M.B. Shah, J.
1. In Sessions Case No. 69 of 1987 by the judgment and order dated 29th September, 1987 passed by the Additional City Sessions Judge, Ahmedabad, the appellants-original accused Nos. 1, 5 and 6 are convicted for the offence punishable under Section 302 of the Indian Penal Code and each of them is sentenced to suffer R.I. for life and to pay fine of Rs. 1,000/-, in default, to suffer R.I. for six months.
2. Accused Nos. 2, 3, 4 and 7 are convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and each of them is sentenced to suffer R.I. far life and to pay fine of Rs. 1,000/-, in default, to suffer R.I. for six months but they are acquitted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
3. Accused No. 5 is convicted for the offence punishable under Section 324 of the Indian Penal Code for causing injuries by spear to witnesses Mahammad Yamin, Abdulrazak and Mahammad Ismail and is sentenced to suffer R.I. for one year and to pay the fine of Rs. 500/-, in default to suffer R.I. for three months.
4. Rest of the accused i.e. Nos. 1, 2, 3, 4, 6 and 7 are convicted for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code and each of them is sentenced to suffer R.I. for one year and to pay fine of 500/-, in default, to suffer R.I. for three months but are acquitted for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code.
5. Accused No. 3 is convicted for the offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908 and is sentenced to suffer R.I. for two years and to pay fine of Rs. 1,000/-, in default, to suffer R.I. for six months for each of the offences.
6. Rest of the accused i.e. accused Nos. 1, 2, 4, 5, 6 and 7 are convicted for the offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908 read with Section 149 of the Indian Penal Code and each of them is sentenced to suffer R.I. for two years and to pay fine of Rs. 1,000/-, in default, to suffer R.I. for six months for each of the said offences but are acquitted for the offences punishable under Section 4 and 5 of the Explosive Substances Act, 1908 read with Section 34 of the Indian Penal Code.
7. Accused Nos. 2, 4 and 7 are convicted for the offence punishable under Section 323 of the Indian Penal Code for causing injuries to deceased Babakhan and each of them is sentenced to suffer R.I. for six months and to pay fine of Rs. 250/-, in default, to suffer R.I. for one month.
8. Rest of the accused, i.e. accused Nos. 1, 3, 5 and 6 are convicted for the offence punishable under Section 323 read with Section 149 of the Indian Penal Code and each of them is sentenced to suffer R.I. for six months and to pay fine of Rs. 250/-, in default, to suffer R.I. for one month.
9. Substantive sentences are ordered to run concurrently.
10. Against the aforesaid judgment and order, the accused have preferred this appeal.
11. At the outset we may mentioned that the learned Judge appears to have committed some mistake in framing the charge against accused Nos. 1, 5 and 6. Accused Nos. 1, 5 and 6 are charged with the offence punishable under Section 302 of the Indian Penal Code and thereafter he has mentioned that 'you remaining accused are charged for the offence punishable under Section 302 read with Section 149 or 34 of the Indian Penal Code'. Instead of word 'remaining' the word 'all' ought to have been there. In the beginning of the charge it has been mentioned that on 30th June, 1986 at about 2-45 p.m. accused No. 1 armed with pistol, accused Nos. 5 and 6 armed with spears and accused Nos. 2 and 4 armed with strcks and accused No. 3 armed with bomb formed an unlawful assembly whose common object or common intention was to commit murder, rioting and offence under Explosive Substances Act and for achieving the aforesaid object all went near the shop of Rahimbhai Cyclewala which is near Shalimar Talkies, Ahmedabad. For fulfilling the aforesaid common object or common intention accused No. 1 fired at Mustakbhai @ Babakhan Razakkhan Pathan and accused Nos. 5 and 6 inflicted injuries on Babakhan by spear and accused Nos. 2 and 4 caused injuries to Babakhan with sticks and accused No. 7 gave him kick blows and due to that Babakhan expired. After stating the aforesaid facts instead of specifically charging accused Nos. 1, 5 and 6 for the offence punishable under Section 302 read with Section 149 or 34, it is stated that 'accused Nos. 1, 5 and 6 are charged for the offence punishable under Section 302 and the remaining accused are charged for the offence punishable under Section 302 read with Section 149 or 34 of the Indian Penal Code'. The charge is at Ex. 2.
12. It is the prosecution version that on 13th June, 1986 it was Friday and the complainant Mahammad Yamin Mahammad Yunus P.W. 2 Ex. 32 had gone to the shop known as 'Sagar Cycle Repairing Works' situated near Shalimar Cinema at about 2-30 p.m. That shop belongs to one Zahirbhai P.W. 6 Ex. 51. He sat on a bench which was kept in front of the said shop. At that time deceased Babakhan and witness Abdulrazak Nanhekhan P.W. 5 Ex. 40 were sitting there. They had called for tea. At that time in one autorickshaw Mustufa (accused No. 7), Salam (accused No. 5) and Ayub (accused No. 6) came there. After getting down from the rickshaw Mustufa came near the place where Babakhan was sitting. Behind Mustufa Ayub came there. Babakhan informed Mustufa that Ayub may be sent back. So Mustufa signalled Ayub to leave the place. Ayub, therefore, took his seat in rickshaw and thus both went away. The deceased Babakhan and Mustufa were talking. After 5 minutes at about 1-45 p.m. in one Ambassador car accused Nos. 1 to 6 came there. The car stopped near the footpath of the road. Accused Nos. 1 to 6 got down from the car and came near the place where the deceased and the witness were sitting. Immediately accused No. 1 fired from his pistol towards Babakhan. Accused No. 5 Salam and accused No. 6 Ayub started inflicting spear blows on Babakhan. Witnesses Mahammed Yamin and Abdulrazak tried to intervene. Accused No. 5 gave spear blows to them on their back. At that time Mahammad Yamin P.W. 2 Ex. 32 saw that accused No. 3 Raheman was trying to explode the bomb which was in his hand. He caught hold of accused No. 3. In the meantime because of the serious injuries sustained by Babakhan, he fell down on the ground and all the accused ran away in the Ambassador car with their respective weapons. On account of this incident shop-keepers closed their shops and ran away. After some time Sabir Husain Munirmiya, father-in-law of deceased Babakhan, who is having his shop in the vicinity of Sagar Cycle Repairing Works, came there. He removed the deceased Babakhan to L.G. Hospital in an autorickshaw. Within 5 to 10 minutes the complainant and Abdulrazak also went to L.G. Hospital in autorickshaw for treatment. In L.G. Hospital they came to know that the deceased Babakhan had expired. They were admitted in L.G. Hospital. F.I.R. of Mahammad Yamin was recorded by P.I. Zala between 6-30 to 7 p.m.
13. Meanwhile it is the say of the P.S.I. Naransinh Harisinh Dabhi P.W. 12 Ex. 57 that on 13th June, 1986 he was serving as P.S.I. at Maninagar Police Station. At about 3 p.m. one unknown person came to the Police Station and informed him that in Rasulabad Colony near Mira Talkies quarrel had taken place. The unknown person requested him to go there. He, therefore, along with other Police Constables went at Rasulabad Colony. At Rasulabad Colony many persons had collected. The P.S.I., therefore, asked the Police Constable Iqbal to inform Police Inspector Zala about the incident. It is the say of P.I. Ghanshyamsinh F. Zala that at about 3-15 p.m. Police Constable Yakubbhai came at his residence and informed that in Rasulabad Colony there had been a quarrel and number of persons had collected there. P.S.I. Dabhi had already left for the said place. As mobile van was not available, he went at Rasulabad Colony in rickshaw. He had given instructions to Police Constable Dahyabhai to send message at Control Room. It is his say that he reached Rasulabad Colony in autorickshaw with S.R.P. persons at about 3-30 p.m. At that time in Sahiya Colony near the house of accused No. 1 he saw one burning motor car. During mat time mobile van from Kagdapith Police Station had also reached there. He immediately sent information at Fire Brigade. He went at the house of accused No. 1. At that time none was present. Therefore, he kept Police party there for keeping bandobust. Somebody from the mob informed him that there was firing on Babakhan, therefore he had gone at that place. Meanwhile he met P.S.I. Dabhi. P.I. Zala informed P.S.I. Dabhi at about 3-45 p.m. to go to L.G. Hospital. Before going to hospital P.S.I. went at the Police Station. At the Police Station P.S.O. had received one Vardhy Ex. 60 at about 3-40 p.m. Thereafter he went to L.G. Hospital. He prepared inquest panchnama of the dead body of Babakhan which is produced at Ex. 20. When the inquest panchnama was being prepared at about 5-00 p.m. P.I. Zala came to L.G. Hospital. In L.G. Hospital also number of persons had collected. He, therefore, sent message for sending more Police Constables for bandobust. He received a copy of the Vardhy (Ex. 60) which was received from the Civil Hospital, Ahmedabad, from the Police Station Officer who was in charge of Maninagar Police Station. In the said Vardhy it was stated that Mahammad Ayub Abdul Sattar Shaikh and Sabirbhai Yakubbhai had received bullet injuries. He informed P.S.I. Vaghela to go to the Civil Hospital. On inquiry he found that Mahammad Yamin, Abdulrazak Nanhekhan and Mahammad Ismail were admitted as indoor patients in L.G. Hospital. He also found that the father of the accused No. 1 Yakubmiya was also admitted as an indoor patient. He saw their condition and that they were being treated. Between 6 to 7 p.m. he recorded the F.I.R. of Mahammad Yamin. After recording the F.I.R. he sent it at the Police Station. It was given Crime Register No. 121 of 1986. He prepared the panchnama (Ex. 21) of the clothes of the deceased Babakhan. He recorded the statement of Vankar Jayantibhai who had produced the clothes of the deceased. After completing this panchnama from L.G. Hospital he went to the Civil Hospital, Ahmedabad, at about 9 to 9-15 p.m. In the Hospital he met P.S.I. Vaghela who informed him that accused Nos. 1 and 6 had left the Civil Hospital after treatment. He went in the ward and inquired about accused Nos. 1 and 6. The Nurse who was on duty informed him that when accused Nos. 1 and 6 were sent for X-ray with case-papers, they left the Hospital. Thereafter at about 9-45 to 10 p.m. he went at the house of accused No. 1 in Rasulabad Colony. At that time the sister of accused No. 1 was present. He prepared the panchnama (Ex. 51) of the house of accused No. 1 and attached 2 bombs from me house after making panchnama. Thereafter he recorded the complaint of Zarina, sister of accused No. 1. That complaint was sent at the Maninagar Police Station for registration of the offence. It was registered as Crime Register No. 122 of 1986. Information was sent to Forensic Science Laboratory and Explosive Substances Office at Baroda.
