JUDGMENT
Akshay H. Mehta, J.
1. Both these appeals arise from the judgmentdelivered by the Ld. Sessions Judge, Amreli dated30/9/1992 in Sessions Case No. 38/1991. By saidjudgment original accused no. 1 – Gala Kana has beenconvicted for an offence u/S. 302 of the Indian PenalCode (for short ‘IPC’) and he has been sentenced tosuffer imprisonment for life. He has also been convictedfor offence u/S. 333 of the IPC for which no separatesentence has been imposed. Moreover, he has beenconvicted for the offence u/S. 135 of the Bombay PoliceAct and has been sentenced to suffer RI for three months.The substantive sentences are ordered to runconcurrently. He has, therefore, approached this Courtby filing Criminal Appeal No. 1200 of 1992.
1.1. Original accused no.2 – Mitha Kanabhai has beenconvicted for offences u/Ss. 324 and 332 of the IPC readwith section 109 of the IPC and sentenced to suffer RIfor one year. However, he has been granted benefit underthe Probation of Offenders Act on the condition of givingpersonal bond as well as surety for good behaviour for aperiod of one year and the substantive sentence passedagainst him has been ordered to remain suspended tillthen. He has been acquitted of an offence u/S. 302 readwith section 109 of the IPC. The State of Gujarat hasapproached this Court by filing Criminal Appeal No. 123of 1993 challenging the order of acquittal passed infavour of accused no.2 for committing an offence u/S. 302 read with section 109 of the IPC.
1.2. It may also be noted here that against the ordergranting benefit to accused no. 2 u/S. 4 of theProbation of Offenders Act, the State had preferredCriminal Appeal No. 124 of 1993, but the same came to bedismissed by the Division Bench of this Court on 30thSeptember, 1993 at the time of preliminary hearingitself. Since aforesaid appeals arise from the samejudgment, they are disposed of by this common judgment.
2. It is the case of the prosecution that on 22ndMarch, 1991 upon receiving information from the informantthe Police Sub Inspector Mr. R.N. Dayatar attached toLiliya Police Station in District of Amreli decided tocarry out raid under the provisions of the BombayProhibition Act at the place of accused. He, therefore,asked the police constables attached to his policestation to dress themselves in uniform and to report tohim at night. Pursuant to his order, at about 8.30 p.m.Police Constable Ramjibhai Dayalbhai, RameshbhaiValajibhai, Mohanbhai Mangalaji, P.C. Vinabhai Khimabhaireported to P.S.I. One Kanubhai Haribhai Patel andTulashibhai Valabhai Patel both resident of villageLiliya were also summoned to act as Panch at the time ofraid. At the office of the P.S.I. all these personswere given to understand that as information was receivedto the effect that accused no. 2 – Mithabhai Kanabhai ofKharagam village was dealing in illicit liquor, raid wasto be carried out at his place. After complying with theinitial formalities the raiding party started for goingto Kharagam. Within half an hour they reached the placeand after alighting from the jeep except the driver,other policemen together with panchas went to the houseof accused no.2. When they reached there, they found thehouse was closed from inside. Hence the P.S.I. Dayatargave a shout to open the door. In response thereto, alady after some time came and opened the door and onseeing the police she shouted that ‘run run, it ispolice’. On hearing her shouts, both the accused startedrunning towards the back side of the house. Accused no.2 was ahead of accused no.1. Immediately PoliceConstables Virabhai Khimabhai and Mohanbhai Mangalajientered the house to apprehend the accused; whereasPolice Constable Ramesh Valaji did not enter the housebut from the outer side of the house he went towards backside of the house and waited near the door. As soon asaccused no. 2 tried to go out from the back door, he wascaught hold of by P.C. Rameshbhai. In the meanwhileaccused no. 1 had already reached the back door and atthat time accused no. 2 said “I am caught, Gala beat”[ Mane Pakadyo Chhe, Gala Mar ]. Accused no. 1,therefore, gave one blow with the weapon he was having atthat time, to Police Constable Rameshbhai, whoimmediately fell down on the ground. The weapon waslater on identified as Gupti which had entered the bodyof Police Constable Rameshbhai 2” below the left sidenipple of the chest and it had pierced through the bodydownward across and the pointed end of the weapon hadcome out from the back of the right waist of the body.Both these accused who were being chased by the policeofficials made good their escape taking advantage of thedarkness and also the cluster of babul trees. The P.S.I.warned them to stop and surrender. However, the accuseddid not listen to it and hence the P.S.I. fired oneround from his revolver, but it did not have any effectand the accused could manage to disappear in thedarkness. The policemen thereafter returned to theinjured person Police Constable Rameshbhai andconsidering the nature of injury he was immediately askedby some of them as to what happened and the PoliceConstable Rameshbhai informed them that it was accusedno. 1 – Gala who had caused him the injury. PoliceConstable Rameshbhai soon thereafter was shifted to CivilHospital at Amreli. The Medical Officer on duty Dr.Kiranbhai Kalabhai Sagodiya examined him and on findingthe condition of the patient critical, he immediatelysummoned Civil Surgeon who made arrangement for immediateoperation. The injured was thereafter shifted tooperation theatre where during treatment he expired.When the patient was brought to the hospital, he seemedvery restless and upon inquiry made by the MedicalOfficer as to how this injury was caused to him, he inbroken sentence stated ‘Kharagam, Gala Koli’. Since theMedical Officer was first concerned with the treatment,he did not note down the history of the patient in casepapers. However, later on i.e. after the death ofinjured person, he noted down the history in case papers.Since the weapon with which the injury was inflicted hadremained in the body of Police Constable Rameshbhai, itwas exactly not known then what type of weapon it was andat some point of time it was even felt that the weaponused by accused no. 1 was a small spear. However, whenthe weapon was taken out from the body of Rameshbhai, itbecame sure that it was Gupti and the said weapon wasthen packed and sealed by the Medical Officer and handedover to the police.
