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2019 DIGILAW 1106 (GUJ)

Ashok Ambikaprasad Yadav v. State Of Gujarat

2019-12-03

A.C.RAO, BELA M.TRIVEDI

body2019
JUDGMENT : A.C. RAO, J. 1.00. As both the Criminal Appeals arise out of the common judgment and order of conviction and sentence, both these appeals are heard, decided and disposed of by this common judgment and order. 2.00. The Criminal Appeal No.404 of 2015 has been preferred by the appellant – original accused No.2 named Ashok Ambikaprasad Yadav and the Criminal Appeal No.1169 of 2016 has been preferred by the appellant – original accused No.1 named Mahendra @ Pintu Dashrathbhai Gamit, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”), questioning the legality and validity of the judgment and order of conviction and sentence dated 04/09/2014 passed by the 5th Additional Sessions Judge, Surat (hereinafter referred to as “the trial court”), in the Sessions Case No.134 of 2010. 2.01. The original accused No.3 named Anil Dinanath Dube is not before this Court, however, it appears that the said accused had made an application through jail dated 17/2/2018 to the Secretary, Legal Services Authority to provide him legal aid for filing appeal against the very judgment and order of conviction and sentence, however, till date no legal aid was provided to said accused No.3 – Anil Dinanath Dube and therefore, no Appeal has been filed on his behalf. The Court, therefore, had passed the order dated 14/11/2019 requesting Mr.Mrudul Barot, learned advocate to appear as the amicus curie on behalf of the accused No.3 – Anil Dinanath Dube. 2.02. The trial court convicted all the three accused including the appellants herein – original accused Nos.1 & 2 as well as accused No.3, for the offences punishable under sections 302 read with section 34 of IPA and sentenced them to undergo life imprisonment with fine of Rs.5000/-, failing which to undergo Rigorous Imprisonment for 1 year. The trial court also convicted all the accused for the offences punishable under sections 307 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 10 years and with fine of Rs.5000/-, failing which to undergo Rigorous Imprisonment for 6 months. The trial court also convicted all the accused for the offences punishable under sections 323 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 1 year and with fine of Rs.500/-, failing which to undergo Rigorous Imprisonment for 1 month. The trial court also convicted all the accused for the offences punishable under sections 323 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 1 year and with fine of Rs.500/-, failing which to undergo Rigorous Imprisonment for 1 month. The trial court also convicted all the accused for the offences punishable under sections 504 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 1 year and with fine of Rs.500/-, failing which to undergo Rigorous Imprisonment for 1 month. The trial court also convicted all the accused for the offences punishable under sections 188 read with section 34 of IPC and sentenced them to undergo Rigorous Imprisonment for 6 months and with fine of Rs.500/-, failing which to undergo Rigorous Imprisonment for 1 month. 3.00. The case of the prosecution, in nut shell before the trial court was that, the complainant named Pratapbhai Gandhibhai Pradhan who was residing at Surat with his family and doing labour work lodged the FIR inter-alia stating that on 19/12/2009 he was at his home. On that day in the evening Ashwinkumar had gone for walking in the flower market and when he was in the flower market, at about 9 O'clock at night his younger brother Badal telephoned him from his mobile and informed him that Mahendra alias Pintu and his friend were quarreling with him. Badal told him that he should come to Patel Nagar, Near Hanuman Temple. Therefore, he was going to the Hanuman Temple and while he was on the way, he received another phone call from his brother and hence he ran towards the Hanuman Temple. When he reached there, his known person named Dipak Krishna informed that Badal was being beaten near Patelnagar, Hanuman Temple and hence he rushed there. On reaching there, he seen that Mahendra alias Pintu and his friends Ashok Yadav and Anil, all three were beating his brother Badal with abusing and saying that why was he jesting Dhanuben and by saying so, they were beating his brother and at that he intervened to rescue his brother. He had alleged in the FIR that Mahendra was having Iron Rambo Knife in his hand, Ashok was having stick and had worn iron Muth and Anil was having wooden stick and they had beaten his brother and his was bleeding and he had fallen down. He had alleged in the FIR that Mahendra was having Iron Rambo Knife in his hand, Ashok was having stick and had worn iron Muth and Anil was having wooden stick and they had beaten his brother and his was bleeding and he had fallen down. Mahendra had inflicted blows with knife in stomach and near near left ear, Ashok had inflicted stick blows on the head and Anil had beaten with wooden stick on the body, to the complainant. People were gathered and the accused had run away. The complainant tried to lift his brothers, but he could not and the complainant was also bleeding. He had gone to the Doctor in the hospital situated in the Utkalnagar Juppadpati, near the railway crossing. During that time, and he was taken to the Civil Hospital in 108 Ambulance. His nephew had come to the Civil Hospital and he informed him that his brother Badal had died. On the date of the incident, Police Inspector Mr.Patel was petrolling and at that time, PSO of the police station informed him that there is Wardhy received from the Civil Hospital and Mahendra alias Pintu, Anil and Ashok had beaten Pratap Gandhi and his brother. Pratap was brought him in 108 Ambulance. Therefore, P.I. Patel had immediately reached the Civil Hospital and the complainant met the Pratapbhai and on asking about the incident, the FIR has been reduced by P.I. Mr.Patel in writing as per the dictation given by the complainant. 