Gujarat High Court
Khumlabhai Kesarbhai Dhalakia vs State Of Gujarat on 8 May, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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R/CR.A/801/2015 JUDGMENT DATED: 08/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 801 of 2015
With
R/CRIMINAL APPEAL NO. 799 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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Approved for Reporting Yes No
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KHUMLABHAI KESARBHAI DHALAKIA & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR. RAHUL R DHOLAKIA, ADVOCATE for the Appellants
MS CM SHAH, ADDITIONAL PUBLIC PROSECUTOR for the Respondent -
State
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/05/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. Feeling aggrieved and dissatisfied with the common
judgment and order of conviction dated 29.05.2015 passed by
the learned 3
rd
Additional Sessions Judge, Dahod in Sessions
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Case No.183 of 2011 and Sessions Case No.60 of 2012 for
the offences under Sections 302 and 114 of Indian Penal
Code, 1860, the appellants have preferred these appeals as
provided under Section 374 of the Code of Criminal
Procedure, 1973 ("the Code" for short).
2. The case of the prosecution is that, on 04.07.2011
at about 7:30 p.m., when the deceased - Navlabhai
Keshrabhai Dhanakia was standing in the front yard his
house ('Faliyu'), at that time, his elder brother, who is
residing adjoining to him, suddenly rushed there and hurled
filthy language and has given one axe blow on the head of
the deceased, as the deceased has allegedly used the wooden
logs of his share and made a house, which was fired before
some time; and that soon after one blow given by the elder
brother to the deceased, the wife and daughter of the said
elder brother also rushed there and have also hurled filthy
language and dragged the deceased to the back yard of their
house; and that when the wife and daughter of the deceased
tried to intervene, the elder brother of the deceased -
original accused No.1 has slapped the daughter of the
deceased and has thrown the stones towards the wife of the
deceased, whereby she got injured, but even though they i.e.
wife and daughter of the deceased tried to intervene; and
that when the deceased tried to escape from the place of
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incident, original accused Nos.2 and 2 have caught him and
the elder brother of the deceased i.e. original accused No.1
has given more axe blows on the head of the deceased and
therefore, the deceased has succumbed to the injuries on the
spot. Thereafter, the complainant - wife of the deceased
lodged the complaint with regard to the incident before the
Limkheda Police Station, which was registered as C.R.-I
No.130 of 2011 for the offences under Sections 302, 337, 504
and 114 of Indian Penal Code, 1860.
3. In pursuance of the complaint lodged by the
complainant, investigating agency recorded statements of the
witnesses, collected relevant evidence and drawn various
Panchnamas and other relevant evidence for the purpose of
proving the offence. After having found material against
appellants - accused, charge-sheet came to be filed against
accused No.1 and supplementary charge-sheet against accused
Nos.2 and 3 as they were absconding, in the Court of
learned Judicial Magistrate, First Class, Limkheda. As said
Court lacks jurisdiction to try the offence, it committed the
case to the Sessions Judge, Dahod as provided under section
209 of the Code. Since accused persons were arrested
separately, two cases were filed i.e. one for accused No.1 and
another for accused Nos.2 and 3.
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4. Upon committal of the cases to the Sessions Court,
Dahod, learned Sessions Judge framed charge against the
Appellants - accused for the aforesaid offences. The appellants
- accused pleaded not guilty and claimed to be tried.
5. In order to bring home charge, the prosecution has
examined 15 witnesses and also produced various
documentary evidence before the learned trial Court, more
particularly described in para 12 of the impugned judgment
and order.
6. On conclusion of evidence on the part of the
prosecution, the trial Court put various incriminating
circumstances appearing in the evidence to the appellants -
accused so as to obtain their explanation/answer as provided
u/s 313 of the Code. In the further statement, the appellants
- accused denied all incriminating circumstances appearing
against them as false and further stated that they are
innocent and false case has been filed against them. After
hearing both the sides and after analysis of evidence adduced
by the prosecution, the learned trial Judge convicted the
appellants - accused of the offences, for which they were
tried, as the prosecution succeeded to prove the case. Hence,
these appeals.