14. Thereafter at 2-00 a.m. he prepared panchnama for Crime Register No. 122 of 1986 and from the house of accused No. 1 one blood-stained spear was found beneath the sofa which was lying in Osri. Another spear and Rampuri knife were found from inside room. He had noticed two spots on outside wall indicating bullet marks. Thereafter he prepared detailed panchnama (Ex. 52) including that of the burnt car of accused No. 1 which was bearing No. GJC 7564. He recorded the statements of wife of accused No. 1, wife of accused No. 3 and wife of accused No. 7. He also recorded the statements of accused No. l's younger sister. Thereafter he went to L.G. Hospital and recorded the statement of Mahammad Ismail, Abdulrazak Nanhekhan and Sabir Husain, father-in-law of Babakhan, and Yakubbhai, father of accused No. 1. Subsequently he directed the police persons to inquire about the whereabouts of the accused and P.S.I. Solanki was sent to Petlad. He went at the scene of offence near Sagar Cycle Repairing Works and made panchnama Ex. 19 of the place of the incident and attached earth stained with blood and attached in all 5 empty cartridges from the place of the incident. Near the place where blood was found one Ambassador car bearing No. GJC or GUC 5484 was lying. On the rear left side of the car blood stains were noticed. Beneath the car one empty cartridge bearing mark 6.35 and GEC was found. One bowl filled with water lying opposite to cycle shop. Near it 3 empty cartridged were found. One bullet was also found from the water bowl. Out of these 3 empty cartridges one empty cartridge was of red colour having a hole in it. It was bearing 6.35 and GECO mark. The other 2 empty cartridges were bearing KF marks. From the cupboard which was inside the shop one bullet was found and beneath it one empty cartridge bearing KF mark was found. The panchnama was completed at 10-30 a.m. on 14th June, 1986. He continued his search of the accused. The news of the absconding of the accused were published in Police Gazette on 10-9-1986. Accused No. 2 was arrested by Head Constable Mehboobmiya and was taken on remand. On 11-9-1986 information was received that the accused were hiding at Juhapura in the house of Jahiruddin. On search of that place they were not found but their suitcase was found. It was attached after preparing panchnama. On 21st September, 1986 accused Nos. 1, 2, 6 and 7 surrendered at the Police Station. They were arrested. Their statements were recorded. They were taken on remand. On 22-9-1986 the accused No. 1 had shown his willingness to point out the pistol in presence of panchas. Accused No. 1 had pointed out his pistol which he had hidden at Bibi Amma Kabrastan at Amdupura. The panchnama is produced at Ex. 64. On 26-10-1986 accused No. 3 was arrested. After completing the necessary investigation the accused were charge-sheeted for various offences. The Additional City Sessions Judge has framed the charge Ex. 2 as stated above.
15. After recording the evidence of the prosecution witnesses the plea of the accused was recorded. Accused Nos. 2, 3, 4 and 5 had contended that they do not know anything in this matter and they are falsely involved. Accused Nos. 1 and 6 have contended that accused No. 1 was serving at the place of Nawabkhan; before the date of the incident he had left the service and had started his independent business of liquor near Shah Alam Roza which was not liked by Nawabkhan, therefore he had given threats to accused No. 1; accused No. 1, therefore, started his business near Calico Mills; accused No. 1 had arranged musical programme at Ramrahim Tekra on 10-6-1986; accused No. 2 Siddikbhai was singer in the said programme; Siddikbhai was honoured by the residents of that area which was not liked by his master Nawabkhan; on the day of the incident, i.e. on 13th June, 1986 at about 2-30 p.m. accused Nos. 1 and 6 and the father of accused No. 1 and other members of the family were inside their house and were taking meals; one person raised a shout from outside to the effect that their brother named Mustufa, accused No. 7, was being beaten near Shalimar Talkies by Babakhan and other persons of Nawabkhan; so they got up and started from their house in order to go near Shalimar Talkies. It is the say of the accused that accused No. 1 carried unlicensed pistol with him; when they came near Sagar Cycle Repairing Works, they found that the persons of Nawabkhan had surrounded Mustufa and were pushing him; accused No. 1 asked Babakhan to leave accused Mustufa and not to cause and injury to him; Babakhan lost his temper and fired at accused No. 1. In the meanwhile Ayub came and on account of firing he sustained injury on the upper chest part, at that time associates of Babakhan were also armed; out of them, one with a weapon like spear rushed towards Ayub and Ayub tried to snatch away the weapon like spear. Even at that time Babakhan was firing towards accused No. 1 and with a view to save himself accused No. 1 took a turn as a result of which he sustained an injury by a bullet at the lower portion of right buttock; Ayub seeing that Babakhan was firing at him, started whirling the spear as a result of which Babakhan sustained an injury and accused No. 1 himself sustained an injury; on account of injury sustained by Babakhan the pistol which was in his hand fell dowri; thereafter' accused Nos. 1 and 6 ran away from the place and in a rickshaw went to Shahpur where their sister was residing but as she was not there, accused No. 1 contacted his friend Zahiruddin Gulam Maiyuddin residing there and in his company both reached the Civil Hospital at 3-35 p.m.; one Police Constable inquired from his brother Ayub with regard to the injuries received by them; his brother informed that because of quarrel with Babakhan they had received injuries; they were treated at Civil Hospital at 4-30 p.m. P.S.I. Vaghela came there and informed them that Babakhan had expired and Nawabkhan's persons were bringing dead body of Babakhan to Civil Hospital; he also informed them that Nawabkhan's persons entered their house and had damaged furniture and their Ambassador car; they were searching them; as they felt that their life was in danger, they left the Civil Hospital with the help of P.S.I. Vaghela. In addition, it is the say of accused No. 6 that in self-defence accused No. 1 had fired towards Babakhan and he had wielded separ which might have caused injury to Babakhan. It may be noted that accused No. 1 spear not stated that he had fired at Babakhan in self-defence.
16. Accused No. 7 had contended that on the day of the incident at about 2-20 p.m. he was going towards his house in order to take his meals; at that time he saw one hand-lorry containing Mangoes near Shalimar Talkies; he stood there for purchasing it; Babakhan also came there and asked him to accompany him to Sagar Cycle Repairing Works; he accompanied the deceased; at that place Babakhan abused him and told him that his brother had been 'Dada'; the deceased and his persons started giving fist blows to him; during that time his brothers Sabbir and Ayub came there; Sabbir asked the deceased not to assault him; immediately Babakhan brought out pistol and aimed at him by saying that he was waiting for him; during that time Ayub came there; Babakhan fired from his pistol which caused injury to Ayub; at that time one person came running with spear; his brother Sabbir therefore thought that these persons would kill them and, therefore, in self-defence Sabbir fired pistol; Ayub snatched away the spear from the person who had come to assault him. He started whirling it which had caused injury to Babakhan. It is his say that other persons of Nawabkhan came there and hence all the three brothers ran away. Because of Nawabkhan's fear they were hiding themselves. It is his further say that the witnesses were Nawabkhan's paid servants.
17. After appreciating the evidence of the prosecution witnesses and considering the defence version the learned Judge arrived at the conclusion that the prosecution has proved beyond reasonable doubt that the accused had formed an unlawful assembly having its object to commit murder of Mustak @ Babakhan and to cause injuries to Mahammad Yamin, Abdulrazak and Mahammad Ismail and to commit the offences punishable under the provisions of the Explosive Substances Act, 1908. He has also arrived at the conclusion that the prosecution has proved that such object was common object of all the accused. He also held that accused Nos. 1, 5 and 6 in pursuance of the common object had caused injuries to deceased Babakhan. The learned Judge has raised as many as 20 points for determination. With regard to points Nos. 13 and 17 only he has held in negative. With regard to rest of the points he held that the prosecution has proved its case beyond reasonable doubt. The learned Judge has held accused No. 3 guilty for the offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908 and has held the remaining accused guilty under Sections 4 and 5 of the Explosive Substances Act, 1908 read with Section 149 of the Indian Penal Code. The learned Judge has relied upon the evidence of injured prosecution witnesses and eye-witnesses for convicting the accused. The learned Judge rejected the contention of the accused that they were entitled to exercise the right of private defence. He held that the accused were aggressors and they had gone to the extent of causing as many as 22 injuries to the deceased Babakhan. He also held that accused Nos. 1 and 6 had not sustained injuries at the time of the incident but they had sustained injuries at the time of subsequent incident which had taken place at the house of accused No. 1 after occurrence of the first incident.
18. Accused No. 3 has expired pending appeal, but the appeal was argued out by the learned Advocate for the appellants as a whole because it is the contention that neither accused No. 3 nor rest of the accused could have been convicted under the provisions of the Explosive Substances Act, 1908.
19. Learned Advocate Mr. Barot appearing on behalf of the accused vehemently submitted that--
(1) the learned Judge ought not to have relied upon the evidence of the prosecution witnesses as they belong to the group which is indulging in illegal activities including selling of illicit liquor and is warring with the group of the accused. All the witnesses repeat parrot-like story of the incident which indicates that they are highly interested and tutored witnesses otherwise there would be some difference in their perception of the incident which must have taken place within few minutes.
(2) investigation by P.I. Zala is intentionally dishoest and onesided because from 3-30 p.m. he had knowledge of the incident and yet he had not recorded the F.I.R. upto 6 or 7 p.m. even though he met all the witnesses during that time.
(3) witnesses are not telling the whole truth before the Court and their evidence is falsified from the fact that two types of empty cartridges were found from the scene of offence indicating that two persons must have used firearms. The witnesses nowhere state as to who had used the second firearm.
(4) the defence has probalised the say that as deceased Babakhan fired his pistol for causing injuries to accused No. 1, accused Nos. 1 and 6 had retaliated in their self-defence.
(5) the medical evidence-does not corroborate the evidence of the prosecution witnesses.
