JUDGMENT
Kshitij R. Vyas, J.
1. Six appellants, original accused of Sessions Case No. 30 of 1996 have challenged the judgment and order dated 31st December 1996 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur, whereby they were convicted for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and were sentenced R.I. for life.
2. As per the prosecution case, deceased Dehla Chamana, resident of village Biyok of Vav Taluka had gone to Tharad with informant Dhiraji Hamaji on 25th January 1995 to meet one person known as ‘Darbar’ and to purchase pesticides. They returned to Biyok in a Jeep car driven by PW3, Husainkhan at 5.00 P.M. The Jeep was stopped at the Patia of Biyok village, at that time, A1 and A2 asked the deceased to come out from the Jeep. As the deceased refused to come out, they pulled him out by catching of his hairs. A2 inflicted injury with Dhariya on the face of the deceased. Meanwhile, A3 to A6 also came there, armed with deadly weapons like Dhariya, Sword and Axe and attacked the deceased. It is the prosecution case that A6 gave a sword blow on the Penis of the deceased. PW2, who was got hold of by A3, started running by getting himself released. Deceased, who sustained several injuries, fell down on the road, profusely bleeding. In the meantime, PW5, Ishwarbhai Kanjibhai Thakor and other persons, on hearing hubbub, also came at the spot running and, therefore, all the accused ran away. Deceased died on the spot. PW13, Narendra Hardevpuri Goswami, P.S.I. of Vav Police Station, who at that time, was patrolling for prohibition raid, received wireless message from Vav Police Station about the incident. He, therefore, reached the spot and recorded complaint of PW2, Dhiraji Hamaji. He drew Inquest Panchnama of the death body of the deceased. The complaint was sent for registering offence at Vav Police Station. He, thereafter, started usual investigation by sending death body to Tharad Referral Hospital for Postmortem, recording statements of the witnesses, drawing Panchnama of the scene of the offence etc. All the accused were arrested. Thereafter, Muddamal weapons were discovered at the instance of the accused. After completion of the investigation, on the basis of the sufficient material against the accused, charge sheet came to be filed against the accused in the Court of learned Judicial Magistrate First Class, Vav, who in turn, committed the case to the Sessions Court, as the offence under 302 is exclusively triable by the said Court.
3. The charge Exh.5 was framed by the learned Additional Sessions Judge of the offence under Section 302 read with Section 34 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. All the accused pleaded not guilty to the charge and claimed to be tried. While denying the oral evidence lead against them, in their further statement under Section 313 of the Code of Criminal Procedure, they have stated that they were falsely involved in the case, as they were the witnesses of the earlier murder case of Karsan. A2, Harkhaji Hamirji Thakor was the Panch witness in that case. According to the accused, deceased Dehla Chamana has encroached the land of A2 and for that, proceedings are going on in the Revenue Court and, therefore, because of the enmity, they have been falsely involved by giving their names to the police. In fact, A2 is a postman and has applied for protection in his department against one Chamana Moti. In substance, accused have pleaded their innocence in the present case.
4. The learned trial Judge after appreciating the oral as well as documentary evidence, including the further statement of the accused, accepted the prosecution case and passed the order of conviction and sentence. Hence, the present appeal.
5. We have heard Mr. B.S. Patel, learned advocate appearing for the appellants as well as Mr. R.C. Kodekar, learned APP appearing for the respondent State. We have also gone through the entire evidence. Learned advocate Mr. Patel submitted that the evidence of PWs, who are highly interested, is not believable and, therefore, no reliance can be placed on their evidence. According to him, the case on hand being a case of false implications of the accused, in as much as the names of A4, A5 and A6 were not disclosed in the Station Diary of Tharad Police Station at Exh.39. He further submitted that even though informant Dhiraji instructed PW5, Ishwar Kanji, PW6, Hathabhai Versinhbhai and one Karsan Dahya to go to police, even though they narrated the incident to the Vav Police Station, their complaint was not recorded and on the contrary, P.S.I., Mr. Goswami, who on his own, on the basis of wireless message received by him, went to the spot and recorded the complaint of PW2, Dhiraji. In the submission of the learned advocate Mr. Patel, the prosecution has failed to explain the discrepancies of information conveyed by PW5 and PW6 to Vav Police Station and their claim to return with the police after giving complaint and the evidence of P.S.I., Mr. Goswami that he had not gone to either Vav Police Station or Tharad Police Station and had straightway gone to village Biyok. It was, therefore, submitted that there are all chances of false implications of the accused at the instance of the police. While developing the point, it was submitted that in view of the fact that the nose as well as Penis were cut, the same can be done in a case where there is allegation of sexual relations. In absence of such allegations particularly in view of the fact that no injury was noticed on the thigh while cutting Penis, the version given by the PWs, the Penis was cut by the use of sward and that too when the deceased was standing, is not believable. Finally, it was submitted that considering the fact that the informant did not sustain any injury, nor he even tried to intervene when the deceased was assaulted, his presence at the time of the incident, is also bot believable.
