J. - (1.) By this CAV common judgment, we are dealing with and disposing of two criminal appeals viz. Criminal Appeal No.1459/2004 and Criminal Appeal No. 856/2005, challenging the impugned judgment dated 09.07.2004 passed by the ld. Addl. Sessions Judge, Ahmedabad (Rural), Navrangpura, Ahmedabad in Sessions Case No.85/2000. Vide impugned judgment, the ld. Trial Judge convicted Shri Amrutbhai Bholidas Patel-Original Accused No.1 State of UP v. Anil Singh, AIR 1988 SC 1998 The offences punishable under section 302 and 201 of Indian Penal Code as well as for the offence punishable under section 30 of the Arms Act and sentenced original accused No.1 Amrutbhai Patel to undergo R/I for life and to pay a fine of Rs.5000/, I/d to undergo S/I for 1 Year for the offence punishable under section 302 of IPC, to undergo R/I for 3 years and to pay a fine of Rs.2000/, I/d to further undergo S/I for 6 months, to undergo S/I for 2 months and to pay a fine of Rs.500/, I/d to undergo S/I for 7 days respectively. Vide impugned judgment, the ld. Trial Judge acquitted the original accused Nos. 2 & 3 (Respondents of Criminal Appeal No.856/2005) from the offences punishable under section 302 R/w section 34 and 504 of the Indian Penal Code. Original Accused No.1 Amrutbhai Patel has preferred Criminal Appeal No.1459/2004 challenging the impugned order of conviction and sentence passed against him by the ld. Trial Judge, whereas the State has preferred Criminal Appeal No. 856/2005 challenging the impugned judgment whereby the ld. Trial Judge acquitted the original accused Nos.2 & 3. Since, both these criminal appeals arise out of common trial and evidence led is also common and arise out of one judgment, both these criminal appeals are heard together and are being disposed of by this common CAV Judgment.
(2.) All the three accused were charged as per the Charge Exh.21 and it would be convenient to reproduce substantive charge framed against all the three accused persons (free translation from Gujarati vernacular):- "That on 20.02.2000 on or at about 15.30 hours, you wanted to construct/erect a wall with the help of labourers on the land bearing survey No.433/1 known as Shantivan Farm situated in the sim of village Makaraba and at that time, on this issue, an altercation (hot exchange of words) took place with deceased Arvindbhai Amrubhai Patel and at that time, you accused Nos.2 & 3 instigated you accused No.1 stating that this Arvind is harassing us and on this occasion, the issue should be settled finally now. Thereafter, you accused No.1 fired from your licensed Revolver and by firing shot at the chest of the deceased, Arvindbhai, caused death of the deceased and by doing so, you accused No.1 committed murder of deceased Arvindbhai and thereby committed an offence punishable under section 302 of Indian Penal code and you accused Nos. 2 & 3, with an intention to fulfill your common object/intention, abetted each other for commission of the aforesaid offensive act and thereby you both the accused Nos. 2 & 3 have committed an offence punishable under section 302 R/w Section 34 & 114 of Indian Penal Code which are triable within the jurisdiction of this Court. Further, on the same date, time and place, you accused Nos. 2 & 3, intentionally insulted by giving abuses and thereby given provocation to the deceased Arvindbhai intending or knowing it to be likely that such provocation will cause him to breach the public peace or to commit any other offence and thereby you accused Nos. 2 & 3 have committed an offence punishable under section 504 of Indian Penal Code which is triable within the jurisdiction of this Court. Further, on the same date, time and place, though you were knowing or having reason to believe that an offence punishable with death or life imprisonment has been committed, with an intention to screen (save) yourself from the legal punishment, you accused No.1 took away with you the Revolver used in the commission of the offence at your residence and cleaned the said weapon which has been used in the commission of the offence and caused to disappear the evidence (destroyed the evidence) by tampering with the firing pin of the said Revolver and thereby you accused No.1 has committed an offence punishable under section 201 of the Indian Penal Code which is triable within the jurisdiction of this Court. Further, on the same date, time and place, you accused No.1 fired from your licensed Revolver in an illegal manner by committing breach of the terms and conditions of the License and thereby you accused No.1 has committed an offence punishable under section 30 of the Arms Act which is triable within the jurisdiction of this Court. "
