JUDGMENT M.B. Shah, J.
1. Against the acquittal order dated 6th March 1982 passed by the Additional Sessions Judge, Ahmedabad at Narol, in Sessions Case No. 114/81, the State has filed this appeal.
2. At the time of admission of this appeal the Court admitted the appeal only against accused Nos. 1, 2, 5, 7, 9, 10 and 13. Against rest of the accused the appeal was dismissed.
3. In all 15 persons of Bharwad community were charged for the offences punishable under Sections 302, 307, 148 and 149 of the Indian Penal Code. It is the prosecution version that on 2nd June 1981 at about 6 p.m. the accused with other members of the Bharwad community formed an unlawful assembly with the common object to commit murders and cause grievous hurt or hurt to the members of Patel community and of committing riots in Bavla town, taluka Dholka, District Ahmedabad. They were armed with deadly weapons like sticks, dharias and Farsi etc. They came out from the Bharwad locality (Bharwad Vas), went towards the north i.e. the bazar shouting to beat and kill Patels at sight. It is the prosecution version that in Dec. 1980 election of the Bavle Nagar panchayat was mainly contested by the members of Bharwad community and Patel community. Only 2 members of Bharwad community got elected and the members of the Patel community were elected on remaining seats. Because of this, the relations between these communities were bitter.
4. It is the prosecution version that in succession the members of unlawful assembly attacked 3 persons:
(1) First attack was on Patel Govindhbhai Girdharbhai. He was attacked along with other members by accused No. 1 by ironshod stick, accused No. 2 by dharia and accused Nos. 5 and 10 by sticks. Because of injuries Patel Govindhbhai Girdharbhai expired on 3rd June 1981 i.e. on the next day.
(2) Thereafter members of the unlawful assembly attacked witness Arvindkumar Kanjibhai. He was attacked by accused Nos. 5, 7, 9, 10 and 13. It is the say of the witness that accused No. 10 inflicted dharia blow while other accused inflicted stick blows. To save his life the witness entered the shop named "Janta Bidi Stores" owned by witness Bipinbhai Naranbhai.
(3) The said members of the unlawful assembly proceeded further, went at Gayatri Milk Shop owned by Patel Vinubhai Keshav-lal, dragged him out of the shop, caused some damage to the shop and assaulted him. It is the say of this witness that along with other accused he was assaulted by accused Nos. 2, 5 and 13. Accused No. 2 gave a dharia blow, accused No. 5 gave a stick blow and accused No. 13 also gave a stick blow.
5. At 7-30 p.m. the witness Arvindhbhai Kanjibhai went at the police station, lodged the FIR Ex. 66 against accused Nos. 5, 7, 8, 9, 10, 14 and other members of the unlawful assembly. The injured persons were removed to V. S. Hospital. Accused Patel Govindbhai was examined at V. S. Hospital at 8.05 p.m. by Dr. V. R. Sheth. Patel Arvindbhai was also examined at 9-15 p.m. by Dr. V. R. Sheth. Patel Vinubhai was examined at 10-17 p.m. by Dr. K. R. Shukla.
6. It is the say of the prosecution that P.W. 10 Anarsinh recorded the FIR of Arvindbhai at about 7-30 p.m. After recording the FIR the investigation was handed over to P.S.I. Chauhan. It is the say of P.S.I. Chauhan that on the relevant day on 2-6-81 he had gone to Dholka for Bandobust. At 7.00 p.m. he received a telephonic message from Bavla P.S.O. that there were riots at Bavla. Therefore, he came to Bavla. He took over investigation from Head Constable Anarsinh. At night time he kept Bandobust in Bavla Town. On 3rd June 1981 he went at the scene of offence where Arvindhbhai was injured. Panchnama of the scene of offence was prepared. He recorded the statements of witnesses Naranbhai Atmaram and Bipinbhai Naran-bhai. Thereafter he went at the place where Govindbhai Gordhanbhai was injured, prepared panchnama and recorded statements of the witnesses. Subsequently at noon time he went at the V. S. Hospital. He prepared the panchnama of clothes put on by Vinubhai Keshavlal. He recorded the statements of Arvindkumar Keshavlal. It is his say that he was not in a position to record the statements of Govindbhai Gordhanbhai and Vinubhai Keshavlal as they were unconscious. He received the message on 4-6-81 that Govindbhai Gordhanbhai had expired. He again went to V. S. Hospital on 4-6-81 but as Vinubhai was unconscious, his statement was not recorded. After completing the further necessary investigation the accused were charge-sheeted before the Judicial Magistrate, First Class at Dholka. The Judicial Magistrate committed the case to the Sessions Court, Ahmedabad (Rural).
7. The learned Additional Sessions Judge, Ahmedabad (Rural) at Narol framed the charge against the accused for the offences punishable under Sections 302, 307, 18, 149 of the Indian Penal Code. Further, accused Nos. 1 & 2 were charged with the offence under Section 302 for causing the murder of Govindbhai Girdharbhai Patel and rest of the accused were charged with the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. Accused Nos. 5, 7, 9 and 10 were also charged for the offence punishable under Section 307 for causing injury to witness Arvindbhai Kanjibhai Patel and rest of the accused were charged for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. For causing injuries to Vinubhai Keshavlal accused Nos. 2, 5 and 13 were charged for the offence punishable under Section 307 and rest of the accused were charged for the offence punishable under Section 307 read with Section 149.
8. After recording and appreciating the evidence of the prosecution witnesses the learned Additional Sessions Judge arrived at the conclusion that the prosecution has failed to prove the guilt of the accused. He discarded the evidence of injured witnesses mainly by holding that there is no corroborative piece of evidence to support their say.
9. At the time of hearing of this matter, the learned Additional Public Prosecutor Mr. Panchal vehemently submitted that the entire approach of the learned Sessions Judge is unreasonable and against the established principles of law for appreciating the evidence of witnesses. He submitted that the learned Judge has not bothered to consider the evidence of injuried witnesses in proper perspective. He has given undue and unreasonable weight to the fact that the prosecution has failed to examine the other eyewitnesses who might be present in the bazar at the relevant time by forgetting the Act that now-a-days it is practically impossible to examine independent witnesses for several reasons. He further submitted that the reasons given by the learned Judge for not relying upon the evidence of eye-witnesses P.W.6 Anilkumar Chandulal Ex. 59 and P.W.7 Natwarbhai Mangaldas Ex. 60 are absolutely perverse. According to his submission, the evidence of the injured witnesses is fully corroborated by medical evidence. With regard to the injury to Arvindbhai his say is corroborated by witness P.W. 5 Bipinbhai Naranbhai Ex. 58. With regard to the say of the witness Vinubhai Keshavlal, apart from the medical evidence his say is corroborated by the scene of offence panchnama Ex. 55.