20. Before appreciating the aforesaid contentions, it will be necessary to consider the evidence of eye witnesses. It is the say of Mahammad Yamin P.W. 2 Ex. 32 that he is residing in Bootwala's Chawl situated in Shah Alam locality and was serving in the factory of one Noorbhai which is situated near Chandola pond. On Friday he was having a holiday. On the day of the incident it was a Friday. After taking his meals at about 2-00 p.m., he had gone to Shah Alam Dargah for Namaz. Thereafter at about 2-30 p.m. he had gone to a shop known as 'Sagar Cycle Repairing Works' which is situated near Shalimar Talkies which is owned by Zahirbhai. He sat on a bench which was kept in front of the said shop. Deceased Babakhan and witness Abdulrazak were sitting there. They had given the order for tea. At that time in one autorickshaw Mustufa (accused No. 7), Salam (accused No. 5) and Ayub (accused No. 6) came there. After getting down from autorickshaw Mustufa came near the place where Babakhan was sitting. Ayub followed him. Babakhan informed Mustufa that Ayub should be asked to go away. Thereafter on the say of Mustufa, Ayub took his seat in rickshaw and he and Salam went away in the rickshaw. Babakhan and Mustufa were talking. After 5 minutes Sabbir (accused No. 1), Rahemankhan (accused No. 3), Siddik (accused No. 2), Ayub (accused No. 6), Salam (accused No. 5) and Arif (accused No. 4) came there in Ambassador car at about 2-45 p.m. The car was stopped near the foot-path. All of them got down from the car and started coming where they were sitting. Immediately Sabbir started firing towards Babakhan. Salam and Ayub were inflicting spear blows to Babakhan. He and Abdulrazak tried to intervene and at that time Salam gave him a blow with spear which landed on his back as he turned back. Abdulrazak was also injured. Thereafter he saw that Raheman (accused No. 3) was trying to explode a bomb which was in his hands. He caught hold of accused No. 3. The deceased Babakhan was seriously injured. He fell down on the ground. Therefore, all the accused ran away in the said Ambassador car with their weapons. Because of the incident shop owners closed their shops. After some time Sabbir Hussain came there. He removed Babakhan to L.G. Hospital in a rickshaw. It is the say of the witness that he and Abdulrazak also went to L.G. Hospital after 5 minutes. When they reached L.G. Hospital they found that Babakhan had expired. This witness admits in cross-examination that in the F.I.R. it has been stated that Siddikbhai and Sabbirbhai were servants of Nawabkhan and they were removed from service. On the day of Vasi Id Sabbirbhai had called Siddik and had honoured him. This was not liked by persons of Nawabkhan as number of criminal cases were filed between Siddik and the persons of Nawabkhan. He had denied the suggestion that on the day of the incident he had seen pistol with Babakhan. It is his say that they had not seen that accused Nos. 1 and 6 were injured at that time. He had denied the suggestion that Babakhan had fired at accused Nos. 1 and 6. He had also denied the suggestion that accused Nos. 1 and 6 received injuries by other weapons also. He had denied the suggestion that Babakhan had caught hold of accused No. 7 Mustufa and, therefore, to get him released accused Nos. 1 and 6 had come to the place of incident and at that time Babakhan fired at accused Nos. 1 and 6 and in self-defence accused No. 1 had fired. It is his say that when he saw that accused No. 5 was coming to cause injury by spear to him, he had moved aside. He had denied the suggestion that the injury on his person was self-inflicted. He admits that he, Babakhan and Abdulrazak were occasionally sitting at Sagar Cycle Repairing Works. He has further stated in the cross-examination that accused Nos. 1 and 7 were real brothers, accused No. 4 was their driver and accused No. 3 was their brother-in-law. He admits that when his F.I.R. was recorded, there was police bandobust at L.G. Hospital and that he was surrounded by 10 to 15 policemen. He has denied the suggestion that except accused Nos. 1, 6 and 7 none else was present at the time of the incident.
21. The aforesaid version of the complainant is fully corroborated by Abdulrazak Nanhekhan P.W. 5 Ex. 40. He has also stated that at about 2 p.m. he had gone to Shah Alam Masjid for Namaz. Thereafter he had gone to Sagar Cycle Repairing Works of Zahirbhai. At that time Babakhan and witness Ismail were sitting. Complainant Mahammad Yamin came there subsequently. When they were talking Mustufa, Salam and Ayub came there in autorickshaw, Mustufa came near Babakhan. Babakhan welcomed him and asked him to sit. Ayub followed Mustufa but Babakhan asked Mustufa to send him back. Ayub, therefore, went away in a rickshaw along with Salam. Babakhan and Mustufa were talking. He also narrates the entire incident in the same manner as narrated by the complainant. He, however, adds that accused No. 7 Mustufa had given kicks to Babakhan and that accused Nos. 2 and 4 had inflicted stick blows on deceased Babakhan. It is his say that accused No. 5 had caused injury by spear on his back. He has denied the suggestion that accused Nos. 1 and 6 had received injuries at the time of the incident as Babakhan had fired towards accused Nos. 1 and 6 and that in self-defence accused No. 1 had fired from his pistol.
22. Similar is the version of witness Mahammad Ismail Abdulkarim. P.W. 8 Ex. 48. He has also described the incident in the same manner. He also states that accused Nos. 2 and 4 has caused injuries to Babakhan by stricks and that accused No. 7 had given kick blows. It is his say that when accused No. 5 was wielding spear he had received some injuries on his left hand and left hand arm. After the incident he went away. Subsequently he had gone to L.G. Hospital for treatment. In cross-examination he admits that he had come to know that Nawabkhan was having enmity with accused Nos. 1 and 2 and that prior to the incident Nawabkhan;s persons were moving in angry mood. He further admits that in a criminal complaint filed by the sister of accused No. 1 for ransacking her house, causing damage to number of articles and causing injuries, he was one of the accused. Mahammad Yamin and Abdulrazak were co-accused. He was arrested along with Pappu and his brother Nasirkhan, sons of Nawabkhan. He has denied the suggestion that he was not present at the scene of offence. He has also denied the suggestion that he had gone at the house of accused No. 1 along with other persons for throwing stones.
23. The prosecution has also examined Mahammad Zahir Abduljabarkhan Shaikh P.W. 6 Ex. 41, who is the owner of the Sagar Cycle Repairing Works. It is his say that on the day of the incident he had gone to the shop at about 1-30 p.m. after taking meals. At about 2-30 p.m. Babakhan came there and was sitting on a bench which was outside his shop. Yamin, Razak and Ismail came there. They all were sitting on the bench and had ordered tea. Thereafter Mustufa, accused No. 7, came by a rickshaw along with two other persons. He also narrates the entire incident and states that Razak and Ismail had also received injuries at that time by spear. However, he does not narrate the names of the accused except those of Sabbir (accused No. 1) and Mustufa (accused No. 7), Mustufa had given kick blows to Babakhan. Babakhan had fallen down near motor car which was lying at some distance from his shop. It is his say that Babakhan fell down near his car which was bearing No. 5484. He also states that the bullets fired by Sabbir fell near his shop and another bullet had caused damage to the glass of a cupboard. In cross-examination he has stated that after the incident he had gone at his house and he returned on the next day morning. His statement was recorded by the Police on 14-6-1988 at 9-30 a.m. after preparing panchnama. He had denied the suggestion that from the place where blood was found, accused No. 1 had fired towards Babakhan (it seems that this suggestion was made to show that accused No. 1 received bleeding injuries at the time of incident). He had denied the suggestion that on the day of the incident Babakhan had fired from his pistol or that accused No. 1 and other accused had received any bleeding injury at the time of incident. It is his say that he was knowing accused Nos. 1 and 7 and he was knowing them by their faces.
24. For proving injuries to the complainant Mahammad Yamin and Abdulrazak the prosecution had examined Dr. Ramniksingh Amriksingh who was working on the date of the incident as Medical Officer, L.G. Hospital, Ahmedabad, P.W. 4 Ex. 36. He had examined Abdulrazak at 4 p.m. and had found the following injuries on his person as stated in medical certificate Ex. 37:
(1) Incised wound-over back 20 cm. x 1/4 cm. x 1/4 cm.
(2) C.L.W. left parietal 1/2 x 1/4 x 1/4 cm.
(3) C.L.W. over spine of left scapular 1/2 x 1/4 x 1/4 cm.
(4) Haematoma - left 1st metacarpal head.
He had also examined Mahammad Yamin and had found the following injury on his person as per the medical certificate Ex. 39:
Incised wound over back-oblique scapular region 20 x 1/2 x 1/4 cm.
25. For proving injuries to Mahammad Ismail Abdulkarim P.W. 8, the prosecution has examined Dr. Bharat Naranbhai P.W. 3 Ex. 33 who was working as Registrar in Orthopaedic Department in L.G. Hospital. He examined Mahammad Ismail at 6-10 p.m. on 13-6-1986 and had found the following injury on his index finger as the certificate Ex. 34:
(Lt) Index finger.
C.L.W. 2 cm x 1 cm. x 5 cm x 2 cm. distal to proximal phalanx.
The aforesaid medical evidence, therefore, corroborates the version of the complainant Mahammad Yamin, Abdulrazak and Mahammad Ismail that they received injuries at the time of the incident. Their presence at the scene of offence is, therefore, established. It is the say of Mahammad Ismail that he went to L.G. Hospital after some time after going to his house as he was having pain.
26. For proving injuries on the person of the deceased and cause of death, the prosecution has examined Dr. Deshmukh P.W. 7 Ex. 42 who carried out the post-mortem of dead of Mustakkhan @ Babakhan on 14th June, 1986. The Doctor had found the following external injuries on the person of the deceased:
(1) A stab wound present on right side of chest in mid clavicular line, vertical, elliptical in shape, in 2nd, 3rd intercostal space, Edges and angles are sharp size 9 x 4 cm.
(2) Puncted lacerated wound present on right lateral aspect of chest, in mid auxiliary line, over 6th intercostal space. Margins are inverted and contused and abrated. Size 0.5 x 0.7 cm.
(3) Puncted lacerated wound on front of left forearm 12 cm. below elbow size 1.2 x 0.7 cm. margins are inverted and contused.
