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2011 DIGILAW 289 (GUJ)

Rajubhai Thobhanbhai v. State of Gujarat

2011-04-05

A.L.DAVE, R.M.CHHAYA

body2011
JUDGMENT : R.M. Chhaya, J. The present appeal arises out of the judgment and order dated 31.05.2005, rendered by the learned Additional Sessions Judge, FTC-1, Bhavnagar, in Sessions Case No.85/2004, convicting the present appellant (original accused No.1) for the offence punishable under Section 302 of the Indian Penal Code ["IPC" for short] and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment thereof to undergo further imprisonment for two years. He was also convicted for the offence punishable under Section 135 of the Bombay Police Act and sentenced to undergo imprisonment for six months and to pay a fine of Rs.250/- and in default of payment thereof to undergo further imprisonment for one month. Both the sentences were ordered to run concurrently. The original accused Nos.2 & 3 were convicted for the offence punishable under Section 323 read with Section 114 of IPC and sentenced to undergo S.I for three months. They were given the benefit of set off; whereas the said benefit was not given to present appellant (original accused No.1). The amount of fine of Rs.10,000/- was ordered to be paid to victim Vasantben, wife of deceased Dhanjibhai. 2. The prosecution case, briefly stated, is that on 10.3.2004 at about 8.30 P.M, at village Ningala, near the house of deceased Dhanji Bachubhai Makwana, a quarrel took place between the accused persons and deceased Dhanjibhai because of often scolding to the appellant (orig. accused No.1) by deceased Dhanjibhai on account of illicit intimacy with Bhavnaben, wife of Pravinbhai, the youngest brother of complainant Bhikhubhai Bachubhai, wherein all the accused persons gave filthy abuses to the deceased and the appellant, who was armed with a chhari, got excited and gave a blow in the abdomen of deceased Dhanji with chhari, as a result of which, the deceased fell down and the appellant gave another blow on his back. It is the further case of the prosecution that when the complainant and his deceased brother's wife Vasantben tried to intervene, all the three accused persons gave fist and kick blows to the complainant and Vasantben, wherein the complainant sustained injuries on his head and body, and Vasantben sustained injury on her right hand finger. It is the further case of the prosecution that there was profuse bleeding from the abdomen of deceased Dhanjibhai and intestines were protruded from the wound. It is the further case of the prosecution that there was profuse bleeding from the abdomen of deceased Dhanjibhai and intestines were protruded from the wound. On shouts being raised, other persons gathered and the accused ran away with in the jeep of the appellant. The deceased Dhanjibhai was shifted to Gadhada Government Hospital by the complainant, his uncle Govindbhai Nathubhai and Vasantben in the Jeep of one Dhasharathsinh Gajubha. The doctor on duty in the hospital declared him dead. The complainant, therefore, lodged FIR with Gadhada Police Station. 3. The investigating officer registered the F.I.R and started investigation. The I.O recorded the statements of the complainant, other eye witnesses, doctor and other persons, who were found conversant with the facts of the case. The incriminating articles, which were seized during the course of investigation, were sent to F.S.L for analysis. After obtaining Serological Report as well as ascertaining the cause of the death and on completion of the investigation, the appellants were charge sheeted in the Court of learned J.M.F.C. Gadhada, for the offences punishable under Sections 323, 504 & 302 read with Section 114 of IPC and Section 135 of the Bombay Police Act. As the offence punishable under Section 302 IPC is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Bhavnagar, for trial, where it was registered as Sessions Case No.85/2004. 4. The learned Judge of the trial Court framed charge at Exh.2 against the accused persons, wherein the present appellant (original accused No.1) was charged for the offence punishable under Section 302 IPC and Section 135 of the Bombay Police Act; whereas original accused Nos.2 & 3 were charged for the offence punishable under Section 302 r.w. section 114 IPC. All the accused persons were further charged for the offences punishable under Section 323 r.w.section 114 and Section 504 r.w. section 114 IPC. The charge was read over and explained to the appellants, who pleaded not guilty to the same and claimed to be tried. 