- (1.)1. The above appeal has been filed by accused Nos. 2 and 3 before the learned Additional Sessions Judge at Mehsana in Sessions Case No.39/92, who were acquitted by the learned Sessions Judge, but, on appeal filed by the State in Criminal Appeal No. 578 of 1992 before the High Court of Gujarat at Ahmedabad, came to be convicted, by reversing the verdict of acquittal. Accused No.1, who was convicted by the learned Trial Judge, which was affirmed on appeal by the High Court also, is the brother of accused No.2 and accused No.3 is the son of accused No.2. They were charged for the offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code, as well as Sec. 135 of the Bombay Police Act.
(2.)The case of the prosecution, as unfolded from the evidence placed on record, was that: on 03.11.1991, at about 5.30 PM, the deceased Bhupatsinh went to his field to collect Bajri, followed by his mother Ajuben, PW-2 and wife Jasuben. At the lane (Naliya) approaching the field at some distance away from the house of the accused near a curvature, all the three accused attacked and assaulted the deceased. It was said that accused Nos.1 and 2 were armed with Dhariya and accused No.3 was armed with Sickle and all the three started attacking the deceased and inspite of an attempted intervention by Ajuben and Jasuben, they were pushed away and the accused achieved their object and by the time an alarm was raised, the accused ran away, accused No.3 with the Sickle also. Even, as the deceased was being attacked, on being informed about the same by one Shantaben Ramjibhai, Kanaksingh, PW-4, the brother of the deceased was said to have rushed to the police station and informed the police and requested to send police immediately for protection. Thereupon, accompanied by the police, PW-4 came to the place of incident and witnessed the dead body of his brother. The mother of the deceased, PW-2 gave a complaint which was recorded by the investigating officer -PW-11. The accused seems to have absconded and later only on 7.11.1991 could be apprehended. On the completion of investigation, a charge-sheet was laid for the offences noted above. T
(3.)he learned Trial Judge found that the deceased died a homicidal death and on the point for consideration as to whether the prosecution has proved without any doubt that the accused or anybody had the intention to do so, came to the conclusion that the deceased was murdered on account of the enmity and considering the intention of the accused No.1, the learned Trial Judge fixed him with the commission of the murder. In that respect, though the learned Trial Judge chose to refer to the contentions of the parties, on certain general legal principles, normally governing consideration of such cases, chose to find a positive corroboration also for his finding about the commission of the offence by accused No.1 alone, from the report of the Forensic Science Laboratory as to the presence of the 'O' group of blood which was the group of blood of the deceased, on the sleeves and shoulder of the white shirt of accused No.1, which was also sent for examination and report. On the mere reasoning that the other accused, A-2 and A-3 could not be so fixed with the occurrence, by any matching of the blood group and the further fact that the weapon said to have been handled by the other accused and recovered subsequently, did not contain the same group of blood as of the deceased, the learned Trial Judge choose to extend the benefit of doubt to them, keeping in view also the admitted longstanding enmity between the two families of the deceased and the accused. In dealing with these accused alone the Trial Court also felt that the variation as to the place of occurrence in the evidence of PW2 and PW3 renders their evidence even not reliable.