(Per
: HONOURABLE MR.JUSTICE DN PATEL)
1. The
aforesaid two Appeals have been preferred by the accused persons
against the judgement and order of conviction and sentence dated 16th
November,2006, passed by learned Additional Sessions Judge,Surat,
whereby the present appellants have been convicted mainly for an
offence punishable under Section 302 of the Indian Penal Code read
with Sections 143, 147, 148, 323 of the Indian Penal Code, for life
imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo
further simple imprisonment of six months, and they were acquitted
for the offence punishable under Section 504 of the Indian Penal Code
and for the offence under The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocity) Act,1989 Criminal Appeal No.2274 of 2006 has
been preferred by accused No.5 whereas Criminal Appeal No.117 of 2007
has been preferred by accused Nos.1 to 4.
2. If
the facts of the prosecution are unfolded, they are summarised in
short, as under.
3. An
Offence of murder of Rajubhai Ramubhai Vasava has taken place on 4th
March,2005 at Village: Amboli, District: Surat at about 20-21 hours.
A complainant i.e. Rajubhai Jesingbhai Vasava along with P.W.Nos.2
and 3 and with his other friends had gone to Village: Amboli on 4th
March,2005 at about 8.00 p.m. for eating biriyani. They ordered four
plates of biriyani, but, accused No.1 gave only three plates of
biriyani and insisted money for four plates of biriyani. This is how
the complainant and witnesses had exchange of hot altercation with
accused No.1 i.e. Saddikbhai @ Lallo Gulam Hussein Shaikh.
Thereafter, they had to pay money for four plates of biriyani.
Accused No.1 was abusing complainant and the prosecution witnesses
and had also shown a knife. P.W.No.3 intervened and they separated
complainant, other prosecution witnesses and accused No.1.
Thereafter, when complainant and prosecution witnesses were
travelling to Village: Kholwad on two motorcycles, they met uncle of
the complainant i.e. Kishorbhai Kantibhai Dholia (P.W.No.5) and the
whole incident had been narrated before P.W.No.5, who assured that he
knew accused No.1 and he will settle their dispute. Thereafter,
P.W.No.5 had gone to take petrol in his motor cycle. Complainant and
other prosecution witnesses waited for P.W.No.5 to come back, at
Bus-stand of village: Kholwad. At that time, accused persons came in
two separate rickshaws. Accused Nos.1, 2 and 3 had knives, whereas,
other accused persons had sticks in their hands. It is stated by
P.W.No.1 in FIR that these accused persons started beating. Accused
Nos.1, 2 and 3 caused knife injuries to Rajubhai Ramubhai Vasava and
other accused persons started beating with sticks to complainant and
other prosecution eye-witnesses. Thereafter, complainant i.e.
P.W.No.1, P.W.No.2 and P.W.No.3 had run away to save themselves. They
had gone to the house of P.W.No.1 and talked to his father Jesingbhai
Chhaganbhai Vasava (P.W.No.14) about the whole incident. This
Jesingbhai Vasava (P.W.No.14) took a car of one Shri Aminbhai and
came at the place of scene of offence. There, he saw that Rajubhai's
condition was critical, therefore, he was taken to Dinbandhu
Hospital. As his condition was deteriorating and critical, he was
shifted to Mahavir Hospital, where, he expired. All the accused
persons were named in the FIR and in the depositions of
eye-witnesses, who are P.W.Nos.1,2 and 3 they have clearly narrated
the role played by the accused persons. Weapons have also been
narrated. P.W.No.1 injured eye-witness, was examined by
Dr.Mukundkumar (P.W.No.12). P.W.No.1 was sent to Dr.Mukundbhai
(P.W.No.12) with police yadi and injury certificate is at Exh-63.
Incident had taken place on 4th March,2005 at about 20-21
hours. FIR was filed on the same date i.e. on 4th
March,2005 at 23-55 hours before Kamrej Police Station, which was
registered as C.R.No.I-30 of 2005. Postmortem of the deceased
Rajubhai Vasava was performed by Dr.Pranav Vinodchandra Prajapati
(P.W.No.15). Looking to the postmortem note at Exh-67, there were
injuries on chest, stomach and intestine by knives. Knives and sticks
were also recovered during the course of investigation. Upon
completion of investigation, charge-sheet was filed and Special
Atrocity Case No.6 of 2005 was registered against the
appellants-accused and upon recording evidence of the prosecution
witnesses, accused have been convicted mainly for the offence
punishable under Section 302 read with Section 149 of the Indian
Penal Code for life imprisonment and to pay a fine of Rs.1,000/-, in
case of default, further simple imprisonment of six months. Against
this order of conviction passed by the Trial Court, accused No.5 has
preferred Criminal Appeal No.2274 of 2006 and Criminal Appeal No.117
of 2007 has been preferred by original accused Nos.1 to 4, 6 and 7.
