Takhaji Hiraji v. Thakore Kubersing Chamansing And Others

R.C Lahoti, J.— Eight accused persons were charged for having committed offences under Sections 147, 148, 302/34/149, 307/34/149, 302/307/109, 325, 325/34, 324 and 324/34 of the Indian Penal Code. The trial court acquitted Accused 3, 4, 6, 7 and 8 of all the offences charged and set them at liberty. Accused 1, 2 and 5 were held guilty on different counts as will be stated shortly herein afterwards and convicted and sentenced. They preferred an appeal before the High Court of Gujarat which was heard by a Division Bench. By the impugned judgment dated 14-12-1983 the appeal has been allowed and all the three accused-respondents have been acquitted. The complainant, Takhaji Hiraji who had lodged the first information report of the incident and was himself an injured person has preferred this appeal by special leave putting in issue the acquittal of Accused 1, 2 and 5. Later on the State has also filed an appeal by special leave. Both the appeals have been heard together.

2. A small village Dugrasan, Taluka Shihori in the State of Gujarat witnessed a joyful evening of 23-3-1980 being converted into a horrific tale of crime where violence was let loose between two communities, otherwise friendly and living together happily, resulting in death of 3 persons and simple and grievous injuries to several others. It appears that the village has a population consisting mainly of Thakores and Kolis. Thakores treat themselves as upper caste and look down upon Kolis as their inferiors. On the date of the incident, in the evening, the village people had collected in the chowk, an open space in the heart of the village to witness the performance of tightrope dancers. A rope is tied tightly on two poles installed at a reasonable distance from each other. On the tightrope moves a dancer. The performance includes tightrope-walking with utensils on the head of the dancer. The performer is rewarded by making a bid amongst the viewers; the one whose bid is the highest has the honour of lifting and putting down the utensils from over the head of the dancer. The highest bid is thus symbolic of honour to the bidder and a reward to the performer. Witnessing the performance were Thakores of the village and so also the Kolis. Two petromax were burning to provide illumination. As the show neared its end Thakore Magansing Dadusing, Accused 2 made a bid for lifting the utensils. But the deceased, Amuji Narsangji Koli made a higher bid which was protested to by Gajrabai, Accused 5 saying why the Kolis were bidding higher than the Thakores. There was a heated exchange of words followed by a quarrel and then knife and dagger being stretched out and wielded.

3. According to the prosecution Magansing, Accused 2 had taken out a knife from his waist by which he dealt blows on Sabuji Viraji and Amuji Narsangji. Kubersing, Accused 1 gave a dagger-blow in the abdomen of Amuji Narsangji. Kubersing also caused a stab wound to Narsingji Hiraji. Magansing, Accused 2 also gave a knife-blow on the back of Amuji Narsangji. Magansing also caused injury to Sabuji in his abdomen. Accused 1 and 2 caused injuries by sharp-edged weapons to other witnesses also belonging to the Thakore community who tried to intervene. Gajrabai, Accused 5 gave a stick-blow to Viraji Devaji causing a fracture of his hand. Other accused, excepting Accused 1 and 2 were throwing katars, sticks, clubs etc. by which several other persons got injured. All the other villagers and the group of dance performers ran away from the chowk leaving the injured and the accused persons behind. After causing several injuries the accused persons left the chowk for their houses. The injured persons belonging to the Thakore community were being taken to their houses but some of them found it difficult to walk. They sat down on the otta of Kalkamata Temple. A camel-cart was summoned. On it all the injured were seated and taken to Shirohi where they reached the dispensary at about 11.30 p.m Narsingji Hiraji succumbed to his injuries on the way. Sabuji Viraji was taken to Mehsana where he too died on account of his injuries. Amuji Narsangji was taken to Deesa and he died thereat. Takhaji Hiraji, one of the injured persons, leaving behind the seriously injured persons in the hospital at Shirohi went to the police station and lodged FIR of the incident. The police registered crime under Sections 302 and 307 and several other sections of the Indian Penal Code and commenced investigation. Autopsies on the dead bodies of Narsingji Hiraji, Sabuji Viraji and Amuji Narsangji were conducted. All other injured persons were also medico-legally examined. It is not necessary for us at this stage to notice such details of the incident as have become insignificant consequent upon 5 of the 8 accused persons having been acquitted by the trial court and their acquittal having remained unchallenged. We will only notice such details of the prosecution case as are relevant and significant for the purpose of testing the legality of the acquittal of the three accused-respondents as recorded by the High Court.

