Gujarat High Court
Ratansing Mangalsing Gohil vs State Of Gujarat & ... on 9 January, 2014
Author: Jayant Patel
Bench: Jayant Patel
R/CR.A/258/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 258 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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RATANSING MANGALSING GOHIL....Appellant(s)
Versus
STATE OF GUJARAT & 1....Opponent(s)/Respondent(s)
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Appearance:
MR KB ANANDJIWALA, ADVOCATE for the Appellant(s) No. 1 - 3 , 5
MR RAMNANDAN SINGH, ADVOCATE for the Appellant(s) No. 4 , 6 - 8
MR HARDIK SONI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
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R/CR.A/258/2010 JUDGMENT
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 09-10/01/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present appeal is directed against the judgement and order passed by the learned Sessions Judge in Sessions Case No.1/2008, whereby the learned Sessions Judge has convicted all the accused for respective offences, which shall be dealt with by us herein after at the appropriate stage. We may state that for the sake of convenience, appellants shall be referred to as per their original status in the trial Court as "A-1" to "A-8".
2. The short facts of the case are that on 2.10.2007, a complaint was filed by Kesrisang Kashibhai (PW-10) with Kavi Police Station, stating that at about 8 O'Clock in the evening when the complainant was present in the vegetable shop, he heard shouting nearby residence of Ratansing Mangalsing Gohil (A-1). When he came out from his cabin, he found that on right side the residence of Ratansing Mangalsing Gohil, A-
1 with spear in his hand, Arvindbhai Fatehsing
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Gohil, A-2 with spear in his hand, Natwarbhai Mangalbhai Gohil, A-3 with spear in his hand, Nileshbhai Raisingbhai Gohil, A-4 with stick in his hand, Vinodbhai Arvindbhai Gohil, A-5 with stick in his hand, Raisingbhai Pahdsing Gohil, A- 6 without any weapon, Ambalal Bhikhabhai Gohil, A-8 were loudly shouting that Narsinh Kashibhai Gohil be liquidated, since he was in air and at that time, Raising (A-6) and Ranchhodbhai Pahdsing Gohil, A-7 had caught hold of Narsinh and Ratansing Mangalsing Gohil, A-1 had given a blow on the chest of Narsinh with the spear and as a result thereof, the brother of the complainant, Narsinh had fallen down. In the complaint, it was also stated that A-6 and A-7 had pulled the body of Narsinh with legs and A-8 had caught hold of the testicles of Narsinh and applied pressure. As shouting was heard, the brother of the complainant Jagmalbhai Kashebhai (PW-11), his son Ashokkumar Keshrisinh (PW-12), Abhesing Chhaganbhai (PW-13) and Thakorbhai Jagmalbhai (PW-17) had gone and intervened. At that time, A-2 gave a blow on the left eye of Jagmalbhai Kashebhai with the spear and A-3 gave Page 3 of 46 R/CR.A/258/2010 JUDGMENT a blow with the spear on the left eye of Abhesing Chhaganbhai (PW-13) and the son of the complainant Ashokkumar Keshrisinh (PW-12) was beaten with the stick by Nileshbhai Raisingbhai (A-4) and A-5 gave a blow of stick to Thakorbhai Jagmalbhai (PW-17). At that time, Narsinh was shredded with blood on account of the injury and he had fallen down and he had died. As per the complainant, all the accused ran away with the weapon and the complaint was filed.
3. The police investigated into the complaint and ultimately, the charge-sheet was filed against all the accused. The case, thereafter, as was triable by the learned Sessions Judge, was committed to the Court of the learned Sessions Judge. The learned Sessions Judge tried the case. The prosecution in support of his case, examined 18 witnesses. The details are at paragraph 6 of the judgement of the learned Sessions Judge. The prosecution also produced the documentary evidence in support of the case. The learned Sessions Judge recorded statement of all the accused separately under Section 313 of Page 4 of 46 R/CR.A/258/2010 JUDGMENT Cr.P.C., wherein the accused denied the evidence against them and stated that the blood stains found on the RCC road is not correct, but the blood stains were found inside the house of Ratansing Mangalsing Gohil, A-1 and it was also stated that it is true that the piece of stick and piece of bangles were found inside the house and other evidences are not admitted. In the further statement of the accused it was stated that the deceased had entered the house of Ratansing Mangalsing Gohil, A-1 with the knife and had quarrel for fish and thereafter he had thrown hockey from outside, as a result of which, Ratansing Mangalsing Gohil, A-1 sustained injury on his leg. When the scuffle was there between Ratansing Mangalsing Gohil, A-1 and the deceased, at that time, the deceased sustained accidental injury due to spear, which was lying inside the house and the deceased was in drunken position and the accused are innocent and they have not caused any injury.
