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CASE NO.: Appeal (crl.) 635  of  1992

PETITIONER: TAKHAJI HIRAJI

       Vs.

RESPONDENT: THAKORE KUBERSING CHAMANSING & ORS.

DATE OF JUDGMENT:       02/05/2001

BENCH: CJI, R.C. Lahoti & Doraiswamy Raju

JUDGMENT:

WITH Crl.Appeal No. 636 of 1992

J U D G M E N T

R.C. Lahoti, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Eight  accused persons were charged for having committed offences  under  Sections 147, 148, 302/34/149,  307/34/149, 302/307/109, 325, 325/34, 324 and 324/34 of the Indian Penal Code.   The Trial Court acquitted accused nos.3, 4, 6, 7 and 8  of  all  the offences charged and set  them  at  liberty. Accused  nos.   1,  2 and 5 were held  guilty  on  different counts  as  will  be  stated  shortly  hereinafterwards  and convicted  and  sentenced.  They preferred an appeal  before the  High  Court  of Gujarat which was heard by  a  Division Bench.  By the impugned judgment dated 14.12.1983 the appeal has  been allowed and all the three accused-respondents have been  acquitted.   The complainant, Takhaji Hiraji  who  had lodged  the first information report of the incident and was himself  an  injured  person has preferred  this  appeal  by special leave putting in issue the acquittal of accused nos. 1,  2 and 5.  Later on the State has also filed an appeal by special leave.  Both the appeals have been heard together.

   A small village Dugrasan, Taluka Shihori in the State of Gujarat witnessed a joyful evening of 23rd March, 1980 being converted  into a horrific tale of crime where violence  was let  loose  between two communities, otherwise friendly  and living  together happily , resulting into death of 3 persons and  simple  and  grievous injuries to several  others.   It appears that the village has population consisting mainly of Thakores  and  Kolis.   Thakores treat themselves  as  upper caste  and look down upon Kolis as their inferiors.  On  the date  of  incident, in the evening, the village  people  had collected  in  the chowk, an open space in the heart of  the village to witness the performance of tight rope dancers.  A rope  is tied tightly on two poles installed at a reasonable distance from each other.  On the tight rope moves a dancer. The performance includes tight rope walking with utensils on the head of the dancer.  The performer is rewarded by making

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a bid amongst the viewers;  one whos bid is the highest has the  honour  of lifting and putting down the  utensils  from over  the  head  of  the dancer.  The highest  bid  is  thus symbolic  of  honour  to  the bidder and  a  reward  to  the performer.   Witnessing the performance were Thakores of the village and so also the Kolis.  Two petromax were burning to provide  illumination.   As the show neared its end  Thakore Magansing  Dadusing, the accused no.2 made a bid for lifting the utensils.  But the deceased, Amuji Narsangji Koli made a higher  bid which was protested to by Gajrabai, the  accused no.5  saying  why  the Kolis were bidding  higher  than  the Thakores.   There was a heated exchange of words followed by a  quarrel and then knife and dagger being stretched out and wielded.

