Important Point – If two views are possible on the basis of evidence on record and one favourable to accused has been taken by trial Court, it ought not to be disturbed by Appellate Court.

V.M. Pancholi, J.

1. State has preferred this appeal against the judgment and order dated 13.02.1992 rendered by learned Sessions Judge, Ahmedabad City in Sessions Case No. 418 of 1988, whereby, the learned Sessions Court has acquitted the respondents accused for the charges levelled against them, for the offences punishable under Sections 307 read with Section 34 and 120B of IPC, under Section 25(1)(c) of the Arms Act as well as under Section 37(1) read with Section 135 of the Bombay Police Act.

2. The prosecution case in brief is that the some amount of complainant Dilip Tolaram Revnani was due from accused No. 1 - Ashok Shaktidan Gadhvi. However, accused No. 1 was not inclined to give the money to the complainant and therefore accused No. 1 along with the other accused hatched a conspiracy at the residence of accused No. 2 and thereby decided to kill the complainant by crushing him with car and decided to use revolver and knife for the said purpose. It is alleged by the prosecution that with a view to achieve the said ill-design will of the accused, on 09.07.1987, during late night hours, the complainant was brought in a car bearing No. GBA-657 from theater and accused No. 1 dropped the complainant near Sahjanand Circle and proceeded towards Nehrunagar Cross Roads in his car. Thereafter, accused Nos. 3 and 4 came at the said place in uniform. The accused Nos. 3 and 4 caught hold the complainant after he got down from the car and started beating him. When both the accused Nos. 3 and 4 were beating, accused No. 1 drove his car in full speed with a view to crush him by colliding and at that time the complainant escaped from the custody of those two assailants and started running towards Nehrunagar Cross Roads. It is further alleged by the prosecution that accused No. 1 stopped his car and shouted that he should be finished. Therefore, the complainant started running fast and he heard the noise of firing. Accused No. 3 came near and gave a kick and accused No. 4 overtook him and fired shots from revolver. Thereafter, accused No. 3 inflicted blows with knife on different parts of the body of complainant. Thereafter, the complainant shouted for help. Thus, the accused have committed the offence punishable under Sections 307, 34, 120B of IPC and under Section 25(1)(c) of the Arms Act and under Sections 37(1) and 135 of the Bombay Police Act.

3. After the registration of the FIR, the Investigating Officer carried out the investigation and filed the charge-sheet against total six accused. However, from the record, it appears that original accused No. 5 - Altaf Husein Valimohmad Momin and accused No. 6 - Hanubhai Samatbhai Gadhvi were discharged by the learned Additional City Sessions Judge, by an order dated 22.06.1989. Thereafter, trial was proceeded against the remaining four accused. During the course of the trial, the prosecution examined 21 witnesses and produced documentary evidence on record. At the end of the trial, learned trial Court acquitted the remaining four accused for the charges levelled against them. At this stage, it is to be noted that during the pendency of this appeal, accused No. 4 - respondent No. 4 herein i.e. Mansinh Dilipsinh Solanki died on 19.09.2007 and copy of the death certificate of the said accused was placed on record. Hence, the appeal is abetted qua respondent No. 4 - original accused No. 4.

4. During the course of trial, the prosecution has examined the following witnesses:

MEDICAL EVIDENCE:

5. Prosecution has examined P.W. 2, Dr. Vashantkumar Hemchand Vaniya at Exh. 31. The said witness deposed that he was working as tutor in anatomy branch of B.J. Medical College. On 09.07.1987 patient Dilipbhai was referred for examination and treatment. Doctor Dhruvbhai referred the said patient. During examination of the said witness, following injuries were found on the body of patient Dilipbhai.

"1. Incised wound 2 x 2 c.m. Lt. Axilla at 5th & 6th space

2. Incised wound 3 x 2 c.m. Rt. Inter scapular regio