Pravinbhai Budhabhai Koli vs State of Gujarat and Another

J.C. Upadhyaya, J.—The challenge in this appeal is to the judgment and order rendered by learned Additional Sessions Judge, 2nd Fast

Track Court, Bhavnagar on 24.12.2003 in Sessions Case No. 67 of 2002 whereby the three appellants, who were original accused in the

aforesaid case, came to be convicted for the offence punishable u/s 302 read with Section 34 of Indian Penal Code (''IPC'', for short) and Section

135 of the Bombay Police Act and each of them was sentenced to undergo imprisonment for life and fine of Rs. 500/- and in default of payment of

fine, S.I for six days for the offence punishable u/s 302 r/w. Section 34 of the IPC and S.I for four months and fine of Rs. 100/- and in default of

payment of fine, S.I for seven days for the offence punishable u/s 135 of the Bombay Police Act.

2.1 However, it is submitted by both the sides that the appellant accused No. 1 Pravinbhai Budhabhai Koli died pending this appeal. Therefore,

the appeal qua the appellant accused No. 1 Pravinbhai Budhabhai Koli stands abated and the appeal survives qua the appellant original accused

No. 2 Chandu @ Jambu @ Ramjibhai Dinabhai Koli and appellant original accused No. 2 Kishor @ Popatbhai Veljibhai Koli.

The prosecution case in nutshell is that the incident occurred on dated 16.10.2001 at about 19.15 hours in the area called Fisherman''s colony,

Mafatnagar, near Triveni Rolling Mill, situated in the city of Bhavnagar. It is alleged that on the day of the incident, at about 2 pm, there was some

altercation between deceased appellant Pravinbhai and the first informant Pankaj Shantibhai and witness Mahesh @ Ravi regarding a case under

the Bombay Prohibition Act. When the first informant Pankaj and witness Mahesh @ Ravi during evening hours, informed deceased Amubhai

Chanabhai regarding the incident which had taken place during the noon, it was decided that they should go and meet deceased appellant

Pravinbhai to sort out the problem. Thereupon it is alleged that deceased Amubhai Chanabhai along with first informant Pankaj Shantibhai and

witness Bharat Babulal went towards the house of the deceased appellant Pravinbhai Budhabhai. When they were about to reach near the house

of Pravinbhai Budhabhai, they found deceased appellant No. 1 Pravinbhai Budhabhai, appellant No. 2 Chandu @ Jambu @ Ramjibhai Dineshbhai

Koli and appellant No. 3 Kishor @ Popatbhai Veljibhai Koli standing near a handcart armed with chisel, sword and knife respectively and initially

the deceased appellant No. 1 Pravinbhai inflicted blow with chisel on the neck and head of deceased Amubhai, Amubhai fell on the ground and

thereupon all the three appellants inflicted indiscriminate blows on the body of deceased Amubhai with their respective weapons chisel, sword and

knife. Thereafter, first informant PW-12 Pankaj Shantibhai and Bharat PW-14, went to inform PW-13 Mahesh @ Ravi, the brother of deceased

Amubhai, and then first informant PW-12 Pankaj and PW-13 Mahesh @ Ravi went to Valkalgate police chowki and then they went to inform

their maternal uncle, named, Hakamama. Along with Hakamama, they came to the place of the incident and found Amubhai dead. The dead-body

of Amubhai was brought to hospital and there first informant Pankaj lodged the first information report, Exh.49.

During the course of investigation, statements of material witnesses were recorded by police. All the three accused came to be arrested,

muddamal weapons were seized. After collecting required material for the purpose of lodgment of chargesheet, chargesheet came to be filed in the

Court of learned CJM, Bhavnagar. Since the offence was exclusively triable by the Court of Sessions, learned CJM committed the case to the

Court of Sessions, Bhavnagar, which was numbered as Sessions Case No. 67 of 2002.

The learned trial Judge framed charge against all the three accused persons at Exh.4, to which they did not plead guilty and claimed to be tried.

