State of Gujarat vs Chauhan Mulsinh Cheharsinh

J.R. Vora, J.

1.Both these Appeals have been preferred against an order and judgment delivered by Additional Sessions Judge, Mehsana, on 22.2.1996, in

Session Case No. 159 of 1995.

13 accused came to be tried by learned Additional Sessions Judge, Mehsana, in the above said Session Case for the charges levelled against

them under Sections 147, 148, 302 read with Section 149, Section 326 read with Section 149, Section 323 read with Section 149, Section 504

of the IPC and u/s 135 of the Bombay Police Act.

The incident in question occurred at village Ranchhodpura, Taluka Vijapur, District Mehsana on11.6.1995 at about 20.30 hours. Complaint

came to be filed by PW-9 Kantaben, widow of Dinusinh before Police Inspector Vijapur. Accordingly, the family of complainant Kantaben along

with her husband Dinusinh who is deceased in this case were residing in the said village and the family of the accused also resided in the same

village. Accused and complainant party belongs to same family. Between the complainant side and the accused family, there was enmity in respect

of sending invitation to some family members on an occasion of after death ceremony of one Hajursinh Ratansinh, uncle of the deceased. On the

day of the incident, some of the accused and their family members i.e. Maniba Vechatsinh, Kirtisinh Balusinh and Lalsinh Mulsinh started abusing

deceased Dinusinh, husband of the complainant in the earlier part of the day, but the deceased did not respond to it and went to his field to bring

mangoes and returned to his house at about 20.00 hours. After putting the mangoes brought from the field in the house, deceased Dinusinh went to

the village for having masala from pan shop. He wanted to have bath and, therefore warm water was prepared by complainant Kantaben and

hence Kantaben followed deceased Dinusinh for calling him for a bath. At the time, she noticed that accused No.11 Chauhan Jankba Balusinh and

accused No. 10 Chauhan Ramilaben Balusinh uttering abuses started stone pelting on Dinusinh. At that time, accused No.1 Chauhan Mulsinh

Cheharsinh with a sword, accused No.2 Chauhan Dhulsingh Chersingh with dharia, accused No.3 Chauhan Kiritsinh Balusinh with spear, accused

No.4 Madansinh Vecharsinh, accused No.5 Chauhan Jitusinh Vechatsinh, accused No.6 Chauhan Lalsinh Mulsinh, accused No.13 Chauhan

Udesinh Hamirsinh, all with sticks in their hands ran towards Dinusinh. Accused No.7 Chauhan Takhaba Mulsinh and accused No.9 Chauhan

Bachuba also came running to the spot exhorting abuses and sticks in their hands. On seeing these persons, deceased Dinusinh to save his life ran

towards a heap of dung and babul tree on road, however he fell down near the heap of dung. All the above accused surrounded the deceased and

accused No.1 Mulsinh Cheharsinh inflicted one sword blow on the neck of the deceased. On hearing this commotion, Laxmansinh, PW-10,

younger brother of the deceased reached to the spot, to whom accused No.1 Mulsinh Cheharsinh inflicted a sword blow on his back. PW-12

Bhikusinh Hajursinh who resided near the scene of offence and one Kanaksinh also reached at the place of offence to rescue Dinusinh and,

therefore, all the 13 accused ran away. PW-13 Jitendrasinh Dalpatsinh was also present there who brought a rickshaw immediately at the spot. At

that time, accused No.13 Udesinh Hamirsinh wielded big iron scissor on the wind screen of rickshaw and wind screen was broken. Deceased was

taken to Government Hospital at Vijapur where he was declared dead. The complaint came to be recorded as above said before PW-14

Uderajsinh Chandrabhansinh Thakur, PI, Vijapur Police Station at about 22.00 hours. Through yadi from the hospital, IO came to know that

Dinusinh had died and, therefore, after recording the complaint an offence was registered for the above said charges and investigation was carried

on. As a result of the investigation, charge sheet for the above said offences came to be filed before the learned Judicial Magistrate, First Class,

Vijapur, who in turn committed the case to the Court of Sessions at Mehsana which was registered as above numbered Session Case No. 159 of

1995. Vide Exh. 24 a charge was framed on5.12.1995 against all the 13 accused by learned Additional Sessions Judge, Mehsana, to which all the

accused pleaded not guilty and hence the prosecution examined 14 witnesses to prove its case and produced documentary evidence. After

recording of the statements of the accused as regards evidence, in which the case of the accused was of total denial. Learned Additional Sessions

Judge heard learned APP as well as learned Advocate for the accused and also took into consideration memorandum of written arguments placed

by learned Advocate for the defence on record.

After hearing both the parties at length the learned Additional Sessions Judge vide his order and judgment impugned in these Appeals came to

the following conclusions :

(i) All the accused were acquitted for the charges levelled against them under Sections 147, 148, 149, 326 of the IPC and u/s 135 of the Bombay

Police Act.

(ii) Accused No.3 Chauhan Kiritsinh Balusinh, accused No.4 Chauhan Madansinh Vecharsih, accused No.5 Chauhan Jitusinh Vecharsinh,

accused No.6 Chauhan Lalsinh Mulsinh, accused No.7 Chauhan Tekhba, W/o Mulsinh, accused No.8 Chauhan Taraben, W/o Dhulsinh, accused

No.9 Chauhan Bachuba, W/o Balusinh, accused No.10 Chauhan Ramilaben Balusinh, accused No.11 Chauhan Janakba Balusinh, accused

No.12 Chauhan Maniba, W/o Vecharsinh and accused No.13 Chauhan Udesinh Hamirsinh, were acquitted of the charges levelled against them

u/s 302 read with Section 149 of the IPC.

(iii) Accused No.1 Chauhan Mulsinh Cheharsinh, accused No.2 Chauhan Dhulsinh Charsinh, accused No.3 Chauhan Kiritsinh Balusinh, accused

No.4 Chauhan Madansinh Vecharsih, accused No.5 Chauhan Jitusinh Vecharsinh, accused No.6 Chauhan Lalsinh Mulsinh, accused No.7

Chauhan Tekhba, W/o Mulsinh, accused No.8 Chauhan Taraben, W/o Dhulsinh, accused No.9 Chauhan Bachuba, W/o Balusinh and accused

No.12 Chauhan Maniba, W/o Vecharsinh and accused No.13 Chauhan Udesinh Hamirsinh were acquitted of the charges levelled against them

under Sections 504 and 336 of the IPC.

(iv) Accused No.1 Chauhan Mulsinh Cheharsinh, accused No.2 Chauhan Dhulsinh Charsinh, accused No.3 Chauhan Kiritsinh Balusinh, accused

No.4 Chauhan Madansinh Vecharsih, accused No.5 Chauhan Jitusinh Vecharsinh, accused No.6 Chauhan Lalsinh Mulsinh, accused No.7

Chauhan Tekhba, W/o Mulsinh, accused No.8 Chauhan Taraben, W/o Dhulsinh, accused No.9 Chauhan Bachuba, W/o Balusinh, accused No.10

Chauhan Ramilaben Balusinh, accused No.11 Chauhan Janakba Balusinh, accused No.12 Chauhan Maniba, W/o Vecharsinh were acquitted for

the charges levelled against them u/s 323 read with Section 149 of the IPC.

(v) Accused No.1 Chauhan Mulsinh Cheharsinh and accused No.2 Chauhan Dhulsinh Chersinh were found guilty in individual capacity for the

charges levelled against them u/s 302 of the IPC, and each of accused No.1 and accused No.2 was sentenced to life imprisonment and fine of Rs.

50,000/-, in default to undergo rigorous imprisonment of five years.

(vi) In addition to that, accused No.1 Chauhan Mulsinh Cheharsinh was also found guilty for the charges u/s 324 of the IPC in his individual

capacity and he was sentenced to undergo three years rigorous imprisonment and fine of Rs. 10,000/-, in default to undergo six months rigorous

imprisonment.

(vii) Learned Additional Sessions Judge also came to the conclusion that the sentence awarded to accused No.1 Mulsinh Cheharsinh for the

charges proved u/s 302 and for the charges proved against him u/s 324 of the IPC shall run consecutively and not concurrently.

(viii) Accused No.10 Chauhan Ramilaben Balusinh and accused No.11 Chauhan Janakba Balusinh each were found guilty by learned Additional

Sessions Judge for the charges under sections 504 and 336 of the IPC. Each of the accused No. 10 and accusedNo.11 was sentenced to undergo

imprisonment of two years and fine of Rs. 10,000/- in default to undergo three months rigorous imprisonment for the charges proved against them

u/s 504 of IPC while each of the accused No. 10 and 11 was sentenced by learned Additional Sessions Judge to undergo three months rigorous

imprisonment and fine of Rs. 250/- in default to undergo 15 days rigorous imprisonment for the charge proved against them u/s 336 of the IPC.

