Gujarat High Court
Thakore Banuji Agraji vs The State Of ... on 26 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/536/2007 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 536 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR
BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India, 1950 or
any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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THAKORE BANUJI AGRAJI....Appellant(s)
Versus
THE STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MS JK HINGORANI, ADVOCATE for the Appellant(s) No. 1
MS MOKSHA THAKKAR, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Page 1 of 37
R/CR.A/536/2007 CAV JUDGMENT
Date : 26/03/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This Appeal is at the instance of a convict accused of the offence under Section 302 of the Indian Penal Code and is directed against the order of conviction and sentence dated 21st November, 2005 passed by the Additional Sessions Judge, 3rd Fast Tract Court, Patan in Sessions Case No.21/2005. The Additional Sessions Judge convicted and sentenced the accused appellant to undergo imprisonment for life and fine of Rs.50,000/- of the offence of murder punishable under Section 302 of the Indian Penal Code with a further stipulation that in default of payment of fine, the accused appellant shall undergo further rigorous imprisonment of 3 years. In the same way the learned Additional Sessions Judge also convicted and sentenced the accused-appellant to undergo rigorous imprisonment of 3 years with fine of Rs.5,000/- of the offence under Section 506(2) of the Indian Penal Code with a further stipulation that in default of payment of fine the accused appellant shall undergo further rigorous imprisonment of six months. The Additional Sessions Judge also directed the accused appellant to undergo rigorous imprisonment of one month with fine of Rs.1,000/- of the offence under Sec.135 of the Bombay Police Act with a further stipulation that in default Page 2 of 37 R/CR.A/536/2007 CAV JUDGMENT of payment of fine further rigorous imprisonment of 15 days. The Additional Sessions Judge further directed that from the amount of Rs.50,000/- towards fine, a sum of Rs.40,000/- shall be paid to the legal heirs of the deceased under Section 357 of the Criminal Procedure Code.
2 Case of the Prosecution :
2.1 The accused appellant had borrowed some money from the deceased Sonaji Jaktaji Thakore on the occasion of the marriage of the daughter of the accused-appellant's brother Babuji Agaraji Tahkore. On 21st January, 2005 at around 18.00 hours, the deceased demanded the money, he had lent, due to which there was an altercation between the two. With a view to seek revenge the accused-appellant and his three brothers on 22nd January, 2005 at around 5.30 in the early morning strangulated the deceased to death near the sim of the Village Sampara. It is also the case of the prosecution that the accused-appellant and other three co-accused who are his full brothers inflicted injuries on the neck, and committed the offence of murder punishable under Section 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code. It is the case of the prosecution that at the time of the assault by Page 3 of 37 R/CR.A/536/2007 CAV JUDGMENT the accused-appellant and the co-accused on the deceased, the brother of the deceased, namely, Amarsang Jaktaji Thakore was passing by and he witnessed the incident. At that point of time, the accused-appellant and the other co-accused threatened Amarsinh Jaktaji Thakore by showing a knife. 2.2 It appears that the PW-1 Amarsinh Jaktaji Thakore, an eye-witness to the incident lodged, a First Information Report (Exh.40) on 22/1/2005 at 15:30 hrs., stating that the deceased was his brother. The deceased had lent money to the accused appellant on the occasion of the wedding of his brother's daughter. The deceased demanded the money from the accused-appellant on the previous day i.e. on 21 st January, 2005 on account of which there was an altercation between the deceased and the accused-appellant. At that point of time, few other persons intervened and persuaded the deceased and the accused-appellant not to fight. He has stated in the First Information Report that on 22nd January, 2005, he woke up at 4 O'clock in the morning and left with a cane of milk to be delivered at the village dairy at around 5.00 O'clock in the morning. According to the first informant, he was passing through a road which cuts through a lake and while he was heading towards the dairy he heard shouts and saw that four Page 4 of 37 R/CR.A/536/2007 CAV JUDGMENT persons were assaulting one individual. He witnessed the assault in the moonlight. The accused-appellant on seeing the PW-1 rushed towards him with a knife and threatened him to kill. The PW-1 identified those persons to be the accused-
appellant and his three brothers. He has further stated in the First Information Report that the other three persons also rushed towards him and threatened to kill him. The PW-1 has stated in his FIR that by that time one Thakore Kadvaji Motiji and Samtaji Galabji arrived at the place of incident and on seeing them all the four accused persons ran away. The PW-1 thereafter went near the place where he had seen the accused persons assaulting one person and on reaching there he realized that it was his brother who was lying on the ground. He has stated that there was a Dhoti tied around his neck and his legs were also tied. He has also stated that his brother was naked from the waist and on trying to talk to his brother his brother did not utter a word. He has also stated that there was bleeding from the ears of his brother. Thereafter the PW-1 along with Thakor Kadvaji Motiji and Samtaji came to the village and informed about the incident to the other persons. The other people also came at the spot of occurrence. Thereafter he proceeded to Patan Taluka Police Station and lodged the report.
