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2009 DIGILAW 580 (GUJ)

AHER PRAFUL MERAM CHHAIYA v. STATE OF GUJARAT

2009-08-28

A.L.DAVE, J.C.UPADHYAYA

body2009
COMMON JUDGMENT : (Per : HONOURABLE MR.JUSTICE J.C.UPADHYAYA) Both these appeals arise out of the judgment and order rendered by the Ld. Addl. Sessions Judge, Junagadh on 29/1/2002 in Sessions Case No. 134/1998, whereby the Ld. Trial Judge convicted original accused no. 1 Praful Meram Chhaiya and original accused no. 4 Dilip Meram Chhaiya for the offence punishable under section 302 read with section 114 of the Indian Penal Code [for short 'IPC'] and section 135 of the Bombay Police Act [for short 'BP Act'] and each of them was sentenced to undergo rigorous imprisonment [for short 'RI'] for life and fine of Rs.1,000/- and in default pf payment of fine, simple imprisonment [SI] for six months for the offence punishable under section 302 read with sec. 114 of the IPC and SI for six months and fine of Rs.200/- and in default of payment of fine, SI for seven days for the offence punishable under section 135 of the BP Act. Both the sentences were ordered to run concurrently. By virtue of the impugned judgment and order, the Ld. Trial Judge recorded acquittal of original accused no. 1 Arjan Meram Chhaiya and original accused no. 3 Meram Haja Chhaiya. The original accused nos. 2 and 4, who came to be convicted by the trial Court for the offence punishable under section 302 read with section 114 of the IPC and section 135 of the BP Act, preferred Criminal Appeal No. 340 of 2002 challenging their conviction. Since the original accused nos. 1 and 3 came to be acquitted of all the charges levelled against them, the State of Gujarat preferred Criminal Appeal No. 463 of 2002 challenging their acquittal. 2. The prosecution case, in nutshell, is that the incident occurred at about 9.00 p.m on 21/6/1998, opposite to the Pan Bidi cabin of accused no. 4 Dilip in the village called Bhindora, district Junagadh. It is the case of the prosecution that at the time of the incident, deceased Ashok Vala passed near the Pan Bidi cabin of accused no. 4 Dilip and at that time he was called by accused no. 4 Dilip and accused no. 2 Praful and thereupon deceased Ashok went near the Pan Bidi cabin of accused no. 4 Dilip. It is alleged that deceased Ashok was assaulted upon by accused no. 4 Dilip and at that time he was called by accused no. 4 Dilip and accused no. 2 Praful and thereupon deceased Ashok went near the Pan Bidi cabin of accused no. 4 Dilip. It is alleged that deceased Ashok was assaulted upon by accused no. 4 Dilip with axe and two blows were inflicted by him, one on the back side of head and second blow on the right arm of deceased Ashok. It is further alleged that accused no. 1 Arjan was armed with Gupti and he inflicted blow with Gupti on the lower abdomen of the deceased and accused no. 2 Praful who was armed with Gupti inflicted Gupti blow on the chest of deceased Ashok. It is further alleged that at that time accused no. 3 Meram was instigating accused nos. 1, 2 and 4 to kill Ashok. Ashok in seriously injured condition was removed to Community Health Centre, Manavadar in a rickshaw, but at about 11.00 p.m on 21/6/1998 when Ashok was brought to the hospital, he was declared dead. Dr. Hareshkumar Nathabhai [ PW 3 ] informed Manavadar Police by a letter informing that Ashok was brought dead sustaining fatal injuries and the dead body was kept in P M room. The letter addressed to P.S.O. Manavadar Police Station by Dr. Hareshkumar Nathabhai came to be received by concerned police station at 11.20 p.m on the same day. Head Constable Mohmedkhan Ismailkhan [ PW 15] immediately went to Manavadar Hospital and drew inquest panchnama of the dead body of deceased Ashok between 11.30 and 12-00 in the mid night [ exh. 16]. Since the first informant Nagdan Vasan was there in the hospital, Head Constable Mohmedkhan recorded the first information report of first informant Nagdan Vasan [ PW 1] in the hospital itself. The FIR was registered in Manavadar Police Station and police investigation was commenced. 2.1. During the course of investigation, statements of material witnesses were recorded. During the course of panchnama of scene of occurrence, one blood stained Gupti was found on the Ota of Pan Bidi cabin of accused no. 4 Dilip, which was blood stained and came to be seized as article no. 3. All the 4 accused persons named in the FIR came to be arrested and Muddamal weapon Gupti [described as sword] came to be discovered at the instance of accused no. 4 Dilip, which was blood stained and came to be seized as article no. 3. All the 4 accused persons named in the FIR came to be arrested and Muddamal weapon Gupti [described as sword] came to be discovered at the instance of accused no. 2 Praful and came to be seized as Muddamal article no. 11. Muddamal axe came to be discovered at the instance of accused no. 4 Dilip, which was seized as Muddamal article no. 14. After collecting PM report of the deceased and the FSL reports, charge-sheet came to be filed in the Court of Ld. Judicial Magistrate First Class, Manavadar. Since the offence was exclusively triable by the Court of Sessions, Ld. Magistrate committed the case to the Court of Sessions at Junagadh, which was numbered as Sessions Case No. 134/1998. 