(ix) Learned Additional Sessions Judge in this respect also came to the conclusion that the sentence awarded to accused No.10 Chauhan

Ramilaben Balusinh and accused No.11 Chauhan Janakba Balusinh for the charges proved against them under Sections 504 and 336 of the IPC

shall have to be served consecutively and not concurrently.

(x) While accused No.13 Chauhan Udesinh Hamirsinh was found guilty for the charges u/s 323 in his individual capacity and was sentenced to

undergo rigorous imprisonment of one year and fine of Rs. 1,000/in default to undergo rigorous imprisonment of three months.

(xi) Learned Trial Judge also came to the conclusion that the amount of fine if paid or whatever amount of fine is paid, shall be paid to the

complainant Kantaben, as compensation u/s 357 of the Criminal Procedure Code.

(xii) Accused No.1 Chauhan Mulsinh Cheharsinh, accused No.2 Chauhan Dhulsinh Chersinh, accused No.11 Chauhan Janakba Balusinh and

accused No.13 Chauhan Udesinh Hamirsinh were given benefit of set off for the period for which they remained under trial prisoners.

(xiii) Muddamal articles No. 1 to 4 were ordered to be destroyed and muddamal article No.5 which was coin of 25 paise was confiscated.

Being aggrieved and dissatisfied with the above said judgment and order of learned Additional Sessions Judge, the State of Gujarat filed

Criminal Appeal No. 337 of 1996 against all the accused for their acquittal for the charges levelled against them under Sections 147, 148, 149 and

u/s 302 read with Section 149 and u/s 324 read with Section 149 of IPC. In short, the State filed Appeal against the order of acquittal passed by

the learned Additional Sessions Judge, Mehsana, as above said.

While accused No.1 Chauhan Mulsinh Chehersinh, accused No.2 Chauhan Dhulsinh Chehersinh, accused No.13 Chauhan Udesinh Hamirsinh,

accused No. 10 Chauhan Ramilaben Balusinh and accused No. 11 Chauhan Jankba Balusinh, preferred Criminal Appeal No. 169 of 1996 against

their respective conviction as awarded by the learned Additional Sessions Judge, as mentioned above. Both the appeals have arisen from the same

judgment and, therefore, were heard together and are decided by this common judgment.

Learned Senior Counsel Mr. M.R. Barot for the appellants in Criminal Appeal No. 169 of 1996 and for the respondents in Criminal Appeal

No. 337 of 1996 and learned APP Mr. H.M. Prachhak for respondent in Criminal Appeal No. 169 of 1996 and for the appellant in Criminal

Appeal No. 337 of 1996 were heard at length.

Before discussing the judgment and order in question and re-appreciating the evidence on record, it is necessary that the evidence on record be

looked into. The prosecution preferred to examine five eye witnesses of incident. One of them is widow of deceased Dinusinh who is complainant

Kantaben as PW-9 Exh. 71, PW-10 Exh. 73 brother of deceased Laxmansinh Amarsinh is also examined by the prosecution. Prosecution also

examined PW-12 Bhikusinh Hajursinh as PW-12 at Exh.79 and PW-13 Exh. 80 Jitendrasinh Dalpatsinh, who witnessed the incident were present

at the scene of offence. PW-13 brought rickshaw in which deceased Dinusinh was shifted to Government Hospital. All the eye witnesses have

stated that between the complainant party and the accused there was enmity on social issue which culminated into death of Dinusinh in the incident

which occurred on 11.6.1995 in the village Ranchhodpura near dung heap. All of them have stated that while deceased was going to have a pan

masala, accused No.10 Chauhan Ramilaben Balusinh and accused No.11 Chauhan Janakba Balusinh started giving abuses to Dinusinh and started

pelting stones on him and taking side of these two accused, accused No. 1 with sword, accused No.2 with dharia, accused No.3 with spear,

accused No.13 with iron scissors, accused Nos. 4, 5, 6, 7, 8 and 9 with sticks in their hands ran towards deceased Dinusinh with abuses and

uttering that kill him (Dinusinh). Deceased to save his life, ran towards the road but near dung heap he tumbled down and, therefore, all the

accused surrounded him and accused No.1 Mulsinh inflicted a sword blow on the neck of the deceased. Laxmansinh Amarsinh, PW-10, tried to

rescue his brother but accused No.1 Mulsinh also inflicted a sword blow on the back of Laxmansinh. PW-9 Kantaben was following the deceased

for calling him to have bath because warm water was ready. PW-10 Laxmansinh Amarsinh resides near the scene of incident and after taking

masala, according to PW-10, deceased came to his house and he noticed that accused Ramilaben Balusinh and Janakba Balusinh, accused Nos.

10 and 11 were abusing deceased and were pelting stones and he also witnessed the incident as above said. PW-10 Laxmansinh also stated that

accused No.13 Udesinh Hamirsinh inflicted one stick blow on his mother Manguben who also took treatment from the hospital. On the next day,

PW-10 also took treatment of the injury received by him in the incident on his back, from Vijapur Government Hospital. PW-12 Bhikusinh

Hajursinh was also at his residence and was doing some work connected to the agriculture and he noticed the incident that accused No. 10 and

accused No.11 started giving abuses to Dinusinh while he was passing through near the house of accused Nos. 10 and 11 and were giving abuses.

He also narrated that all the accused with the above said weapons in their hands chased the deceased. He also stated that accused No.1 Mulsinh

Cheharsinh inflicted sword blow on the neck of the deceased. Witness No.13 Jitendrasinh Dalpatsinh, Exh. 80 stated that he noticed that while

deceased was returning after taking pan masala near the house of accused Nos. 10 and 11, accused Nos. 10 and 11 started pelting stones

towards the deceased and complainant Kantaben was going after the deceased. Taking side of accused Nos. 10 and 11, all other other accused,

as said above, with the weapons, gathered and ran towards the deceased, who fell down and received injuries at the hands of accused No.1

Chauhan Mulsinh Cheharsinh by sword on neck. This witness brought the rickshaw and wind screen of which was broken by a blow given by

accused No. 13 Chauhan Udesinh Hamirsinh by scissors. Witness further stated that Manguben, mother of deceased Dinusinh was aged about 70

t0 75 years at the time of deposition and was bedridden. The defence cross-examined each of the eye witness at length. It appears that the attempt

of the defence was to bring on record that the injury which the deceased received was not possible by sword but possible by dharia. So far the

facts stated by the witnesses are concerned, the attempt of the defence to bring about contradictions or inconsistencies or such discrepancies to

disbelieve these five eye witnesses, fails. Dr. Dineshkumar Narhariprasad Barot, PW-I Exh.40 was examined by the prosecution, who conducted

postmortem of dead body of Dinusinh and postmortem note is placed at Exh. 49. He also examined injured witness Laxmanbhai and Manguben.

Dr. Dineshkumar, PW-1 deposed that on 11.6.1995 at about 9.30 at night he examined accused No.9 Bachuba, accused No. 12 Maniba,

accused No. 1 Mulsinh Cheharsinh, accused No.13 Udesinh Hamirsinh and each of the accused had simple injuries. In the history they stated that

they received injuries in a fight. The Doctor examined on 12.6.1995 at 7.25 a.m. PW-10 Laxmansinh and he had following injuries.

Incised wound at about 12 inch X 1/2 inch cm. from medial border at right scapular to middle at lateral surface at arm wound deep at the lateral

border at scapular, muscle deep and again deep at the middle at the arm bone deep other artse wound skin is cut.

In the opinion of Doctor this type of injuries are possible with sharp edge object and recovery is possible within 8 to 10 days if no complication

developed. He produced on record certificate at Exh.45. On the same day, he also examined Manguben Amarsinh at 7.50 a.m. and she had the

following injuries.

Bruise of about 8 cm x 2 cm on lateral surface at left thigh.

Abrasion at about 1/2 cm x 1/2 cam at lateral surface at left thigh.

In the opinion of PW-1 Doctor this type of injuries are possible with blunt hard object and recovery is possible within 5 to 7 days if no

complication developed. On that day i.e. 12.6.1995 at 8.45 a.m. dead body of Dinusinh was forwarded to him for postmortem by Police

Inspector, Vijapur. He conducted postmortem examination on the same day from 8.50 to 10.20 a.m. The deceased was aged about 25 years and

the deceased had the following external injuries.

