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TMI Blog2019 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... d with a tractor for which a civil suit in Regular Suit No.131 of 1997 filed by complainant-Somabhai Rupabhai (PW-3) against appellant-accused No.1 and accused No.3 was already pending before the Court of Civil Judge, Modasa. According to the prosecution, the said road was used by the complainant and his family members for going to and fro. On the date of incident i.e. on 23.11.1997 at about 09:00 PM, when accused persons were ploughing the road, the complainant and his family members intervened and prevented them from carrying out the ploughing activities on which accused started abusing the complainant and his family members with caste remarks. Due to fear, complainant and his family members went back to their houses which were near to the place of incident. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.10 of 2001 before the High Court. Challenging the acquittal of co-accused-No.3 to 7, respondent- State has also filed Criminal Appeal No.127 of 2001 before the High Court. By the common judgment dated 05.03.2009, the High Court affirmed the conviction of appellant-accused No.1 under Section 302 and Section 307 IPC read with Section 34 IPC and under Section 25(c) of the Arms Act. 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. By the same judgment, the appeal preferred by the respondent-State was dismissed by the High Court. 5. Being aggrieved by the dismissal of his appeal, appellantaccused No.1 has preferred this appeal. 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. 6. Mr. Anuj Bhandari, learned counsel appearing on behalf of the appellant has submitted that the occurrence was of 23.11.1997 at 09:00 PM in the agricultural field of complainant- Somabhai Rupabhai (PW-3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed appeal in CFO No.67 of 1998 and the copy of said appeal has been marked as Ex.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. Proof of motive was taken as one of the important aspects by the trial court as well as by the High Court. Though motive is a relevant aspect, it is to be kept in view that motive is a double edged weapon. Proof of motive merely adds to the value of evidence of the eye-witnesses. 10. The occurrence was of 23.11.1997 at 09:00 PM in the agricultural field of complainant-Somabhai Rupabhai (PW-3), where it was dark. The panchnama of the scene of occurrence (Ex.P-73) shows no indication of the electric light either in the animal shed situated behind the house of complainant or that there is any electric pole anywhere in the vicinity or that there is a light on the well which is supplying water. Case of prosecution is that appellant and six other co-accused surrounded the complainant party and there were three gunshots fired. The injured witness (PW-6) in his cross-examination has admitted that he had not stated anything about the burning light either in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the appellant from whom rifle was recovered. 13. 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. Similarly, as pointed out earlier in post-mortem certificate (Ex.P-52), a double barrel gun was also recovered from the house of accused No.2. It is merely stated that there were puncture wounds. The post mortem certificate does not state as to whether those gun wounds were caused by rifle or by gun. In the absence of any definite indication as to whether those fatal wounds were caused either by rifle or by double barrel gun, the courts ought not to have held appellantaccused No.1 responsible for the fatal fire arm wounds on the body of deceased Somiben. 14. Yet another circumstance raising doubts about the prosecution case is to be pointed out. Mukeshkumar Pranlal Sheth (PW-12) and Madhusudanbhai Arvindbhai Pandya (PW-13) are the witnesses to the panchnama (Ex.P-79) for recovery of weapons from accused Nos.1 and 2 and both of them have not supported the prosecution case. The police officer-Investigating Officer has spoken about the recovery of the fire arms. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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