(4) Puncted lacerated wound on back of left forearm 12 cm. below elbow size 0.7 x 0.7 cm. with overted and contused margins.
(5) Multiple rail pattern bruise on fronto-lateral aspect of upper 2/3 of rightarm, crossing and overlapping each other over an area of 24 x 15 cm. and red in colour.
(6) Incised wound on upper part of front of right arm, horizontal, size 3x3 cm.
(7) I.W. (Incised wound) on mid of right arm, horizontal, size 6 x 2.5 x 2 cm. Edges and angles of I.W. wound are sharply cut.
(8) Abrasion on right forearm size 1 x 0.5 cm.
(9) I.W. (Incised wound) on right side of abdomen, above iliac crest, transverse and muscle deep.
(10) Abrasion on right iliac fosse, 1 x 1.5 cm.
(11) Abrasion just below left mid inquinal point 3 x 1.5 cm.
(12) Incised wound on medial 1/2 of left groin 2.5 x 0.5 cm. muscle deep.
(13) Stab wound on upper lateral part of right buttock, just near iliac crest. Vertical and size 5.5 x 3.5 cm.
(14) Stab wound on upper medial part of right buttock size 4.5 x 1.5 cm. Wound No. 13 and 14 are muscle deep and in continuation.
(15) Abrasion on front of neck, upper lateral part size 5 x 2.5 cm.
(16) Abrasion on nose size 2.5 cm.
(17) Abrasion on glabella 1 x 1.5 cm.
(18) Abrasion on right check 4 x 1 cm.
(19) Incised wound on mid of medial margin of right palm, horizontal size 1.5 x 0.5 cm.
(20) Incised wound on 2nd interphalangeal joint right ring finger size 1.5 x 0.5 cm.
(21) Incised wound on back of left thumb; horizontal size 1.5 x 0.5 cm.
(22) Incised wound just below wound No. 21 and size 1.2 cm.
27. The post-mortem report is produced at Ex. 43. It is the say of the Doctor that the death occurred due to shock and haemorrhage. Injuries were caused by sharp penetrating object and firearm and hard and blunt object. Injuries on hand were suggestive of defence. According to the Doctor, injury No. 1 and its resultant internal injury were sufficient to cause death in the ordinary course of nature. Injury No. 2 and its resultant internal injury were not sufficient to cause death in the ordinary course of nature but they were likely to cause death. In cross-examination it is his say that on account of wielding of spears like articles 6 and 7 injuries Nos. 6, 7, 9, 19, 20, 21 and 22 are not possible. The said injuries were not stab wounds nor punctured wound. They are given heading of incised wounds. The aforesaid injuries on the person of the deceased prove that the assailants had caused injuries by a firearm, penetrating object like spear and also by lathi. Therefore, it corroborates the say of the prosecution witnesses that accused No. 1 used fireram, accused Nos. 5 and 6 assaulted the deceased by spear and that accused Nos. 2 and 3 assaulted the deceased with sticks.
28. The prosecution has also led evidence to prove that from the house of accused No. 1 two bomb-like articles were found. For this the prosecution has relied upon the evidence of panch Vaghubhai Gafoorbhai P.W. 10 Ex. 50 and the panchnama is produced at Ex. 51. Thereafter second panchnama Ex. 52 was prepared. In the said panchnama details of the damage which was noticed in the house of accused No. 1 are given. It also mentions that in front of the house one Ambassador car bearing No. GJG 7554 was found lying in burnt condition. On the wall bullet marks were also noticed. Show-case and other articles were found ransacked. In one room one concealed spear of 5'-8' size was found beneath the bed. In the Osri beneath the Sofa another spear of 4'-10' size with blood stains on its front portion was found. In the middle room at the place where radio was lying one Rampuri knife was also found. This detailed panchnama Ex. 52 is proved by witness Rabari Vaghubhai. In cross-examination it is the say of the panch witness that he had gone to see picture at Shalimar Talkies at 6 p.m. He was doing business in milk. He has denied the suggestion that Police Constable came and informed him that two bombs were found and for that panchnama is to be prepared, therefore he should come as panch. He had denied the suggestion that two spears were not found from the house of accused No. 1. He has also denied the suggestion that prohibition cases at Maninagar Police Station were filed against him or that panchnama with regard to a spear was not prepared on that day. In our view, considering the evidence of the panch Vaghubhai it cannot be said that he is either interested in the prosecution or was having enmity against the accused or he is under the thumb of the Police. As per the first panchnama Ex. 51 two bomb-like articles were found from the bathroom of the house of accused No. 1 Panchnama Ex. 51 was commenced at 10-00 p.m. and was completed at 10-30 p.m. Second panchnama Ex. 52 was commenced at 12 midnight and was completed at 2-30 p.m. It is detailed panchnama. The second incident had taken place at the house of accused No. 1 and number of articles in house and his car were damaged. During that incident it is the say of defence that Yakubkhan father of the accused No. 1 had received injury. Further, as per the panchnama the length of one spear was 5'-8' and that of the second spear was 4'-10'. On the handle and blade of the second spear blood-stains were found. As per the Forensic Scientific Laboratory Report Ex. 28 the spear was having human blood '0' group. It is also proved that the clothes of the deceased contained human blood '0' group. The blood of the deceased was also '0' group. Dr. Deshmukh has specifically stated that he had collected the blood of the deceased for analysis and handed it over to the Police. That blood was sent for analysis to the Forensic Laboratory. This finding of blood stained spear having '0' group from the house of accused No. 1 also corroborates the say of the prosecution witnesses that accused Nos. 5 and 6 were having spears and they had caused injury to the deceased by spear. It also indicates that after the incident the accused went at the house of accused No. 1, left the muddammal spears there and were not found at their house from 3-30 p.m. onwards.
29. The prosecution has relied upon one more circumstance to connect the accused No. 1 with the crime. The accused Nos. 1, 4, 5, 6 and 7 appeared at Maninagar Police Station on 21st September, 1986. They were arrested by P.I. Zala by making panchnama. On 22nd September, 1986 the accused No. 1 had shown his willingness to point out the place where the pistol used at the time of commission of offence was concealed. Accused No. 1 informed that he had concealed the said pistol at Bibi Amma's Kabrastan. The P.I. called the panchas, prepared first part of the panchnama. Thereafter along with panchas he and other Police Constables went near Bibi Amma's Kabrastan. Accused No. 1 went ahead dug out some earth and brought out one pistol from the pit. There were cartridges in the chamber of the pistol. Panchnama was completed at about 8 p.m. That pistol Article 96 was discovered on the strength of the information supplied by accused No. 1.
30. That pistol was sent to ballistic expert. The report is produced at Ex. 27. As per the ballistic expert's opinion, the said pistol (country-made revolver) was tested and it was found to be in working condition. Residues of fired ammunition-nitrite-and lead was detected in the barrel washing which shows that it has been used for firing prior to its receipt in the laboratory. It has been further stated that no opinion could be given regarding the type of firing.
31. Now at this stage we would consider the contentions raised by the learned Advocate for the appellants.
32. Mr. Barot, learned Advocate for the appellants, has submitted that the evidence of eye-witnesses should not be relied upon because they belong to group of Nawabkhan and they repeat a parrot-like story before the Court. With regard to the first part of the contention that the witnesses belong to another warring group of Nawabkhan, it should be noted that there is nothing on the record to show that the witnesses belong to another group which is warring with the accused. It is the say of the defence that accused Nos. 1 and 2 were serving with Nawabkhan. They were removed from service and they were doing illicit business of selling liquor. It is also their contention that Nawabkhan and the prosecution witnesses were also doing the same business and, therefore, there is rivalry between the accused's group and Nawabkhan's group.
33. In our view, even assuming that witnesses are in any way interested or are partisan witnesses, it is not the law that their evidence should be discarded. At the most the law requires that their evidence should be scrutinized with care and caution to safeguard against the normal temptation to falsely implicate others. In this case with the assistance of the learned Advocates for the parties we have closely scrutinized the evidence of the aforesaid eye-witnesses. There are no circumstances on record which would justify for arriving at the conclusion that their version requires to be discarded. Further, there is nothing on record to show that the witnesses are interested. Mahammad Yamin-the complainant was not serving with Nawabkhan nor was he the man of Nawabkhan. It is his say that he was serving in the factory of one Noorbhai and the said factory is situated near Chandola Lake. In cross-examination he has denied the suggestion which were made to him to point out that he was the man of Nawabkhan. With regard to the witness Mahammad Zahir P.W. 6, nothing can be said against him. He is the owner of Sagar Cycle Repairing Works. His shop is situated near Shalimar Talkies. He is not in any way related or connected with the witnesses or the accused. Even he has not stated the names of all the accused. He has merely stated that he was knowing accused No. 1 Sabbirbhai and Mustufabhai - accused No. 7. He has not named the other accused who were having spears and sticks. Therefore, he is absolutely independent witness. He was having no connection with the accused or with deceased Babakhan. From the evidence of Abdulrazak P.W. 5 and Mahammad Isamil P.W. 8 it cannot be said that they are persons of Nawabkhan or are in any way associated with him.
34. Further, it cannot be said that they repeat parrot-like story before the Court. P.W. 2 Mahammad Yamin had not said anything with regard to the involvement of accused No. 7 in the offence. P.W. 5 Abdulrazak has stated that accused No. 7 gave kick blows to Babakhan. As stated earlier, Mahammad Zahir P.W. 6 nowhere names accused Nos. 2 to 6. If he was required to narrate the parrot-like story, he would have named all the persons as the incident had taken place near his shop. Apart from the fact that witnesses are not narrating the incident in a parrot-like manner as the incident had taken place in broad day light and as accused Nos. 1 to 6 came in the Ambassador car which was noticed by the witnesses, the witnesses are bound to say the similar facts before the Court. From this it cannot be said that they are stating before the Court a parrot-like story.