Abrasion of about 2.5 mv/cm on left lumber region just 1/2 cm above the ant. sup. llioe

Pressure mark on anti-surface at left arm size at about 2 cm x 1/2 cm.

Pressure mark of about 5 cm x 1/2 cm on lateral side and left chest.

Incised wound at about 15 cm x 7 1/2 cm x 71/2 cm deep at the middle on the right side at neck starting anteriorly 6 cm posterior to sternum and

at clavicle direetal to posteriorly horizontally upto 6 mm lateral to vertebral caluri.

Peltaid muscles cut, sap fibres at freprize muscle cuts at upper bortax at clavicle.

Neck muscles on the right side cuts. First rib at right side fracture.

According to Doctor, all the injuries were anti-mortem. Postmortem note is produced at Exh. 49. He opined that due to injuries on neck, due to

haemmorhage the death was caused. The injury which deceased received on neck was sufficient in ordinary course of nature to cause death. He

also opined that the injury was possible by muddamal article No.18 sword. He has been extensively cross-examined by the defence lawyer. In

cross-examination, Doctor stated that incised wound at the middle of the right side of neck was more possible by the weapon like dharia. Defence

from this opinion, attempted to build a case that the fatal injury was by dharia and not by sword. In this respect, this witness is cross-examined at

length.

PW-3 Exh.55 Punjabhai Tribhuvandas is a panch of scene of panchnama. He has supported the prosecution case. Panchnama of scene of

offence is produced at Exh. 56. PW-2 Rakeshsinh Chaduversinh Chauhan is examined at Exh. 53 is a panch of inquest panchnama. He has

proved the inquest panchnama which is produced at Exh. 54. PW-4 Bhikhabhai Chhaganbhai Patel, Exh. 57 is examined by the prosecution as a

panch of panchnama at Exhts.58 and 59 by which some of the accused produced sticks in the Police Station in presence of this witness. PW-5

Gandabhai Shankabhai, Exh.60 is examined as a panch of panchnama at Exh.61, by which blood stained vestcoat was produced by injured PW-

10 Laxmansinh to the Police. He has proved panchnama at Exh.51. PW-6 Dhulsinh Dolatsinh, Exh.62 as panch of panchnama of Exh.63 by which

the rickshaw in which the deceased was shifted to the hospital is examined to prove the fact that the wind scree of the said rickshaw was broken.

This witness has supported the panchnama. PW-7 Bharatsinh Madhusinh, Exh. 64, is examined as a panch of panchnama Exhibits 65 and 66.

These panchnamas are in respect of discovery of weapons from accused No.1 Mulsinh Cheharsinh, who discovered sword and accused No.2

Chauhan Dhulsinh Chersinh, who according to prosecution case discovered dharia. PW-7 has not supported the prosecution case and the

panchnama Exh.65 and 66. The second panch of said panchnama is examined at Exh. 67 as PW-8 Mahendrasinh Madhusinh, who has stated that

from accused No.1 and from the heap of gross from his residence at village Ranchhodpura, accused No.1 Mulsinh Cheharsinh discovered sword.

This witness also has not fully supported the prosecution case. PW-11 Exh. 77Rajnikant Baladas had examined by the prosecution who was the

Revenue Circle Inspector at the relevant time and prepared map of scene of offence which is at Exh. 78. Lastly prosecution examined PW-14

Exh. 81 Underajsinh Chandrabhansinh Thakur, concerned Investigating Officer who filed charge sheet against all the 13 accused.

In appeal against acquittal of the accused learned APP Mr. Prachhak vehemently urged that learned Trial Judge erred in acquitting the accused

disbelieving the case of the prosecution for the charges levelled against the accused under Sections 147, 148 and 149 of the IPC. According to

learned APP, all the accused came together with weapons of sword, dharia, spear on the spot, ran towards the deceased and to implement the

common object of killing the deceased accused No.1 inflicted sword injury which is proved by the evidence. It is contended that the fact that

accused came together and ran towards the deceased reveals their common object and unlawful assembly, still learned Trial Judge erred in

acquitting the accused disbelieving the case under Sections 147, 148 and 149 of the IPC. The reasons given by the learned Trial Judge in paras

38, 22 and 23 of the judgment for acquitting the accused for the above said offence are not tenable. There were other injuries on the body of the

deceased and, therefore, the learned Judge erred in coming to the conclusion that the accused were not the members of unlawful assembly. It has

come in the evidence that the accused were yelling ""kill him kill him"" while they ran after the deceased which denotes common object and unlawful

assembly amongst the accused. Therefore, it was submitted that on the evidence on record and as appreciated by the learned Trial Judge, the Trial

Judge wrongly acquitted respondents - accused of the offence punishable under Sections 302, 504, 326 read with Section 149 of the IPC. It is

therefore urged that the acquittal appeal be allowed and it was also urged that since all the accused are guilty for the offence under Sections 147,

148 and 148 of the IPC, the appeal filed by accused No.1 Chauhan Mulsinh Chehersinh, accused No. 2 Chauhan Dhulsinh Chersinh, accused

No.13 Chauhan Udesinh Hamirsinh, accused No.10 Chauhan Ramilaben Balusinh and accused No.11 Chauhan Janakba Balusinh being Criminal

Appeal No.169 of 1996 for their respective conviction, is required to be dismissed.

While learned Senior Counsel Mr. Barot on behalf of the appellants - accused in Criminal Appeal No. 169 of 1996 and on behalf of

respondents in Criminal Appeal No.337 of 1996 has vehemently urged that scene of offence is changed by the witnesses. That the injury received

by the accused in the same incident has not been explained by the prosecution and finding of blood stains 30 feet from babul tree suggests that the

witnesses have not stated the truth and revealed the incident in the manner it took place. It is also urged that not a single eye witness of the incident

stated that accused No.2 Chauhan Dhulsinh Chersinh inflicted any blow by dharia on the deceased even then merely on presumption and relying

upon opinion of Doctor, learned Trial Judge convicted accused No.2 u/s 302 IPC. Merely because in the cross-examination of PW-1 Dr

Dineshkumar Narhariprasad Barot, defence established a possibility of second weapone. dharia by which the injury might have been caused, it

was not correct for the learned Trial Judge to come to a conclusion that the dharia blow was given by accused No.2 Dhulsinh Chersinh even

though none of the witnesses stated anything against accused No.2. The Investigating Officer PW-14 Uderajsinh Chandrabhansinh Thakur

admitted that he neither found the stone nor nobody shown the place where the stones were landed as pelted by accused Nos. 10 and 11, even

then, accused Nos. 10 and 11 are wrongly convicted for the charges u/s 336 as well as for the charges u/s 504 of the IPC where the only

allegation is uttering abuses. The incident has taken place in darkness where there was no light. He vehemently urged to allow Appeal No. 169 of

1996 and dismiss Criminal Appeal No. 337 of 1996 filed by the State. During hearing, when the evidence of eye witnesses was confronted, the

learned counsel for the accused restricted his arguments so far as Criminal Appeal No. 169/96 is concerned to appellants No. 2 to 5e. accused

No.2 Chauhan Dhulsinh Chersinh, accused No.13 Chauhan Udesinh Hamirsinh, accused No.10 Chauhan Ramilaben Balusinh and accused No.

11 Chauhan Janakba Balusinh. Learned Senior Counsel Mr.Barot then confined his submission to the extent in respect of accused No.1 that the

sentences of imprisonment awarded to accused No.1 Mulsinh Chehersinh on both counts i.e. u/s 302 and 326 of the IPC and it is directed by the

learned Trial Judge to undergo the sentences of both imprisonments consecutively, in facts and circumstances of the case, the said direction be

quashed and the sentences of imprisonment awarded on both the counts be directed to run concurrently because the injury which PW-10

Laxmansinh Amarsinh, according to medical opinion, was subject to recovery within 10 days. Therefore, so far as accused No.1 Mulsinh

Chehersinh is concerned, the learned Senior Counsel Mr. Barot confined his submission to this extent only and he makes a submission in respect of

other appellants of Criminal Appeal No. 169/96 and contended that they are required to be acquitted of the charges for which appellants No. 2 to

5 are convicted because there is no such evidence. It is also submitted that conviction of appellant No.3 accused No.13 Udesinh Hamirsinh u/s

323 of the IPC is required to be set aside simply because Manguben, to whom this accused inflicted injury, has not been examined by the

prosecution. Ultimately, he submitted that while rejecting the Appeal of the State filed against the acquittal because no case was made ut by the

prosecution for the common object, the sentences of imprisonment awarded to accused No.1 Mulsinh Cheharsinh be directed to run concurrently

and appellants No. 2 to 5 of Criminal Appeal No. 169 of 1996 be acquitted for the charges for which they are convicted.

