- (1.)BOTH the appellants ('A -1' and 'A -2' for short) of instant appeal were charged and tried by the learned Additional Sessions Judge, Vadodara, Camp at Chhotaudepur ('the trial Court' for short) in Sessions Case No. 48 of 2000 for commission of the offences punishable under Sections 302, 452 and 324 of the Indian Penal Code ('IPC' for short) on the accusation that they have committed murder of Ramdas and caused injury to Madhuriben with the weapon 'paliyu' in connection with a dispute with regard to giving share of the sale price of a tamarind tree. At the end of the trial, both the accused were found guilty to the offences with which they were charged and the trial court vide judgment and order dated 24.11.2000 convicted both the accused for the said offences and sentenced both the accused persons to imprisonment for life and fine of Rs.3,000/ - i.d., RI for one year for the offence under section 302 IPC; RI for two years and fine of Rs.1,000/ - i.d., RI for six months for the offence under section 452 IPC and RI for six months and fine of Rs.500/ - i.d., RI for three months for the offence under section 324 IPC. It is also ordered that all the substantive sentences shall run concurrently.
Aggrieved thereby both the accused have filed instant appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short), through jail authority.

(2.)THE prosecution case as disclosed from the FIR and unfolded during trial is as under:
2.1. P.W.1, Madhuriben Ramdas Nayak, the complainant has lodged her complaint before P.W.12, Ramsing Gulabsing Baria, PSI of Karali Police Station, wherein inter alia it is alleged that she was residing with her husband and children. She was doing labour and household work. She has a son named Premodbhai and a daughter Kapilaben. She was married at village Karsan. There was a tamarind tree near their house and the house of her maternal uncle Dhuliyabhai. Pravin and Arvind, the sons of her maternal uncle, sold the said tamarind tree before one week and they were not given their share of money from the said sale. Her husband went to demand his share from the sale price of the tamarind tree. But both the accused refused to give money. The day before filing of the complaint, her husband demanded the money before both of them but the money was not given. Her son Premo and his wife with children had gone to his -in -laws at village Panibarand and hence her husband Ramdas and she were alone at home.

On the day of the incident, she and her husband Ramdas were sitting in her house at about 2 O' clock after having lunch. At that time suddenly her maternal uncle's sons Pravinbhai Dhuliyabhai Nayak and Arvindbhai Dhuliyabhai Nayak came with paliya in their hands to her husband and Arvind gave paliya blows to her husband at his neck and Pravin gave another blow on the left ear by saving 'Do you want the share of tamarind tree?'. Arvind gave third blow on the head. As the blows were being given one after the other on her husband, she intervened by saying 'don't beat'. Arvind also gave a paliya blow on the wrist of her right hand. It was hit a little. As the accused were beating her husband and she apprehended that she also would be beaten, she ran away from there. At that time Karsanbhai Mohanbhai Koli came. Both the accused ran away after beating her husband before it. She went to her father's place at Rajpur and thereafter as her husband was injured and he was alive, he was brought in a police van to Karali Hospital. Her husband had died during the treatment. She lodged the complaint alleging that her maternal uncle's sons Pravin and Arvindbhai, by keeping grudge on the share from the sale price of the tamarind tree being demanded by Ramdas, entered their house and gave paliya blows one after the other on the neck and head of her husband and on her right hand wrist and thereby caused injuries and her husband had died in Karali Hospital.

2.2. The aforesaid complaint was recorded by P.W.12, Ramsing Gulabsing Baria, as per the narration given by P.W.1, Madhuriben, the complainant and thereafter it was registered vide CR No.6/2000. The said complaint is at Ex.9. He thereafter started investigation. He has sent injured Madhuriben to hospital for treatment with police yadi. Thereafter he held inquest on the dead body of Ramdas in presence of Panchas and Executive Magistrate. He has also drawn panchnama of the scene of offence, collected sample and control earth. He has also recorded the statements of the witnesses, arrested A -1 Pravinbhai after drawing panchnama of his person in presence of panchas and also collected the clothes worn by him having blood stains as well as the Paliya produced by him. He has also recovered the clothes of the deceased. He has arrested A -2 Arvind after drawing panchnama of his person in presence of panchas. The clothes put on by him were also recovered by drawing panchnama. A -2 has shown his willingness to show the weapon used by him for commission of the offence and by drawing discovery panchnama the weapon used by him was also recovered in presence of panchas. He has sent the muddamal articles collected by him to FSL for chemical analysis.

