{"id":251490,"date":"2010-01-18T00:00:00","date_gmt":"2010-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thakore-vs-state-on-18-january-2010"},"modified":"2015-11-16T22:02:37","modified_gmt":"2015-11-16T16:32:37","slug":"thakore-vs-state-on-18-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thakore-vs-state-on-18-january-2010","title":{"rendered":"Thakore vs State on 18 January, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Thakore vs State on 18 January, 2010<\/div>\n
Author: A.L.Dave,&Nbsp;Honourable Ms.Justice H.N.Devani,&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\t \n\t\n\n\n \n\n\n\t \n\nCR.A\/1635\/2004\t 16\/ 17\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. 1635 of 2004\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE A.L.DAVE\n \n\n  \nHONOURABLE\nMS.JUSTICE H.N.DEVANI\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\nTHAKORE\nDIRAJI HAMIRJI - Appellant\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Respondent\n \n\n=========================================================\n \nAppearance\n: \nMR\nJAL SOLI UNWALA for\nAppellant. \nMR KL PANDYA, ADDL.PUBLIC PROSECUTOR for\nRespondent. \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 A.L.DAVE\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\tMS.JUSTICE H.N.DEVANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:  18\/01\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE A.L.DAVE)<\/p>\n
\tThe
\nappellant is convicted for having committed murder
\nof Poonabhai Nathabhai Dantani on 16.5.2003 at about 12.00 hours in
\nthe midnight in the Vagharivas of village Chalasana by causing fatal
\ninjuries to the deceased on his head with a dharia. He is sentenced
\nto undergo imprisonment for life and to pay a fine of Rs.500\/, in
\ndefault, to undergo S.I for six months, by the Sessions Court,
\nMehsana while deciding Sessions Case No. 144\/2003, by judgment and
\norder dated 23.8.2004.\n<\/p>\n
2.\tAs
\nper the prosecution case, victim Poonabhai Nathabhai Dantani was
\nengaged in the vocation of beating drums. Just prior to the incident,
\nhe had gone to the house of accused, appellant Dhiraji Hamirji
\nThakore, for that purpose and there was some dispute between them. At
\nthe time of the incident, when the deceased was sleeping in front of
\nhis house at about 12.00 hours in the midnight and his wife and
\ndaughters were sleeping in the osari of the house, the
\nappellant allegedly went there, armed with a dharia and inflicted
\nfatal injuries on the head of the deceased and then went away
\nleaving behind the dharia, used in the incident, near the water-tank
\nin front of the house of the deceased. Witness Reshamben, wife of the
\ndeceased, Ashaben, daughter of the deceased, Jadiben, sister-in-law
\nof the deceased and, Dasharathbhai, brother of the deceased, all saw
\nthe appellant going away from the place of the incident. As it was
\nmidnight and as it was a full-moon-day, they identified the accused
\nin the moonlight. It is the case of one of the witnesses that she
\nchased the appellant, but, in vain. The deceased was taken to the
\nHospital and was declared brought dead. The police was informed about
\nthe incident and FIR was given by Reshamben. The offence was
\nregistered on the basis of the FIR and investigated and, the police
\nhaving found sufficient material, filed charge sheet against the
\nappellant in the Court of learned J.M.F.C.Kadi, who, in turn,
\ncommitted the case to the Court of Sessions at Mehsana and Sessions
\nCase No. 144\/2003 came to be registered.\n<\/p>\n
2.1\t\tCharge
\nwas framed against the appellant-accused at Exh.3, to which he
\npleaded not guilty and claimed to be tried. Considering the evidence
\nled by the prosecution, the trial Court came to the conclusion that
\nthe prosecution was successful in proving the charge levelled against
\nthe appellant and convicted the appellant for the offence of murder
\nof Poonabhai Nathabhai Dantani. It is this judgment and order dated
\n23.8.2004 rendered in Sessions Case No. 144\/2003 by the Sessions
\nCourt, Mehsana, which is under challenge.\n<\/p>\n
3.\tWe
\nhave heard learned advocate Mr.Unwala for the appellant and learned
\nA.P.P. Mr.Pandya for the respondent-State.\n<\/p>\n
4.\tLearned
\nadvocate Mr.Unwala has raised the following contentions:-\n<\/p>\n
4.1\t\tThe
\nprosecution case depends on four eye witnesses, who claim that they
\nsaw the appellant running away from the place of the incident soon
\nafter the incident. However, none of them has seen the actual
\noccurrence and all of them claim to have seen only the backside of
\nthe person going away. At the relevant time, there were no lights,
\nbut, they claim to have seen the assailant in the moon-light.\n<\/p>\n
4.2\t\tThese
\nwitnesses cannot be relied upon for the reason that their evidence is
\ninconsistent on major aspects, which would affect the quality of
\ninvestigation as well.\n<\/p>\n
4.3\t\tMr.Unwala
\nsubmitted that witness Ashaben (exh.15) is daughter of the deceased.
