Rafik Yusuf Sherani vs State of Gujarat

@

S.G. Shah, J.—Appellants have been convicted by learned Addl. Sessions Judge of Dahod vide common judgment dated 23.7.2010 in two sessions cases being Sessions Case No. 194 of 2007 and Sessions Case No. 9 of 2008. Since all the appellants have been involved in the same incident in Sessions Case No. 194 of 2007, appellants No. 1 and 2 were accused and at that relevant time, appellant No. 3 was disclosed as absconder and he was arrested only on 25.10.2007 i.e. after filing of chargesheet in Sessions Case No. 194 of 2007. Therefore, he was tried as a sole accused in Sessions Case No. 9 of 2008. However, since both the sessions cases are arising out of the same FIR being Dahod police station I - C.R. No. 97 of 2007, both the sessions cases were consolidated by the learned Sessions Judge and only one set of evidence has been recorded in Sessions Case No. 194 of 2007. Thereby, all the accused were tried together and convicted by common impugned judgment u/ss. 307, 333 and 114 of the IPC.

So far as conviction is concerned, appellants No. 1 and 2 have been convicted and awarded sentence of six years R.I with fine of Rs. 10000/- and additional R.I of six months in default of payment of such fine. Whereas, for the same offence, appellant No. 3 has been convicted and awarded sentence of R.I for 8 years with fine of Rs. 15000/- and additional R.I for six months in default of payment of fine.

Though appellants No. 1 and 2 and appellant No. 3 were tried under the head of different sessions case numbers and since the impugned judgment and order is common, they all have preferred this appeal jointly by all of them, wherein appellants No. 1 and 2 are original accused in Sessions Case No. 194 of 2007, whereas appellant No. 3 is accused in Sessions Case No. 9 of 2008.

So far as charges against all the accused are concerned, it can be briefly summarised by recording the gist of the complaint wherein it is stated that on 14.8.2007, at about 11 p.m., when complainant and one unarmed police head-constable Gokalbhai Somabhai Khant were on their duty of night patrolling in Dahod town within Dahod town police station, he was present near Vivekanand Chowk on station road of the town where some programme was going on. Due to such cultural programme viz. ''Kavi Sammelan'' (convention of poets to readout their poetries), several higher officers, including complainant were on duty of patrolling - ''bandobast'' and when he was directed by his superior officer to have a round of Gandhi Chowk and Padav area, complainant with police constable Kanubhai Bathubhai and police constable Maheshbhai Ukarbhai had started from Baghini Samaj three roads to Yadgar Chowk and reached Gandhi Chowk. At three road junction of Gandhi Chowk, they found three persons sitting on verandah of a shop on the road and he noticed that when these people have seen the police vehicle of the complainant, they threw some articles on road and, hence, complainant had stopped the police vehicle near them and got down of the vehicle, he reached to those people and found that one iron-cross was lying near the legs of such persons and it has one flat end, which is generally used to open the lock of closed house by breaking its handle and breaking the grill of the windows and popularly known as "Khatariyu" (an iron rod used to break open the door of a house or shop for housebreaking). Thereupon, complainant has asked them about their identity and the place of residence etc. However, at such point of time, one person has taken out a knife from his pocket and jumped from the shop on police constable Kanubhai Bathubhai and gave knife blow on left side of his chest. Thereupon, Kanubhai has fallen down on the road and that person, who had given blow has tried to give another blow by shouting in Hindi that we will kill you i.e. "Maar Daloonga". However, another police constable Maheshbhai has caught him before he gave second blow to Kanubhai, but said person was capable to get rid of Gokulbhai and once he was able to release his hand with knife from Gokulbhai, he has stabbed Maheshbhai on left side of his stomach, at that point of time, Gokulbhai has given a stick blow on the hand of such person, who was holding knife. Thereupon, knife fell down from his hand, but he was able to run away from the place and absconded towards Court road and could not be caught though several people or public, which were gathered at that place had tried to catch him. Whereas, two other persons, who were present with such culprit were caught by the complainant and driver of his jeep, namely, police constable Krushnakumar Chaturbhai with some people from public and they were taken in a police vehicle. Thereafter, message was given to other police officers and injured police constables Kanubhai and Maheshbhai were taken to the clinic or Dr. Bharpoda and admitted in his hospital. On inquiry, two persons who were caught with the main culprit have disclosed their names as Imran Mehmood Ali Musalman and Rafiq Yusuf Sherani, who are residing in Madhya Pradesh and on inquiry, they have revealed and disclosed the name of third person, who was able to abscond from the place as Ravi Ramvir Pandit, who is resident of M.P. So prima facie, the basic allegation is against Ravibhai Ramvir Pandit, who is also known as Kamalkant Ramvir Kashyap and, therefore, in record his name is disclosed as Ravi @ Kamalkant Ramvir Kashyap. For the sake of clarity, it is made clear that Rafiq and Imran are accused and appellants No. 1 and 2 herein, whereas, Ravi @ Kamalkant Ramvir Kashyap is accused as well as appellant No. 3 herein.