4. We
have heard learned counsel appearing for the appellants, who has
mainly submitted that there are number of omissions and
contradictions in the depositions of the prosecution witnesses, which
have not been appreciated by the Trial Court and, hence, the order of
conviction passed by the Trial Court deserves to be quashed and set
aside. Learned counsel for the appellants further submitted that so
called eye-witnesses have given evidences. In fact, P.W.Nos.1, 2 and
3 are not eye-witnesses of the incident and they are not reliable
and trustworthy witnesses. It has been submitted by learned counsel
for the appellants that the manner, in which, the whole incident has
been narrated by the so called eye-witnesses is practically
impossible. Except accused No.1, no other accused persons were
present at the time of first incident i.e. at the place of lari of
Saddikbhai (accused No.1), where the complainant and other
prosecution witnesses had gone for dinner. They were not sharing any
common object and, therefore, conviction and awarded by the Trial
Court under Section 302 read with Section 149 of the Indian Penal
Code deserves to be quashed and set aside.
5. Learned
counsel for the appellant (accused No.5) submitted that weapon was
not discovered or recovered from the possession of appellant of
Criminal Appeal No.2274 of 2006 (appeal preferred by accused No.5).
It is also submitted that there is no evidence to the effect that
except accused No.1, anybody has beaten the deceased. The whole
incident had taken place suddenly and because of hot altercations.
This aspect of the matter has not been properly appreciated by the
Trial Court and, therefore, conviction awarded mainly under Section
302 read with Section 149 of the Indian Penal Code, deserves to be
quashed and set aside.
6. Learned
Additional Public Prosecutor appearing for the opponents submitted
that the whole case is proved by prosecution witnesses beyond
reasonable doubt. After the incident had taken place on 4th
March,2005, at about 20-21 hours, FIR has been registered immediately
on 4th March,2005 at 23-55 hours (Exh-23). P.W.No.1 is
injured eye-witness, whose injury certificate is at Exh-63, examined
with police yadi by the Doctor- P.W.No.12. This witness is a witness
of first incident i.e. near lari of accused No.1, where complainant
and other prosecution witnesses had gone to eat biriyani. There was
hot altercation with accused No.1. Accused No.1 had shown knife at
this place and, thereafter, when complainant and other prosecution
witnesses were returning to their houses, accused No.1 and other
accused persons come in two rickshaws with weapons like knives and
sticks at Village: Kholwad. They assaulted the deceased, P.W.No.1
and other witnesses by knives and sticks. Thus, second part of the
whole incident had taken place near Bus stop of Village: Kholwad.
First part of the incident is of hot altercation at lary of accused
No.1. All accused persons came with weapons in their hands with a
common object to cause injury to the deceased and other prosecution
witnesses. As per postmortem note, there were sufficient injuries, in
ordinary course of nature, to cause death of the deceased and,
therefore, the case falls under Clause third of Section 300 of the
Indian Penal Code and, therefore, they are rightly convicted for an
offence punishable under Section 302 read with Section 149 of the
Indian Penal Code. P.W.No.1 has also sustained injury by stick. There
are other eye-witnesses like P.W.Nos.2 and 3 and supporting witnesses
like P.W.Nos.13 and 14, who are uncle of P.W.No.1 and father
respectively, of the deceased, who went at the scene of offence
immediately. Looking to the other evidence like Doctor and police
witnesses, F.S.L. Report and Serologist's Report, offence has been
proved beyond reasonable doubt. Knife was also recovered and human
blood of ýSAýý group was found out. In view of this clear evidence
given by prosecution witnesses, Trial Court has correctly appreciated
the evidence and convicted the accused and, therefore, appeals may
not be entertained by this Court.