2.1. While Police Constable Rameshbhai was in thehospital, P.S.I. Dayatar went to Liliya Police Stationand registered a complaint which is at Exh. 36.Initially the complaint was registered for an offencepunishable u/S. 307 of the IPC, but later on it wasconverted into an offence u/S. 302 of the IPC upon thedemise of injured Rameshbhai. P.S.I. also immediatelyafter lodging the complaint informed his superiorofficers by radio message about the attack on PoliceConstable. After 12.00 midnight he started recordingstatements of various persons including the panchas, whohad accompanied the raiding party. During the course ofhis investigation, he recorded the statements of KanubhaiHaribhai and Tulashibhai Madhabhai i.e. panchas, PoliceConstables Gangaram Manibhai, Ramjibhai Dayalbhai,Mohanbhai Mangalaji and Virabhai Khimabhai. In the earlymorning of 23rd March, 1991 he called DhirubhaiRamajibhai and Nathabhai Karsanbhai to act as panchaswhile drawing the panchnama of scene of offence. By thattime, upon receiving the instruction from his superiorofficers, he handed over further investigation of thecase to Circle Police Inspector Mr. Bhadoriya. Mr.Bhadoriya thereafter collected the empty cartige of theround fired by P.S.I. Mr. Dayatar at the time of raidfrom his service revolver and necessary panchnama to thateffect was drawn. He also recorded statements of variouspersons including the persons residing in the vicinity ofthe scene of offence. He got the post mortem done of thedead body of Rameshbhai by the Medical Officer and onreceiving the information from Dy. Superintendent ofPolice Mr. Khant of Mahuva that Gala Kana was arrestedby him, Mr. Bhadoriya went to Savarkundla that effecteda formal arrest of accused no. 1 at 12.00 noon. On25/3/1991 around 4.30 p.m. accused no. 2 Mitha Kana wasalso arrested. Despite inquiry and interrogation of boththe accused, hilt of the Gupti could not be traced. Oncompletion of the investigation on 17/5/1991, hesubmitted chargesheet in the Court of the Ld. Magistrateat Amreli, who in turn committed the case to the Court ofSessions as offence u/S. 302 of the IPC is exclusivelytriable by the Court of Sessions.
3. At the trial, the Ld. Sessions Judge, Amreliframed charge against the accused on 13th July, 1992 foroffences made punishable u/S. 333 read with section 114 of the IPC, section 302 read with section 114 of the IPCand also against accused no. 1 for committing an offenceu/S. 135 of the Bombay Police Act. The charge wasexplained to the accused. They, however, denied the sameand claimed to be tried. In support of its case, theprosecution examined following 9 witnesses :-
(1) Dr. Kiranbhai K. Sagothiya P.W. 1 Exh. 17
(2) Dr. Bharatkumar M. Gadhvi, P.W. 2 Exh.24,
(3) Ramajibhai Dayalbhai P.W.3 Exh.26,
(4) Mohanbhai Mangalaji P.W.4 Exh.28
(5) Tulashibhai Madhabhai P.W.5 Exh. 29,
(6) Kanubhai Haribhai P.W.6 Exh. 31,
(7) Dhirubhai Ramajibhai P.W.7 Exh. 32,
(8) Ranmalbhai Nathabhai P.W.8 Exh. 34 and
(9) Jagvirsinh Sugarsinh Bhadoriya P.W.9 Exh. 39.
Over and above this, the prosecution also relied oncertain documentary evidence such as the FIR Exh. 36,case papers of deceased Rameshbhai Exh.20, medicalcertificate Exh.21, the post mortem report Exh. 25,inquest panchnama Exh. 42, the panchnama of scene ofoffence Exh. 33, etc.
3.1. At the end of recording of oral evidence, the Ld.trial Judge recorded the further statements of theaccused. They did not come out with any specific case,but their defence appear to be that of denial.
3.2. At the end of the trial, both the accused wereconvicted and sentenced as stated above.
4. Before the commencement of hearing of theseappeals Mr. A.D. Shah, Ld. counsel appearing forappellant in Criminal Appeal No. 1200 of 1992, wasrequested by us to render his serices to plead the caseof accused no. 2 who is respondent of Criminal AppealNo. 123/1993, since he was not represented by anyadvocate and Mr. Shah has readily agreed to do so. Hehas taken us through the record of the case including theoral evidence of the prosecution witnesses. He hassubmitted that the order of conviction and sentencepassed by the Ld. trial Judge against accused no. 1 arebad in law in as much as the prosecution has not beenable to prove its case against him beyond any reasonabledoubt. He has submitted that the prosecution witnessesare not telling the truth because looking to the factthat there was darkness at the place where the incidenttook place, they could not have identified the assailant.He has further submitted that though during the evidencebefore the Court these witnesses have tried to suggestthat identity of the assailants could be establishedbecause there was a l[amp burning at the spot where theincident took place, the said version is nothing but animprovement because no such fact has been stated by thesewitnesses in their statements recorded by theInvestigating Officer. He has submitted that so far theoral dying declaration made by the deceased before theMedical Officer at Amreli is concerned, it cannot beaccepted because the information given by the deceasedwhile in injured condition to the Medical officer inresponse to the query made by him, is very confusing andit does not suggest conclusively that the deceased wantedto convey that it was Gala Kana who had caused him thisinjury. He has further submitted that the Police SubInspector, who carried out the raid and subsequently wholodged the complaint for the crime committed by accusednos. 1 and 2, it was not proper for him to investigateinto the matter. Such investigation, according to Mr.Shah, could only be one sided and it cannot be termed asa fair and impartial investigation. He has furthersubmitted that the oral testimony is not in consonancewith the medical evidence. He has further contended thatsince no blood stains are found at any place, the assaulton Police Constable Rameshbhai by accused no. 1 becomesvery doubtful. In the alternative, he has submitted thatin case it is found that the accused no. 1 was theauthor of the injury caused to deceased Rameshbhai,looking to the circumstances prevailing then and the factthat at the time of assault on Rameshbhai by accusedno.1, accused no.2 and Rameshbhai were having a smallscuffle with each other. In that view of the matter, theaccused no. 1 could not have intended to cause theinjury which actually came to be suffered by Rameshbhai.In other words, according to Mr. Shah, the offence, ifit is ultimately proved to be committed by the accused,would not be covered u/S. 302 of the IPC, but it wouldfall u/S. 304 Part-I of the IPC.
4.1. So far the State’s appeal is concerned, he hassubmitted that looking to the role played by accused no.1, by no stretch of imagination it can be said that hewas hand in glove with accused no. 1 to commit deadlyassault on Police Constable Rameshbhai and he instigatedaccused no. 1 to kill him. He has further submittedthat words uttered by accused no. 2 are only “I amcaught, Gala beat” and those words do not in any way giveindication that what he meant was Gala kill, but he hassimply used word ‘beat’ which would mean that he neverintended to cause serious harm the deceased except to theextent that the deceased would loosen his grip and hecould manage to escape. His contention is, therefore,that the State’s appeal does not have any merit and itdeserves to be dismissed.