3.01. After registration of the FIR, the Investigating Officer carried out the investigation; made report to the Executive Magistrate for recording dying declaration of the complainant, obtained certificate of treatment, prepared inquest panchnama, sent the dead-body with yadi for postmortem of the deceased, seized the clothes put on by the complainant at the time of incident, recorded statement of the witnesses, called the officers of the FSL at the place of offence, obtained necessary samples, prepared panchnama of the cloth found on the person of the deceased, arrested the accused and prepared arrest panchnama, seized the clothes put on by the accused, prepared discovery panchnamas of the muddamal weapons,got prepared map of the place of offence, and sent the muddamal to the FSL. 3.02. During the course of the investigation, the police arrested the accused. 3.03. 3.02. During the course of the investigation, the police arrested the accused. 3.03. Since there was sufficient evidence against the accused, on completion of the investigation, the Investigating Officer filed charge-sheet against the accused under Section 173 of the Cr.P.C. before the competent court of the Chief Judicial Magistrate, Surat and the case was registered as Criminal Case No.5019 of 2010. 3.04. Since the case was triable by the court of Sessions, the Judicial Magistrate, after providing copies of the charge-sheet papers to the accused free of costs, committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure and the case was re-registered as Sessions Case No.134 of 2010 against the accused. 3.05. Thereafter, the Sessions Court framed Charge against the accused at Ex.9 and also recorded Plea of the accused under Section 228(2) of the Cr.P.C. at Ex.Nos.10, 11 and 12. The accused pleaded not guilty and prayed for trial. Therefore, the Sessions Judge conducted the trial in accordance with law. 3.06. The prosecution has produced oral as well as documentary evidence on record. The prosecution examined in all 33 witnesses. The prosecution also produced 29 documentary evidence. 3.07. After the conclusion of the trial, the Additional Sessions Judge convicted and sentenced the appellants herein, as aforesaid. 4.00. Submissions of the appellants/accused :- 4.01. Mr.Matafer Pandey, learned advocate appearing for the appellant – original accused No.2 in Criminal Appeal No.404 of 2015 has raised the following contentions :- [1] That the impugned judgment and order of conviction and sentence is bad in law, against the provision of law and contrary to the evidence on record; [2] That the court below has misinterpreted the evidence on record. [3] That most of the panchas and witnesses have not supported the case of the prosecution; [4] That there are material contradictions in the evidence of the prosecution witnesses. [5] That the case of the prosecution is not proved beyond reasonable doubt. 4.02. [3] That most of the panchas and witnesses have not supported the case of the prosecution; [4] That there are material contradictions in the evidence of the prosecution witnesses. [5] That the case of the prosecution is not proved beyond reasonable doubt. 4.02. Mr.Mrudul Barot, learned advocate appearing for the appellant – original accused No.1 in Criminal Appeal No.1169 of 2016 and as amicus curie on behalf of the accused No.3 – Anil Dinanath Dube, has raised the following contentions :- [1] That the trial court failed to appreciate that the prosecution has failed to prove the case against the accused beyond reasonable doubt; [2] That the trial court erred in holding that the prosecution has proved that the accused Nos.1 & 3 have caused injuries to the deceased as well as the complainant, which resulted in death of the deceased as well as serious injuries to the complainant. [4] That the trial court erred in holding that the accused are identified by PW No.14 (Ex.60) in the Court room. In fact, complainant and accused were known to each other; [5] That the trial court erred in relying upon testimonies of the Doctor Ex.16, 20, 23, 28 and 34. In fact the complainant has not given the name of the accused in the history before the Doctor. Even the name of the accused are not disclosed by the deceased in the dying declaration recorded by the Executive Magistrate. [6] That the trial court failed to appreciate that as per the panchas, the place of incident was “Ashoknagar slum area”, whereas as per the say of the complainant, it was “Shitalnagar slum area”. Thus, there is material contradictions about the place of incident. [7] There are material contradictions