Anant S. Dave, J.

1. Criminal Appeal No. 216 of 1987 was filed under Section 11 of the Probation of Offenders Act by the appellant State of Gujarat against the judgment and order dated 22.1.1987 passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 272 of 1986.

Criminal Appeal No. 217 of 1987 was filed by the State of Gujarat against judgment and order of acquittal dated 22.1.1987 passed by the learned Additional Sessions Judge, Ahmedabad in Sessions Case No. 272 of 1986 of the respondents accused so far as offence under Section 302 of the Indian Penal Code is concerned.

The case of the prosecution is that at Ahmedabad, Bhudarpura, there is one Vaghri's Vas having about 150 huts which is called as Marvadi's Vas or Vaghri Vas situated near Sharda Society. There are most of the houses of Marvadi Vaghris except one or two of Gujarati Vaghris. According to the prosecution, on 17.5.1985, there was one marriage of Bai Shanta, daughter of Sonaji Vanaji and, hence, there was Mandva just near Jogni Mata, which was decorated including lighting just near Jogni Mata temple, there is Otta on which at about 7 to 7:30 p.m., Moda Moti, Girdhar Natha, Manubhai Vanabhai and Naran Bechar were sitting; whereas some boys were playing. At about 7:30 p.m., Manabhai Nagaji, a boy aged 16 years came there loitering watching the Mandap and was standing nearby. Accused Babaji Bhajanbhai also came there watching Mandap and inadvertently, his leg touched the leg of Manabhai Nagabhai. So, Manabhai Nagabhai told Babaji that though there is some light, whether he is blind and, as such, accused Babaji Bhajanbhai got enraged and started giving fist blows to Manabhai Nagaji. Manabhai raised shouts, but the other two accused viz. Rohitbhai Bhajanbhai and his nephew Jagdish Laxmanbhai immediately ran down to the spot. Rohit Bhajanbhai was armed with an iron bar. Jagdish gave fist blows whereas Rohit Bhajanbhai gave iron blow just over the left eyebrow of Manabhai Nagabhai whereby he got giddiness and fell down. The four persons who were nearby got up, but all the three accused ran way. Out of four, Naranbhai Becharbhai lifted Manabhai. Manabhai had also purged in his Chadi, but Naranbhai Becharbhai took him to the house and made him to lie down in a cot. Girdharbhai Nathabhai went to call a private doctor who was having dispensary nearby viz. Dr. Kandarp Kanaiyalal Joshi. He examined the pulse, heart, bits and pupils and found that Manabhai Nagabhai was dead.

1.1. Those were the days when there were riots and disturbances in Ahmedabad city and curfew was imposed in city and the vehicles were also not available. But Modabhai Motibhai went to the Ellisbridge Police Station at about 8:45 to 9:30 p.m., where he contacted Ellisbridge Police Station PSI Shri Mewada who was incharge of Investigation squad. He immediately recorded the complaint and went to the spot. As marriage party was to arrive and there was Mandap, the place of offence may not be disturbed and/or disturbed PSI had placed some bricks. He prepared inquest report of the dead body and recorded statements of witnesses. He sent the dead body along with report to V.S. Hospital with police constable Dilipsinh. PSI directed PSI Shri Shinde to go with Manubhai Vanaji in search of the accused and as Manubhai Vanaji was knowing their whereabouts. PSI had also forwarded the complaint for registration with his report. Police photographer was called for and as he also arrived during that time, photographs of dead body lying on the cot as well as place of offence were got snatched. He prepared the Panchnama of the place of offence. PSI Shinde produced accused Jagdish and Babaji at 2:30 a.m. They were arrested and taken on remand. Accused Rohit was arrested on 20.5.1985. He gave discovery of Muddamal article No. 1 iron bar which he pointed out from the Mehdi hedge of Parimal Garden and the same was attached under Panchnama. On receiving the postmortem note and on completion of investig