4. On behalf of the accused, Abdul Rashi Suleman (DW-1) was examined as defence witness. The Page 5 of 46 R/CR.A/258/2010 JUDGMENT learned Sessions Judge thereafter heard the prosecution as well as the defence and ultimately found the accused guilty for the for the charged offences. The learned Sessions Judge found the accused guilty for the offences punishable under Sections 302, 324, 323, 147, and 148 of IPC.
5. The learned Sessions Judge thereafter heard the prosecution as well as the defence on the aspect of sentence and ultimately convicted the accused as under:-
(a) Accused No.1 (A-1) has been convicted for the offence punishable under Section 302 of IPC and imposed sentence of life imprisonment with the fine of Rs.1,500/- and with a further sentence of three months' R.I. for the default in payment of fine.
(b) Accused No.2 (A-2) to Accused No.8 (A-8) have been convicted for the offence punishable under Section 302 read with Section 149 of IPC and imposed sentence of life imprisonment with the fine of Rs.1,000/- and with a further sentence of two months' R.I. for the default in Page 6 of 46 R/CR.A/258/2010 JUDGMENT payment of fine.
(c) Accused No.2 (A-2) has been convicted for the offence punishable under Section 324 of IPC and imposed sentence of R.I. for two years with the fine of Rs.1,000/- and with a further sentence of two months' R.I. for the default in payment of fine.
(d) Accused No.1 (A-1) and Accused No.3 (A-3) to Accused No.8 (A-8) have been convicted for the offence punishable under Section 324 read with Section 149 of IPC and imposed sentence of one year R.I. with the fine of Rs.500/- and with a further sentence of one month's R.I. for the default in payment of fine.
(e) Accused No.3 (A-3) has been convicted for the offence punishable under Section 324 of IPC and imposed sentence of R.I. for two years with the fine of Rs.1,000/- and with a further sentence of two months' R.I. for the default in payment of fine.
(f) Accused No.1 (A-1), Accused No.2 (A-2) and Accused No.4 (A-4) to Accused No.8 (A-8) have Page 7 of 46 R/CR.A/258/2010 JUDGMENT been convicted for the offence punishable under Section 324 read with Section 149 of IPC and imposed sentence of R.I. for one year with the fine of Rs.500/- and with a further sentence of one month's R.I. for the default in payment of fine.
(g) Accused No.4 (A-4) has been convicted for the offence punishable under Section 323 of IPC and imposed sentence of six months' R.I. with the fine of Rs.500/- and with a further sentence of one month's R.I. for the default in payment of fine.
(h) Accused No.1 (A-1) to Accused No.3 (A-3) and Accused No.5 (A-5) to Accused No.8 (A-8) have been convicted for the offence punishable under Section 323 read with Section 149 of IPC and imposed sentence of three months' R.I. with the fine of Rs.250/- and with a further sentence of 15 days' R.I. for the default in payment of fine.
(i) Accused No.5 (A-5) has been convicted for the offence punishable under Section 323 of IPC and imposed sentence of six months' R.I. with the Page 8 of 46 R/CR.A/258/2010 JUDGMENT fine of Rs.500/- and with a further sentence of one month's R.I. for the default in payment of fine.
(j) Accused No.1 (A-1) to Accused No.4 (A-4) and Accused No.6 (A-6) to Accused No.8 (A-8) have been convicted for the offence punishable under Section 323 read with Section 149 of IPC and imposed sentence of three months' R.I. with the fine of Rs.250/- and with a further sentence of 15 days' R.I. for the default in payment of fine.
(k) All the accused are convicted for the offence punishable under Section 147 of IPC and sentence is imposed of one year R.I. with the fine of Rs.1,000/- each and further two months' R.I. for default in payment of fine.
(l) All the sentences are to be undergone by all the accused concurrently.
6. It is under these circumstances, the present appeal before this Court.
7. We have heard Mr.Anandjiwala with Mr.Krushal Sahi for appellants No.1 to 3 and 5 and Mr.Ramnandan Page 9 of 46 R/CR.A/258/2010 JUDGMENT Singh, learned Counsel for appellants No.4, 6 to
8. We have also heard Mr.Hardik Soni, learned APP for the State.
8. The learned Counsel appearing for both the sides have taken us through the entire evidences on record and also the judgement and reasons recorded by the learned Sessions Judge.
9. Before we proceed to consider the role of each of the accused as per the prosecution case, it would be necessary to refer to the common facts., The prosecution in order to prove its case has examined Kesrisang Kashibhai - PW-10 (Exh. 66), who is also complainant and cited as eye-witness. As per his evidence, he had witnessed the incident and he has stood by the complaint, but in the cross-examination by A-1 to A-5, he admitted that except A-1, nobody has caused injury to his brother - deceased with the weapon. He has also admitted that nobody had given any fist blow to the deceased. Such aspect will have the relevance when the matter is to be considered herein after for the common object or common intention. He has also stated in his cross- Page 10 of 46
R/CR.A/258/2010 JUDGMENT examination by A-6 to A-8 that the other 8 to 10 persons were present, but if the names are given they may turn to be hostile and, therefore, their names are not given.
