Chhatrasinh Ranchodji Solanki and Another vs State of Gujarat

H.B. Antani, J.—Original accused No. 1 and 7 of Sessions Case No. 51 of 2003 have preferred this appeal u/s 374(2) of the Criminal Procedure Code challenging the judgment and order dated 14.09.07 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Ahmedabad Rural by which the learned Judge convicted the appellants for offences punishable u/s 304 Part II read with Section 149 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 5 years and a fine of Rs. 1000/-, in default, simple imprisonment for 30 days and also u/s 135 of the Bombay Police Act and sentenced them to suffer simple imprisonment for one month and fine of Rs. 100/-, in default, simple imprisonment for 5 days.

The appellants along with other accused persons were tried for offences punishable under Sections 143, 147, 148 and 149 of the IPC, Section 302 read with Section 149 of the IPC and Section 135(1) of the Bombay Police Act. However, at the conclusion of the trial, the learned Additional Sessions Judge exonerated the appellant from offence punishable u/s 302 r.w.s. 149 of IPC, but convicted the appellants u/s 304 Part II of IPC and Section 135(1) of Bombay Police Act, as stated hereinabove.

Short facts of the case giving rise to the present appeal are as under:

The appellants, along with other accused persons named in the FIR hatched a conspiracy to murder Babuji Amarsinh Thakore, and in pursuance of the common intention, they formed an unlawful assembly. The present appellants along with other accused persons, who were armed with sticks, dharia, gupti, knife and revolver attacked the deceased Babubhai in the Panchayat office and thereafter dragged the deceased to the house of appellant No. 1, Chhatrasinh Ranchhodji Solanki, and caused death of the deceased in a brutal manner. It is the case of prosecution that an altercation took place in the office of the Panchayat. Complaint was given by Bhavanji Talaji to the Police Sub-Inspector, Detroj Police Station. On the strength of the complaint given by Bhavanji Talaji, investigation was set in motion. The Investigating Officer visited the place where the incident took place and prepared panchnama with regard to the place of the incident. The deceased was admitted to the hospital in an unconscious condition as as he died after some time, his body was sent for performing autopsy. Inquest panchnama of the dead body was prepared in the presence of panch witness. The clothes which were put on by the deceased were recovered in the presence of panch witness and panchnama in respect thereof was prepared. Panchnama of the recovery of weapons used in the commission of offence was also prepared in the presence of panch witnesses. Muddamal which was seized during the course of investigation was sent to Forensic Science Laboratory for the purpose of detailed analysis. On receipt of Post Mortem Report and FSL report and other material on record of the case, the appellants along with the other accused persons were charge sheeted and produced before the learned Judicial Magistrate, First Class, Ahmedabad, who, in turn, committed the case to the Sessions Court u/s 209 of the Criminal Procedure Code, as the case was exclusively triable by the Sessions Court.

In the Sessions Court, the case was registered as Sessions Case No. 51 of 2003. Charge against the appellants and other accused was framed, vide Exh.3. The appellants pleaded not guilty to the charges levelled against them. Therefore, the matter was set down for full-fledged trial before the Sessions Court.

The prosecution, in order to bring home the guilt against the accused examined the following witnesses:

--------------------------------------------------------------------------- Sl. No. P.W. No. Name Exh. No. --------------------------------------------------------------------------- 1. PW No. 1 Dr. Dilip Keshavlal [Doctor] Exh.27 --------------------------------------------------------------------------- 2. PW No. 2 Bhailalbhai Visaji, [panch witness] Exh.31 --------------------------------------------------------------------------- 3. PW No. 3 Kantibhai Visabhai [panch witness] Exh.34 --------------------------------------------------------------------------- 4. PW No. 4 Chandubhai Karsanbhai [panch witness] Exh.38 --------------------------------------------------------------------------- 5. PW No. 5 Vishnubhai Karshanbhai [panch witness] Exh.41 --------------------------------------------------------------------------- 6. PW No. 6 Javalsinh Amarsinh [panch witness] Exh.43 --------------------------------------------------------------------------- 7. PW No. 7 Khodaji Ganeshji [Eye witness] Exh.62 --------------------------------------------------------------------------- 8. PW No. 8 Bhavanji Thakore [complainant] Exh.74 --------------------------------------------------------------------------- 9. PW No. 9 Ravaji Thakore [Eye witness] Exh.94 --------------------------------------------------------------------------- 10. PW No. 10 Pravinsinh Vaghela [Head constable] Exh.97 --------------------------------------------------------------------------- 11. PW No. 11 Vinubhai C Vaghela [panch witness] Exh.101 --------------------------------------------------------------------------- 12. PW No. 12 Babubhai C Patel [panch witness] Exh.112 --------------------------------------------------------------------------- 13. PW No. 13 Bharatbhai Savajibhail [panch witness] Exh.116 --------------------------------------------------------------------------- 14. PW No. 14 Satendra Sinh [panch witness] Exh.118 --------------------------------------------------------------------------- 15. PW No. 15 Maghiben Babuji [Eye witness, Exh.136 wife of deceased] --------------------------------------------------------------------------- 16. PW No. 16 Manjibhai Ravjibhai, Exh.143 Investigating Officer. ---------------------------------------------------------------------------