Page 5 of 37 R/CR.A/536/2007 CAV JUDGMENT 2.3 On the complaint being lodged, the investigation had started. The inquest panchnama -Exh.53 of the dead body was drawn in presence of the panch witnesses. The scene of offence Panchnama-Exh.29 was drawn in presence of the panch witnesses. The dead body of the deceased was sent for postmortem and the postmortem report Exh.21 noted that the cause of death was asphyxia due to strangulation. The Postmortem Report also noted a ligature mark on the neck with abrasions all over the face. The clothes worn by the deceased at the time of incident were collected by drawing a Panchnama Exh.33 and were sent to the Forensic Science Laboratory for chemical analysis. The accused-appellant and his three brothers (co-accused) were arrested on 31 st January,2005 and the arrest panchnama of the accused- appellant Exh.31 was drawn in presence of the panch witnesses. At the time of his arrest Panchnama, the accused appellant also produced the weapon of offence i.e. knife. The same was collected and was sent to the FSL for chemical analysis. The Serological Test Report revealed that the weapon of offence knife was detected with human blood of 'O' Group matching with the blood group of the deceased. The cover in which the knife was placed was also detected with Page 6 of 37 R/CR.A/536/2007 CAV JUDGMENT human blood of 'O' group matching with the blood group o the deceased. The statements of various witnesses were recorded. Finally, the Investigating Officer filed charge-sheet in the Court of Judicial Magistrate, First Class, Patan. 2.4 As the case was exclusively triable by the Sessions Court, the JMFC, Patan committed the same to the Court of Sessions under Section 209 of the Criminal Procedure Code. 2.5 The Trial Court framed charge -Exh.11 against the accused-appellant and other co-accused. The statement of the accused appellant was recorded and the accused appellant pleaded not guilty. The prosecution examined the following witnesses.
PW-1 Amarsang Jaktaji - Exh.19
(Original complainant)
PW-2 Dr.Jashvantbhai Revabhai Yadav Exh.20
(Medical Officer)
PW-3 Kadvaji Motiji (Eye-witness) Exh.23
PW-4 Samtaji Galabji (eye-witness) Exh.24
PW-5 Virsangji Khodaji Exh.25
PW-6 Abhuji Bhjikhaji Exh.26
PW-7 Balaji Jogaji (Panch witness) Exh.27
PW-8 Bhagwanji Ishabhai Chaudhari Exh.30
(Panch witness)
Page 7 of 37
R/CR.A/536/2007 CAV JUDGMENT
PW-9 Gulmahammad Rajanbhai (PSO) Exh.36
PW-10 Chandurbhai Rupaji Kotad (I.O.) Exh.39
PW-11 Omprakash Sadhuram Sivnani (I.O.) Exh.43
2.6 Prosecution also adduced following documentary
evidence.
1) Yadi written to the Executive Magistrate,
Patan for inquest. Exh.28
2) The Panchnama of the place of the
Offence. Exh.29
3) The Panchnama of the physical
Condition of the accused. Exh.31
4) The report of handing over of the
Clothes of the dead body by the PSO Exh.32
5) The Panchnama of the clothes being
On the dead body. Exh.33
6) The receipt of handing over of the
dead body after the P.M. of the
dead body. Exh.34
7) The yadi written to the Mamlatdar,
Patan for preparing map of the place
Of the offence. Exh.35
8) Depute-order. Exh.37
9) The Yadi written by the PSI for
Registering the offence. Exh.38
10) The complaint of Thakor Amarsang
Jaktaji. Exh.40
11) Police report sent with the dead body
For Postmortem. Exh.41
Page 8 of 37
R/CR.A/536/2007 CAV JUDGMENT
12) Yadi written to the Medical Officer,
Patan for conducting the Postmortem
of the dead body. Exh.42
13) Muddamal -dispatch Note. Exh.44
14) The acknowledgment receipt of
FSL regarding muddamal. Exh.45
15) The acknowledgment receipt of
FSL regarding muddamal. Exh.46
16) The forwarding letter of FSL. Exh.47
17) The report of FSL. Exh.48
18) The acknowledgment receipt of
FSL regarding muddamal. Exh.49
19) The report of F.S.L. Exh.50
20) The report of Serology Department Exh.51
21) The Notification of the District
Magistrate. Exh.52
22) Inquest Panchnama. Exh.53
23) The report regarding the production of
clothes from the dead body after P.M.
by the Asst.Police Constable (Sariad Exh.54
O.P.)
2.7 On conclusion of the trial, the learned Addl. Sessions Judge held the accused appellant guilty of the offence of murder punishable under Sec.302 of the Indian Penal Code as well as of the offence under Sec.506(2) of the Indian Penal Code. The learned Addl. Sessions Judge also held the accused appellant guilty of the offence under Sec.135of the Bombay Page 9 of 37 R/CR.A/536/2007 CAV JUDGMENT Police Act and sentence the accused-appellant as stated aforesaid. So far as the three co-accused are concerned, they were acquitted by the Trial Court by extending benefit of doubt in their favour.
