Hiraji Vs. Thakore Kubersing Chamansing & Ors  Insc 264 (2 May 2001)
R.C. Lahoti & Doraiswamy Raju R.C. Lahoti, J.
Appeal No. 636 of 1992
accused persons were charged for having committed offences under Sections 147,
148, 302/34/149, 307/34/149, 302/307/109, 325, 325/34, 324 and 324/34 of the
Indian Penal Code. The Trial Court acquitted accused nos.3, 4, 6, 7 and 8 of
all the offences charged and set them at liberty.
nos. 1, 2 and 5 were held guilty on different counts as will be stated shortly
here in afterwards and convicted and sentenced. They preferred an appeal before
the High Court of Gujarat which was heard by a Division Bench. By the impugned
judgment dated 14.12.1983 the appeal has been allowed and all the three
accused-respondents have been acquitted. The complainant, Takhaji Hiraji who
had lodged the first information report of the incident and was himself an
injured person has preferred this appeal by special leave putting in issue the
acquittal of accused nos.1, 2 and 5. Later on the State has also filed an
appeal by special leave. Both the appeals have been heard together.
small village Dugrasan, Taluka Shihori in the State of Gujarat witnessed a joyful evening of 23rd March, 1980 being converted into a horrific
tale of crime where violence was let loose between two communities, otherwise
friendly and living together happily , resulting into death of 3 persons and
simple and grievous injuries to several others. It appears that the village has
population consisting mainly of Thakores and Kolis. Thakores treat themselves
as upper caste and look down upon Kolis as their inferiors. On the date of
incident, in the evening, the village people had collected in the chowk, an
open space in the heart of the village to witness the performance of tight rope
dancers. A rope is tied tightly on two poles installed at a reasonable distance
from each other. On the tight rope moves a dancer.
performance includes tight rope walking with utensils on the head of the
dancer. The performer is rewarded by making a bid amongst the viewers; one whos
bid is the highest has the honour of lifting and putting down the utensils from
over the head of the dancer. The highest bid is thus symbolic of honour to the
bidder and a reward to the performer. Witnessing the performance were Thakores
of the village and so also the Kolis. Two petromax were burning to provide
illumination. As the show neared its end Thakore Magansing Dadusing, the
accused no.2 made a bid for lifting the utensils. But the deceased, Amuji Narsangji
Koli made a higher bid which was protested to by Gajrabai, the accused no.5
saying why the Kolis were bidding higher than the Thakores. There was a heated
exchange of words followed by a quarrel and then knife and dagger being
stretched out and wielded.
to the prosecution Magansing, accused no.2 had taken out a knife from his waist
by which he dealt blows on Sabuji Viraji and Amuji Narsangji. Kubersing,
accused no.1 gave a dagger blow in the abdomen of Amuji Narsingji. Kubersing
also caused a stab wound to Narsingji Hiraji.
accused no.2 also gave a knife blow on the back of Amuji Narsingji. Magansing
also caused injury to Sabuji in his abdomen. Accused 1 and 2 caused injuries by
sharp- edged weapons to other witnesses also belonging to Thakore community who
tried to intervene. Gajrabai, accused no.5 gave a stick blow to Viraji Devaji
causing a fracture of his hand. Other accused, excepting nos.1 and 2 were
throwing katars, sticks, clubs etc. by which several other persons got injured.
All other villagers and group of dance performers ran away from the chowk
leaving the injured and the accused persons behind. After causing several
injuries the accused persons left the chowk for their houses. The injured
persons belonging to Thakore community were being taken to their houses but
some of them found it difficult to walk. They sat down on the otta of Kalkamata Temple. A camel-cart was summoned. On it all the injured were
seated and taken to Shirohi where they reached the dispensary at about 11.30 p.m. Narsingji Hiraji succumbed to his injuries on the
way. Sabuji Viraji was taken to Mehsana where he too died on account of his
injuries. Amuji Narsangji was taken to Deesa and he died thereat. Takhaji Hiraji
one of the injured persons, leaving behind the seriously injured persons in the
hospital at Shirohi went to the police station and lodged FIR of the incident.