The prosecution has also produced documentary evidence in order to show involvement of the appellant in the commission of offence, which are as under:

--------------------------------------------------------------------------- Sl. No. Details of documents Exh.No. --------------------------------------------------------------------------- 1. Complaint given by Bhavanji Talaji Exh. 75 --------------------------------------------------------------------------- 2. Panchnama of the scene of offence Exh.44 --------------------------------------------------------------------------- 3. Panchnama of the blood stain which was recovered from the scene of offence Exh.35 --------------------------------------------------------------------------- 4. Panchnama of the clothes put on by deceased Exh.40 --------------------------------------------------------------------------- 5. Inquest Panchnama Exh.59 --------------------------------------------------------------------------- 6. Recovery panchnama Exh.102, 103 and 104 --------------------------------------------------------------------------- 7. Panchnama of the clothes put on by Chhatrasinh Solanki Exh.113 --------------------------------------------------------------------------- 8. Post Mortem Note Exh.28 --------------------------------------------------------------------------- 9. FSL Report Exh.147 --------------------------------------------------------------------------- 10. FIR filed by Chhatrasinh Solanki Exh.154 ---------------------------------------------------------------------------

At the conclusion of trial, learned Additional Sessions Judge narrated the incriminating circumstances against the appellants and recorded further statement of the appellant u/s 313 of the Cr.P.C. The appellants, in their further statement, pleaded that they were falsely implicated in the commission of offence and a false case has been foisted on them. The learned Additional Sessions Judge, on appreciation of the entire gamut of oral deposition and documentary evidence, held that the incident in question took place on 31.10.2002 between 10.30 AM and 11.00 AM at Balasan village. The appellant, along with other accused persons, formed an unlawful assembly. The appellants were armed with deadly weapons and with a view to get rid of deceased Babuji Amarsinh Thakore, assaulted him on the vital parts of his body and caused his death in a brutal manner. However, considering the evidence on record of the case and the role attributed to the present appellants, the learned Additional Sessions Judge acquitted the appellants from offences punishable u/s 302 read with 149 of the Indian Penal Code but convicted them for offences punishable u/s 304 Part II read with Section 149 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for 5 years and a fine of Rs. 1000/-, in default, simple imprisonment for 30 days and also u/s 135 of the Bombay Police Act and sentenced them to suffer simple imprisonment for one month and fine of Rs. 100/-, in default, simple imprisonment for 5 days. The learned Additional Sessions Judge held that the evidence adduced by eye witness Khodaji Ganeshji, PW.7, Exh.62 and Maghiben Babuji, PW.15, Exh.136 are trust worthy and inspire confidence. Learned Additional Sessions Judge further held that the oral deposition adduced by the eye witness gets necessary corroboration from the deposition adduced by Dr. Dilipkumar Keshavlal, PW.1, Exh.27 as well as Investigating Officer, Manjibhai Ravjibhai, PW.16, Exh.143. The learned Judge also considered the documentary evidence such as the complaint given by Bhavanji Talaji, Exh.75, panchnama of the place of offence, Exh.44, panchnama of the clothes put on by deceased, Exh.40, inquest panchnama, Exh.55, panchnama of the recovery of weapons, Exhs. 102, 103 and 104, Post Mortem Note Exh.28 as well as FSL report Exh.147 and held that considering the oral deposition and documentary evidence adduced by the prosecution, the prosecution has established the inextricable involvement of the appellants in the commission of offence and therefore convicted and sentenced the appellants as stated above.

