Gujarat High Court
Paresh @ Paryo Sumanbhai Patel vs State Of Gujarat on 11 September, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1296 of 2009
With
R/CRIMINAL APPEAL NO. 1357 of 2009
With
R/CRIMINAL APPEAL NO. 1569 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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PARESH @ PARYO SUMANBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR PRAVIN GONDALIYA(1974) for the Appellant(s) No. 1
MR ADITYA JADEJA APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 11/09/2025
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. Criminal Appeal No. 1296 of 2009 is preferred by the
Original Accused No. 2, Paresh @ Paryo Sumanbhai Patel,
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who has been convicted in Sessions Case No. 79/2007.
Similarly, Criminal Appeal No. 1569 of 2009 is preferred by
Original Accused No. 3, Niteshbhai Nanubhai Patel, who has
also been convicted in Sessions Case No. 79/2007.
Furthermore, Criminal Appeal No. 1357 of 2009 is preferred
by Rajeshbhai @ Raju Sumanbhai Koli Patel, who has been
convicted in Sessions Case No. 24/2008.Accused Nos. 2 and 3
have been convicted arising out of Sessions Case No. 79/2007
for offences punishable under Section 302 read with Sections
147, 148, and 149 of the Indian Penal Code. They have been
sentenced to life imprisonment and a fine of Rs. 5,000/-, and
in default thereof, to two years' rigorous imprisonment.
Additionally, Accused No. 3 has also been convicted in
Sessions Case No. 79/2007 for offences punishable under
Sections 323 and 325 read with Sections 147, 148, and 149 of
the IPC, and Section 135(3) of the Gujarat Police Act. For
these offences, he has been sentenced to three years' rigorous
imprisonment and a fine of Rs. 2,000/-, and in default thereof,
simple imprisonment for six months.
2. As far as the Original Accused Nos. 4 to 9 in Sessions
Case No. 79/2007 are concerned, they have been acquitted of
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all the charges leveled against them. However, the State has
not preferred any appeal against their acquittal. On the other
hand, Accused No. 1 in Sessions Case No. 79/2007, namely
Jigneshbhai Patel, who had preferred Criminal Appeal No.
1256 of 2009, has passed away, and vide order dated
12.02.2025, his appeal was ordered to be abated and disposed
of accordingly. Since all the aforesaid three appeals arise
from the same FIR, although they pertain to two separate
Sessions Cases, they are decided together.
3. The facts of the captioned appeal arising from the FIR
reveal that:-
3.1 On 31.05.2007, Bhaviniben Devabhai Prabhubhai had
gone to the High School situated in Village Vasan since the
result of standard 10th was to be declared, and she returned
to her residence at 12.30 hrs noon. Thereafter, after having
lunch at about 1 o'clock, she went to the outskirts of the
village for washing clothes where the agricultural field is
located and was washing clothes near the agricultural field. At
about 2.30 hours from the village side, around fifteen persons
riding 7 to 8 motorcycles came and stopped the motorcycles
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near her. In the said crowd, Pareshbhai Sumanbhai Koli Patel,
his younger brother Rajubhai Sumanbhai Koli Patel,
Shankarbhai Maganbhai, and the son of Nathubhai, namely
Jigneshbhai, resident of Vasan Village, in all four persons,
were identified, and others can be identified on seeing them,
out of which one person slapped her face and threatened not
to telephone the Police or else she would be finished. He stood
near her, and the rest of the accused were holding sticks in
their hands, running towards the field where her father and
his uncle Kantubhai were taking rest.
3.2 Thereafter, these persons surrounded her father and
Pareshbhai, Rajubhai, Shankarbhai, and Jigneshbhai started
hitting her father and uncle with sticks indiscriminately.
Seeing this, the complainant, her younger sisters, and
younger brother started shouting loudly to save her. At that
time, when persons were standing beside the complainant,
one hit her on the body with a stick and thereafter went on
the motorcycles towards her residence. After some time, her
aunt Vasantiben came, and learning of the scuffle, village
people who were residing in the neighborhood also came to
the place of incident. They found that the complainant's father
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and her uncle were injured and were taken to Kasturba
Hospital, Valsad, where, after examination by the doctor, her
uncle was declared dead. Out of the accused persons,
Rajubhai, Sumanbhai, and Pareshbhai Sumanbhai had
inflicted injury on the father and uncle while holding sticks in
their hands, and other persons along with them instigated
these two persons. Thereafter, it came to the complainant's
knowledge that they had also visited her residence after
injuring her father and uncle, and a scuffle occurred there as
well. The reason for present incidence was that two days
back, the father of the complainant, his uncle, and other
persons had a beaten father and mother of Rajubhai and other
persons. Holding a grudge, Rajubhai, Pareshbhai, and their
friends committed the present crime. Thus, the complaint was
lodged before the Police Sub Inspector, Dungri on 31.05.2007
and was registered as CR-1-31/2007.
3.3. After investigation, the charge sheet was filed before the
concerned jurisdictional Magistrate, and the case was
committed to the Sessions Court as a sessions triable case and
numbered as Sessions Case No. 79/2007 and 24/2008
(supplementary charge sheet). In Sessions Case No. 79/2007,
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charges were framed vide Exhibit 4, to which the pleas of
Nitishbhai Patel and Pareshbhai Patel were recorded vide
Exhibits 7 and 6 respectively. In Sessions Case No. 24/2008,
charges were framed vide Exhibit 4, and the plea of
Rajeshbhai Patel was recorded vide Exhibit 5. All the accused
persons denied the charges and prayed for trial.
3.4 After completion of the trial, statements of the accused
persons were recorded under Section 313 of the CrPC. After
hearing the learned advocates for both parties and
considering the documentary as well as oral evidence on
record, the Appellants were convicted as stated above. Hence,
the present appeal.
4. Ld. Advocates Mr. Pravin Gondaliya, Mr. Yash Nanavaty
and Ld. Advocate Mr. P.P Majmudar for Appellants would
submit that
(1) On going through the deposition of Bhaviniben Devabhai
Patel PW 1 Exh. 26, following discrepancies are found:-
a. Not stated in FIR that "Paresh had threatened or Nilesh had
caused injury"
b. Did not disclose to police that Kantubhai and Devabhai
were taking rest at a distance of 20-25 ft.
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C. Did not mention in FIR that she had gone to wash clothes
with bicycle;
d. Did not state before doctor at Vaghaldhara that she had
sustained injury;
e. Kantubhai and Devabhai had their meals at about 1200-
1230 pm from the tiffin, which was lying at the time of
incident;
f. Did not talk about the incident until she reached hospital
with her Kantubhai and Devabhai;
g. PW:12, PSI states that Bhaviniben did not inform about her
injuries.
(2) On going through the deposition of Pratik Maganbhai
Patel PW 3 Exh. 33, following discrepancies are found:-
a. No history before Doctor, though took treatment;
b. Statement recorded after two days
c. Not stating in FIR that Jignesh was also present
d. No preliminary treatment at Vaghaldhara, though,
Kantubhai and Devabhai had been given preliminary
treatment there;
e. Mother also sustained injury. Did not inform police about
the incident. Does not show injuries on his legs to doctor.
Failed to identify wooden bats. Does not disclose to doctor
how did he sustain injuries; Discloses that he was assaulted
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on the next date only;
f. PW: 12, PSI states that Pratik was not seen in the
hospital of the date of recording complaint
(3) Drawing the attention towards the deposition of injured
Devabhai Jamubhai Patel PW 10 Exh. 55 and has stated that
the following discrepancies are found :
a. Denies to have beengiven preliminary treatment by Pw 6 at
1440 hrs on 31.05.2007 or anything in that regard.
b. Statement before Executive Magistrate did not mention
material aspects of the case.
c. Statement before TI Parade was held also did not mention
names of any accused persons;
d. Contradiction with police statement about role of accused;
(4) That identification of the accused by Bhaviniben
Devabhai Patel is not believable in as much as, one of the
Accused, who threaten her, stood near to her throughout the
incident. She cannot say how many assailants were there in
the alleged Incident.
(5) That Bhaviniben and Devabhai failed to identify anyone
other than Nitesh in the TI Parade.
(6) That the contents of the FIR and the statement before
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the police are at variance, in the following manner:-
(1) Bhaviniben Devabhai Patel
a. "FIR was not recorded at the scene of incident, but at
the hospital, and therefore, it is true that FIR was not
recorded at 1720 hrs on the scene of offence", and there is no
explanation for the same";
PW:12, PSI admits this in Para:3 on P.517
b. Did not disclose in the FIR that all accused went with sticks
near the hut where Kantubhai and Devabhai were taking rest
and cordoned them, and there is no explanation why was this
written in the FIR."
C. Does not know motive for the incident, and therefore, has
not stated in FIR that the incident had occurred since there
was previous scuffle between Kantubhai-Dahyabhai and
others on one hand and mother of Rajubhai and others."
(2) Pratik Maganbhai Patel
a. Not stated that Raju Suman, Paresh Suman and others had
started beating him, and there is no reasons to give incorrect
statement,
b. Para: 5 on P.353: Did not mention anything about the
first part of incident occurred at the field;
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(7) That the discovery of the weapons alleged to have been
recovery at the instance of the accused persons does not fall
within four corners of Section 27 of the Indian Evidence Act.
That they were lying in the open field accessible to al, and had
not bloodstains. In such circumstances, the discovery /
recovery of weapon lost its significance and cannot be
attributed to the appellants.
(8) Drawing attention towards the deposition of Doctor who
had performed PM of deceased Kantubhai, Dr. Jaydeep Patel
at Exh. 28 and preliminary treatment givenby Ajit Jerambhai
Tandel at Exh. 44 has pointed out following discrepancies.
(1) Dr. Jaydeep Patel
a. Kantubhai's Stomach was empty, and therefore, if
deceased had taken mealsat about 1200-1230, there must be
semi-digested food in the stomach. According to him,
Kantubhai must have taken his last meal at night, and it does
not appear that Kantubhai died after having his last meals."
I. Bhaviniben Patel said Kantubhai had his meals at 1200-1230
hrs, few minutes before the incident;
b. Death is due to External injury No. 1 and corresponding
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internal injury; Other injuries No.2 to 20, which are possible
due to fall, are not sufficient to cause death.
c. "It is not true that injuries were caused with the muddamal
articles"
(2) Dr. Ajit Jerambhai Tandel
[PW:6, Ex:44, P.407]
a. Preliminary Treatment to Devabhai
b. No names of assailants were given by the injured though he
was conscious
(9) Drawing attention towards the panchnama and panch
witnesses, more particularly, the discovery of wooden logs
from the open field which is at Exh. 41 and examination of the
pachwitnesses vide Exh. 40. it is argued that deposition of
Harishbhai Babarbhai Patel is not reliable. It is further argued
that Harishbhai Patel is also panch witness of demonstration
panchnama which has not evidential value in eye of law and
no reliance have been placed on the demonstration
panchnama. In deposition of Mousif mahebubhai Paswal PW 7
Exh. 50 who is the panch of TI Parade does not fully
corroborate the procedure carried out during the TI parade
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and has admitted material loopholes in the TI parade cannot
be reliable.