2.8 Being dissatisfied, the accused-appellant has come-up with this appeal.
3. Submissions on behalf of the accused-appellant :
3.1 Ms.Hingorani, the learned advocate appearing for the accused-appellant submitted that the Trial Court committed a serious error in finding the accused appellant guilty of the offence of murder. Ms.Hingorani very strenuously submitted that the Trial Court committed a serious error in placing implicit reliance on the evidence of the eye-witnesses.
According to Ms.Hingorani, the entire case has been fabricated and there was none who had actually witnessed the incident. Ms.Hingorani submitted that the incident is alleged to have occurred at 5.30 in the early morning and the version of the PW-1, brother of the deceased that he was going to the dairy for delivery of milk does not appear to be reliable. Ms.Hingorani also submitted that the presence of the other two Page 10 of 37 R/CR.A/536/2007 CAV JUDGMENT eye-witnesses i.e. the PW-3 Kadvaji Motiji and the PW-4 Samtaji Galabji also appears to be highly doubtful and both have been created as eye-witnesses to the incident. 3.2 Ms.Hingorani submitted that there is a gross delay in lodging the First Information Report. According to Miss. Hingorani, the police chowky where the PW-1 could have immediately gone and lodged the report was at a distance of 5 Kms. and there was no reason for the PW-1 and the others to travel a distance of 50 Kms. and reach Patan Taluka Police Station for the purpose of lodging the report. Ms.Hingorani, in such circumstances, submitted that no reliance could be placed on the evidence of the interested witnesses, more particularly, when on overall appreciation of their evidence it becomes doubtful whether the eye-witnesses were actually present at the time of the incident. Ms.Hingorani submitted that the appeal merits consideration and the order of conviction and sentence passed by the Trial Court be set aside.
4. Submissions on behalf of the State :
4.1 Ms.Moksha Thakkar, the learned Additional Public Prosecutor, submitted that the trial court rightly convicted the Page 11 of 37 R/CR.A/536/2007 CAV JUDGMENT accused-appellant of the offence of murder and no error not to speak of any error of law could be said to have been committed by the Trial Court. Ms.Thakkar submitted that there is no reason to disbelieve the three eye-witnesses, more particularly when the PW-3 Kadvaji Motiji and PW-4 Samtaji Galabji are independent eye-witnesses. In such circumstances Ms.Thakkar submitted that there being no merit in this appeal, the same may be dismissed.
5. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this Appeal is whether the Trial Court committed any error in finding the accused-appellant guilty of the offence of murder.
6. The PW-1 Amarsang Jaktaji in his evidence has deposed that the deceased was his brother. The incident had occurred early in the morning at around 5.00 O'clock near a lake situated at village Sampra. He has deposed that at that point of time when he was heading towards the village dairy for delivery of milk and when he reached near the lake he saw that the accused-appellant and his three brothers were assaulting the deceased. He has further deposed that there Page 12 of 37 R/CR.A/536/2007 CAV JUDGMENT was a dhoti tied around the neck of his brother. When the PW- 1 tried to go near, the accused appellant took-out a knife and rushed towards him. He has further deposed that due to fear he ran away and while running away he met Kadvaji Motiji -
PW-3 and Samtaji Galabji PW-4. He has deposed that the PW-3 and the PW-4 inquired with him as to why he was running to which he replied that the accused appellant was running after him with a knife to kill him. Thereafter the PW-1 along with PW-3 Kadvaji and the PW-4 Samtaji returned at the place of occurrence and found that the deceased was lying flat on the ground. There was a cloth tied around his neck and his left leg was broken. He has also deposed that the deceased was naked from his waist. He has deposed that thereafter he went to the village and informed about the incident to other people and thereafter went to Patan Police Station to lodge the FIR. He has also deposed that the motive behind the commission of crime was that the accused appellant had borrowed some money from the deceased on the occasion of the wedding of daughter of his brother (Accused no.4-acquitted), the amount was demanded by the deceased as a result there was an altercation on the previous day and with a view to seek revenge on the next day early in the morning the accused and his three brothers committed the murder of the deceased. In Page 13 of 37 R/CR.A/536/2007 CAV JUDGMENT his cross-examination few contradictions in the form of omissions were brought on record, more particularly, on the aspect of motive. Nothing substantial could be elicited through the cross-examination of the PW-1 so as to render his evidence doubtful in any manner.
7. Since the prosecution has placed strong reliance on the evidence of the PW-1, it is necessary for us to consider an important question whether the PW-1 was actually present at the place of occurrence. We have taken note of few suggestions which have been given by the defence counsel to the PW-1. Those suggestions are as under :
Q: You on seeing Banuji (accused appellant) presumed that his four brothers were also there along with him. A: It is not true that on seeing Banuji (accused-appellant) I presumed that his four brothers must also be there.