7. Having
heard the learned counsel for both the sides and looking to the
evidence on record, it appears that the offence had taken place on
4th March,2005 at about 20-21 hours, Near Bus-stand of
Village: Kholwad. Prosecution Witness No.1 is Rajubhai Jesingbhai
Vasava, who is examined at Exh-22, has narrated that on the date of
incident, deceased Rajubhai Ramubhai Vasava and he himself and
P.W.No.2 and P.W.No.3, all four persons had gone on two motorcycles
at cross-road of Village: Amboli for eating biriyani. They had gone
to the lari of accused No.1. They ordered for four plates of
biriyani, but, accused no.1 gave only three plates of biriyani and
demanded money for four plates of biriyani, therefore, hot
altercation for payment of four plates of biriyani. The complainant
was ready for payment of three plates of biriyani and accused No.1
insisted for payment of four plates of biriyani. This is how hot
altercation had taken place at the lari of accused No.1. There was
shouting and accused No.1 had also shown knife to the deceased and
other prosecution witnesses. P.W.No.3 intervened and settled the
whole dispute. They made payment of four plates of biriyani and
returned to Village: Kholwad. While returning, they met uncle of
P.W.No.1 i.e. Kishorbhai Chhaganbhai Vasava. They had narrated the
whole incident, which had taken place at lari of accused No.1. Thus,
Kishorbhai Chhaganbhai Vasava was knew accused No.1 and, therefore,
he assured P.W.Nos.1,2 and 3 that he will settle their dispute with
accused No.1 Saddikbhai. This Kishorbhai Vasava (P.W.No.13) told them
that after taking petrol in his motorcycle, he was returning and,
therefore, they were waiting for Kishorbhai. Kishorbhai had gone to
take petrol, the deceased, P.W.Nos.1, 2 and 3 were waiting for this
P.W.No.13- Kishorbhai Chhaganbhai Vasava (uncle of P.W.No.1).
Meanwhile, two rickshaws came there. Saddikbhai - accused No.1 and
other accused persons alighted from two rickshaws with knives and
sticks and immediately assaulted the deceased. It is stated by
P.W.No.1, who is injured eye-witness that accused Nos.1, 2 and 3 were
having knives in their hands and caused injuries to Rajubhai Ramubhai
Vasava. P.W.No.1 tried to intervene to save Rajubhai Vasava, but,
other accused also beat P.W.No.1 by sticks. The whole incident had
taken place hurriedly and P.W.Nos.1,2 and 3 had run away from this
place and gone at the house of P.W.No.1, where they met father of
P.W.No.1 namely Jesingbhai Chhaganbhai Vasava (P.W.No.14). They
informed him that the accused have caused injuries to Rajubhai
Ramubhai Vasava. Immediately Jesingbhai Chhaganbhai Vasava had gone
near Bus-stand of Village: Kholwad, in car of one Shri Aminbhai.
Rajubhai was lying there. He was taken to Dinbandhu Hospital and as
his condition was critical, he was shifted to Mahavir Hospital and,
thereafter, Rajubhai Ramubhai had expired. This P.W.No.1 has filed
F.I.R. on 4th March,2005 at Kamrej Police Station, which
was registered as C.R.No.I-30 of 2005. F.I.R. is proved by this
witness, which is at Exh-23. Accused persons were known to this
witness as they were belonged to nearby village. Accused were also
identified by this witness, who were present in the Court. Accused
persons were also named in the FIR, which was filed immediately after
the incident. Looking to the cross-examination, nothing is coming out
in favour of the appellants. On the contrary, looking to Para-5 of
the deposition of this witness, he has informed that three accused
caused injuries by knives and other accused have caused injuries by
sticks. Nothing is taken away or shaken in cross-examination in
favour of the accused. From what he has stated in
examination-in-chief, looking to the evidence of this witness and
other evidence, having enough corroboration to the version of
P.W.No.1. He is a trustworthy witness, who was also present at the
scene of offence and he has also sustained injury, as per deposition
of P.W.No.12 i.e. Doctor with police yadi, injury certificate is at
Exh-63. Looking to the injury certificate of P.W.No.1, these injuries
are possible by sticks. This P.W.No.1 was injured eye-witness, who
has clearly narrated the fact that initially there was hot
altercation with accused No.1 and, thereafter, all the accused came
in two rickshaws with weapons. They assaulted the deceased,
P.W.Nos.1, 2 and 3, whereby, Rajubhai Ramubhai Vasava sustained
injuries by knives and P.W.No.1 sustained injuries by sticks. Thus,
accused No.1 called other accused with weapons in two separate
rickshaws. Thus, presence of all the accused was found at the scene
of offence with weapons and there were also participation and they
were sharing common object and caused injuries to the deceased,
P.W.Nos.1, 2 and 3.
