KANTIJI CHANDUJI THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal arises from the impugned judgment and order dated 3/12/1990 rendered by the Ld. Addl. Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 26/1990. The appellants who have been referred to as 'the accused' in this judgment came to be convicted and sentenced for the offences punishable u/Ss. 302 read with section 149, 307 read with section 149, 325 read with section 149, 324 read with section 149, 323 read with section 149 and sections 147 and 148 of the Indian Penal Code (for short 'IPC'). They have been sentenced to life imprisonment by way of substantive sentence for the main offence. They have also been sentenced to pay fine for the respective offences. The prosecution presented the incident in respect of which the accused persons have been charged before theLd. Addl. Sessions Judge as per the following particulars :- The incident occurred at around 5 O'clock in the evening on 1/10/1989 in village Shertha. The victims as also the deceased on one side and the accused persons on the other side happened to be the relatives. They were, however, not on talking terms and relations were strained long before. It so happened that on the penultimate day of the day of incident accused no. 6 Punjaji Lakhaji Thakor was hurling abuses while in drunken condition. On that occasion Becharji Ravaji (since deceased) scolded him resulting into accused no. 6 getting enraged. Accordingly on the day of incident the accused persons armed with deadly weapons formed common object of killing Becharji Ravaji and they accordingly formed unlawful assembly and reached the place of incident while giving abuses. They accordingly assaulted Becharji Ravaji. Accused no. 1 gave a Dhariya blow (blow of scythe) resulting in Becharji Ravaji falling on to the ground and the accused persons then started beating him. During the course of the incident witnesses Sendhaji Becharji, Jivanji Becharji, Maniben Becharji, Shardaben Jivanji and Chanchiben Kanaji intervened. The accused persons also assaulted them with their respective weapons and caused injuries on different parts of the person of the respective witnesses. They accordingly caused grievous hurt to the witnesses so assaulted. The accused persons then left the place of incident. It has been alleged that accused no. 1 Kantiji Chanduji, accused no. 2 Maganji Lilaji, accused no. 7 Jivanji Lalji and accused no. 8 Chaturji Chhotaji Thakor were armed with Dhariyas, accused no. 3 Babuji Lalji was armed with iron rod, accused no. 4 Amratji Maganji was armed with stick, accused no. 5 Khodaji Dhulaji was armed with Dhoka (bat like stick) and accused no. 6 Punjaji Lakhaji Thakor was armed with Danti (weapon like scythe with teeth). F.I.R. in respect of the incident in question was lodged at about 7 O'clock in the evening on the same day at Adalaj Police Station and the injured witnesses were sent for treatment under police Yadi. Deceased Becharji Ravaji was taken to Civil Hospital, where, in the evening he was declared dead. After the investigation was carried out, the case was committed to the Sessions Court, Ahmedabad (Rural) and the accused persons were charged with the aforesaid offence as per charge exh. 4. At the conclusion of trial it was submitted on behalf of the defence that it was not established beyound reasonable doubt as to who gave Dhariya blow to the deceased, that 6 accused persons were implicated in the F.I.R.; whereas different accused persons surfaced in the evidence of different witnesses. It was also submitted that there was some variation/contradiction in the evidence of witnesses, who happened to be interested witnesses. Relying upon the medical evidence it was submitted that there was difference with regard to the injuries sustained as compared to the ocular account of the incident. It was also submitted that the prosecution did not explain the appearance of blood stain at the place nearby the house of the accused. Hence, the prosecution should be treated as having not been able to establish beyond reasonable doubt formation of unlawful assembly as well as common object. The defence has not adduced any evidence. Upon appreciation of the evidence adduced before the Ld. Addl. Sessions Judge, the Ld. Addl. Sessions Judge has accepted the evidence of the eye witnesses including the injured eye witnesses while observing that the witnesses are not the intelligent witnesses and even then they have been able to narrate the incident with reasonable certainty and uniformity. Some errors/omissions or variations have been found to be not material and instead they have been found to lead to the evidence becoming natural and inspiring confidence for being accepted. Dealing with the charge regarding unlawful assembly and common object attributed to the accused persons Ld. Addl. Sessions Judge has observed that there was enmity between accused persons on one side and the complainant party on the other side. In this background, it has been observed that there cannot be any fixed or ascertained formula for attributing common object which has to be gathered from the circumstances of the case and the conduct of the accused persons at the time of the incident. It has been noted that all the 8 accused persons reached the place of incident with deadly weapons which could be used for commission of the offence in question. They immediately assaulted Becharji Ravaji (since deceased). The first accused gave a Dhariya blow on the head of said deceased. The circumstances would indicate that there was preparation for counteracting any opposition at the time of incident. This fact could be noticed from the conduct of the accused persons at the time of the incident. If the injured witnesses were not present at the time of the incident, none of them could have been injured. Besides, the accused persons were conversant about the fact that the relatives were residing in the vicinity of the house of deceased Becharji Ravaji. Under such circumstances, the Ld. Addl. Sessions Judge has concluded that there was apparently common object on the part of the accused persons to kill Becharji Ravaji and also to injure all those who would come in the way. Accordingly the concerned witnesses came to be injured during the course of the incident as they intercepted the assailants. Thus, there were more than five persons being the accused persons who formed common object of assaulting and killing Becharji Ravaji and they acted accordingly while themselves armed with deadly weapons going to the place of the incident and assaulting the deceased. The Ld. Addl. Sessions Judge has, therefore, concluded that the ingredients of section 141 of the IPC have been complied with. The offences punishable with the aid of section 149 were thus held to have been committed by the accused persons. Conviction accordingly has also been rendered u/Ss. 147 and 148 of the IPC. The accused persons have subjected the said conviction and their consequence sentence to challenge in this appeal before this Court.

(2.) This appeal, having been placed for final hearing, has been extensively heard. The evidence which has been adduced before the Ld. Addl. Sessions Judge has already been read and commented upon. It would first be appropriate to make a synopsis of the evidence and then to deal with the submissions made. The prosecution examined following witnesses at the trial :-

(3.) It has first been submitted by Mr. Shethna, the Ld. Counsel appearing for the accused persons that the prosecution story proceeds on the line of all the accused persons having assaulted with deadly weapons deceased Becharji; whereas the medical evidence in the form of post mortem report would indicate that Becharji, since deceased, had only one injury on the head. It would, therefore, be apppropriate to deal with the medical evidence qua deceased Becharji, in order to appreciate the submissions of Mr. Shethna. For that purpose reference has first been made to the evidence of Dr. Ravindra Bhise, P.W. 8 exh. 55 and post mortem notes exh. 56. Speaking to the post mortem report Dr. Ravindra S. Bhise has testified that following external injuries appeared on the dead body of Becharji Ravaji Thakor :