5. After recording of evidence of the prosecution witnesses was over, the learned Judge explained to the appellants the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required under Section 313 of the Code of Criminal Procedure. 5. After recording of evidence of the prosecution witnesses was over, the learned Judge explained to the appellants the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required under Section 313 of the Code of Criminal Procedure. In their further statements, the case of the appellants was that they had not committed the offence and were falsely implicated in the case. However, no evidence was led by them to substantiate their defence. 6. After appreciating the evidence adduced by the prosecution and hearing the learned counsel for the parties, the learned Judge held that the case of the prosecution against the present appellant (original accused No.1) of the offence punishable under section 302 IPC and Section 135 of the Bombay Police Act was proved beyond reasonable doubt. The learned Judge also held that the case of the prosecution against original accused Nos.2 & 3 of the offence punishable under Section 323 r.w.section 114 IPC was proved beyond reasonable doubt. In view of this conclusion, the learned Judge convicted the accused persons and sentenced them, as referred to above by judgment and order dated 31.5.2005. The present appeal has been filed by the appellant (original accused No.1) challenging his conviction and sentence. Neither the original accused No.2 & 3, nor the State has filed any appeal challenging the judgment and order of conviction and sentence passed by the trial Court. 7. Heard learned advocate Mr. Kedar Dave for the appellant and learned A.P.P. Mr. Pandya for the State, at length and in great detail. 8. Learned advocate Mr.Dave for the appellant has taken us through the oral testimonies of PW.3, Bhikhubhai Bachubhai, recorded at exh.27, PW.4, Vasantben, wife of deceased Dhanjibhai, recorded at exh.36, PW.5, Pravinbhai Govindbhai, recorded at exh.39 and PW.8, Dasharath Dhanjibhai Makwana, recorded at Exh.46, extensively. Mr.Dave has raised the following contentions:- (1) There is discrepancy in the FIR (exh.28) and the deposition of PW.3, first informant, recorded at exh.27. (2) There is improvement as regards the role played by accused Nos.2 & 3 and the injury on the head of the first informant (PW.3). (3) Dr. Mr.Dave has raised the following contentions:- (1) There is discrepancy in the FIR (exh.28) and the deposition of PW.3, first informant, recorded at exh.27. (2) There is improvement as regards the role played by accused Nos.2 & 3 and the injury on the head of the first informant (PW.3). (3) Dr. Narendra Trambaklal Aniyali, (PW.1, Exh.14) who performed autopsy on the dead body of the deceased, has opined that the injuries sustained by the deceased could be caused by a blunt weapon; whereas, the nature of injuries indicates that they could have been caused by a weapon having edge on both the sides. (4) Dr. Aniyali (PW.1) has admitted in his cross-examination that there is overwriting in the name of father of the deceased as well as in mentioning the time as to when the deceased was brought to the hospital. (5) The doctor had not given the names of the accused to the police and also no names of the accused appear in the station diary (exh.71) and yadi (exh.68). (6) Even though there are more than 8 houses between the house of the complainant and PW.4 Vasantben and even though other persons were present at the place of occurrence, no independent witness has been examined by the prosecution. (7) Eye witnesses are relatives of the deceased and therefore, are interested witnesses. (8) There is contradiction as regards the distance between the house of the first informant (PW.3) and the place of occurrence. (9) In the FIR the first informant does not say that Dasharathbhai (PW.8), was present at the time of incident and the first informant was not able to identify the weapon. (10) There is material inconsistency as regards time of the incident. The time of incident mentioned in the FIR and in the oral testimony of the first informant is varying. (11) There is material contradiction in the oral testimonies of eye witnesses with regard to darkness. As there was no electricity, no one could be identified by the eye witnesses. 