{"id":250641,"date":"2008-07-02T00:00:00","date_gmt":"2008-07-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thakor-vs-state-on-2-july-2008"},"modified":"2017-03-29T22:45:18","modified_gmt":"2017-03-29T17:15:18","slug":"thakor-vs-state-on-2-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thakor-vs-state-on-2-july-2008","title":{"rendered":"Thakor vs State on 2 July, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Thakor vs State on 2 July, 2008<\/div>\n
Author: R.P.Dholakia,&Nbsp;Honourable Mr.Justice Jhaveri,&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\nCR.A\/17\/2003\t 12\/ 14\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\nAPPEAL No. 17 of 2003\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE R.P.DHOLAKIA  \n \n\n\n \n\nHONOURABLE\nMR.JUSTICE KS JHAVERI\n \n \n=========================================================\n\n \n\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\n\n \n\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\n\n \n\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\n\n \n\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\n\n \n\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\n\n \n\n \n=========================================================\n\n \n\nTHAKOR\nBAKAJI ISHWARJI - Appellant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Opponent(s)\n \n\n=========================================================\n \nAppearance\n: \nTHROUGH\nJAIL for Appellant(s)\n: 1,                                  MR US BRAHMBHATT for\nAppellant(s) : 1, \nMR HL JANI, APP for Opponent(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 R.P.DHOLAKIA\n\t\t\n\t\n\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 \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE KS JHAVERI\n\t\t\n\t\n\n \n\nDate\n: 02\/07\/2008 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE R.P.DHOLAKIA)<\/p>\n
Present
\n\tappeal has been preferred by the appellant-original accused, who has
\n\tbeen convicted and sentenced to suffer imprisonment for life and to
\n\tpay fine of Rs.500\/-, in default, to suffer SI for 15 days for the
\n\tcharge under Sec.302 of IPC<\/a> by the learned Addl. City Sessions
\n\tJudge, Fast Track Court, Mehsana, vide judgment and order dated 29th
\n\tNovember, 2002 passed in Sessions Case No.26 of 2002.\n<\/p>\n
The
\n\tshort facts of the prosecution case are that on 4-10-2001 when the
\n\tcomplainant Manuji Gambhirji, Nathaji Khumaji and Bhavanji Nagji
\n\twere in their respective field waiting for their turn to fetch water
\n\tfrom the bore of Darbar, at about 4.00 a.m. they heard the shouts of
\n\tPahadji from his field for help and, therefore, they got up and
\n\trushed towards Pahadji’s field. When they were about 30-35 feet away
\n\tfrom the place of incident, they saw the accused Bakaji Ishwarji
\n\tgiving dharia blows on the head and neck of the deceased as a result
\n\tof that, deceased fell down there  and before the complainant and
\n\tother witnesses reached the scene of offence, accused was able to
\n\tescape from the scene towards south direction along with dharia.
\n\tWhen they reached very near to the victim Pahadji, they found that
\n\the succumbed to the injuries. Therefore, the complainant Manuji
\n\tremained there and Bhavanji Nagji went to Village and informed the
\n\trelatives of deceased and therefore, all came there and they again
\n\tconfirmed that the injured succumbed to the injuries and, therefore,
\n\tpolice was informed accordingly. Police in turn came to the scene of
\n\toffence and recorded the complaint of Manuji Gambhirji and sent the
\n\tsame along with report to Visnagar Police Station for registration
\n\tof offence. On receiving the same, PSO of Visnagar Police Station
\n\tregistered the offence as Visnagar Police Station I.C.R.No.358 of
\n\t2001  under Section 302<\/a> of IPC and Section 135 of B.P.Act and handed
\n\tover investigation to PSI.  Thereafter, he sent yadi to Executive
\n\tMagistrate, Visnagar,  for inquest panchnama and also called two
\n\tpanchas for the same  and on arrival of Executive Magistrate,
\n\tinquest panchnama was prepared in presence of panchas. Thereafter,
\n\the filled up Marnottar form and sent the same along with inquest
\n\tpanchnama and yadi to Visnagar Police Station for performing post
\n\tmortem  on the dead body of deceased. He also drew panchnama of
\n\tscene of offence in presence of two panchas and also seized muddamal
\n\tas averred in the panchnama.  As the offence alleged was punishable
\n\tunder Sec.302 of IPC<\/a>, PSO handed over investigation with its file to
\n\tPI, Visnagar, Shri Parmar and he recorded statements of various
\n\twitnesses including Bhavanji. He also made a search for the accused
\n\tand on 25-10-2001 at about 1500 hours,  the accused was arrested.