10. As against this, learned advocate appearing on behalf of the respondents accused submitted that the view taken by the learned Additional Sessions Judge is reasonable and that this Court should not reappreciate the evidence for arriving at the different conclusion. He vehemently submitted that even though eye-witnesses were present at the scene of offence, they are not examined by the prosecution for ulterior motive. He, therefore, submitted that as the evidence of injured witnesses is not corroborated by any independent witness, their evidence requires to be discarded. He, therefore, submitted that the view taken by the learned Judge is a reasonable one and hence the order passed by him acquitting the accused does not call for any interference in acquittal appeal.
11. For deciding the aforesaid contentions it would be necessary to consider and appreciate the evidence of injured witnesses and the eye-witnesses who have seen the assault on the deceased Govindbhai.
12. With regard to the first incident i.e. the assault on deceased Patel Govindbhai Girdharbhai the prosecution has relied upon the evidence mainly of the eye-witnesses. P.W.6 Anilkumar Chandulal is the nephew of the deceased Govindbhai Girdharbhai. It is his say that the deceased Govindbhai was his partner and they were running electric spare parts shop. The shop is situated near Pakshi Bhuvan at Bavla. The third partner was one Sureshchandra Ramanlal. On 2-6-81 at about 6 p.m. after closing the shop he and his uncle Govindbhai were going towards their house. When they had gone at a distance of 50 to 60 steps from their shop, they heard shouts and saw 40 to 50 Bharwads coming towards them. They shouting "kill Patels". He was in a position to identify accused Nos. 1, 2, 3, 4, 5, 10, 12 & 15. According to his say, accused No. 1 was having ironshod stick, accused No. 2 was having dharia, accused No. 3 was having Farsi and rest of the accused were having sticks. Seeing the aforesaid persons coming, he and Govindbhai walked fast. Govindbhai remained at a distance of 7 to 8 steps behind him. At that time accused No. 1 Jaksibhai Nagji bhai inflicted stick blow on the head of Govindbhai. Accused No. 2 gave dharia blow on the head of Govindbhai. Govindhbhai fell down near Kabrastan. He ran fast towards his house. While going he saw that 7 to 8 Bharwads were inflicting blows on the deceased. After one hour he came to know that his uncle was removed to V. S. Hospital. Therefore, he went to V.S. Hospital. His statement was recorded by the police on the next day at Bavla.
13. P.W.7 Natwarbhai Mangaldas Ex. 60 also states that on the day of the incident he had gone to the cloth shop of his nephew which is situated in Town Chowk, Bavla. After closing the shop he was going towards the bazar near Pakshi Bhuvan. He went at the urinal and after coming out from urinal he saw Anil and Govindbhai going. In the meantime he saw the crowd of 40 to 50 Bharwads having sticks and dharias coming from Bharwadvas. The said persons were shouting "beat Patels at sight". He also saw Anil and Govindbhai going fast. At that time accused No. 1 inflicted ironshod stick blow on the head of the deceased Govindbhai, Bhikha-bhai accused No. 2 inflicted dharia blow and rest of the accused i.e. accused Nos. 3, 5, 9 & 12 were giving blows to him. It is his say that because of fear he went away. Apart from the evidence of these two witnesses the prosecution has relied upon the evidence of P.W. 8 Dahyabhai Jivabhai. It is his say that on the date of the incident he had gone to a shop of a carpenter for purchase of handle. While returning near Pakshi Bhuvan, he saw a crowd of Bharwad community. They were shouting beat Patelies". The crowd went ahead. He saw Anilbhai and Govindbhai going ahead of him. It is his further say that accused No. 1 gave ironshod stick blows on the head of deceased Govindbhai. Accused No. 2 gave dharia blow. Govindbhai fell down. Thereafter he had not seen Anilbhai. It is his further say that he had identified accused Nos. 3, 4, 5, 6, 7, 11, 12, 14 & 15 and they were having sticks or other weapons.
14. Patel Govindbhai Girdharbhai was admitted in the V. S. Hospital at about 8-05 p.m. Dr. Sheth who examined him found the following injuries as per the medical certificate Ex. 49:
"Bleeding from nose and Rt. ear.
CLW 5 X 1/2 X 1/2 inch, over Rt. occipital region.
Bruise 8 X 2 inch over back and Rt. thigh.
Swelling Rt. Maxilla 3 X 3 inch. X-Ray skull AD intissurar Rt. parietal bone."
15. It is the prosecution version that thereafter the said crowd of Bharwads went ahead and injured P.W. 4 Arvindbhai Kanji-bhai Patel who is examined at Ex. 57. It is the say of Arvindbhai Kanjibhai that at about 6 to 6-15 p.m. he had gone to the shop of one Laljibhai Kanjibhai for purchasing Sagod. When he was standing near the shop of Laljibhai the members of the Bharwad community beat him. It is his say that accused Nos. 7 and 9 inflicted stick blows on his head. Accused No. 10 also tried to inflict dharia blow on his head which he had warded off. The said blow landed on his left hand. He identified other accused as accused Nos. 5, 7, 9 and 13. It is his say that with a view to save his life he ran and went inside the shop named Janta Bidi Stores owned by Bipinbhai. At the relevant time Bipinbhai was present. He closed the door of his shop from inside. After 20 to 25 minutes his father came with a motor car. He was taken to Trimurti dispensary at Bavla. It is his further say that because of election of Nagar Panchayat in 1980 there was dispute between members of Bharwad community and members of Patel community. From Trimurti dispensary he went to Bavla Police Station where he had lodged FIR Ex. 66. Thereafter he was taken to V. S. Hospital.
16. Arvindbhai Kanjibhai was admitted in V. S. Hospital, Ahmedabad, at about 9-15 p.m. on 2nd June 1981. As per the medical certificate Ex. 47 the following injuries were found:
"H/o assault stick over head unconsciousness for some time, No H/o vomiting/ convulsions, ENT bleeding.
O/e Pt. conscious.
pupils Brrl.
CLW 4" X 1/2" X 1/2" nr.Rt. frontal region.
CLW 3" X 1/2" X 1/2" Lt. occipital region. CLW 1" X 1/4" X 1/4" base of Lt. thumb. tenderness over lt. forearm & Lt. knee. X-ray skull Ap/1t: Fy21972/73/74: No seen. Lt. forearm. Ap/1t: " 17. The prosecution has also examined P.W. 5 Bipinbhai Naranbhai Ex. 58. It is his say that on the relevant day i.e. at about 6/6-15 p.m. he was returning from bazar after demanding his dues. Soon thereafter Arvindbhai entered his shop shouting "save". So he saw in that direction. He saw accused Nos. 13, 8, 7, 9 and 10 running after Arvindbhai. It is his say that accused No. 10 Karmanbhai had a dharia and rest of the accused had sticks. He, therefore, closed the shop. Thereafter Arvindbhai informed him to send message to his father by phone. He saw injuries on the head, left hand and wrist of Arvindbhai. After 15 to 20 minutes Arvindbhai's father came and took Arvindbhai. His statement was recorded by the police on the next day. 18. For proving the attack on Vinubhai Keshavlal Patel, the prosecution has relied upon the evidence of PW. 9 Vinubhai who is examined at Ex. 63. It is his say that at about 8-00 p.m. when he was at his milk shop named "Gayatri Milk Dairy", the crowd of 25 Bharwads armed with dharies, sticks etc. came at his shop. First they caused damage to the board by their weapons. They were shouting "beat Patels at sight". It is his further say that accused Nos. 2, 5 and 13 entered his shop, dragged him out. Thereafter accused No. 13 inflicted a stick blow on his forehead, accused No. 2 inflicted blow on his left leg and accused No. 5 inflicted blow on his right wrist and another blow on his left hand. Thereafter he became unconscious. He regained consciousness at V. S. Hospital. 19. At 10-17 p.m. witness Vinubhai Keshavlal was admitted at the V. S. hospital. As per the medical certificate Ex. 48 following injuries were found on his person:
"On Examination : H/o Assault Dharia over forehead & assault with stick over chest & part of body.
