Gujarat High Court
Thakore vs State on 13 March, 2012
Author: A.L.Dave
Bench: A.L.Dave
Gujarat High Court Case Information System
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CR.A/2520/2005 20 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2520 of 2005
With
CRIMINAL
APPEAL No. 694 of 2005
With
CRIMINAL
APPEAL No. 1327 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
No
2
To be
referred to the Reporter or not ? No
3
Whether
their Lordships wish to see the fair copy of the judgment ?
No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ?
No
=========================================================
THAKORE
NATWARJI RAVTAJI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
Criminal
Appeal No.2520 of 2005
MR
NL RAMNANI for
Appellant(s) : 1,
MR KL PANDYA ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
Criminal
Appeal Nos.694 and 1327 of 2005
MR
KL PANDYA ADDL. PUBLIC PROSECUTOR for Appellant(s) : 1,
MR
KIRTIDEV DAVE for
Opponents,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 28/06/2011
COMMON
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) All these appeals arise out of the judgment dated 9.11.2004 rendered by the learned Additional Sessions Judge, Fast Track Court, Patan in Sessions Case No.29 of 2003 convicting appellant- Thakore Natwarji Ravtaji of Criminal Appeal No.2520 of 2005 for the offence punishable under Section 302 of Indian Penal Code (hereinafter referred to as "IP Code) and sentencing him to suffer life imprisonment and to pay a fine of Rs.2,000/-, in default, to undergo further SI for four months. Criminal Appeal No.694 of 2005 is filed by the State against acquittal of all the accused, except accused No.4-Thakore Natwarji Ravtaji, acquitting them for the offences charged against them. Criminal Appeal No.1327 of 2005 is also filed by the State for enhancement of sentence imposed upon original accused No.6-Thakore Udaji Ravtaji convicted for the offence punishable under Section 324 of IP Code.
2. According to the prosecution case, on 21.12.2002 at about 6-45 in the evening, accused No.1-Thakore Bakaji with dharia was passing near the house of first informant- Chhatraji Modjiji giving abuses in an inebriated condition. Therefore, father of the first informant -Modjiji Bhuptaji and Thakore Prahladji Karamshiji requested him not to give abuses and took him towards his house. At that time, the accused armed with deadly weapons like sticks, dharia, dhoka, iron pipe, chisel etc. formed an unlawful assembly with a common object to attack Modjiji Bhuptaji and Prahladji Karamshiji. In furtherance of their common object, accused No.3-Meghaji Ravtaji caused injury on the head of Modjiji with dharia and accused No.2 Lilaji Ravtaji also hit dharia on his head. As Modjiji fell down, accused No.5 Udaji also hit dharia on his head. Accused No.4-Natwarji Ravtaji hit dharia on the head of Prahladji Karamshiji. Accused No.6- Meraji Lilaji hit dharia on the head of Chhatraji, accused No.5 Udaji hit dharia on the head of witness Karsamshi and Mansinhji. Accused No.1-Bakaji hit dharia on leg of witness Rameshji, accused No.6 Meraji hit blunt portion of dharia on the head of witness Chhatraji and on the leg of witness Karamshi and accused No.5 Udaji hit dharia on the wrist and leg of witness Chhatraji. It was also prosecution case that accused No.9 Ramiben and accused No.10 Tiniben armed with deadly weapons like chisel caused injuries to first informant and other witnesses. It was also prosecution case that accused Kadviben hit stick on hand of first informant and accused No.8 Dhabuben armed with wooden log, accused No.11 Jagul armed with stick and accused No.12 Agarben armed with pipe caused injuries to the witnesses. On account of the injuries, Modjiji and Prahladji died. Therefore, Chhatraji Modjiji lodged an FIR before Harij Police Station and an offence was registered and investigation started.
3. During the course of investigation, dead bodies of Modjiji and Prahladji were sent for post mortem and various panchnamas were drawn and statements of witnesses were recorded. Injured witnesses were sent for medical treatment and their medical certificates were obtained. The accused were arrested. At the end of investigation, charge sheet came to be filed against the accused for the offences punishable under Sections 147, 148, 149, 302, 307, 326, 325, 324, 323, 504 and 34 of IP Code and Section 135 of the Bombay Police Act in the Court of learned Judicial Magistrate First Class, Harij. As the offences were triable by the Court of Sessions, the case was committed to the Sessions Court at Patan and it was registered as Sessions Case No.29 of 2003.