   According to the prosecution Magansing, accused no.2 had taken  out a knife from his waist by which he dealt blows on Sabuji  Viraji and Amuji Narsangji.  Kubersing, accused no.1 gave  a  dagger  blow  in the abdomen  of  Amuji  Narsingji. Kubersing  also  caused  a stab wound to  Narsingji  Hiraji. Magansing,  accused no.2 also gave a knife blow on the  back of  Amuji Narsingji.  Magansing also caused injury to Sabuji in  his abdomen.  Accused 1 and 2 caused injuries by  sharp- edged  weapons to other witnesses also belonging to  Thakore community  who  tried to intervene.  Gajrabai, accused  no.5 gave a stick blow to Viraji Devaji causing a fracture of his hand.   Other  accused, excepting nos.1 and 2 were  throwing katars,  sticks, clubs etc.  by which several other  persons got  injured.   All  other  villagers  and  group  of  dance performers  ran away from the chowk leaving the injured  and the  accused persons behind.  After causing several injuries the  accused  persons left the chowk for their houses.   The injured  persons  belonging to Thakore community were  being taken to their houses but some of them found it difficult to walk.   They  sat down on the otta of Kalkamata  Temple.   A camel-cart  was summoned.  On it all the injured were seated and  taken  to Shirohi where they reached the dispensary  at about 11.30 p.m.  Narsingji Hiraji succumbed to his injuries on the way.  Sabuji Viraji was taken to Mehsana where he too died  on account of his injuries.  Amuji Narsangji was taken to  Deesa  and he died thereat.  Takhaji Hiraji one  of  the injured  persons,  leaving  behind   the  seriously  injured persons  in  the  hospital  at Shirohi went  to  the  police station  and  lodged  FIR  of   the  incident.   The  police registered  crime  under Sections 302,307 and several  other sections   of   the   Indian   Penal  Code   and   commenced investigation.   Autopsies  on the dead bodies of  Narsangji Hiraji,  Sabuji  Viraji and Amuji Narsangji were  conducted. All other injured persons were also medico-legally examined. It  is  not  necessary for us at this stage to  notice  such details  of  the  incident  as  have  become   insignificant consequent  upon  5  of the 8 accused  persons  having  been acquitted  by  the  Trial Court and their  acquittal  having remained  unchallenged.  We will only notice such details of the prosecution case as are relevant and significant for the purpose  of  testing legality of the acquittal of the  three accused- respondents as recorded by the High Court.

   Sabuji  Viraji  was  examined by Dr.  Varvadia,  PW2  on 24.3.1980 at about 12.15 a.m.  He found one incised wound on the  left  side  of upper part of abdomen,  another  incised wound  on  the left palm and the third incised wound on  the scalp.  Sabuji Viraji was referred to medical officer, Deesa for  further treatment.  He was transferred to Mehsana where he  expired on 30.3.1980.  The post-morten was conducted  by

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Dr.  Solanki, PW4.  He found the same 3 injuries on the body of  the  victim which were ante-mortem.  The cause of  death was  acute  peritonitis caused by the injuries.   Thus,  the death of Sabuji Viraji was homicidal.

   Amuji Narsangji was examined by Dr.  Patel, PW5 of Deesa on  24.3.1980 at 1.45 a.m.  The condition of the patient was precarious  and he succumbed to his injuries on the table at about  2  a.m.   The post-mortem was also conducted  by  Dr. Patel.   Amuji Narsingji had sustained one stab wound 4 cm x 2  cm on the right side of epigastrium deep upto  peritoneum cavity.   Intestinal loops were cut and were coming out from the  wound.  There were 8 other incised wounds on his chest, left  elbow,  forehead and perietal region.  Internally  the superior mesenteric artery was cut off and peritoneum cavity was  full  of  blood  and  upper  part  of  intestines  were completely  out.   It is this injury which had proved to  be fatal.  All the injuries were ante- mortem.

   Post-mortem  on  the dead body of Narsingji  Hiraji  was conducted by Dr.  Amin of Deesa, PW20.  He found the patient having  suffered  one stab wound on anterior abdominal  wall above  umbilicus deep to peritoneum cavity.  Peritoneum  was full  of  blood.   This  stab wound was  sufficient  in  the ordinary  course of nature to cause death.  The patient  had suffered   two   other  incised   wounds  in  jejunum   with perforations thereof.  All the injuries were ante-mortem.

   There  are  5  stamped  prosecution  witnesses  who  had sustained injuries.  Gajaji Viraji, PW10, Takhaji Hiraji, PW 8  and Amuji Khumaji, PW 20 were examined by Dr.   Varvadia, PW2.  Gajaji Viraji had sustained two incised wounds, one on the  upper  part  of chest and the other on the  left  index finger.   Takhaji Hiraji had suffered two incised wounds  on forehead and abdomen and one stab wound on the left loin and one abrasion on left elbow.  Amuji Khumaji was found to have sustained  defused  swelling  over  the  left  forearm  with suspected fracture.  However, x-ray examination conducted by Dr.  Sutaria PW7 did not confirm any bony injury suffered by Amuji Khumaji.

