Intention to kill is essential for murder conviction; knowledge of likely death suffices for culpable homicide, requiring assessment of overall circumstances and violence nature.

JUDGMENT :

P. M. RAVAL, J.

1. Criminal Appeal No. 735 of 2017 is preferred by the Sunil @ Rahul Rajeshbhai Makwana i.e., Org. Accused No. 1 who has been convicted in Sessions Case No. 364 of 2013 vide judgment and order dated 24.04.2017 passed by the Ld. 7^th Additional Sessions Judge, Surat. Whereas, Criminal Appeal No. 895 of 2017 is preferred by the State of Gujarat against the acquittal of Kirit @ Lalu Sumanbhai Rathod and Deepak Kanubhai Solanki i.e., Org. Accused Nos. 2 and 3 respectively in Sessions Case No. 364 of 2013 vide judgment and order dated 24.04.2017 passed by the Ld. 7^th Additional Sessions Judge, Surat. The Org. Accused namely Sunil @ Rahul Rajeshbhai Makwana has been convicted under the provisions of Section 302 of IPC and sentenced for life imprisonment and is imposed with fine of Rs. 2,000/- and in default thereof, one month SI. Since both the Appeals arise from the same Session Case, they are decided together.

2. The facts of the captioned Appeals as can be ascertained from the FIR reveal that:-

2.1 On 27.05.2013, Chandrakant Narayan Pawar (PW-7A) lodged a complaint at Khatodara Police Station, Surat, stating that on 26.05.2013, his son Rupesh Pawar had gone out to play cricket and returned home around 1:30–2:00 PM. After lunch, Rupesh again went out and returned around 7:00–7:30 PM. He later left for Piplod on his motorcycle (GJ 05 GB 2215). Around 10:45 PM, accused No.1, along with accused Nos. 2, 3, and a juvenile, arrived at the complainant’s residence on a two-wheeler. All were known to the complainant as they regularly gathered near his house. Accused No.1, holding a wooden log, stated that Rupesh had beaten him and he wanted to “finish” him. The co-accused also threatened the same. Not finding Rupesh at home, they left. The complainant informed Rupesh over phone, and Rupesh said he was on his way home. Around 11:15 PM, the complainant saw the accused near Choryasi Dairy, where Accused No.1 assaulted Rupesh on the head with a wooden log, while others attacked him with fists. On seeing the complainant, they fled. Rupesh was taken to Amruta Hospital and then Mahavir Trauma Hospital, where he was declared dead. FIR was registered under Sections 323, 302, 188, and 114 IPC.

2.2 After Investigation, the cahrgesheet came to be filed before the concerned Ld. Magistrate, and the case was committed to the Sessions Court, Surat as the case was sessions triable and the same was registered as Sessions Case No. 364/2013. Thereafter charges were framed vide Exh. 9 and the accused denied the charged and prayed for trial.

2.3 The Prosecution has examined the following witnesses to prove the guilt of the accused.

2.4 Apart from leading oral evidence as mentioned above, prosecution to bring home the charge has relied upon the following documentary evidences:-