4. The learned Additional Sessions Judge, Fast Track Court, Patan framed charge Exh.24 against the accused for the aforesaid offences. The charge was read over and explained to the accused who pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution adduced the evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded under Section 313 of the Criminal Procedure Code denied having committed the offence and stated that on account of enmity they have been falsely implicated in the offence.
5. After hearing the learned APP and learned advocate for the accused, the trial Court convicted appellant-accused No.4 Natwarji Ravtaji Thakore for the offence punishable under Section 302 of IP Code and sentenced him as mentioned hereinbefore. The trial Court also convicted accused No.6-Thakore Udaji Ravtaji for the offence punishable under Section 324 of IP Code and sentenced him to undergo imprisonment till rising of the Court and imposed a fine of Rs.2,000/-, in default, to undergo SI for four months. The trial Court acquitted the other accused for the offences charged against them. Being aggrieved by the judgment and order of conviction and sentence passed by the trial Court, appellant-accused No.4-Natwarji Ravtaji Thakore has preferred Criminal Appeal No.2520 of 2005 and the State has preferred acquittal appeal being Criminal Appeal No.694 of 2005 and enhancement appeal qua accused No.5 Thakore Udaji Ravtaji being Criminal Appeal No.1327 of 2005.
6. It may be recorded that accused No.5 Thakore Udaji Ravtaji convicted for the offence under Section 324 of IP Code has not preferred any appeal against his conviction.
7. As all the appeals arise out of the same judgment, the appeals have been heard and decided by this common judgment.
8. We have heard learned advocate Mr Ramnani for the appellant in Criminal Appeal No.2520 of 2005, learned APP Mr Pandya for the appellant in other criminal appeals and learned advocate Mr Dave for the respondents in acquittal and enhancement appeals at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court.
9. As regards Criminal Appeal No.2520 of 2005, learned advocate Mr Ramnani has conceded that he does not challenge the incident and involvement of the appellant in the offence and has restricted his arguments to the extent of nature of offence only. He submitted that in view of the peculiar facts and circumstances wherein there was free fight between the two groups, only one injury was caused to deceased Prahladji by the appellant-accused and such injury has resulted into his death. There was no intention on the part of the appellant-accused in inflicting the injury and, therefore, the trial Court committed an error in convicting him for the offence of murder of Prahladji. He, therefore, submitted that the manner in which the fatal injury was caused to the victim, the appellant could be convicted for the offence under Section 304 Part-II of IP Code and to that extent the appeal is required to be allowed.
10. Learned APP Mr Pandya opposing the conviction appeal submitted that the evidence clearly indicates that fatal injury was caused on the vital part of the victim and the injury was caused with an intention to cause death. Therefore, the trial Court was justified in recording conviction for the offence of murder and no interference is warranted.
10.1 As regards acquittal appeal and enhancement appeal, learned APP Mr Pandya submitted that the accused formed an unlawful assembly with a common object to cause death of the victims. The evidence clearly indicates that the accused were armed with deadly weapons and caused fatal injuries to two persons and also caused injuries to several witnesses. Therefore, the learned trial Judge committed an error in acquitting the accused of the offence under Sections 147, 148 and 149 of IP Code. He also submitted that the evidence of PW-2 Mansinhji, PW-3 Karamsinhji, PW-4 Ramesh and PW-5 Chhatraji clearly indicate that the accused attacked the victims with deadly weapons and caused injuries to the victims. There is consistent evidence with regard to the weapons used by the accused and, therefore, the learned trial Judge committed an error in acquitting the accused. He also submitted that FSL report indicates that weapons and clothes of the accused were found blood stained and, therefore, their involvement is clearly established. Therefore, the trial Court committed error in acquitting those accused.
10.2 As regards enhancement appeal, Mr Pandya submitted that looking to the nature of injuries caused to the victims, the trial Court committed an error in not believing that the accused was not responsible for the murder of Modjiji and he was responsible for the murder of Modjiji. Therefore, sentence qua Udaji is required to be enhanced.