Thereupon the prosecution adduced its oral and documentary evidence. The prosecution examined 19 witnesses and produced necessary

documentary evidence. After the prosecution concluded its oral evidence, the learned trial Judge recorded further statements of the accused

persons u/s 313 of the Cr.P.C. The accused in their further statements denied generally all the incriminating evidence put to them by the trial Court

and stated that they are innocent and they were intentionally involved by the first informant and his relative witnesses in this incident.

4.1 The learned trial Judge after evaluating and appreciating the evidence on record and the submissions made on behalf of both the sides, came to

the conclusion that the entire prosecution case rests upon the the evidence of two eyewitnesses, namely, first informant PW-12 Pankajbhai and

PW-14 Bharatbhai. Their evidence is held to be trustworthy, reliable, cogent and convincing and observed that their testimony is further supported

by other evidence adduced by the prosecution in this case. Ultimately, the trial Court recorded conviction of all the three accused persons for the

offences punishable u/s 302 r/w. Section 34 of the IPC and Section 135 of the Bombay Police Act and awarded sentence as herein above

referred to in this judgment. All the three accused persons preferred this appeal, but, as submitted, during the pendency of this appeal, the

appellant accused No. 1 Pravinbhai has died and, therefore, the appeal stands abated qua the appellant accused No. 1 Pravinbhai.

Learned advocate Mr. Tolia for the appellants submitted that considering the entire evidence on record, it was the appellant original accused

No. 1 Pravinbhai who allegedly caused fatal blow with chisel on the head and neck of deceased. The rest of the injuries observed by the PM

Doctor are simple in nature. However, so far as the involvement of appellant accused Nos. 2 and 3 is concerned, neither in the FIR nor in the

evidence of the so-called two eyewitnesses, specific role or any overt act is attributed to the appellants. Very vague and general allegation is

levelled against them that after the deceased appellant No. 1 Pravinbhai inflicted fatal blows with chisel on the body of the deceased, thereafter, all

the three accused persons inflicted blows with their respective weapons on the body of the deceased. Medical evidence reveals that some of the

injuries sustained by the deceased was possible by hard and blunt weapon. No such weapon is attributed by the prosecution to any of the

appellants. No blood was found on the weapons sword and knife, allegedly attributed to appellant No. 2 Chandu and appellant No. 3 Kishor

respectively, and even as per the FSL report, the blood of the deceased was not detected on these weapons. As per the prosecution case, the

dispute was between the first informant Pankaj and witness Mahesh @ Ravi with deceased appellant No. 1 Pravinbhai regarding one prohibition

case. Admittedly, no motive is attributed by the prosecution to the appellants No. 2 and 3 for causing murder of deceased Amubhai.

5.1 It is further submitted that the conduct of first informant Pankaj is required to be considered, in the sense that soon after the incident, he informs

the police personnels, namely, PW-8 Nirubha, PW-9 Balbhadrasinh, who were performing their duties in Valkalgate police chowki. Though first

informant Pankaj in his evidence states that while informing both these police personnels about the incident, he has given names of the three

accused persons to them. But, considering the evidence of PW-8 Nirubha and PW-9 Balbhadrasinh, they categorically state that the names of the

assailants were not given to them. Considering their evidence, it further transpires that PI Thakore had reached to the place of the incident and

drew inquest panchnama and at that time, first informant PW-12 Pankaj, PW-14 Bharat and PW-13 Mahesh @ Ravi were present there and

despite the fact that PI Thakore asked them as to who caused the murder of the deceased, yet, neither of them informed that the assailants were

the present accused persons.

5.2 That thus, in every respect, the involvement of the appellants cannot be said to have been proved beyond reasonable doubt by the prosecution.

