Supreme Court of India
BALWANTBHAI B. PATELversusSTATE OF GUJARAT & ORS.
- Citation
- 2009 INSC 1122
- Decided
- 9 September 2009
- Disposal
- Appeal(s) allowed
Holding
The appellant cannot be convicted under Section 34 where no injury to the alleged victim is proved, rendering the conviction unsustainable.
Summary
On 30 November 1993, three accused—Thakorbhai, Jagdishbhai and Balwantbhai Patel—attacked a group of men in Bharuch, resulting in the death of Sagir Ahmed. Balwantbhai Patel was alleged to have caught hold of Gyasuddin Ansari, enabling Jagdishbhai to inflict a simple injury. All three were convicted under Section 302 IPC, with the two younger accused also charged under Section 34 for common intention. The Supreme Court, hearing Balwantbhai Patel’s special leave appeal, noted that no medical evidence or injury statement for Gyasuddin was on record, rendering the prosecution’s claim of Patel’s participation under Section 34 unsupported. Consequently, the Court held the High Court’s finding on shaky foundations, acquitted Patel, and set aside his conviction after he had already served over six years of the sentence.
Issues considered
- Whether the appellant can be held liable under Section 34 of the IPC for an injury that was not proved.
- Whether the allegation of "catching hold" of a witness is sufficient to establish participation in the murder under common intention.
- Whether the conviction under Section 302 read with Section 34 is sustainable in the absence of evidence of the appellant's act causing injury.
Legislation cited
- Indian Penal Code, 1860s. 114, s. 302, s. 34
Subjects
IPCSection 302Section 34common intentionmurderacquittalevidence of injuryappellate jurisdictioncriminal law
Judgment
[2009] 14 (ADDL.) S.C.R. 306
A BALWANTBHAI B.-PATEL
v.
~-
STATE OF GUJARAT & ORS.
(Criminal Appeal No. 45 of 2004)
SEPTEMBER 09, 2009
B
[HARJIT SINGH BEDI AND J~M. PANCHAL, JJ.]
PENAL CODE, 186.SJ:
c s. 302134 - Three accused stated to have attacked two
persons - Death of one of the victims caused - The third
accused-appellant stated to have caught hold of the witness
who tried to intervene and enabled another accused to cause
a simple injury on him - Trial court convicting one of the
0 accused u/s. 302 and the other two including the accused-
appellant u/s. 302134 - High Court affirming tne conviction -
Plea by accused-appellant that the only role attributed to him
was that of catching hold of the witness and that he was falsely
roped in - Held: There is no evidence to show that the witness
E had received any injury as his injury statement is not on
record - The finding, therefore, of the High Court about the
appellant's presence appears to be on shaky foundations - :t ·-
/
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
F or in the alternative in an attempt to rope in as many persons
as possible from the other side - Besides, appellant has
already undergone more than six years 0f the sentence -
Therefore, order of the High Court is not sustainable and is
set aside.
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 45 of 2004.
From the Judgment & Order dated 16.5.2003 of the High
H 306
BALWANTBHAI 8. PATEL v. STATE OF GUJARAT & 307
ORS.
Court of Gujarat at Ahmadabad in Criminal Appeal No. 528 of A
1995.
. Sudarshan Rajan, Qamar Ali, P. Nar~simhan for the
Appellant.
Pinky, Hemantika Wahi for the Respondents. B
The following Order of the Court was delivered by
ORDER
1. This appeal, by way of special leave, arises out of the C
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 D
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, E
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 F
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, G
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, H
308 SUPREME COURT REPORTS [2009} 14 (ADDL.) S.C.R.
A Gyasuddin Ansari and the complainant Ghulam Hussain Ansari, t ,...
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
B 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 ii-
that the trial Court as well as the High Court had been influenced '
by the fact that the appellant herein had caught hold of
c 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
D of a witness or of a deceased or an allegation of exhortation ~ '4,
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
E 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
F 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 th.e appellants
G
presence appears to be on shaky foundations. We are also not
unmindful of the fact that allegations of catching hold of an attack -t~
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
H
BALWANTBHAI B. PATEL v. STATE OF GUJARAT & 309
ORS.
..... ) in as many persons as possible from the other side. We also A
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 8
appellant.
·- ~ R.P . Appeal allowed.
.. ..
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