(10) following discrepancies are also pointed out by Ld.
Advocate for the Appellant qua the police witnesses namely
Hilalbhai Ratanbhai Vagh Pw 11, Exh. 59 and Vishnubhai
Babubhai patel PW 12 Exh. 64.
Hilalbhai Ratanbhai Vagh
a. No investigation qua contradiction in the case history
and statement before police given by Devabhai
b, No investigation qua contradiction in the case history
and actual injury sustained by Pratik
c. Details in panchnama of scene of offence are missing in the
FIR
d. No investigation if wooden logs were lying before FIR
was registered; No gorge found near the scene of offence; No
cycle found from the scene of offence; No blood stains from
the scene of offence; No bloodstains clothes of victims, and
therefore, not sent to the FSL.
e. Harishbhai was running a tea stall opposite the police
station, and that he had been a panch witness in many
panchnamas;
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f. No investigation qua previous treatment before Dr.
Ashok at Vaghaldhara. No statement of Dr. Ashok recorded,
no case papers collected; Statement of daughters of Devabhai
not recorded; No proof of injury to Pratik's mother;
g. No evidence as to who took the victims to the temple;
h. Contradictions in the evidence of Devabhai proved;
I. no procedure followed before declaring Raju Suman
Patel absconding
Vishnubhai Babubhai Patel
a. Para:4 on P.517: Bhaviniben did not inform about her
injuries and he did not see Pratik in the hospital of the date of
recording complaint;
b. Para:4 on P.519: Contradiction with contents FIR
(11) That it would be evident from the deposition of
Sureshbhai Gami, Executive Magistrate, Pw 8 Exh. 51,
wherein, he has stated that Bhaviniben and Devabhai
identified only Nitesh and none else. On the contrary, two
other alleged accused who were identified turned out to be
dummy and not the accused. Thus, it is argued that the
Complainant Bhaviniben and so called eyewitness having
wittness the incident is highly doubtful. Thus, in the nutshell,
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it is submitted that
1) considering the evidence collected by the investigating
agency the same cannot be relied upon as it is based on
faulty evidence. Key witness testimonies (P.W.1, P.W.3,
and P.W.10) have significant contradictions,
omissions,and discrepancies that undermine the
prosecution's case. These inconsistencies point to the
lack of a coherent and reliable narrative, suggesting that
the conviction is erroneous.
2) the alleged weapons have been recovered from the open
field and the same cannot is not recovered from the
present applicant.
3) The medical evidence reveals that, out of 20 injuries
inflicted on the deceased, only one was fatal, there is no
conclusive proof that the appellant has inflicted the fatal
injury, casting serious doubt on the appellant
involvement in the crime.
4) Learned Judge while convicting the applicant failed to
consider that the prosecution has not established its
case beyond reasonable doubt and even the evidence
collected and the manner in which the same is collected
was not sufficient to convict the appellant.
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5) All the witness examined during the course of Trial are
Interested witness and no independent witness has been
examined by the prosecution.
6) The Complainant in her deposition at Page No. 277
states that the person who she identified as Nitesh was
not Nitesh but one Bhupesh Kishorbhai. Further she at
Page no. 281 in her deposition states that she cannot say
who had given blow with stick.
7) The Injured Eye Witness PW 10 in his deposition at Page
No. 473, also admits that he had identified wrong person
as Nitesh (present appellant). The person he identified
as Nitesh was Mr. Jaynesh.
8) The present appellant (Niteshbhai Patel) is not even
named in the Complaint/FIR. It is submitted that wrong
person is identified as Nitesh by the Complainant and
Injured Eye Witness PW 10 and thus it clearly indicates
that the case of prosecution is doubtful and has not
proved its case beyond reasonable doubt.
9) Panch witness to the recovery of the weapons are not
believed as it is admitted that the one of the panch is
running tea stall near police station and he has been in
punch in more than 200 panchnamas.
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10) The Procedure under taken to identified the witness by
way of T. I. Parade has failed and two dummy persons
were pulled out in the same.
11) Considering the evidence of the Investigating officer it
clearly indicates that the investigation is faulty and
therefore also the Learned Judge ought not to have
convicted the appellant on basis of such faulty
investigation.
12) The Observation of the Learned Judge are without any
basis and contrary to the evidence on record and the
same are bad in law (the same can been read from Para
No. 71 of the Judgement)
13) Even the Judgement is contrary to the law as the
Learned Judge relying on the same evidence has
acquitted one set of accused and has convicted another
set of accused without their being any specific contrary
evidence.
14) It is submitted that, going through the entire evidence
on record as well as the depositions of the eye-witnesses
and so-called injured eye-witnesses, the prosecution has
miserably failed to establish any motive for the alleged
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offence against the accused persons. Under such
background of facts, the appellants ought to have been
acquitted.
15) Important witness one Dr. Ashok Who has given
preliminary treatment has not been examined.
16) As per the deposition of Bhaviniben and Devabhai, sister
and brother of Bhaviniben were there at the spot but
theyare not examined. Not only that, but as per the
deposition of injured witness/complainant Bhaviniben,
Vasantiben came on the spot, however she is not
examined by the prosecution. Moreover, according to
deposition of Bhaviniben, village people came to the
spot, however, not a single person is examined by the
prosecution
17) Even considering the evidence collected by the
investigating agency the same cannot be relied upon as
it is based on faulty evidence. Key witness testimonies
(P.W.1, P.W.3 ,and P.W.10) have significant
contradictions,omissions, and discrepancies that
undermine the prosecution's case. These inconsistencies
point to the lack of a coherent and reliable narrative,
suggesting that the conviction is erroneous
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18) Bhaviniben say in her deposition (Page No. 273), that the
incident went on for 5 to 7 minutes and accused persons
flee away. Devabhai in his deposition (Page No. 483)
says that, incident went on for 30 minutes.
19) Bhaviniben says in her depositions that, the deceased
and her father had their lunch at around 12:00 to 12:30
PM and were taking rest and the assault was made at
2:30PM. But the medical evidence is not supporting the
say of this witness, PM doctor Jaydip Patel has
specifically, says that, no food was found from intestine
and deceased must have taken his meal at previous
night (Para 5, Page No.311-313).
20) There is material contradiction about motive, in FIR and
deposition of complainant (Page No. 343 and 345).
21) Bhaviniben categorically admits that, different facts has
been narrated in the panchnama of scene of offence. The
recovery of the weapon from the scene of offence is
highly doubtful.
22) The alleged weapons have been recovered from the open
field and the same is not recovered from the present
applicant.
23) The Ld. Trial Court ought not to have relied upon the
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deposition of P.W. 3- Pratik Maganbhai Patel as he is not
eye-witness to the incident and not disclosing true and
correct facts before the Hon'ble Court. As per his say, he
says that, at around 2-2:30 PM accused paresh, raju and
Jignesh came to his home and assaulted him at that
point of time his mother leelaben and jinalben were at
home, but both these are not examined by the
prosecution. This witness Pratik went to the spot and
found that, deceased and Devabhai were made to sleep
near Sikotar temple and all the people of his faliya
gathered there and from there they were taken to
Kasturba Hospital. This witness says that, the accused
Jignesh and paresh has dispute with his uncle Rajubhai
and quarrel has taken place. This witness has made
contradictory statement before the court and the has
been admitted by him (Page No. 351). This witness says
that, his mother was also beaten, however, she is not
examined. This witness categorically admits
that,mudamal sticks produced in the court, is not the
sticks, by whom he was beaten. This witness
categorically admits that, he has not stated before police
that, when he, his mother and sister and other persons
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went to field and found that, his uncle Kantubhai were
lying in the field and Devabhai were lying at some
distance in bleeding condition and they were asking to
save them and raju and paresh has beaten them. This
statement is specifically contradicted in the deposition of
I.O. This witness in his cross specifically admitted that,
he found the deceased and injured Devabhai near
sikotar mata temple.
24) P.W. 10- deposition of injured Devabhai is absolutely
untrustworthy and non-reliable. There are many
contradictions, omissions and exaggeration. This witness
is giving total contradictory story to the deposition of his
daughter Bhaviniben (complainant). Devabhai do not
disclose name of any assailants before doctor in
history.This witness says that, incident went on for half
an hour (Page No. 483) whereas, complainant says that,
incident went on for 5-7 minutes and accused flee away
(Page No.273). This witness says that, he became
unconscious and he became conscious next day (Page
no. 471), but the doctor P.W. 6- Dr. Ajit Tandel has in his
deposition stated that, injured Devabhai was brought to
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hospital on 31.05.2007 at around 4:40 PM and patient
himself gave history that, somebody assaulted with
sticks and sharp cutting weapon at around 2:00 PM near
olgam dungri. In para 2 doctor stated that, patient was
conscious (Page No.407). This witness before the
executive magistrate while T.I. parade says different
story of identifying the accused, who snatched the gold
chain. This witness does not identifies the persons as
accused persons while T.I. parade. This witness says
that, Bhaviniben came to wash clothes on bore-well
(Page No. 421), whereas, Bhavini says she went on field
and was washing clothes at Kotar. This witness
specifically admits that, the assailants had no enmity
with him (Page No. 485).
25) P.W.- 11- Mr. I.O., categorically admits that, there was
no blood stains on the clothes of deceased and injured
Devabhai and therefore clothes were not sent to FSL, he
further admits that on the sticks (Dhoka) there were no
blood stains and therefore same is not sent to FSL. It is
submitted that, all the three so-called injured witnesses
says that, the deceased and Devabhai were in pool of
blood.
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26) The prosecution has not established that, how the
injured and deceased found near the temple of Sikotar
Mata as per the, say of witness Pratik, tough
complainant and Devabhai says that, they were beaten
in the field and became unconscious and lying in the
field
27) As per the case of prosecution the deceased and injured
Devabhai were taken to hospital in tempo however, this
tempo driver is not examined by the prosecution, nor the
blood samples have been taken from this tempo or any
panchnama is drawn from the tempo.
28) It is submitted that, looking to the recovery panchnama,
it is highly doubtful, as it is stated in panchnama itself,
the alleged wood logs were found lying on the field
itself, which were shown by complainant to the
investigation authorities. Therefore, none of the
weapons allegedly used in the alleged offence were
discovered or recovered from instance of the accused
persons.