They deserve benefit of doubt. Alternatively it is submitted that considering the medical evidence on record, it is true that the deceased sustained in

all 27 external injuries, but, the fatal injuries were on his head and neck, and as per the ocular evidence, the said injuries were caused by deceased

appellant accused No. 1 Pravinbhai and the remaining injuries were simple in nature. Therefore, if at all this Court comes to the conclusion that the

involvement of the appellants No. 2 and 3, namely, Chandu @ Jambu and Kishor @ Popat is proved by the prosecution, yet, the offence which

can be said to have been constituted qua these two appellants accused persons is culpable homicide not amounting to murder punishable u/s 304

Part I or II of the IPC.

Per contra, learned Additional Public Prosecutor Mr. Nanavati for the State vehemently opposed this appeal and submitted that the trial Court

rightly relied upon the evidence of two eyewitnesses, namely, PW-12 Pankaj and PW-14 Bharat. Their evidence is further supported by medical

evidence on record. There is no delay in the lodgment of the FIR by PW-12 Pankaj. The defence relies upon by the evidence of two poilcemen of

Valkalgate police chowki, namely, PW-8 Nirubha and PW-9 Balbhadrasinh, but nothing emerges from their evidence, which would help the

defence. Both these eyewitnesses categorically state that they had informed both these witnesses PW-8 and PW-9 about the names of the

assailants. However, considering the evidence of both the eyewitnesses, it transpires that the purpose of going there to the police chowki was

merely to inform the police to immediately come to the place of the incident to save the life of the deceased and to maintain law and order.

6.1 It is submitted that all the three accused persons came to be convicted for the offence punishable u/s 302 of the IPC with the aid of Section 34

of the IPC. As per the ocular evidence on record, along with the deceased appellant No. 1 Pravinbhai both the appellants accused No. 2 and 3

armed with sword and knife were present. They both caused injuries to the deceased. The deceased sustained in all 27 external injuries and

according to the medical evidence, the injuries were possible by chisel, sword and knife. The FSL evidence does not reveal the blood of the

deceased on sword and knife, but the FSL evidence regarding the clothes of the deceased reveals that corresponding cut marks found on the

clothes of the deceased were possible by chisel, sword and knife. Both the eyewitnesses categorically deposed about the role played by the

appellants accused No. 2 and 3. The act was committed in furtherance of their common intention. That, therefore, the death of appellant accused

No. 1 Pravinbhai during the pendency of this appeal would not provide any benefit to the remaining appellants No. 2 and 3. Therefore, it is

submitted that the appeal may be dismissed.

We have examined the record and proceedings in context with the submissions made by the rival sides.

Considering the evidence on record and submissions made on behalf of both the sides, it transpires that the entire case depends upon the

evidence of two witnesses, namely, PW-12 Pankaj Shantibhai and PW-14 Bharat Babulal. PW-12 Pankaj Shantibhai is the first informant, who

lodged the first information report, Exh.49. According to their evidence, the incident took place at about 19.15 hours on 16.10.2001 near the

house of appellants accused No. 1 and 2. On the day of the incident, at about 2 pm, there was some altercation between the deceased appellant

accused No. 1 Pravinbhai and the first informant PW-12 Pankaj and PW-13 Mahesh @ Ravi regarding one prohibition case. Both these

witnesses suspected that they were arraigned as accused in one case under the Bombay Prohibition Act on the basis of some tip passed by

deceased appellant accused No. 1 Pravinbhai to police. According to their evidence, at about 6 pm in the evening when both these witnesses

along with PW-13 Mahesh @ Ravi were there in the area called Tekri chowk, at that time deceased Amubhai came there and the deceased was

informed about the incident, which took place at 2 pm. Thereupon, the deceased stated that he will intervene and see that the dispute is settled.