2.3. On receipt of the post mortem report and FSL report and as sufficient incriminating evidence was found against both the accused persons, he filed charge sheet against them in the court of learned JMFC, Chhotaudepur.

2.4. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC committed the case to the Court of Sessions, Vadodara, camp at Chhotaudepur.

2.5. The learned Additional Sessions Judge to whom the case was made over for trial, framed charge against both the accused. They pleaded not guilty to the charge and claimed to be tried and thereupon they were put to trial in Sessions Case No. 48 of 2000.

2.6. To prove the culpability of the accused, the prosecution has examined 12 witnesses consisting of the complainant, panch witnesses, doctor who performed autopsy, investigating officer, etc., and relied upon their oral testimonies.

2.7. To prove the case against the accused, the prosecution has also produced a number of documents such as complaint, post -mortem report, FSL report, discovery panchnama, etc., and relied upon the contents thereof.

2.8. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them and recorded their further statement under Section 313 of the Code. In their further statement, they denied the case of the prosecution in its entirety. They have stated that a false and concocted case has been filed against them. However, they have neither led any evidence nor did they examine any witness in support of their defence.

2.9. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that Ramdas has died a homicidal death and the accused are the authors of the injuries caused to the deceased with paliyu. The trial court has also held that in the said incident the complainant Madhuriben also received injuries. Therefore the prosecution has successfully established the complicity of the accused for commission of murder of Ramdas and also causing injury to complainant Madhuriben. On the aforesaid finding, the trial court convicted the accused for the offences under Sections 302, 452 and 324 IPC and they have been sentenced accordingly to which reference is made in the earlier paragraphs of this judgment, which has given rise to instant appeal at the instance of original accused persons.

(3.)MS . Sadhna Sagar, learned advocate for the accused appointed by the Legal Aid Committee for the accused, has fairly conceded that deceased Ramdas has died a homicidal death. She has submitted that P.W.1, Madhuriben who is the complainant is interested witness and therefore no reliance can be placed upon her oral testimony. She has emphasised that the complainant has not deposed before the Court as per the complaint Ex.9 given by her. According to Ms. Sagar, there are lot many contradictions in the allegations made by the complainant in the complaint as well as in her oral testimony which is fatal to the prosecution case. All other witnesses are hearsay witnesses and therefore no reliance can be placed upon their oral testimony. The panch witnesses who were panch to the panchnama of discovery and recovery of weapons allegedly at the instance of A -1 and A -2 have not supported the prosecution case and therefore recovery of weapons is not proved. Therefore, according to her, the prosecution has filed to establish the charge levelled against the accused.
3.1. Alternatively it is submitted by her that if this court accepts the evidence of the prosecution in its entirety then also it is doubtful as to whether it was A -1 or it was A -2 who has given fatal blow to deceased Ramdas because in this connection there are contradictions in the complaint given by P.W.1 and in the oral testimony of P.W.1 before the Court. Therefore, it is submitted by Ms. Sagar that both the accused may be given benefit of doubt and they may be acquitted of the offence punishable under Section 302 IPC and instead they may be convicted for commission of the offence under section 304 Part I or II i.e., culpable homicide not amounting to murder and accordingly the sentence may also be suitably modified. Therefore she urged to pass appropriate orders in this regard.

Per contra, Mr. K.C. Shah, learned APP for the respondent - State of Gujarat has submitted that there is no infirmity or illegality committed by the trial Court in recording the conviction and sentence against the accused. Therefore, no interference is called for in the impugned judgment and order. According to him, it is true that P.W.1 has given different version in her complaint as well as in her oral testimony. However, she has stated that she has given complaint and there was thumb impression in her complaint. She is a rustic villager. Therefore there might be a little contradictions in her oral testimony as well as in the complaint but that itself is not fatal to the prosecution case. 4.1. In reply to the alternative submission made by Ms. Sadhna Sagar, learned advocate for the accused, Mr. K.C. Shah, learned APP has submitted that looking to the post mortem report, all the injuries were fatal and as per the complaint injury caused by A -1 is a sharp deep wound, 10x4x5 cm size and, therefore, the trial court has rightly convicted both the accused for commission of the offence of murder of Ramdas as well as causing injury to complainant Madhuriben. Therefore complicity of both he accused punishable under Sections 302, 452 and 324 IPC is duly proved. He, therefore, urged to dismiss the appeal by confirming the judgment and order of conviction and sentence recorded against the accused by the trial court.