Rajput Anil Ramsinh and anr. Vs. State of Gujarat - Court Judgment

B.S. Kapadia, J.

1. The present appeal is filed by the appellants Rajput Anil Ramsinh and Rajput Jeetendra Ramsinh who are convicted and sentenced by the learned Addl. Sessions Judge, Rajkot, in Original Sessions Case No. 31 of 1985 as under:

The accused Nos. 1 and 2 are convicted for the offence under Section 302 and also under Section 302 read with Section 34 of the I.P.C. for causing death of Nanji Puja. Similarly, the accused Nos. 1 and 2 are also convicted for the offence under Section 304 Part II read with Section 34 of I.P. for causing death of Himanshu Vyas. The accused Nos. 1 and 2 are also convicted for the offences under Section 324 read with Section 34 of the I.P.C. for causing injuries to Dhiru Nanji. The accused Nos. 1 and 2 are also convicted for the similar offences for causing injuries to Bhanuben Dhirubhai, Amarshi Mavji, laduben Amarshi and Kamlesh Sonpal. They are also convicted for the offence under Section 342 of I.P.C. for wrongful confinement of Dhiru Nanji. They are also convicted for the offence under Section 457 read with Section 34 of the I.P.C. for committing criminal trespass at night time by breaking open the door of Amarshi Mavji with intention to commit offence.

For the offences under Section 302 read with Section 34 of I.P.C. they both are sentenced to life imprisonment. Similarly they both are sentenced to undergo R.I. for 5 years for the offence under Section 304 Part II read with Section 34 of I.P.C. They both are sentenced to R.I. for six months and fine of Rs. 500/- in default R.I. for 3 months for the offence under Section 324 read with Section 34 of I.P.C. for injuries caused to Dhiru Nanji. Similarly, for injuries caused to Bhanuben Dhirubhai, they both are sentenced to R.I. for three months and fine of Rs 300 in default R.I. for one month. Similarly, for the injury caused to Amarshi Mavji and his wife Induben they both are sentenced to R.I. for three months and fine of Rs. 300/- in default R.I. for one month. Similarly, they both are sentenced to R.I. for three months and fine of Rs. 300/- in default R.I. for one month for causing injury to Kamlesh Sonpal. Similarly, for the offence under Section 342 of I.P.C. they both are sentenced to R.I. for three months and fine of Rs. 100/- in default R.I. for 15 days and for the offence under Section 457 read with Section 34 of I.P.C. they both are sentenced to R.I. for three months and fine of Rs. 300/- in default R.I. for one month. All the substantive sentences were ordered to run concurrently.

2. It may be stated that along with the accused Nos. 1 and 2 there were other accused Nos. 3, 4 and 5 and they were acquitted by the learned Additional Sessions Judge of all the charges levelled against them.

3. It may be stated that the State had filed appeals being Criminal Appeals No. 653 of 1987 to 656 of 1987 but they are all dismissed by this Court on 23-8-1988. So far as the Criminal Appeal No. 653 of 1987 is concerned, it was an appeal for enhancement of sentence against the original accused No. 1. It was filed under Section 377 of the Cr. P.C. As there was delay in filing the said appeal application for condonation of delay was made. However, this Court did not condone the delay and accordingly the appeal came to be dismissed. So far as the Criminal Appeal No. 654 of 1987 is concerned, it was filed against the original accused Nos. 1 and 2 against the order of acquittal for the offence under Section 302 read with Section 34 of I.P.C. for committing murder of Himanshu Vyas. As there was delay in filing the said appeal it cams to be dismissed. So far as the Criminal Appeal No. 655 of 1987 is concerned, it was filed against the acquittal for the offence under Section 307 read with Section 34 of the I.P.C. for causing injuries to Dhirubhai Nanji against the accused Nos. 1 and 2. As there was delay in filing the appeal it came to be dismissed. So far as the Criminal Appeal No. 656 of 1987 is concerned, it was filed against the accused Nos. 1 and 2 under Section 377 of the Cr. P.C. for enhancement of sentence in respect of offence for which they have been held guilty. As there was also delay in filing the said appeal the delay was not condoned and the appeal came to be dismissed.

4. At the time of admitting the present appeal, i.e., on 23-8-1988 the Division Bench consisting of Justice D.C. Gheewala and Justice I.C. Bhatt passed an order admitting the appeal as also ordering issuance of notice of enhancement to the respondent accused in order to enable them to show cause as to why extreme penalty provided under the law, i.e., death sentence should not be imposed on them.

5. When this appeal reached hearing on 5-4-1991 Mr. K.J. Shethna, learned Advocate for the appellants pointed out that the appellant No. 1 original accused No. 1 had died on 3-12-1990. He has also produced copy of the death certificate of the original accused No. 1. Mr. Shethna also stated that he had written to the relatives of the deceased appellant No. 1, but they have not chosen to make any application for continuing the appeal. Therefore, for the reasons stated in the separate order we have declared the appeal of the appellant No. 1 (original accused No. 1) as abated and therefore, now we are concerned with the appeal of the appellant No. 2 only. When the appellant No. 1 had died and when his appeal has abated enhancement notice issued against the appellant No. 1 would not survive.

6. The facts in brief of the prosecution case can be stated as under:

7. There is one Krishnakunj Society locality in the City of Rajkot. There is a house of one Mr. Pandya on the Western Side of the kutcha Road. The said house has one varanda (osri) and there are two rooms. One of them is occupied by Dhirubhai Nanji and he is living there with his family members. The other room is occupied by Amarshi Mavji and he is also residing there with his family members. The room occupied by Dhirubhai has a door abutting on the East of the osri. The door of the room of Amarshi is abutting in the South in the osri. There is also another door to the room of Amarshi. Other door of the room of Amarshi is abutting in the North. There is also one room on the back side of the said building which is part of the said house and it is occupied by Ramjibhai. At the right angle of the northern door of Amarshi's room there is a window of Ramjibhai and there is one house of one Prabhudashbhai opposite the window of the house of Ramjibhai. In between the window and the house of Ramjibhai there is a road. After living little space there is one building known as 'Jai Bhavani' of the ownership of one Ramsinhbhai, who is the father of the accused Nos. 1 and 2. On the Eastern side of the said house there is an open chowk (fali) and that fali has a closed dehli. In the open chowk there is one bathroom and latrine. On the Easter side of the house of Ramsirhbhai there are two rooms, one of them is occupied by the accused No. 1 and the other is occupied by the accused No. 2.

8. The incident took place in the night of 2-8-1985 at about 11-00 p. m. Dhirubhai Nanjibhai who is working as a helper in the State Road Transport Corporation, with his wife Bhanuben and children was sleeping in his room. On that day his father Nanji Punjabhai, who is residing in Hanuman Madh locality and who is a retired police constable had come to his son Dhirubhai for the purpose of collecting pension as the address of the house of Dhirubhai was given for sending the money order for the pension amount. So every month Nanji was visiting the house of his son for the purpose of collecting the amount of pension. On that day money order was not received and therefore, he stayed there at night time and he was sleeping in the varanda.

9. Dhirubhai got up for easing himself. At about 11-CO p. m. he came on the back side of his house after coming down the steps of osri and while he was returning two blows with the knife were given on his back. He was, therefore, frightened and he saw back and found that the accused Nos. 1 and 2 and two others were present there. The accused No. 1 was giving blows. He inflicted 5 to 6 blows. Thereafter all the four accused lifted him and took him in the dehli of the house of Ramsinhbhai and he was confined in the bathroom by closing it with the stopper from the outside. He had received the blows on the right hand, on the cheek and on various parts of the body. All the injuries were knife injuries.

10. At the time when the injuries were being inflicted on Dbirubhai his wife Bhanuben got up because of the noise and she saw that door of her house was open. She therefore, came out and saw the accused No. 1 giving one blow with knife to her husband. At that time her husband was fattening on the step of the otta. The accused No. 2 was also standing just opposite to the accused No. 1 and two other unknown persons were also present there. She was frightened and therefore, she started raising cries. The accused Nos. 1 and 2 and other two unknown persons lifted her husband and took him in the dehli of Ramsinhbhai's house.

11. The accused No. 1 returned and he inflicted blow on Bhanuben. First blow was inflicted on her chest. The accused No 1 also inflicted other blows which she received by raising both her hands and two blows were received by her on her right hand. She sat down there.

12. At that time Bhanuben's father-in-law (Nanjibhai) got up and inquired as to who was there (Aft). On that count the accused No. 1 started giving knife blows to her father-in-law. Four to five blows were inflicted to her father-in-law. Her father-in-law therefore, fell down. She was also dragged by catching hold of her upper arm by the accused No. 1 and she was taken to his dehli and she was also confined there and the stopper was applied from outside.

13. As Dhirubhai was confined in the bath-room and as there was a lattice affixed in the bath-room he could see that knife blows were inflicted on his wife and after inflicting two to four blows on his wife the accused inflicted blows on his father.

14. According to the prosecution on that day there was light on in the osri (varanda), there was light on in the house of Ramsinhbhai, there was light on in the house of Prabhudasbhai and there was also light on in the house of one Patelbhai.

15. Bhanuben, wife of Dhirubhai jumped the small wall of the height of 2 1/2 to 3 ft. and thereafter she went to her husband's sister whose name is Dhanbai and she narrated the entire incident to her sister-in-law and thereafter she with her sister-in-law went to hospital in a rickshaw.

16. When Dhirubhai was confined in the bath-room wife of Ramsinhbhai came there. Dhirubhai requested her to open the door otherwise he would be killed by them (accused). Therefore, she opened the door of the bathroom and he ran away by jumping the small wall (vandi).

17. After the above incident the accused No. 1 came to the back door of Amarshi. The accused No. 1 was asking Amarshi and Induben (his wife) to open the door, but they did not open the door, as they were frightened. The accused No. 1 gave kicks to the door which was made of tea-board wood and that was broken open. Immediately the accused No. 1, who entered with the open knife gave blow to Amarshi on the right side of his chest and when his wife Induben intervened the accused No. 1 also gave her one knife blow on her abdomen. At the time when the knife blow was given Amarshi had only put on pant. He caught hold of the accused No. 1 from behind but,the accused No. 1 forcefully came out of his grip and ran away.