4.2. As against that, Mr. K.C. Shah, Ld. APP forthe State has submitted that the judgment and order ofconviction and sentence passed by the trial Court to theextent they relate to accused no. 1 are proper andrequire no interference by this Court. He has furthersubmitted that the oral evidence of prosecution witnessestogether with the medical evidence conclusively provedthat it was accused no. 1 who had caused fatal injury tothe deceased and the same was done at the instigation ofaccused no.2. He has lastly contended that the appealfiled by the accused be dismissed and State’s appeal beallowed.
5. To appreciate the rival contentions we haveminutely gone through the evidence on record with a viewto reappreciate it afresh.
6. To prove its case against the accused theprosecution has firstly relied on the medical evidence toestablish that deceased Police Constable Rameshbhai haddied a homicidal death. Dr. Kiranbhai Kalabhai P.W. 1Exh. 17 has stated that on 26th June, 1990 he wasworking as Medical Officer at Amreli Civil Hospital. On22nd March 1991 at about 10.35 p.m. a patient namedRameshchandra Valajibhai was brought to the hospital byPolice Sub Inspector Mr. Dayatar. On examination it wasfound that the patient had suffered very serious injury.According to him, deceased had suffered a slantingpunctured wound just below the left nipple of the chestgoing downwards and piercing the body through and throughand the pointed blade portion of the weapon had come outon the right back side of the waist. On the other sideof the body about a portion of 12 cm. had come out ofthe body and it could be clearly seen. He has describedthe injury thus – “Stab wound transverse 1.5 cm. broadbelow 2″ of Lt. side nipple through and through withsharp pointed instrument in Situ seen at Right Pbt.axillary lie at D-10 level. about 12 cm. length end ofinstrument was out of body.” He has further stated thatsince the injury was very serious and the condition ofthe patient was very critical, he immediately summonedCivil Surgeon to carry out the operation. However,during treatment the patient expired. He has also statedthat since the patient’s treatment was most important andthough he made inquiry about the cause of the injury fromthe patient, he had noted down this history in his casepapers after the patient expired. The weapon hadremained inside the body of the injured Rameshbhai whenhe was brought to the hospital and it could be taken outonly after his death. This witness packed the saidweapon in a cover and sealed it and handed it over to thepolice.
7. Upon the death of Police Constable Rameshbhai,his body was sent for post mortem examination to theconcerned Department in Civil Hospital at Amreli. Dr.Bharatkumar Mamaiyadan Gadhvi P.W. 2 Exh. 24 carriedout the post mortem examination on 23/3/1991 between10.30 a.m. and 12.30 noon. He also prepared notes ofthe post mortem examination of the dead body, which hehas produced on record at Exh. 25. The witness hasmentioned external as well as internal injuries sustainedby the deceased in a separate sheet as part of column no.17 of the post mortem report. In the said column theinjuries have been described as follows :-
(1) A dressed wound underlying penetrating incised wound measuring 3/4″ x 1/4″ spindle shaped – 2 ” to 2.1/2″ below Lt. nipple just menial to Lt. midelowender line. Transverse having sharp brownish red margins and zontal angle E corresponding cuts on Lt. pocket of shirt and Lt. side of ‘Ganji’
(2) A dressed wound O underlying penetrating incised wound measuring 3/4″ x 1/4″ spindle shaped – 3″ to 3.1/2″ above the Rt. costal margin just posterior to posterior ciliary line – Transverse – having sharp brownish red margins and sentry angles. Corresponding cuts on Rt. side of shirt and ‘Ganji’.
(3) A perforating wound 1″ in diameter piercing lower part of medievalism – adjoining parts of both parcels pleura and Rt. dome of diaphragm both dark coloured blood found around the wound wound margin brownish red – sharp dark coloured blood in both pleural carchis.
(4) A perforating wound 1.1/2″ x 3/4″ in superolateral aspect part of Rt. lalee of from its posterolateral aspect trio lateral in having irregular margin – Inter substance dark coloured clot projecting from wound.
(5) An incised wound 1.1/4″ x 1/4″ x 1/4″ on anter aspect of upper lobe of Rt. kidney obliquely upwards from medial to lateral – multiple dark coloured clot all around – brownish red sharp margin running parallel to each other.
(6) Dark red blood and dark coloured clots in puritanical cavity.
In the opinion of tis witness, the cause of death wasshock due to injury to liver and right kidney. Thiswitness has been extensively cross-examined by thedefence, but it has not succeeded to cull out anymaterial which may go against the findings recorded byhim in the post mortem notes. In the opinion of thiswitness the injury suffered by the deceased wassufficient in the ordinary course of nature to causedeath.
7.1. Over and above this, the prosecution has reliedon the inquest panchnama, which is totally in consonancewith the findings regarding external injuries recorded bythe Medical Officer in the post mortem notes. In thisview of the matter, we have no hesitation to hold thatthe deceased had died homicidal death and we agree withthe finding given by the Ld. trial Judge on this count.
7.2. The prosecution has examined five eye witnessesand Ramajibhai Dayalbhai P.W. 3 Exh. 26 is one of them.According to him between 1st May 1989 and 16th July 1992he was attached to Liliya Police Station as unarmedpolice constable. On 22/3/1991 while he was on dutyP.S.I. Mr. R.N. Dayatar directed him to report on dutyat night after putting on the uniform. He, therefore,went home and around 8.00 O’clock in the evening reportedto the P.S.I. in uniform. He has further stated that atthat time other Police Constables, namely VirabhaiKhimabhai, Mohanbhai Mangalaji, Rameshbhai Valajibhai,etc. were there. Over and above this, two persons fromLiliya village were also called at the police station.They were given to understand that information wasreceived to the effect that bootlegging activity wascarried on by accused nos. 1 and 2 at village Khara Gamand their premises therefore, were required to be raided.Two residents of Liliya were summoned by the P.S.I. toact as panchas during the raid. The whole raiding partythen boarded the jeep and went to village Kharagam, wherethe jeep was parked on road just opposite to the house ofaccused no.2. All except the driver of the jeep alightedfrom the jeep and they went to the house of accused no.2 which was locked from inside. The P.S.I. gave a shoutto open the door and in response thereto, after awhile,one lady came there and opened the door. She, however,on seeing the police immediately screamed and warned theinmates of the house that it was police, run away. Whilethe accused started running to the back door, two policeconstables, namely Virabhai Khimabhai and MohanbhaiMangalaji went inside the house to apprehend the accused,whereas Rameshbhai Valajibhai went to the back side ofthe house from outer side of the house. He has furtherstated that Police Constable Rameshbhai waited just nearthe back door and as soon as accused no. 2 came out, hecaught hold of him. Accused no. 2 immediately told hisbrother Gala that he was caught and Gala should beat toget him free. On hearing this accused no. 1 gave a blowwith weapon he was having with him to Police ConstableRameshbhai and as a result of this assault Rameshbhaifell down on the ground. He has further stated that theaccused thereafter started running and the P.S.I. andothers asked them to stop, but they did not listen.Hence, P.S.I. fired one shot from his revolver, but theaccused made good their escape.