35. Learned Advocate Mr. Barot further submitted that in this case investigation by P.I. Zala is intentionally a one-sided one. He submits that Mr. Zala came to know about the incident at about 3-30 p.m., still however, he had not recorded the F.I.R. before 6 p.m. During that time he met all the witnesses including the father of the accused No. 1 yet he had not recorded the F.I.R. of Yakubkhan. In our view, this contention is also without any substance. It is apparent from the deposition of P. 1. Zala that at about 3-15 p.m. Police Constable Yakubbhai informed him that in Rasulabad Colony there was a quarrel and persons had collected there and P.S.I. Dabhi had left for that place. He, therefore left for Rasulabad Colony after informing Head Constable Dahyabhai to send message to the Control Room for sending mobile van. He reached Rasulabad Colony at about 3-30 p.m. He found that near the house of accused No. 1 one car was burning. Number of persons had collected. During that time mobile van from Kagdapith Police Station came, he immediately sent information at Fire Brigade. He went at the house of accused No. 1. At that time none was present. He, therefore, kept Police party for Bandobust. From the mob he came to know that there was firing at Babakhan. He met P.S.I. Dabhi. He informed him to go to L.G. Hospital. After making necessary arrangement at Rasulabad Colony at the house of accused No. 1 he went to L.G. Hospital at about 5 p.m. In the L.G. Hospital also he found that number of persons had collected and P.S.I. Dabhi was preparing inquest panchnama. He sent message, calling for more Police Constables for making Bandobust. At that time he received one Vardhy Ex. 62 stating that accused No. 1 had received injuries and had taken treatment in the Civil Hospital. He, therefore, directed P.S.I. Vaghela to go to Civil Hospital for recording F.I.R. of accused No. 1. In the L.G. Hospital he found that witnesses Mahammad Yamin Abdulrazak and Mahammad Ismail were admitted as indoor patients; the father of accused No. 1 Yakubmiya was also admitted in the Hospital and he saw that their treatment was going on. At that time between 6 to 7 p.m. he recorded the F.I.R. of Mahammad Yamin. Therefore, considering the aforesaid events it cannot be said that P.I. Zala intentionally recorded F.I.R. after some time. From Rasulabad Colony after making necessary Police Bandobust he reached L.G. Hospital at 5 O'clock. There also he was required to make necessary Police Bandobust for maintaining law and order as number of persons had collected in the L.G. Hospital. Therefore, it cannot be said that there was any intentional delay on his part in recording the F.I.R. After recording the F.I.R. he prepared the panchnama of the clotiies of the deceased and recorded the statement of one Jayantibhai who was serving in the L.G. Hospital. That panchnama was completed at 9-00 p.m. Thereafter he left for Civil Hospital and reached there at about 9-15 p.m. He met P.S.I. Vaghela and he came to know mat accused Nos. 1 and 6 had left the Civil Hospital with case-papers when they were sent for X-rays. Therefore, again he went to Rasulabad Colony and reached mere about 10-00 p.m. At that time the sister of accused No. 1 was present in the house. From the bathroom of the house of accused No. 1 two plastic bombs were found. For that he prepared panchnama Ex. 51. Thereafter he recorded the F.I.R. of Zarina, sister of accused No. 1. After recording the said F.I.R. he prepared the panchnama of the house of accused No. 1 and he found two spears and one Rampuri knife in the house. One spear was blood-stained. He also noticed marks of bullets on the wall. Outside the house of accused No. 1 he saw one Ambassador Car bearing No. 756 in burnt condition. That panchnama is produced at Ex. 52. From the aforesaid sequence of events it cannot be said that the investigation by the Investigating Officer is intentionally delayed or is in any way a dishoest one. There was further delay in investigation because it is also proved that the accused were absconding from the date of the incident and they were arrested after three months.
36. Hence.the reliance placed by the learned Advocate on the judgment of the Supreme Court in the case of Baladin v. State of U.P. : 1956CriLJ345 , is of no assistance to defence. Further, in the aforesaid case the Supreme Court held that if the investigation was not honest and faithful, yet if the evidence of the witnesses is reliable, it cannot be rejected because the statements made during the investigation are not substantive evidence and the statements are to be considered only with a view to weigh the evidence actually adduced in the Court. The relevant discussion is as under:
Having held that the four eye-witnesses were on the whole reliable and that the record of their statements made by the investigating Sub-Inspector was not honest and faithful, the High Court fell into the error of acquitting all those accused persons, appellants before it, whose names did not find a place in the record made by that Police Officer. In other words it rejected reliable testimony with reference to that very record which it had condemned as unreliable.
Thus the Police Officer was allowed by the High Court to succeed in his effort to favour the accused. Ordinarily accused persons are entitled to challenge the testimony of witnesses examined in Court with reference to the statements said to have been made by them before the investigating Police Officer. Statements made by prosecution witnesses before the investigating Police Officer being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in Court, with particular reference to those statements which happen to be at variance with their earlier statements; but the statements made during police investigation are not substantive evidence.
Hence the record made by a Police Investigating Officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the Police record becomes suspect of unreliable, as in the present case, on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the Court in judging the case of a particular accused has to weigh the evidence given against him in Court keeping in view the fact that the earlier statements of witnesses as recorded by the Police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused.
37. Learned Advocate Mr. Barot further submitted that considering the panchnama Ex. 19 it is clear that from the place of offence two types of empty cartridges were found which indicates that at the relevant time two different firearms must have been used. One empty cartridge is of 6.35 m.m. with mark GECO was found below the Ambassador Car. Other 3 empty cartridges were found from the place near water bowl which was lying in front of the Cycle shop. One bullet was also found from the water bowl. Out of these 3 empty cartridges one empty cartridge was bearing GECO and 6.35 mark. The remaining 3 empty cartridge were bearing KF mark. From the shop also one empty cartridge bearing KF mark was found. It was lying near cupboard. Learned Advocate Mr. Barot, therefore, submitted that in view of 2 different types of cartridge which were lying at the scene of offence, it should be held that two different firearms must have been used and one firearm must have been used by the deceased Babakhan. He, therefore, submitted that as the witnesses are not telling the correct story before the Court, their evidence cannot be relied upon. It is true that empty cartridge of 6.35 m.m. GECO 0.22' KF mark were found from the scene of offence. The prosecution has also produced on record the report Ex. 59 of the Senior Scientific Assistant which reveals that the characteristic features of firing pin mark cap of two firearms 6.35 m.m. GECO cartridge cases were found similar thereby showing that they have been fired from the same weapon and appear to have been fired from country-made firearm. For remaining three 0.22' K.F. rimfire cartridge cases, it has been stated that the characteristic feature of firing pin mark on the rim were found similar, thereby showing that they have been fired from the same weapon. Two 6.35 m.m. fired bullets which were recovered from the scene of offence were also examined and it was found that the characteristic features of barred scratch marks on them were found similar, thereby showing that they have been fired from the same weapon. It further states that there were no standard rifling marks on these bullets, hence they appear to have been fired from country-made firearm. In the report it has been further stated that the hole No. 1 on glass and hole No. 2 on inside part of the cupboard have been caused by firearm discharge and were found corresponding and such holes can be produced by a 6.35 m.m. bullet and 0.22' bullet. The aforesaid glass and cupboard and inside part of the cupboard were examined and chemically tested. From the aforesaid report learned Advocate Mr. Barot vehemently submitted that the defence version that the deceased opened fire when accused No. 1 got down from his car is probabalized. In our view, no such inference can be drawn. To witness Abdulrazak P.W. 5 a specific question was asked in cross-examination as to from where the accused No. 1 fired. He has stated that when accused No. 1 fired, he was at a distance of 3 ft. from water bowl. This say of the witness is corroborated by the find of empty cartridges near the water bowl. As per the panchnama Ex. 19 near water bowl three empty cartridge were found. If the accused No. 1 had fired while standing near water bowl, then it is quite possible that empty cartridge may be lying there. Same is the say of the witness Mahammad Zahir P.W. 6. In cross-examination he stated that when accused No. 1 started firing, he was at a distance of 6 to 7 ft. from his shop. Further, in cross-examination Mahammad Yamin has stated that when accused No. 1 started firing, the deceased got up and he proceeded towards accused No. 1. From this evidence it is clear that after the firing took place, the deceased moved from one place to another. Therefore, it is quite possible that empty cartridge may be lying beneath the car which was lying at some distance. It is the say of this witness that as the deceased got up, accused Nos. 5 and 6 were near accused No. 1. It is the say of all the witnesses that accused No. 1 was having firearm and nobody else has used firearm. As it is country-made revolver, from the same revolver it is quite possible that the accused might have used cartridges bearing 6.35 m.m. mark and 0.22'. Further, three empty cartridges were found from the place near the water bowl which was lying in front of the Cycle shop. Out of the three cartridges two were bearing GECO mark and one was bearing KF mark. This also indicates that from one country-made revolver two types of cartridges might have been fired. There is no definite evidence on record that from the said country-made revolver the aforesaid two type of cartridges cannot be fired. In this set of circumstances, it would not be proper to discredit the direct testimony of eye-witnesses on some hypothesis that as two different types of empty cartridges bearing 6.35 m.m. and 0.22' were found, therefore the deceased must have fired towards the accused. Mr. Bukhari, learned Additional Public Prosecutor submitted that 6.35 m.m. and 0.22' size is nearly equal. In our view, this contention is not required to be considered at this stage as there is no expert's opinion that the cartridges of 6.35 m.m. and the cartridges of 0.22' can be said to be identical. As there is nothing on record to show that from the country-made revolver these two types of bullets could not have been fired and when the witnesses, whose presence at the scene of offence is established beyond reasonable doubt, depose that only accused No. 1 fired from his pistol, their evidence does not require to be doubted. In similar set of circumstances in the case of Anvaruddin v. Shakoor : 1990CriLJ1269 , the Supreme Court has observed that where the expert evidence is obscure and oscillating, it is not proper to discredit the direct testimony of the eye-witnesses such uncertain evidence. In such a situation unless the evidence of the eye-witnesses is shaken by some glaring infirmities, it would not be proper to doubt the correctness of their statements.