4. Sabuji Viraji was examined by Dr Varvadia, PW 2 on 24-3-1980 at about 12.15 a.m He found one incised wound on the left side of the upper part of the abdomen, another incised wound on the left palm and a third incised wound on the scalp. Sabuji Viraji was referred to the medical officer, Deesa for further treatment. He was transferred to Mehsana where he expired on 30-3-1980. The post-mortem was conducted by Dr Solanki, PW 4. He found the same 3 injuries on the body of the victim which were ante-mortem. The cause of death was acute peritonitis caused by the injuries. Thus, the death of Sabuji Viraji was homicidal.

5. Amuji Narsangji was examined by Dr Patel, PW 5 of Deesa on 24-3-1980 at 1.45 a.m The condition of the patient was precarious and he succumbed to his injuries on the table at about 2 a.m The post-mortem was also conducted by Dr Patel. Amuji Narsangji had sustained one stab wound 4 cm × 2 cm on the right side of epigastrium, deep up to peritoneum cavity. Intestinal loops were cut and were coming out from the wound. There were 8 other incised wounds on his chest, left elbow, forehead and parietal region. Internally the superior mesenteric artery was cut off and the peritoneum cavity was full of blood and the upper part of intestines were completely out. It is this injury which had proved to be fatal. All the injuries were ante-mortem.

6. Post-mortem on the dead body of Narsingji Hiraji was conducted by Dr Amin of Deesa, PW 20. He found the patient having suffered one stab wound on the anterior abdominal wall above the umbilicus, deep to peritoneal cavity. Peritoneum was full of blood. This stab wound was sufficient in the ordinary course of nature to cause death. The patient had suffered two other incised wounds in the jejunum with perforations thereof. All the injuries were ante-mortem.

7. There are 5 stamped prosecution witnesses who had sustained injuries. Gajaji Viraji, PW 10, Takhaji Hiraji, PW 8 and Amuji Khumaji, PW 11 were examined by Dr Varvadia, PW 2. Gajaji Viraji had sustained two incised wounds, one on the upper part of chest and the other on the left index finger. Takhaji Hiraji had suffered two incised wounds on forehead and abdomen and one stab wound on the left loin and one abrasion on left elbow. Amuji Khumaji was found to have sustained defused swelling over the left forearm with suspected fracture. However, X-ray examination conducted by Dr Sutaria, PW 7 did not confirm any bone injury suffered by Amuji Khumaji.

8. Dr Sutaria, PW 7 had examined Viraji Devaji, PW 15. Viraji Devaji had diffused swelling over the left forearm with fracture of the left radius and one abrasion on the left forearm. The former was a grievous injury while the latter was a simple one. Gambhirji Narsangji was found to have sustained an incised wound on the right side of the chest. The patient was admitted for treatment indoors and discharged in 11 days.

9. Thus, there were three persons who had met with homicidal death and five persons injured on the side of the prosecution party. The five injured were examined as prosecution witnesses. The medico-legal examination of the injured persons had taken place a little after midnight on the day of the incident itself. The duration of the injuries sustained by all the injured persons as opined by the doctors conducting medico-legal examinations, coincided with the time of the incident.

10. Here itself it will be relevant to mention that some of the accused persons had also sustained injuries and they were medico-legally examined between midnight and 2.10 hours in the early morning of 24-3-1980. Kubersing Chamansing, Accused 1, Magansing Dadusing, Accused 2 and Gajrabai Maganji, Accused 5 were examined by Dr Varvadia, PW 2. Magansing Dadusing was found to have sustained in all twenty injuries. There were two incised wounds on the scalp, six contusions, five abrasions and two contused lacerated wounds on his person spread over the neck, right arm and back. He also had a fracture of the left index finger. All the injuries except the two on the scalp were caused by a hard and blunt weapon. Gajrabai, Accused 5, had six contusions, four contused lacerated wounds and one abrasion on different parts of her body. Subaben alias Shivuba, Accused 7 and Mungiben, Accused 6 were examined by Dr Keshavlal Patel, PW 3. Subaben alias Shivuba had one abrasion and one contusion on the left hand. Mungiben was found to have a weal mark on the left shoulder joint and tenderness over the right and left knee joints. Thus the injuries sustained by Accused 1, 6 and 7 were simple, rather minor injuries.

