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CASE NO.:

Appeal (crl.) 635 of 1992

PETITIONER:

TAKHAJI HIRAJI

Vs.

RESPONDENT:

THAKORE KUBERSING CHAMANSING & ORS.

DATE OF JUDGMENT: 02/05/2001

BENCH:

CJI, R.C. Lahoti & Doraiswamy Raju

JUDGMENT:

WITH

Crl.Appeal No. 636 of 1992

J U D G M E N T

R.C. Lahoti, J.

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Eight accused persons were charged for having committed

offences under Sections 147, 148, 302/34/149, 307/34/149,

302/307/109, 325, 325/34, 324 and 324/34 of the Indian Penal

Code. The Trial Court acquitted accused nos.3, 4, 6, 7 and

8 of all the offences charged and set them at liberty.

Accused nos. 1, 2 and 5 were held guilty on different

counts as will be stated shortly hereinafterwards and

convicted and sentenced. They preferred an appeal before

the High Court of Gujarat which was heard by a Division

Bench. By the impugned judgment dated 14.12.1983 the appeal

has been allowed and all the three accused-respondents have

been acquitted. The complainant, Takhaji Hiraji who had

lodged the first information report of the incident and was

himself an injured person has preferred this appeal by

special leave putting in issue the acquittal of accused nos.

1, 2 and 5. Later on the State has also filed an appeal by

special leave. Both the appeals have been heard together.

A small village Dugrasan, Taluka Shihori in the State of

Gujarat witnessed a joyful evening of 23rd March, 1980 being

converted into a horrific tale of crime where violence was

let loose between two communities, otherwise friendly and

living together happily , resulting into death of 3 persons

and simple and grievous injuries to several others. It

appears that the village has population consisting mainly of

Thakores and Kolis. Thakores treat themselves as upper

caste and look down upon Kolis as their inferiors. On the

date of incident, in the evening, the village people had

collected in the chowk, an open space in the heart of the

village to witness the performance of tight rope dancers. A

rope is tied tightly on two poles installed at a reasonable

distance from each other. On the tight rope moves a dancer.

The performance includes tight rope walking with utensils on

the head of the dancer. The performer is rewarded by making

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a bid amongst the viewers; one whos bid is the highest has

the honour of lifting and putting down the utensils from

over the head of the dancer. The highest bid is thus

symbolic of honour to the bidder and a reward to the

performer. Witnessing the performance were Thakores of the

village and so also the Kolis. Two petromax were burning to

provide illumination. As the show neared its end Thakore

Magansing Dadusing, the accused no.2 made a bid for lifting

the utensils. But the deceased, Amuji Narsangji Koli made a

higher bid which was protested to by Gajrabai, the accused

no.5 saying why the Kolis were bidding higher than the

Thakores. There was a heated exchange of words followed by

a quarrel and then knife and dagger being stretched out and

wielded.

According to the prosecution Magansing, accused no.2 had

taken out a knife from his waist by which he dealt blows on

Sabuji Viraji and Amuji Narsangji. Kubersing, accused no.1

gave a dagger blow in the abdomen of Amuji Narsingji.

Kubersing also caused a stab wound to Narsingji Hiraji.

Magansing, accused no.2 also gave a knife blow on the back

of Amuji Narsingji. Magansing also caused injury to Sabuji

in his abdomen. Accused 1 and 2 caused injuries by sharp-

edged weapons to other witnesses also belonging to Thakore

community who tried to intervene. Gajrabai, accused no.5

gave a stick blow to Viraji Devaji causing a fracture of his

hand. Other accused, excepting nos.1 and 2 were throwing

katars, sticks, clubs etc. by which several other persons

got injured. All other villagers and group of dance

performers ran away from the chowk leaving the injured and

the accused persons behind. After causing several injuries

the accused persons left the chowk for their houses. The

injured persons belonging to Thakore community were being

taken to their houses but some of them found it difficult to

walk. They sat down on the otta of Kalkamata Temple. A

camel-cart was summoned. On it all the injured were seated

and taken to Shirohi where they reached the dispensary at

about 11.30 p.m. Narsingji Hiraji succumbed to his injuries

on the way. Sabuji Viraji was taken to Mehsana where he too

died on account of his injuries. Amuji Narsangji was taken

to Deesa and he died thereat. Takhaji Hiraji one of the

injured persons, leaving behind the seriously injured

persons in the hospital at Shirohi went to the police

station and lodged FIR of the incident. The police

registered crime under Sections 302,307 and several other

sections of the Indian Penal Code and commenced

investigation. Autopsies on the dead bodies of Narsangji

Hiraji, Sabuji Viraji and Amuji Narsangji were conducted.

