CR.A/80120/2001 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 801 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD 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. ========================================================= BALVANTJI MANAJI THAKOR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR NK MAJMUDAR for Appellant MS MITA PANCHAL for Respondent – State. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 27/11/2008 ORAL JUDGMENT CR.A/80120/2001 2/7 JUDGMENT (Per : HONOURABLE MR.JUSTICE BANKIM.N.MEHTA) 1. The appellant – convict has filed the present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence dated 17-8-2001 passed by Addl. Sessions Judge, Banaskantha at Palanpur in Sessions Case No.163 of 2000; sentencing him to undergo imprisonment for life and to pay fine of Rs.2000/-, in default thereof, to undergo simple imprisonment for six months for the offence punishable u/s 302 of the I.P. Code, further to undergo rigorous imprisonment for two years and to pay fine of Rs.1000/-, in default thereof, to undergo simple imprisonment for three months for the offence punishable u/s 201 of the I.P. Code; to undergo simple imprisonment for six months and to pay fine of Rs.500/-, in default thereof, to undergo simple imprisonment for one month for the offence punishable u/s 135 of the Bombay Police Act. No separate sentence is imposed for the offence punishable u/s 27(1) of the Arms Act. 2. In brief the prosecution case was that the accused was married to Tara, the daughter of deceased Chamanaji Thakor and complainant Shobhaji was the brother of Tara. Before about a month of the incident complainant Shobhaji Chamnaji Thakor took his sister Tara to his house. On the previous day of the incident, the accused came to the house of his brother-in-law Shobhaji Chamnaji Thakor and after CR.A/80120/2001 3/7 JUDGMENT dinner at about 10-00 p.m. asked his father-in-law Chamnaji Thakor to send his wife Tara with him but as it was late night Chamnaji Thakor asked the accused to stay back till morning and said that he would send his daughter early in the morning. Therefore all of them went to sleep. On the next day in the morning at about 7-00 a.m. it was found that the accused had left for the village. Therefore, Shobhaji Chamnaji Thakor and his father Chamnaji Thakor went to the field of the accused at his village and saw that the accused was standing with 'dhariya' near his house. On seeing them the accused told them to go away saying that he did not want to see his (deceased's) face and also did not want his (deceased's) daughter and got enraged and hit 'dhariya' on the neck of Chamnaji Thakor. On account of assault Chamnaji Thakor fell down and died and Shobhaji ran way. 3. On the basis of the complaint lodged by Shobhaji Chamnaji Thakor, investigation was started. At the end of investigation charge sheet was filed against the accused for the offence punishable u/ss 302-201 of the I.P. Code, 135 of the Bombay Police Act and u/s 27(1) of the Arms Act. As the case was triable by Sessions Court, the case was committed to Sessions Court, Banaskantha at Palanpur and it was registered as Sessions Case No. 163 of 2000. Learned trial Judge framed charge Exh. 5 against accused for the aforesaid offences. The accused pleaded not guilty to the charge and claimed to be tried and therefore the CR.A/80120/2001 4/7 JUDGMENT prosecution adduced evidence. 4. On completion of recording of evidence, the learned trial Judge explained to the accused the incriminating circumstances appearing against him in the evidence. The accused in his further statement recorded u/s 313 of the Criminal Procedure Code, 1973 denied having committed the offence and stated that his wife was residing at her matrimonial house and wanted to take divorce. Therefore, false case is foisted upon him. 5. The learned trial Judge after appreciating the evidence led by the prosecution and relying on the evidence found the charge against accused as proved and convicted him and imposed the sentences as stated hereinabove. Being aggrieved by the said decision, the appellant – convicted has preferred this appeal. 6. We have heard Mr. N.K. Majmudar learned advocate for the appellant and Ms. Mita Panchal, learned Addl. Public Prosecution for the respondent - State at length and in great detail. We have perused the record and proceedings of the trial court and impugned judgment. 7. Learned advocate Mr. Majmudar for the appellant submitted that there was only one blow and therefore there was no intention on the part of the appellant to commit murder and hence the learned trial Judge CR.A/80120/2001 5/7 JUDGMENT committed error in convicting the appellant for the offence of murder. At the most, the appellant could be convicted for the offence of culpable homicide not amounting to murder. Therefore the impugned judgment is required to be set aside. 8. Learned A.P.P. Ms. Panchal submitted that there was no grave and sudden provocation and the injuries were inflicted with pre-determined mind and and therefore the learned trial Judge was justified in convicting the appellant and no interference is called for in the impugned judgment 9 It appears from the prosecution case that except the evidence of eye witness Shobhaji, there was no other eye witness to the incident. According to P.W. @ Shobhaji Chamnaji Thakor Exh. 9, the accused came to their house to take his wife Tara but as it was late night, Chamnaji Thakor told the accused that he would send Tara on the next morning. Therefore, the accused went to sleep, but in the morning he was not found in the cot. Hence, the witness and his father Chamnaji Thakor went to the house of the accused in his search. At that time the accused was standing there and he hit 'dhariya' on the neck of his father Chamnaji. The witness has been extensively cross-examined. However, the defence has not been able to elicit that witness is not reliable. The learned advocate for the appellant has not been able to point out any discrepancy in the deposition of this witness. First Information Report CR.A/80120/2001 6/7 JUDGMENT Exh. 43 filed by the witness indicates that the accused hit the 'dhariya' on the neck. Therefore, the prosecution evidence with regard to assault is consistent and convincing. There is nothing to indicate that there was quarrel and on account of such quarrel, the accused got enraged and in a spur of moment inflicted fatal injury to the deceased. On the contrary, the evidence indicates that the accused was armed with the weapon assaulted the deceased without any provocation. Therefore, the case would not cover under Clause Thirdly of Section 300 of the I.P. Code. Hence, the learned trial Judge was justified in the convicting the appellant – accused for the offence of murder. 10. The medical evidence of P.W. 3 Dr. Jayvardhan Jayvadan Amrutlal Patel Exh. 11 indicates that the deceased had fatal injury on his vital parts of body and the cause of death was shock due to cut throat injury. It also indicates that the injury was possible by muddamal 'dhariya' 11. Postmortem Report Exh.13 also indicates the injury and cause of death. Therefore, death was homicidal in nature. 12. Learned advocate for the appellant failed to substantiate his submission that there was no intention to kill. Therefore, the learned trial Judge was justified in convicting the appellant for the offence of murder. Hence, no interference is warranted in the impugned judgment and the appeal CR.A/80120/2001 7/7 JUDGMENT does not merit acceptance. 13. For the foregoing reasons, present Criminal Appeal fails and is dismissed. The judgment and order of conviction and sentence rendered by the learned Addl. Sessions Judge, Banaskantha at Palanpur on 17-8-2001 in Sessions Case No. 163 of 2000 for the offence punishable u/s 302-201 of the I.P. Code, u/s 135 of the Bombay Police Act and u/s 27(1) of the Arms Act, is confirmed. The muddamal be disposed of as directed by the trial court. (Bhagwati Prasad, J.) (Bankim N. Mehta, J.) /JVSatwara/