11. When PW 10 reached the police station for lodging first information report of the incident, Kubersing, Accused 1 was already present at the police station and he had also lodged a report of the incident, Ext. 69.

12. At the trial, there were 21 witnesses examined on behalf of the prosecution. These include 5 eyewitnesses of the incident, namely, Gajaji Viraji, PW 10; Takhaji Hiraji, PW 8; Amuji Khumaji, PW 11; Viraji Devaji, PW 15; and Gambhirji Narsangji, PW 9. All these witnesses have themselves suffered injuries and therefore their presence at the place of the incident cannot be doubted. Apart from this there is the dying declaration of Sabuji, deceased, Ext. 28, recorded by Pravinchandra Gandhi, the Executive Magistrate at 10.20 p.m on 25-3-1980 and yet another dying declaration Ext. 60 recorded by Constable Kesharam, PW 16, a little before midnight. The trial court minutely examined the testimony of all the eyewitnesses and found them worthy of reliance.

13. The defence of the accused persons was one of denial so far as the injuries caused on the side of the prosecution are concerned. However, they pleaded that the prosecution party was the aggressor and had caused multiple injuries to five of the accused persons and that too near the house of the accused persons which is situated at a distance of about 200 feet from the chowk. The learned Sessions Judge, having minutely examined, marshalled and appreciated the entire evidence available on record, found the prosecution version to be truthful and negated the defence. It will be useful to sum up briefly the findings arrived at by the learned Sessions Judge:

(i) There were bloodstains and bloodstained earth in the chowk. The petromax at the scene of offence was lying broken. According to the FIR, Ext. 69, lodged by Accused 1 and produced by PW 21 Head Constable, some incident had taken place at the chowk and when the accused had left the chowk and reached their home, then they were assaulted by the prosecution party. This happening of the incident in the chowk was substantiated by the circumstances and was partly admitted by the defence also in their earliest version of the incident i.e the FIR lodged by one of the accused persons. However, no trace of blood and no visible signs of violence were found near the houses of the accused persons and, therefore, it could be safely inferred that the incident had taken place only in the chowk and not near the houses of the accused persons.

(ii) The prosecution witnesses and the three deceased on the one hand and the accused persons on the other hand did not have any previous enmity. They were residents of the same village. The incident had erupted on the spur of the moment. It was a case of sudden fight. It cannot be said that the accused persons had any common intention to beat anyone or that they had any common object for which they had formed an unlawful assembly. Their presence in the chowk to witness the show was quite natural and, therefore, the question of convicting anyone with the aid of Section 34 or Section 149 IPC does not arise.

(iii) Thakore Kubersing Chamansing, Accused 1 is proved to have caused a dagger-blow in the abdomen of Amuji Narsangji which proved to be fatal. He is liable to be convicted under Section 302 IPC.

(iv) Thakore Kubersing Chamansing, Accused 1 is guilty of causing a dagger-blow in the abdomen of Narsingji Hiraji which blow proved to be fatal and therefore Accused 1 is responsible for causing the death of Narsingji Hiraji and hence liable to be convicted under Section 302 IPC on this head of charge too.

(v) Thakore Magansing Dadusing, Accused 2 is responsible for causing the incised wound to Sabuji Viraji in his abdomen resulting in his death. He is liable to be convicted under Section 302 IPC.

(vi) Thakore Magansing Dadusing, Accused 2 had caused an incised wound 2″ × 1/4″ × 1/4″ on the right side of the chest of Gambhirji Narsangji, the only injury suffered by him. The injury caused was by a dagger-blow. However, the nature of the injury was simple. Accused 1 was, therefore, liable to be convicted under Section 324 IPC for causing a simple hurt by a sharp weapon to Gambhirji.

(vii) Gajaji Viraji had sustained two injuries by a sharp-cutting weapon at the hands of Kubersing, Accused 1. The injuries were simple in nature. Accused 1 was, therefore, responsible for causing simple injuries to Gajaji Viraji by means of a sharp-cutting weapon, an offence punishable under Section 324 IPC.