7.3. This witness has further stated that all of themthereafter went to Rameshbhai and some of them asked himwhat had happened. At that time he informed them thatGala Kana had caused him injury with Gupti which hadpierced through the body and had remained inside thebody. He has also stated that at that time deceasedRameshbhai said that it was Gala accused no. 1 who hadcaused him injury. According to this witness, he hadseen the incident in the light of a lamp which washanging on a bamboo stick. He has also stated that heknew both the accused since they were brought to thepolice station on earlier occasions in connection withprohibition cases. In the cross-examination by thedefence he has admitted that in the statement before thepolice, he had not stated that he could notice theincident in the light of lamp which was hung on a bamboostick at the place of incident. He has further admittedthat he had not stated before the police that he knew theaccused before the incident, as they used to come to thepolice station in connection with prohibition cases. Hehas further stated that when the door was opened andaccused started running Virabhai Khimabhai and PoliceConstable Mohanbhai Mangalaji followed them inside thehouse and he had seen both the accused coming out of thedoor situated at the back followed by Virabhai andMohanbhai. He has further stated that he had not seenany weapon in the hand of Gala Kana – accused no. 1before it came to be inflicted on Police ConstableRameshbhai. He has also stated that he did not know fromwhere the weapon was brought by accused no.1. He hasfurther stated in the cross-examination that deceasedRameshbhai when caught Mitha his face was towards south,whereas the blow which was given by Gala Kana was fromleft hand side of the deceased. On receiving the blowRameshbhai fell down by giving a shout that “O sir I amkilled.” He has further stated that as soon as theaccused made good their escape, the P.S.I. and othersasked Rameshbhai, who had beaten him. He has also statedthat he and P.S.I. Mr. Dayatar ran after the accused,but they could not apprehend them. The P.S.I. alsofired a shot from his revolver. In the cross-examinationfor accused no. 2 he has stated that he had no knowledgeas to how many members in the family of Mithabhai.
7.4. The second witness is Mohanbhai Mangalaji P.W.4Exh. 28. In the examination-in-chief he merely repeatsthe same story as stated by earlier witness. However, hehas stated that he could see the tubelight inside thehouse of Mitha Kana. He has further stated that he knewthe accused Mitha Kana because he used to come to thepolice station in connection with prohibition cases. Hehas further stated that he also knew Gala Kana because hewas serving as a security man and in that connection heused to keep a weapon and for that he had to visit policestation in connection with the licence of the weapon. Onthe aspect of how Rameshbhai came to be injured, he hasmore or less given the same version as given by theearlier witness. From the cross-examination nothing muchof any importance from the defence point of view has beenelicited from this witness.
7.5. The next witness examined by the prosecution isTulashibhai Madhabhai P.W. 5 Exh. 29. He at therelevant time was resident of Liliya. He was summoned togo alongwith the raiding party to witness the thingshappening there and upon making full preparation theraiding party started for village Kharagam. The witnessfurther states that when the lady opened the door of thehouse, she immediately on seeing the police raised theshout warning the inmates of the house to run that thepolice has come. The inmates, namely accused nos. 1 and2 started running towards the back of the house and theywere followed by two constables inside the house.However, whether they were Mohanbhai or Virabhai he wasnot very sure about it. He further states thatRameshbhai, the P.S.I. and Ramajibhai went behind thehouse from western direction to stop the accused fromrunning away from the back door. He also states that theRameshbhai after going behind the house caught hold ofone accused, who immediately asked his brother Gala tobeat, as a result of which Gala gave a blow with a weaponwhich entered the body of Rameshbhai.In thecross-examination except for certain contradictions tothe effect that about the lamp he had not stated anythingbefore the police nor he had stated anything aboutknowing of the accused prior to the incident in hisstatement recorded by the police, no effective materialto dislodge this witness from his main story has beenbrought out.
7.6. Similarly prosecution has examined TulashibhaiMadhabhai and Kanubhai Haribhai P.W. 5 and 6 Exhs. 29and 31 respectively as eye witnesses. But they haveturned hostile and not supported the prosecution story inits vital aspect.