9. Learned advocate Mr.Dave pleaded that in view of the aforesaid contentions, it could not be said that the prosecution had been able to prove charges levelled against the appellant beyond reasonable doubt. Mr. Dave pointed out that there is embellishment in the oral testimonies of the eye witnesses. Mr. 9. Learned advocate Mr.Dave pleaded that in view of the aforesaid contentions, it could not be said that the prosecution had been able to prove charges levelled against the appellant beyond reasonable doubt. Mr. Dave pointed out that there is embellishment in the oral testimonies of the eye witnesses. Mr. Dave submitted that there is inconsistency in the ocular evidence and the medical evidence with regard to nature of injuries and seat of injuries. Mr. Dave vehemently argued that there are major contradictions as regards the place of incident and presence of PW.3-Bhikhubhai and PW.4- Vasantben at the time of the incident. Mr. Dave pleaded that even though independent witnesses were available, the prosecution has examined only three eye witnesses, who are relatives of the deceased and, therefore, all these three witnesses being partisan witnesses, their oral testimonies are untrustworthy and could not have been made the sole basis for conviction. Mr. Dave submitted that the oral testimonies of the eye witnesses and the medical evidence on record do not inspire any confidence of this Court and raise a shadow of doubt, benefit of which would go to the appellant-accused. Mr. Dave lastly submitted that the prosecution has not been able to establish the motive and the so-called motive put forward by the prosecution is not supported by PW.9, Bhavnaben. He, therefore, urged that the appeal deserves acceptance and the conviction and sentence awarded by the trial Court is liable to be set aside. 10. In support of his submissions, learned advocate Mr. Dave has placed reliance on the following decisions:- (1) Anil Phukan v. State of Assam, AIR 1993 SC 1462 (2) Mathura Yadav alias Mathura Mahato & Ors. v. State of Bihar, AIR 2002 SC 2707 (3) B.N. Singh and others v. State of Gujarat & Ors, 1990(1) GLH 256 (4) Mohinder Singh & Anr. v. State of Punjab & Ors, AIR 2003 SC 4399 . (5) Dahyabhai Khushalbhai Ahir & Ors. v. State of Gujarat, 1996(3) GLR, 845. 11. Learned Additional Public Prosecutor Mr. K.L. Pandya has opposed this appeal. Mr. Pandya has submitted that the eye witnesses and the other prosecution witnesses have fully supported the case of the prosecution. Mr. v. State of Punjab & Ors, AIR 2003 SC 4399 . (5) Dahyabhai Khushalbhai Ahir & Ors. v. State of Gujarat, 1996(3) GLR, 845. 11. Learned Additional Public Prosecutor Mr. K.L. Pandya has opposed this appeal. Mr. Pandya has submitted that the eye witnesses and the other prosecution witnesses have fully supported the case of the prosecution. Mr. Pandya has further submitted that particularly the oral testimony of PW.3- Bhikhubhai clearly establishes the fact of commission of offence and the subsequent event, more particularly, the 2nd blow having been inflicted by the appellant on the back of the deceased. Mr. Pandya has contended that the oral testimonies of PW.3, Bhikhubhai, PW.4, Vasantben as well as PW.5, Pravinbhai, are natural and without any embellishment. Mr. Pandya has submitted that only because the eye witnesses are relatives of the deceased, their testimonies cannot be disbelieved. Mr. Pandya has asserted that the prosecution has been able to establish the motive in the instant case. Mr. Pandya has submitted that the instant case is foolproof case and the direct evidence, which is available, is sufficient to connect the appellant with the offence of murder. Mr. Pandya has further submitted that the medical evidence as well as the evidence in the form of serological report supports the case of the prosecution. On the basis of the serological report (exh.86), learned A.P.P Mr. Pandya pointed out that the chhari, which was used in the commission of the crime, was found having bloodstains of human blood group 'A', which is the blood group of the deceased. Mr. Pandya stressed that the appellant, who was armed with chhari, had caused serious injuries to the deceased and as the evidence of eye witnesses gets ample corroboration from the medical evidence, the well founded conviction of the appellant should not be interfered with by this Hon'ble Court in the present appeal. The learned counsel for the State lastly pointed out that no error is committed by the learned Judge in appreciating the evidence on record and therefore, the appeal should be dismissed. 12. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 13. The fact that deceased Dhanjibhai died a homicidal death is not disputed at all. The evidence of Dr. 12. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 13. The fact that deceased Dhanjibhai died a homicidal death is not disputed at all. The evidence of Dr. Narendra Aniyali, PW.1 Exh.14, establishes that on 11.3.2004, he had conducted post-mortem examination on the dead body of Dhanjibhai between 1.00 AM and 2.00 AM. According to Dr.Aniyali, he had found two external injuries. The cause of death of the deceased, according to the doctor, was internal haemorrhage shock as a result of injuries to vital organ spleen. The doctor has stated in his deposition before the Court that the internal injury no.1 was corresponding to external injury no.2 and injury No.1 sustained by the deceased was sufficient in the ordinary course of nature to cause death. The evidence of the medical officer gets ample corroboration from the post-mortem notes produced on the record of the case at Exh.16. It is not the case of the appellant that the injuries sustained by the deceased were either suicidal or accidental. Having regard to the facts and circumstances of the case, we are satisfied that the prosecution has proved beyond reasonable doubt that the deceased died a homicidal death. The finding recorded by the learned Judge of the trial Court regarding homicidal death of the deceased being eminently just is hereby upheld. 14. We have closely scrutinized the oral testimonies of the three eye witnesses. Upon going through the substantive evidence of PW.3, Bhikhubhai Bachubhai, who is the first informant, we find that when he was at his residence, he heard the shouts and he could identify the voice of the appellant. This witness has stated in his evidence that he, therefore, rushed towards the house of the appellant and was followed by PW.4, Vasantben, who happened to be the wife of his deceased brother Dhanjibhai. He has further stated that when he reached the place of incident, he found that the deceased was caught hold by original accused Nos.2 & 3 and present appellant (orig. accused No.1) had inflicted a blow to the deceased with chhari, as a result of which, intestines were protruded. He has further stated that when he reached the place of incident, he found that the deceased was caught hold by original accused Nos.2 & 3 and present appellant (orig. accused No.1) had inflicted a blow to the deceased with chhari, as a result of which, intestines were protruded. He has also stated in his deposition that the appellant had given two blows to the deceased; one on the abdomen and the other near waist. He has also stated that he and Vasantben tried to intervene, however, original accused Nos.2 & 3 gave them kick and fist blows. He has also stated that original accused Nos.2 & 3 gave a push to Vasantben, as a result of which she fell down. The witness has further stated that thereafter he and Vasantben took the deceased to Gadhada Government Hospital in the jeep of Dasharathbhai. He has also stated that he lodged the F.I.R, wherein he named all the three accused persons. He has also stated in his deposition that since he was upset, he, in his police statement, had stated the time of occurrence to be 8.30 PM; whereas, the exact time of occurrence was 9.30 PM. This witness was subjected to cross-examination. In his cross-examination, the witness has categorically stated that he and Vasantben (PW.4) reached the scene of offence first and thereafter other persons had come. He has further stated in his cross-examination that he had given the names of all the three original accused. In his grueling cross-examination, the witness has denied the suggestion put to him that there was discrepancy as regards the time of occurrence. We find that the witness stood to the test of cross-examination and has fully supported the case of the prosecution. 15. Coming to the evidence of witness Vasantben Dhanjibhai (PW.4, Exh.36), we find that the witness has clearly stated in her evidence that her son Ganpat informed her that there was some altercation between deceased Dhanjibhai and the appellant and, therefore, she rushed towards the house of the appellant. She has further stated that the incident occurred at about 9.00 PM. She has also stated that the appellant was armed with a bloodstained chhari and the deceased was lying there in injured condition and he was profusely bleeding. She has further stated that the incident occurred at about 9.00 PM. She has also stated that the appellant was armed with a bloodstained chhari and the deceased was lying there in injured condition and he was profusely bleeding. She has further stated in her deposition that she and PW.3 Bhikhubhai tried to intervene, however, she was given fixed and kick blows by original accused Nos.2 & 3, as a result of which, she fell down. She has also stated that her brother-n-law Pravinbhai (PW.5) and others came to the place of incident and the accused persons ran away. She has stated that the deceased was first taken to the house of Jerambhai and from there, he was taken to Gadhada Government Hospital in the jeep of Dasharathbhai. She has identified muddamal weapon chhari used in the commission of offence. In her gruelling cross-examination, she has supported the case of the prosecution and has denied the suggestion of the defence as regards the place of incident and identification of the accused. She has categorically stated that the incident had occurred at 9.00 PM and there were lights on. We also find that she has categorically denied the suggestion that when she and P.W.3-Bhikhubhai (first informant) reached the place of incident, other persons were already there. She has fully supported the case of the prosecution. 