Based upon the FIR as aforesaid, investigating officer has investigated the incident by recording statement of different witnesses as well as by getting medical certificate from the hospital where injured had been attended and treated. On completion of investigation, when sufficient evidence was found against accused, initially, a chargesheet against accused Nos. 1 and 2 was filed on 19.10.2007 and when appellant No. 1 was arrested on 25.10.2007, a supplementary chargesheet was filed against him.

I have perused the submission by both the learned advocates as well as record and proceeding and paper-book.

The appellants have adopted the arguments of each other wherein it is mainly submitted that irrespective of injuries and other allegations, practically, there is no allegation or cogent evidence against the appellants No. 1 and 2, but, only because they were found at the place of incident, they are joined as an accused, as an abetter and though there is no iota of evidence so as to confirm their involvement in the alleged incident, they are unnecessarily being convicted without any evidence being recorded against them by any of the witness.

However, the basic evidence is mainly against appellant No. 3.

If we peruse the impugned judgment, the Sessions Court has properly described the basic story of instant, proceedings before it and framed proper issues for its determination and after discussing the evidence on record as scrutinized by it, assigned proper reasons for arriving at a conclusion to convict the accused as aforesaid. Therefore, so far as procedure of trial and list of evidence are not reproduced herein. Even paper-book is also containing all the materials on hand and, therefore, its reproduction would be unnecessarily burden herein and, hence, it is avoided. Thereby, if we come to the submission by the appellants and relevant evidence, the sum and substance of the appellants are mainly to the effect that it was a mere accident when appellants have frightened by the inquiry by the complainant and other policemen about their presence at the place whereby they tried to jump from the shop and just to run away from the place, but, while doing so, complainant has been injured by some sharp instrument. However, they have nothing to do either with such instrument or they have never attacked the complainant and his colleague and, therefore, conviction u/s. 307 is not warranted, more particularly when injuries to the victim was of simple nature and when Doctor has categorically confirmed that it was not enough for causing death, even if no treatment is taken and that it would otherwise be healed within three weeks. So far as appellants No. 1 and 2 are concerned, it is their specific submission that there is no allegation regarding assault by them or presence of any weapon or instrument of any nature with them and it was only because they were present at the place of incident, when appellant No. 3 has run away from the spot of incident because of apprehension of being harassed by the police, they are quite innocent and they have nothing to do either with appellant No. 3 or with the incident. Therefore, their conviction is absolutely unwarranted.

On perusal of entire evidence on record, which is discussed herein after, it becomes clear that there are two set of facts i.e. one against appellants No. 1 and 2 only and other against appellant No. 3. It may be the reason that pending appeal, appellants No. 1 and 2 have been released on bail by order dated 14.10.2010, whereas, appellant No. 3 has been refused the bail.

The prosecution witness No. 1 - Maheshkumar Babulal Chauhan at Exh.6 is panch witness of panchnama of iron rod collected by the complainant from the place of incident and clothes of the victim. He supports the recovery of such items and perused the panchnama at Exhs.7 and 9 with slip at Exhs.8 and 10. However, such articles were not recovered from the possession of the accused and, therefore, though such evidence confirms presence of instrument in question and clothes of victim with bloodstains, that alone is not enough to convict the accused unless it is proved that they have committed the crime.