Mr. Kodekar, learned APP, on the other hand, supported the reasoning of the learned trial Judge in toto.
To bring home the charge levelled against the accused, the prosecution has pressed heavy reliance on the evidence of PW2, Dhiraji, PW3, Husainkhan, PW5, Ishwar Kanji and PW6, Hathabhai Versinhbhai, who according to the prosecution, have witnessed the incident. PW2, Dhiraji is examined at Exh.18. He and deceased, who happened to be his family nephew, have gone to Tharad, as he wanted to purchase Pesticide while deceased wanted to see the Darbar of Tharad. They started their return journey at about 4.30 in the evening in a Jeep used as Taxi. There were 10 to 12 passengers with them in the Jeep. Two or three passengers wanted to get down at the Patia of Biyok village and for that purpose, the Jeep was stopped. A1, Popatji Mavaji Thakor, A2, Harkhaji Hamirji Thakor were standing bearing Dhariyas with them. Both of them asked the deceased to come out from the Jeep. Deceased refused to come out, the other passengers of the Jeep started running away. On refusing to come out, A1 pull deceased out by catching hold of his hairs. A2 at that time, gave Dhariya blow on the face of the deceased. In the meantime, A5, Raysinh Vihaji Thakor and A6 Dahya Viha, came from the side of the water tank. A3, Hardas Vihaji and A4, Dhaniaji Mavaji also came with Dhariyas in their hand. A5 and A6 were having Axe and sword respectively with them. A2 inflicted Dhariya blow on the right chick while A5 inflicted Axe blow on the head of the deceased. A6 assaulted deceased with Sword on his private part. PW2, shouted for help. His nephew, Ishwar Kanji also come there. A3, thereafter, got hold of the bushirt of PW2. PW2, however, after getting himself released from A3, started running. Deceased after sustaining Dhariya blow, had fallen down and thereafter, the other accused have beaten him with their weapons. According to PW2, when he was running after his release, Hatha Versinh and Karsan Dahya also came there running. On hearing their shouts, the accused fled with their weapons towards the other side of the road. PW2 informed Ishwar Kanji that his cousin brother has been murdered. All of them, thereafter, stood near the death body of the deceased. PW2 asked Ishwar Kanji, Hatha Versinh and Karsan Dahya to inform the police. Accordingly, they had gone to Vav police Station. Police came thereafter and recorded his complaint. According to PW2, deceased was done to death because of the old enmity as the Karsan Haha, brother of A1 was murdered wherein, deceased, his father Chamana Moti and others were shown as accused. Deceased was released after 6 months thereafter. According to PW2, the complaint was taken at 8.00 P.M. on the same day. He identified the accused setting in the Court. PW2 knew all the accused who are present in the Court. According to PW2, deceased sustained number of injuries. Because of cut injuries, deceased was profusely bleeding and pool of blood covered within the sphere of 5 fit.
PW2 has been cross examined at length. Even though he faced lengthy cross examination, he has remained consistent, except certain minor contradictions in his say. According to him, it had not happened that deceased was assaulted when he was in standing position and thereafter he fell down and had started bleeding. He has admitted that while he was running, Ishwar Kanji, Hatha Versinh and Karsan Dahya met him and all of them have returned to the death body. He has been contradicted with his previous statement viz. he has not stated in the complaint that he informed Ishwar Kanji that his cousin brother was done to death. According to him, he has stated so in the complaint. However, it is probable that the same may not have been written. In our view, this contradiction is too minor and has nothing to do with the main incident. This witness was also contradicted on the point that after receiving the first blow with Dhariya, he fell down and thereafter he was assaulted by other accused, which has not been stated by him in his complaint. He has denied the suggesting that this fact is stated by him after the deposition of the doctor and, therefore, he has been asked to say so. He has admitted the fact that three persons have gone to inform the police about the incident in a Jeep car. He has denied the suggestion that he was not present when the deceased was assaulted. He has also denied the suggestion that he had not gone to Tharad. He has also denied the suggestion that the deceased had illicit relations with some lady. He has pleaded ignorance about the fact that the deceased had teared the lady and, therefore, the deceased was done to death.