   Dr.   Sutaria,  PW7, had examined Viraji Devaji  PW  15. Viraji  Devaji  had diffused swelling over the left  forearm with  fracture  of left radius and one abrasion on the  left forearm.   The former was a grievous injury while the latter was  a  simple one.  Gambhirji Narsangji was found  to  have sustained  an incised wound on the right side of the  chest. The   patient  was  admitted   for  treatment  indoors   and discharged in 11 days.

   Thus,  there  were  three  persons   who  had  met  with homicidal  death and five persons injured on the side of the prosecution  party.   The  five  injured  were  examined  as prosecution  witnesses.  The medico-legal examination of the injured persons had taken place little after midnight on the day  of  the incident itself.  The duration of the  injuries sustained  by  all  the  injured persons as  opined  by  the doctors conducting medico-legal examinations, coincided with the time of the incident.

   Here  itself it will be relevant to mention that some of the  accused  persons had also sustained injuries  and  they were  medico-  legally  examined between midnight  and  2.10 hours   in  the  early   morning  of  24.3.1980.   Kubersing Chamansing,  accused No.1, Maganji Duduji, accused No.2  and

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Gajraben   Maganji,  accused  No.5   were  examined  by  Dr. Varavaida,  PW2.  Maganji Daduji was found to have sustained in all twenty injuries.  There were two incised wound on the scalp,  six  contusions,  five abrasions  and  two  contused lacerated  wounds  on his person spread over the neck  right arm  and back.  He also had a fracture of left index finger. All the injuries except the two on scalp were caused by hard and   blunt  weapon.   Gajraben,   accused  No.5,  had   six contusions,  four contused lacerated wounds and one abrasion on  different  parts  of her body.  Subaben  alias  Shivuba, accused No.7 and Mungiben, accused No.6 were examined by Dr. Keshavlal  Patel,  PW3.   Subaben   alias  Shivuba  had  one abrasion and one contusion on left hand.  Mungiben was found to  have  a weal mark on left shoulder joint and  tenderness over  right  and  left  knee   joints.   Thus  the  injuries sustained  by  accused Nos.  1, 6 and 7 were simple,  rather minor injuries.

   When  PW10 reached the police station for lodging  first information  report of the incident, Kubersing, accused No.1 was  already  present at the police station and he had  also lodged a report of the incident, Ex.69.

   At the trial, there were 21 witnesses examined on behalf of  the  prosecution.  These include 5 eye witnesses of  the@@          JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ incident  namely, Gajaji Viraji PW 10, Takhaji Hiraji PW  8,@@ JJJJJJJJJJJJJJJJJ Amuji  Khumaji  PW  11, Viraji Devaji,  PW15  and  Gambhirji Narsangji  PW9.   .   All these  witnesses  have  themselves suffered  injuries and therefore their presence at the place of the incident cannot be doubted.  Apart from this there is dying  declaration  of Sabuji, deceased, Ex.28, recorded  by Pravinchandra Gandhi, the Executive Magistrate at 10.20 p.m. on  25.3.80 and yet another dying declaration Ex.60 recorded by  Constable Kesharam, PW16, a little before midnight.  The trial  court minutely examined the testimony of all the  eye witnesses and found them worthy of reliance.  The defence of the accused persons was one of denial so far as the injuries caused  on  the  side  of  the  prosecution  are  concerned. However,  they  pleaded that the prosecution party  was  the aggressor  and  had caused multiple injuries to five of  the accused  persons and that too near the house of the  accused persons  which  is situated at a distance of about 200  feet from the chowk.  The learned Sessions Judge, having minutely examined,  marshalled  and appreciated the  entire  evidence available  on  record, found the prosecution version  to  be truthful  and negated the defence.  It will be useful to sum up  briefly the findings arrived at by the learned  Sessions Judge :-

   (i)  There were blood stains and blood stained earth  in the  chowk.  The petromax at the scene of offence was  lying broken.  According to the FIR, Ex-69, lodged by accused No.1 and  produced  by  PW21, head constable, some  incident  had taken  place at the chowk and when the accused had left  the chowk  and  reached their home, then they were assaulted  by the  prosecution  party.  This happening of the incident  in the  chowk  was substantiated by the circumstances  and  was partly  admitted  by  the  defence also  in  their  earliest version  of the incident i.e.  the FIR lodged by one of  the accused  persons.  However, no trace of blood and no visible signs  of violence were found near the houses of the accused persons and, therefore, it could be safely inferred that the incident  had taken place only in the chowk and not near the

