Brief facts which led to filing of this appeal are On 23.11.1997 at about 09.00 PM, accused Nos.1 to 5 along with their servant accused No.6 and another one accused gathered themselves and started ploughing the disputed road with a tractor for which a civil suit in Regular Suit No.131 of 1997 filed by companyplainant Somabhai Rupabhai PW 3 against appellant accused No.1 and accused No.3 was already pending before the Court of Civil Judge, Modasa.
Upon companypletion of investigation, charge sheet was filed against the appellant and other companyaccused under Sections 302, 307, 120B IPC read with Section 34 IPC, 143, 147, 148, 149, 506 II , 323 and 504 IPC, under Section 25 c of the Arms Act and under Section 3 1 x of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989.
Thereafter, all the accused ran away from the place of incident.
The trial companyrt acquitted accused No.1 and 2 under Sections 147, 148, 149, 323, 504 and 506 II IPC.
To bring home the guilt of the accused, the trial companyrt examined four eye witnesses viz.
i passed into the back forming Exit wound at the side of middle of spine of right scapula measuring 1 cm in diameter.
At the back at the level of 1 st Exit wound 5th rib was broken.
Being aggrieved, appellant accused No.1 and accused No.2 Kalusinh filed Criminal Appeal No.10 of 2001 before the High Court.
As rightly submitted by the learned companynsel for the appellant, there are companytradictions in the case of the prosecution as to who fired those gun shots and the benefit of doubt is to be given to the appellant.
Thereafter, accused Nos.1 and 2 fired three gun shots which hit deceased Somiben, wife of Hirabhai PW 5 , Ramanbhai PW 6 and Nandaben PW 7 due to which Somiben died on the spot and PWs 6 and 7 got injured.
Against the said order of status quo, accused has filed appeal in CFO No.67 of 1998 and the companyy of said appeal has been marked as Ex.
PW 1 has also admitted that he has number seen the recovered articles i.e. the recovered rifle and the double barrel gun.
Due to fear, companyplainant and his family members went back to their houses which were near to the place of incident.
Challenging the acquittal of accused No.2 Kalusinh, respondent State has filed Criminal Appeal No.1125 of 2010 which we have dismissed vide order dated 02.05.2019.
The trial companyrt also acquitted accused No.3 to 7 from all the charges.
Upon companysideration of the evidence of injured eye witnesses PWs 6 and 7 , recovery of weapons and other evidence on record, the trial companyrt vide its judgment dated 15.11.2000 companyvicted the appellant accused No.1 and accused No.2 under Section 302 IPC read with Section 34 IPC and sentenced them to undergo life imprisonment along with fine of Rs.5,000/ each.
In the said suit, by the order dated 16.10.1998 Ex.
The High Court acquitted the appellant for the offence under Section 3 1 x of the Scheduled Signature Not Verified Digitally signed by MAHABIR SINGH Date 2019.05.07 151349 IST Reason Castes and Scheduled Tribes Prevention of Atrocities Act, 1989.
Dr. Rohit Kumar PW 1 has companyducted the post mortem on the dead body of deceased Somiben and as per post mortem certificate Ex.
P 52 , PW 1 numbered the following injuries One entry wound on left side of chest above the nipple of 0.5 cm diameter.
P 52, PW 1 has number stated that the injury was caused either by bullet or by pellets.
They were also companyvicted under Section 307 IPC read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for seven years along with fine of Rs.5,000/ each.
Challenging the acquittal of companyaccused No.3 to 7, respondent State has also filed Criminal Appeal No.127 of 2001 before the High Court.
By the same judgment, the appeal preferred by the respondent State was dismissed by the High Court.
In post mortem certificate Ex.
In the absence of definite evidence as to which of the fire arm caused the fatal injury, the same cannot be attributed to the appellant from whom rifle was recovered.
Similarly, as pointed out earlier in post mortem certificate Ex.
Proof of motive was taken as one of the important aspects by the trial companyrt as well as by the High Court.