Re-appreciating the evidence and considering the rival contentions of both the sides in both the Appeals, it is necessary that first we should

deal with the acquittal Appeal filed by the State against all the 13 accused i.e. Criminal Appeal No. 337 of 1996 for acquitting of the accused

disbelieving the prosecution case for the charges levelled against them under Sections 147, 148 and 149 of the IPC.

Considering first Criminal Appeal No. 337 of 1996, as aforesaid, before going into the facts of the case, it is necessary, when extensively

arguments are advanced in this respect before the learned Trial Judge as well as before this Court to ponder over the law as established in this

regard. It is needless to say that vicarious liability of the members of an unlawful assembly arises where the offence committed by another member

or members of the unlawful assembly and if at the time of commission of such offence, each member of the assembly harbours such common

object or if members of unlawful assembly knew that the offence of the nature committed was likely to be committed. To ascertain the common

object and the application of principle to the facts many difficulties arise. It is not at all an easy task to draw a parallel between two cases because

Section 149 is an exception to the criminal law where no person can be convicted and sentenced for his vicarious liabilities and only on proof of his

being a member of the unlawful assembly sharing the common object notwithstanding as to whether he had actually participated in the commission

of the crime or not, he becomes liable for the act done by another. At the same time it is necessary that when Section 149 emphasizes of common

object in absence of positive proof of it, mere presence in an unlawful assembly cannot render a person liable. Before accused is convicted as a

member of unlawful assembly, it must be proved by cogent evidence that he was actuated by that common object, and that object must be one of

those set out in Section 141 of the IPC. Where common object of unlawful assembly is not proved, the accused person cannot be convicted with

the help of Section 149. It is not necessary when common object is proved that any overt act is attributed to any member of unlawful assembly.

Sharing of the common object by all accused has to be ascertained while appreciating the evidence from the facts and circumstances of the each

case and there cannot be any general rule. Undoubtedly it is difficult task and has to be undertaken by the courts.

Common object of an unlawful assembly can only be ascertained from nature of weapon used, manner and sequences of attack and the setting

and surrounding under which the occurrence took place. The Supreme Court in the matter of Gangadhar Behera and Others Vs. State of Orissa,

mandated guidelines in this respect which are useful to decide the present controversy. In the said decision, about common object, the Supreme

Court in para 22 of the judgment observed as under :

Another plea which was emphasized relates to the question whether Section 149 IPC has any application for fastening the consecutive liability

which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful

assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of

those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help

of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons

entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an

overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly.

The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within

the purview of Section 141. The word ""object"" means the purpose or design and, in order to make it ""common"", it must be shared by all. In other

words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A

common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage

by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It

may be modified or altered or abandoned at any stage. The expression ""in prosecution of common object"" as appearing in Section 149 have to be

strictly construed as equivalent to ""in order to attain the common object""? It must be immediately connected with the common object by virtue of

the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of

an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge,

possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information

at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section

149 IPC may be different on different members of the same assembly.

Further in respect of Section 149 of the IPC, the Supreme Court in the above said judgment in para -24 observed as under :

Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common

object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the

offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence

committed is not in direct prosecution of the common object of the assembly, it may yet fall u/s 141, if it can be held that the offence was such as

the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of

the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object

which is being pursued is shared by all the members and they are in general agreements as to how it is to be achieved and that is now the common

object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and,

like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be

laid down under the circumstance from which the common object can be culled out, it may reasonably be collected from the nature of the

assembly, arms it carries and behaviour at or before or after the scene of incident. The word ""knew"" used in the second part branch of the section

implies something more than a possibility and it cannot be made to bear the sense of ""might have been known"". Positive knowledge is necessary.

When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly

knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be

cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be

ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an

offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second

part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would be generally, if

not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object.

The learned Trial Judge vide paras 36 and 37 came to the conclusion that the prosecution failed to prove beyond reasonable doubt unlawful

assembly because taking into consideration the totality of the circumstances there was neither pre-consultation nor consultation during attack and

therefore learned Trial Judge proceeded to fix the liability of the accused for the act they individually performed during the occurrence. We are

required to undertake exercise of re-appreciating of the evidence to come to the conclusion whether the prosecution proved its case beyond

reasonable doubt for the charges levelled against the accused under Sections 147, 148 and 149 of the IPC.

When we refer to the depositions of the eye witnesses PW-9 Kantaben, PW-10 Laxmansinh, PW-12 Bhikusinh and PW-13 Jitendrasinh

Dalpatsinh and the complaint filed by PW-9, which is at Exh. 72, disclosing the prosecution case, we come to the conclusion that the prosecution

failed to prove the case against the accused in respect of unlawful assembly having common object. When prosecution proposes a case of unlawful

assembly against all the 13 accused with a further proposition that they had shared common object and that common object was to kill Dinusinh, it

must be proved positively by prosecution that each of the accused was clearly knew that by commissioning the act at the time of incident, the

object of killing Dinusinh which was crime was to be achieved by the unlawful assembly. As said above by the Apex Court, each member ""might

have known"" is not the sufficient proof of the fact that the each member knew the common object and shared the same. When we appreciate the

evidence on record and probe in the background of the incident occurred, it is crystal clear to us that none of the eye witnesses even remotely

suggested much less established that each of the accused had shared common object to kill Dinusinh. One cannot forget and overlook the hard

reality of life while appreciating the evidence. The tendency on the part of witnesses in such incidents to involve as many more accused as possible

preferably family members of the accused and near ones to place the whole section of the opposite sides to face difficulties is of common

knowledge. When we visualize the factual scenario of the occurrence through the screen of appreciation of evidence, we find that the genesis of the

incident is the stone pelting by the accused Nos. 10 and 11 along with stone pelting uttering of the abuses towards deceased Dinusinh when he

went to have masala from the panshop. It has come in evidence that the parties were at differences about a social issue, where some mild incident

had occurred in the earlier part of the day, in which according to prosecution case, the accused side uttered abuses to the family of the deceased.

It appears that when in the evening as established by the evidence, Dinusinh was passing through near the houses of the opposite party, accused

Nos. 10 and 11 started pelting stones and exhorted abuses. The evidence further discloses that this fact did not deterred Dinusinh and he

proceeded ahead. At that juncture, other accused out of which accused No.1 with the sword, and accused No.2 with dharia and accused No.3

with spear and other accused came out of their houses. When we refer to the evidence of each of the eye witnesses, it is clearly stated by them that

the other accused except accused Nos. 10 and 11 came out of their houses, in support of accused Nos. 10 and 11 for shielding them and taking

their side. It clearly appears that defence mechanism in-built in human kind took its toll and on pelting stones and uttering abuses to deceased by

accused Nos. 10 and 11, the other accused came out of their houses because they apprehended and anticipated reaction and response from

deceased Dinusinh. This is clearly established by the evidence. The original prosecution case which is disclosed by the complaint filed by PW-9

which is at Exh.72 in no uncertain terms it is established that after the incident of stone pelting, the other accused came out of their respective

houses because they reside in separate houses though within vicinity. At that juncture, one cannot by any stretch of reasoning, come to the

conclusion that all the accused had common object to kill the deceased. This is so because it is the evidence of all the eye witnesses that other

accused came out of their houses to support accused Nos. 10 and 11 and taking the side of accused Nos. 10 and 11. This can happen only when

the accused apprehends natural reaction from Dinusinh to respond the action of accused Nos. 10 and 11. Upto this, no one can say that there was

unlawful assembly. From this juncture also, as prosecution case has been disclosed, it is not the prosecution case that all the accused started

chasing the deceased as soon as they came out of their respective houses with weapons and immediately started chasing Dilusinh. If the evidence

of the witnesses is scanned carefully and if the threadbare and deep probe scrutiny is undertaken, then it clearly emerges from the facts established

by the prosecution case that surrendering to human instinct having seen as many as 13 persons with the weapons, deceased Dilusinh also

apprehending danger from other side, started running towards road, and as per the established prosecution case, at that juncture only the accused

alleged to have chased the deceased. In ordinary course of nature, the deceased might have dealt with the situation by reacting either accosting

accused Nos. 10 and 11 or might have escaped the circumstances present at the spot. There is no positive evidence which establishes that when

all accused come out of their houses, they had common purpose or common design to kill the deceased, but their purpose was to shield accused