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7. Learned advocate Mr.Rahul Dholakiya for the
appellants - accused has submitted that the prosecution evidence
on record suffers from the numerous infirmities; and that from the
perusal of the depositions of three alleged eye-witnesses, there are
material contradictions about the way in which the alleged
incident had taken place; and that from the perusal of the
deposition of PW-6, who is the daughter of the first informant,
where the said witness categorically admits in her cross-
examination that no incident whatsoever had taken place in the
front yard of their own house and no injuries whatsoever were
inflicted by the original accused No.1 to the deceased in the front
yard of their house, which version is completely contrary to the
deposition of the first informant; and that the learned trial Court
has put much reliance upon the Panchnama below Exh.12 by way
of which the weapon used in the commission of the offence was
recovered at the instance of original accused No.1, however, from
the perusal of the deposition of PW-2, the recovery of the alleged
weapon is completely eroded; and that the prosecution has not
examined any independent witnesses to the alleged incident even
though it is on record that two neighbours viz., Reshmaben and
Santokben are also witness the said incident; and that the first
informant has not come with clean hands and suppressed material
facts from the investigating agency; and that the investigating
agency is also biased and all the panchas are either relatives and/
or acquaintances of the family of the deceased; and that one of
the appellant viz., Khumlabhai Keshrabhai Dhanakia has already
undergone imprisonment of about 13 years, whereas other two
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accused, being lady accused, have been enlarged on bail.
8. Learned APP Ms. Shah for the State has vehemently
opposed these appeals. She has supported the impugned
judgment and order of conviction passed by the trial Court
and contended that, the learned trial Court has rightly relied
on the evidence - documentary as well as oral and therefore,
considering the gravity of offence and its impact on the
society, no case is made out to quash the impugned judgment
by the trial Court. She has further submitted that it is a
premeditated act by the appellants; and that the weapon
used by the appellants is sharp and deadly; and that they
have previous animosity with the deceased; and that there is
no provocation on the part of the deceased; and that the
learned trial Court has rightly convicted the appellants for
the offence punishable under Section 302 of the IPC for
offence of culpable homicide amounting to murder; and that
the depositions of witnesses are well corroborated with other
evidence, which is enough to prove the offence; and that the
axe blow given by appellant No.1 on the vital part of the
body of the deceased i.e. on head and the other two lady
accused who have dragged the deceased to backyard of their
house, which is sufficient to believe that all the appellants
have motive to kill the deceased, as all the accused have
played equal role in commission of offence and therefore, the
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learned trial Court has rightly convicted all the accused for
the offences punishable under Section 302 and 114 of the
IPC. In support of her submissions, she has relied upon the
decision of the Hon'ble Apex Court in the case of Som Raj @
Soma Versus State of Himachal Pradesh reported in (2013)
14 SCC 246. Thus, it is urged that looking to the
seriousness of the offence, the present appeals may be
dismissed.
9.1 We have considered the rival submissions made by
the learned advocates for the respective parties. We have
gone through the impugned judgment and order passed by
the learned trial Court. We have perused the record and
proceedings of the trial.
9.2 Criminal Appeal No.801 of 2015 is filed by original
accused No.1 viz., Khumlabhai Dhanakia. Whereas Criminal
Appeal No.799 of 2015 is filed by original accused Nos.2 and
3 viz., Ramilaben, W/o. Khumlabhai and Rekhaben, D/o.
Khumlabhai.
9.3 As per record of the case, it transpires that, when
the deceased was standing at the portion of front yard of his
house, original accused No.1 came with axe suddenly, hurled
filthy language and gave axe blow on the head of the
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deceased. Thereafter, original accused Nos.2 and 3 - lady
accused came immediately at the scene of offence and
dragged the deceased to the back yard of their house. The
incident has happened at the front yard of the house of the
deceased. At that time, the first informant - wife of the
deceased, daughter and daughter-in-law of the deceased were
there. The accused persons are residing adjacent to the house
of the deceased and they are close relatives i.e. elder brother,
wife of elder brother and daughter of elder brother. When
accused Nos.2 and 3 were dragging the deceased to the back
yard of their house, the wife and daughter of the deceased
tried to intervene, accused No.1 slapped the wife of the
deceased and pelted stone towards them, whereby the first
informant got injured. Thereafter, accused No.1 rushed
towards the deceased. When deceased tried to escape from
there, accused No.1 immediately gave axe blows on the head
of the deceased. Resultantly, the deceased succumbed to the
injuries.
9.4 Accused No.1 is an elder brother of the deceased.
Accused Nos.2 and 3 are the wife and daughter of accused
No.1, respectively. Thus, the deceased and the accused
persons are close relatives. They are residing adjacent to
each other.
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9.5 There was a previous grudge between two
brothers. The farm is in their joint names. They had
plantation of eucalyptus trees in the said farm. There was an
untoward incident of getting fire the house of the deceased
before some time. The allegation of accused No.1 - elder
brother upon the deceased was that the deceased has used
the trunk of the said eucalyptus trees for repairing his house
without taking permission of accused No.1 being an elder
brother, as there was a share of him in the said plantation
being a joint owner of the farm.