Then deceased along with both these witnesses, namely, Pankaj and Bharat went towards the house of appellant Pravinbhai, but, when they

reached near his house, they saw that the appellant accused No. 1 Pravinbhai armed with chisel, appellant accused No. 2 Chandu @ Jambu

armed with sword and appellant accused No. 3 Kishor @ Popat armed with knife were present and deceased appellant accused No. 1

Pravinbhai sprinkled chilly powder on the deceased and then he inflicted a blow with chisel on the neck of deceased Amubhai and, thereafter, all

the three accused appellants inflicted indiscriminate blows with their weapons on the body of the deceased. Thereafter, both these witnesses

escaped from there and came to Tekri chowk and informed PW-13 Mahesh @ Ravi about the incident and PW-12 Pravin and PW-13 Mahesh

@ Ravi went to Valkalgate police chowki and informed the policemen about the incident and according to their evidence, they informed police that

Amubhai was assaulted upon by all the three accused persons, and then they went to inform their maternal uncle Hakamama and alongwith

Hakamama they came to the place of the incident. They found Amubhai dead. The police arrived at the scene of occurrence and shifted the dead-

body to hospital and in hospital PW-12 Pankaj lodged FIR, Exh.49.

Both these eyewitnesses have been succinctly cross-examined by the defence. We have examined their evidence and we are of the considered

opinion that nothing emerges from their cross-examination, which would render their evidence either untrustworthy or doubtful. On behalf of the

appellants, evidence of both these eyewitnesses came to be criticized in light of the evidence of two policemen examined by the prosecution, who

were performing their duties in Valkalgate police chowki, namely, PW-8 Nirubhai and PW-9 Balbhadrasinh. According to the evidence of both

the policemen, both Pankaj and Mahesh @ Ravi had come to their police chowki and informed them that their brother, namely, Amubhai was

being assaulted upon near Triveni Rolling Mill, and requested them to go to the place of the incident. Both these witnesses PW-8 Nirubhai and

PW-9 Balbhadrasinh deposed that neither Pankaj nor Mahesh @ Ravi gave them the name of the assailants. PW-8 Nirubhai in his cross-

examination stated that both Pankaj and Mahesh @ Ravi informed them that chilly powder was sprinkled in their eyes. However, Nirubha denied

the suggestion that since the chilly powder was sprinkled in their eyes, they could not see the commission of the incident. However, PW-9

Balbhadrasinh in his cross-examination admitted to such suggestion. PW-9 Balbhadrasinh stated that, both Pankaj and Mahesh @ Ravi told PW-8

Nirubha that since the chilly powder was sprinkled in their eyes, they could not see the assailants. It is pertinent to note that PW-8 Nirubha outright

denied such suggestion. Furthermore, considering the evidence of both these witnesses, namely, PW-8 and PW-9, they have been re-examined by

the prosecution, and in their testimonies, they went to the extent of saying that some of the statements which they made during the course of their

evidence were made through oversight or by mistake. Furthermore, according to the evidence of PW-9 Balbhadrasinh, when he himself and PW-8

Nirubha went to the place of the incident, PI Thakore along with other policemen were present there, and he was inquiring about the names of the

assailants, but none including these three witnesses, namely, Pankaj, Bharat and Mahesh @ Ravi gave names of assailants to PI Thakore.

According to them, PI Thakore was drawing the inquest panchnama of the deceased. Now in this respect, PI Thakore is examined as witness by

the prosecution as PW-17, at Exh.65. Considering his evidence, only on 17.10.2001 he resumed his duty as PI in the police station. He

categorically admits that he conducted further investigation in this case, only after dated 17.10.2001. According to the police witnesses PW-8

Nirubha and PW-9 Balbhadrasinh, PI Thakore was present at the scene of occurrence during late evening hours on 16.10.2001. This fact is quite

contrary with the evidence of PI Thakore himself. Moreover, considering the inquest panchnama, Exh.24, it clearly transpires that inquest

panchnama was drawn between 20.20 hours to 20.50 hours on 16.10.2001 and according to the evidence of PI Chavda, exmamined by the

prosecution as PW-18 at Exh.66, on 16.10.2001, at about 20.05 hours, he received the information about the incident and he immediately went to

the place of the incident during late evening hours on 16.10.2001 and drew the inquest panchnama. Thus, the story that PI Thakore was present

and he inquired to the persons who had gathered near the dead-body of the deceased about the name of the assailant becomes doubtful if the

evidence of PI Thakore and PI Chavda along with the inquest panchnama, Exh.24 is considered. As revealed from the evidence of two Police