The police registered crime under Sections 302,307 and several other sections
of the Indian Penal Code and commenced investigation. Autopsies on the dead
bodies of Narsangji Hiraji, Sabuji Viraji and Amuji Narsangji were conducted.
other injured persons were also medico-legally examined.
not necessary for us at this stage to notice such details of the incident as
have become insignificant consequent upon 5 of the 8 accused persons having
been acquitted by the Trial Court and their acquittal having remained
unchallenged. We will only notice such details of the prosecution case as are
relevant and significant for the purpose of testing legality of the acquittal
of the three accused- respondents as recorded by the High Court.
Viraji was examined by Dr. Varvadia, PW2 on 24.3.1980 at about 12.15 a.m. He found one incised wound on the left side of upper
part of abdomen, another incised wound on the left palm and the third incised
wound on the scalp. Sabuji Viraji was referred to medical officer, Deesa for
further treatment. He was transferred to Mehsana where he expired on 30.3.1980.
The post-morten was conducted by Dr. Solanki, PW4. He found the same 3 injuries
on the body of the victim which were ante-mortem. The cause of death was acute
peritonitis caused by the injuries. Thus, the death of Sabuji Viraji was
was examined by Dr. Patel, PW5 of Deesa on 24.3.1980 at 1.45 a.m. The condition of the patient was precarious and he
succumbed to his injuries on the table at about 2 a.m. The post-mortem was also conducted by Dr. Patel. Amuji Narsingji
had sustained one stab wound 4 cm x 2 cm on the right side of epigastrium deep upto
peritoneum cavity. Intestinal loops were cut and were coming out from the
wound. There were 8 other incised wounds on his chest, left elbow, forehead and
perietal region. Internally the superior mesenteric artery was cut off and
peritoneum cavity was full of blood and upper part of intestines were
completely out. It is this injury which had proved to be fatal. All the
injuries were ante- mortem.
on the dead body of Narsingji Hiraji was conducted by Dr. Amin of Deesa, PW20.
He found the patient having suffered one stab wound on anterior abdominal wall
above umbilicus deep to peritoneum cavity. Peritoneum was full of blood. This
stab wound was sufficient in the ordinary course of nature to cause death. The
patient had suffered two other incised wounds in jejunum with perforations
thereof. All the injuries were ante-mortem.
are 5 stamped prosecution witnesses who had sustained injuries. Gajaji Viraji,
PW10, Takhaji Hiraji, PW 8 and Amuji Khumaji, PW 20 were examined by Dr. Varvadia,
PW2. Gajaji Viraji had sustained two incised wounds, one on the upper part of
chest and the other on the left index finger. Takhaji Hiraji had suffered two
incised wounds on forehead and abdomen and one stab wound on the left loin and
one abrasion on left elbow. Amuji Khumaji was found to have sustained defused
swelling over the left forearm with suspected fracture. However, x-ray
examination conducted by Dr. Sutaria PW7 did not confirm any bony injury
suffered by Amuji Khumaji.
PW7, had examined Viraji Devaji PW 15.
Devaji had diffused swelling over the left forearm with fracture of left radius
and one abrasion on the left forearm. The former was a grievous injury while
the latter was a simple one. Gambhirji Narsangji was found to have sustained an
incised wound on the right side of the chest.
patient was admitted for treatment indoors and discharged in 11 days.
there were three persons who had met with homicidal death and five persons
injured on the side of the prosecution party. The five injured were examined as
prosecution witnesses. The medico-legal examination of the injured persons had
taken place little after midnight on the day of the incident itself. The
duration of the injuries sustained by all the injured persons as opined by the
doctors conducting medico-legal examinations, coincided with the time of the
itself it will be relevant to mention that some of the accused persons had also
sustained injuries and they were medico- legally examined between midnight and 2.10 hours in the early morning of 24.3.1980. Kubersing
Chamansing, accused No.1, Maganji Duduji, accused No.2 and Gajraben Maganji,
accused No.5 were examined by Dr. Varavaida, PW2. Maganji Daduji was found to
have sustained in all twenty injuries. There were two incised wound on the
scalp, six contusions, five abrasions and two contused lacerated wounds on his
person spread over the neck right arm and back. He also had a fracture of left
the injuries except the two on scalp were caused by hard and blunt weapon. Gajraben,
accused No.5, had six contusions, four contused lacerated wounds and one
abrasion on different parts of her body. Subaben alias Shivuba, accused No.7
and Mungiben, accused No.6 were examined by Dr. Keshavlal Patel, PW3. Subaben
alias Shivuba had one abrasion and one contusion on left hand. Mungiben was
found to have a weal mark on left shoulder joint and tenderness over right and
left knee joints. Thus the injuries sustained by accused Nos. 1, 6 and 7 were
simple, rather minor injuries.