Learned advocate representing the appellants submitted that the judgment and order passed by the learned Sessions Judge is against the law and equity and, therefore, it requires to be quashed and set aside. The learned Judge has seriously erred in holding that the appellant No. 1 gave stick [jediya] blows to the deceased which ultimately resulted in his death. Further, the learned Judge ought to have held that as the deceased gave provocation to the appellants, they used jediya and other weapons in their possession and assaulted the deceased, which resulted in his death. The appellant No. 1 is said to have inflicted blows on the backside of the left hand and it cannot be said to have been given on the vital part of the body and, therefore, the learned judge has seriously erred in convicting the appellant for the offence punishable u/s 304 Part II of IPC. The learned Judge has not appreciated the oral deposition and documentary evidence adduced in its proper perspective while convicting the appellants for the offences punishable under Sections 304 Part II of IPC. On a bare perusal of the deposition adduced by eye witness, it is not sufficient to convict the appellant for offence punishable u/s 304 Part I. In criminal matters, the burden is cast on the prosecution to prove the involvement of the accused in the commission of crime by adducing cogent and convincing evidence. However, the prosecution has not discharged that burden and therefore, the benefit of the same is required to be given to the appellants. The learned Sessions Judge has seriously erred in holding that the death of the deceased was caused due to the injuries sustained by him in the scuffle. The learned Judge ought to have taken into consideration the fact that complaint was not lodged immediately after the incident and no explanation was forthcoming for the delay which was caused in filing the complaint. Thus, it is submitted by the learned advocate that as prosecution has not proved the involvement of the appellants in the commission of the crime by clinching evidence on record of the case, the appellants are required to be exonerated of the offences punishable u/s 304 Part II of IPC.

Over and above the oral submissions canvassed at the bar by the learned advocate Mr. B.S. Patel, he has also given written submissions wherein it is submitted that as per the deposition adduced by PW.8 Bhavanji Talaji Thakore, Exh. 74, he got down from a ''chhakada'' at the bus stand and while he was going to his place, he saw a scuffle in the Panchayat office and according to this witness, the appellant No. 1 caused injury with the help of stick [jediya], appellant No. 2 caused an injury with the help of ''gupti''. According to this witness, approximately 70 blows were given by all the accused with their respective weapons and the deceased Babuji was dragged from the Panchayat office to the della of appellant No. 1. He had also seen the appellant No. 1 causing injury on the back side of the head of the deceased and appellant No. 2 dragging the deceased Babuji. As per the say of this witness, police visited the place between 2.00PM and 2.30 PM, and police informed him regarding death of Babuji at 5.00 PM and he filed the complaint at 9.00 PM after consulting Javanji. As per the deposition given by this witness, appellant No. 2 gave 5 to 6 gupti blows to deceased Babuji. Kodaji Ganeshji, PW.7 Exh.62 has stated in his deposition that he was going to Katosan Road between 10.00 AM and 11.00 AM for taking household articles and he saw a scuffle in the panchayat office wherein appellant No. 1 had caused an injury to the deceased with the help of jediya and appellant No. 2 with gupti. He returned and did not inform anyone. Ravaji Bhikhaji Thakore, PW.9 Exh.94 has deposed that he had gone to purchase 200 grams vegetable between 10.30 AM and 11.00 AM. He heard shouts from the Panchayat office and had seen the appellant No. 1 causing injury to the deceased with the help of jediya, and appellant No. 2 causing injury with the help of gupti. He has also deposed that deceased Babuji was dragged to the dela of appellant No. 1. According to this witness, the appellant No. 1 had given 10 to 15 blows to the deceased Babuji with the help of jediya. He has also witnessed bleeding from the head of deceased Babuji. He returned without taking vegetables and remained in his house and thereafter went to the place of Javanji and subsequently accompanied the complainant.

