{"id":179049,"date":"2008-10-15T00:00:00","date_gmt":"2008-10-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-thakore-on-15-october-2008"},"modified":"2015-07-09T03:42:42","modified_gmt":"2015-07-08T22:12:42","slug":"state-vs-thakore-on-15-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-thakore-on-15-october-2008","title":{"rendered":"State vs Thakore on 15 October, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Thakore on 15 October, 2008<\/div>\n
Author: C.K.Buch,&Nbsp;Honourable Mr.Justice Patel,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCC\/2\/2007\t 2\/ 26\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nCONFIRMATION CASE No. 2 of 2007\n \n\nWITH\n \n\nCRIMINAL\nAPPEAL No.1171 of 2007\n \n\n \n\n\n \n\nFor Approval\nand Signature:  \n \nHONOURABLE\nMR.JUSTICE C.K.BUCH\n \n\n  \nHONOURABLE\nMR.JUSTICE DN PATEL\n \n \n========================================= \n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\t \n\t\t \n\t\t \n\t\n\t \n\t\t \n\t\n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\n\n \n\n=========================================\n \n\nSTATE\nOF GUJARAT - Appellant(s)\n \n\nVersus\n \n\nTHAKORE\nDASHRATHJI SHIVUJI - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nHL JANI, LD.ADDL. PUBLIC PROSECUTOR for\nAppellant(s) : 1, \nMR JM BAROT for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE C.K.BUCH\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t\t \n\n \n\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE DN PATEL\n\t\t\n\t\n\n \n\nDate\n: 15\/10\/2008 \n\n \n\nCOMMON\nORAL JUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE C.K.BUCH)<\/p>\n
\tThe
\n\tpresent Criminal Confirmation Case has been registered on account of
\n\tthe reference received from the Court of learned  Additional
\n\tSessions Judge, Fast Track Court No.3, Mehsana, wherein the said
\n\tlearned  Additional Sessions Judge has awarded Capital Punishment to
\n\tthe respondent herein-Dashrathji Shivuji Thakor, who is the
\n\tappellant of Criminal Appeal No.1171 of 2007, resident of village
\n\tVirta, Taluka Mehsana, District Mehsana, while dealing with Sessions
\n\tCase No.51 of 2007. It is submitted in the said report made by the
\n\tlearned trial Judge that the judgment and order of conviction and
\n\tsentence awarding Capital Punishment to the respondent herein dated
\n\t30th August 2007 may be confirmed by this Court in light
\n\tof the provisions of Sections 366(1) and 366(2) of the Code of
\n\tCriminal Procedure, 1973. The said report says that the respondent
\n\tat the time of awarding sentence was intimated about his right to
\n\tassail the said judgment and order of conviction and death sentence
\n\timposed, within a period of 30 days, if he so desires. This Court
\n\thas received certified copy of the judgment and order as well as the
\n\tR & P of Sessions Case No.51 of 2007.\n<\/p>\n
\tThe
\n\tvery judgment and order of conviction and sentence has been assailed
\n\tby the respondent-appellant by way of preferring Criminal Appeal
\n\tNo.1171 of 2007 before this Court. This Court (Coram : R.P. Dholakia
\n\tand K.S. Jhaveri, JJ) has admitted the said appeal and has also
\n\tordered that the said appeal be heard along with present
\n\tConfirmation Case No.2 of 2007.\n<\/p>\n
\tShri
\n\tH.L. Jani, learned Additional Public Prosecutor and Shri J.M. Barot,
\n\tlearned counsel appearing for the respondent, who is appellant of
\n\tCriminal Appeal, have jointly submitted that considering the nature
\n\tof proceedings, both these proceedings i.e. Confirmation Case No.2
\n\tof 2007 and Crimnal Appeal No.1171 of 2007, may be heard and decided
\n\tsimultaneously by a common judgment.\n<\/p>\n
\tShri
\n\tH.L. Jani, learned Additional Public Prosecutor and Shri J.M. Barot,
\n\tlearned counsel appearing for the respondent-convict, have taken us
\n\tthrough the oral as well as documentary evidence led during the
\n\tcourse of trial and also the judgment and order of conviction and
\n\tsentence awarding death penalty to the respondent-convict. Shri H.L.