11. Learned advocate Mr Dave appearing for the respondents in acquittal and enhancement appeal submitted that there are number of discrepancies in the prosecution evidence with regard to role allegedly played by the accused. He also submitted that there is inconsistent evidence with regard to murder of Modjiji and injuries to the witnesses, therefore, the Court was justified in not accepting the prosecution case with regard to involvement of the accused for murder of Modjiji and injury to the witnesses. He also submitted that it is a settled proposition that when two views are possible, the Court should be reluctant to interfere with the acquittal unless it is found that there is miscarriage of justice by misinterpretation of evidence. He also submitted that as regards enhancement appeal, considering the nature of injuries and medical evidence, the trial Court did not commit error in convicting the accused under Section 324 of IP Code. Therefore, no interference is warranted and appeals for acquittal and enhancement are required to be dismissed.
12. It is not in dispute that accused No.1 Thakore Bakaji @ Pirsinhji Meghaji also lodged an FIR with Harij Police Station for the same incident for the injuries sustained by him against first informant- Chhatraji Modjiji for the offence punishable under Sections 323, 324, 504, 506(2) and 114 of IP Code. On the basis of the first information lodged by the said accused Bakaji, an offence was registered as I-CR No.128 of 2002 by Harij Police Station and investigation was started. At the end of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class and as the offences were triable by the Court of Sessions, it was committed to the Sessions Court, Patan and it was registered as Sessions case No.31 of 2003. It also appears that an offence was also registered against accused Bakaji under the provisions of the Bombay Prohibition Act and as the said offence arose out of the incident in question, it was committed to the Sessions Court and was registered as Sessions Case No.30 of 2003. Sessions Case No.31 of 2003 being cross case of Sessions Case No.29 of 2003 and as Sessions Case No.30 of 2003 was arising out of the same incident, all the three cases were tried by the same Session Judge and disposed of by separate judgments. It is stated that in Sessions Case No.31 of 2003 being cross case, the accused were acquitted for the offence charged against them and no appeal is preferred against the acquittal recorded by the trial Court.
13. It appears from the prosecution case that accused Bakaji @ Pirsinhji Meghaji with dharia in his hand was giving abuses as he was in an inebriated condition while passing near the house of first informant
- Chhatraji Modjiji. Therefore, deceased Modjiji and Prahladji asked accused Bakaji not to use filthy language and took him to his house, at that time accused armed with deadly weapons attacked Modjiji and Prahladji. Therefore, on hearing shouts the family members of the victims tried to intervene and there was commotion and a free fight between the two groups. Modjiji and Prahladji sustained injuries on their head and died on account of the injuries. The family members who tried to intervene in the incident also sustained injuries.
14. The prosecution has examined PW-1 Dr Dashrathbharati Pashabharthi Swami (Exh.40) to prove the post-mortem reports of deceased Modjiji and Prahladji. According to the Doctor, external injuries found on the dead bodies were recorded in the post-mortem reports in column No.17 and head injury on the dead bodies was sufficient in the ordinary course of nature to cause death. The Doctor has issued post-mortem report (Exh.57) for deceased Modjiji and post-mortem report (Exh.59) for deceased Prahladji.
15. The post-mortem report (Exh.57) issued for Modjiji indicates the injuries and cause of death. According to the report, the cause of death was "neurogic and haemorrhagic shock due to injury over vital part head with brain". Similarly, post-mortem report (Exh.59) issued for Prahladji also indicates that the cause of death was "Haemorrhagic with neurogic shock due to injury over head with brain". In view of this evidence, it is clearly established that the deaths were homicidal in nature.
16. The prosecution adduced oral evidence in the form of PW-2 Mansinhji, PW-3 Karamsinhji, PW-4 Ramesh Jetha, PW-5 Chhatraji and PW-6 Maganji to connect the accused with the offence.