& pointed iron bar near lt. leg.
H/o Unconsciousness for some time X/o H/o Vomiting Convulsive Ent bleeding.
Pt. conscious, alert.
O/e pubic 96/nt.
B/p 120 CLW 5" X 1/2" X 1/2" over forehead.
CLW 1/2" X 1/2" X 1/2" over occipital region.
Pupils BRPL.
Rounded bruise over chest 2 marks 2 cm.
circular 6"X 17 6" X 1"/bruise over front of abdomen.
Tenderness over Rt. forearm & wrist? #
Tenderness : Lt. hand? #
Pointed wound over Lt. leg X-ray Fy. 21975/74/78/ # middle 1/3 Lt.
tibia.
Fy. 21989/ / # Lt. 4th metacorpal.
Rt. lower 1/3 ulna.
# skull No # "
The prosecution has also examined P.W. 3 Vithalbhai Jivanbhai Ex. 54 in whose presence panchnama of the shop of Vinubhai was prepared. As per the panchnama the board of the shop of the witness Vinubhai was damaged. There is no cross-examination of the panch on the aforesaid point.
20. For proving the injuries to the witness and the deceased the prosecution has examined P.W. 13 Dr. V. R. Sheth Ex. 72. It is his say that at about 8-05 p.m. Govindbhai Girdharbhai was brought in the V. S. Hospital and the police yadi followed. At the relevant time he was semi-conscious and was bleeding from nose and right ear. He had following injuries:
"1. Contused lacerated wound 5" X 1" X 1/2" over right occipital region.
2. Bruise 8" X 2" over back of right thigh.
3. Swelling over right maxila 3" X 3".
4. A bruise over right forearm. Pulse was 104 per minute and blood pressure was 120."
In cross-examination he has said that even sharp weapon can cause C.L.W. He further says that C.L.W. on right occipital region of Govindbhai was more likely by any hard blunt substance than by sharp-edged instrument.
21. He had examined Arvindbhai Kanji-bhai at about 9-15 p.m. and had found injuries as per certificate Ex 47. According to him, the abovesaid injuries were possible by a hard blunt substance like stick or blunt portion of a dharia. In cross-examination he stated that by seeing the case-paper he says that Arvindbhai had given history of assault by stick. He had also given history of unconsciousness for some time. When he examined him he was fully conscious.
22. P.W. 14 Dr. K. R. Shukla is examined to prove that injuries on the person of witness Vinubhai Keshavlal. It is the say of the doctor that at 10-17 p.m. he had examined Vinubhai Keshavlal. He gave history of assault by dharia over forehead and assault by stick over chest and other parts of the body and also of unconsciousness for some time. He found injuries as per certificate Ex. 48. He has also stated that clinically a fracture was found over right forearm and wrist. X-rays were taken and following fractures were found :
1. Fracture of middle 1 / 3rd of left tibia.
2. Fracture of fourth metacarpal.
3. Fracture of lower l/3rd of ulna. No fracture on skull was detected."
In cross-examination it is stated that the injury on the leg was a piercing wound and if a corner of dharia is pierced then only such injury is possible by dharia. He denies that such injury can never be caused by dharia. It is his say that when the patient came into the hospital, he was conscious and alert.
23. The prosecution has further examined P.W. 11 Dr. Mukesh V. Shah Ex. 67. He carried out the post-mortem examination at 4-00 p.m. on 4-6-81 on deceased Govindbhai Dhardharbhai. It is his say that Govindbhai was admitted in the hospital on 2-6-81 at 7.56 p.m. and he died on 3-6-81 at 11.00 p.m. He had the following external and internal injuries:
External injuries " 1. There was vena section mark over left leg. It was a surgical wound caused by the Doctor for starting intra venus fluid.
2. C.L.W. 2 c.m. X 1 c.m. X 0.5 cm. on right ear just over the tragus.
3. Six stitched wound over right parietal region 5 c.m. from right ear.
4. Bruise mark over lower half of right arm on front and lateral aspect, 15 c.m. X 12 c.m.
5. Swelling over right cheek 3 c.m. X 3 c.m.
6. Left hand was odemmatus. It means that there was swelling."
Internal injuries "1. A huge haemotoma over the scalp over occipital and right parietal region.
2. There was a fracture of right parietal and right temporal bones. Second fracture of anterior cranial fossa, on right side, just near the mid-line 2 cm. in length.
3. Diffused subdural and subarachnoid haemorrhage, brain was congested."
It is his say that external injury No. 3 coupled with aforesaid corresponding internal injuries were sufficient to cause death in ordinary course of nature and all the injuries were ante-mortern. According to him, injury No. 2 was possible by blunt portion of a dharia. It is his further say that after receiving the external injury No. 3 the patient may become unconscious at once and there were least chances of survival. According to him, the patient may remain in coma for a few days or he may expire at once on receiving such injury.
24. From the aforesaid evidence it is absolutely clear that the prosecution has established one fact i.e. on the day of the incident 40 to 50 members of Bharwad community came from their locality to bazar near Pakshi Bhuvan at Bavla. They were shouting "beat Patels". They first attacked Govindbhai Girdharbhai, thereafter attacked witness Arvindbhai Kanjibhai and subsequently attacked witness Vinubhai Keshavlal. If the learned Judge had appreciated the prosecution evidence in its entirety and not by dividing it incident-wise, in our view he would have arrived at the proper conclusion.
25. The first question which would be required to be dealt with is whether the prosecution has proved beyond reasonable doubt that there was unlawful assemply of persons belonging to Bharwad community with the common object of assaulting and' belabouring members of Patel community or not. From the evidence of the aforesaid witnesses, in our view the prosecution has proved beyond reasonable doubt that 40 to 50 members of Bharwad community came from their locality i.e. Bharwad Vas for assaulting members of the Patel community. At present we are not deciding whether their common object was to kill the members of the Patel community or only to cause at the most grievous hurt to the members of the Patel community. At present from the aforesaid evidence in our view it is proved by the prosecution beyond reasonable doubt that there was unlawful assembly of 40 to 50 members of Bharwad community and their common object was of assaulting members of the Patel community. This part of the prosecution evidence is not seriously challenged by the defence. Even the learned advocate for the accused respondents was not in a position to point out anything to the contrary and was not in a position to press that there was not such an unlawful assembly.