3. Ld. Trial Judge framed charge against all the 4 accused persons at exh. 7 for the offence punishable under section 302 read with section 114 of the IPC and section 135 of the BP Act, to which they did not plead guilty and claimed to be tried. Thereupon, the prosecution adduced its oral and documentary evidence. The prosecution examined 21 witnesses and produced relevant documentary evidence. After the prosecution concluded its oral evidence, Ld. Trial Judge recorded further statements of all the 4 accused persons under section 313 of the Criminal Procedure Code. They denied generally all the incriminating circumstances brought to their notice by the Ld. Trial Judge and stated that on account of some election dispute they were wrongly implicated in this case. It was further stated that all the family members including father and 3 sons have been falsely implicated as the deceased happened to be near relative of Sarpanch of their village [PW 1 Nagdan Vasan]. That Nagdan Vasan and accused no. 4 Dilip had contested, in past, an election of Sarpanch and keeping said grudge in mind, all the family members of one family have been implicated in this case. After considering the evidence on record and the submissions made on behalf of both the sides, the Ld. Trial Judge came to the conclusion that the case against original accused no. 2 Praful and original accused no. After considering the evidence on record and the submissions made on behalf of both the sides, the Ld. Trial Judge came to the conclusion that the case against original accused no. 2 Praful and original accused no. 4 Dilip regarding murder of deceased Ashok has been proved beyond reasonable doubt by the prosecution and recorded their conviction for the offence punishable under section 302 read with section 114 of the IPC and section 135 of the BP Act and awarded the sentence as hereinbefore referred to in this judgment. However, the Ld. Trial Judge came to the conclusion that the prosecution failed to prove its case beyond any reasonable doubt against the original accused no. 1 Arjan and original accused no. 3 Meram and recorded their acquittal. The conviction recorded by the trial Court is challenged by original accused nos. 2 and 4 by preferring Criminal Appeal No. 340 of 2002 and the acquittal recorded by the Ld. Trial Judge of original accused nos. 1 and 3 has been challenged by the State of Gujarat by preferring Criminal Appeal No. 463 of 2002. 4. Ld. Senior counsel Mr. Lakhani for the appellants [original accused nos. 2 and 4] submitted that the entire prosecution case rests upon the evidence of 4 witnesses, who claimed themselves to be the eye witnesses, namely PW 1 Nagdan Vasan examined at exh. 14, PW 2 Punja Kalabhai examined at exh. 17, PW 4 Vithal Govind examined at exh. 28 and PW 5 Hirabhai Varjan examined at exh. 31. It is submitted that there are material improvements in their evidence. Even their inter-se depositions are inconsistent so as to make the entire case of the prosecution a doubtful one. 4.1. That there is no consistency regarding the description of the main incident itself as to how it occurred, the very genesis and origin of the incident has been suppressed by these witnesses. It has come in evidence through panchnama of the scene of occurrence exh. 29 that there was extensive damage in Pan Bidi cabin of accused no. 4 Dilip. The idol of Lord Krishna was broken and two glass jars were found broken. Water container made of clay [Nand] was found broken. None of the witnesses explained as to how the damage in the cabin of accused no. 4 Dilip was caused. 29 that there was extensive damage in Pan Bidi cabin of accused no. 4 Dilip. The idol of Lord Krishna was broken and two glass jars were found broken. Water container made of clay [Nand] was found broken. None of the witnesses explained as to how the damage in the cabin of accused no. 4 Dilip was caused. PW 5 Hira Varjan in his evidence states that there was hot exchanges of words and abuses between both the sides and that a scuffle took place. He admits the damage in the cabin but is completely silent as to how the damage came to be caused and who caused the damage. 4.2. It is further submitted that considering evidence of 4 witnesses, there is material inconsistency as to who escorted the deceased to the hospital. The first informant PW 1 Nagdan deposed that amongst others PW 2 Punja Kala accompanied him in escorting the deceased to the hospital, but PW 2 Punja Kala outright denied it. The other persons named in the FIR, who accompanied the first informant to take the deceased to the hospital were not examined by the prosecution as witnesses. According to the first informant, Punja Kala, Hira Varja and Nagdan Bhima intervened while the fight was going on. Punja Kala PW 2 and Hira Varja PW 5 outright denied it in their evidence. Nagdan Bhima is not examined. According to PW 5 Hira Varjan, one Ramesh Punja intervened in the scuffle, but he is not examined. It is, therefore, submitted that only relative and interested witnesses are examined by the prosecution and the independent witnesses have been dropped. 