Kantiji Chanduji Thakore vs State of Gujarat

This appeal arises from the impugned judgment and order dated 3/12/1990 rendered by the Ld. Addl.Sessions Judge, Ahmedabad (Rural) in Sessions Case No.26/1990. The appellants who have been referred to as''the accused'' in this judgment came to be convicted andsentenced for the offences punishable u/Ss. 302 readwith section 149, 307 read with section 149, 325 readwith section 149, 324 read with section 149, 323 readwith section 149 and sections 147 and 148 of the IndianPenal Code (for short ''IPC''). They have been sentenced tolife imprisonment by way of substantive sentence for themain offence. They have also been sentenced to pay finefor the respective offences. The prosecution presentedthe incident in respect of which the accused persons havebeen charged before theLd. Addl. Sessions Judge as perthe following particulars :-

The incident occurred at around 5 O''clock in theevening on 1/10/1989 in village Shertha. The victims asalso the deceased on one side and the accused persons onthe other side happened to be the relatives. They were,however, not on talking terms and relations were strainedlong before. It so happened that on the penultimate dayof the day of incident accused no. 6 Punjaji LakhajiThakor was hurling abuses while in drunken condition. Onthat occasion Becharji Ravaji (since deceased) scoldedhim resulting into accused no. 6 getting enraged.Accordingly on the day of incident the accused personsarmed with deadly weapons formed common object of killingBecharji Ravaji and they accordingly formed unlawfulassembly and reached the place of incident while givingabuses. They accordingly assaulted Becharji Ravaji.Accused no. 1 gave a Dhariya blow (blow of scythe)resulting in Becharji Ravaji falling on to the ground andthe accused persons then started beating him. During thecourse of the incident witnesses Sendhaji Becharji,Jivanji Becharji, Maniben Becharji, Shardaben Jivanji andChanchiben Kanaji intervened. The accused persons alsoassaulted them with their respective weapons and causedinjuries on different parts of the person of therespective witnesses. They accordingly caused grievoushurt to the witnesses so assaulted. The accused personsthen left the place of incident. It has been allegedthat accused no. 1 Kantiji Chanduji, accused no. 2Maganji Lilaji, accused no. 7 Jivanji Lalji and accusedno. 8 Chaturji Chhotaji Thakor were armed with Dhariyas,accused no. 3 Babuji Lalji was armed with iron rod,accused no. 4 Amratji Maganji was armed with stick,accused no. 5 Khodaji Dhulaji was armed with Dhoka (batlike stick) and accused no. 6 Punjaji Lakhaji Thakor wasarmed with Danti (weapon like scythe with teeth). F.I.R.in respect of the incident in question was lodged atabout 7 O''clock in the evening on the same day at AdalajPolice Station and the injured witnesses were sent fortreatment under police Yadi. Deceased Becharji Ravajiwas taken to Civil Hospital, where, in the evening he wasdeclared dead. After the investigation was carried out,the case was committed to the Sessions Court, Ahmedabad(Rural) and the accused persons were charged with theaforesaid offence as per charge exh. 4. At theconclusion of trial it was submitted on behalf of thedefence that it was not established beyound reasonabledoubt as to who gave Dhariya blow to the deceased, that 6accused persons were implicated in the F.I.R.; whereasdifferent accused persons surfaced in the evidence ofdifferent witnesses. It was also submitted that therewas some variation/contradiction in the evidence ofwitnesses, who happened to be interested witnesses.Relying upon the medical evidence it was submitted thatthere was difference with regard to the injuriessustained as compared to the ocular account of theincident. It was also submitted that the prosecution didnot explain the appearance of blood stain at the placenearby the house of the accused. Hence, the prosecutionshould be treated as having not been able to establishbeyond reasonable doubt formation of unlawful assembly aswell as common object. The defence has not adduced anyevidence. Upon appreciation of the evidence adducedbefore the Ld. Addl. Sessions Judge, the Ld. Addl.Sessions Judge has accepted the evidence of the eyewitnesses including the injured eye witnesses whileobserving that the witnesses are not the intelligentwitnesses and even then they have been able to narratethe incident with reasonable certainty and uniformity.Some errors/omissions or variations have been found to benot material and instead they have been found to lead tothe evidence becoming natural and inspiring confidencefor being accepted. Dealing with the charge regardingunlawful assembly and common object attributed to theaccused persons Ld. Addl. Sessions Judge has observedthat there was enmity between accused persons on one sideand the complainant party on the other side. In thisbackground, it has been observed that there cannot be anyfixed or ascertained formula for attributing commonobject which has to be gathered from the circumstances ofthe case and the conduct of the accused persons at thetime of the incident. It has been noted that all the 8accused persons reached the place of incident with deadlyweapons which could be used for commission of the offencein question. They immediately assaulted Becharji Ravaji(since deceased). The first accused gave a Dhariya blowon the head of said deceased. The circumstances wouldindicate that there was preparation for counteracting anyopposition at the time of incident. This fact could benoticed from the conduct of the accused persons at thetime of the incident. If the injured witnesses were notpresent at the time of the incident, none of them couldhave been injured. Besides, the accused persons wereconversant about the fact that the relatives wereresiding in the vicinity of the house of deceasedBecharji Ravaji. Under such circumstances, the Ld.Addl. Sessions Judge has concluded that there wasapparently common object on the part of the accusedpersons to kill Becharji Ravaji and also to injure allthose who would come in the way. Accordingly theconcerned witnesses came to be injured during the courseof the incident as they intercepted the assailants.Thus, there were more than five persons being the accusedpersons who formed common object of assaulting andkilling Becharji Ravaji and they acted accordingly whilethemselves armed with deadly weapons going to the placeof the incident and assaulting the deceased. The Ld.Addl. Sessions Judge has, therefore, concluded that theingredients of section 141 of the IPC have been compliedwith. The offences punishable with the aid of section 149 were thus held to have been committed by the accusedpersons. Conviction accordingly has also been renderedu/Ss. 147 and 148 of the IPC. The accused persons havesubjected the said conviction and their consequencesentence to challenge in this appeal before this Court.