6. PW3, Husainkhan, the Jeep driver in his evidence at Exh.19 has supported the oral testimony of PW2. He has stated that he was knowing the deceased. He was one of the passengers along with his brother. Though he has not given the name of PW2, he has stated the relation between PW2 and the deceased. According to him, when the Jeep was stopped at Biyok Patia as one Maharaj of village Vadvel wanted to get down, two persons came there. One of them picked up the steering of the Jeep and the other took out the key of the Jeep. He has stated that these persons came with Dhariya, Axe and sward. According to him, two persons who come earlier, were having Dhariya and Axe. After taking out key, they had gone at the back side of the Jeep and tried to drag deceased and had thereafter, started beating. After beating him, they handed over the key to him (the witness). This witness has involved all 6 persons, who were beating the deceased with their weapons. He has named the person who pulled the deceased out of Jeep as Popat, the accused No. 1, having Dhariya with him. According to him, he did not know all the accused. However, they are present in the Court. According to him, before the incident, the accused used to travel in his Jeep on one or two occasions. On seeing the incident, as he was feeling greediness, he set on the steering while other passengers including conductor ran away. The key of the Jeep was handed over to him by A1, Popat.
In his cross examination, he has remained consistent about the fact of accused travelling in his Jeep on two occasions. Likewise, he has identified the deceased as he used to travel as a passenger in his Jeep. He has admitted that no TI Parade was held to identify the person, who accompanied the deceased. He has also admitted that he has not stated that A1, Popat has handed over the key of the Jeep to him in his police statement and he is telling the said fact for the first time in the Court.
7. Ishwar Kanjibhai Thakor, PW5, in his statement at Exh.21 stated that at about 5.00 P.M. on the day of the incident, he was returning from his field. He heard hubbub and, therefore, he started running towards the said direction, where he show a Jeep was standing there and 6 accused whose names has been given by him, were beating the deceased from the distance of about 100 to 150 fit with the weapons like Dhariya, Axe and Sword. When he reached at the spot, he found deceased lying profusely bleeding. His cloths were also stained with blood. His Dhoti was removed. According to him, when he reached at the spot, all the accused were running, at that time, Karsan Dahya and Hatha Versinh were also following him. He found injuries on the face, head, neck, back and on the private part of the deceased. Eye boll of the deceased had come out. Penis was also cut, from where the blood was oozing out. The deceased was lying in a pool of blood. On being asked about the incident, Dhira Hama gave him details of the incident. This witness, thereafter, had gone with Hatha Versinh and Kala Dahya to Vav via Tharad to inform police. He informed P.S.I. to come with police party to village Biyok as a murder was committed. He also informed that there was likelihood of another murder if the police did not come in time. Except that, he has not stated anything to the police. According to him, all the three persons set in the police vehicle with P.S.I. and had returned to Biyok Patia. He has specifically stated that along with police, P.S.I. had come with them. According to him, prior to the incident, a murder of one Karsan Haha was committed wherein, deceased, Chamana Moti, Bhupat Chamana, Ishwar Kanji (himself), were the accused. The Court acquitted them. He has admitted that fact that deceased was his family brother.
This witnesses has been cross examined mainly on the question of his visit to Vav Police Station for the purpose of lodging complaint. According to him, they had gone to Vav via Tharad at about 5.30. He is not sure about the exact time of their reaching to Vav. According to him, when they reached Vav Police Station, the son had not set. In the Police Station also, besides P.S.I., there were many other police persons. According to him, he has stated the fact of deceased having been murdered. He admitted that police did ask about the name of deceased and he did give his name. According to him, Police has not asked the names of accused nor his signature was obtained in the statement. He was also not asked as how the deceased was beaten. He did inform the police that deceased was lying beaten with Dhariya and axe. According to him, none of the three persons gave the names of the accused to the police. He has remained consistent with his say, while stating the fact that after staying at the Police Station for half an hour, they had returned in Police Jeep to Biyok Patia, where death body of the deceased was lying at about 8.00 P.M.
