Gujarat High Court
Khumlabhai Kesarbhai Dhalakia vs State Of Gujarat on 8 May, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 801 of 2015
With
R/CRIMINAL APPEAL NO. 799 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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Approved for Reporting Yes No
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KHUMLABHAI KESARBHAI DHALAKIA & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR. RAHUL R DHOLAKIA, ADVOCATE for the Appellants
MS CM SHAH, ADDITIONAL PUBLIC PROSECUTOR for the Respondent -
State
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the common judgment and order of conviction dated 29.05.2015 passed by the learned 3 rd Additional Sessions Judge, Dahod in Sessions Page 1 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined Case No.183 of 2011 and Sessions Case No.60 of 2012 for the offences under Sections 302 and 114 of Indian Penal Code, 1860, the appellants have preferred these appeals as provided under Section 374 of the Code of Criminal Procedure, 1973 ("the Code" for short).
2. The case of the prosecution is that, on 04.07.2011 at about 7:30 p.m., when the deceased - Navlabhai Keshrabhai Dhanakia was standing in the front yard his house ('Faliyu'), at that time, his elder brother, who is residing adjoining to him, suddenly rushed there and hurled filthy language and has given one axe blow on the head of the deceased, as the deceased has allegedly used the wooden logs of his share and made a house, which was fired before some time; and that soon after one blow given by the elder brother to the deceased, the wife and daughter of the said elder brother also rushed there and have also hurled filthy language and dragged the deceased to the back yard of their house; and that when the wife and daughter of the deceased tried to intervene, the elder brother of the deceased - original accused No.1 has slapped the daughter of the deceased and has thrown the stones towards the wife of the deceased, whereby she got injured, but even though they i.e. wife and daughter of the deceased tried to intervene; and that when the deceased tried to escape from the place of Page 2 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined incident, original accused Nos.2 and 2 have caught him and the elder brother of the deceased i.e. original accused No.1 has given more axe blows on the head of the deceased and therefore, the deceased has succumbed to the injuries on the spot. Thereafter, the complainant - wife of the deceased lodged the complaint with regard to the incident before the Limkheda Police Station, which was registered as C.R.-I No.130 of 2011 for the offences under Sections 302, 337, 504 and 114 of Indian Penal Code, 1860.
3. In pursuance of the complaint lodged by the complainant, investigating agency recorded statements of the witnesses, collected relevant evidence and drawn various Panchnamas and other relevant evidence for the purpose of proving the offence. After having found material against appellants - accused, charge-sheet came to be filed against accused No.1 and supplementary charge-sheet against accused Nos.2 and 3 as they were absconding, in the Court of learned Judicial Magistrate, First Class, Limkheda. As said Court lacks jurisdiction to try the offence, it committed the case to the Sessions Judge, Dahod as provided under section 209 of the Code. Since accused persons were arrested separately, two cases were filed i.e. one for accused No.1 and another for accused Nos.2 and 3.
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4. Upon committal of the cases to the Sessions Court, Dahod, learned Sessions Judge framed charge against the Appellants - accused for the aforesaid offences. The appellants
- accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has examined 15 witnesses and also produced various documentary evidence before the learned trial Court, more particularly described in para 12 of the impugned judgment and order.
6. On conclusion of evidence on the part of the prosecution, the trial Court put various incriminating circumstances appearing in the evidence to the appellants - accused so as to obtain their explanation/answer as provided u/s 313 of the Code. In the further statement, the appellants
- accused denied all incriminating circumstances appearing against them as false and further stated that they are innocent and false case has been filed against them. After hearing both the sides and after analysis of evidence adduced by the prosecution, the learned trial Judge convicted the appellants - accused of the offences, for which they were tried, as the prosecution succeeded to prove the case. Hence, these appeals.