No.10 and accused No.11, in case if Dinusinh reacts to stone pelting and abusing, but the natural instinct of the deceased automatically selected

the second alternative and instead of accosting accused No.10 and accused No.11, he started running towards the road apprehending serious

trouble. At that very juncture, the accused stated to have chased the deceased. It clearly appears and emerges from the evidence that both the

groups involved in the incident had huge man power. It clearly also emerges from the evidence that the accused might have chased the deceased

because they still apprehended that the deceased would form a group of his family members and would react towards the lady members of their

family who were instrument to the genesis of the incident and ultimately, unfortunately, this human instinct culminated in inflicting a blow of sword on

the neck of the deceased which proved fatal. As stated above the circumstances when we analyze them, leaves no room for the doubt that

accused had neither common object to kill the deceased nor the said common object was shared by each of the accused when they chased the

deceased. It is a matter of common knowledge that when one family members is involved in an untoward incident, other family members would

come to rescue the said family members only with a view that their kin is not harmed in any manner. Following this rule of nature, we have found

the gathering of the accused. A fact along with these circumstances is required to be appreciated that there was gathering of the family of the

deceased because his wife PW-9 Kantaben, his brother PW-10 Laxmansinh, other relative PW-12 Bhikusinh and PW-13 Jitendrasinh Dalpatsinh

and one or other relative to whom prosecution has not examined, all had reached to the spot. Only because in such incident, members of family or

neighbours get together, it is difficult to attribute that they were unlawful assembly and they had common object to commit a crime. It, therefore,

transpires clearly that instead of activated by common object of killing deceased, all the accused came close together only because each member

wanted to ensure that their family members were not hurt and or harmed in any manner. As above said, it is far stretching logic to come to a

conclusion for judicial conscious that each of accused had in the circumstances, common object of killing Dinusinh and that each of them knew

about this common object. Further, the weapons like dharia and spear amongst the villagers who are doing agricultural work is common and

perhaps this is the basic thing of each farmer to have such instruments instead of labelling them as deadly weapons. They have to guard their fields,

their standing crops, in any odd circumstances and weapons are instruments for them to carry out their agricultural operations. It is most common

to see a farmer carrying spear or dharia all the times either in the field or in the village itself. It is only when intention of human being converts into

criminality these instruments become deadly weapons. Therefore, merely because the other accused except accused No.1 Mulsinh Chehersinh,

carried dharia or spear, would not lead to suggest that they had common object to kill Dinusinh. It is also important to note that each of the

accused has come out of his separate house. It is not the prosecution case that all the accused met together at one place and came out together

from that place. Merely chasing the deceased by the accused also would not lead to the conclusion that they had common object to cause death of

Dinusinh. As discussed above, it is more probable that the accused in anticipation that the deceased was likely to react and deceased in

anticipation that the so many persons of other group with weapons, likely to harm him, reacted in their own way, which culminated into the death of

the deceased, we failed to detect that the accused either had common object or they knew that to achieve their common object, accused No.1

inflicted sword blow on the deceased. When we perused the complaint Exh. 72. We find that accused were chasing the deceased uttering ""kill him

- kill him"" is nothing but is embroidary of the witnesses, because this story is not narrated in the complaint.

Thus, we do not find positive proof from the prosecution evidence as said above that each of the accused had common object to kill Dinusinh.

There is no positive proof also that each of the accused knew that each had common object as a member of unlawful assembly and in furtherance

of common object of committing crime, unlawful assembly was formed. The application of Section 149 IP would be highly unsafe unless it is

positively proved that each of the accused shared the common object and accordingly participated in the occurrence. On the contrary, we have

found from the evidence that the other accused, except accused No.1 were idle and passive member of the group as a family member and as said

above their object was only to see that their dear ones are not harmed. Therefore, the genesis of the incident as disclosed by the prosecution only

provides basis for the other accused to safeguard their lady members of the family and not to entertain the common object as attributed. There is

absolutely no evidence whatsoever to attribute any common object or such a thing which activated the accused to join in furtherance to achieve the

object either at the juncture of pelting of the stones or at the juncture of chasing of the deceased. The evidence of the witnesses from the genesis of

the incident to the end which is on record therefore fails to convince us for coming to the conclusion that the accused formed themselves into

unlawful assembly with common object as above said. There is absolutely no such evidence available on record.

In almost similar circumstances and on the facts similar to this case, the Supreme Court was pleased to conclude that there was no case u/s

149 on appreciation of evidence. In the matter of Fagu Manjhi and Others Vs. State of Bihar and Another, in para 3 the Apex Court set out the

facts as under :

According to the prosecution, on 31.7.1987 when deceased Begru Manjhi went to his field along with his brother Bishwanath Manjhi, all the

assailants were waiting in ambush. On sighting the deceased, they emerged out of the bushes and then they were all variously armed. Seeing the

assailants rushing behind them the deceased and his brother Bishwanath Manjihi took to their heels and the assailants chased them. Two of the

assailants shot arrows and when the deceased fell down A-2 Santu Manjhi cut his neck by inflicting a bhala-blow, it was followed by A-3 Gaya

Manji cutting with a sword and A-4 Sukdeo Manjhi cutting with a bhujali (something like a chopper). The last cut severed his neck into two and

that was the end of the deceased.

Appreciating the above facts ultimately the Supreme Court concluded as under in para -7.

Even if some other persons also ran behind those three assailants, it is a very difficult exercise for the Court to conclude that those other persons

who ran behind the three assailants shared the common object of murdering the deceased. It would have been easier for the prosecution to

succeed if PW 3 had also said along with the three assailants the other persons also ran. The difficult situation for the prosecution now is that if we

have to place reliance on the testimony of PW-3 the conviction has to be confined to three persons mentioned above and the rest of the persons

cannot be convicted. When we perused the medical evidence in this case, we found that all the injuries sustained by the deceased could be

attributed to the actions alleged against the aforesaid three persons. This is yet another reason creating difficulty for the prosecution so far as the

present appellants are concerned.

Ultimately, in our considered view, the trial court rightly disbelieved the case of the prosecution for the charges levelled against each of the

accused on the strength of Sections 147, 148 and 149 of the IPC. Unless and until it is established that the view taken by the Trial Court is so

perverse, so unreasonable, so unsustainable that no reasonable person could reach to that conclusion, the order of acquittal passed by the learned

Trial Judge cannot be interfered with even if on appreciation of evidence, the other view may be possible, but in this case, on re-appreciating, we

come to the positive conclusion that on appreciation of evidence, the learned Trial Judge could have reached the only conclusion to acquit the

accused for the offences under Sections 147, 148 and 149 of the IPC. The learned Trial Judge rightly therefore proceeded to decide the trial on

the basis of individual liability of each of the accused. In the result, therefore, the Criminal Appeal No. 337 of 1996 filed by the State against

acquittal of the accused is required to be dismissed.

This brings us to decide Criminal Appeal No. 169 of 1996 filed by appellant accused No.1 Chauhan Mulsinh Chehersinh, appellant - accused

No.2 Chauhan Dhulsinh Chersinh, appellant - accused No.13 Chauhan Udesinh Hamirsinh, appellant - accused No.10 Chauhan Ramilaben

Balusinh and appellant - accused No.11 Chauhan Janakba Balusinh, against the conviction awarded by learned Trial Judge to each of the above

appellant as aforesaid. As discussed, it is the case wherein the prosecution has failed to establish beyond reasonable doubt the vicarious liability of

the 13 accused and since we have confirmed that view of the learned Trial Judge, the evidence is required to be re-appreciated with reference to

individual overt act attributed to each of the above five appellants who are convicted and, therefore, it is necessary that the evidence and the

appeal though filed jointly by five accused, is required to be discussed with reference to each individual appellant - accused.

