Full Judgment Text
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CASE NO.:
Appeal (crl.) 635 of 1992
PETITIONER:
TAKHAJI HIRAJI
Vs.
RESPONDENT:
THAKORE KUBERSING CHAMANSING & ORS.
DATE OF JUDGMENT: 02/05/2001
BENCH:
CJI, R.C. Lahoti & Doraiswamy Raju
JUDGMENT:
WITH
Crl.Appeal No. 636 of 1992
J U D G M E N T
R.C. Lahoti, J.
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Eight accused persons were charged for having committed
offences under Sections 147, 148, 302/34/149, 307/34/149,
302/307/109, 325, 325/34, 324 and 324/34 of the Indian Penal
Code. The Trial Court acquitted accused nos.3, 4, 6, 7 and
8 of all the offences charged and set them at liberty.
Accused nos. 1, 2 and 5 were held guilty on different
counts as will be stated shortly hereinafterwards and
convicted and sentenced. They preferred an appeal before
the High Court of Gujarat which was heard by a Division
Bench. By the impugned judgment dated 14.12.1983 the appeal
has been allowed and all the three accused-respondents have
been acquitted. The complainant, Takhaji Hiraji who had
lodged the first information report of the incident and was
himself an injured person has preferred this appeal by
special leave putting in issue the acquittal of accused nos.
1, 2 and 5. Later on the State has also filed an appeal by
special leave. Both the appeals have been heard together.
A small village Dugrasan, Taluka Shihori in the State of
Gujarat witnessed a joyful evening of 23rd March, 1980 being
converted into a horrific tale of crime where violence was
let loose between two communities, otherwise friendly and
living together happily , resulting into death of 3 persons
and simple and grievous injuries to several others. It
appears that the village has population consisting mainly of
Thakores and Kolis. Thakores treat themselves as upper
caste and look down upon Kolis as their inferiors. On the
date of incident, in the evening, the village people had
collected in the chowk, an open space in the heart of the
village to witness the performance of tight rope dancers. A
rope is tied tightly on two poles installed at a reasonable
distance from each other. On the tight rope moves a dancer.
The performance includes tight rope walking with utensils on
the head of the dancer. The performer is rewarded by making
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a bid amongst the viewers; one whos bid is the highest has
the honour of lifting and putting down the utensils from
over the head of the dancer. The highest bid is thus
symbolic of honour to the bidder and a reward to the
performer. Witnessing the performance were Thakores of the
village and so also the Kolis. Two petromax were burning to
provide illumination. As the show neared its end Thakore
Magansing Dadusing, the accused no.2 made a bid for lifting
the utensils. But the deceased, Amuji Narsangji Koli made a
higher bid which was protested to by Gajrabai, the accused
no.5 saying why the Kolis were bidding higher than the
Thakores. There was a heated exchange of words followed by
a quarrel and then knife and dagger being stretched out and
wielded.
According to the prosecution Magansing, accused no.2 had
taken out a knife from his waist by which he dealt blows on
Sabuji Viraji and Amuji Narsangji. Kubersing, accused no.1
gave a dagger blow in the abdomen of Amuji Narsingji.
Kubersing also caused a stab wound to Narsingji Hiraji.
Magansing, accused no.2 also gave a knife blow on the back
of Amuji Narsingji. Magansing also caused injury to Sabuji
in his abdomen. Accused 1 and 2 caused injuries by sharp-
edged weapons to other witnesses also belonging to Thakore
community who tried to intervene. Gajrabai, accused no.5
gave a stick blow to Viraji Devaji causing a fracture of his
hand. Other accused, excepting nos.1 and 2 were throwing
katars, sticks, clubs etc. by which several other persons
got injured. All other villagers and group of dance
performers ran away from the chowk leaving the injured and
the accused persons behind. After causing several injuries
the accused persons left the chowk for their houses. The
injured persons belonging to Thakore community were being
taken to their houses but some of them found it difficult to
walk. They sat down on the otta of Kalkamata Temple. A
camel-cart was summoned. On it all the injured were seated
and taken to Shirohi where they reached the dispensary at
about 11.30 p.m. Narsingji Hiraji succumbed to his injuries
on the way. Sabuji Viraji was taken to Mehsana where he too
died on account of his injuries. Amuji Narsangji was taken
to Deesa and he died thereat. Takhaji Hiraji one of the
injured persons, leaving behind the seriously injured
persons in the hospital at Shirohi went to the police
station and lodged FIR of the incident. The police
registered crime under Sections 302,307 and several other
sections of the Indian Penal Code and commenced
investigation. Autopsies on the dead bodies of Narsangji
Hiraji, Sabuji Viraji and Amuji Narsangji were conducted.