7.7. Ranmalbhai Nathabhai P.W.8 Exh. 34 who at therelevant time was P.S.I. has stated in his evidence thaton receiving the information about the bootleggingactivity of the accused at Kharagam, he had asked certainPolice Constables to be ready in uniform to carry out theraid. He had also summoned two panchas to accompany theraiding party. When the raiding party reached villageKharagam, they parked the jeep on the road and went onfoot to the house of accused no.2. He gave a shout toopen the door which was opened by one lady whoimmediately gave a shout “run the police has arrived.”Immediately therefore Mohanbhai Mangalaji and VirabhaiKhimabhai chased the accused from inside the house,whereas Police Constable Rameshbhai Valajibhai went tothe back side of the house from the outer side of thehouse. In the Osari at the relevant time a tubelight wason and in that light two persons could be seen openingthe door falling on the western side. He has furtherstated that accused no. 2 and accused no. 1 tried toescape through this door. At that time Police ConstableRameshbhai caught hold of accused no. 2 and at that verytime accused no. 2 asked accused no. 1 to beat as hewas caught. He has further stated that accused no. 1immediately gave a blow on the stomach of Rameshbhai withthe weapon he was carrying and as a result thereofRameshbhai gave out a shout “O Sir I am dead” and then hefell down on the ground. He has further stated that heand Police Constable Ramajibhai chased the accused andcalled upon them to halt, but they did not listen andhence one shot was fired from the revolver. The accused,however, cannot be traced and they disappeared in thedarkness in the cluster of babul trees. When theyreturned to Rameshbhai, they noticed that the weapongupti had pierced through and through from the stomachside and it had come out on the back side of Rameshbhai.When one asked Rameshbhai, he incoherently said that hehas been beaten by spear and gupti. According to thiswitness, Rameshbhai was immediately removed to AmreliCivil Hospital for treatment and he thereafter went tothe police station and lodged a complaint. When hereceived the information with regard to the demise ofRameshbhai, he accordingly sent a report to the Ld.Magistrate regarding conversion of the offence from u/S. 307 to that of section 302 of the IPC. In thecross-examination by the defence attempt has been made toelicit from him that looking to the situation of thehouse and and because of the want of proper lighting,they could not have seen the assailants and theiridentity regarding the accused no. 1 being the assailantcan be rendered very doubtful. The defence has alsocross-examined this witness to show that at the time whenaccused no. 2 was apprehended by Police ConstableRameshbhai, a scuffle was going on between them asaccused no. 2 was trying to get himself free from thegrip of Rameshbhai. It is also endeavored to be broughtout from this evidence by the defence that at the timewhen the blow came to be given by accused no.1, there wasgreat amount of movement between the two, namely thedeceased and accused no. 2 and after the injury wasinflicted both the accused ran away in the darkness so asto make their identity almost impossible. The defencehas tried to suggest to this witness that because of thedarkness the identity of the assailant could not beascertained and the witness and the others had no ideaabout the assailants till the time they reached thehospital. The said suggestion has been denied by thewitness. This witness has also stated that statements ofsome of the eye witnesses were recorded by him before thepanchnama of scene of offence came to be drawn and duringinterrogation of those witnesses, he had not asked themany question to the effect that whether there was lightat the place of incident. This witness has been put apointed question that whether he believed that if theperson whose hand was caught by the deceased Rameshbhaihad not spoken that “Mane Pakadyo Chhe, Gala Mar”Gala would not have beaten the deceased. In answerthereto the witness has said that if that person i.e.accused no. 2 had not spoken the above words, accusedno. 1 Gala would not have inflicted the injury. He hasfurther stated that so far Gala Kana is concerned, he wasknown to him because he had licence to hold the weaponand in connection with that licence he had met thewitness on 3 to 4 occasions earlier. Further he hasstated that he also knew Mitha Kana – accused no.2because twice he was apprehended by him. He hasbeen thereafter cross-examined by the defence to provethe omissions and contradictions of the eye witnesses,who were already examined before the Court.
7.8. Jagvirsinh Sugarsinh Bhadoriya, P.W. 9 Exh. 39is examined by the prosecution as he had taken the chargeof investigation from P.S.I. Dayatar on 23rd March 1991i.e. on the next day of the incident. In theexamination-in-chief he has given a detailed account ofhis investigation and in the cross-examination nothingmuch has been asked to him.
7.9. Over and above this, the prosecution has placedgreat reliance on the panchnama of the scene of offenceand for proving the same Dhirubhai Ramajibhai P.W.7 Exh.32 has been examined. As stated above, he has turnedhostile. However, he has admitted that he had signed thepanchnama, though he had not read the same. Thepanchnama of the scene of offence has been exhibited andtaken on record at Exh. 33. The prosecution has alsoplaced reliance on the complaint lodged by P.S.I. Mr.Dayatar at Liliya Police Station in the night between22nd and 23rd of March 1991.
8. We may now appreciate the evidence of theaforesaid witnesses in light of the contentions raised byMr. A.D. Shah before us.
8.1. The first contention of Mr. Shah is thatconsidering the fact that the incident had taken placeafter 8.30 p.m. and hence there was darkness at theplace where the raid was carried out and the incident hadhappened. According to him, due to insufficiency oflight at the place, identity of assailants i.e. accusedno.1 and his brother accused no. 2 could not be made.He has further stated that since the accused were in theprocess of running, it had become very difficult toidentify them. This contention, however, cannot beaccepted because there is ample evidence on record toshow that there was sufficient light available at theplace to enable the witnesses to identify both theaccused. As seen above, most of the eye witnesses havestated that there was a lamp burning on north-westerncorner of the house and its light covered the area inradius of about 30 to 40 ft. It is also in evidence thatupon P.S.I. Mr. Dayatar giving a shout to open thedoor, a lady came and opened the door of the Fali and onseeing the police, she immediately in a loud voice warnedthe inmates to escape. The police standing at the doorcould see two persons in the Osari trying to run at theback side of the house near the place meant for tetheringcattle i.e. Farja and from there towards the door ofNavela. This Navela is 7′ and 3″ in width and about 32’and 6″ in length. Two Police Constables, namely VirabhaiKhimabhai and Mohanbhai Mangalaji chased those twopersons from inside the house, whereas deceasedRameshbhai went towards the door of Navela from the outerside of the house. According to all these witnesses, thelamp which was hanging on a bamboo stick gave sufficientlight at the place where door of Navela is situated andwhere the incident of inflicting injury on Rameshbhai hadtaken place. It is the say of P.S.I. Mr. Dayatar thatthere was a tubelight on the bamboo stick which gavesufficient light to ascertain the identity of theassailants. The defence has, however, brought out fromthe witnesses that this fact was never stated by them inthe police statements and this omission has been dulyproved during the cross-examinations of P.S.I. Mr.Dayatar and Mr. Bhadoriya. However, if the map of thescene of offence which has been produced at Exh. 47 andthe panchnama of the scene of offence are perused, theyclearly show presence of the electric light at the placestated by the witnesses. The said light was found to bein working condition when the panchnama was drawn earlyin the morning of 23rd. Assuming that the said fact hadnot been stated by the witnesses in their policestatements, such omission cannot be of such a nature thatit can be termed as contradiction. It is more so whenthe say of the witnesses gets ample corroboration fromthe map and panchnama of the scene of offence and theomission becomes totally insignificant and on that aspectthe say of the prosecution witnesses becomes absolutelyreliable.
