JUDGMENT :

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. In the present appeals filed under Section 374 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.”), the appellants have assailed the judgement and order dated 31.08.2019 passed by learned 2nd Additional Sessions Judge, Kheda at Nadiad in Sessions Case No.97 of 2017.

2. Learned 2nd Additional Sessions Judge, Kheda at Nadiad has convicted accused Nos.2, 3 and 4 for the offences punishable under Sections 302 and 114 of the INDIAN PENAL CODE , 1860 (IPC) and acquitted the accused No.1 from all the charges.

FACTS:

3. After completion of the investigation, charge-sheet was submitted before the learned Judicial Magistrate, First Class, Kapadwanj but since the offence under Section 302 of the IPC is exclusively triable by the Sessions Court, the lower Court committed the case to the Sessions Court, Kheda at Nadiad under the provision of Section 209 of the Cr.P.C. The Court below framed the charges under Sections 302 , 504, 506(2) and 114 of the IPC against the present appellants. To prove the guilt against the appellants, the prosecution examined in all 14 witnesses and 19 documentary evidence however, the Sessions Court convicted accused Nos.2, 3 and 4 and sentenced to suffer life imprisonment and fine of Rs.10,000/-and in default rigorous imprisonment for a period of six months.

4. It is the case of the prosecution and the first informant that on 16.07.2017, when he was at Mehsana at around 8 O’clock, he received a phone call of the deceased i.e. his father informing him that he was assaulted by the accused in view of quarrel, which had taken place with regard to the land dispute. The trial Court, after examining oral as well as documentary evidence, has convicted the aforesaid accused Nos.2, 3 and 4 for the offences, as mentioned hereinabove.

SUBMISSIONS

5. Learned advocate Mr.Brahmbhatt appearing for the appellants has submitted that the present case is absolutely the case of no evidence and the trial Court has misdirected itself in convicting and sentencing the appellants for the serious offence of murder. While inviting attention of this Court to the deposition of the complainant at Exh.22, who is the son of the deceased, the learned advocate has submitted that he has not an eye witness and as per the evidence of the said witness i.e. PW-1 in fact, the Investigating Officer was required to investigate with regard to the call received by him from his father however, no call details are produced and hence, his version of narrating the incident as per his complaint, cannot be believed. He has further submitted that the case of the prosecution rests on the evidence of PW-2, who is examined below Exh.24 and he is treated as an eye witness to the incident. He has submitted that PW-2 as well as the first informant are the interested witnesses. It is submitted that the version of the first informant as well as the depositions of the eye-witnesses cannot be believed since they are arraigned as an accused in Criminal Case No.335 of 2018, which is registered by the accused and the same is pending at Taluka Court, Kapadvanj. He has further submitted that close reading of the evidence at Exh.24 of PW-2 reveals that in fact, though he is closely related to the deceased, he did not try to intervene when he was being assaulted by the accused. It is also submitted that PW-2 did not even call the ambulance by dialing 108 and he was also not aware that who called the ambulance. Thus, it is submitted that the evidence of eye witness (PW-2) is required to be discarded.

6. While referring to the statement recorded under Section 313 of the Cr.P.