The appellants are heavily relying upon the deposition of PW-2 Dr. Yashwant Bharpora, Medical Officer of Anita Surgical Hospital of Dahod at Exh.11. The Doctor has categorically deposed before the Court that victim Maheshbhai Ukarbhai Rajput was brought before him at 00.45 a.m. On 15.08.2007, who has given a history of injury as blow by knife on left side of stomach and on examination he found 2 x 1.5 x 3 cm deep wound having sharp margin with evidence of fresh bleeding, and on sonography being done, he found internal injury and bleeding with contusion on lever. He admits that such injury is possible by sharp cutting instrument and it is of serious nature. He further states that in absence of any complication, such injury may be recovered within three weeks. He proved the certificate issued by him on 24.8.2007 describing such injuries and relevant details at Exh.12. Doctor has also deposed about injuries of other victim, namely, Kanubhai Bathubhai Chauhan, but confirmed that he has got simple injuries by sharp cutting instrument on chest of the victim, which is 2 cm x 2 cm wound with sharp margin with evidence of fresh bleeding, but having normal result of X-ray chest. Doctor has proved certificate of injury of Kanubhai at Exh.13. Doctor has also confirmed that injuries to both such victims can be possible by muddamal article No. 1, which was proved on record by PW-1.

However, the crucial point or issue of entire appeal rests in last line of examination-in-chief and cross-examination of such witness, which obliges the Court to observe that though the filing of appeal is basic right of any convict, burden of appellate Court increases because of not recording of such deposition properly and in half-hearted manner without recording evidence with clarity at the time of recording actual evidence of crucial witnesses. The scrutiny and discussion of the evidence of Doctor herein above makes it clear that Doctor has examined two victims and deposed about injuries of both of them. Therefore, when Doctor says that injuries as recorded by him for both the victims can be possible by muddamal article No. 1, which is recovered from the place of incident. Immediately after such line, wherein there is a reference of second victim Kanubhai, who was having simple injuries, if statement in deposition is recorded, referring a singular patient, stating that if immediate treatment is provided to such victim, there is no possibility of death of such victim or injuries were not of such a nature, which may result into death of victim, if immediate treatment is provided; we have to properly read such sentence, more particularly when in previous sentence when there is reference of two different victims as patient or injured, namely, Maheshbhai and Kanubhai and when person who has got simple injury, being Kanubhai is referred in later part of such sentence and immediately thereafter, if it is stated in next sentence referring a patient singularly, certainly it goes with reference to one of the patient referred in the previous statement and that too certainly with a patient, who is referred in the second part of the sentence i.e. Kanubhai. It is not disputed that Kanubhai has got simple injuries and, therefore, there is no cause for death if immediate treatment is provided to him. The evidence is to be read in proper perspective and in fact it would be the duty of the trial Court to see that several such statement is properly recorded without leaving any doubt for different interpretation at different stage in proceeding. Time and again, the Hon''ble Supreme Court has observed that the trial Judge has not to sit as a moot spectator, but he needs to take active part in the trial and proceeding before it, more particularly in such cases where every sentence in evidence is crucial for determining the fate of the accused. Therefore, the submission of the appellant that such statement that, if said patient gets immediate treatment, then, there is not possibility of his death i.e. injuries are not of such a nature, which may result into death, if immediate treatment is received; is to be treated as evidence against the prosecution and against the impugned judgment and in favour of the appellants to confirm their acquittal, cannot be uphold. It cannot be ignored that during the cross-examination, it has been confirmed that both the victims have been admitted in the hospital for two days as indoor patient.