in the evidence of the PW No.14; [8] That the trial court failed to appreciate the evidence of the panch witnesses in its true spirit; [9] That the oral as well as documentary evidence are contrary to the medical evidence. [10] That the trial court failed to appreciate that the accused have sustained the injuries and same is proved and the prosecution has failed to explain how the accused sustained injuries and therefore, the accused are entitled to benefit of doubt. In support of his submissions, Mr.Barot has relied on the decisions in the case of State of Rajasthan Versus Madho and another, reported in 1991 Suppl. In support of his submissions, Mr.Barot has relied on the decisions in the case of State of Rajasthan Versus Madho and another, reported in 1991 Suppl. (2) SCC 396 as well as Babu Ram and others versus State of Punjab reported in (2008) 3 SCC 709 . 5.00. Submissions of the APP: 5.01. Both these appeals are opposed by Mr.Himanshu K. Patel, learned APP appearing for the State. He has made the following submissions :- [1] That the prosecution has proved the case against the accused beyond reasonable doubt; [2] That there are voluminous evidence against the accused and trial court has convicted and sentence the accused on appreciation of evidence and no error or illegality has been committed by the court below; [3] That the complainant is eye witness who has fully supported the case of the prosecution. Even he was injured in the alleged offence and had sustained injuries and thus, he was injured eye witness. There is no reason not to believe his evidence. He has categorically stated in his deposition that when he reached at the place of offence, all the three accused were beating his brother. He has specifically named the accused with their weapon with which they had beaten the deceased. He has clearly stated in his deposition that accused Mahendra was having Rambo Knife, Accused Ashok was having iron Muth and he was also beating his brother wit stick and accused Anil was having iron stick and all the three accused were beating his brother. He has also deposed that while he intervened to save his brother, accused beaten him also and caused injuries on the vital part of his body, due to which he had sustained serious injuries for which he was to take medical treatment for ling time. Thus, the complainant is not only eye witness but is also injured witness and he has fully supported the case of the prosecution. There is no material contradictions in the evidence of the complainant. [4] That the complainant has sticked to his version disclosed in the FIR. [5] That the complainant has identified the accused in the Court; [6] That the accused are specifically named in the FIR; [7] That the prosecution witnesses – Doctors who are examined at Ex.16, 20, 23, 28 and 34 have also supported the case of the prosecution. [4] That the complainant has sticked to his version disclosed in the FIR. [5] That the complainant has identified the accused in the Court; [6] That the accused are specifically named in the FIR; [7] That the prosecution witnesses – Doctors who are examined at Ex.16, 20, 23, 28 and 34 have also supported the case of the prosecution. The medical evidence has also supported the case of the prosecution. [8] That drawing attention towards the postmortem report, it is contended that the serious injuries are caused by the accused by the muddamal weapons, recovered from the accused. [9] The presence of the accused at the time of commission of the offence at the place of offence as well as the role played by the accused in the commission of the offence have been established beyond reasonable doubt. Even from the N.C. Complaint Ex.87 filed by one of the accused, the presence of the accused has been established. [10] That the accused had shown the place where they had concealed the weapons used by them in the commission of the offence. There were blood stains on the muddamal weapon knife and as per the FSL report, the blood on the knife is of the deceased. Even the blood found on the clothes of the accused is also match the blood group of the deceased. [11] There are no material contradictions in the evidence of the prosecution witnesses and the minor addition, alteration, omission and/or contradictions and/or omission are not fatal to the case of the prosecution; [12] That the accused committed the crime due to sudden provocation and it was the deceased who provoked the accused and therefore also no offence is made out against the accused and at the best offence can be said to be under section 304 Part-II of IPC. 6.00. Heard Mr.Matafer Pande, learned advocate appearing for the appellant – original accused No.2 in Criminal Appeal No.404 of 2015, Mr.Mrudul Barot, learned advocate appearing for the appellant – original accused No.1 in Criminal Appeal No.1169 of 2016 as well as Mr.Himanshu K. Patel, learned APP for the State, at length. Considered the impugned judgment and order of conviction and sentence and the decisions relied upon by the learned counsel for the accused. 7.00. Considered the impugned judgment and order of conviction and sentence and the decisions relied upon by the learned counsel for the accused. 