BALWANTBHAI B. PATEL v.

STATE OF GUJARAT & ORS. (Criminal Appeal No. 45 of 2004)

SEPTEMBER 09, 2009 [HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

[2009] 14 (Addl.) S.C.R. 306

The following Order of the Court was delivered by

O R D E R

1.  This  appeal,  by  way  of  special  leave,  arises  out  of  the  

following facts.

2. On 30th November 1993, at about 9 p.m., Ghulam Hussain  

Ansari, Sagir Ahmed Ansari, since deceased, Gyasuddin Ahmed  

Ansari and Kitabuddin Ansari were sitting at their house in Falia,  

District Bharuch, when the three accused Thakorbhai Somabhai,  

Jagdishbhai  Nanjibhai  Pateland  Balwantbhai  Patel,  the  present  

appellant, arrived atthat place in a drunken condition. They abused  

Sagir  Ahmed  Ansari  and  others  sitting  there  and  when  they  

objected, Thakorbhai inflicted a knife blow in the abdomen of Sagir  

Ahmed  and  another  knife  blow  on  the  left  side  of  his  head.  

Gyasuddin  Ansari  and  Kitabuddin  Ansari  intervened  so  as  to  

rescue  Sagir  Ahmed  whereupon  Balwantbhai,  the  present  

appellant,  caught  hold of  Gyasuddin  and Jagdishbhai  inflicted a  

blow on his head with an axe. The appellant thereafter ran away  

hurling abuses on the other side. Sagir Ahmed was carried to Dr.  

Patel's hospital at Ankleshwar and from there to the Civil Hospital  

at Bharuch. He died soon after he reached the Civil hospital. On  

the completion of the investigation, Thakorbhai was charged for an

offence  punishable  under  Section  302  read  with  114  and  

Jagdishbhai  and  Balwantbhai  were  charged  under  Section  302  

and, in the alternative, 302 read with Section 34 of the IPC and  

several  other  Sections as well.  The trial  Court  convicted all  the  

accused  on  the  basis  of  the  evidence  of  the  three  primary  

witnesses,  Kitabuddin  Ansari,  Gyasuddin  Ansari  and  the  

complainant  Ghulam Hussain  Ansari,  also  an eye witness.  The  

judgment of the trial Court was confirmed in appeal by the High  

Court. The present appeal has been filed only by the third accused  

Balwantbhai  B.  Patel,  as it  appears that  the other  two accused  

were satisfied with the judgment of the High Court.

3. The learned counsel for the appellant has raised only one  

argument during course of the hearing. He has pointed out that the  

trial Court as well as the High Court had been influenced by the  

fact that the appellant herein had caught hold of Gyasuddin Ahmed  

Ansari,  PW which had enabled Jagdishbhai,  the co-accused,  to  

cause a simple injury on him. He has further pointed out that the  

injur report of Gyasuddin Ahmed Ansari was not on record which  

clearly falsified the prosecution story. He has also submitted that,  

in  any  case,  the  story  of  catching  hold  of  a  witness  or  of  a  

deceased or an allegation of exhortation made by an accused was  

invariably used to cast the net wide with respect to the incident. He  

has  further  pointed  out  that  three  injuries  were  caused  by  

Thakorbhai,  the  first  accused,  to  Sagir  Ahmed  and  one  simple  

injury by Jagdishbhai, the second accused, to Kitabuddin Ansari,  

which  was in  the  nature  of  a  swelling  and  no  injury  had  been  

attributed to the present appellant which showed that he could not  

have been roped in by virtue of Section 34 of the IPC and the only

role attributed to the appellant herein was that of catching hold of  

Gyasuddin Ahmed, PW.

4. We have heard the learned counsel for the parties. We find  

that  there  is  no  evidence  to  show  that  Gyasuddin  Ansari  had  

received any injury as his injury statement is not on record. The  

finding, therefore, of the High Court about the appellants presence  

appears to be on shaky foundations. We are also not unmindful of  

the fact that allegations of catching hold of an attack victim or of an  

exhortation are invariably made when the number of injuries on the  

injured party do not co-relate to the number of accused or in the  

alternative in an attempt to rope in as many persons as possible  

from  the  other  side.  We  also  observe  that  the  appellant  has  

already undergone more than six years of the sentence.

5. For all these reasons, we find that the order of the High Court is not  

sustainable. We allow the appeal and acquit the appellant.