The suggestion in the cross-examination can also not be ignored whereby what is suggested is now altogether a different story by the accused that if sharp cutting instrument is available or held by both the victims i.e. Maheshbhai and Kanubhai with them, then in case of scuffle with some other person by such victim, there is possibility of getting injured by such instrument owned or held by them. Therefore, what is suggested is that victim Maheshbhai and Kanubhai were holding sharp cutting instrument with them and they had scuffle with the appellants and they got injured on their own by their own weapon. Such defence is totally contradictory to the defence already put forward by the appellants accused, whereby they totally deny the incident or injury or submit that injuries are not enough for confirming conviction u/s. 307 of the IPC, more particularly considering the fact that in fact appellants No. 1 and 2 were arrested on the spot and, therefore, they cannot escape or prove their presence, whereas appellant No. 3 remains absconded for two months though his name was disclosed by appellants No. 1 and 2, who are residing in the same village of M.P. Though during cross-examination, it has been tried to confirm that there is no possibility of death of any such victim, if they get immediate treatment, it is also very vague statement and there is no specific disclosure that injuries to Maheshbhai Ukarbhai Rajput was also of simple nature and may not result into death, though it is specifically stated by the Doctor in his examination-in-chief that injuries of Maheshbhai were of serious nature. It cannot be ignored that in examination-in-chief itself, the Doctor has categorically stated that the recovery period is three weeks if no complication arises. Therefore, it cannot be said that injuries of Maheshbhai are of simple nature. It cannot be ignored that in both the certificates, at Exhs.12 and 13, Doctor has described the injuries as serious.

So far as PW Nos. 3 and 4, namely, Sukhrambhai Seniabhai Mavi (PW-3) and Nirajbhai Nikunjbhai Desai (PW-4), at Exhs.20 and 23 respectively being panch witness regarding arrest of accused Nos. 1 and 2 are concerned, they have not supported the investigation and confirmed that police has simply taken their signature on a ready panchnama and nothing was recovered in their presence. Therefore, so far as appellants No. 1 and 2 are concerned, since their involvement is also not proved, their presence is also questionable and needs cogent and independent evidence to prove their involvement.

However, PW-5 - Gokulbhai Somabhai Khant at Exh.26 has categorically supported the prosecution case and investigation properly because he is also armed head constable, who was on duty at the relevant time with the victims. It is his say, confirming the story of FIR and victims, that during the patrolling when they found appellants sitting near the shop and when they asked them about them, they have dropped some instrument, which is otherwise used for house-breaking and attacked them and assaulted the victim on his chest by a knife, which resulted into injuries and at that time, this witness has given a blow on the hand of the appellant - accused No. 3, whereby knife was dropped on the road from the hands of accused and he ran away from the place and could not be caught. Whereas, the appellants - accused Nos. 1 and 2 had been caught by them. It is his further say that on inquiry from accused Nos. 1 and 2, their name has been disclosed as such, with the details of accused No. 3 as Ravi Ramvir Pandit of M.P. and that his father is serving in Jhambua police station. He identified all the three accused by name before the Court as well as muddamal articles No. 1 and 2 being Khatariyu and knife. During his cross-examination, witness denies that there was little rain on that day and there was movement of people till late night i.e. even after midnight. However, he denies the suggestion that so many people are always sitting near the shops even after midnight. He denied the suggestion that victim had received injuries only because they fell down either during patrolling or somewhere thereafter. He also admits that there is traffic of rickshaw throughout the night near Gandhi Chowk towards the bus-stand and there were approximately 2500 people gathered in Kavi Sammelan and that there were so many people sitting around at the place of incident. He admits that look out of accused No. 3 was not disclosed on record and his identification parade was not carried out. He denies so many other suggestions. Thereby, except the absence of identification parade, there is no evidence in rebuttal of what is deposed by such witness. He is also complainant and his complaint has been proved by him i.e. Exh.27 wherein entire story is disclosed with proper clarity with a clear allegation that the person who has given a blow, had while doing so, categorically and loudly stated to the police constables that "Maar Daloonga".

PW-6 at Exh.28 is victim Maheshbhai Ukarbhai Jadav. Being a victim, he has narrated the entire story as discussed herein above, which is confirming the incident and injury received by him. He identifies the accused No. 3 as a person who had injured him. Whereas in his cross-examination, appellant could not reveal any material so as to confirm that victim is not telling the truth or in any case he has exaggerated or reconciled the prosecution case, right from FIR till the deposition in any manner except the admission that identification parade was not carried out. However, he confirms the manner of incident, nature of injuries and identifies respondent No. 2 as a person, who has injured him. There was only difference of stating the word jumping directly. However, such difference could not be considered as a material contradiction so as to discard his deposition/evidence. He also denies the suggestion that he received the injuries only because he fell down and not because of the incident as alleged by the prosecution.