18. As Amarshi was frightened he, his wife and his children went to the house of Ramjibhai. He asked his daughter Bhagwati to go to the house of Madhubhai for making phone call. Till she came he was waiting near the window of Ramjibhai. Bhagwati was given the Phone No. 25265. Bhagwati went there and contacted on that phone. Himanshu alias Munna received the said phone call. She had stated on telephone that the accused No. 1 had given knife blows to her father and mother. Himanshu thereupon said that they are immediately coming. She went to the house of Ramjibhai and told that Himanshu and Kamal (Kamlesh) were coming. At that time her father and mother were waiting and looking from the window. After some time nephew of Madhubhai, i.e., Kamlesh and one Himanshu alias Munna came there. Munna was ahead and Kamlesh was behind him. When they came the light in the varanda was on. Light of Amarshi's house and light of Prabhudas's house were on. Kamlesh raised shouts of Amarshi's name, but he did not come out Thereupon the accused No. 1 came from the nearby dehli and the accused No. 1 gave one knife blow near the neck of Himanshu alias Munna. Munna therefore felt giddiness and was going towards the house of accused No. 1. Thereafter accused No. 1 went near Kamlesh and there was a scuffle between Kamlesh and the accused No. 1. Immediately the accused No. 2 and two other persons came there from dehli side. The accused No. 1 was trying to give knife blow to Kamlesh. At that time Kamlesh caught hold of the wrist of the accused No. 1. The knife was taken away by the accused No. 2 from the hand of the accused No. 1. Thereafter the accused No. 2 was trying to give knife blow to Kamlesh. At that time Kamlesh caught hold of accused No. 2. Account of the knife in the hands of the accused No. 2, Kamlesh received knife injury in his fore-head. In the meantime, the accused No. 1 had also given him teeth bites on his back-side and on his hands. Unknown persons who had come with one patia given him a blow with it.

19. In the meantime, there was some noise of the coming vehicle and therefore, all the accused ran away. The accused Nos. 1 and 2 went running to their dehli from where they came. Thereafter Kamlesh tried to call Munna alias Himanshu, but he did not give any answer. Kamlesh therefore, took Munna on his shoulder. Kamlesh was making an attempt to bring him upto the car. He could however, walk only upto 30 to 35 steps, but thereafter, Kamlesh was also feeling pain and therefore, he could not lift Munna any further and he therefore, laid Himanshu there. When Kamlesh was going ahead he was elder brother of Munna, Mukesh and one Patel Saheb coming there.

20. It was further the case of the prosecution that at about 11-45 p.m. on 3-8-1985 one A.Y. Patel was on duty as P.S.I. in Pradhymnanagar Police Station and Dhirubhai who was in the bleeding condition went there and told him that the accused No. 1 had injured him with a knife and that he was injuring other persons. He also told him that he should be taken to the hospital by Mr. Patel as he was very much afraid of the accused Nos. 1 and 2. Dhirubhai therefore, was seated in the rickshaw in which he came and Mr. Patel's jeep followed him upto the hospital. It is also the case of the prosecution that Mukesh, elder brother of Himanshu was returning at about 12-00 midnight on 2-8-1985 with his taxi and at that time wife of Sharadbhai and other members of her family were standing there. Wife of Sharadbhai asked Mukesh to wait by making gesture of her hand and she told that there was a phone from the daughter of Amubhai that Amubhai and his wife were beaten and Kamlesh and Himanshu had gone since more than 1/2 to 3/4 hours and that they have not returned. She therefore, requested him to make inquiry. Mukesh therefore, immediately went, to Krishnakunj Society in the car and went near the house of Amubhii. He also saw the Police Jeep and green colour car bearing Registration No. GAI 9180. When he came out of the car P.S.I. Shri Patel asked as to who he was and as to why he had come there? He told him that he had come at the instance of the wife of Sharadbhai Sonpal for making inquiry about Himanshu and Kamlesh. P.S.I. Patel also told him that he was also searching Krishnakunj Society, but he could not locate it and thereupon Mukesh toid him to accompany him.

21. It is the further case of the prosecution that on seeing Mukesh and said Shri Patel, P.S.I., Kamlesh told that the accused No. 1 had given a knife blow to Himanshu and he was injured by the accused Nos. 1 and 2. Mukesh and Shri Patel and also Kamlesh thereafter went to the place where Himanshu was lying. Shri Patel on seeing Himanshu told that he has dead. P.S.I. Shri Patel asked Kamlesh about the residence of the accused Nos. 1 and 2 and he pointed out from the distance the house of the accused Nos. 1 and 2.

22. Kamlesh was asked by Shri Patel to be near the dead body of Himanshu and Sim Patel, P.S.I went to the house of Amarshi and he found one old man lying in the bleeding condition. He had also seen blood on the steps of osri. As that time Amarshi and his wife both came in the blood soiled cloth and he made the inquiry. It is further the case of the prosecution that P.S.I. Shri Patel thereafter went to the house of the accused No?. 1 and 2 and accused Nos. 1 and 2 were present and they both were caught. Clothes of both the accused were blood soiled. They both were sent to the Police Station in the Police Jeep.

23. Thereafter as the old man was in a very serious condition he was laid in the car of Sharadbhai and Kamlesh, Amarshi and Amarshi's wife were seated in the car of Sharadbhii and the person who was in the company of Mukesh was driving the car. It is also the prosecution case that the Police Inspector Shri Vani recorded the complaint of Amarshi and proceeded further with the investigation.

24. Thereafter on completion of investigation charge sheet was filed and after committal of the case to the Sessions Court the accused were charged as per the charge at Ex. 1 and amended charge-sheet at Ex. 10A. As per the amended charge the accused No. 1 was charged for the offence under Section 307 of I.P.C. for causing injuries to Dhirubhai. Accused Nos. 1 and 2 and other accused were charged for the offence under Sections 342, 114 read with Section 34 of the I.P.C. for wrongfully confining Dhirubhai in the bath-room of the house of the father of the accused Nos. 1 and 2. The accused No. 1 was also charged for the offence under Section 307 of I.P.C. for causing injuries to Bhanuben and he was also charged for the offence under Section 342 of I.P.C. for keeping Bhanuban in the house of father of the accused Nos. 1 and 2. The accused No. 1 was also charged for the offence under Section 302 of I.P.C. for intentionally causing such injuries to cause death of Nanji. The accused No. 1 was also charged for the offence under Section 440, 450 and 307 of I.P.C. for causing injuries to Amarshi and his wife Induben by breaking open the door of their house. The accused No. 1 was also charged for the offence under Section 302 of I.P.C. for causing murder of Himanshu. The accused No. 1 was also charged for the offence under Section 352 and 323 of I.P.C. for causing injuries to Kamlesh by biting him. The accused No. 2 was also charged for the offence under Section 304 of I.P.C. for causing injuries to Kamlesh with the knife. All the accused were charged for the offences under Section 302, 307, 324 read with Section 34 and 114 of I.P.C. alleging that on the same date and at the same time and place all the accused had common intention of causing death of Nanji and Himanshu and also for causing death of any person who come to save witness Dhirubhai, Bhanuben, Amarshi, Induben and Kamlesh and in furtherance of the said common intention in the course of the same incident caused death of Nanjibhai and Himanshu and also caused injuries to Dhirubhai, Bhanuben, Amarshibhai, Induben, and Kamleshbhai. All the accused pleaded not guilty to (he said charges.

25. With a view to bring home the charge against the accused and particularly the present appellant the prosecution has examined Dhirubhai, PW 6 (Ex. 37) Bhanuben, PW 7 (Ex. 38), Amarshi, PW 8 (Ex. 39), Induben PW 9 (Ex. 40), Kamlesh PW 10 (Ex. 41), Bhagwati, PW 12 (Ex. 44). All the aforesaid witnesses are examined by the prosecution as eye witnesses and except Bhagwati all of them are injured witnesses.

26. The prosecution has also led medical evidence. So far as Himanshu is concerned. Dr. Pandya, PW 2 is examined at Ex. 17. He had performed the post-mortem of Himanshu. Port-mortem note is at Ex. 18. On the point of post-mortem of Nanji, Dr. S.M. Modha, PW 3 (Ex. 21) has been examined. Dr. Harshad Kakkad, PW 4 (Ex. 25) has been examined on the point of injuries to Kamlesh, Amarshi and Induben. Kamlesh's medical certificate is at Ex. 26, Amarshi's medical certificate is at Ex. 27, Induben's medical certificate is at Ex. 28. Dr. Mansuri, Medical Officer, Government Hospital, PW 5 (Ex. 29) has been examined on the point of injuries to Dhirubhai, Bhanuben, Induben, Kamlesh and Nanjibhai. Their medical certificates are at Exs. 30, 31, 32, 34 and 35 respectively. Dr. Bankimchandra Thanki, PW 24 (Ex. 70) who performed the operation on Nanji in the Government Hospital on 3-8-1985 is also examined.

27. The prosecution has also led evidence of the Executive Magistrate Shri Manilal Jivanlal, PW 22 (Ex. 24) and the dying declaration of Nanji (Ex. 66).

28. Other witnesses like Mukesh, brother of Himanshu (Ex. 45), and Sharadbhai, father of Kamlesh (Ex. 44) were also examined. P.S.I. Shri A.Y. Patel, PW 23 (Ex. 68), Vishaman Somabhai, PW 25 (Ex. 74) and Lakubha, PW 28 (Ex. 81) were examined on the point of investigation.

29. After recording the prosecution evidence the learned Additional Sessions Judge had also recorded further statements of all the accused, including that of the accused No. 2. All the accused, including the accused No. 2 had pleaded denial and submitted that they have not committed any such offence and that they have been wrongly involved and that they do not want to give any deposition on oath nor do they want to examine any defence witness.