10. Jagmalbhai PW-11 (Exh.70) was examined by the prosecution as an injured eye-witness, who is stated to have sustained injury with the blow given by A-2. He has narrated the same story as stated in the complaint and the said witness in his cross-examination by A-1 to A-5 has admitted that nobody has given blow to deceased Narsinh with weapon other than A-1 and he has also admitted that except A-2, nobody has caused injry to him with any other weapon. The next witness is Ashokkumar Keshrisinh (PW-12) (Exh.73), who is an injured eye-witness. He has stated the same story as stated in the complaint in the examination-in-chief. But in the cross- examination by A-6 to A-8, the said witness has admitted that he is unable to say with certainty as to whether A-8 had pressurized testicles of his uncle - deceased or not. The next witness is Abhesing Chhaganbhai (PW-13), who is also an eye- Page 11 of 46
R/CR.A/258/2010 JUDGMENT witness, who has sustained minor injury. This
witness in his examination-in-chief has stated the same story as stated in complaint, but in his cross-examination, he has stated that after the election there was no quarrel between A-1 and Jagmal (PW-11) and he admitted that the dispute for the election is for the first time between PW-11 and A-1. The said witness, in his cross- examination by A-1 to A-5 has admitted that as seen by him, nobody has given any blow with any weapon, except A-1 to the deceased. The said witness in the cross-examination by A-6 to A-8 as stated that he has not seen the blood stain over the wall above iron bar. The next witness is Parbatsing Khumansing (PW-14) (Exh.87). He has also stated to be injured eye-witness. In the examination-in-chief, he has stated the same story as that of the complainant. However, cross-examination by A-6 to A-8, the said witness admitted that after Narsinh - deceased had fallen down, nobody had caused any injury to the deceased. Further, in the said cross- examination, he has stated that when doctor had inquired about the injury, he had told the doctor Page 12 of 46 R/CR.A/258/2010 JUDGMENT that the injury was caused with the stick and not with any hockey or bhala (spear). He further in the cross-examination admitted that he had fallen down and the injury was sustained by him on his left eye. This witness in the cross-examination has also admitted that earlier there was no dispute between A-1 and Jagmal (PW-11) for the election.
11. The next witness examined by the prosecution is Thakorbhai Jagmalbhai (PW-17) (Exh. 102), who is son of Jagmal (PW-11). He is stated to be injured eye-witness and in the examination-in- chief, he has stated the same story as stated in the complaint, but in the cross-examination by A- 1 to A-5, the said witness has admitted that earlier there was no dispute for election between A-1 and his father Jagmal.
12. The other witnesses examined by the prosecution for proving the injury caused are two doctors; one is Dr. Paresh Rambabu Sharma (PW-2) (Exh.22). He is the doctor, who has performed PM and has also examined the other injured witnesses. As per the said doctor, when he Page 13 of 46 R/CR.A/258/2010 JUDGMENT performed PM of the deceased, sharp-cutting injury was found on the right lung as well as left lung and the said sharp-cutting had reached up to the heart and there was also sharp-cutting blow in the heart. As per the said witness the death was caused due to the injury caused to the lungs and the heart and consequential bleeding. He has been shown spear, which was discovered and he has opined that such injury No.1 as mentioned in the Col. 17 of PM Note could be caused with the spear, which was shown to him.
13. On the aspect of examination of Jagmal (PW-
11), as per the said witness in the medical history, Jagmal has stated that the injury was caused to him with the stick and the spear, but the nature of injury as found by the said doctor was on the left eye of CLW of 2/1. No other injury is referred to or stated by the said witness for PW-11 - Jagmal. The said doctor has also examined by Ashokkumar Keshrisinh (PW-12) and history given to him by PW-12 is of the same type about the injury with the spear and hockey, but the said doctor when he examined Ashokkumar Page 14 of 46 R/CR.A/258/2010 JUDGMENT Keshrisinh (PW-12), he found that there was swelling on the right hand and such injury was a fresh injury and could be caused with the stick or hockey.
14. The said doctor has also examined Parbatsing Khumansing (PW-14) and history given to him by PW-14 is of the same type of receiving injury with spear and hockey, but as per the said doctor when he examined, the injury found was abrasion on the backside of 3/1 and the abrasion above the right eye and as per his opinion the injury could be healed within 8 to 12 days. He has also examined Abhesing Chhaganbhai (PW-13) and the history was of the same type, but upon examination, it is found by him that Abhesing Chhaganbhai had sustained injury of CLW of 2/1 on the hip and the same could be healed within 7 to 8 days.