7.00. The case of the prosecution hinges on the evidence of the complainant, who is brother of the victim and he is also injured eye witness. Considering the evidence on record, it is clear that except the panchas in whose presence the clothes of the deceased were collected and the Sandle from the place of offence were collected, all other panchas have not supported the case of the prosecution and they are declared as hostile. Over and above the complainant, the father of the complainant has also supported the case of the prosecution, but he had not witnessed the incident and he is not eye witness and his evidence is hearsay evidence which cannot be relied upon. Thus, except the complainant all other witnesses have not supported the case of the prosecution. Other prosecution witnesses namely police witnesses and Doctors have also fully supported the case of the prosecution. Thus, the only eye witness is the complainant, who is also injured in the incident in question. According to the complainant, he received phone call from his brother – deceased, and he was informed that the accused No.1 and his brother are in hot arguments with him and he asked the complainant to reach near the Hanuman Temple – place of incident. When he was on the way, he received second call from his brother, so he rushed to the Hanuman Temple. When he reached there, accused No.1 was armed with knife , accused No.2 was armed with iron stick and Muth and accused No.3 was also armed with wooden stick. According to his deposition, all the witnesses were beating his brother – deceased and when he tried to intervene, accused no.1 had inflicted a knife blow in the left side of his neck, while accused No.2 had inflicted wooden stick on his head, while accused No.3 had also beaten him with stick. According to the complainant, because of the injuries, he had fallen down at the place of incident. According to him he tried to lift this brother, but he could not. According to him he thereafter went to Sharda Clinic for his treatment and thereafter he was informed in the hospital that his brother is expired and his dead-body is lying at the place of incident. According to him he tried to lift this brother, but he could not. According to him he thereafter went to Sharda Clinic for his treatment and thereafter he was informed in the hospital that his brother is expired and his dead-body is lying at the place of incident. The complainant has identified the accused as well as the weapons collected by the investigating officer from the accused during the course of the investigation, in the court. In cross-examination, the complainant has stated that the accused had not asked who beaten him and even the Executive Magistrate had also not asked him about the incident. 7.01. The complainant has fully supported the case of the prosecution and when the complainant is injured eye witness and he has supported the case of the prosecution and his evidence is supported by other independent evidence, there is no reason not to believe his evidence. In a case on hand the compliant is also an injured witness. When the eye-witness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer to the following observations in Abdul Sayeed v. State of Madhya Pradesh [JT 2010 (10) SC 434]:- "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar [ 1973 (3) SCC 881 : 1973 SCC (Cri) 563 : AIR 1972 SC 2593 ], Malkhan Singh v. State of U.P. [ 1975 (3) SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12 ], Machhi Singh v. State of Punjab [ 1983 (3) SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [JT 1988 (1) SC 249], Bonkya v. State of Maharashtra [JT 1995 (7) SC 194], Bhag Singh [JT 1997 (7) SC 654], Mohar v. State of U.P. [JT 2002 (7) SC 293, Dinesh Kumar v. State of Rajasthan [JT 2008 (9) SC 148], Vishnu v. State of Rajasthan [JT 2009 (12) SC 395], Annareddy Sambasiva Reddy v. State of A.P. [JT 2009 (5) SC 617] and Balraje v. State of Maharashtra [JT 2010 (6) SC 133].” 7.02. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [JT 2009 (11) SC 682], where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:- "28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka [JT 1994 (5) SC 444] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29. 29. In State of U.P. v. Kishan Chand [JT 2004 (6) SC 535] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana [ 2006 (12) SCC 459 : 2007 (2) SCC (Cri) 214]). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below." 30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." 7.03. Further, the injuries stated by the complainant is well supported by the medical evidence. The Doctor PW No.2 is examined at Ex.20. According to the said Doctor, the injuries are possible by the muddamal weapons, which were shown to him in the Court. The said doctor also produced Medical Certificate Ex.21. 7.04. The evidence of the complainant is supported by the deposition of the other Doctors. The PW No.3 Ex.23 is also Medical Officer, who treated the complainant. According to the said Doctor, the injuries to the complainant on the abdomen is possible by the muddamal knife. According to the said Doctors, the complainant had sustained injuries on the forehead, back of his head, cheek and right ankle, as well as on the forehead are possible by the knife. The Medical Certificate is produced at Ex.24. 