\nShe, in her cross-examination, deposes that she and her mother were
\nsleeping in front of the house and the deceased was sleeping near the
\nwater-tank adjacent to their house. She states that the
\naccused-appellant Dhiraji inflicted a dharia blow on the deceased and
\nthen ran away throwing the dharia near the water-tank. She says that
\nshe and her mother raised shouts, hearing which, her uncle
\nDasharathbhai came. They saw that the victim was injured on his head.
\nShe says that she and her uncle took her father to Kadi Government
\nDispensary and from there to Ahmedabad and, the deceased succumbed to
\nthe injuries on the way. She then refers to the quarrel that took
\nplace at the house of Virsangji regarding beating of drums.\n<\/p>\n
4.4\t\tFrom
\nthe cross-examination of witness Ashaben (Exh.15), it transpires that
\nthe witness was married and was at her parental house because of some
\ndispute with her husband. From her cross-examination, it reveals that
\nthe witness was wide awake when the incident occurred. Her uncle
\nDasharathbhai was sleeping on the otta of his house. During
\nher cross-examination, she accepts the suggestion that the man, whom
\nshe saw, was running towards the road and she only saw his back. The
\nman was running speedily. She denies the suggestion that the name of
\nthe assailant was revealed to her by her mother. She also denies the
\nsuggestion that she had not seen her father  being assaulted. She
\nasserts that she has stated before the police that she had seen her
\nfather being assaulted. About witness Jadiben, she says that she came
\nafter her uncle Dasharathbhai came. She admits that she learnt from
\nher mother that Dhiraji had assaulted her father. She denies the
\nsuggestion that she had not seen any occurrence.\n<\/p>\n
4.5\t\tWitness
\nReshamben (Exh.25) is the widow of the deceased and mother of witness
\nAshaben. She also states that she was sleeping outside the house with
\nher two daughters and, at about 12.00 midnight Dhiraji, the
\nappellant, came to their house. At that time, she was awake and
\nDhiraji assaulted her husband with dharia. The blow was given on his
\nforehead. She tried to intervene and catch Dhiraji while he was
\ntrying to escape. She says that she and her daughter brought Dhiraji
\nfrom her home. On shouts being raised, Jadiben, Dasharathbhai and son
\nof the witness had come. She states that she had given complaint to
\nthe police. During the cross-examination, she states that her husband
\nwas injured with dharia on his forehead near eyebrow. He was sleeping
\nwith his face up and at that time, Dhiraji came and suddenly
\ninflicted dharia blow. Because of injury, there was profuse bleeding.