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7. Learned advocate Mr.Rahul Dholakiya for the appellants - accused has submitted that the prosecution evidence on record suffers from the numerous infirmities; and that from the perusal of the depositions of three alleged eye-witnesses, there are material contradictions about the way in which the alleged incident had taken place; and that from the perusal of the deposition of PW-6, who is the daughter of the first informant, where the said witness categorically admits in her cross- examination that no incident whatsoever had taken place in the front yard of their own house and no injuries whatsoever were inflicted by the original accused No.1 to the deceased in the front yard of their house, which version is completely contrary to the deposition of the first informant; and that the learned trial Court has put much reliance upon the Panchnama below Exh.12 by way of which the weapon used in the commission of the offence was recovered at the instance of original accused No.1, however, from the perusal of the deposition of PW-2, the recovery of the alleged weapon is completely eroded; and that the prosecution has not examined any independent witnesses to the alleged incident even though it is on record that two neighbours viz., Reshmaben and Santokben are also witness the said incident; and that the first informant has not come with clean hands and suppressed material facts from the investigating agency; and that the investigating agency is also biased and all the panchas are either relatives and/ or acquaintances of the family of the deceased; and that one of the appellant viz., Khumlabhai Keshrabhai Dhanakia has already undergone imprisonment of about 13 years, whereas other two Page 5 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined accused, being lady accused, have been enlarged on bail.
8. Learned APP Ms. Shah for the State has vehemently opposed these appeals. She has supported the impugned judgment and order of conviction passed by the trial Court and contended that, the learned trial Court has rightly relied on the evidence - documentary as well as oral and therefore, considering the gravity of offence and its impact on the society, no case is made out to quash the impugned judgment by the trial Court. She has further submitted that it is a premeditated act by the appellants; and that the weapon used by the appellants is sharp and deadly; and that they have previous animosity with the deceased; and that there is no provocation on the part of the deceased; and that the learned trial Court has rightly convicted the appellants for the offence punishable under Section 302 of the IPC for offence of culpable homicide amounting to murder; and that the depositions of witnesses are well corroborated with other evidence, which is enough to prove the offence; and that the axe blow given by appellant No.1 on the vital part of the body of the deceased i.e. on head and the other two lady accused who have dragged the deceased to backyard of their house, which is sufficient to believe that all the appellants have motive to kill the deceased, as all the accused have played equal role in commission of offence and therefore, the Page 6 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined learned trial Court has rightly convicted all the accused for the offences punishable under Section 302 and 114 of the IPC. In support of her submissions, she has relied upon the decision of the Hon'ble Apex Court in the case of Som Raj @ Soma Versus State of Himachal Pradesh reported in (2013) 14 SCC 246. Thus, it is urged that looking to the seriousness of the offence, the present appeals may be dismissed.
9.1 We have considered the rival submissions made by the learned advocates for the respective parties. We have gone through the impugned judgment and order passed by the learned trial Court. We have perused the record and proceedings of the trial.
9.2 Criminal Appeal No.801 of 2015 is filed by original accused No.1 viz., Khumlabhai Dhanakia. Whereas Criminal Appeal No.799 of 2015 is filed by original accused Nos.2 and 3 viz., Ramilaben, W/o. Khumlabhai and Rekhaben, D/o. Khumlabhai.
9.3 As per record of the case, it transpires that, when the deceased was standing at the portion of front yard of his house, original accused No.1 came with axe suddenly, hurled filthy language and gave axe blow on the head of the Page 7 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined deceased. Thereafter, original accused Nos.2 and 3 - lady accused came immediately at the scene of offence and dragged the deceased to the back yard of their house. The incident has happened at the front yard of the house of the deceased. At that time, the first informant - wife of the deceased, daughter and daughter-in-law of the deceased were there. The accused persons are residing adjacent to the house of the deceased and they are close relatives i.e. elder brother, wife of elder brother and daughter of elder brother. When accused Nos.2 and 3 were dragging the deceased to the back yard of their house, the wife and daughter of the deceased tried to intervene, accused No.1 slapped the wife of the deceased and pelted stone towards them, whereby the first informant got injured. Thereafter, accused No.1 rushed towards the deceased. When deceased tried to escape from there, accused No.1 immediately gave axe blows on the head of the deceased. Resultantly, the deceased succumbed to the injuries.
