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CR.A/1635/2004 16/ 17 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1635 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================================
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 ?
=========================================================
THAKORE
DIRAJI HAMIRJI - Appellant
Versus
STATE
OF GUJARAT - Respondent
=========================================================
Appearance
:
MR
JAL SOLI UNWALA for
Appellant.
MR KL PANDYA, ADDL.PUBLIC PROSECUTOR for
Respondent.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 18/01/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
The
appellant is convicted for having committed murder
of Poonabhai Nathabhai Dantani on 16.5.2003 at about 12.00 hours in
the midnight in the Vagharivas of village Chalasana by causing fatal
injuries to the deceased on his head with a dharia. He is sentenced
to undergo imprisonment for life and to pay a fine of Rs.500/, in
default, to undergo S.I for six months, by the Sessions Court,
Mehsana while deciding Sessions Case No. 144/2003, by judgment and
order dated 23.8.2004.
2. As
per the prosecution case, victim Poonabhai Nathabhai Dantani was
engaged in the vocation of beating drums. Just prior to the incident,
he had gone to the house of accused, appellant Dhiraji Hamirji
Thakore, for that purpose and there was some dispute between them. At
the time of the incident, when the deceased was sleeping in front of
his house at about 12.00 hours in the midnight and his wife and
daughters were sleeping in the osari of the house, the
appellant allegedly went there, armed with a dharia and inflicted
fatal injuries on the head of the deceased and then went away
leaving behind the dharia, used in the incident, near the water-tank
in front of the house of the deceased. Witness Reshamben, wife of the
deceased, Ashaben, daughter of the deceased, Jadiben, sister-in-law
of the deceased and, Dasharathbhai, brother of the deceased, all saw
the appellant going away from the place of the incident. As it was
midnight and as it was a full-moon-day, they identified the accused
in the moonlight. It is the case of one of the witnesses that she
chased the appellant, but, in vain. The deceased was taken to the
Hospital and was declared brought dead. The police was informed about
the incident and FIR was given by Reshamben. The offence was
registered on the basis of the FIR and investigated and, the police
having found sufficient material, filed charge sheet against the
appellant in the Court of learned J.M.F.C.Kadi, who, in turn,
committed the case to the Court of Sessions at Mehsana and Sessions
Case No. 144/2003 came to be registered.
2.1 Charge
was framed against the appellant-accused at Exh.3, to which he
pleaded not guilty and claimed to be tried. Considering the evidence
led by the prosecution, the trial Court came to the conclusion that
the prosecution was successful in proving the charge levelled against
the appellant and convicted the appellant for the offence of murder
of Poonabhai Nathabhai Dantani. It is this judgment and order dated
23.8.2004 rendered in Sessions Case No. 144/2003 by the Sessions
Court, Mehsana, which is under challenge.
3. We
have heard learned advocate Mr.Unwala for the appellant and learned
A.P.P. Mr.Pandya for the respondent-State.
4. Learned
advocate Mr.Unwala has raised the following contentions:-
4.1 The
prosecution case depends on four eye witnesses, who claim that they
saw the appellant running away from the place of the incident soon
after the incident. However, none of them has seen the actual
occurrence and all of them claim to have seen only the backside of
the person going away. At the relevant time, there were no lights,
but, they claim to have seen the assailant in the moon-light.
4.2 These
witnesses cannot be relied upon for the reason that their evidence is
inconsistent on major aspects, which would affect the quality of
investigation as well.
4.3 Mr.Unwala
submitted that witness Ashaben (exh.15) is daughter of the deceased.
She, in her cross-examination, deposes that she and her mother were
sleeping in front of the house and the deceased was sleeping near the
water-tank adjacent to their house. She states that the
accused-appellant Dhiraji inflicted a dharia blow on the deceased and
then ran away throwing the dharia near the water-tank. She says that
she and her mother raised shouts, hearing which, her uncle
Dasharathbhai came. They saw that the victim was injured on his head.