4.3. Ld. Senior counsel Mr. Lakhani further submitted that it has come in the evidence of all the 4 witnesses, who claimed themselves to be the eye witnesses that at the time of the incident, there was power failure and on account of that, there was no electric light and there was darkness. Such material fact is suppressed in the FIR. To patch up such lacuna, a lame attempt was made by the prosecution during the course of evidence of remaining 3 so called eye witnesses that at the time of the incident at 9.00 p.m., in all the cabins including cabin of accused no. 4 Dilip either there were charging tube-lights [emergency lights] or candle light . To patch up such lacuna, a lame attempt was made by the prosecution during the course of evidence of remaining 3 so called eye witnesses that at the time of the incident at 9.00 p.m., in all the cabins including cabin of accused no. 4 Dilip either there were charging tube-lights [emergency lights] or candle light . Investigating Officer [IO] also admitted that at the time of the incident, there was electric power failure. The so called charging tube-lights were not seized by the IO. 4.4. It is vehemently submitted that in this case though first informant Nagdan was all the while available in the hospital and upon receipt of the message from Manavadar Hospital, when head Constable Mohmedkhan PW 15 reached to the hospital, instead of first recording FIR, he performed inquest of body of deceased Ashok, exh. 16. It is pertinent to note that one of the panchas of inquest panchnama is none other but PW 1 Nagdan Vasan. During the course of inquest panchnama, first informant Nagdan was shown the injuries on the body of Ashok and the possibility of such injuries being caused by particular weapon and thereafter, Head Constable Mohmedkhan recorded FIR exh. 67 of first informant PW 1 Nagdan Vasan in the manner which suits to the case of the prosecution. That thus no reliance can be placed upon the FIR exh. 67. 4.5. It is further submitted that on the same set of evidence, original accused no. 1 Arjan and original accused no. 3 Meram came to be acquitted by the trial Court, but recorded the conviction of accused no. 2 Praful and accused no. 4 Dilip. When the trial Court found that the evidence of 4 witnesses cannot be trusted to base the conviction of accused nos. 1 and 3, the same evidence should not have been used by the trial Court to convict the accused nos. 2 and 4. 4.6. It is further submitted that even the prosecution case is not consistent about the motive attributed by the prosecution for the incident. As per the FIR, on previous day to the day of incident, deceased had parked his tractor opposite to the cabin of accused no. 4 Dilip and on that count there was some altercation between the two and on account of that, the alleged incident on 21/6/1998 took place. As per the FIR, on previous day to the day of incident, deceased had parked his tractor opposite to the cabin of accused no. 4 Dilip and on that count there was some altercation between the two and on account of that, the alleged incident on 21/6/1998 took place. Whereas during the course of evidence, said motive is given complete go-by and it is alleged that the incident occurred because deceased has asked one Navnit to bring chewing tobacco [Faki], to which the accused no. 3 Meram refused and the deceased was abused and thereupon, deceased slapped the accused no. 3 Meram. 4.7. On behalf of the appellants, it is further submitted that there is no inconsistency even about the weapons used in this incident. During the course of evidence, it is alleged that one axe and two Guptis were used; whereas in case of one of the Guptis, PW 1 deposed about sword like Gupti ; whereas during the course of investigation, the weapons which came to be recovered, were hockey type Gupti, sword and axe [articles nos. 3, 11 and 14 respectively]. This inconsistency goes to the root of the prosecution case and creates doubt about the veracity of the evidence of so called eye witnesses. Even during the cross-examination of one of the eye witnesses, weapon pipe is also referred, which is totally contrary to the case of the prosecution. 4.8. The FSL evidence reveals that blood group of the deceased is O . On the Gupti article no. 3 seized during the course of scene of offence panchnama from the Ota of Pan Bidi cabin of accused no. 4 Dilip, the blood stains were found and the blood stains contain blood group O . There is no evidence whatsoever as to who left said Gupti article no. 3 on the scene of occurrence. Account of the eye witnesses on this score is conflicting in the sense that some of them state that the assailants, after the incident, carried with them their weapons; whereas some of them say that some weapons were left at the place of incident and some weapons were carried by the assailants with them. 4.9. Ultimately it is submitted that the appeal preferred by the appellants may be allowed. 4.10. About the State appeal, Ld. Senior counsel Mr. Lakhani submitted that so far as original accused no. 4.9. Ultimately it is submitted that the appeal preferred by the appellants may be allowed. 4.10. About the State appeal, Ld. Senior counsel Mr. Lakhani submitted that so far as original accused no. 3 Meram, who is joined as respondent no. 2 in the State appeal, has died. Therefore, the State appeal qua the respondent no. 2 Meram stands abated. So far as respondent no. 1 Arjan is concerned, it is submitted that appreciating and evaluating the entire evidence of the prosecution, the trial Court rightly recorded his acquittal. On the contrary, the reasons assigned by the trial Court while recording acquittal of original accused no. 1 Arjan squarely apply to the case of appellants, who came to be convicted. The case of the appellants and the case against accused no. 1, who came to be acquitted, is such which cannot be separated from each other. The prosecution assigned almost common role to the accused no. 1- Arjan. Therefore, it is submitted that on account of the acquittal of original accused no. 1 Arjan, the said benefit deserves to be enured even to the appellants and they are also entitled to the acquittal. In the result, it is therefore, submitted that the State appeal may be dismissed. 