26. The next question which would be required to be decided is as to who were the members of the said unlawful assembly. This question is decided after keeping in mind the fact that the appeal is admitted only against accused Nos. 1, 2, 5, 7, 9, 10 and 13. Against the rest of the accused the appeal is dismissed, therefore that part of evidence is not discussed. P.W.6 Anilkumar Chandulal has identified accused Nos. 1 to 5, 10, 12 & 15. It is his version that accused No. 1 was having ironshod stick, accused No. 2 was having dharia and accused No. 10 was also having dharia and rest of the accused were having sticks. P.W.7 Natwarlal Mangaldas has identified accused Nos. 1, 2, 3, 4, 5, 12 and 14. It is his version that accused No. 1 was having ironshod stick, accused No. 2 was having dharia and accused No. 5 was having stick. P.W. 8 Dahyabhai Jivabhai has identified accused Nos. 1, 2 & 5 and with regard to the weapons the same is his say as of the aforesaid witnesses. Similarly injured witness P.W. 4 Arvindbhai Kanjibhai has identified accused Nos. 5, 7, 8, 9, 10 and 13. P.W. 5 witness Bipinbhai Naranbhai has identified accused Nos. 5, 7, 8, 9, 10 and 13. P.W. 9 injured witness Vinubhai Keshavlal has identified accused Nos. 2, 5 & 13. It is his say that accused No. 2 was having dharia accused Nos. 5 an 13 were having sticks.
27. The main question which will require to be decided at present would be whether we should place any reliance upon the evidence of the injured eye-witnesses. The learned Judge has discarded the evidence of these witnesses mainly upon two grounds viz. (1) eye-witnesses are not examined and (2) on the basis of their conduct and the fact that the statement of injured witness Vinubhai was recorded after few days by the investigating officer.
28. In our view, the approach of the learned Judge in appreciating the evidence of injured witnesses is on the face of it illegal and erroneous. For appreciating the evidence of the injured witnesses the Court should bear in mind that:
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation.
(6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
29. Further, the Court should bear in mind that merely, because the prosecution has failed to produce any independent witness to the murder or to the incident which took place in the bazar which normally would be thickly populated area would be no ground to throw out or doubt the version of injured witnesses or the evidence of relatives of the deceased who on the evidence as it stands were accompanying the deceased and whose presence cannot be doubted for any other reason. The Court should take into consideration the glaring prevailing fact in the society that independent witnesses are not forthcoming to assist the investigating agency for various reasons such as terror by the accused, danger to their life or property because of the accused, harassment at the investigation stage, repeated adjournments in the Court and on some occasions irrelevant piercing cross-examination by the defence counsel. Therefore, merely because the prosecution has failed to examine so-called independent witnesses to the murder or incident would be no ground for discarding the evidence of the prosecution witnesses who may be either the injured or relative of the deceased accompanying the deceased.
30. After recapitulating number of cases in the case of Appabhai v. State of Gujarat, AIR 1988 SC 696 : (1988 Cri LJ 848), the Supreme Court has succinctly dealt with this aspect. The Court has held that the injured witness should be considered to be the best eye-witness to the incident and the discrepancy in his evidence which does not shake the basic version of the prosecution case may be discarded. The Court has also held that civilized people withdraw both from the victim and the vigilante and they keep themselves away from the Court unless it is inevitable. The pertinent observations of the Supreme Court in the aforesaid case are as under:
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdrew both from the victim and the vigilance. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecutin case for want of independent witnesses must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken wit-nesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
Further, in para 13 the Court has laid down the criteria for appreciating the evidence of injured eye-witnesses and how exaggeration by a witness is required to be discarded. The Court has also relied upon the observations of the Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : (1983 Cri LJ 1096), wherein the Court has observed that a witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment, but that would be no ground for discarding the evidence of the witness. The relevant observations are as under (para 13 of AIR 1988 SC 696):
"We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eyewitness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of man and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testmony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. Jagamohan Reddy, J. speaking for this court in Sohrab v. State of Madhya Pradesh, 1972 Cri LJ 1302 at p. 1305 : AIR 1972 SC 2020 at p. 2024 observed:
"This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered."
Further, in the case of State of U.P. v. Anil Singh, AIR 1988 SC 1998 : (1989 Cri LJ 88), the Supreme Court deprecated the practice of rejecting the prosecution version either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. The Court held that if there is a ring of truth in the main, the case should not be rejected. The Supreme Court observed that it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. It is unfortunate to note that the trend is to have easy recourse of appreciating evidence and reject it on the ground of some discrepancy here and there without making any effort to disengage the truth from falsehood. The pertinent observations of the Supreme Court are as under (para 13):
"13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for want of corroboration by independent witnesses or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matagini, 24 Cal WN 626 : AIR 1919 PC 157, the Privy Council had this to say (at p. 628) (of Cal WN): (at p. 158 of AIR):
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."
"15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being dis-believed. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the cast should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witness. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."
31. In this case also the learned Judge has rejected the evidence of injured eye-witnesses on the flimsy grounds. His entire approach in not appreciating the prosecution; his appreciation of evidence of Anilkumar Chandulal and Natwarlal Mangaldas and injured witnesses Arvindbhai and Vinubhai is absolutely erroneous. Further, in this case the learned Judge ought to have considered the three incidents which took place in quick succession, if the learned Judge had applied his mind to the facts of the case, in our view he would have arrived at a different conclusion. He has appreciated the evidence in regard to-the aforesaid three incidents in isolation as if the three incidents took place for some different motives or different common object.
32. While appreciating the evidence of injured witness Arvindbhai, the learned Judge has first observed in para 58 that when he was surrounded by six Bharwads, in natural course of events seeing those persons coming towards him to beat and at the time of beating him, he would have shouted for help. So this conduct does not appear natural to the Court. It seems that the learned Judge has wrong notions in his mind with regard to the natural conduct or natural course of events. When a witness is surrounded by strong accused, even if he shouts for help, nobody in these days would dare to intervene and help him. He has further made certain observations with regard to the injuries inflicted upon the witness and with regard to his conduct as under:
"If there were 40 to 50 Bharwads with deadly weapons shouting let not any Patel be alive, would Arvindbhai escape with such minor injuries? Would they allow Arvindbhai to run away? Would injured Arvindbhai run faster than these Bharwads? Would they just stop near shop of Bipinbhai? Would they not break open the shop by their weapon if they had such a common object? Thus above version of Arvindbhai does not stand to reasons and does not inspire confidence."