8.2. If this aspect is examined from other angle, thenalso one can safely come to the conclusion that there wasenough light for the witnesses to see the incident andidentify the assailants. It has come in the evidencethat when the jeep car was parked on the road exceptdriver all other members of the raiding party got downand went near the house of accused no.2. Thereafter, theP.S.I. Mr. Dayatar shouted to open the door which wasopened after awhile by a lady, who immediately gave ashout to warn the inmates of the house to escape as thepolice had arrived. Meaning thereby that even on openingthe door of Faliya there was sufficient light at theplace whereby the lady could see and identify the policepersonnel. There is also in evidence that while standingat the door the police could see two accused running frominside the room towards Farja. Had there been a totaldarkness at the place, neither the lady could haveidentified the policemen nor the policemen could haveseen the accused running away towards Farja. Judicialnote of the fact can also be taken that this being aresidential house, at night hours the lights are bound tobe on since it was not very late in the night but thetime was between 8.30 p.m. and 9.00 p.m. Consideringall these aspects, we are of the opinion that at thescene of offence there was sufficient light. It is truethat the prosecution witnesses have said in theirevidence that the accused managed to disappear takingadvantage of the darkness at the place as well as thecluster of babul trees. It may be recalled here thataccording to the witnesses, the light which emanated fromthe lamp or tubelight was in the radius of only 30 to 40ft. and beyond that it was of darkness. It is also inevidence that after getting free from the grip ofdeceased Rameshbhai, accused no. 2 as well as accusedno. 1 ran towards the Babul trees which are at thedistance of around 50 ft. and beyond that. Thewitnesses, therefore, tell the truth that after coveringthe lighted area by running the accused got disappearedin the darkness beyond the babul trees. The defence is,therefore, not correct when it says that the prosecutionwitnesses have tried to blow hot and cold at one and atthe same time nor it can be said that considering theevidence of these witnesses, it is proved that there wasall darkness at the place of incident and the identity ofthe assailants could not be ascertained.
8.3. The second limb of question of identification ofthe accused by the prosecution witnesses is that boththese accused were known to them. Though the defence haschallenged this aspect also and has confronted thewitnesses with their previous statements recorded by thepolice and has questioned them to the effect that theyhad not stated before the police that they had alreadyknown the accused prior to the incident because of somereason or the other. In our opinion, even if this factis not stated before the police, it does not adverselyaffect their evidence, firstly because in the policestatement a person is not required to tell each and everydetail regarding the incident. If the crux or genesis ofthe incident is stated by the witness in his statementrecorded by the police, the other incidental matters donot assume much importance and omission to mention suchincidental facts in the statement becomes insignificant.Omission for being taken into consideration should be ofsuch nature that because of it the authenticity ofnarration of facts in the statement becomes doubtful. Ifthe Court is satisfied that looking to the circumstanceson record, the prosecution witnesses had all the chancesto know the accused prior to the incident, it can safelyaccept their evidence on that count. In this case, it isalmost an admitted fact that both these persons wereindulging into bootlegging activity since long and it isvery natural that while carrying on such illegalactivity, they may have occasions to visit the policestations or the Court of law. It is the say of theprosecution witnesses and especially police witnessesthat prior to the present incident accused no. 2 MithaKana had been brought to Liliya Police Station inconnection with his bootlegging activity and as suchthese policemen had a chance to see him and to properlyknow him. So far accused no. 1 Gala Kana is concerned,over and above this, he had also occasions to visit thepolice station in connection with his licence to holdweapon. In view of these circumstances, even when theprosecution witnesses have not stated the fact regardingtheir knowing the accused prior to the incident in thepolice statements, there is no harm in accepting theirversion in as much as the reasons for the policewitnesses to know these accused are very naturalconsidering the nature of duty they are performing andthe illegal activity which the accused are indulginginto.
8.4. There is one more reason to accept the version ofprosecution witnesses that it was Gala Kana who hadinflicted injury on deceased Rameshbhai because all thewitnesses are almost unanimous in saying that when MithaKana was apprehended by deceased Rameshbhai, he gave ashout “Mane Pakadyo Chhe, Gala Mar”. The record of thecase shows that at the time when the incident took place,except two male members and one lady member, no otherseems to be present in the house. It is also very clearthat when Mitha Kana is apprehended, the only person whois in a position to inflict injury on the deceased isGala Kana. To lend support to this fact, there is onemore aspect available on record, that is in the form oforal dying declaration made by deceased Rameshbhai firstto Police Constable Ramajibhai and thereafter to theMedical Officer at Amreli Civil Hospital. P.W.Ramajibhai is very specific on this aspect. According tohim, when the accused made their escape good, all thepersons of the raiding party came to deceased Rameshbhaiand Rameshbhai told them that it was Gala Kana who hadinflicted injury on him. Similarly, when he was taken tothe hospital he had revealed to the Medical Officer Dr.Kiranbhai Kalabhai in response to his query that who hadbeaten him, he had stated ‘Kharagam Gala Koli’. Allthese aspects also lend support to the case of theprosecution that it was accused no. 1 Gala Kana who hadinflicted blow on hearing a shout from accused no. 2Mitha Kana and as a result of that assault, Rameshbhaihad received fatal injury.
8.5. If the overall view of the aforesaid allcircumstances is taken into consideration, the submissionmade by Mr. A.D. Shah, Ld. counsel for the appellantaccused regarding failure on the part of the prosecutionto establish the identity of the accused cannot beaccepted.
9. Mr. Shah has further contended that the medicalevidence is not in consonance with the oral evidence. Wefind no merit in this argument because the medicalevidence which we have already discussed above, clearlyshows that the weapon had entered into the body ofdeceased Rameshbhai from the left side of his body and ithad penetrated through and through and had come out fromthe body on the back side after causing grave injuries tothe internal and very vital organs such as kidney andliver. The witnesses have stated before the Court thisvery fact. Not only that but the medical evidence hasalso lent corroboration to that version that when theinjured was removed to the hospital from the scene ofoffence, the weapon had remained in the body of thevictim. This aspect even further gets corroboration fromthe fact that when the patient had died thereafter onlythe Medical Officers could take out the weapon from hisbody which was packed and duly sealed by Dr. Kiranbhaiand handed over to police. In light of these facts itcan hardly be said that the medical evidence is not inconsonance with the oral evidence of the prosecutionwitnesses.