38. Mr. Barot also contended that the medical evidence does not corroborate the say of the prosecution witnesses. He submitted that the prosecution witnesses merely state that only one shot was fired by the accused No. 1. In our view, this is total misreading of the evidence. All the witnesses have specifically deposed that after getting down from the car Sabbir started firing towards Babakhan. Witness Mahammad Zahir in paragraph 3 has specifically stated that the bullets which were fired by Sabbir (accused No. 1) fell in front of his shop and also they dashed with the cupboard which was inside his shop. The said bullets were attached by the Police. This evidence, therefore, clearly shows that accused No. 1 had not fired at one time but he had continued his firing. The witnesses on this aspect have not at all been cross-examined by the accused. Further, witness Sabbirhusain Munirmiya, P.W. 9, who was having his garage near Shalimar Talkies, has deposed before the Court that at about 2-45 p.m. on the day of the incident when he was at his garage he heard the firing of shots (buk dtunecthlt yJtou mtkCoujt). This witness is also not cross-examined that he heard only one fire shot. This witness is father-in-law of the deceased. After hearing the shots he went at the scene of offence. There he found that his son-in-law Babakhan was lying in injured condition. He removed Babakhan to L.G. Hospital. In cross-examination it is his say that the distance between his garage and Shalimar Talkies was 50 yards. It is the say of the Doctor that injuries Nos. 2, 3 and 4 could have been caused by firearm. In cross-examination he has stated that external injury No. 3 is an entry wound because the edges are inverted. External injury No. 4 is averted and contused margins. He has further stated that it seems to be an exit wound but he cannot definitely say because the track between injury Nos. 3 and 4 is not traceable. From this Mr. Barot submitted that at least two bullets must have been fired and that as the witness have not specifically stated that more than one pistol was used by accused No. 1, the medical evidence does not corroborate the evidence of the prosecution witnesses. As discussed earlier, one witness has specifically stated that more than one bullets were fired by accused No. 1 and other witnesses had stated that firing took place indicating that it was not one fire-shot. Sabbirhusain P.W. 9 has deposed that he heard fireshots. Hence it cannot be said that medical evidence contradicts the say of witnesses. The medical evidence also fully corroborates the say of the eye-witnesses with regard to the other injuries on the person of the deceased by spear and stick. The deceased was having in all 22 injuries.
39. Lastly Mr. Barot, learned Advocate for the appellants, submitted that the prosecution has failed to explain the injuries sustained by accused Nos. 1 and 6. He submitted that the defence has probabalized its case that when accused Nos. 1 and 6 went near the scene of offence, they saw that their brother Mustufa-accused No. 7 was surrounded by Babakhan and his associates and was being pushed. Accused No. 1, therefore, shouted and asked Babakhan not to touch his brother. Babakhan, therefore, became angry and fired towards him. It is the say of the accused No. 6 that in self-defence accused No. 1 started firing (it is to be noted that accused No. 1 has not stated that in self-defence he fired shots towards Babakhan). Mr. Barot submitted that this defence is probabalized by the fact that two types of empty cartridges were found from the scene of offence and that accused Nos. 1 and 6 had received injuries at the scene of offence. For showing the injuries to accused Nos. 1 and 6, reliance is placed upon the medical certificate Exs. 73 and 72 respectively. The medical certificate Ex. 73 reveals that on the date of incident at 3-45 p.m. Sabbirmiya Yakubbhai was examined and he was having following injuries on his person:
(1) Incise wound on Lt. side chest upper part? deep oblique. 7 cm. x 1/2 cm. coring.
(2) Incise wound on Lt. mastoid region 2 cm. x 0.5 cm. just behind ear skin deep. Bleeding.
(3) C.L.W. on Rt. hand on dorsal aspect near ulnar aspect 5 cm. x 1 cm. skin deep. Clotted blood.
(4) Abrasion on base of middle and ring fingers on dorsal aspect 3 cm. x 1/2 cm. skin deep. Oblique clotted blood.
(5) Puncture wound on Rt. thigs posteromedial aspect 1/3 part 0.75 cm. in diametre. Bleeding.
(6) Puncture wound on lateral aspect of M/3 of Rt. thigh 1/2 cm. circular bleeding.
Medical certificate Ex. 72 reveals that on the date of the incident at 3-35 p.m. Mahammad Ayub Abdul Sattar was examined at Civil Hospital and the following injuries were found on his person:
(1) Puncture wound on Lt. side chest upper part just below clavicle at the junction of M/2/3 and 1/3 Vt cm. circular abrasion on-aspect lower part of wound.
(2) Superficial 0.5 cm. x 1/2 cm. bleeding. D.T.S. surroundings.
He also relied upon Ex. 62 which is a vardhy received at Maninagar Police Station at 4-05 p.m. That Vardhy was given by the Head Constable on duty at the Civil Hospital. He has conveyed that one person named Mahammad Ayub Abdul Sattar, aged 20, resident of Shah Alam Rasulabad Society, had received injury on his left side rib as Babakhan had fired towards him near Shalimar Talkies. He was brought at the Civil Hospital at 3-35 p.m. by his friend Zahiruddin Gulam Maiyuddin. It also mentions that Sabbirbhai Yakubbhai had received bullet injury and injury by some other weapon on his right hand and right things. The aforesaid persons were sent in ward No. F. 4. Mr. Barot, therefore, submitted that taking into consideration the aforesaid evidence on record, it should be held that when the accused Nos. 1 and 6 went near the scene of offence, they saw that the deceased and his persons had surrounded his brother-accused No. 7 and thereafter the deceased had fired towards accused Nos. 1 and 6.
40. In our view, these contentions cannot be accepted because in this case it is an admitted fact mat after the first incident took place near Sagar Cycle Repairing Works, immediately in retaliation the second incident took place at the house of accused No. 1 and it is the say of the prosecuting agency that at the time of the second incident which took place in retaliation accused Nos. 1, 6 and Yakubmiya, father of accused No. 1, received injuries. For this purpose the prosecution has produced on record the charge framed in Sessions Case No. 147 of 1987 wherein accused Nos. 1 to 4 are sons of Nawabkhan Pathan, accused No. 6 is complainant of this case and accused No. 5 Abdulrazak is witness of this case. Paragraph 4 of the charge reveals mat accused Nos. 2 and 3 of that case fired from the revolver towards Mahammad Ayub Abdul Sattar accused No. 6 of this case and Sabbir Yakubbhai accused No. 1 of this case. Paragraph 6 of that charge reveals that accused Nos. 2 and 4 of that case had caused injury to Yakubmiya Ibrahimmiya. It inter alia also reveals that furniture at the house of the present accused No. 1 was damaged and Ambassador Car GJC 7554 was burnt. This charge is framed as the Investigating Officer had submitted charge-sheet against the accused of that case on the basis of the F.I.R. lodged by sister of accused No. 1 and the statements recorded by him in that case. The prosecution has also produced on record Ex. 68 which is panchnama prepared in that case, which reveals that bullet marks were noticed on the wall of the house of accused No. 1. That panchnama was prepared on presence of Forensic Scientific Laboratory Assistant and the panchas. On the wall blood-stains were also noticed. The prosecution has relied upon panchnama Ex. 52 which was prepared after recording of the F.I.R. of Bai Zarina, sister of accused. No. 1. As per the panchnama burnt Ambassador Car belonging to accused No. 1 was found. Inside the house damage was also noticed. Showcase of glass was found damaged. Television was also found broken. In the panchnama damage to other articles is also mentioned in detail. That panchnama was prepared on the night of the incident. From the charge Ex. 69 it is apparent that before the investigating agency it was the case from accused side that accused Nos. 1 and 6 received injuries when they were at their residence. Their household furniture was also damaged. Forensic Scientific Laboratory Assistant had noticed bullet marks on the wall of the house of accused No. 1. Report of the Senior Scientific Assistant, Forensic Scientific Laboratory is produced at Ex. 71. The wall scrap which was taken from the house of accused No. 1 was examined and lead was detected from the wall scrap and from this it was opined that hit mark on the wall can be caused by firearm, discharge. The Police has attached two pistols and one cartridge of 0.22' from the house of the accused. All these articles were examined at the Forensic Scientific Laboratory and the necessary forwarding letter and the report are produced at Exs. 70 and 71 respectively. Therefore, when initially the accused side had stated before the investigating agency that at the house of accused No. 1, accused Nos. 1, 6 and Yakubmiya received injuries and on that basis investigation of the matter was carried out and subsequently the persons named therein were charge-sheeted by the investigating agency before the Court. On the basis of the investigation papers charge Ex. 69 was framed before the Sessions Court. Further, the say of the prosecution that second Nos. 1 and 6 received injuries at the time of the second incident which took place at his house is probabalized by the following circumstances.
(1) Even the accused do not dispute that Yakubmiya, father of accused No. 1, received injury at the time of the second incident which took place after the first incident.
(2) Damage to the household articles of accused No. 1 is also not disputed and is proved by the panchnamas Exs. 52 and 68. For proving the panchnama Ex. 68, the prosecution has raised upon the evidence of Jayantilal Jivrajbhai P.W. 14 Ex. 67. His say is not challenged in the cross-examination.
(3) Car belonging to accused No. 1 is burnt. That is proved by the panchnama Ex. 52. This aspect is also not disputed by the defence. For proving panchnama Ex. 52 the prosecution has relied upon the evidence of Vaghubhai Gafoorbhai P.W. 10 Ex. 50. In cross-examination it wassuggested to Vaghubhai that panchnama with regard to find of bombsfrom the bathroom of the house of accused No. 1 was not properlyprepared as they were called subsequently after the bombs were foundby the Police. That suggestion is denied by the witness. There is nomaterial cross-examination with regard to the find to articles which arementioned in panchnama Ex. 52 i.e. find of one blood-stained spearand another spear without blood-stains. This indicates that after the firstincident the accused must have gone to the house of accused No. land then must have concealed the spears in the house. There is no cross-examination that panchas had not noticed that number of articles at thehouse of accused No. 1 were damaged as mentioned in the panchnama.
(4) Accused Nos. 1 and 6 left the Civil Hospital and thereafter they were absconding for more than three months.