\n\tJani, while making submissions, in response to the query raised by
\n\tthe Court, has submitted that considering the totality of facts and
\n\tcircumstances of the case and the basic case placed against the
\n\trespondent-convict, the extreme penalty i.e. death penalty, was not
\n\trequired to be imposed in the present case and the imprisonment for
\n\tlife to the respondent-convict would have been the most adequate and
\n\tsufficient punishment. The learned trial Judge before imposing the
\n\tdeath penalty ought to have considered the facts and circumstances
\n\tof the case vis-a-vis the other relevant aspects which are required
\n\tto be considered closely before imposing the extreme penalty.  Shri
\n\tH.L. Jani, learned Additional Public Prosecutor, has also pointed
\n\tout more than two decisions of the Apex Court where the Apex Court
\n\thas considered various aspects while dealing with the rarest of rare
\n\tcases. According to Shri Jani, the observations made by the Apex
\n\tCourt if are considered, the present case would not fall in the
\n\tcategory of  the rarest of rare case and, therefore, the death
\n\tpenalty may not be confirmed by this Court. However, it is submitted
\n\tby Shri Jani, learned Additional Public Prosecutor, that there is a
\n\tstrong case on merit and no error which can be said to have been
\n\tcommitted by the learned trial Judge for holding the
\n\trespondent-convict guilty for the charge of offence punishable under
\n\tSection 302 of the Indian Penal Code and, therefore, According to
\n\tShri H.L.Jani, it is a case where the respondent-convict ought to
\n\thave been imposed imprisonment for life.\n<\/p>\n
\tDuring
\n\tthe course of submissions, Shri J.M. Barot, learned counsel
\n\tappearing for the respondent-convict, has submitted that this is a
\n\tcase where the respondent-convict, even as per the case of the
\n\tprosecution, committed offence when he was under the influence of
\n\tAlcohol and the death of victim is nothing but undue anger of
\n\trespondent-convict. According to the prosecution, the
\n\tvictim-Vinaben, who was the wife of respondent-convict, had no
\n\tcordial relations with respondent-convict, who was her husband, and
\n\tthere were instances of quarrels between them and on account of the
\n\tsame she occasionally used to go to her parental home and
\n\tultimately, she used to come back to co-habit with her husband
\n\ti.e.respondent-convict. On the date of incident, Vinaben had just
\n\treturned from her parental home. When Vinaben and respondent\n<\/p>\n
\t-convict were returning from her parental home, there was a quarrel
\n\tbetween them and the respondent-convict being habitual drunkard had
\n\tbeaten his wife Vinaben (deceased) prior to the incident on the way
\n\tto her matrimonial home. Thereafter, the respondent-convict had left
\n\tthe house and he had returned after sometime. After returning, he
\n\thad poured kerosene on his wife Vinaben and enkindled her and bolted
\n\tthe house from outside ruthlessly. On hearing the shouts of victim
\n\tVinaben, the people in the neighbouring area had rushed to rescue
\n\tthe victim Vinaben and they had extinguished the fire.\n<\/p>\n
\tSo
\n\tthis is a case, according to Shri Barot, whether according to the
\n\tprosecution, the respondent-convict has killed his wife on account
\n\tof suspicion as to the character of his wife, but this offence
\n\tthough grave would not fall in the category of a heinous crime and
\n\thence, the extreme penalty in such or similar cases is not normally
\n\tawarded by the Courts and on establishment of guilt, the accused
\n\tperson is being sent to jail for life. So it would be at the most a
\n\tcase where the learned trial Judge ought to have felt satisfied by
\n\timposing imprisonment for life.\n<\/p>\n
\tThe
\n\tappeal preferred by the respondent-convict herein is an appeal under
\n\tSection 374 read with Section 386 of the Code of Criminal Procedure,
\n\t1973. Therefore, while upholding the judgment and order of
\n\tconviction and sentence this Court has to record its findings on