All other injured persons were also medico-legally examined.
It is not necessary for us at this stage to notice such
details of the incident as have become insignificant
consequent upon 5 of the 8 accused persons having been
acquitted by the Trial Court and their acquittal having
remained unchallenged. We will only notice such details of
the prosecution case as are relevant and significant for the
purpose of testing legality of the acquittal of the three
accused- respondents as recorded by the High Court.
Sabuji Viraji was examined by Dr. Varvadia, PW2 on
24.3.1980 at about 12.15 a.m. He found one incised wound on
the left side of upper part of abdomen, another incised
wound on the left palm and the third incised wound on the
scalp. Sabuji Viraji was referred to medical officer, Deesa
for further treatment. He was transferred to Mehsana where
he expired on 30.3.1980. The post-morten was conducted by
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Dr. Solanki, PW4. He found the same 3 injuries on the body
of the victim which were ante-mortem. The cause of death
was acute peritonitis caused by the injuries. Thus, the
death of Sabuji Viraji was homicidal.
Amuji Narsangji was examined by Dr. Patel, PW5 of Deesa
on 24.3.1980 at 1.45 a.m. The condition of the patient was
precarious and he succumbed to his injuries on the table at
about 2 a.m. The post-mortem was also conducted by Dr.
Patel. Amuji Narsingji had sustained one stab wound 4 cm x
2 cm on the right side of epigastrium deep upto peritoneum
cavity. Intestinal loops were cut and were coming out from
the wound. There were 8 other incised wounds on his chest,
left elbow, forehead and perietal region. Internally the
superior mesenteric artery was cut off and peritoneum cavity
was full of blood and upper part of intestines were
completely out. It is this injury which had proved to be
fatal. All the injuries were ante- mortem.
Post-mortem on the dead body of Narsingji Hiraji was
conducted by Dr. Amin of Deesa, PW20. He found the patient
having suffered one stab wound on anterior abdominal wall
above umbilicus deep to peritoneum cavity. Peritoneum was
full of blood. This stab wound was sufficient in the
ordinary course of nature to cause death. The patient had
suffered two other incised wounds in jejunum with
perforations thereof. All the injuries were ante-mortem.
There are 5 stamped prosecution witnesses who had
sustained injuries. Gajaji Viraji, PW10, Takhaji Hiraji, PW
8 and Amuji Khumaji, PW 20 were examined by Dr. Varvadia,
PW2. Gajaji Viraji had sustained two incised wounds, one on
the upper part of chest and the other on the left index
finger. Takhaji Hiraji had suffered two incised wounds on
forehead and abdomen and one stab wound on the left loin and
one abrasion on left elbow. Amuji Khumaji was found to have
sustained defused swelling over the left forearm with
suspected fracture. However, x-ray examination conducted by
Dr. Sutaria PW7 did not confirm any bony injury suffered by
Amuji Khumaji.
Dr. Sutaria, PW7, had examined Viraji Devaji PW 15.
Viraji Devaji had diffused swelling over the left forearm
with fracture of left radius and one abrasion on the left
forearm. The former was a grievous injury while the latter
was a simple one. Gambhirji Narsangji was found to have
sustained an incised wound on the right side of the chest.
The patient was admitted for treatment indoors and
discharged in 11 days.
Thus, there were three persons who had met with
homicidal death and five persons injured on the side of the
prosecution party. The five injured were examined as
prosecution witnesses. The medico-legal examination of the
injured persons had taken place little after midnight on the
day of the incident itself. The duration of the injuries
sustained by all the injured persons as opined by the
doctors conducting medico-legal examinations, coincided with
the time of the incident.
Here itself it will be relevant to mention that some of
the accused persons had also sustained injuries and they
were medico- legally examined between midnight and 2.10
hours in the early morning of 24.3.1980. Kubersing
Chamansing, accused No.1, Maganji Duduji, accused No.2 and
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Gajraben Maganji, accused No.5 were examined by Dr.