Considering the appeal filed by accused No.1 Chauhan Mulsinh Chehersinh we re-appreciated the evidence in respect of him beside though

the learned Senior Counsel for the Appellant conceded that having regard to the weighty evidence against him, the conviction awarded to accused

No.1 Mulsinh Chehersinh in respect of Section 302 and u/s 324 if not interfered with, then it is vehemently urged that the direction of the learned

Trial Judge in respect of this appellant accused No.1 Chauhan Mulsinh Chehersinh to undergo both the imprisonment consecutively be quashed

and it may be directed that both the sentences awarded be run concurrently. We come to the conclusion after carefully examining the evidence of

five eye witnesses and other evidence that in view of that, it is established that the accused No.1 inflicted a sword blow on the neck of the

deceased Dinusinh and also a blow to injured PW-10 Exh.73 Laxmansinh Amarsinh. We do not find a speck of a doubt which would lead us to

disbelieve the testimony of collection of ocular evidence which appears to be quite simple and natural on appreciation. These five eye witnesses are

not only creditworthy but are fully corroborated by medical evidence. PW-1 Dr. Dineshkumar Narhariprasad Barot Exh.40 in his postmortem

note and in his deposition able to establish that incised wound at the right side at neck could be caused by sword which proved to be fatal. Before

the Trial Court, the evidence of this witness was criticized on the ground that the witness also stated that the injury more was possible by weapon

like dharia, but nothing turns out from this. If the evidence of this witness is appreciated in totality, what can we deduce from the evidence is that

the injury which was caused to the deceased Dinusinh on the neck could have been caused by sword or weapon like dharia. The Doctor never

ruled out the possibility of the injury having been caused by sword. The learned Trial Judge, therefore, rightly believed the ocular evidence to

connect the accused No.1 with the crime for causing murder of deceased Dinusinh. Out of five witnesses, which are ocular witnesses, PW-10 Exh.

73 is an injured witness. His injuries are also proved by PW-1 Doctor, though injured PW-10 Laxmansinh Amarsinh was examined by PW-1 on

12.6.1995 at 7.20 a.m. without Police yadi, but this circumstance is eloquent to the extent that when his real brother was murdered and when this

witness might have engaged in the arrangements, on account of this, he could got him examined by the Doctor on the next day early morning. PW-

10 Laxmansinh Amarsinh had an incised wound at scapular to middle at lateral surface at arm and was muscle deep on his back. So the conviction

of accused No.1 Mulsinh Chehersinh by the learned Trial Judge for the charges proved against him u/s 302 for death of Dinusinh and his

conviction for the charges u/s 324 for causing injury to PW-10 Laxmansinh Amarsinh with a sword and sentencing him by the learned Trial Judge

is in no way subject to any interference by this Court. It is required to be presumed that a person who has inflicted injury, sufficient in the ordinary

course of nature to cause death, had required intention and means rea to cause such injury. The Trial Court rightly rejected the plea of accused

having received injuries as mentioned by the PW-1 Doctor, because these were superfluous injuries and prosecution is not bound to explain the

same. The case of prosecution cannot be disbelieved on this count. We, dismiss, therefore the appeal filed by appellant No.1 Mulsinh Cherharsinh.

By specific direction in para-3 of the order portion of the judgment, the learned Trial Judge directed that sentence of imprisonment awarded to

accused No.1 Chauhan Mulsinh Cheharsinh for the charges proved against him u/s 302 IPC and sentence of imprisonment awarded to him for the

charges proved against him u/s 324 IPC for the injury in respect to PW-10 Laxmansinh Amarsinh, shall run consecutively. Undoubtedly, vide

Section 31 of the Criminal Procedure Code when several offences are proved against one accused at one trial, the Trial Court is empowered to

direct that sentences of imprisonment awarded in each count shall run consecutively. At the same time, the Trial Courts are also empowered with

the discretion to direct that such punishment shall run concurrently. Therefore, the normal rule is that the sentences should be consecutively and

they may be made to run concurrently only if there is some reason. Though whether the sentences should run consecutively or concurrently is left to

the discretion of the court, but at the same time, the court must exercise its discretion judicially. We find hardly any incidence in which Trial Court

directed that the two sentences to run consecutively. It always depends upon the facts and circumstances of a given case to exercise the discretion.

It must be noted that this discretion must not be arbitrary. When we in this respect harmonize the set of circumstances of this case, we find that

firstly for the offence proved against accused No.1 Mulsinh Cherharsinh for the charges u/s 302 IPC, life imprisonment has been awarded which is

the maximum punishment of imprisonment prescribed for any offence in the Indian Penal Code. Secondly, genesis of the incident and the manner in

which the occurrence has proceeded with and has ended, calls for some lenient view towards accused No.1 at least in respect of sentence of

imprisonment as contended by learned counsel for appellant in respect of exercising the discretion to direct the both sentences of imprisonment

concurrently. Exercising the judicial discretion vested by Section 31 of the Criminal Procedure Code in trial court, the interest of justice would have

served if both the sentences of imprisonment awarded to accused No.1 would have been directed to run concurrently. We find justification in the

contention of learned Senior Counsel on behalf of the appellant about quashing of the direction of the Trial Judge to run both the sentences of the

imprisonment to run consecutively. The very object of punishment is deterrent and judicial discipline requires that punishment should be not too

harsh or not too lenient but commensurating to the facts and circumstances. We, therefore, accept the contention of learned Advocate for the

appellant and quash and set aside the direction of the learned Trial Judge to the effect that the sentences of imprisonment awarded to accused

No.1 for the offences proved against him u/s 302 as well as u/s 324 of the IPC shall run consecutively, instead, the ends of justice will meet if we

direct that both the sentences of imprisonment shall run concurrently and accordingly the Appeal filed by accused No.1 Chauhan Mulsinh

Cheharsinh while upholding the conviction on both the counts and without interfering with the quantum of punishment, appeal is required to be

allowed to the above extent only and rest of the Appeal, as above discussed, is required to be dismissed.

So far as the conviction awarded to Chauhan Dhulsinh Chersinh - accused No.2 is concerned, it is vehemently argued that the conclusion of

the Trial Judge is solely based on conjecture and presumption and not on the basis of the evidence recorded. Needless it is to say that judicial

discretion never indulges fancifulness or imagination to come to a definite conclusion. The appreciation must be of the evidence on record.

Stretching judicial discretion beyond the evidence recorded and appreciation of the same which is not on record would certainly amount to creating

a new case by judicial discretion and a case which was never a case of prosecution nor defence might have pointed out any probabilities in this

respect. Probabilities or improbabilities in criminal trial is not that wide field which in realm of appreciation of evidence would empower a court to

allow conjecture and fanciful speculation to be crept in, instead of concrete conclusions, without even regard to the evidence recorded and without

even considering the evidence relating to the basic prosecution case. Misappreciating the evidence out of the known canons would result into

miscarriage of justice. We feel that conviction of accused No.2 Dhulasinh Chersinh is result of mis-appreciation of the evidence on record and

travelling out of the spectrum of basic prosecution case. Again in this respect we are required to re-appreciate the evidence of those five eye

witnesses. None of the above witnesses stated that accused No.2 appellant Chauhan Dhulsinh Chersinh though laced with the dharia cause any

injury to deceased. Not only that complaint filed by PW-9 Kantaben which is at Exh. 72 is not disclosing that accused No.2 appellant Dhulasinh

Chersinh ever inflicted any blow to the deceased. Even complainant PW-9 Kantaben in her deposition did not state that accused No.2 appellant

Dhulasinh inflicted dharia blow to deceased. In cross-examination in para-4 she categorically stated that she witnessed only one blow and that by

sword inflicted by accused No.1. She did not witness dharia blow. So, appreciating this evidence it is clear that it is not the basic prosecution case

that accused No.2 appellant Dhulsinh Chersinh inflicted dharia blow to the deceased nor through evidence any court come to the conclusion that

accused No.2 inflicted dharia blow. Still, learned Trail Judge convicted the accused No.2 Dhulsinh for the charges proved against him u/s 302 IPC

attributing him that he inflicted dharia blow to the deceased. We probed further the evidence on record and we find that the conclusion arrived at

by the learned Trial Judge is utterly erroneous and against the evidence on record. We are inclined to observe that this is not the conclusion of the

trial court but mere presumption. We find from the judgment, which is impugned, that the learned Trial Judge misguided himself because PW-1 Dr.

Dineshkumar Narhariprasad Barot deposed before the Court that the incised wound, which was on the neck of the deceased, was possible by

dharia. Explaining this, the learned Trial Judge observed that none of the witnesses stated that dharia was used in quarrel but having regard to the

deposition of the Doctor, dharia must have been used by accused No.2. Travelling beyond the cardinal principles of appreciation of evidence,

learned Trial Judge also came to the conclusion that accused No.1 appellant Mulsinh Cheharsinh also inflicted sword blow on the neck of the

deceased, and on that very wound, accused No.2 - appellant Dhulsinh Chersinh also inflicted dharia blow and, therefore, there are no two incised

wounds. Even stretching the judicial discretion to the farthest extent as permissible by criminal jurisprudence and even too leniently in favour of

prosecution, the conclusion which the learned Trial Judge has arrived, could not have been arrived, had the evidence on record been properly

appreciated. Firstly, it is not the prosecution case at all that the deceased received dharia blow and secondly that PW-1 Doctor only pointed out a

possibility of the injury on the neck of the deceased might have been caused by dharia. Only because there was only one incised wound on the

neck and since learned Trial Judge could not rule out the possibility of that injury having been caused by sword also as established by prosecution

through evidence, it appears that the learned Trial Judge came to the conclusion that the appellant - accused No.2 Dhulsinh inflicted dharia blow on

the very dot spot of the body of the deceased where there was a sword blow already inflicted by accused No.1 Mulsinh Chehersinh. This exercise

of appreciation of evidence by the Trial Judge is apparently erroneous and wrong. The Trial Judge also linked his discretion with the fact that one

handle of dharia was found from the scene of offence and that dharia contained blood, which turned out to be the blood group of the deceased.