She says that she and her uncle took her father to Kadi Government
Dispensary and from there to Ahmedabad and, the deceased succumbed to
the injuries on the way. She then refers to the quarrel that took
place at the house of Virsangji regarding beating of drums.
4.4 From
the cross-examination of witness Ashaben (Exh.15), it transpires that
the witness was married and was at her parental house because of some
dispute with her husband. From her cross-examination, it reveals that
the witness was wide awake when the incident occurred. Her uncle
Dasharathbhai was sleeping on the otta of his house. During
her cross-examination, she accepts the suggestion that the man, whom
she saw, was running towards the road and she only saw his back. The
man was running speedily. She denies the suggestion that the name of
the assailant was revealed to her by her mother. She also denies the
suggestion that she had not seen her father being assaulted. She
asserts that she has stated before the police that she had seen her
father being assaulted. About witness Jadiben, she says that she came
after her uncle Dasharathbhai came. She admits that she learnt from
her mother that Dhiraji had assaulted her father. She denies the
suggestion that she had not seen any occurrence.
4.5 Witness
Reshamben (Exh.25) is the widow of the deceased and mother of witness
Ashaben. She also states that she was sleeping outside the house with
her two daughters and, at about 12.00 midnight Dhiraji, the
appellant, came to their house. At that time, she was awake and
Dhiraji assaulted her husband with dharia. The blow was given on his
forehead. She tried to intervene and catch Dhiraji while he was
trying to escape. She says that she and her daughter brought Dhiraji
from her home. On shouts being raised, Jadiben, Dasharathbhai and son
of the witness had come. She states that she had given complaint to
the police. During the cross-examination, she states that her husband
was injured with dharia on his forehead near eyebrow. He was sleeping
with his face up and at that time, Dhiraji came and suddenly
inflicted dharia blow. Because of injury, there was profuse bleeding.
She says that she had also ran after Dhiraji for some distance
raising shouts. During her cross-examination, she states that the
accused was arrested on that very night at about 4.00 A.M. She says
that she had been with the police for arresting the accused. He was
arrested along with the dharia.
4.6 The
evidence of Dasharathbhai Dantani (Exh.16) and Jadiben (Exh.18) are
on the same lines.
4.7 Dr.Rajendrakumar
A.Acharya (Exh.5) states that he had performed the post-mortem of
dead body of the deceased and had noticed external injuries as
recorded in column No.17 of the post-mortem notes. Internal injuries
were as recorded in column No.19 of the post-mortem notes. Both the
injuries are narrated as under :-
I/W
about 13 cm in diameter bone cut, circular, brain (Rt to left side,
upward direction) material seen over skull. Front side about 8 cm
from point between two eyebrows. Rt.side about 8 cm from mastoid
process. Rt.side. Lt.side about 5 cm from Lt side mastoid process.
Occipital region about 3 cm from cervical vertebra. Above skull
bone cutting and joined with about 2 cm with skin on occipital
region- Brain material seen.
Elevated
fracture of frontal. Both side parietal bone and occipital bone.
Extending landmark frontal bone from 8 cm mid point between
eyebrows. Rt.side parietal bone from about 8 cm above Rt mastoid
process. Lt.side parietal bone above about 5 cm from Lt mastoid
process occipital region from above about 3 cm from cervical
vertebra. Skull bone above landmarks cuts in about 13 cm diameter.
Brain material seen .
4.8 The
Doctor has opined that the cause of death was shock due to injury to
a vital organ, like brain. The evidence of the Doctor is very
relevant. The possible cause of death was injury to the organ, like
brain. He says that the internal injuries were corresponding to
external injuries and were sufficient in the ordinary course of
nature to cause death. They were ante-mortem. During the
cross-examination, he has admitted that no injury was noticed on the
brain-material. He had not removed the brain from the skull for
examination.