30. After considering the arguments advanced by the learned Advocates, the learned Additional Sessions Judge has passed the order of conviction against the accused Nos. 1 and 2 and passed the order of sentence as stated hereinbefore.

31. Mr. K.J. Shethna, learned Advocate for the appellant submits that so far as the offence of murder of Nanji is concerned, no witness connects the accused No. 2 with the said offence; that evidence of Bhanuben on the point that the accused No. 2 was one of the persons who took Dhirubhai and confined him in the bathroom is not reliable on account of contradiction and subsequent conduct; that it cannot be inferred that the accused No. 2 was the person who inflicted blows on the deceased Nanji; that there was no light at the time when the incident took place; that there was no light at the place where Himanshu fell down; that Kamlesh's evidence on the point that he knew accused Nos. 1 and 2 as they were coming to the Court cannot be accepted; that the role of the accused Nos. 1 and 2 was described after they were brought from the dehli by Shri A.Y. Patel, P.S.I and that evidence that bash-shirt of the accused No. 2 having blood-stains on the sleeve as also on the front shoulder portion cannot be accepted as evidence against him.

32. With a view to convince us on the point Mr. Shethna has carefully taken us through the entire evidence on record and he has also made certain comments on the evidence of the witnesses.

33. It may be mentioned that the evidence of all the witnesses was carefully scrutinised by us with a view to find out as to whether the accused No. 2 was present at the relevant time and whether he had participated in the acts committed by the accused and also to find out whether there was any common intention on the part of the accused and if there was any common intention what was the common intention of all the accused and whether the accused No. 2 had acted in furtherance of the common intention of all the accused.

34. So far as the evidence of Dhirubhai is concerned, he has fully supported the prosecution case. This witness has been fully cross-examined. It may be stated that this witness has stated in the examination-in-chief that the accused Nos. 1 and 2 started giving him blows. However, immediately thereafter he has stated that all the knife blows were given to him by the accused No. 1. He has also stated that the accused No. 2 had a knife with him and all of them have lifted him and taken him to the dehli and he was confined in the bathroom. According to him only when the wife of Ramsinh came he requested her to open the door otherwise he would be killed by the accused and thereupon the wife of Ramsinh opened the door and he ran away. So far as the injuries received by him are concerned, the medical evidence of Dr. Meerani completely supports his version, There were as many as six incised wounds and other linear abrasions and contusions. The incised injuries, as per the Doctor's evidence, are possible by the knife (muddamal Article 20.) The medical certificate (Ex. 30) has not been challenged. There is some contradiction in the evidence of Dhirubhai on the point of inflicting injury by the accused No. 2. Similarly there is contradiction in his evidence on the point of inflicting injuries to his wife Bhanuben by the accused No. 1. There is also contradiction in his evidence on the point that he told at Pradhumnanagar Police Station about the causing of injuries to his father and that he was lying there.

35. It may be stated that so far as the evidence of this witness is concerned, evidence on the point of receiving injuries is supported by the medical evidence. In view of certain contradictions about actual involvement of the accused No. 2 in causing injuries to Dhirubhai and his wife, his evidence requires a closer scrutiny.

36. Bhanuben, wife of Dhirubhai has also seen the accused Nos. 1 and 2 at the time when the injuries were being inflicted to Dhirubhai. Therefore, there is support from the evidence of Bhanuben on the point that the accused No. 2 was also present at the time when the injuries were inflicted on Dhirubhai. Bhanuben has been fully cross-examined, but except a small omission on the point of details about the height of the vandi (small wall) of 2 1/2 ft there was no material contradiction in her evidence which would make her evidence doubtful. She is an injured witness and her injuries are proved by the medical evidence of Dr. Meerani. She had three incised wounds, one on right chest, second on the right palm and the third on the left palm on the base of thumb and these injuries are possible by the knife (muddamal Article 20) according to medical evidence. Her version as she has described in her deposition is so natural and convincing. She was bound to be there at the relevant time. On account of the hubbub she came out when she found the door of her house open and she had witnessed the actual incident of causing injuries to Dhirubhai by the accused No. 1 and she found the accused No. 2 standing just opposite to accused No. 1, though she had stated in her evidence that she was not sure as to whether the accused No. 2 had a knife with him, at the time when the accused No. 1 inflicted knife blow on. her. In cross-examination she has also deposed that the accused No. 2 and others two unknown persons were also present when the accused No. 1 inflected injuries on her. Accused No. 2 and other two unknown persons did not speak anything. Accused No. 2 was nearer.

37. The evidence of these witnesses clearly establish the presence of the accused No. 2 at the time of the incident when Dhirubhai was given knife blows and at the time when Bhanuben was given knife blows. The evidence of these witnesses is also on the point of actual participation which the accused No. 2 had made in lifting Dhirubhai after injuries were caused to him, from his house to the dehli of the accused Nos. 1 and 2 and confining Dhirubhai in their bath-room.

38. Before parting with this point it would be necessary to deal with the argument advanced by Mr. Shethna on the point of dying declaration of Nanji. According to Nanji he did not know the assailants. Said dying declaration is at Ex. 66. It was recorded at 3-50 a.m. However, he has stated that he was at the house of his son Dhirajlal. It is true that in this dying declaration he has not mentioned about presence of either Dhirubhai or his wife Bhanuben. The events started after causing injuries to Dhirubhai. He was thereafter lifted by the accused Nos. 1 and 2 and two unknown persons to the dehli of the father of the accused Nos. 1 and 2 and he was confined in the bath-room in the said fall of the father of the accused Nos. 1 and 2. At the time when the injuries were being inflicted deceased Nanji bad got up and he asked as to who were there? Thereupon the accused No. 1 inflicted knife blows on him. So, it is clear that Nanji would not have witnessed other persons' presence and particularly when knife blows were inflicted naturally he could not have concentrated observed as to whether other persons were present or not, but this dying declaration in any way may not go against the positive evidence given by Dhirubhai and Bhanuben.

39. So far as causing of injuries to Nanji is concerned, Bhanuben has clearly stated in her evidence as to how the injuries were inflicted on Nanji when he challenged the accused by asking, who were there? According to her, four to five blows were inflicted on her father-in-law and thereafter her father-in-law fell down. According to her all the injuries were caused by the accused No. 1.

40. Infliction of injuries to Nanjibhai was also witnessed by Dhirubhai from the bath-room wherein he was confined by the accused. There was a lattice In the bath-room. Looking to the situation of the house of the father of the accused Nos. 1 and 2, their bath-room and latrine as also the situation of the house of Dhirubhai and its varanda the possibility of Dhirubhai witnessing infliction of injuries to Bhanuben, his wife as well as Nanji, his father cannot be ruled out as improbable, particularly when there was light on in the osri of the house of Dhirubhai. It may be stated that on perusal of the panchnama, evidence of the surveyor, map, evidence of Dhirubhai and Amarshi, the actual location of the bath-room in. which Dhirubhai was confined as also osri of Dhirubhai's house the evidence of Dhirubhai on this point cannot be discarded on the ground of improbability. There is no contradiction in his evidence on this point except that he has stated before the Police Station before going to the hospital that his father was also beaten and that he was lying there. It is true that he had talked to the P.S.I. Shri Abdulla, who in his evidence has not specifically staled that Dhirubhai had spoken about inflicting of injuries on his father, but he had told that Anil was also beating others and therefore, he requested him to go immediately. It may be stated that no undue importance can be given to this trifling omission of details inasmuch as at that point of time he was highly frightened and was in an agitated mind and he urgently required to go to the hospital with the ascort of Police. Therefore, he was not describing the whole incident in detail. Under these circumstances assuming that it was an omission on this part even so it has no effect on the evidence of Dhirubhai on this point.

41. On the point of injuries to Nanjibhai, apart from external and internal injuries found at the time post-mortem examination, as deposited by Dr. Modha, Dr. Hirani in his evidence at Ex. 29 has also stated about the injuries received by Nanji and his medical certificate is at Ex. 35. He found the following injuries:

(1) Incised wound on right side of chest 3' x 1' cavity deep 1' medial to nipple.

(2) Incised wound 1' x 1/2' cavity deep on right chest.

(3) Incised wound 1' x 1/2' muscle deep on left upper mid arm.

(4) Incised wound 1' x 1/2' cavity deep on left side of chest to auxiliary line.

(5) Incised wound 3' x 1/2' muscle deep on right fore arm mid oblique in vertical direction.

(6) Incised wound 2 1/2' x 1/2' muscle deep on the left occipital region.

(7) Linea-abrasion 1/2' long on right leg.

(8) Incised wound 3/4' x 1/2' on right thigh.

According to him injuries Nos. 1 to 6 are possible by knife (Article No.20). Only question put to him in the cross-examination was that injuries sustained by all injured persons except Nanji were simple injuries. Therefore, on the point of injuries that evidence has not been challenged. X-Ray of Nanji was also taken and there was surgical emphysema with right lung infiltration which may be due to old tuberculosis.

42. In view of this evidence it is clear that cause of death of Nanji was on account of respiratory failure due to the injuries which were inflicted on him. On perusal of the injuries as shown in the post-mortem note it appears that there was in all 7 incised injuries as shown in column No. 17. In the internal injuries it is stated that right 6th costal cartilage cut vertically, there was tear in pleuna corresponding to injury Nos. 2 and 3 on both sides of chest, there was 2' vertical out over upper lobe of right lung 1' deep and left lang found collapsed with small tear on posterior aspect of lower lobe.

43. In para-3 of the deposition of Dr. Modha it is mentioned that all the internal injuries were corresponding to injuries Nos. 2 and 3 and he has stated that said injuries are sufficient in the ordinary course of nature to cause death. In the cross-examination it was pointed out that on cutting the right lung small tubercles seen in both lobes. He stated that there were also fluid in the lungs but he could not say about the nature of injuries as he has no sufficient data to know which injuries were caused during the process of operation and which injuries were caused during the incident.