All other injured persons were also medico-legally examined.

It is not necessary for us at this stage to notice such

details of the incident as have become insignificant

consequent upon 5 of the 8 accused persons having been

acquitted by the Trial Court and their acquittal having

remained unchallenged. We will only notice such details of

the prosecution case as are relevant and significant for the

purpose of testing legality of the acquittal of the three

accused- respondents as recorded by the High Court.

Sabuji Viraji was examined by Dr. Varvadia, PW2 on

24.3.1980 at about 12.15 a.m. He found one incised wound on

the left side of upper part of abdomen, another incised

wound on the left palm and the third incised wound on the

scalp. Sabuji Viraji was referred to medical officer, Deesa

for further treatment. He was transferred to Mehsana where

he expired on 30.3.1980. The post-morten was conducted by

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Dr. Solanki, PW4. He found the same 3 injuries on the body

of the victim which were ante-mortem. The cause of death

was acute peritonitis caused by the injuries. Thus, the

death of Sabuji Viraji was homicidal.

Amuji Narsangji was examined by Dr. Patel, PW5 of Deesa

on 24.3.1980 at 1.45 a.m. The condition of the patient was

precarious and he succumbed to his injuries on the table at

about 2 a.m. The post-mortem was also conducted by Dr.

Patel. Amuji Narsingji had sustained one stab wound 4 cm x

2 cm on the right side of epigastrium deep upto peritoneum

cavity. Intestinal loops were cut and were coming out from

the wound. There were 8 other incised wounds on his chest,

left elbow, forehead and perietal region. Internally the

superior mesenteric artery was cut off and peritoneum cavity

was full of blood and upper part of intestines were

completely out. It is this injury which had proved to be

fatal. All the injuries were ante- mortem.

Post-mortem on the dead body of Narsingji Hiraji was

conducted by Dr. Amin of Deesa, PW20. He found the patient

having suffered one stab wound on anterior abdominal wall

above umbilicus deep to peritoneum cavity. Peritoneum was

full of blood. This stab wound was sufficient in the

ordinary course of nature to cause death. The patient had

suffered two other incised wounds in jejunum with

perforations thereof. All the injuries were ante-mortem.

There are 5 stamped prosecution witnesses who had

sustained injuries. Gajaji Viraji, PW10, Takhaji Hiraji, PW

8 and Amuji Khumaji, PW 20 were examined by Dr. Varvadia,

PW2. Gajaji Viraji had sustained two incised wounds, one on

the upper part of chest and the other on the left index

finger. Takhaji Hiraji had suffered two incised wounds on

forehead and abdomen and one stab wound on the left loin and

one abrasion on left elbow. Amuji Khumaji was found to have

sustained defused swelling over the left forearm with

suspected fracture. However, x-ray examination conducted by

Dr. Sutaria PW7 did not confirm any bony injury suffered by

Amuji Khumaji.

Dr. Sutaria, PW7, had examined Viraji Devaji PW 15.

Viraji Devaji had diffused swelling over the left forearm

with fracture of left radius and one abrasion on the left

forearm. The former was a grievous injury while the latter

was a simple one. Gambhirji Narsangji was found to have

sustained an incised wound on the right side of the chest.

The patient was admitted for treatment indoors and

discharged in 11 days.

Thus, there were three persons who had met with

homicidal death and five persons injured on the side of the

prosecution party. The five injured were examined as

prosecution witnesses. The medico-legal examination of the

injured persons had taken place little after midnight on the

day of the incident itself. The duration of the injuries

sustained by all the injured persons as opined by the

doctors conducting medico-legal examinations, coincided with

the time of the incident.

Here itself it will be relevant to mention that some of

the accused persons had also sustained injuries and they

were medico- legally examined between midnight and 2.10

hours in the early morning of 24.3.1980. Kubersing

Chamansing, accused No.1, Maganji Duduji, accused No.2 and

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Gajraben Maganji, accused No.5 were examined by Dr.

