PURUSHOTTAM DHARMASHI VAGHRI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) xxx xxx xxx.

(2.) That having regard to the facts and circumstances of this case, presence of the accused on the aforesaid date, time and place cannot be doubted more particularly when it is the case of the appellant himself that at the relevant time, he was assaulted by the deceased Arjan and PW-5, and accordingly, this case lies within a very narrow compass to find out as to out of two competing versions on the one hand whether the one given by the prosecution should be accepted convicting him for the alleged offence punishable under Section 302 of IPC or another one that of the accused accepting the. probable defence version, the benefit should be given to the accused by acquitting him. Now on carefully going through the evidence of all the cye-witncsses, first of all it is very clear that all of them are related to the deceased Arjan Jeram. Not only that but on persuing the evidence of PW-3 Dr, Amrutbhai Devjibhai and PW-1 Dr. C. V. Ajmera, it appears that though there are three injuries which can be caused by knife, two injuries are superficial and that only injury which was sufficient in the ordinary course to cause death is one only. Bearing in mind this medical evidence in background of the prosecution case, if we turn to the defence version, it is very clear that the accused has filed NC (Exh. 79) wherein it has been alleged that on the date of the incident, the appellant and the prosecution Witnesses were gambling and during the course of the same on dispute arising, scuffle took place wherein deceased Arjan all of a sudden gave two slaps and started giving filthy abuses. Thereafter, PW-8 Gauriben Jeram while catching hold of the hand gave a blow with stone on his head. In the meantime, brother of Arjan, PW-9 and PW-5 came and they also after catching hold of hair, gave kicks and fist blows and also caused injuries on the wrist of the right hand as a result, many persons collected on the spot. In the meantime, the wife of the appellant Kidiben also appeared on the scene of the offence. This version is duly supported by PW-21 Investigating Officer who has fairly admitted that when he arrested the accused, he was injured and that he had also filed a complaint Exh. 79 against the prosecution witnesses. The explanation given by the prosecution witnesses that the accused received injuries because while running, he fell down and was injured on the head is not acceptable because the medical certificate Exh. 78 clearly goes to show that even the wrist of the right hand was swollen which corroborates the say of the accused that he was given a blow with the stick bn his hand. Under such circumstances, the prosecution case and the version given by the accused trembles in balance. On the one hand we have evidence of the prosecution witnesses who are interested not only being related but alongwith the deceased they had also attacked the appellant. Accordingly, in the facts and circumstances of this case, it appears that when the appellant was attacked by the prosecution witnesses, he in the process to save himself while whirling the knife injured Arjan and because of that he succumbed to the injury. From the nature of injuries, it appears that other two injuries are such which can be caused only when the knife was whirled. If that that is so, then the prosecution is indeed guilty of suppressing the genesis of the case and further when the prosecution witnesses are interested and as against that, the defence version given by the accused appears to be quite probable, we have been mandated by the criminal jurisprudence that the circumstances which leans in favour of the accused should be given due weight out of the two versions. Under these circumstances, it appears to us that indoubtedly, Arjan succumbed to the injuries but the circumstances under which he came to receive such injuries are such which do not fully establish the prosecution case. It definitely leans in favour of the accused, i.e. probabilising his defence and therefore we have been left with no other alternative but to give the benefit of reasonable doubt to the accused.

(3.) xxx xxx xxx.