CAV JUDGMENT

(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)

1. This appeal is at the instance of four convicted persons and is directed against an order of conviction and consequent sentence dated 13th April 2007 passed by the learned Sessions Judge, 6th Fast Track Court, Surat, in Sessions Case No. 273 of 2005. By the said order, the learned Sessions Judge found all the four accused persons guilty and sentenced them for life imprisonment for an offence punishable under section 302 of the Indian Penal Code and further imposed a fine of Rs.1000/- each on condition that in default of payment of fine, they would undergo simple imprisonment for one year.

1.2 The accused persons were also convicted for the offence punishable under section 201 of the Indian Penal Code and were sentenced to undergo 7 years' rigorous imprisonment and to pay a fine of Rs.500/- each; in default of payment of fine, they were ordered to suffer further simple imprisonment for one month.

1.3 The accused persons were also convicted for the offences punishable under sections 188 and 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.500/- each; in default of payment of fine, they were ordered to suffer further simple imprisonment for one month.

1.4 The learned Sessions Judge further directed that the sentences would run concurrently and the accused should also be given the benefit of set off for the period they had undergone the imprisonment as under-trial prisoners.

2. The English translation of the charges framed against the appellant, being Exh.4, is quoted below:

“You the accused No.1 and 2 along with the deceased Raju @ Idukhan Pathan on 18-08-2005 at night stole the country liquor of the witness viz. Subhasbhai @ Subba and hid that liquor on the terrace of the house of the deceased, and on allurement of Rs.300/- by witness Subhasbhai @ Subba, the deceased disclosed to him about the said liquor. Keeping grudge on that, you, the accused No.1 to 3 called the deceased on 19-08-2005 at 11 O'clock at the room of the accused No.1, Kashinath, and served him liquor and you, the accused No.1 Kashinath pushed the deceased and on his falling down, you the accused No.3 Raja @ Rajiya held the legs of the deceased, the accused No.2 Bhimabhai tied the hands of the deceased with cotton thread and the accused No.1 pressed the throat, the accused No.2 strangulated the deceased with yellow wire, the accused No.1 cut the throat of the deceased with knife and the accused No.2 cut the throat with weapon (wadia) and washed the blood stained clothes, the accused No.2 and 3 took bath and ran away and the accused No.4, Laxmiben, washed the blood and stains in her room and cleaned the room with water and thus, tried to destroy the evidence and the accused No.1 and 4 by throwing the body of the deceased in a plastic drum and kept clothes on it and kept the drum on the road, closed their own house and after achieving the common intention, ran away. Moreover though a notification for not keeping arms and ammunitions of the Police Commissioner was also in existence at the time of the incident, you the accused were in possession of arm like knife and used it to kill the deceased and thus, you the accused have committed the offences punishable under sections 302, 201, 34 and 188 of the Indian Penal Code and under section 135 of the BP Act under the territorial jurisdiction of this Court.”

3. The case made out by the prosecution may be summarized thus:

3.1 The complainant, one Mehmmunisha Pathan, used to reside with her second husband after death of her first husband with Indusha @ Raju, her son, born in the wedlock of her earlier husband and the daughter, Rehanabanu. She also had two other daughters who were married and were residing at their respective husbands' place of residence. The deceased used to do labour of trolley work in a Mill from 14th August 2000 but he stopped going to the job since last three days pr