4.9 Mr.Unwala
submitted that if the above evidence is considered as a whole, the
prosecution cannot be said to have proved the case against the
appellant beyond reasonable doubt. The trial Court has overlooked
this aspect and, therefore, the appeal may be allowed.
5. Learned
A.P.P. Mr.Pandya has opposed this appeal. According to him, the trial
Court has considered all relevant aspects and has recorded
conviction.
5.1 Mr.Pandya
submitted that the evidence of Reshamben, Ashaben, Jadiben and
Dasharathbhai is natural and consistent with each other. A minor
discrepancy in their evidence would not render their evidence
unbelievable or untruthful. Mr.Pandya submitted that so far as the
actual occurrence is concerned, the witnesses have come out with a
truthful version. They all have identified the appellant as the
person leaving the place of incident. In fact, Reshamben claims to
have seen the appellant inflicting dharia blow, even though, in her
cross-examination, she has stated that she had seen the appellant
leaving the place of the incident from behind. The appellant has been
properly identified by this witness. The appellant had no business to
go to the place of the incident in the midst of a night and had no
reason to run away from the place. This factor deserves due
weightage. The trial Court has, therefore, rightly recorded the
conviction and the Court may not interfere with the impugned
judgment, in exercise of the appellate jurisdiction.
6. If
the evidence adduced by the prosecution is seen in the context of
rival side submissions, what emerges is that witnesses Reshamben
(Exh.25), Ashaben (Exh.15), Jadiben (Exh.18) and Dasharathbhai
(Exh.16) can reasonably be expected to be at the place of the
incident in the midst of the night. Ashaben and Reshamben were
staying in the same house with the deceased, being the daughter and
wife of the deceased, and they were sleeping just near the place
where the deceased was sleeping. Jadiben and Dasharathbhai are
relatives of the deceased and were staying at the adjoining house.
They were also sleeping outside the house. All these witnesses have
consistently stated that they saw the appellant fleeing from the
place of the incident throwing the dharia. Ashaben, in her
examination-in-chief, has stated that she saw the appellant giving
dharia blow to her father and then she saw him leaving the place
after throwing the dharia near the water tank. However, she has been
ably cross-examined and she admits that she saw the assailant from
behind. She also admits that she learnt from her mother about the
appellant having inflicted dharia blow to her father. One would be
tempted to consider this aspect as ruling out the possibility of
Ashaben being an eye witness, but, it cannot be overlooked that
Ashaben has consistently stuck to her version in her deposition that
she was awake during the night till the incident occurred and even
thereafter. She is semi-literate and comes from a rustic strata of
the society and her one admission that she learnt from her mother
that the appellant had assaulted the deceased may have been made not
realizing the nicety of law and effect on her evidence.
7. Apart
from Ashaben, there is evidence of Reshamben, Jadiben and
Dasharathbhai, who all claim to have seen the appellant going away
from the place of incident. To that extent, at least Ashaben’s
evidence deserves to be accepted. The appellant does not stay in the
vicinity of the place of incident. He had no reason to be there in
the midst of the night and he had no reason to flee from the place.
His presence at the place of the incident is established. Under the
circumstances, some discrepancies in the evidence of Ashaben could
not negative the effect of other evidence on record, which is
otherwise consistent in implicating the appellant.
8. Similarly,
much was argued about the evidence of Reshamben, who says that she
chased the appellant and brought him back from his home. She says
that she did this along with her daughter. However, Ashaben is silent
about the same. During the cross-examination, Reshamben says that
after assaulting her husband, the appellant started running and,
therefore, she also ran after him for about 15 feet raising shouts.
However, she could not reach the assailant. It is true that the
version of Reshamben about chasing the appellant and bringing him
back from his home is not supported by any other evidence and is
something which is not consistent with the prosecution case. But,
this inconsistency is only about his subsequent conduct. She had
tried to add some imagination and imaginary embroidery to her version
because the appellant was arrested by the police subsequently. But,
whether this, by itself, would render the entire deposition of
Reshamben untruthful, is a question that needs to be addressed.