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houses of the accused persons;

   (ii) The prosecution witnesses and the three deceased on the  one hand and the accused persons on the other hand  did not  have  any previous enmity.  They were residents of  the same  village.  The incident had erupted at the spur of  the moment.   It was a case of sudden fight.  It cannot be  said that  the  accused persons had any common intention to  beat anyone or that they had any common object for which they had formed an unlawful assembly.  Their presence in the chowk to witness  the  show  was quite natural  and,  therefore,  the question  of convicting anyone with the aid of Section 34 or Section 149 of the IPC does not arise;

   (iii)  Thakore  Kubersing Chamansing, accused  No.1,  is proved  to have caused a dagger blow in the abdomen of Amuji Narsingji  which  proved  to be fatal.  He is liable  to  be convicted under Section 302 IPC.

   (iv)  Thakore  Kubersing  Chamansing,  accused  No.1  is guilty  of causing a dagger blow in the abdomen of Narsingji Hiraji  which blow proved to be fatal and therefore  accused No.1  is  responsible for causing death of Narsingji  Hiraji and  hence  liable to be convicted under section 302 IPC  on this head of charge too.

   (v)   Thakore  Magansing  Dadusing,   accused  No.2   is responsible  for causing the incised wound to Sabuji  Viraji in  his abdomen resulting in his death.  He is liable to  be convicted under Section 302, IPC.

   (vi)  Thakore Magansing Dadusing Accused No.2 had caused an  incised  wound  2x¼x¼  on  right  side  of        chest  of Gambhirji  Narsangji, the only injury suffered by him.   The injury  caused was by a dagger blow.  However, the nature of the  injury was simple.  Accused No.1 was, therefore, liable to  be convicted under Section 324 of IPC for causing simple hurt by sharp weapon to Gambhirji.

   (vii)  Gajaji Viraji had sustained two injuries by sharp cutting weapon at the hands of Kubersing, accused No.1.  The@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ injuries  were  simple  in nature.  The  accused  No.1  was,@@ JJJJJJJJJJJJJJ therefore, responsible for causing simple injuries to Gajaji Viraji  by  means  of  sharp   cutting  weapon,  an  offence punishable under Section 324 of the IPC.

   (viii)  Maganji, accused No.2 had given a knife blow  to Takhaji  Hiraji,  PW8.  The injuries were simple in  nature.@@                   JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Maganji,   accused  No.2,  was,   therefore,  liable  to  be@@ JJJJJJJJJJJJJJJJJJ convicted  under  Section 324 of the IPC for causing  simple injuries by sharp weapon to Takhaji Hiraji (para 27).

   (ix)  The authorship of injuries caused to Amuji Khumaji was  not established and, therefore, none of the accused was liable  to be convicted for causing simple injuries by sharp weapon to Amuji Khumaji.  (para 28)

   (x)  Abrasion on the left forearm with diffused swelling and  fracture  of  the left radius on the person  of  Viraji@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Devaji  were caused by blunt weapon like a stick by  Thakore@@

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JJJJJJJJJJJJJJJJJJJJJJ Gajrabai,  accused  No.5.  She was, therefore, liable to  be convicted under Section 325 of the IPC.

   (xi)  As  to  accused  Nos.   3,  4  and  6  to  8,  the prosecution  case  was that they had indulged into  throwing katars  and sticks etc.  However, the prosecution  witnesses were not consistent about the part played in the incident by these  accused persons.  Their presence at the place of  the incident,  in  the facts and circumstances of the case,  was innocuous  and,  therefore,  by their mere presence  at  the place  of  the  incident, they could not be held  liable  to conviction  alongwith other accused persons with the aid  of Section 34 or 149 of IPC.