8. Hatha Versinh PW6, at Exh.22 has been examined by the prosecution as the person who has also witnessed the incident. According to him, on the day in question, he had gone to the field of Karsan Dahya, situated near Biyok Patia for the purpose of taking grass. After taking grass, while he was returning with Karsan Dahya from his field at about 5.00 P.M., they heard hubbub. Accordingly, they started towards the said direction and found a Jeep standing there and deceased was lying on the road. Near the dead body, Ishwar Kanji, Dhira Hama and other persons were also standing. They also show accused running away from the sight with the weapons like Dhariya, Axe and sword. He has improved his version by stating that he show accused beating deceased from the distance of 200 fit.
Shiva Versinh, PW8, Exh.32, in his evidence has also come out with the say that on the day in question, he was busy in his field which is situated near Biyok Patia. He heard the shouts. On hearing the same, he had gone to the spot and found Karsan Dahya, Ishwar Kanji, Hatha Versinh and other persons staying near the dead body of the deceased. He has given details about the injuries sustained by the deceased.
9. On going though the above evidence, it appears that PW5 and PW6 who have been examined by the prosecution as the eye witnesses, in our opinion, their presence at the time of the incident when the deceased was being assaulted by the accused, appears to be doubtful and it appears to us that they entered the spot when all was over. Their claim to have witnessed the incident from the distance of about 100 or 150 fit and thereafter to change the versions, appears to be quite unnatural. Therefore, instead of treating them as eye witness, at the most, they can be termed as the supporting witnesses. From their evidence, it clearly appears that they were in the vicinity of the spot, where incident had taken place and on hearing hubbub, they rushed towards the spot and found deceased after sustaining number of injuries, lying on the road in a pool of blood. They may or may not have seen the accused inflicting the blows and/or running away after committing the offence with the weapons, however, that will not change the situation. The evidence of PW2 and PW3, in our opinion, the prosecution has established the involvement of accused in the offence. From their evidence it is clear that deceased had gone to Tharad with PW2 and on their return journey, when the Jeep had stopped at Biyok Patia, the incident had happened. From their evidence, nothing has been brought out by the defence to doubt their presence at the time of the incident. PW2 had identified the accused as they belong to his village while PW3 identified them in the capacity of the passengers who used to travel in his Jeep. Not only that, both of them had given all details about their entry, with their respective weapons and the part played by them. Except minor discrepancies in the directions from where they came, the evidence of PW2 and PW3 has remained consistent with each other. The so called contradictions in their evidence, in our opinion, are too minor which has nothing to do with the main incident, are required to be ignored. Merely because the deceased was one of the accused in the murder of the brother of A1 and there was some land dispute between A2 and the deceased, the informant had falsely involved all the accused as contended by the learned advocate for the appellants, is not acceptable to us. Assuming the said contention as true, it is a double edged weapon, in as much as the deceased who was one of the accused in the previous murder who has been acquitted by the competent Court and, therefore, all the accused can obviously desirous to get rid of the deceased with a view to take revenge, likewise A2 had also strong motive to get rid of the deceased to put an end of the land disputes.
10. We are not impressed with the submissions namely in Exh.39 which is a Police Station Diary of Vav Police Station, the name of only three accused viz. A1, A2 and A6 have been mentioned and, therefore, names of other accused are falsely involved. From the evidence of PW13, Narendra Goswami, P.S.I. of Vav Police Station, it appears that after recording the complaint, the same was sent with Police Constable Dinesh Gadhvi to Vav Police Station for the purpose of registering the offence. From the evidence of PW13, it further appears that the complaint was recorded at Biyok Patia on the piece of paper and thereafter, the contents of the complaint were transcribed on the printed form of the complaint at Exh.41 and the same was sent for the purpose of registering the offence. Exh.41 is the complaint. On the formate, it discloses the names of all the 6 accused. In the Station Diary at Exh.39 merely because the names of three accused are mentioned, the same will not change the case. This is particularly in view of the fact that on the back portion of Exh.39, it has been clearly stated by P.S.I. Goswami in a note addressed to P.S.O., Vav Police Station that 6 accused whose names are stated in the complaint, have committed the murder which has been stated to him by Thakor Dhira Hamaji in his presence which has been sent to you for the purpose of registering the offence and to inform the concerned officers about the offence. Thus, the evidence of PW13 is consistent with the documentary evidence.
