Holding

The conviction under Section 304 Part II is upheld as the evidence proves the appellant's involvement beyond reasonable doubt.

Summary

Pradumansinh Kalubha was accused of stabbing Harijan painter Keshav Uka after a collision at Piplawala Chowk, leading to Uka's death. The trial court acquitted Kalubha, finding the prosecution story implausible, but the Gujarat High Court reversed the acquittal, convicting him under IPC Section 304 Part II and sentencing him to five years' imprisonment. On appeal, the Supreme Court examined the eyewitness testimonies, medical evidence of a deep knife wound, and the circumstances of the incident, concluding that the evidence established Kalubha's involvement beyond reasonable doubt. The Court held that the absence of blood stains at the scene and the non‑seizure of the weapon were not material where direct evidence existed. It also rejected the argument that the High Court violated principles governing appeals against acquittals. Consequently, the Supreme Court dismissed the appeal, upholding the conviction.

Issues considered

What is the appropriate standard for a higher court to overturn an acquittal on appeal?
Whether the eyewitness and medical evidence sufficiently proved the appellant's participation in the homicide.
Whether the lack of blood stains at the scene and the non‑seizure of the alleged weapon undermine the prosecution's case.

Legislation cited

Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 302, s. 304 Part II, s. 307

Subjects

culpable homicide not amounting to murderappeal against acquittalevidence assessmentweapon seizuresection 304 IPCcommunal tensionHarijan victim

Judgment

PRADUMANSINH KALUBHA A
v.
STATE OF GUJARAT

JANUARY 21, 1992

[M.FATHIMA BEEVI AND YOGESHWAR DAYAL, JJ.] B

Indian Penal Code, 1860:

Section 304 Part II-Appellant-Prosecution of-Caused death by
delivering knife blow on chest of deceased-Acquittal by tril'll
court-Conviction by High Court-Held appellant's involvement in C
crime--'Oearly established-High Court has demonstrated conclusion of
trial court wrong and not sustainable on evidence.

Indian Evidence Act, 1872:

Section 27-Weapon-Seizure of-Not material-When direct evi- · D
!fence available of involvement of accused.

The prosecution alleged that the Harijans and the Garasia-
Durbars in the township of Thangadh in the" respondent-State were
not keeping good relationship for the past six months and that the
· brother of th(\ appellant who was the manager of a Cinema Talkies E
assaulted a Harijan teacher and that thereafter the Harijans boy-
cotted the theatre.

On February 12, 1978, the deceased who was a Harijan painter
had gone alongwith two others at about 6.00 P.M. for purchasing F
Datan and that when they proceeded to purchase a brush as desired
by the deceased ·they turned IJack to pick up the Dc(tan.before it was
too late. In the pro~ess, the deceased came iit contact and unwit-
tingly brushed with the appellant who had been passing alongwith
the other two accused. Infuriated by the collision, the appellant
·scolded the deceased as untouchable drew out his knife and in- G
flicted a blow on his chest. P.Ws.4 and 5 were on the spot purchas-
ing Datans fro·m the vendor. The other tw·o persons who accompa-
nied the appellant assaulted the companions of the deceased with
sticks. The deceased fell down with bleeding injury and the appel-
. lant and his associates left the place. The deceased was rushed to

• the Hospital, but died the sam~ night.

259
H
260 SUPREME COURT REPORTS [1992] I S.C.R.

A On recording the statement of PW 4 who wa·s on the spot
alongwith PW 5 a case was registered. The crime though originally
registered for the offence under Section 307, IPC, was altered to
Section 302, !PC. After investigation the appellant and two others
were charge-sheeted.

B The prosecution adduced evidence to prove the relationship
between the two factions and details of the investigation. The de-
fence plea was that the incident did not happen in the manner in
which .it had been stated, and that the appellant was not involved. It
was alleged that there was a collision between the cyclists followed
by a commotion in the course of which injuries had been sustained
c by the deceased. Evidence was adduced to prove this plea.