9.6 Keeping the said grudge in mind, accused persons
have quarreled with the deceased. On the date of incident, as
noted above, the accused persons have come to the house of
the deceased, hurled filthy language, accused No.1 gave axe
blow on the head of the deceased, accused Nos.2 and 3
dragged the deceased towards the back yard of their house,
accused No.1 pelted stone towards wife of the deceased when
she tried to intervene, accused No.1 slapped the daughter of
the deceased when she tried to intervene and when accused
Nos.2 and 3 caught the deceased and accused No.1 gave axe
blows on the head of the deceased again and therefore, the
deceased succumbed to the injuries on the spot.
10.1 The chain of events of entire episode is that,
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accused No.1 went to the house of the deceased with axe,
quarreled with the deceased regarding use of eucalyptus trees
for his house, hurled filthy language, gave axe blow
immediately on the vital part of the body - head
intentionally, accused Nos.2 and 3 dragged the deceased
towards back yard of their house which is adjacent to the
house of the deceased, accused No.1 pelted stone towards wife
and daughter of the deceased when they tried to intervene,
accused No.1 slapped the wife of the deceased, who is a first
informant, accused No.1 gave axe blows on the head of the
deceased and ultimately, the deceased succumbed to the
injuries on the spot. Thus, looking to the chain of events, the
accused persons have premeditated mind, as accused No.1
came with an axe, which proves that the incident is
happened with an intention to kill the deceased. Therefore,
there is an intention of the accused person to commit an
offence under Section 302 of the IPC.
10.2 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Joy
Devaraj versus State of Kerala reported in (2024) 8 SCC 102,
more particularly paras : 24 and 25 thereof, which read as
under :
"24. Though closely related, culpable
homicide and murder cover very different
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acts. To decide the issue, we can
profitably take the aid of the decision of
this Court in Pulicherla Nagaraju @
Nagaraja Reddy v. State of Andhra
Pradesh, (2006) 11 SCC 444 wherein
certain factors have been listed to glean
if the aggressor had an intention to cause
death :
"29 It is for the courts to ensure
that the cases of murder
punishable under Section 302, are
not converted into offences
punishable under section 304 Part
I/II, or cases of culpable homicide
not amounting to murder are
treated as murder punishable
under Section 302. The intention
to cause death can be gathered
generally from a combination of a
few or several of the following,
among other, circumstances; (i)
nature of the weapon used; (ii)
whether the weapon was carried
by the accused or was picked up
from the spot; (iii) whether the
blow is aimed at a vital part of
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the body; (iv) the amount of force
employed in causing injury; (v)
whether the act was in the course
of sudden quarrel or sudden fight
or free for all fight; (vi) whether
the incident occurs by chance or
whether there was any
premeditation; (vii) whether there
was any prior enmity or whether
the deceased was a stranger; (viii)
whether there was any grave and
sudden provocation, and if so, the
cause for such provocation; (ix)
whether it was in the heat of
passion; (x) whether the person
inflicting the injury has taken
undue advantage or has acted in
a cruel and unusual manner; (xi)
whether the accused dealt a single
blow or several blows. The above
list of circumstances is, of course,
not exhaustive and there may be
several other special circumstances
with reference to individual cases
which may throw light on the
question of intention."
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25. Applying the rubric provided in
Pulicherla Nagaraju (supra) to the present
case, we find that the weapon used for the
premeditated attack was a dagger, which is
considered a deadly weapon. The weapon was
carried by the appellant to the scene of the
incident and not picked up from the spot.
The victim was stabbed in his chest, which
houses multiple vital organs of the body.
There was no provocation from the side of
the victim. The appellant and other co-
accused had reached the place of occurrence
with the premeditated intention to cause hurt
to the victim, which can be seen from the
fact that they formed an unlawful assembly
armed with deadly weapons with the common
intention to attack the victim and thereby
put an end to the movement triggered by
him to stop trade in illicit liquor."
11.1 Now, looking to the deposition of two eye-witnesses
i.e. PW-5 and PW-6, who clearly support the case of the
prosecution. The other material like Doctor's deposition
(PW10) and serological report received from the FSL (Exh.53)
as well as weapon used in commission of offence, which is
recovered at the instance of the accused, also corroborates the
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evidence of the star witnesses.