Officers and the inquest panchnama, the inquest panchnama was drawn by PI Chavda and not by PI Thakore. It further transpires considering the

impugned judgment rendered by the trial Court and more particularly paragraph 50 in the judgment, the trial Court did not place any reliance upon

the evidence of PW-8 Nirubha and PW-9 Balbhadrasinh. As stated above, even they are not consistent in their evidence. When they were re-

examined by the prosecution, they went to the extent of saying that in their evidence, some questions were replied after understanding those

questions and some were replied without understanding the questions. Therefore, in the impugned judgment, not only the learned trial Judge

observed that the evidence of PW-8 and PW-9 does not inspire confidence, but, the learned trial Judge recommended concerned District

Superintendent of Police to take necessary steps against PW-8 Nirubha and PW-9 Balbhadrasinh.

In the result, the fact remains that PW-12 Pankaj and PW-13 Mahesh @ Ravi went to Valkalgate police chowki and informed the police that

their brother was being beaten and as a matter of fact they sought for immediate help of police, with a view to save the life of the deceased.

Considering the impugned judgment rendered by the trial Court, it transpires that the learned trial Judge rightly came to the conclusion that

whatever message PW-12 Pankaj passed on to Valkalgate police chowki was a cryptic message, which cannot be termed as first information

report regarding the commission of cognizable offence and rightly came to the conclusion that the FIR lodged by PW-12 Pankaj in the hospital

before PI Chavda, Exh.49 is the FIR.

The evidence of the two eyewitnesses, namely, PW-12 Pankaj and PW-14 Bharat has been assailed by the appellants mainly on the ground

that they did not specifically attribute any role to the appellants No. 2 and 3 in the incident. It is submitted that out of the two appellants, which

appellant inflicted which blow with his weapon on which part of the body of the deceased is not specifically forthcoming in the evidence, and their

evidence is just in the nature that all the appellants including the appellants No. 2 and 3 caused injuries to the deceased with their weapons. Now in

this respect, considering the medical evidence on record and especially the evidence of Dr. Kalele PW-11 and the PM report, Exh.47, it clearly

transpires that the deceased had sustained in all 27 external injuries. Most of the injuries were incised wounds. The injuries caused extensive

damage to the vital internal organs in the body of the deceased and the cause of death is shock and hemorrhage on account of injuries to head and

neck. Dr. Kalele in his evidence opined that those injuries were possible by muddamal weapons viz.chisel, sword and knife. According to him

chop wounds and abrasions were possible by chisel and chop wound, puncture wound, cut wound and abrasion were possible by sword and

knife. However, in his cross-examination, he opined that some of the injuries like, abrasions were possible by hard and blunt substance. On this

count, on behalf of the appellants, it is stated that the medical evidence is inconsistent to the ocular evidence on record. Considering the impugned

judgment rendered by the trial Court, it seems that the identical contention was raised by the defence before the trial Court. We are of the view

that such opinion given by the Medical Officer does not render the ocular evidence doubtful one. Dr. Kalele during the course of his evidence

when the muddamal weapon articles No. 15, 16 and 17 (chisel, sword and knife respectively) were shown to him clearly opined that the injuries

were possible by these weapons. Both the eyewitnesses deposed in their depositions that the three appellants inflicted indiscriminate blows with

respective weapons on the body of the deceased.

