Thakor Karnaji Juhaji vs State of Gujarat

Akil Kureshi, J.—The appeals arise out of the same judgment of the trial Court dated 19.3.2009 rendered by the learned Additional Sessions Judge, Ahmedabad Rural, in Sessions Case No. 30/2008. Appellant of Criminal Appeal No. 685/2009 was the original accused. He has been convicted for offence punishable u/s 304 Part-II of the IPC and sentenced to rigorous imprisonment of seven years. Co-accused No. 2 was acquitted by the said judgment. State has preferred Criminal Appeal No. 1386/2009 and challenged no conviction of appellant Karnaji Juhaji for offence u/s 302 of the IPC as well as the total acquittal of original accused No. 2 Gugaji @ Mangaji Juhaji. These appeals are therefore, heard together and are disposed of by this common judgment. Briefly stated, the prosecution version was that deceased Rusaji Khodaji and accused Karnaji and Gugaji lived in the same village. On 2.9.2008, complainant Taraben, daughter of Rusaji Khodaji was washing utensils outside her house on the road. Daughter of accused No. 1 and his wife thereupon picked up a quarrel with the complainant about washing of such utensils. Deceased Rusaji Khodaji therefore, admonished the daughter and the mother. He thereafter, was going towards the fields for agricultural operations. Accused No. 1 and 2 followed him. First accused No. 1 gave a blow on the head of Rusaji Khodaji with a "Choriyu" (an agricultural instrument used for removing the weeds). Accused No. 2 also gave a blow on the head of the deceased. He fell down on the ground bleeding and died on the spot. Charge to this effect was framed at Exh. 5 alleging that the accused had committed offence punishable u/s 302 read with section 114 of the IPC.

Taraben Thakor, the first informant and the daughter of deceased Rusaji Khodaji, PW-1, was examined at Exh. 11. She deposed that she was married but on the date of the incident, she was at the house of her parents. At about 7 O'' clock in the morning, she was cleaning the utensils outside her house. Near her house there was house of Karnaji Juhaji. Daughter of Karnaji Juhaji came out and picked up a quarrel asking her not to clean the utensils on the road. She also called her mother Dhuliben who also fought with her. At that time her father came out and separated the two quarreling parties. He thereafter, set out to do labour work in the fields. Behind him, Karnaji Juhaji and his brother Gugaji followed with "Choriyu" in their hands, without saying anything else, Karnaji Juhaji gave one blow on the head with "Choriyu" to her father. Thereafter, Gugaji also gave one blow. Tiniben and Dhuliben had held her at that time. She rushed to the father and saw that he was convulsing. She informed the Sarpanch of the village. The father died on the spot. They informed Mandal police station by phone. Her FIR was recorded which was produced at Exh. 12.

2.1. In the cross examination, she clarified that "Choriyu" is used for removing unwanted weeds. She denied that her father had carried one such instrument. She denied that Gugaji was not present.

2.2. In her FIR Exh. 12, she had stated that the first blow was given by Karnaji Juhaji and immediately thereafter, Gugaji gave a blow precisely on the same place of the head.

Jayantibhai Pradhanji Thakor, PW-2, Exh. 13, also claimed to have witnessed the incident. He gave a similar version of the deceased being given blows by the accused. In the cross examination, certain improvements have been made. The trial Court however, refused to accept him as a genuine eyewitness.

Dr. Mitesh Ajaykumar Shah, PW-4, Exh. 15, had carried out the postmortem. In his deposition as well as postmortem report, Exh. 19, he mentioned the following external injuries:

CD upper sided of occipital region horizontal incisional wound measures 2 inch 3� c.m. x 1.3 c.m. x 3 c.m. on depth. Occipital bone also torned and brain comes out of wound.

4.1. Corresponding to such external injuries, he noticed the following internal injuries:

Occipital region incise wound also fracture of occipital bone. Occipital to be incisional wound 4 x 0.3 x 0.2 c.m. sized Intraregional bleeding present.

4.2. According to him the cause of death was due to hemorrhage and shock due to head injury. He agreed that such injury could have been caused with the muddamal article "Choriyu". He could not state with certainty that such injury would invariably lead to death but clarified that if a patient is not given timely treatment, death could be caused due to loss of blood.

4.3. In the cross examination, most significantly, he clarified that it was a case of single injury and emphatically stated that the injury did not show two successive blows.

Various articles collected were sent for forensic analysis. The FSL report and the serological report would reveal presence of human blood from the clothes of the deceased as well as both the accused. Interestingly, the deceased as well as both the accused had blood group ''B''. Blood was found from the "Choriyu" carried by both the accused, but the group thereof could not be ascertained.

From the evidence on record, we have no hesitation in accepting the involvement of Karnaji Juhaji in giving the blows on the head of the deceased which ultimately proved fatal. Eyewitness account of Taraben, daughter of deceased Rusaji Khodaji and the medical evidence would establish this fact. As per Taraben in the morning of the incident, she was washing utensils outside her house. Daughter and wife of Karnaji Juhaji picked up a quarrel with her about washing the utensils on the road. Therefore, her father intervened and separated the quarreling parties. Keeping a grudge about this incident, Karnaji Juhaji and Gugaji followed Rusaji Khodaji when he was proceeding for labour work in the agricultural fields. As per this witness, thereafter, Karnaji Juhaji gave one blow with "Choriyu" on the head. This was duly corroborated by the medical evidence which reflected a serious head injury and a skull fracture. It is true that this witness also further implicated accused No. 2 Gugaji of having given yet another blow on the head of her father. This is however, falsified by the medical evidence. As per Dr. Mitesh Ajaykumar Shah, PW-4, this was clearly a case of one blow. He was emphatic that injury noticed by him could not have been as a result of two successive blows. The attempt on part of the witness to rope in accused No. 2 must be seen as an exaggeration. In the FIR itself, she was conscious of the head injury being a result of one blow when she specified that soon after Karnaji Juhaji gave a blow, Gugaji also gave another blow precisely at the same place. Despite such exaggeration by the witness, we need not reject her entire testimony as unreliable or untruthful. The principle that when a witness is found to be prevaricate in one aspect, the entire testimony must be discarded, is not accepted by the Courts. Particularly, when the testimony of this witness is duly corroborated by the medical evidence, we have no hesitation in confirming the involvement of accused Karnaji Juhaji.

Coming to the State appeal, we may recall that accused Gugaji was acquitted of all the charges and in our opinion rightly so. This being a case of single blow, his involvement was not established by the prosecution through any reliable evidence. Merely because Taraben, PW-1, attributed a blow to this accused, his involvement cannot be confirmed, more so, when the medical evidence unequivocally established that the deceased had received only one injury which could be a result of only one blow.

With respect to the conclusion of the trial Court that this was a case of culpable homicide not amounting to murder, also we have no reason to interfere. After a brief quarrel about domestic events, accused No. 1 gave one blow with an agricultural instrument which any agriculturist would be carrying. In fact, complainant Taraben, PW-1, agreed that such instrument is being used for removing the weeds from the fields. Her father was also going to the field for the same purpose. This was thus not a case of premeditated act on part of the accused. The family members of the accused and deceased respectively had a brief quarrel about domestic affair. Accused No. 1 gave one blow on the head. Surely, he cannot be attributed the intention of causing death. Looking to the nature of injury, the fact that single blow was given with "Choriyu" and the attendant circumstances lading to the incident, in our opinion, the trial Court committed no error in convicting the accused for offence u/s 304 Part-II of the IPC and awarding sentence of seven years. In the result, judgment of the trial Court is confirmed. Both the appeals are dismissed.

R & P may be transmitted to the concerned trial Court.