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2011 DIGILAW 259 (GUJ)

Rakeshkumar Somabhai Thakore v. State of Gujarat

2011-03-28

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT R.M.CHHAYA, J. (1) The present appeal is filed against judgment and order passed by learned Additional Sessions Judge, Fast Track Court No.2, Ahmedabad (Rural) on 31.12.2002 in Sessions Case No.48 of 1998, convicting the appellant (original accused No.1) for the offence punishable under Section 302 of the Indian Penal Code, 1860 ('the IPC' for short) and sentencing him to imprisonment for life and to pay a fine of Rs.5,000/- in default, to suffer simple imprisonment for six months. Accused No.2-Rajubhai Devilal Mevati (A2) was acquitted of all the charges by the learned trial Court. (2) The case of the prosecution is that the appellant-accused and the victim, Vajesing Babusing Thakore, (the deceased) were residing at Jagatpur, Dist. Ahmedabad and were neighbours. One day before the date of incident i.e. 26.11.1997, the brother of the deceased, Mathurji Babusing Thakore (PW-5), had altercation with the appellant-accused at a pan shop, near the society. That keeping grudge of the aforesaid incident in mind, on 27.11.1997, at about 11:30 hrs., while the deceased was towing the bicycle and was passing through Nakoda Society, Ambe Ma Chowk of village Jagatpur, the appellant-accused assaulted him with a knife and inflicted blows on his chest. That A2 helped the appellant-accused actively. That sister-in-law of the deceased, Shailaben w/o. Banesing (PW-2), along with her son-Ajay was going to school of his son at the time of the aforesaid incident. That PW-2 immediately ran at the place where the deceased fell down and she saw A1 and A2 running away with knife. That therefore, PW-2, along with her father-in-law, mother-in-law, brother-in-law and aunty and other relatives of the deceased took the deceased in Civil Hospital, Ahmedabad where the medical officer on duty on examination declared him dead. That immediately at the civil hospital itself yadi came to be noted about the deceased having expired and thereafter, as the incident occurred within the local jurisdiction of Sarkhej Police Station, PW-2, who is an eye-witness, lodged an F.I.R., which came to be registered as C.R. No.I-179 of 1997 at Sarkhej Police Station for the offences punishable under Section 302 read with Section 114 of the IPC and Section 135 of the Bombay Police Act, 1951. On the very next day A1 was arrested in Sabarmati area by Sabarmati Police and later on he was brought to Sarkhej Police Station. On the very next day A1 was arrested in Sabarmati area by Sabarmati Police and later on he was brought to Sarkhej Police Station. On the basis of the FIR above-mentioned, the police started investigation and after full-fleged investigation, police submitted charge-sheet against the accused. (3) Learned Judicial Magistrate, First Class, Ahmedabad (Rural) on receipt of such charge-sheet, so submitted by the police, committed the case to the Court of learned Sessions Judge, Ahmedabad as the case was being exclusively triable by the Court of Sessions and the same was registered as Sessions Case No.48 of 1998. (4) The learned Judge, on appearance of the accused and on perusal of the materials available on record, including the police papers as well as also upon hearing the learned counsel for the parties, framed charges below Exh.7 against the accused under Sections 302 read with Section 114 of the IPC and Section 135 of the B.P. Act. The entire charges were read over to the accused to which they pleaded not guilty and claimed to be tried. The trial court proceeded with the trial and after considering all evidence led by the prosecution, more particularly the oral testimonies of PW-2, Shailaben w/o. Banesing (Exh.17), who is the eye-witness, PW-3, Ganeshbhai Motibhai Mistry (Exh.19) and PW-5, Mathurji Babusing Thakore, who happens to be the brother of the deceased, so also the oral testimony of PW-11, Ramanbhai Kodarbhai Patel, Investigating Officer (Exh.37), came to the conclusion that the prosecution has successfully established the charges leveled against the present accused-appellant and specifically believed the case of the prosecution. Relying upon the same, the learned trial Judge had reached to the conclusion that the offences alleged in the present case were duly established against the accused-appellant. The learned trial Court, therefore, had recorded conviction of A1 and acquitted A2, as aforesaid, by the impugned judgment and order dated 31.12.2002. Hence, the present appeal. (5) Heard Ms.Tejalben V. Shah, learned advocate appearing on behalf of the accused-appellant, while the respondent-State has been represented by learned A.P.P. Mr.D.C.Sejpal. (6) Learned advocate Ms.Shah for the appellant-accused has taken us through the oral testimonies of PW-2 as well as PW-3, PW-5 and PW-11 as well as defence witness No.1, Devsinhbhai Kuberbhai Patel. Ms.Shah has submitted that no 'motive' is attributed to the accused for committing the alleged offence. (6) Learned advocate Ms.Shah for the appellant-accused has taken us through the oral testimonies of PW-2 as well as PW-3, PW-5 and PW-11 as well as defence witness No.1, Devsinhbhai Kuberbhai Patel. Ms.Shah has submitted that no 'motive' is attributed to the accused for committing the alleged offence. Moreover, according to her, there are major contradictions in the oral testimony of PW-2 in as much as that very presence of the eye-witness at the time of occurrence is doubtful. She has further pointed out that even tough PW-2, the eye-witness, while traveling with father, mother, brothers and aunty of the deceased towards the