44. As there was some doubt Dr. Bankimchandra, PW 24 (Ex. 70) was examined. He has stated in his evidence that during the process of operation inter costal drainage tube was inserted in both the sides of the chest because the patient had chest injuries; that the condition is known as surgical emphysema when the air is entrapped between the skin and the dipper layers; that the air comes from the lungs; that air cannot come from outside agency; that surgical emphysema can be shown even if any injury is caused; that if a person is suffering from tuberculosis pneumothorax can occur; that Pneumothorax means air is entrapped between lungs and pleura; that this particular patient had no hydrothorax; that Neumothorax, hydrothorax and or emphysema may occur in a case of T.B. patient and generally surgical emphysema takes place on account of injury. He has also stated that cause of death of Nanji Punja is on account of respiratory failure due to injuries to both the lungs. At the time of admission of the patient X-Ray photo was taken.

45. It is important to note that in para-7 of the cess-examination he has stated that in this particular case no incision was put in the lungs. He has further stated that they never put incision in the lungs for the purpose of insertion of tube in the lungs and that injury mentioned in Ex. 35 corresponds to injury No. 2 mentioned in Column No. 17 of the post-mortem Note Ex. 22.

46. In that view of the evidence of Dr. Bankimchandra it is clear that no incision was put in the lungs. It is, therefore, clear that Nanji had died on account of the injuries received by him and not by any incision alleged to have been made by Dr. Bankimchandra who performed the operation. It is also clear from the evidence of Dr. Modha that said injuries were sufficient to cause death in the ordinary course of nature. In view of the aforesaid clarification made by Dr. Bankimchandra it is clear that Nanji had died on account of the injuries inflicted on him and that they were sufficient in the ordinary course of nature to cause death.

47. The next evidence which is commented on is of Amarshi Mavji, PW 8 (Ex. 39). It may be stated at the outset that this witness also fully supports the case of the prosecution. His evidence throws light on the injuries caused to him and his wife Induben as also injuries caused to Himanshu and Kamlesh. After receiving injuries Amarshi and his wife both went to the house of Ramjibhai and thereafter they were waiting for the arrival of their daughter Bhagwati, who had gone for making telephone call at their instance. According to him they were waiting near the window of Ramjibhai. Even after Bhagwati came and informed that Himanshu and Kamlesh were coming they were waiting for their arrival. In view of the fact that lights in that area were on, as stated in detail in his deposition, it would be quite possible to see from the window and identify the assailants. According to this witness the accused No. 1 broke open the back door of their house and inflicted injury first on him and when his wife intervened he also inflicted knife blow on her abdomen. At that time the accused No. 1 was caught by him by embracing him from behind and keeping him in grip, but after releasing the grip he ran away and after some time the accused No. 1 heard the noise of Kamlesh speaking out his (Amarshi's) name loudly but he did not came out of his room. He saw from the window of Ramjibhai that accused No. 1 gave knife blow on the neck of Munna alias Himanshu. According to this witness thereafter there was a scuffle between the accused No. 1 and Kamlesh as stated in detail while stating the facts. The evidence of this witness has been challenged on the ground that in his complaint (Mark-A) he had omitted to state that he had seen the incident from the window of the house of Ramjibhai and that he had stated in the said complaint that he had fallen down in that place where he was injured. It may be stated that there are some trifling omissions and minor contradictions in his evidence, but on the point of probability it is to be seen whether there is any sub-stratum of truth in what Amarshi had stated in his deposition. There was light in his varanda, there was light in Amarshi's house and there was light in the house of Prabhudasbhai and there was also sufficient light outside in which he could see Kamlesh and Himanshu coming, accused No. 1 attacking on Himanshu and thereafter the accused Nos, 1 and 2 entering into scuffle with Kamlesh.

48. When that is so, we have to take into consideration the time, at which the complaint was given. It was at about 2-20 a.m. In fact, complaint (Mark-A) can never be said to be F.I.R. It is to be noted that FI.R. has its importance under the Criminal Procedure Code for setting law in motion. Under the provisions of Section 154 of the Criminal Procedure Code when any information with regard to commission of a cognizable offence is given to the officer-in-charge of the Police Station it is to be reduced into writing. Complaint (Mark-A) is last in point of time. As deposed by Dhirubhai in his evidence when the stopper of the bath-room in which he was confined after he was beaten by the accused No. 1, was opened by the mother of the accused Nos. 1 and 2 he fled away and went to the Pradhyumnanagar Police Station and informed the P.S.I. Shri Patel. It is true that it was earliest in point of time, but that has not been recorded by the Police. Dhirubhai had requested the P.S.I to reach the place of offence immediately because the accused No. 1 was also inflicting injuries on others and that he was highly frightened by the accused Nos. 1 and 2 and therefore, he requested the P.S.I to accompany him upto the hospital. Mr. Patel, P.S.I. has also admitted in his cross-examination that it was the information given with regard to cognizable offence, but the fact remains that said information has not been recorded as required under Section 154 of the Cr. P.C. and instead of recording the said information Mr. Patel, P.S.I proceeded to the place of offences.

49. Thus, apart from any other evidence produced by the Police with regard to receiving information regarding commission of the offence and particularly with regard to the injuries to other persons and death of Himanshu the Police has already gone there and caught both the accused Nos. 1 and 2 and they were sent to the Police Station in jeep. It means investigation had already started by the Police before Mark 'A' complaint of Amarshi was recorded by the Police.

50. In that view of the matter complaint (Mark-A) is nothing but the statement recorded under Section 161 of the Cr. P.C. and therefore, it is hit by Section 162 of the Cr. P.C. and therefore, it can be used only to find out the contradictions. It may also be mentioned that there are certain trifling and minor contradictions in the evidence of Amarshi as stated above. Looking to the facts it is clear that at the time when he gave the complaint he was very much frightened and agitated and therefore, he could not have given all the details in the complaint. However, that would not make his version unreliable.

51. It is important to note that version of Amarshi is also supported by his wife Induben. She has completely supported the prosecution case. However, what is commented on is the dying declaration made by her in the presence of the Executive Magistrate. In the said statement she has not stated anything with regard to inflicting of injures by the accused No. 1 to Himanshu and to Kamlesh. It may be mentioned that when the dying declaration of Induben was recorded she was in a serious condition. If at all she had died it would have been a substantive piece of evidence. But as she is alive it ceases to be dying declaration. However, that is a statement recorded by the Executive Magistrate and therefore, Mr. Shethna states that it would not be hit by the provisions of Section 162 of the Cr. P.C. Apart from corroboration it can also be used for the purpose of proving contradictions even if it is hit by Section 162 of the Cr. P.C. Therefore, it requires to be considered. It may be stated that the Investigating Officer Mr. Vani had recorded the statements of witnesses including that of Induben after her dying declaration was recorded. The dying declaration would be relevant for knowing the cause of death or circumstances under which death had taken place in the case in which death of that person comes in question. In the present case there is no question of death of Induben and that is not a question to be considered in this case. Therefore, it ceased to be a dying declaration.

52. The next question would be whether the alleged dying declaration of Induben can be used for the purpose of proving the death of some other person namely, Himanshu. Certainly answer would be in the negative. It is settled position that dying declaration of one person has no relevance in deciding the question about the death of another person. In that view of the matter when Induben had not spoken about (he death of or injuries inflicted on Himanshu and others, it cannot be considered as material contradiction because it was beyond the scope of dying declaration.

53. It may be stated that no other contradiction from her evidence has been brought out. She has denied the suggestion that she had not seen Himanshu and Kamlesh coming and that she had also not seen the accused No. 1 causing injury to Himanshu. She had also denied the suggestion that they have not seen that window of the house of Ramjibhai can be closed permanently and therefore, they have not seen the incident from the place of Ramjibhai. From the aforesaid evidence it cannot be said that Amarshi and Induben have not seen the incident from the window of Ramjibhai. They have given complete accounts as to how they have been beaten by the accused, how they have witnessed the incident of causing injuries to Himanshu on his neck and how the scuffle between the accused No. 1 and Kamlesh had taken place and how thereafter scuffle between the accused No. 2 and Kamlesh had taken place. Thus, the evidence of these witnesses also inspires confidence and their evidence is guilt reliable.

54. The next witness to be considered is Bhagwati, PW 12 (Ex. 44). She is the daughter of Amarshi and Induben. She has supported the prosecution case. Her evidence is useful to have connection as to under what circumstances Kamlesh and Himanshu came to the place of offence. It was on account of her telephone call that they came to the place of offence. However, her evidence on the point that she had sat down while her mother and father were waiting for Kamlesh and Himanshu to come near the window of Ramjibhai, cannot be relied. She has also stated in her cross-examination that her parents did not tell her as to what they had seen from the window.

55. In that view of the matter evidence of Bhagwati on the point certainly corroborates the versions of Amarshi and Induben that she was sent for making telephone call and that on account of her telephone call Kamlesh and Himanshu came to the place of offence. It may be stated that in her evidence Bhagwati has never claimed to be an eye witness so far as the injuries caused to Himanshu and Kamlesh are concerned.

56 Apart from the aforesaid evidence on the point of injuries to Amarshi and Induben there is also corroboration of their version from the Medical evidence. So far as Amarshi is concerned, it is that of Dr. Hirani, who had given Medical Certificate (Ex. 33). So far as Induben is concerned, relevant evidence is that of Dr. Mansuri who had given the certificate regarding her injury at Ex. 32. On the point of corroboration regarding their version relating to the injuries caused to Himanshu there is evidence of Dr. Pandya, PW 2 (Ex. 17) Injuries caused to Himanshu are mentioned in Post-mortem note (Ex.118). So far as the injuries to Kamlesh are concerned, there is evidence of Dr. Mansuri. PW 5 corroborating their version and medical certificate regarding injuries to Kamlesh is at Ex. 34.

