JUDGMENT : (PER : HONOURABLE MR. JUSTICE K.J. THAKER) 1. Criminal Appeal No. 797 of 2007 under sec. 374(2) of the Code of Criminal Procedure, has been preferred by the Appellants-Original Accused No. 1, 3, 4 and 5 and Criminal Appeal No.2670/2008 under sec. 374(2) of the Code of Criminal Procedure, has been preferred by the Appellant-ori. Accused no. 2, against the same judgment and order of conviction and sentence dated 13.2.2007 passed by the learned Addl. Sessions Judge & Fast Track Judge, Junagadh in Sessions Case No. 14/2003, whereby, the learned trial Judge has convicted the present appellants ori. Accused no. 1 to 5 under sec. 302, 120(B) and 149 of IPC and sentenced them to undergo R/I for life and to pay a fine of Rs. 5000/-, in default, to undergo further S/I for six months. The appellants – ori. Accused no. 1 to 5 have been convicted under sec. 341 and 149 of IPC and sentenced them to undergo S/I for one month, which is impugned in both these appeals. Since both these appeals arise out of the same judgment and order of conviction and sentence, they are heard and disposed of by this common judgment. 2.1 The brief facts of the prosecution case is that the incident in question took place at about 9.30am on 6.9.2002 on the outskirt of village Miti. It is the case of the prosecution that the complainant, Mer Rajabhai Parbatbhai had gone to village Bagasara for work in company of Bhanu Abhu and Sarman Karsan on motorcycle of the complainant at about 7.00am. It is the case of the prosecution that after completing the work, when they were returning in the sim of village Fulrama village, on the way to village Miti, all the accused persons came out from the Babul bush. It is further the case of the prosecution that original accused no. 1 Meru Jeta and accused Bhima Manda (who came to be killed in encounter) had stopped the motorcycle of complainant on assault being carried out by the accused. It is the case of the prosecution that all the three persons got down from the motorcycle and started running. It is the case of the prosecution that accused caught Bhanu Abhu and assaulted with sharp-cutting weapons like sword, axe, pipes, wooden gedia and sticks. That accused no. It is the case of the prosecution that all the three persons got down from the motorcycle and started running. It is the case of the prosecution that accused caught Bhanu Abhu and assaulted with sharp-cutting weapons like sword, axe, pipes, wooden gedia and sticks. That accused no. 1 Meru Jeta and deceased accused Bhima Manda took Bhanu Abhu on their motorcycle to the crematorium of village Miti and they assaulted with sharp cutting weapon. It is the prosecution that complainant Mer Raja Parbat and Sarman Karsan ran away from that place and went to the house of Shantaben Nagabhai and informed about the incident. It is the case of the prosecution that Shantaben Nagabhai went to the cremotorium of village Miti and found Bhanu Abhu lying in injured condition and accused were standing with weapons. That when Shantaben Nagabhai went to take Bhanu Abhu the accused persons threatened her to kill and so she ran away from that place. That on the way, Shantaben met police Jamadar Silubhai and Mansingbhai and informed about the incident. That police witnesses went to the crematorium and found Bhanu Abhu in seriously injured condition and on enquiry Bhanu Abhu informed that accused no. 1 Meru Jeta, accused no. 3 Vajashi Mulu and accused no. 5 Keshubhai Dudabhai had beaten him and thereafter could not speak anything further and became unconscious. The police constable took Bhanu Abhu in rickshaw of Kalabhai Nagabhai and when they were removing Bhanu Abhu, Shantaben met them on the way and after taking her in rickshaw went to the house of Shantaben. That Bhanu Abhu died on the way and thereafter he was removed to Government Hospital, Mangrol by putting him in Gipsy vehicle. Therefore, the complainant Raja Parbat filed the complaint before the Shil Police Station. 2.2 The accused came to be arraigned for committing the murder. After the investigation, was complete, the charge-sheet was laid against the accused. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 14/2003. 2.3 Thereafter, the Sessions Court framed the charge below Exh. 35 against the accused for commission of the offence under section 302, 341, 148, 149 and 120(B) of IPC and under section 135 of the Bombay Police Act. The accused have pleaded not guilty and claimed to be tried. 