TMI Blog2001 (5) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... e acquittal of accused nos. 1, 2 and 5. Later on the State has also filed an appeal by special leave. Both the appeals have been heard together. A small village Dugrasan, Taluka Shihori in the State of Gujarat witnessed a joyful evening of 23rd March, 1980 being converted into a horrific tale of crime where violence was let loose between two communities, otherwise friendly and living together happily , resulting into death of 3 persons and simple and grievous injuries to several others. It appears that the village has population consisting mainly of Thakores and Kolis. Thakores treat themselves as upper caste and look down upon Kolis as their inferiors. On the date of incident, in the evening, the village people had collected in the chowk, an open space in the heart of the village to witness the performance of tight rope dancers. A rope is tied tightly on two poles installed at a reasonable distance from each other. On the tight rope moves a dancer. The performance includes tight rope walking with utensils on the head of the dancer. The performer is rewarded by making a bid amongst the viewers; one whos bid is the highest has the honour of lifting and putting down the utensils f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Code and commenced investigation. Autopsies on the dead bodies of Narsangji Hiraji, Sabuji Viraji and Amuji Narsangji were conducted. All other injured persons were also medico-legally examined. It is not necessary for us at this stage to notice such details of the incident as have become insignificant consequent upon 5 of the 8 accused persons having been acquitted by the Trial Court and their acquittal having remained unchallenged. We will only notice such details of the prosecution case as are relevant and significant for the purpose of testing legality of the acquittal of the three accused- respondents as recorded by the High Court. Sabuji Viraji was examined by Dr. Varvadia, PW2 on 24.3.1980 at about 12.15 a.m. He found one incised wound on the left side of upper part of abdomen, another incised wound on the left palm and the third incised wound on the scalp. Sabuji Viraji was referred to medical officer, Deesa for further treatment. He was transferred to Mehsana where he expired on 30.3.1980. The post-morten was conducted by Dr. Solanki, PW4. He found the same 3 injuries on the body of the victim which were ante-mortem. The cause of death was acute peritonitis caused b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e persons injured on the side of the prosecution party. The five injured were examined as prosecution witnesses. The medico-legal examination of the injured persons had taken place little after midnight on the day of the incident itself. The duration of the injuries sustained by all the injured persons as opined by the doctors conducting medico-legal examinations, coincided with the time of the incident. Here itself it will be relevant to mention that some of the accused persons had also sustained injuries and they were medico- legally examined between midnight and 2.10 hours in the early morning of 24.3.1980. Kubersing Chamansing, accused No.1, Maganji Duduji, accused No.2 and Gajraben Maganji, accused No.5 were examined by Dr. Varavaida, PW2. Maganji Daduji was found to have sustained in all twenty injuries. There were two incised wound on the scalp, six contusions, five abrasions and two contused lacerated wounds on his person spread over the neck right arm and back. He also had a fracture of left index finger. All the injuries except the two on scalp were caused by hard and blunt weapon. Gajraben, accused No.5, had six contusions, four contused lacerated wounds and one abras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on party. This happening of the incident in the chowk was substantiated by the circumstances and was partly admitted by the defence also in their earliest version of the incident i.e. the FIR lodged by one of the accused persons. However, no trace of blood and no visible signs of violence were found near the houses of the accused persons and, therefore, it could be safely inferred that the incident had taken place only in the chowk and not near the houses of the accused persons; (ii) The prosecution witnesses and the three deceased on the one hand and the accused persons on the other hand did not have any previous enmity. They were residents of the same village. The incident had erupted at the spur of the moment. It was a case of sudden fight. It cannot be said that the accused persons had any common intention to beat anyone or that they had any common object for which they had formed an unlawful assembly. Their presence in the chowk to witness the show was quite natural and, therefore, the question of convicting anyone with the aid of Section 34 or Section 149 of the IPC does not arise; (iii) Thakore Kubersing Chamansing, accused No.1, is proved to have caused a dagger blow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case, was innocuous and, therefore, by their mere presence at the place of the incident, they could not be held liable to conviction alongwith other accused persons with the aid of Section 34 or 149 of IPC. The most important plea raised on behalf of the accused persons before the trial court was that the prosecution witnesses did not offer any explanation for the injuries sustained by the accused persons. This showed, according to the defence, that the genesis of the incident was being concealed by the prosecution witnesses and the whole truth was not placed before the court which lent support to the defence version that the incident, in all probabilities, took place in the manner and at the place suggested by the defence, that is to say, the incident had taken place near the houses of the accused persons where the persons belonging to prosecution party were aggressor. The trial court opined that in so far as the injuries sustained by accused No.1 and 5 to 7 are concerned, they were all injuries of very minor nature and their non-explanation did not cause any infirmity in the prosecution case. Magansing Dadusing, the accused No.2, had sustained seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same incident and as the prosecution witnesses did not explain how the accused persons sustained injuries, it could be safely inferred that the prosecution witnesses were suppressing the genesis of the incident. The High Court has also observed that looking to the numerous injuries sustained by the accused persons it can reasonably be inferred that the accused persons were in grave apprehension of death or grievous injury being caused to the accused persons or to anyone or more of them and hence they were entitled to use weapons for their own protection. They cannot be said to have exceeded their right of self-defence. Another reason which has prevailed with the High Court is that though several persons were present at the place of the incident but the prosecution has not examined any independent witness. The eye witnesses examined on behalf of the prosecution are related with the deceased and the injured. The combined effect of these two factors was that the testimony of the witnesses could not be believed. As to the dying declaration, the High Court has observed that the dying declaration also does not explain the injuries on the persons of the accused persons and coupled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng out the truth on the material available on record as also to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non-examination of independent witnesses. It is true that if a material witness, which would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness which though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the Court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... performers took to their heels. They could not have seen the entire incident. The learned Sessions Judge has minutely scrutinised the statements of all the eye-witnesses and found them consistent and reliable. The High Court made no effort at scrutinising and analysing the ocular testimony so as to doubt, if at all, the correctness of the several findings arrived at by the Sessions Court. With the assistance of the learned counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the eye-witnesses consistent and reliable in their narration of the incident. In our opinion non-examination of other witnesses does not cast any infirmity in the prosecution case. Thus, we are of the opinion that the two grounds on which the High Court has reversed the judgment of the Sessions Court were irrelevant and could not have been relevant for such reversal. Justice has been made sterile by exaggerated adherence to rule of proof. Benefit of doubt must always be reasonable and not fenciful. As we have already stated, we have ourselves minutely scrutinised the evidence available on record. We do not find any infirmity in the findings arrived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 AM. He found the wound stitched. On opening he found internally Large intestine sutured wound 2.5 cm on splenic flexure gappling containing faecal matter; surrounding area of wound was red in colour; opening was found absent. The cause of death in the opinion of Dr. Solanki was shock due to acute peritonitis. None of the two doctors has deposed if the injury was grievous or sufficient in the ordinary course of nature to cause death or that the injury was so imminently dangerous that it must have in all probability resulted in death or was likely to cause death. The exact cause of peritonitis is not known. That negligence to treat the wound could be a contributing factor cannot be ruled out. In such state of medical evidence it will not be proper to draw an inference against Magansing accused no.2 of his having committed murder of Sabusing Viraji punishable under Section 302 of the IPC. The injury dealt by him by a sharp weapon had cut into the intestine. Though, an intention to cause death or such bodily injury as is likely to cause death cannot be attributed to him, knowledge is attributable to accused No.2 that an injury by knife into the abdomen was likely to cause death. As i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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