There is no dispute that at the time when the panchnama of the scene of occurrence, Exh.14 was drawn in presence of panchas, from the place

of the incident, one Trishul, two glass bottles and small packet of chilly powder came to be found. There was no blood on the Trishul, but, the

bloodstains were found on the glass bottles. In the result, on behalf of the appellants it was submitted that the eyewitnesses did not explain the find

of Trishul and glass bottles and packet of chilly powder from the scene of occurrence, and, therefore, their evidence is doubtful. However,

considering the entire evidence adduced by the prosecution, there is nothing to show that all or any of the appellants had sustained any injury during

the course of the incident. There is nothing revealing from the evidence that either the deceased or PW-12 Pankaj or PW-14 Bharat were armed

with weapons like Trishul or glass bottles. Even in the further statements of the appellants recorded u/s 313 of the Cr.P.C., none of the appellants

stated that deceased and the witnesses were armed with Trishul and glass bottles. When such is the situation, mere find of Trisuhl and glass bottles

from the place of the incident does not render the ocular evidence a doubtful one.

Considering the FSL evidence, it is true that on weapon chisel held by deceased appellant No. 1, the blood of deceased of Group ""A"" was

found, but, the blood of the deceased was not found on the weapon sword held by the appellant No. 2 and knife held by appellant No. 3.

However, the serological examination report of the FSL suggests that on the pant of appellant No. 2 Chandu @ Jambu, the blood of the deceased

of Group ​A​ was found. Moreover, the prosecution has produced a report of the FSL at Exh.54 regarding the corresponding cut-marks found on

the clothes of the deceased. Considering the Fsl report, Exh.54, it transpires that on the T-shirt of the deceased corresponding 7 cut-marks were

found and on the pant of the deceased corresponding 2 cut-marks were found. The FSL also examined the weapons chisel, sword and knife and,

ultimately, opined that the corresponding cut-marks found on the T-shirt and pant of the deceased were possible by the weapons chisel, sword

and knife. This piece of evidence corroborates the medical evidence on record that the injuries were possible by these weapons and in turn the

ocular evidence on record that the appellants inflicted blows on the body of the deceased with chisel, sword and knife.

On behalf of the appellants it was submitted that the prosecution examined in capacity as eyewitness only the interested witnesses and the

independent witnesses have not been examined. However, considering the impugned judgment rendered by the trial Court, identical contention

was raised by the defence before the trial Court. In this respect, considering the evidence of two eyewitnesses examined by the prosecution,

namely, PW-12 Pankaj and PW-14 Bharat, nothing emerges that at the time when the incident occurred, any other persons were there, who had

witnessed the incident. Furthermore, merely because both the eyewitnesses are near relatives of the deceased, that itself cannot be the ground to

discard their testimony in toto. In the impugned judgment the learned trial Court has rightly observed that if the eyewitnesses are relatives of the

deceased, they would not spare the real culprit and involve innocent persons. Considering the evidence of both the eyewitnesses, nothing emerges

which would render their evidence shaky or doubtful one.

On behalf of the appellants No. 2 and 3 it is submitted that the fatal blows on head and other parts of the body were inflicted by deceased

appellant No. 1 on the deceased with chisel. Since he died pending the appeal, his appeal stands abated. It is submitted that general allegation is

levelled against the appellants No. 2 and 3 that they caused injuries to the deceased with their weapons. Therefore, alternatively, it was submitted

that the trial Court erred in recording the conviction of the appellants No. 2 and 3 for the offence of murder and considering their overt act at the

most it can be said that they have committed the offence of culpable homicide not amounting to murder, punishable u/s 304 either Part I or II of the

IPC. In this respect, first of all mere fact that pending the appeal the appellant No. 1 Pravinbhai died, that would not provide any benefit to the

surviving appellants No. 2 and 3. The death of the appellant No. 1 would not dilute the gravity of the offence for which the appellant No. 2 and 3

came to be convicted. The appellants came to be convicted for the offence punishable u/s 302 r/w. Section 34 of the IPC. As emerges from the

evidence of eyewitnesses, at the time of the incident, when the deceased and PW-12 Pankaj and PW-14 Bharat reached to the place of the

incident, all the three appellants, including appellants No. 2 and 3 armed with chisel, sword and knife were found present at the place of the

incident. They all took part in the incident. It is submitted on behalf of the appellants that in the evidence of both these eyewitnesses, so far as role

attributed to the appellants No. 2 and 3 is very general and nothing specific or particular overt act emerges from their evidence, as to out of the

two, which appellant accused caused injury on which part of the body of the deceased. It is further submitted that even considering the FSL

evidence on record, weapons sword and knife allegedly recovered at the instance of the appellants No. 2 and 3 did not contain any blood of the

deceased.