\n\tThe clothes worn by the accused at the time of his arrest were
\n\tseized and as he showed willingness to produce the muddamal dharia
\n\talleged to have been used in the commission of offence, he called
\n\ttwo panchas and attached the same as averred under 27 panchnama and
\n\the was sent to judicial custody. He also made arrangements to send
\n\tmuddamal to FSL and on receiving FSL and post mortem reports, same
\n\twere kept with the investigation file. At the end of investigation,
\n\tcharge sheet was submitted in the Court of learned J.M.F.C.,
\n\tVisnagar.\n<\/p>\n
As
\n\tthe offence alleged against the accused was exclusively triable by
\n\tCourt of Sessions, learned J.M.F.C., Visnagar,  committed the case
\n\tto the Sessions Court at Mehsana where the case has been numbered as
\n\tSessions Case No.26 of 2002 and handed over to learned Addl.
\n\tSessions Judge, Mehsana, for disposal on merits.\n<\/p>\n
On
\n\tpresentation of the accused, learned Addl. Sessions Judge framed
\n\tcharge against the accused. As the accused pleaded not guilty to the
\n\tcharge and prayed for trial, to prove the guilt against the accused,
\n\tprosecution examined in all 8 witnesses. The prosecution also
\n\tproduced and placed reliance on many documentary evidence numbering\n<\/p>\n
\t18.<\/p>\n
On
\n\tsubmission of closing pursis by the prosecution, learned Addl.
\n\tSessions Judge recorded further statement of the accused under
\n\tSec.313 of Code<\/a> of Criminal Procedure. Both the sides have filed
\n\ttheir written submissions and also argued the matter. After hearing
\n\tthe learned advocates appearing for the respective parties and on
\n\tconsidering the evidence on record as well as the submissions made
\n\tby the learned counsel for the respective parties, delivered the
\n\timpugned judgment convicting the appellant as aforesaid in the
\n\tearlier part of this judgment which is giving rise to prefer the
\n\tpresent appeal.\n<\/p>\n
Heard
\n\tlearned counsel for the appellant, Mr.U.S.Brahmbhatt and learned
\n\tAPP, Mr.H.L.Jani for the respondent-State.\n<\/p>\n
It
\n\thas been mainly argued by the learned counsel for the appellant that
\n\tthe appellant is innocent and has been falsely involved in the crime
\n\tin question. It is also argued that there is a delay in  lodging the
\n\tFIR.\n<\/p>\n
It
\n\tis further argued that the incident has taken place at late night in
\n\tthe field and no one has seen the incident but in the morning when
\n\tthe villagers came to know regarding the incident, they have
\n\tinvolved the accused as he was an outsider staying in the field and
\n\tworking as a labourer. There is no eye witness to support the say of
\n\tthe prosecution. As such, the complainant-Manuji
\n\tGambhirji and two other witnesses namely, Nathaji
\n\tKhumaji and Bhavanji Nagji, who claim themselves to have seen the
\n\tincident, are not the eye witnesses to the incident as their
\n\tpresence at the time of incident at late night creates doubt in the
\n\tmind of all concerned. Even they cannot be said to be chance
\n\twitnesses also. Even if we believe the say of the prosecution by way
\n\tof oral evidence of Manuji, Nathaji and Bhavanji to be true, then
\n\talso, they could not have seen the incident in view of the fact that
\n\tthey were at a distance of 30-35 feet away from the place of
\n\tincident  and the time being night hours, it would have been very
\n\tdifficult for them to have identified the assailants during night
\n\thours.\n<\/p>\n
\tIt
\n\tis further argued that panchnama of weapon is not a discovery
\n\tpanchnama in the eye of law and, therefore, it is required to be
\n\tdiscarded.\n<\/p>\n
\tIt
\n\tis further argued that though there were neighbours residing in
\n\ttheir field very near to the scene of incident, their statements
\n\thave not been recorded. They have neither been cited as witnesses
\n\tnor have they been examined. The prosecution has produced the
\n\trelatives of the deceased and relied upon their statements to
\n\tconnect the accused with the crime. Since they are relatives of the
\n\tdeceased, their statements do not attach much importance and hence
\n\tshould not be taken into consideration.\n<\/p>\n
Taking
\n\tus through the evidence of Dr.Mansinh Laljibhai Chaudhary, P.W.2 at
\n\tEx.8, it is argued that it is clear from his cross-examination that
\n\tthe injuries due to blows must have been received after the victim
\n\tfell down. The evidence of witnesses show  that the accused was
\n\tgiving dharia blows to the deceased and he fell down thereafter and,