PW12, Kalubha Hathisinh Vaghela, Exh.38, in his evidence has stated that at 8.35 P.M. on 25th January 1995, as a P.S.O. of Vav Police Station, he has registered the offence of the complaint sent by P.S.I. Mr.Goswami through Police Constable Dineshdan Gadhvi and thereafter, sent the complaint as required under Section 157 of the Code of Criminal Procedure, to Judicial Magistrate First Class. In his cross examination, he has admitted that the report sent by him under Section 157 Exh.41 has been received by the Magistrate at 11.00 A.M. on the next day i.e. on 26th January 1995. From the above, it appears that the necessary procedure has been followed by the police and there does not appears to be any false involvement of all the accused in the offence in question.
It is true that there are certain discrepancies about the complaint having been filed at Vav Police Station, as claimed by PW5, Ishwar Thakor in his evidence. PW5, in his evidence, has also stated that after filing the complaint before the P.S.I. of Vav Police Station, he and other two persons, who accompanied him, returned with P.S.I. in his Jeep car at Biyok Patia. PW13, Goswami, P.S.I. of Vav Police Station, in his evidence, on the other hand has stated that on receiving the wireless message from Vav Police Station, something about the incident, he has straightaway gone to the spot where the incident had taken place i.e. Biyok Patia, without going either Tharad Police Station or Vav Police Station, even though he has to pass through the said Police Stations to reach the scene of offence. The discrepancies does create doubt about the type of investigation carried out by the concerned Police Officer. It is also not possible for us to accept the say of PW5, Ishwar Kanji that he has simply informed the police that the murder has taken place at the Biyok Patia and if police fails to reach there, there would be another murder. Except the above information, he had not uttered anything and had not given even the names of the accused or the weapons used by them. Since PW5, who claims to be the eye witness and had visited the spot immediately after the incident and had a talk with PW2, Dhiraji about the incident, it is reasonable to infer that he must have given some details about the incident, including the names of the accused and use of weapons etc. In that event, it is the duty of the Police Officer to record the same. However, the concerned Police Officer of Vav Police Station has not done so. From the evidence of PW13, Mr. Goswami, P.S.I. of Vav Police Station, it appears that he received the wireless message regarding quarrel having taken place between Kolies and Thakors of Biyok village while he was on patrolling. On receiving the said message, he had proceeded to Biyok without paying visit to Vav or Tharad Police Station. This discrepancy in the evidence of PW-5 and PW-13 about the information having been conveyed to Vav Police Station about the incident, it appears that the genesis of the incident, the names of accused and the weapons used by them having been withheld by the police. In our opinion, it is suggestive of the fact that the investigation has not been carried out in a manner it ought not to have been carried out. It appears that the Vav Police Station has taken a very casual approach in the matter by not recording the complaint of PW-5. We are not prepare to accept that PW5 had not passed on full information about the incident to PW – 13. PW-13 in turn also could have verified or could have obtained further information from PW-5 by visiting Vav Police Station, instead of straightway proceeding to Biyok Patiya, even though he had to pass through Vav Police Station after receiving wireless message. However, the aforesaid carelessness and/or irregularities on the part of PW-13 will not help the cause of defence. Merely on faulty investigation, prosecution case does not fail, if oral evidence is truthful and acceptable. Needless to say evidence of PW2 & PW3 is natural, truthful and therefore believable.
11. Ex. 37 is the entry of the station diary of Vav Police Station, whereby, PW-13 was informed about the quarrel having taken place at Biyok between Kolis and Thakardas, while PW-13 was on patrolling. The timings of the said entry is 18.30 hrs. PW-13 in his evidence has stated that when he received such message, he was on the kachha road of village Nadod leading to village Bukana in a Government Jeep. On receiving the message, he started for village Biyok via Bukana, Vav and Tharad. According to him, he had straightway gone to village Biyok. From his evidence, it is clear that he recorded the complaint of PW-2 at 8.00p.m. Thus, there is no time gap between the time of receiving message and reaching to the scene of offence. As observed earlier, the evidence of PW-2 Dhiraji who was there with deceased from the noon till the deceased was assaulted and his evidence is acceptable to us, wherein, he has given the names of all the assailants with details like weapons carried and used by them. Therefore, there is no question of manipulation of the incident by false implication of the accused. In our opinion, there was no delay in lodging the complaint as PW-13 was likely to consume time to reach at the scene of offence from the place where he was patrolling.