2.3 Thereafter, the Sessions Court framed the charge below Exh. 35 against the accused for commission of the offence under section 302, 341, 148, 149 and 120(B) of IPC and under section 135 of the Bombay Police Act. The accused have pleaded not guilty and claimed to be tried. 2.4 To prove the case against the accused, the prosecution has examined the following witnesses: 1. PW-1 Bhimabhai Tapubhai Ex. 43 2. PW-2 Dilipbhai Bhikhabhai Ex. 45 3. PW-3 Jivabhai Bhikhabhai Jadeja Ex. 46 4. PW-4 Garchar Khimabhai Karmanbhai Ex. 47 5. PW-5 Arjanbhai Meramanbhai Ex. 48 6. PW-6 Salimmiya Latifmiya Saiyed Ex. 49 7. PW-7 Balubhai Ranabhai Ex. 50 8. PW-8 Mansukhbhai Naranbhai Ex. 51 9. PW-9 Parbatbhai Abhabhai Mevada Ex. 52 10. PW-10 Dr. Yogitaben Ravibhai Gholiya Ex. 53 11. PW-11 Shantaben Nagabhai Ex. 61 12. PW-12 Nagabhai Parbatbhai Ex. 62 13. PW-13 Rambhai Parbatbhai Vala Ex. 68 14. PW-14 Manjuben Rajabhai Parbat Ex. 69 15. PW-15 Hiriben Abhubhai Ex. 70 16. PW-16 Karabhai Nagabhai Ex. 72 17. PW-17 Mansingbhai Dadubhai Ex. 74 18. PW-18 Karsanbhai Parbatbhai Ex. 77 19. PW-19 Jamnadas Kalyanjibhai Ex. 81 20. PW-20 Danabhai Deshabhai Ex. 88 21. PW-21 Osmanbhai Bilalbhai Ex. 94 22. PW-22 Mansukhbhai Gagajibhai Barot Ex. 102 23. PW-23 Subhashbhai Fogabhai Vadher Ex. 107 24. PW-24 Jitendra Balvantbhai raval Ex. 133 25. PW-25 Yashvantsinh Ramdev Zala Ex. 137 26. PW-26 Mahavirsinh Sajubha Rana Ex. 149 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the accused. 1. Inquest panchnama Ex. 44, 55 2. Yadi Ex. 54 3. Death form Ex. 56 4. PM Note Ex. 57 5. Notification Ex. 76 6. Copy of complaint Ex. 82 7. Copy of charge-sheet Ex. 83 8. Abate report Ex. 84 9. Complaint of Bantava Police Station being C.R. No. I-25/2004 Ex. 85 10. Copy of station diary Ex. 86 11. Copy of charge-sheet Ex. 87 12. Complaint Ex. 89 13. PM Note of Bhoja Kala Ex. 90 14. Letter Ex. 91 15. Yadi Ex. 92 16. Yadi for warrant Ex. 90 17. Copy of complaint book Ex. 95 18. Copy of charge-sheet Ex. 96 19. charge-sheet Ex. 97 20. counter of charge-sheet Ex. 98 21. Copy of complaint of Haji Jusab Ex. 99 22. Complaint of Laxman Parbat Ex. 100 23. Complaint Ex. 101 24. copy of station diary and charge-sheet Ex.103 25. 92 16. Yadi for warrant Ex. 90 17. Copy of complaint book Ex. 95 18. Copy of charge-sheet Ex. 96 19. charge-sheet Ex. 97 20. counter of charge-sheet Ex. 98 21. Copy of complaint of Haji Jusab Ex. 99 22. Complaint of Laxman Parbat Ex. 100 23. Complaint Ex. 101 24. copy of station diary and charge-sheet Ex.103 25. copy of station diary Ex. 104 26. copy of A-summary Ex. 105 27. Abated summary Ex. 106 28. complaint of Raja Parbat Ex. 108 29. Copy of Complaint Ex. 109 30. Copy of complaint of Sil police station Ex.110 31. Letter to PSO Mangrol Ex. 111 32. Yadi Ex. 112 33. Notification against accused Bhima Manda Ex. 113 34. Notification Ex. 114 35. Panch rojkam Ex. 115 36. Rojkam Ex. 116 37. Copy of entry no. 7 of Shil Police Station Ex. 126 38. Copy of complaint book Ex. 127 39. VHF message Ex. 128 40. Yadi Ex. 129 41. Panchnama of clothes Ex. 130 42. Copy of charge-sheet Ex. 131 43. Complaint Ex. 134 44. Copy of station diary Ex. 135 45. panchnama Ex. 138 46. Report to add section Ex. 139 47. Order of DSP Ex. 140 48. Writing Ex. 141 49. Order Ex. 142 50. Despatch note Ex. 143 51. Receipt of FSL Ex. 144 52. Yadi Ex. 145 53. Yadi Ex. 146 54. Yadi for arrest Ex. 147 55. Writing for preparing map of scene of offence place Ex. 148 56. panchnama Ex. 150 57. Letter Ex. 151 58. Warrant Ex. 152 to 157 59. Warrant of Bhima Manda Ex. 158 60. Report Ex.159 61. panchnama of weapons Ex. 160 62. Letter to Talati Ex. 161 63. Order for investigation by DSP Ex. 162 64. Yadi to FSL about muddamal Ex. 163 65. Despatch note Ex. 164 66. Receipt of FSL Ex. 165 67. Letter of FSL Ex. 166 68. FSL Report Ex. 167 69. Serological report Ex. 168 70. Notification Ex.169 71. Warrant under sec. 70 Ex. 170 72. Report to publish notification Ex. 171 73. Notification under sec. 82 Ex. 172 74. Notification Ex. 173 75. Writing about proceedings under sec. 82 and 83 of CrPC Ex. 174 76. Order under sec. 165 Ex. 175 77. Notification Ex. 176 78. Report of daily newspaper Ex. 177 79. Letter of Ship Police Station Ex. 178 3. 170 72. Report to publish notification Ex. 171 73. Notification under sec. 82 Ex. 172 74. Notification Ex. 173 75. Writing about proceedings under sec. 82 and 83 of CrPC Ex. 174 76. Order under sec. 165 Ex. 175 77. Notification Ex. 176 78. Report of daily newspaper Ex. 177 79. Letter of Ship Police Station Ex. 178 3. Thereafter, after examining the witnesses, further statement of the accused under sec. 313 of CrPC was recorded in which the accused have denied the case of the prosecution. