The court clarified distinctions between murder and culpable homicide not amounting to murder, emphasizing the necessity of establishing intent for proper sentencing, affirming the application of probation for lesser offenses under statutory provisions.

JUDGMENT :

ILESH J. VORA, J.

1. Since, the facts of the case and issue involved in captioned appeals are identical and arise out of the same judgment, the appeals are taken up together and are being disposed of by this common judgment.

2. Vide judgment and order dated 28.03.2008, passed in Sessions Case No.108 of 1985, the Additional Sessions Judge at Jamkhambhaliya convicted and sentenced the appellants in the manner stated hereinafter:

Gagurama accused no. 3 (Criminal Appeal No. 1556 of 2008):

Accused No. 2 : Bhikharama (Criminal Appeal No. 1493 of 2008):

The sentences of the appellants were ordered to run concurrently.

Hence, these appeals.

3. The facts, leading to the present appeals, are as follows:

3.1 That, on 28.07.1985 at about 8:00 p.m, deceased Govind Kana and Bhikha Mulu allegedly killed by the eight accused at Village: Amrapar, Taluka: Jamjodhpur, District: Jamnagar (now Jamkhambhaliya) and also caused the injuries to the witnesses. The FIR came to be registered for the offences punishable under Sections 147, 148, 302, 323, 324, 504, 337 read with Sections 34 and 149 of the IPC.

According to prosecution case, on 28.07.1985 at about 8-00 p.m. the deceased Govindkana, Kanakala, Keshar Mulu and Bhikha Mulu, went into village market to purchase cigarates and tobacco. They came at the shop of Narbheram Jivandas and purchased the tobacco etc. While returning back, when they reached near the shop of Mansukh Nanji, the accused A1 Mulu Punja, Bhikharama A2, Gagurama A3 and Devsinh Rama came in their way and found standing in the opposite direction. The four accused were armed with sticks, spears (bhala). The other four accused A5 – Hamir Jiva, Natha Punja A6, Malde Punja A7 and Karsan Punja A8 were also standing in support of the accused Nos. A1 to A4. It is further case of the prosecution that, the accused A1 to A4, hurled abusive and confronted the complainant party. The complainant party requested them not to used filthy language. The accused thereafter got provoked and started assaulting Govindkana. He was injured by A1 – Mulu Punja and he had given a blow on the stomach as well as thy with the weapon spear. The accused A2 Bhima Rama, caused injuries to witness Keshar Mulu by using a stone, thereafter, the accused appellant Gagurama gave a stick blow on the head of Bhikha Mulu and accused Devshi Rama – A4, gave a spear blow on the thy of Kana Kala – complainant PW-6. Meanwhile, on account of hue and cry, the villagers came to their rescue. The accused Nos. 5 to 8, in order to resist the intervention of the villagers, threw stones on the witnesses as well as villagers. Thereafter, considering the situation, the accused fled away from the spot. In the said incident, Govind Kana and Bhikha Mulu sustained fatal injuries. Both the injured as well as witnesses, who have sustained injuries, had been taken to nearby Government Hospital and thereafter, shifted to Junagadh Civil Hospital. In the late night, during the treatment, the dying declaration of Govind Kana came to be recorded by PW-2 – Mansukh Vaghera. Govind Kana succumbed to injuries on the next day i.e. 29.07.1985. Bhikhu Mulu was sustained a serious head injury and was throughout unconscious and after giving primary treatment to him, he was referred to Ahmedabad Civil Hospital, where he was admitted as indoor patien