Decided on September 26,2002

Ajitsinh Andubha Parmal And Anr. Appellant


Shivaraj V. Patil, J. - (1.)These two appeals arise out of a common judgment, hence they are being disposed of together. Briefly stated, the facts leading to filing of these appeals are that on 14-5-1987 in the morning when Abhesinh, the younger brother of Gajubha (the deceased), was cleaning the 'Utara' (a place of tethering cattle), there was altercation between him and accused No. 4 and the accused No.4 dealt a knife blow to him for which the F. I. R. (Exbt.55) was lodged by Abhesinh at Muli Police Station. Mayaba and Manubha are the mother and father of the deceased Gajubha respectively. Sahdevsinh, Abhesinh and Ranubha are his brothers and Harshabha is his sister. Accused No. 1 is the brother of accused No. 3 and accused No. 2 is the brother of accused No. 4; and they are cousins among themselves.
(2.)The prosecution case as emerged during the trial is that at about 10.00 A. M. when Gajubha was rushing towards his mother Mayaba to rescue her, who was being assaulted with sticks by accused Nos. 1 and 3 and his swister Harshabha was pushed when she tried to intervene, the accused No. 2 emerged from the lane and inflicted knife blows on the chest and abdomen of the deceased. When he started running, accused No.2 chased the deceased Gajubha and gave another knife blow. Even thereafter, the three accused the accused Nos. 1 and 3 chased and gave blows with sticks on his head. Deceased Gajubha succumbed to his injuries during treatment on 18-5-1987. All the four accused were tried for offences under Ss. 452, 302 and 323 read with S. 34, IPC and also under S. 135 of the Bombay Police Act. The Additional Sessions Judge, after trial and on consideration of evidence, acquitted accused Nos. 1, 3 and 4 giving benefit of doubt and convicted the accused No.2 alone for offence under S. 302, IPC holding him guilty for the said offence. The accused No. 2 preferred Criminal Appeal No. 652/90 to the High Court and the State challenged the order of acquittal in respect of accused Nos. 1 and 3 in Criminal Appeal No. 790/90. No appeal was preferred against the order of acquittal of accused No. 4. On appeal, the High Court by the impugned judgment and order confirmed the conviction of the accused No. 2 dismissing the appeal filed by him and reversed the order of acquittal of accused Nos. 1 and 3 in the appeal filed by the State and convicted both of them for offence punishable under S. 302 read with S. 34, IPC. Hence, the Criminal Appeal No. 868/2001 by accused Nos. 1 and 3 and Criminal Appeal No. 1207/2001 by the accused No.2.
(3.)According to the prosecution, on 14-5-1987 at 7.30 A. M. accused No.4 quarreled with Adhesinh (younger brother of the deceased) when he was cleaning Utara near his house; father of the accused No.2 caught Abhesinh's hands from the back and accused No.2 dealt knife blow to him, on that account F. I. R. (Exbt. 55) was lodged; on the same day at about 10.00 A. M., accused Nos. 1, 3 and 4 barged into the house of Gajubha and started beating his mother Mayaba with sticks and dragged her outside the house towards back of Sulabha's house. At that time, Ranubha (PW-1), his sister Harshabha (PW-6) were present at the spot. Ranubha rushed to Utara to call Gajubha (the deceased). Gajubha rushed towards his house 200 ft. from Utara. When he came near the spot behind Surabha's house, he saw his mother being beaten : he shouted at the accused; at that time accused No.2 emerged from the lane adjoining Surabha's house; gave two knife blows, one on chest and another on abdomen of Gajubha; Gajubha started running back towards Utara; accused Nos. 1 and 3 left beating Mayaba (PW-5) and started chasing Gajubha with lathis; while Gajubha was running, accused No. 2 gave another knife blow; the accused still continued to chase Gajubha who fell near Utara where accused Nos. 1 and 3 gave him lathi blows on head ; Ranubha went for the help of Tejubha who witnessed the incident from the distance of 50 ft. He got motor-cycle and they carried Gajubha to Civil Hospital, from there he was taken to hospital at Surendranagar. Gajubha was examined by Dr. Vadehra at 10.40 A. M.; Gajubha's statement was recorded by police at 1.30 P.M. which became dying declaration No. 1; statement of Gajubha to Executive Magistrate recorded between 3.10 P.M. and 3.35 P.M. on 14-5-1987 was dying declaration No.2, Gajubha died on 18-5-1987. The trial Court, looking to the evidence of Ranubha, Puriba, Harshabha and Mayaba held that the incident at home at 10 A. M. on 14-5-1987 was not proved because of material contradictions and omissions, which went to the root of the case. However, the trial Court did not believe that someone else assaulted deceased Gajubha by knife and that accused No. 2 was falsely involved. The trial Court noticed that in cross-examination PW-1 Ranubha stated that they had no ill-feelings with the accused party till the date he was examined in the court and he did not know why accused Nos. 1 and 3 beat his mother. He has also not stated that accused Nos. 1 and 3 came with sticks and assualted his mother; the trial Court observed that the conduct of this witness does not inspire confidence inasmuch as on the date of the incident, he was 16 years of age approximately and he did not intervene when they were beating his mother; if he was really present at the time of incident, he would have certainly intervened; PW-5 Mayaba, mother of the deceased stated that she was beaten by sticks on shoulder, back and waist; she also admitted that she felt giddiness and had fallen on the wall of Surabha's Khadki; lost consciousness and gained consciousness thereafter at Surendranagar hospital; she was silent about the motive of the accused to beat her; she further admitted that her son Ranubha (PW-1) and her daughter Harshabha (PW-6) did not resist the attack by accused 1 and 3; PW-2, Puriba does not speak about stick blows; she did not state before the police that accused Nos. 1 and 3 assaulted the deceased with sticks; Parsanabha (PW-7) deposed only against accused No.2 (Chandrasinh) and did not say anything against accused Nos. 1 and 3; when questioned under S. 162, Cr. P.C. she deposed that she has not stated that accused Nos. 1 and 3 were beating Mayaba and Gajubha came to save her; even in the dying declaration of Gajubha he is silent about the incident at home and his brother Ranubha coming to call him and his rushing towards his mother; Mayaba's version about stick blows on chest, waist and back is not corroborated by the medical evidence; because Mayaba's medical certificate (Exbt. 32) does not show any injuries on waist, chest and back and there was a contusion on either side of scalp; the defence version that on seeing her son being beaten, she herself dashed her head on the wall, could not be ruled out; thus looking to the evidence of these witnesses and having regard to the material contradictions and admissions which went to the root of the case, the trial Court held that incident as alleged by the prosecution at home at 10.00 A.M. on 14-5-1987 was not proved.

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