41. It is not the law that an accused can prove his right of self-defence by creating some doubt. The accused has to discharged that burden by preponderance of probabilities in favour of his plea. In the judgment cited by Mr. Barot, the learned Advocate for the appellants, in the case of Partan v. State of U.P. : [1976]1SCR757 , it has been held that while the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability. This aspect is elaborately discussed by the Supreme Court in the case of Vijayeesingh v. State of U.P. . In that case the Supreme Court has considered the provisions of Section 105 of th : 1990CriLJ1510 e Evidence Act and various decisions and the Court has held as under:
It can thus be seen that there is a dividing line between a case of the accused discharging the burden by preponderance of probabilities which is equated to proof of the exception and a state of reasonable doubt that arises on a consideration of the evidence and facts and circumstances as a whole, as regards one or more of the ingredients of the offence. Therefore, in a case where the prosecution has discharged it burden and where the accused pleads exception and if there is some evidence to support that plea the obligatory presumption under Section 105 is lifted and the accused may proceed further and establish his plea by a preponderance of probabilities or he may carry his plea further and succeed in creating a reasonable doubt about an ingredient of an offence. Consequently in respect of the general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the accused by one of these processes would be discharging the burden contemplated under Section 105 but in case of the exceptions covered by special statutes and where the burden of proof is placed on the accused to establish his plea, he will be discharging the same by preponderance of probabilities and not by merely creating a doubt.
33. At this stage we have to point out that these principles cannot be made applicable to a case where the accused sets up alibi. There the burden entirely lies on him and plea of alibi does not come within the meaning of those exceptions. Circumstances leading to alibi are within his knowledge and as provided under Section 106 of the Act he has to establish the same satisfactorily. Likewise in the cases where the statute throws special burden on the accused to disprove the existence of the ingre diends of the offence, he has to discharge the burden, for example, in the cases arising under Prevention of Food Adulteration Act if the accused pleads a defence under Section 19, the burden is on him to establish the same since the warranty on which he relies is a circumstance within his knowledge. However, it may not be necessary to enumerate these kinds of cases as we are mainly concerned in this case only with the scope and application of Section 105 of the Evidence Act. We also make it clear that the principles laid down by us are only in respect of the said provision only. As we think that it would be appropriate and useful to set out the sum and substance of the above discussions regarding the scope of Section 105 and we accordingly state the same as follows:
The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can, indirectly introduce such circumstances by way of cross-examination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his pleas gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state in the first instance as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for lesser offence and convict him accordingly.
(Underlines added)
42. In this case the evidence of the prosecution witnesses proves beyond reasonable doubt that accused Nos. 1 to 6 came at the scene of offence in Ambassador Car. At that time accused No. 7 was sitting with deceased Babakhan. There is nothing on the record to show or suggest that accused No. 7 was beaten by Babakhan. It is a proved fact that even though accused No. 7 was sitting near Babakhan, Babakhan had not caused any injury to accused No. 7 Mustufa. After coming in Ambassador Car accused No. 1 started firing towards Babakhan. The deceased was having as many as 22 injuries on his person. Further, the complainant Mahammad Yamin and the witness Abdulrazak also sustained injuries by spear at the time of the incident. Therefore, even if it is assumed that Babakhan fired at the time of incident, yet it is apparent that accused Nos. 1 to 6 were aggressors and the accused No. 1 had first started firing towards Babakhan.
In the case of Vijayeesingh (supra) the Supreme Court has held that non-explanation of injuries on the accused persons does not affect the prosecution case as a whole but on the basis of injuries found on the person of the accused the defence can contend that the accused would have a right of private defence or at any rate a reasonable doubt arises in this regard. As stated above, once we arrive at the conclusion that accused Nos. 1 to 6 went to the scene of offence with a revolver, spears and sticks and they were the aggressors and the accused No. 7 had not received any injury, then even if the accused Nos. 1 and 6 had received injuries at the time of the incident, yet they would not have any right of private defence and non-explanation of injuries by the prosecution witnesses would not affect the prosecution case. In the case of Sone Lal v. State of U.P. , the Supreme Court has held that the plea of the defence that the injuries on the person of the accused were unexplained and, therefore, the evidence of the p : 1981CriLJ1027 rosecution witnesses should not be relied upon was negatived by the Court by holding that once it is proved that the accused were aggressors, even if the accused received injuries at the scene of offence, yet they would not have any right to private defence.
43 rorn the aforesaid discussion it can safely be held that:
(1) On the day of the down from the rickshaw. He went near the place where incident accused Nos. 5, 6 and 7 went in rickshaw at the scene of offence at about 2-30 to 2-45 p.m. Accused No. 7 got the deceased Babakhan was sitting.
(2) The deceased Babakhan welcomed accused No. 7 Mustufa, asked him to sit along with him but at the same time informed him that accused No. 6 Ayub be asked to go away. Mustufa asked Ayub to go away from that place, Salambhai (accused No. 5) and Ayub went away in rickshaw.
(3) Within few minutes they along with accused Nos. 1 to 6 came back in Ambassador Car i.e. accused Nos. 1 to 6 came at the place where Babakhan was sitting.
(4) Accused No. 1 was having unlicensed country-made revolver, Salambhai and Ayub were having spears, accused Nos. 2 and 4 were having sticks and accused No. 3 was having bomb like article.
(5) After getting down from the Car accused No. 1 started firing towards the deceased. The deceased moved from the place where he was sitting. Even the Doctor who had carried out post-mortem examination states that injuries on the hand are suggestive of defence.
(6) Accused Nos. 5 and 6 inflicted spear blows on the deceased. Injuries Nos. 1, 6, 7, 9, 13, 14, 19, 20, 21 and 22 could be caused by spears. Injuries Nos. 2, 3 and 4 found on the person of the deceased could have been caused by firearm. Injury No. 5 could be caused by hard and blunt object like lathi. As per the medical evidence external injury No. 1 and its resultant internal injury were sufficient to cause death in the ordinary course of nature. Injury No. 2 and its resultant internal injury were likely to cause death.
(7) Two spears were found from the house of accused No. 1 as per the Panchnama Ex. 52. One spear was blood-stained having human blood group '0'. The blood-group of the deceased is '0' group.
(8) The accused were absconding after the incident.
(9) Two bomb like articles were found. The prosecution has not brought on record the report of the expert that the said articles were explosive substances. In any case, it is not proved that the said substance were those of accused No. 3. Therefore, the accused cannot be convicted for the offences punishable under Sections 4 and 5 of the Explosive Substances Act.
44. In this view of the matter, the learned Judge has rightly arrived at the conclusion that accused Nos. 1 to 6 formed an unlawful assembly and in prosecution of the common object of that assembly accused Nos. 1 to 6 went Sagar Cycle Repairing Works in one Ambassador Car where deceased Babakhan and accused No. 7 were sitting. At that time Mahammad Yamin. Abdulrazak and Mahammad Ismail were present; the accused were armed with deadly weapons as stated by the witnesses and accused Nos. 1, 5 and 6 assaulted the deceased Babakhan and caused injuries to witnesses Mahammad Yamin, Abdulrazak and Mahammad Ismail; the common object of the unlawful assembly was to commit murder of Babakhan; accused No. 5 had caused simple hurt to Mahammad Yamin, Abdulrazak and Mahammad Ismail with spear in prosecution of the common object of such assembly. He has also held that accused Nos. 2 and 4 voluntarily caused hurt to Babakhan by giving stick blows and kick blows in prosecution of common object of such unlawful assembly. He has also rightly arrived at the conclusion that merely because injuries on the person of accused Nos. 1 and 6 are not explained by the witnesses, their evidence cannot be discarded and that the accused have failed to prove their right of self-defence and that accused Nos. 1 and 6 did not sustain injuries in the incident wherein Babakhan was injured. Inspite of the aforesaid findings the learned Judge has convicted the accused Nos. 1, 5 and 6 for the offence punishable under Section 302 and has committed a mistake in not mentioning that they are convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code.
45. Therefore, at this stage we will first consider the question as to what is the effect of error in framing the charge against accused Nos. 1, 5 and 6. -As stated earlier, the learned Judge while framing the charge has committed an error in not mentioning that all the accused were charged for the offence punishable under Section 149. In the first part of the charge he has specifically stated that 'on 13th June, 1966 at 2-45 you accused No. 1 with pistol, accused Nos. 5 and 6 with spears, accused Nos. 2 and 4 with sticks and No. 3. with bomb went at the Cycle shop of Rahimbhai situated near Shalimar Talkies, Ahmedabad, formed an unlawful assembly with common object of committing murder, rioting and to commit offences under the Explosive Substances Act and all were members of the unlawful assembly'. It is also mentioned that in the laterantive all the accused were having common intention to commit the aforesaid acts. He has further stated that for achieving the common object or for prosecuting the common intention accused No. 1 fired at Babakhan Razakkhan Pathan and accused Nos. 5 and 6 inflicted to Babakhan by spears and accused Nos. 2 and 4 inflicted stick blows and accused No. 7 gave kick blows which resulted in the death of Babakhan. After stating this, the charge provide that accused Nos. 1, 5 and 6 were charged for the offence punishable under Section 302 of the Indian Penal Code and rest of the accused were charged for the offence punishable under Section 302 read with Section 149 or Section 34 of the Indian Penal Code. It is true that the learned Judge ought to have specifically stated that all the accused were charged for the offences punishable under Section 302 read with Section 149 and/or Section 34 of the Indian Penal Code. In the charge he ought not to have stated the word 'rest of the accused were charged for the offence punishable under Section 302 read with Sections 149 or 34 of the Indian Penal Code'. Still, however, it is clear that learned Judge has specifically stated in the charge that all the accused formed unlawlful assembly for committing murder, rioting and for committing offences under the Explosive Substances Act; they were armed with deadly weapons and for fulfilling that common object and/or common intention they had assaulted deceased Babakhan and caused injuries to the witnesses. Hence it is apparent that in the charge, for all the accused the ingre thents of Section 149 of the Indian Penal Code are mentioned, but the learned Judge has omitted to mention that accused Nos. 1, 5 and 6 are charged for the offence punishable under Section 302 read with Section 149. It seems that the learned Judge, Public Prosecutor, accused and their Advocate were all under the impression that all the accused are specifically charged for the offence under Section 302 read with Section 140 or 34 of the Indian Penal Code. The learned Judge has also given a specific finding to the aforesaid effect.
46 However, at the time of hearing of the matter when the mistake was noticed, the learned Advocate for the defence submitted that as the accused Nos. 1, 5 and 6 are convicted for the offence punishable under Section 302, at this appellate stage they cannot be convicted for the offence punishable under Section 302 read with Sec, 149 or 34 of the Indian Penal Code.