[ 2. This appeal, having been placed for finalhearing, has been extensively heard. The evidence whichhas been adduced before the Ld. Addl. Sessions Judgehas already been read and commented upon. It would firstbe appropriate to make a synopsis of the evidence andthen to deal with the submissions made. The prosecutionexamined following witnesses at the trial :-

i. P.W. 1 - Dr. Patel Punjabhai Chhaganbhai, exh.26 ii. P.W. 2 - Prabhudas Hirabhai Patel, exh. 37 iii. P.W. 3 - Harjibhai Bababhai Chavda, exh. 42 iv. P.W. 4 - Sendhaji Becharji, exh. 46 v. P.W. 5 - Dineshbhai Chunilal Patel, exh. 48 vi. P.W. 6 - Vithalbhai Somaji, exh. 53 vii. P.W. 7 - Chanchalben (Chanchiben)Kanaji,exh.54 viii. P.W. 8 - Dr. Ravindra Shrikrishna Bhise, exh.55 ix. P.W. 9 - Dr. Rajeshbhai Ishvarbhai, exh. 57 x. P.W. 10- Vadilal Jesangbhai, exh. 66 xi. P.W. 11- Jivanji Becharji, exh. 68 xii. P.W. 12- Maniben Juhaji, exh. 72 xiii. P.W. 13- Shardaben Jivanji, exh. 73 xiv. P.W. 14- Shankarji Ramaji, exh. 74 xv. P.W. 15- Bhikhaji Nathaji Thakor, exh. 75 xvi. P.W. 16- Imammiya Pirmiya Malek, exh. 77 xvii. P.W. 17- Naginbhai Kalidas Barot, P.S.I. Mehsana City Police Station, exh. 80.

The documents which have been referred to during thecourse of submissions made on behalf of the accused aswell as prosecution will be dealt with at the appropriatepoint of time. They, however, mainly consist of postmortem report, report from Forensic Science Laboratory,relevant Panchnamas and the relevant sketches. Besides,Muddamal articles have also been presented by theprosecution in the trial Court.

It has first been submitted by Mr. Shethna, theLd. Counsel appearing for the accused persons that theprosecution story proceeds on the line of all the accusedpersons having assaulted with deadly weapons deceasedBecharji; whereas the medical evidence in the form ofpost mortem report would indicate that Becharji, sincedeceased, had only one injury on the head. It would,therefore, be apppropriate to deal with the medicalevidence qua deceased Becharji, in order to appreciatethe submissions of Mr. Shethna. For that purposereference has first been made to the evidence of Dr.Ravindra Bhise, P.W. 8 exh. 55 and post mortem notesexh. 56. Speaking to the post mortem report Dr.Ravindra S. Bhise has testified that following externalinjuries appeared on the dead body of Becharji RavajiThakor :

i. Chop wound on the right side of skull extending from 4 c.m. above the middle part of right eyebrow going upwards in the sagital plain, then curving upwards and backwards in sagital plain extending on right parital region and of the length of about 9 c.m. then curving downwards on the right occipito parieto region going backwards and downwards for a length of about 4 c.m. The anterior curved end is about 3.5 c.m. on the right frontal region forming a curve wound with conveity upwards about 16.5 c.m. long x 2 c.m. gap by bone deep. The injury has been further described by the medical witness in his oral evidence saying that the wound exposes the cranium which displays cut margins at the middle 9 c.m. part of the wound and cavity deep. The lateral flap of the wound is of size 8 c.m. x 4 c.m. This injury has been opined to be antemotem and sufficient in the ordinary course of nature to cause death.

ii. The following internal injuries have also been noted by the witness :-

Chop wound as described with a chin pericranial haemotoma all around the skull.Internal fractures have also been noticed.

The medical witness has deposed that internal injury wascorresponding to external injury as aforesaid and thecause of death was shock as a result of head injurysustained by the deceased. He has deposed that theinjury could be caused with the aid of Muddamal articleno. 16, which was shown to him. He has finally deposedthat chop wound is modified incise wound caused by thesharp cutting instrument used with force and in clinicalexamination it would apparently look like an incisedwound. The witness, in his cross-examination hasadmitted that the external injury was single injury andmuch reliance has been placed on this circumstance in thesubmissions made on behalf of the accused in this appeal.The witness has also asserted in his cross-examinationthat chop wound is different from incised wound, but chopwound on external examination may resemble as incisedwound. Reliance has also been placed upon a suggestionthat weapon of offence for causing such an injury wouldbe an axe, but the witness has in terms denied thatsuggestion. Making reference also to the post mortemreport exh. 56 it has been submitted that there is noother injury except one external injury which has beenspoken to by the medical witness. Reference in thisconnection has also been made to the medical certificateexh. 20, which says that the post mortem examination hasbeen performed on the dead body of Becharji (male - 65years) at Civil Hospital by Dr. K.A. Shah and Dr. R.S.Bhise and cause of death has been found to be headinjury.