The Sessions Judge rejected the prosecution case, considered
the defence version more probable and acquitted the accused per-
sons. The trial court found that the genesis of the crime as put
forward was improbable. The appellant had mingled with Harijans
boys as a sportsman in the past, and there was no reason for him to
D
be annoyed and that the injuries sustained by the two companions
of the deceased were simple and superficial and could be self in-
flicted and that if they were assaulted by all the four accused the
assault would have resulted in more serious injuries.

On appeal by the State, the High Court convicted .the appel-
E lant for the offence under Section 304 Part II, IPC and sentenced
him to undergo imprisonment for a term of five years. It re-exam-
ined the entire evidence and concluded that the account given by
the eye-witness was true, that the reasons given by the Trial Court
for rejecting the same as not sustainable. It found no infirmity in
the evidence of the witnesses and their testimony wholly reliable.
F On the medical evidence it found that the deceased was stabbed in
the left loin from the side, the .wound being cavity deep resulting in
a cut of the spleen and the kidney, and lent corroboration to the
testimony of the 4 PWs that• the appellant had given a knife blow on
the left loin of the deceased ..
G In the appeal to this Court it was contended that the High
Court had disregarded the principles for dealing with an appeal
against an order of acquittal, and that the absence of blood on the
spot where the incident occurred and the weapon seized throw doubt
on the credibility of the investigation; The failure to examine non-
Harijan witnesses was also commented upon as amounting to sup-
H pression of material evidence.
KALUBHA v. STATE 261
. .., Dismissing the appeal, this Court, A
HELD : 1. The High Court has carefully analysed the. entire
evidence and has demonstrated how the trial court has gone wrong
and the conclusions drawn by the trial court are not sustainable on the
evidence. The evidence placed .on record as found by the.High Court is
truthful and proved the fact beyond the shadow of doubt, and the B
involvement of the appellant in the crime is clearly established. [p, 268
C~D)

2. The na~ure of the injuries sustained by tlle deceased and'
(-'-
the medical evidence justify the inference that there would not •have
been the possibility of any blood s.tain remaining on the spot for the
injured was immediately removed from there and the place is one
c
trampled upon by the public. [267 G)

3. In a case where there i.s direct evidence, even the seizure
of the weapon is not very material. [p. 268 A)

4. P.W.4 the complainant and P.W.S I.he person who accom- D
panied the deceased to the hospital have consistently shown that the
injured· was taken in a push-cart to the Government hospital and
.J the medical officer was not available. He was brought to the dispen-
sary wliere PW 16 the doctor's wife gave preliminary treatment.
Thereafter, the injured was taken by the brother in a car to the
Rajkot Hospital. P.W. 16 corroborates .the evidence of P.W.5. The E
fact that the brother of the deceased could not disclose the identity
of the assailant at the earliest opportunity is of no consequence. He
was only anxious to rush the injured to the hospital. If he had not
I probed into the cause of the assault or the identity of the assailant
in that situation or carried a wrong impression about the involve-

t meni of some persons on the .basis of the information conveyed to
him by persons who had no direct knowledge, no inference can be
drawn that there was an attempt to foist the case. [p. 266 D-F)
F

5. It is unlikely that the near relation of the deceased would
allow th.e real culprit to escape and implicate SOll)e innocent person
if he had the opportunity to know the .real state of affairs. If he G
could not get reliable information, it is not likely thaf he would
implicate some innocent person without leaving the matter to be

~.
investigated. [p. 266 F-G)

6. The vague suggestion that the brother of the deceased had
in the first instance implicated appellant's brother and changed his H
262 SURREME COURT REPORTS [1992] I S.C.R.

