Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. On the other hand, Mr. D. N. Ray, learned counsel appearing on behalf of the respondent supported the order of conviction and sentence passed by both the Courts below. He submitted that it is trtie that accused No.5 and accused No.4 were acquitted by the Trial Court and High Court, respectively, from all the offences charged agafr1st them for want of evidence. It is equally true that out of five accused, two c c accused were acquitted by the Courts below hy giving benefit of doubt and hence there. were less than five accused before the High Court. He has specifically submitted that no point of perversity has been'taken by the appellants or pleaded in their appeals and instead, asked for re- appreciation of the evidence. According to him, without showing any perversity committed by the Trial Court as well as by the High Court, there can be no ground to interfere with the findings of the High Court. He submitted that this appeal should be dismissed on this.ground.
18. He further pointed out that the prosecution case is based on an unshakeable eye-witnesses' account. Therefore, motive becomes immaterial and question of proving the motive by the· prosecution does not arise, since it is not a case based on circumstantial evidence. (See Arjun Malik& Ors. Vs. Stateoff_lrar, 1994 Supp. (2) SCC 372, Para 10). He also drew our attention toa'ztecision of this Court in Kuriya & Anr. Vs. State of Rajastlum, (2012) IO SCC 431, .wherein it was held that "Once the principal eye-witness( es) have.proved their credentials on the .whole, it can be said to be believable that the-prosecution can rest even on the testimony of a single eyewitness."
19. Learned counsel appearing on behalf of the respondent further contended that many questions were tried to be raised in respect· of the deposition/testimony of PW!, but from the evidence of PW! – . widow of the deceased, it would appear that there is no improvement regarding visibility of the crime as sought to be made out by the defence. So far the recovery of the knife is in question, although PW5 has turned hostile, even though on cross-examination, he has categorically stated that the recovery of a large sharp knife was made at the instance of accused No. 1. He further pointed out that the deceased was running a Shivsena magazine in the heart o(a Memon Village. Except a handful of Hindus, the entire village comprised Muslims who were on inimical terms. It has come on record that the relationship of the deceased with the local Muslim villagers was so bad that in the past the police had to be called and the deceased had to be given police protection and the police had to resort to firing to save the deceased. He also took us through the evidence of PW3 and submitted that PW3 had married a Muslim lady from the same village, which aggravated the enmity between the deceased and the accused persons.
20. He further pointed out that although it is not seriously urged that since five persons could not be identified and/or only three has bee~ SOYEBBHAI YUSUFBHAI BHARANIA & ORS. v. STATE OF GUJARAT [PIN AKI CHANDRA GHOSE, J .] convicted, therefore, Section I 49 !PC cannot be attributed to convict anybody other than the accuse1flffi. I. Such submission cannot be accepted by the Court sine~ PW I clearly deposed in her testimony that she had seen five persons fatally assaulting her husband. She has categorically named five persons assaulting her husband with big knives. Therefore, the fact of the five persons, who were present cannot be doubted. Doubt is with regard to the exact .identification of one or two accused.
21. We have meticulously perused the oral evidence of PW I who is the only eye witness in the present case and that of PW3 who was the fort to know about the incident, as PW! had called her. It was admitted that day before the incident of murder one Nageshbhai had a private conversation with the deceased outside their house and thereafter deceased was feeling very much grief and his face was looking pale and during evening hours many phone calls were received on telephone.No independent act or overt act was attributed to each accused, albeit it was stated that she had seen the clothes of the assaulter stained with her husband's blood during occurrence.
22. In our view, albeit the murder is proved but the ingredients of the unlawful assembly remained elusive, as pre-requisite condition for an unlawful assembly i.e., minimum five persons, has not been met. c Nevertheless, the common object has been proved by the prosecution.
23. Moreover, when the appeal was preferred before the High Court, acquittal of the accused No.5 was not rebutted and further finding of the High Court whereby accused No.4 has also been acquitted for reasonable doubts, leaves a well-set doubt that prosecution has not proved its case beyond reasonable doubt. We are constrained to have this opinion p that trial court was vitiated by some manifest illegality or that the decision is perverse. PW9/Circle Officer has also stated that PW2, brother of deceased, influenced him into adding of cots, whereas they were not actually there. No zero watt bulb is shown in the Panchnama (site plan) as well, which efficaciously gives rise to doubt of the role attributed to the appellants.
24. Finally, it has been argued by the learned senior counsel for the appellants that a _reference was also made to a previous incident of 2001, where deceased had to be given police protection during some altercation with people of the other community. However, the accused (2017] 2 S.C.R. in that case were admittedly different and there is nothing to connect the appellants in the present case, except the fact that they belong to the same community. c
25. On the other hand, it has been submitted by the learned counsel for the State that the incident actually did happen due to the fact that the brother of the deceased had got married with a girl cf the community of the appellants. Had this marriage was not solemnized or as per present situation not registered in Court, then the deceased might not have been murdered.
26. After considering the present facts and circumstances, we are of the considered opinion that for furtherance of the common intention namely to do away the deceased, appellants had entered into the house of the deceased and were seen by PW!. They then started beating the deceased and after causing injuries on his neck with a sharp knife, they ran away. The homicidal death was proved beyond all reasonable doubts. The High court has thus rightly relied on the judgment of this Court in the case of Pulukuru Kottaya & Ors. Vs. Emperor, reported in AIR (34) 1947 PC 67, wherein it was held that "The improper admission or rejection of evidence shall not be ground.of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to iustify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision".
27. Above all, the fact that accused had been identified and recovery made from accused No.I has left no room for doubt that all the appellants were involved in the commission of the murder with common object to do away the deceased with sharp knife.
28. Thus, in the light of the above discussion, we are of the view that the present appeal is devoid of merits and we,. therefore, do not find any reason to interfere with the order of the High Co~rt. Hence, the appeal is dismissed. -. ~,- · Devika Gujral Appeal dismissed.