Reverting to the prosecution evidence of the eyewitnesses including the injured eye witnesses, it hasbeen submitted that if there was an assault launchedsimultaneously not only by accused no.1 but also by otheraccused persons as per the prosecution story, it would beimprobable that deceased Becharji would sustain only oneexternal injury. Two fold submissions have been madefrom this circumstance. It has firstly been submittedthat genesis of the prosecution case should be held tohave not been established beyond reasonable doubt so asto make available to the accused persons benefit of doubtabout the guilt charged against them. In the secondplace, ofcourse in the alternative, it has been submittedthat the prosecution case with regard to common object ofkilling Becharji having been formed by all the members ofthe assaulting party could not be said to have beenestablished beyond reasonable doubt and the accusedpersons should be dealt with in accordance with theirindividual overt acts. In order to appreciate thesubmissions it would be important to visualise in itsreal shape the slow motion account of the incident inquestion. It would appear that the accused persons werearmed with one or the other weapons as aforesaid. Itwould also appear that they had been together when theassault was launched. It was at around 5 O''clock earlyin the evening when the incident occurred. It is eventhe defence case that the relatives of deceased Becharjiwere also residing in the vicinity. As can be seen fromthe prosecution evidence of the other witnesses they werealso present/ they appeared at the place of the incident.Most important of the circumstances is that none of thepersons of the complainant party was armed with anyweapon worth the name. This would clearly indicate thatthe assault was launched by the accused party and nosooner a blow was given on the head of deceased Becharji,who fell down, then there was the appearance of first,second, third and so on of the injured witnesses. Itcould not be said that some one or the other waited formore than one blow being given by one of the accusedpersons to deceased Becharji. In the natural course ofevents the related persons though not armed would haverushed to the place of incident and intervened andintercepted. This is precisely what clearly appears tohave happened at the time of the incident, if one bearsin mind the injuries sustained by other witnesses duringthe course of the incident. Thus, though the medicalevidence has been commented upon and canvassed, it cannotbe separated from the actual chain of action which musthave taken place during the course of the incident asaforesaid.

Then there is a reference to the medical evidenceof Dr. Patel Punjabhai Chhaganbhai, P.W. 1, exh. 26.He has been examined by the prosecution in respect ofBecharji Ravaji Thakor and five other injured personshaving been medically examined by him. He found BecharjiRavaji Thakor unconscious with the external injuryappearing as aforesaid. He has opined about the injurylikely to have been caused by sharp weapon like a Dhariya(scythe). He had also an occasion to examine ShardabenJivanji Thakor, one of the prosecution witnesses, who wasreported to have been injured during the course ofincident. She had cut wound 1" x 1.3" on the rear sideof the right shoulder. There was swelling and tendernesson base of left hand index finger. He has opined thatthese injuries could be caused respectively by sharpweapon like Dhariya and hard and blunt weapon. He gavecertificate exh.28 in respect of such injuriesappearing on the person of witness Shardaben JivanjiThakor. He also had an occasion to examine SendhajiBecharji who had swelling in the area around 2" x 1" onthe rear side of the left forearm and that could becaused by weapon like a stick. He accordingly gavecertificate exh. 29. He had an occasion to examineinjured witness Maniben Becharji Thakor who sustained (i)crossed and abrased wound on the left parital region, thewound appearing to be 1.1/2" x 1/2" scalp deep and(ii)cut wound admeasuring 4" x 1/3" x 1/4" on the rightrear side of chest and it displayed swelling. Thewitness opined that first injury could be caused by hardand blunt weapon; whereas the second injury could becaused by sharp weapon. He has also opined that thefirst injury could be caused by iron rod and the secondinjury could be caused by a Dhariya. He gave hiscertificate exh. 30 in respect of such injuries. Theinjured person was referred to the Civil Hospital,Ahmedabad. He had an occasion to examine JivanjiBecharji finding that he had injuries (i) on his head,left parital and occipital region in the form of bonedeep, (ii) cut wound admeasuring 1" x 1/2" x 2" on thefront portion of left shoulder, (iii) 2" x 1" incisedflap cut on front of right leg and (iv) 1.1/2" x 1/2"crossed and bruised wound on the front portion of rightleg and (v) abrasion admeasuring 1/2" x 1/2" on the upperportion of shoulder. The witness has opined that firsttwo injuries could be caused by sharp weapon; whereasinjuries nos. 3 and 4 could be caused by hard and bluntsubstance. He has also opined that injury no. 5 couldbe caused by the blunt edge of Dhariya. He gavecertificate exh. 31 in respect of these injuries. Thispatient was also referred to the Civil Hospital,Ahmedabad for further treatment. The witness then hadthe occasion to examine Chanchiben Kanaji Thakor, who hadfollowing injuries :

(i) scalp deep cut wound admeasuring 5" x 1/2" on the occipital region of the head

(ii) C.L.W. 1" x 1/2" on the front portion of the head.

(iii) Swelling and pain on the left wrist with possible fracture of lower end of radius.

(iv) 5" x 1" bruise like wound on the left side of the trunk of the patient.