8. P.W.No.2,
Rakeshkumar Manharbhai Tailor, who is examined at Exh-32 is also
eye-witness of the incident. He has narrated the whole incident like
P.W.No.1. He had also accompanied the deceased, P.W.Nos.1 and 3, when
they had gone for eating biriyani at the lari of accused No.1 on 4th
March,2005. He has also narrated the first incident of hot
altercation, which has taken place at lari of accused No.1. He has
also stated that thereafter, when they were returning to their
Village, all accused came in two rickshaws. Three accused persons
alighted from rickshaws with knives and other accused persons were
having sticks in their hands. They assaulted prosecution witnesses
and Rajubhai Ramubhai Vasava, who sustained knives injuries at chest
and stomach and succumbed to injuries, whereas P.W.No.1 was also
injured by sticks. Thereafter, P.W.Nos.1, 2 and 3 ran away and met
P.W.No.14 i.e. Jesingbhai Chhaganbhai, who is father of P.W.No.1, he
came at the scene of offence in car of one Shri Aminbhai. Rajubhai
Ramubhai Vasava was lying at Bus-stand of Village: Kholwad, who was
taken at Dinbandhu Hospital and, thereafter, at Mahavir Hospital.
Thereafter, Rajubhai Ramubhai Vasava had expired. Looking to the
deposition of this witness, he has narrated the whole incident
accurately. He has corroborated the evidence given by P.W.No.1.
Looking to his cross-examination also, nothing is coming out in
favour of the accused. There are no major omissions and
contradictions in his deposition. This witness has gets corroboration
with P.W.Nos. 3 and other evidence like Postmortem Note, recovery of
weapons, etc. He is a trustworthy witness. He has seen the incident.
Thus, as per this witness also, after initial hot altercation at lari
of accused No.1, accused No.1 had called other accused, who came in
rickshaws with weapons knives and sticks. This is indicative of the
evidence that all accused were having common object of causing
injuries to the deceased and other prosecution witnesses. Looking to
the injury to the deceased, as per Doctor's evidence, they were
sufficient in ordinary course of nature, to cause death of the
deceased and, therefore, this case falls under clause Third of
Section 300 read with Section 149 of the Indian Penal Code.
9. Similar
is evidence of P.W.No.3, who is Prajeshkumar Ishwarbhai Patel,
examined at Exh-35, who is also eye-witness of the incident and had
also accompanied the deceased, P.W.Nos.1 and 2 for eating biriyani at
lari of accused No.1. He was also assaulted by all the accused, who
came at nearby bus-stand of Village: Kholwad in two rickshaws, with
knives and sticks and caused fatal injuries to Rajubhai on chest and
stomach. P.W.No.1 has also sustained injuries by sticks, who was
examined by P.W.No.12 and his injury certificate is at Exh-63. This
witness was also present at the scene of offence. He is also
corroborating other prosecution witnesses i.e. P.W.Nos. 1 and 2. He
is a trustworthy witness. Looking to the deposition of these three
witnesses, initially, there was hot altercation with accused No.1.
Thereafter, accused No.1 called other accused persons, they came in
rickshaws with knives and sticks and assaulted deceased, P.W.Nos.1,
2 and 3; caused fatal injuries to Rajubhai Ramubhai Vasava and had
also caused injury to P.W.No.1. All were sharing common object and
present at the scene of offence and all the accused participated in
causing injuries to deceased and P.W.No.1.