\n\tmerits, more particularly on the strength of the evidence available
\n\ton record. Shri J.M. Barot, learned counsel appearing for the
\n\trespondent-convict, has taken us through the charge framed which is
\n\tat Ex.5. It reflects the basic case of the prosecution which reads
\n\tas under :\n<\/p>\n
?S(1)
\n\tThat on 17.12.2007 when the complainant-Thakor Vinaben was in the
\nhouse of Dashrathji Shivuji situated at village Virta, Tal. &
\nDist. Mehsana, you the accused-Thakor Dashrathji alias Kaluji
\nShivuji, who had married to the victim complainant Vinaben prior to
\nfour years of the incident and you used to demand money often from
\nthe complainant who was your wife during the marriage span and as the
\ncomplainant did not pay the same, by getting instigated and by
\nbeating her often as well as by giving her physical and mental
\nharassment and also by falsely doubting her and thereby beating and
\nharassing her, have committed offence punishable under Section 498(A)
\nof the Indian Penal Code.\n<\/p>\n
(2)<\/span><\/p>\n
\t\tFurther on 17.02.2007 at 03-00 p.m. when the complainant-Vinaben
\nwas present at home, you the accused by bolting the house, pouring
\nkerosene lying in the Tin on the complainant Vinaben and igniting her
\nand by bolting the door of the house, had run away,  whereby she died
\nat the Civil Hospital. Thus, you the accused have committed the
\noffence punishable under Section 302 of the Indian Penal Code by
\ncommitting murder of the complainant Vinaben  by pouring kerosene and
\nigniting her.??\n<\/p>\n
\tTo
\n\testablish the guilt of the respondent, the prosecution has led oral
\n\tas well as documentary evidence and it would be sufficient to
\n\tconsider the evidence led by PW-3 Hamir Thakor at Ex.14 and PW-4
\n\tShivuji Thakor at Ex.15.  The evidence of PW-10 Tejiben at Ex.23,
\n\tmother of the respondent-convict, according to us, is also relevant.
\n\tThe learned trial Judge has appropriately considered the said part
\n\tof evidence of PW-10 Tejiben. The medical evidence led by Dr.P.P.
\n\tSoni at Ex.8, who performed the autopsy, is found sufficient by the
\n\tlearned trial Judge to hold that the death of Vinaben is a homicidal
\n\tdeath which had occurred on account of burn injuries sustained by
\n\tVinaben. It is not a case that the death of Vinaben was on account
\n\tof the injuries other than burn injuries. So there was no need for
\n\tus to go into detail discussion of the entries made in the
\n\tpostmortem note prepared by Dr.P.P. Soni. The most vital part of
\n\tevidence, according to us, which even in absence of aforesaid
\n\tevidence is sufficient to link the respondent-convict with the crime
\n\tis the dying declaration of Vinaben.  There are more than one dying
\n\tdeclaration on record and all of them, according to us, are found
\n\tproved applying the provisions of the Indian Evidence Act.\n<\/p>\n
\tAs
\n\tthe victim Vinaben was inflicted burn injuries by pouring kerosene
\n\tand igniting her, her relatives had taken her to hospital. So the
\n\tdoctor was supposed to ask the cause for injury sustained by her.
\n\tThe case papers of the Government Hospital, Mehsana, at Ex.49 show
\n\tthat the victim Vinaben had told the doctor that she had sustained
\n\tthose injuries because her husband had poured kerosene on her and
\n\tthereafter ignited her and he is the person responsible for causing
\n\tinjuries. According to prosecution, the incident had occurred
\n\tsometime prior to 02-30 p.m. i.e. in the afternoon hours. So in
\n\tcouple of minutes, she had disclosed the identity of the person who
\n\twas responsible for causing injuries i.e. respondent-her husband.
\n\tAfter her admission in the hospital, she was taken Female Burns
\n\tWard. The history was again asked to victim Vinaben and she had
\n\tnarrated the same thing before the doctor who admitted her in the
\n\thospital. The entire case papers also show that similar history was
\n\tgiven by the victim Vinaben earlier. The doctors are the independent
\n\twitnesses. The case papers are produced during the course of trial.
