1993 Supreme(SC) 1241

SUPREME COURT OF INDIA
A. M. Ahmadi and S. P. Bharucha, JJ.
State of Gujarat - Appellant
Versus
Patel Javerbhai Babaldas and others - Respondents
WITH
Patel Babubhai Babaldas and others - Appellants
Versus
State of Gujarat - Respondent
Criminal Appeals Nos. 337 with 410 of 1981
Decided On : 24-03-1993

Headnote:

Medical evidence - Injured survived to give evidence – Jurisdiction - Deceased succumbed to injuries on same day but the injured survived to give evidence. The First Information Report in regard to the incident was lodged who was accompanied by one - It is alleged that he had lost the election against accused therefore, on inimical terms. The prosecution placed reliance on the eye- witness account daughter of the deceased sister of the deceased clothes of were stained with blood, presumably because he had assisted the injured while they were being taken to the Hospital. In addition to the ocular evidence of the aforesaid eye-witnesses, there was evidence who had examined the injured PW 8 and performed the autopsy on the dead body of the deceased – Held, In case before us on a day prior to the actual occurrence, there was a settlement between the parties, as stated by us in the earlier part of our judgment - Medical evidence does not clearly disclose that knife and knife alone could have caused the three fatal injuries on the deceased. In this behalf, medical evidence is that three fatal injuries on the deceased, being injuries could have been caused more by a dagger than by a knife. Medical evidence is also further clear to show that the fatal injury could not have been caused by knife, article 13 - Under circumstances, we are not inclined to take view that three accused persons had the common intention to cause death of deceased - It may significantly be noticed at this stage that not a single fatal injury was noticed on the deceased, which could have been caused by or by a stick. If accused a pre-arranged plan or the requisite for causing the homicidal death of the deceased by entertaining the common intention, then some fatal injury could have been caused by or a stick - How is it, that there is not a single fatal injury on the deceased which could have been caused by a How is it, that there is not a single fatal injury on the deceased which could have been caused by a stick? How is it, that the doctor says that the fatal injury could have been caused by a dagger and the dagger alone, and not a knife - Answers to the questions create a doubt in our minds, that the three accused persons did entertain the common intention to cause grievous hurt to the two victims We find it difficult to persuade ourselves to this line of reasoning. There is cogent evidence that the accused persons were waiting for the deceased with dangerous weapons. As soon as the deceased and PW 8 arrived they were assaulted with those weapons and merely because there was no fatal blow caused by or stick it cannot be said that the common intention was not to murder when in fact three fatal stab wounds were indisputably inflicted on the deceased. The medical evidence that the fatal injuries could not have been caused by article 13, is mainly on account of the Doctors notion regarding the shape of the weapons - Doctor was of the view that while a dagger are double edged weapons with a straight blade, a knife has a curved blade. It is for this reason that he deposed that injuries are possible by tip of though not by a single edged weapon. But then the assailants were armed with as well as a knife - Be that as it may even if it is assumed that knife article 13, was not the weapon used in the commission of the crime that does not make any difference for the reason that the ocular evidence of the eye- witnesses is clear and cogent that the accused persons were armed with a knife - It may be that in the course of investigation that weapon may not have been traced and another weapon may have been taken to be the one which was used in the commission of the crime by the Investigating Officer, but that should not make any difference for the reason that there were admittedly three fatal stab wounds on the deceased - Besides the medical evidence is not in conflict with the ocular evidence of the eye-witnesses. In this view of the matter, we are of the opinion that the High Court was wrong in the view it took in regard to the common intention of the assailants. We have no manner of doubt that the common intention was to cause the death of the victims – Appeal dismissed