29) It is humbly submitted that, looking to the medical
evidence, there were 20 injuries sustained to the
deceased, out of which one injury was fatal, as per the
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deposition of the medical officer. It is further submitted
that, for the sake of arguments, even if the case of
prosecution is taken as it is and looking into the
deposition of the complainant,the attack was made,
indiscriminate blows were given to Y2 the deceased and
the injured persons. Therefore, it becomes highly
doubtful from the evidence on record that, who gave a
fatal blow to the deceased, by which he died. Therefore,
Ld. Trial Court ought to have give benefit of doubt in
favor of the accused persons, only on the basis of
presumptions, the impugned order of conviction cannot
be sustained in the eye of law.
30) Learned Judge while convicting the applicant failed to
consider that the prosecution has not established its
case beyond reasonable doubt and even the evidence
collected and the manner in which the same is collected
was not sufficient to convict the appellant.
31) All the witness examined during the course of Trial are
Interested witness and no independent witness has been
examined by the prosecution.
32) P.W. 5- Panch witness of Panchnama of recovery of
sticks from the place of incident has partly not
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supported the prosecution case and same is not believed
as it is admitted by him that he is running tea stall near
police station and used to serve the tea in Police Station
and used to be a panch in prohibition offences and police
took his signature on ready panchnama. It is admitted by
this panch in his cross, (Page No. 417) that he signed
the panchnama without reading it and admits that, the
panchnama was written in police station and signed 3 to
4 panchnamas in police station.
33) P.W. 4- Panch of Panchnama of place of incident and
recovery of sticks has not supported the case of
prosecution and turned hostile.
34) The Procedure under taken to identified the witness by
13 way of T. I. Parade has failed and two dummy persons
were pulled out in the same.
35) The witnesses, i.e., Bhaviniben and Devabhai, puts a
different story before executive magistrate when they
were called to identify the accused (Page No. 441)
(Accused ran away by snatching gold chain).
36) T.I. parade and deposition of executive magistrate is not
believable as the guideline of the Hon'ble Apex Court for
conducting T.I. parade is not followed. There is no
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description about age, height or any type of body
description of any of the unidentified accused either in
the FIR or by any injured witness, therefore, there is no
question of calling dummy persons of having similar
character to the accused, therefore, the T.I. parade
conducted is absolutely in mechanical manner. The
witnesses are identifying wrong persons (dummy
persons as accused), (Page No. 439). The distance
between the office of executive magistrate and sub jail is
only 25 to 30 feet and the executive magistrate portfolio
of sub jail. Faces of accused were not covered when they
put in guard room at the time of conducting T.I. parade.
There were no curtains in the office of executive
magistrate. The executive magistrate in his cross (Page
No. 441) categorically admits that, in routine manner he
has mentioned that, the faces of dummy and accused are
similar, which shows that, T.I. parade conducted is
absolutely against the guidelines of Hon'ble Apex Court
and therefore, cannot be relied upon.
37) Considering the evidence of the Investigating officer it
clearly indicates that the investigation is faulty and
therefore also the Learned Judge ought not to have
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convicted the appellant on basis of such faulty
investigation. The Observation of the Learned Judge are
without any basis and contrary to the evidence on record
and the same are bad in law (the same can been read
from Para No. 71 of the Judgment).
38) That the Ld. Trial Court has not appreciated the
evidence in its perspective manner as required under
section 3 of the evidence act and convicted the
appellants only relying upon the chief examination of the
witnesses.
39) Though the Ld. Trial Court has held guilty 5 persons,
two persons, i.e., present appellants Paresh Suman and
Raju Suman for the offence under section 302, whereas
accused Shankar, Jignesh Nathu and Nitesh Nanu for
323 and 325 r/w. sections 147, 148 and 149 of the IPC.
However, in the operative order of conviction and
sentence, there is reference of only 4 persons, i.e.,
present appellants Paresh Suman and Raju Suman for
302 r/w. 147, 148 and 149 of the IPC for life and two
accused persons Jignesh NathuPatel and Nitesh Nanu
Patel for 323 and 325 r/w. 147, 148 and 149 of the IPC.
There is no reference of accused Shankar in the
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operative and final order of conviction. It is shocking and
surprising tough the person is held guilt for the offence
who is not charge-sheeted, nor his name is shown in the
charge framed before the Ld. Trial Court.
40) Even the Judgment is contrary to the law as the Learned
Judge relying on the same evidence has acquitted one
set of accused and has convicted another set of accused
without their being any specific contrary evidence and
considering the recent judgment passed by the Hon'ble
Supreme Court of India in case of Javed Shaukat Ali
Qureshi V/s State of Gujarat reported in 2023 9 SCC 164
and Yogarani versus State by Inspector of Police
reported in 2024-AIR(SC)-0-4641 the appellant may be
IS acquitted.
41) It is submitted that, in the present case, the Ld. Trial
Court has convicted four (4) persons, wherein, the
present appellants were convicted for 302 r/w. 147, 148
and 149 of the IPC and other two co-accused persons for
323 and 325г/w. 147, 148 and 149 of the IPC. It is
submitted that to invoke the provisions of sections 149
there has to be unlawful assembly of more than 5
persons as defined under section 141 of IPC and
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therefore, impugned conviction cannot be sustained in
the eye of law.
5. Ld. APP Mr. Aditya Jadeja would submit that the
conviction passed by the learned Sessions Court is just and
proper after considering both oral as well as documentary
evidence on record. The manner in which the entire incident
has taken place has been deposed by the complainant and the
eyewitnesses, which is reliable. Mere minor discrepancies
that do not go to the root of the case would not be sufficient to
acquit the appellants. Thus, the Trial Court has not committed
any error either in facts or in law in convicting the appellants,
as the prosecution is not bound to explain each and every
hypothesis raised by the accused persons before the Trial
Court. What has to be proved is the case beyond reasonable
doubt and not beyond a reasonable doubt. Looking at the
reasoning adopted by the learned Sessions Judge, considering
the deposition of the eyewitnesses, and the doctor who
carried out the post-mortem of the deceased, it cannot be said
that the Trial Court has erred in finding no variance between
the medical evidence and the ocular evidence. The medical
evidence does not discard the original evidence entirely
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merely because no food content was found in the stomach of
the deceased, whereas the complainant in her deposition
stated that her father and uncle were resting in their field
after lunch. This would be of no help to the accused persons.
The role played by the accused persons in committing the
offence by using weapons is clearly proved in accordance with
the law. That merely no bloodstains being found on the
alleged weapon is not a ground to acquit the accused persons
since it is only a corroborative piece of evidence. When the
eyewitnesses have deposed in favour of the prosecution and
their deposition has gone unchallenged and inspires
confidence, in such circumstances, it is argued to reject the
appeals.
6. The present case rests upon the testimony of three
injured eyewitnesses to the alleged incident, which has been
executed into two parts. Regarding the first part, the key
injured eyewitnesses are Bhaviniben Patel (PW-1, Exhibit 26)
and Deva Bhai Patel (PW-10, Exhibit 55). For the second part
of the incident, the injured eyewitness is Pratik Patel (PW-3,
Exhibit 33).
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7. Analysis of deposition of Bhaviniben
7.1 In the Examination in Chief, the Bhaviniben has stated
as follows:-
At her residence, her mother, younger sister, and
younger brother live together with her. At the time of the
incident, she was a student of Standard 10 and had gone to
the High School in Vasan Village to collect her result at 10
o'clock in the morning and returned to her residence at 12:30
p.m. After having lunch at about 1 o'clock in the afternoon,
she went to the agricultural field to wash clothes. While she
was washing clothes between 2:00 and 2:30 p.m., 7 to 8
motorcycles of Pulsar, Hero Honda, and Karizma Company
arrived, carrying Paresh Bhai, Raju Bhai, Shankar Bhai, and
several other persons. These persons stopped their
motorcycles near where she was washing clothes, and
Pareshbhai threatened her that if she shouted, she would be
finished. One person slapped her, and Nilesh inflicted an
injury with a stick. Her father, Deva Bhai, and her uncle,
Kantu Bhai, were resting in the agricultural field just 20 to 25
meters away from where she was washing clothes. Kantu Bhai
and her father were hit with sticks by Jignesh Bhai,
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Pareshbhai, Raju Bhai, Shankar Bhai, and others
accompanying them. She identified Pareshbhai, Raju Bhai,
and Shankar Bhai as they reside in the neighborhood, and she
also knew Jignesh Bhai, who was the General Secretary of
Vasan Village High School in Standard 12. Except for these
four persons, she could not identify the others. These persons
inflicted injuries for about 5 to 7 minutes before leaving.She
went near her father and Kantu Bhai and started shouting.
After the accused persons ran away, people from the village
gathered. Her father and uncle were taken to Kasturba
Hospital by Tempo, where Kantu Bhai was declared dead. Her
father and uncle had received injuries all over their bodies
due to stick blows. She was afraid and therefore did not
present herself for examination by a doctor. She stated that
she received an injury on the side of her waist and was hit by
a wooden log by Nilesh, due to which, there were marks on
the west side of the body. After reaching the hospital, she
came to know that the accused persons had also gone to the
residence of Kantu Bhai. She lodged her complaint at
Kasturba Hospital. She does not have any enmity with the
accused persons. The said complaint is exhibited as Exhibit
27. Kantu Bhai had enmity with Pareshbhai; the nature of that
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enmity is not known to her. Kantu Bhai and her father were
friends and used to spend time with her father. He was also
beaten.She identified Pareshbhai, Jignesh Bhai, and Nilesh,
who were present. Since the other accused persons were not
present in court, she did not identify them. She also identified
accused Nilesh during the TI parade conducted at the office of
the Mamlatdar on 26-07-2007, from a group of 35-40 persons
who were made to stand in a circle.She states that the person
she identified as Nilesh Nanu is actually named Bhupesh, and
she had identified this accused before the Executive
Magistrate. The person identified as Nilesh stated that his
real name is Nitesh Nanu. Her father was taken to the
hospital by her, while Kantu Bhai was taken to the hospital by
her aunt Leela, the complainant, and Pratik. This is the sum
and substance of the examination-in-chief of the complainant.
7.2 On cross-examination of this eye- witness, the defense
counsel has tried to create suspicion with regard to veracity of
the deposition of eyewitness on asking various questions the
answer to which are in summary. She does not know the
tempo number in which her father and uncle were taken to
Kasturba hospital. She has not gone to call the tempo. Doctor
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did not enquire with her at the hospital. She knows that on
the way to Valsa from Olgam, Dungri falls in between. She
does not know as to she had taken out case papers of
Kantubhai and Deva bhai. She does not remember at what
time they went to police station.