Therefore also learned Trial Judge presumed that since dharia was with appellant accused No.2 Dhulsinh, while inflicting injury, the handle was

broken and was found from the scene of offence and, therefore, blood group of deceased was found from the said handle of dharia found from the

scene of offence. In fact, dharia which was with the accused No.2 Dhulsinh Chersinh at the time of incident was recovered by the Police vide

panchnama at Exh.65, and that dharia with its handle was muddamal of the prosecution case as muddamal article No. 15. Since the muddamal

article No. 15 did not contain any blood stains, the same was not sent to Forensic Science Laboratory and according to learned Trial Judge, this

panchnama at Exh. 65 was proved by the evidence of PW-7 Bharatsinh Madhusinh, Exh.64. So, the logic of the learned Trial Judge in this respect

that the handle of dharia, which was found from the scene of offence, was with appellant accused No.2 Dhulsinh, is wholly misconceived and the

conclusion arrived at by the learned Trial Judge on this aspect, is not only erroneous but is beyond the prosecution case and is arrived at on

conjectures and speculations. Now when we are examining the individual act of each of the appellant accused and hence no overt act is attributed

to appellant accused No.2 Dhulsinh Chersinh by the prosecution witnesses, it is difficult to sustain the conviction of appellant No.2 Dhulsinh

Chersinh for charges levelled against him u/s 302 as has been done by the learned Trail Judge. The net result is, therefore, appeal filed by appellant

accused No.2 Dhulsinh Chersinh against his conviction, as aforesaid, has to be allowed in toto, and he is required to be acquitted of the charges

levelled against him u/s 302 IPC after setting aside his conviction and sentence as awarded by the learned Trail Judge.

So far as accused No.13 - appellant No.3 Chauhan Udesinh Hamirsinh is concerned, the learned Trial Judge convicted him as aforesaid for

the charges levelled against him u/s 323 IPC and he was sentenced to undergo rigorous imprisonment of one year and fine of Rs. 1,000/- and in

default to undergo three months rigorous imprisonment. Learned Senior Counsel for the appellants contended that injured Manguben, mother of

the deceased Dinusinh, according to the prosecution case received injuries by accused No.13 - appellant No.3 Udesinh Hamirsinh was not

examined by prosecution and, therefore, injury is not proved. Learned Senior Counsel Mr. Barot advanced arguments about this accused two

fold. Firstly, it is contended that since injured Manguben has not been examined, the injury caused to her by this accused is not proved and

alternatively it was also argued that if any case if it is held that the conviction was proper, then having regard to the facts and circumstances of the

prosecution case, and since the incident occurred as back as on 11.6.1995, quantum of sentence awarded to accused No.13 appellant No.3

Udesinh Hamirsinh be reduced to a reasonable extent. We have considered and evaluated the contentions raised by learned Senior counsel. On

going through the evidence again, we found that PW-10 Exh. 73 Laxmansinh Amarsinh has specifically stated that accused No.13 appellant -

No.3 Udesinh Hamirsinh inflicted a stick blow on the thigh of Manguben. We have found this witness creditworthy and reliable while we have

appreciated the evidence of this witness because nothing is found from the cross-examination of defence to disbelieve this version of PW-10 Exh.

73 Laxmansinh Amarsinh is an injured eye witness. So, it is proved that accused No.13 Udesinh Hamirsinh inflicted one stick blow to Manguben,

mother of the deceased. True it is that other witnesses have not stated this fact. This is so because that the other witnesses were rushing towards

the deceased to save him and only PW-10 had seen Manguben because he was with Manguben at that time and, therefore, he witnessed this stick

blow. Not only that the version of PW-10 Laxmansinh Amarsinh is corroborated by PW-1 Dr. Dineshkumar Narhariprasad Barot and he has

stated in his deposition that he had examined Manguben on 12.6.1995 at 7.50 a.m. and she had bruise of about 8 cm x 2 cm on lateral surface at

left thigh and abrasion at about 1/2 cm x 1/2 cm at lateral surface at left thigh. So we cannot accept the submission that only because Manguben

has not been examined as a witness, a case against accused No.13 appellant - Udesinh Hamirsinh has not been proved by the prosecution in

respect of the injury caused to Manguben. Pw-13 Jitendrasinh Dalpatsinh in his examination-in-chief has categorically stated that Manguba, mother

of the deceased Dinusinh stays with Laxmansinh, and was aged about 70 to 75 years. He also deposed that Manguben was sick at the time and

was bedridden. Further upon instructions, in the trial court, learned Additional Public Prosecutor filed a pursis (report) on record at Exh.84 stating

that since witness Manguben was bedridden, she was dropped as witness. This pursis was shown to the defence before it was presented to the

trial court and learned advocate for the defence endorsed his no objection to the pursis and, therefore, when there is an evidence that accused

No.13 appellant No.3 Udesinh Hamirsinh inflicted stick blow to Manguben, it cannot be said that the prosecution case was not proved in this

respect beyond doubt only because witness Manguben was not examined. Therefore, we reject this contention and uphold the conviction of

accused No.13 Udesinh Hamirsinh awarded by the Trial Judge for the charges levelled against him u/s 323 of IPC for the act attributed to him in

individual capacity. True it is, that the alternative argument advanced on behalf of this accused is certainly required to be considered. The incident is

of 1995. Witness Manguben had an injury of abrasion and bruise. Recovery period of the same was 5 to 7 days and in this view of the matter,

sentence of one year rigorous imprisonment as awarded by learned Trial Judge is too harsh and is required to be reduced. Learned APP has

produced the jail record of the accused. He was convicted by a judgment of the trial court on 22.2.1996. Accused No.13 Udesinh Hamirsinh was

under-trail accused till 22.2.1996 for about four months and 5 days. After conviction, he was in jail pending appeal for a period of one month and

8 days and was released on bail by the order of the Division Bench of this Court on 30.3.1996 and hence accused No.13 appellant Udesinh

Hamirsinh remained in jail for 5 months and 13 days. Imprisonment of 5 months and 13 days, in the circumstances of the case and to meet the

ends of justice would be sufficient as a sentence which can be awarded to accused No.13 appellant Udesinh Hamirsinh. Therefore, while

upholding the conviction of accused No.13 appellant Udesinh Hamirsinh u/s 323 of IPC, and rejecting the appeal of appellant Udesinh Hamirsinh,

in this respect, we also partly allow the appeal to the extent of reduction of sentence of imprisonment only. Quashing the sentence of imprisonment

as awarded to accused No.13 appellant Udesinh Hamirsinh it would be in the interest of justice, to reduce the sentence to the extent that already

undergone by appellant - accused No.13 Chauhan Udesinh Hamirsinh and to that extent only appeal is required to be allowed partly while rest of

the appeal of this accused appellant is required to be dismissed.