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 13.2.2007 held the present appellants-original accused guilty of the charge levelled against them under sec. 302, 120(B), 341 and 149 of IPC and convicted and sentenced the appellants-accused, as stated above. 5. We have heard learned advocate Mr. P.M. Lakhani for appellants no. 2 and 4 and Mr. Pratik Barot learned advocate for appellants no. 1 and 3 in Criminal Appeal No. 797/2007 and Ms CM Shah learned APP for the respondent-State and Mr. A.D. Shah learned advocate for appellant and Ms CM Shah learned APP for the respondent-State in Criminal Appeal No. 2670/2008. 6. The learned advocates for the present appellants have contended that the trial court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserve to be given the benefit of doubt and be acquitted. 7. On the other hand, learned APP has strongly opposed the contentions raised by the learned advocates for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeals deserve to be dismissed. 8. Having considered minutely the evidence on record, oral as well as documentary evidence, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court. The prosecution was handicapped as during the trial, the original complainant who had given the FIR was done to death and for that some of the accused were facing another trial under sec. The prosecution was handicapped as during the trial, the original complainant who had given the FIR was done to death and for that some of the accused were facing another trial under sec. 302 IPC. One eye witness was also done to death for which also a separate criminal case was going on. Under this macabre of position, political rivalry due to village and taluka panchayat election, both the sides have lost family members. Three accused passed away during and before the trial commence. 9. As far as appeal of the sole appellant i.e. Criminal Appeal No. 2670/2008 is concerned, we have heard Mr. A.D. Shah learned advocate at length. He has relied on the decisions of the Apex Court in the case of B.K. Channappa v. State of Karnataka, reported in AIR 2007 SC 432 (1) and in the case of Harkirat Singh v. State of Punjab, reported in AIR 1997 SC 3231 . He has submitted on behalf of Mr. Lakhani as well as Mr. Barot that as far as FIR and the statement of deceased are concerned, the accused could not have been convicted merely on the basis of the statement of hear-say evidence of one of the witness. Mr. A.D. Shah has then taken us through the evidence which relates to his client i.e. original accused no. 2 – Veja Uka Odedara who was alleged to have armed with pipe. It is submitted by learned advocate for the appellant – ori. Accused no. 2 that even if the oral dying declaration is considered to have made before the police authorities, his name nowhere appears in the said dying declaration but names of only accused no. 1, 3 and 5 appeared. According to him, even the medical evidence does not show that there was any pipe injury. According to him, the evidence of PW-11 Shantaben Nagabhai Ex. 61 was also such which was a hear-say evidence. The evidence of deceased complainant Mer Rajabhai Parbatbhai is hit by section 60 of the Indian Evidence Act and cannot be acted upon. He further relied on the decision of the Apex Court to contend that in light of the injuries which were there, it cannot be said that the common object was there to kill. The evidence of deceased complainant Mer Rajabhai Parbatbhai is hit by section 60 of the Indian Evidence Act and cannot be acted upon. He further relied on the decision of the Apex Court to contend that in light of the injuries which were there, it cannot be said that the common object was there to kill. According to him, the deceased was not a very closed relative of Raja Parbat who was a distant nephew, and therefore, there was no motive to do away with his life. It is submitted that though all armed with so-called deadly weapons, the injuries which were caused were not by sharp edged weapon and though there are seven accused persons, the injuries are not so many and therefore, the dead was due to cardio respiratory failure due to multiple fractures, and at the most, even if it is considered to be a case under section 149 of IPC, the cumulative effect would be falling within sec. 304 Part-I of IPC for all the accused. 