2013 Supreme(Guj) 231

GUJARAT HIGH COURT
Hon’ble Mr. Justice K.S. Jhaveri & Hon’ble Mr. Justice K.J. Thaker
Ashok Tapubhai Vaghela & Anr.
Versus
State of Gujarat
Criminal Appeal No. 1366 of 2007—Decided on 26/06/2013

Point in Issue :
Whether in the facts and circumstances of the case Judgment and order of conviction of appellants — Sustainable.

Headnote:[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 read with Section 34 — Bombay Police Act, 1951 (Bom. Act No. 22 of 1951) — Section 135(1) — Murder — Inflicting knife blows on deceased — Conviction — Appreciation of evidence — Finding of — Sustainability — Prosecution case is that accused appellant No. 1 inflicted knife blows on deceased and when ran for safety both accused appellants also ran after him and caught him — Deceased was caught hold by accused No. 2 and accused No. 1 had again inflicted injuries with knife on deceased — The deceased thereafter succumbed to the injuries — The injuries caused to the deceased are fully corroborated by the medical evidence — There were eye witnesses who have shown that deceased was assaulted at two places and about more than 17 injuries were found on the body of the deceased — None of the eye witnesses have turned hostile and their evidence is credit worthy — Looking to the evidence of the witnesses it inspires confidence — The FSL report medical evidence and the evidence of injured witness clearly established and proves the prosecution case satisfactorily — The nephew of the deceased was present at the scene of occurrence and his presence is fully proved — His evidence can not be discarded merely because he is a relative witness — In the case defence has not been able to even levy foundation to show that they are falsely implicated the reason being that the knife was discovered at the instance of Accused No. 1 — Court having assessed the evidence threadbare faced completely in agreement with the judgment and order passed by trial Court.

       Held :

       Looking to the evidence of the witnesses, it inspires confidence. The accused is not be able to prove to this Court that accused can be given benefit of doubt. The FSL report, medical evidence and the evidence of injured witness, the accused No. 1 sustained injuries. The scene was such that the nephew of deceased was scared and his presence at the place of occurrence is proved beyond doubt. In light of the latest decision of the Apex Court in the case of State of U.P. vs. Naresh & Ors., reported in 2011 CriLJ 2162, the evidence of related witness cannot be discarded solely on ground of his relationship with victim of offence, and there was no major contradiction. In this case, the defence has not been able to even lay down foundation to show that they are falsely implicated the reason being that the knife was discovered at the instance of accused No. 1. The FSL report shows the blood marks of both the accused. In this case, there were eye-witnesses who have shown that the deceased was assaulted at two places and about more 17 injuries were found on the body of the deceased. None of the eye-witness have turned hostile except the panch witness and their evidence is credit-worthy. The presence of eye-witness cannot be doubted though doubt is sought to be created by the learned advocate for the appellants. It appears that accused No. 1 and 2 were there at the place of offence. They have hatched the conspiracy with accused No. 3, however, accused No. 3 has been given benefit of doubt. The evidence goes against the accused and, there is nothing on record to show that they were not present at the scene of offence. [Para 16]

       Court has assessed the evidence threadbare. Though the panch witness have turned hostile as held above and scene of offence shows blood, that is of the deceased and the knife was with blood stain. The PM report also shows that the death was possible with the injuries which were caused by the sharp cutting weapon which was found from accused No. 1. In the totality of all the evidences, it will not be appropriate or proper to hold that the learned trial Judge has committed an error in appreciating the evidence and convicting the accused for life. [Para 18]

       Law Laid Down :

       In order to attract the provisions of Section 34 IPC the condition precedent is that the act must be done by more than one person, they must have shared the common intention for commission of the offence — Further it is not necessary that a separate act must be done by each accused to be responsible for the ultimate criminal act.