Point of law: It is proved that, the victim died of the injuries of knife blows. Those blows were inflicted by original accused No.1. He is convicted for having committed offence under Section 302 of IPC. The sustainability of the said conviction is not the subject matter of this acquittal appeal.

JUDGMENT :

PARESH UPADHYAY, J.

1. This is an acquittal appeal. It is filed by the original complainant, invoking his right under proviso to Section 372 of the Code of Criminal Procedure, 1973. This appeal is directed against the judgment and order passed by the Additional City Sessions Judge (Court No.15), Ahmedabad dated 03.09.2020 in Sessions Case No.70 of 2017.

2. On 11.12.2015, at about 11:30 (night), at Sultan Mohalla, Dariyapur, Ahmedabad City, one Yasinbhai was attacked and was done to death. Complaint in that regard was given by the present appellant and consequently, an FIR was registered by the Dariyapur Police Station, Ahmedabad City on the early morning of 12.12.2015 (being C.R.I No.36 of 2015) for the offences punishable under Sections 302, 143, 147, 148, 149 and 201 of the Indian Penal Code and Section 135 of the Gujarat Police Act. Five persons were named as accused. It was registered as Criminal Case No.925 of 2016 and on being committed to Sessions Court, was registered as Sessions Case No.70 of 2017.

3. On conclusion of the trial, the Sessions Court arrived at the following judgment :-

3.1 Original accused No.1 – Mohammad Vajid son of Mohammad Imtiyaz @ Chiko Noormohammad Sayani Bapu Shaikh is principally convicted for having committed offence under Section 302 of IPC and is ordered to undergo rigorous imprisonment for life.

3.2 Accused No.2 – Mohammad Imtiyaz @ Chiko Noormohammad Sayani Bapu Shaikh is convicted for having committed offence punishable under Section 324 of IPC and is ordered to undergo rigorous imprisonment for three years.

3.3 Accused No.3, 4 and 5 viz., Moiz, Farhan and Irshad, (all three - sons of accused No.2 - Mohammad Imtiyaz @ Chiko Noormohammad Sayani Bapu Shaikh), are principally convicted for having committed offence under Section 323 of IPC and are ordered to undergo rigorous imprisonment of one year.

3.4 Over and above the sentences, fine is also imposed and in default thereof, further sentence is also imposed.

4. This appeal is filed by the original complainant with the grievance that, not only original accused No.1, but all the five accused should have been convicted for having committed offence under Section 302 of IPC.

5. Heard Mr. Y.V.Brahmbhatt, learned advocate for the appellant – original complainant, Mr. Arjun M. Joshi, learned advocate for the original accused / convict Nos.2 to 6 and Mr. Hardik Soni, learned APP for the respondent – State.

6. Mr. Y.B.Brahmbhatt, learned Advocate for the Original Complainant has made the following submissions.

6.1 It is vehemently and principally submitted that, there was animosity between the families of the deceased and the accused and this was premeditated murder and all the five accused should have been convicted under Section 302 of IPC.

6.2 It is also submitted that, the trial Court fell in error in not accepting the case of the complainant and the prosecution that the offence under Section 302 of IPC was committed by all the five accused, inspite of they being members of unlawful assembly, according to the appellant.

6.3 It is submitted that, the finding of the Trial Court that there was no evidence to bring home the charge within the four corners of Section 149 is erroneous.

6.4 It is submitted that, all the accused ought to have been convicted under Section 302 of IPC with the aid of Section 149 of IPC.

6.5 It is noted that the learned advocate for the appellant has taken this Court extensively through the findings recorded by the Sessions Court and has also read the evidence, which according to him was relevant. Reference in this regard is made to evidence of the witnesses at Exh.56, 58, 59 and 64.

6.6 According to learned advocate for the appellant, all the five accused can be said to have been attributed with overt-act in commission of the offence.

6.7 It is submitted by him that this appeal be accepted and the accused Nos.2 to 5 be also convicted for having committed offence under Section 302 of IPC, as conviction is recorded qua original accu