Varavaida, PW2. Maganji Daduji was found to have sustained

in all twenty injuries. There were two incised wound on the

scalp, six contusions, five abrasions and two contused

lacerated wounds on his person spread over the neck right

arm and back. He also had a fracture of left index finger.

All the injuries except the two on scalp were caused by hard

and blunt weapon. Gajraben, accused No.5, had six

contusions, four contused lacerated wounds and one abrasion

on different parts of her body. Subaben alias Shivuba,

accused No.7 and Mungiben, accused No.6 were examined by Dr.

Keshavlal Patel, PW3. Subaben alias Shivuba had one

abrasion and one contusion on left hand. Mungiben was found

to have a weal mark on left shoulder joint and tenderness

over right and left knee joints. Thus the injuries

sustained by accused Nos. 1, 6 and 7 were simple, rather

minor injuries.

When PW10 reached the police station for lodging first

information report of the incident, Kubersing, accused No.1

was already present at the police station and he had also

lodged a report of the incident, Ex.69.

At the trial, there were 21 witnesses examined on behalf

of the prosecution. These include 5 eye witnesses of the@@

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incident namely, Gajaji Viraji PW 10, Takhaji Hiraji PW 8,@@

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Amuji Khumaji PW 11, Viraji Devaji, PW15 and Gambhirji

Narsangji PW9. . All these witnesses have themselves

suffered injuries and therefore their presence at the place

of the incident cannot be doubted. Apart from this there is

dying declaration of Sabuji, deceased, Ex.28, recorded by

Pravinchandra Gandhi, the Executive Magistrate at 10.20 p.m.

on 25.3.80 and yet another dying declaration Ex.60 recorded

by Constable Kesharam, PW16, a little before midnight. The

trial court minutely examined the testimony of all the eye

witnesses and found them worthy of reliance. The defence of

the accused persons was one of denial so far as the injuries

caused on the side of the prosecution are concerned.

However, they pleaded that the prosecution party was the

aggressor and had caused multiple injuries to five of the

accused persons and that too near the house of the accused

persons which is situated at a distance of about 200 feet

from the chowk. The learned Sessions Judge, having minutely

examined, marshalled and appreciated the entire evidence

available on record, found the prosecution version to be

truthful and negated the defence. It will be useful to sum

up briefly the findings arrived at by the learned Sessions

Judge :-

(i) There were blood stains and blood stained earth in

the chowk. The petromax at the scene of offence was lying

broken. According to the FIR, Ex-69, lodged by accused No.1

and produced by PW21, head constable, some incident had

taken place at the chowk and when the accused had left the

chowk and reached their home, then they were assaulted by

the prosecution party. This happening of the incident in

the chowk was substantiated by the circumstances and was

partly admitted by the defence also in their earliest

version of the incident i.e. the FIR lodged by one of the

accused persons. However, no trace of blood and no visible

signs of violence were found near the houses of the accused

persons and, therefore, it could be safely inferred that the

incident had taken place only in the chowk and not near the

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houses of the accused persons;

(ii) The prosecution witnesses and the three deceased on

the one hand and the accused persons on the other hand did

not have any previous enmity. They were residents of the

same village. The incident had erupted at the spur of the

moment. It was a case of sudden fight. It cannot be said

that the accused persons had any common intention to beat

anyone or that they had any common object for which they had

formed an unlawful assembly. Their presence in the chowk to

witness the show was quite natural and, therefore, the

question of convicting anyone with the aid of Section 34 or

Section 149 of the IPC does not arise;

(iii) Thakore Kubersing Chamansing, accused No.1, is

proved to have caused a dagger blow in the abdomen of Amuji

Narsingji which proved to be fatal. He is liable to be

convicted under Section 302 IPC.

(iv) Thakore Kubersing Chamansing, accused No.1 is

guilty of causing a dagger blow in the abdomen of Narsingji

Hiraji which blow proved to be fatal and therefore accused

No.1 is responsible for causing death of Narsingji Hiraji

and hence liable to be convicted under section 302 IPC on

this head of charge too.

(v) Thakore Magansing Dadusing, accused No.2 is

responsible for causing the incised wound to Sabuji Viraji

in his abdomen resulting in his death. He is liable to be

convicted under Section 302, IPC.

