Ajitshinh Andubha Parmal and Another and Chandrasinh @ Chandubha Lalubha vs State of Gujarat

Shivaraj V. Patil, J.—These two appeals arises out of a common judgment,hence they are being disposed of together. Brieflystated, the facts leading to filing of these appealsare that on 14.5.1987 in the morning when Abhesinh, theyounger brother of Gajubha (the deceased), was cleaningthe 'Ultra' ( a place of tethering cattle), there wasaltercation between him and accused no. 4 and theaccused No.4 dealt a knife blow to him for which theF.I.R. (Exbt. 55) was lodged by Abhesinh at Muli policeStation. Mayaba and Manubha are the mother and fatherof the deceased Gajubha respectively. Sahdevsinh,Abhesinh and Ranubha are his brothers and Harshabha ishis sister. Accused No.1 is the brother of accusedNo.3 and accused No.2 is the brother of accused No.4; and they are cousins among themselves.

The prosecution case as emerged during the trialis that at about 10.00 A.M. when Gajubha was rushingtowards his mother Mayaba to rescue her, who was beingassaulted with sticks by accused Nos. 1 and 3 and hissister Harshabha was pushed when she tried tointervene, the accused No.2 emerged from the lane andinflicted knife blows on the chest and abdomen of thedeceased. When he started running, accused No.2chased the deceased Gaujubha and gave another knifeblow. Even thereafter, the three accused the accusedNos. 1 and 3 chased and gave blows with sticks on hishead. Deceased Gajubha succumbed to his injuriesduring treatment on 18.5.1987. All the four accusedwere tried for offences under Sections 452, 302 and 323read with Section 34 IPC and also u/s 135 ofthe Bombay Police Act.The Additional Sessions Judge,after trial and on consideration of evidence, acquittedaccused Nos. 1 3 and 4 giving benefit of doubt andconvicted the accused No.2 alone for offence underSection 302 IPC holding him guilty for the saidoffence. The accused No.2 preferred Criminal AppealNo. 652/90 to the High Court and the State challengedthe order of acquittal in respect of accused Nos. 1 and3 in Criminal Appeal No. 790/90. No appeal waspreferred against the order of acquittal of accused No. 4. On appeal, the High Court by the impugned judgmentand order confirmed the conviction of the accused No.2dismissing the appeal filed by him and reversed theorder of the acquittal of accused Nos. 1 and 3 in theappeal filed by the State and convicted both of themfor offence punishable u/s 302 read withSection 34 IPC. Hence, the Criminal Appeal No.868/2001 by accused No. 1 and 3 and Criminal Appeal No.1207/2001 by the accused No.2.