9.4 Accused No.1 is an elder brother of the deceased. Accused Nos.2 and 3 are the wife and daughter of accused No.1, respectively. Thus, the deceased and the accused persons are close relatives. They are residing adjacent to each other.
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NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined 9.5 There was a previous grudge between two brothers. The farm is in their joint names. They had plantation of eucalyptus trees in the said farm. There was an untoward incident of getting fire the house of the deceased before some time. The allegation of accused No.1 - elder brother upon the deceased was that the deceased has used the trunk of the said eucalyptus trees for repairing his house without taking permission of accused No.1 being an elder brother, as there was a share of him in the said plantation being a joint owner of the farm.
9.6 Keeping the said grudge in mind, accused persons have quarreled with the deceased. On the date of incident, as noted above, the accused persons have come to the house of the deceased, hurled filthy language, accused No.1 gave axe blow on the head of the deceased, accused Nos.2 and 3 dragged the deceased towards the back yard of their house, accused No.1 pelted stone towards wife of the deceased when she tried to intervene, accused No.1 slapped the daughter of the deceased when she tried to intervene and when accused Nos.2 and 3 caught the deceased and accused No.1 gave axe blows on the head of the deceased again and therefore, the deceased succumbed to the injuries on the spot. 10.1 The chain of events of entire episode is that, Page 9 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined accused No.1 went to the house of the deceased with axe, quarreled with the deceased regarding use of eucalyptus trees for his house, hurled filthy language, gave axe blow immediately on the vital part of the body - head intentionally, accused Nos.2 and 3 dragged the deceased towards back yard of their house which is adjacent to the house of the deceased, accused No.1 pelted stone towards wife and daughter of the deceased when they tried to intervene, accused No.1 slapped the wife of the deceased, who is a first informant, accused No.1 gave axe blows on the head of the deceased and ultimately, the deceased succumbed to the injuries on the spot. Thus, looking to the chain of events, the accused persons have premeditated mind, as accused No.1 came with an axe, which proves that the incident is happened with an intention to kill the deceased. Therefore, there is an intention of the accused person to commit an offence under Section 302 of the IPC.
10.2 At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Joy Devaraj versus State of Kerala reported in (2024) 8 SCC 102, more particularly paras : 24 and 25 thereof, which read as under :
"24. Though closely related, culpable homicide and murder cover very different Page 10 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined acts. To decide the issue, we can profitably take the aid of the decision of this Court in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh, (2006) 11 SCC 444 wherein certain factors have been listed to glean if the aggressor had an intention to cause death :
"29 It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of Page 11 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."Page 12 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025
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25. Applying the rubric provided in Pulicherla Nagaraju (supra) to the present case, we find that the weapon used for the premeditated attack was a dagger, which is considered a deadly weapon. The weapon was carried by the appellant to the scene of the incident and not picked up from the spot. The victim was stabbed in his chest, which houses multiple vital organs of the body. There was no provocation from the side of the victim. The appellant and other co- accused had reached the place of occurrence with the premeditated intention to cause hurt to the victim, which can be seen from the fact that they formed an unlawful assembly armed with deadly weapons with the common intention to attack the victim and thereby put an end to the movement triggered by him to stop trade in illicit liquor."
11.1 Now, looking to the deposition of two eye-witnesses i.e. PW-5 and PW-6, who clearly support the case of the prosecution. The other material like Doctor's deposition (PW10) and serological report received from the FSL (Exh.53) as well as weapon used in commission of offence, which is recovered at the instance of the accused, also corroborates the Page 13 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined evidence of the star witnesses.
