ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE A.L.DAVE)

1. The present appeal arises out of judgement and order dated 19.06.2004 rendered by Sessions Court, Valsad, in New Sessions Case No.480 of 2002 (Old Sessions Case No. 159 of 2001). The appellants were the accused before the trial court and were charged for offences punishable under sections 452, 324, 323, 336, 302, 427 and 506(2) all read with section

114 of the Indian Penal Code.

2. As per the prosecution case, first informant Ramanbhai had an altercation with some of the accused persons at about 9.00 a.m. on 28.05.2001. It is the further case of the prosecution that at about 12.00 noon, the accused persons went to the house of the first informant, and trespassed into the house. Thereafter, they attacked Ramanbhai (PW-4), Ramjibhai (PW-9), Dhaulubhai (PW-10), Gopibhai (PW-11), Rajeshbhai (PW- 12) and Rashmiben (PW-13), along with deceased Gopjibhai Ramanbhai, and caused hurt to witness Ramjibhai (PW-9), Dhavulubhai (PW-10) and Rajeshbhai (PW-12), with weapons like sticks and iron rod. It is further the case of the prosecution that Gopjibhai was attacked on head and stomach, which proved to be fatal for him. First Information Report (F.I.R.) was lodged in this behalf at about 6.00 p.m. on the day of the incident by Ramanbhai (PW-4). On the basis of the F.I.R., offence was registered and investigated. At the end of the investigation, police, having found sufficient material, filed charge sheet in the court of Judicial Magistrate First Class, Dharampur, who in turn committed the case to Sessions Court at Valsad, and Sessions Case came to be registered.

3. Learned advocate Mr. Shethna appears for appellants No. 1, 2 and 3 and Ms. Meenu Kumar appears for appellants No. 4 and 5 and Mr. R.C.

Kodekar appears for the State.

4. It is contended on behalf of the appellants that the conviction of the appellants for offence of murder with the help of section 114 of Indian Penal Code is erroneous. There is no evidence on record to show that accused nos. 1 to 4 in any manner attacked the deceased or aided or abetted accused No.5 for the commission of offence. Accused No.5 is alleged to have given the fatal blow. It was submitted further that pursuant to an incident occurred at 9.00 `O' clock in the morning on the date of incident, five persons were alleged to have gone to the house of the first informant Ramanbhai. They were alleged to have armed with sticks and an iron rod. They had a grievance against Ramanbhai, but as per the prosecution case, after going there, they alleged to have dragged Rajeshbhai out of the house, for which no reason is indicated, and thereafter, when the other family members moved out of the house, they were allegedly attacked by the accused. But, it is nobody's case that any of the injured eye witnesses or other eye witnesses had ever tried to intervene the attack on the deceased by accused No.5. It was, therefore, contended that the prosecution has failed to lead any evidence to show that accused No.1 to 4 neither by active participation in the attack on the deceased aided or abetted the act of accused No.5 nor there is any evidence to show that passively they aided and abetted the commission of offence by accused No.5 when they attacked the witnesses, since it is nobody's case that the witnesses tried to deter accused No.5 from attacking the deceased. Therefore, the element of aiding and abetting is missing, and therefore, they could not have been convicted for the offence of murder with the help of section 114 of the Indian Penal Code. There is no charge of having any intention or a common objective.

It was then further submitted that prosecution has examined in all seven witnesses claiming to be eye witnesses to the incident, and none of them alleged any action on the part of accused No.3 Dhakaliyabhai. So far as accused No.4 Chandubhai is concerned, only one witness Dhavulubhai (PW-10) states that he was attacked by Chandubhai, and that Chandubhai also attacked dec