The witness has opined that first injury could be causedby sharp cutting weapon like Muddamal article no. 22 andthe rest of the three injuries could be caused by hardand blunt substance like Muddamal Articles nos. 17,18/21. He has opined that third injury on the left wristwith possible fracture at the end of the radius wouldamount to grievous hurt. He gave certificate exh. 32 inrespect of the injuries. According to him if bleedingfrom injury no. 1 was not stopped, it would endangerlife. Reference has been made to the cross- examinationconcerning the opinion of the witness in respect ofinjuries sustained by Becharji. In para. 16 of hisevidence he has admitted that he could notice one injuryon the body of Becharji Ravaji. There is no difficultyin accepting submission made on behalf of the accusedpersons with regard to there being one external injury onthe head of Becharji Ravaji. However, the comments madein this respect would have to be assessed in the light ofall the circumstances appearing from the evidence of eyewitnesses. As said above, the incident as a whole has tobe visualised and it cannot be isolated by dissecting thesame in the manner in which submissions have been madefrom the medical evidence qua deceased Becharji Ravaji.It is not the prosecution case that in fact number ofblows were given to deceased Becharji Ravaji insuccession without there being any interception orintervention by the other witnesses.The firstappearance of the ocular account might lead to such ananomaly but if the incident as a whole is visualised, itwould give a clear picture regarding the other witnessimmediately one after the other or in successionintervening or intercepting so as to result into landingof blows, one or the other, on the person of the otherwitnesses. The evidence has, thus to be seen as a whole.Therefore, merely because deceased Becharji Ravaji wasfound to have one injury on his head it cannot be saidthat there was no assault on the part of the accusedpersons together. At this stage, submission that noradiologist was examined for receiving in evidence theX-ray plates of Chanchiben, injured eye witness, P.W. 7,exh. 54 might be considered. The X-ray plates exh. 58and exh. 59 to 59/3 should not have been received inevidence, submitted the learned counsel. Oral evidenceof Dr. Rajendrabhai Ishvarbhai Patel, P.W. 9 exh. 57was read. He has deposed that he had an occasion toexamine Chanchiben Kanaji at 7.15 p.m. on 1/10/1989. Hefound one incise wound about 8 c.m. long skull deep onthe occipital area of the head of the person. He alsofound C.L.W. on frontal region 0.5 cm x 0.5 cm. Then henoticed tenderness over the back. The witness broughtthe X-ray plates in respect of which he has givenevidence to the effect that the same would disclosefracture of left radius lower end and fracture in rightparietal bone. He has then proved his certificate exh.60. While referring to the Yadi exh. 61 he has opinedthat the injury on the scalp area of the head ofChanchiben could be caused by sharp cutting instrumentlike Dhariya and second injury could be caused by hardand blunt substance like stick as also the blunt portionof the blade of Dhariya. It would appear from theexamination-in-chief that there was no objection raisedwith regard to receipt of the X-ray plates in evidenceand reading thereof by the medical witness. Even duringthe course of the arguments, nothing material could bepointed out so as to show that the X-ray plates were notthose of injured witness Chanchiben. The fact thatChanchiben sustained fracture has also been brought tolight by this medical witness and that has to be borne inmind.

It has next been submitted on behalf of theaccused persons that there is non appearance of names ofaccused no. 7 Jivanji Lilaji and accused no. 8 ChaturjiChhotaji in FIR Exh. 47. Sendhaji Becharji, P.W. 4exh. 46 who was also injured during the course of theincident has lodged the FIR at the earliest point of timeon the same day. He has described the incident as perthe prosecution story saying that accused Punjaji LakhajiThakor had Danti in his hand, accused Kantiji Chandujihad Dhariya in his hand, accused Maganji Lilaji andDahriya in his hand, accused Babuji Lilaji had iron rodin his hand and accused Khodaji Dhulaji had bat likestick in his hand; wereas accused Amratji Maganji Thakorhad the stick in his hand while launching the assault onthe complainant party. Kantiji Chanduji gave a Dhariyablow on the head of the deceased Becharji, father of thecomplainant. This resulted in the victim falling on tothe ground while loudly screaming. Since all the accusedpersons launched the assault and started beating, thecomplainant also shouted for help resulting in his elderbrother Jivanji and mother Maniben as well as oneChanchiben Karmaji, the aunt, and his brother''s wifeShardaben rushing to the place of incident andintervening for escorting Becharji. In that processThakor Babuji Lilaji gave a blow on his left wrist and onhis shoulder. Maganji Lilaji gave blows on the leg andhead of Jivanji. Punjaji Lakhaji gave Danti blow on thehead and shoulder of his mother Maniben and KhodajiDhulaji gave blows on to the body of his aunt ChanchibenKanaji. He has also asserted that accused Amrat Maganjigave stick blow on the head of Chanchiben and ThakorMaganji Lilaji gave Dhariya blow on the shoulder of hisbrother''s wife. It has, therefore, been submitted thatin the F.I.R. names of accused no. 7 Jivanji Lilaji andaccused no.8 Chaturji Chhotaji Thakor have notappeared. In order to appreciate this argument and theconnected argument that there is non-appearance of theone or other accused else where, it would be appropriateto deal with the evidence of the injured witnesses.

P.W. 4 Sendhaji Becharji, exh. 46 has testifiedto the facts of the prosecution case. He has given thefacts with regard to the earlier incident about accusedno. 6 Punjaji Lakhaji who was hurling abuses afterdrinking liquor to his father Becharji Ravaji. Broadbrief facts with regard to this incident also appear inthe F.I.R. exh. 47. He has also spoken to the factswith regard to how the assault was launched by theaccused persons. He has concluded the incident whileattributing the weapons to the respective accusedpersons. In his evidence he has referred to accused no.8 Chaturji Chhotaji having been armed with Dhariyaalthough he does not surface in the F.I.R. He has spokento who gave blows with which weapon while testifying thataccused Babuji gave iron rod blow on his left hand aswell as back and has also deposed that he was hurt withstick. He has deposed in his cross-examination thataccused nos. 7 and 8 were serving in O.N.G.C. at therelevant point of time, that he had stated in hisadditional statement that accused nos. 7 and 8 had alsoassaulted with Dhariya, that he stated in his furtherstatement that the reason for the quarrel was severanceof relations between the parties and non-attendance onthe occasions in the family of the other party andtherefore, there was enmity which resulted into thequarrel between the two parties. He denied thesuggestion that he sustained injuries which were selfinflicted. What is important to be noticed in thecontext of the submissions made is that he did give thenames of the othher two accused who were armed withDhariya in his further statement. Bearing in mind theinjuries sustained by number of witnesses as also deathof one of the victims, it would be probable for thecomplainant to have hurriedly narrated the incident whilegoing for, and taking the other relatives, for medicaltreatment. It would, therefore, clearly appear from theevidence of the complainant that at the earliest point oftime he had not only described the incident but had withreasonable certainty disclosed who were present with whatweapons and committed what acts of assault. The minorvariations which have been pointed out would make theocular account more natural. In respect of his injurieshe is supported by medical certificate ex. 29, whichshows that he had swelling 2" x 1" on dorsom of middlethird of left forearm and this injury could be caused byhard and blunt weapon.

