IMPORTANT POINT
The court upheld the conviction for robbery while acquitting the accused of murder due to insufficient evidence of intent, affirming the reliability of testimony from related witnesses.

JUDGMENT :

S.V. PINTO, J.

1. These appeals have been filed by the appellants-original accused under Section 374 of the Code of Criminal Procedure against the judgment and order dated 22.08.2017 passed by the learned 5th Additional Sessions Judge, Ankleshwar (hereinafter referred to as the “learned Trial Court”) in Sessions Case No. 89 of 2013. The appeals have arisen out of the same impugned judgment and order and hence, are disposed of by this common judgment.

The appellants are referred to as the accused in the rank and file as they stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts necessary to decide the appeal are in a nutshell as under:

2.1 As per the case of the prosecution on 04.02.2012 at 20:15 hours, the deceased Kanubhai Motibhai Padhiyar was going on his Bajaj Discovery motorcycle No. GJ-16-AE- 7596 with his wife Kailashben, daughter Nikitaben and son Darshan from Petrofils Colony, Ankleshwar and while they reached Centre Point, all the accused with the intention of committing a robbery were armed with a wooden handle of a spade, halted their motorcycle and tried to rob the motorcycle. Kanubhai Motibhai Padhiyar did not give the motorcycle and the accused no. 2-Shivshankar @ Shankar Jogeshwar Khokha Yadav gave a blow with the wooden handle of the spade on his back and the accused no. 3-Guddu @ Rajkumar Sakhichand Bharti took the weapon from the accused no. 2 and assaulted Kanubhai on his face and head and at that time, the complainant intervened and a blow was given on her right hand. The motorcycle fell down and accused no. 1-Brijbhushan @ Butlu Mithiladhish Ramdhari Pande took the motorcycle and all the accused sat on the motorcycle and fled away. Kanubhai Motibhai Padhiyar had sustained serious injuries on his head and was immediately taken to the hospital where he succumbed to his injuries during treatment on 06.02.2012. The complaint was filed by Kailashben Kanubhai Padhiyar at Ankleshwar GIDC Police Station under Sections 302, 394, 504 and 114 of the IPC and Section 135 of the Bombay Police Act and was registered at C.R. No. I-22 of 2012.

2.2 The Investigating Officer drew the necessary panchnamas, recorded the statements of the connected witnesses and the motorcycle number GJ-16-AE-7596 was seized under Section 102 of the Code of Criminal Procedure in the presence of independent panch witnesses. After the accused were arrested, Test Identification Parades were conducted by the Executive Magistrate wherein the complainant Kailashben Kanubhai Padhiyar and eye witness Nikitaben Kanubhai Padhiyar identified all the accused in the presence of independent panch witnesses. After the FSL Analysis reports were received, a charge-sheet came to be filed before the Court of the learned Judicial Magistrate First Class, Ankleshwar and as the case was exclusively triable by the Session Court, Ankleshwar, an order was passed by the learned Judicial Magistrate First Class, Ankleshwar under Section 209 of the Code of Criminal Procedure and the case was registered as Sessions Case No. 89 of 2013

2.3 Pending the proceedings the accused no. 1-Brijbhushan @ Butlu Mithiladhish Ramdhari Pande absconded and hence, by an order dated 05.09.2013, a separate trial against the accused no. 1-Brijbhushan @ Butlu Mithiladhish Ramdhari Pande was ordered to be conducted and the trial against the other three accused i.e. (2) Shivshankar @ Shankar Jogeshwar Khokha Yadav, (3) Guddu @ Rajkumar Sakhichand Bharti and (4) Amit @ Billu Kailash Banarasi Jaiswal was conducted.

2.4 The accused nos. 2, 3 and 4 appeared before the learned Trial Court and it was verified whether the provisions of Section 207 of the Code of Criminal Procedure were complied with and a charge was framed against the accused at Exh.9 and the statements of the accused were recorded at Exhs.10 to 12 respectively. The accused denied all the contents of the charge and the evidence of the prosecution was taken on record. The prosecution examined