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1998 Supreme(Guj) 452
Gujarat High Court
Judgename :A.K.TRIVEDI, J.N.Bhatt
CHIKABHAI ATMARAM THAKORE - Appellant
Versus
STATE - Respondent
CRIMINAL APPEAL 482 of 1991
Decided On : 08/19/1998
Headnote:(a) Penal Code, 1860 - Secs. 302/149 & 147 - Murder - Unlawful assembly - Stab wound - Statement of PW. 2 proves that A-1 & A-3 inflicted knife blows & A-2, A-3 & A-4 gave fist & kick blows - Evidence of PW. 1 is well corroborated by PW. 8 & PW. 9 - FIR lodged promptly - Motive well established - Common object to kill deceased - All the accused present at the spot & participated actively - Held, Trial Court has rightly convicted the appellants & appeals lacks merit.The Trial Court was justified in placing reliance on the evidence of PW. No. 2 - Shardaben at Exh. 22 who is the widow of deceased whose presence at the venue of offence was natural and her evidence remained impeachable. On the main story of the prosecution version, it is needless to mention that minor contradictions or some discrepancies at the microlevel would not be sufficient to dynamite the whole prosecution case. The main anxiety of this Court is to see as to whether the prosecution case and the main parties against the accused persons are established beyond reasonable doubt or not. Some minor contradictions in respect of time, or narration of incident, or number of blows between some witnesses would not constitute a sufficient basis for discarding the evidence of the widow of the deceased.[Para 12]The conclusions of the Trial Court that there was deep-seated motive for the commission of crime in question is quite justified, and in our opinion, the assessment of evidence of the Trial Court is supportable and acceptable. Merely because some of the witnesses turned hostile and thereby obliged the accused persons whose history is known in the light of record can not be sufficient to discard the evidence of eye witness - widow - Shantaben-The Prosecution Witness No. 1 and Dasrathbhai - Prosecution Witness No. 7 and Akbarbhai Sulemanbhai Mansuri - Prosecution Witness No. 9. Therefore, in Courts opinion, the ultimate conclusion recorded by the Trial Court in passing the impugned judgment of conviction and sentence can not be said to be in anyway vulnerable or impeachable. Courts are satisfied that the prosecution case has rightly weighed and proved beyond reasonable doubt by the Trial Court.[Para 16]Merely because some of the members of unlawful assembly are not armed with deadly weapons or they have not actively participated in giving blows would not absolve them from vicarious liability for commission of crime in pursuit of comon object of unlawful assembly in which they were members. It is not the imperative of law that all the members of unlawful assembly should actively participate completely in commission of the offence. It is not saying by hands but saying by mind which matters for holding each member of the unlawful assembly vicariously accountable for the offence committed in pursuance of common object.[Para 17]The prosecution has succinctly established without any shadow of doubt that there was rioting and accused Nos. 1 & 3 were armed with deadly weapons like knives and as such they had used knife to give blows which has culminated into unfortunate death of deceased Ranchhodbhai. Therefore, accused Nos. 1 & 3 are also vicariously liable for offence of rioting punishable under Sec. 149.[Para 21]The impugned judgment of conviction and sentence order as alleged by the prosecution have been succinctly established without any shadow of doubt. Therefore, in our opinion, these appeals merit dismissal and accordingly both the appeals are dismissed.[Para 23](b) Criminal Trial - Partisan witness - PW. 1 is the widow of deceased - Evidence cannot be discarded merely on this ground but should be scrutinized with care & caution.It is true that the evidence of interested or partisan witness should be evaluated with extra care and caution. It is not the interestedness which would affect the authenticity of the testimony of a witness who is closely related to the deceased. On the contrary, a close relation, may it be the betterhalf, ordinarily would not be interested to let-off the real assailants and to involve the innocent. Therefore, serious criticism about the evidence of prosecution witness No. 2 - Shantaben, at Exh. 22, in Courts opinion, is meritless. Her evidence inspire our confidence. Her testimony has remained unshaken on the main story of prosecution.[Para 13]
( 1 ) BY these appeals the appellant Nos. 1 to 5 - original accused nos. 1 to 5 in Criminal Appeal No. 508 of 1991 have questioned the legality and validity of the impugned judgment and order of conviction and sentence recorded by the learned Sessions Judge, Ahmedabad (Rural), Mirzapur at Ahmedabad in sessions Case No. 11 of 1991. It appears from the record that the Criminal Appeal no. 482 of 1991 came to be filed through jail by the appellant No. 2 and thereafter he came to be released on bail whereas Criminal Appeal No. 508 of 1991 is filed by the accused person including the original accused No. 2. That is how this Court while admitting Criminal Appeal No. 508 of 1991 directed that the Criminal Appeal no. 482 of 1991 to be heard along with Criminal Appeal No. 508 of 1991. Since both the appeals are in respect of same offence and same judgment and order, and in view of the order dated 18-1-1992 of this Court, both the appeals are being disposed of after hearing, simultaneously, by this common judgment.
