IMPORTANT POINT
Appellate court has to scrutinize all material on record while hearing an appeal against acquittal.

JUDGMENT :-

H.L. DATTU, J.

1) This appeal is directed against the judgment and order passed by the Division Bench of the High Court of Gujarat in Criminal Appeal No. 744/1985 dated 15.07.2002. By the impugned judgment and order, the High Court has reversed the order of acquittal passed by the Additional Sessions Judge, Amreli in Sessions Case No. 22/84 and convicted the two appellants for the offence punishable under section 302 read with section 34 of the Indian Penal Code, 1860 [“the IPC” for short], sentencing them to imprisonment for life and a fine of ` 1000/- each, in default of which they are directed to further undergo rigorous imprisonment for six months.

2) At the outset, we note that initially there were three accused before the Trial Court, and they were all acquitted for the offences alleged against them. During the pendency of the appeal before the High Court, A1 (Kathi Fakira Vajsur) expired, and the appeal stood abated as against him. The other two accused, namely A2 (Kathi Bharat Vajsur) and A3 (Kathi Ramku Vajsur) are prosecuting this appeal. During the pendency of this appeal, this Court had enlarged the appellants on bail vide order dated 03.12.2002.

3) The factual scenario giving rise to the present appeal is as follows:

The case of the prosecution is that, a part of the adjoining land of the primary school in village Gigasan was leased out to A1, where he had constructed a storage tank for storage of kerosene. It was resolved by the Gigasan Panchayat to give the road between the school and the tank to the school for their use. Therefore, Panchayat had proposed to construct a wall on the land so granted. Prior to the date of the incident, when one Amra Pitha and other labourers had commenced the work on the said plot, A1 protested to it and did not permit them to carry out the proposed work, due to which Amra Pitha had to complain to the Sarpanch Jagu Dada and the Secretary of the Panchayat Shri. Kanubhai about the interference caused by A1. On the morning of the incident, i.e. 30th March 1984, when Jagu Dada (PW6), Mulu Dada (deceased) and Dhoha Vasta (Informant) informed the President of the Taluka Development Officer about the attitude of A1 towards Amra Pitha and other labourers, he directed Mulu Dada to ignore the threat and complete the construction as resolved by the Panchayat.

4) On the same day, at about 3.30 pm, PW6, the deceased and two labourers, namely Jetha (PW8) and Natha (PW7) went to the plot and began the construction work as directed and they were assisted by Manjibhai and Patel who were teachers working in the Primary School. When they began digging for laying the foundation, A1 along with his brothers A2 and A3 came near the plot and asked them not to dig the pit. After verbal exchange, A1 took out a double bore tamancha from his pocket and pointed atPW6, and threatened him to leave. On his refusal to leave, A1 opened fire which caused injury on his right hand and thereafter, again fired on the chest of PW6. Meantime, A2 also fired from tamancha on the person of Mulu Dada due to which Mulu Dada fell down, after which A3 caused injury on the head with an axe which he was carrying with him. Thereafter they fled from the place of incident. Due to the injuries caused, Mulu Dada died on the spot. Immediately, PW5 reported the incident to the Police Station, Dhari and on the basis of the written report the Station Officer took-up the investigation and on completion thereof charge-sheet was filed against the accused persons for the offences punishable under Sections 302, 307 read with Section 34 of the Indian Penal Code (for short ‘the IPC’).

5) To substantiate its accusation, prosecution examined several witnesses to prove its case before the Trial Court. The Trial Court, after considering the entire evidence on record, acquitted the accused persons, on the ground that the prosecution failed to prove its case beyond reasonable doubt.

6) Aggrieved by the same, the State preferred an appeal