Another victim, who was also injured in the incident is PW-7 Kanubhai Bathubhai Chauhan at Exh.30. He is also police constable on duty at the relevant time and he has also deposed in clear words to confirm the prosecution case and all the details and history, which is disclosed by the complainant and the another victim the previous witness. Therefore, I do not reproduce the factual details again and again, which is to avoid repetition of same story. However, it is to be noted that he also accepts about the identification parade, but except that admission, there is nothing in his deposition, which can help the accused to argue in any manner against their conviction. The record shows that while defending the trial, the appellants have in fact changed their stand and defence between witness to witness and, therefore, practically failed to prove their defence properly inasmuch as to all different prosecution witness, they have asked and suggested different story in defence. Now, so far as present witness is concerned, they have emphasized more on procedural aspects of the investigation rather than the incident and injuries, though witness is one of the victim and neither complainant nor investigating officer.

Similar is the situation with PW-8 Krushnakumar Chaturbhai Rajat at Exh.31, who is driver of the vehicle in which all such witnesses were patrolling at the relevant time and there is nothing in his cross-examination which can help the accused to get rid of such conviction, more particularly accused No. 3.

However, the material evidence is that of PW-9, Exh.34, namely, Kantibhai Lunabhai Arjuniya, who is cited as eye-witness and who has also categorically supported the prosecution story confirming that when they were released from the Kavi Sammelan, he reached to the place of incident, he saw that two policemen with injuries and that police party has caught two other people. He also confirms that police has recorded his statement. However, though he confirms that the two persons, who were caught by the police have disclosed the name of person, who has injured the victim in his presence, but he does not recollect the name, nor could identify them. During his cross-examination, though defence version was able to prove some contradiction with reference to the presence of traffic after midnight at the place of incident against the version of the victims and complainant, the fact remains that so far as injuries and incident are concerned, practically version of such witness has been admitted by the accused inasmuch as there was no cross-examination at all on such issues and thereby when he confirms the presence of victims and accused, as unknown person at the place of incident immediately after the incident, there is no reason to discard such evidence as a corroboration by an independent witness regarding the prosecution version.

No doubt PW-10 at Exh.37, namely, Nanubhai Badiyabhai Mavi has not supported the prosecution case regarding his presence at the material time. However, it could not affect the case of the prosecution in any manner in view of other evidence, which is already referred herein above. Then remains PW-11 and 12, Exhs.39 and 40 being P.S.O and investigating officer of Dahod town police station respectively for registering the FIR and investigating the case have as usual confirmed the investigation and accused could not rebut their evidence in any manner. The documentary evidence in the form of FSL report, seizure report, medical certificate, relevant panchnama are also on record and they are described in detail in the impugned judgment.

Based upon such evidence, if we peruse the impugned judgment, it cannot be said that trial Court has committed any error atleast in convicting Ravi @ Kamalkant Ramvir Kashyap when there is ample evidence against him that he has given blow by his knife to both the victim. They both have received injuries by such sharp cutting instrument on their stomach and if they were not given proper treatment at the earliest, it might have resulted into their death though such injury can be healed within three weeks if proper treatment is available immediately. Whereas, so far as accused Nos. 1 and 2 are concerned, except their presence at the place of incident, when there is no evidence about their activity in any manner to commit any offence or to injure the victims, it seems that conviction of Rafiq Yusuf Sherani and Imran Mehmood Ali is unwarranted.

In R. Shaji Vs. State of Kerala, Hon''ble Apex Court has categorically confirmed that when witnesses are well acquainted with the accused, non-holding of identification parade would not be fatal to the prosecution case. In this case also, victims have seen all the accused at the place of incident and tried to catch them. When two were caught and one was able to abscond, there is no necessity of identification parade.

