Rango Alias Ashok Fatehsinh Thakore vs State of Gujarat

J.C. Upadhyaya, J.—The three appellants came to be convicted by learned Addl.Sessions Judge, 5th Fast Track Court, Ahmedabad (Rural) by judgment and order dated 5.3.2003 rendered in Sessions Case No. 101 of 1998 for the offence punishable u/s 302 read with Section 34 of the IPC, and each of them were sentenced to undergo imprisonment for life and fine of Rs. 5000/-, and in default of payment of fine, imprisonment for one month. During the pendency of this appeal, the appellant No. 1 Rango alias Ashok Fatesinh Thakore and appellant No. 2 Dashrath Fatesinh Thakore died, and, therefore, the criminal appeal stands abated qua the appellants No. 1 and 2, and the criminal appeal, therefore, survives qua the appellant No. 3 Chaturbhai Bhikhabhai Thakore.

The prosecution case in short is that the incident occurred at about 7.30 a.m. on dated 20.12.1997 in the area called Shankermukhini Chali at Viramgam. The three appellants as well as one Bhikhabhai Talshibhai were residing in the neighbourhood of the house of deceased Bachubhai Ganeshbhai, who were not in good terms, and on petty matters like pouring dirty water in the street, quarrel used to take place between them. It is alleged that keeping such grudge in mind, the three appellants along with co-accused Bhikhabhai Talshibhai assaulted deceased Bachubhai Ganeshbhai. The appellant No. 1 - Ashok Fatesinh inflicted blows with iron pipe on the right leg of the deceased, appellant No. 2 Dashrath Fatesinh inflicted a gupti blow on both the legs of the deceased, the appellant No. 3 Chaturbhai Bhikhabhai inflicted a blow with dhariya on the head of deceased Bachubhai and co-accused Bhikhabhai Talshibhai inflicted stick blow on the forehead of the deceased. Sister of the deceased, named, Chandaben Ganeshbhai lodged FIR in Viramgam town police station against the three accused as well as co-accused Bhikhabhai Talshibhai regarding the incident.

2.1 During the course of police investigation, statements of material witnesses were recorded, weapons came to be seized. After collecting required material, chargesheet came to be filed in the Court of learned JMFC, Viramgam against four accused persons, namely, the three appellants and co-accused Bhikhabhai Talshibhai. As the offence was exclusively triable by the Court of Sessions, the ld.JMFC, Viramgam committed the case to the Court of Sessions, Ahmedabad (Rural), which came to be registered as Sessions Case No. 101 of 1998.

Before the ld.trial Judge could frame the charge, co-accused Bhikhabhai Talshibhai died. Therefore, the charge, Exh.5, came to be framed against the three appellants for the offence punishable u/s 302 r/w.Section 34 of the IPC, to which they did not plead guilty and claimed to be tried. After the conclusion of the trial, the ld.trial Judge recorded conviction of all the three appellants for the offence punishable u/s 302 r/w.Section 34 of the IPC and awarded the sentence as hereinabove referred to in this judgment. However, during the pendency of this appeal, as stated above, the appellants No. 1 and 2 expired, and, therefore, the appeal stands abated qua the appellants No. 1 and 2 and the appeal survives qua appellant No. 3 Chaturbhai Bhikhabhai.

Learned senior counsel Mr. Shethna for the appellant submitted that the entire case depends upon the evidence of two so-called eye-witnesses, namely, first informant Chandaben Ganeshbhai, sister of deceased Bachubhai and Ranjanben Amarshi, daughter of the deceased. It is submitted that the first informant Chandaben Ganeshbhai, in her evidence, did not support the case of the prosecution and was declared hostile. The evidence of witness Ranjanben Amarshi is full of material contradictions. The trial Court erred in relying upon the evidence of Ranjanben regarding the incident as well as the so-called motive attributed to the appellants by the prosecution for the incident, and the involvement of the accused in the incident. There are material contradictions and improvements in her evidence.

It is submitted on behalf of the appellant that now the appeal only survives qua the appellant No. 3 - Chaturbhai Bhikhabhai and the evidence adduced by the prosecution against him is very shaky and untrustworthy. The very presence of witness Ranjanben at the time of the so-called incident is doubtful. It is therefore submitted that the appellant - Chaturbhai Bhikhabhai deserves acquittal.

Alternatively ld. Sr. Counsel Mr. Shethna submitted that even if the evidence of witness Ranjanben Amarshi is accepted, and considering the medical evidence on record, the only offence which can be said to have been made out is, culpable homicide not amounting to murder, but at any rate not the murder.

Per contra, the learned A.P.P. Mr. Shah for the State vehemently opposing this appeal, submitted that it is true that the first informant turned hostile, but, the evidence of witness Ranjanben is cogent, clear and trustworthy and is supported by medical evidence on record, and, therefore, the trial Court rightly recorded conviction of the appellant No. 3 - Chaturbhai Bhikhabhai for the offence of murder and the appeal deserves dismissal.

We have examined the record and proceedings in context with the submissions made on behalf of the rival sides.

It cannot be disputed that the first informant - Chandaben Ganeshbhai, examined at Exh.27, who happens to be the sister of deceased Bachubhai did not support the case of the prosecution and was declared hostile. However, the entire case rests upon the evidence of eye-witness Ranjanben Amarshi, examined at Exh.30. We have examined her evidence and we find that the trial Court rightly relied upon her evidence, while coming to the conclusion that the prosecution successfully proved the involvement of the appellant - Chaturbhai Bhikhabhai in the incident. Considering her evidence, the deceased was her father and she was residing along with her father, in the same house. She narrated the incident in her evidence and described the incident regarding the role played by each accused person in the incident and the weapons used, while causing fatal injuries to her father - Bachubhai, including the appellant - accused Chaturbhai Bhikhabhai. She categorically deposed that the appellant - accused Chaturbhai Bhikhabhai was carrying axe in his hand and inflicted axe blow on the head of her father. Considering her cross-examination, it is true that there are minor contradictions in her evidence regarding the fact as to who poured dirty water in the street, and the color of the cloth worn by the accused persons, and as to whether at about 7.30 a.m. she had gone to attend the nature''s call or not. But, according to our opinion, the evidence, as a whole, is required to be appreciated. The trial Court in the impugned judgment, rightly discarded the minor contradictions and omissions and appreciating the evidence of witness Ranjanben Amarshi as a whole, rightly recorded the conviction, so far as the surviving appellant - accused Chaturbhai Bhikhabhai is concerned.

10 The evidence of witness Ranjanben Amarshi gets corroborated, if the medical evidence on record is considered. Prosecution examined Dr. Shah at Exh.31, who performed the postmortem and the P.M. report is produced at Exh.32. Six external injuries came to be recorded by the postmortem Doctor, including the injuries on the vital part of the body, like head. The cause of death was the head injury and damage to the brain. Considering the medical evidence on record, we do not find that the offence of murder cannot be said to have been constituted. We do not find any justification to come to the conclusion that the medical evidence establishes the offence of culpable homicide not amounting to murder, punishable u/s 304 Part-I of the IPC. Appreciating the overall evidence on record, we do not find that the case falls within any of the exceptions attached to Section 300 of the IPC.

10.1 In the result, the criminal appeal qua the surviving appellant No. 3 - Chaturbhai Bhikhabhai Thakore deserves dismissal.

For the foregoing reasons, the criminal appeal qua the surviving appellant No. 3 - Chaturbhai Bhikhabhai Thakore stands dismissed. The criminal appeal qua the appellants No. 1 and 2 stands abated.