STATE OF GUJARAT Vs. RASULMIYAN AHMEDMIYAN MALEK

JUDGEMENT

(1.) This appeal has been filed by the State against the judgment of the High Court of Gujarat confirming the order of acquittal passed by the Additional Sessions Judge, Ahmedabad (Rural). Before the Additional Sessions Judge, nine accused were tried for offences punishable under Sections 147, 302, 307, 148 read with Sections 149 and 109, I.P.C. and Section 25(1)(a) of the Indian Arms Act. They were also tried for offences punishable under Sections 323 and 324, I. P. C. for causing hurt to P. Ws. 1, 2, 4, 5 and 6. On June 1, 1975 at about 10 p.m. in Sipaawida Village (Ahmedabad District) it is alleged that all these accused -respondents were members of an unlawful assembly with the common object of taking possession of the house forcibly from the possession of P.Ws. 4, 9 and others. P.W. 9 is the brother of P. W. 4. They along with their another brother Babumiya were staying at Sipaawida. One of the brothers Abbasmiya was living separately. P.W. 9 and P.W. 4 were staying with their brother Babumiya in a family house which was also claimed by the accused Nos. 1, 2 and others. Accused Nos. 1 and 2 were very much insisting to take possession of the family house which was occupied by PW. 9, PW. 4 and Babumiya but P.Ws. 9 and 4 were not parting with the possession. On the day of occurrence, accused Nos. 1 and 2 who were the uncles of PM. 9, PW. 4 and Babumiya came near the house of P.W. 9 and they started abusing them. On exchange of abusive words the accused went near their house and started threatening them. Accused No. 3 who is the son of accused No. 2 also came there. The other accused also came on the spot having armed themselves with sticks. Accused No. 1 went inside the house and brought a spear and accused No. 3 brought a Danti. Accused No. 2 took out a knife from his pocket and inflicted an injury on PW. 4. The accused No. 1 held PW. 9 by his throat and started throttling him. By that time P.Ws. 2, 5, 8 and the deceased Javidmiya also came there and they tried to intervene. It is alleged that at that point of time accused No. 1 inflicted a spear blow on the chest of deceased Javidmiya and accused No. 2 inflicted a knife blow on the abdomen of the deceased and the deceased fell down. It is also alleged that PM. 5 also received injuries. In the course of the same occurrence P.Ws. 1 and 3 also received injuries but the injuries are said to be superficial. The deceased was then removed in a private car to Ahmedabad. The Doctor treated them. The deceased, however, expired. A case was registered, investigation was commenced and a charge-sheet was filed. The Doctor who conducted post-mortem on the deceased, found a knife injury on the stomach. He found a punctured wound l/ 4" x l/ 6" in size and oval in shape over the anterior aspect of the left side of the chest and there were two abrasions.. He also found an incise wound 2 1/2" x 1/2" going deep upto the abdomen. The Doctor opined that the injuries were ante-mortem and resulted in death. The prosecution examined 18 witnesses. P.Ws. 3, 4 and 9 are some of the important witnesses. The plea of the accused was of total denial. The learned Additional Sessions Judge after consideration of the evidence held that the evidence of the eye-witnesses is in total conflict with that of medical evidence and they are all interested. The Court also noted that the injuries on accused Nos. 1 and 3 have not been explained and accordingly acquitted the accused. Before the High Court the same contentions were put forward by the prosecution namely that the eye-witnesses are all injured and the discrepancies pointed out by the trial Court are trivial and the view taken by the trial Court is wholly unsound. The appellate court has elaborately dealt with all these submissions. It may be mentioned here that the complainant PW. 2 also filed a criminal revision against acquittal and that was also dismissed.

(2.) The learned Counsel for the appellant has contended before us that the view taken by the both courts is wholly unsound and perverse. According to him even if, the witnesses have given a discrepant version as to how they received injuries but that by itself is not a ground to reject their evidence in toto. According to him, the dictum falsus in uno falsus in omnibus cannot be made applicable to these witnesses.

(3.) The learned counsel, however, could, not substantiate that these accused were members of an unlawful assembly but contended that this was a free fight and each would be liable for his individual acts and in this view of the matter he submitted that the case against accused No. 2 is clearly made out, namely, that he inflicted a knife injury on the deceased and, therefore, he should be convicted. So far other accused are concerned, even according to the prosecution, the accused have inflicted some minor injuries on some of the witnesses but the medical evidence in respect of each of the accused has been carefully considered by both the courts below and they have rightly held that they have not received these injuries in the manner they have alleged. Therefore, the prosecution has miserably failed to make out a case against the other accused. So far as accused No. 2 is concerned, both the courts have, held that the evidence of these eye-witnesses is not reliable as it is in conflict with the medical evidence. Therefore, their evidence is rejected. They have also not explained injuries on accused Nos. 1 and 3. The learned Counsel, however, submits that the injuries found on the accused are superficial and the prosecution need not necessarily explain. But since we are dealing with an appeal against acquittal we have to see whether the view taken by the Courts below in this regard is erroneous. The Courts below have also noted that all the injuries found on P.Ws. 4, 9 and Babumiya are very superficial and as a matter of fact P.W. 9 did not even take any treatment. Both the Courts below also doubted the evidence of P. W. 9 the principal witness because though he alleged that accused No. 3 throttled him but not an abrasion found. Both the Courts have considered evidence of these witnesses in great detail and held that their evidence do not inspire confidence. The appellate Court in particular pointed out that the improvement in the evidence of these witnesses are deliberate and intentional and the appellate Court also observed that the order of acquittal should not lightly be interfered as the trial Judge had the additional advantage of watching the demeanour of the witnesses and that if two reasonable views are possible, one which is more favourable to the accused should be accepted.