civil hospital, which took about one and half hours, she did not disclose anything as to who has committed the alleged offence. Ms.Shah has further pointed out that no blood stains are found on the clothes of PW-2, the eye-witness, or any of the persons, who carried the deceased in the rickshaw though PW-2 took the deceased in her lap immediately after the incident. Ms.Shah has further pointed out that there are major improvements and contradictions in the oral testimony of PW-2 coupled with the fact that even the very conduct of PW-2, the eye-witness, is such that the same creates doubt in her version and, therefore, the same is not trustworthy. It was also pointed out that by Ms.Shah that she is solitary eye-witness and a 'chance witness' and, therefore, no reliance can be placed on PW-2 and the conviction cannot be based on such weak piece of evidence. Ms.Shah has also further pointed out that the time of occurrence is also doubtful and for that she relies upon the oral testimony of defence witness No.1, Devsinhbhai Kuberbhai Patel. She has further argued that even in her deposition she does not specifically say that at the time of occurrence, she was going to the school of her son-Ajay and that her son was with her. Ms.Shah has, therefore, submitted that version given in yadi sent by the competent officer to Sarkhej Police Station from civil hospital, Ahmedabad and the F.I.R. is different and the eye-witness makes certain variations and improvements in her deposition before the court and, therefore, the evidence of PW-2 deserves to be discarded. Ms.Shah has, therefore, submitted that version given in yadi sent by the competent officer to Sarkhej Police Station from civil hospital, Ahmedabad and the F.I.R. is different and the eye-witness makes certain variations and improvements in her deposition before the court and, therefore, the evidence of PW-2 deserves to be discarded. Ms.Shah has also further pointed out that even PW-11, investigating officer, in his deposition has clearly stated that what was stated by the eye-witness (PW-2), PW-3 and PW-5 before the Court was not forming part of the statements before the police and has tried to point out that all the three witnesses, examined by the prosecution on the basis of which the prosecution has attempted to prove the charges against the appellant-accused is not trustworthy and no reliance can be placed on it and, therefore, urged that the appeal deserves to be allowed by setting aside the impugned judgment and order passed by the trial Court. As against this, learned A.P.P. Mr.Sejpal, has opposed the present appeal and has submitted that taking into consideration the totality of evidence on record, the prosecution has been able to prove the guilt to its hilt and has successfully established the charges leveled against the appellant. He has further pointed out that oral testimony of PW-2 cannot be discarded on the ground that there are some improvements and that she is a 'chance witness' and close relative of the deceased. He has further pointed out that even PW-3 and PW-5 have supported the case of the prosecution and in fact PW-5, who happens to be the brother of the deceased, has categorically stated that he saw the appellant-accused running away with blood stained knife. He has submitted that there is no improvement or contradiction in the evidence of PW-2, PW-3 and PW-5. He has further drawn our attention to the serological report and pointed out that as per the said report the soil recovered from scene of offence, the clothes of the deceased, the clothes of the appellant-accused and the knife bears human blood group 'A', whereas the blood group of the appellant-accused is 'B'. Mr.Sejpal has further submitted that the serological report proves the guilt of the appellant-accused to its hilt in as much as there is no explanation whatsoever on record as to why the blood stains were found on the clothes of the appellant-accused. Mr.Sejpal has further submitted that the serological report proves the guilt of the appellant-accused to its hilt in as much as there is no explanation whatsoever on record as to why the blood stains were found on the clothes of the appellant-accused. He has further submitted that the charges leveled against the appellant-accused are amply corroborated by the prosecution and that the learned trial Court has rightly convicted the accused and, therefore, urged that the appeal deserves to be dismissed. (7) We have perused the record and proceedings in the context of the rival submissions. WE have also gone through the oral testimony of PW-2, who is the eye-witness, she has categorically stated that on the date of incident i.e. 27.11.1997 between 11:00 a.m. to 11:30 a.m. while she was going to school with her son-Ajay, the deceased was just ahead of both of them, towing his bicycle near Ambe Ma Chowk, the present appellant-accused along with A2, assaulted the deceased with a knife and gave three-four blows in the stomach. Upon reading oral testimony of PW-2, we find that she has immediately reacted and ran towards the deceased and took his head in her lap and started shouting. WE further notice that immediately thereafter the husband of the eye-witness, Banesing Thakore, and her another brother-in-law (PW-5) as well as the father and mother of the deceased came to the place of occurrence. WE also notice that she has categorically submitted that the husband of the eye-witness, Banesing, and Mathurji Babusing Thakore (PW-5), ran after the accused, however, they fled away. WE also notice that she has stated that thereafter she put the victim (the deceased) in an auto rickshaw. WE also notice that she has given minute description of the clothes put on by the accused and we also find that she has categorically stated that the deceased was assaulted by the accused because of the dispute which took place between PW-4 and the appellant-accused on the previous day. WE also noticed that she is the first informant and has categorically denied the suggestions made by the defence in her cross-examination. WE also notice that she has also categorically stated that the deceased was profusely bleeding and had given the medical history to the police at the civil hospital. 