57. The above mentioned injuries to the witnesses and particularly to Amarshi and Induben clearly indicate that they are injured witnesses and they were present at the relevant time when the incident took place. Therefore, their version cannot be discarded in absence of positive material to discard the same. In the present case their evidence is corroborated as stated earlier and as would be discussed hereinafter.

58. The next witness examined on behalf of the prosecution is Kamlesh, who at the time of incident was studying in Special LL.B. and whose father is a practicing lawyer. His uncle Madhusudan is also a lawyer. According to him he was attending the Court since two years from the date of incident. He had given detailed description about the incident as to how it had taken place. He had fully supported the prosecution case. The evidence of this witness has been challenged on the ground that he could not have identified the accused. Simple answer to this would be that Kamlesh was knowing the accused Nos. 1 and 2 as they were often coming to the Court and that he was also meeting them when he was visiting the house of Amarshi.

59. Mr. K.J. Shethna, learned Advocate for the appellant has made a submission on the point of identification of the accused Nos. 1 and 2 so far as Kamlesh is concerned. But in view of the above answer given by the witness Kamlesh we do not find any substance in the submission made by Shethna on this point.

60. It may be mentioned that serious submission was also made by Mr. Shethna with regard to giving name of accused Nos. 3, 4 and 5 by Kamlesh before the P.S.I, Shri A.Y. Patel when he met him at the place of incident. It is important to note that so far as the accused Nos. 3, 4 and 5 are concerned they are acquitted by the trial Court and therefore, assuming that there was any such conflict between the evidence of eye witnesses and P.S.I. A.Y. Patel. The evidence of P.S.I. Patel on the point is to be discarded and it is rightly discarded by the trial Court. On the contrary, it is the consistent version of this witness that he had not given the names of the accused Nos. 3, 4 and 5. However, in the Police statement their names came and ultimately it was suggested to the Police Inspector Shri Vani that father of the accused Nos. 3 and 4 was subordinate to him and as he was rot in good terms with him and hence the accused Nos. 3 and 4 were wrongly involved in the case. The accused No. 5 is a rickshaw driver. Under the circumstances it creates grave doubt about involvement of the accused Nos. 3, 4 and 5. It is the settled principle of law that the proverb Falsus in 1110, falsus in omnibus will not be applicable in Criminal cases. In this case even assuming that there was any such contradiction of giving the names of accused Nos. 3, 4 and 5 even so the evidence of Kamlesh on the point of story about accused No. 1 causing injury to Himanshu and accused Nos. 1 and 2 causing injuries to him cannot be discarded on that ground.

61. It may be mentioned that we are appreciating the evidence of witness Kamlesh only qua the presence and participation of the accused No. 2 in the commission of offence. On the point of identification of the accused No. 2 there cannot be any doubt that Kamlesh had identified him. Not only this, but immediately thereafter when the Police came and the accused Nos. 1 and 2 were arrested, Amarshi and his wife cams out of the house and they were in the frightened condition and according to their version as stated earlier, the accused No. 1 had indicted knife blow on Himanshu and the accused No. 1 also tried to give a knife blow to Kamlesh, but he caught hold of his wrist and therefore, accused No. 2 who was there had taken the knife from the hand of the accused No. 1 and he had raised the knife to give a blow to Kamlesh, who received a knife injury on his forehead and therefore, he caught hold of accused No. 2.

62. It may be stated that some discrepancy is tried to be created on the point as to whether Kamlesh spoke about the injury caused to him by the accused Nos. 1 and 2 immediately when P.S.I. Shri Patel came to the place of incident. Kamlesh has very clearly in his evidence stated that when he was going ahead he saw P.S.I. Shri Patel and Mukesh, elder brother of Himanshu coming. He therefore, talked that the accused No. 1 had given a knife blow to Himanshu and he had also spoken about his injuries caused by the accused Nos. 1 and 2 and thereafter they came to the place where Himanshu was lying.

63. Shri Patel, P.S.I, in his cross-examination has stated that for the first time when Kamlesh met him he did not talk to him about assault made on him, but he talked about the assault made on Himanshu. According to Shri Patel when he sent the accused Nos. 1 and 2 to the Police Station Kamlesh came near him and talked about the assault on him. It is necessary to note that on this point there is evidence of Mukesh, brother of Himanshu, who was the first person came in the company of the P.S.I, to the place of incident. Mukesh has also supported the version of Kamlesh on the point. Even if we consider from the practical point of view also it is possible that man may first say about the injuries caused to the person who is seriously injured, but at the same time when he himself was injured he would not have forgotten to tell about his injuries. The injury on his forehead was visible. There was no question of waiting till the accused Nos. 1 and 2 were sent to Police Station in the jeep. Even P.S.I. Patel would have made inquiry to Kamlesh about his injury on forehead. Therefore, on this point also version of Kamlesh is true and reliable that he had immediately stated to the P.S.I, about the injuries caused to him. When Mukesh has also supported Kamlesh on this point there is no reason to disbelieve him on this point.

The aforesaid evidence of the witnesses clearly give us a picture as to how the incident had taken place in three stages: (i) injuries were caused to Dhirubhai, Bhanuben and Nanji, (ii) injuries were caused to Amarshi and Induben, and (iii) injuries were caused to Himanshu and Kamlesh.

64. During the course of investigation the Police had also collected corroborating material. Before that aspect is considered it may be stated that the Police had also examined various witnesses on the point as to which information reached the Police Station first and as to which information should be considered as F.I.R. For that purpose first witness in point of time would be P.S.I. Shri A.Y. Patel, PW 3, who came to know about the incident and whose evidence is recorded at Ex. 68. That was earliest in point of time. Thereafter Mr. Vishaman, Police Constable who made the entry in the Hospital Register at 0-30 hours on 3-8-1985 has been examined. He had made the entry (Ex. 87) with regard to Dhirubhai and Bhanuben. While the second entry was made at 1-20 a.m. on 3-8-1985 in respect of injuries caused to Kamlesb, Nanji, Himanshu, Amarshi and Induben. He had also made entry (Ex. 89) with regard to death of Nanji at about 4-15 p.m. on 7-8-1985.

65. The next witness examined by the prosecution is Lakhubha Gagubha (Ex. 81). It may be stated that Vikramsich Lalubha (Ex. 76) had made the entry in the Station Diary which speaks about entry (Ex. 79) which was recorded at 0-42 hours regarding murder of one person and injuries to two to three others. It also mentioned that two accused were arrested and others escaped. There are also entries (Ex. 82 and 83).

66. It is submitted by Mr. Shethna that so far as the entry (Ex. 83) and entry (Ex. 84) are concerned, they are not reliable because they are on separate papers. In view of the said submission original station diary was looked into and it was found that the said diary was having printed page numbers and after Page-443 page 447 is shown, but in between four pages are torn out. That is quite obviou, on perusal of the said station diary. When that is so, no importance whatsoever can be given to the station diary. Otherwise also, as stated above, said entries were made after P.S.I. Shri Patel was informed by Dhirubhai much earlier, i.e. at about 11-45 p. m. on 2-8-1985.

67. Thus, entry (Ex. 79) also cannot be treated as F.I.R, in view of what is stated above.

68. The Investigation Officer Mr. Vani was examined at Ex. 81 and contradictions which are brought out have been proved through him. However, one thing which is to be noted with regard to this witness is that similar to P.S.I. Shri A.Y. Patel this P.S.I. Mr. Vani has also not immediately recorded the information received by him, but instead he went for spot inquiry to the place of offence. This conduct on the part of the Investigating Officer cannot be said to be proper and consistent with the provisions of the Cr. P.C. It may be stated that it is not always necessary to have F.I.R. before the investigation st Articles When there is an F.I.R. as required under Section 154 of the Cr. P.C. that will serve the purpose for setting the law in motion and it can be used for corroborating the complainant's evidence by the prosecution. However, in the present case as we have seen there are certain procedural lapses on the part of the Investigating Officers, who do not record the F.I.R. as per the provisions of Section 154 of Cr. P.C. In this casa investigation had started before the recording of the F.I.R. and therefore, subsequent recording of the F.I.R. is of no use and that will be hit by the provisions of Section 162 of the Cr. P.C. We, therefore, treat that there was no F.I.R. recorded in the present case under Section 154 of the Cr. P.C.

69. The prosecution has also led certain circumstantial evidence. First such evidence to be considered is the panchnama of the scene of offence. Panch Harish Ganesh (Ex. 52) has been examined for the purpose of proving the panchnama of the scene of offence. He has inter alia stated in his deposition that on the previous day there was rain and therefore, open land on the eastern side of the house of Prabhudas was wet and had small green grass thereon. It is also stated that there was also fresh blood spots within the circumferance of 3 ft. and some blood-stained earth was also attached. He has also described about the place of offence as also existence of electric poles. In the panchnama it is clearly mentioned about the blood-stains in the osri as on the steps of the osri. There is also mention about blood-stains in the bath-room and fali of the dehli of building 'Jai Bhavani'. There is also a panchnama with regard to the injuries to Kamlesh.

70. Above pieces of evidence also corroborate the version of Dhirubhai on the point that he was confined in the bath-room and that he was bleeding and on account of that there were blood-stains in the bathroom. It is also the version of Bhanuben that she had also knife injury and that she was bleeding and on account of that there were blood-stains in the building 'Jai Bhavani'. It is the prosecution case that Dhirubhai while returning after easing himself when lie was climbing the steps of the otta, was stabbed from behind and therefore, there were blood-stains on the steps also. According to the prosecution case Nanji was sleeping in the varanda and he was injured in the varanda and therefore, there was blood in the varanda.

71. Thus, the panchnama of the scane of offence significantly corroborates the version of the prosecution witnesses.

72. Similarly, Panch Mansukhbhai who had also examined Kamlesh found that there were two bites on his back-side and there were three bites on the right hand of Kamlesh. This clearly corroborates the version of Kamlesh that when he had caught hold of the wrist of the accused No. 1, when the knife from the hands of the accused No. 1 was taken away by the accused No. 2 and when Kamlesh was busy with catching hold of the accused No. 2 for saving himself from other injuries to be caused by the accused No. 2, the accused No. 1 had given bites. This evidence of Mansukhbhai clearly proves the said two bites and that also corroborates the version of Kamlesh.

