BHAVESH @ BHAVLO GHUSABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are filed by the appellants - original accused Nos.2 and 1 under Section 374(2) of the Criminal Procedure Code, 1973 [for short, 'the Code, 1973'] challenging the judgment and order dated 15.07.2009 passed by the learned Additional District Judge and Fast Track Court No.8, Gondal, camp at Jetpur in Sessions Case No.157 of 2007 convicting the appellants under Sections 302, 201 and 34 of the IPC and under Section 135 of the Bombay Police Act and sentencing them to undergo RI for life and to pay fine of Rs. 10,000/- and in default to further undergo one year SI.

(2.) The brief facts of the prosecution case are as under:

(3.) Shri Y.S.Lakhani, learned Senior Advocate appearing with Mr. Pravin Gondaliya, learned advocate for the appellants - convicts submits that the trial court relying on 24 prosecution witnesses and 40 documentary evidence, rendered the impugned judgment and order of conviction and sentence and the entire case of the prosecution is based on circumstantial evidence and there is no eye witness to the incident. It is further submitted that in spite of the absence of any motive or any clear evidence emerging on record about civil dispute pertaining to land in question, the trial court believed the motive behind crime for the land in dispute and that none of the appellants was either owner, occupier or had any interest in such disputed land and simply based on some documents exhibited with regard to purchase of land in dispute where it was alleged that wife of one of the accused No.1 was copurchaser, the trial court believed that motive was established based on testimonies of PW11, complainant, who happens to be son of the deceased; PW13, a labourer working in the agricultural field cultivated by the deceased; PW15 daughterinlaw of the deceased; PW20 Investigating Officer; PW21 and PW22 about land in dispute and transaction and again testimonies of investigating officer who was recalled in exercise of powers under Section 311 of the Code, 1973 and all the above witnesses except PW11, the complainant and son of the deceased deposed to the extent that accused had visited residential house and agricultural field of the deceased and insisted for compromise to be arrived for the disputed land failing which threatened with dire consequences. It is further submitted that the important witness PW11, the complainant and son of the deceased do not say anything about any threat either administered by any of the accused or even any apprehension of threat except that accused had visited residence of the deceased and expressed intention for settlement and compromise. That other witnesses in their crossexamination are hearsay witnesses and failed to support the case of the prosecution.