A stand later is not established on material. The brother of the de-
ceased said that he learnt allout the assault while he was at work.
Since P.W.4 had already left for the police station, it is not neces-
sary for the deceased's brother to make any statement to the police
at that stage. There is no proof that he had given a contrary state-
ment at Rajkot. (pp. 266 G-H; 267 A]
B
7. The trial court was not, therefore, justified in rushing to
the conclusion that the whole case was concocted to falsely implicate
the appellant on account of the strained relationship between the
two groups. '1t had on conjecture and strained reasoning arriv~d at
the conclusion that the prosecution case is not true. (267 A; 268 DJ - 't
c
I
CRIMINAL APPELLATE JURISDICTION : Criminal
. .
Appeal No.
149 of 1981.

From the Judgment and Order dated 16/17.12.1980 of the.Ahmedabad
High Court in Cr!. A. No. 24 of 1979.
D
N.N. Keshwani and R.N. Keshwapi for the Appellants.

Bhushan Dave, Anip Sachthey and Vimal Dev Jat for the Respondents. ....

The Judgment of the Court was delivered by
E
FATHIMA BEEVI, J. The appellant, Pradumansinh Kalubha, along
with others was tried for the murder of one Keshav Uka on 12.2.1978 and
acquitted by the Trial Judge. On appeal by the State, the High Court of
Gujarat .convicted the appellant for the offence under section 304 Part II ~
'Of the Indian Penal Code and sentenced him to undergo imprisonment for
F a term of five years. The appeal by special leave is directed against such
conviction and sentence. -4

The occurrence happened at about 6.00 P.M. in Piplawala Chowk
just in front of a shop. The prosecution case briefly stated is this: Keshav
. Uka was a Harijao Painter residing in a Harijao Colony to the north of the
G Chowk. The Durbars of the village had strained relationship with Harijans
and there had been tension since the last six months prior to the occur-
rence on account of the boycott by the. Harijans of the cinema theatre
owned by Anopsinh, brother of the appellant. The deceased along with
two others was on his way to get brush and Datan. While he had been
turning towards the entrance, he unwittingly brushed with the appellant,
H who had been passing along with the other two accused. Infuriated by the
-
KALUBHA v. STATE [FATHIMA BEEVI, I.] 263

collision, the appellant scolded the deceased, drew out his knife and dealt A
a blow on his chest. The other two accused dealt blows on the companions
of the deceased and caused injuries. They slipped away from. the place
while the deceased fell down with bleeding injury. He was immediately
rushed to the hospital and thereafter to the Nursing Home of Dr. Thakkar
where Gayatri Devi gave some first aid. Keshav Uka was removed to the
Government Hospital, Rajkot. He succumbed to the injuries on the way. B
The crime was registered against the accused persons on recording
the statement of Jivabhai who was on the spot along with Purshottam. The
• injured persons also arrived at the Police Station while the statement was
being recorded. The crime originally registered for the offence under
section 307 was altered to section 3 02. After investigation the three per- . C
sons were chargesheeted.
Jivabhai and Purshottam Khanabhai, both Harijans, claimed that they
were near the scene .when the occurrence happened. Besides these two
witnesses, the two injured also narrated the incident. The medical evi-
dence disclosed that the deceased had an incised wound while the two
witnesses had suffered minor injuries. The prosecution adduced evidence D
to prove the relationship between .the two factions. and details of the
investigation.

The defence plea was that the incident did not happen in the manner
in which it had been stated. The appellant was not involved. There was a
collision between the cyclists at the south-east~m side of the chowk fol- E
lowed by a commotion in the course of which injuries had been sustained
by Keshav Uka. The defence evidence was also adduced.

The learned Sessions Judge rejected the prosecution case, consid-
ered the defence version more probable and acquitted the accused persons.
Reversing the judgment and the order of the Trial Court, the High Court F
re-examined entire evidence and arrived at the conclusion that the ac-
count given by the eye-witnesses is true and that the reasons given by the
Trial Court for rejecting the same are not sustainable.

The High Court was, however, of the view that the act would amount
. only to an offence under section 304 Part II as it cannot be said that the G
appellant had any intention to cause death or such bodily injury as he
Jrnew to be sufficient to cause death, but caused injury which was likely to
rcause death.