10. Mr. Shah, Ld. counsel for the accused hasfurther submitted that the prosecution is not sure thatwhich weapon the deceased was assaulted by accused no.1.According to Mr. Shah in the case papers prepared by Dr.Kiranbhai, it is stated that it is either spear or guptiwhich is used for committing this crime. This lapse onthe part of witnesses including the deceased can well beexplained this-wise that in the struggle to escape fromthe place which was under raid by the police, the weaponcame to be inflicted in the body of the deceased byaccused no. 1 and had remained there also. The witnesstherefore, had any chance to see properly by what meansthe injuries came to be caused. The thing became littlebit more difficult because hilt of the gupti had gotbroken and separated and only blade had remained insidethe body. The other pointed end on the back sidetherefore gave some appearance of small spear whichcreated slight confusion amongst the witnesses as wellthe doctor to mix up gupti with a small spear. Lookingto the evidence of Dr. Kiranbhai, it becomes very clearthat he had taken out the weapon from the body of thedeceased and had packed it and in a sealed conditionhanded it over to the Investigating Officer which wasultimately brought before the Court at the time of trial.Mr. Shah’s submission, therefore, cannot be accepted.
11. Mr. Shah has lastly submitted that if the Courtcomes to the conclusion that the prosecution hasadequately established the fact regarding the assault byaccused no. 1 and upon accused no. 2 calling him tobeat, looking to the factors emerging from theprosecution evidence, the offence that may be constitutedwould not be u/S. 302 of the IPC, but a lesser one,namely an offence u/S. 304 Part-I of the IPC. Insupport of his contention, he has further submitted thatthe prime intention of the accused at the time ofincident was to escape from the clutches of the policeand at that time when accused no. 2 came to beapprehended, he shouted for help by asking accused no. 1to beat, and in the process of complying with the requestof accused no.2, accused no. 1 while running to delivera blow to deceased Rameshbhai, who had caught hold ofaccused no.2. He has further submitted that in allprobabilities the intention of accused no. 1 could beonly to injure the hand of deceased with which he hadcaught hold of accused no.2 and it was only due toaccident the blow fell just below the left side nipplebetween two ribs and gupti being the narrow long pointedtwo edged weapon, pierced through and through the bodyand came out on the right back side at a lower portion ofthe body. According to Mr. Shah, since accused no. 1was in the process of running while delivering the blow,two forces, namely the force of hand used for inflictingthe blow as well as the force which had generated onaccount of process of running had also caused the weaponpierce through and through the body from left side to theright back side portion of the body. He has, therefore,submitted that merely because the injury was of veryserious nature and it was sufficient in the ordinarycourse of nature to cause death, it cannot be said thatit would be covered under Clause (3) of Section 300 ofthe IPC. To sum up this contention it can be stated thataccording to Mr. Shah, the prime intention of theaccused no. 1 was to get accused no. 2 released fromthe grip of the deceased and help him in escaping fromscene of offence.
11.1. This submission though appears to be attractive,cannot be accepted to take the case of accused no. 1 outof the provisions of Clause (3) of Section 300 of theIPC. Mr. Shah has submitted that while running the blowwas inflicted, which had accidentally fell on the bodyjust below the left nipple on chest. If Mr. Shah’ssubmission is to be accepted, then we may have to holdcontrary to the findings arrived at by the MedicalOfficer, who had performed the post mortem of thedeceased. According to the Medical officer, the blow wasinflicted 2″ below the left nipple on the left side ofthe body and the weapon had travelled from upwarddirection to downward and it had in the process damagedthe kidney and liver, the vital internal organs of thebody and the pointed end of the weapon had come out justbelow the right side waist of the body. In our opinion,if a person while in the process of running inflicts ablow, it would more or less be horizontal in direction.It is almost impossible for a person, while running toinflict a blow due to which the weapon may travelvertically, from upward to downward direction. In otherwords, a vertical injury may seem totally improbable tobe inflicted while the assailant is in the process ofrunning considering the nature of weapon used for causinginjury. It may be noted here that it is in evidence thataccused no.2 was running ahead of accused no. 1 andafter covering the distance of Farja, accused no. 2 wasfirst to approach the door opening on the back side ofthe premises where deceased Rameshbhai was standing andhe apprehended accused no.2. This would create asituation that the door gets blocked and accused no. 1was following accused no. 2 would not get any passage toclear him out of the house. In such situation, accusedno. 1 would not have any other option but to stoprunning and remove the hurdle in his way. It appearsthat it was precisely when such situation had arisenaccused no. 2 gave a shout “Mane Pakadyo Chhe, GalaMar”. Accused no. 1, therefore, was not only requiredto get accused no.2 released from the grip of deceasedPolice Constable Rameshbhai, but he had also got to clearthe obstruction which was there in the form of thedeceased and accused no.2. In such static condition itwas very easy for accused no. 1 to inflict the injurywhich he himself intended. If accused no. 1 had merelyintended to use some force with a view to secure therelease of accused no.2 from the grip of the deceased, hewould have used the weapon which had cover and would haveinflicted a blow on the hand of the deceased which in allprobabilities would have given the expected result.However, it has not happened so. On the contrary, thedeadly weapon had been brought out by accused no. 1 fromthe scabbard and he had thereafter inflicted the blow onbody of the deceased with such a force that the entireblade portion of the weapon pierced through the body fromleft nipple side downward to the right back side of thewaist. Not only that but the entire blade portionremained in the body, whereas its handle got separated.If accused no. 1 had used a deadly weapon like gupti toinflict a blow just below the left nipple and the weapontravelled through and through to the otherside of thebody, no other intention can be attributed to accused no.1 except that he intended to kill the deceased byinflicting such injury which was sufficient in ordinarycourse of nature to cause his death.
According to Mr. Shah, there was no personalenmity between accused no. 1 and the deceased.Moreover, no incriminating substance was found by thepolice during this raid and thereafter. However, onemust not forget at this juncture that the deceased wasbelonging to police force and the accused wereestablished bootleggers. For a person indulging intobootlegging activity, there would not be any othergreater enemy than a member of police force. Accusedno.1, therefore was out to eliminate that enemy, who haddared to apprehend him in his own house. As statedabove, even if there was no personal enmity between thetwo, accused no. 1 had seen enemy in the deceased as hebelonged to police force. It has also come on recordthrough panchnama at Exh. 33 that while carrying out thesearch and drawing the panchnama of scene of offence,Ganja to the extent of 250 to 300 grams was recoveredfrom this very house. Since wives of both these accusedwere present when said panchnama was drawn and Ganja wasrecovered, they have been prosecuted for the offenceswhich have been made punishable under the provisions ofNarcotic Drugs and Psychotropic Substances Act, 1985. Inthese circumstances, the contention of Mr. Shah withregard to the intention of accused no. 1 at the time ofinflicting blow on the deceased cannot be accepted.
