Manubhai Chimanlal Senma (Senwa) and Others vs State of Gujarat

M.B. Shah and K.G. Balakrishnan, JJ.—Being aggrieved and dissatisfied by the judgment and order dated 11.11.1993 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 555 of 1988, confirming the judgment and order passed by the Additional City Sessions Judge, 11th Court, Ahmedabad in Sessions Case No. 284 of 1987, the accused have preferred this appeal. Appellant No. 1 was convicted for the offence punishable u/s 302, I.P.C. and Appellant Nos. 2 and 3 were convicted for the offences punishable u/s 302 read with Section 34, I.P.C. Appellant No. 1 was also convicted for the offence punishable u/s 135 of the Bombay Police Act.

It is the prosecution case that on 2.10.1987 at about 6.20 p.m., the deceased, Kantilal returned from his duty from Shardabai Hospital to his home. When his wife P.W. 2 Savita, was going to serve food to him, Appellant No. 1 came near their house and called him out. It is also the prosecution version that at that time, Appellant Nos. 2 and 3 were also standing near the house of the deceased. When the deceased came out of the house, Appellant Nos. 2 and 3 caught hold of the deceased and Appellant No. 1 gave a knife blow to the deceased. Appellant No. 1 tried to give another blow but that blow landed on the left wrist of the deceased. On receiving the injury, the deceased Kantilal fell down and bled profusely. P.W. 2 pressed her ''saree'' on the injuries received by the deceased and removed him to the Civil Hospital in a rickshaw, where he succumbed to his injuries. On the basis of the telephone Vardhi received from the head constable on duty from the hospital, P.W. 12, P.S.I. Baldev Singh went to the hospital at 7.45 p.m. and recorded F.I.R. of P.W. 2. After recording the F.I.R., he went to the scene of the offence, prepared panchanama, collected blood sample and recorded the statement of witnesses including Hemanginiben Kantilal P.W. 9. On the basis of the information, he went to the residence of the accused but the doors were locked. Thereafter, the accused were found near Dariapur Gate and from there, they were brought to Dariapur Police Station. At the Dariapur Police Station panchanama, Ext. 43 was prepared in the presence of two witnesses. As per the said panchanama, the bush shirt worn by A1 was torn on the right sleeve and right hand collar all over. The torn portion of the bush shirt was bloodstained. With regard to A2 and A3, it was specifically stated that neither were there bloodstains on their clothes nor any injury was found on their persons. In the said panchanama, it has been specifically mentioned that on examining the person of A1, it was found that there were bruises on his neck and chest and the skin had come out and there were fresh injuries. For these injuries, A1 stated that the same injuries were caused to him due to the scuffle with the injured, Kantilal Manilal.

It is also the prosecution version that at about midnight, 00.30 hours, A1 had lodged F.I.R. Ext. 59 stating that he was working as a peon in the Water Department of the Municipal Corporation. As the deceased was abusing him, he asked him to stop. On that, deceased got excited and caught hold of his bush shirt, pulled it and then tussle/ quarrel between them ensued. In the process, he suffered injuries. At that time, Jitendra, A2, and Mahesh, A3 came there, intervened and freed him. Thereafter, the accused were arrested.

On the next morning, A1 was sent to the Civil Hospital and was examined by P.W. 1, Dr. Satish M. Pandya, Ext. 8. He found an injury on the left side of the breast which was a 3 cm. bruise. He had recorded the history of the injury to the effect that during the scuffle, A1 received it. After carrying out further investigation, the accused were charge-sheeted, tried and convicted as stated above.

At the time of hearing of the appeal, the learned Counsel appearing for the Appellants fairly submitted that he was not challenging the conviction of Appellant No. 1 but submitted that the conviction of Appellant Nos. 2 and 3 for the offence punishable u/s 302 read with Section 34, I.P.C. is on the face of it erroneous. For this purpose, he has taken us through the evidence of P.W. 2 and P.W. 9 upon which the prosecution has placed reliance.

Considering the facts on record, in our view, the High Court as well as the Additional Sessions Judge have rightly convicted A1 on the basis of evidence of P.W. 2 and P.W. 9 and on recovery of bloodstained knife at his instance. However, if the evidence of P.W. 2 and P.W. 9 is considered with other evidence on record, it is not sufficient to connect A2 and A3 with the crime beyond reasonable doubt.

P.W. 2 widow and P.W. 9 - daughter of deceased specifically stated before the Court that Appellant No. 1 came near their house, called the deceased out and when the deceased went, A2 and A3 caught hold of him and at that time A1 gave a knife blow. A1 tried to give second knife blow, which was warded off by the deceased and, therefore, it landed on the left hand wrist of the deceased. With regard to the alleged overt act on the part of A2 and A3, we have to test the prosecution version on the basis of the complaint Ext. 59 filed by A1 immediately before his arrest. A1 has specifically narrated in the F.I.R. that there was a scuffle between him and the deceased. During the scuffle, he got injuries. Injury to A1 is proved by P.W. 1. If, during that scuffle, A2 and A3 had intervened, and tried to hold the deceased or separate A1 and the deceased, it cannot be said that A2 and A3 were sharing any common intention of causing any injury to the deceased. Admittedly, accused and the witnesses are relatives. It is the prosecution version that A1 to A3 were using the open space in front of the house of the deceased for drinking or gambling purposes. Because of this, 15 days prior to the date of the incident, there was a quarrel between A1 and the deceased. In that set of circumstances, the presence of A2 and A3 at the scene of offence cannot be said for causing any injury to the deceased. It is also to be stated that there is some force in the contention of the learned Counsel for the Appellants that if in reality the deceased was caught by A2 and A3, then it would have been difficult for the deceased to ward off the second blow. But this would be a matter of conjecture as it depends upon the circumstances and force used by the deceased at the relevant time.

Further, A2 and A3 were unarmed. If they had gone along with A1 to pick up quarrel with the deceased, it is quite probable that they would not go there unarmed. It is the say of P.W. 2 and P.W. 9 that only A1 came to their house and shouted that Kanti should come out. However, the prosecution has not examined other independent witnesses whose statements were recorded by the I.O. P.W. 2 and P.W. 9 have not stated anything about the scuffle between A1 and the deceased. But in view of Exts. 59, 43 and the medical evidence, said version proved by the prosecution cannot be rejected. In the circumstances, it would be difficult to draw an inference that A2 and A3 shared any common intention with A1, particularly, when medical evidence discloses only one knife blow to the deceased.

In the result, the appeal filed by A1, Manubhai Chimanlal Senma (Senwa) is dismissed. The appeal filed by A2, Jitendra Vithalbhai Senma (Senwa) and A3, Mahesh Vithalbai Senma (Senwa) is allowed and their conviction for the offence punishable u/s 302 read with Section 34 is quashed and set aside. Their bail bonds stand cancelled.