10. Learned advocate Mr. P.M. Lakhani appearing for appellants – ori. Accused no. 2 and 4 in Criminal Appeal No. 797/2007, has contended that the case would fall at the most under section 304 Part-I of IPC even if the evidence of all the witnesses are taken cumulative effect. 11. So as to supplement this argument, learned advocate Mr. Barot appearing for the appellants – ori. Accused no. 1 and 3 has submitted that no blood was found on the axe. Original accused no. 4 – appellant no. 3 is not connected with the accused side. He is nowhere related to them and his name did not find place in the so-called oral dying declaration and contended that looking to the injuries, at the most, appellant no. 1 – ori. Accused no. 1 may be given benefit of doubt or at the most he be convicted under sec. 304 Part-II as his role is nowhere proved. 12. As against this, learned APP Ms. CM Shah has heavily relied on the oral dying declaration. The date of arrest, i.e. conduct of the accused that they were arrested after almost three months, after proceedings under section 70 of CrPC were taken. The complainant and important eye witness were done to death so that justice would not have been brought. As against this, learned APP Ms. CM Shah has heavily relied on the oral dying declaration. The date of arrest, i.e. conduct of the accused that they were arrested after almost three months, after proceedings under section 70 of CrPC were taken. The complainant and important eye witness were done to death so that justice would not have been brought. She has heavily relied on the arrest panchnama as well as discovery panchnama, which shows that the motorcycle was found and the arrest panchnama also shows the involvement of all the accused. The medical evidence shows that the weapons were used by all the accused in consortium. 13. We have convinced that it was an unlawful assembly with the common intention to do away with the deceased. We are not agreed by the submission that because of the decision of the Apex Court in B.K. Channappa v. State of Karnataka reported in AIR 2007 SC 432 (1) (supra), the injuries were minimal and it would fall within the purview of sec. 304 Part-II. The injuries are as under: 1. Contusion reddish blackish coloured, size 2 cm x 1 cm on (lt.) side of forehead above eyebrow. 2. Incised wound 2cm x 1cm x 1cm muscle deep over (rt.)elbow lateral side. 3. Multiple small abrasions on (rt.) thumb, index, middle fingers, on dorsal aspect, variable shape and sizes. 4. Reddish blackish coloured contusion 6” x 3” over (Rt.) shoulder joint laterally. 5. Abrasions of size 2cm x 1cm superficially over (lt.) arm anteriorly. 6. Reddish contusion of size 4cm x 1cm over (lt.) thigh lateral size. 7. Reddish contusion of size 2cm x 1cm over (Lt.) knee jt. Anteriorly. 14. The deceased died due to cumulative effect and cardio respiratory failure and even as per the doctor was because of fear also of so many people attacking him, and therefore, we are not persuaded to take a different view then the one taken by the learned trial Judge as the deceased was of 25 years of age who died on the same day within two hours. This takes us to the role of each of the accused. This takes us to the role of each of the accused. We have no doubt in our mind that the injuries were caused by blunt side of axe, gupti and the stick which was used by deceased accused Bachu Dudha and the hind part of the sword by deceased accused Bhima Manda, and therefore, having considered the evidence of all the witnesses, the cumulative effect that we are unable to persuade ourselves to take a different view then the one taken by the learned trial Judge as far as ori. Accused no. 1 – Meru Jeta Odedara, ori. Accused no. 3 – Vajashi Mulubhai Odedara, ori. Accused no. 4 – Shamla Sarmanbhai Odedara and ori. Accused no. 5 Keshubhai Dudabhai Odedara. However, from the point of view, ori. Accused no. 2 – Veja Uka Odedara, we would have to consider the evidence on record. No blood stains were found from the clothes of this accused. No blood of deceased was found from the pipe and whether the death would be by pipe, stick or hind part of axe is not explained in the oral dying declaration, and therefore, we consider his case false and just he being a labourer of one of the accused in the political scenario, he seems to have been roped in the case, and therefore, Criminal Appeal No. 2670/2008 preferred by original accused no. 2 requires to be allowed. 