\n\tAs such the genuineness of the same is not under challenge since
\n\tduring the court of trial the witnesses have proved the same. It is
\n\tsettled that the dying declaration may not be a detailed dying
\n\tdeclaration. A statement regarding cause of death is precisely
\n\tstated than such the statement would fall in the category of Section
\n\t32 of the Indian Evidence Act. According to us, the history given to
\n\tthe doctor can be given the weightage of dying declaration within
\n\tthe meaning of Section 32 of the Indian Evidence Act. Fortunately,
\n\tVinaben being a young lady of about 30 years was able to even on
\n\taccount of 95% burn injuries. The Police Inspector, Mehsana, had
\n\trecorded the said complaint and he has proved the said complaint
\n\tstating in detail as to how he recorded the complaint of the
\n\tcomplainant-Vinaben (deceased) and obtained her thumb impression
\n\tbelow the complaint at Ex.36. The said FIR is also a dying
\n\tdeclaration. The FIR being a detailed FIR describing the contingency
\n\tunder which the Vinaben was victimized by her husband on different
\n\toccasions and at the time of incident when he ultimately poured
\n\tkerosene and ignited her. Vinaben has also narrated that prior to
\n\ttwo days of the incident in question, she had been to her parental
\n\thome with her youngest daughter Aasha and they were there for two
\n\tdays and on the date of incident at about 09-00 a.m., they were
\n\treturning to village Virta i.e. at her matrimonial home, along with
\n\ther husband. At that time some derogatory remarks were made by her
\n\thusband impliedly impeaching her for looking at other persons moving
\n\tin town Patan and she was beaten there. It appears that since then
\n\tthe respondent-convict must have decided to deal with the victim
\n\tVinaben in his own manner and he was not able to forgive her for her
\n\talleged conduct at town Patan. It is mentioned in the FIR that her
\n\thusband was suspecting her character and therefore only, he poured
\n\tkerosene and ignited her. Even cross-examination has also been made
\n\tof the said Police Inspector, Mehsana, who has proved the complaint,
\n\tbut according to us, this Police Inspector has stood to the test of
\n\tcross-examination. True it is that a person who has sustained more
\n\tthan 90% burn injury may not be in a physical and mental state of
\n\tmind to narrate the incident in such a detail, but there is nothing
\n\ton record to show that she had become unconscious any time prior to
\n\trecording of her complaint.  In the deposition of the father of the
\n\trespondent-convict, one thing has come on record wherein he has
\n\tstated that when she was being taken to hospital, she was conscious.
\n\tIt is in evidence that the respondent-convict had also attempted to
\n\tjump in to the jeep car while the victim-Vinaben was being shifted
\n\tto the hospital,  however, he was snubbed.\n<\/p>\n
\tNo
\n\tsuggestion was made by the defence as to whether the victim-Vinaben
\n\thad ever turned unconscious.  The hospital case papers do not
\n\tindicate that prior to recording of the complaint of Vinaben, any
\n\tstrong sedation was inserted into her body so that she can be
\n\trelieved of the pain. Here when the genuineness of the complaint
\n\tgiven by her in detail is required to be scanned, the Court cannot
\n\tignore one more fact which is brought on record i.e. dying
\n\tdeclaration at Ex.13 recorded at 05-10 p.m. on 17th
\n\tFebruary 2007 i.e. on the date of incident. The said dying
\n\tdeclaration has been proved by PW-2 Chetnaben Damodar Modi-Executive
\n\tMagistrate, by her deposition at Ex.11. This witness has proved the
\n\tentire procedure of recording of the dying declaration by her and
\n\tthe dying declaration at Ex.13 recorded in Question and Answer
\n\tFormat shows that victim Vinaben was conscious even at 05-10 p.m.
\n\tThe endorsement of the doctor was obtained by the Executive
\n\tMagistrate at the top of the dying declaration at 05-10 p.m. i.e.