(vi) Thakore Magansing Dadusing Accused No.2 had caused

an incised wound 2x¼x¼ on right side of chest of

Gambhirji Narsangji, the only injury suffered by him. The

injury caused was by a dagger blow. However, the nature of

the injury was simple. Accused No.1 was, therefore, liable

to be convicted under Section 324 of IPC for causing simple

hurt by sharp weapon to Gambhirji.

(vii) Gajaji Viraji had sustained two injuries by sharp

cutting weapon at the hands of Kubersing, accused No.1. The@@

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injuries were simple in nature. The accused No.1 was,@@

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therefore, responsible for causing simple injuries to Gajaji

Viraji by means of sharp cutting weapon, an offence

punishable under Section 324 of the IPC.

(viii) Maganji, accused No.2 had given a knife blow to

Takhaji Hiraji, PW8. The injuries were simple in nature.@@

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Maganji, accused No.2, was, therefore, liable to be@@

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convicted under Section 324 of the IPC for causing simple

injuries by sharp weapon to Takhaji Hiraji (para 27).

(ix) The authorship of injuries caused to Amuji Khumaji

was not established and, therefore, none of the accused was

liable to be convicted for causing simple injuries by sharp

weapon to Amuji Khumaji. (para 28)

(x) Abrasion on the left forearm with diffused swelling

and fracture of the left radius on the person of Viraji@@

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Devaji were caused by blunt weapon like a stick by Thakore@@

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Gajrabai, accused No.5. She was, therefore, liable to be

convicted under Section 325 of the IPC.

(xi) As to accused Nos. 3, 4 and 6 to 8, the

prosecution case was that they had indulged into throwing

katars and sticks etc. However, the prosecution witnesses

were not consistent about the part played in the incident by

these accused persons. Their presence at the place of the

incident, in the facts and circumstances of the case, was

innocuous and, therefore, by their mere presence at the

place of the incident, they could not be held liable to

conviction alongwith other accused persons with the aid of

Section 34 or 149 of IPC.

The most important plea raised on behalf of the accused

persons before the trial court was that the prosecution

witnesses did not offer any explanation for the injuries

sustained by the accused persons. This showed, according to

the defence, that the genesis of the incident was being

concealed by the prosecution witnesses and the whole truth

was not placed before the court which lent support to the

defence version that the incident, in all probabilities,

took place in the manner and at the place suggested by the

defence, that is to say, the incident had taken place near

the houses of the accused persons where the persons

belonging to prosecution party were aggressor. The trial

court opined that in so far as the injuries sustained by

accused No.1 and 5 to 7 are concerned, they were all

injuries of very minor nature and their non-explanation did

not cause any infirmity in the prosecution case. Magansing

Dadusing, the accused No.2, had sustained several injuries

of which two were incised wound and one was a fracture on

the finger. The trial court held that several persons were

participating in the incident and several persons were

injured. In such a melee it was difficult to exactly locate

how the injuries on the person of the accused No.2 were

sustained. The accused No.2 himself does not suggest how

and in what manner, he sustained injuries. Katars and

sticks were thrown during the incident. In the peculiar

facts and circumstances of the case, mere non-explanation of

the injuries on the person of accused No.2 was not fatal to

the prosecution case. On the abovesaid findings, the trial

court convicted the three accused respondents as under:- (1)

The accused No.1 was convicted under Section 302 IPC for

committing murder of Amuji Narsangji and sentenced to

imprisonment for life;

(2) The accused No.1 was also convicted for committing

murder of Narsangji Hiraji and sentenced to imprisonment for

life.

Both the substantive sentences were directed to run

concurrently.

(3) Accused No.1 also convicted under Section 324 IPC

for voluntarily causing hurts to Gajaji Viraji and Gambhirji

Narsangji but no separate sentence was passed.

(4) Accused No.2 was convicted under Section 302 of the

IPC for committing murder of Sabuji Viraji and was sentenced

to imprisonment for life.

(5) The accused No.2 was also convicted under Section

324 of the IPC for causing hurt to Takhaji Hiraji but no

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separate sentence was passed.

(6) The accused No.5 was convicted under Section 325 of

the IPC for voluntarily causing grievous hurt to Viraji

Devaji. However, she was ordered to be released on

probation of good conduct on executing a bond of Rs.1,000/-

with one surety for a period of one year for keeping peace.

She was also ordered to pay compensation of Rs.500/- to

Viraji Devaji.