\nShe says that she had also ran after Dhiraji for some distance
\nraising shouts. During her cross-examination, she states that the
\naccused was arrested on that very night at about 4.00 A.M. She says
\nthat she had been with the police for arresting the accused. He was
\narrested along with the dharia.\n<\/p>\n
4.6\t\tThe
\nevidence of Dasharathbhai Dantani (Exh.16) and Jadiben (Exh.18) are
\non the same lines.\n<\/p>\n
4.7\t\tDr.Rajendrakumar
\nA.Acharya (Exh.5) states that he had performed the post-mortem of
\ndead body of the deceased and had noticed external injuries as
\nrecorded in column No.17 of the post-mortem notes. Internal injuries
\nwere as recorded in column No.19 of the post-mortem notes. Both the
\ninjuries are narrated as under :-\n<\/p>\n
 I\/W
\nabout 13 cm in diameter bone cut, circular, brain (Rt to left side,
\nupward direction) material seen over skull. Front side about 8 cm
\nfrom point between two eyebrows. Rt.side about 8 cm from mastoid
\nprocess. Rt.side. Lt.side about 5 cm from Lt side mastoid process.
\nOccipital region   about 3 cm from cervical vertebra. Above skull
\nbone cutting and joined with about 2 cm with skin on occipital
\nregion- Brain material seen.\n<\/p>\n
 Elevated
\nfracture of frontal. Both side parietal bone and occipital bone.
\nExtending landmark   frontal bone from 8 cm mid point between
\neyebrows. Rt.side parietal bone from about 8 cm above Rt mastoid
\nprocess. Lt.side parietal bone   above about 5 cm from Lt mastoid
\nprocess occipital region from above about 3 cm from cervical
\nvertebra. Skull bone above landmarks cuts in about 13 cm diameter.
\nBrain material seen .\n<\/p>\n
4.8\t\tThe
\nDoctor has opined that the cause of death was shock due to injury to
\na vital organ, like brain. The evidence of the Doctor is very
\nrelevant. The possible cause of death was injury to the organ, like
\nbrain. He says that the internal injuries were corresponding to
\nexternal injuries and were sufficient in the ordinary course of
\nnature to cause death. They were ante-mortem. During the
\ncross-examination, he has admitted that no injury was noticed on the
\nbrain-material. He had not removed the brain from the skull for
\nexamination.\n<\/p>\n
4.9\t\tMr.Unwala
\nsubmitted that if the above evidence is considered as a whole, the
\nprosecution cannot be said to have proved the case against the
\nappellant beyond reasonable doubt. The trial Court has overlooked
\nthis aspect and, therefore, the appeal may be allowed.\n<\/p>\n
5.\tLearned
\nA.P.P. Mr.Pandya has opposed this appeal. According to him, the trial
\nCourt has considered all relevant aspects and has recorded
\nconviction.\n<\/p>\n
5.1\t\tMr.Pandya
\nsubmitted that the evidence of Reshamben, Ashaben, Jadiben and
\nDasharathbhai is natural and consistent with each other. A minor
\ndiscrepancy in their evidence would not render their evidence
\nunbelievable or untruthful. Mr.Pandya submitted that so far as the
\nactual occurrence is concerned, the witnesses have come out with a
\ntruthful version. They all have identified the appellant as the
\nperson leaving the place of incident. In fact, Reshamben claims to
\nhave seen the appellant inflicting dharia blow, even though, in her
\ncross-examination, she has stated that she had seen the appellant
\nleaving the place of the incident from behind. The appellant has been
\nproperly identified by this witness. The appellant had no business to
\ngo to the place of the incident in the midst of a night and had no
\nreason to run away from the place. This factor deserves due
\nweightage. The trial Court has, therefore, rightly recorded the
\nconviction and the Court may not interfere with the impugned
\njudgment, in exercise of the appellate jurisdiction.\n<\/p>\n
6.\tIf
\nthe evidence adduced by the prosecution is seen in the context of
\nrival side submissions, what emerges is that witnesses Reshamben
\n(Exh.25), Ashaben (Exh.15), Jadiben (Exh.18) and Dasharathbhai
\n(Exh.16) can reasonably be expected to be at the place of the
\nincident in the midst of the night. Ashaben and Reshamben were
\nstaying in the same house with the deceased, being the daughter and
\nwife of the deceased, and they were sleeping just near the place
\nwhere the deceased was sleeping. Jadiben and Dasharathbhai are
\nrelatives of the deceased and were staying at the adjoining house.