Therefore, the impugned judgment certainly requires to be interfered if not for all the accused then atleast for appellants No. 1 and 2 being accused Nos. 1 and 2 in Sessions Case No. 194 of 2007, whereas so far appellant No. 3 Ravi @ Kamalkant Ramvir Kashyap being accused in Sessions Case No. 9 of 2008 is concerned, when he has absconded from the place of incident immediately after the incident and when there is sufficient evidence against him and when sharp cutting instrument were found from the place of incident and when medical evidence also confirms that such instruments are capable to cause such injury, and when complainant and injured identifies him before the trial Court as a person who has given a blow on their stomach by a sharp cutting instrument, only because of some small or irrelevant contradictions, though it is not their in the evidence, but, if at all some words are treated as contradictions and only because identification parade was not carried out, it cannot be said that there is no role played by the said accused in the incident wherein victims were injured as aforesaid and, therefore, the conviction of such accused cannot be interfered.

If we peruse the impugned judgment, the learned Sessions Court has discussed the entire evidence in detail and assigned reasons for its conclusion to convict the accused as aforesaid. The reasons for conviction are recorded at length from paragraphs 26 to 41 wherein Sessions Court has appreciated all material evidence on record as well as decisions cited by the parties. Trial Court has considered that the accused No. 3 has caused injury by sharp cutting instrument to victims and, therefore, it cannot be said that he has no intention to injure the witnesses, more particularly when they are police officers, simply asking them about their activity at the given place after midnight. The presence of iron-cross "Khatariyu" and knife with bloodstains of the victim confirms the incident as alleged by the prosecution and, therefore, only because of the Doctor''s statement that the injuries may not result into death if immediate treatment is provided, was not considered as a reason for acquittal of the accused persons.

However, though all such reasons are proper and suitable and, therefore, need not to be interfered in this appeal, only because of alternative or different presumptions can be arrived at, it is clear and certain that there is specific evidence only against appeal i.e. accused No. 3, namely, Ravi @ Kamalkant Ramvir Kashyap, inasmuch as so far as other two appellants are concerned, the same set of evidence categorically confirms that except their presence at the place of incident, they have not played any role in opposing the police party or in causing injuries to any of the victim in any manner whatsoever. Even they were not so vigilant to run away immediately with accused No. 3 from the place of incident, since they have been caught by the police party on the spot and in fact they have disclosed the details of accused No. 3 who has caused injuries to the victim. Therefore, it is to be believed that they were silent spectators and, thereby, witness to the incident between the accused No. 3 and the victims and even if they are knowing accused No. 3, their presence at the place of incident with accused No. 3 cannot attract conviction u/s. 114 of the IPC in absence of any act of abetment of crime by accused No. 3, when there is no such allegation or iota of evidence. It is also clear and certain that the incident was not pre-planned with any specific intention inasmuch as it so happens that when complainant and police party including the victim had inquired about the presence and activity of all of them at such place after midnight, accused No. 3 may be because of his mens rea only attempted to injure the victims seriously by knift and when he realised that it would be difficult for him to protest the police party even with a knife, after injuring two police personnels, when because of the stick blow his knife has fallen down, he managed to run away from the place. Therefore, there is no clinching evidence against accused Nos. 1 and 2 since there is no common intention or mens rea proved on record so as to club them with the offence committed by accused No. 3 as abettor, it would not be appropriate to convict them u/s. 307 or u/s. 333 of the IPC. Whereas so far as accused No. 3 is concerned, what is stated herein above is been confirmed by the deposition of I.O Mr. Revabhai Galbabhai Patel at Exh.40 as PW-12, wherein he has confirmed that after absconding from the place of incident accused No. 3 could be arrested because of transfer warrant from Jhambua jail as he was arrested by Meghnagar police station of M.P. with reference to C.R. No. I-155 of 2007 under the Arms Act. Therefore, the appeal needs to be partly allowed so far as appellants No. 1 and 2 are concerned. Whereas, there is no substance in the appeal so far as accused - appellant No. 3 i.e. accused of Sessions Case No. 9 of 2008 is concerned.

