ORAL JUDGMENT

(PER : HONOURABLE MR.JUSTICE K.J.THAKER)

1. The appellants-ori. Accused have preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 16.4.2008 passed by the learned Special Judge (Atrocity), Himatnagar, camp at Idar in Special Case (Atrocity) No. 13/2007, whereby, the learned trial Judge has convicted the appellants- ori. Accused under sec. 302 read with sec. 34 of IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1500/-each, in default, to undergo further S/I for one year. They are also convicted under section 201 of IPC and sentenced to undergo S/I for five years and to pay a fine of Rs. 500/-each, in default, to undergo further S/I for six months, which is impugned in this appeal.

2.1 The case of the prosecution is that appellants no. 1 and 3 keeping a doubt in their mind that Kamlesh had illicit relation with their lover witness Gitaben, and therefore, on 21.12.2006, the appellants no. 1 and 3 have taken the Kamlesh to Idar, Vadali and Khedbrahmma in the jeep of appellant no. 1 bearing registration no. GJ-2-AC-2015 at 11.00 am, and near the ‘garnala’ of canal in the sim of village Babsar at 20.00 pm, the appellants no. 2 and 3 had caught hold off the Kamlesh and appellant no. 1 had given two Axe blows on the head of Kamlesh, due to which, Kamlesh died on the spot and thereafter, the appellants-accused have thrown the dead-body of deceased Kamlesh in the canal of Dharoi dam. Therefore, a complaint was lodged.

2.2 The appellants accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellants. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Special Case (Atrocity) No.

13/2007.

2.3 Thereafter, the Sessions Court framed the charge below Exh. 4 against the appellants for commission of the offence under section 302, 201 and 34 of IPC and under section 135 of the Bombay Police Act. The appellants-accused have pleaded not guilty and claimed to be tried.

2.4 To prove the case against the present appellants, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocate for the appellants.

1. PW-1 Dr. Shaktidan Bododan Gadhavi Ex. 9

2. PW-2 Dinesh Maganbhai Vankar Ex. 17

3. PW-3 Mithabhai Lakhabhai Vankar Ex. 21 4. PW-4 Shamalbhai Dalabhai Vankar Ex. 22

5. PW-5 Govindbhai Ghulabhai Vankar Ex. 24

6. PW-6 Babubhai Mohanbhai Vankar Ex. 25

7. PW-7 Amrutbhai Dhulabhai Vankar Ex. 26

8. PW-8 Dhuliben Maganbhai Vankar Ex. 27

9. PW-9 Maganbhai Dhulabhai Vankar Ex. 29

10. PW-10 Chhaganbhai Joytabhai Prajapati Ex. 30

11. PW-11 Amrutsinh Ravsinh Makwana Ex. 31 12. PW-12 Gitaben Kiranbhai Vaghela Ex.33

13. PW-13 Dilipkumar Jivanbhai Patel Ex. 34 14. PW-14 Jivabhai Chhaganbhai Thuri Ex. 35

15. PW-15 Basirkhan Ismailkhan Nagori Ex. 36

16. PW-16 Jethiben Mohanbhai Parmar Ex. 37 17. PW-17 Bhogilal Revabhai Chauhan Ex. 38

18. PW-18 Manubhai dahyaji Parmar Ex. 42

19. PW-19 Kadvaji Nathaji Parmar Ex. 44

20. PW-20 Ramjibhai Nathabhai Vankar Ex. 45 21. PW-21 Govindbhai Ratabhai Vankar Ex. 47

22. PW-22 Mahemoodbhai Rasidbhai Luhar Ex. 48 23. PW-23 Yusufkhan Shafurbhai Makrani Ex. 50

24. PW-24 Sursangji Nathaji Thakarada Ex. 51

25. PW-25 Bhikhaji Amthaji Thakarada Ex. 54

26. PW-26 Girishkumar Mulshankar Suthar Ex. 55

27. PW-27 Pashabhai Dhulabhai Vankar Ex. 27

28. PW-28 Kacharabhai Manabhai Vankar Ex. 64

29. PW-29 Vinodbhai Jethabhai Sutaria Ex. 67

30. PW-30 Khemabhai Dhulabhai Vankar Ex. 74

31. PW-31 Kapurji Takhaji Chauhan Ex. 75

32. PW-32 Jayantibhai Punjabhai Patel Ex. 77

33. PW-33 Rameshbhai Shankarbhai Patel Ex. 80

34. PW-34 Balubhai Jinabhai Vasava Ex. 81

35. PW-35 Ghanshyambhai Pujubha Vaghela Ex.86

2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused.

1. Com