7.05. PW No.1 who is another Medical Officer, who performed the postmortem of the deceased. According to the said Doctors, the complainant had sustained injuries on the forehead, back of his head, cheek and right ankle, as well as on the forehead are possible by the knife. The Medical Certificate is produced at Ex.24. 7.05. PW No.1 who is another Medical Officer, who performed the postmortem of the deceased. It appears from the postmortem report that there were in all 13 injuries on the body of the deceased. According to the said Doctor, such injuries are possible by the muddamal weapons collected by the investigating officer during the course of investigation. Thus, the evidence of the complainant is fully supported by the medical evidence – evidence of the Doctors. The Doctors are independent witnesses and there is no reason not to believe their evidence. 7.06. So far as the contention of the accused that the accused are not named in the dying declaration is concerned, on bare perusal of the dying declaration, it is clear that the same is of the complainant and when the complainant has survived, the same cannot be treated as dying declaration. Furthermore, it was not asked by the Executive Magistrate that who caused injuries to the complainant. Therefore, the aforesaid contention raised by the accused has no substance that it is highly unsafe for the prosecution to rely on such dying declaration. Even otherwise, the same is not fatal to the case of the prosecution. At this juncture, it is required to be noted that in the case of Bolem Bhaskara Rao Versus State of Andhra Pradesh, reported in 1995 (Supp4) SCC 211 it is held as under :- “The learned counsel further submits that in Ex. P-16 the deceased mentioned A-2's name as one of the participants and omitted to mention his name in Ex. P-1 and that itself shows that his mind was fading out and in such a situation, it is highly unsafe to rely on the dying declaration. We see no force in this submission.” 7.07. The next contention on behalf of the accused raised is that the prosecution has failed to explain how the accused sustained injuries and therefore, the accused are entitled to benefit of doubt. We see no force in this submission.” 7.07. The next contention on behalf of the accused raised is that the prosecution has failed to explain how the accused sustained injuries and therefore, the accused are entitled to benefit of doubt. In support of this contention, reliance is placed upon the decisions of the Hon'ble Apex Court in the case of State of Rajasthan Versus Madho and another, reported in 1991 Suppl.(2) SCC 396 and Babu Ram and others versus State of Punjab reported in (2008) 3 SCC 709 . We have considered the entire evidence on record and according to the evidence of the PW No.4 – Doctor, who treated all the accused, the injuries sustained by the accused are simple in nature. The Complaint given by the accused No.2 against the deceased - Ex.87 is registered by police for the offence punishable under sections 323 and 504 of IPC. Considering the fact that the injuries sustained by the accused is simple injuries as per the Doctors, there is no substance in the contention raised by the defence. There cannot be dispute with the law laid down by the Hon'ble Supreme Court in the aforesaid two decisions, however, the same are not applicable to the facts of the case on hand. Even otherwise, as per settled legal position and as held in the case of Takhaji Hiraji versus Thakore Kubersing Chamansing, reported in (2001) 6 SCC 145 , it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so, the prosecution case should be disbelieved. Before holding that non-explanation of the injuries on the persons 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. 7.08. Lastly it is contended by the learned advocate for the accused that if this Court is of the view that the prosecution has proved the case beyond reasonable doubt that the crime is committed by the accused, the incident occurred due to sudden provocation. 7.08. Lastly it is contended by the learned advocate for the accused that if this Court is of the view that the prosecution has proved the case beyond reasonable doubt that the crime is committed by the accused, the incident occurred due to sudden provocation. We do not find any substance in the contention. First of all it is not the case or defence of the accused that the deceased had provoked them. There was grave and sudden provocation by the deceased. In the statement of the accused recorded under section 313 of the Cr.P.C., no defence of sudden provocation by the deceased is raised by the accused. In the statement under section 313, there is nothing except denial. Therefore, there is no substance in the aforesaid contention also. At this stage, Exception-4 to Section 300 of the IPC is required to be considered, which reads as under :- "Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." From the bear reading of the aforesaid Exception, it is clear that four eventualities should occur i.e. (i) The act must be committed without premeditation in a sudden fight in the heat of passion; (ii) Upon a sudden quarrel; (iii) Without the offenders having taken undue advantage; and (iv) The accused had not acted in a cruel or unusual manner.” 