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TMI Blog1970 (3) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... y causing death of Amarji and for causing simple hurt to Vaghji Mansangji. The deceased Amarji was the brother-in-law (sister's husband) of Vaghji Mansangji. Two important eyewitnesses were Pabaji Dajibha and Pachanji Kesarji. Amarji was Pabaji's mother's sister's son. Pachanji is the first cousin of Vaghji Mansangji. . 3. Accused No. 3 Mulubha is the maternal uncle (mother's brother) of accused No. 2 Ranubha Naranji and accused No. 1 Hethubha alias Jitubha is the son of another maternal uncle of accused No. 2. 4. Accused No. 2 was residing at Bhalot. Vaghji also resided there. About two months prior to the date of the occurrence on 26 January, 1965 at 8 p.m. there was a quarrel between the children of the house of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the roads. All of them caught hold of Amarji and attacked him who was in the first cart. In the meantime, accused No. 3, Mulubha, caught hold of the hand of Pabaji and prevented him from going near Amarji. Mulubha was armed with an axe. Accused Nos. 1 and 2 dealt knife blows to Amarji. The prosecution suggested that the accused persons realised their mistake that instead of Vaghji they had attacked Amarji, and so, both the accused Nos. 1 and 2 left Amarji and went to the cart of Vaghji and gave blows with sticks to Vaghji. On seeing the attack on Vaghji Pabaji intervened and asked the accused to desist from attacking Vaghji any longer as they had already killed Amarji. Thereupon the accused stopped attacking Vaghji. By this time Amar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused for the offence punishable under Section 304 Part II read with Section 34 and sentenced them to suffer rigorous imprisonment for five years. Accused Nos. 1 and 2 were convicted for the offence under Section 323 and accused No. 3 was convicted for the offence under Section 323 read with Section 34 of the Indian Penal Code. Accused Nos. 1 and 2 were sentenced to suffer rigorous imprisonment for three months while accused No. 3 was sentenced to suffer rigorous imprisonment for two months. All the sentences were to run concurrently. 8. All the accused filed appeals against their convictions. Before the Division Bench in the High Court of Gujarat Divan, J. held that accused No. 1 alone was responsible for the fatal injury on Amarji and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit. Mehta, J. here dealt with the whole case. Section 429 of the Criminal Procedure Code states that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion . Two things are noticeable; first, that the case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge. It is, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttack these persons when they were returning to Bhalot. It therefore follows that the attack took place in pursuance of the pre-arranged plan and the rapidity with which the attacks were made also shows the pre-concerted plan. The attack by accused Nos. 1 and 2 on Amarji and the holding up of Pabaji by accused No. 3 all prove common intention, participation and united criminal behavior of all and therefore accused No. 3 would be equally responsible with accused Nos. 1 and 2 who had attacked Amarji. 13. This Court in the case of Shankarlal Kachrabhai and Ors. v. State of Gujarat 1965CriLJ266 said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e common intention which the other members of the unlawful assembly did not each intend to be done. 15. In view of the evidence that Amarji was killed in furtherance of the common intention of all the accused the appellants are guilty of murder. In Shankarlal's case 1965CriLJ266 this Court said that if the common intention was to kill A and if one of the accused killed B to wreck his private vengeance, it could not be possibly in furtherance of the common intention for which others can be liable. But if on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing, of B was in furtherance of the common intention. All the three accused in the present case were lying in wait and assa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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