The prosecution failed to prove the charges of murder beyond reasonable doubt, leading to a conviction alteration to culpable homicide not amounting to murder.

JUDGMENT :

HEMANT M. PRACHCHHAK, J.

1. Criminal Appeal No. 795 of 2015 has been filed by the appellants – original accused No. 8 and 9, Criminal Appeal No. 802 of 2015 has been filed by the appellants – original accused No. 1 and 2 and Criminal Appeal No. 806 of 2015 has been filed by the appellants – original accused No.3 to 7 against the judgment and order dated 18.06.2015 passed by the learned 3^rd Additional Sessions Judge, Nadiad (hereinafter be referred to as “the trial Court”) in Sessions Case No.86 of 2012 whereby the trial Court has convicted all the original accused and imposed sentence to undergo life imprisonment and to pay fine of Rs.25,000/- each and in default of payment of fine, to undergo further simple imprisonment of six months for the offence punishable under Section 302 r/w. Section 149 of the Indian Penal Code (hereinafter be referred to as “the IPC”).

2. As all these criminal appeals having been arisen from the same judgment and order, all these appeals are heard together and are being disposed of by this common judgment.

3. Brief facts of the prosecution case is that on 01.06.2012 when the complainant – Bernadine proceeded at around 9:00 pm. at Advance, Vijayawada, accused No.3 Athabaskan Yusufkhan Pathan and accused No.5 Tousifmiya Yusufmiya Malek because of previous animosity used abusive language upon the complainant and then other accused came taking side accused No. 3 and 5 along with respective weapons in their hands forming unlawful assembly and assaulted on the complainant – Nadimbeg for which he was shouting, accused No.1 – Sadikkhan Jafarkhan Pathan, accused No.2 – Rajik @ Raju Jafarkhan Pathan have given dharia blow on the head of one Munirbeg Mustufabeg Mirza and due to said injury Munirbeg was profusely bleeding and fallen down on the road. At that time, Jahiruddin while coming to rescue Munirbeg, he sustained dharia blow on his first finger on left hand. It is also alleged that accused No.8 - Manovarkhan @ Manukhan Gulmohammadkhan Pathan and accused No.9 Jainul Aabeddin @ Abu Yusufali Saiyed were instigating the other accused and accused No.4 Samsherkhan Yusufkhan Pathan gave hockey blow on the head of the complainant and when his maternal uncle came in between he also received hockey stick blow on his forehead and many people gathered there and, therefore, the accused were run away. Munirbeg Mustufabeg Mirza sustained serious injury, due to which initially he was admitted in the Civil Hospital, Ahmedabad and after 4 to 5 hours, he was shifted to Apollo Hospital and ultimately he died on 08.06.2012 at about 11.00 p.m.

3.1 On the basis of the complaint filed by the complainant, the First Information Report (FIR) being C.R.No.I - 32 of 2012 came to be registered with Kapadvanj Town Police Station for the offence punishable under Sections 143, 147, 148, 323, 324, 326, 504 read with Section 149 of the IPC.

3.2 After completion of investigation, as the sufÏcient evidence was found, the police has arrested the accused and have filed the charge-sheet against the accused before the Judicial Magistrate (First Class), Kapadvanj. As the offence was triable by the Court of Sessions, the Judicial Magistrate (First Class) has committed the case under Section 209 of the Criminal Procedure Code to the Court of Sessions where it has been registered as Sessions Case No.86 of 2012.

3.3 On the basis of the material available on record, the trial court has framed the charge vide Exhibit 11 against the accused for the offences punishable under aforesaid sections and the same were explained to them. The accused have denied having committed any offence. The accused pleaded not guilty to the charge and pleaded for trial and hence, the case was tried by the learned Sessions J