KISHORBHAI DAHYABHAI CHAUHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These appeals are preferred from common judgment and order dated 08.11.2004 of learned Additional Sessions Judge, Bhavnagar. All the appellants are, by the impugned judgment, convicted for the offences punishable under section 302 read with section 34 of the Indian Penal Code (IPC) and accordingly sentenced to imprisonment for life and fine. According to the prosecution case, the complainant and his friend Pravin were sitting in a rikshaw at the rikshaw stand at around 7.30 p.m. on 25.3.2004 when the accused-appellants came there and one of them, Kishor Bachubhai, called upon Pravin and asked his companions to beat up the victim. Then, Budhabhai @ Kaliyo, Kishor Dahya and Pratap Dana came out of the rikshaw and seeing knife in the hands of Kaliyo, the victim gripped his hand, but Kishor Bachubhai and Kishor Dahya caught hold of the victim and Kaliyo repeatedly stabbed the victim after regaining the knife from the victim. Then, Kishor Bachubhai took the knife from Kaliyo and dealt two stabbing wounds on the chest of the victim. The cause of the altercation was alleged to be that Kishor Bachubhai and Pravin had a quarrel before about two months about a bi-cycle. The victim Pravin was taken to the government hospital where he succumbed to the injuries and chargesheet for the offence under section 302 of IPC came to be filed against all the accused persons after the investigation. For the sake of convenience, the accused-appellants are described herein as A-1 (Budabhai @ Kaliyo, son of Bholabhai Shamjibhai Vegad), A-2 (Kishorbhai, son of Dahyabhai Lakhmanbhai Chauhan), A-3 (Kishor @ Khanna, son of Bachubhai Nanubhai Dharajiya) and A-4 (Pratap @ Bobi, son of Danubhai Chhaganbhai Parmar). According to the charge framed on 29.7.2004, A-1 and A-2 had caused the fatal injuries and A-3 and A-4 had held the victim to commit the offences punishable under section 302 read with section 34 of IPC and under section 135 of Bombay Police Act.

(2.) Among the important witnesses examined by the prosecution, Vinubhai Valjibhai (PW.1, Exh.15) deposed that he was a friend of the victim Pravin and had been with him on the fateful day and had been sitting in a rikshaw after dark. At that time, somebody came and asked whether Pravin was there. After Pravin alighted from rikshaw, that person had dealt blows on the victim and run away in two to three seconds. Thereafter, he and Mansukhbhai, the rikshaw driver, had taken Pravin to hospital and informed the wife and the younger brother of Pravin. He turned hostile and claimed ignorance about what was written in his statement before Police. He denied all the important suggestions made during his cross-examination and stuck to his stand that he did not know the assailants. Upon being asked by the Court, he stated that he was afraid of the assailants as they might as well kill him. During his cross-examination by the defence, he deposed that the accused were used to go for eating pav bhaji at the cart of the victim and they had a quarrel with Pravin about 15 to 20 days before the incident. He admitted that the victim had four or five cases pending against him for scuffles and beating, and he had also been in jail for a year under the Prevention of Anti Social Activities Act (PASA). He also admitted that the victim was of highly irritable nature, and that the incident had happened where there was no street light in the vicinity, but it was a public square and he had not come out of the rikshaw at the time of the incident.

(3.) The trial Court has, after reference to the relevant evidence, recorded the findings that the witness Mansukhbhai (PW.2) was definitely at the spot and had disclosed the names of at least two assailants before the other witnesses when he rushed to inform them. That blood of the group of the blood of the victim was found on the clothes of all the accused persons, except A-4, and the knife, weapon of the offence, with blood of the blood group of the victim was recovered at the instance of A-1. It was held to have been proved that the fatal injuries could have been caused by the knife and doubts could only be raised about identity and presence of A-4 at the time of the offence. However, Vinubhai (PW.1, Exh.15) and Mansukhbhai (PW.2, Exh.16) having revealed before the police the names of all the accused persons as the assailants and the FSL report having supported the prosecution case, the appellants were convicted as aforesaid by the impugned judgment.