\n\ttherefore, according to him, the testimonies of the witnesses are
\n\tunbelievable. It is further argued that there is no evidence worth
\n\tthe name to show the presence of the witnesses in the field as being
\n\tnatural. Even panchnama also does not support their presence. It is
\n\talso argued that the accused has been undergoing sentence since long
\n\tand since the incident has happened due to sudden provocation, the
\n\tcase of the appellant may be treated to be the one falling under
\n\tSec.304 Part II of IPC<\/a> and he be given benefit.\n<\/p>\n
Learned
\n\tAPP, Mr.Jani, has taken us through oral as well as documentary
\n\tevidence  and relevant portion
\n\tof reasoned judgment delivered by the court below.\n<\/p>\n
\tAccording to Mr.Jani,
\n\tthere is no delay in lodging the FIR. The incident is alleged to
\n\thave taken place at 4.00 a.m. and, thereafter, one remained there
\n\tand another went to the Village for informing the villagers and
\n\tthereafter villagers came. Again somebody went to the Village and
\n\tinformed the police and thereafter, police also came to the place of
\n\tincident and, therefore, the delay of two hours is not a delay in
\n\tthe eye of law. At the earliest opportunity, they informed the
\n\tpolice telephonically which is required to be taken into
\n\tconsideration.\n<\/p>\n
\tIt is argued that there
\n\tare three witnesses of incident and their presence at the time of
\n\tincident in their respective field is established. It is their case
\n\tfrom the very beginning that after the turn of Pahadji, it was their
\n\tturn to fetch water from the bore of Darbar and, therefore, they
\n\twere there in their respective field and, therefore, according to
\n\thim, their presence is natural. It is also argued that merely
\n\tbecause they are from the same community, same Village and distant
\n\trelatives, their testimonies cannot be discarded, however, at the
\n\tmost, their evidence is required to be seen in that angle.\n<\/p>\n
\tIt is further argued
\n\tthat case of the prosecution gets support from the evidence of
\n\tdiscovery panchnama, FSL report and also from the complaint filed by
\n\tthe complainant at the earliest. It is also argued that even motive
\n\tin the commission of offence is also established. Since it is an
\n\tincident wherein the accused has given blows to physically
\n\tincapacitated person and that too also on the vital part of the body
\n\tresulting into an offence under Sec.302 and hence,  it is submitted
\n\tthat no leniency should be shown to the accused by treating the case
\n\tunder Part II of Sec.304 of IPC<\/a>.\n<\/p>\n
We
\n\thave also gone through the oral as well as the documentary evidence
\n\tshown to us by the learned counsel for the respective parties
\n\ttogether with the reasoned judgment delivered by the court below.\n<\/p>\n
\tAs regards the
\n\tcontention regarding delay in filing the FIR, it is required to be
\n\tnoted that police has been informed at the earliest. The incident
\n\thas taken place at 4.00 a.m. and when the witnesses were 30-35 feet
\n\tfrom the place of offence, they have witnessed the incident. One
\n\tperson remained there and one went to the Village  for informing the
\n\tvillagers and thereafter they came. Again one person went to inform
\n\tthe police and thereafter, police also came to the place of
\n\tincident. Thus, it appears that at the earliest, FIR has been lodged
\n\tand, therefore, in any circumstances, it cannot be stated that there
\n\twas any delay in lodgment of FIR.  Apart from that, name, role and
\n\tthe weapon used in the commission have been described in detail by
\n\tthe complainant along with the names of eye witnesses, who have
\n\twitnessed the incident and, therefore, it is very difficult to
\n\tbelieve the say of the learned counsel for the appellant that there
\n\twas any delay in filing the FIR and that  the FIR was concocted to
\n\tfalsely implicate the accused. According to us, there is no delay
\n\tworth the name as, at the earliest, FIR has been lodged narrating
\n\tthe incident detail.\n<\/p>\n
\tIn
\n\torder to prove the FIR Ex.7, the prosecution has examined P.W.1,
\n\tManuji Gambhirji Rathod at Ex.6. He has categorically deposed that
\n\the is the witness of incident. Incident has taken place on 4-10-2001
\n\tat 4.00 a.m. in the field of Rathodiapura Village sim more
\n\tparticularly in the field of Pahadji. He has further deposed that at
\n\tthe time of incident, he was sleeping in his field as after the turn
\n\tof Pahadji, it was his turn to fetch water from the bore of Darbar.