16. The deposition of PW.8, Dasharathbhai Dhanjibhai Makwana, shows that when he reached the place of incident, his uncle Bhikhubhai (PW.3, first informant) and his mother Vasantben (PW.4) were already present there. He has stated that the appellant was armed with a bloodstained chhari. He has also stated that original accused No.3 gave him a kick blow. He has further stated that thereafter the deceased was shifted to the house of Jerambhai and from there, he was taken to Gadhada Government Hospital. This witness was subjected to cross-examination and he has denied the suggestions of defence. 17. Upon reading the evidence of PW.5, Pravinbhai Govindbhai, we find that when he reached the place of incident, the deceased was found lying injured and the appellant was armed with a chhari. This witness has also stated in his testimony that the deceased had received injuries on his abdomen and backside of the body. 17. Upon reading the evidence of PW.5, Pravinbhai Govindbhai, we find that when he reached the place of incident, the deceased was found lying injured and the appellant was armed with a chhari. This witness has also stated in his testimony that the deceased had received injuries on his abdomen and backside of the body. He has categorically stated that as the appellant had illicit intimacy with his wife, the deceased often used to scold the appellant and keeping this grudge in mind, the appellant along with other accused persons picked up a quarrel and assaulted the deceased. He was also subjected to cross-examination and he has denied the suggestions of defence. 18. The reassessment of testimony of Yashvantsinh Ramdevsinh Jhala, investigating officer, (PW.17, Exh.78) makes it evident that he has narrated the manner in which the investigation was carried out by him on the basis of the first information report lodged by PW.3 Bhikhubhai and the panchnama of place of incident prepared by him. This witness was also subjected to cross-examination, wherein he has denied the suggestion of the defence as regard the place of the incident. From his further cross-examination, we find that this witness has accepted the suggestion of the defence as regards some improvement made by the two eye witnesses in their respective depositions. However, the incident in main, more particularly, the version of the two eye witnesses with regard to two blows having been inflicted by the appellant to the deceased and the seat of injuries, is supported by this witness. In his cross-examination, this witness has specifically stated that even though the incident occurred in Kolipara area in the Bazar, except relatives, no other independent witness was available. 19. The serological report (exh.86) indicates that the muddamal chhari which was used in the commission of offence, was having bloodstains of human blood group 'A' which was the human blood group of the deceased. 20. Dr. Narendra Aniyali, (PW.1 Exh.14), who performed autopsy on the dead body of deceased Dhanjibhai, has clearly stated that the deceased had sustained following two external injuries:- "(1) Stab wound on the abdomen left side. Hypochondrial reg om 2 cm below ribs. Size: 3 cm x 2 cm x cavity deep. Intestine protruded from wound. Longitudinal. Margin - cutting 2 clear Bleeding - +++ (2) Stab wound on the back. Lumbar spine region - Lumbar 1st vertebrae level. Transverse. Hypochondrial reg om 2 cm below ribs. Size: 3 cm x 2 cm x cavity deep. Intestine protruded from wound. Longitudinal. Margin - cutting 2 clear Bleeding - +++ (2) Stab wound on the back. Lumbar spine region - Lumbar 1st vertebrae level. Transverse. Size: 3 cm x 2 cm x cavity deep. Margin - clear- 2 cutting edge." The doctor has opined that the aforesaid injuries could be caused by muddamal weapon chhari. In his cross-examination, the doctor has denied the suggestions of defence and has supported the case of prosecution. 