12. We are not impressed with the submission advance before us namely, that it was not certain that deceased would come in a Jeep Car at a particular time and, therefore, all the accused could have waited for him at Biyok Patiya, as they came from different directions. It is true that the prosecution has not lead any evidence of the fact that accused were having prior information about the movements of the deceased. In absence of same also, from the circumstances, it is established that the accused were, in fact, waiting for the deceased to come. All the accused were having dangerous weapons with them. It was submitted before us that the accused being agriculturists, it was natural of them to carry the weapons to carry out agriculture work. It is not possible to accept the submission. Being agriculturalist, one may carry sticks and in a given case, a dhariya. In the instant case, all the accused carried dhariya, axe and sword. Axe and sword are not ordinarily used for agricultural work. From the evidence of PW-2, it is clear that A1 and A2 came from the side of ditch of Biyok Patiya, while others came from the ditch as well as the water tank on the other side of the road. Map ex. 31 of the scene of offence reveals that ditch of both the sides and the water tank are situated within the radius of 100 ft. from the scene of offence. This would go to suggest that accused scattered around and waiting for the deceased to come. No sooner the Jeep was stopped, accused took out the key of Jeep and, thereafter, A1 and A2 asked the deceased to come out of the Jeep. In fact, deceased was made to come out by applying force. The first blow on the face with dhariya was given by A2, soon thereafter, the remaining accused also started giving indiscriminating blows with the weapons carried by them. Thus, the act was of predetermined and in furtherance of the common intention, shared by all the accused.
Merely because PW-2, the complainant, Dhiraji did not sustain any injury, will not make the prosecution case unnatural. In fact, A3 prevented PW-2 by catching hold of his bushirt from intervening.
13. We have also see no merits in the submission that cutting of nose as well as penis can be done in a case where there is a sexual relationship. In the cross-examination of PW-2, it was suggested that the deceased had some illicit relations with some lady and he was teasing her and, therefore, he was done to death in the quarrel. However, PW 2 has denied the suggestion. Merely because the nose as well as penis of the deceased were cut, that would not lead to a conclusion that the deceased had some illicit relations with some lady. Why these organs are detached, it is very difficult to answer. In any case, in absence of sufficient materials, we have to accept the evidence of eye witness.
14. From the above discussion, it is not possible for us to accept the submission, namely that the present case is a false case of implication of the accused. From the evidence of PW-2 and PW-3 and who are the eye witnesses and other supporting evidences of PW-5, PW-6 and PW-8, we are convinced beyond any manner of doubt that all the accused with deadly weapons assaulted the deceased and deceased succumbed to the injuries caused by the accused.
15. Dr. Rajendra Gajjar, PW-1, Ex. 14, Medical Officer of Community Health Centre, Tharad, who performed autopsy of the deceased. Following injuries are described in the Post Postmortem Report at Col. no. 15 and 17.
Col. No. 15 Penis and scrotum cut from (RT)side at and from roof. The whole portion (Penis & Scrotum separated & harding through a skin fold of 1 cm width & left thigh’s medical aspect. Would ovale in shape, 5cmwidth & 10cm long.
Col. No. 17 (1) A cut wound on face 10cm long, 4 cm in width in the middle, ovale in shape, 3 cm deep, oblique in position 2 cm below (RT0Ext. ear.
(2) Elliptical wound by cut injury 5cm behind (RT) Ext. eay on scalp, 5 x 2 cm size & 1 cm deep. Ovale in shape, bone seen.
(3) Fine clean incised wound on anterior aspect of face, which are horizontally lying.
(a) 5cm long, 1cm wide, 1cm deep elliptical in shape over fore head, in the middle at the evel of eyebrows.
(b) 3 cm long, 1cm deep 1/2cm wide over (RT)eye ball.
(c) A cut wound 7(seven) cm long exleding from middle of nose going literally, 2.5cm anterior to (RT)external ear. about 1cm deep.
(d) A cut wound 9cm long, extending from 2.5cm anterior to (RT)external ear going horizontally metering nostrils in the middle & extending 3 cm from middle to going on left side.
(e) 5cm long 1cm deep extending from angle of mandible on (RT) side & going horizontally in the line of mouth canty.
(4) A cut wound over scalp in the middle ovale in shape 5×2 cm size & 1cm deep, 1cm leteral to middle on left side, in the middle & Scalp.
(5) An elliptical wound 4cm wids, 7cm long, oblique, 3cm deep from anterior superior ilicaespine going posteriorly & upwards on (RT) side of loin laterally.
According to him, the cause of death of deceased was due to shock due to severe massive haemorhage due to multiple wounds over the body by sharp cutting substance. According to him, all the injuries were possible in the ordinary course of nature to cause death. He stated that all the injuries were possible with the respective muddamal weapons. From the medical evidence on record, the prosecution has established that the deceased died a homicidal death.