(7) The accused Nos. 1, 2 and 5 were acquitted of rest

of the charges.

(8) The accused Nos. 3, 4, 6, 7 and 8 were acquitted of

all the charges.

The three convicted accused persons preferred an appeal,

as already stated. The Division Bench of High Court, has in

its brief judgment, acquitted the accused persons mainly

influenced by two considerations. Firstly, the High Court

has felt that as there was only one incident which had taken

place in the chowk, the injured accused persons must have

sustained injuries during the course of the same incident

and as the prosecution witnesses did not explain how the

accused persons sustained injuries, it could be safely

inferred that the prosecution witnesses were suppressing the

genesis of the incident. The High Court has also observed

that looking to the numerous injuries sustained by the

accused persons it can reasonably be inferred that the

accused persons were in grave apprehension of death or

grievous injury being caused to the accused persons or to

anyone or more of them and hence they were entitled to use

weapons for their own protection. They cannot be said to

have exceeded their right of self-defence. Another reason

which has prevailed with the High Court is that though

several persons were present at the place of the incident

but the prosecution has not examined any independent

witness. The eye witnesses examined on behalf of the

prosecution are related with the deceased and the injured.

The combined effect of these two factors was that the

testimony of the witnesses could not be believed. As to the

dying declaration, the High Court has observed that the

dying declaration also does not explain the injuries on the

persons of the accused persons and coupled with the fact

that the version of the prosecution as given in the court

was being disbelieved, the dying declaration could not alone

form the basis of conviction. On these findings, the appeal

has been allowed and the respondents acquitted. The High

Court has not entered into appreciation of evidence. No

effort has been made by the High Court at marshalling the

evidence and assessing the intrinsic worth of the testimony

of the prosecution witnesses which, as we have already

noted, were the persons undoubtedly present at the place of

the incident having themselves suffered injuries.

The first question which arises for consideration is what

is the effect of non-explanation of injuries sustained by

the accused persons. In Rajendra Singh & Ors. Vs. State

of Bihar, (2000) 4 SCC 298, Ram Sunder Yadav & Ors. Vs.

State of Bihar, (1998) 7 SCC 365 and Vijayee Singh & Ors.

Vs. State of U.P., (1990) 3 SCC 190, all 3-Judges Bench

decisions, the view taken consistently is that it cannot be

held as a matter of law or invariably a rule that whenever

accused sustained an injury in the same occurrence, the

prosecution is obliged to explain the injury and on the

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failure of the prosecution to do so the prosecution case

should be disbelieved. Before non-explanation of the

injuries on the person of the accused persons by the

prosecution witnesses may affect the prosecution case, the

court has to be satisfied of the existence of two conditions

: (i) that the injury on the person of the accused was of a

serious nature; and (ii) that such injuries must have been

caused at the time of the occurrence in question.

Non-explanation of injuries assumes greater significance

when the evidence consists of interested or partisan

witnesses or where the defence gives a version which

competes in probability with that of the prosecution. Where

the evidence is clear cogent and credit worthy and where the

Court can distinguish the truth from falsehood the mere fact

that the injuries on the side of the accused persons are not

explained by the prosecution cannot by itself be a sole

basis to reject the testimony of the prosecution witnesses

and consequently the whole of the prosecution case.

The High Court was therefore not right in overthrowing

the entire prosecution case for non-explanation of the

injuries sustained by the accused persons. The High Court

ought to have made an effort at searching out the truth on

the material available on record as also to find out how

much of the prosecution case was proved beyond reasonable

doubt and was worthy of being accepted as truthful.

So is the case with the criticism levelled by the High

Court on the prosecution case finding fault therewith for@@

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non-examination of independent witnesses. It is true that@@

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if a material witness, which would unfold the genesis of the

incident or an essential part of the prosecution case, not

convincingly brought to fore otherwise, or where there is a

gap or infirmity in the prosecution case which could have

been supplied or made good by examining a witness which

though available is not examined, the prosecution case can

be termed as suffering from a deficiency and withholding of

such a material witness would oblige the Court to draw an

adverse inference against the prosecution by holding that if

the witness would have been examined it would not have

supported the prosecution case. On the other hand if

already overwhelming evidence is available and examination

of other witnesses would only be a repetition or duplication

of the evidence already adduced, non-examination of such

other witnesses may not be material. In such a case the

Court ought to scrutinise the worth of the evidence adduced.