   The  most important plea raised on behalf of the accused persons  before  the  trial court was that  the  prosecution witnesses  did  not offer any explanation for  the  injuries sustained by the accused persons.  This showed, according to the  defence,  that  the genesis of the incident  was  being concealed  by the prosecution witnesses and the whole  truth was  not  placed before the court which lent support to  the defence  version  that the incident, in  all  probabilities, took  place in the manner and at the place suggested by  the defence,  that is to say, the incident had taken place  near the  houses  of  the  accused   persons  where  the  persons belonging  to  prosecution party were aggressor.  The  trial court  opined  that in so far as the injuries  sustained  by accused  No.1  and  5  to 7 are  concerned,  they  were  all injuries  of very minor nature and their non-explanation did not  cause any infirmity in the prosecution case.  Magansing Dadusing,  the accused No.2, had sustained several  injuries of  which  two were incised wound and one was a fracture  on the  finger.  The trial court held that several persons were participating  in  the  incident and  several  persons  were injured.  In such a melee it was difficult to exactly locate how  the  injuries  on the person of the accused  No.2  were sustained.   The  accused No.2 himself does not suggest  how and  in  what  manner, he sustained  injuries.   Katars  and sticks  were  thrown during the incident.  In  the  peculiar facts and circumstances of the case, mere non-explanation of the  injuries on the person of accused No.2 was not fatal to the  prosecution case.  On the abovesaid findings, the trial court convicted the three accused respondents as under:- (1) The  accused  No.1 was convicted under Section 302  IPC  for committing  murder  of  Amuji  Narsangji  and  sentenced  to imprisonment for life;

   (2)  The accused No.1 was also convicted for  committing murder of Narsangji Hiraji and sentenced to imprisonment for life.

   Both  the  substantive  sentences were directed  to  run concurrently.

   (3)  Accused  No.1 also convicted under Section 324  IPC for voluntarily causing hurts to Gajaji Viraji and Gambhirji Narsangji but no separate sentence was passed.

   (4)  Accused No.2 was convicted under Section 302 of the IPC for committing murder of Sabuji Viraji and was sentenced to imprisonment for life.

   (5)  The  accused No.2 was also convicted under  Section 324  of  the IPC for causing hurt to Takhaji Hiraji  but  no

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separate sentence was passed.

   (6)  The accused No.5 was convicted under Section 325 of the  IPC  for  voluntarily causing grievous hurt  to  Viraji Devaji.   However,  she  was  ordered   to  be  released  on probation  of good conduct on executing a bond of Rs.1,000/- with  one surety for a period of one year for keeping peace. She  was  also  ordered to pay compensation of  Rs.500/-  to Viraji Devaji.

   (7)  The accused Nos.  1, 2 and 5 were acquitted of rest of the charges.

   (8) The accused Nos.  3, 4, 6, 7 and 8 were acquitted of all the charges.

   The three convicted accused persons preferred an appeal, as already stated.  The Division Bench of High Court, has in its  brief  judgment, acquitted the accused  persons  mainly influenced  by two considerations.  Firstly, the High  Court has felt that as there was only one incident which had taken place  in  the chowk, the injured accused persons must  have sustained  injuries  during the course of the same  incident and  as  the prosecution witnesses did not explain  how  the accused  persons  sustained  injuries, it  could  be  safely inferred that the prosecution witnesses were suppressing the genesis  of the incident.  The High Court has also  observed that  looking  to  the numerous injuries  sustained  by  the accused  persons  it  can reasonably be  inferred  that  the accused  persons  were  in grave apprehension  of  death  or grievous  injury  being caused to the accused persons or  to anyone  or more of them and hence they were entitled to  use weapons  for  their own protection.  They cannot be said  to have  exceeded their right of self-defence.  Another  reason which  has  prevailed  with the High Court  is  that  though several  persons  were present at the place of the  incident but  the  prosecution  has   not  examined  any  independent witness.   The  eye  witnesses  examined on  behalf  of  the prosecution  are related with the deceased and the  injured. The  combined  effect  of  these two factors  was  that  the testimony of the witnesses could not be believed.  As to the dying  declaration,  the  High Court has observed  that  the dying  declaration also does not explain the injuries on the persons  of  the accused persons and coupled with  the  fact that  the  version of the prosecution as given in the  court was being disbelieved, the dying declaration could not alone form the basis of conviction.  On these findings, the appeal has  been  allowed and the respondents acquitted.  The  High Court  has  not entered into appreciation of  evidence.   No effort  has  been made by the High Court at marshalling  the evidence  and assessing the intrinsic worth of the testimony of  the  prosecution  witnesses which, as  we  have  already noted,  were the persons undoubtedly present at the place of the incident having themselves suffered injuries.