' 1 Th.e learned counsel for the appellant in challenging the conviction
and ··~~ntence maintained that the High Court had disregarded the princi-

\
H
·264 SUPREME COURTREPORTS [1992] l S.C.R.

A pies for dealing with an appeal against an order of acquittal. When the
trial court had given the cogent reasons for its findings and the view
taken by the trial court was reasonable and plausible, the High Court
should not have upset the finding and recorded \Ile conviction. It was
. pointed out that the High Court had not found the order as perverse and
that the whole approach of High Court was faulty and the conviction is
B clearly unwarranted and unsustainable. The learned counsel has taken us
through the entire evidence of the case, the appeal being one against the
conviction by the High Court on reversal of the order of acquittal in an
attempt to make out that the appreciation of the evidence by the trial court
which had the advantage of seeing the witness is not improper and the
view taken by the trial court is reasonable. Before dealing in ·detail the -~
C arguments advanced, it shall be useful to refer in short to the background
and the sequence of events and the nature of the evidence that have been
placed on record.

The prosecution story as narrated by the witnesses is this. The Harijans
and th~ Garasia-Durbars in the township of Thangadh were not keeping
D good relationship for the past six months. Anopsinh, the brother of the.
appellant, was the manager of Vasuki Talkies on the South-East of the
chowk. A Harijan teacher was assaulted by Anopsjnh and thereafter the
Harijans boycotted the theatre. "-·

On February 12, 1978, Keshav Uka had gone tci Piplawala Chowk
E With Jagjivan Gokal and Govind Hamir from Nava;Harijanvas at about
6.00 P.M. for purchasing Datan. When they proceeded to purchase a
brush as desired by the deceased who was a painter, they turned back to
pick up the Datan before it is too late. In that process, the deceased came
in contact with the appellant who was annoyed. He scolded the deceased
as unrouchable and inflicted a knife blow. Bhalabhai Jivabhai and Parshottam
F Khanabhai were on the spot purchasing Datans from the vendors. The
other two persons who accompanied the appellant assaulted the compan-
ions of the deceased with sticks. The deceased fell down with bleeding
injury and the appellant and his associates left the place. This occurrence
happened just in front of Haresh Stores. The deceased though rushed to
the hospital died on the same night. The companions of the deceased as
G well as the two persons who were on the spot were put up as eye-wit-
nesses to the occurrence. The witnesses supported the prosecution anct
gave a consistent account.

The reasons given by the learned Sessions Judge for discarding .the
prosecution case are these: The genesis of tI}e crime as put forwardeld is
H improbable. The appellant had mingled with Harijans boys as a sport->man

.I
KALUBHA v. STATE [FATHIMA BEEVI, J.) 265

in the past and there was no reason for him to be annoyed. The injury A
sustained by Jagjivan and Govind were simple and superficial and could
be self-inflicted. If they were assaulted by accused 2, 3 and 4 with sticks,
the assault would have resulted in more serious injuries. Therefore, the
prosecution story regarding the assault on these two witnesses is con-
cocted and this cuts at the root of the prosecution version regarding the
incident and renders it totally improbable. B