5. Ld. APP Mr. Pandya for the State vehemently opposed the appeal preferred by the appellants, who came to be convicted by the trial Court. It is submitted that the evidence of 4 eye witnesses examined by the prosecution is cogent, convincing, trustworthy and reliable. Certain minor discrepancy as to who accompanied the deceased to the hospital shall pale into insignificance once it is held that the evidence of eye witnesses inspires confidence in the mind of the Court. It is true that at the time of the incident, there was sudden power failure, but the electric supply failed since 7.00 p.m and, therefore, cabin holders used emergency lights and candles to run their business. Moreover, all the 4 accused persons were known to the witnesses. They are named in the FIR. Witnesses have seen them during the course of the incident. The trial Court, in the impugned judgment, has rightly dealt with this aspect of the matter and rightly recorded the conviction of the appellants. Moreover, all the 4 accused persons were known to the witnesses. They are named in the FIR. Witnesses have seen them during the course of the incident. The trial Court, in the impugned judgment, has rightly dealt with this aspect of the matter and rightly recorded the conviction of the appellants. The minor discrepancy regarding nature of weapon shall not throw the entire case of the prosecution overboard because the discrepancy if at all there is, is minor in nature. If one of the weapons Gupti is described as sword, the nature and constitution of the weapon is not changed. Both the weapons remained sharp cutting instruments. 5.1. It is, therefore, submitted that the trial Court has dealt with all the contentions and defence raised by the accused at length in the impugned judgment by assigning cogent and convincing reasons supported by the number of authorities cited at bar. Therefore, it is submitted that the conviction appeal preferred by the appellants deserves dismissal. 5.2. Ld. APP Mr. Pandya for the State submitted that so far as State appeal challenging the acquittal of original accused nos. 1 and 3 is concerned, there is no dispute that original accused no. 3 Meram has died and State appeal stands abated qua original accused no. 3 Meram, who is respondent no. 2 in the State appeal. However, trial Court committed serious illegality while recording the acquittal of respondent no. 1 Arjan the original accused no. 1. He took active participation in the incident and he inflicted blow with Gupti on the person of the deceased. There is cogent and convincing evidence qua accused no. 1 Arjan. No cogent and convincing reasons have been assigned by the trial Court while recording acquittal of accused no. 1 Arjan. Merely because he is not residing in village Bhindora where the incident took place, that can never be a ground for recording his acquittal for the simple reason that he is brother of original accused nos. 2 and 4 and son of deceased accused no. 3 and equally interested in the motive attributed for the incident. Therefore, it is submitted that the State appeal may be allowed and the respondent original accused no. 1 Arjan may be convicted for the offences charges against him and appropriate sentence be awarded to him. 6. 2 and 4 and son of deceased accused no. 3 and equally interested in the motive attributed for the incident. Therefore, it is submitted that the State appeal may be allowed and the respondent original accused no. 1 Arjan may be convicted for the offences charges against him and appropriate sentence be awarded to him. 6. We have examined the record and proceedings in context with the submissions made by the rival side. 7. Re-examining the record of the case and appreciating the submissions made on behalf of both the sides, there is no dispute that the entire prosecution case rests upon the evidence of 4 witnesses, namely PW 1 Nagdan Vasan, PW 2 Punja Kala, PW 4 Vithal Govind and PW 5 Hira Varjan. The prosecution examined these 4 witnesses in the capacity as eye witnesses. Out of the 4 witnesses, the presence of 2 witnesses at the time of the incident is natural in the sense that as per the prosecution case and even not seriously disputed by the defence, PW 4 Vithal Govind and PW 5 Hira Varjan own their cabins just adjacent to the cabin of accused no. 4 Dilip, where the incident took place. According to the evidence of PW 4 Vithal Govind and PW 5 Hira Varjan, at the time of incident, they were in their respective cabins and were doing business. Both were doing business of Pan Bidi in their cabins. According to the evidence of PW 1 first informant and eye witness Nagdan, at the time of the incident, he was near the cabin of PW 4 Vithal Govind as he had gone to said cabin for the purpose of purchasing Bidi. According to the account of PW 2 Punja Kala, at the time of incident, he was near the cabin of PW 5 Hira Varjan as he had also gone there to purchase Bidi. PW 4 Vithal Govind deposes that at the time of incident, PW 1 Nagdan Vasan had come to his cabin for purchasing Bidi. According to the evidence of PW 2 Punja Kala, the cabin of PW 5 Hira Varjan is just opposite to the cabin of accused no. 4 Dilip. According to the evidence of PW 1 Nagdan and PW 4 Vithal Govind, they heard shouts and cries and, therefore, both of them rushed to the place from where there was shouting and seen the incident. 