15. In the cross-examination by A-1 to A-5, the said doctor has specifically admitted that no abrasion is found on the dead body of the deceased either on chest or on the backside. He has also admitted that when he had performed PM Page 15 of 46 R/CR.A/258/2010 JUDGMENT no marks were found on the private part of the dead body. He has admitted that if the injury is caused with the spear by side, first one lung would be punctured and thereafter the injury could be caused to the heart. He has stated that if the injury is caused in standing position with the spear, such an injury cannot be caused. In the cross-examination by A-6 to A-8, the said witness has admitted that the injury to Ashokkumar Keshrisinh could be caused if a blow is given by any person with hand.
16. The next doctor examined is Dr. Praveenaben (PW-3) (Exh.32). She has examined Jagmal but later to Dr. Paresh. In the medical history given by Jagmal (PW-11), there appears to be slightly improvement and on the aspect of injury on the body of Jagmal (PW-11), there is consistency. The said doctor has examined Ashokkumar Keshrisinh (PW-12) and in the medical history there is improvement and there is also slight improvement in the injury since one small fracture wound is stated and further fracture on the right hand is also stated. The said doctor Page 16 of 46 R/CR.A/258/2010 JUDGMENT has opined that the injury to Jagmal on the left eye can be caused with the spear. In the cross- examination by A-6 to A-8, the said witness has admitted that the injury to Ashokkumar Keshrisinh could be caused if somebody applies pressure with the hand but facture wound cannot be caused unless the sharp weapon is used.
17. The prosecution has examined Police Witnesses Chaturbhai Shiva (PW-15) (Exh. 91), who was PSO, Pratapbhai Limgibhai (PW-16) (Exh.94), who was also PSO and Chandubha Manubha (PW-18) (Exh. 106), I.O., who has investigated the case. The arrest panchnama of the accused and the recovery of weapon have come on record through the testimony of IO (PW-18) Chandubha Manubha. The other panchnama for the scene of offence, inquest panchnama and other documents are brought on record in the deposition of the aforesaid police witness. FSL report, scientific evidence of FSL as well as Serological report are at Exh. 111, 122 and 123 respectively. The blood stains are found from the clothes of three accused, which were recovered in the investigation namely; Page 17 of 46
R/CR.A/258/2010 JUDGMENT A-1, A-2 and A-3. The deceased had the blood group of "B" and in the clothes of A-1, blood found was of "B" group, for A-2, the blood was found of "A" group. Further, Jagmal (PW-11) had blood group of "B", Abhesing Chhaganbhai (PW-13) had blood group of "A" found from his clothes. The blood found from the clothes of A-1 is of "B" group, which is matching the blood group of the deceased. The blood found from the clothes of A- 2 is of "A" group, which is matching the blood group of Abhesing Chhaganbhai (PW-13) and the blood found from the clothes of A-3 is also of "A" group. The another relevant aspect is that three weapons of Bhala were recovered from A-1 and Bhala recovered from A-1 was having the blood stain of "B" group, on the spear recovered from A-2, blood group of "B" is found, and on the spear recovered from A-3, blood group of "A" is found. In this manner, incriminating materials have come on record. The other sticks recovered were not having any blood stains.
18. The defence witness, Abdul Rashid - DW-1 (Exh. 134) has deposed that on the day of the Page 18 of 46 R/CR.A/258/2010 JUDGMENT incident, he had received phone call of the deceased about 6 to 7 O'Clock for demanding fish and had complained that his persons were not permitting him to take out fish. The said witness had told Narsinh, deceased that if he would take out fish, nothing would remain for him, which was not liked by the deceased. Therefore, the witness told Narsinh that the matter would be discussed when he would come to the village. The defence witness is examined in support of the defence by the accused that the real dispute was the demand of fish by the deceased Narsinh and not the election dispute.
19. As such, the aforesaid evidence shows that the incident of death of Narsinh, deceased is established. It is also established by the prosecution to show that such death was caused by the injury of the spear. It has also come on record that A-1, Ratansinh has caused such injury on the body of Narsinh, deceased by giving blow of the spear, which has ruptured both the lungs of the deceased and heart too. As per medical evidence, the cause of death is supporting the Page 19 of 46 R/CR.A/258/2010 JUDGMENT case of the prosecution.
20. Mr.Anandjiwala as well as Mr. Ramnandan Singh, learned Counsel appearing for the concerned appellants raised the contention that the whole story of the prosecution is a got up story for the so-called election dispute. It was submitted that all witnesses are from one family and they are cited as eye-witnesses. Though the incident had happened in the village wherein other independent witnesses were also there, but the prosecution has not examined any of such independent witnesses. As per the learned Counsel appearing for the appellants, in spite of the information sent for the scuffle, the complaint was not registered immediately, but all family members of the victim, including injured eye-witnesses had deliberated and thereafter the complaint was recorded. The complaint was recorded in a manner so as to involve all the family members of Ratan - A-1, by fabricating the story of role played by each of the accused. It was, therefore, submitted that such aspects are vital to the case of the prosecution and, Page 20 of 46 R/CR.A/258/2010 JUDGMENT therefore, it cannot be said that the prosecution has been able to prove the case beyond reasonable doubt and the benefits must be extended to all the accused.