11.2. In support of this contention Mr. Shah has alsocited before us several decisions, one of them being adecision rendered in the case of Vaghari Kala Bhikha v/s.State reported in 25 (1) G.L.R. at page 188. In thatcase the accused had caused injury with knife to a PoliceConstable while trying to avoid his arrest. He wastherefore, charged for offence u/S. 307 of the IPC.This Court, however, held that since the intention of theaccused of that case was not to cause that particularinjury and there was all possibility that the said injurywas unintentional or accidental and, therefore, in theopinion of this Court, the accused could not be convictedfor offence u/S. 307 of the IPC, but could only beconvicted for causing injury to the victim. We have gonethrough this decision and we find that the decisionrendered in this case may not be of any help to Mr. Shahbecause looking to the facts and circumstances of thatcase, it could safely be concluded that the primeintention of the accused was to escape. However, thefacts of the present case are totally different from thecase referred to above. In the case on hand, it clearlyappears that though accused intended to escape from thescene of offence, at the time when assault came to bemade on the deceased Rameshbhai by accused no. 1, theintention to kill was first and foremost in his mind.The purpose for which, the assault was made and injurywas caused, then becomes insignificant. In the presentcase, at the time of assault accused no. 1 had no otherintention but to inflict a fatal injury on the deceasedPolice Constable. We, therefore, do not see how theauthority cited before us can be helpful to Mr. Shah.The other decision relied on by Mr. Shah is rendered bythe Apex Court in the case of Jagrup Singh v. State ofHaryana reported in A.I.R. 1981 S.C. p. 1552. This isa case wherein the Apex Court considering the facts, cameto the conclusion that since the accused of that case hadgiven a blow with blunt side of a gandasa and that too inthe heat of the moment and without premeditation, hiscase would be covered under exception 4 of Section 300 and Clause 3 of Section 300 would not apply. There canbe no dispute with regard to the view taken by the ApexCourt in that case. However, from no angle the presentcase fits into the frame of the case before the ApexCourt and that decision therefore, will not render anyassistance to Mr. Shah. Similarly Mr. Shah has reliedon the decisions rendered by the Apex Court in the caseof Gopal and ors v. State of U.P. reported in JT 2001(4) SC p. 439 and in the case of Krishna Tiwari & anr.v. State of Bihar reported in JT 2001 (3) SC at p. 331,wherein it has been laid down that while deciding thequestion of intention the surrounding facts andcircumstances of the case are required to be kept inview. There cannot be any contrary opinion to this.However, in the case on hand, even after keeping in viewall these surrounding facts and circumstances, we arevery sure that in this case the accused no. 1 had noother intention but to commit the murder of deceasedPolice Constable Rameshbhai. The aforesaid decisionstherefore, cannot be relied on. Over and above this Mr.Shah has relied on the decisions in the cases of JawaharLal v. State of Punjab reported in AIR 1983 SC p. 284and Jagtar Singh v. State of Punjab reported in AIR 1983SC p. 463. However, considering the facts andcircumstances of those cases, it becomes clear that theyare not be of any help to Mr. Shah.
11.3. Looking to the nature of the weapon, the seat andnature of injury and the force with which it is given, wehave no hesitation in holding that accused no. 1 hadentertained one and only one intention to do away withPolice Constable Rameshbhai. His conviction by the trialCourt for an offence u/S. 302 and also u/S. 333 of theIPC is proper and it does not call for any interferencefrom us. Similarly, the case of prosecution levellingaccusation against the accused no. 1 for committing anoffence u/S. 135 of the Bombay Police Act is duly provedand we do not see any justifying reason to disturb thatfinding of the trial Court.
12. In light of aforesaid discussion, we hold thatthe judgment and order of conviction and sentence passedby the trial Court against accused no. 1 are proper andthe appeal, therefore, does not have any merit and it isrequired to be dismissed. The same is hereby ordered tobe dismissed.
13. So far the appeal of the State challenging theorder of acquittal in favour of accused no. 2 of thecharge u/S. 302 of the IPC is concerned, he hassubmitted that the trial Court was in error in acquittingaccused no. 2 of offence u/S. 302 of the IPC read withsection 109 of the IPC. He has placed reliance onsection 111 of the IPC and submitted that when act isabetted and a different act is done, the abettor isliable for the act done, in the same manner and to theextent as if he had directly abetted it.
13.1. The oral evidence on record clearly shows thataccused no. 2 was running ahead followed by accused no.1. It also appears that immediately on receiving thewarning from lady who had opened the door, both theaccused had started running all of a sudden. In thesecircumstances, it is quite possible that accused no. 2may not know that accused no. 1 was carrying on deadlyweapon with him. It is also in evidence that the policeconstables who had followed the two accused from insidethe house had not seen any weapon in the hands of accusedno. 1 while he was running away. When accused no. 2raised a shout seeking help of accused no. 1 saying that’Mane Pakadyo Chhe, Gala Mar’, he may have thought thataccused no. 1 may use only some physical force, whichmay make police Constable Rameshbhai to release him andallow him to go. He may hardly have any idea thataccused no. 1 would upon his request, use deadly weaponand inflict such injury which may result into the deathof the person who had caught hold of him. It is verydifficult to say that accused no. 1 had abetted accusedno. 2 with the precise intention of committing murder ofdeceased Police Constable Rameshbhai. We, therefore, seeno reason to hold the accused no. 2 guilty of committingan offence u/S. 302 read with section 109 of the IPC orsection 34 of the IPC. Even the provisions of section 111 of the IPC will not alter the situation in as much asthey operate totally in different circumstances which arenot existing in this case. We, therefore, see no reasonto interfere with the findings recorded by the trialCourt in respect of accused no. 2. Therefore, State’sappeal also deserves to be dismissed.
14. In the result, both the Criminal Appeals beingCriminal Appeal No. 1200 of 1992 and Criminal Appeal No.123 of 1993 are hereby dismissed.
We are thankful to Mr. Shah for acceding to ourrequest and rendering assistance by pleading case ofaccused no. 2.
Muddamal articles to be disposed of in terms ofthe direction given by the Ld. trial Judge in theimpugned judgment.