( 2 ) THE appellant Nos. 1 to 5 in Criminal Appeal No. 508 of 1991 are the original accused Nos. 1 to 5 in the Sessions Case No. 11 of 1991 who came to be convicted by the trial Court. The appellants are hereinafter referred to as accused persons in the same order, and the accused persons are held guilty under Sec. 302 read with sec. 149 I. P. C. , and they are sentenced to life imprisonment and to pay fine of Rs. 500. 00 each and in default to undergo four months rigorous imprisonment. They are also held guilty for the offence punishable under Sec. 147 I. P. C. , and each one is sentenced to undego six months rigorous imprisonment. However, accused Nos. 1 and 3 who were found to have given knife blows to the deceased and are found also guilty for the offence punishable under Sec. 147 and to suffer rigorous imprisonment for six months on that count. The trial Court also has found accused Nos. 1 and 3 guilty under Sec. 135 of Bombay Police Act and sentenced to undergo four months rigorous imprisonment and to pay fine of Rs. 200. 00 and in default to undergo one month imprisonment. The impugned order of conviction and sentence in Sessions case No. 11 of 1991 came to be recorded by the trial Court on 27-5-1991 which is directly under challenge before us in the main appeal.
( 3 ) WITH a view to appreciate the merits of the appeals and challenge against it, let us have a conspectus of relevant and material version of the prosecution which has given rise to these appeals.
( 4 ) ON an auspicious day of Bhadarava Sudh Poonam, i. e. , on 4-9-1990, the unfortunate killing of deceased Ranchhodbhai occurred between 4-30 and 4-45 p. m. in Tapalchok, Opp. Urban Bank, Sanand Town, which is part of Ahmedabad District (Rural) in pursuance of a common object of an unlawful assembly formed by the accused persons as per the prosecution case. The deceased Ranchhodbhai and the accused persons were on enimical terms. The accused No. 1 and the accused No. 3 were armed with knife each and they gave knife blows on the person of ranchhodbhai whereas accused Nos. 2, 4 and 5 who were also members of unlawful assembly gave kicks and fist blows. According to the prosecution case the accused persons constituted unlawful assembly whose common object was to commit murder of deceased Ranchhodbhai, and in pursuance of said common object shared by accused persons the deceased was attacked in the evening near Tapalchock on 4-9-1990, which was also witnessed by the complainant-widow of deceased ranchhodbhai, namely, Sharda @ Shantaben. The prosecution has also ascribed deep-seated motive. The appellant-original accused No. 1 Lala and also two others, i. e. , (1) accused No. 3-Yasinbhai Motisha Fakir gave knife blows in the chest and abdomen portion of the deceased. Accused Nos. 2, 4 and 5 had given fist and kick blows. Thus, as a result of attack in pursuance of common object of unlawful assembly the injured person sustained serious injuries and fell