In our view, the aforesaid questions clearly indicate that the entire approach of the learned Judge in appreciating the evidence of Arvindbhai is nothing but perverse. Why the witness was permitted to run away or why he got minor injuries cannot be explained by the witness. Further, why the assailants or the accused had not broke open the shop of Bipinbhai by their weapon also cannot be explained or imagined. But from this it cannot be said that the conduct of Arvindbhai is in any way unnatural. After getting injuries normally a witness would try to run away or escape from further injuries, but that would not mean that his conduct is unnatural. The learned Judge has further observed that at the shop of Bipinbhai he had informed Bipinbhai to contact his father on phone. He thereafter observed that if such an incident had occurred, it would be the natural instinct of Bipinbhai to talk to his father personally by phone and would have disclosed the identity of those assailants by naming them instead of making a vague statement that the Bharwads had beaten him. In our opinion, this observation is made by the learned Judge by forgetting the fact that the witness was assaulted by the strong persons with deadly weapons. He was injured. May be that injury according to medical opinion be termed as simple, but as such looking to the injuries which we have stated above, it is apparent that the injuries were on vital part of the body i.e. on frontal region and occipital region.
33. Apart from this, the learned Judge has rejected the evidence of Arvindbhai on the ground that it is his say that he became unconsicous when he reached at Ahmedabad and he regained consciousness only on the next day morning. It seems that the learned Judge has not considered the medical certificate Ex. 47. Even before the doctor he has stated that he had become unconscious for some time and that is recorded by the doctor in the history given by the witness. Hence as the witness has stated that he became unconscious when he reached Ahmedabad would be no ground for rejecting his testimony. The learned Judge has further observed that the prosecution has failed to examine other witnesses who were having their shops near Janta Bidi Stores, so his evidence should not be accepted at its face value without independent corroboration. As such there is nothing on the record to show that the persons named by the learned Judge in his judgment para 74 have witnessed the incident and their statements were recorded by the investigating officer and yet they were not examined as prosecution witnesses. Apart from this aspect, the learned Judge has commented that Laljibhai Prahladjibhai would be the most material witness as he was beaten near his shop. But the learned Judge has not considered the fact that the investigating officer had recorded the statement of Laljibhai and it is not the contention of the defence that Laljibhai was an eye-witness to the incident. Therefore, Laljibhai's evidence was not necessary for unfolding the prosecution version. As Laljibhai was not an eyewitness or a material witness, no adverse inference could have been drawn by the learned Judge.
34. In our view, the evidence of the injured witness is corroborated by witness Bipinbhai Naranbhai. It is his say that he and his father run 'Janta Bidi Stores' near Tower Chowk, Bavla. After receiving injury Arvind-bhai entered his shop. He informed the father of Arvindbhai by phone. He had also seen accused Nos. 5, 7, 8, 9, 10 & 13 running after the accused. Therefore, if at all any corroboration was required to what injured witness has deposed, the aforesaid evidence fully corroborates the version of witness. The learned Judge has rejected the evidence of Bipinbhai on the ground of his so-called unnatural and improbable conduct. He arrived at the conclusion that Bipinbhai had not asked Arvindbhai as to who and by which weapon he was beaten and that Bipinbhai had not informed the police about the incident and the witness Bipinbhai is Patidar and Arvindbhai is also a Patidar and, therefore, he cannot be said to be a disinterested witness. In our view, from the law laid down by the Supreme Court in the aforesaid cases which we have discussed above, the aforesaid observation of the learned Judge requires to be discarded. May be that Bipinbhai might not have asked any question to Arvindbhai with regard to the person who caused him injuries because he had seen members of Bharwad community running behind Arvindbhai or he might have even asked the question but because of some fear or because of some sort of a psychological defence mechanism activated on the spur of the moment the witness might have replied in the cross-examination that he had not asked any question to Arvindbhai. But that would be no ground for holding that his evidence requires to be discarded.
35. Thereafter the learned Judge has considered whether the version of the complainant Arvindbhai is corroborated by medical evidence or not. The learned Judge has firstly observed that witness Arvindbhai has stated before the court that he became unconscious after reaching V. S. Hospital while Dr. Vijay Sheth has stated before the Court that Arvindbhai was conscious when he had examined him. Therefore, the version given by Arvindbhai is falsified by the prosecution witness Dr. Vijay Sheth. It seems that the learned Judge had not bothered to refer to the certificate Ex. 47 issued by the doctor. In the certificate it has been specifically mentioned that the witness has given history that he had become unconscious for some time. Apart from this aspect of becoming unconscious for some time, merely because the witness states, that he had become unconscious in the V. S. Hospital after reaching there would not be a ground for rejecting his evidence. Because of some pain killing tablets given by the doctor having sedative effect the witness may feel that he had become unconscious but it in no way affects the material version given by this witness. In any set of circumstances it can be termed as irrelevant exaggeration by the witness which would have no effect on the appreciation of evidence of this witness. The learned Judge has further observed that the witness has stated that accused No. 2 has inflicted dharia blow while medical evidence falsifies his version. This observation is also, in our opinion, made by the learned Judge without considering the evidence of Dr. Sheth who has deposed that the injuries were possible by hard blunt substance like stick or blunt portion of dharia. It is the say of the witness that accused No. 10 Bharwad Karmanbhai tried to inflict dharia blow on his head but he warded it off by raising his left hand and, therefore, that blow landed on his left thumb. This version is corroborated by medical evidence inasmuch as there is injury No. 3 to the witness as narrated in Ex. 47 i.e. a contused lacerated wound 1" x 1/ 4" x 1/ 4" on the base of the left thumb. The learned Judge has further observed that F.I.R. Ex. 6 is concocted document as no time of recording it is mentioned in Ex. 66 and that it was impossible to believe the version of Head Constable Anarsing that F.I.R. was recorded at 7-30 p.m. because after lapse of 8 months he could not recollect the exact time. In our view, this finding is without any basis. The learned Judge ought to have verified, if at all any verification was necessary, by seeing original F.I.R. or a copy of the F.I.R. which is sent to the Judicial Magistrate, First Class, after occurrence of the incident. Apart from this, there is intrinsic evidence on record to show that the F.I.R. must have been recorded prior to 8-30 p.m. That evidence is medical certificate Ex. 47 and the evidence of Dr. Sheth that at 9-15 p.m. Arvindbhai was admitted in the V. S. Hospital. That means the witness was brought to the hospital before 9-15 p.m. and prior to it the F.I.R. was recorded because in the certificate it is mentioned that the police yadi followed from Bavla Police Station. Not only this, but it is the say of the investigating officer P.S.I. Chauhan that he received telephonic message at about 7-00 p.m. from Bavla Police Officer that there were riots in Bavla and that he should come there from Dholka immediately. It is his say that Head Constable Anarsing had recorded the complaint and at about 8-30 to 9-00 p.m. the investigation was handed over to him. That means that before 8-30 to 9-00 p.m. F.I.R. was recorded and investigation was handed over to the P.S.I. as there is no question of handing over investigation of the case without recording F.I.R. In this view of the matter, in our view the learned Judge has erroneously doubted the recording of F.I.R. and held that Ex. 66 is a concocted document. Further, if it was a subsequently concocted document, then the entire three episodes would have been narrated in the said F.I.R. and the names of the other assailants also would have been mentioned therein.