Then there is evidence of P.W. 7 Chanchalben Chanchiben Kanaji apppearing at exh. 54. She has alsodeposed to the main facts of the prosecution story notedhereinabove. She has stated that since Punjaji Lakhajiwas hurling abuses while drinking liquor there was anoccasion of separation of the families. She hastestified that on the day of incident when she wasattending to the cattle (buffaloes) at home, she sawaccused nos. 1 and 2 armed with Dhariyas, accused no. 3armed with iron rod, accused no. 4 armed with stick,accused no. 5 armed with bat like sticks, accused no. 6armed with Danti, accused nos. 7 and 8 armed withDhariyas. She also deposed that accused no. 1 KantijiChanduji gave a Dhariya blow on the head of Becharji andwhen Becharji''s son Sendhaji and Maniben shouted for helpall rushed there. They included the witnesses Jivanjiand Shardaben. Accused no. 1 gave two Dhariya blows tohis nephew Jivanji, accused no. 2 gave two Dhariya blowson the leg of his nephew Jivanji. Accused no. 2 gaveDhariya blow on the head of his nephew Jivan, accused no.7 Jivaji Lilaji gave blow of blunt portion of (edge)Dhariya to his nephew Jivanji and when she was alsorunning back to her home accused Punjaji Lakhaji gavereverse blow of Danti on the left hand of the witness andaccused no. 4 Amratji gave stick blow on the back of thewitness. Accused no. 5 Khodaji also gave the blows ofbat like stick on the knee of the witness. Accused no.7 Jivanji Lilaji gave Dhariya blow on the head of thewitness. She fell down on the ground nearby the wall ofher house and was admitted to the Civil Hospital as anindoor patient where she was kept for around 25 days.Reference has been made to her cross-examination withregard to the location/site of the place of incident.There she has admitted that the house of Becharji(deceased) and the house of accused Punjaji Lakhaji areadjoining houses. She admitted that police did notinterrogate her, but the doctor interrogated her. Shewas unconscious when she was first taken to Adalaj, butwhen she was examined at Adalaj by the doctor, sheregained some consciousness. She admitted that she didnot narrate that she was hurt with Danti and bat likestick. She has also stated in her cross-examination thatall the accused persons had launched the assault onBecharji when she reached at the place of incident andwhen she reached there four of the accused personsstarted beating her and three of the accused personsstarted beating her nephew Jivan. She has admitted thatshe could not recollect who gave blow/s to Sharda. Sheadmitted that she was for the first time stating that shewas hurt when she reached nearby her house and that shefell down there. She denied the suggestion that thequarrel ensued nearby the hosue of Punjaji (houseadjoining the house of Becharji). She also denied thesuggestion that persons of the complainant party firstwent to the place near the house of accused Punjaji andthere the incident occurred while asserting that theincident occurred in the open space nearby the house ofBecharji Ravaji (since deceased). This is in short theevidence of this female injured eye witness. It wouldclearly appear from this evidence that the incidentoccurred nearby the house of deceased Becharji Ravaji.The broad observations of the evidence of this witnesswould remain the same as those set out while dealing withthe evidence of the other eye witnesses. She has beencorroborated by injury certificate exh. 32.

Reference then has been made to the oral evidenceof P.W. 11 Jivanji Becharji, ex. 68. He has alsorevealed the facts broadly appearing in the prosecutionstory noted hereinabove. However, reference has beenmade to different cause with regard to Jagaji Juhajialleged to have cut a joke at the daughter of accusedBabuji Lilaji resulting into quarrel between the twoparties. It has been submitted that this cause is acause different from the cause which has been set out bythe complainant and appearing also in the F.I.R.However, in his cross- examination the omissions withregard to this case have been brougt on record. Anothercause which this witness has given is with regard toseparation of the families and one field known asThikariyu Vadiyu field going to the share of complainantparty, resulting into the enmity in the minds of theaccused party. This witness has also given the causewith regard to activity of preparing liquor attributed toaccused no. 1 Kantiji Chanduji and activity of attendingto the business of liquor of Kantiji Chanduji attributedto accused Punjaji Lakhaji. The witness has deposed thatPunjaji was hurling abuses after consuming liquor and,therefore, his father Becharji had an occasion to warnthe concerned accused person. That is how the incidenthas been introduced by the prosecution in the evidence ofthis witness. It is no-doubt true that omissions withregard to all the aforesaid causes have been brought onrecord in para. 8 of his cross- examination. However,what is important to be noticed is that the accusedpersons had initiated the assault at around 5 O''clock inthe evening of 1/10/1989 as per the facts of the incidentappearing in the prosecution story. The witness has alsoreferred to the injuries caused to him. He has deposedthat accused no. 1 Kantiji Chanduji had given him twoDhariya blows on his leg and accused no. 2 Maganji gavea Dhariya blow on his head. While accused no. 7 JivanjiLilaji was giving Dhariya blows to this witness, theblunt portion of Dhariya had struck on his left shoulder.He has also deposed that accused nos. 1, 2 and 7 causedhim blunt injuries. In his cross-examination he hasadmitted that he informed the medical officer at Adalajthat he was injured with Dhariya blows and had alsosustained blunt injuries when he had an occasion to givehis statement before the police. Then there iscross-examination with regard to the place of incidentsimilar in nature to the previous witnesses. The witnesshas denied all these suggestions. He has finally deniedthe suggestion that persons of the complainant party hadassembled near the house of accused Punjaji Lakhaji andthat they started launching assault on the accused party.Same would be the observations in this respect whiledealing with the submissions made on behalf of theaccused persons.

