IMPORTANT POINT
The conviction under Section 302 IPC was upheld based on credible eyewitness testimony and established common intention among the accused.

JUDGMENT :

ILESH J. VORA, J.

1. The present appeal is filed by the appellant-original accused no. 2 under Section 374 of Code of Criminal Procedure, 1973 (‘Cr.P.C.’ in short) against the judgment and order of conviction and sentence dated 12.08.2015 passed by the learned Sessions Judge, Ahmedabad in Sessions Case No. 168 of 2013, wherein, the appellant alongwith accused no. 1 came to be tried for offences punishable under Sections 302 and 294(B) read with Section 34 of the Indian Penal Code, 1860 (‘IPC’ for short) and Section 135 of the Gujarat Police Act, 1951 (‘G.P. Act’ in short).

2. At the end of the trial, the appellant came to be convicted under Sections 302 and 323 read with Section 114 of the IPC and was sentenced as under:

3. The facts leading to file the present appeal are as under:

3.1 On 13.10.2011 at about 11-30 PM, deceased Dipak Meghjibhai was fatally killed by the accused Satishsinh Solanki and present appellant accused Kamalsinh Naruka. The motive behind the murder was the relation of the deceased with the sister of the accused Satish Solanki. Both the accused are related to each other.

3.2 On the day of incident, deceased was sleeping on the terrace of his house situated at Amraiwadi Area, Ahmedabad, whereas, PW-10 mother was on cot at the varanda of the house. The accused came at about 11-30 PM, under the pretext that they want to inform the deceased about bankers cheque. The PW-10 called the deceased by shouting his name. The accused no. 1 - Satish Solanki while scaling on the compound wall, called the deceased by hurling abusive. The deceased came down from the terrace. The accused complained of about phone called made by deceased to their sister. The deceased explained that he never called her but she in turn called him. The accused thereafter, gave feast and kick blows to the deceased, which has resulted into scuffle between the parties. The accused no. 2-present appellant was having a big knife and during this scuffle the knife was given by him to accused no. 1, as a result of which, the accused no. 1 stabbed the deceased multiple times at the vital parts of the body. The deceased instantaneously collapsed. The PW-10, tried to restrain the deceased by throwing wooden log alleged used for washing cloth. After the incident, leaving the knife at the spot, the accused on account of hue and cry and gathering of the neighbor ran away.

3.3 The emergency ambulance 108 called by someone. The private hospital, where the deceased was brought declared him ‘dead’.

3.4 PW-16, PI-M.D. Upadhyay was on night duty with Amraiwadi Police Station, went to the scene of offence, as he was informed by the PSO. He recorded the complaint of the PW-10 Sarlaben Meghjibhai. After registration of the offense, Mr. Upadhyay proceeded to investigate the case. In the presence of panchas, while preparing the spot panchnama, the knife, alleged used in the murder was seized and recovered. The accused were apprehended. The dead body of the deceased was sent for postmortem. The blood stain cloths of the accused as well as deceased were seized. After recording the statement of eye-witnesses, the IO found sufficient evidence for the charge of murder and accordingly, he filed a chargesheet against both the accused for the offences as recorded above. The Magistrate before whom the chargesheet was filed committed the case to the Court of Sessions at Ahmedabad, which had been culminated into Sessions Case No. 168 of 2013.

4. On the basis of material on record, the charges were framed against the appellant at Exh.5, to which he pleaded not guilty and therefore, he came to be tried by the trial Court, accordingly.

5. In order to prove the case against the appellant, prosecution has examined 16 witnesses and exhibited 15 documents to prove its case as per the followi