It was in the evening, and she stayed at the police
station until about 2:00 to 2:30 a.m. She remained at the
hospital for about an hour, during which Pratik returned to
the village with someone known to her. The police took her
signature at Kasturba Hospital at around 5:30 p.m. No one
else was present when the police took her signature. She was
not given a copy of the FIR recorded at the hospital. From
there, she was taken to the police station. She does not know
when her father and uncle came to the agricultural field. She
denied the suggestion that she had not mentioned in her
complaint that her father and uncle were resting 20 to 25
meters away from where she was washing clothes. She
admitted, however, that she did not state in her complaint
that Jignesh Bhai was the General Secretary at Vasant High
School. She denied the suggestion that she had not mentioned
in her complaint that the accused had arrived on Hero Honda,
Pulsar, and Karizma motorcycles.She stated that while she
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had given this information in her complaint, it was not
recorded by the police. She became aware of this omission
only upon reading the complaint today. She confirmed having
read the complaint wherein she had informed the police that
Kantu Bhai and Deva Bhai were resting 20 to 25 meters away.
She also clarified that there is no road passing by the place
where she was washing clothes.
She stated that she did not know whether she had
informed the police about the Pulsar, Hero Honda, and
Karizma motorcycles. She also could not recall whether she
had mentioned in her complaint that Leela Ben and Pratik
Bhai had accompanied her in the tempo. She remained with
her father and uncle the entire time she was in the hospital.
During this period, the doctor did not inquire with either
Leela Ben or Pratik Bhai.She denied that Leela had come with
her to the hospital. She confirmed that she has no relationship
with the complainant. After washing clothes, she took them
back to her residence. She did not inform the doctor about
who accompanied the injured or who had called the police.
She did not call the police herself. She stated that she did not
know who inflicted the injury with the wooden log.She denied
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the suggestion that she was not present at the scene or that
the story about washing clothes was fabricated. She denied
that none of the accused were present at the time of the
incident or that the accused had not inflicted injuries on her
father and uncle. She further denied signing the complaint
without reading it and stated that her father does not live with
her.She showed her injury to the doctor, who administered an
injection. She informed the doctor about the incident. The
police arrived at the hospital within 10 to 15 minutes of their
arrival. The complaint was given at the hospital, not at the
place of the incident. She had read the complaint before
signing it. She denied the assertion that the complaint was
lodged at the scene at 17:20 hrs and stated she had no reason
to make any false claims.She was treated by the doctor but
did not know the doctor's name. Her father and uncle also
received treatment. She did not know whether the doctor
spoke to her father. When her father was treated, he was
conscious but unable to speak. She did not recall whether the
Mamlatdar came to the hospital to take her father's
statement.She admitted having provided facts and details
about the place of the incident that are not mentioned in her
written complaint, but she could not explain why. She
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confirmed being present when her father's statement was
taken at the hospital.At the time of the incident, she, her
father, brother, sister, and uncle Kantu Bhai were present in
the agricultural field. She did not know when the others had
arrived. Her brother and sister had brought lunch (tiffin) for
her father. After releasing water into the field, they rested and
had lunch - rice, dal, and chapati around 12:00 to 12:30
p.m.The place of the incident is about 3 km from her
residence. Her father was lying near a hole in the field. Her
uncle was bleeding, and his clothes were soaked in blood. She
did not see the blood while Kantu Bhai was being taken to the
tempo. Both her uncle and father were bleeding. Her father
was bleeding from the stomach and also had bruises. He was
wearing a shirt and pants.Her father and Kantu Bhai were
made to sit in the tempo near the temple, not directly from the
field. The temple is about 100 feet away from the field.
Villagers came and helped carry them from the field to the
area near the temple. She did not inform anyone at the time
because she was scared. Only one person came near her while
she was washing clothes and threatened her; he stood near
her.
The injury caused by a stick was inflicted by someone
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else. The person who was sitting near me did not injure my
father or Kantu Bhai. I cannot say how many persons inflicted
injuries on my father. The person who slapped me on the
cheek and the person who hit me with a stick were two
different individuals. One of the two persons who were near
me ran toward my father and Kantu Bhai and inflicted injuries
on them. At that time, both were resting.It is not true that the
accused had encircled my father and Kantu Bhai; no such fact
has been mentioned in my complaint. I do not know whether
the police have recorded incorrect facts in the complaint.
While my father was resting, he was not attacked.It is true
that I did not mention in my complaint that my father was
attacked while he was taking rest. I cannot name the two or
three persons who accompanied Paresh and the others and
inflicted injuries on my father. Kantu Bhai and her father were
resting together at that time.
That they were assaulting my father and Kantubhai at the
same time, and the person who injured Kantubhai also injured
my father. It is not true that anyone came to the place of
incident upon hearing the shouting. My father sustained
fractures in his leg and hand. The accused persons used full
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force with the weapons to injure my father's hands and legs,
due to which he suffered fractures and also sustained scars on
other parts of his body. They inflicted more injuries on
Kantubhai than on my father. The assault with sticks lasted
for nearly seven minutes. My father was shouting during the
incident.It is true that I did not mention in my complaint that
Paresh had threatened me. I also did not state in the
complaint that Nilesh inflicted an injury with a stick. I cannot
give any reason why four individuals from my nearby
neighborhood would injure my father and Kantubhai. It is true
that I did not state in the complaint that Nileshbhai inflicted
an injury on my waist.Paresh, Raju Suman, Shankar, and
Magan reside in my neighborhood. There was no previous
enmity before the incident. They had no apparent reason to
attack us. I did not mention in my complaint that two days
prior to the incident, my father, Kantubhai, and others had
beaten father and mother of Rajubhai and other persons, and
that due to holding a grudge, Raju, Paresh, and their friends
committed the present crime. This fact was not stated by me
but appears to have been wrongly attributed to me.
7.3 On analysis of the entire deposition of the eyewitness,
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read with the deposition of PW-11 at Exh. 59, namely Hilal
Ratan Vagh, in the cross-examination of the Investigating
Officer, it has been stated that it is true that certain facts
mentioned by the complainant and Devabhai in the
panchnama of the place of offence were not mentioned by
Bhaviniben in her complaint. However, it is important to note
that not every factual detail is expected to be included in the
complaint, and the specific variance between the panchnama
and the complaint has not been clearly brought on record. It is
a settled principle of law that the First Information Report
(FIR) is not an encyclopedia. The omission of specific details
in the FIR such as the allegation that Pareshbhai threatened
the complainant or that Nitesh caused injury does not
constitute material omissions that would affect the
prosecution's case. We find no significant variance between
the FIR and the statements made before the Court that would
discredit the witness's deposition. Minor discrepancies
between the FIR and court testimony are insufficient to
conclude that the witness has been materially contradicted. It
is also a settled principle that an ordinary witness cannot
always accurately recall the sequence of events, particularly
those that occurred in a short span of time. The power of
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observation varies from person to person. Thus, what has
been brought on record are only minor discrepancies of a
trivial nature that do not affect the core of the prosecution
case. These discrepancies ought to be ignored. Therefore, it
cannot be said that the deposition of Bhaviniben is not
credible or that her evidence is untrustworthy. Minor
discrepancies -- such as the omission in the FIR of the fact
that Kantubhai and Devabhai were resting at a distance of 20-
25 metres, or that Bhaviniben had gone to the place of
incident by bicycle, or her failure to mention the injury before
the doctor at Vaghaldhara -- do not affect the credibility of
the testimony regarding how the incident occurred. Even
otherwise as per settled principles of law FIR is not
enclyopeida whereas the deposition before the court by a
witness is substantial evidence. In the entire testimony of the
complainant, the role attributed to Paresh Suman, Raju
Suman and Nitesh Nanubhai Patel has been clearly
established and has remained unshaken.
8. Analysis of deposition of Pratik Maganbhai Patel
8.1 The incident took place on 31.05.2007 on the outskirts of
the village Olgam, at the farm of Devabhai. At that time, I was
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at my residence along with my mother Lilaben, Magan, and
Jinal. Around 2:00 to 2:30 in the afternoon, Paresh, Rajubhai,
and Jignesh came to my residence. I was taking my meal when
they arrived. They got down from their motorcycles and stated
that they had "finished two persons" and now it was my turn.
They asked where is the aunt of Kantubhai. Rajubhai forcibly
took me out of the residence while beating me. Suddenly, a
phone call came, and Rajubhai left. I received an injury on my
right leg. We then went to the place where my uncle
Kantubhai and Devabhai were lying, near Sikotar Mata
Temple. Injured persons gathered there, made a phone call,
and arranged a tempo which took them to Kasturba Hospital.I
accompanied them to Kasturba Hospital at Vaghaldhara. Dr.
Ashokbhai treated Kantubhai and Devabhai. We reached the
hospital between 5:00 and 5:30 p.m. On examination,
Kantubhai was declared dead. Devabhai was given treatment.
The person who injured me is not present in the Court today.
However, the persons who injured me, namely Jignesh and
Paresh, are present in the Court. There was some quarrel
between Rajesh and Paresh, and because of this enmity, the
present incident occurred. I was treated at Kasturba Hospital,
where I received injections and an X-ray of my leg was taken.
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I was also injured with wooden logs.
8.2 Cross-Examination of Pratik (PW-3):The witness
admitted that no complaint was lodged by him immediately
after the incident which took place on 31.05.2007 at Village
Olgam in Sarpanch Faliyu. He stated that no police personnel
met him on the day of the incident. The police took his
statement regarding the incident only after two days, at his
residence in Olgam Village, where he signed the complaint.
However, he has not received a copy of the complaint. He
admits that in statement before police he has not stated the
name of Jignesh among the persons who were beating him. He
denied having taken any treatment from Dr. Ashok at
Vaghaldhara, though Dr. Ashok treated Kantubhai and
Devabhai in his presence. The witness stated that he did not
know the number of the tempo used to transport the injured.
The incident lasted approximately 5 to 7 minutes. There were
several houses near his residence--four to five in front and
one behind. He confirmed being injured by multiple accused
persons, including Rajubhai, during the assault. Rajubhai
forcibly took him out of the house. When asked if more than
two persons inflicted injuries on him, he denied that
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statement was untrue.The witness admitted that he did not
state before the police that Rajubhai, Paresh, and other
persons came together and beat him. He confirmed that the
police had not read over his statement to him but that the
recorded information was correct. His mother, Lilaben, was
also beaten and sustained visible injuries on her thighs.He
received six to seven blows, mostly on his right thigh, which
were given with full force and could be felt. There were five to
six blows specifically on his right thigh; no other injuries were
reported on his body. He noticed two to three dull scars but
did not show them to the doctor as he was distressed due to
the death of his uncle. The doctor did not examine his thigh
injuries.He denied receiving any injury on his left leg, stating
that the injury on his right thigh was not serious, which is why
he did not inform the police or magistrate nor visit the
hospital. He described the injuries as simple, causing swelling
but no serious harm, caused possibly due to pressure.He did
not inform the doctor about limping while walking. Upon
reaching the field of Devabhai and Kantubhai, they were not
present, and he had informed the police accordingly.He
admitted that he had not stated in his police statement that
when he, his mother, sister Jankhna, and others reached the
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field, they saw his uncle Kantubhai lying on the field and, at
some distance, Devabhai also lying in the field, bleeding and
requesting help, and that they had been injured by Rajubhai
and Paresh.