The  first question which arises for consideration is  what is  the  effect of non-explanation of injuries sustained  by the  accused persons.  In Rajendra Singh & Ors.  Vs.   State of  Bihar,  (2000) 4 SCC 298, Ram Sunder Yadav &  Ors.   Vs. State  of  Bihar, (1998) 7 SCC 365 and Vijayee Singh &  Ors. Vs.   State  of U.P., (1990) 3 SCC 190, all  3-Judges  Bench decisions,  the view taken consistently is that it cannot be held  as a matter of law or invariably a rule that  whenever accused  sustained  an  injury in the same  occurrence,  the prosecution  is  obliged  to explain the injury and  on  the

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failure  of  the prosecution to do so the  prosecution  case should  be  disbelieved.   Before   non-explanation  of  the injuries  on  the  person  of the  accused  persons  by  the prosecution  witnesses may affect the prosecution case,  the court has to be satisfied of the existence of two conditions :  (i) that the injury on the person of the accused was of a serious  nature;  and (ii) that such injuries must have been caused   at  the  time  of   the  occurrence  in   question. Non-explanation  of  injuries assumes  greater  significance when  the  evidence  consists  of  interested  or   partisan witnesses  or  where  the  defence  gives  a  version  which competes in probability with that of the prosecution.  Where the evidence is clear cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained  by  the  prosecution cannot by itself be  a  sole basis  to reject the testimony of the prosecution  witnesses and consequently the whole of the prosecution case.

   The  High Court was therefore not right in  overthrowing the  entire  prosecution  case for  non-explanation  of  the injuries  sustained by the accused persons.  The High  Court ought  to have made an effort at searching out the truth  on the  material  available on record as also to find  out  how much  of  the prosecution case was proved beyond  reasonable doubt and was worthy of being accepted as truthful.

   So  is the case with the criticism levelled by the  High Court  on  the prosecution case finding fault therewith  for@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ non-examination  of independent witnesses.  It is true  that@@ JJJJJJJJJJJJJJJJJJJ if a material witness, which would unfold the genesis of the incident  or an essential part of the prosecution case,  not convincingly  brought to fore otherwise, or where there is a gap  or  infirmity in the prosecution case which could  have been  supplied  or  made good by examining a  witness  which though  available is not examined, the prosecution case  can be  termed as suffering from a deficiency and withholding of such  a  material witness would oblige the Court to draw  an adverse inference against the prosecution by holding that if the  witness  would  have been examined it  would  not  have supported  the  prosecution  case.   On the  other  hand  if already  overwhelming evidence is available and  examination of other witnesses would only be a repetition or duplication of  the  evidence already adduced, non-examination  of  such other  witnesses  may not be material.  In such a  case  the Court ought to scrutinise the worth of the evidence adduced. The  court of facts must ask itself __ whether in the  facts and  circumstances of the case, it was necessary to  examine such  other  witness,  and if so, whether such  witness  was available to be examined and yet was being withheld from the court.   If  the answer be positive then only a question  of drawing  an  adverse inference may arise.  If the  witnesses already  examined are reliable and the testimony coming from their  mouth is unimpeachable the Court can safely act  upon it  uninfluenced  by the factum of non-examination of  other witnesses.   In  the present case we find that there are  at least  5  witnesses  whose  presence at  the  place  of  the incident  and  whose  having  seen the  incident  cannot  be doubted  at  all.  It is not even suggested by  the  defence that  they were not present at the place of the incident and did  not  participate  therein.  The injuries  sustained  by these  witnesses  are  not  just  minor  and  certainly  not self-inflicted.  None of the witnesses had a previous enmity