Learned advocate Mr. Zubin Bharda for appellant No. 3 is relying upon the case between Sarju Prasad Vs. State of Bihar, wherein in absence of injury on vital organ of the victim, though the Court has stated that no injury on vital organ would not be itself by sufficient to take the act of the accused out of the purview of Section 307 of the IPC, the conviction u/s. 307 of the IPC has been converted into Section 324 of the IPC considering that motive would be relevant circumstances in order to bring the offence home to accused since the prosecution must establish that his intention was one of the three kinds mentioned in Section 300 of IPC. However, as discussed herein after, it is also settled legal position that when there is an intention and mens rea to injure someone with deadly weapon, his conviction u/s. 307 is proper and, therefore, this judgment would not help the appellant.

27.1 Learned advocate Mr. Bharda has also relied upon the case between Dharma Pal and others Vs. State of Punjab, wherein though injuries were serious and caused by dangerous weapon, the Supreme Court has converted into Section 324 giving benefit of doubt considering that there was provocation when genesis of the occurrence has been suppressed by the witnesses and whole truth is not placed before the Court. Therefore, such judgment rests upon the typical broad facts on hand and, therefore, it does not help the appellant.

The learned APP has relied upon several decisions in favour of her submissions, which support above conclusion, which are briefly listed as under:-

(1) R. Prakash Vs. State of Karnataka, confirming that it is sufficient to justify the conviction u/s. 307, if there is present an intent with some overt act in execution thereof, it is not essential that bodily injury capable of causing death should have been inflicted.

(2) Ramanand Yadav Vs. Prabhu Nath Jha and Others, confirming that so far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.

(3) State of Madhya Pradesh Vs. Saleem @ Chamaru and Another, confirming that the Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

(4) State of Madhya Pradesh Vs. Imrat and Another, confirming that whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC.

(5) Dayal Singh and Others Vs. State of Uttaranchal, wherein the Hon''ble Supreme Court has after referring several previous judgments held that even if medical evidence is in conflict with the version of eye-witnesses, when version of eye-witness is found to be trustworthy and credible and establishes the prosecution case beyond reasonable doubt, version of eye-witnesses should be preferred over expert report like postmortem report, if it is found perfunctory, incorrect and outcome of deliberate attempt to misdirect the prosecution case. It is further held that a report of the expert i.e. Doctor should be well authored and convincing and even if it is duly proved, though it has evidentiary value, it is not binding on Court. Thereby, Court should analyze such report, read in conjunction with other evidence and then decide whether it is reliable or not.

(6) Dr. Sunil Clifford Daniel Vs. State of Punjab, wherein Hon''ble Supreme Court has held that non-matching of blood group in FSL report on particular muddamal article would not be advantageous to the accused to enable him to claim any benefit of doubt. It is only because of lapse of time that classification of blood cannot be determined.

(7) Manjit Singh and Another Vs. State of Punjab and Another, wherein the Hon''ble Supreme Court has held that when there is ample unimpeachable ocular evidence, which is corroborated by the medical evidence, non-recovery of bloodstained clothes or even weapon does not affect the prosecution case.

In view of above facts and circumstances, the appellant No. 3 fails to point out illegality or perverseness in the conclusion by the trial Court in convicting him u/ss. 307 and 333 of the IPC when there is ample evidence that appellant No. 3 has inflicted a blow on two police officers when they were on patrolling duty and inquiring about the activities of such accused and when they were injured by such sharp cutting instrument being knife and when such knife and iron-cross used for house-breaking were found at the place of incident.

Therefore, the appeal of appellant No. 3 deserves to be dismissed and is hereby dismissed.

However, so far as appellants No. 1 and 2 are concerned, as discussed herein above, when they have not played any role in commission of offence by accused No. 3, only because of their presence at the place, may not be considered as common intention or abetment in such a case and, hence, irrespective of any evidence against them, they are certainly entitled to benefit of doubt. Thereby, their conviction is required to be interfered by acquitting them from the charges levelled against them.

Therefore, the appeal by appellants No. 1 and 2 deserves to be allowed and is hereby allowed. As the appellants No. 1 and 2 are on bail by order of this Court pending Criminal Appeal, their bail bonds shall stand cancelled.

Whereas, accused No. 3 is not released on bail, hence, copy of this judgment is to be forwarded to him in jail immediately by the Registry.