17. The prosecution has examined PW-2 Mansinhji Karamsinhji (Exh.71). The witness has deposed that accused No.1 Bakaji with dharia in his hand while passing near their house was in an inebriated condition and was giving abuses, therefore, Modjiji and Prahladji were taking him to his house. At that time, the accused with deadly weapons made assault on them. The witness has also deposed that Modjiji fell down as accused No.3 Meghaji inflicted dharia blow on his head and thereafter accused No.2 Lilaji and accused No.5 Udaji also hit blunt portion of dharia on the head of Modjiji. The witness has also deposed that accused No.5 Udaji also hit him with dharia and also hit stick to his brother Chhatraji Modjiji, who tried to intervene and also hit dharia on his leg. This evidence indicates that three assaults were made on the head of Modjiji with dharia. It also indicates that the first attack was made by accused No.3 Meghaji and thereafter accused No.2 Lilaji and accused No.5 Udaji also made assault with dharia on the victim's head. It appears from the post-mortem report (Exh.57) that deceased Modjiji had only one injury on his head. Therefore, evidence of this witness that assault with dharia was made by three accused seems to be not truthful. The evidence also indicates that the witness has not implicated accused No.4 Natwarji Ravtaji in the assault on Modjiji. The witness has also not deposed with regard to role played by the accused in causing fatal injury to deceased Prahladji.
18. The prosecution has also examined PW-3 Karamsinhji Bhuptaji (Exh.72). The witness has deposed that accused No.2 Lilaji hit blunt portion of dharia on the head of Modjiji and accused No.5 Udaji also hit blunt portion of dharia on the head of Modjiji. The witness has also deposed that accused No.2 Lilaji hit dharia on his head. The evidence of this witness with regard to injury of Modjiji is contrary to the evidence given by PW-2 Mansinhji.
19. The prosecution has also examined PW-4 Rameshji Jitaji (Exh.73). The witness has deposed that accused No.3 Meghaji hit blunt portion of dharia on the head of Modjiji and accused No.2 Lilaji also hit blunt portion of dharia on the head of Modjiji. The witness has also deposed that accused No.4 Nataji hit dharia on the forehead of Prahladji. This evidence indicates that accused No.3 Meghaji and accused No.2 Lilaji were responsible for one head injury found on Modjiji and accused No.4 Natwarji was responsible for the head injury to Prahladji.
20. The prosecution has also examined PW-5 Chhatraji Modjiji (Exh.74). The witness has deposed that accused No.3 Meghaji first hit with blunt portion of dharia on the head of Modjiji and thereafter accused No.2 Lilaji also hit dharia on his head. Thereafter accused No.5 Udaji hit dharia to Modjiji. The witness has also deposed that he lodged FIR (Exh.75) in respect of the incident.
21. In view of the above evidence, it clearly emerges that there is contradictory version about the head injury caused to deceased Modjiji and the role allegedly played by each of the accused. The medical evidence in the form of post-mortem report indicates that there was only one head injury on the head of Modjiji, but the oral evidence alleges that more than one accused inflicted head injury to deceased Modjiji. In view of this, the prosecution case with regard to involvement of the accused for murder of Modjiji cannot be believed. Similarly, there is inconsistent evidence with regard to the injuries caused to the witnesses. It cannot be disputed that there was free fight between the two groups and members of both the groups sustained injuries but the evidence with regard to accused responsible for the injuries is inconsistent and shaky. It is difficult to ascertain as to which accused caused injury to a particular injured. Therefore, the prosecution case with regard to the role played by the accused for causing injury to the witnesses does not inspire confidence and, therefore, cannot be believed.
22. In view of this inconsistent evidence, in our view, the trial Court was justified in recording acquittal of the accused for the offences charged against them. We are unable to accept the submissions made by the learned APP to interfere with the order of acquittal passed by the trial Court.
23. As regards murder of Prahladji is concerned, learned advocate Mr Ramnani for the appellant has fairly conceded that he does not dispute the involvement and the presence of appellant-accused No.4 Natwarji in the incident. Therefore, now the question required to be determined is whether the trial Court was justified in recording conviction of the appellant-accused Natwarji for the offence punishable under Section 302 of IP Code.
24. It emerges from the record that accused No.1 Bakaji while passing near the house of the first informant was in an inebriated condition and was giving abuses. He was also holding dharia. Therefore, deceased Modjiji and deceeased Prahladji tried to persuade him and took him to his house and in doing so when they reached near residence of accused No.1 Bakaji, it appears that the neighbours and relatives of accused No.1 Bakaji assembled at the place and made assault on the deceased. There is no evidence produced by the prosecution to indicate that before accused Bakaji and deceased reached at the place of incident, the accused persons had assembled with weapons with an object to make assault on the deceased. It appears that all of a sudden on seeing accused Bakaji with the deceased, people got assembled and there was free fight between the two groups. Therefore, it is difficult to believe that the accused had formed an unlawful assembly with common object to cause death of Modjiji and Prahladji.