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with  any of the accused persons and there is apparently  no reason  why  they  would  tell a lie.  The  genesis  of  the incident  is  brought out by these witnesses.  In fact,  the presence of the prosecution party and the accused persons in the chowk of the village is not disputed.  How the vanity of Thakores  was hurt leading into a heated verbal exchange  is also  not  in dispute.  Then followed the assault.   If  the place of the incident was the chowk then it was a sudden and not  pre-meditated  fight between the two parties.   If  the accused  persons had reached their houses and the members of the  prosecution  party  had followed them  and  opened  the assault  near the house of the accused persons then it could probably be held to be a case of self-defence of the accused persons  in  which  case non- explanation  of  the  injuries sustained   by  the  accused   persons  would  have  assumed significance.    The   learned  Sessions    Judge   has   on appreciation  of  oral and circumstantial evidence  inferred that the place of the incident was the chowk and not a place near  the houses of the accused persons.  Nothing more could have  been revealed by other village people or the party  of tight  rope  dance  performers.  The evidence  available  on record  shows  and that appears to be very natural, that  as soon  as  the melee ensued all the village people and  tight rope  dance performers took to their heels.  They could  not have  seen the entire incident.  The learned Sessions  Judge has   minutely  scrutinised  the   statements  of  all   the eye-witnesses  and found them consistent and reliable.   The High  Court made no effort at scrutinising and analysing the ocular  testimony so as to doubt, if at all, the correctness of  the  several findings arrived at by the Sessions  Court. With  the assistance of the learned counsel for the  parties we  have  gone  through  the evidence  adduced  and  on  our independent   appreciation   we   find   the   eye-witnesses consistent  and reliable in their narration of the incident. In  our opinion non-examination of other witnesses does  not cast any infirmity in the prosecution case.

   Thus,  we  are  of the opinion that the two  grounds  on which  the  High  Court  has reversed the  judgment  of  the Sessions  Court  were  irrelevant and could  not  have  been relevant  for such reversal.  Justice has been made  sterile by exaggerated adherence to rule of proof.  Benefit of doubt must always be reasonable and not fenciful.

   As  we  have already stated, we have ourselves  minutely scrutinised  the  evidence available on record.  We  do  not find any infirmity in the findings arrived at by the learned Sessions  Judge fixing the liability on the accused  persons by pointing out the specific overt act attributed to each of the  accused persons.  However, on the determination of  the nature  of offence committed by one of the accused  persons, we  are at variance with the finding of the learned Sessions Judge which we will state a little later.  We do not deem it necessary  to re-state in very many details our own findings as to the exact role played by the three accused respondents inasmuch  as they are the same as have been recorded by  the learned  Sessions Judge.  However, briefly we would indicate what we have found from the appreciation of evidence.

   Kubersing,  accused  no.1 dealt a blow by dagger on  the abdomen  of Amuji Narsingji.  This injury proved fatal.   It was  sufficient  in the ordinary course of nature to  cause. All  the witnesses have attributed this fatal injury on  the person  of Amuji Narsingji to Kubersing accused no.1.   Thus he has been rightly convicted of an offence punishable under

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Section 302 IPC for causing death of Narsingji Hiraji.

   Narsingji  Hiraji  had sustained only one stab wound  in the  abdomen.   The weapon had penetrated deep  cutting  the intestines  which  shows  the force by which  the  blow  was dealt.   The author of this injury is Kubersing accused no.1 as  deposed  to by all the witnesses.  This injury was  also sufficient  in the ordinary course of nature to cause death. Kubersing  accused  no.1  is  therefore  guilty  of  offence punishable  under Section 302 IPC also for causing the death of Narsingji Hiraji.