21. It was alternatively submitted that in view of the evidence of the witnesses, though initially they supported the case of the prosecution in the examination-in-chief, but in the cross-examination, they have not clearly disposed about the common object or common intention. The learned Counsel submitted that if individual role is considered of each of the accused for causing injury to a particular person, the conviction made by the learned Sessions Judge cannot be sustained. It was, therefore, submitted that this Court may extend benefits to the accused of any doubt in the story of the prosecution.
22. Whereas, the learned APP submitted that the learned Sessions Judge after re-appreciation of evidence has rightly found all the accused guilty for the respective offences and no other view deserves to be taken than the view taken by the Page 21 of 46 R/CR.A/258/2010 JUDGMENT learned Sessions Judge in the impugned judgement.
23. It is by now well settled that any minor discrepancy in the case of the prosecution or minor contradiction in the deposition of the witness would not result into totally disbelieving the case of the prosecution for the alleged commission of crime. It is also by now well settled that merely because the relatives are examined as witnesses or that they are eye witnesses, such would not be a valid ground to discard the evidence led by the prosecution. At the most, when the Court finds minor discrepancies in the case of the prosecution, the Court would examine the evidence with more care to trace the truth, unless such contradiction is so material or the discrepancy is so material which totally takes away the substratum of the case of the prosecution. Considering the overall evidence on record as referred by us hereinabove, we do not find that substratum of the case of the prosecution is lost or that the contradiction is to such an extent that the story put forward by the prosecution is totally unbelievable. Even Page 22 of 46 R/CR.A/258/2010 JUDGMENT in the case of witnesses, though they are relatives, court may examine their testimony with more care and caution. The law on the point is that if there are minor contradictions in the deposition of any witnesses, court may segregate the truth and may consider so as to find out the truth in the case of the prosecution. In case if the court finds further doubt, may be on the ground that the witness is the relative of the deceased or the victim, the court may further examine as to whether statement made by the witness is getting corroboration from the other piece of evidence or not. If the corroboration is found from the material and reliable evidence to the statement of the witness, the same can be considered by the court for examining the case of the prosecution and also for relying upon that part of the statement of a witness. Under these circumstances, we are unable to accept the contention of the learned counsel for the appellant that the discrepancy or the contradiction are such which are fatal to the case of the prosecution to a fullest extent deserving acquittal of all the accused. We are Page 23 of 46 R/CR.A/258/2010 JUDGMENT also unable to accept the contention that merely because no independent witness has been examined, the whole case of the prosecution should be disbelieved by discarding the evidence of all witnesses even if the corroboration is available to a particular extent from the testimony of the witnesses.
24. We may first consider the aspect of common object or the common intention. The useful reference can be made to the decision of the Apex Court in the case of Ram Dular Rai and others Vs. State of Bihar, reported in AIR 2004 SC 1043. The Apex Court in the said decision had an occasion to examine the common object and common intention in light of the provisions of Section 141 and Section 149 of IPC. At paragraphs 7 to 10, it was observed thus:-
"7. Coming to the question whether Section 149 has application when presence of more than five persons is established, but only four are identified, Section 149 does not require that all the five persons must be identified. What is required to be established is the presence of five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that does not in any way affect applicability of Section 149 IPC.Page 24 of 46
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8. Another plea which was emphasized relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of Page 25 of 46 R/CR.A/258/2010 JUDGMENT an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly.
9. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.Page 26 of 46
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10. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 Page 27 of 46 R/CR.A/258/2010 JUDGMENT cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore, AIR 1956 SC 731.)"
25. If the facts of the present case are examined in light of the aforesaid observations as recorded by us herein above, any of the witnesses has not stated that any blow was given with weapon to the deceased Narsinh by any of the accused, except A-1. On the contrary, further evidence has come on record to the extent that nobody has given any fist blow to the deceased Narsinh. The prosecution has made an attempt to involve other accused with the allegation that the deceased after had fallen down was pulled and further his testicles were picked up and pressure was applied, but the medical evidence, as per the post-mortem performed by the doctor, shows that there is no corroboration whatsoever to such a story of the witnesses. As per the said doctor Page 28 of 46 R/CR.A/258/2010 JUDGMENT (PW-2), no injury is found even of abrasion on the dead body of Narsinh, either on the chest or on the backside, nor any injury is found on the testicles of the deceased. Under these circumstances, individual role played by the other accused than A-1 so as to show common object or common intention of liquidating deceased Narsinh cannot be said to have been proved beyond reasonable doubt by the prosecution. Further, the incident has happened at the residence of Ratansing (A-1) and not at the residence of Narsinh, the deceased or any of the injured witnesses. It appears that Narsinh, deceased had visited the place of Ratansing (A-
1), where the incident had happened. Under these circumstances, we find that the learned Sessions Judge had committed error in holding that there was common object or common intention by all the accused.