7.09. According to Exception-I to Section 300 IPC, culpable homicide is not murder if the offender causes the death of the person who gave the provocation, whilst deprived of the power of self-control by grave and sudden provocation. Ordinarily, an accused should be attributed with the intention of causing such bodily injury as he has in fact caused. The accused were armed with a deadly weapons like a knife. They inflicted multiple injuries on the body of the deceased one of which was sufficient in the ordinary course of nature to cause death and has, in fact, proved fatal. The intention of the accused could not have been anything else except causing such bodily injury as was likely to cause the death. They inflicted multiple injuries on the body of the deceased one of which was sufficient in the ordinary course of nature to cause death and has, in fact, proved fatal. The intention of the accused could not have been anything else except causing such bodily injury as was likely to cause the death. It cannot be said that the accused committed the crime “in a sudden fight in the heat of passion upon a sudden quarrel” within the meaning of exception 4 or due to deprivation 'of the power of self-control by grave and sudden provocation' within the meaning of exception to section 300 of the Indian Penal Code. The complaint had tried to intervene but he was inflicted serious injuries, there was no provocation on his part. The trial court has not erred in holding the act of the accused amounting to murder within the meaning of section 300 of the Indian Penal Code and hence punishable under section 302 of the Indian Penal Code. From the proved facts of this case it appears that the provocation was voluntary on the part of the offenders. Such provocation cannot come to the rescue of the accused to claim that they are not liable to be convicted under Section 302 IPC. Thus, there is no substance in the contention of the accused that the incident occurred due to sudden provocation by the accused. 7.10. Further, the blood found from the weapon as well as clothes of the accused is of the same blood group of the deceased. 7.11. From the deposition of the complainant – Pratapbhai Gandhi Ex.60 it is clear that the accused have caused injuries to the deceased as well as to the complainant with deadly weapons, due to which the deceased succumbed to the injuries and the complainant sustained serious injuries. His evidence is corroborated by the evidence of PW No.2 Dr.Mohanbhai Chenrambhai Chauhan – Ex.20, according to him, the injuries caused to the Pratapbhai were on vital part and the same were sufficient to cause death of the deceased. From the Medical Certificate issued by the said Doctor Ex.21, it is clear that there were vital injuries on the vital part of the complainant. From the Medical Certificate issued by the said Doctor Ex.21, it is clear that there were vital injuries on the vital part of the complainant. Further, PW No.3 Dr.Jitendrabhai Kanjibhai Viradiya Ex.23 who had examined the complainant Pratapbhai had also stated that there were serious injuries on many part of the body of Pratapbhai including vital part i.e. head. Even the said Doctor has also issued Certificate to that effect – Ex.26. From the deposition of the said two doctors and the Certificates issued by them, it is clear that the injuries sustained by the complainant were serious in nature and sufficient to cause death. 7.12. The complainant Pratap Gandhi who is examined at Ex.60 has fully supported the case of the prosecution. He has stuck to his complaint. Even in the FIR itself, the complainant has named all the three accused. There are no material contradictions. The minor contradictions and omissions are not fatal to the case of the prosecution. In his evidence, he has specifically stated that who caused injuries with which weapon and at which part. From the evidence of the complainant, role played by each of the accused in commission of the offence has been clearly established. He has identified the accused as well as weapons used by the accused in commission of the offence. Though the complainant was cross examined, but nothing helpful to the accused has come on record. Even evidence of the complainant is supported by the medical evidence and depositions of the Doctors. The trial court has rightly not believed the contention of the defence that in the history before the doctor, the complainant has not named the accused. We are in quite agreement with the view taken by the trial court that when the injuries sustained by the complainant is serious and due to which as per the opinion of the two doctors, even he can die, in such circumstances, the Doctors has rightly given priority to the treatment to save the life of the injured instead of recording history as to who caused injuries and by which weapon the injuries were caused. Merely because in the history before the Doctors, the name of the accused are not disclosed, other voluminous evidence on record cannot be ignored. 7.13. Merely because in the history before the Doctors, the name of the accused are not disclosed, other voluminous evidence on record cannot be ignored. 7.13. So far as the dying declaration is concerned, when the person who gave dying declaration has survived, the dying declaration is not of much importance. 