   Dr.   Vervadia  PW2,  who   examined  Sabuji  Viraji  on 24.3.1980  at  12.15  a.m.  found him to  have  sustained  3 injuries  of  which the incised wound on left side of  upper part  of abdomen was 1x¼x¼.  This injury is attributed to Magansing,  accused  No.2 by all the prosecution  witnesses. They  are consistent on this point and not shaken in  cross- examination.   The  dying  declaration, Ex.28, made  by  the deceased  Sabuji and recorded by Magistrate also  attributes authorship  of  this  injury  to  Magansing,  accused  No.2. However,  what has to be really determined is the nature  of this  injury.  In his statement Dr.  Vervadia has not stated the  nature  of  the injury caused.  Sabuji Viraji  died  on 30.3.1980.   Post-mortem  on his dead body was conducted  on 31.3.1980 by Dr.  Solanki PW4.  Dr.  Solanki, PW4, conducted post  mortem on the dead body of Sabuji on 31.3.80 at  10.20 AM.   He  found  the wound stitched.  On  opening  he  found internally  __  Large  intestine sutured wound  2.5  cm  on splenic   flexure   gappling   containing   faecal   matter; surrounding  area  of wound was red in colour;  opening  was found  absent.   The cause of death in the opinion  of  Dr. Solanki was shock due to acute peritonitis.  None of the two doctors has deposed if the injury was grievous or sufficient in  the ordinary course of nature to cause death or that the injury  was so imminently dangerous that it must have in all probability  resulted in death or was likely to cause death. The  exact  cause  of  peritonitis   is  not  known.    That negligence to treat the wound could be a contributing factor cannot  be ruled out.  In such state of medical evidence  it will  not  be proper to draw an inference against  Magansing accused  no.2  of  his having committed murder  of  Sabusing Viraji  punishable under Section 302 of the IPC.  The injury dealt  by him by a sharp weapon had cut into the  intestine. Though, an intention to cause death or such bodily injury as is  likely  to  cause  death cannot be  attributed  to  him, knowledge  is attributable to accused No.2 that an injury by knife into the abdomen was likely to cause death.  As it was a case of sudden fight, the act of this accused would amount to  culpable  homicide  not amounting to  murder  punishable under  part II of Section 304 of IPC.  The other injuries on the  person  of Sabuji are not attributed to  accused  No.2, Magansing.

   Insofar  as  Gajrabai  Magansing  the  accused  no.5  is concerned  her causing a grievous hurt to Viraji Devaji by a stick  is  proved beyond reasonable doubt.  Viraji  Devajis own  statement to this effect is fully corroborated by other eye witnesses and medical evidence.  In our opinion, she was rightly  convicted  by  the  learned  Sessions  Judge  under Section 325 of the IPC.

   We  do  not  deem it necessary to  further  discuss  the evidence  and record our findings as to offences  punishable under  Section 324 of the IPC committed by accused no.1  and

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accused  no.2 for causing injuries by sharp weapon to  other prosecution witnesses inasmuch as the learned Sessions Judge having  recorded  a  finding of guilt on  those  counts  has chosen  not  to  pass  any   sentence  of  imprisonment  and therefore  such exercise would be futile at this stage, also in  view of the nature of sentences which is being passed on the accused respondents.

   For  the  foregoing  reasons   the  appeals  are  partly allowed.   The judgment of the High Court, under appeal,  is set  aside.  The finding of guilty as recorded by the  trial court  along  with  the  sentence   passed  thereon  on  the respondent,   Kubersing   Chamansing   (accused  no.1)   are restored,  that is, he is held guilty of offences punishable under  Section 302 IPC on two heads respectively for causing the  death  of Narsingji Hiraji and Amuji Narsingji.  He  is sentenced to imprisonment for life on both the counts.  Both the  sentences  shall  run concurrenly.   The  acquittal  of Magansing  Dadusing,  accused no.2 under Section 302 IPC  is maintained.   However,  he  is  held guilty  of  an  offence punishable  under  Section  304  Part  II  IPC  for  causing culpable homicide not amounting to murder of Sabusing Viraji and  he is sentenced to undergo rigorous imprisonment for  a period of five years with a fine of Rs.2,000/- in default of payment  whereof he shall undergo further imprisonment for a period  of  six  months.  The amount of fine,  if  realised, shall  be paid as compensation to the heirs of Late  Sabuji. The  acquittal  of  Gajrabai Magansing  accused  no.5  under Section  325  is set aside and instead her conviction  along with sentence as passed by the trial court is restored.  The bail  bonds  of Kubersing Chamansing and Magansing  Dadusing are  hereby  cancelled.  They shall surrender and  be  taken into  custody  for  serving  out  the  sentences  as  passed hereinabove.   Gajrabai the respondent-accused no.5 shall be called  upon  to execute the bond and furnish one surety  as ordered by the trial court.  The amount of Rs.500/- shall be recovered  from her as fine and paid by way of  compensation to Viraji Devaji as ordered by the trial court.  The appeals stand disposed of accordingly.