Varavaida, PW2. Maganji Daduji was found to have sustained
in all twenty injuries. There were two incised wound on the
scalp, six contusions, five abrasions and two contused
lacerated wounds on his person spread over the neck right
arm and back. He also had a fracture of left index finger.
All the injuries except the two on scalp were caused by hard
and blunt weapon. Gajraben, accused No.5, had six
contusions, four contused lacerated wounds and one abrasion
on different parts of her body. Subaben alias Shivuba,
accused No.7 and Mungiben, accused No.6 were examined by Dr.
Keshavlal Patel, PW3. Subaben alias Shivuba had one
abrasion and one contusion on left hand. Mungiben was found
to have a weal mark on left shoulder joint and tenderness
over right and left knee joints. Thus the injuries
sustained by accused Nos. 1, 6 and 7 were simple, rather
minor injuries.
When PW10 reached the police station for lodging first
information report of the incident, Kubersing, accused No.1
was already present at the police station and he had also
lodged a report of the incident, Ex.69.
At the trial, there were 21 witnesses examined on behalf
of the prosecution. These include 5 eye witnesses of the@@
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incident namely, Gajaji Viraji PW 10, Takhaji Hiraji PW 8,@@
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Amuji Khumaji PW 11, Viraji Devaji, PW15 and Gambhirji
Narsangji PW9. . All these witnesses have themselves
suffered injuries and therefore their presence at the place
of the incident cannot be doubted. Apart from this there is
dying declaration of Sabuji, deceased, Ex.28, recorded by
Pravinchandra Gandhi, the Executive Magistrate at 10.20 p.m.
on 25.3.80 and yet another dying declaration Ex.60 recorded
by Constable Kesharam, PW16, a little before midnight. The
trial court minutely examined the testimony of all the eye
witnesses and found them worthy of reliance. The defence of
the accused persons was one of denial so far as the injuries
caused on the side of the prosecution are concerned.
However, they pleaded that the prosecution party was the
aggressor and had caused multiple injuries to five of the
accused persons and that too near the house of the accused
persons which is situated at a distance of about 200 feet
from the chowk. The learned Sessions Judge, having minutely
examined, marshalled and appreciated the entire evidence
available on record, found the prosecution version to be
truthful and negated the defence. It will be useful to sum
up briefly the findings arrived at by the learned Sessions
Judge :-
(i) There were blood stains and blood stained earth in
the chowk. The petromax at the scene of offence was lying
broken. According to the FIR, Ex-69, lodged by accused No.1
and produced by PW21, head constable, some incident had
taken place at the chowk and when the accused had left the
chowk and reached their home, then they were assaulted by
the prosecution party. This happening of the incident in
the chowk was substantiated by the circumstances and was
partly admitted by the defence also in their earliest
version of the incident i.e. the FIR lodged by one of the
accused persons. However, no trace of blood and no visible
signs of violence were found near the houses of the accused
persons and, therefore, it could be safely inferred that the
incident had taken place only in the chowk and not near the
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houses of the accused persons;
(ii) The prosecution witnesses and the three deceased on
the one hand and the accused persons on the other hand did
not have any previous enmity. They were residents of the
same village. The incident had erupted at the spur of the
moment. It was a case of sudden fight. It cannot be said
that the accused persons had any common intention to beat
anyone or that they had any common object for which they had
formed an unlawful assembly. Their presence in the chowk to
witness the show was quite natural and, therefore, the
question of convicting anyone with the aid of Section 34 or
Section 149 of the IPC does not arise;
(iii) Thakore Kubersing Chamansing, accused No.1, is
proved to have caused a dagger blow in the abdomen of Amuji
Narsingji which proved to be fatal. He is liable to be
convicted under Section 302 IPC.
(iv) Thakore Kubersing Chamansing, accused No.1 is
guilty of causing a dagger blow in the abdomen of Narsingji
Hiraji which blow proved to be fatal and therefore accused
No.1 is responsible for causing death of Narsingji Hiraji
and hence liable to be convicted under section 302 IPC on
this head of charge too.
(v) Thakore Magansing Dadusing, accused No.2 is
responsible for causing the incised wound to Sabuji Viraji
in his abdomen resulting in his death. He is liable to be
convicted under Section 302, IPC.
