Order

Being aggrieved and dissatisfied by the judgment and order dated 11.11.1993 passed by the High Court of Gujarat at Ahmedabad in Crimi­nal Appeal No. 555 of 1988, confirming the judgment and order passed by the Addl. City Sessions Judge, 11th Court, Ahmedabad in Sessions Case No. 284/87, the accused have preferred this appeal. Appellant No. 1 was convicted for the offence punishable under Section 302 IPC and appellant Nos. 2 and 3 were convicted for the offences punishable under Section 302 read with Section 34 IPC. Appellant No. 1 was also convicted for the offence punishable under Section 135 of the Bombay Police Act.

2. It is the prosecution case that on 2.10.1987 at about 6.20 p.m., the deceased, Kantilal returned from his duty from Shardabai Hospital to his home. When his wife, PW 2 Savita, was going to serve food to him, appellant No. 1 came near their house and called him out. It is also the prosecution version that at that time, appellant Nos. 2 and 3 were also standing near the house of the deceased. When the deceased came out of the house, appellant Nos. 2 and 3 caught hold of the deceased and appellant No. 1 gave a knife blow to the deceased. Appel­lant No. 1 tried to give another blow but that blow landed on the left wrist of the deceased. On receiving the injury, the deceased Kantilal fell down and bled profusely. PW 2 pressed her ‘saree’ on the injuries received by the deceased and removed him to the Civil Hospital in a rickshaw, where he succumbed to his injuries. On the basis of the telephone Vardhi received from the head constable on duty from the hospital, PW 12, PSI Baldev Singh went to the hospital at 7.45 p.m. and recorded FIR of PW 2. After recording the FIR, he went to the scene of the offence, prepared panchnama, collected blood sample and recorded the statement of witnesses including Hemanginiben Kantilal PW 9. On the basis of the information, he went to the residence of the accused but the doors were locked. Thereafter, the accused were found near Dariapur Gate and from there they were brought to Dariapur Police Station. At the Dariapur Police Station panchnama, Ext. 43 was pre­pared in the presence of two witnesses. As per the said panchnama, the bush shirt worn by A1 was torn on the right sleeve and right hand collar all over. The torn portion of the bush shirt was bloodstained. With regard to A2 and A3, it was specifically stated that neither were there bloodstains on their clothes nor any injury was found on their persons. In the said panchnama, it has been specifically mentioned that on examining the person of A1 it was found that there were bruises on his neck and chest and the skin had come out and there were fresh injuries. For these injuries, A1 stated that the same injuries were caused to him due to the scuffle with the injured, Kantilal Manilal.

3. It is also the prosecution version that at about midnight, 00.30 hours, A1 had lodged FIR Ext. 59 stating that he was working as a peon in the Water Department of the Municipal Corporation. As the deceased was abusing him, he asked him to shop. On that, deceased got excited and caught hold of his bush shirt, pulled it and then tussle/quarrel between them ensued. In the process he suffered injuries. At that time, Jitendra, A2, and Mahesh, A3, came there, intervened and freed him. Thereafter the accused were arrested.

4. On the next morning, A1 was sent to the Civil Hospital and was examined by PW 1, Dr. Satish M. Pandya, Ext. 8. He found an injury on the left side of the breast which was a 3 cm bruise. He had recorded the history of the injury to the effect that during the scuffle A1 received it. After carrying out further investigation, the accused were charge-sheeted, tried and convicted as stated above.

5. At the time of hearing of the appeal, the learned counsel appearing for the appellants fairly submitted that he was not challenging the conviction of appellant No. 1 but submitted that the conviction of appellant Nos. 2 and 3 for the off