4 Dilip. According to the evidence of PW 1 Nagdan and PW 4 Vithal Govind, they heard shouts and cries and, therefore, both of them rushed to the place from where there was shouting and seen the incident. As stated above, it has come in evidence that the cabin of PW 5 Hira Varjan is just opposite to the cabin of accused no. 4 Dilip, where the incident took place. PW 5 Hira Varjan in his evidence states that soon before the incident, deceased Ashok had come to his cabin and one Prakash Parbat was also there in his cabin. Ashok and Prakash talked about tractor of Ashok. Thereafter, Ashok left the cabin for the purpose of calling his brother Meram and as soon as Ashok left his cabin, immediately accused no. 2 Praful and accused no. 4 Dilip called Ashok. Ashok went near Praful and Dilip and some scuffle took place. In the scuffle, accused no. 4 Dilip inflicted blow with axe on the head of Ashok. Accused no. 2 Praful inflicted blow with Gupti on the lower abdomen and accused no. 1 Arjan inflicted Gupti blow on the abdomen of the deceased. One Ramesh Punja intervened and tried to separate both the parties. Hira Varjan admitted that during the course of scuffle, a water container of clay [Nand] which was near the cabin of accused no. 4 Dilip was broken. He also admitted that idol of Lord Krishna and the glass jars were damaged. 7.1. On behalf of the appellants, it is submitted that the prosecution has suppressed the origin and genesis of the incident. However, if the evidence of PW 5 Hira Varjan is considered, we do not find that the prosecution has suppressed the origin and genesis of the incident. Some damage in the cabin of accused no. 4 Dilip has been reported in the panchnama of scene of occurrence exh. 29. The same is even admitted by PW 5 Hira Varjan. However, the incident commenced as soon as the appellants original accused nos. 2 and 4 called Ashok and Ashok went near them. There is nothing that Ashok of his own went to the cabin of accused no. 4 Dilip. He was called by the appellants. Nothing emerges either from the evidence of PW 5 Hira Varjan or from the evidence of remaining 3 eye witnesses that deceased Ashok was armed with any weapon. There is nothing that Ashok of his own went to the cabin of accused no. 4 Dilip. He was called by the appellants. Nothing emerges either from the evidence of PW 5 Hira Varjan or from the evidence of remaining 3 eye witnesses that deceased Ashok was armed with any weapon. The defence of the appellants virtually is of complete denial. There is no specific defence to the effect that as the deceased Ashok was the aggressor and had come to the cabin of accused no. 4 Dilip and started damaging the articles lying in the cabin and the entire incident took place. Moreover, considering the evidence on record, there is nothing that out of the 4 accused, any of them sustained any bodily injury in this incident. There is also no cross FIR lodged by any of the accused persons regarding the damage in the cabin. Therefore, some damage in the cabin does not help the appellants to secure their acquittal or even any dilusion of the offence of murder, especially if the medical evidence is considered. 8. Perusing the impugned judgment rendered by the trial Court together with the evidence of 4 eye witnesses, it transpires that the Ld. Trial Judge dealt with almost similar defence raised by the appellants in this appeal and recording reasons, the trial Court recorded the conviction of both the appellants. Before the trial Court, the main defence raised by the accused was regarding the identification of the accused. There is no dispute that at the time when the incident took place, there was electric power failure. Considering the evidence on record, it transpires that the electric lights went off from 7.00 p.m itself. The evidence reveals that in absence of electric lights, in most of the cabins charging tube-lights [emergency lights] were used and in some cabins like the cabin of PW 4 - Vithal Govind, candles were used for light. The incident occurred at 9.00 p.m. There is nothing on record that on account of power failure the cabin holders closed their business right from 7.00 p.m. Moreover, it cannot be presumed that after the power failure, the cabin holders were doing their business in the darkness. Therefore, the version of the eye witnesses that emergency lights and candles were used by the cabin holders in absence of electric light cannot be doubted. 8.1. Therefore, the version of the eye witnesses that emergency lights and candles were used by the cabin holders in absence of electric light cannot be doubted. 8.1. Moreover, the appellants were not unknown to the witnesses. Appellant accused no. 4 Dilip, had his cabin in the same vicinity. Appellant accused no. 2 Praful is his real brother. All the 4 witnesses knew them from the very beginning. In the impugned judgment, the Ld. Trial Judge, assigning cogent and convincing reasons, came to the conclusion that the dispute regarding identification raised by the defence does not require any consideration and while arriving at such conclusion, the trial Court considered the evidence on record together with the decisions rendered by Hon'ble the Apex Court in this respect. We do not find any illegality or any irregularity having been committed by the trial Court in arriving at such conclusion. 