Mahadevji Rayaji Thakor vs The State of Gujarat

Bankim N. Mehta, J.—Appellants have preferred these appeals u/s 374 of the Code of Criminal Procedure, 1973 and challenged the judgment and order of conviction and sentence rendered by learned Additional Sessions Judge, 3rd Fast Track Court, Banaskantha at Palanpur on 17.12.2003 in Sessions Case No. 176 of 2000 convicting them for offences punishable u/s 302 read with Section 147, 148 and 149 of the IPC and also u/s 135 of the Bombay Police Act and sentencing them to various sentences.

According to the prosecution case, on 17.6.2000 at about 5:00 in the evening, when the complainant Swaroopji and his son Kanchanji were at the borewell in their field, accused Suraji Nagjiji came there in inebriated condition, therefore, Swaroopji and his son Kanchanji rebuked him. Thereafter, they returned home and again went to borewell in their field with Bhikhaji Oghaji and Amraji Gambhirji at about 8:30 at night. When they reached at the borewell in a jeep, the accused formed unlawful assembly with object to make deadly assault armed themselves with deadly weapons. Accused Suraji called deceased Kanchanji on the pretext of talk and accused Vikramji @ Tikaji, accused Nagjiji Vihaji and accused Jivanji Ishwarji caught hold of Kanchanji and accused Suraji Nagjiji and accused Mahadevji Rayaji made assault with knife and caused injuries on chest, stomach and neck of Kanchanji. On account of the injuries, Kanchanji died.

On the basis of the first information report lodged by PW 4 Swaroopji Harchandji, offence was registered and investigation was started. At the end of investigation, charge sheet came to be filed against the accused for the aforesaid offences. As the offence was triable by Sessions Court, the case was committed to the Sessions Court and it was registered as Sessions Case No. 176 of 2000. The learned Additional Sessions Judge framed charge Exh-12 for the aforesaid offences against the accused. Charge was read over and explained to them. The accused denied having committed the offences and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, the incriminating circumstances appearing in the evidence against the accused were explained to them. The accused in their further statement recorded u/s 313 of the Code of Criminal Procedure, 1973, stated that they are innocent. After hearing the learned Additional Public Prosecutor and learned advocate for the accused, the Court convicted the the accused and sentenced them as mentioned hereinbefore. Being aggrieved by the said decision, the accused have preferred these appeals.

As both these appeals arise out of the same judgment, both are heard and decided by this common judgment.

We have heard learned advocate Ms. Banna Dutta for the appellants and learned APP Mr. H.H. Parikh at length and in great detail. We have also perused the impugned judgment and record and proceedings of the trial Court.

In order to prove the case, the prosecution examined three eye witnesses. PW 4 Swaroopji Harchandji, PW 5 Amraji Gambhirji and PW 6 Bhikhaji Ogharji.

PW 4 Swaroopji Harchandji (Exh-54) has in detail described the incident. According to the witness, on the day of incident at about 5:00 p.m., when he was at the field with his son Kanchanji, accused Suraji came there in inebriated condition and hence they rebuked him. Thereafter, at about 8:30 at night, he with his son deceased Kanchanji, Amraji Gambhirji and Bhikhaji Ogharji went to the borewell in the field, at that time, accused Suraji called Kanchanji on the pretext of having talk with him and as soon as, Kanchanji went near them, accused Nagjiji and accused Vikramji caught hold of arms and shoulder of Kanchanji, accused Jivanji Ishwarji caught hold of his legs and accused Suraji and accused Mahadevji started inflicting knife blows and on account of injuries, Kanchanji fell down. The witness has been extensively cross-examined by the accused. The cross examination indicates that the witness has stuck to his version given in the examination-in-chief. The accused have not been able to elicit in the cross examination any material in their favour to indicate that the evidence is not trustworthy. This evidence indicates that before the incident, the complainant and deceased Kanchanji rebuked accused Suraji. Therefore, keeping grudge of this, the accused armed with deadly weapons, made assault on the deceased.

The evidence of PW 5 Amraji Gambhirji Ex-58 and PW 6 Bhikhaji Ogharji Exh-62 are on the same line. Both the witness have supported the prosecution case. The accused have not been able to elicit from cross-examination that the witnesses are not reliable and trustworthy. On the contrary, it clearly establishes their involvement in the incident. In view of this consistent evidence, it emerges that prior to the assault by the accused, the complainant and the deceased had rebuked accused Suraji. Therefore, accused Suraji with other accused armed with deadly weapons with object to do away with the deceased, made assault in same night. The manner in which attack was made, it was with a pre-determined mind. Therefore, in our considered view, the learned trial Judge was justified in coming to the conclusion that the accused formed an unlawful assembly, armed with deadly weapons caused fatal injuries to the deceased.

The medical evidence of PW 1 Dr. Bhikhubhai Akediwala, Exh-20 indicates that there were about four external injuries on the vital parts of Kanchanji. It also indicates that the injuries were possible with knife and the injuries were sufficient in the ordinary course of nature to cause death. The postmortem report Exh-23 indicates the injuries and cause of death was hemorrhagic shock due to rupture of vital organs like liver and spleen. In view of this evidence, it clearly emerges that the death was homicidal.

In view of above evidence, in our considered view, the learned trial Judge was justified in recording conviction of the accused for the offences charges against them. The learned advocate for the appellants has not been able to point out any infirmity in the impugned judgment. Therefore, the appeals must fail.

In the result, the appeals fail and stand dismissed. The judgment and order of conviction and sentence rendered by learned Additional Sessions Judge, 3rd Fast Track Court, Banaskantha at Palanpur on 17.12.2003 in Sessions Case No. 176 of 2000, is hereby confirmed.