73. During the course of investigation when the accused Nos. 1 and 2 were arrested a panchnama was made. At that time as the clothes of the accused Nos. 1 and 2 were having blood-stains they were asked to change the same and other clothes were called for from their house and accordingly they have changed their clothes. So far as the accused No. 1 was concerned, he had put on white dirty pant and white and black design bush-shirt and white colour banian and there were blood spots and spots of wet earth on his clothes. They were attached as Articles No. 16, 17 and 18. The accused No. 1 had one abrasion on the right hand. So far as the accused No. 2 was concerned, he had put on milk-colour pant and light cross design bush-shirt and there were blood-stains on the right hand sleeve of the said bush-shirt as well as on the front portion of the right side. That was attached as Article No. 19.

74. In the further statement when the incriminating circumstances of their blood-stained clothes was put to them the accused Nos. 1 and 2 have stated that they do not know. The aforesaid clothes of the accused along with the clothes of the injured persons which were attached were sent to the Chemical Analyser, Forensic Science Laboratory and in the report at page 326 J of the Paper Book it is mentioned that there was human blood of B-Group on the shirt of Himanshu. Similarly, on the bush-shirt of Kamlesh there were marks of human blood of B-Group. On the pant of Kamlesh there were marks of human blood of B-Group. The jersey put on by Dhirubhai had also marks of human blood of A-Group. Similarly, on the lenga put on by deceased Nanji there were marks of human blood of A-Group. On the shirt of said Nanji also there were marks of human blood of A-Group. On the blouse of Bhanu there were blood-stains of A-Group. On the saree of Bhanu there were blood-stains of B-Group. On the chania of Induben there were marks of human blood of B-Group. On the pant of the accused No. 1-Anil there were marks of human blood of A-Group. There were also some stains of human blood of B-Group on his pant. On the bush-shirt of accused No. 1 there were stains of human blood of B-Group. On the under-wear also there were stains of human blood of A and B Groups. So far as the bush-shirt of accused No. 2 was concerned, there were stains of human blood of A-Group.

75. From the above evidence it is clear that Nanji had A-Group of blood and Dhirubhai had A-Group of blood. The accused No. 2 had no injury whatsoever. Therefore, it would be for the accused No. 2 to explain as to how human blood of A-Group was found on his bush-shirt on the right sleeve as well as on the right front side portion. On this point no such question was put to the accused No. 2 in the further statement. Normally speaking all the incriminating circumstances should be put to the accused for explaining the same. In this case when blood spots were pointed out on the clothes of accused No. 2 he stated that he does not know. When that is so what further explanation he could have given with regard to the group of blood when he had no idea about the blood on his bush-shirt. Under the circumstances this incriminating circumstance would not in any way affect or prejudice the accused when no such question was put to him because he had given answer to the earlier question about his blood-stained bush-shirt when the Police has taken the same after making panchnama. The above mentioned circumstance clearly proves the presence of the accused No. 2 at the time of commission of the offence and/or his participation thereof.

76. It is important to note that the accused No. 2 had also bodily lifted Dhirubhai from the osri of his house to the bath-room in the fali of 'Jai Bhavani' building. At that time the clothes of accused No. 2 must have come in contact with the blood of Dhirubhai. It is also possible that some drops of blood of Nanji must have fallen on the bush-shirt of the accused No. 2 when the accused No. 2 was inflicting injuries on Nanji as the accused No. 2 was also present at that time.

77. It may be stated that it is on record that blood group of Kamlesh is B-Group as mentioned in the report of the Chemical Analyser on page 326J of the paper book. Therefore, the blood found on the bush-shirt of the accused No. 2 cannot be that of Kamlesh. No explanation is given on this point. It is true that stains of human blood of A-Group found on the bush-shirt of the accused No. 2 is not conclusive evidence, but it certainly supports the other evidence on record. It is equally true that mere blood stains on the cloth in absence of other evidence would not connect the accused with the commission of offence, but in the present case as stated earlier, the accused No. 2 was not only present at the scene of offence but he had also participated and therefore, this piece of evidence can be considered with other evidence on record. In view of the aforesaid circumstances the judgments reported in : 1956CriLJ147 (Prabhu Babaji Navie v. State of Bombay) and : AIR1977SC381 (Namdeo Daulata v. State of Maharashtra) cited by Mr. K.J. Shethna, learned Advocate for the appellant would not be applicable in the present case.

78. In view of the aforesaid analysis of the evidence it is clearly established beyond reasonable doubt that the accused Nos. 1 and 2 along with two others were present at the relevant time near the osri of Dhirubhai when the accused No. 1 first attacked from behind Dhirubhai when he was returning after easing himself. It is also established that the accused No. 2 was also present when the accused No. 1 inflicted injury on Bhanuben. It is also established that after inflicting injuries on Dhirubhai he was lifted by all the four accused, including the accused No. 2 and was taken to the bath-room of the building 'Jai Bhavani' belonging to the father of the accused Nos. 1 and 2. It is also established that the accused No. 1 thereafter broke open the door of the house of Amarshi and Induben, who are next door neighbours sharing common osri of Dhirubhai. It is also established that after breaking open the door of the house of Amarshi the accused No. 1 also inflicted injuries on Amarshi and Induben with the knife. It is also established that on account of these injuries they were very much frightened and therefore, they went to the house of Ramjibhai and they sent their daughter Bhagwati for making Telephone call. It is also established that on account of the said Telephone call Kamlesh and Himanshu came in a car, but on account of rain on the previous day the land was wet and slippery and therefore, they parked their car at a distance. It is also established that when they were coming by loudly speaking the name of Amarshi the accused No. 1 came from his house abruptly and attacked Himanshu by giving knife blow on the neck of Himanshu. It is also established that thereafter the accused No. 1 also tried to give knife below to Kamlesh, but as Kamlesh caught hold of the wrist of the accused No. 1 the accused No. 2 took away the knife from the hand of the accused No. 1 and thereafter the accused No. 2 gave a blow which hit Kamlesh on his forehead and 1 therefore, Kamlesh caught hold of the hand of the accused No. 2 and in the meantime the accused No. 1 gave four to five bites to Kamlesh, two of them were on the back side.

79. The aforesaid findings lead us to a conclusion that the accused No. 2 was not only present at the relevant time but he had actually participated in the commission of offence.

80. The question would be, what was the common intention of all the accused persons? What was the intention of all the accused in coming to the osri of Dhirubhai? Why Dhirubhai was lifted by all of them and confined him in the bath-room? Why back-door of the house of Amarshi was broken by the accused No. 1? Why other persons were injured?

81. We have to consider these in the light of the alleged motive. The motive becomes immaterial when there is direct evidence on the point. The motive suggested by the prosecution is such a motive which would not lead a man to commit such henious offences like killing of two persons and causing injuries to several persons. There must be some hidden motive which has not come on the surface. The motive suggested was that on account of a small dispute regarding throwing away the chappal of the son of Dhirubhai by the younger brother of the accused Nos. 1 and 2 the accused No. 2 gave a slap to the younger brother of the accused Nos. 1 and 2. Even if we take it as a motive behind the incident the accused No. 2 had no reason to attack Dhirubhai and others Therefore, that motive does not throw any light. But the aforesaid evidence clearly establishes that the real person against whom there was grievance was Dhirubhai and we have to come to an irresistible inference on the facts and circumstances of the case that common intention of all the accused was to kill Dhirubhai and to kill or injure others who come to save him (Dhirubhai). Fortunately, when the stopper of the bath-room was opened by the mother of the accused Nos. 1 and 2, Dhirubhai fled away and he escaped death. Similarly, Bhanuben, wife of Dhirubhai jumped over the small Vandi and went to her sister-in-law's place. When both of them fled away and when the accused Nos. 1 and 2 could not find any one of them at the places where they were kept, the accused Nos. 1 and 2 were enraged. From these facts again an inference is to be drawn that without having any enmity or reason door of the house of Amarshi was broken only for the purpose of finding out Dhirubhai and Bhanuben. Except that inference no other inference is possible on the facts of the case. Even after breaking open the door of the house of Amarshi the accused No. 1 could not find Dhirubhai and Bhanuben. He caused injuries to Amarshi and Induben but they were not satisfied because the accused Nos. 1 and 2 were in search of only Dhirubhai and therefore, when Kamlesh and Himanshu came to the scene by loudly speaking the name of Amarshi the accused No. 1 came from his dehli with the accused No. 2 and first attacked Himanshu. The accused No. 1 must have thought that Himanshu and Kamlesh have come to help them, because Kamlesh had raised shouts in the name of Amarshi. After causing injury to Himanshu when Himanshu got giddiness there was a turn of Kamlesh and accused No. 1 turned his knife to Kamlesh and accused No. 2 had participated in causing injuries to Kamlesh.

82. Section 34 of I.P.C. lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of Common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. It deals with the doing of separate acts, similar of diverse, by several persons, if all are done in furtherance of common intention, each person is liable for the result of them all as if he had done them himself. One of the reasons why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support and protection to the person actually committing the act. This section embodies the common-sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it individually. The leading feature of Section 34 is the element of participation in action. It is the essence of this section that the person must be physically present at the actually commission of the crime. Common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It is therefore, clear that the essence of liability is the existence of common intention.

83. While dealing with the principle with regard to common intention as embodied in Section 34 I.P.C. the Supreme Court in the case of Brathi alias Sukhdev Singh v. State of Punjab : 1991CriLJ402 has observed that:

The essential constitutent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention If the common intention in question animates the accused persons and if the said common intention leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.

The Supreme Court has further observed in the said case that:

Before Sections 34, 149 or 120-B I.P.C. can be applied, the Court must find with certainty that there were at least two persons sharing the common intention or five persons sharing the common object or two persons entering into an agreement. The principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons; it depends upon proof of facts beyond reasonable doubt regarding actual commission of the offence by such number of persons which makes such a principle applicable. A wrong and erroneous order of acquittal though irreversible in the absence of an appeal by the State would not operate as a bar in recording constructive liability of the co-accused when concerted action with common intention stands proved.