PW10 reached the police station for lodging first information report of the
incident, Kubersing, accused No.1 was already present at the police station and
he had also lodged a report of the incident, Ex.69.
trial, there were 21 witnesses examined on behalf of the prosecution. These
include 5 eye witnesses of the incident namely, Gajaji Viraji PW 10, Takhaji Hiraji
PW 8 Amuji Khumaji PW 11, Viraji Devaji, PW15 and Gambhirji Narsangji PW9. .
All these witnesses have themselves suffered injuries and therefore their
presence at the place of the incident cannot be doubted. Apart from this there
is dying declaration of Sabuji, deceased, Ex.28, recorded by Pravinchandra
Gandhi, the Executive Magistrate at 10.20 p.m.
25.3.80 and yet another dying declaration Ex.60 recorded by Constable Kesharam,
PW16, a little before midnight. The trial court minutely examined
the testimony of all the eye witnesses and found them worthy of reliance. The defence
of the accused persons was one of denial so far as the injuries caused on the
side of the prosecution are concerned.
they pleaded that the prosecution party was the aggressor and had caused
multiple injuries to five of the accused persons and that too near the house of
the accused persons which is situated at a distance of about 200 feet from the chowk.
The learned Sessions Judge, having minutely examined, marshalled and appreciated
the entire evidence available on record, found the prosecution version to be
truthful and negated the defence. It will be useful to sum up briefly the
findings arrived at by the learned Sessions Judge :-
There were blood stains and blood stained earth in the chowk. The petromax at
the scene of offence was lying broken. According to the FIR, Ex-69, lodged by
accused No.1 and produced by PW21, head constable, some incident had taken
place at the chowk and when the accused had left the chowk and reached their
home, then they were assaulted by the prosecution party. This happening of the
incident in the chowk was substantiated by the circumstances and was partly
admitted by the defence also in their earliest version of the incident i.e. the
FIR lodged by one of the accused persons. However, no trace of blood and no
visible signs of violence were found near the houses of the accused persons
and, therefore, it could be safely inferred that the incident had taken place
only in the chowk and not near the houses of the accused persons;
The prosecution witnesses and the three deceased on the one hand and the
accused persons on the other hand did not have any previous enmity. They were
residents of the same village. The incident had erupted at the spur of the
moment. It was a case of sudden fight. It cannot be said that the accused
persons had any common intention to beat anyone or that they had any common
object for which they had formed an unlawful assembly. Their presence in the chowk
to witness the show was quite natural and, therefore, the question of
convicting anyone with the aid of Section 34 or Section 149 of the IPC does not
Kubersing Chamansing, accused No.1, is proved to have caused a dagger blow in
the abdomen of Amuji Narsingji which proved to be fatal. He is liable to be
convicted under Section 302 IPC.
Kubersing Chamansing, accused No.1 is guilty of causing a dagger blow in the
abdomen of Narsingji Hiraji which blow proved to be fatal and therefore accused
No.1 is responsible for causing death of Narsingji Hiraji and hence liable to
be convicted under section 302 IPC on this head of charge too.
Magansing Dadusing, accused No.2 is responsible for causing the incised wound
to Sabuji Viraji in his abdomen resulting in his death. He is liable to be
convicted under Section 302, IPC.
Magansing Dadusing Accused No.2 had caused an incised wound 2x¼x¼ on right side
of chest of Gambhirji Narsangji, the only injury suffered by him. The injury
caused was by a dagger blow. However, the nature of the injury was simple.