36. Thereafter the learned Judge has appreciated the evidence of injured witness Vinubhai Keshavlal Patel. The learned Judge had rejected the evidence of this witness on the ground that he is not a disinterested witness; that his statement is recorded on 7th June, 1981 i.e., after 5 days of the incident; that his evidence is falsified by medical evidence and that the prosecution has not examined any other eye-witness. It is the say of Vinubhai that when he was at his milk shop named "Gayatri Milk Dairy", the crowd of about 25 Bharwads armed with sticks and dharia came to his shop. They caused damage to the Board of his shop and they were shouting to beat Patels at sight. Thereafter accused Nos. 13, 5 and 2 entered the shop, removed him from the shop. Accused No. 13 inflicted stick blow on his head, accused No. 2 inflicted dharia blow on his left leg and accused No. 5 inflicted blow by stick on his right hand. Accused No. 5 also inflicted blow on his left hand. The learned Judge has observed that this witness is interested witness because he is involved in a criminal case which is committed to the Sessions Court with regard to the complaint filed by the members of the Bharwad community for the incident which had taken place on 2nd June, 1981. Before, jumping to the aforesaid conclusion, the learned Judge has not bothered to see that the said F.I.R. of the case is not produced on record. The learned Judge has not bothered to see that were the allegations against the witness. The witness has stated that false complaint is filed against him. Merely because the complaint is filed against the witness, it cannot be said that he becomes interested witness particularly when he is injured witness. The learned Judge has further observed that in the history of assault given by the witness, the witness has stated that dharia blow was given on forehead and there was assault by stick over head and other parts of the body and there was pointed wound over left leg. It is true that the witness has given the history of assault to the doctor as mentioned in the medical certificate at Ex. 48 and as deposed by Dr. Shukla. But the learned Judge forgot to consider the certificate itself wherein it is mentioned that there was injury over forehead as well as over occipital region which corroborates the version of the witness. Further, as per the medical certificate there was tenderness on the forearm and wrist and tenderness on left hand and pointed wound over left leg. This certificate, therefore, clearly corroborates the version of this witness. May be that he might have mentioned that dharia blow was given on his forehead. Dr. Shukla has stated that all the injuries to Vinodchandra except the injury on the head were possibly by hard blunt substance; the injury on the left leg was possible by dharia or iron bar. In cross-examination he has stated that if a corner of dharia is pierced, then such injury is possible by dharia. He had denied the suggestion that such injury on the leg can never be caused by dharia. Therefore, in our view the medical evidence fully corroborates the version of the witness. Merely because in the history given to the doctor it is mentioned that the dharia blow was given on the forehead and not on the leg would not mean that witness is falsified by medical evidence. The learned Judge ought to have imagined the physical condition of a witness who is assaulted and who is grievously injured and was having three fractures on his body before discarding his evidence. Further, the learned Judge ought to have considered the fact that before the doctor the witness was not required to give details of the manner of assault and the weapon used by the accused. The learned Judge has further observed that the statement of this witness was recorded on 7th June, 1981 and, therefore, his evidence requires corroboration. For that the learned Judge ought to have considered that the witness was not at fault. The learned Judge has further observed that the prosecution has not examined any independent witness to corroborate the say of the witness. As observed above, in this type of cases now-a-days it becomes difficult to examine independent witnesses for various reasons and the prosecution case cannot be thrown out or doubted on that ground alone.
37. Apart from the aforesaid two injured witnesses the learned Judge has discarded the evidence of PW 6 Anilkumar Chandulal Ex. 59. It is his say that the deceased Govind-bhai was his uncle. They were running electric stores. He, his uncle Govindbhai and one Sureshchandra were partners in the said store. The shop is situated near Pakshi Bhuvan. After closing the shop at about 6 p.m. they were returning to their house. He saw a crowd of 40 to 50 persons of Bharwad community shouting "kill patels". Along with other accused he had identified accused Nos. 1, 2, 5 and 10. It is his say that accused No. 1 was having iron shod stick and he inflicted stick blow on the head of Govindbhai. Accused No. 2 was having dharia. He also gave dharia blow on the head of the deceased. He had also seen witnesses Natu-bhai Mangalbhai and Dahyabhai Jivabhai on 1990 Cri. L. J./160 XII the back side of Govindbhai. Because of fear he ran away towards his house. After one hour he got information that his uncle was removed to V. S. Hospital, Ahmedabad. Therefore he went to V. S. Hospital. The learned Judge has observed that the conduct of Anilkumar does not appear to be natural because if such an incident had actually taken place, he would have intervened and would have tried to save his uncle and would not have ran away. In our view, the inference drawn by the learned Judge is absolutely unreasonable. The learned Judge ought to have considered the fact that it would have been a foolish act on the part of the witness to intervene when number of persons who were armed with deadly weapons were attacking' his uncle. Further he has forgotten the fact that it is difficult to decide how a witness would react in a situation where his relative is assaulted. Every witness reacts in his own way. Merely because he runs away to keep him away from the spot, it would not mean that his conduct is unnatural. There are no set rules of reaction and, therefore, to discard the evidence of the witness on the ground that he has not reacted in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Further, the observation made by the learned Judge that the conduct of the witness in that the witness has not informed the other persons except his mother is also unnatural and, therefore, his evidence should be discarded is unreasonable. In our view, the learned Judge ought to have considered the fact that in a village or in any locality if this type of incident occurs, the occurrence of the incident is reported like a wild fire. But that does not mean that the witness should go on narrating the story like a parrot to everyone with whom he has occasion to meet. Sometimes a witness might have discussion with other persons, but for some reasons in the cross-examination he may say that he had no discussion or talk with other persons. That does not mean that his version requires to be discarded. The learned Judge has further observed that the witness had not gone to the police station for lodging the F.I.R. and that his statement is recorded on the next day at about 1.00 p.m., and therefore, this conduct of Anilkumar would show that he was not an eye-witness to the actual incident. It seems that the learned Judge has again forgotten the fact that the witness was a partner with the deceased and it is his say that after closing the shop they were going towards their house. There is no reason to disbelieve this version and that his presence along with his uncle would be most natural. Therefore, merely because he had not gone to the police station for lodging the F.I.R. or that his statement is recorded on the next day after he returned from V. S. Hospital would be no ground for rejecting his testimony. On the contrary, his evidence is most consistent, cogent and reliable.