10. It
is contented by learned counsel for the appellants that only accused
No.1 has caused injuries to the deceased. Even if, the case of the
prosecution is taken at its highest pitch, other accused have not
caused any injury to the deceased and, they were not sharing common
object and, therefore, they ought not to have been punished for the
offence punishable under Section 300 read with Section 149 of the
Indian Penal Code. This contention is not accepted by this Court
mainly for the reason that looking to the evidence given by P.W.No.1
and other eye-witnesses i.e. P.W.Nos.2 and 3, it appears that
initially, there was a hot altercation with accused No.1 at lari of
accused No.1 for eating biriyani and for payment of biriyani. Accused
No.1 called other accused, who came in rickshaws with weapons like
knives and sticks. There is also recovery of more than one weapon. As
stated by the witnesses, they all came together. They assaulted the
deceased and other prosecution witnesses. Thus, they were sharing
common object of causing injuries to the deceased and the prosecution
witnesses. It has been held by Hon'ble Supreme Court in
the case of State of U.P. V/s. Virendra Prasad, reported in AIR 2004
SC 1517, that intention
to cause death is not an essential requirement of clause (2), but,
intention of causing the bodily injury coupled with the offender's
knowledge of the likelihood of such injury causing the death of the
particular victim, is sufficient to bring the killing within the
ambit of this clause of Section 300. It has also been held in this
judgement that as per Clause Third of Section 300 of the Indian Penal
Code, if the injury is sufficient, in ordinary course of nature to
cause death and if the accused are having common object to cause only
injury, then also, it will fall under Section 300 of Indian Penal
Code. Thus, intention to cause death is nothing, but, as per clause
third of Section 300 of the Indian Penal Code, if the accused were
having common object of causing only bodily injury, which were found
sufficient in ordinary course of nature, to cause death, such killing
will fall within the ambit of this clause third of Section 300 of
Indian Penal Code. It has been held by Hon'ble
Supreme Court in the case of State of U.P. V/s. Virendra Prasad,
reported in AIR 2004 SC 1517, especially
para nos.7, 8, 9, 13 and 14, read as under:
ýS7. The academic
distinction between "murder" and "culpable homicide
not amounting to murder" has always vexed the Courts. The
confusion is caused, if Courts losing sight of the true scope and
meaning of the terms used by the legislature in these sections, allow
themselves to be drawn into minute abstractions. The safest way of
approach to the interpretation and application of these provisions
seems to be to keep in focus the keywords used in the various clauses
of Sections 299 and 300. The following comparative table will be
helpful in appreciating the points of distinction between the two
offences :
Section 299
Section 300
A
person commits culpable homicide if the act by which the death
is caused is done-
Subject to certain exceptions
culpable homicide is murder if the act by which the death is
caused is done?
INTENTION
(a) with the intention of
causing death;
or
(b) with the intention of
causing such bodily injury as is likely to cause death; or
(1) with the intention of
causing
death; or
(2) with the intention of
causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused; or
With the intention of causing bodily injury to any person and
the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death; or
KNOWLEDGE
(c) with the knowledge that
the act is likely to cause death.
(4) with the knowledge that
the act is so imminently dangerous that it must in all
probability cause death or such bodily injury as is likely to
cause death,and commits such act without any excuse for
incurring the risk of causing death or such injury as is
mentioned above.
8. Clause (b) of Section
299 corresponds with clauses (2) and (3) of Section 300. The
distinguishing feature of the mens rea requisite under clause (2) is
the knowledge possessed by the offender regarding the particular
victim being in such a peculiar condition or state of health that the
internal harm caused to him is likely to be fatal, notwithstanding
the fact that such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or condition.
It is noteworthy that the "intention to cause death" is not
an essential requirement of clause (2). Only the intention of causing
the bodily injury coupled with the offender's knowledge of the
likelihood of such injury causing the death of the particular victim,
is sufficient to bring the killing within the ambit of this clause.
This aspect of clause (2) is borne out by Illustration (b) appended
to Section 300.
9. Clause (b) of Section
299 does not postulate any such knowledge on the part of the
offender. Instances of cases falling under clause (2) of section 300
can be where the assailant causes death by a first-blow intentionally
given knowing that the victim is suffering from an enlarged liver, or
enlarged spleen or diseased heart and such blow is likely to cause
death of that particular person as a result of the rupture of the
liver, or spleen or the failure of the heart, as the case may be. If
the assailant had no such knowledge about the disease or special
frailty of the victim, nor an intention to cause death or bodily
injury sufficient in the ordinary course of nature to cause death,
the offence will not be murder, even if the injury which caused the
death, was intentionally given. In clause (3) of section 300,
instead of the words "likely to cause death" occurring in
the corresponding clause (b) of Section 299, the words "sufficient
in the ordinary course of nature" have been used. Obviously, the
distinction lies between a bodily injury likely to cause death and a
bodily injury sufficient in the ordinary course of nature to cause
death. The distinction is fine but real and if overlooked, may result
in miscarriage of justice. The difference between clause (b) of
Section 299 and clause (3) of Section 300 is one of degree of
probability of death resulting from the intended bodily injury. To
put it more broadly, it is the degree of probability of death which
determines whether a culpable homicide is of the gravest, medium or
the lowest degree. The word "likely" in clause (b) of
Section 299 conveys the sense of probability as distinguished from a
mere possibility. The words "bodily injury......... sufficient
in the ordinary course of nature to cause death" mean that death
will be the "most probable" result of the injury, having
regard to the ordinary course of nature.