According to the prosecution, on 14.5.1987 at 7.30A.M. accused No.4 quarrelled with Abhesinh (youngerbrother of the deceased) when he was cleaning Utaranear his house; father of the accused No. 2 caughtAbhesinh's hands from the back and accused No. 2 dealtknife blow to him, on that account F.I.R. (Exbt. 55)was lodged; on the same day at about 10.00 A.M.,accused Nos. 1, 3 and 4 barged into the house ofGajuba and started beating his mother Mayaba withsticks and dragged her outside the house towards backof Sulabha's house. At that time, Ranubha (Pw-1), hissister harshabha (PW-6) were present at the spot.Ronubha rushed to Utara to call Gajubha (the deceased).Gajubha rushed towards his house 200 ft. from Ultra.When he came near the spot behind Surabha's house, hesaw his mother being beaten; he shouted at the accused;at that time accused No.2 emerged from lane adjoiningSurabha's house; gave to knife blows, one on chest andanother on abdomen or Gajubha; Gajubha started runningback towards Utara; accused Nos. 1 and 3 left beatingMayaba (PW-5) and started chasing Gajubha with lathis;while Gajubha was running, accused No. 2 gave anotherknife blow; the accused still continued to chaseGajubha who fell near Utara where accused Nos. 1 and 3gave him lathi blows on head; Ranubha went for the helpof Tejubha who witnessed the incident from the distanceof 50 fit. He got motor-cycle and they carried Gajubhato Civil Hospital, from there he was taken to hospitalat Surenderangar. Gajubha was examined by Dr. Vadehraat 10.40 A.M.; Gajubha's statement was recorded bypolice at 1.30 P.M. which became dying declaration No.1; statement of Gajubha to Executive Magistraterecorded between 3.10 P.M. 3.35 P.M. on 14.5.1987was dying declaration No.2, Gajubha died on 18.5.1987.the trial court, looking to the evidence of Ranubha,Puriba, Harshabha and Mayaba held that the incident athome at 10.A.M. on 14.5.1987 was not proved because ofmaterial contradictions and omissions, which went tothe root of the case. However, the trial court did notbelieve that someone else assaulted deceased Gajubha byknife and that accused No.2 was falsely involved. Thetrial court noticed that in cross-examination PW-1Ranubha stated that they had no ill-feelings with theaccused party till the date he was examined in thecourt and he did not know why accused Nos. 1 and 3 beathis mother. He has also not stated that accused No.1and 3 came with sticks and assaulted his mother; thetrial court observed that the conduct of this witnessdoes not inspire confidence inasmuch as on the date ofthe incident, he was 16 years of age approximately andhe did not intervene when they were beating his mother;if he was really present at the time of incident hewould have certainly intervened; PW-5 Mayaba, mother ofthe ceased stated that she was beaten by sticks onshoulder, back and waist; she also admitted that shefelt giddiness and had fallen on the wall of Surabha'sKhadki; lost consciousness and gained consciousnessthereafter at Surendranagar hospital; she was silentabout the motive of the accused to beat her; shefurther admitted that her son Ranubha (PW-1) and herdaughter harshabha (PW-6) did not resist the attack byaccused 1 and 3; PW-2, Puriba does not speak aboutstick blows; she did not state before the police thataccused Nos. 1 and 3 assaulted the deceased withsticks; Parsanabha (PW-7) deposed only against accusedNo. 2 (Chandrasinh) and did not say anything againstaccused Nos. 1 and 3; when questioned u/s 162Cr.P.C. she deposed that she had not stated thataccused Nos. 1 and 3 were beating Mayaba and Gajubhacame to save her; even in the dying declarationof Gajubha he is silent about the incident at home and hisbrother Ranubha coming to call him and his rushingtowards his mother; Mayaba's version about stick blowson chest waist and back is not corroborated by themedical evidence; because Mayaba's medical certificate(Exbt. 32) does not show any injuries on waist, chestand back and there was a confusion on either side ofscalp; the defence version that on seeing her son beingbeaten, she herself dashed her head on the wall, couldnot be ruled out; thus looking to the evidence of thesewitnesses and having regard to the materialcontradictions and admissions which went to the root ofthe case, the trial court held that incident as allegedby the prosecution at home at 10.00 A.M. on 14.5.1987was not proved.

The trial court also observed that the deceasedGajubha in his dying declaration did not say anythingabout the incident at home and that his brother Ranubhawent to call him. Investigating Officer, mavalsinhShivubha in his evidence admitted that Mayaba did notstate that the accused 1 and 3 gave stick blows todeceased Gajubha; Harshabha has not stated before himthat Bharatsinh went home and brought sticks; he alsostated that accused Nos. 1 and 3 appeared before policeon their own account; he admitted that before thearrest of the accused, their house were searched butnothing was found; the trial court also observed if theincident as claimed had taken place at 10.00 A.M. atthe house of Mayaba and beating her and dragging her,that could have certainly found place in the dyingdeclaration but it is silent on the point; PW-11, Dr.Devjibhai who examined Gajubha at 10.00 A.M. on14.5.1987 noticed four incised wounds; he opined thatchest injury (injury No.1) was serious; injury Nos. 1to 4 could be caused by knife; in the cross-examination, he stated that he examined the whole bodyof Gajubha and gave treatment to him for two hours andhe did not find any injury caused with blunt objects;the learned Sessions Judge rejected the case of theprosecution as to participation of all the accused andto apply Section 34 IPC having regard to the evidenceplaced on record while holding the accused No.2 guiltyof offence u/s 302 IPC.

