IMPORTANT POINT
The prosecution must establish the accused's guilt beyond reasonable doubt, and the evidence of eyewitnesses must be reliable and consistent to prove the accused's complicity in the offence.

JUDGMENT :

A.S. SUPEHIA, J.

1. Since, both the appeals arise out of a common judgment and order, with the consent of the learned Advocates for the parties, the same are taken-up for hearing together and being disposed of by this common judgment.

2. The present appeals, filed under Section 374 of the Code of Criminal Procedure, 1973 (in brief, ‘the Code’), are emanating from the judgment and order dated 05.02.2014, passed by 2nd Additional Sessions Judge, Bharuch at Ankleshwar (‘trial Court’, hereinafter), in Sessions Case No.38 of 2013 (Old Sessions Case No.111 of 2018), whereby, the trial Court has convicted the appellants-original accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code, 1860 (in short, ‘IPC’) and sentenced them to undergo imprisonment for life and to pay fine of Rs.5,000/- and in case of default, to undergo further simple imprisonment for six months.

3. As per the charge, Exh.4, total four persons were arraigned as accused. However, the concerned trial Court acquitted the original accused No.3-Pravin Ramaashray Yadav and accused No.4- Dharmendra Bansidhar Shah, at the end of trial by giving them the benefit of doubt. However, the present appellants – original accused No.1-Anuj @ Sonu Murlidhar Varma and accused No.2– Guddu Shri Rajkumar Bharti came to be convicted.

4. The Charge, Exh.4, refers to the incident, wherein, it is stated that on 13.05.2011, at about 11:00 a.m., the original complainant– Sushilkumar Yoginder Nyahi and the deceased–Vinod Kuswaha when were going to Chandal Chowkdi, at that time the accused Nos.1 and 2 intercepted them and accused No.1-Anuj slapped the deceased - Vinod two-three times and on account of that the deceased - Vinod fell down, whereupon, accused No.1-Anuj strangulated the deceased - Vinod, whereas, accused No.2-Guddu inflicted kicks on the genitals of the deceased - Vinod. Thereafter, other two persons, i.e. accused Nos.3 and 4, caught hold of the deceased – Vinod and then accused No.1- Anuj and accused No.2 - Guddu inflicted kick and fist blows on the deceased - Vinod. Since, Vinod succumbed to the injuries sustained by him, the charge was framed for the offence punishable under Section 302 read with Section 114 of the IPC.

5. The trial Court, after appreciating the ocular as well as the documentary evidence, convicted and sentenced the accused Nos.1 and 2, as referred herein above. Hence, the present appeal.

6. Learned Advocate, Mr.Patadia, appearing for the appellants – original accused Nos.1 and 2 has submitted that, in fact, the trial Court has fell in error by convicting them by placing reliance on the testimony of the so-called eyewitnesses. It was submitted that the version of the eye-witnesses is required to be ignored, since, they have not established themselves as reliable witnesses.

7. While inviting the attention of this Court to the evidence of the original complainant, i.e. Sushilkumar Yogendra - PW-17, Exh.-56, it was submitted that in his deposition before the trial Court, PW-17 has stated that accused No.1-Anuj first slapped the deceased - Vinod and thereafter, accused No.2 - Guddu inflicted kicks on the genitals of the deceased – Vinod. PW-17, Sushil, also named two other persons as accused, i.e. original accused No.3-Pravin and No.4-Dharmendra. The cause for such quarrel, which is mentioned in his deposition, is that one Murlidhar Varma, who happens to be the father of accused No.1-Anuj, lodged a complaint, for eve-teasing of his daughter, against Guddu, Satender, Munna and Sunil Kushwaha with Ankleshwar GIDC Police Station. PW-17, has admitted that no complaint was lodged against the deceased - Vinod or against him by Murlidhar Varma. It is, further, admitted by PW-17 that there was no animosity between the accused No.1-Anuj and the deceased - Vinod.

8. Learned Advocate, Mr.Patadia, submitted that PW-17, Sushilkumar is, in fact, not an eye-witness, since, in the cross-examination, it is elicited that when