1. WE also noticed that she is the first informant and has categorically denied the suggestions made by the defence in her cross-examination. WE also notice that she has also categorically stated that the deceased was profusely bleeding and had given the medical history to the police at the civil hospital. 1. WE have also gone through the oral testimony of PW-3 (Exh.19), who has categorically stated that on the date of the incident he saw the appellant-accused with a knife talking with his mother. 2. WE have also gone through the evidence of Mathurji Babusing Thakore (PW-5), who happens to be the brother of the deceased. WE notice that he has categorically stated that he saw the appellant with a blood stained knife and has specifically attributed the 'motive' and has stated that the appellant-accused assaulted the deceased because of the oral alternation that took place between him (PW-5) and the appellant on the previous day. 3. WE have also gone through the oral testimony of PW-11, who is the investigating officer, we find that the same does not carry the case of the appellant-accused any further and no major contradictions are found in his evidence also. 10. Upon reading the oral testimony of defence witness No.1, who happens to be one of the employees of the school where the son of PW-2 was studying, we find that the said witness has categorically stated that the time of the school was from 12 O'clock onwards. (8) Cumulatively we find that there is ring of truth in the oral testimony of PW-2, who is the eye-witness and the same cannot be discarded merely on the ground that there are minor contradictions and improvements. It may be noted that F.I.R. is the first version of the occurrence of crime, which may not contain minute and microscopic details of the occurrence and same is not substantive piece of evidence and the oral testimony of the eye-witness cannot be discarded on such a count. We find that the presence of the eye-witness at the time of occurrence does not create any cloud of doubt and hence, we find that the oral testimony of PW-2 is trustworthy. We hear the ring of truth in the evidence of the eye-witness for the reason that her version is corroborated by other contemporaneous circumstantial evidence viz. the medical evidence. We hear the ring of truth in the evidence of the eye-witness for the reason that her version is corroborated by other contemporaneous circumstantial evidence viz. the medical evidence. The type of injuries coupled with the fact that the weapon i.e. knife, the clothes of the appellant-accused, clothes of the deceased as well as the soil recovered from the scene of offence, as per the serological report indicates that the presence of human blood group 'A', which is of the accused, whereas the blood group of the appellant-accused is 'B'. The appellant-accused has not given any explanation of the presence of blood on his clothes. There were no injuries on person of the accused, which would rule out possibility of those stains of blood on his clothes being that of his own. (9) It would be appropriate to refer to the decision of the Apex Court rendered in the case of State of U.P. Vs. Anil Singh, AIR 1988 SC 1998 , wherein in Paragraph No.15, it is observed as under: "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." (10) In the instant case we find that only because of some embroidery is added the same would not be ground to throw the case and we find that there is ring of truth in the main and the evidence of PW-2, who is the eye-witness, receives corroboration from the evidence on record and, therefore, her evidence cannot be discarded and the same cannot be categorized as a chance witness. We, therefore, have no hesitation to hold that the prosecution has been able to prove the guilt against the accused to its hilt. Thus, the learned trial Court has rightly held that the guilt is proved against the accused. (11) The injuries indicated above, the weapon of offence, the part of body chosen to inflict such injuries and the nature and gravity thereof, coupled with the circumstances in which they were caused, clearly establish with the requisite ingredients of clause 'Thirdly' of Section 300 of IPC and the act of the accused was nothing short of a murder. It also clearly transpires from the evidence on record that the bodily injuries of the deceased were sufficient in the ordinary course of nature to cause death. It is also evident from the evidence on record that there was an intention to inflict those particular bodily injuries with a deadly weapon with a knowledge that the same would result into death. Hence, the act of the accused would squarely fall within the purview of Section 300 thirdly' punishable under Section 302 of IPC. The prosecution has thus, been able to prove the guilt of the accused and the trial Court has rightly held that the guilt is proved against the accused. (12) The sum total of the foregoing discussion is that the trial Court has properly appreciated the evidence on record and has held the appellant guilty. We do not find any merits in the appeal. No interference is called for in exercise of our appellate powers. The appeal must fail and stands dismissed.