9. There is no dispute that in the instant case as soon as the concerned Medical Officer informed Manavadar Police Station about the dead-body of Ashok having been brought before him and the nature of injuries, PW 15 Head Constable Mohmedkhan reached to the hospital. There is also no dispute that he drew inquest panchnama first in point of time, exh. 16. There is also no dispute that one of the panchas happened to be the first informant PW 1 Nagdan. According to the prosecution case, the incident occurred at about 9.00 p.m. According to the evidence of PW 3 Dr. Hareshkumar Nathabhai, Ashok was brought before him at 11.00 p.m. According to the evidence of PW 15 Mohmedkhan, the police station was informed at 11.20 p.m. The inquest panchnama exh. 16 is drawn between 11.30 to 12.00 in the mid-night. Soon after the inquest panchnama was over, the FIR of PW 1 Nagdan came to be recorded by the PW 15 Mohmedkhan in the hospital itself. Immediately the FIR was registered and as observed by the trial Court in the impugned judgment, immediately copy of FIR was forwarded to the concerned Judicial Magistrate. Before the trial Court, the procedure adopted by police in first drawing inquest panchnama and then recording the FIR was seriously criticized by the defence. Immediately the FIR was registered and as observed by the trial Court in the impugned judgment, immediately copy of FIR was forwarded to the concerned Judicial Magistrate. Before the trial Court, the procedure adopted by police in first drawing inquest panchnama and then recording the FIR was seriously criticized by the defence. In the impugned judgment, the trial Court elaborately dealt with such defence and rightly came to the conclusion that merely because the first informant happened to be one of the panchas of inquest panchnama and had seen the injuries on the body of deceased Ashok, thereby the entire prosecution case does not become doubtful. The case of the prosecution is supported not only by the evidence of first informant Nagdan Vasan, but even on the evidence of remaining 3 eye witnesses examined by the prosecution. The trial Court rightly observed that it was not necessary for PW 1 Nagdan to refer the names of the assailants in the inquest panchnama exh. 16. The trial Court discarded such contention of the accused considering the peculiar facts and circumstances emerging from the evidence as well as dealing with certain judgments of Hon'ble the Apex Court. 10. On behalf of the appellants, it is submitted that the prosecution examined only the interested witnesses and dropped the important witnesses. Considering the impugned judgment rendered by the trial Court, the identical submission was made before the trial Court on behalf of the accused. The trial Court elaborately dealt with defence raised by the accused. The eye witnesses examined by the prosecution may be distinctly related to the deceased. However, that itself cannot be a ground to totally discard their evidence. Merely because PW 1 had contested election of Sarpanch against accused no. 4 Dilip, that itself cannot be a ground to exclude his evidence. There is nothing on record that in that election the PW 1 Nagdan was defeated by the accused no. 4 Dilip. On the contrary, evidence reveals that at the time when the incident occurred, PW 1 Nagdan was Sarpanch of the village. Therefore, the theory of animosity propounded by the accuses loses its significance. It is true that according to the version of PW 5 Hira Varjan, one Ramesh punja intervened at the time of the incident. There is no dispute that Ramesh Punja is not examined as witness by the prosecution. Therefore, the theory of animosity propounded by the accuses loses its significance. It is true that according to the version of PW 5 Hira Varjan, one Ramesh punja intervened at the time of the incident. There is no dispute that Ramesh Punja is not examined as witness by the prosecution. However, considering the evidence of PW 5 Hira Varjan, it transpires that Ramesh Punja happens to be son of uncle of accused no. 4 Dilip. This fact also reveals from the evidence of IO. Under such circumstances, if the prosecution thought it fit not to examine Ramesh Punja as prosecution witness, it cannot be said that thereby the defence of the accused has been prejudiced or adversely affected. The trial Court ultimately rightly observed that it is the quality and not the quantity of evidence that counts. A witness, even if relative of the deceased, will not let go the real culprit and involve any innocent. 