ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

1. Being aggrieved and dissatisfied with the judgment and order dated 18.09.2019 passed by the learned Additional Sessions Judge, Patan in Sessions Case No.75 of 2013, whereby the appellant-accused Thakor Shaileshji Balaji came to be convicted for the offences punishable under Section 302 of the Indian Penal Code and Section 25(1)(a) of the Arms Act, 1959 read with other provisions, the appellant accused has preferred Criminal Appeal No.193 of 2021. The other accused persons came to be acquitted in Sessions Case No.75 of 2013 and, the appellant complainant has preferred Criminal Appeal No.413 of 2020 under Section 372 of the Code.

2. Since both the appeals arise out of common judgment and involve connected accused persons, they have been heard together and are being disposed of by this common judgment.

3. The brief facts leading to the filing of the present appeals are as under:

3.1. The complainant along with his son Nagjiji and brother-in-law Babuji was present at his agricultural field situated at village Bhalgaam on 07.06.2012 at about 11:00 a.m. The complainant was engaged in levelling the fence of the field bearing Survey No.209 while his son was ploughing the land with a tractor. At that juncture, the accused persons arrived in a group comprising persons on motorcycles and in cars bearing registration Nos.GJ-24-A-9080 and GJ-18-AH-6593 along with four motorcycles. The accused, inter alia including Somaji, Mangaji, Shaileshji, Mahadevji, Bhavanji and others, questioned the complainant and his son regarding ploughing the field, claiming ownership thereof, abused them in filthy language and demanded a sum of Rs.5,00,000/- for permitting cultivation. An altercation ensued during which the accused persons, armed with deadly weapons such as dhariya, iron pipe, scissors, spear, stick etc., assaulted the complainant's brother-in-law Babuji with dhariya on head, thigh and right arm by accused Somaji. When the complainant's son Nagjiji attempted to flee towards the road, the appellant-accused Thakor Shaileshji Balaji drew a tamancha/revolver and fired two rounds at him, causing him to fall on the roadside kachcha portion. The complainant and others who rushed to rescue Nagjiji were also assaulted. Nagjiji was shifted to Dharpur hospital where he succumbed to the injuries. It is further alleged that certain accused persons including Amratji Madarji, Amarsang Karsanji and Pravinsang Amarsang arrived subsequently pursuant to prior conspiracy.

3.2. A complaint came to be lodged leading to registration of the First Information Report for the offences punishable under Sections 147, 148, 149, 302, 307, 324, 323, 504, 120-B of the Indian Penal Code, Section 135 of the Bombay Police Act and Section 25(1)(a) of the Arms Act, 1959. Investigation was carried out, during the course of which charge- sheet was filed on 05.09.2012 before the learned Judicial Magistrate First Class, Patan, which came to be registered as Criminal Case No.2163 of 2012. The case being exclusively triable by the Court of Session was committed to the Sessions Court, Patan and registered as Sessions Case No.75 of 2013.

3.3. In Sessions Case No.75 of 2013, upon conclusion of trial and appreciation of evidence, the learned Sessions Court convicted the appellant-accused under Section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment with fine of Rs.10,000/- (in default, 6 months simple imprisonment) and under Section 25(1)(a) of the Arms Act, 1959 to undergo rigorous imprisonment for 3 years with fine of Rs.5,000/- (in default, 3 months simple imprisonment), both sentences to run concurrently. The accused Thakor Dashrathji Hajurji was convicted under Section 25(1)(a) of the Arms Act, 1959 and sentenced to undergo rigorous imprisonment for 6 months with fine of Rs.1,00,000/- (in default, 2 months simple imprisonment). The remaining accused persons were acquitted o