Accused No.1 was, therefore, liable to be convicted under Section 324 of IPC
for causing simple hurt by sharp weapon to Gambhirji.
Viraji had sustained two injuries by sharp cutting weapon at the hands of Kubersing,
accused No.1. The injuries were simple in nature. The accused No.1 was
therefore, responsible for causing simple injuries to Gajaji Viraji by means of
sharp cutting weapon, an offence punishable under Section 324 of the IPC.
Maganji, accused No.2 had given a knife blow to Takhaji Hiraji, PW8. The
injuries were simple in nature Maganji, accused No.2, was, therefore, liable to
be convicted under Section 324 of the IPC for causing simple injuries by sharp
weapon to Takhaji Hiraji (para 27).
The authorship of injuries caused to Amuji Khumaji was not established and,
therefore, none of the accused was liable to be convicted for causing simple
injuries by sharp weapon to Amuji Khumaji. (para 28)
Abrasion on the left forearm with diffused swelling and fracture of the left
radius on the person of Viraji Devaji were caused by blunt weapon like a stick
by Thakore Gajrabai, accused No.5. She was, therefore, liable to be convicted
under Section 325 of the IPC.
As to accused Nos. 3, 4 and 6 to 8, the prosecution case was that they had
indulged into throwing katars and sticks etc. However, the prosecution
witnesses were not consistent about the part played in the incident by these
accused persons. Their presence at the place of the incident, in the facts and
circumstances of the case, was innocuous and, therefore, by their mere presence
at the place of the incident, they could not be held liable to conviction alongwith
other accused persons with the aid of Section 34 or 149 of IPC.
most important plea raised on behalf of the accused persons before the trial
court was that the prosecution witnesses did not offer any explanation for the
injuries sustained by the accused persons. This showed, according to the defence,
that the genesis of the incident was being concealed by the prosecution
witnesses and the whole truth was not placed before the court which lent
support to the defence version that the incident, in all probabilities, took
place in the manner and at the place suggested by the defence, that is to say,
the incident had taken place near the houses of the accused persons where the
persons belonging to prosecution party were aggressor. The trial court opined
that in so far as the injuries sustained by accused No.1 and 5 to 7 are
concerned, they were all injuries of very minor nature and their
non-explanation did not cause any infirmity in the prosecution case. Magansing Dadusing,
the accused No.2, had sustained several injuries of which two were incised
wound and one was a fracture on the finger. The trial court held that several
persons were participating in the incident and several persons were injured. In
such a melee it was difficult to exactly locate how the injuries on the person
of the accused No.2 were sustained. The accused No.2 himself does not suggest
how and in what manner, he sustained injuries. Katars and sticks were thrown
during the incident. In the peculiar facts and circumstances of the case, mere
non-explanation of the injuries on the person of accused No.2 was not fatal to
the prosecution case. On the abovesaid findings, the trial court convicted the
three accused respondents as under:-
The accused No.1 was convicted under Section 302 IPC for committing murder of Amuji
Narsangji and sentenced to imprisonment for life;
The accused No.1 was also convicted for committing murder of Narsangji Hiraji
and sentenced to imprisonment for life.
the substantive sentences were directed to run concurrently.
Accused No.1 also convicted under Section 324 IPC for voluntarily causing hurts
to Gajaji Viraji and Gambhirji Narsangji but no separate sentence was passed.
Accused No.2 was convicted under Section 302 of the IPC for committing murder
of Sabuji Viraji and was sentenced to imprisonment for life.
The accused No.2 was also convicted under Section 324 of the IPC for causing
hurt to Takhaji Hiraji but no separate sentence was passed.
The accused No.5 was convicted under Section 325 of the IPC for voluntarily
causing grievous hurt to Viraji Devaji. However, she was ordered to be released
on probation of good conduct on executing a bond of Rs.1,000/- with one surety
for a period of one year for keeping peace.
was also ordered to pay compensation of Rs.500/- to Viraji Devaji.
accused Nos. 1, 2 and 5 were acquitted of rest of the charges.