Witness Marghiben Babuji, PW.14 Exh.135 who is wife of the deceased has deposed that deceased Babuji had gone to the panchayat office for taking certified copy and her daughter Sangitaben accompanied him. After 10 minutes, her daughter came back crying and informed that deceased has been beaten in the Panchayat office. She and her daughter immediately went to the panchayat office and found the appellant No. 2 and other accused dragging the deceased to the dela of appellant No. 1. Appellant No. 1 was armed with Jediya and appellant No. 2 was armed with gupti. She had requested to leave her husband but the accused continued beating. At about 1.00 PM, Jasuji informed that deceased Babuji is lying unconscious in the dela of the appellant No. 1, the police went to the place and shifted her husband to the hospital. According to her, her nephew, Bhavanji Talaji, Javanji Amraji and Devaji Karaji went for registration of the complaint and returned at 12 O''clock. According to her, she stayed in the house for the whole day and did not inform anyone regarding the incident.

After referring to the deposition of these witnesses, it is stated in the written submissions that on perusal of the testimony of the four witnesses, though the witnesses consistently implicated the appellants, none of the witnesses tried to save or intervene in the scuffle which took place in the panchayat office. These witnesses can be said to be chance witnesses and none of the witness including wife of the deceased Babuji informed to anyone about the incident immediately. All the three eye witnesses met Javanji and after consulting him, went to register the complaint against the appellant. None of the witness acted like a prudent man during the scuffle which took place between the deceased and the appellant. None of the witnesses have also explained the injury caused on the vital part of the appellant No. 1. If the deposition adduced by the witnesses is perused in its proper perspective, then it is in contradiction with the medical evidence on record of the case as there was no single injury on the vital part of the body of the deceased caused by the appellants. The witnesses have got political enmity against the appellants, and, therefore, they have falsely implicated the appellant in the commission of offence. All the witnesses had noticed head injury to the deceased Babuji, but as per the evidence given by the Doctor, no head injury was found on the body of the deceased.

The learned advocate has also placed reliance on the following judgments in support of the submissions canvassed at the bar:

Dharam Singh and others Vs. State of Punjab,

Partap Vs. The State of Uttar Pradesh,

Subramani and Others Vs. State of Tamil Nadu,

Makwana Takhat Singh Ratan Singh Vs. State of Gujarat,

Jayantibhai Bhenkaarbhai v. State of Gujarat reported in 2002 Cri.L.J. 4734

Kewal Singh v. State reported in 2007 Cri.L.J. 2083.

Learned advocate for the appellant submitted that in view of the law laid down by the Honourable Apex Court in the case of Dharam Singh and others Vs. State of Punjab, the evidence of these witnesses cannot be relied upon as there is not a single scratch in dragging the deceased for 129 steps. According to one of the witnesses, the deceased had been caught from the collar of his shirt, while the shirt has been found from the panchayat office and therefore, the story of dragging the deceased is unbelievable. Learned advocate submitted that in view of the law laid down by the Apex Court in the case of Dharam Singh and others Vs. State of Punjab, the evidence of the witness cannot be relied upon as there is not a single scratch on the body of the deceased even though it is alleged that he was dragged. It is further submitted that even the injuries sustained by the appellant on the head is not explained. The learned Sessions Judge has committed an error in believing that the deceased Babuji was not an aggressor and he had caused injuries with the help of a sword on the head of appellant No. 1. The appellant No. 1, in self defence, caused only one injury on the left hand of the deceased. In view of the ratio laid down by the Apex Court in the case of Partap Vs. The State of Uttar Pradesh, , taking into consideration the preponderance of probabilities, it can be safely stated that appellant No. 1 had caused injury in self-defence and that too, with a stick [walking stick] on non-vital part of the body of the deceased. Learned advocate further submitted that the Apex Court has held in the case of Subramani and Others Vs. State of Tamil Nadu, that in case of right of private defence, the force used by a person in peril should not be weighed in golden scale if the person acts for his self-defence. It is further submitted that the deposition adduced by the investigating officer is also not trustworthy and it does not inspire confidence.