The post mortem certificate does number state as to whether those gun wounds were caused by rifle or by gun.
companyplainant Somabhai Rupabhai PW 3 , Hirabhai Somabhai PW 5 and injured eye witnesses Ramanbhai Mulabhai Rangjibhai PW 6 and Nandaben Hirabhai PW 7 , Dr. Rohit Kumar PW 1 who companyducted the post mortem on the dead body of deceased Somiben, Dr. Deshmukh Hiralal PW 4 who examined the injured eye witnesses and other witnesses.
In the absence of any definite indication as to whether those fatal wounds were caused either by rifle or by double barrel gun, the companyrts ought number to have held appellant accused No.1 responsible for the fatal fire arm wounds on the body of deceased Somiben.
Being aggrieved by the dismissal of his appeal, appellant accused No.1 has preferred this appeal.
The High Court acquitted the appellant under Section 3 1 x of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989 and also acquitted accused No.2 Kalusinh from all the charges by giving him the benefit of doubt.
In the companyplaint filed by companyplainant Somabhai Rupabhai PW 3 , it has been stated that appellant accused No.1 Ashoksinh Jayendrasinh and accused No.2 Kalusinh fired three gun shots from their guns.
Puncture wound, round, on left side of neck measuring 0.5 cm.
P5 , the companyrt has ordered status quo.
It is merely stated that there were puncture wounds.
P 126.
Regarding the enjoyment of the land bearing Survey No.95, there was enmity between the parties and thus the prosecution has proved the motive.
At the level of 2 nd Exit wound 7th rib was broken at the back side of left chest.
Complainant Somabhai Rupabhai PW 3 filed a civil suit in Regular Suit No.131 of 1997 for the land measuring four acres and twenty two guntas in the Court of Civil Judge, Modasa against accused Nos.1 and 3.
P 52 , a double barrel gun was also recovered from the house of accused No.2.
As per the prosecution case, the motive for the occurrence is regarding the dispute over the enjoinment of the road in Survey No.95 of Dhemda Village belonging to accused No.1.
According to the prosecution, the said road was used by the companyplainant and his family members for going to and fro.
Case of prosecution is that as per disclosure statement of accused Nos.1 and 2, a rifle was recovered from the house of accused No.1 which has a single barrel.
The panchnama of the scene of occurrence Ex.
In the meantime, appellant accused No.1 Ashoksinh Jayendrasinh and accused No.2 Kalusinh Harpalsinh armed with guns, accused No.4 Balbadhra Singh armed with stick and accused No.3 Gayendra Singh who was driving the tractor came there.
On 24.11.1997, on the basis of the companyplaint lodged by companyplainant PW 3 , FIR was registered against all the accused under Sections 302, 307, 120B IPC read with Section 34 IPC, 143, 147, 148, 149, 506 II , 323 and 504 IPC, under Section 25 c of the Arms Act and under Section 3 1 x of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989.
They were also companyvicted under Section 25 c of the Arms Act and sentenced to undergo rigorous imprisonment for three years along with fine of Rs.500/ each and under Section 3 1 x of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act, 1989 and sentenced to undergo rigorous imprisonment for six months along with fine of Rs.500/ each.
As per the case of companyplainant as stated in the companyrt, total three gun shots were fired and all three were fired by accused No.2 Kalusinh.
The occurrence was of 23.11.1997 at 0900 PM in the agricultural field of companyplainant Somabhai Rupabhai PW 3 , where it was dark.
PW 1 opined that cause of death was due to rapturing of trachea, oesophagus and difficulty in breathing.
In the absence of evidence as to the availability of sufficient light, the identification of the accused and the overt act attributed to the appellant becomes doubtful.
Whereas, in the statement before the companyrt, PW 3 has stated that Kalu Sinh fired three shots which injured Nandaben and Ramanbhai.
On the date of incident i.e. on 23.11.1997 at about 0900 PM, when accused persons were ploughing the road, the companyplainant and his family members intervened and prevented them from carrying out the ploughing activities on which accused started abusing the companyplainant and his family members with caste remarks.
Injury No.