8. What would be the implication of such suggestion given by the defence to this witness ? In our opinion the suggestion itself is of such a nature that it establishes the presence of the PW-1 at the time of the incident and had seen the accused appellant and as he had seen the accused-appellant he had also presumed that others present at the time of the incident must be his brothers.
Page 14 of 37 R/CR.A/536/2007 CAV JUDGMENT
9. We have also taken note of one other suggestion which establishes the presence of PW-1 at the time of incident. Q: On the day of the incident you had witnessed four persons assaulting one other person from a distance of approximately 30 ft. but you had not seen who was assaulting whom.
A: It is true that on the day of the incident four persons were assaulting one other person which I witnessed at the distance of 30 ft. but could not see who was assaulting whom.
10. The aforesaid suggestion also establishes that the PW-1 was passing through the lake on the day of the incident and had witnessed four persons assaulting one other person. From such suggestion at least one thing is established and that is the version of the PW-1 that early in the morning he was going to the village dairy for delivery of the milk and at that point of time he had witnessed the incident. Therefore, it could not be said that the prosecution has created the PW-1 as a false eye- witness to the incident and his version is absolutely unreliable.
11. The PW-3 Kadvaji Motiji is also an eye-witness to the Page 15 of 37 R/CR.A/536/2007 CAV JUDGMENT incident. The PW-3 Kadvaji in his evidence Exh.23 has deposed that in the night he had gone to his agricultural field for some agricultural operations. He has deposed that early in the morning at around 5.30 he was returning home from his field and when he reached near the lake situated next to Vagheshwari Goddess Temple, he met Samtaji Galabji (PW-4). According to the PW-3 when he and Samtaji were returning home they heard shouts. He has deposed that the PW-1 Amarsang with a cane of milk in his hand was shouting by stating "Mari Nakhyo, Mari Nakhyo" (Killed, killed). The PW-3 has deposed that at that point of time the accused-appellant was following the PW-1 with a knife in his hand. The PW-3 has deposed that he and Samtaji had seen the PW-1 Amarsang and the accused appellant in the moonlight. He has also deposed that the three brothers of the accused-appellant were also present. Thereafter all those persons went away in a particular direction. He has deposed that a dead body was lying near the lake and at that point of time the PW-1 Amarsang tried to speak with the deceased but was not able to speak anything. He has deposed that he and Samtaji could notice that it was Sonaji-the deceased. The dhoti was tied around his neck. According to the PW-3 thereafter he along with Samtaji and PW-1 went to the village and informed about the incident to Page 16 of 37 R/CR.A/536/2007 CAV JUDGMENT the other people. Thereafter they went to the Patan Police Station in a jeep for lodging of the complaint. In his cross- examination except few suggestions which were denied, nothing substantial could be elicited through his cross- examination so as to disbelieve his version.
12. The PW-4 Samtaji Galabji is also an eye-witness to the incident. The PW-4 Samtaji in his evidence Exh.24 has deposed that the incident had occurred at around 4:10 in the morning and at that time he was at his agricultural field. He has deposed that at that time the PW-3 Kadvaji had met him. He has also deposed that the PW-1 Amarsang came shouting and he was followed by the accused appellant Banuji. According to the PW-4, on seeing them the accused persons ran away. Thereafter they all went near the place where the dead body was lying and noticed that the same was of the deceased Sonaji. He has also deposed that a dhoti was tied around the neck of the deceased and was dead. Thereafter they all went to the village Sampra and informed about the incident to the other people and thereafter went to the Patan Taluka Police Station to lodge the First Information Report. Nothing substantial could be elicited through the cross- examination of the PW-4 so as to disbelieve this witness. On Page 17 of 37 R/CR.A/536/2007 CAV JUDGMENT the contrary we have noticed that a suggestion has been given by the defence counsel which establishes the presence of this witness at the time of incident. The suggestion is as under :
Q: The complainant Amarsang was at a distance of 10 ft.
from you and the accused Banuji was at a distance of 10 ft. from Amarsang.
A: It is true that the complainant Amarsang was at a distance of 10 ft. from me and the accused Banuji was at a distance of 10 ft from Amarsang.
13. Such a suggestion establishes the presence of the PW-4 at that point of time early in the morning. This witness could not be said to be an unreliable witness on the ground that he has been created by the investigating agency. At the same time in his cross-examination he has also deposed that he had no personal knowledge about the incident and had not seen the accused persons actually assaulting the deceased.
14. From the evidence of the PW-3 Kadvaji Motiji (Exh.23) and the PW-4 Samtaji Galabji (Exh.24) it is evident that early in the morning they had met the PW-1 Amarsang who at that point of time was seen running and shouting that his brother had been killed. The PW-3 and the PW-4 may not be the actual Page 18 of 37 R/CR.A/536/2007 CAV JUDGMENT eye-witnesses to the assault, but at the same time from the sequence of events as narrated by them in their deposition it appears that they were present and had also seen the accused appellant running away.