21. Relying upon the decision of the Hon'ble Apex Court in the case of Anil Phukan (supra), learned advocate Mr.Dave has submitted that the evidence of an eye witness, who is a close relative of the deceased, cannot be relied upon when his evidence is contradictory to the medical evidence and there is no independent corroboration to it. In the case before the Hon'ble Apex Court, there was sole eye witness, who was a close relative of the deceased and there were major contradictions in his ocular as well as medical evidence. Considering the other contradictions, benefit of doubt was given to the accused by the Hon'ble Apex Court. However, in the instant case, three eye witnesses have been examined and their oral testimonies are further corroborated by the evidence of witness Pravinbhai Govindbhai (PW.5) and the medical evidence on record as well as serological report. Therefore, this decision would not help the present appellant. 21.1 In the case of Mathura Yadav alias Mathura Mahato & Ors (supra), there were doubtful circumstances as regards the weapon used and there was absence of motive. The oral testimonies of eye witnesses were not further corroborated by independent witnesses. In the instant case, the weapon used in the commission of offence was discovered at the instance of the appellant by drawing a panchnama (Exh.62). It is abundantly clear from the evidence of the witnesses that the incident occurred because of the grudge kept in mind by the appellant with regard to his illicit relations with Bhavnaben, wife of witness Pravinbhai. Thus, the motive is clearly proved in the instant case. It may be stated that the oral testimonies of eye witnesses were fully corroborated by the evidence of witness Pravinbhai (PW.5, Exh.39). Under the circumstances, this decision would also not help the present appellant. Thus, the motive is clearly proved in the instant case. It may be stated that the oral testimonies of eye witnesses were fully corroborated by the evidence of witness Pravinbhai (PW.5, Exh.39). Under the circumstances, this decision would also not help the present appellant. 21.2 In the case of B.N.Singh & Ors. (supra), the Hon'ble Apex Court has held that the evidence of interested witnesses should be subjected to a close scrutiny. It is further held by the Hon'ble Apex Court that when the partisan witnesses go to the extent of falsely implicating one accused, it would not be safe to rely on their evidence against any of the accused and any reliance place on such evidence is likely to result into miscarriage. In that case, there were factions between the two rival unions, and the deceased and the accused belonged to the rival factions. Therefore, there were partisan witnesses in the said case. In the instant case, as discussed above, the evidence of the eye witnesses are closely scrutinized and it is found that they are fully corroborated by independent witnesses as well as medical evidence and serological report on record. Under the circumstances, the ratio laid down in the above cited decision is not applicable to the facts of the present case. 21.3 In the case of Mohinder Singh & Anr. (supra), the Hon'ble Apex Court, after considering that there was unexplained delay in complainant reaching police station and the motive was not established, found that the evidence of eye witnesses was unreliable and, therefore, disbelieved the version of the eye witnesses. In the instant case, there was no delay in lodging the FIR and, as discussed above, the motive is clearly established. Therefore, this decision would also not be helpful to the appellant. 21.4 In the case of Dahyabhai Khushalbhai Ahir & Ors (supra), this Hon'ble High Court on appreciation of evidence and the facts of that case, had come to the conclusion that solitary eye witness was got up and there was material improvement in his version, more particularly, on the fact that the said eye witness could not identify some of the accused before the Court. In the instant case, there were three eye witnesses and the defence was not been able to prove that they were got up witnesses and there was any improvement in their version. In the instant case, there were three eye witnesses and the defence was not been able to prove that they were got up witnesses and there was any improvement in their version. The eye witnesses have correctly identified all the accused persons. Therefore, the ratio laid down in the above cited decision is also not applicable to the present case. 22. The sum total of the above discussion is, therefore, that the prosecution has been able to connect the appellant-accused with the present crime. Three eye witnesses, namely, Bhikhubhai Bachubhai, who is first informant (PW.3), Vasantben, wife of deceased Dhanjibhai (PW.4) and Dasarathbhai Dhanjibhai (PW.8) have clearly stated in their oral testimonies that the appellant was armed