With regard to involvement of appellant No. 2, the learned Judge has failed to consider that the incident had taken place suddenly. The learned Judge has miserably failed to consider the law laid down by the Apex Court in the case of Makwana Takhat Singh Ratan Singh Vs. State of Gujarat, wherein it is held that non-explanation of serious injuries found on the person of accused were not stated by the prosecution and the appellants had acted in exercise of right to private defence and thereby had acquitted all the accused. It is submitted that the learned Judge ought to have concluded that the accused acted in self defence, and thereby ought to have acquitted all the accused including the present appellants. The learned Judge has not given benefit of alibi to appellant No. 2, a Peon working with Ahmedabad District Co-Operative Bank even though the learned Judge has given benefit of alibi to brother of appellant No. 2 who was serving with Ahmedabad District Co-Op. Milk Producers Union Limited. The learned Judge ought to have considered the ratio laid down by the Apex Court in the case of Jayantibhai Bhenkaarbhal Vs. State of Gujarat, wherein the Apex Court has accepted the plea of alibi which was consistent and supported by documentary evidence and the principle laid down by Delhi High Court in the case of Kewal Singh v. State reported in 2007 Cri.L.J. 2083 wherein a Division Bench of Delhi High Court held that in view of the weapon recovered by the prosecution and testimony of prosecution witnesses, the plea of alibi can be established. In the present case, according to the prosecution witnesses, the incident in question took place suddenly and at that time a Peon is expected to be in the Bank. The statement of the Head of the Branch and recovery of the muster roll by the police, weapon recovered from the appellant No. 2 did not contain any blood stains as per FSL report and therefore, the ratio of the aforesaid judgment squarely applies to the present case. Thus, the learned Judge has seriously erred in convicting the appellant for offence punishable u/s 304 Part II. On perusal of the entire evidence on record, it is a fit case to exonerate the appellants of the offence punishable u/s 304 part II.

On the other hand, Mr. Bhate, learned Additional Public Prosecutor submitted that considering the deposition adduced by complainant Bhavanji T Thakore PW.8 Exh.74, Khodaji Ganeshji PW.7 Exh.62, Ravaji Thakore PW.9 Exh.94, Maghiben Babuji, wife of deceased, PW.15 Exh. 136. It becomes clear that the deceased was beaten up in a scuffle which took place in the panchayat office. The appellants along with other accused were armed with weapons i.e. jediya, sticks, gupti etc. Appellant No. 1 gave stick blows to the deceased and appellant No. 2 gave gupti blow to the deceased which ultimately resulted in his death. The deposition adduced by the prosecution witnesses is supported by the documentary evidence such as panchnama of the place of incident, Exh. 44, panchnama of the clothes of the deceased, Exh.40, inquest panchnama Exh.59, recovery panchnama etc. 102, 103, 104, complaint exh.75, PM Note exh.20, FSL report Exh. 147. The oral deposition thus gets necessary corroboration from the documentary evidence adduced by the prosecution. The deposition adduced by the witnesses is consistent in nature and trustworthy as it inspired confidence. The learned Judge has rightly convicted the appellants for offences punishable u/s 304 Part II and no interference is called for in the appeal preferred by the appellant. Even the learned Judge has assigned sufficient reasons while discussing the entire gamut of oral deposition and documentary evidence so as to indicate the involvement of the appellant in the commission of offence. As the learned Judge has not committed any infirmity or illegality in the judgment rendered by him, no interference is called for and the appeal requires to be dismissed, and order of judgment and sentence passed by the learned Additional Sessions Judge be upheld.