The police had no reason to record any false statement. I
did not see my uncle bleeding. My uncle was wearing pants,
but the rest of his body was naked. Both my uncle and
Devabhai were lying near the temple of Sikotar Maa. If this
fact is not mentioned in my police statement, I have no
explanation for that.I do not know where Dr. Ashok was
treating my uncle. It is true that in my statement I mentioned
that at that time, a tempo came and both were taken to
Kasturba Hospital at Valsad. I did not have any opportunity to
meet Devabhai while I remained in the hospital. Devabhai was
unconscious in the tempo, but when he was given an injection,
he was conscious. I have not spoken with Dr. Ashok at
Vaghaldhara. I did not discuss the incident with
Bhaviniben.There was a dispute between my uncle Rajubhai
and Paresh because the wife of Rajeshbhai was suspected of
having an affair with Paresh. This suspicion was carried by
Paresh's wife. Due to this relationship, who would beat whom
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is unknown to me. Paresh and Rajubhai had previously had a
scuffle, but I do not know when it took place. It is true that if
someone misbehaves with my uncle, the family would take it
as a matter of reputation.
8.3 Upon reading the deposition of the aforesaid witness,
the fact of Rajubhai beating Pratikbhai is established. It is also
confirmed that Pratikbhai sustained an injury on the right
thigh, which is corroborated both by his deposition and the
testimony of Dr. Ajit (PW6, Exhibit 44). Further, the injuries
he sustained are supported by medical documents, including
the original injury certificate (Exhibit 46), its carbon copy
(Exhibit 47), and the treatment papers (Exhibit 48). A perusal
of the cross-examination of the Investigating Officer (PW11) at
Exhibit 59 reveals that the defence acknowledged having
collected and reviewed the injury certificate of Pratikbhai. The
certificate does not mention injuries caused by a sharp
weapon. However, the witness had stated before the doctor
that he had received an injury with a sharp weapon. Despite
this, the investigating officer did not investigate this
discrepancy. Regarding the role of Nitesh Nanu, the cross-
examination of PW11 further reveals that during the test
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identification parade, Nitesh Nanu was identified. This
corroborates the fact that Niteshbhai inflicted injury upon
Bhaviniben, despite her initial difficulty in identifying the
accused before the Court. She clarified that while she initially
identified Bhupesh (accused No. 7) as Nitesh, the person she
referred to as Nitesh Nanu subsequently confirmed his
identity as accused No. 3. Thus, the identification of Nitesh
Patel by the injured witness Bhaviniben during the test
identification parade is established. The witness also stated
that she had named four persons in her complaint, and the
names of the remaining co-accused were derived from these
four accused persons. While there is no direct evidence
against the other co-accused apart from statements of the
four named accused in the police statement, it is important to
note that once the individual who inflicted injury upon
Bhaviniben is identified, the absence of other names in the
FIR does not materially affect the prosecution's case.
9. Learned advocate for the accused Paresh and Rajesh
have argued that despite Pratik having taken treatment, has
not give history before the doctor. The primary function of the
doctor is to treat the injured witness brought before him and
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inform the police; he is not expected to record details such as
the identity of the assailant. At this juncture it would be
appropriate to refer to the judgment in the case of Pattipati
Venkaiah Vs. State of Andhra Pradesh reported in AIR 1985
SC 1715 wherein the Supreme Court has held that:
"...... A doctor is not all concerned as to
who committed the offence or whether
the person brought to him is a criminal or
an ordinary person and his primary effort
is to save the life of the person brought to
him and to inform the police in medico
legal cases. Thus, not blaming the
assailants before the doctor would not
mean that the present accused had not
assaulted the deceased as well as the
injured ..... It is well settled that Doctors
before whom dead bodies are produced
or injured persons are brought, either
themselves take the dying declaration or
hold the post mortem immediately and if
they start examining the informants, they
are likely to become witnesses of the
occurrence which is not permissible."
It is also argued that Pratik did not receive any primary
treatment at Vaghaldhara, though Kantubhai and Deva Bhai
had been given primary treatment. This argument does not
hold good insofar as the absence of primary treatment at
Vaghaldhara neither destroys the fact of injury to Pratik Patel
nor does it vitiate the deposition, especially when the injury to
Pratik is of such a nature that would not require immediate
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medical attention, coupled with the fact that one of the
eyewitnesses was injured and one succumbed to the injuries
and the requirement of the time was to treat these two injured
persons. As for not informing the police about the injury
sustained by her mother, this would also not help the
appellants; more importantly, it does not shake the veracity of
these witnesses. Thus, minor discrepancies not going to the
root of the case cannot be considered grounds to acquit the
accused persons.
It is also settled principle of law that prosecution is not
required to meet any and every hypotesis. The Hon'ble
Supreme Court in the case of State of Punjab Vs. Karnail Sing
reported in (2003) 11 SCC 271 in Para 12, has held that the
prosecution is not required to meet any and every hypothesis
put forward by the accused. It must grow out of the evidence
in the case. If a case is proved perfectly, it can be argued that
it is artificial, and where the case has some flaws inevitable
because human beings are prone to err, it is argued that it is a
doubtful story. Proof beyond reasonable doubt is a guideline,
not a fetish. A judge does not preside over a criminal trial
merely to see that that no innocent man is punished. A judge
also presides to see that a guilty man does not escape. Both
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are public duties.
In criminal cases, the credibility of witnesses,
particularly those who are close relatives of the victim, is
often scrutinized. However, being a relative does not
automatically render a witness "interested" or biased. The
term "interested" refers to witnesses who have a personal
stake in the outcome, such as a desire for revenge or to falsely
implicate the accused due to enmity or personal gain. A
"related" witness, on the other hand, is someone who may be
naturally present at the scene of the crime, and their
testimony should not be dismissed simply because of their
relationship to the victim. Courts must assess the reliability,
consistency, and coherence of their statements rather than
labelling them as untrustworthy. The distinction between
"interested" and "related" witnesses has been clarified in
Dalip Singh v. State of reported in 1954 SCR 145 where
Supreme Court emphasized that a close relative is usually the
last person to falsely implicate an innocent person. Therefore,
in evaluating the evidence of a related witness, the court
should focus on the consistency and credibility of their
testimony. This approach ensures that the evidence is not
discarded merely due to familial ties, but is instead assessed
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based on its inherent reliability and consistency with other
evidence in the case. Though the eyewitnesses who have been
examined in the present case are closely related to the
deceased and injured their testimonies are consistent with
respect to the accused persons being the assailants who
inflicted wounds on the deceased and injured under such
circumstances, merely because the eyewitnesses are family
members, their testimonies cannot be discarded solely on that
ground.
10. Analysis of Deposition of Devabhai Patel
10.1 The next injured eyewitness examined is PW10,
Devabhai Patel (Exhibit 55). In his examination-in-chief, he
stated that on 31st May 2007, at about 6:30 a.m., he, along
with his friend Kantubhai, went to the field to water the rice
crops. Around noon, after having lunch brought by Sushma,
they rested beneath a shed, while Bhaviniben was washing
clothes near the bore well. At about 2:00 to 2:30 p.m., two to
three motorcycles arrived with Pareshbhai, Rajubhai,
Jigneshbhai, Shankarbhai, and approximately 8 to 10 others.
They proceeded to the place where the witnesses were
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resting. When Kantubhai awoke, the witnesses fled into the
field, while Pareshbhai and the others pursued them, carrying
wooden logs. Devabhai ran from his own field toward
Kantubhai's nearby field. One or two assailants chased
Devabhai, while several pursued Kantubhai. Devabhai stated
that he could not identify the persons who inflicted the
injuries. Kantubhai was inflicted injuries with wooden logs by
Pareshbhai, Rajeshbhai, Jigneshbhai, and two others, making
four persons who assaulted him. The witness has further
deposed that, from the place where he fell down, at a distance
of about 200 to 300 feet, Kantubhai was present. After beating
Kantubhai, Rajeshbhai, along with 5 to 6 other persons, came
near the witness and assaulted him with sticks. They inflicted
injuries on both his legs, his waist, the rest of his left hand,
the middle of his forearm, and on the right knee. He also
received a fracture on the small finger of his left hand. The
witness has further stated that Rajeshbhai personally inflicted
injuries upon him, and when Rajeshbhai attempted to assault
him on the head, he raised his hand in defence, due to which
he received the said injury. At that time, Rajeshbhai shouted
to Pareshbhai, saying that "one is yet to be finished, so come
here quickly." Before they came I became unconscious.
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Thereafter, the witness has stated that he is unaware of what
happened further, as he regained consciousness at Kasturba
Hospital at about 6 o'clock. At the first instance, the police at
Kasturba Hospital had asked, and at about 12 o'clock, the
Mamlatdar had also asked into the matter. The witness
further stated that he had informed the Mamlatdar about the
incident. He has deposed that the wooden logs used in the
assault were broken due to the beating; they were wooden
logs of Babool Tree held in the hands of the assailants, though
he does not know where they had procured them from. The
persons identified by the witness were Rajesh and Shankar,
who were not present before the Court, whereas Paresh and
Jignesh were present and duly identified. He also identified
Nitesh, accused No. 3; however, upon asking his name before
the Court, he disclosed his name to be Jaynesh, accused No. 9.
10.2 In cross-examination, this witness admitted that he had
not regained consciousness on 31.05.2007, and that the police
had not visited or recorded his statement on 31.05.2007. The
witness has further stated that he does not know who had
taken him from the place of incident to the hospital. His police
statement was recorded on 01.06.2007 at about 8 o'clock. At
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that time, there was no one present with him to take care of
him. When he regained consciousness in the hospital, he had
conversed with Vinodbhai, Amritbhai, Ishwarbhai,
Kamleshbhai, and Mukeshbhai, who informed him about the
demise of Kantubhai. The witness has admitted that he had
informed the police regarding the number of motorcycles
involved; however, he does not know who was riding those
motorcycles. He has also stated that he could not identify the
persons who had inflicted injuries at the first location. He has
denied the suggestion that the assailants who inflicted injuries
at the first instance were unknown persons. The witness has
further deposed that he and Kantubhai ran in the same
direction. He has denied the suggestion that he does not know
who ran behind Kantubhai. He has stated that he does not
remember where, in his police statement, he had mentioned
the breaking of wooden logs during the beating. He has
admitted that he had not stated before the police that the
accused had come armed with wooden logs. He has further
stated that he does not know whether the doctor had
examined him at about 4:40 hours. He has denied the
suggestion that he had not informed the doctor, at the time of
examination, regarding his condition of consciousness,
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unconsciousness, and vomiting. He has also denied that he
had given any statement in the hospital to the effect that some
people armed with sticks and sharp weapons had assaulted
and injured him on 31.05.2007 at about 2 o'clock near Olgam
Dungari. It is true that Olgam Dungri and my field are two
separate places. I had become unconscious at the place of
incident. I do not know who had taken me and Kantubhai in
the Tempo. After receiving injuries, I have not had occasion to
talk with Suman or Bhavini after the incident. At the first
instance, I did not remember after the incident to whom I had
spoken. I do not know whether Doctor Ashok treated me or
not. I do not know that the Executive Magistrate had visited
the hospital on 31.05.2007; the Executive Magistrate did not
come to the hospital between 12 and 12:30 on 31.05.2007
before the Mamlatdar. I had given the statement that
Kantubhai and I fell down together separately while running.