with a bloodstained chhari. The first informant (PW.3), who reached the place of incident first, has categorically stated in his oral testimony that the deceased was assaulted by the appellant with chhari and he gave two chhari blows to deceased Dhanjibhai; one on the abdomen and other on the back of the deceased. The oral testimony of PW.3 is amply corroborated by the medical evidence as well as the serological report and also by the oral testimonies of Vasantben (PW.4) and Dasharathbhai (PW.8). Thus, the prosecution has been able to establish the guilt of the appellant on the basis of oral testimonies of three eye witnesses, which are further supported by the oral testimony of Pravinbhai (PW.5), who reached the place of incident and found the appellant standing with bloodstained chhari. He also found deceased Dhanjibhai lying in bleeding condition. 23. We find that though in the FIR the time of occurrence is mentioned to be 8.30 PM, according to the oral testimonies of prosecution witnesses, more particularly PW.3 & PW.4, the incident occurred between 9.00 PM and 9.30 PM, which is also corroborated by the oral testimony of the Investigating Officer. It may be noted that when such a incident occurs at night hours, it could not be expected that the first informant would see watch and record the exact time of occurrence. The eye witnesses are illiterate rustic villagers and, therefore, any such variation in mentioning time would not render his testimony unreliable. 24. It may be noted that when such a incident occurs at night hours, it could not be expected that the first informant would see watch and record the exact time of occurrence. The eye witnesses are illiterate rustic villagers and, therefore, any such variation in mentioning time would not render his testimony unreliable. 24. In view of the above-referred to decisions cited at the Bar, we have undertaken a close scrutiny of the evidence of the three eye witnesses, who are relatives of the deceased and we find that there is no contradiction and/or discrepancy in the incident in main and there is ring of truth in the oral testimonies of the three eye witnesses. Five witnesses being the relatives of the deceased, is not synonymous to interested witnesses, and in the instant case, oral testimonies as regards the incident in main are corroborated by the medical evidence as well as serological report on record. The present appellant (orig. accused No.1), original accused Nos.2 & 3 and the eye witnesses, all belonged to the same village and therefore, they knew each other. There is no evidence on record to establish that as the incident occurred at 9.30 PM, there was total darkness and street lights were not on. We find that the defence has made an attempt to establish the fact that there were no lights on. However, except the fact that there was staggering of electricity supply, no definite has come on record to establish the fact that the incident had occurred in complete darkness and it was impossible for the eye witnesses to identify the appellant-accused. There is evidence on record indicating that original accused Nos.2 & 3 gave fist and kick blows to PW.3 & PW.4, as a result of which they received some simple injuries. Therefore, it cannot be said that the appellant-accused could not have been identified by the first informant (PW.3) and other two eye witnesses (PW.3 & PW.4) as well as Pravinbhai (PW.5). Thus, the prosecution has been successful in bringing home the charge of murder against the appellant (orig. Therefore, it cannot be said that the appellant-accused could not have been identified by the first informant (PW.3) and other two eye witnesses (PW.3 & PW.4) as well as Pravinbhai (PW.5). Thus, the prosecution has been successful in bringing home the charge of murder against the appellant (orig. accused No.1) and the learned trial Judge, after appreciating the evidence on record, has rightly come to the conclusion that the appellant is guilty for committing murder of deceased Dhanjibhai and has rightly convicted and sentenced the appellant for the offence punishable under Section 302 IPC and also under Section 135 of Bombay Police Act, as the appellant committed breach of the Notification issued by the District Magistrate, Bhavnagar, dated 25.2.2004, which was already in operation on the date of commission of the offence. The appeal, which is devoid of any merits, therefore, deserves dismissal. For the reasons recorded hereinabove, we do not find any merits in the appeal. The appeal, therefore, stands dismissed. The appellant's bail bond shall stand cancelled and he shall surrender to custody within six weeks from today. Appeal dismissed.