11.2 At this stage, it would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Kunhimuhammed alias Kunheethu versus State of Kerala reported in 2024 SCC OnLine SC 3618, more particularly paras : 25.4 to 25.6 and 25.11 to 25.14 thereof, which read as under :
"25.4 This Court held in Virsa Singh vs. State of Pepsu, that to see whether the injury intended and thus caused by the accused was sufficient in the ordinary course of nature to cause death or not, it must be examined in each case on the basis of the facts and circumstances. In that case, the injury was caused with a knife blow to the stomach and it was inflicted with such force that the knife penetrated the abdomen of the deceased and caused injuries to the bowel. The expert opinion of the doctor therein stated on record that such an injury was sufficient in the ordinary course of nature to cause death. Further, in the absence of any evidence Page 14 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined or circumstances to prove that the injury was accidental or unintentional, it was presumed that the accused had intended to cause such injury thus making it fall under clause 3 of Section, 300 IPC.
25.5 It has been held by this Court in several cases such as Manubhai Atabhai vs. State of Gujarat, and Arun Nivalaji More vs. State of Maharashtra, that when the ocular evidence of eye witnesses are reliable and well corroborated by medical, and other evidence also inspires the confidence that the accused had the intention to cause such fatal injuries, then such evidence is enough to prove the charge of murder beyond reasonable doubt. This intention is to be gathered from a number of circumstances and evidence like the place of injury the nature of the weapon, the force applied while inflicting the injury, and other such considerations. Whether the accused had any intention to kill the deceased has to be judged upon taking Page 15 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined into consideration the facts of each case.
25.6 This position has been elaborated by this Court in the case of Nishan Singh vs. State of Punjab, where the accused person had snatched the weapon carried by someone else and brutally inflicted injuries on the deceased. The Court stated that in such a case it cannot be said that he did not have the intention to cause death.
25.11 The third clause of section 300 speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. This Court in the above-mentioned judgment held that to bring the case under this part of the section the prosecution must establish objectively:
1. That a bodily injury is present;
2. That the nature of injury must be proved;
3. It must be proved that there Page 16 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined was an intention to inflict that particular bodily injury;
4. That the injury inflicted is sufficient to cause death in the ordinary course of the nature.
25.12 The Court further held that:
"13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S.300, "Thirdly.
It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely Page 17 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."
25.13 This position has further been Page 18 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined upheld by this Court recently in the case of Vinod Kumar vs. Amritpal, wherein the bench observed that :
"24. Once the prosecution establishes the existence of the three ingredients forming a part of "thirdly" in Section 300, it is irrelevant whether there was an intention on the part of the accused to cause death. Further, it does not matter that there was no intention even to cause the injury of a kind that is sufficient to cause death in ordinary course of nature.
Even the knowledge that an act of that kind is likely to cause death is not necessary to attract "thirdly"."
25.14 This Court in the case of Balkar Singh vs. State of Uttarakhand8, while following the judgment in Virsa Page 19 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined Singh (Supra) further elaborated the position of law and laid down that culpable homicide is murder if two conditions are fulfilled: a. the act which caused death is done with the intention of causing death or is done with the intention of causing a bodily injury; and b. the injury intended to be inflicted in sufficient in the ordinary course of nature to cause death."