(vi) Thakore Magansing Dadusing Accused No.2 had caused
an incised wound 2x¼x¼ on right side of chest of
Gambhirji Narsangji, the only injury suffered by him. The
injury caused was by a dagger blow. However, the nature of
the injury was simple. Accused No.1 was, therefore, liable
to be convicted under Section 324 of IPC for causing simple
hurt by sharp weapon to Gambhirji.
(vii) Gajaji Viraji had sustained two injuries by sharp
cutting weapon at the hands of Kubersing, accused No.1. The@@
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injuries were simple in nature. The accused No.1 was,@@
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therefore, responsible for causing simple injuries to Gajaji
Viraji by means of sharp cutting weapon, an offence
punishable under Section 324 of the IPC.
(viii) Maganji, accused No.2 had given a knife blow to
Takhaji Hiraji, PW8. The injuries were simple in nature.@@
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Maganji, accused No.2, was, therefore, liable to be@@
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convicted under Section 324 of the IPC for causing simple
injuries by sharp weapon to Takhaji Hiraji (para 27).
(ix) The authorship of injuries caused to Amuji Khumaji
was not established and, therefore, none of the accused was
liable to be convicted for causing simple injuries by sharp
weapon to Amuji Khumaji. (para 28)
(x) Abrasion on the left forearm with diffused swelling
and fracture of the left radius on the person of Viraji@@
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Devaji were caused by blunt weapon like a stick by Thakore@@
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Gajrabai, accused No.5. She was, therefore, liable to be
convicted under Section 325 of the IPC.
(xi) As to accused Nos. 3, 4 and 6 to 8, the
prosecution case was that they had indulged into throwing
katars and sticks etc. However, the prosecution witnesses
were not consistent about the part played in the incident by
these accused persons. Their presence at the place of the
incident, in the facts and circumstances of the case, was
innocuous and, therefore, by their mere presence at the
place of the incident, they could not be held liable to
conviction alongwith other accused persons with the aid of
Section 34 or 149 of IPC.
The most important plea raised on behalf of the accused
persons before the trial court was that the prosecution
witnesses did not offer any explanation for the injuries
sustained by the accused persons. This showed, according to
the defence, that the genesis of the incident was being
concealed by the prosecution witnesses and the whole truth
was not placed before the court which lent support to the
defence version that the incident, in all probabilities,
took place in the manner and at the place suggested by the
defence, that is to say, the incident had taken place near
the houses of the accused persons where the persons
belonging to prosecution party were aggressor. The trial
court opined that in so far as the injuries sustained by
accused No.1 and 5 to 7 are concerned, they were all
injuries of very minor nature and their non-explanation did
not cause any infirmity in the prosecution case. Magansing
Dadusing, the accused No.2, had sustained several injuries
of which two were incised wound and one was a fracture on
the finger. The trial court held that several persons were
participating in the incident and several persons were
injured. In such a melee it was difficult to exactly locate
how the injuries on the person of the accused No.2 were
sustained. The accused No.2 himself does not suggest how
and in what manner, he sustained injuries. Katars and
sticks were thrown during the incident. In the peculiar
facts and circumstances of the case, mere non-explanation of
the injuries on the person of accused No.2 was not fatal to
the prosecution case. On the abovesaid findings, the trial
court convicted the three accused respondents as under:- (1)
The accused No.1 was convicted under Section 302 IPC for
committing murder of Amuji Narsangji and sentenced to
imprisonment for life;
(2) The accused No.1 was also convicted for committing
murder of Narsangji Hiraji and sentenced to imprisonment for
life.
Both the substantive sentences were directed to run
concurrently.
(3) Accused No.1 also convicted under Section 324 IPC
for voluntarily causing hurts to Gajaji Viraji and Gambhirji
Narsangji but no separate sentence was passed.
(4) Accused No.2 was convicted under Section 302 of the
IPC for committing murder of Sabuji Viraji and was sentenced
to imprisonment for life.
(5) The accused No.2 was also convicted under Section
324 of the IPC for causing hurt to Takhaji Hiraji but no
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separate sentence was passed.
(6) The accused No.5 was convicted under Section 325 of
the IPC for voluntarily causing grievous hurt to Viraji
Devaji. However, she was ordered to be released on
probation of good conduct on executing a bond of Rs.1,000/-
with one surety for a period of one year for keeping peace.
She was also ordered to pay compensation of Rs.500/- to
Viraji Devaji.