38. Same is the position with regard to the evidence of Natwarlal Mangaldas PW 7 Ex. 16. It is his say that after the death of his "brother Sankalchand he was going regularly to his brother's shop and after closing the shop at about 6 p.m. he went to a urinal near Pakshi Bhuvan. After coming out of urinal he saw Govindbhai and Anil going ahead. In the meantime about 40 to 50 Bharwads from different directions came from Bharwad Vas. The Bharwads were shouting to beat patels at sight. On hearing the shouts Anil and Govindbhai walked fast. At that time the Bharwads attacked deceased Govindbhai. Accused No. 1 gave iron-shod stick blow on his head. Accused No. 2 gave dharia blow on his head. He had also identified accused No. 5, and other accused who are acquitted. The learned Judge has observed that this witness is a chance witness and it is doubtful whether he was actually present there or not on the ground that the witness has stated that while going to his home from the shop of Sankalchand, Pakshi Bhavan does not come in the way but he had to meet one Laljibhai whose shop is situated near Mosque, therefore he had gone to bazar to see Laljibhai. In our view, this concept of chance witness is aptly dealt with by the Supreme Court in the case of Rana Pratap v. State of Haryana, AIR 1983 SC 680 : (1983 Cri LJ 1272), it is observed that wherein a murder trial while describing the eye-witness as chance witness, it cannot be implied thereby that their evidence is suspicious and their presence at the scene is doubtful. The expression "chance witness" would have no application to the situation in this country and it is most unsuitable expression in a country whose people are less formal and more casual. The Court observed in paragraph 3 as under:
"3. There were three eye-witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned counsel described both the independent witnesses as 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting thir presence, If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses', even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence".
Further, in the same decision, with regard to the conduct of the witness, the Court has held that everyone reacts in his own special way and there is no set rule of natural reaction and to discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. The relevant observations are as under:
"6. Yet another reason given by the learned Sessions Judge to doubt the presence of the witnesses was that their conduct in not going to the rescue of the deceased when he was in the clutches of the assailants was unnatural. We must say that the comment is most unreal. Every person who witnesses a murder reacts in; his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as ppssible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way".
In this case the learned Additional Sessions Judge has observed that witness Natwarlal was of Patel community and that he had feared after seeing the crowd of Bharwad community at a distance of 25 to 30 feet, yet he did not run away and stood there to see the whole incident and, therefore, this appears unnatural. In our view, this appreciation is no appreciation at all by the learned Sessions Judge. The learned Judge has further observed that the witness had contested the previous Panchayat election against accused No. 1 in which he was defeated at the hands of accused No. 1 and that after last election there were quarrels between persons of Bharwad community and Patel Community and cross cases were filed in which he is one of injured witnesses in cases and therefore he cannot be said to be an independent witness and that he is a chance witness. In our view, if this witness is injured and some other complaint is pending against accused No. 1, that will not mean that he is not an independent witness. At the most his evidence requires to be closely scrutinised. But on that ground he cannot be termed as a chance witness or that his conduct would become unnatural. The learned Judge has further observed that this witness has sold his land to accused No. 1 by executing the document which shows that the land was sold for a consideration of Rs. 1500/-, yet in Court he says that the land was sold for Rs. 6000/-and, therefore, he cannot be relied upon. In our view, the explanation given by this witness for mentioning less consideration ought not to have been discarded by the learned Judge. The witness has stated that less consideration was mentioned so that the purchaser is required to pay less stamp duty. In our view, mentioning of Rs. 1500/- as consideration for the sale of land had no bearing with regard to the incident in question and, therefore, the learned Judge ought not to have given any weight to the aforesaid aspect. Therefore, in our view, the appreciation of evidence by the learned Judge is on the fact of it unreasonable and requires to be set aside.
39. Further, Mr. Panchal, learned Additional Public Prosecutor, appearing on behalf of the appellant, submitted that the learned Judge ought not to have discarded the evidence of P.W. 8 Dahyabhai Jivabhai Ex. 62. It is the say of this witness that he had gone to the shop of carpenter for purchasing the handle but he could not get it and so he was returning to his house; near Pakshi Bhavan he saw the crowd of Bharwads shouting to beat Patels; he saw Anilkumar and Govindbhai going ahead. It is his say that accused No. 1 inflicted a blow with ironringed stick on the head of Govindbhai; accused No. 2 inflicted a dharia blow. In addition to accused Nos. 1 and 2 he had identified other persons including accused Nos. 5 and 7, against whom appeal is admitted. It seems that with regard to this evidence the learned Special Public Prosecutor before the trial Court had stated that the prosecution is not placing reliance on the evidence of this witness and, therefore, it would not be necessary for us to discuss in detail the reasons given by the learned Judge for discarding the evidence of this witness.
40. In view of the aforesaid discussion it is clear that the prosecution has established beyond reasonable doubt that the persons of the Bharwad community formed unlawful assembly, inflicted blows on P.W. 4 Arvind-bhai Kanjibhai, P.W. 9 Vinubhai Keshavlal and on the deceased Govindbhai Girdhar-bhai. From the evidence of injured witnesses and eye-witness it is proved beyond reasonable doubt that accused Nos. 1, 2, 5, 7, 9, 10 and 13 were the members of unlawful assembly.
41. The next question would be what was the common object of the said unlawful assembly? Whether the common object was to kill the members of the Patel community as submitted by the learned Additional Public Prosecutor or to assault and belabour members of the Patel community as submitted by the learned advocate Mr. Barot for the defence? It is the submission of Mr. Panchal that from the fact that the accused belonging to Bharwad community who were armed with deadly weapons like iron-ringed stick and dharia attacked members of Patel community, then the Court should infer that their common object was to kill members of Patel community as deposed by witness Anilkumar Chandulal. He relied upon the statement of this witness that he heard the shout that the members of the crowd were stating "kill the members of the Patel community on sight". In our view, looking to the evidence on record as it stands, it would be difficult to infer that the common object of the unlawful assembly was to kill members of the Patel community. In any set of circumstances benefit of doubt is required to be given to the accused because of different version given by different witnesses with regard to the words uttered by the members of the unlawful assembly. Further the fact that the dharia blow is not given by a sharp edge to the deceased and witness Arvindbhai and also no fatal injury is caused by dharia to witness Vinubhai suggests that their common object was not to kill members of Patel community. P.W.7 Natwarlal Mangaldas has deposed that members of the unlawful assembly were uttering "beat the Patels on sight". Same is the .version given by witness Dahyabhai. Same is the version given by injured witness Vinubhai Keshavlal Patel. From this it cannot be definitely stated that the common object of this unlawful assembly was to kill any members of the Patel community, but it can be safely inferred that their common object was to belabour and beat members of the Patel community. In this view of the matter, in our view the respondents i.e., accused Nos. 1, 2, 5, 7, 9, 10 and 13 who are members of unlawful assembly and identified as such by the witnesses and whose presence at the scene of offence is proved beyond reasonable doubt would be liable to be punished for the offence under Section 326 read with Section 149 of the Indian Penal Code in view of injuries to deceased Govindbhai. For causing injury to witness Arvindbhai Kanjibhai accused No. 7 Bhavanbhai Nagribhai, accused No. 9 Manubhai Gokalbhai and accused No. 10 Karmanbhai Ramabhai would be liable to be punished for the offence under Section 324 of the Indian Penal Code and the rest of the respondents accused would be liable to be punished for the offence under Section 324 read with Section 149 of the Indian Penal Code. For causing injury to Vinubhai Keshavlal accused No. 2 Bhikhabhai Nathabhai and accused No. 13 Mahadevbhai Magribhai and accused No. 5 Sagrambhai Nagribhai would be liable to be punished under Section 326 and rest of the respondents-accused would be liable to be punished under Section 326 read with Section 149. Mr. Barot, learned advocate appearing for the respondents, has fairly conceded that the prosecution has proved that the grievous hurt was caused to witness Vinubhai in view of the evidence of Dr. Shukla. Dr. Shukla has stated in terms that clinically a fracture was found over right fore-arm and wrist. The learned Judge has not bothered to refer to the aforesaid evidence and has jumped to the conclusion that as the prosecution has not examined the Radiologist, who took X-rays, the prosecution has failed to prove that Vinubhai was having a fracture. It seems that the learned Judge has not considered the aforesaid aspect. Hence, in our view, respondent Nos. 2, 5 and 13 would be liable to be punished for the offence punishable under Section 326 of the Indian Penal Code and rest of the accused would be liable to be punished under Section 326 read with Section 149 of the Indian Penal Code. The respondents-accused are also convicted for the offences under Sections 147 and 148 of the Indian Penal Code.
