The appellate court reversed the acquittal of certain accused based on credible eyewitness testimony and medical evidence, convicting them under Section 304 Part-II of the IPC.

JUDGMENT :

PRANAV TRIVEDI, J.

1. This appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code”) is directed against the judgment and order of acquittal dated 25.10.1996 passed by the learned Sessions Judge, Surat, in Sessions Case No. 142 of 1994, whereby the accused persons have been acquitted for the offences punishable under Sections 147, 149, 302, 324 read with Section 37(1) of the Indian Penal Code and Section 134 of Bombay Police Act.

2. While admitting the appeal, this Court has recorded thus:

“Leave granted. Appeal admitted. Bailable warrant in the sum of Rs. 2000/- be issued.”

2.1. Subsequent to admission of appeal, bailable warrant was issued on 05.08.2015, wherein the report indicated that respondent accused no. 2 had expired and, therefore, appeal qua respondent accused no. 2 stands abated.

3. After admitting the appeal, by way of order dated 29.03.2022, this Court had recorded thus:

“It appears that accused no. 1-Govindbhai Nathubhai Boria, accused no. 4-Kanubhai Nathubhai Boria, accused no. 7-Rajeshbhai Nathubhai Boria, accused no. 8-Jitubhai Sureshbhai Boria and accused no. 9-Shashibhai Valjibhai Boria have expired on 11.02.2014, 05.10.2002, 11.12.2001, 04.11.2000 and 19.05.2014 respectively, as per death certificate produced by the police authority while serving notice.

In light of this position, present criminal appeal stands abated qua accused nos. 1, 4, 7 to 9. Stand over to 19.04.2022.”

3.1. Thereafter, subsequently, by way of order dated 01.09.2023, this Court had recorded thus:

“1. The record indicates that surviving respondents Nos. 3, 5, 6, 10 are represented by learned counsel Shri Gajendra P. Baghel, whose name is shown in the cause list. Bailable warrant has been executed upon the said respondents pursuant to the order dated 29.03.2022 passed by this Court. There is no sick note/leave note of the counsel concerned.

2. Let a notice be issued to the respondent Nos. 3, 5, 6 and 10 intimating the date fixed in the instant appeal with the categorical information that they are required to instruct their counsel to appear and argue the matter and in case, non appearance of the said respondents before this Court on the next date fixed, the Court may initiate coercive measures.

3. Let this intimation be sent to the respondents through CJM concern. The report of the CJM concern shall be submitted to this Court on the next date fixed.”

4. In view of the above, the present appeal survives against the respondent surviving accused nos. 3, 5, 6 and 10.

5. The facts in nutshell are that on 07.03.2024, a First Information Report came to be lodged by PW-1 Pravinbhai Chhaganbhai Babariya, stating that he was living with his parents, wife, two children as also one brother and his family, as well as deceased brother Kanubhai Chhaganbhai Babariya. There was an old dispute between the family of the deceased Kanubhai Chhaganbhai Babariya and the family of the accused persons on account of the issue of big wall which was behind the residence of the family of the deceased. The dispute was primarily relating to the family of the deceased and the family of accused no. 7-Nathu Khoda qua the right of way. There were many altercations with regard to the same. There was another reason for the animosity between the families that the deceased Kanubhai Chhaganbhai Babariya had alleged affair with a girl named ‘Varsha’ who was from the family of the accused.

6. The case of the prosecution is that on 07.03.1994, at around 09:30 pm, when PW-1 Pravinbhai Babariya was sitting outside his home, at that time, his deceased brother Kanu Nathu Babariya along with Palo @ Poonam, Naresh and Girish were dancing outside the house by turning on the tape recorder. In the meanwhile, at around 09:30 pm accused no. 1-Govind Nathu, accused no. 7-Nathu Khoda, accused no. 9-Suresh Khoda came there and started abusing deceased Kanubhai Babariya telling him that he was interfering with the marriage celebration going on nearby