(7) The accused Nos. 1, 2 and 5 were acquitted of rest
of the charges.
(8) The accused Nos. 3, 4, 6, 7 and 8 were acquitted of
all the charges.
The three convicted accused persons preferred an appeal,
as already stated. The Division Bench of High Court, has in
its brief judgment, acquitted the accused persons mainly
influenced by two considerations. Firstly, the High Court
has felt that as there was only one incident which had taken
place in the chowk, the injured accused persons must have
sustained injuries during the course of the same incident
and as the prosecution witnesses did not explain how the
accused persons sustained injuries, it could be safely
inferred that the prosecution witnesses were suppressing the
genesis of the incident. The High Court has also observed
that looking to the numerous injuries sustained by the
accused persons it can reasonably be inferred that the
accused persons were in grave apprehension of death or
grievous injury being caused to the accused persons or to
anyone or more of them and hence they were entitled to use
weapons for their own protection. They cannot be said to
have exceeded their right of self-defence. Another reason
which has prevailed with the High Court is that though
several persons were present at the place of the incident
but the prosecution has not examined any independent
witness. The eye witnesses examined on behalf of the
prosecution are related with the deceased and the injured.
The combined effect of these two factors was that the
testimony of the witnesses could not be believed. As to the
dying declaration, the High Court has observed that the
dying declaration also does not explain the injuries on the
persons of the accused persons and coupled with the fact
that the version of the prosecution as given in the court
was being disbelieved, the dying declaration could not alone
form the basis of conviction. On these findings, the appeal
has been allowed and the respondents acquitted. The High
Court has not entered into appreciation of evidence. No
effort has been made by the High Court at marshalling the
evidence and assessing the intrinsic worth of the testimony
of the prosecution witnesses which, as we have already
noted, were the persons undoubtedly present at the place of
the incident having themselves suffered injuries.
The first question which arises for consideration is what
is the effect of non-explanation of injuries sustained by
the accused persons. In Rajendra Singh & Ors. Vs. State
of Bihar, (2000) 4 SCC 298, Ram Sunder Yadav & Ors. Vs.
State of Bihar, (1998) 7 SCC 365 and Vijayee Singh & Ors.
Vs. State of U.P., (1990) 3 SCC 190, all 3-Judges Bench
decisions, the view taken consistently is that it cannot be
held as a matter of law or invariably a rule that whenever
accused sustained an injury in the same occurrence, the
prosecution is obliged to explain the injury and on the
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failure of the prosecution to do so the prosecution case
should be disbelieved. Before non-explanation of the
injuries on the person of the accused persons by the
prosecution witnesses may affect the prosecution case, the
court has to be satisfied of the existence of two conditions
: (i) that the injury on the person of the accused was of a
serious nature; and (ii) that such injuries must have been
caused at the time of the occurrence in question.
Non-explanation of injuries assumes greater significance
when the evidence consists of interested or partisan
witnesses or where the defence gives a version which
competes in probability with that of the prosecution. Where
the evidence is clear cogent and credit worthy and where the
Court can distinguish the truth from falsehood the mere fact
that the injuries on the side of the accused persons are not
explained by the prosecution cannot by itself be a sole
basis to reject the testimony of the prosecution witnesses
and consequently the whole of the prosecution case.
The High Court was therefore not right in overthrowing
the entire prosecution case for non-explanation of the
injuries sustained by the accused persons. The High Court
ought to have made an effort at searching out the truth on
the material available on record as also to find out how
much of the prosecution case was proved beyond reasonable
doubt and was worthy of being accepted as truthful.
So is the case with the criticism levelled by the High
Court on the prosecution case finding fault therewith for@@
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non-examination of independent witnesses. It is true that@@
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if a material witness, which would unfold the genesis of the
incident or an essential part of the prosecution case, not
convincingly brought to fore otherwise, or where there is a
gap or infirmity in the prosecution case which could have
been supplied or made good by examining a witness which
though available is not examined, the prosecution case can
be termed as suffering from a deficiency and withholding of
such a material witness would oblige the Court to draw an
adverse inference against the prosecution by holding that if
the witness would have been examined it would not have
supported the prosecution case. On the other hand if
already overwhelming evidence is available and examination
of other witnesses would only be a repetition or duplication
of the evidence already adduced, non-examination of such
other witnesses may not be material. In such a case the
Court ought to scrutinise the worth of the evidence adduced.