(viii) Magansing, Accused 2 had given a knife-blow to Takhaji Hiraji, PW 8. The injuries were simple in nature. Magansing, Accused 2 was, therefore, liable to be convicted under Section 324 IPC for causing simple injuries by a sharp weapon to Takhaji Hiraji (para 27).

(ix) The authorship of injuries caused to Amuji Khumaji was not established and, therefore, none of the accused was liable to be convicted for causing simple injuries by a sharp weapon to Amuji Khumaji (para 28).

(x) Abrasion on the left forearm with diffused swelling and fracture of the left radius on the person of Viraji Devaji were caused by a blunt weapon like a stick by Thakore Gajrabai, Accused 5. She was, therefore, liable to be convicted under Section 325 IPC.

(xi) As for Accused 3, 4 and 6 to 8, the prosecution case was that they had indulged in throwing katars and sticks etc. However, the prosecution witnesses were not consistent about the part played in the incident by these accused persons. Their presence at the place of the incident, in the facts and circumstances of the case, was innocuous and, therefore, by their mere presence at the place of the incident, they could not be held liable to conviction along with the other accused persons with the aid of Section 34 or 149 IPC.

14. The most important plea raised on behalf of the accused persons before the trial court was that the prosecution witnesses did not offer any explanation for the injuries sustained by the accused persons. This showed, according to the defence, that the genesis of the incident was being concealed by the prosecution witnesses and the whole truth was not placed before the court which lent support to the defence version that the incident, in all probability, took place in the manner and at the place suggested by the defence, that is to say, the incident had taken place near the houses of the accused persons where the persons belonging to the prosecution party were the aggressors. The trial court opined that insofar as the injuries sustained by Accused 1 and 5 to 7 are concerned, they were all injuries of a very minor nature and their non-explanation did not cause any infirmity in the prosecution case. Magansing Dadusing, Accused 2, had sustained several injuries of which two were incised wounds and one was a fracture on the finger. The trial court held that several persons were participating in the incident and several persons were injured. In such a melee it was difficult to exactly locate how the injuries on the person of Accused 2 were sustained. Accused 2 himself does not suggest how and in what manner he sustained injuries. Katars and sticks were thrown during the incident. In the peculiar facts and circumstances of the case, mere non-explanation of the injuries on the person of Accused 2 was not fatal to the prosecution case.

15. On the abovesaid findings, the trial court convicted the three accused-respondents as under:

(1) Accused 1 was convicted under Section 302 IPC for committing the murder of Amuji Narsangji and sentenced to imprisonment for life.

(2) Accused 1 was also convicted for committing the murder of Narsingji Hiraji and sentenced to imprisonment for life.

Both the substantive sentences were directed to run concurrently.

(3) Accused 1 was also convicted under Section 324 IPC for voluntarily causing hurt to Gajaji Viraji and Gambhirji Narsangji but no separate sentence was passed.

(4) Accused 2 was convicted under Section 302 IPC for committing murder of Sabuji Viraji and was sentenced to imprisonment for life.

(5) Accused 2 was also convicted under Section 324 IPC for causing hurt to Takhaji Hiraji but no separate sentence was passed.

(6) Accused 5 was convicted under Section 325 IPC for voluntarily causing grievous hurt to Viraji Devaji. However, she was ordered to be released on probation of good conduct on executing a bond of Rs 1000 with one surety for a period of one year for keeping peace. She was also ordered to pay compensation of Rs 500 to Viraji Devaji.

(7) Accused 1, 2 and 5 were acquitted of the rest of the charges.

(8) Accused 3, 4, 6, 7 and 8 were acquitted of all the charges.