The accused Nos. 3, 4, 6, 7 and 8 were acquitted of all the charges.
three convicted accused persons preferred an appeal, as already stated. The
Division Bench of High Court, has in its brief judgment, acquitted the accused
persons mainly influenced by two considerations. Firstly, the High Court has
felt that as there was only one incident which had taken place in the chowk,
the injured accused persons must have sustained injuries during the course of
the same incident and as the prosecution witnesses did not explain how the
accused persons sustained injuries, it could be safely inferred that the
prosecution witnesses were suppressing the genesis of the incident. The High
Court has also observed that looking to the numerous injuries sustained by the
accused persons it can reasonably be inferred that the accused persons were in
grave apprehension of death or grievous injury being caused to the accused
persons or to anyone or more of them and hence they were entitled to use
weapons for their own protection. They cannot be said to have exceeded their
right of self-defence. Another reason which has prevailed with the High Court
is that though several persons were present at the place of the incident but
the prosecution has not examined any independent witness. The eye witnesses
examined on behalf of the prosecution are related with the deceased and the
combined effect of these two factors was that the testimony of the witnesses could
not be believed. As to the dying declaration, the High Court has observed that
the dying declaration also does not explain the injuries on the persons of the
accused persons and coupled with the fact that the version of the prosecution
as given in the court was being disbelieved, the dying declaration could not
alone form the basis of conviction. On these findings, the appeal has been
allowed and the respondents acquitted. The High Court has not entered into
appreciation of evidence. No effort has been made by the High Court at
marshalling the evidence and assessing the intrinsic worth of the testimony of
the prosecution witnesses which, as we have already noted, were the persons
undoubtedly present at the place of the incident having themselves suffered
first question which arises for consideration is what is the effect of
non-explanation of injuries sustained by State of Bihar, (1998) 7 SCC 365 and Vijayee Singh
& Ors. decisions, the view taken consistently is that it cannot be held as
a matter of law or invariably a rule that whenever accused sustained an injury
in the same occurrence, the prosecution is obliged to explain the injury and on
the failure of the prosecution to do so the prosecution case should be
disbelieved. Before non-explanation of the injuries on the person of the
accused persons by the prosecution witnesses may affect the prosecution case,
the court has to be satisfied of the existence of two conditions :
the injury on the person of the accused was of a serious nature; and
that such injuries must have been caused at the time of the occurrence in
of injuries assumes greater significance when the evidence consists of
interested or partisan witnesses or where the defence gives a version which
competes in probability with that of the prosecution. Where the evidence is
clear cogent and credit worthy and where the Court can distinguish the truth
from falsehood the mere fact that the injuries on the side of the accused
persons are not explained by the prosecution cannot by itself be a sole basis
to reject the testimony of the prosecution witnesses and consequently the whole
of the prosecution case.
High Court was therefore not right in overthrowing the entire prosecution case
for non-explanation of the injuries sustained by the accused persons. The High
Court ought to have made an effort at searching out the truth on the material
available on record as also to find out how much of the prosecution case was
proved beyond reasonable doubt and was worthy of being accepted as truthful.
the case with the criticism levelled by the High Court on the prosecution case
finding fault therewith for non-examination of independent witnesses. It is
true that if a material witness, which would unfold the genesis of the incident
or an essential part of the prosecution case, not convincingly brought to fore
otherwise, or where there is a gap or infirmity in the prosecution case which
could have been supplied or made good by examining a witness which though
available is not examined, the prosecution case can be termed as suffering from
a deficiency and withholding of such a material witness would oblige the Court
to draw an adverse inference against the prosecution by holding that if the
witness would have been examined it would not have supported the prosecution
case. On the other hand if already overwhelming evidence is available and
examination of other witnesses would only be a repetition or duplication of the
evidence already adduced, non-examination of such other witnesses may not be
material. In such a case the Court ought to scrutinise the worth of the
court of facts must ask itself __ whether in the facts and circumstances of the
case, it was necessary to examine such other witness, and if so, whether such
witness was available to be examined and yet was being withheld from the court.