Now in this respect, the trial Court recorded the conviction of the appellants No. 2 and 3 for the offence punishable u/s 302 of the IPC with

the aid of Section 34 of the IPC. As provided u/s 34 of the IPC, when a criminal act is done by several persons, in furtherance of the common

intention by all, each of such persons is liable for that act in the same manner as if it were done by him alone. As stated above, at the time of the

incident, along with the deceased appellant No. 1 Pravinbhai, both the appellants No. 2 and 3 were there armed with sword and knife in their

hands. Considering the evidence of both the eyewitness, namely, PW-12 Pankajbhai and PW-14 Bharatbhai, they took part in inflicting blows with

sword and knife on the body of the deceased. As stated above, the medical evidence reveals that the deceased sustained 27 external injuries and

those, injuries were possible by chisel, sword and knife. Corresponding cut-marks on the cloth of the deceased as per the FSL opinion, were

possible by chisel, sword and knife.

In light of the entire above discussions, the sharing of the common intention to murder the deceased is well established, as well as the

participation of the appellants No. 2 and 3 in the incident is also proved through evidence of the eyewitnesses. In paragraph 60 of the impugned

judgment, the learned trial Judge, at length, discussed the scope and ambit of Section 34 of the IPC. We are in complete agreement with the

reasonings assigned by the trial Court while recording the conviction of the appellants No. 2 and 3 for the offence of murder punishable u/s 302 of

the IPC with the aid of Section 34 of the IPC.

Lastly, it is submitted by learned advocate Mr. Tolia for the appellants that the evidence reveals that the injuries caused by deceased appellant

No. 1 Pravinbhai on the head of the deceased proved to be fatal and, therefore, the injuries caused by the appellants No. 2 and 3 on the body of

the deceased did not result into his death and, therefore, alternatively, it is submitted that the offence, which is made out qua the appellants No. 2

and 3 is not murder, but culpable homicide not amounting to murder punishable u/s 304 either Part I or II of the IPC. However, in light of the

above discussions, and more particularly, when both the appellants took part in causing injuries with their respective weapons on the body of the

deceased and the fact that both the appellants along with deceased appellant No. 1 Pravinbhai shared common intention to murder the deceased,

and considering the large number of injuries sustained by the deceased, we do not agree with the submission made on behalf of the appellants that

the offence which can be said to have been made out is culpable homicide not amounting to murder punishable u/s 304 either Part I or II of the

IPC. The learned trial Judge considering the facts and circumstances of the case and the evidence on record, rightly came to the conclusion that the

offence of murder punishable u/s 302 of the IPC is made out and, ultimately, rightly recorded the conviction of the appellants No. 2 and 3 for the

offence punishable u/s 302 of the IPC read with Section 34 of the IPC.

In light of the entire above discussion, we are of the considered opinion that the learned trial Judge properly appreciated the evidence on

record and rightly recorded the conviction of the appellants for the offence punishable u/s 302 read with Section 34 of the Indian Penal Code and

Section 135 of the Bombay Police Act. The appeal is, therefore, devoid of any merits and deserves dismissal.

For the foregoing reasons, the appeal stands dismissed qua the appellant No. 2 Chandu @ Jambu @ Ramjibhai Dinabhai Koli and appellant

No. 3 Kishor @ Popatbhai Veljibhai Koli.

The appeal stands abated qua the deceased appellant No. 1 Pravinbhai Budhabhai Koli.