15. PW-11 Shantaben w/o Nagabhai Ex.61, in her evidence has deposed that she was informed by Raja Parbat and Sarman Karshan that when they were returning from Bagasara, the accused persons assaulted upon deceased Bhanu Abhu and taken him to the crematorium of village Miti and due to fear, they came here. The witness further mentioned that when she reached the crematorium of village Miti to take back deceased Bhanu Abhu, the accused persons threatened her to kill, therefore, due to fear, she returned back to home. While returning back to home, on the way, she met Shilubhai Jamadar and Mansingbhai, a policeman, and informed them about the incident. Therefore, they bring Bhanu Abhu from crematorium of Miti village in a rickshaw to her home. She has identified the accused persons in the court. PW-17 Mansingbhai Dadubhai Ex. 74, in his oral evidence has deposed that he and one A.S.I. Liladharbhai Madhavajibhai were on duty of Bandobast at village Miti. Therefore, they bring Bhanu Abhu from crematorium of Miti village in a rickshaw to her home. She has identified the accused persons in the court. PW-17 Mansingbhai Dadubhai Ex. 74, in his oral evidence has deposed that he and one A.S.I. Liladharbhai Madhavajibhai were on duty of Bandobast at village Miti. He further mentioned that on 6.9.2002, at about 11.00am, PW-11 Shantaben met him near bus-stand and informed him that one Mer Bhanu Abhu, who is residing with her, has been assaulted by Bhima Manda and other accused persons and caused serious injuries to him and he is lying in the crematorium of village Miti and when she went there to take back Bhanu Abhu, the accused persons threatened her, therefore, she told him to go and bring back Mer Bhanu abhu. This witness further mentioned that he and one Shilubhai Jamadar thereafter went to crematorium of village Miti where they found Bhanu Abhu lying in a serious condition. This witness further mentioned that on asking, Bhanu Abhu informed him that Meru Jeta, Vajashi Mulu and Keshu Duda had beaten him and thereafter he became unconscious. Thereafter, they took him in rickshaw first to the house of witness Shantaben and thereafter to the hospital but on the way to the hospital, Bhanu Abhu died. From the evidence of these witnesses, many important aspects arise. She is an injured eye witness. The deceased Bhanu Abhu was taken to the crematorium and all these was conveyed to Shilubhai who was the police Jamadar of that area. Even PW-14 Manjuben Ex. 69 and PW-18 Karshanbhai Parbatbhai Ex. 77 have supported this version, and therefore, we have no hesitation in holding that the view taken by the learned trial Judge as far as ori. accused no. 1, 3, 4 and 5 is plausible view and we do not think that we would like to interfere with the same. Even from the evidence of PW-11 and PW-12 does not emerge that Veja Uka Odedara-ori. Accused no. 2 has any role to play. The evidence which we have discussed hereinabove would permit us to take the aforesaid view and in the totality of all the evidence before us, we hold that the decisions of the Apex Court reported in AIR 1997 SC 3231 and AIR 2007 SC 432 (1) would apply to the facts of this case. 16. The evidence which we have discussed hereinabove would permit us to take the aforesaid view and in the totality of all the evidence before us, we hold that the decisions of the Apex Court reported in AIR 1997 SC 3231 and AIR 2007 SC 432 (1) would apply to the facts of this case. 16. In the result, Criminal Appeal No. 797/2007 is dismissed. The impugned judgment and order of conviction and sentence dated 13.2.2007 passed by the learned Addl. Sessions Judge & Fast Track Judge, Junagadh in Sessions Case No.14/2003, is confirmed. It would be futile exercise to direct the State Government to give remission to the appellants as they are accused in another case and they have been convicted. 17. Criminal Appeal No. 2670/2008 is allowed. The impugned judgment and order of conviction and sentence dated 13.2.2007 passed by the learned Addl. Sessions Judge & Fast Track Judge, Junagadh in Sessions Case No.14/2003, is quashed and set aside. Appellant – ori. Accused no. 2- Vejabhai Ukabhai Odedara is acquitted by granting benefit of doubt. He is on bail. His bail and bail bonds are discharged. 18. R & P to be sent back to the trial Court, forthwith. Cri. A. No.797 of 2007 dismissed Cri. A.No. 2670 of 2008 allowed