In our view, the aforesaid contention is without any substance. Section 464 of the Criminal Procedure Code provide that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision a failure of justice has in fact been occasioned hereby. In this case there is no question of failure of justice or any prejudice being caused to the accused because the charge specifically stated that all accused formed an unlawful assembly for common object and for achieving the said common object the accused assaulted the deceased which resulted in the death of the deceased. In the alternative it also stated that the accused were having common intention to commit the said acts. Therefore, in this case the error committed by the learned Judge or omission in the charge by not specifically stating that accused Nos. 1, 5 and 6 were also liable to be punished for the offences punishable under Section 302 read with Section 149 or 34 has not at all prejudiced the accused. They were all throughout knowing that they were charged for the said offences. The learned Judge has also given specific finding to the aforesaid effect which we have narrated above. That finding is to be found in paragraph 30.
47. With regard to the error in framing of the charge, the Supreme Court in the case of W. Slaney v. State of M.P. : 1956CriLJ291 , has posed a question 'is the charge to be regarded as a ritualistic formula so sacred and fundamental that a total absence of one, or any departure in it from the strict and technical requirements of the Code, is so vital as to cut at the root of the trial and vitiate it from the start, or is it one of many regulations, designed to ensure a fair and proper trial so that 'substantial', as opposed to purely technical, compliance with the spirit and requirements of the Code in this behalf is enough to cure departures from the strict letter of the law?' After posing this question, the Court succintly held as under:
(6) Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well-understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself then provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That broadly speaking, is the basic principle on which the Code is based.
After considering the various decisions the Court further held in paragraphs (13) and (14) as under:
(13) In our opinion, the key to the problem lies in the words underlined ('here in'). Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is to abhorrent to well established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.
Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of accused.
(14) This, in our opinion, has been the trend of the more recent decisions of the Privy Council and indeed of latter-day criminal jurisprudence in England as well as in India. The swing of the pendulum has been away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer justice fairly and impartially as it should be administered, fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered.
Further, the Court held in paragraph (86) as under:
(86) Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; 'and the charge is a rolled up one involving the direct liability and the constructive liability' without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.
(Emphasis added)
The Court finally held that in such type of situations, i.e. in those cases where a charge has been framed and there is an omission or irregularity in it, it is difficult to see how the mode of trial is affected. The Court specifically held that in such cases the conviction need not be set aside unless in fact a failure of justice has resulted. Applying the aforesaid law to the facts of the present case it is clear that all the accused including accused Nos. 1, 5 and 6 were informed that they were charged for forming an unlawful assembly with stated common object and/or common intention. The only error committed by the learned Judge is that in the charge for accused Nos. 1, 5 and 6 there is no specific mention of Section 149 of the Indian Penal Code. In our view, in these sets of circumstances, it cannot be said that the omission has in any way prejudiced the accused.
48. In the case of Mathew v. T.C. State : 1956CriLJ444 , the Court considered the question of irregularity in framing of the charge. It held that if the accused were in a position to know just what was charged against them because once the facts are enumerated, the law that applies can easily be ascertained and therefore the charge neither caused nor could have caused prejudice to the accused. The relevant discussion in paragraphs 5 and 6 is as under:
(5) The first point taken before us is that the charge is not according to law and has prejudiced the appellants in their defence. The complaint on this score is that each accused has not been told separately what offences he is being tried for. They have all been lumped together as follows:
The aforesaid offences having been proved by the evidence adduced by the prosecution, you the accused 1-29 have committed offences punishable under....
and then follow a string of ten sections of the Travancore Penal Code.
(6) We are satisfied that the charge neither caused, nor could have caused, prejudice. The body of the charge set out the fact that the accused 1-29 formed an unlawful assembly and stated the common object; and then the charge specified in detail the part that each accused had played. In the circumstances, each accused was in a position to know just what was charged against him because once the facts are enumerated the law that applies to them can easily be ascertained; and in this particular case it was just a matter of picking out their relevant sections from among the ten mentioned.
There is nothing in this objection; Section 225, Criminal P.C. expressly covers this kind of case.'
49. Further in the case of Kantilal v. State of Maharashtra AIR 1970 359, the Court considered the provisions of Section 535 of the Criminal Procedure Code and held that no finding or sentence pronounced or passed shall be deemed to be invalid merely on the ground that no charge has been framed unless the Court of appeal or revision thinks that the omission to do so has occasioned failure of justice and if in the opinion of any of these Courts a failure of justice has been occasioned by an omission to frame a charge, it shall order a charge to be framed and direct that the trial be recommenced from the point immediately after the framing of the charge.
50. The aforesaid mistake in framing the charge is reflected in the final order. The learned Judge has mentioned that accused Nos. 1, 5 and 6 are enonvicted for the offence punishable under Section 302 of the Indian Penal ode and accused Nos. 2, 3 and 7 are convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. Considering the finding given by the learned Judge all the accused were required to be convicted for the offence punishable under Section 302 read with Section 149 of the Indian penal Code. From the judgment it is apparent that the learned Judge has believed that the accused had formed unlawful assembly and in prosecution of common object of such assembly accused Nos. 1, 5 and 6 had assaulted deceased Babakhan and had committed his murder. Therefore, merely because the learned Judge omitted to mention that accused Nos. 1, 5 and 6 are convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code, it cannot be said that the learned Judge has acquitted accused Nos. 1, 5 and 6 for the offence punishable under Section 302 read with Section 149 of the Indian penal Code. Section 465 of the Criminal Procedure Code takes care of such type of irregularity. It provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.
51. In any set of circumstances, considering the facts as they are, iccused Nos. 1 to 6 were sharing common intention and in pursuance of the common intention they went at the scence of offence with deadly weapons and accused Nos. 1, 5 and 6 inflicted blows as stated by the prosecution witnesses. Therefore, they could be convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. There is specific charge. Further, Section 34 does not create any substantive offence. In the case of J.M. Desai v. State of Bombay , the Supreme Court held that a charge framed against the accused person, referring to Section : [1960]3SCR319 34 is but a convenient form of giving notice to him that the principle of joint liability is sought to be involved. Section 34 does not create an offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders. Conviction of an accused person recorded, relying upon the principle of joint liability, is therefore for the offence committed in furtherance of the common intention and if the reasons for conviction establish that the accused was convicted for an offence committed in furtherance of the common intention of himself and others, a reference in the order recording conviction to Section 34 of the Indian Penal Code may appear to be a surplusage. The order of the High Court recording the conviction of the appellants for the offence under Section 409 of the Indian Penal Code is therefore not illegal. Learned Advocate Mr. Bukhari further relied upon the decision of the Supreme Court in the case of B.N. Srikantiah v. Mysore State 0044/1958 : 1958CriLJ1251 wherein the Court has held as under:
(9) The omission to mention Section 34 of the Indian Penal Code in the charge cannot affect the cause unless prejudice is shown to have resulted in consequence thereof. The charge was that the appellants and others were members of an unlawful assembly, the common object of which was to murder the deceased. Although there is a difference in common object and common intention, they both deal 'with combination of persons who become punishable as sharers in an offence', and a charge under Section 149, Indian Penal Code is not impediment to a conviction by the application of Section 34 if the Evidence discloses the commission of the offence in furtherance of the common intention of all.
However, in our view, as the accused Nos. 1, 5 and 6 are convicted for the offence under Section 302 read with Section 149, it will not be necessary to mention that they are convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
52. Hence in the case, in our view, accused Nos. 1 to 6 require to be convicted for the offence under Section 302 read with Section 149 of the Indian Penal Code. Accused Nos. 1 to 6 also require to be convicted under Section 34 read with Section 149 of the Indian Penal Code as it is proved that accused No. 5 caused injuries by spear to witnesses Mahammad Yamin, Abdulrazak and Mahammad Ismail.
Accused Nos. 1 to 6 are acquitted for the offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908 read with Section 149 of the Indian Penal Code.
Accused No. 7 is acquitted for all the offences for which he is convicted as we arrive at the conclusion that he was not having any common object or he was not a member of the unlawful assembly.
53. Learned Additional Public Prosecutor has filed an application along with certified copy of the F.I.R. lodged by Zarina widow of Mahammad Yamin which was registered as C.R.I. No. 122 of 1986 with Maninagar Police Station to be taken on record as additional evidence as per the provisions of Section 391 of the Criminal Procedure Code and the State may be permitted to prove the same by examining the Investigating Officer P.I. Zala in the facts and circumstances of the case. This application was opposed by making his submissions by learned Advocate Mr. Barot. Taking into consideration the evidence as it stands on record, the aforesaid, evidence is not necessary for deciding this appeal and, therefore, it is rejected.
54. It is clarified that as accused No. 3 has expired pending appeal, appeal would abate. However, as the learned Advocate had contended that accused No. 3 ought not to have been convicted, his case is considered along with the other accused even though no application under the proviso to Section 394 of the Criminal Procedure Code is filed. In the result, the appeal is partly allowed. The judgment and order dated 29th September, 1987 passed by the Additional City Sessions Judge. Ahmedabad, in Sessions Case No. 69 of 1987 is modified as under:
55. Appellants Nos. 1 to 6 original accused Nos. 1 to 6 are convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and each of them is sentenced to suffer R.I. for life and to pay fine of Rs. 1000/-, in default, to suffer R.I. for six months. They are also convicted for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code and each of them is sentenced to suffer R.I. for one year and to pay fine of Rs. 500/-, in default, to suffer R.I. for three months. They are further convicted under Section 323 read with Section 149 of the Indian Penal Code but no separate sentence is imposed for that offence. The substantive sentences of imprisonment are ordered to run concurrently.
56. the order of conviction and sentence passed against appellant No. 3-original accused No. 3 for the offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908 is quashed and set aside.
The order of conviction and sentence passed against appellants Nos. 1, 2, 4, 5, 6 and 7 - original accused Nos. 1, 2, 4, 5, 6 and 7 for the offences punishable under Sections 4 and 5 of the Explosive Substances Act, 1908 read with Section 149 of the Indian Penal Code is quashed and set aside.
The order of conviction and sentence passed against appellant No. 7 - original accused No. 7 Mustufamiya Yakumbmiya Shaikh is quashed and set aside. He is acquitted and is directed to be set at liberty forthwith if he is not required in connection with any other case.