16. Ld. advocate Mr. BS Patel, after inviting our attention to the evidence of Dr. Gajjar, submitted that even as per the medical evidence, all the injuries are simple in nature. None of them individually is sufficient in the ordinary course of nature to cause death and therefore, there was no intention of the accused to commit the murder of the deceased. In the submission of ld. advocate, the idea was to beat and not to kill as no fatal injury was caused and, therefore, there was no common intention to commit murder of the deceased and, therefore, the accused at the most can be convicted for the lesser offence i.e. u/s. 304 Part-I instead under sec. 302 of IPC for their individual act. To substantiate the same, he invited our attention to the decision rendered by the Apex Court in the case of Rama Meru and Anr. v. State of Gujarat, reported in AIR 1992 SC 969. In the said case, doctor has categorically stated that all the injuries were collectively sufficient to cause death, individually any of the injury was not likely to cause death. In the aforesaid circumstances, the Apex Court observed that it cannot be definitely held that the appellants had been harbouring a common intention to murder the deceased and with such common intention they had inflicted knife injuries on the person of the deceased. In the absence of common intention to murder being established beyond all reasonable doubts, simply on account of death of Rambhai, as a result of cumulative effect of all the injuries inflicted on the person of the deceased, a case for conviction of murder under sec. 302 read with s. 34, IPC, cannot be sustained. In that view of the facts and circumstances of that case, the Apex court was of the view that ld. Sessions Judge was justified in holding that a case under sec. 326 read with sc. 34, IPC, and s. 324 IPC has been established by the prosecution against the appellants by affirming the conviction and sentence passed by the ld. Sessions Judge against the appellants.
One more decision rendered by the Apex Court in the matter of Sarwan Singh and Ors. etc. v. The State of Punjab, reported in AIR 1978 SC 1525 was relied upon. In that case, the trial court found all the three accused guilty for the offence under sec. 302 read with sec. 149 of IPC. The High Court, in appeal, also found that the common object was clear to kill the deceased and the offence fell under sec. 300 clause 3rdly of IPC. The Apex Court on analysis of the injuries in the case, was of the opinion, that it cannot be said that any of the persons that inflicted injuries intended to cause death or such injury as is sufficient in the ordinary course of nature to cause death. The Apex Court after taking the circumstance that the unexpected quarrel was between the members of the same family over a dispute as to water rights, it was not possible to hold that offence under sec. 302 red with sec. 149 is made out. On a consideration of the circumstances and the nature of the injuries it was not possible to hold that the common object of the assembly was to cause bodily injury which was sufficient in the ordinary course of nature to cause death. It can be said that the common object of the assembly was to cause bodily injury as was likely to cause death. The accused was, therefore, held guilty under sec. 304(1) read with sec. 149 IPC.
17. We have considered the submission and the authorities cited before us. In the present case, Dr. Gajjar, in the cross-examination, has admitted that injuries mentioned in col. no. 15 and all the injuries mentioned in col. no. 17 are simple injuries. He has also admitted that injuries of col. no. 15 is a serious injury. According to him, he considered those injuries which caused death, as serious injuries. Because of the injuries shown in col. no. 15, there would be profusely bleeding and in absence of immediate medical treatment, death is possible and, therefore, the said injury is serious injury. Because of the said injury of col.no. 15, there would be bleeding for about 30 to 45 minutes. He has admitted that simply cutting of male organ, death is not possible. He has admitted that as stated by him in his certificate ex. 16, the cause of death of deceased was due to shock due to severe massive haemorhage due to multiple wounds over the body. With respect to Dr. Gajjar, we are unable to accept his evidence in toto. This is particularly in view of the fact that he has described all the injuries as simple injuries. Sec. 320 of IPC provides eight kind of hurts as grievous. In jury shown in col. no. 15 being emasculation being a grievos hurt would attract s. 320 IPC. Likewise injury of 3cm long, 1cm deep, 1/2cm wide over right eye ball would also fall in the category of grievous hurt. The cut wound 7cm long extending from middle of nose going literally, 2.5cm anterior to (RT) external ear about 1cm deep, together with all the injuries, mentioned in col. no. 17, having cumulative effect of permanent disfiguration of the head or face, would be a grievous hurt within the meaning of s. 320 IPC. Therefore, it is not correct to say that all the injuries were simple in nature. It is also not possible for us to accept the statement of the doctor, whereby, he has stated that he did not consider injury no. 15 individually, as