25. The medical evidence indicates that deceased Prahladji sustained only one head injury which resulted into his death. Had there been an intention to cause death, more injuries would have been inflicted to the victim. It is not in dispute that appellant-accused Natwarji was the author of the head injury caused to Prahladji. It also appears that the injury was caused in the course of free fight between the two groups. The evidence also indicates that accused No.1 Bakaji also sustained injuries in the same incident and had lodged an FIR for injuries caused to him. It is also not in dispute that first informant Chhatraji and others were also prosecuted in respect of the same incident. The evidence in the form of medical certificate of accused No.4 Natwarji produced at Exh.127 also indicates that he had sustained injuries and first informant Chhatraji Modjiji was alleged to be responsible for such injury. It also indicates that the injury was caused on forearm. As observed earlier, the evidence indicates that there was free fight between the two groups and members of both the groups sustained injuries. It is pertinent that deceased Prahladji sustained only one injury. The assailant could have caused more injuries if his intention was to eliminate Prahladji. It appears that the incident occurred in a sudden quarrel. The evidence indicates that there was no premeditation and there was sudden fight and in heat of passion the incident ensued. Considering the nature of injury caused to Prahladji, in our view, appellant-accused Natwarji did not take undue advantage or acted in a cruel manner. It is difficult to believe that the appellant-accused Natwarji caused injury to the deceased with an intention to cause his death. The manner in which the incident occurred and death was caused, in our view, the learned trial Judge committed an error in convicting appellant-accused Natwarji for the offence of murder of Prahladji. The nature of injury sustained by the victim indicates that there was no intention on the part of the appellant-accused to cause fatal injury to the victim. Therefore, in our view, the conviction of appellant-accused Natwarji for the offence punishable under Section 302 of IP Code is required to be altered to one punishable under Section 304, Part-II of IP Code.
26. As regards sentence, learned advocate for the appellant has submitted that the appellant-accused Natwarji is in jail since 22.12.2002 and he has family liabilities and, therefore, sympathetic view is required to be taken.
27. The learned APP has vehemently opposed and has submitted that maximum punishment prescribed for the offence under Section 304 Part-II is required to be imposed on the appellant-accused Natwarji.
28. Having regard to rival submissions, in our view, there was no intention on the part of appellant-accused Natwarji to cause death of Prahladji but considering the weapon used in the offence and the nature of injury, in our view, the appellant-accused Natwarji had a knowledge that such injury was likely to cause death. Therefore, his conviction is required to be altered to Section 304 Part-II of IP Code from Section 302 of IP Code. As regards sentence, looking to his age and family background, sentence of 9 years with no change in fine would be adequate sentence.
28. In view of the above, Criminal Appeal No.2520 of 2005 is partly allowed. The conviction of appellant-Thakore Natwarji Ravtaji is altered from one punishable under Section 302 of IP Code to one punishable under Section 304 Part-II of IP Code. He is sentenced to undergo RI for 9 (nine) years with no change in fine. The appellant would also be entitled for the benefit of set off.
29. As regards Criminal Appeal Nos.694 of 2005 and 1327 of 2005, there is no convincing and reliable evidence to connect the accused with murder of Modjiji and injuries to the witnesses. It is true that medical evidence indicates that death of Modjiji was homicidal and the witnesses also sustained injuries in the incident. But there are contradictory versions about the accused responsible for the injuries. The evidence in that regard is inconsistent. Similarly, looking to the weapon used by accused No.5 Udaji and the nature of injuries caused by him and in absence of evidence connecting him with the offence of murder of Modjiji and Prahladji, in our view, no error is committed by the trial Court in recording conviction of accused No.5 Udaji for offence under Section 324 and acquitting other accused. Hence, we do not find any infirmity in the impugned judgment. Therefore, both the appeals fail and stand dismissed.
(A.L. DAVE, J.) (BANKIM N. MEHTA, J.) zgs/-
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