Ashoksinh Jayendrasinh vs The State Of Gujarat

2. Brief facts which led to filing of this appeal are:-

4. To bring home the guilt of the accused, the trial court examined four eye-witnesses viz. complainant-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 3 conducted the post-mortem on the dead body of deceased Somiben, Dr. Deshmukh Hiralal (PW-4) who examined the injured eye-witnesses and other witnesses. Upon consideration of the evidence of injured eye-witnesses (PWs 6 and 7), recovery of weapons and other evidence on record, the trial court vide its judgment dated 15.11.2000 convicted 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. They were also convicted 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. They were also convicted 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. The trial court acquitted accused No.1 and 2 under Sections 147, 148, 149, 323, 504 and 506(II) IPC. The trial court also acquitted accused No.3 to 7 from all the charges. Being aggrieved, appellant-accused No.1 and accused No.2-Kalusinh 4 filed Criminal Appeal 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.

8. We have carefully considered the rival contentions and perused the impugned judgment and the judgment of the trial court and other materials placed on record.

16. There was darkness at the time and the place of occurrence making it difficult for the witnesses to identify the assailants. The evidence of eye-witnesses are contradictory to each other as to the firing of the fatal blow. The guilt of the accused has not been proved beyond reasonable doubt and the benefit has to be given to the accused.

18. The conviction of appellant-accused No.1 under Section 302 IPC read with Section 34 IPC and Section 307 IPC read with Section 34 IPC and under Section 25(c) of the Arms Act is set aside and this appeal is allowed. The appellant/accused No.1- Ashoksinh Jayendrasinh is ordered to be released forthwith unless his presence is required in any other case.

May 07, 2019.