serious injury, even though it is a case of profusely bleeding as death can be avoided if immediate treatment is provided. It is difficult to understand the logic of Dr. Gajjar, in describing injury of Cl. No. 15 a simple injury even though deceased was bleeding profusely and died immediately thereafter. There was no time to remove him for medical treatment. In a given case, it may happen that the victim be taken to an unknown place far away in a deep forest and there the injury shown in col. no. 15 is caused. In that case, there would not be any medical treatment and the victim can die for want of medical treatment because of loss of blood. In that case, can it be said that as it was a simple injury and death could have been prevented by providing immediate treatment ? As far as present case is concerned, the prosecution has clearly established that the deceased was profusely bleeding. The doctor in his certificate has also stated that the deceased has severe massive haemorhage due to multiple wound over the body by sharp cutting substance. At the scene of offence, there was a patch of blood in the area of 5ft. x 5ft and stream of blood had travelled 1ft on the side of kachcha road. In view of this, it is not possible for us to accept the say of the doctor that though all the injuries were simple in nature, because of the cumulative effect of all, deceased died. In fact, as stated above, many of the injuries were in the nature of grievous hurt. It is also not possible for us to accept that none of the injuries individually was sufficient in the ordinary course of nature to cause death. In fact, the injury shown in col. no. 15, in our opinion, was itself sufficient even individually to cause death in the ordinary course of nature. In that view of the matter, in our opinion, all the accused are guilty of murder under clause(iii) of sec. 300 read with sec. 34 IPC. From the evidence on record, it is clear that all the accused had a common intention to cause bodily injuries and have caused all injuries on the head as well as on the arm and on the private part of the body of deceased, which, in our opinion, are sufficient in ordinary course of nature to cause death. It is also established beyond reasonable doubt that all the accused were waited for the deceased to come with deadly weapons near the places leading to the road. No sooner the deceased came in a Jeep Car, A1 took out the key of the Jeep Car. A1 and A2 thereafter, asked the deceased to come out from the vehicle. On refusal, A1 pulled him out by catching hold his hairs. Thereafter, A1 gave first dhariya blow on the face of the deceased. Immediately, thereafter, all the accused also started beating deceased with their respective weapons. Not satisfied with the beating, A6 removed the male organ of the deceased with the help of sword. The presence of all the accused is established by the evidence of PW-2 and PW-3. The manner in which they caused injuries to the deceased would go to suggest that the injuries which they were intending to cause were sufficient in ordinary course of nature to cause death. In view of this, there is no manner of doubt that all the accused committed the offence of murder of deceased. The view which we are taking is supported with a decision of the Apex Court in the matters of Anda and Ors. v. The State of Rajasthan, reported in AIR 1966 SC 148, State of Andhra Pradesh v. Rayavarapu Punnayya and Anr., reported in AIR 1977 SC 45 and also in the matter of Harshadsingh Pahelvansingh Thakore v. The State of Gujarat, reported in AIR 1977 SC 710. The judgment rendered in the cases of Anda and Ors. v. The State of Rajasthan (supra) and State of A.P. v. Rayavarapu Punnayya and Anr. (supra) are still good law. In the case of Rama Meru and Anr. v. State of Gujarat (supra), the attention of the Apex Court, it appears that, was not invited to the aforesaid two decisions when it decided the said case. Earlier two decisions referred to above have been decided by the Larger Bench of the Apex Court and they are earlier in point of time than the decision of Rama Meru’s case. We, therefore, with respect, follow the judgment rendered by the Apex Court in those earlier decisions.
It is true that as far as the discovery of the weapon at the instance of the accused are concerned, the panchas have not supported the panchnama. However, that will not come in the way of the prosecution since the oral evidence in the instant case is sufficient to involve all the accused in the offence in question. It is, therefore, not necessary for us to consider the question of discovery of weapons in this case. Needless to say that in the instant case, from the Forensic Science Laboratory report, the prosecution has established human blood stains on the clothes, weapons and the earth.
18. In view of the aforesaid discussion, we are clearly of the opinion that the ld. Judge was perfectly justified in convicting the accused for the offences punishable under sec. 302 read with sec. 34 IPC. Suffice to say that we are in total agreement with the reasonings and conclusion reached by the ld. Trial Judge. There being no substance in the appeal, the same is dismissed. Muddamal articles to be disposed of in accordance with the directions of the trial court.