7.14. From the evidence of Dr.Rajiv Narayan Devbarman who is examined at Ex.28, the implication of the accused in the commission of the offence has been established. The said doctor has treated all the accused and from the history given by them before the Doctor, the presence and quarrel of the accused has been clearly established. The accused No.2 had given complaint for the offence u/ss. 323 and 504 of IPC – Ex.86, which was given against the deceased and his brother Badal. From this also, dispute of the accused with the deceased and complainant has been proved. 7.15. The evidence of the complainant and other prosecution witnesses namely Doctors are in normal course and believable and they are not unnatural. There is no reason not to believe the same. 7.16. The Panchnama Ex.69 has been established and proved and even Panch Babulal Mobabhai who is examined at Ex.68 has supported the case of the prosecution and from his evidence. The discovery of muddamal weapons collected from the accused, which are identified by the complainant in the open court, the weapons used by the accused in the commission of the offence has been proved. The investigating officer Mr.Patel who is examined at Ex.106 has also supported the discovery of the muddamal weapons at the instance of the accused under section 27 of the Evidence Act. Though the panch of the panchnama Ex.27 is hostile, but he has admitted his signature on the panchnama Ex. 27 as well as signature on the chit found from the muddamal weapons. From the evidence of the investigating officer, it is clear that the accused while in custody, on their own and at their will shown the place where the weapons were concealed. Considering the definition of section 27, the panchnama Ex.27 has been proved and established. As held by the Hon'ble Supreme Court I the case of State of Assam Vs. From the evidence of the investigating officer, it is clear that the accused while in custody, on their own and at their will shown the place where the weapons were concealed. Considering the definition of section 27, the panchnama Ex.27 has been proved and established. As held by the Hon'ble Supreme Court I the case of State of Assam Vs. Mahim barkatki, reported in AIR 1987 S.C. 98 , merely because panchs are hostile, discovery panchnama u/s.27 cannot be ignored and underestimate when there is evidence of the police officer and the evidence of the investigating officer who is police officer and independent witness, cannot be discarded. The investigating officer has supported panchnama prepared under section 27. The FSL report Ex.114 has also corroborated other evidence of the prosecution and the weapons used by the accused are proved. The muddamal Knife was sent to the FSL with identification mark “I”, Muth was sent with mark as “J“ and wooden sticks were sent with mark as “K and “L” and from FSL report it is clear that from the weapons marked as “I”, “K” and “L”, blood stains were found and as per the Serological Report Ex.115, bloods found from the weapons “I”, “J”, “K” and “L” is human blood and the same was of “B” group. The blood sample of the deceased and complainant Pratapbhai was sent to the FSL and blood group of both of them was of “B” group. Thus, it is proved that the blood found on the weapons were of the deceased and the complainant and the accused caused injuries to the deceased as well as the complainant. There is no explanation from the accused as to how the blood of the deceased and the complainant found from the muddamal weapons. The clothes of all the three accused were collected by the investigating officer and same were sent to FSL and as per the FSL report, the blood found from the said clothes were also of “B” group. The accused have not explained as to how the blood of the deceased and the complainant is found on their clothes. The evidence of the FSL is independent evidence and same is admissible in evidence as held in the case of Rameshbhai Mohanbhai Koli versus State of Gujarat reported in 2011 AIR SCW 378. 7.17. The accused have not explained as to how the blood of the deceased and the complainant is found on their clothes. The evidence of the FSL is independent evidence and same is admissible in evidence as held in the case of Rameshbhai Mohanbhai Koli versus State of Gujarat reported in 2011 AIR SCW 378. 7.17. Considering the entire evidence on record, it is clear that all the accused due to the earlier dispute with a view to fulfill their common intention, attacked on the deceased and caused serious injuries and while the complainant intervened to save the deceased, the accused also caused him serious injuries, with deadly weapons on the vital part of the body, due to which the deceased died and the complainant sustained serious injuries, but the complainant survived. Looking to the injuries sustained by the complainant, it is clear that the intention of the accused was to kill even the complainant also. 7.18. Considering the oral evidence of the complainant, Doctors as well as other medical evidence as well as evidence of FSL, we are of the considered opinion that the trial court has considered the evidence on record in its true perspective and the rightly convicted and sentenced all the three accused. There is no error and/or illegality committed by the trial court while passing the impugned judgment and order of conviction and sentence. We find no substance in both these appeals. 8.00. In the result, both the appeals fail and the same are hereby dismissed.