Now we discuss the Appeal of Appellants No. 4 and 5 Chauhan Ramilaben Balusinh and Chauhan Janakba Balusinh original accused Nos.10

and 11. Their conviction is awarded to them for the charges proved against them under Sections 336 and 504 of the IPC and each of these two

appellants is sentenced accordingly. It clearly appears to us that the conviction of these two appellants are result of oblivious approach of the Trial

Judge towards the ingredients of the charge as mentioned in provisions of IPC and application of the same to the facts of the case, which are

established by the evidence. Indian Penal Code is a statute, in which in each offence, the ingredients are distinctly engrafted, which prosecution

requires to prove including mens rea. Some of the offences as prescribed by the Code requires mens rea on the part of the accused as ingredient

of offence and is required to be established by the prosecution to obtain conviction while some of the offences describe mental state of the accused

otherwise than mens rea, which the prosecution is required to prove before an offence is linked with the accused. First, if we discuss the

convictions of both the above appellants u/s 336 of the Indian Penal Code and if we peruse the provisions, the liability u/s 336, would arise by an

act done rashly or negligently as to endanger human life or the personal safety of others. This is the provision where mens rea which include

intention on the part of the accused is not engrafted. Meaning thereby the offence which is prescribed by Section 336 is undoubtedly the offences

which are the acts not done deliberately and intentionally. The act done rashly and negligently is undoubtedly not the act done deliberately and

intentionally. When person acts rashly, shows indifference to obvious consequences and to the right of other persons and does not mind whether a

danger would result or not amounts to offence within the meaning of Section 336 of the IPC. If we advert to the facts of the case, both the

appellants are saddled with the conviction because of stone pelting by these appellants. Undoubtedly, as discussed at length herein-in-above, the

evidence of five eye witnesses established the act done by both the appellants of pelting stones. The question therefore was to be considered by

the Trial Judge as to whether the act attributed to both these appellants was deliberately and intentionally done or the act done with indifference so

as to be obvious towards the consequences and to the rights of others because the act which is rash and negligent cannot be deliberate and

intentional. The evidence establishes beyond doubt that the pelting of stones by these two accused appellants was not an act done rashly or

negligently. All the five eye witnesses stated that when deceased Dinusinh passed through near their houses, both these appellants accused

Ramilaben and Janakba uttered abuses and pelted stones to Dinusinh. Therefore, what is established by the evidence is deliberate and intentional

stone pelting by these accused appellants towards the deceased. The act may be some other offence but cannot be covered under the phrase used

by the statute engrafted as ""any act done so rashly or negligently as to endanger human life or the personal safety of others"". When stone pelting is

at random without considering the consequences of the same, then the act so done can be attributed as done rashly or negligently, but in this case,

there is clear cut fact established by the prosecution witnesses that the act of both these appellants accused was not randomly performed but they

pelted stones only because deceased Dinusinh was passing through near their residences, and not only that, with the pelting of stones they also

exhorted abuses. When ingredients of Section 336 are not at all attracted in these facts and circumstances of the case, the conviction of these two

accused for the charges u/s 336 is absolutely de hors not only the facts of the case but de hors the established law in this respect. Had the stones

as pelted by any of these two accused hit to Dinusinh perhaps an offence u/s 323 of the IPC might have been said to have committed by these two

accused or any other offence with respect to injury, but the manner in which stones were pelted as disclosed by the evidence would not stretch the

act of pelting the stone of these two appellants even to attempt to commit any of the offence against the human body as envisaged by the Penal

Code, much less the act done rashly and negligently. It is certain that bare reading of provisions of Section 336 and the evidence of five eye

witnesses makes it abundantly clear that none of these appellant - accused even can be charged for having committed an offence u/s 336 of the

IPC and in this view of the matter, the conviction awarded by the Trial Court to both these appellants - accused u/s 336 of the IPC is required to

be set aside. Likewise, even the learned Trial Judge erred in convicting these two appellants accused u/s 504 of the IPC because again the

ingredients of the offence as engrafted in the provision could not be properly appreciated by the learned Trail Judge with reference to the facts and

circumstances of the case as established by the evidence. An offence u/s 504 of the IPC is committed only when somebody intentionally insults and

thereby give provocation to any person intending or knowing it to be likely that such provocation will cause to break the public peace or to commit

any other offence. When we advert to the evidence of this case mainly of the five eye witnesses, the fact which is established is to the extent only

that accused exhorted abuses to Dinusinh. Ingredients of Section 504 IPC does not make an act of uttering merely abuses to be an offence under

that section. While the evidence is only to the extent that both these appellants - accused uttered abuses to deceased Dinusinh, we fail to

understand that how these appellants can be convicted for the charges u/s 504 of the IPC. The Apex Court way back in 1988 in the matter of

B.R. MEENA vs. MANGAL DAS CHIMAN LAL BAROT AND ANOTHER, reported in 1988 SCC 129 with reference to Section 504 of

the IPC observed as under :

The prosecution evidences does not make out the ingredients of offence u/s 504. The mere utterance of abusive words without more does not

constitute an offence under the section. The essential requirements are that the accused must intentionally insult and such insult must give

provocation to any person and further that he must have the requisite knowledge that such provocation will result in breach of public peace or

commission of any other offence. These requirements of Section 504 are not made out and the conviction of the appellant under the section cannot

be sustained. We accordingly set aside the judgment and order of the High Court and acquit the appellant of the offence with which he was

charged.

In this case also the requirement of Section 504 IPC is not made out by the prosecution except there is an evidence that both the accused -

appellants merely uttered abuses to Dinusinh. Not only that in order to constitute intentional insult to provoke breach of the peace or with requisite

knowledge as contemplated by Section 504 of the Indian Penal Code, though it is not necessary that abuse should be filthy or indecent, but there

must be satisfactory evidence on record to show that the accused had abused the complainant with intention to insulting him in order to give him

provocation to breach the public peace and, therefore, it is essential that prosecution must point out and establish actual words used by the

accused. Unless this is proved by the cogent evidence, intention on the part of the accused which is essential requirement and mens rea on the part

of the accused to provoke the victim to breach the public peace cannot be made out and, therefore, though there is evidence on record that the

accused No.10 and accused No. 11 pelted stones towards Dinusinh and uttered abuses which is the genesis of the prosecution case, but this

evidence is not sufficient as discussed above to convict both these appellants accused for the charges under Sections 336 and 504 of the Indian

Penal Code. Consequently the conviction awarded by the Trial Court to these appellants - accused for the above said charges is required to be

quashed and set aside and their appeal is required to be allowed in toto.

In the result, we come to the conclusion that acquittal Appeal filed by the State i.e. Criminal Appeal No. 337 of 1996 is hereby dismissed

while we come to the following conclusions in respect of Criminal Appeal No. 169 of 1996 filed by five appellants - accused:

(i) Appeal filed by appellant No.1 - Chauhan Mulsinh Chehersinh accused No.1 is partly allowed to the extent only that the direction of the learned

Trial Judge to the effect that the sentences of the imprisonment awarded to accused No.1 Chauhan Mulsinh Chehersinh for the offences proved

against him u/s 302 as well as u/s 324 of the IPC shall run consecutively is hereby quashed and set aside. Instead, we direct that the sentences of

imprisonment awarded to accused No.1 Chauhan Mulsinh Chehersinh for the offences proved against him u/s 302 as well as u/s 324 of the IPC

shall run concurrently. Rest of his Appeal is dismissed.

(ii) Appeal filed by appellant No.2 - accused No.2 Chauhan Dhulsinh Chersinh is allowed in toto and conviction and sentence awarded by learned

Trial Judge to accused No.2 Chauhan Dhulsinh Chersinh for the charges proved against him u/s 302 is set aside and appellant - accused No.2

Chauhan Dhulsinh Chersinh is acquitted of the charges levelled against him u/s 302 of the IPC. Appellant No.2 - accused No.2 Chauhan Dhulsinh

Chersinh is on bail pending Appeal vide order of the Division Bench of this Court passed on 29.3.1996 and, therefore, his bail bond stands

cancelled.

(iii) Appeal filed by appellant No.3 - accused No.13 Chauhan Udesinh Hamirsinh is partly allowed to the extent that while upholding the conviction

of appellant No.3 accused No.13 Chauhan Udesinh Hamirsinh, as awarded by the Trial Judge for the charges proved against him u/s 323 of the

IPC we reduce the quantum of punishment and while setting aside the punishment of imprisonment and imposition of fine awarded by the Trial

Judge, we sentence appellant No.3 Chauhan Udesinh Hamirsinh for the imprisonment which he has already undergone for the charges proved

against him u/s 323 of IPC. Appellant No.3 is also on bail during pendency of Appeal vide order of the Division Bench of this Court dated

29.3.1996 and his bail bond stands cancelled.

(iv) Appeal filed by appellant No.4 Chauhan Ramilaben Balusinh - accused No.10 and appellant No.5 Chauhan Janakba Balusinh - accused

No.11 is allowed in toto and their conviction and sentences as awarded by the Trial Judge for the charges proved against them under Sections 336

and 504 of the IPC is quashed and set aside. Fine if any paid by any of the appellant is ordered to be refunded. Both these appellants are on bail

by the order of the Division Bench of this Court passed on 6.3.1996 and therefore their bail bonds stand cancelled.

(v) Remaining order of learned Trial Judge in respect of awarding compensation to the Complainant u/s 357 of the Criminal Procedure Code and

in respect of muddamal article is not interfered with.