Maniben, daughter of Juhaji, P.W. 12, exh. 72has also been examined as the injured eye witness. Herhusband Becharji died as a result of the head injurysustained during the course of this incident. She hasalso introduced the story while setting out the reasonswhy the two families had the occasion to get separatedand the activities attributed to accused no. 6 andaccused no.1. She has deposed that when the assault waslaunched on her husband, he had an occasion to shout forhelp, with the result that her son Sendhaji had also theoccasion to shout for help. Her son Jivanji, her eldestdaugter in law Shardaben, her younger brother''s wifeChanchiben rushed to the place of incident, but beforeany help could be rendered accused no. 1 KantijiChanduji had already given Dhariya blow with force on thehead of her husband. She has also described the incidentwith regard to who gave blows to whom at the time ofincident. She has deposed that accused no. 3 BabujiLilaji gave blow of iron rod on her head and when she wasabout to turn back, accused no. 8 Chaturji Chhotaji gaveDhariya blow on her back. When she sat down accused no.8 gave reverse blow of Dhariya on her back. Her son wentto the village and called two rickshaws. First they wentto Adalaj police station from where they were sent toAdalaj hospital. She was first treated in Adalajhospital and then in Civil Hospital at Ahmedabad. Itmight be noted at this stage that this witness had theoccasion to give her dying declaration before theExecutive Magistrate in the Civil Hospital at Amedabad,but since she survived, she was examined as the witness.In her cross-examination her statements/omissions fromthe dying declaration have been confronted to her.Accordingly she admitted that she stated before theExecutive Magistrate that there was enmity between thetwo parties as the persons of the complainant party didnot go to attend the marriage occasion at the place ofaccused party and keeping such enmity in mind accusedBabuji Lilaji gave blow of iron rod on her head and shewas also given blow of Danti on her back. She hasexplained that whatever she could recollect amidst herinjured state of health, she stated before the ExecutiveMagistrate. Reference in this connection might be madeto a decision of the Hon''ble Supreme Court in the case of Maqsoodan and Others Vs. State of Uttar Pradesh, , where it has been observed that broad account of theincident in a previous dying declaration in expectationof death might corroborate the ocular accountof theconcerned witness who has survived. In the present caseit has surfaced in the cross-examination of this witnessitself that the incident in the particular manner hadoccurred and that she was injured during the course ofthe incident. She has set out broad facts with regardthereto. Thus, although there are some minute omissionsvis-a-vis her earlier dying declaration exh. 45, thebroad narration of the incident by her before theExecutive Magistrate lends reasonable corroboration to her oral testimony. Even in Maqsoodan''s case (supra) ithas been held that improvements and variations in earlierand latter statements by themselves cannot be said to besufficient to hold the testimony to be infirm. There isalso an effort made with regard to point out somedifferent scene of offence from the one set up by theprosecution. However, the witness has categoricallydenied the suggestions with regard to initiation of theassault by the complainant party as suggested in hercross-examination.

Shardaben Jivanji, P.W. 13, exh. 73 has alsobeen examined as one of the injured eye witnesses. Ithas been submitted that she could not be witness to theincident and in the alternative it has been submittedthat in her evidence there is a reference to exchange ofwords between the two parties. It might be noted fromher evidence that the house where she has been residingis at a distance of around 50 ft. from the house of hisfather-in-law, deceased Becharji. She has also assertedthat when she was at a distance of 4 to 5 steps accusedno. 1 gave a Dhariya blow on the head of hisfather-in-law. Even in her cross- examination she hasstated that accused no. 1 gave Dhariya blow on the headof her father-in-law. Having gone through the entireevidence of this witness it would be difficult to acceptthat she cannot be an eye witness to the incident. Infact she is one of the injured eye witnesses. She hastestified that accused Maganji Lilaji gave a Dhariya blowon her back and that there was bleeding and the injuryrequired suturing She has also testified that accused no.6 Punjaji Lakhaji gave reverse Danti blow on the wristportion of the witness and accused no. 5 Khodaji Dhulajihad given bat like stick blow on her hand. The injurycertificate in respect of the injuries sustained by thiswitness appears at exh. 28. It says that the witnesshad incised wound 1" x 1/3" x 1/4" on the back of rightshoulder and swelling and tenderness on the base of leftand index finger. There is no suggestion that theinjuries were self inflicted and even if such asuggestion was made, it would be difficult to believethat this female witness would have ever inflictedinjuries on her own self. Location of the first injuryabsolutely rules out such an idea. It would, therefore,clearly appear that ocular account of this witness getssupport from medical certificate exh.28.Thesubmission counter to this conclusion could hardly beaccepted. It is no-doubt true that some exchange ofwords having taken place at the time of incident betweenthe two parties has surfaced in the evidence of thiswitness. However, when an assault has been launched byso many persons, it would be natural for the persons ofthe complainant party to speak out something when theywere attacked. Therefore, admission with regard toexchange of words at the time of such an incident wouldnot take out the matter from the initiation of theassault by the accused party.