42. As we reverse the acquittal order passed by the learned Additional Sessions Judge and convict the accused as stated above, notice be issued against the respondents-accused for hearing them on the question of sentence under Section 235 of the Criminal Procedure Code. Mr. Barot, learned advocate appearing on behalf of the respondents accused waives service of notice. At his request the matter is adjourned to 27th Feb. 1989.
10-3-1989
43. After we set aside the acquittal order and convicted the respondents, the matter was adjourned for hearing the respondents on the point of sentence on 27-2-1989. Thereafter at the request of Mr. Barot, learned counsel for the respondents, the matter was again adjourned.
44. Accordingly, today we have heard the respondents as well as the learned counsel appearing for the respondents on the point of sentence. Mr. Barot, learned counsel appearing for the respondents, points out that respondents Nos. 1, 5, 7 and 13 are the real brothers and, therefore, out of six brothers, four brothers would be in jail. He further points out that original accused No. 7 Bhavanbhai Nagjibhai was of 18 years of age at the time when the charge was framed. He has also pointed out that Bharwad Mahadev-bhai Nagjibhai is serving in the District Cooperative Bank and on account of the conviction he will lose his job. He, therefore, submits that the aforesaid circumstances should be taken into account and liberal view in imposing sentence may be taken.
45. Mr. K. T. Dave, learned Additional Public Prosecutor, submits that original accused Nos. 1 and 2 were convicted for the offence punishable under Section 323 earlier by this Court in Criminal Appeal No. 41 of 1969 on 9-7-1969. On perusal of the xerox copy of the judgment of this Court in the aforesaid appeal, it is clear that the present accused Nos. 1 and 2 along with other four accused were convicted for the offence punishable under Section 323 of the Indian Penal Code as well as under Section 161 of the Panchayats Act and for the offence punishable under Section 323 of I.P.C. sentence of R. I. for three months was passed against them. For the offence punishable under Section 161 of the Panchayats Act, they were required to undergo sentence of R.I. for a week, and substantive sentences were to run concurrently. Further, Mr. Dave submits that this is a case in which Govindbhai who was the victim of the assault of the present respondents has died and, therefore, this is a case in which lenient view should not be taken. He further points out that this is a case in which same unlawful assembly has consecutively executed three different assaults against three victims, first one was on deceased Govindbhai, second was on Arvindbhai and the third was on Vhrubhai on the same day. He further points out that this is a case in which one person has lost his life and two persons were injured brutally, therefore no lenient view should be taken in the matter. He further submits that heavy fine should be imposed on the accused with a view to give adequate compensation to the victims of the assault and atrocities of the respondents. He relied upon the judgment of the Supreme Court in the case of Hari Singh v. Sukhbir Singh reported in (1988) 4 SCC 551 : (1989 Cri LJ 116).
46. We have carefully considered the submissions advanced on behalf of the respondents as well as by the learned Additional Public Prosecutor on the point of sentence and we pass the following orders.
47. Respondents Nos. 1, 2, 5, 7, 9, 10 and 13 who are convicted for the offences punishable under Section 326 read with Section 149 of the Indian Penal Code for causing injuries to deceased Govindbhai are ordered to undergo R.I. for three years and a fine of Rs. 3,000/-(Rupees three thousand only) each, in default to further undergo R.I. for six months.
48. Similarly accused respondents Nos. 7, 9 and 10 who are convicted for causing injuries to Arvindbhai for the offences punishable under Section 324 of the Indian Penal Code are ordered to undergo R.I. for two years and a fine of Rs. 2,000/- (Rupees two thousand only) each, in default, to further undergo R.I. for four months.
49. Rest of the respondents Nos. 1, 2, 5 and 13 who are convicted for the offences punishable under Section 324 of Indian Penal Code read with Section 149 for causing injuries to Arvindbhai are ordered to undergo R.I. for a period of one year and a fine of Rs. 1,000/ -(Rupees one thousand only) each and in default to further undergo R.I. for a period of three months.
50. Similarly accused Nos. 2, 5 and 13 who are convicted for the offence punishable under Section 326 of the Indian Penal Code for causing injury to Vinubhai are ordered to undergo R.I. for 3 years and a fine of Rs. 3,000/- (Rupees three thousand only) each, in default, to further undergo R.I. for six months.
51. Remaining accused Nos. 1, 7, 9 and 10 who are convicted for the offence punishable under Section 326 read with Section 149 of I.P.C. for causing injuries to Vinubhai are ordered to undergo R.I. for two years and a fine of Rs. 2,000/ - (Rupees two thousand only) each, in default, R.I. for four months.
52. Accused Respondents Nos. 1, 2, 5, 7, 9, 10 and 13 are ordered to undergo R.I. for one year and a fine of Rs. 1,000/-(Rupees one thousand only) each for the offence punishable under Section 148 of the Indian Penal Code, in default, to further undergo R.I. for three months. No separate order of sentence is passed for the offence punishable under Section 147 of the Indian Penal Code.
53. All the substantive sentences are to run concurrently.
54. Out of the aforesaid amount of fine, if recovered, an amount of Rs. 15,000/-(Rupees fifteen thousand only) be paid to the heirs of deceased Govindbhai, Rs. 10,000/-(Rupees ten thousand only) be paid as compensation to Arvindbhai and Rupees 13,000/- (Rupees thirteen thousand only) be paid as compensation to Vinubhai.
55. Accused to surrender within eight weeks from today as prayed for by the learned counsel for the respondent accused.