JUDGMENT :

A.L. Dave, J.

In Sessions Case No.130 of 2000 before City Sessions Court, Ahmedabad, eight persons were arraigned as accused who have been charged with offence punishable under Sections 143, 148, 302 read with 149, 326 read with 149, 324 read with 149 of the Indian Penal Code and under Section 135 of the Bombay Police Act. The trial Court after recording the evidence acquitted A-3-Amit Ramesh Vaghela, A-5-Champaben w/o., Fatehsinh Solanki, A-7-Sumanben @ Sumitraben Jayantibhai Vaghela and A-8-Rekhaben Rameshbhai Vaghela. One of the suspects, Natvar Atmaram was absconding at the time of trial. The trial Court convicted A-1-Ramesh Atmaram Vaghela and A-2-Jayantibhai Atmaram Vaghela for offence of murder punishable under Section 302 read with 34 of the Indian Penal Code. Whereas, A-4 has been convicted for offence punishable under Section 326 of Indian Penal Code and sentenced to undergo two years and six months SI and to pay a fine of L 5,000/- in default to undergo one month SI. Therefore, A-1 and A-2 preferred Criminal Appeal No.176 of 2007, where A-1 Ramesh Atmaram Vaghela has expired during pendency of appeal and his appeal stands abated. A-4-Popatbhai Ratilal preferred Criminal Appeal No.2322 of 2006 against his conviction.

1.1 Now, therefore, this Court is required to examine cases against A-2-Jayantibhai Atmaram and A-4-Popatbhai Ratilal.

2. The State has preferred Criminal Appeal No.1458 of 2007 against acquittal of A-3, A-5, A-7 and A-8 for offence punishable under Section 302 of the Indian Penal Code and this Court, therefore, will have to examine whether their acquittal is justified or not.

3. We have heard learned Advocate Mr.Gondalia for the convict - appellants in Criminal Appeal No.176 of 2007 and Criminal Appeal No.2322 of 2006, so also, learned APP appearing for respondent in the said Appeals and for the appellant in Criminal Appeal No.1458 of 2007.

4. Brief facts of the case are that the alleged incident occurred on 20/04/1999 at about 12:30 p.m. in the Vankarvas at Isanpur, Ahmedabad in the open courtyard behind the house of first informant - Bhanuben where it is alleged that the accused persons armed with deadly weapons attacked the said premises and assaulted - Shankersinh, who died because of the injuries suffered by him in the attack. It is also the case of the prosecution that the assailants also attacked witness - Harisinh as well as - Valiben with deadly weapons. This incident was seen by first informant PW No.2-Bhanuben, P.W. No.4-Sugnaben and P.W. No.10-Madhuben. Besides the above witnesses, as per the prosecution case, there were several other persons, who had assembled there hearing the hubbub and they had also seen the incident. FIR was given by P.W. No.2-Bhanuben with Vatva Police Station, who registered the offence and investigated the case and having found sufficient material to connect the accused persons with the offence, filed charge-sheet in the Court of learned Metropolitan Magistrate, who in turn, committed a case to the Sessions and Sessions Case No.130 of 2000 came to be registered.

5. The learned trial Judge framed charge against the accused at Exh.10. They pleaded not guilty to the charge and came to be tried. At the end of the trial, A-1, A-2 and A-4 came to be convicted, whereas rest of the accused persons were acquitted by the trial Court and hence these appeals.

6. Learned Advocate Mr. Gondalia submitted that even if the prosecution case is accepted as it is, without even glancing at the cross-examination, what emerges is that there is discrepancy about the place of incident. Though the police papers and the witnesses indicate that the incident occurred in the open courtyard behind the house of the first informant, Panchnama would reveal that there were no marks of any violence or injury at that place and there were marks of violence and damage to a vehicle near the house of A-1. These two places are located at a distance of about 100' to 150'. Learned Advocate therefore, submit