11. Closely scrutinizing the evidence of 4 witnesses, it is true that there is inconsistency and discrepancy in the evidence as to after the incident who accompanied Ashok to Manavadar Hospital. PW 1 Nagdan states that amongst others PW 2 Punja Kala accompanied. PW 2 Punja Kala in his evidence denies the fact. However, he states that he did not go to the hospital in the rickshaw wherein Ashok was carried, but subsequently he went to the hospital on motor-bike. There is also no dispute that some of the persons named by the first informant, who accompanied Ashok to the hospital, have not been examined as witnesses. Likewise, whether the clothes of the persons, who accompanied Ashok to the hospital were made blood stained or not, has been seriously pressed into service as a ground going to the root of the prosecution case. We are of the considered opinion that inconsistency, if any, about the fact as to who accompanied Ashok to the hospital or whether the clothes of the persons who accompanied Ashok to the hospital were blood stained or not, is minor inconsistency, which cannot be said to go to the root of the prosecution case. The only thing which is required to be considered is that whether the version of the eye witnesses examined by the prosecution inspires confidence in the mind of the Court or not. The only thing which is required to be considered is that whether the version of the eye witnesses examined by the prosecution inspires confidence in the mind of the Court or not. The trial Court, in the impugned judgment, after replying to the contentions raised on behalf of the defence and by assigning cogent and convincing reasons, ultimately came to the conclusion that so far as the appellants are concerned, the evidence adduced by the prosecution through the eye witnesses inspires confidence and that the evidence is cogent, convincing and reliable. Re-appreciating and re-evaluating the evidence of the eye witnesses, we do not find that the trial Court committed any error or any irregularity while coming to such conclusion. 12. The impugned judgment delivered by the trial Court was seriously assailed on behalf of the appellants on the ground that on the basis of same set of evidence, the trial Court recorded acquittal of original accused nos. 1 and 3, but recorded conviction of original accused nos. 2 and 4. In this regard, first of all, so far as original accused no. 3 Meram, who is respondent no. 2 in the State appeal is concerned, there is no dispute that he has expired and, therefore, the State appeal qua respondent no. 2 original accused no. 3 Meram Haja stands abated. Therefore, the only question that arises is as to whether the acquittal of original accused no. 1 [respondent no. 1 in State appeal] Arjan Meram recorded by the trial Court deserved to be confirmed or deserves to be set aside and whether his acquittal causes any adverse effect upon the conviction of the appellants recorded by the trial Court or not. While dealing with this question, it is also required to be considered as to whether the case of the accused no. 1 Arjan Meram, who came to be acquitted is distinguishable to the case of the appellants or not. 12.1. In the impugned judgment, while recording the acquittal of accused no. 1 Arjan in paras. 42, 43 and 44, the trial Court has assigned reasons for recording acquittal of accused no. 1 Arjan Meram. We have examined the grounds relied upon by the trial Court while recording the acquittal. 12.1. In the impugned judgment, while recording the acquittal of accused no. 1 Arjan in paras. 42, 43 and 44, the trial Court has assigned reasons for recording acquittal of accused no. 1 Arjan Meram. We have examined the grounds relied upon by the trial Court while recording the acquittal. There is no dispute that considering the evidence of PW 5 Hira Varjan, before the incident when Ashok left his cabin to go to meet his brother, immediately appellants original accused nos. 2 and 4 Praful and Dilip called Ashok and, therefore, Ashok went near them. Thus, it was the deceased who upon calling, went near the cabin of accused no. 4 Dilip. Here is not a case wherein all the 4 accused persons armed with deadly weapons went to the place of deceased Ashok and killed him. Moreover, the trial Court, in the impugned judgment, appreciating the evidence of the prosecution and especially considering the evidence of IO PW 20 Narshibhai Revabhai observed that though the IO denied, it emerges from the record as well as considering the mode and manner of cross-examination made on behalf of the accused that only 2 persons were involved in the incident. Such defence was expressly placed during the cross-examination of the IO by the defence. Further more, it has come in the evidence of all the 4 eye witnesses that accused no. 1 Arjan at the time of the incident was not residing in village Bhindora, but was residing in another village called Sarang Pipli. There is nothing that accused no. 1 Arjan was knowing from the beginning that at 9.00 p.m at the time of the incident Ashok is going to pass near the cabin of accused no. 4 Dilip. As stated above, here is not a case wherein Ashok was assaulted upon at his residence or at the place where at 9.00 p.m he is supposed to be present. Eye witnesses do not state that when Ashok passed near the cabin of accused no. 4 Dilip, at that time Ashok was intercepted not only by accused no. 2 Praful and accused no. 4 Dilip, but even by accused no. 1 Arjan. It has come in evidence that accused no. 1 Arjan came to be arrested on 23/6/1998. The incident occurred on 21/6/1998. Considering the evidence of the IO, on 23/6/1998 accused no. 4 Dilip, at that time Ashok was intercepted not only by accused no. 2 Praful and accused no. 4 Dilip, but even by accused no. 1 Arjan. It has come in evidence that accused no. 1 Arjan came to be arrested on 23/6/1998. The incident occurred on 21/6/1998. Considering the evidence of the IO, on 23/6/1998 accused no. 1 Arjan was arrested when he was passing on his motor-bike. It seems that his motor-bike is also seized as Muddamal by the IO. There is no evidence whatsoever to come to the conclusion