16. The three convicted accused persons preferred an appeal, as already stated. The Division Bench of the High Court has, in its brief judgment, acquitted the accused persons mainly influenced by two considerations. Firstly, the High Court has felt that as there was only one incident which had taken place in the chowk, the injured accused persons must have sustained injuries during the course of the same incident and as the prosecution witnesses did not explain how the accused persons sustained injuries, it could be safely inferred that the prosecution witnesses were suppressing the genesis of the incident. The High Court has also observed that looking to the numerous injuries sustained by the accused persons it can reasonably be inferred that the accused persons were in grave apprehension of death or grievous injury being caused to the accused persons or to any one or more of them and hence they were entitled to use weapons for their own protection. They cannot be said to have exceeded their right of self-defence. Another reason which has prevailed with the High Court is that though several persons were present at the place of the incident the prosecution has not examined any independent witness. The eyewitnesses examined on behalf of the prosecution are related with the deceased and the injured. The combined effect of these two factors was that the testimony of the witnesses could not be believed. As for the dying declaration, the High Court has observed that the dying declaration also does not explain the injuries on the persons of the accused persons and coupled with the fact that the version of the prosecution as given in the court was being disbelieved, the dying declaration could not alone form the basis of conviction. On these findings, the appeal has been allowed and the respondents acquitted. The High Court has not entered into appreciation of evidence. No effort has been made by the High Court at marshalling the evidence and assessing the intrinsic worth of the testimony of the prosecution witnesses which, as we have already noted, were the persons undoubtedly present at the place of the incident having themselves suffered injuries.

17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singh v. State of Bihar (2000) 4 SCC 298, Ram Sunder Yadav v. State of Bihar (1998) 7 SCC 365 and Vijayee Singh v. State of U.P (1990) 3 SCC 190, all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.

18. The High Court was therefore not right in overthrowing the entire prosecution case for non-explanation of the injuries sustained by the accused persons. The High Court ought to have made an effort at searching out the truth on the material available on record as also to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful.

19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein. The injuries sustained by these witnesses are not just minor and certainly not self-inflicted. None of the witnesses had a previous enmity with any of the accused persons and there is apparently no reason why they would tell a lie. The genesis of the incident is brought out by these witnesses. In fact, the presence of the prosecution party and the accused persons in the chowk of the village is not disputed. How the vanity of the Thakores was hurt leading to a heated verbal exchange is also not in dispute. Then followed the assault. If the place of the incident was the chowk then it was a sudden and not premeditated fight between the two parties. If the accused persons had reached their houses and the members of the prosecution party had followed them and opened the assault near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons in which case non-explanation of the injuries sustained by the accused persons would have assumed significance. The learned Sessions Judge has on appreciation of oral and circumstantial evidence inferred that the place of the incident was the chowk and not a place near the houses of the accused persons. Nothing more could have been revealed by other village people or the party of tightrope dance performers. The evidence available on record shows and that appears to be very natural, that as soon as the melee ensued all the village people and tightrope dance performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eyewitnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eyewitnesses consistent and reliable in their narration of the incident. In our opinion non-examination of other witnesses does not cast any infirmity in the prosecution case.

20. Thus, we are of the opinion that the two grounds on which the High Court has reversed the judgment of the Sessions Court were irrelevant and could not have been relevant for such reversal. Justice has been made sterile by exaggerated adherence to rule of proof. Benefit of doubt must always be reasonable and not fanciful.

21. As we have already stated, we have ourselves minutely scrutinised the evidence available on record. We do not find any infirmity in the findings arrived at by the learned Sessions Judge fixing the liability on the accused persons by pointing out the specific overt act attributed to each of the accused persons. However, on the determination of the nature of offence committed by one of the accused persons, we are at variance with the finding of the learned Sessions Judge which we will state a little later. We do not deem it necessary to restate in very many details our own findings as to the exact role played by the three accused-respondents inasmuch as they are the same as have been recorded by the learned Sessions Judge. However, briefly we would indicate what we have found from the appreciation of evidence.

22. Kubersing, Accused 1 dealt a blow by dagger on the abdomen of Amuji Narsangji. This injury proved fatal. It was sufficient in the ordinary course of nature to cause death. All the witnesses have attributed this fatal injury on the person of Amuji Narsangji to Kubersing, Accused 1. Thus he has been rightly convicted of an offence punishable under Section 302 IPC for causing the death of Amuji Narsangji.

23. Narsingji Hiraji had sustained only one stab wound in the abdomen. The weapon had penetrated deep cutting the intestines which shows the force by which the blow was dealt. The author of this injury is Kubersing, Accused 1 as deposed by all the witnesses. This injury was also sufficient in the ordinary course of nature to cause death. Kubersing, Accused 1 is therefore guilty of offence punishable under Section 302 IPC also for causing the death of Narsingji Hiraji.