Having gone through the evidence of aforesaidinjured eye witnesses it has clearly appeared to us thatthe ocular account of the incident in question is quiteconsistent excluding the minor variations, mostly in theform of omissions. In fact such minor omissions wouldmake the ocular account more natural. It has to be bornein mind that the witnesses are rustic villagers mainlysemiliterate or illiterate and they were in the hands ofthe expert cross-examiners. Even then consistency on thebroad facts of the incident as appearing in theirevidence would speak volume about bringing to light thefacts regarding the incident and the manner in which theincident occurred. In our considered opinion, the Ld.Addl. Sessions Judge who had the occasion to observe thewitnesses giving evidence has rightly accepted theirevidence for rendering the conviction to the accusedpersons. It has been submitted that the prosecutionwitnesses have come out with one or the other motive onthe part of the accused persons which would not be inconsonance with the prosecution story speaking about onemotive flowing from the incident which occurred on thepenultimate day. It is not necessary for formation ofcommon object that there should be one single motive orthat there should be one single occasion to precede.There might be more than one incidents which might haveresulted in or agravated the enmity between the twoparties. There might be one or more motives which mightprovide killing of a person belonging to the complainantparty. None the less the facts of the incident inquestion as spoken to by the aforesaid witnesses clearlyprove beyond reasonable doubt initiation and launching ofthe assault with deadly weapons by the accused persons.

It has been submitted on behalf of the accusedpersons that there was a find of blood from nearby thehouse of accused no. 1 and the prosecution has notexplained this find of blood. The sketches exhs. 38 and81 have been referred to. The detailed evidence inrespect of the place of incident has also been referredto from the oral testimony of the aforesaid witnesses andthe Panch witnesses. It would appear that on one side ofthe narrow way (Neliya) there are the houses of Babuji,Becharji (since deceased), Punjajji, Ranchhodji, Mangajiand others; whereas on the other side of the said narrowpassage there are the houses of the accused no.1 KantijiChanduji, Shankarji and others. Beyond the place wherehouse of accused no. 1 Kantiji Chanduji is situatedthere is a dead end. It is no-doubt true that bloodsamples were taken from the earthern portion opposite thehouse of deceased Becharji and accused Punjaji as alsofrom nearby the house of accused no.1. The prosecutionwitnesses have tried to explain how blood might havefallen on to the ground nearby said place. It is not the case of the defence that there was any incident havingtaken place nearby the house of accused no.1. We had anoccasion to ascertain from the report of the ForensicScience Laboratory as also the Muddamal articles thatfind of blood from nearby the house of accused no. 1cannot be connected with the blood group of deceasedBecharji. In fact it can be connected with the bloodgroup of one of the two female injured witnesses who had''A'' blood group. The find of blood from nearby the houseof deceased Becharji is tallying with the blood group ofdeceased Becharji (blood group ''O''). That wouldapparently fix the place of incident (scene of offence)nearby the house of deceased Becharji. To this, it hasbeen submitted that some brick bats were also found lyingnearby the house of accused no. 6 Punjaji Lakhaji. Itmight be recollected that houses of deceased Becharji andaccused Punjaji are adjoining. The place from where theblood stained earth was noticed is not exactly oppositethe house of accused Punjaji Lakhaji. It is opposite oneside of house of Becharji. It would, therefore, clearlyappear that existence of brick bats nearby the house ofPunjaji Lakhaji (accused no. 6) might have cleverly beenshown for taking advantage of probable defence that therewas an assault with brick bats on the house of PunjajiLakhaji. However, this defence has not probablised ifthe facts of the incident are noticed not only from theocular account of the witnesses but also from the otherwitnesses as also documents referred to hereinabove.Very important circumstance which would meritconsideration at this stage is that no person out of thecomplainant party is alleged to have been armed with anyweapon, whereas all the accused persons were armed withdeadly weapons. It is not the defence that all theaccused persons had assembled in the house of accused no.6 Punjaji Lakhaji so that they had come out of the houseto retaliate throwing of brick bats on the house ofaccused no.6. Thus, the submission that possibility ofcomplainant party having initiated the assault bythrowing brick-bats cannot be accepted as the same by nostretch of imagination gets probablised from any portionof the prosecution evidence. Thus, mere appearance ofbrick bats near the house of accused no. 6 PunjajiLakhaji will take the defence neither here nor there. Inrespect of the place from where the samples of bloodstained earth were taken as well as the place of incidentthe Ld. counsel appearing for the accused has taken usthrough the evidence of Panch witnesses and otherwitnesses. The Ld. Addl. Sessions Judge has at lengthdealt with the evidence and nothing substantial could besuggested so as to shake the conclusions drawn by the Ld.Addl. Sessions Judge from this evidence. Evidence ofthe Investigating Officer Naginbhai Kalidas Barot, P.W.17, exh. 80 has been read before this Court. Evidenceof Shankarji Ramaji, P.W. 14, exh. 74 has also beenread before us. We are unable to endorse the submissionthat reading the evidence as a whole, prosecution hasfailed to establish genesis of the incident and thatpossibility of implicating more than one members of thefamilies of accused party is not ruled out. It hasalternatively been submitted that joint/constructiveliability arising u/S. 149 of the IPC has also not beenestablished and, therefore, at best the concerned accusedpersons might be held guilty of the offences attributableto their respective overt acts. It might be reiteratedthat there might be more than one incidents which mighthave resulted in the enmity between the two parties.There might be more than one reason which might have ledformation of common object at the time of incident.Simply because one or the other witness had an occasionto canvass one or the other cause, the proximate causeabout the incident which occurred on the penultimate dayas aforesaid would merit consideration as the same hasbeen spoken to by the witnesses as also the same hasappeared broadly in the F.I.R. exh. 47.]