If the answer be positive then only a question of drawing an adverse inference
may arise. If the witnesses already examined are reliable and the testimony
coming from their mouth is unimpeachable the Court can safely act upon it
uninfluenced by the factum of non-examination of other witnesses. In the
present case we find that there are at least 5 witnesses whose presence at the
place of the incident and whose having seen the incident cannot be doubted at
all. It is not even suggested by the defence that they were not present at the
place of the incident and did not participate therein. The injuries sustained
by these witnesses are not just minor and certainly not self-inflicted. None of
the witnesses had a previous enmity with any of the accused persons and there
is apparently no reason why they would tell a lie. The genesis of the incident
is brought out by these witnesses. In fact, the presence of the prosecution
party and the accused persons in the chowk of the village is not disputed. How
the vanity of Thakores was hurt leading into a heated verbal exchange is also
not in dispute. Then followed the assault. If the place of the incident was the
chowk then it was a sudden and not pre-meditated fight between the two parties.
If the accused persons had reached their houses and the members of the
prosecution party had followed them and opened the assault near the house of
the accused persons then it could probably be held to be a case of self-defence
of the accused persons in which case non- explanation of the injuries sustained
by the accused persons would have assumed significance. The learned Sessions
Judge has on appreciation of oral and circumstantial evidence inferred that the
place of the incident was the chowk and not a place near the houses of the
accused persons. Nothing more could have been revealed by other village people
or the party of tight rope dance performers. The evidence available on record
shows and that appears to be very natural, that as soon as the melee ensued all
the village people and tight rope dance performers took to their heels. They
could not have seen the entire incident. The learned Sessions Judge has
minutely scrutinised the statements of all the eye-witnesses and found them
consistent and reliable. The High Court made no effort at scrutinising and analysing
the ocular testimony so as to doubt, if at all, the correctness of the several
findings arrived at by the Sessions Court.
the assistance of the learned counsel for the parties we have gone through the
evidence adduced and on our independent appreciation we find the eye-witnesses
consistent and reliable in their narration of the incident.
opinion non-examination of other witnesses does not cast any infirmity in the
we are of the opinion that the two grounds on which the High Court has reversed
the judgment of the Sessions Court were irrelevant and could not have been
relevant for such reversal. Justice has been made sterile by exaggerated
adherence to rule of proof. Benefit of doubt must always be reasonable and not fenciful.
have already stated, we have ourselves minutely scrutinised the evidence
available on record. We do not find any infirmity in the findings arrived at by
the learned Sessions Judge fixing the liability on the accused persons by
pointing out the specific overt act attributed to each of the accused persons.
However, on the determination of the nature of offence committed by one of the
accused persons, we are at variance with the finding of the learned Sessions
Judge which we will state a little later. We do not deem it necessary to
re-state in very many details our own findings as to the exact role played by the
three accused respondents inasmuch as they are the same as have been recorded
by the learned Sessions Judge. However, briefly we would indicate what we have
found from the appreciation of evidence.
accused no.1 dealt a blow by dagger on the abdomen of Amuji Narsingji. This
injury proved fatal. It was sufficient in the ordinary course of nature to
the witnesses have attributed this fatal injury on the person of Amuji Narsingji
to Kubersing accused no.1. Thus he has been rightly convicted of an offence
punishable under Section 302 IPC for causing death of Narsingji Hiraji.
Hiraji had sustained only one stab wound in the abdomen. The weapon had
penetrated deep cutting the intestines which shows the force by which the blow
was dealt. The author of this injury is Kubersing accused no.1 as deposed to by
all the witnesses. This injury was also sufficient in the ordinary course of
nature to cause death.
accused no.1 is therefore guilty of offence punishable under Section 302 IPC
also for causing the death of Narsingji Hiraji.
