Kala Naga and Others vs Saurashtra State

This is a criminal appeal against the orders of convictions and sentences passed by the Additional Sessions Judge at Junagadh against the Appellants for offence u/s 302, read with Section 34. Indian Penal Code corresponding to Section 316(1) read with Section 27, Saurashtra Penal Code. All the Appellants accused have been sentenced to suffer rigorous imprisonment for life.

Mr. T.U. Mehta appeared for the Appellants, while Advocate-General Mr. C.N. Shah opposed him.

Mr. Mehta contended that the three pieces of evidence relied upon by the Court below were unsatisfactory each by itself. Again it is illegal to hold that one piece of evidence corroborates the other two pieces. He also argued that the dying declarations are not duly proved the extra judicial confessions have not been proved in exact words used and finally that the confessional statements are not voluntary and further are retracted.

Coming to details, the dying declarations of the deceased Nonghan are duly proved. There is no reason to disbelieve witnesses Hada and Amratlal on this point Hada is the first man to arrive on the spot and neither he nor Amratlal has been shaken in cross-examination. The first information report read carefully and reasonably does support the dying declarations made by the deceased. So, even if we leave alone other witnesses who depose to the effect that the deceased has made a declaration before them, there is plenty of reliable evidence to prove that the deceased Nonghan immediately after the occurrence stated the names of all the three accused persons as his assailants. The dying declarations made before Hada and Amratlal are, therefore, quite reliable and are unimpeachable in the eye of law.

The same can be said about the extra-judicial confessions of course, these confessions are not entitled to the weight to which judicial confessions are entitled, yet there is no reason to brush them aside. There has been difference in exact words used before the different persons, yet substantially they corroborate one another, and there is no reason why they should be brushed aside of course, it would have been better, if Chhagan had been examined yet a lacuna does not seriously affect the weight of this evidence. The confessions are made in the presence of as many as three witnesses by accused No. 1 and in the presence of one witness by accused No. 2. There is no reason to doubt the testimony of witnesses concerned on this behalf and we think that the extra-judicial confessions can be considered as reliable legal piece of evidence along with other evidence.

Finally as regards judicial confessions, they have been made by accused Nos. 1 and 2. The accused persons were not detained for long in police custody and hence spent enough time in the custody of the Magistrate before their confessions were recorded. A mark of injury on the body of one of the accused persons is properly explained by the prosecution. The confessional statements corroborate one another. They are duly recorded according to law and there is no reason why we should not rely upon them.

Thus, all this evidence of dying declarations of the deceased, the extra-judicial confessions by the accused persons and the confessional statements of two accused taken together definitely establishes the guilt of all the three accused.

Mr. Mehta strenuously argued that each piece of evidence being a weak piece of evidence can not corroborate the other pieces. This rule is not proper. It has a scope only in cases where one tainted piece of evidence is used to corroborate the other tainted piece. It cannot be used where each piece of evidence is legal piece of evidence and is duly proved. So all the three pieces of evidence can be considered as having cumulative effect. So Mr. Metha''s arguments in this connection cannot be accepted

Now coming to the nature of the offence and the common intention, it is certain that there was a grudge between accused persons on one hand and the deceased, Nonghan on the other. From the number and nature of the injuries, which go about 90, it is clear that there were as many as 14 fractures and 7 injuries likely to bring about death. There were several incised wounds, several contused wounds and some abrasions; the incisions must be at least 3 to 3 and the intention must be a common one. It is a case of ruthless and cruel be labouring, and the common intention can not be any other intention but that of causing death. So, there is no error in holding that ail the three accused persons entertained the common intention of committing Nonghan''s murder. Thus, the argument that the common intention may be to cause grievous hurt can not stand. A suggestion to that effect in the judgment of the Court below is also unsustainable and is weakened by the statement of the Court a few lines that follow.

The appeal is disallowed and the orders of convictions and sentences passed against the accused Appellants are confirmed.