IMPORTANT POINT
Concurrent findings of courts below can be set aside if perverse.

JUDGMENT :

R. BANUMATHI, J.

1. This appeal arises out of the judgment dated 05.03.2009 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No.10 of 2001 in and by which the High Court affirmed the conviction of appellant-accused No.1 under Section 302 IPC read with Section 34 IPC and the sentence of life imprisonment imposed upon him. The High Court also affirmed the conviction of the appellant under Section 307 IPC read with Section 34 IPC and under Section 25(c) of the Arms Act and the sentence of imprisonment imposed upon him. The High Court acquitted the appellant for the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. Brief facts which led to filing of this appeal are:-

On 23.11.1997 at about 09.00 PM, accused Nos.1 to 5 along with their servant (accused No.6) and another one accused gathered themselves and started ploughing the disputed road with a tractor for which a civil suit in Regular Suit No.131 of 1997 filed by complainant-Somabhai Rupabhai (PW-3) against appellant-accused No.1 and accused No.3 was already pending before the Court of Civil Judge, Modasa. According to the prosecution, the said road was used by the complainant and his family members for going to and fro. On the date of incident i.e. on 23.11.1997 at about 09:00 PM, when accused persons were ploughing the road, the complainant and his family members intervened and prevented them from carrying out the ploughing activities on which accused started abusing the complainant and his family members with caste remarks. Due to fear, complainant and his family members went back to their houses which were near to the place of incident. In the meantime, appellant/accused No.1-Ashoksinh Jayendrasinh and accused No.2-Kalusinh @ Harpalsinh armed with guns, accused No.4-Balbadhra Singh armed with stick and accused No.3-Gayendra Singh who was driving the tractor came there. Thereafter, accused Nos.1 and 2 fired three gun shots which hit deceased Somiben, wife of Hirabhai (PW-5), Ramanbhai (PW-6) and Nandaben (PW-7) due to which Somiben died on the spot and PWs 6 and 7 got injured. Thereafter, all the accused ran away from the place of incident. On 24.11.1997, on the basis of the complaint lodged by complainant (PW-3), FIR was registered against all the accused under Sections 302, 307, 120B IPC read with Section 34 IPC, 143, 147, 148, 149, 506(II), 323 and 504 IPC, under Section 25(c) of the Arms Act and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. Upon completion of investigation, charge sheet was filed against the appellant and other co-accused under Sections 302, 307, 120B IPC read with Section 34 IPC, 143, 147, 148, 149, 506(II), 323 and 504 IPC, under Section 25(c) of the Arms Act and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

4. To bring home the guilt of the accused, the trial court examined four eye-witnesses viz. complainant-Somabhai Rupabhai (PW-3), Hirabhai Somabhai (PW-5) and injured eyewitnesses- Ramanbhai Mulabhai Rangjibhai (PW-6) and Nandaben Hirabhai (PW-7), Dr. Rohit Kumar (PW-1) who conducted the post-mortem on the dead body of deceased Somiben, Dr. Deshmukh Hiralal (PW-4) who examined the injured eye-witnesses and other witnesses. Upon consideration of the evidence of injured eye-witnesses (PWs 6 and 7), recovery of weapons and other evidence on record, the trial court vide its judgment dated 15.11.2000 convicted the appellant-accused No.1 and accused No.2 under Section 302 IPC read with Section 34 IPC and sentenced them to undergo life imprisonment along with fine of Rs.5,000/- each. They were also convicted under Section 307 IPC read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for seven years along with fine of Rs.5,000/- each. They were also convicted under Section 25(c) of the Arms Act and sentenced to undergo rigorou