I have heard learned advocate Mr. B.S. Patel for the appellants and Mr. Bhate, learned APP for the State. This Court has also undertaken a complete and comprehensive appreciation of all vital facts of the case and the entire evidence on record with regard to the broad and reasonable probabilities of the case. As per the prosecution case, the incident took place on 31.10.02 in the panchayat office. An altercation took place in the panchayat office. The appellants along with other accused, who were armed with jediya, Gupti and knife attacked the deceased by forming an unlawful assembly as they had a quarrel with regard to obtaining certified copy of some form. Appellant No. 1 got infuriated and inflicted blow with jediya, The prosecution has examined Khodaji Ganeshji, PW.7 Exh. 62. As per the say of this witness, he was going to purchase household articles from Katosan Road between 10.00 AM and 110.00 AM and he heard heated exchange of words and saw a scuffle in the panchayat office wherein appellant No. 1 caused an injury to the deceased with the help of jediya, and appellant No. 2 caused an injury with the help of gupti. Complaint, Exh. 75 was given by Bhavanji Thakore PW.8 and it reiterates in what manner the injuries were inflicted on the deceased Babuji by appellants No. 1 and 2. Ravaji Thakore PW.9 has been examined vide Exh. 94. As per his say, he was going to purchase vegetables from the market between 10.30 AM and 11.00 AM and he heard shouts from the panchayat office and he had seen the scuffle which took place in the panchayat office between the deceased and appellants No. 1 and 2 and other accused persons at the Panchayat office. The appellant No. 1 caused an injury on the deceased Babubhai with the help of jediya and appellant No. 2 caused injury with gupti. He accompanied the complainant in order to register the complaint against the appellant. There is nothing in the cross-examination so as to dislodge his version given in the examination in chief. Maghiben PW.15, wife of the deceased, was examined vide Exh. 136. She had not seen the incident but as per her deposition, the deceased Babuji had gone to the Panchayat office for obtaining copy of certain document along with her daughter Sangita. After 10 minutes Sangita returned crying and informed her that Babuji was badly beaten up in the panchayat office. She therefore went to the panchayat office and found appellant No. 2 and another accused dragging the deceased to the della of the house of appellant No. 1. As per her deposition, appellant No. 1 was armed with jediya and appellant No. 2 was armed with gupti. She pleaded to the appellants to leave her husband but they were unrelenting and continued beating her husband. Subsequently the deceased was brought to the hospital in an unconscious condition where he ultimately succumbed to the injuries. Thus, the deposition adduced by this witness is also consistent in nature and there is nothing in the cross examination to dislodge her version.

The judgment of the Hon''ble Apex Court in the case of Dharam Singh and Ors. [supra] deals with a case where the High Court interfered in an appeal against acquittal and appreciation of evidence by the High Court in an acquittal appeal. The present case is not an acquittal appeal and hence the observations made by the Hon''ble Apex Court has, in my humble view, no application in the present case. As regards the plea of self-defence and reliance on the judgment in the case of Pratap [supra], Subramani and Ors. [supra], on appreciation of the entire evidence, there is nothing to show existence of any evidence to justify taking up of the plea of self-defence. As against an illegal assembly of about 13 accused persons against the deceased in the present case, the principle of self-defence can more appropriately be attributed to the deceased and not to the present appellants in any way. As regards the reliance on the judgment of the Apex Court in the case of Makwana Takhat Singh Ratan Singh [supra] with regard to non-explanation of serious injuries found on the person of the accused, the cause of death as per the PM Note Exh. 38, column No. 13 clearly states "blood coming from both nostrils". Blood was seen by eye witness oozing out from head of the deceased. It can, therefore be presumed that some injury was caused on the head and it cannot be said that there is any unexplained injury. Moreover, the cause of death stated in column 23 of the PM Note is "death occurred due to hemorrhagic shock due to blood loss". The incident occurred at about 11.00 AM, the deceased was dragged to the della of appellant No. 1 and the deceased was lying down there unconscious till about 2.00 PM when the police came and took the deceased to hospital. In these facts situation, it cannot be said that there is any unexplained injury, and therefore, the reliance on the judgment in the case of Makwana Takhat Singh Ratan Singh [supra] has no merit. Looking to the cause of death recorded in the PM report, there is also no merit in the submission that there is no injury on any vital part on the body of the deceased and the said submission does not have any merit. As regards reliance on the judgment in the case of Jayantibhai Bhenkaarbhai [supra] and Kewal Singh [supra] to canvass the plea of alibi, the issue has been dealt with the learned trial Judge and in view of the consistent deposition of eye witness, the said plea has been considered and rightly rejected by the learned trial Judge. These judgments are of no avail to the appellants.

It has been strongly contended by learned advocate appearing on behalf of the appellants that no attempt was made by any of the witnesses to save the deceased by intervening in the dispute. It is also argued by learned advocate on behalf of the appellant that no attempt was made to lodge complaint immediately but the complaint was given late. There is no merit in these submissions because as against a strong armed mob of about 13 persons, one will not dare to intervene. Yet, some eye witnesses have stated in their deposition that they tried to intervene, but they were chased away by the appellants and other accused. As soon as they came out of the shock of the brutal manner in which the deceased was attacked by the appellants and other accused persons, within a reasonable time, the complaint was filed. Therefore there is no substance in the submissions canvassed by the learned advocate and the same is hereby rejected.