The learned senior counsel for the appellants inCriminal Appeal No. 868/2001 urged that the High Courtcommitted grave jurisdictional error in reversing theorder of acquittal as regards the appellants; thelearned Sessions Judge on a careful and objectiveconsideration of the entire evidence found that theprosecution failed to prove the incident alleged tohave taken place at the house of Mahubha at 10.00 A.M.on 14.5.1987 and that incident of beating Mayaba by theappellants was not established; the High Court hasdevoted substantial portion of the judgment to considerwhether the court can look into the police statement ofwitnesses to ascertain whether the contradiction oromission brought on record was really there or not; inthe light of evidence recorded during trial and in viewof the contradictions and omissions brought about, asis evident from the statement of Investigating Officer,the High Court was not at all right and justified inlooking to the statements of witnesses made to police;as to the use of sticks by the appellants and theirassaulting the deceased by sticks, there were seriousomission as pointed by the trial court which the HighCourt did not properly appreciate; the High Courtseriously erred in convicting the appellants applyingSection 34 IPC; even if High Court could take adifferent view that itself was not sufficient toreverse the order of acquittal unless the findingrecorded by the trial court was untenable or unjust; itcould not be said that the reasons recorded by thetrail court were either perverse or not based on properappreciation of evidence. The learned senior counselfor the appellant in Criminal Appeal No. 1207/2001fairly submitted that in view of the concurrentfindings of conviction recorded against the appellant(accused No.2), he was not in a position to challengethe same. However, he argued that the accused No.2could be held guilty only for an offence under Section304 Part II IPC.

Per contra, the learned counsel for the State madesubmissions supporting the impugned judgment and orderof the High Court.

Having carefully considered the submissions madeby the learned counsel for the parties, in the light ofthe evidence placed on record, we have no hesitation inconfirming the order of conviction and sentence passedagainst appellant (accused No.2) in Criminal Appeal No.1207/2001. The case of the prosecution as far as theaccused No. 2 is concerned, has been consistent andfully supported by the prosecution witnesses. Thetrial court and the High Court have concurrently foundhim guilty for an offence u/s 302 IPC. Thelearned counsel for the accused No.2, in our opinion,was rightly in not challenging the order of conviction.We are finding it difficult to accept his submissionthat the accused No.2 could not be held guilty foroffence u/s 302 IPC in the light of specificand clear evidence that he gave first two knife blowson the vital parts of the body causing serious chasing him.We are unable to accept that the offence committed byhim could be one u/s 304 Part II. The Highcourt was right and justified in confirming hisconviction u/s 302 IPC and we do not have anygood reason to differ with the same.

As regards the appellants in Criminal Appeal No.868/2001 (accused Nos. 1 and 3), the trial court on adetailed analysis and objective assessment of evidenceof eye-witnesses concluded that prosecution failed toestablished the incident as alleged to have taken placeat 10.00 A.M. on 14.5.1987 at the house of the deceasedof beating Mayaba and dragging her and Ranubha andrushing to call the deceased. There werematerial omissions and contradictions in the statements of these eye-witnesseswho are related to the deceased as to the assaulting of the deceased by accused Nos. 1 and 3 withsticks and further medical evidence belied the versionof Mayaba of the accused Nos. 1 and 3 beating her withsticks as noticed by the trial court. In our opinion,the trial court was also right in not applying Section34 IPC to convict the accused Nos. 1 and 3. Firstly,it was not proved beyond reasonable doubt that theaccused Nos. 1 and 3 assaulted the deceased withsticks; even otherwise there is no evidence to show anypre-plan or common intention on the part of the accusedNos. 1 and 3 to commit the murder of the deceased. It is not the case that all the accused went together orwaiting together in a common place for the arrival ofthe deceased, further it is also in the evidence thataccused No.2 emerged suddenly from a lane andassaulted the deceased with knife. Under the circumstances, we find it difficult to accept that theaccused Nos. 1 and 3 could be held guilty for offenceunder Section 302 read with Section 34 IPC. In our view, the High Court committed serious error inreversing the order of acquittal merely because itcould take a different view. It is not possible to sayhaving regard to the evidence on record that thereasons recorded and findings arrived at by the trialcourt to acquit the accused Nos. 1 and 3 wereunjustified or untenable. The High Court also failedto dislodge all the reasons given by the trial courtfor acquitting them.

Under these circumstances, the impugned judgmentand order of the High Court convicting and sentencingthe accused Nos. 1 and 3 reversing the order ofacquittal cannot be sustained. Hence for the reasonsstated hereinabove, the Criminal Appeal No. 868/2001 isallowed. The impugned judgment and order of the HighCourt convicting the appellants (accused No.1 and 3) inCriminal Appeal No. 868/2001 is set aside and the orderof acquittal recorded by the trial court in theirfavour is restored. Their bail bonds shall standdischarged. The Criminal Appeal No. 1207/2001 isdismissed confirming the impugned judgment and order sofar it relates to accused No. 2 (Chandrasinh).