\n\tbefore recording of dying declaration. This endorsement has been
\n\tproved by the doctor so also by the Mamlatdar in their depostions
\n\tand the genuineness of the said endorsement is not found seriously
\n\tchallenged. So a patient who was conscious at 05-10 p.m. cannot be
\n\tpresumed to be either unconscious or under some disturbed state of
\n\tmind when her complaint came to be recorded by the Police Inspector,
\n\tMehsana Police Station. The victim-Vinaben had matrimonial ties with
\n\tthe respondent-convict of 14 years and had four children. An Indian
\n\twoman having four children and having matrimonial ties of 14 years
\n\tat least would not try to implicate her husband in such a serious
\n\tcrime. The fact of having bolted the door from outside rules out the
\n\tpossibility of commission of suicide by the victim Vinaben on
\n\taccount of alleged mental torture. In the dying declaration recorded
\n\tby the Executive Magistrate, she has stated that at about 03-00 p.m.
\n\tafter consuming liquor, on account of the said quarrel, the
\n\trespondent-convict had beaten up the victim Vinaben and thereafter,
\n\tpoured kerosene on her and ignited her; and at last he bolted the
\n\tdoor of their house from outside. She has further stated that on
\n\taccount of burn injuries she had started shouting and the people in
\n\tthe neighbouring area had gathered on listening her shouts. They had
\n\trushed to rescue her. Her mother-in-law and brother-in-law (elder
\n\tbrother of her husband) had taken her to the hospital and when she
\n\twas brought out of her house, her mother-in-law and others were
\n\toutside her house. So in brief practically she has narrated the
\n\tentire incident which had occurred. When this statement is found
\n\tconsistent with the story given by her to both the doctors who
\n\tadmitted her in the hospital and then to the Police Inspector who
\n\trecorded her complaint, it would not have been possible for the
\n\tlearned trial Judge or any Court to say that the dying declaration
\n\trecorded by the Executive Magistrate should be viewed with any
\n\tshadow of doubt though the same is recorded after several hours.
\n\tHowever, it appears that she had never been under the influence of
\n\tsedation. There is no evidence on record which go to show that she
\n\twas under the influence of  sedation given to her. The persons who
\n\trecorded the complaint also were conscious that they may be examined
\n\tas to the mental status of the victim and, therefore, the Police
\n\tInspector at the time he recorded the complaint had obtained the
\n\tcertificate as to the consciousness of the victim Vinaben on the
\n\tpaper on which he was recording the complaint and in the same way,
\n\tthe Executive Magistrate also obtained necessary endorsement of the
\n\tdoctor as stated hereinabove. So irrespective of the evidence of the
\n\tmother-in-law of the victim or father-in-law of the victim and other
\n\twitnesses, the respondent-convict could have been linked with the
\n\tcrime even in absence of any other evidence when consistent four
\n\tdying declarations read with postmortem note proved by the doctor,
\n\taccording to us, are sufficient forms of evidence under which the
\n\trespondent-convict could have been held guilty and, therefore, he
\n\thas been rightly held guilty by the learned trial Judge.\n<\/p>\n
\tConsidering
\n\tthe nature of offence as well as the manner and method in which the
\n\toffence has been committed, it was not possible for the learned
\n\ttrial Judge to hold the respondent-convict guilty for any charge
\n\tlesser than the charge of offence punishable under Section 302 of
\n\tthe Indian Penal Code.\n<\/p>\n
\tIt
\n\tis settled legal position that in a case based on dying declaration,
\n\tif the dying declaration is found truthful and sound and the Court
\n\tis able to listen the ring of truth, then even from the single
\n\tstatement of the victim, which can be accepted and received in
\n\tevidence as dying declaration under Section 32 of the Indian
\n\tEvidence Act, there is no need to even seek for any corroboration.