84. During the course of argument Mr. S.T. Mehta, learned Addl. P.P. has pointed out the judgment of the Supreme Court in the case of Ramaswami Ayyangar and Ors. v. Stale of Tamil Nadu : 1976CriLJ1563 wherein the Supreme Court has held that:

Section 34 is to be read along with the preceding Section 33 which makes it clear that the 'act' spoken of in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design Such a person also commits an 'act' as much as his co-participants actually committing the planned crime. In the case of an offence involving physically violence however, it is essential for the application of Section 34 that the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, if itself tantamount to actual participation in the 'criminal act'. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring such a particular result. Such consensus can be developed at the spot and thereby intended by all of them.

85. Similarly, in the case of State of Punjab v. Siirjit Singh 1987 (1) Crimes 252 the Supreme Court of India has observed in para 12 as under.The High Court has failed to see that when an offence is committed in furtherance of the common intention of two or more accused, when every one of them is as much guilty as the other and it is not necessary that every one of them should have participated in the commission of the offence to the same extent and degree as the other person or persons accused of the offence had acted....

86. In the case of Kashmira Singh v. State of Punjab : 1979CriLJ1093 , the Supreme Court found that the murder was a pre-planned one and the accused-appellant and other two accused challenged the deceased. Two of them were armed with guns and the appellant with a gandasi and they returned to the scene of offence. One of them delivered gun shot injury and the appellant also assaulted with the blunt portion of gandasi. Though the appellant had assaulted with the gandasi the Supreme Court in the said case has observed as under:.The circumstances narrated above, clearly disclose that all the three accused were animated by a common intention to kill the deceased. The High Court rightly pointed out that in these tell-tale circumstances, there was no question of the non-applicability of Section 34 of the I.P.C....

87. In view of the aforesaid position of law as pronounced by the Supreme Court of India we have to see the factual position in the present case. As found earlier, the accused Nos. 1 and 2 along with two other accused had come at about 11-00 p.m. on 2-8-1985 near the osri of Dhirubhai. The accused No. 1 in the presence of accused No. 2 and others injured Dhirubhai with the knife when Dhirubhai was returning after easing himself. At that time Bhanuben, wife of Dhirubhai woke up and saw actual inflicting of injuries on Dhirubhai by the accused No. 1. Thereafter all the accused including the accused No. 2 physically lifted Dhirubhai from his osri to the bath-room of the house of the father of the accused Nos. 1 and 2. If there would not have been any common intention on the part of the accused persons they would not have gathered together at night time near the osri of Dhirubhai. Therefore, there was some pre-plan. Normally, there would not be any direct evidence on the point of pre-plan, but the events that have taken place and the circumstances which have come to light clearly disclose that it was the intention of the accused No. 1 to do away with Dhirubhai, i.e., to finish him or kill him. It was also their intention to see that there should not be any evidence and therefore, after putting Dhirubhai in the bath-room after causing injuries they returned again to the osri where Bhanuben, wife of Dhirubhai was raising crises and she was injured. On account of that her father-in-law, i.e., the father of Dhirubhai (Nanji) got up and he challenged them and therefore, he was also injured with the knife. At all these time the accused No. 2 was present at the scene of offence. Why he should have again remained present at the relevant time with other accused? The answer is not far off. He was acting in furtherance of the common intention. After causing injuries to Dhirubhai, Bhanuben and Nanjibhai the accused went to their house, but as they could find neither Dhirubhai nor Bhanuben, they must have thought, which is reasonable inference, that they would have been in the house of Amarshi and therefore, the accused No. 1 asked Amarshi to open the door of the house which is adjoining the house of Dhirubhai having common osri. But as Amarshibhai did not open the door of the house the accused No. 1 broke open the back door of the house which clearly indicates the intention of the accused that under any circumstances they wanted to put an end to the life of Dhirubhai. As they did not find Dhirubhai even after injuring Amarshi and Induben they went again to their rooms, but again on hearing the noise of somebody calling Amarshi, the accused Nos. 1 and 2 came out of their rooms again attacked Himanshu and Kamlesh which clearly disclose their intention to injure or kill any person who came to help Dhirubhai. However, Dhirubhai escaped as he went to the Police Station and thereafter to the Hospital. Bhanuben also escaped as she went to Hospital with her Sister-in-law. Thereafter Kamlesh and Himanshu came and Himanshu became the victim. Kamlesh was also injured.

88. It is important to note that at the time when the accused No. 1 attacked Himanshu, the accused No. 2 was also present and he had actually participated in taking away the knife from the hand of the accused No. 1, when Kamlesh caught hold of the wrist of accused No. 1. Thereafter the accused No. 2 also inflicted injury on the forehead of witness Kamlesh and therefore, Kamlesh again caught hold of the hand of accused No. 2. In the meantime, the accused No. 1 gave him several bites, two of them on the back side. These eloquent circumstances lead us to the only inference that their intention was to kill Dhirubhai. If at all their intention was to cause mere injuries to Dhirubhai they would not have lifted him and confined him in the bath-room after causing several knife injuries referred to hereinbefore. So, they had a further design in their mind and that they acted in different manner in furtherance of this common intention.

89. In the light of these facts of the case, it would be necessary to consider the authorities cited by Mr. K.J. Shethna, learned Advocate for the appellant. One of them is the judgment of the Supreme Court in the case of Vencil Pushparaj v. State of Rajasthan : 1991CriLJ452 . In the said case there was no material to show that the appellant had shared The intention of the main accused in murdering the deceased and that he held the deceased in order to facilitate the main accused to stab the deceased. There was no material even to draw an inference that the appellant and the main accused hid acted in concert and/or there was any existence of a pre-arranged plan to commit murder of the deceased. Therefore, the appellant was entitled to the benefit of doubt. Aforesaid authority would not be applicable in the facts of the present case inasmuch as the accused No. 2 was not only present, but had actually participated in the commission of the offence. As stated earlier, there is sufficient to material to arrive at the conclusion on the point of common intention of the accused persons.

90. The second authority cited by Mr. Shethna is in the case of Bhaba Nanda Sarma and Ors. v. State of Assam : 1977CriLJ1930 . In the said case the Supreme Court has observed that 'to attract the application of Section 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all. In other words, the prosecution must prove facts to justify an inferences that all the participants of the act had shared a common intention to commit the criminal act which was finally committed by one or more of the participants'. In the said case it was held that 'three accused assaulted the victim, out of them two used their weapons and the manner in which they gave blows clearly shown their intention to kill the victim. The third accused did not use his lathi for causing injuries to the victim'. Therefore, it was held that the third accused was not guilty for the offence under Section 302 of I.P.C., but as he had joined without having common intention to kill the victim it was presumed that he had the knowledge and therefore, the appeal of the appellant was partly allowed and his conviction was altered, from Section 302 read with Section 34 of I.P.C. to Section 304 Part II read with Section 34 of I.P.C.

On the facts of the said case the Supreme Court held that the appellant-accused was not guilty for the offence under Section 302 read with Section 34 of I.P.C. Hence the said judgment would not be applicable to the facts of the present case.

91. The third judgment cited by Mr. Shethna is in the case of Hare Krishna Singh and Ors. v. State of Bihar : 1988CriLJ925 . On the facts of the said case the Supreme Court found that no overt act whatsoever has been attributed to the appellants and therefore, it was difficult to hold in the facts and circumstances of the case that they had shared the common intention to murder with the accused who had opened fire. In the facts of that case conviction was set aside by the Supreme Court. The principle laid down is that of sharing of common intention. This judgment therefore, would not be applicable to the facts of the present case.

92. The next judgment cited by Mr. Shethna is in the case of Rangaswami v. State of Tamil Nadu : AIR1989SC1137 . In the said case the accused No. 3 was not held liable under Section 34 I.R.C. as there was no evidence to show that he assisted the accused Nos. 1 and 2 in any manner in that act. The accused No. 3 had accompanied the accused Nos. 1 and 2 to avoid displeasure of accused Nos. 1 and 2. In the facts and circumstances of the case the Supreme Court held that he had no common intention and he had not shared the same with the accused Nos. 1 and 2. Accordingly, he was acquitted and his appeal was allowed. Said judgment is also on the facts of that case and therefore, would not be applicable to the present case.

93. The next case cited by Mr. Shethna is Malkhan Singh and Anr. v. State of Uttar Pradesh : 1975CriLJ32 . Said judgment has been delivered on the facts of the case. It is held in the said case that 'the fact that the companion of accused on whose cycle the accused was sitting, continued to pedal the cycle after the accused fired pistol and that he too ran away with the accused would not necissarily go to show that the shot had been fired in furtherance of common intention of the two accused. The companion therefore could not be held vicariously liable'. In para 7 of the said judgment the Supreme Court held as under:.Looking to all the facts of the case, we are of opinion that no vicarious liability can be fastened on Malkhan Singh for the shot fired by Munshi Lal and that the offence under Section 324 read with Section 34 Indian Penal Code has not been brought home to Malkhan Singh.

Facts of the present case is quite different as stated earlier and therefore, this judgment would not be applicable to the same.