The court of facts must ask itself __ whether in the facts
and circumstances of the case, it was necessary to examine
such other witness, and if so, whether such witness was
available to be examined and yet was being withheld from the
court. If the answer be positive then only a question of
drawing an adverse inference may arise. If the witnesses
already examined are reliable and the testimony coming from
their mouth is unimpeachable the Court can safely act upon
it uninfluenced by the factum of non-examination of other
witnesses. In the present case we find that there are at
least 5 witnesses whose presence at the place of the
incident and whose having seen the incident cannot be
doubted at all. It is not even suggested by the defence
that they were not present at the place of the incident and
did not participate therein. The injuries sustained by
these witnesses are not just minor and certainly not
self-inflicted. None of the witnesses had a previous enmity
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with any of the accused persons and there is apparently no
reason why they would tell a lie. The genesis of the
incident is brought out by these witnesses. In fact, the
presence of the prosecution party and the accused persons in
the chowk of the village is not disputed. How the vanity of
Thakores was hurt leading into a heated verbal exchange is
also not in dispute. Then followed the assault. If the
place of the incident was the chowk then it was a sudden and
not pre-meditated fight between the two parties. If the
accused persons had reached their houses and the members of
the prosecution party had followed them and opened the
assault near the house of the accused persons then it could
probably be held to be a case of self-defence of the accused
persons in which case non- explanation of the injuries
sustained by the accused persons would have assumed
significance. The learned Sessions Judge has on
appreciation of oral and circumstantial evidence inferred
that the place of the incident was the chowk and not a place
near the houses of the accused persons. Nothing more could
have been revealed by other village people or the party of
tight rope dance performers. The evidence available on
record shows and that appears to be very natural, that as
soon as the melee ensued all the village people and tight
rope dance performers took to their heels. They could not
have seen the entire incident. The learned Sessions Judge
has minutely scrutinised the statements of all the
eye-witnesses and found them consistent and reliable. The
High Court made no effort at scrutinising and analysing the
ocular testimony so as to doubt, if at all, the correctness
of the several findings arrived at by the Sessions Court.
With the assistance of the learned counsel for the parties
we have gone through the evidence adduced and on our
independent appreciation we find the eye-witnesses
consistent and reliable in their narration of the incident.
In our opinion non-examination of other witnesses does not
cast any infirmity in the prosecution case.
Thus, we are of the opinion that the two grounds on
which the High Court has reversed the judgment of the
Sessions Court were irrelevant and could not have been
relevant for such reversal. Justice has been made sterile
by exaggerated adherence to rule of proof. Benefit of doubt
must always be reasonable and not fenciful.
As we have already stated, we have ourselves minutely
scrutinised the evidence available on record. We do not
find any infirmity in the findings arrived at by the learned
Sessions Judge fixing the liability on the accused persons
by pointing out the specific overt act attributed to each of
the accused persons. However, on the determination of the
nature of offence committed by one of the accused persons,
we are at variance with the finding of the learned Sessions
Judge which we will state a little later. We do not deem it
necessary to re-state in very many details our own findings
as to the exact role played by the three accused respondents
inasmuch as they are the same as have been recorded by the
learned Sessions Judge. However, briefly we would indicate
what we have found from the appreciation of evidence.
Kubersing, accused no.1 dealt a blow by dagger on the
abdomen of Amuji Narsingji. This injury proved fatal. It
was sufficient in the ordinary course of nature to cause.
All the witnesses have attributed this fatal injury on the
person of Amuji Narsingji to Kubersing accused no.1. Thus
he has been rightly convicted of an offence punishable under
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Section 302 IPC for causing death of Narsingji Hiraji.
Narsingji Hiraji had sustained only one stab wound in
the abdomen. The weapon had penetrated deep cutting the
intestines which shows the force by which the blow was
dealt. The author of this injury is Kubersing accused no.1
as deposed to by all the witnesses. This injury was also
sufficient in the ordinary course of nature to cause death.
Kubersing accused no.1 is therefore guilty of offence
punishable under Section 302 IPC also for causing the death
of Narsingji Hiraji.
Dr. Vervadia PW2, who examined Sabuji Viraji on
24.3.1980 at 12.15 a.m. found him to have sustained 3
injuries of which the incised wound on left side of upper
part of abdomen was 1x¼x¼. This injury is attributed to
Magansing, accused No.2 by all the prosecution witnesses.