15. The PW-5 Virsangji Khodaji in his evidence (Exh.25) has deposed that the incident had occurred on 21 st January, 2005. On 21st January, 2005 one Keshaji Pratapji Thakor had organized a Bhajan at his house in the honour of one Sadaram Bapu in the evening. Keshaji Pratapji Thakor had invited people at his house to participate in the program of Bhajan and accordingly the PW-5 Virsangji in company of one Abhuji Bhikhaji and Jasvantji Khetaji decided to visit the house of Keshaji Pratapji Thakor. At around 6 O'clock in the evening they left from their house and while they were travelling on foot, they saw that the deceased Sonaji and the accused Banuji were fighting with each other. The PW-5 Virsangji and others persuaded them not to fight and asked both of them to go to their respective home. At that time the deceased Sonaji had stated that the accused Banuji was refusing to return the money which he had borrowed and the quarrel was regarding the same. According to the PW-5, at that point of time Pathuji Page 19 of 37 R/CR.A/536/2007 CAV JUDGMENT also came and he was asked to take his brother-the accused home. Thereafter the PW-5 and his companions went away to attend the Bhajan. The PW-5 Virsangji has deposed that the program of Bhajan continued upto 12 O'clock in the night and thereafter they returned to their respective homes situated in their fields. According to the PW-5, he woke up next day in the morning at 8 O'clock. At around 11 O'clock in the morning they learnt that Sonaji had been killed and his dead body was lying near the lake. They went at the place where the dead body of the deceased was lying near the lake and found that a dhoti was tied around the neck of the deceased covering his mouth. The PW-5 has also deposed that the deceased was naked from the lower part of his body. After seeing the dead body all those persons who had gathered, went away to their home. He has also deposed that at that point of time, the PW-1 Amarsang had told him that his brother Sonaji had been killed by the accused Banaji and his brothers. Nothing substantial could be elicited through the cross-examination of this witness so as to render his evidence doubtful in any manner. The PW- 5 is not an eye-witness to the incident but has deposed about the quarrel which had ensued between the accused and the deceased on the previous day in the evening hours. He has also deposed regarding the money which was borrowed by the Page 20 of 37 R/CR.A/536/2007 CAV JUDGMENT accused from the deceased on the occasion of marriage of the daughter of one of the brothers of the accused. Thus, the PW- 5 has been able to throw light on the motive for commission of the crime.
16. The PW-6 Abhuji Bhikhaji in his evidence Exh.26 has deposed that he had also gone to the house of Keshaji Pratapji Thakor as he had been invited to attend the function of Bhajan which was organized in the honour of one Sadaram Bapu. While on his way to the house of Keshaji Pratapji Thakor, he had seen the accused Banuji and the deceased quarreling with each other. At that point of time, the deceased had told them that the accused was refusing to repay the amount which he had borrowed from him. According to the PW-6 both were persuaded not to fight and return to their respective home. The evidence of the PW-6 is almost on the same footing with that of the PW-5. The PW-6 also speaks about the quarrel which had ensued between the accused and the deceased on the previous day.
17. We shall now look into the medical evidence on record. The PW-2 Dr.Jaswantbhai Revabhai Yadav in his evidence Exh.20 has deposed that on 22nd January, 2005 he was on duty Page 21 of 37 R/CR.A/536/2007 CAV JUDGMENT as a Medical Officer at the Civil Hospital, Patan and at that point of time a dead body of one Thakor Sonaji Jaktaji was brought with a Police Yadi and the inquest report for the Postmortem. He has deposed that on the same day he had performed the postmortem of the dead body. The PW-2 Dr.Yadav noted the following external injuries on the body of the deceased :
i) A ligature mark 5 cm broad yellowish coloured, below thyroid cartilage, horizontally encircling the neck completely, making the groove on neck, Edges of which were reddish & congested.
ii) 2 x 2 cm reddish coloured abrasion on post parietal region of the head.
iii) 4 x 3 cm reddish coloured abrasion on right forehead near midline.
iv) 2 x 1 cm Reddish coloured contusion on left cheek on maxillary region.
v) 3 x 1.5 cm reddish coloured contusion on Rt cheek on zigomatic region.
vi) 12 x 10 cm pale abrasion on the right gluteal region.
18. The PW-2 Dr. Yadav has deposed that the internal examination of the dead body of the deceased revealed the following injuries :
- subcutaneous tissue under ligature mark in neck was Page 22 of 37 R/CR.A/536/2007 CAV JUDGMENT pale yellow & shining. Extravagated blood in subcutaneous tissue under ligature mark was seen.
- Mucosa of trachea congested & mucous membrane contained fine froth.
- Both lungs congested. Tardieu spots on lungs surface were present.