that soon after the incident on 21/6/1998, accused no. 1 Arjan made his escape good on his motor-bike. 12.2. Further more, the panchas turned hostile, but considering the evidence of IO, it becomes clear that so far as sword type Gupti as described by the first informant PW 1 Nagdan in his evidence came to be discovered by the discovery panchnama exh. 55 by appellant accused no. 2 Praful. The axe vide discovery panchnama exh. 62 came to be discovered by appellant accused no. 4 Dilip. Their clothes were also seized by the police. Now so far as accused no. 1 Arjan is concerned, no weapon or any cloth came to be discovered at his instance. FSL evidence states that the blood group of deceased is O and the blood stains found on article no. 3 Gupti are reported to be of blood group O of the deceased. According to the account of eye witnesses, the accused no. 1 Arjan held sword type Gupti at the time of the incident; whereas article no. 3 Gupti on which the blood stains of group O came to be detected by FSL, was recovered from the scene of offence while drawing scene of offence panchnama exh. 29 and it is described as hockey type Gupti. There is no evidence on record that accused no. 1 Arjan held hockey type Gupti on which blood of deceased was found. Further more, soon after the incident, the appellant accused no. 4 Dilip absconded and came to be apprehended after about 19 days by the police. No such adverse antecedent is reported so far as accused no. 1 Arjan is concerned. 13. In the impugned judgment, while recording the acquittal of accused no. 1 Arjan, the trial Court at length discussed the above aspect of the matter and ultimately held that case of accused no. No such adverse antecedent is reported so far as accused no. 1 Arjan is concerned. 13. In the impugned judgment, while recording the acquittal of accused no. 1 Arjan, the trial Court at length discussed the above aspect of the matter and ultimately held that case of accused no. 1 Arjan is distinguishable and that the prosecution failed to prove beyond reasonable doubt its case qua the accused no. 1 Arjan. Considering the reasons assigned by the trial Court while arriving at such conclusion and in light of above discussion, we are of the considered opinion that the trial Court rightly came to the conclusion that the case against the accused no. 1 Arjan cannot be said to have been proved beyond reasonable doubt and he deserves the benefit of doubt. However, as discussed above, his case is distinguishable than the case qua the appellants original accused nos. 2 and 4. Through the evidence of the eye witnesses examined by the prosecution corroborated by evidence regarding the discovery and recovery adduced by the prosecution, the prosecution successfully proved its case beyond reasonable doubt against the appellants. In other words, the acquittal of accused no. 1 Arjan shall not cause any adverse effect upon the conviction of the appellants. In the impugned judgment, so far as accused no. 1 Arjan is concerned, the trial Court has given benefit of doubt to him. The trial Court, no-where recorded that the implication of accused no. 1 Arjan was either over implication or that intentionally and maliciously he was implicated in this case. The prosecution, according to the trial Court, failed to bring home the case against the accused no. 1 Arjan as was done so far as appellants were concerned. Therefore, the acquittal of accused no. 1 Arjan shall not provide any benefit to the appellants original accused nos. 2 and 4. 14. Last but not the least, the medical evidence adduced by the prosecution in the form of evidence of Dr. Hareshkumar Nathabhai, PW 3 and PM Report exh. 23, reveals that the deceased had sustained serious injuries in vital parts of his body. 1 Arjan shall not provide any benefit to the appellants original accused nos. 2 and 4. 14. Last but not the least, the medical evidence adduced by the prosecution in the form of evidence of Dr. Hareshkumar Nathabhai, PW 3 and PM Report exh. 23, reveals that the deceased had sustained serious injuries in vital parts of his body. The nature of weapons used by the appellants, the force used in inflicting multiple blows and the vital parts of the body of the deceased selected for causing the injuries coupled with the facts regarding the manner and method in which the incident took place and the ocular evidence regarding the role played by both the appellants in the incident, corroborated by the circumstantial evidence on record, we do not find that the case falls within any of the exceptions attached to section 300 of the IPC. The conviction of the appellants of the offence of murder punishable under section 302 of the IPC with the aid of section 114 of the IPC has been, therefore, rightly recorded by the trial Court. 15. In the result, we are of the considered opinion that the impugned judgment and order rendered by the trial Court recording conviction of the appellants original accused nos. 2 and 4 as well as recording acquittal of respondent no. 1 original accused no. 1 Arjan in the State appeal deserve to be confirmed and consequently both the appeals being meritless deserve dismissal. 16. For the foregoing reasons, the Criminal Appeal No. 340 of 2002 stands dismissed. The Criminal Appeal No. 463 of 2002 stands dismissed qua respondent no. 1 original accused no. 1 - Arjan Meram and it stands abated qua respondent no. 2 original accused no. 3 Meram Haja.