13. The learned Judge
explained the third ingredient in the following words (at page 468) :
The question is not whether
the prisoner intended to inflict a serious injury or a trivial one
but whether he intended to inflict the injury that is proved to be
present. If he can show that he did not, or if the totality of the
circumstances justify such an inference, then of course, the intent
that the section requires is not proved. But if there is nothing
beyond the injury and the fact that the appellant inflicted it, the
only possible inference is that he intended to inflict it whether he
knew of its seriousness, or intended serious consequences, is neither
here nor there. The question, so far as the intention is concerned,
is not whether he intended to kill, or to inflict an injury of a
particular degree of seriousness, but whether he intended to inflict
the injury in question; and once the existence of the injury is
proved the intention to cause it will be presumed unless the evidence
or the circumstances warrant an opposite conclusion.
14. These observations of
Vivian Bose, J. have become locus classicus. The test laid down by
Virsa Singh case (supra) for the applicability of clause "thirdly"
is now ingrained in our legal system and has become part of the rule
of law. Under clause thirdly of Section 300, IPC, culpable
homicide is murder, if both the following conditions are satisfied
i.e. (a) that the act which causes death is done with the intention
of causing death or is done with the intention of causing a bodily
injury; and (b) that the injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death. It must
be proved that there was an intention to inflict that particular
bodily injury which, in the ordinary course of nature, was sufficient
to cause death viz. that the injury found to be present was the
injury that was intended to be inflicted.ýý
(Emphasis supplied)
Looking
to the deposition of supporting witness, who is P.W.No.13 -
Kishorbhai Chhaganbhai Vasava, who is examined at Exh-65, is the
uncle of P.W.No.1 and looking to the deposition of P.W.No.14 ý
Jesingbhai Chhaganbhai Vasava, who is examined at Exh-66, who is
father of P.W.No.1, it appears that they have corroborated what is
stated by injured eye-witness i.e. P.W.No.1 and evidence given by
other eye-witnesses i.e. P.W.Nos.2 and 3. Kishorbhai, a supporting
witness has stated in his deposition that the deceased, P.W.Nos.1, 2
and 3 met him and narrated the hot altercation which took place at
lari of accused No.1 because of insistence of accused no.1 for
payment of four plates of biriyani. He assured the deceased,
P.W.Nos.1,2 and 3 that as he knew accused No.1, he will settle the
dispute with accused No.1, but, he has to go to petrol pump to take
petrol and when he came back from petrol pump, he saw a crowd of
several persons and he saw Rajubhai Ramubhai lying on the side of
the Road. He saw that P.W.No.14 was taking him to Dinbandhu Hospital.
P.W.No.13 also accompanied him to Dinbandhu Hospital. He has also
stated that he asked Rajubhai, as to who caused injuries to him and
the deceased Rajubhai told him that Saddikbhai, his brothers and
friends caused injuries. Thereafter, Rajubhai Vasava was taken to
Mahavir Hospital, Surat, where, he expired.
11. Looking to the
deposition of P.W.No.14, he has also narrated that he got information
about the injuries caused to Rajubhai Vasava and P.W.No.1. He
immediately rushed to the scene of offence, from where, he had gone
to Dinbandhu Hospital and from Dinbandhu Hospital to Mahavir
Hospital. Thus, these two witnesses are supporting witnesses. Though
they are not eye-witnesses, they have supported the prosecution
witnesses to a material extent.