- On cut surface of lungs exudes dark drop of blood.
- Pericardium congested. Tasdieu spots on surface.
- Rt. Chamber of the heart contained about 1 cc blood.
- Left chambers were empty.
19. The PW-2 Dr.Yadav has further deposed that the death might have occurred within 6 hours after taking food and water. The cause of death assigned was asphyxia due to strangulation. He has also deposed that the injury No.1 was sufficient in the ordinary course of nature to cause death. He has also deposed that the injury No.1 sustained by the deceased was possible if a dhoti or a cloth was tied around the neck and thereafter pulled hard. From the cross-examination of five lines, nothing substantial could be elicited so as to render the opinion of the expert witness, doubtful in any manner. From the evidence of the PW-2 Dr. Yadav, it is evident that the deceased was strangulated to death by tying his own Dhoti around the neck and thereafter pulling it hard.
The medical evidence on record fully corroborates the ocular version of the eye-witnesses, more particularly the Page 23 of 37 R/CR.A/536/2007 CAV JUDGMENT complainant PW-1.
20. We shall now look into the evidence of the two police witnesses. The PW-10 Chandurbhai Kotad in his evidence Exh.39 has deposed that on 22nd January, 2005 he was on duty as PI at the Patan Taluka Police Station and at that time at around 16:15 hours, one Thakor Amarsang Jaktaji (PW-1) of village Sampra had come to lodge a complaint. He has deposed that the PW-1 had come at around 15 hours in connection with the murder of his brother Sonaji. He has deposed that the complaint was reduced into writing. The original complaint was produced by him which was admitted in evidence as Exh.40. Thereafter the report of the complaint was forwarded to the PSO for registration of the offence and further investigation. He has deposed that thereafter the inquest Panchnama Exh.28 was drawn and the dead body was sent for postmortem. In his cross-examination he denied the suggestion given by the defence that the complaint was dictated by persons who had accompanied the complainant i.e. the PW-1. He also denied the suggestion that the names of the other co-accused were given by the persons who had come along with the complainant. He also denied the suggestion that during the course of investigation names of other accused Page 24 of 37 R/CR.A/536/2007 CAV JUDGMENT persons had been disclosed. He also denied the suggestion that the place from where the complainant claimed to have witnessed the incident, the exact spot where the deceased was alleged to have been killed was not visible. He also denied the suggestion that the statements of independent witnesses were not recorded in the course of investigation.
21. The PW-11 Omprakash Sidhnani is the Investigating Officer and in his evidence Exh.43 has deposed that on 24 th January,2005 he was on duty as the Police Sub Inspector at the Patan Taluka Police Station and at that time he had taken over the further investigation of the C.R.No.11 of 2005 from the Police Inspector Shri Kotad. He has deposed that on 31 st January, 2005 the accused persons surrendered themselves before the Patan Taluka Police Station and on their surrender, the arrest Panchnamas were drawn. He has deposed that the accused Thakor Banuji Agaraji i.e. the accused appellant herein had produced the weapon of offence-the knife which was collected by drawing the Panchnama in presence of the panch witnesses. He has also deposed about forwarding of the muddamal articles to the FSL for chemical analysis. He produced the FSL Report Exh.49 and Exh.50. In his cross- examination he denied the suggestion that the weapon of Page 25 of 37 R/CR.A/536/2007 CAV JUDGMENT offence the knife had not been used in the commission of the crime. He, however, agreed to the suggestion that he was not able to say with certainty whether the same knife had been used in the commission of the crime or not. He has also deposed that during the course of the investigation he could not find any person who had actually witnessed the incident. However, he on his own deposed that the complainant had witnessed the incident. He has deposed that he had not recorded any further statement of the complainant.
22. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the Trial Court committed any error in finding the accused appellant guilty of the offence of murder.