The Mamlatdar had read over the statement after recording. I
had not informed the Mamlatdar about the place where we
were sleeping and resting. Accused persons surrounded us. I
have not stated before the Executive Magistrate that on the
date of the incident, he and Kantubhai were sleeping in the
field at about 2 to 2:30, and at that time, Rajesh, Paresh,
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Shankar, Jignesh, and others came on motorcycles with
wooden logs, and Paresh and Rajesh started inflicting injuries
on me and Kantubhai, in which I sustained a fracture on my
left hand and also injuries on my left leg. Other persons who
came along with them surrounded Kantubhai, and Rajesh,
Paresh, Shankar, and Jignesh, who were holding sticks in their
hands, started inflicting injuries on Kantubhai, due to which
he expired. These persons also inflicted injuries on my
daughter. I know Paresh and Jignesh by name. Even the
accused persons have stated before the Court the names of
two persons, and the rest of the persons are not present
today. I had not pointed out discrepancies in their events to
the Appellant, and the police have not inquired of me on this
aspect.
It is true that while the test identification parade was
carried out by the Executive Magistrate, instructions were
given to the effect that at about 2 to 2:30 on 31st May 2007,
when water was released in my field along with Kantubhai,
some persons came and started a scuffle, also started
vandalizing, and snatched away a gold chain; those persons
identified were present here today. The statements before the
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police and the Executive Magistrate are both true that there is
a deep pit near my field, about 2 to 5 feet deep. I do not know
whether it was filled with water when the incident took place.
It did not happen so. On the date of the incident, Bhavini had
come to wash clothes in that pit, but she was washing clothes
where the water was flowing out of the bore. She came at
around 1 to 1:30 in the afternoon. All the accused persons
were involved in inflicting injury on him. The injuries were
inflicted by Paresh Bhai, Rajesh Bhai, and four other persons.
These persons inflicted injuries with full force; however, on
his own volition, he stated that Rajesh inflicted more injuries
on him which were on my hand, leg, and back. Except for this,
no other injuries were inflicted. Both I and Kantubhai were
injured at the same time by the accused persons. It did not
happen that these persons inflicted injuries to me and the rest
were inflicting injuries to Kantubhai. It is true that I have
stated in my police statement that after beating Kantubhai,
Rajesh came near me and 5-6 other persons came and
inflicted injuries. I cannot explain why the police wrote this
aspect in the police statement. I do not remember I have
stated in the police statement that Rajesh Bhai hit me and
while trying to hit my head, I raised my hand due to which I
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sustained fracture in hand. It is true that in the police
statement I did not state that I became unconscious, therefore
they left me and ran away. I have no explanation if the police
wrote this aspect in the police statement.
At the time of the incident, I, Kantubhai, my daughter
Bhavini, my second daughter Sushma, and Mayur were
present. It is not true that at the time of the incident, Bhavini
was not present in the field. Both my daughters came with
lunch in the afternoon at about 12 o'clock. Bhavini was lying
at the place of the incident. I have not seen any person
inflicting injuries running away. I have no enmity with the
persons who had inflicted injuries.
10.3 Upon reading the aforesaid deposition of Deva Bhai and
considering the cross-examination of the investigating officer
Mr. Hilal Wagh, it is stated in the cross-examination that he
had seen the injury certificate of Deva Bhai, in which the
history given before the doctor was recorded, but he had not
investigated the contradictory statements made before the
doctor and in the police statement. It transpires that the
Defence Counsel is referring to sharp weapons having been
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used in inflicting injury as stated in the history given before
the doctor; however, this has not been stated by these
witnesses in their full statements. Further, a similar question
was put regarding the injury certificate of Pratik. Further, the
facts stated in the Panchanama of the Place of Offence as
informed by the complainant and Deva Bhai are not stated in
the complaint of Bhavini Ban. However, the details not stated
in the FIR but stated by complainant Bhavini Ban and Deva
Bhai while preparing the Panchanama of the Place of Offence
have not been brought on record. He also admitted that
during the investigation it was found that the injury, as well as
the injured, had taken treatment at Vaghaldhara at Dr.
Ashok's clinic. However, the investigating officer did not
obtain any injury certificate or case papers during the
investigation. He has not collected any evidence reflecting the
victim status of Leela Bhai or the fact of Leela Ban having
taken treatment before any doctor. In cross-examination, the
investigating officer admitted that Deva Bhai did not state in
his police statement that "They had run away while inflicting
injuries with wooden logs."
It has not been stated in the police statement that after
inflicting injuries on Kantubhai, Raju Suman came near me
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and 5-6 persons inflicted injuries. Rajesh Bhai hit me, and
while trying to hit my head, I raised my hand, due to which I
sustained a fracture in my hand. At that time, Rajesh Bhai
called out loudly to someone, stating that one was yet to be
finished and to come here, and before that, I became
unconscious. He also stated that Deva Bhai had admitted in
the police statement that since I had become unconscious,
they left me there. Considering the discrepancies between the
statements made before the police and before the court, it is
necessary to note that there are minor contradictions and
omissions in the deposition of Deva Bhai. However, such
contradictions or omissions are not fatal to the prosecution's
case because the fact of Paresh Suman and Rajesh Suman
inflicting injuries on the deceased Kantubhai as well as the
injured witness namely Devabhai is consistent.
11. As far as the use of sharp weapons as stated in the
history is exaggerated to prevent the accused from escaping
criminal liability. However, such exaggerations are not so vital
that they destroy the very core of the prosecution case. The
fact of injuries being inflicted by a group of people, more
particularly in the present case where the accused are nine in
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number. It cannot be expected that the witness will describe
accurately which accused person inflicted the injury as well as
the injured witnesses with what weapon. In this regard, it
would be profitable to refer to the judgment of the Honorable
Supreme Court in the case of Shardul and another vs. State of
Punjab, reported in AIR 1994 SC 672, wherein it is held that
when there are a number of injuries on the deceased, each
witness cannot be expected to note details in seriatim. In view
of this principle, when the total number of accused are nine, it
cannot be expected from the witness to state exactly what
type of injury was inflicted on which part of the body of the
deceased by using what type of weapon with precision.
12. Different witnesses have different capacity to grasp the
scene of offence and to respond in court when cross-examined
by the defense counsel at a length in a heated atmosphere. In
the present case, there are minor variations and omissions;
however, these do not demolish the prosecution case and it
cannot be said that the witness is unreliable. It is argued that
injured Deva Bhai denied receiving treatment at about 14:40
hours on 31st May 2007. However, he was indeed treated on
31st May 2007 at the stated time. It should be noted that this
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fact does not negate the fact that the accused injured the
witness. One of the argument is that the statement before the
Executive Magistrate does not mention material aspects of the
case. In this regard, what was stated before the Magistrate
must be brought on record, especially if it varies from the
deposition before the court. When such an exercise is not
undertaken, the argument under such circumstances cannot
be sustained. Not mentioning the name during the TI parade
would also have no adverse consequences. Since at present
we are concerned with Paresh, Rajesh, and Nitesh, as far as
Paresh and Rajesh are concerned, the deposition of Deva Bhai
proves their complicity. As far as role of Nitesh Nanu is
concern he has been identified during TI parade and also
before Court by Bhaviniben-complainant.
13. As far as the argument that the First Information Report
was not recorded at the scene of the incident or at the
hospital, which is admitted by PW-12, namely Vishnu, a PSI
serving at Dungaree Police Station, it is required to be noted
that this witness admitted in his cross-examination that he did
not state while recording the FIR that it was taken at
Kasturba Hospital, but it is mentioned that it was taken "at
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the place." However, on his own volition, he clarified that the
word "place" refers to Kasturba Hospital. This fact of
recording the FIR at Kasturba Hospital is corroborated by the
deposition of PW-1 Bhavini Bai at Exhibit-21. As for not
disclosing the fact that all the accused went with sticks near
the hut where Kantubhai and Deva Bhai were resting and
cordoned them, it is important to note that an FIR is not
supposed to be an encyclopedia where every detail of the
crime must be provided by the first informant. In this regards
it would be profitable to refer to the case of Superintendent
Of Police, C.B.I. V/s. Tapan Kr. Singh reported in reported in
AIR 2003 Supreme Court 4140 Hon'ble Supreme Court held
thus:
"It is well settled that a First
Information Report is not an
encyclopedia, which must disclose all
facts and details relating to the
offence reported. An informant may
lodge a report about the commission
of an offence though he may not know
the name of the victim or his assailant.
He may not even know how the
occurrence took place. A first
informant need not necessarily be an
eye witness so as to be able to disclose
in great details all aspects of the
offence committed. What is of
significance is that the information
given must disclose the commission of
a cognizable offence and the
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information so lodged must provide a
basis for the police officer to suspect
the commission of a cognizable
offence. At this stage it is enough if
the police officer on the basis of the
information given suspects the
commission of a cognizable offence,
and not that he must be convinced or
satisfied that a cognizable offence has
been committed. If he has reasons to
suspect, on the basis of information
received, that a cognizable offence
may have been committed, he is
bound to record the information and
conduct an investigation. At this stage
it is also not necessary for him to
satisfy himself about the truthfulness
of the information. It is only after a
complete investigation that he may be
able to report on the truthfulness or
otherwise of the information.
Similarly, even if the information does
not furnish all the details, he must find
out those details in the course of
investigation and collect all the
necessary evidence. The information
given disclosing the commission of a
cognizable offence only sets in motion
the investigative machinery, with a
view to collect all necessary evidence,
and thereafter to take action in
accordance with law. The true test is
whether the information furnished
provides a reason to suspect the
commission of an offence, which the
concerned police officer is empowered
under Section 156 of the Code to
investigate. If it does, he has no option
but to record the information and
proceed to investigate the case either
himself or depute any other competent
officer to conduct the investigation.
The question as to whether the report
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is true, whether it discloses full details
regarding the manner of occurrence,
whether the accused is named, and
whether there is sufficient evidence to
support the allegations are all matters
which are alien to the consideration of
the question whether the report
discloses the commission of a
cognizable offence. Even if the
information does not give full details
regarding these matters, the
investigating officer is not absolved of
his duty to investigate the case and
discover the true facts, if he can."