26. It may be that in a given case, if the common object or a common intention so as to bring within the purview of section 141 read with section 149 of IPC, is not proved beyond Page 29 of 46 R/CR.A/258/2010 JUDGMENT reasonable doubt for all the accused and the number of accused is reduced to less than 5, the question may be required to be examined for applicability of section 34 qua the accused who have played role in commission of crime. Under the circumstances, we may also examine as to whether section 34 can be applied to the facts of the present case, if the charge under section 141 read with section 149 of the IPC is found as not proved and the accused who have played role are less than 5 in number. At this stage, we may refer to the decision of this Court in the case of Kantibhai Shanabhai Nayak vs. State of Gujarat reported at 2000(9) 5 GLR 4106, wherein, the Court had an occasion to examine the scope and ambit of section 34 of IPC after taking into consideration the decision of the Apex Court in the case of Dukhmochan Pandey v. State of Bihar reported in AIR 1998 SC 40 : 1997 (8) SCC 405 and this observed at paras 14 to 16, as under:
"14. It appears that the common intention could be gathered on the basis of the material on record, the other circumstances and also the conduct of the accused at the time when the incident has occurred. Had it been a case where there was evidence available on conspiracy or a Page 30 of 46 R/CR.A/258/2010 JUDGMENT meeting at which the decision is taken to kill the deceased, it may be a valid circumstance, which is not at all available in the facts of the present case. It is true that even in absence of predetermination by way of conspiracy or otherwise, the common intention could be gathered if the facts and circumstances so warrant at the time when the incident had happened and more particularly arising from the conduct on the part of each accused qua the deceased. Merely because all have gone together cannot be a sole basis for upholding conviction under Section 34 treating the same as common intention of everybody. If the overall circumstances are considered in the present case it appears that the accused are the relatives of the deceased and they had the ill feeling that as the deceased was a witch, their family members were remaining sick or ill. Therefore, to express their illfeeling, it appears that all the accused together with their father Shana Nayak had gone to the place of the deceased. Not only that, but even in the complaint there is a reference of altercation and exchange of words on the said aspects and there is also reference to the quarrel on the said aspect. This shows that at least there could not be common intention to kill but to express the illfeeling. It, at the most, could be said as to give assault by some of the accused. At this stage, reference may be made to the decision of Apex Court in the case of Dukhmochan Pandey and Ors. v. State of Bihar, reported in AIR 1998 SC, 40 and more particularly the observations made by the Apex Court on page 46, the relevant of which reads as under: "6. ... The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a prearranged plan which in turn presupposes a prior meeting of mind. But in a given case such common intention which developed at the spur of the Page 31 of 46 R/CR.A/258/2010 JUDGMENT moment is different from a similar intention actuated a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment."
15. It was further observed that "The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice."
16. It was also observed that "In other words, unless such common intention is established as a matter of necessary inference from the proved circumstances of the case then the accused persons could be individually liable for their respective overt attacks and not for the act done by any other person."
27. The aforesaid shows that unless a common intention is established, as a matter of necessary inference as from the proved circumstance of the case, the accused could be liable for their respective overt act and not for the act done by any other person. If the reasons recorded by us hereinabove for finding out the common object and common intention vis-à-vis the provisions of section 141 and section 149 of the IPC are considered, it is apparent that no witness has stated that any blow was given with weapon to deceased Naharsinh by any other Page 32 of 46 R/CR.A/258/2010 JUDGMENT accused, except A-1. Further, the evidence has come on record to the extent that nobody has given any fist blow to deceased Naharsinh. As observed by us hereinabove, the allegation of pulling leg of the deceased by other accused and applying pressure on the testicles of the deceased, both are not corroborated by the medical evidence of the Doctor inasmuch as no injury is found on the chest or on the backside of the body nor any injury or swelling is found on the testicles of the deceased. Such would show that the common intention by overt act qua the deceased is concerned of other accused than that of A-1, is unbelievable. Further, A-2 and A-3 were armed with the weapon of spear and A-4 and other accused were stated to be armed with stick. Had there been any intention, such would have been reflected by overt act on the part of A-2 or A-3 or any other accused except A-1. When the allegation of pulling leg of the deceased and of causing injury by applying pressure to the testicles of the deceased are not proved beyond reasonable doubt, it can be said there was no common intention of other accused than A-1 for Page 33 of 46 R/CR.A/258/2010 JUDGMENT the alleged offence under section 302 of IPC.
28. In view of the aforesaid observations and discussions, we find that the common intention or common object of all the accused keeping in view the aforesaid peculiar circumstances, cannot be said as proved to hold all the accused or other accused than A-1 for the act committed by A-1 for commission of crime.
29. The aforesaid would lead us to examine the individual role played by each of the accused for commission of crime and as to whether the case could be said as proved beyond reasonable doubt or not. It would be convenient to consider the evidence separately for each of the accused.