12.1 With regard to the contention raised by the learned advocate for the appellants that there is contrary version of some of the witnesses against the version of the first informant is concerned, this Court, after considering the entire evidence, finds that minor and immaterial inconsistencies and/or discrepancies in the evidence are not such in a nature which can cause any damage to the case of the prosecution. In fact, the depositions of the witnesses are found trustworthy and inspires confidence. 12.2 At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Firoz Khan Akbarkhan versus State of Maharashtra reported in 2025 SCC OnLine SC 627, more particularly para : 20 thereof, Page 20 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined which reads as under :
"20. To our mind, the prosecution has succeeded in proving its case beyond reasonable doubt. Having carefully gone through the material on record, especially the depositions of the witnesses and upon a keen examination of the relevant aspects of the case, we find that the presence of the appellant at the site of the incident and him having stabbed the deceased on the stomach repeatedly has been the consistent stand of the PWs who were eye-witnesses. The Courts below have also concurrently found the same. The accused-appellant has not been able to controvert the evidence on record. Minor and immaterial inconsistencies and/or discrepancies shall not harm the case of the prosecution, as held, inter alia, in State of Himachal Pradesh v Lekh Raj, (2000) 1 SCC 247; Narayan Chetanram Chaudhary v State of Maharashtra, (2000) 8 SCC 457; State of Madhya Pradesh v Ramesh, (2011) 4 SCC 786; Mekala Sivaiah v State of Andhra Pradesh, (2022) 8 SCC 253, and; Rameshji Amarsingh Thakor v State of Gujarat, 2023 SCC OnLine SC 1321. The following Page 21 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined observations from Lekh Raj (supra) are instructive :
'7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version.
Discrepancy has to be
distinguished from contradiction.
Whereas contradiction in the
statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to Page 22 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala [(1974) 3 SCC 767 : 1974 SCC (Cri) 243] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. [1981 Supp SCC 40 : 1981 SCC (Cri) 676] this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan Page 23 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined v. Kalki [(1981) 2 SCC 752 : 1981 SCC (Cri) 593] held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.
8. Referring to and relying upon the earlier judgments of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505 :
1985 SCC (Cri) 105 : AIR 1985 SC 48] , Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 :
1959 Supp (2) SCR 875] ,
Appabhai v. State of Gujarat
[1988 Supp SCC 241 : 1988 SCC
(Cri) 559 : JT (1988) 1 SC 249]
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undefined
and Rammi v. State of M.P.
[(1999) 8 SCC 649 : JT (1999) 7
SC 247], this Court in a recent
case Leela Ram v. State of
Haryana [(1999) 9 SCC 525 : JT
(1999) 8 SC 274] held:
"There are bound to be
some discrepancies between
the narrations of different
witnesses when they speak
on details, and unless the
contradictions are of a
material dimension, the
same should not be used to
jettison the evidence in its
entirety. Incidentally,
corroboration of evidence
with mathematical niceties
cannot be expected in
criminal cases. Minor
embellishment, there may
be, but variations by reason
therefor should not render
the evidence of eyewitnesses
unbelievable. Trivial
discrepancies ought not to
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undefined
obliterate an otherwise
acceptable evidence....
The court shall have to bear in
mind that different witnesses react differently under different situations:
whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise."' (emphasis supplied)"
13. At this stage, it would be fruitful to refer to the deposition of Dr.Satishkumar - PW10 (Exh.45), wherein he has categorically deposed that there are multiple injuries found on the head and other parts of the body, which proves Page 26 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined that accused No.1 had given several axe blows with accused Nos.2 and 3, who had caught hold deceased and also played active role in dragging the deceased from the front yard to back yard of the house. The said witness has performed postmortem of the deceased. The postmortem report (Exh.47) supports the said version of the doctor. The injuries in column Nos.17 and 23 of the postmortem note are mentioned as under :
"17. To mention the outer wound and injuries on the body and its position, size and its exact direction and how old the said wound and injuries and its reasons :
(1) Brown abrassion on middle of eyes are 3 in number.
(1) 9 c.m. x 0.5 c.m. x Skin (2) 5 c.m. x 0.5 c.m. x Skin (1) 5 c.m. x 0.5 c.m. x Skin (3) Brown absrassion mid.rt.scapular region 5 cm x 1 cm x Skin (4) Brown abrassion over back & neck 9 cm x 1 cm x Skin (5) Sharp cutting over middle occipital bone longitudenally (6) conlused lacerated wound over Page 27 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined accipital bone are L shaped 7 cm x 1 cm x deep bone (7) sharp cutting over rt. Side over occipital bone 15 cm x 10 cm x deep bone (8) Lounge haematoma over occipital bone 15 cm x cm x deep bone (9) C.L. wover Rt. Hemporal region 5 cm x 3 cm x deep bone xxx
23. Cause of death / probable cause of death and opinion : In my opinion, the cause of death is intracerebal haemorrhage erael shook leading to cardio respiratory arrest."