The conduct of Bhala Jiva in going to the police station instead of
accompanying Parshottam Khanna to the hospital when the injured was in
a critical condition is strange. The complaint could not have been re-
·-r - corded at 7.00 P.M. The time had been deliberately advanced. The pres-
ence of the two injured persons at the time when the statement was C
recorded when they admitted having gone to the colony and then to the
dispensary indicate the deliberations and delay in recording the complaint.
That casts suspicion regarding the truth of the earliest version. The panchnama
on the injuries of the witness could not have been drawn up at the time
shown.
D
Kanji Uka, the brother of the deceasell, was informed about the
attack. He rushed to the dispensary and on being told about the serious
condition got down a car and took the injured to the Rajkot Hospital. The
injured was conscious and could speak. The eye-witnesses were also present
in.the dispensary. Kanji Uka had, therefore, the opportunity to know the
{dentity of the assailants. He had not however implicated the appellant E
and had on the other hand alleged that the crime was committed by the
appellant's brother, Anopsinh. It is by an afterthought that the·appellant
has been implicated. The material contradiction in the evidence of the
witnesses reveal that they are not witnesses of truth. The prosecution story
'I is, therefore, wholly improbable,. The true genesis of the crime was not
disclosed and after deliberations the concocted story was set up. On ac, F
count of the strained relationship between the Harijans and the ·Garasia
and the tension prevailing in the immediate past, it was quite unsafe to
accept the testimony of the eye-witnesses without iiidependent corrobora-
tion. As such evidence is not forthcoming, the prosecution has to fail. On
such reasoning, the acquittal was recorded.
G
The High Court after analysing the entire evidence has taken the
contrary view and found no infirmity in the evidence of the witnesses and
their testimony wholly reliable. The High Court found on the medical
evidence that the deceased was stabbed in the left loin from the side the
wound being cavity deep resulted in a cut of the spleen and the kidney.
The medical evidence lends corroboration to the testimony of the four H
266 . SUPREME COURT REPORTS (1992] 1 S.C.R.

A ·witnesses that appellant had given a knife blow on the left loin of the
deceased. Regarding the injuries of the two witnesses, the High Court said
...True it is that the injury to both these witnesses were simple and superfi-
cial in nature and could be self-inflicted. In order to reach the conclusion
that they are self-inflicted injuries, there must be basis because all injuries
which are caused on accessible parts of the body can be self-inflicted but
B they necessarily need not be self-inflicted." On examining the prosecu-
tion evidence, the High Court negatived the suggestion that the injuries II
are self-inflicted.

The accused persons were coming from the cinema side and pro-
ceeding towards the village. They were persons known to the witnesses_ -'r
c and could be easily identified. The High Court said that merely because in
the first information Ex.21 details regarding the injuries caused to these
two prosecution witnesses are given, it cannot be urged that there was a I
meeting of minds between the prosecution witnesses. No serious infirmity
has been brought out in the cross-examination of these prosecution wit-
nesses to create a doubt regarding the correctness of their testimony as
D regards the incident in question.

'
The High Court then constdered the evidence of PW-4 (Bhalabhai
Jivabhai) and PW-5 (Parshottam Khana). PW-4 is the complainant an~
PW-5 is the person who accompanied the deceased to the hospital. They
have consistently shown .to the fact that the injured was taken in a push-
E cart to the government hospital and the medical officer was not available.
He was brought to the dispensary of Dr. Thakar where Gayatriben the
·doctor's wife gave preliminary treatment. Thereafter, thti injured was laken
by the brother.in a car to the Rajkot Hospital. Gayatriben (PW-16) cor-
roborates the evidence of Parshottam Khana. The facr that Kanji Uka
coulft not disclose the identity of the assailant at the earliest opportunity is
F of no consequence. He was only anxious to rush the injured to the hospi-
tal. If he had not probed into the cause of the assault or the identity of the
assailant in that situation or carrying a wrong impression about the in-
volvement of some persons on the basis of the information conveyed to
him by persons who had no direct knowledge, no inference can be drawn
that there was an attempt to foist the case. It is unlikely that the near
G relation of the deceased would allow· the real culprit to escape. and impli-
cate some innocent person if he had the opportunity to know the real state
of affairs. If in a case. where he could not get reliable information, it is
not li1"'ly that he would implicate some innocent person without leaving

H
the matter to be investigated. The vague suggestion that Kanji Uka had in
the first instance implicated Anopsinh and changed his stand later is not
•
established on material. Kanji Uka said that he learnt about the assault