(3.) The above charge has been framed on the strength of the basic allegations made by the prosecution in the FIR as well as in the final report submitted at the conclusion of the investigation. The basic case of the prosecution is that on the date of incident, between 12.00 noon and 4.00 P.M., Police Officer Mr. Padubhai Thavrabhai Bodar was on his duty as PSI in the investigating squad of Ellisbridge Police Station of City of Ahmedabad. At that time, one person named Bharatbhai Natvarbhai Patel came to the police station and informed him that his son-in-law -deceased Arvindbhai had sustained injuries in firing and has been admitted in the Prerana Hospital and, therefore, he should come there. On receipt of this information, PSI Mr. Bodar went to Prerana Hospital and on making necessary discreet inquiry, he found that an offence occurred has been committed within the jurisdiction of Sarkhej Police Station. Thereafter, Ellisbridge police intimated Sarkhej Police Station and Sarkhej police was asked to go to Shantivan Farm and thereafter, PSI of Sarkhej Police Station Mr. Purshottam Bhimjibhai Mer came to Prerana Hospital where the wife of the deceased Arvindbhai was sitting nearby the dead body in the hospital. There she gave details of sequence of events that had occurred. PSI Mr. Mer recorded her complaint and it is the say of the prosecution that the husband of the complainant Artiben namely Arvindbhai had left for Shantivan Farm situated in Makaraba village at about 9.00 A.M. in the morning. When she was at home, she received a telephone call from the maternal uncle of her husband namely Ambalal Jethidas Patel informing that her father-in-law i.e. accused No.1 Amrutbhai Patel is constructing a compound wall in Shantivan Farm. At that time, she had replied that her husband has already left and had gone to Shantivan Farm. At about 12.30 P.M., her husband had returned home and she was told that he has opposed construction of a compound wall and has instructed watchman Gulamnabi to inform him if they (accused persons) start constructing the wall. Thereafter, when her husband was taking rest, at about 2.30 P.M., the deceased Arvindbhai received a telephone call from watchman Gulamnabi informing that Amrutbhai, Virendra and Dharmendra i.e. Accused Nos. 1 to 3 respectively have come to the farm house and have started construction of the wall. Hearing that, her husband Arvindbhai went to Shantivan Farm in his Contessa car. At about 3.30 P.M., driver Dashrathbhai telephoned that Amrutbhai, Virendra and Dharmendra had quarrelled with Arvindbhai in connection with the construction of the wall and that accused No.1 Amrutbhai had fired at Arvindbhai and Arvindbhai has been taken to the hospital. Thereafter, she informed her uncle-in-law Dashrathbhai Bholidas Patel and he told her that Arvindbhai has been taken to Doctor House and, therefore, she went to Doctor House. When she reached there, she saw her brother-in-law Virendra-accused No.2 and Dharmendra-accused No.3 getting down from Maruti car bringing out her husband from the car in a stretcher. At that time when she saw the body of her husband, she found that her husband has sustained bullet injury on the right side of chest of her husband. Arvindbhai was taken inside the hospital where he was found dead. In the hospital, her father-in-law Amrutbhai Patel- accused No.1 was also there. He was admitted and it is the say of the prosecution that thereafter accused No.1 Amrutbhai Patel under police surveillance provided by the Ellisbridge Police Station arranged by PSI Mr. Bodar, was taken to Karnavati Hospital for treatment. On the complaint of the wife of the deceased Arvindbhai, PSO Mr. PK Vaghela registered the offence being I.CR No.38/2000 at Sarkhej Police Station at 18.30 hours. After investigation, the police chargesheeted all the three accused for different offences as per the charge Exh.21 and the ld. Trial Judge, at the conclusion of trial, vide impugned judgment dated 09.07.2994 convicted the original accused No.1 and sentenced him as stated above and acquitted original accused Nos. 2 & 3.;