\n\tSeeking of corroboration is not a rule of law but the rule of
\n\tprudence, even then in the present case, the dying declaration at
\n\tEx.13 recorded by the Executive Magistrate is found corroborated by
\n\tthe FIR, two types of case papers recording history given by the
\n\tvictim herself and the nature of injuries found on her body. When
\n\tthis evidence straight way corroborates the dying declaration at
\n\tEx.13, according to us, there was no scope to interfere with the
\n\tguilt found established by the learned trial Judge. According to us,
\n\tthere is neither any element of error in appreciating the evidence
\n\tnor any element of perversity while holding the respondent-convict
\n\tguilty for the offence punishable under Section 302 of the Indian
\n\tPenal Code and hence, the respondent-convict is required to be
\n\tpunished accordingly.\n<\/p>\n
\tWe
\n\thave considered the statements made by Shri H.L. Jani, learned
\n\tAdditional Public Prosecutor and Shri J.M. Barot, learned counsel
\n\tappearing for the respondent-convict, on the point of quantum of
\n\tpunishment. When it is submitted by learned Additional Public
\n\tProsecutor that this is not a case wherein the death penalty could
\n\thave been imposed, there is no need for us to go into detailed
\n\tdiscussion. However, it is necessary for us to record the submission
\n\tmade by Shri Jani is the most genuine one and it is based on settled
\n\tlaw. In the case of Prithvi (minor) v. Mamraj and others, reported
\n\tin 2004(15) SCC 279, the Apex Court has held, on facts, that the
\n\tcase before the Apex Court was not the rarest of rare case. In this
\n\tdecision, the Apex Court was dealing with a case of multiple
\n\tmurders. One of the accused was awarded death penalty, who was found
\n\tthe ring leader of the co-accused who committed the offence. The
\n\tconviction was found justified. The accused had assaulted the
\n\tvictim-deceased with lathis when they were sleeping and the accused
\n\twere annoyed by declaration of deceased and there was some dispute
\n\tin reference to agricultural land. Though the person killed was
\n\tsleeping at the time of incident, the Apex Court found that this
\n\tcase cannot be said to be the rarest of rare case because the Apex
\n\tCourt considered the number of facts and circumstances of the case
\n\tand the circumstances were not suggestive of the situation where it
\n\tcan be recorded that  the case would fall in the category of the
\n\trarest of rare case. The second decision is in the case of
\n\tSurendrapal Shivlal v. State of Gujarat, reported in 2005(3) SCC\n<\/p>\n
\t127. In the cited decision, the appellant-accused was awarded death
\n\tsentence on account of killing a minor  after committing rape on her
\n\tby abducting her in the middle of the night while she was sleeping
\n\tfrom her home. There were some altercations between the accused and
\n\tthe mother of the victim girl. The Court found that the accused
\n\tguilty for the rape and murder of the girl, even then on facts and
\n\tcircumstances of the case found that ultimately the case of
\n\tprosecution rests upon circumstantial evidence i.e. circumstance of
\n\tlast seen together and the conduct of the accused prior to the
\n\tincident. So such a case, therefore, cannot be said to be the rarest
\n\tof rare case. The Apex Court held that the death penalty was not
\n\twarranted.\n<\/p>\n
\tIt
\n\tis possible for us to pose a question where any mechanism or formula
\n\tcan be worked out under which a particular case can be placed in the
\n\tcategory of the rarest of rare case. The answer obviously would be
\n\tin the negative. Each criminal case has its own facts and its
\n\tshadow.  The impact of deterrence whether the offence is
\n\tanti-national or heinous one, should reach to each corner of the
\n\tcountry. Here we would like to reproduce the relevant part of the
\n\tobservations made by the Apex Court in the case of Prajeet
\n\tKumar Singh v. State of Bihar, reported in 2008 AIR SCW 4202,
\n\twhich are as under :\n<\/p>\n
\t?S17.\n<\/p>\n
\t\t\tA Constitution Bench of this Court in the case of Bachan Singh v.