PW2, who examined Sabuji Viraji on 24.3.1980 at 12.15 a.m. found him to have sustained 3 injuries of which the incised
wound on left side of upper part of abdomen was 1x¼x¼. This injury is attributed
to Magansing, accused No.2 by all the prosecution witnesses.
are consistent on this point and not shaken in cross- examination. The dying
declaration, Ex.28, made by the deceased Sabuji and recorded by Magistrate also
attributes authorship of this injury to Magansing, accused No.2.
what has to be really determined is the nature of this injury. In his statement
Dr. Vervadia has not stated the nature of the injury caused. Sabuji Viraji died
on 30.3.1980. Post-mortem on his dead body was conducted on 31.3.1980 by Dr. Solanki
PW4. Dr. Solanki, PW4, conducted post mortem on the dead body of Sabuji on
31.3.80 at 10.20 AM. He found the wound stitched. On
opening he found internally __ Large intestine sutured wound 2.5 cm on splenic
flexure gappling containing faecal matter;
area of wound was red in colour; opening was found absent. The cause of death
in the opinion of Dr. Solanki was shock due to acute peritonitis. None of the
two doctors has deposed if the injury was grievous or sufficient in the
ordinary course of nature to cause death or that the injury was so imminently
dangerous that it must have in all probability resulted in death or was likely
to cause death.
exact cause of peritonitis is not known. That negligence to treat the wound
could be a contributing factor cannot be ruled out. In such state of medical
evidence it will not be proper to draw an inference against Magansing accused
no.2 of his having committed murder of Sabusing Viraji punishable under Section
302 of the IPC. The injury dealt by him by a sharp weapon had cut into the
an intention to cause death or such bodily injury as is likely to cause death
cannot be attributed to him, knowledge is attributable to accused No.2 that an
injury by knife into the abdomen was likely to cause death. As it was a case of
sudden fight, the act of this accused would amount to culpable homicide not
amounting to murder punishable under part II of Section 304 of IPC. The other
injuries on the person of Sabuji are not attributed to accused No.2, Magansing.
as Gajrabai Magansing the accused no.5 is concerned her causing a grievous hurt
to Viraji Devaji by a stick is proved beyond reasonable doubt. Viraji Devajis
own statement to this effect is fully corroborated by other eye witnesses and
medical evidence. In our opinion, she was rightly convicted by the learned
Sessions Judge under Section 325 of the IPC.
not deem it necessary to further discuss the evidence and record our findings
as to offences punishable under Section 324 of the IPC committed by accused
no.1 and accused no.2 for causing injuries by sharp weapon to other prosecution
witnesses inasmuch as the learned Sessions Judge having recorded a finding of
guilt on those counts has chosen not to pass any sentence of imprisonment and
therefore such exercise would be futile at this stage, also in view of the
nature of sentences which is being passed on the accused respondents.
the foregoing reasons the appeals are partly allowed. The judgment of the High
Court, under appeal, is set aside. The finding of guilty as recorded by the
trial court along with the sentence passed thereon on the respondent, Kubersing
Chamansing (accused no.1) are restored, that is, he is held guilty of offences
punishable under Section 302 IPC on two heads respectively for causing the
death of Narsingji Hiraji and Amuji Narsingji. He is sentenced to imprisonment
for life on both the counts. Both the sentences shall run concurrenly. The
acquittal of Magansing Dadusing, accused no.2 under Section 302 IPC is
maintained. However, he is held guilty of an offence punishable under Section
304 Part II IPC for causing culpable homicide not amounting to murder of Sabusing
Viraji and he is sentenced to undergo rigorous imprisonment for a period of
five years with a fine of Rs.2,000/- in default of payment whereof he shall
undergo further imprisonment for a period of six months. The amount of fine, if
realised, shall be paid as compensation to the heirs of Late Sabuji.
acquittal of Gajrabai Magansing accused no.5 under Section 325 is set aside and
instead her conviction along with sentence as passed by the trial court is
restored. The bail bonds of Kubersing Chamansing and Magansing Dadusing are
hereby cancelled. They shall surrender and be taken into custody for serving
out the sentences as passed hereinabove. Gajrabai the respondent-accused no.5
shall be called upon to execute the bond and furnish one surety as ordered by
the trial court. The amount of Rs.500/- shall be recovered from her as fine and
paid by way of compensation to Viraji Devaji as ordered by the trial court. The
appeals stand disposed of accordingly.