The court of facts must ask itself __ whether in the facts

and circumstances of the case, it was necessary to examine

such other witness, and if so, whether such witness was

available to be examined and yet was being withheld from the

court. If the answer be positive then only a question of

drawing an adverse inference may arise. If the witnesses

already examined are reliable and the testimony coming from

their mouth is unimpeachable the Court can safely act upon

it uninfluenced by the factum of non-examination of other

witnesses. In the present case we find that there are at

least 5 witnesses whose presence at the place of the

incident and whose having seen the incident cannot be

doubted at all. It is not even suggested by the defence

that they were not present at the place of the incident and

did not participate therein. The injuries sustained by

these witnesses are not just minor and certainly not

self-inflicted. None of the witnesses had a previous enmity

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with any of the accused persons and there is apparently no

reason why they would tell a lie. The genesis of the

incident is brought out by these witnesses. In fact, the

presence of the prosecution party and the accused persons in

the chowk of the village is not disputed. How the vanity of

Thakores was hurt leading into a heated verbal exchange is

also not in dispute. Then followed the assault. If the

place of the incident was the chowk then it was a sudden and

not pre-meditated fight between the two parties. If the

accused persons had reached their houses and the members of

the prosecution party had followed them and opened the

assault near the house of the accused persons then it could

probably be held to be a case of self-defence of the accused

persons in which case non- explanation of the injuries

sustained by the accused persons would have assumed

significance. The learned Sessions Judge has on

appreciation of oral and circumstantial evidence inferred

that the place of the incident was the chowk and not a place

near the houses of the accused persons. Nothing more could

have been revealed by other village people or the party of

tight rope dance performers. The evidence available on

record shows and that appears to be very natural, that as

soon as the melee ensued all the village people and tight

rope dance performers took to their heels. They could not

have seen the entire incident. The learned Sessions Judge

has minutely scrutinised the statements of all the

eye-witnesses and found them consistent and reliable. The

High Court made no effort at scrutinising and analysing the

ocular testimony so as to doubt, if at all, the correctness

of the several findings arrived at by the Sessions Court.

With the assistance of the learned counsel for the parties

we have gone through the evidence adduced and on our

independent appreciation we find the eye-witnesses

consistent and reliable in their narration of the incident.

In our opinion non-examination of other witnesses does not

cast any infirmity in the prosecution case.

Thus, we are of the opinion that the two grounds on

which the High Court has reversed the judgment of the

Sessions Court were irrelevant and could not have been

relevant for such reversal. Justice has been made sterile

by exaggerated adherence to rule of proof. Benefit of doubt

must always be reasonable and not fenciful.

As we have already stated, we have ourselves minutely

scrutinised the evidence available on record. We do not

find any infirmity in the findings arrived at by the learned

Sessions Judge fixing the liability on the accused persons

by pointing out the specific overt act attributed to each of

the accused persons. However, on the determination of the

nature of offence committed by one of the accused persons,

we are at variance with the finding of the learned Sessions

Judge which we will state a little later. We do not deem it

necessary to re-state in very many details our own findings

as to the exact role played by the three accused respondents

inasmuch as they are the same as have been recorded by the

learned Sessions Judge. However, briefly we would indicate

what we have found from the appreciation of evidence.

Kubersing, accused no.1 dealt a blow by dagger on the

abdomen of Amuji Narsingji. This injury proved fatal. It

was sufficient in the ordinary course of nature to cause.

All the witnesses have attributed this fatal injury on the

person of Amuji Narsingji to Kubersing accused no.1. Thus

he has been rightly convicted of an offence punishable under

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Section 302 IPC for causing death of Narsingji Hiraji.

Narsingji Hiraji had sustained only one stab wound in

the abdomen. The weapon had penetrated deep cutting the

intestines which shows the force by which the blow was

dealt. The author of this injury is Kubersing accused no.1

as deposed to by all the witnesses. This injury was also

sufficient in the ordinary course of nature to cause death.

Kubersing accused no.1 is therefore guilty of offence

punishable under Section 302 IPC also for causing the death

of Narsingji Hiraji.

Dr. Vervadia PW2, who examined Sabuji Viraji on

24.3.1980 at 12.15 a.m. found him to have sustained 3

injuries of which the incised wound on left side of upper

part of abdomen was 1x¼x¼. This injury is attributed to

Magansing, accused No.2 by all the prosecution witnesses.