\n\tState of Punjab, (1980) 2 SCC 684, has laid down certain guidelines
\n\tfor imposing death sentence which have been culled out by a 3-Judge
\n\tBench of this Court in Machhi Singh and Others v. State of Punjab,<\/a>
\n\t(9183) 3 SCC 470, and accordingly the following propositions emerge
\n\tfrom Bachan Singh (supra) :\n<\/p>\n
\t(i)
\n\t \tThe extreme penalty of death needs to be inflicted  except in the
\n\tgravest cases of extreme culpability.\n<\/p>\n
\t \t\t\t\txxx\t\t\txxx<\/p>\n
\t(iii)
\n\tLife imprisonment is the rule and death sentence is an exception. In
\n\tother words death sentence must be imposed only when life
\n\timprisonment appears to be an altogether inadequate punishment
\n\thaving regard to the relevant circumstances of the crime, and
\n\tprovided, and only provided, the option to impose sentence of
\n\timprisonment for life cannot be conscientiously exercised having
\n\tregard to the nature and circumstances of the crime and all the
\n\trelevant circumstances.??\n<\/p>\n
\tSo
\n\tin view of aforesaid, we are of the view that the submissions made
\n\tby Shri H.L. Jani, learned Additional Public Prosecutor, and Shri
\n\tJ.M. Barot, learned counsel appearing for the respondent-convict,
\n\tare required to be accepted and accepting their submissions we
\n\tincline to say that the present case does not fall in the category
\n\tof the rarest of rare case.  The extreme penalty of death was not
\n\twarranted. So we are not inclined to accept the request extended by
\n\tthe learned  Additional Sessions Judge to confirm the death penalty
\n\timposed by him on account of the guilt established. This extreme
\n\tpenalty is required to be commuted to rigorous imprisonment for
\n\tlife.\n<\/p>\n
\tAs
\n\twe have stated earlier, the judgment and order of conviction and
\n\tsentence is absolutely legal and is not required to be interfered
\n\twith at all. The only penalty, therefore, left  which can be imposed
\n\tis the imprisonment for life. So the respondent-convict is required
\n\tto be imposed imprisonment for life for the offence punishable under
\n\tSection 302 of the Indian Penal Code.\n<\/p>\n
\tIn
\n\tview of aforesaid observations and discussion, the present
\n\tConfirmation Case No.2 of 2007 is
\n\thereby dismissed. The Capital Punishment imposed upon
\n\trespondent-Dashrathji Shivuji Thakor is not confirmed.\n<\/p>\n
\t \t\tSo
\n\tfar as Criminal Appeal No.1171 of 2007 is concerned, the same is
\n\tpartly allowed.  The judgment and order of conviction of the
\n\tappellant-Dashrathji Shivuji  Thakor for the offence of murder of
\n\this wife Vinaben Dashrathji Thakor is confirmed and the appellant is
\n\tordered to undergo IMPRISONMENT FOR LIFE instead of Capital
\n\tPunishment imposed upon him by the trial Court.\n<\/p>\n
\tBefore
\n\tparting with the order, it is necessary  for us to mention that we
\n\thave considered certain circumstances while accepting the
\n\tsubmissions made by Shri H.L. Jani that in the present case the
\n\trespondent-convict at the time of commission of offence was young
\n\tman of 30 years. He is the member of a downtrodden society and
\n\tresident of a very small village. The family of the
\n\trespondent-convict does not have any financial resources. The
\n\trespondent-convict was not even able to engage a lawyer to defend
\n\thimself when he was being tried by the Court of Sessions. When he
\n\tcommitted the offences, even as per the say of the prosecution and
\n\tincident narrated by the victim Vinaben, he was under the influence
\n\tof Alcohol. It appears that perhaps the learned trial Judge failed
\n\tin appreciating this fact situation which was available on record,
\n\totherwise the learned trial Judge perhaps might not have imposed
\n\tsuch an extreme penalty of death.\n<\/p>\n
(C.K.\n<\/p>\n
Buch, J) <\/p>\n
(D.N.\n<\/p>\n
Patel, J)<\/p>\n
Aakar<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Thakore on 15 October, 2008 Author: C.K.Buch,&Nbsp;Honourable Mr.Justice Patel,&Nbsp; Gujarat High Court Case Information System Print CC\/2\/2007 2\/ 26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL CONFIRMATION CASE No. 2 of 2007 WITH CRIMINAL APPEAL No.1171 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH HONOURABLE MR.JUSTICE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-179049","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Thakore on 15 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-thakore-on-15-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Thakore on 15 October, 2008 - 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