23. It appears from the oral evidence on record, more particularly, from the evidence of the PW-5 Virsangji Khodaji and the PW-6 Abhuji that on 21 st January, 2005 while they were on their way to the house of one Keshaji Pratapji Thakor to attend the function of Bhajan organized at his house, they had seen the deceased and the accused appellant herein quarreling with each other. It appears that the accused had Page 26 of 37 R/CR.A/536/2007 CAV JUDGMENT borrowed money from the deceased on the occasion of the wedding of his brother's daughter and when the amount was demanded by the deceased the same was refused by the accused. On this issue there was an altercation and on the very next day early in the morning the accused, with a view to seeking revenge, committed the murder of the deceased. We are not impressed by the submission of Ms.Hingorani that the presence of the PW-1 Amarsang as well as the presence of the PW-3 Kadvaji Motiji and the PW-4 Samtaji Galabji was unnatural. According to Ms.Hingorani the incident is alleged to have occurred early in the morning at around 5:30 when it was quite dark and even according to the PW-1 he had witnessed the incident in the moonlight. In a village the agriculturists at times do work for the whole night and it would all depend on the nature of the work. Therefore, if the PW-3 and PW-4, after completing the work in their fields, were returning in the early morning to their home, then there is nothing unusual about the same. Besides the same, the PW-3 and the PW-4 appear to be independent witnesses and are in no way related to the family of the deceased. They may belong to the same community but at the same time the accused also belongs to the same community. The presence of the PW-1 could also not be termed as unnatural because it appears that everyday early in Page 27 of 37 R/CR.A/536/2007 CAV JUDGMENT the morning he used to go to the village dairy to deliver milk and while on his way he witnessed the incident. The identity could not have been the problem because the accused is also known to the PW-1 whereas the deceased was his own brother. We do not find any good ground to disbelieve the evidence of the PW-1 as well as the PW-3 and PW-4 on the premise that their presence at the place of occurrence early in the morning at around 5.30 was quite unnatural. No suggestion has been given to the PW-3 as well as to the PW-4 that they were not present at the place of occurrence at 5:30 in the morning. It is no doubt true that the PW-3 and the PW-4 are not the eye- witnesses, but the events which have taken place, more particularly, the time period between the occurrence of the incident and the meeting of the PW-1 with the PW-3 and PW-4 are relevant facts under Sections 6, 7 and 8 of the Evidence Act.
24. It appears that the presence of the accused appellant is well established from the evidence on record, more particularly, considering the nature of the suggestions given by the defence to the PW-1 and PW-4. Once the presence of the accused appellant is established at the place of occurrence, then it is for him to explain as to what had brought him at the Page 28 of 37 R/CR.A/536/2007 CAV JUDGMENT place of occurrence early in the morning at around 5:30. A very pin-pointed suggestion was given to the PW-1 that he had given the names of the other co-accused only because he had seen the accused appellant. In our opinion this suggestion fully establishes the presence of the accused at the place of occurrence. In the same manner, the suggestion given to the PW-4 Samtaji Galabji that the complainant PW-1 was at a distance of 10 ft. from the place where he was standing and the accused appellant herein was at a distance of 10 ft from the place where the PW-1 was standing also establishes the presence of the accused.
25. The manner in which the PW-1 has described the assault is also well corroborated by the medical evidence on record. It appears from the medical evidence on record that the deceased was strangulated to death with his own Dhoti which was found tied around his neck. The cause of death as reflected from the postmortem note is also asphyxia due to strangulation.
26. We are not impressed by the submission of Ms.Hingorani that the case of the prosecution should be disbelieved as there Page 29 of 37 R/CR.A/536/2007 CAV JUDGMENT was delay in lodging the FIR at the Patan Taluka Police Station, which was at the distance of around 50 kms. from the place of occurrence. According to Ms.Hingorani, there was a police chowky at a distance of 5 kms. from the place of occurrence and the PW-1 could have easily informed the police chawky about the same, no sooner he realized that his brother had been killed. According to Ms.Hingorani, the delay in lodging the FIR was for a very obvious reason. According to Ms.Hingorani, none had witnessed the incident and it is only after the body was spotted at the place of occurrence that the PW-1 and the others realized that someone had killed the deceased.
27. It is well settled that delay in lodging the FIR cannot be used as a straight-jacket formula for doubting the case of the prosecution. Delay in lodging the FIR, by itself, would not be sufficient to discard the entire case of the prosecution. Delay has the effect of putting the Court on its guard to search, if any explanation has been offered and, if offered, whether or not it is satisfactory. Where the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution case.
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28. In our opinion, as such it could not be said that there was delay in lodging the FIR but even assuming for a moment that there was some delay, the same pales into insignificance as there is oral evidence of eye-witnesses whom we have found to be reliable and trustworthy. Therefore, in such circumstances, the delay in lodging the FIR is in no manner helpful to the accused-appellant.
29. In this context, we may refer with profit to the authority in State of H.P. v. Gian Chand reported in (2001) 6 SCC (Cri) 980, wherein a three-Judge Bench has opined that the delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay. If the explanation offered is satisfactory and there is no possibility of embellishment, the delay should not be treated as fatal to the case of the prosecution.
30. In Ramdas and others v. State of Maharashtra reported in (2007) 2 SCC 170, it has been ruled that when an FIR is lodged belatedly, it is a relevant fact of which the court must take notice of, but the said fact has to be Page 31 of 37 R/CR.A/536/2007 CAV JUDGMENT considered in the light of other facts and circumstances of the case. It is obligatory on the part of the court to consider whether the delay in lodging the report adversely affects the case of the prosecution and it would depend upon the matter of appreciation of evidence in totality.
31. In Kilakkatha Parambath Sasi and others v. State of Kerala reported in (2011) 4 SCC 552, it has been laid down that when an FIR has been lodged in a belated manner, inference can rightly follow that the prosecution story may not be true but equally on the other side, if it is found that there is no delay in the recording of the FIR, it does not mean that the prosecution story stands immeasurably strengthened. Similar view has also been expressed in Kanhaiya Lal and others v. State of Rajasthan, [(2013) 5 SCC 655].