They are consistent on this point and not shaken in cross-

examination. The dying declaration, Ex.28, made by the

deceased Sabuji and recorded by Magistrate also attributes

authorship of this injury to Magansing, accused No.2.

However, what has to be really determined is the nature of

this injury. In his statement Dr. Vervadia has not stated

the nature of the injury caused. Sabuji Viraji died on

30.3.1980. Post-mortem on his dead body was conducted on

31.3.1980 by Dr. Solanki PW4. Dr. Solanki, PW4, conducted

post mortem on the dead body of Sabuji on 31.3.80 at 10.20

AM. He found the wound stitched. On opening he found

internally __ Large intestine sutured wound 2.5 cm on

splenic flexure gappling containing faecal matter;

surrounding area of wound was red in colour; opening was

found absent. The cause of death in the opinion of Dr.

Solanki was shock due to acute peritonitis. None of the two

doctors has deposed if the injury was grievous or sufficient

in the ordinary course of nature to cause death or that the

injury was so imminently dangerous that it must have in all

probability resulted in death or was likely to cause death.

The exact cause of peritonitis is not known. That

negligence to treat the wound could be a contributing factor

cannot be ruled out. In such state of medical evidence it

will not be proper to draw an inference against Magansing

accused no.2 of his having committed murder of Sabusing

Viraji punishable under Section 302 of the IPC. The injury

dealt by him by a sharp weapon had cut into the intestine.

Though, an intention to cause death or such bodily injury as

is likely to cause death cannot be attributed to him,

knowledge is attributable to accused No.2 that an injury by

knife into the abdomen was likely to cause death. As it was

a case of sudden fight, the act of this accused would amount

to culpable homicide not amounting to murder punishable

under part II of Section 304 of IPC. The other injuries on

the person of Sabuji are not attributed to accused No.2,

Magansing.

Insofar as Gajrabai Magansing the accused no.5 is

concerned her causing a grievous hurt to Viraji Devaji by a

stick is proved beyond reasonable doubt. Viraji Devajis

own statement to this effect is fully corroborated by other

eye witnesses and medical evidence. In our opinion, she was

rightly convicted by the learned Sessions Judge under

Section 325 of the IPC.

We do not deem it necessary to further discuss the

evidence and record our findings as to offences punishable

under Section 324 of the IPC committed by accused no.1 and

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accused no.2 for causing injuries by sharp weapon to other

prosecution witnesses inasmuch as the learned Sessions Judge

having recorded a finding of guilt on those counts has

chosen not to pass any sentence of imprisonment and

therefore such exercise would be futile at this stage, also

in view of the nature of sentences which is being passed on

the accused respondents.

For the foregoing reasons the appeals are partly

allowed. The judgment of the High Court, under appeal, is

set aside. The finding of guilty as recorded by the trial

court along with the sentence passed thereon on the

respondent, Kubersing Chamansing (accused no.1) are

restored, that is, he is held guilty of offences punishable

under Section 302 IPC on two heads respectively for causing

the death of Narsingji Hiraji and Amuji Narsingji. He is

sentenced to imprisonment for life on both the counts. Both

the sentences shall run concurrenly. The acquittal of

Magansing Dadusing, accused no.2 under Section 302 IPC is

maintained. However, he is held guilty of an offence

punishable under Section 304 Part II IPC for causing

culpable homicide not amounting to murder of Sabusing Viraji

and he is sentenced to undergo rigorous imprisonment for a

period of five years with a fine of Rs.2,000/- in default of

payment whereof he shall undergo further imprisonment for a

period of six months. The amount of fine, if realised,

shall be paid as compensation to the heirs of Late Sabuji.

The acquittal of Gajrabai Magansing accused no.5 under

Section 325 is set aside and instead her conviction along

with sentence as passed by the trial court is restored. The

bail bonds of Kubersing Chamansing and Magansing Dadusing

are hereby cancelled. They shall surrender and be taken

into custody for serving out the sentences as passed

hereinabove. Gajrabai the respondent-accused no.5 shall be

called upon to execute the bond and furnish one surety as

ordered by the trial court. The amount of Rs.500/- shall be

recovered from her as fine and paid by way of compensation

to Viraji Devaji as ordered by the trial court. The appeals

stand disposed of accordingly.