•
:, ~· ···, ·!•.·..' - f10'·., '• ·.,,. , T, .-- •''t

while he was at work. Since Bhala Jiva had already· left for the police A
station, ,it is not necessary for. Kanji Uka to make any statement to the
police at ·that stage. There is no proof that he had given a c0ntrary state-
ment at Rajkot. The trial court was not, therefore, justified in rushing to
the conclusion that tlie whole case was concocted to falsely implicate the
appellant on accountpf the strained relationship between the two groups.
B
It has been. argued before us that till the time Kanji Uka disclosed,
the name of Anopsinh as accused before Rajkot Police, the witnesses did'
not know as to who had stabbed the deceased. The witnesses met Kanji
Ul<a at the dispensary. Had they known the name of the appellant that
information would have been collected by Kanji Uka. As already pointed
out Kanji Uka was more anxious to remove the injured to the hospital and c
if be did not make any attempt to gather information regarding the inci-
dent and had only revealed whatever information he got from other sources
at the Rajkot Police Station, it would not follow that the witnesses are not
truthful.

It was then maintained that the Sub-Inspector Thakur could not get D
any information regarding the assailant's name though he met Parshott:im .
and the injured persons at the dispensary. The Inspector has clearly de-
posed that on getting the information about the incident, he rushed to the
spot to verify. whether such an incident had happened and bitving seen the
injured, he immediately proceeded to make. necessary arrangements to
;.,aintain law and order. He did not register a case before proceeding to E
the hospital or start the investigation. It was not, therefore, necessary to
interrogate ihe persons present there. He went to the police station where
the complaint was registered, made arrangements for sending the injured
· to the hospital, visited the scene and proceeded with the investigation. At
that stage, he had questioned the witnesses. There is, therefore, nothing
suspicious in the steps taken by the investigating officer. There cannot F
also be any suppression by the police from the fact that the deceased
according to PW-17 was conscious and had answered her querries. She is
not aware as to what answer the deceased has given to the police officer.

According to the leamed counsel, the absence of blood on the spot
near the Haresh Stores, the absence of blood in the weapon seized throws G
doubt on the credibility of the investigation. The failure to examine non-
harijans witnesses is also commented upon amounting the suppression of
material evidence. The nature of the injuries sustained by the deceased
and the medical evidence justify the inference that there would not have
been the possibility of any blood stain remaining on the spot for the
injured was 'immediately removed from there and the place is one tram- H
268 SUPREME COURT REPORTS 11992] I S.C.R.

A pied upon by the public. It is quite possible that a large crowd gathered at
the scene immediately after the occurrence and if no blood could be
detected by the inspector, it is not possible to infere that the incidence did
not happen at the spot. The presence of blood in the weapon is also of no
consequence and no incriminating statement has been made by the ac-
cused on the production of the same. In a case where there is direct
B evidence, even the seizure of the weapon is not very material.

It has been contended that the acquittal may not be disturbed unless
the findings of the trial court are perverse and without cogent reasons for
differing from the trial court the reversal is not justified according to the
counsel. It is also a case where two views are possible and that which is
C favourable to the accused has to prevail, it is argued. Though the proposi-
tion of law and the principles to be followed are not disputable, we find
no force in the argument. We find that the High Court has carefully
analysed the entire evidence and has de1nonstrated ho\v the trial court has
gone wrong and the conclusions drn\vn by the trial court are not sustain-
able on the L'vidence. It is not a c:lse \Vhere the High Court has failed to
D observe the caution or 1nisdirected itself in drav.ring the conclusions. \Ve
agree that the trial court had on conjecture an(! strained reasoning arrived
at the conclusion that the prosecution case is not true. The evidence
placed 011 record '" found by the High Court is truthful and proved the
fact beyond the shadow of doubt and the involvement of the appellant in
the crin1e is clearly established. \Vt' find no reason to interfere \Vith the
E judg111e111 of the l·ligh Court.

For 1he fore~oin!:! rl':1-;011s, the appeal 1nust fail. The appeal is ac-
cordingly disn1issed.

N\'.K. Appeal dismissed.