94. The next judgment cited by Mr. Shethna is in the case of Dhansukh Chhotalal Joshi and Ors. v. State of Gujarat : (1990)1GLR396 In the said case the Division Bench of this Court has held that 'the essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of tham...What is the requisite ingredient of Section 34 is that each must share the intention of the other'. It is further held in the said case that 'To impose vicarious liability on the accused with the aid of Section 34 I.P.C. is a very serious matter, particularly when a person has died. Persons cannot in such a case be either convicted lightly or be acquitted lightly. The evidence has to be weighed very closely when constructive liability is to be fastened upon the accused. In the entirety of the evidence in the present case regarding common intention to murder the deceased on the part of all or any of the accused falls much short, when one considers the requirements of Section 34 of the I.P.C. in this connection'. After considering the case in the light of the aforesaid proposition the Division Bench came to the conclusion that there is no evidence regarding common intention for committing an offence under Section 302 read with Section 34 I.P.C. or Section 304 Part-11 read with Section 34 I.P.C. on the basis of which one can conclude that the case has been established beyond reasonable doubt by the prosecution. In the said case conviction of the accused No. 4 for the offence under Section 304 Part-11 read with Section 34 I.P.C. was set aside and the order of conviction and sentence for the offence under Section 323 I.P.C. passed by the trial Court was confirmed.

95. Whether all the persons involved in the offence had the common intention of committing crime and if at all there was any such common intention, whether any one of them had exceeded the said common intention and committed graver offence, is to be considered from the facts and circumstances of the case. We have already analysed and appreciated that the evidence in the present case and came to the conclusion that there was a common intention on the part of all the accused to commit murder of Dhirubhai and also to cause death and/or injuries to those who come to save him. Accordingly, there is no question of any one exceeding the common intention. Therefore, the accused No. 2 was not only present at the relevant time but had actually participated in the commission of the offence. Under the circumstances though there is no dispute on the principle laid down in the aforesaid judgment : (1990)1GLR396 it would not be applicable to the facts of the present case.

96. In view of the aforesaid appreciation and analysis of evidence as also various authorities cited by Mr. S.T. Mehta, learned Addl. P.P. and Mr. K.J. Shethna learned Advocate for the appellant, we do not find any merit in any of the submissions made by Mr. Shethna and hence we reject the same. The learned Addl. Sessions Judge has rightly come to the conclusion about the guilt of the accused No. 2 for various offences committed by him and we entirely agree with the finding arrived at by the learned Addl. Sessions Judge on this point.

97. So far as causing injury to deceased Himanshu is concerned, we would like to observe that the learned Addl. Sessions Judge has come to the conclusion that it would be an offence under Section 304 Part-11 I.P.C. and the accused No. 2 is also convicted for the said offence read with Section 34 I.P.C. The question is about the intention. There might be one blow or more blows, but it should be sufficient in the ordinary course to cause death. So far as the injury to Himanshu is concerned. Dr. Pandya who had performed his post-mortem in his deposition has spoken about the injury. According to him cause of death of Himanshu was shock due to massive haemmorhage on account of laceration of left common carotit artery as a result of injury. He further stated that said injury was possible by knife Article No. 20, and that injury was sufficient to cause death in the ordinary course of nature.

98. In the judgment of the Supreme Court in the case of Virsa Singh v. State of Punjab : 1958CriLJ818 the question as to how the intention can be gathered has been considered. Said judgment has been consistently followed by the Supreme Court. The Supreme Court has followed the said judgment in the case of Virsa Singh (supra) in the recent judgment in the case of Jai Prakash v. State (Delhi Administration) : [1991]1SCR202 . In the said case meaning of the word 'intention' and distinction between 'knowledge' and 'intention' have been clearly brought out. It is observed in para-13 of the said judgment that 'intention is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. After quoting certain observations from the book of Kenny in Outlines of Criminal Law (17th Edition at page 31) it is observed by the Supreme Court as under:.It can thus be seen that the 'knowledge' as contrasted with 'intention' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive. On the other hand, 'intention' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end. It means shaping of one's conduct so as to bring about a certain event. Therefore, in the case of 'intention' mental faculties are projected in a set direction. Intention need not necessarily involve premeditation. Whether there is such an intention or not is a question of fact. In Clause Thirdly the words 'intended to be inflicted' are significant....

In the said case the Supreme Court has further observed as under:.However, as pointed out in Virsa Singh's case the weapon used, the degree of force released in wiedling it, the antecedent relations of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was indicated during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused.

However, in the said case it is specifically observed by the Supreme Court regarding death caused by a single blow as under:.In our view it is fallacious to contends that when the death is caused by a single blow Clause Thirdly is not attracted and therefore, it would not amount to murder.

The ingredient of 'intention' in that case is very important and that gives the clues to come to a conclusion whether offence proved is murder or not. For the purpose of considering the Clause Thirdly it is not necessary to examine entire scope of Section 299 or 300 of the Indian Penal Code. It is enough, if we start with the judgment in the case of Virsa Singh (supra).

99. In the present case we do not much dilate on the point as to whether the death caused by the accused No. 1 by a single blow would be a murder or culpable homicide not amounting to murder falling under Section 304 Part II of the I.P.C. particularly because the State's Appeal No. 654 of 1987 has been dismissed. Therefore, it would not be necessary to consider in detail the evidence about the intention in inflicting blow on the vital part of the body (neck) of Himanshu which caused laceration of left carotit artery.

100. Under the circumstances all the conclusions arrived at by the learned Additional Sessions Judge on the point of conviction of both the accused are correct and we hereby confirm the same. The learned Addl. Sessions Judge has imposed sentence as slated in the first paragraph of this judgment.

101. Mr. S.T. Mehta, learned Addl. P.P. submits that the appeal under Section 377 of the Cr. P.C. for enhancement of sentence has been dismissed by this Court as it was time-barred. On the same day when this appeal was placed for admission this Court has issued notices to the accused-appellants to show cause as to why the capital sentence should not be imposed. The question to be considered would be what would be the punishment in the present case.

102. It is clear from the facts of the cases that except the knife injury to the witness Kamlesh all other injuries were caused by the accused No. 1. Therefore, the accused No. 1 was the principal person who carried out the common intention and inflicted injuries to various persons including Nanji and Himanshu. The accused No. 2 no doubt was present at the relevant time. Twice the accused No. 2 returned from his house to the house of Dhirubhai and he had also participated in lifting Dhirubhai and putting him in the bath-room of the father of the accused Nos. 1 and 2. Similarly, accused No. 2 had also come along with the accused No. 1 when Kamlesh and Himanshu came and he also inflicted knife injury on Kamlesh. Therefore, this is not a case of mere presence of accused No. 2.

103. Mr. S.T. Mehta, learned Addl. P.P. has rightly submitted that the accused No. 2 was the reserved force and he was armed with a knife and that when the situation so developed he took the position and inflicted injury on Kamlesh. Still however, the question would be what would be the proper punishment to the accused No. 2.

104. It may be stated that after the appeal was admitted and enhancement notice was served on the accused Nos. 1 and 2, in the year 1990 when the accused No. 1 was released on parole he was murdered. The accused No. 1 is no more and therefore, his appeal stands abated. There is no question of now imposing any enhanced sentence on the accused No. 1 and therefore, notice of enhancement qua the accused No. 1 also stands discharged.

105. So far as the accused No. 2 is concerned, he is convicted and sentenced for the offence under Section 302 read with Section 34 of the I.P.C. for causing murder of Nanji.

106. It is important to note that the Supreme Court has decided two cases on the sentence of hanging. In the case of Bachan Singh v. State of Punjab and Ors. : 1980CriLJ636 the Supreme Court has observed as under:

207. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. 'We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an impetfact and undulating society.' Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood-thirsty Hanging of murderers has never been too good for them Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high road of legislative policy outlined in Section 354(3), viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably forceclosed.

107. In the case of Machhi Singh and Ors. v. State of Punjab : 1983CriLJ1457 the Supreme Court has observed as under:

33 In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death seatence arhes. The following propositions emerge from Bachan Singh's case:

(i) The extreme penalty of death need not be inflicied except in gravest cases of extreme culpability;

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime';

(iii) Life Imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment hiving regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonmeat for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances:

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigiting circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

34. In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

35. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranty the Court would proceed to do so,

108. Taking into consideration the above guidelines and reverting to the facts of the present case, it may be noted that so far as the murder of Nanji is concerned, no doubt, as usual in all homicidal death it was a cruel murder. Three knife blows were given in his chest. Ha was an old pensioner and was also suffering from old T.B. though he died of injuries inflicted on him by the accused No. 1 with the knife. The accused No. 1 is no more. The accused No. 2 is convicted for the offence under Section 307 read with Section 34 of the Indian Penal Code and enhancement notice is issued to him.

109. Under these circumstances can it be said that the death of Nanji is the gravest case of extreme culpability. It is true that before inflicting injuries on Nanji the accused No. 1 had inflicted injuries on Dhirubhai and Bhanuben. But that stands on a little separate footing. When death sentence is to be given what is to be considered is with regard to the death of the deceased and not the other offences committed by the accused for which he is separately punished. The circumstances of the offender are also to be taken into account. The age of the accused No. 2 at the relevant time was 26 years and he was serving and has old aged father. The life imprisonment is a rule and death sentence is an exception. Therefore, it cannot be said that there was anything uncommon about the crime in the present case which renders sentence of imprisonment for life inadequate and therefore, it calls for death sentence.

110. In the present case the learned Additional Sessions Judge had also considered at the time of awarding sentence the guidelines given by the Supreme Court in the aforesaid cases, namely, Bachan Singh (supra) and Machi Singh (supra) and came to the conclusion that this cannot be said to be the rarest of rare case. Considering all the relevant circumstances the learned Additional Sessions Judge has imposed sentence of life imprisonment on the accused No. 2 (present appellant) also as he was convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code for causing death of Nanji Puja. When the learned Additional Sessions Judge has already exercised the judicial discretion after following the guidelines given by the Supreme Court in the aforesaid two cases, it would not be proper to interfere with the order of conviction and sentence passed by the learned Additional Sessions Judge. Hence the notice for enhancement of sentence issued to the accused No. 2 (appellant) also requires to be discharged and is hereby discharged.

In result the Criminal Appeal No. 325 of 1987 fails and stands dismissed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Rajkot, in Sessions Case No. 31 of 1985 against the accused No. 2-appellant is hereby confirmed. Notice of enhancement issued to the accused No. 2-present appellant is hereby discharged. Criminal Misc. Application No. 327 of 19? 8 stands dismissed.