32. We are also not impressed by the submission that once the trial Court disbelieved the eye witnesses in part, in such circumstances, their entire evidence ought to have been disbelieved. Such submission is canvassed in wake of the fact that the trial Court acquitted the other three co-accused, who are first brothers of the accused-appellant by giving them the benefit of doubt. It is now well settled that the maxim "falsus Page 32 of 37 R/CR.A/536/2007 CAV JUDGMENT in uno, falsus in omnibus" is not applicable and that evidence of an eye witness, who has made an untrue statement in some respect can be accepted as regards the rest of what he states. The maxim quoted above is not applicable to India where codified rules of evidence exist and it is open to the Court to accept a part of the evidence of an eye-witness while rejecting the rest of it. Thus, the principle on which the Court so acts is not that though a witness has deliberately made some false statement, he may yet be considered to be a truthful witness as regards some other statements. The Court, however, acts on the principle that certain statements of such a witness being corroborated by the probabilities of the case and other reliable evidence appear to be true and should, therefore, be accepted. A Court may again consider a part of the evidence of a witness to be not free from doubts and may think it unsafe to rely on it. But the rejection of such a statement of a witness does not necessarily destroy the value of his other statements.
33. In this context, we may refer to a decision of the Supreme Court in the case of Mst.Dalbir Kaur and Others v. State of Punjab reported in 1977 Criminal Law Journal
273. The observations made by the Supreme Court in paragraph 28 are worth noting.
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"28. .............. It was further submitted that if Ant Singh is acquitted then the whole case would fall to the ground, because if the witnesses could implicate one innocent person there is no guarantee that the others were not equally innocent. While I agree with the first part of the statement that there is some room for giving benefit of doubt to Ajit Singh, I do not agree with the other part of the argument that merely because Ajit Singh is given benefit of doubt, the others also should be acquitted.In Sat Kumar v. State of Haryana. (1974) 3 SCC 643 = (AIR 1974 SC 294) this Court observed thus:
"There is no rule of law that if the Court acquits certain accused on evidence of a witness finding it to be open to some doubt with regard to them for definite reasons, any other accused against whom there is absolute certainty about his complicity in the crime based on the remaining credible part of the evidence of that witness, should also be acquitted. It will, however, call for a closer scrutiny of the evidence and the Court must feel assured that it is safe to rely upon the witness for the conviction of the remaining accused."
34. The other circumstance on record is the production of muddamal article-knife at the instance of the accused at the time of his arrest on 31st January 2005. The knife was handed over by the accused-appellant to the investigating officer at the time of his arrest, as per panchnama Exh.31. The muddamal article-knife was detected with human blood of the blood group "O" matching with the blood group of the Page 34 of 37 R/CR.A/536/2007 CAV JUDGMENT deceased. The fact that the accused-appellant had a knife in his hand at the time of the incident is well established by the evidence of the eye-witnesses. Whether such knife was used or not in the commission of the offence is a different issue, more particularly, having regard to the nature of injuries which were sustained by the deceased. However, the fact is that muddamal article-knife was voluntarily handed over by the accused-appellant to the investigating officer at the time of his arrest and the same was collected by drawing the panchnama, Exh.31. It is true that the panch witnesses have failed to prove the panchnama, Exh.31, but the investigating officer in his evidence has clearly deposed that at the time of drawing of arrest panchnama of the accused-appellant, Exh.31, he had produced the muddamal knife with a cover and the same was collected and sent to the Forensic Science Laboratory for chemical analysis.
35. By virtue of Section 8 of the Evidence Act, the conduct of the accused is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact.
36. We have also noticed that although all the incriminating circumstances which point towards the guilt of the accused- Page 35 of 37 R/CR.A/536/2007 CAV JUDGMENT appellant had been put to him, yet he chose not to give any explanation under Section 313 of the Criminal Procedure Code except denying everything. It is well settled in law that when the attention of the accused is drawn to the said circumstance that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for building the chain of circumstances. In the facts at hand, though a number of circumstances were put to the accused-appellant, yet he has made a bald denial and did not offer any explanation whatsoever except stating that the family of the accused- appellant was very reputed in the village and as it was not liked by the complainant, the complainant threatened to oust them from the village by putting false allegations and, therefore, the complaint was filed, which appears to be false on the face of it.
37. In the overall view of the matter, we have reached to the conclusion that the trail Court committed no error in finding the accused-appellant guilty of the offence under Section 302 of the Indian Penal Code.
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38. Resultantly, the appeal fails and is hereby dismissed. The order of conviction and sentence passed by the Additional Sessions Judge, 3rd Fast Tack Court, Patan, dated 21 st December 2005 in Sessions Case No.21 of 2005 is hereby affirmed.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) *malek Page 37 of 37