24. Dr Varvadia, PW 2, who examined Sabuji Viraji on 24-3-1980 at 12.15 a.m found him to have sustained 3 injuries of which the incised wound on the left side of the upper part of the abdomen was 1″ × 1/4″ × 1/4″. This injury is attributed to Magansing, Accused 2 by all the prosecution witnesses. They are consistent on this point and not shaken in cross-examination. The dying declaration, Ext. 28 made by the deceased Sabuji and recorded by the Magistrate also attributes authorship of this injury to Magansing, Accused 2. However, what has to be really determined is the nature of this injury. In his statement Dr Varvadia has not stated the nature of the injury caused. Sabuji Viraji died on 30-3-1980. Post-mortem on his dead body was conducted on 31-3-1980 by Dr Solanki, PW 4. Dr Solanki, PW 4, conducted post-mortem on the dead body of Sabuji on 31-3-1980 at 10.20 a.m He found the wound stitched. On opening it he found internally — “large intestine sutured, wound 2.5 cm on splenic flexure gaping containing faecal matter; surrounding area of wound was red in colour; opening was found absent”. The cause of death in the opinion of Dr Solanki was shock due to acute peritonitis. None of the two doctors has deposed if the injury was grievous or sufficient in the ordinary course of nature to cause death or that the injury was so imminently dangerous that it must have in all probability resulted in death or was likely to cause death. The exact cause of peritonitis is not known. That negligence to treat the wound could be a contributing factor cannot be ruled out. In such state of medical evidence it will not be proper to draw an inference against Magansing, Accused 2 of his having committed murder of Sabuji Viraji punishable under Section 302 IPC. The injury dealt by him by a sharp weapon had cut into the intestine. Though an intention to cause death or such bodily injury as is likely to cause death cannot be attributed to him, knowledge is attributable to Accused 2 that an injury by a knife into the abdomen was likely to cause death. As it was a case of sudden fight, the act of this accused would amount to culpable homicide not amounting to murder punishable under Part II Section 304 IPC. The other injuries on the person of Sabuji are not attributed to Accused 2 Magansing.

25. Insofar as Gajrabai Magansing, Accused 5 is concerned, her causing grievous hurt to Viraji Devaji by a stick is proved beyond reasonable doubt. Viraji Devaji's own statement to this effect is fully corroborated by other eyewitnesses and medical evidence. In our opinion, she was rightly convicted by the learned Sessions Judge under Section 325 IPC.

26. We do not deem it necessary to further discuss the evidence and record our findings as to offences punishable under Section 324 IPC committed by Accused 1 and Accused 2 for causing injuries by a sharp weapon to other prosecution witnesses inasmuch as the learned Sessions Judge having recorded a finding of guilt on those counts has chosen not to pass any sentence of imprisonment and therefore such exercise would be futile at this stage, also in view of the nature of sentences which are being passed on the accused-respondents.

27. For the foregoing reasons the appeals are partly allowed. The judgment of the High Court, under appeal, is set aside. The finding of guilty as recorded by the trial court along with the sentence passed thereon on the respondent Kubersing Chamansing (Accused 1) are restored, that is, he is held guilty of offences punishable under Section 302 IPC on two heads respectively for causing the death of Narsingji Hiraji and Amuji Narsangji. He is sentenced to imprisonment for life on both the counts. Both the sentences shall run concurrently. The acquittal of Magansing Dadusing, Accused 2 under Section 302 IPC is maintained. However, he is held guilty of an offence punishable under Section 304 Part II IPC for causing culpable homicide not amounting to murder of Sabuji Viraji and is sentenced to undergo rigorous imprisonment for a period of five years with a fine of Rs 2000 in default of payment whereof he shall undergo further imprisonment for a period of six months. The amount of fine, if realised, shall be paid as compensation to the heirs of late Sabuji. The acquittal of Gajrabai Magansing, Accused 5 under Section 325 is set aside and instead her conviction along with the sentence as passed by the trial court is restored. The bail bonds of Kubersing Chamansing and Magansing Dadusing are hereby cancelled. They shall surrender and be taken into custody for serving out the sentences as passed hereinabove. Gajrabai, respondent-Accused 5 shall be called upon to execute the bond and furnish one surety as ordered by the trial court. The amount of Rs 500 shall be recovered from her as fine and paid by way of compensation to Viraji Devaji as ordered by the trial court. The appeals stand disposed of accordingly.