JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)

1. This appeal is at the instance of two convicts for the offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code and is directed against the order of conviction and the consequent sentence dated 27th August 2008 passed by the learned 4th Court of Additional Sessions Judge, Vadodara, in Sessions Case No. 170 of 2007 thereby holding the accused No.1 guilty of the offence punishable under section 302 and the accused No.2 guilty of the offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code and sentencing them to suffer life imprisonment and to pay a fine of Rs.1000/-each with a further stipulation that in default of payment of the fine, the accused persons would undergo simple imprisonment for a further period of seven days.

2. The translated version of the charges framed against the accused persons are quoted below:

“(1) That you, the accused persons, and the mother of accused no. 1, had a quarrel with complainant, Chimanbhai Maganbhai Bariya, and his wife regarding the woods of the wild babul tree some days prior to 13/04/2007, and, you, the accused persons, intimidated that, “We will not let you live.” and as you, the accused no. 1, came to know about the relation of Sangita, the sister of you the accused no. 1, with Hasmukh, the son of complainant Chimanbhai, you were making quarrel after indulging in frequent altercation, and by keeping displeasure thereof, when complainant Chimanbhai, his wife Galuben, and his son Hasmukhbhai, were sleeping by keeping cots on their otla (raised platform) on 13/04/2007, at about 23.45 hours, though you, both the accused persons, with an intention to commit murder of Hasmukhbhai or knew that if Hasmukh is given blows of sickle on the chest and mouth part, his death would occur, you, the accused no. 1 Lalvo @ Sanjaybhai Balubhai, caused deadly injury on the chest and neck part of Hasmukhbhai with sickle, and you, the accused no. 2, being with him, aided and abetted during the period of incident or had common intention of murder of Hasmukhbhai, and thereby, you, have committed an offence u/s 302 of the I.P.C. read with section 114/34, by committing murder of Hasmukhbhai.

2) Though a notification of prohibition to keep arms of the Additional District Magistrate, Vadodara, was in force at aforesaid place, time and date, you, the accused persons, being armed with prohibited weapons, violating the notification of prohibition to keep arms, you, accused persons, have committed an offence u/s 135 of B.P. Act.

As you have committed aforesaid offences within jurisdiction and cognizance of this Court, this Court passes an order to conduct trial.”

3. The case made out by the prosecution may be summed up thus :-

3.1 One Chimanhai Maganbhai Bariya, the complainant, had thus:-cut a Babul tree in the compound of his house. The accused persons and the mother of the accused no. 1, Champaben, went to take wood which were cut by him. At that time, a quarrel took place with the complainant regarding the wood and the accused no.1 caught hold of the collar of the complainant and intimidated to kill him. The accused no.1 having come to know about the relationship of his sister, Sangita, with Hasmukh, the son of the complainant, kept the animosity in his mind which took place and on 13th April 2007, at about 23.45 hours in the night when the complainant, his wife, Guluben, and the son, Hasmukhbhai, were sleeping on bed on the Otla (raised platform) outside of their house, both the accused persons came near the otla of the house of the complainant. The accused no.2 stood on the road near to the Otla and the accused no.1 went near the bed of the deceased, Hasmukhbhai, and inflicted indiscriminately fatal blows of sickle on the mouth, neck and chest of Hasmukh. As the dog barked, Guluben and her husband Chimanbhai woke up, and on seeing the accused