It is a settled principle of law that once a cognizable
offence is disclosed in the FIR, the criminal machinery is set
into motion. What has been stated in the deposition by the
witnesses regarding the manner in which the entire incident
took place would be relevant and substantive evidence. Thus,
this argument does not stand good.
14. As far as Bhavini Devabai PW1 (the complainant), having
knowledge of the motive behind the offence, such omission in
her deposition before the court would be understandable,
since the motive for committing the crime would also make
the complainant's side vulnerable, as just two days before, the
complainant's party had assaulted the present accused
persons, and keeping grudge of the said fact, the present
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crime was committed. However, the fact of such motive,
though denied by Bhavini, does not destroy the prosecution's
case when such motive is proved in cross-examination of the
PW 12 Vishnukumar Bahubhai Patel at Exh. 64 who had
registered the FIR at Kasturba Hospital. Even otherwise, it is
a settled principle of law that proving motive is important in a
case based on circumstantial evidence; however, when there
is direct evidence, namely eyewitnesses, the absence of proof
of motive is not fatal to the prosecution's case. In the case of
Shivaji Chintappa Patil v. State of Maharashtra reported in
AIR 2021 Supreme Court 1249 the Apex Court observed as
under:-
"27. Though in a case of direct evidence,
motive would not be relevant, in a case of
circumstantial evidence, motive plays an
important link to complete the chain of
circumstances......."
Thus it is also settled law that the motive loses all its
importance in a case where direct evidence of eyewitnesses is
available, because even if there may be a very strong motive
for the accused persons to commit a particular crime, they
cannot be convicted if the evidence of eye- witnesses is not
convincing. In the same way, even if there may not be an
apparent motive but if the evidence of the eyewitnesses is
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clear and reliable, the absence or inadequacy of motive
cannot stand in the way of conviction. Thus, motive in the
present case is proved and even if the said motive is not taken
in to consideration the prosecution has proved its case beyond
reasonable doubt.
15. As far as the argument that Pratik Bhai does not mention
anything about the first part of the incident, it is required to
be noted that he was not present at the residence where the
presence of the appellants, namely Paresh and Rajesh, was
proved, and the assault by Rajesh was also proved to have
taken place at the residence of Pratik Maganbhai Patel. It is
also important to note that Pratik was present only during the
second part of the incident and not the first, and therefore,
not mentioning the details of the first part is neither fatal nor
can it be expected from a witness who did not see the first
part of the crime being committed. It is also argued that
Bhavani Bhan Patel stated that one accused who threatened
them stood near her throughout the incident; however, she
cannot say how many assailants were there. Be that as it may,
the fact of naming assailants by name and identifying one of
the accused in the identification parade, though there were
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some minor discrepancies, but the accused could be
identified, cannot be said to be fatal to the prosecution's case,
especially regarding the role attributed to Nitesh Bhai. As far
as the discovery or recovery of weapons is concerned, since
they were recovered from an open field accessible to all, such
recovery loses its significance, particularly when the
Panchnama has not been proved in accordance with law.
However, this aspect, which is corroborative in nature, by
itself does not lose its efficacy of deposition of eyewitnesses,
and thus failure to prove the said Panchanama is not fatal to
the prosecution's case. With regard to the history given by
Deva Bhai before the doctor, stating that sharp weapons were
also used to perpetrate the crime, whereas no such fact was
stated before the police, this would make no difference, since
the witness may have exaggerated to some extent to ensure
that none of the assailants escape criminal liability.
16. Merely exaggeration of using sharp weapon, as stated in
history before the treating Doctor though have not been
utilized in committing the crime, looses its efficacy, more
particularly when the deposition itself does not state the using
of sharp weapon in inflicting injury to deceased as well as to
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Pratik, Devabhai and Complainant Bhaviniben. With regard to
the missing details in the Panchanama of scene of offense, qua
the details stated in the FIR is concerned, which details are
missing is not brought on record. As far as no gorge present
near scene of offense, non-recovery of Tiffin from the scene of
offense, no complaint having lodged as scene of offense.
No blood stains from the cloth of the deceased and therefore
not sending it before the FSL is concerned, it is required to be
noted that a person may name certain place by gorge and
other person may call the same place where water fell from
the well would not make the difference. Since there is nothing
on record to prove that complainant has not seen the incident
nor could it said that the injured Deva Bhai was not inflicted
injuries by the present appellants namely Paresh and Rajesh.
As far as non-recovery of injury certificate and recording the
statement of Dr. Ashok Bhai at Vaghaldhara is concerned, it
amount to lapse in the investigation.
17. As far as the lapses in the investigation as argued by Ld.
Advocate for accused is considered, it would be profitable to
refer the judgment of the Hon'ble Supreme Court in the case
of Ram Bihari Yadav vs State Of Bihar & Ors reported in AIR
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1998 SC 1850, wherein it is held that if primacy is given to
design or negligent investigation, or to omission or lapses by
perfunctory investigation or omission, the faith and
confidence of the people would be shaken not only in the law
enforcement agency but also in the administration of justice.
Thus, applying the aforesaid principles, when there is
defective investigation, the Court has to be circumspect in
evaluating the evidence which in the present case is found to
be cogent and reliable but it would not be right in acquitting
the accused persons solely on the ground of defect. Thus, on
account of faulty investigation, the benefit will not enure to
the accused person on that ground alone, more particularly
when, thee witness in the present case have specifically
named Paresh Suman and Rajesh Suman and Nitesh nanu and
role attributed by them and having found ring of truth coupled
with the fact that their deposition have remained unshaken
even in the cross examination and when deposition of these
three witness taken together, there version can been seen
corroborative. Under the circumstances, minor lapses on the
part of the Investigating Officer is not fatal to the prosecution.
18. As far as non recovery of cycle and tiffin from the scene
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of offence as already stated herein above, the prosecution is
not required to meet any and every hypothesis put fowarded
by the Accused. The concept of proof beyond reasonable
doubt.
In the case of Ashok Debbarma v. State of Tripura,
(2014) 4 SCC 747 Hon'ble Supreme Court in paragraph 30
and 31 has stated thus (Only relevant observations are
reproduced):
"30. An accused has a profound right
not to be convicted of an offence
which is not established by the
evidential standard of proof "beyond
reasonable doubt". This Court in
Krishnan v. State ((2003) 7 SCC 56:
2003 SCC (Cri) 1577], held that the
"doubts would be called reasonable if
they are free from a zest for abstract
speculation. Law cannot afford any
favourite other than truth. To
constitute reasonable doubt, it must
be free from an overemotional
response. Doubts must be actual and
substantial doubts as to the guilt of
the accused persons arising from the
evidence, or from the lack of it, as
opposed to mere vague
apprehensions. A reasonable doubt is
not an imaginary, trivial or a merely
possible doubt, but a fair doubt based
upon reason and common sense. It
must grow out of the evidence in the
case". (SCC p. 63, para 23)
In Ramakant Rai v. Madan Rai [(2003)
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12 SCC 395: 2004 SCC (Cri) Supp
445), the above principle has been
reiterated.
31. In Commonwealth v. Webster
[(1850) 5 Cush 295: 52 Am Dec 711
(Mass Sup Ct)] at p. 320,
Massachusetts Court, as early as in
1850, has explained the expression
"reasonable doubt" as follows:
"Reasonable doubt... is not a mere
possible doubt; because everything
relating to human affairs, and
depending on moral evidence, is open
to some possible or imaginary doubt.
It is that state of the case which, after
the entire comparison and
consideration of all the evidence,
leaves the minds of the jurors in that
condition that they cannot say they
feel an abiding conviction.""
Thus, on re-appreciation of deposition of all the three
relevant witnesses it cannot be said that their evidence
creates actual and substantial doubts which ensures acquittal
based on benefit of doubt. Thus, if the deposition of eye
witness if tested on the anvil of the afore stated principles the
prosecution has proved its case beyond reasonable doubt.
19. Ld. Advocate for Accused Paresh and Rajesh have also
submitted that Bhaviniben in her deposition has stated that
the deceased and her father had lunch at around 12 to 12.30
PM and were taking rest and assult was made by the
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assailants at 2.30 PM, however, the medical evidence not
supporting the said facts since, the Doctor who had perform
the Post Mortem specifically states that no food particles were
found from the intestine. In this regard it would be profitable
to refer the judgment in the case of Ram Bali Vs. State of
Uttar Pradesh reported in 2004 Cri LJ 2490, Hon'ble Supreme
Court in paragraph No. 10 has held as under:-
"10. Even otherwise, the plea that the
medical evidence is contrary to the
ocular evidence has also no substance.
It is merely based on the purported
opinion expressed by an author.
Hypothetical answers given to
hypothetical questions, and mere
hypothetical and abstract opinions by
textbook writers, on assumed facts,
cannot dilute evidentiary value of
ocular evidence if it is credible and
cogent. The time taken normally for
digesting of food would also depend
upon the quality and quantity of food
as well, besides others. It was
required to be factually proved as to
the quantum of food that was taken,
atmospheric conditions and such other
relevant factors to throw doubt about
the correctness of time of occurrence
as stated by the witnesses. Only when
the ocular evidence is wholly
inconsistent with the medical evidence
the Court has to consider the effect
thereof. This Court in Pattipati
Venkaiah v. State of Andhra Pradesh
(AIR 1985 Sc 1715) observed that
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medical science is not yet so perfect
as to determine the exact time of
death nor can the same be determined
in a computerised or mathematical
fashion so as to be accurate to the last
second. The state of the contents of
the stomach found at the time of
medical examination is not a safe
guide for determining the time of
occurrence because that would be a
matter of speculation, in the absence
of reliable evidence on the question as
to when exactly the deceased had his
last meal and what that meal
consisted of. In Nihal Singh and Ors.
v. The State of Punjab (AIR 1965 SC
26), it was indicated that the time
required for digestion may depend
upon the nature of the food. The time
also varies according to the digestive
capacity. The process of digestion is
not uniform and varies from individual
to individual and the health of a
person at a particular time and so
many other varying factors."
In view of the aforesaid principles, only when the ocular
evidence is wholly inconsistent with the medical evidence, this
Court has to consider the effect thereof. In the present case, it
is an admitted position that no food was found in the intestine
of the deceased, it cannot be said that the incidence has not
taken place or the time of the alleged incidence is not correct
since, the process of digestion is not uniform and it varies
from individual to individual, depending on the health of a
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person at a particular time and many other varying factors
and has nothing to do with the food either found or not found
in the intestine of the deceased. Even the defense has not
factually proved the quantum of food that was taken,
atmospheric conditions, and other relevant factors to throw
doubt about the correctness of the time of occurrence as
stated by the witnesses. Thus, this argument also does not
hold.