On behalf of the accused persons reference hasbeen made to a number of decisions in support of thesubmissions that this is a case where prosecutionevidence will fall short of bringing home constructiveliability as envisaged by section 141 punishable u/Ss. 147 to 149 of the IPC. It has, therefore, been submittedthat principle of minimum liability should be invoked for the respective accused. Reference in this connection hasbeen made firstly to the case of Surinder Kumar v. UnionTerritory, Chandigarh reported in AIR 1989 S.C. 1094.That was a case of quarrel that ensued between the twoparties, as a result of which number of wounds werecaused during the occurrence resulting into death. Inthe background of such facts it has been observed thatthey are on a sudden quarrel and when a person in theheat of the moment picks up a weapon which is handy andcauses injuries, one of which proves fatal, he would beentitled to the benefit of exception 4 to section 300 ofthe IPC and that appearance of more than one injuries tothe deceased could not be said to have decisiveconsequence for holding that the accused acted in a cruelmanner. In the present case, it has not appeared thatthe accused persons had an occasion to lift up theweapons which were handy or that they acted during thecourse of any such quarrel. This decision can hardlyhave any application to the facts of the present case.

Then there is a reference to a decision in the case of State of Karnataka Vs. Siddappa Bansanagouda Patil and another, . In the background ofthe finding that there was no clear evidence as to howoccurrence originated and as to presence of blood onfloor inside the house of the accused and on thresholdindicating that the deceased received injuries in thehouse and then came out on road and fell down, it hasbeen observed that there was likelihood of suppression ofgenesis and origin of occurrence by the prosecution.Under such circumstances the accused was held to beliable u/S. 304 part II and not u/S. 302. We have gonethrough the facts of the case before the Apex Court andwe find that there is an ocean of difference with regardto the origin and genesis of the incident in so far asthe present case is concerned.

In Hem Raj Vs. The State (Delhi Administration), charge was u/S. 302 readwith section 34 of the IPC. On appreciation of the factsqua the evidence it was found that one of the accusedpersons alone inflicted injuries on the deceased andparticipation of the remaining accused was disbelieved.In that background it has been held that accusedinflicting injuries on deceased could alone be convicted.However, there are marked distinguishing features betweenthe case in hand and this decision as can be seen fromthe facts in both the cases.

On behalf of the prosecution Ld.A.P.P.referred to State of A.P. etc. v. Thakkidiram Reddy &ors. reported in 1998 S.A.R. 640. Paras.18, 19 and 20 of the citation dealt with charge ofsection 149 of the IPC. We would like to reproduce whatthe Apex Court has said in paras. 19 and 20 as under :-

"19. The next question that requires an answer is what was the common object of the unlawful assembly. Both the learned counsel appearing for the accused submitted that considering the nature of the injuries inflicted by the miscreants upon the deceased, it could not be said that their common object was to commit the murder. According to the learned counsel, even if the entire prosecution case was believed the only inference that could be drawn was that the accused persons were guilty only of the offence u/s 325 for causing grievous hurt with blunt weapons, read with Section 149 IPC. To appreciate this contention raised on behalf of the appellants it will be necessary to refer to the injuries sustained by the deceased. PW 12, who held the post mortem examination upon the deceased stated that he found the following external injuries on his person :

Laceration left cheek 3" x 1"x1/2".

Abrasion left shoulder 2"x1"

Laceration right leg 1"x1"x1/2"

Three abrasions on the left leg each 1"x1"

Laceration right frontal area 5"x 1/2" x 1/2"

Laceration parietal area 6" x 1" x 1"

Laceration occipital area 4" x 1/2" x 1/2"

Abrasion left lower chest 1" x 1".

So far as internal injuries are concerned he stated that on examination of the skull, he found fracture on the right temporal bone, parietal bone and occipital bone and the total length of the fracture was 7". He further stated that subarachnoid haemorrhage was present. He opined that the head injury alone was sufficient to cause the death of the deceased.

If the injuries were to be considered in isolation we might have persuaded ourselves to give a second thought to the above submission of the learned counsel but when the injuries are considered in the context of the facts, that there was bitter enmity between the parties, that at an unearthly hour the miscreants armed with various weapons like crow-bars and sticks trespassed into the house of the deceased after breaking upon the door, dragged him out of the bed room to the front yard and beat him to death, and that whoever came to his rescue was beaten up, the only conclusion that can be drawn was that they formed the unlawful assembly with the common object of committing murder of the deceased and as soon as their objective was achieved they left the place."

That is exactly what we have to observe in the presentcase that the injuries cannot be viewed in isolation.The launching of assault with deadly weapons by more thanfive persons resulting into deat of te assaulted person,as in the present case, would clearly provide a commonobject of causing death of the person with whom thepersons of the accused party had grievance or enmity.State of Orissa v. Arjun Das Agarwal & ors reported in1999 S.A.R. (Criminal) 530 has been canvassed also forapplication of section 149 or section 34 alongwithsection 302 of the IPC in a given case. The observationthat when an accused is charged u/S. 302/149 IPC mightbe convicted u/S. 302 read with section 34 of the IPCwill be out of context in the facts of the present case.This decision, therefore, needs no elaboration. Lastdecision which has been referred to by the Ld. A.P.P.is in the case of Mahesh Balmiki @ Munna v. State ofMadhya Pradesh reported in 1999 S.A.R. 578.Reference has been made to this decision in the contextof the argument that there was a single blow whichresulted into the death of Becharji Ravaji. Repellingthat submission this decision has been canvassed for theproposition that there cannot be a general propositionthat in all cases where there is single blow section 302 would not be attracted and section 304 might beattracted. In our opinion this is also out of contextinasmuch as Dhariya blow given on the head of deceasedBechharji has resulted into the death and in the facts ofthe case there is no question of applying any exceptionto section 300 of the IPC so as to bring the case withinthe ambit of section 304 of the IPC.

In the above view of the present case and bearingin mind the overwhelming evidence led by the prosecution,there is no other alternative except to uphold thefindings of the Ld. Addl. Sessions Judge and ultimateconviction and sentence under the aforesaid provisions ofthe IPC.

In the result, this appeal is dismissed.