JUDGMENT :

1. This appeal is filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) by appellants – original accused Nos.2 and 4 respectively, against judgment of conviction and order of sentence passed by Additional Sessions Judge, Banaskantha at Deesa, dated 31.5.2002 in Sessions Case No. 227 of 2000, whereby the appellants along with one another co-accused – Ghumansing Bhomji Thakor came to be convicted for an offence under Section 394 of the Indian Penal Code (hereinafter referred to as “IPC”) and they were ordered to undergo 7 years rigorous imprisonment. Over and above that, another accused - Ghumansing Bhomji Thakor was also convicted for an offence under Section 135 of the Bombay Police Act and he was ordered to undergo 4 months’ simple imprisonment. Both the sentences imposed upon the accused No. 1 - Ghumansing Bhomji Thakor was ordered to run concurrently. Another accused - Ghumansing Bhomji Thakor, preferred Criminal Appeal No.550 of 2002. However, it appears that with the death of the appellant therein, the appeal filed by him came to be disposed of as abated.

2. As per the case of the prosecution, alleged incident took place on 09.09.2000 at about 4:00 p.m. in the sim of village Genaji Goliya and a first information was given by Bhikhaji Ukaji Suthar at about 6:45 pm. As per the case of the prosecution, at about 12:00 pm. on 09.09.2000, Kanti, brother of first informant - Bhikabhai Ukaji, went to the sim of village with cattle for grazing. However when the first informant, his younger brother and father were at home at about 4:00 p.m., one Rabari Jamabhai Prabhubhai of their village brought Kantibhai, who was injured, having injuries over his head and bleeding profusely, when the first informant asked his injured brother what happened, to which he replied that while he was grazing cattle at that place, one Thakor Bhuraji Maknaji and son of Thakor Dhiraji and son of Thakor Bhomji came to him and they were attempting to remove the gold earrings which was objected to by him, at that time, it is alleged that Thakor Bhuraji Maknaji inflicted knife blow on left side of the head of the injured and at that time, son of Thakor Bhomji caught hold of him and son of Dhiraji had removed gold earrings from his one ear. He had further informed that, because of injury, he fell down and Rabari Jamabhai Prabhubhai, on seeing him, brought him home. It is further the case of the prosecution that because of injury when he stopped speaking, he was taken to Deesa in a tractor but on coming to the road, they found one Jeep car and in that said Jeep car, injured Kantibhai was taken by first-informant, his mother and another brother, to Deesa Government Hospital. It is further the case of the prosecution that, after admitting the injured to Deesa Government Hospital, he went to police station for filing the First Information Report.

2.1 Pursuant thereto, an FIR came to be registered at Deesa Rural police station for an offence under Section 307, 397 and 34 of the “IPC” as also under Section 135 of the Bombay Police Act. On conclusion of investigation pursuant to an FIR, a charge-sheet came to be filed against 4 accused:- i) Ghumansing @ Gamnaji Bhomji Thakor, ii) Lakhmansing @Lakhusinh Shivji Thakor, iii) Jesungji Shantuji Thakor, iv) Nathusing Dhirji Thakor, in the Court of learned Magistrate.

2.2 On committal of the said case to the Court of Sessions, it was numbered as Sessions Case No. 227 of 2000. During the course of trial, accused No. A/3 – Jesungji Shantuji Thakor, died and case against him came to be abated. Another accused being accused No.1 – Ghumansing @ Gamnaji Bhomji Thakor, on conviction, preferred Criminal Appeal No. 550 of 2002 but he also died during pendency of the appeal itself, and therefore, appeal filed by him also came to be abated.

2.3 On case being committed to the Court of Sessions, a charge vide Exhibit-10 came to be framed on 20.11.2001 against all the 4 accused prose