20. Lastly, it is argued that from the entire evidence on
record, if the case is believed to be proved beyond reasonable
doubt than also the present case falls under Section 304 Part
II of the IPC and not under Section 302 of the IPC. It would be
profitable to refer to the case of Anbazhagan Versus State
Represented by the Inspector of Police reported in 2023 SCC
OnLine SC 857 wherein paragraph 66 it is held that:
66. Few important principles of law
discernible from the aforesaid discussion
may be summed up thus:--
(1) When the court is confronted with the
question, what offence the accused could
be said to have committed, the true test is
to find out the intention or knowledge of
the accused in doing the act. If the
intention or knowledge was such as is
described in Clauses (1) to (4) of
Section 300 of the IPC, the act will be
murder even though only a single injury
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was caused. To illustrate:'A' is bound hand
and foot. 'B' comes and placing his revolver
against the head of 'A', shoots 'A' in his
head killing him instantaneously. Here,
there will be no difficulty in holding that
the intention of 'B' in shooting 'A' was to
kill him, though only single injury was
caused. The case would, therefore, be of
murder falling within Clause (1) of
Section 300 of the IPC. Taking another
instance, 'B' sneaks into the bed room of
his enemy 'A' while the latter is asleep on
his bed. Taking aim at the left chest of 'A',
'B' forcibly plunges a sword in the left
chest of 'A' and runs away. 'A' dies shortly
thereafter. The injury to 'A' was found to be
sufficient in ordinary course of nature to
cause death. There may be no difficulty in
holding that 'B' intentionally inflicted the
particular injury found to be caused and
that the said injury was objectively
sufficient in the ordinary course of nature
to cause death. This would bring the act of
'B' within Clause (3) of Section 300 of
the IPC and render him guilty of the
offence of murder although only single
injury was caused.
(2) Even when the intention or knowledge
of the accused may fall within Clauses (1)
to (4) of Section 300 of the IPC, the act of
the accused which would otherwise be
murder, will be taken out of the purview of
murder, if the accused's case attracts any
one of the five exceptions enumerated in
that section. In the event of the case falling
within any of those exceptions, the offence
would be culpable homicide not amounting
to murder, falling within Part 1 of
Section 304 of the IPC, if the case of the
accused is such as to fall within Clauses (1)
to (3) of Section 300 of the IPC. It would be
offence under Part II of Section 304 if the
case is such as to fall within Clause (4) of
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Section 300 of the IPC. Again, the intention
or knowledge of the accused may be such
that only 2nd or 3rd part of Section 299 of
the IPC, may be attracted but not any of
the clauses of Section 300 of the IPC. In
that situation also, the offence would be
culpable homicide not amounting to
murder under Section 304 of the IPC. It
would be an offence under Part I of that
section, if the case fall within 2nd part of
Section 299, while it would be an offence
under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an
accused person falls within the first two
clauses of cases of culpable homicide as
described in Section 299 of the IPC it is
punishable under the first part of Section
304. If, however, it falls within the third
clause, it is punishable under the second
part of Section 304. In effect, therefore, the
first part of this section would apply when
there is 'guilty intention,' whereas the
second part would apply when there is no
such intention, but there is 'guilty
knowledge'.
(4) Even if single injury is inflicted, if that
particular injury was intended, and
objectively that injury was sufficient in the
ordinary course of nature to cause death,
the requirements of Clause 3rdly to
Section 300 of the IPC, are fulfilled and the
offence would be murder.
(5) Section 304 of the IPC will apply to the
following classes of cases : (i) when the
case falls under one or the other of the
clauses of Section 300, but it is covered by
one of the exceptions to that Section, (ii)
when the injury caused is not of the higher
degree of likelihood which is covered by
the expression 'sufficient in the ordinary
course of nature to cause death' but is of a
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lower degree of likelihood which is
generally spoken of as an injury 'likely to
cause death' and the case does not fall
under Clause (2) of Section 300 of the IPC,
(iii) when the act is done with the
knowledge that death is likely to ensue but
without intention to cause death or an
injury likely to cause death.
To put it more succinctly, the difference
between the two parts of Section 304 of
the IPC is that under the first part, the
crime of murder is first established and the
accused is then given the benefit of one of
the exceptions to Section 300 of the IPC,
while under the second part, the crime of
murder is never established at all.
Therefore, for the purpose of holding an
accused guilty of the offence punishable
under the second part of Section 304 of
the IPC, the accused need not bring his
case within one of the exceptions to
Section 300 of the IPC.
(6) The word 'likely' means probably and it
is distinguished from more 'possibly'. When
chances of happening are even or greater
than its not happening, we may say that the
thing will 'probably happen'. In reaching
the conclusion, the court has to place itself
in the situation of the accused and then
judge whether the accused had the
knowledge that by the act he was likely to
cause death.
(7) The distinction between culpable
homicide (Section 299 of the IPC) and
murder (Section 300 of the IPC) has always
to be carefully borne in mind while dealing
with a charge under Section 302 of the IPC.
Under the category of unlawful homicides,
both, the cases of culpable homicide
amounting to murder and those not
amounting to murder would fall. Culpable
homicide is not murder when the case is
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brought within the five exceptions to
Section 300 of the IPC. But, even though
none of the said five exceptions are pleaded
or prima facie established on the evidence
on record, the prosecution must still be
required under the law to bring the case
under any of the four clauses of
Section 300 of the IPC to sustain the
charge of murder. If the prosecution fails to
discharge this onus in establishing any one
of the four clauses of Section 300 of
the IPC, namely, 1stly to 4thly, the charge
of murder would not be made out and the
case may be one of culpable homicide not
amounting to murder as described under
Section 299 of the IPC.
(8) The court must address itself to the
question of mens rea. If Clause thirdly of
Section 300 is to be applied, the assailant
must intend the particular injury inflicted
on the deceased. This ingredient could
rarely be proved by direct evidence.
Inevitably, it is a matter of inference to be
drawn from the proved circumstances of
the case. The court must necessarily have
regard to the nature of the weapon used,
part of the body injured, extent of the
injury, degree of force used in causing the
injury, the manner of attack, the
circumstances preceding and attendant on
the attack.
(9) Intention to kill is not the only intention
that makes a culpable homicide a murder.
The intention to cause injury or injuries
sufficient in the ordinary cause of nature to
cause death also makes a culpable
homicide a murder if death has actually
been caused and intention to cause such
injury or injuries is to be inferred from the
act or acts resulting in the injury or
injuries.
(10) When single injury inflicted by the
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accused results in the death of the victim,
no inference, as a general principle, can be
drawn that the accused did not have the
intention to cause the death or that
particular injury which resulted in the
death of the victim. Whether an accused
had the required guilty intention or not, is
a question of fact which has to be
determined on the facts of each case.
(11) Where the prosecution proves that the
accused had the intention to cause death of
any person or to cause bodily injury to him
and the intended injury is sufficient in the
ordinary course of nature to cause death,
then, even if he inflicts a single injury
which results in the death of the victim, the
offence squarely falls under Clause thirdly
of Section 300 of the IPC unless one of the
exceptions applies.
(12) In determining the question, whether
an accused had guilty intention or guilty
knowledge in a case where only a single
injury is inflicted by him and that injury is
sufficient in the ordinary course of nature
to cause death, the fact that the act is done
without premeditation in a sudden fight or
quarrel, or that the circumstances justify
that the injury was accidental or
unintentional, or that he only intended a
simple injury, would lead to the inference
of guilty knowledge, and the offence would
be one under Section 304 Part II of
the IPC."
Considering the facts on hand, and applying the
aforesated principles in the present case, it is proved that
prior to the present alleged incident, the father of the
complainant i.e. Devabhai and Kantubhai, along with others
had beaten mother and father of Rajubhai and other persons
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and the present incident is the outcome of the grudge
resulting from the said beating. In all, 20 injuries were found
on the body of the deceased, out of which injury No. 1, i.e.,
one CLW admeasuring about 2.5 cm x 0.5 cm on the left side
of the parietal region, was found to be fatal and sufficient to
culminate in death and rest 19 injuries were in the nature of
bruise and abrasion. Dictionary meaning of the word
"contusion" is bruise. Medical meaning of the word
"contusion" is an injury in which the skin is not broken and
there is pain, swelling and discolouration, while meaning of
abrasion . The cause of death was opined to be due to shock
caused by Intracranial hemorrhage and fracture in the skull
bone. From the reading of the entire evidence on record,
particularly that of the complainant Bhaviniben, Pratik and
Devabhai, the present incident took place to teach a lesson
because of an incident involving the accused two days prior to
the present incident. The weapons alleged to have been
carried by the assailants were sticks. They were more than
five in number and had both the time and power to kill the
deceased by dangerous weapon. Thus, from the circumstances
of the case on hand, nature of weapon used, the amount of
force employed at the head causing injury, it can be said that
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this is a case of pre-meditation to teach a lesson to the
deceased and the accused had no intention or motive to
murder the deceased. Thus, the accused had no intention to
cause such bodily injury as is likely to cause death or such
injury, attracting the provisions of Section 300 of the IPC. In
the case on hand, it does not seem that the intention to cause
death is clear made out. However, it has been proved beyond
reasonable doubt that the appellants Rajesh and Paresh had
caused death and thus, committed culpable homicide.
Considering the nature of injuries and role attributed to
Paresh and Rajesh, it can be said that culpable homicide of
the third degree has been committed; however, the injuries
were not sufficient to cause death in the ordinary course of
nature. In the facts of the case it cannot be said that the
accused had intention to cause injury or injuries sufficient in
the ordinary cause of nature to cause death. However, the
accused inflicted the injury while the act was likely to cause
death. Thus, even if the case on hand does not fall within the
exceptions of Section 300 of the IPC, the accused can be held
guilty of the offence punishable under the second part of
Section 304 of the IPC. The injuries were inflicted while they
were infuriated due to incidence of beating that took place 2
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days prior to the faithful day. Under such circumstances, we
are of the opinion that the present case falls under Part II of
Section 304 of the IPC. Thus, the conviction of Rajesh and
Paresh from 302 of IPC is altered to Section 304 part II of the
IPC and are ordered to under go 5 years R.I rest of the
conviction remains unaltered. However, we do not find it fit to
alter the fine imposed upon them and up hold the same but in
default to pay the fine they shall undergo R.I of 6 months
instead of 2 years R.I as orderd by the Trial Court. We also
uphold the conviction and fine imposed on Nitesh Nanu by the
Trial Court.
21. Appeal Nos. 1296 of 2009 and 1357 of 2009 are partly
allowed to the afore said extent, whereas Appeal No. 1569 of
2009 filed by Nitesh Nanu Patel is rejected. Bail bonds of the
appellants stands cancelled. They are required to surrender
before the jail authorities within 6 weeks from today to under
go remaining sentence. Record and proceedings be sent back
to the trial court forthwith.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
MMP