\nThey were also sleeping outside the house. All these witnesses have
\nconsistently stated that they saw the appellant fleeing from the
\nplace of the incident throwing the dharia. Ashaben, in her
\nexamination-in-chief, has stated that she saw the appellant giving
\ndharia blow to her father and then she saw him leaving the place
\nafter throwing the dharia near the water tank. However, she has been
\nably cross-examined and she admits that she saw the assailant from
\nbehind. She also admits that she learnt from her mother about the
\nappellant having inflicted dharia blow to her father. One would be
\ntempted to consider this aspect as ruling out the possibility of
\nAshaben being an eye witness, but, it cannot be overlooked that
\nAshaben has consistently stuck to her version in her deposition that
\nshe was awake during the night till the incident occurred and even
\nthereafter. She is semi-literate and comes from a rustic  strata of
\nthe society and  her one admission that she learnt from her mother
\nthat the appellant had assaulted the deceased may have been made not
\nrealizing the nicety of law and effect on her evidence.\n<\/p>\n
7.\tApart
\nfrom Ashaben, there is evidence of Reshamben, Jadiben and
\nDasharathbhai, who all claim to have seen the appellant going away
\nfrom the place of incident. To that extent, at least Ashaben’s
\nevidence deserves to be accepted. The appellant does not stay in the
\nvicinity of the place of incident. He had no reason to be there in
\nthe midst of the night and he had no reason to flee from the place.
\nHis presence at the place of the incident is established. Under the
\ncircumstances, some discrepancies in the evidence of Ashaben could
\nnot negative the effect of other evidence on record, which is
\notherwise consistent in implicating the appellant.\n<\/p>\n
8.\tSimilarly,
\nmuch was argued about the evidence of Reshamben, who says that she
\nchased the appellant and brought him back from his home. She says
\nthat she did this along with her daughter. However, Ashaben is silent
\nabout the same. During the cross-examination, Reshamben says that
\nafter assaulting her husband, the appellant started running and,
\ntherefore, she also ran after him for about 15 feet raising shouts.
\nHowever, she could not reach the assailant. It is true that the
\nversion of Reshamben about chasing the appellant and bringing him
\nback from his home is not supported by any other evidence and is
\nsomething which is not consistent with the prosecution case. But,
\nthis inconsistency is only about his subsequent conduct. She had
\ntried to add some imagination and imaginary embroidery to her version
\nbecause the appellant was arrested by the police subsequently. But,
\nwhether this, by itself, would render the entire deposition of
\nReshamben untruthful, is a question that needs to be addressed.\n<\/p>\n
8.1\t\tThe
\nevidence of this witness (Reshamben) is found to be consistent with
\nthe prosecution case and other prosecution evidence. This
\nexaggeration will not render her deposition totally untruthful.
\n Falsus in uno falsus in omnibus  is not the principle that can
\nbe followed in such a situation. The Court has to separate truth from
\nthe untruthful part of the evidence, like separating chaff from the
\ngrains. In this regard, reference may be made of a decision of the
\nApex Court in  State of U.P. vs. Anil Singh<\/a>, AIR 1988 SC 1998,
\nwhere the Court has observed in para-15 thus :-\n<\/p>\n
 15.\tIt
\nis also our experience that invariably the witnesses add embroidery
\nto prosecution story, perhaps for the fear of being disbelieved. But
\nthat is no ground to throw the case overboard, if true, in the main.