8.1 The
evidence of this witness (Reshamben) is found to be consistent with
the prosecution case and other prosecution evidence. This
exaggeration will not render her deposition totally untruthful.
Falsus in uno falsus in omnibus is not the principle that can
be followed in such a situation. The Court has to separate truth from
the untruthful part of the evidence, like separating chaff from the
grains. In this regard, reference may be made of a decision of the
Apex Court in State of U.P. vs. Anil Singh, AIR 1988 SC 1998,
where the Court has observed in para-15 thus :-
15. It
is also our experience that invariably the witnesses add embroidery
to prosecution story, perhaps for the fear of being disbelieved. But
that is no ground to throw the case overboard, if true, in the main.
If there is a ring of truth in the main, the case should not be
rejected. It is the duty of the court to cull out the nuggets of
truth from the evidence unless there is reason to believe that the
inconsistencies or falsehood are so glaring as utterly to destroy
confidence in the witnesses. It is necessary to remember that a Judge
does not preside over a criminal trial merely to see that no innocent
man is punished. A Judge also presides to see that a guilty man does
not escape. One is as important as the other. Both are public duties
which the Judge has to perform .
8.2 The
witnesses give certain aspects because they feel that it was
compulsory to answer the questions put to them in the
cross-examination or else they would be believed as untruthful
witnesses and, therefore, one or the other explanation or answer is
given. Therefore, adding of some embroidery would not render the
entire deposition untruthful, if the deposition has a ring of truth
in the main. In our opinion, evidence of Reshamben is given by her in
a natural way and has a ring of truth in it. Her presence was natural
and she has reacted naturally.
8.3 The
evidence of Jadiben and Dasharathbhai also clearly implicates the
appellant and is consistent with the evidence of Reshamben and
Ashaben, so far as it inculpates the appellant. These pieces of
evidence collectively prove the guilt of the appellant beyond any
reasonable doubt.
9. It
was then argued that the cause of death indicated in the post-mortem
notes by the Doctor is injury to a vital organ, like brain; whereas
the Doctor, in his evidence, has indicated that he had not noticed
any injury to the brain and he had not checked the brain. Therefore,
there is no positive and reliable evidence about the cause of death.
It is not possible to accept this contention either. The nature of
injury, as described in the post-mortem notes quoted by us in the
earlier part of this judgment, would go to show that the head blow
was so severe that it caused an injury almost across the face right
upto the neck. The head was virtually chopped off, except that it
remained connected with the trunk of the body only with the help of
strip of two inches of skin. This injury is of a nature, which would
not leave anything to be certified by medical evidence or to be
imagined by a layman, that a Court could understand the cause of
death. The evidence established that the assault was made by the
appellant and in that assault, injuries described in column No.17 of
the post-mortem notes were caused. Looking to the severity of the
injuries, no certification by the Doctor is necessary that it was the
injury which caused death or it was sufficient in the ordinary course
of nature to cause death. This contention, as aforesaid, therefore,
cannot be accepted.
10. It
was then argued that the possibility of the incident having some
roots in Reshamben having illicit relationship with her son-in-law
(husband of Ashaben) cannot be ruled out, as both of them were
missing after the incident. Barring stray suggestions during the
cross-examination of the witness, which came to be denied by the
witness, the defence has not indicated any material to show that
there was such a relationship between the husband of Ashaben and
Reshamben.
11. In
the light of the foregoing discussion, we are of the view that the
trial Court was justified in accepting the prosecution case and
convicting the appellant for the offence of murder of Poonabhai
Aathabhai Dantani. We do not find any merits in the appeal. We are in
broad agreement with the reasonings adopted by the trial Court. The
appeal, therefore, fails and stands dismissed.
[A.L.Dave,J.]
[Harsha
Devani,J.]
(patel)
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