12. Looking to the
deposition of P.W.No.12 Dr.Mukundkumar, who is examined at Exh-61, it
is proved that he has examined P.W.No.1. P.W.no.1 was brought to him
with police yadi at Exh-62. This witness examined P.W.No.1, who
sustained two injuries, which were possible by sticks. Injury
Certificate given by this Doctor is at Exh-63. Looking to the
cross-examination of this witness, he has also stated that injuries
were fresh and can be caused by sticks. Thus, this witness has
provided enough corroboration to the deposition given by injured
eye-witness i.e. P.W.No.1 and other eye-witnesses P.W.Nos.2 and 3.
There was assault by knives and sticks, as per injured eye-witness
and other prosecution witnesses.
13. Dr.Pranav
Vinodchandra Prajapati ý P.W.No.15, is examined at Exh-63. This
witness had performed postmortem of the deceased. Postmortem note is
at Exh-67. It has been stated by this witness that when he was
performing his duty at Forensic Laboratory, dead body of Rajubhai
Ramubhai Vasava was brought with police yadi for postmortem, which is
at Exh-64. He performed postmortem of the deceased and he had
observed several injuries upon the deceased. Injuries were stab
injuries on the chest, stomach and at intestine Internal injuries
were corresponding to external injuries. Heart was also penetrated
and similarly intestine was also penetrated. It has been stated by
this Doctor that injury was sufficient in ordinary course of nature
to cause death. They were anti mortem. Thus, looking to postmortem
note at Exh-67 and looking to the deposition of P.W.No.15 at Exh-63
given by Dr.Pranav Prajapati, it provides enough corroborations to
the deposition of the injured eye-witness P.W.No.1 and deposition of
other eye-witnesses i.e. P.W.Nos.2 and 3.
14. Looking to the
deposition given by police witness Shri Surendrasingh Gambhirsingh -
P.W.No.17, who is examined at Exh-72, who is Dy.S.P., CID Crime,
Gandhinagar, who has drawn scene of offence panchnama, Inquest
panchnama, arrest panchnama, etc. with the help of another police
witnesses P.W.No.16 - Chandubhai Titabhai, who has recorded FIR. They
have proved the panchnama of discovery of weapons, scene of offence
panchnama, Inquest panchnama, etc. F.S.L. Report at Exh-76 and
Serologist Report at Exh-78. On knife, there was human blood of group
ýSAýý.
15. Looking to the
deposition of the prosecution witnesses, offence of murder of
Rajubhai Ramubhai Vasava has been proved beyond reasonable doubt
against the accused. As stated herein above, initially there was hot
altercation with accused No.1. Thereafter, accused No.1 called his
brothers and other friends with knives and sticks. They assaulted
the deceased, P.W.Nos.1, 2 and 3 with knives and sticks. Rajubhai
Ramubhai expired having three stab injuries, as per postmortem note
(Exh-67) and as per deposition given by P.W.No.15 Dr.Pranav
Prajapati. Looking to the evidence, it appears that P.W.No.1 is an
injured eye-witness, who is examined by P.W.No.12 Dr.Mukundkumar.
Injury Certificate also reveals the fact that there were two
injuries, which could be caused by sticks. There is also recovery of
weapon. Knife was found human blood sustained of blood group ýSAýý.
This is indicative of the fact that knives and sticks both were used.
All accused came together, especially after first part of incident of
hot altercation with accused No.1. Thus, all accused were having
common object of causing injuries to the deceased, P.W.Nos.1,2 and 3.
As stated herein above, with the help of deposition of P.W.No.15,
injuries caused upon Rajubhai were stab injuries on chest and
stomach, is sufficient in ordinary course of nature, to cause death
of the deceased. Thus, looking to the evidence on record, no error
has been committed by the Trial Court in convicting the accused for
an offence punishable under Section 302 read with Section 149 of the
Indian Penal Code as well as Section 143, 147, 323 read with Section
149 of the Indian Penal Code.
16. It is vehemently
contended by learned counsel for the appellants that accused Nos.2 to
7 were not sharing common object, which is described under Section
141 of the Indian Penal Code and they ought not to have been punished
for an offence punishable under Sections 143 and 147, 302 read with
Section 149 of the Indian Penal Code. This contention is not accepted
by this Court mainly for the reasons that :
(a) Looking to the
evidence, it appears that initially there was hot altercation between
the deceased and P.W.Nos.1, 2 and 3 with accused No.1 at lari of
accused No.1 for payment of four plates of biriyani. Accused No.1
pointed a knife to to the deceased.