30. All eye witnesses, including injured witnesses, have supported the case of the prosecution on the aspect that A-1 had given a spear blow to deceased Naharsinh. On the said aspect, there is no material contradiction in the deposition of eye witnesses. Such evidence is getting corroboration from the medical evidence of Doctor, who performed postmortem for the Page 34 of 46 R/CR.A/258/2010 JUDGMENT injury found on the body of the deceased wherein both the lungs were punctured and there was sharp injury upon the heart too and the cause of death is the said injury to the deceased. The incriminating material of spear is discovered. The scientific evidence of FSL and serological report are supporting the case of the prosecution. Therefore, on consideration of overall evidence and after re-appreciation of the evidence, we find that the prosecution has been able to prove the case against A-1 for the injury caused by him with the spear resulting into the death of deceased Naharsinh.
31. The learned counsel Mr.Anandjiwala for A-1 did contend that if the circumstances under which the injury was caused by A-1 to deceased are considered, at the most, it would be a case not under section 302 of IPC but under section 304 Part I or Part II of IPC since there was no intention to cause death. He submitted that the circumstances that the Naharsinh had gone to the place of Ratansinh (A-1) and there was hot exchange of words and altercation, would not rule Page 35 of 46 R/CR.A/258/2010 JUDGMENT out the situation of excitement and applying spear for his own protection or by way of a spur of moment and therefore, it may at the most be an injury caused resulting into the death but no intention of killing Naharsinh.
32. At this stage we may refer to the decision of the Apex Court in the case of Pulicherla Nagaraju alias Nagaraja Reddy Vs. State of Andhra Pradesh reported in (2006) 11 SCC 444, wherein the Apex Court for pressing the distinction for the offence under section 302 and 304 Part I or II of IPC, had made the observations at paragraph 29, which reads as under:
"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by Page 36 of 46 R/CR.A/258/2010 JUDGMENT attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section
302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."
33. The examination of the facts of the present case further shows that the type of weapon was spear and therefore, can be said as deadly weapon and the blow was given on the vital part of the Page 37 of 46 R/CR.A/258/2010 JUDGMENT body. The amount of force applied was not for causing injury but could be said for causing death because the spear is a sharp deadly weapon applied in the present case in a manner to cause so deep injury which has ruptured both the lungs and heart too and the death is on the spot. It is true that the evidence has come on record for quarrel and there also appears to be some prior enmity with A-1, but when the defence has not been able to prove any injury caused to A-1, and mere hot exchange of words cannot be said as sufficient to bring the case under section 304 Part I and II, more particularly when a fatal single blow with spear has been given by A-1, resulting into immediate death of the deceased. We therefore find that merely because single blow was given, such could not be said to be a valid ground to discard the case of the prosecution for the alleged offence. The intention is apparent to kill the deceased. At this stage, we may also refer to the aforesaid decision of the Apex Court in the case of Pulicherla Nagaraju alias Nagaraja Reddy, wherein, at paragraph 30, the Apex Court had observed thus -
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R/CR.A/258/2010 JUDGMENT "30.In this case, as noticed above, the appellant was carrying a Barisa, a dangerous weapon. There was previous enmity. There was an earlier incident, about half an hour earlier when the father and brother of the deceased had been attacked by the appellant and his father. The deceased was unarmed. There was no provocation, sudden quarrel or fight. There was no indication of any cause for an apprehension on the part of the appellant that the deceased may attack him. The stabbing was with great force, causing an injury on a vital part of body, sufficient in the ordinary course of nature to cause death. The description of the injury and cause for death given by PW11, who conducted the post mortem is telling :
"An incised injury 5 cm x 3 cm x 12 cm deep over right supra clavicular fossa above the medial end of right clavicle.... subclavian artery is severed.... An incised injury 4cm x 1cm x 2cm deep over the apex of right lung deceased would appear to have died due to haemorrhage and shock due to injuries to right subclavian artery and upper lobe of right lung."
The intention to cause death or at all events intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death was made out. The circumstances to bring the case under Exception (4) to Section 300 do not exist."
34. If the injury caused and the force applied and the resulting medical evidence found on the body of the deceased are considered, the intention to cause death can be said as apparent since in the ordinary course, if such a blow is Page 39 of 46 R/CR.A/258/2010 JUDGMENT given with spear and with such a force, the death would be a consequence. Therefore, we find that the circumstances to bring the case under section 304 of IPC do not exist in the present case. Hence, the conviction by the learned Judge of A-1 under section 302 of IPC deserves to be maintained and the contention raised by the learned counsel for the appellant for A-1 cannot be accepted.