14.1 Further, looking to the deposition of PW-9 - Sugraben, whereby she has deposed that after the incident, accused Nos.2 and 3 have run away from the place of incident and arrested later on. Therefore, the investigation officer has filed supplementary charge-sheet soon after they were arrested at a later stage. Considering the material available on record by way of deposition of witnesses and other documents, accused Nos.2 and 3 have also played active role in the commission of offence by holding the deceased and thereafter dragging the deceased to the backyard where Page 28 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined accused No.1 has given axe blows on the vital part of the body of the deceased.
14.2 Further, we have not seen any version from the entire evidence - documentary as well as oral that how the deceased travelled from the front yard of his house to back yard of the house of the accused. It has not come on record that the deceased himself went towards back yard of the house. It has also not come on record that accused No.1 dragged the deceased towards back yard of the house. No one has stated about it except the version of eye-witnesses, where they have clearly stated that accused No.2 and accused No.3 dragged the deceased towards back yard of their house. Therefore, accused Nos.2 and 3 have played equal role in the commission of offence, which the learned trial Court has rightly evaluated.
15. Under the circumstances, the learned trial Judge has rightly convicted the appellants - accused for the elaborate reasons stated in the impugned judgment and we also endorse the view/finding of the learned trial Judge leading to the conviction.
16. We have minutely scrutinised the entire evidence available on record. Except relying upon aforesaid evidence, Page 29 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined no any other direct evidence either oral or documentary is pressed into service to interfere with the findings of the learned trial Court leading to conviction of the appellants - accused. When substantial evidence is connecting the accused with the crime, there is no need for any consideration to upset the findings of the learned trial Court and therefore, there is no need to overburden the judgment anymore.
17. In view of above and on our own analysis and re- appreciation of the evidence, we do not find any infirmity or compelling reasons to interfere with the order of conviction recorded by the trial Court. We have also perused the judgment and findings given by the trial Court and find that the same are in accordance with law. Therefore, the impugned judgment and order passed by the learned trial Court is just, proper and legal. These appeals, therefore, deserve to be dismissed.
18. It is noted that the appellant of Criminal Appeal No.801 of 2015 is in judicial custody and has already undergone imprisonment for about 13 years out of life imprisonment. The appellants of Criminal Appeal No.799 of 2015 have been released on regular bail by this Court, more particularly on the ground of age and marital status. Accused No.2 has been enlarged on regular bail by this Court on the ground that she is aged about 57 years at that time. Accused No.3 has been enlarged on regular bail by this Page 30 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025 NEUTRAL CITATION R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025 undefined Court mainly on the ground that she was aged about 18 years at the relevant time and thereafter, she got married and having one girl child. While granting bail, no merit has been discussed at all.
19. In view of the above discussion, these appeals are accordingly dismissed. Bail bonds of appellants of Criminal Appeal No.799 of 2015 stand cancelled and they are ordered to be taken into judicial custody.
20. Record and proceedings be sent back to the trial Court, forthwith.
Sd/-
(ILESH J. VORA,J) Sd/-
(SANDEEP N. BHATT,J) After the judgment is pronounced, learned advocate for the appellants prayed for stay of this judgment for some time, as the appellants of Criminal Appeal No.799 of 2015 have been enlarged on regular bail during pendency of the appeal. Considering the same, the operation of this judgment qua Criminal Appeal no.799 of 2015 only is stayed for a period of four weeks from today.
Sd/-
(ILESH J. VORA,J) Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 31 of 31 Uploaded by M.H. DAVE(HC00193) on Thu May 08 2025 Downloaded on : Fri May 09 06:17:35 IST 2025