(b) Accused No.1
thereafter had gone and called his brothers and friends.
(C) They all came in
two rickshaws with knives and sticks.
(d) Thus, all the
accused were going for a particular purpose, they were going with
knives and sticks, their object was common.
(e) the common object
is also revealed by their assault. No sooner did, they saw the
deceased, P.W.Nos.1, 2 and 3, they alighted from the rickshaws,
assaulted them with knives and sticks.
(f) Rajubhai Vasava
sustained three stab injuries, as per medical evidence and postmortem
note, which corroborate the evidence given by injured eye-witness
P.W.No.1 and evidence given by other eye-witnesses P.W.no.2 and 3.
(g) P.W.No.1 has also
sustained two injuries by sticks, who is examined by Doctor i.e.
P.W.No.12, who has stated that P.W.No.1 was brought with police yadi
(Exh-62), who has examined P.W.No.1 and issued Injury Certificate at
Exh-63. Looking to his deposition and cross-examination, injuries by
sticks were fresh. Thus, both knives as well as sticks were used.
17. As a cumulative
effect of this evidence, accused were sharing common object to cause
injuries to the deceased and other prosecution witnesses and looking
to evidence given by P.W.No.15 (Exh-63), who has performed postmortem
of the deceased (postmortem note at Exh-67), there were three stab
injuries on the chest, stomach and intestine which were sufficient
in ordinary course of nature, to cause death of the deceased. Thus,
Trial Court has rightly convicted the accused for an offence
punishable under Section 143 and 147 of the Indian Penal Code as well
as for the offence punishable under Section 302 read with 149 of the
Indian Penal Code. It has been held by Hon'ble Supreme Court in the
case of Rachamreddi Chenna Reddy and others V/s. State of A.P.
reported in 1999(3) SCC 97, especially in para-7, as under:
ýSComing to the
second submission of the learned counsel for the appellants we also
do not find any substance in the matter particularly when the
sequence of events narrated by the three eyewitnesses is taken into
account. The question whether the group of persons can be made liable
for having caused murder of one or two persons by virtue of Section
149 IPC depends upon the facts and circumstances under which the
murder took place. Whether the members of an unlawful assembly
really had the common object to cause the murder of the deceased has
to be decided on the basis of the nature of weapons used by such
members, the manner and sequence of attack made by those members on
the deceased and the settings and surroundings under which the
occurrence took place.ýý
(Emphasis
supplied)
Thus, in the facts of
the present case also, all the accused, after deliberation with
accused No.1, after hot altercation with the deceased, P.W.Nos.1,2
and 3, they all came in two rickshaws with knives and sticks. This
reveals the common object. Thereafter, weapons were also used as
stated herein above. Knife has been used to cause injury to the
injured eye-witness. It has been held by Hon'ble Supreme Court in the
case of Yunis alias Kariya V/s. State of Madhya Pradesh reported
in 2003 CRI.L.J. 817, especially
in para-9, as under:
ýS9. The learned
counsel appearing for the appellant ý Liyaquat argued that no overt
act is imputed to his client and he was being implicated only on the
basis of Section 149, IPC. This argument, in our view, has no merit.
Even if no overt act is imputed to a particular person, when the
charge is under Section 149, IPC, the presence of the accused as part
of unlawful assembly is sufficient for conviction. The fact that
Liyaquat was a member of the unlawful assembly is sufficient to hold
him guilty. The presence of Liyaquat has not been disputed.ýý
(Emphasis
supplied)
Thus, even if no overt
act is imputed to a particular person when the charge is punishable
under Section 149 of the Indian Penal Code, and even the presence of
the accused as part of unlawful assembly is established, it is
sufficient for conviction.
18. As a cumulative
effect of the aforesaid facts, reasons and judicial pronouncements,
no error has been committed by the Trial Court, in appreciating the
evidence and convicting the accused persons, for an offence
punishable under Section 143, 147, 148 and 323 read with Section 149
of the Indian Penal Code and for the offence punishable under Section
302 read with Section 149 of the Indian Penal Code. There is no
perversity in the order passed by the Trial Court. Thus, the
judgement and order of conviction and sentence passed by the Trial
Court is hereby upheld. There is no substance in these two Criminal
Appeals. Hence, the same are hereby dismissed.
(R.P.DHOLAKIA,J)
(D.N.PATEL,J)
*dipti