\nIf there is a ring of truth in the main,  the case should not be
\nrejected. It is the duty of the court to cull out the nuggets of
\ntruth from the evidence unless there is reason to believe that the
\ninconsistencies or falsehood are so glaring as utterly to destroy
\nconfidence in the witnesses. It is necessary to remember that a Judge
\ndoes not preside over a criminal trial merely to see that no innocent
\nman is punished. A Judge also presides to see that a guilty man does
\nnot escape. One is as important as the other. Both are public duties
\nwhich the Judge has to perform .\n<\/p>\n
8.2\t\tThe
\nwitnesses give certain aspects because they feel that it was
\ncompulsory to answer the questions put to them in the
\ncross-examination or else they would be believed as untruthful
\nwitnesses and, therefore, one or the other explanation or answer is
\ngiven. Therefore, adding of some embroidery would not render the
\nentire deposition untruthful, if the deposition has a ring of truth
\nin the main. In our opinion, evidence of Reshamben is given by her in
\na natural way and has a ring of truth in it. Her presence was natural
\nand she has reacted naturally.\n<\/p>\n
8.3\t\tThe
\nevidence of Jadiben and Dasharathbhai also clearly implicates the
\nappellant and is consistent with the evidence of Reshamben and
\nAshaben, so far as it inculpates the appellant. These pieces of
\nevidence collectively prove the guilt of the appellant beyond any
\nreasonable doubt.\n<\/p>\n
9.\tIt
\nwas then argued that the cause of death indicated in the post-mortem
\nnotes by the Doctor is injury to a vital organ, like brain; whereas
\nthe Doctor, in his evidence, has indicated that he had not noticed
\nany injury to the brain and he had not checked the brain. Therefore,
\nthere is no positive and reliable evidence about the cause of death.
\nIt is not possible to accept this contention either. The nature of
\ninjury, as described in the post-mortem notes quoted by us in the
\nearlier part of this judgment, would go to show that the head blow
\nwas so severe that it caused an injury almost across the face right
\nupto the neck. The head was virtually chopped off, except that it
\nremained connected with the trunk of the body only with the help of
\nstrip of two inches of skin. This injury is of a nature, which would
\nnot leave anything to be certified by medical evidence or to be
\nimagined by a layman, that a Court could understand the cause of
\ndeath. The evidence established that the assault was made by the
\nappellant and in that assault, injuries described in column No.17 of
\nthe post-mortem notes were caused. Looking to the severity of the
\ninjuries, no certification by the Doctor is necessary that it was the
\ninjury which caused death or it was sufficient in the ordinary course
\nof nature to cause death. This contention, as aforesaid, therefore,
\ncannot be accepted.\n<\/p>\n
10.\tIt
\nwas then argued that the possibility of the incident having some
\nroots in Reshamben having illicit relationship with her son-in-law
\n(husband of Ashaben) cannot be ruled out, as both of them were
\nmissing after the incident. Barring stray suggestions during the
\ncross-examination of the witness, which came to be denied by the
\nwitness, the defence has not indicated any material to show that
\nthere was such a relationship between the husband of Ashaben and
\nReshamben.\n<\/p>\n
11.\tIn
\nthe light of the foregoing discussion, we are of the view that the
\ntrial Court was justified in accepting the prosecution case and
\nconvicting the appellant for the offence of murder of Poonabhai
\nAathabhai Dantani. We do not find any merits in the appeal. We are in
\nbroad agreement with the reasonings adopted by the trial Court. The
\nappeal, therefore, fails and stands dismissed.\n<\/p>\n
\t\t\t\t\t\t\t[A.L.Dave,J.]<\/p>\n
\t\t\t\t\t\t\t[Harsha
\nDevani,J.]<\/p>\n
(patel)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Thakore vs State on 18 January, 2010 Author: A.L.Dave,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/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-251490","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nThakore vs State on 18 January, 2010 - 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\/thakore-vs-state-on-18-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thakore vs State on 18 January, 2010 - 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