They are consistent on this point and not shaken in cross-
examination. The dying declaration, Ex.28, made by the
deceased Sabuji and recorded by Magistrate also attributes
authorship of this injury to Magansing, accused No.2.
However, what has to be really determined is the nature of
this injury. In his statement Dr. Vervadia has not stated
the nature of the injury caused. Sabuji Viraji died on
30.3.1980. Post-mortem on his dead body was conducted on
31.3.1980 by Dr. Solanki PW4. Dr. Solanki, PW4, conducted
post mortem on the dead body of Sabuji on 31.3.80 at 10.20
AM. He found the wound stitched. On opening he found
internally __ Large intestine sutured wound 2.5 cm on
splenic flexure gappling containing faecal matter;
surrounding area of wound was red in colour; opening was
found absent. The cause of death in the opinion of Dr.
Solanki was shock due to acute peritonitis. None of the two
doctors has deposed if the injury was grievous or sufficient
in the ordinary course of nature to cause death or that the
injury was so imminently dangerous that it must have in all
probability resulted in death or was likely to cause death.
The exact cause of peritonitis is not known. That
negligence to treat the wound could be a contributing factor
cannot be ruled out. In such state of medical evidence it
will not be proper to draw an inference against Magansing
accused no.2 of his having committed murder of Sabusing
Viraji punishable under Section 302 of the IPC. The injury
dealt by him by a sharp weapon had cut into the intestine.
Though, an intention to cause death or such bodily injury as
is likely to cause death cannot be attributed to him,
knowledge is attributable to accused No.2 that an injury by
knife into the abdomen was likely to cause death. As it was
a case of sudden fight, the act of this accused would amount
to culpable homicide not amounting to murder punishable
under part II of Section 304 of IPC. The other injuries on
the person of Sabuji are not attributed to accused No.2,
Magansing.
Insofar as Gajrabai Magansing the accused no.5 is
concerned her causing a grievous hurt to Viraji Devaji by a
stick is proved beyond reasonable doubt. Viraji Devajis
own statement to this effect is fully corroborated by other
eye witnesses and medical evidence. In our opinion, she was
rightly convicted by the learned Sessions Judge under
Section 325 of the IPC.
We do not deem it necessary to further discuss the
evidence and record our findings as to offences punishable
under Section 324 of the IPC committed by accused no.1 and
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accused no.2 for causing injuries by sharp weapon to other
prosecution witnesses inasmuch as the learned Sessions Judge
having recorded a finding of guilt on those counts has
chosen not to pass any sentence of imprisonment and
therefore such exercise would be futile at this stage, also
in view of the nature of sentences which is being passed on
the accused respondents.
For the foregoing reasons the appeals are partly
allowed. The judgment of the High Court, under appeal, is
set aside. The finding of guilty as recorded by the trial
court along with the sentence passed thereon on the
respondent, Kubersing Chamansing (accused no.1) are
restored, that is, he is held guilty of offences punishable
under Section 302 IPC on two heads respectively for causing
the death of Narsingji Hiraji and Amuji Narsingji. He is
sentenced to imprisonment for life on both the counts. Both
the sentences shall run concurrenly. The acquittal of
Magansing Dadusing, accused no.2 under Section 302 IPC is
maintained. However, he is held guilty of an offence
punishable under Section 304 Part II IPC for causing
culpable homicide not amounting to murder of Sabusing Viraji
and he is sentenced to undergo rigorous imprisonment for a
period of five years with a fine of Rs.2,000/- in default of
payment whereof he shall undergo further imprisonment for a
period of six months. The amount of fine, if realised,
shall be paid as compensation to the heirs of Late Sabuji.
The acquittal of Gajrabai Magansing accused no.5 under
Section 325 is set aside and instead her conviction along
with sentence as passed by the trial court is restored. The
bail bonds of Kubersing Chamansing and Magansing Dadusing
are hereby cancelled. They shall surrender and be taken
into custody for serving out the sentences as passed
hereinabove. Gajrabai the respondent-accused no.5 shall be
called upon to execute the bond and furnish one surety as
ordered by the trial court. The amount of Rs.500/- shall be
recovered from her as fine and paid by way of compensation
to Viraji Devaji as ordered by the trial court. The appeals
stand disposed of accordingly.