35. Next is the evidence against A-2. If the role of A-2 is considered for causing injury to Jagmal, p.w.11, it is proved that the injury is caused with the spear, a sharp cutting weapon on the vital part of the body, i.e., left eye, and the victim p.w.11, Jagmal has deposed that he had lost the eye in the said injury. The said evidence is getting support from the medical evidence and also getting support from the scientific evidence of FSL and serological report. The weapon is also discovered. Blow is found on the clothes of A-2 and therefore, if a strict view is taken, we may say that the offence under section 326 of causing grievous hurt could Page 40 of 46 R/CR.A/258/2010 JUDGMENT be said as proved. But the learned Sessions Judge has convicted A-2 for his individual role under section 324 of IPC and in absence of any appeal for enhancement of the punishment by the State, we find that the conviction made by the learned Sessions Judge to A-2 for the offence under section 324 of IPC deserves to be maintained.
36. So far as A-3 is concerned, the injury caused to Ashok, p.w.12 is also proved by the eye witnesses examined by the prosecution and also injured himself. The weapon is recovered. The injury is found. But if corroboration is traced from the medical evidence, Dr.Paresh Sharma, p.w.2, has deposed that there was swelling on the left hand but the second Doctor Pravinaben, p.w. 3 has referred to the fracture. In this case also, if a strict view is taken, one may say that the offence was proved by the prosecution under section 326 of IPC. However, the learned Sessions Judge has convicted A-3 for the offence under section 324 of IPC and State has not preferred any appeal for enhancement of sentence and Page 41 of 46 R/CR.A/258/2010 JUDGMENT therefore, we find that the conviction of A-3 for the offence under section 324 of IPC deserves to be maintained.
37. The next is to be considered for the role played by A-4. As per the prosecution case, A-4 is said to have inflicted blow to Ashok p.w.12. As per him, the injury was caused with the spear whereas, as per the opinion of the Doctor Paresh Sharma, p.w.2, in his cross-examination has stated that the injury could be caused with the hand also. Therefore, there is no corroboration of the medical evidence. Under these circumstances, we find that the conviction made by the learned Sessions Judge to A-4 cannot be maintained.
38. The next evidence is to be considered for A-
5. As per the prosecution case, A-5 is stated to have given the blow with a stick to Thakor Jagmal, p.w.l7. The injured eye witness has stated in his examination-in-chief that there is no medical evidence in support of the allegation made against him. Under these circumstances, it can be said that the prosecution has not been Page 42 of 46 R/CR.A/258/2010 JUDGMENT able to prove the case beyond reasonable doubt against A-5.
39. So far as A-6 and A-7 are concerned, as observed by us hereinabove, the allegation was that they caught hold of the deceased and spear blow was applied by A-1. If the manner in which the injury caused is considered, the same is not on the front portion of the body but is from the side since both the lungs are ruptured. If this is examined from the normal prudence, the say of the witnesses for involvement of A-6 and A-7 is unbelievable. No blood stains are found from the cloths of A-6 or A-7. Further, as per the evidence of all witnesses, the deceased had fallen down after receiving the injury. Had A-1, A-6 and A-7 caught hold of the deceased and the injury was caused, he would not have fallen down in normal circumstances. The other allegation of pulling the legs and is not getting the support from the medical evidence of the Doctor because at the time when the postmortem was performed, no injury was found on the chest or the backside of the body of the deceased. Under these Page 43 of 46 R/CR.A/258/2010 JUDGMENT circumstances, we find that the prosecution has not been able to prove the case against A-6 and A-7 beyond reasonable doubt.
40. The other evidence is to be considered against A-8. As per the say of the prosecution, A-8 picked up the testicles of the deceased and applied pressure. Eye witnesses have stated but the medical evidence is not at all supporting the case of the prosecution inasmuch as in postmortem report, the Doctor has not found any injury on the testicles of the deceased. As per the say of the Doctor, if such had happened, there will be injury marks or swelling on the testicles. Under the circumstances, we find that the prosecution has not been able to prove the case beyond reasonable doubt against A-8.
41. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Sessions Judge deserves to be maintained for conviction under section 302 of IPC of A1 and sentence of life imprisonment upon accused No.1 with the fine of Rs.1,500 and 3 months further RI for default in payment of fine. The conviction Page 44 of 46 R/CR.A/258/2010 JUDGMENT imposed by the learned Sessions Judge upon accused nos.2 and 3 is maintained for the offence under section 324 of IPC and the sentence is also maintained of 2 years RI with the fine of Rs.1,000 and further 2 months RI for default in payment of fine. The conviction made by the learned Sessions Judge upon accused nos. 4 to 8 cannot be maintained and hence, the same is set aside. The other conviction made by the learned Sessions Judge for the alleged offences upon the accused deserves to be set aside and hence, the same is set aside. The jail report shows that by now all the accused-appellants have undergone jail period of 5 years and 9 months and therefore, even if the conviction is maintained and the period of sentence including the default period is considered, the period is over except for accused no.1. Hence, it is directed that accused nos. 2 to 8 shall be released forthwith unless their presence is required for any other lawful purpose.
42. Appeal is partly allowed to the aforesaid extent.
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R/CR.A/258/2010 JUDGMENT
(JAYANT PATEL, J.)
`
(Z.K.SAIYED, J.)
vinod/bijoy
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