It is also argued by the learned advocate that all the witnesses who had given deposition against the appellant had political enmity with the appellants. However, there is nothing on the record to show that there was any political enmity between the appellants and the deceased and therefore it cannot be said that the appellants were falsely implicated and false case is foisted on them. This submission is also liable to be rejected.

I have also considered the submission canvassed by the learned with regard to the sufficiency of the deposition adduced by eye witnesses and the truthfulness of eye witnesses who have deposited in the present case. On perusal of the deposition adduced by the eye witnesses, they have deposed in a consistent manner indicating involvement of the appellant in the commission of the crime. Even on perusal of the cross-examination, they remained firm and steadfast and their version which was given in the examination in chief was not dislodged even in the cross examination. Therefore, this submission is also liable to be rejected.

Since the deceased sustained serious injuries, the witnesses and other persons who were present took the deceased to the hospital and there was no delay on their part either to lodge the complaint or to admit the deceased for immediate medical treatment in the hospital. Thus, the burden on the prosecution to prove the link connecting the appellants with the commission has been duly established and there is no lacuna in the deposition adduced by the prosecution.

Moreover, the deposition adduced by the prosecution has been amply corroborated by documentary evidence such as PM Note Exh. 28, panchnama of the clothes of the deceased Exh.40, complaint Exh.75, recovery panchnama Exhs. 102, 103 and 104, F.S.L. Report Exh.147. The witnesses'' account is not unnatural insofar as their depositions are not photographic in nature and therefore it requires to be accepted. The account of the incident given by the eye-witnesses is consistent and tallies with each other and the evidence of eye-witnesses is natural and credible and even if there are minor discrepancies, this court cannot refuse to place reliance upon them. The Apex Court in the case of Navganbhai Somabhai and others Vs. State of Gujarat, held as under:

This is a case where a large number of accused as many as 13 or 14 variously armed went to the house where the deceased as well as P.Ws. 1 and 4 were sitting and in a highhanded manner climbed the roof of the house in which the deceased and the two injured witnesses had taken shelter and made a big hole in the roof and then attacked three persons. In such an occurrence even if the eye-witnesses have improved and have not given consistent version regarding the part played by each of the accused that by itself will not be a ground to acquit the accused. The presence of P.Ws. 1 and 4 has not been in dispute and having regard to the number of injuries on them, it would have been impossible for the witnesses to give a detailed account and in any way if while giving some account they have improved or there are some omissions, that would not be a ground to acquit the accused persons whose names have been consistently mentioned throughout in a case of this nature and Section 149, IPC is applicable here. What the court has to see is whether the assailants formed into unlawful assembly and shared the common object either by participation or by being present as members of unlawful assembly knowing that such common object would be to cause grievous hurt. As a matter of fact, the Trial Court rightly observed that the witness is not there to count blows and had no photographic memory as to what happened and in such a case only general evidence is given. Xxxxx xxxxxx xxxxx Even otherwise, we agree with the High Court that the evidence of P.Ws. 1 and 4, the injured witnesses, is generally acceptable regarding the presence and participation of the appellants in the sense that they continued to be the members of the unlawful assembly.

In the present case, the prosecution has proved the case. In view of the aforesaid facts and circumstances of the case, the prosecution has, by adducing clinching and cogent evidence established the involvement of the appellants in the commission of the crime and the learned trial Judge has rightly convicted and sentenced the appellants and the same needs no interference. Considering the nature of injuries, the learned Judge has rightly convicted the appellants for offence punishable u/s 304 Part II, and not u/s 302 of the IPC. The sentence, therefore, cannot be said to be harsh.

For the foregoing reasons, the appeal is liable to fail an the same is dismissed. Muddamal articles to be disposed of in terms of the order passed by the learned Additional Sessions Judge.

The appellant No. 1 was enlarged on bail. His bail bond stands cancelled forthwith. However, he is given time till 11.02.2009 to surrender. If he does not so surrender, it shall be open to the court below to issue appropriate process against him.

In view of the aforesaid order passed in the main appeal, Criminal Misc. Application No. 2317 of 2008 does not survive and it stands rejected accordingly.