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CR.A/420/2005 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 420 of 2005
With
CRIMINAL
APPEAL No. 1609 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
MAHADEVJI
RAYAJI THAKOR
Versus
THE
STATE OF GUJARAT
=========================================
Appearance :
MS
BANNA DATTA for the Appellant
MR HH PARIKH, APP for
Respondent
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 16/04/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. Appellants
have preferred these appeals under section 374 of the Code of
Criminal Procedure, 1973 and challenged the judgment and order of
conviction and sentence rendered by learned Additional Sessions
Judge, 3rd Fast Track Court, Banaskantha at Palanpur on
17.12.2003 in Sessions Case No.176 of 2000 convicting them for
offences punishable under section 302 read with section 147, 148 and
149 of the IPC and also under section 135 of the Bombay Police Act
and sentencing them to various sentences.
2. According
to the prosecution case, on 17.6.2000 at about 5:00 in the evening,
when the complainant Swaroopji and his son Kanchanji were at the
borewell in their field, accused Suraji Nagjiji came there in
inebriated condition, therefore, Swaroopji and his son
Kanchanji rebuked him. Thereafter, they returned home and again went
to borewell in their field with Bhikhaji Oghaji and Amraji Gambhirji
at about 8:30 at night. When they reached at the borewell in a jeep,
the accused formed unlawful assembly with object to make deadly
assault armed themselves with deadly weapons. Accused Suraji called
deceased Kanchanji on the pretext of talk and accused Vikramji @
Tikaji, accused Nagjiji Vihaji and accused Jivanji Ishwarji caught
hold of Kanchanji and accused Suraji Nagjiji and accused Mahadevji
Rayaji made assault with knife and caused injuries on chest, stomach
and neck of Kanchanji. On account of the injuries, Kanchanji died.
3. On
the basis of the first information report lodged by PW 4 Swaroopji
Harchandji, offence was registered and investigation was started. At
the end of investigation, charge sheet came to be filed against the
accused for the aforesaid offences. As the offence was triable by
Sessions Court, the case was committed to the Sessions Court and it
was registered as Sessions Case No.176 of 2000. The learned
Additional Sessions Judge framed charge Exh-12 for the aforesaid
offences against the accused. Charge was read over and explained to
them. The accused denied having committed the offences and claimed
to be tried. Therefore, the prosecution adduced evidence. On
completion of recording of evidence, the incriminating circumstances
appearing in the evidence against the accused were explained to them.
The accused in their further statement recorded under section 313 of
the Code of Criminal Procedure, 1973, stated that they are innocent.
After hearing the learned Additional Public Prosecutor and learned
advocate for the accused, the Court convicted the the accused and
sentenced them as mentioned hereinbefore. Being aggrieved by the
said decision, the accused have preferred these appeals.
4. As
both these appeals arise out of the same judgment, both are heard and
decided by this common judgment.
5. We
have heard learned advocate Ms. Banna Dutta for the appellants and
learned APP Mr. HH Parikh at length and in great detail. We have
also perused the impugned judgment and record and proceedings of the
trial Court.
6. In
order to prove the case, the prosecution examined three eye
witnesses. PW 4 Swaroopji Harchandji, PW 5 Amraji Gambhirji and PW 6
Bhikhaji Ogharji.
7. PW
4 Swaroopji Harchandji (Exh-54) has in detail described the incident.
According to the witness, on the day of incident at about 5:00 p.m.,
when he was at the field with his son Kanchanji, accused Suraji came
there in inebriated condition and hence they rebuked him.
Thereafter, at about 8:30 at night, he with his son deceased
Kanchanji, Amraji Gambhirji and Bhikhaji Ogharji went to the borewell
in the field, at that time, accused Suraji called Kanchanji on the
pretext of having talk with him and as soon as, Kanchanji went near
them, accused Nagjiji and accused Vikramji caught hold of arms and
shoulder of Kanchanji, accused Jivanji Ishwarji caught hold of his
legs and accused Suraji and accused Mahadevji started inflicting
knife blows and on account of injuries, Kanchanji fell down. The
witness has been extensively cross-examined by the accused. The
cross examination indicates that the witness has stuck to his version
given in the examination-in-chief. The accused have not been able to
elicit in the cross examination any material in their favour to
indicate that the evidence is not trustworthy. This evidence
indicates that before the incident, the complainant and deceased
Kanchanji rebuked accused Suraji. Therefore, keeping grudge of this,
the accused armed with deadly weapons, made assault on the deceased.
8. The
evidence of PW 5 Amraji Gambhirji Ex-58 and PW 6 Bhikhaji Ogharji
Exh-62 are on the same line. Both the witness have supported the
prosecution case. The accused have not been able to elicit from
cross-examination that the witnesses are not reliable and
trustworthy. On the contrary, it clearly establishes their
involvement in the incident. In view of this consistent evidence, it
emerges that prior to the assault by the accused, the complainant and
the deceased had rebuked accused Suraji. Therefore, accused Suraji
with other accused armed with deadly weapons with object to do away
with the deceased, made assault in same night. The manner in which
attack was made, it was with a pre-determined mind. Therefore, in
our considered view, the learned trial Judge was justified in coming
to the conclusion that the accused formed an unlawful assembly, armed
with deadly weapons caused fatal injuries to the deceased.
9. The
medical evidence of PW 1 Dr. Bhikhubhai Akediwala, Exh-20 indicates
that there were about four external injuries on the vital parts of
Kanchanji. It also indicates that the injuries were possible with
knife and the injuries were sufficient in the ordinary course of
nature to cause death. The postmortem report Exh-23 indicates the
injuries and cause of death was hemorrhagic shock due to rupture of
vital organs like liver and spleen. In view of this evidence, it
clearly emerges that the death was homicidal.
10. In
view of above evidence, in our considered view, the learned trial
Judge was justified in recording conviction of the accused for the
offences charges against them. The learned advocate for the
appellants has not been able to point out any infirmity in the
impugned judgment. Therefore, the appeals must fail.
11. In
the result, the appeals fail and stand dismissed. The judgment and
order of conviction and sentence rendered by learned Additional
Sessions Judge, 3rd Fast Track Court, Banaskantha at
Palanpur on 17.12.2003 in Sessions Case No.176 of 2000, is hereby
confirmed.
(A.L.
DAVE, J)
(BANKIM.N.MEHTA,
J)
shekhar/-
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