\n\tWhile sleeping, as he and other villagers namely, Nathaji Khumaji
\n\tand Bhavanji Nagji heard the shouts of Pahadji for help, they got up
\n\tand ran towards the field of Pahadji and when they were about 30-35
\n\tfeet away from the place of incident, Bakaji Ishwarji was giving
\n\tdharia blows on the head and neck of the deceased and, thereafter,
\n\tBakaji escaped from the scene of offence towards south direction
\n\talong with dharia. He has also deposed that it was the second day of
\n\tfull moon at 4.00 a.m. and, therefore, they were able to see each
\n\tother. He has been thoroughly cross-examined by the learned counsel
\n\tfor the appellant into the court below but nothing contrary came out
\n\tto turtle his evidence. He has also stated that the deceased was
\n\tphysically incapacitated and along with him, Bhavanji Nagji and
\n\tNathaji Khumaji have witnessed the incident.\n<\/p>\n
\tTo
\n\tprove further, the prosecution also examined Nathaji Khumaji as
\n\tP.W.3 at Ex.10 and Bhavanji Nagji as P.W.4 at Ex.11. Both these
\n\twitnesses have categorically supported the say of the prosecution
\n\tand, therefore, we are not reproducing their evidence as it would be
\n\ta repetition of the evidence of complainant, Manuji Gambhirji. We
\n\tare of the opinion that both these witnesses are witnesses of
\n\tincident as their evidence inspires confidence in the mind of the
\n\tCourt.\n<\/p>\n
\tAs
\n\tfar as presence of all the three witnesses is concerned, we have
\n\ttaken into consideration the evidence on record including their
\n\tdetailed cross-examination. It was their specific case from the very
\n\tbeginning that they were getting the water from the bore of Darbar.
\n\tThey have also deposed that they will get water from the bore only
\n\twhen electricity comes. According to him, electricity comes at late
\n\tnight in their Village and waiting for the same, they were in their
\n\trespective field. It is established from their evidence that
\n\tdeceased Pahadji was also in his field waiting for his turn to fetch
\n\twater. Since the evidence of these witnesses inspires confidence, we
\n\tbelieve their evidence in toto.\n<\/p>\n
\tAs
\n\tregards motive, it is required to be noted that the accused was
\n\tserving as a daily labourer with the deceased. Since he was
\n\tnegligent in his work of not keeping watch on water, Pahadji stated
\n\tsomething to him and, therefore, with an intention to kill Pahadji,
\n\ttwo blows were given by the accused on vital parts of his body. In
\n\tthe said circumstances, though motive is not required to be proved
\n\tin this type of case, it is proved in this case by the prosecution.\n<\/p>\n
\tAs
\n\tfar as discovery panchnama Ex.20 is concerned, the same has been
\n\tproved by the prosecution by way of oral evidence of Takhatsinh
\n\tVarwaji Adiyol, P.W.6, Ex.17 as well as of Investigating Officer,
\n\tPI, Shri Parmar, P.W.7, Ex.23. Muddamal  which has been seized by
\n\tway of discovery panchnama has been sent to FSL by way of forwarding
\n\tletter. Same have been proved by the prosecution through the
\n\tevidence of PI, Shri Parmar. Prosecution has also proved the
\n\tforwarding letter and FSL report etc. at Exs.24 to 33. Muddamal
\n\tdharia, which is alleged to have been recovered at the instance of
\n\taccused and attached under Sec.27 panchnama, when sent to FSL has
\n\tbeen opined by the FSL expert that the bloodstain marks found on the
\n\tdharia is of the human blood which is of the blood group of the
\n\tdeceased.\n<\/p>\n
\tThus,
\n\tthe prosecution could prove the guilt against the accused beyond
\n\treasonable doubt by way of evidence of three eye witnesses, FIR,
\n\tdiscovery panchnama, FSL report etc. apart from proving the motive.
\n\tThe fact that the accused has killed a physically incapacitated
\n\tperson by inflicting blows on head and neck by dharia cannot be
\n\ttaken light of. It is clear from the act of the accused that he had
\n\ta definite intention of killing the physically incapacitated person.
\n\t Looking to the heinous crime having proved against the accused of
\n\tmurdering the victim by inflicting serious injuries on the vital
\n\tparts of the body of the deceased with dharia, we are of the opinion
\n\tthat the case of the appellant falls under Section 302<\/a> of IPC  and
\n\thence, we are unable to accept the argument advanced by the learned
\n\tcounsel for the appellant for treating the case under Section 304<\/a>
\n\tPart II of IPC. Thus, the appeal being devoid of merits deserves to
\n\tbe dismissed.\n<\/p>\n
The
\n\tappeal is dismissed.\n<\/p>\n
(R.P.DHOLAKIA,J)<\/p>\n
\t\t\t\t\t\t\t\t\t\t\t(K.S.JHAVERI,J)<\/p>\n
radhan\/<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court Thakor vs State on 2 July, 2008 Author: R.P.Dholakia,&Nbsp;Honourable Mr.Justice Jhaveri,&Nbsp; Gujarat High Court Case Information System Print CR.A\/17\/2003 12\/ 14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 17 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of […]<\/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-250641","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nThakor vs State on 2 July, 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\/thakor-vs-state-on-2-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thakor vs State on 2 July, 2008 - 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