11.2 At this stage, it would also be fruitful to refer to
the decision of the Hon'ble Apex Court in the case of
Kunhimuhammed alias Kunheethu versus State of Kerala
reported in 2024 SCC OnLine SC 3618, more particularly
paras : 25.4 to 25.6 and 25.11 to 25.14 thereof, which read
as under :
"25.4 This Court held in Virsa
Singh vs. State of Pepsu, that to see
whether the injury intended and thus
caused by the accused was sufficient in
the ordinary course of nature to cause
death or not, it must be examined in
each case on the basis of the facts and
circumstances. In that case, the injury
was caused with a knife blow to the
stomach and it was inflicted with such
force that the knife penetrated the
abdomen of the deceased and caused
injuries to the bowel. The expert opinion
of the doctor therein stated on record
that such an injury was sufficient in the
ordinary course of nature to cause death.
Further, in the absence of any evidence
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or circumstances to prove that the injury
was accidental or unintentional, it was
presumed that the accused had intended
to cause such injury thus making it fall
under clause 3 of Section, 300 IPC.
25.5 It has been held by this
Court in several cases such as Manubhai
Atabhai vs. State of Gujarat, and Arun
Nivalaji More vs. State of Maharashtra,
that when the ocular evidence of eye
witnesses are reliable and well
corroborated by medical, and other
evidence also inspires the confidence that
the accused had the intention to cause
such fatal injuries, then such evidence is
enough to prove the charge of murder
beyond reasonable doubt. This intention is
to be gathered from a number of
circumstances and evidence like the place
of injury the nature of the weapon, the
force applied while inflicting the injury,
and other such considerations. Whether
the accused had any intention to kill the
deceased has to be judged upon taking
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into consideration the facts of each case.
25.6 This position has been
elaborated by this Court in the case of
Nishan Singh vs. State of Punjab, where
the accused person had snatched the
weapon carried by someone else and
brutally inflicted injuries on the deceased.
The Court stated that in such a case it
cannot be said that he did not have the
intention to cause death.
25.11 The third clause of section
300 speaks of an intention to cause
bodily injury which is sufficient in the
ordinary course of nature to cause death.
This Court in the above-mentioned
judgment held that to bring the case
under this part of the section the
prosecution must establish objectively:
1. That a bodily injury is present;
2. That the nature of injury must
be proved;
3. It must be proved that there
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was an intention to inflict that
particular bodily injury;
4. That the injury inflicted is
sufficient to cause death in the
ordinary course of the nature.
25.12 The Court further held that:
"13. Once these four elements
are established by the
prosecution (and, of course, the
burden is on the prosecution
throughout) the offence is
murder under S.300, "Thirdly.
It does not matter that there
was no intention to cause
death. It does not matter that
there was no intention even to
cause an injury of a kind that
is sufficient to cause death in
the ordinary course of nature
(not that there is any real
distinction between the two). It
does not even matter that
there is no knowledge that an
act of that kind will be likely
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to cause death. Once the
intention to cause the bodily
injury actually found to be
present is proved, the rest of
the enquiry is purely objective
and the only question is
whether, as a matter of purely
objective inference, the injury
is sufficient in the ordinary
course of nature to cause
death. No one has a licence to
run around inflicting injuries
that are sufficient to cause
death in the ordinary course of
nature and claim that they are
not guilty of murder. If they
inflict injuries of that kind,
they must face the
consequences; and they can
only escape if it can be shown,
or reasonably deduced that the
injury was accidental or
otherwise unintentional."
25.13 This position has further been
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upheld by this Court recently in the case
of Vinod Kumar vs. Amritpal, wherein
the bench observed that :
"24. Once the prosecution
establishes the existence of
the three ingredients forming
a part of "thirdly" in Section
300, it is irrelevant whether
there was an intention on
the part of the accused to
cause death. Further, it does
not matter that there was no
intention even to cause the
injury of a kind that is
sufficient to cause death in
ordinary course of nature.
Even the knowledge that an
act of that kind is likely to
cause death is not necessary
to attract "thirdly"."
25.14 This Court in the case of
Balkar Singh vs. State of Uttarakhand8,
while following the judgment in Virsa
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Singh (Supra) further elaborated the
position of law and laid down that
culpable homicide is murder if two
conditions are fulfilled: a. the act which
caused death is done with the intention
of causing death or is done with the
intention of causing a bodily injury; and
b. the injury intended to be inflicted in
sufficient in the ordinary course of nature
to cause death."
12.1 With regard to the contention raised by the
learned advocate for the appellants that there is contrary
version of some of the witnesses against the version of the
first informant is concerned, this Court, after considering the
entire evidence, finds that minor and immaterial
inconsistencies and/or discrepancies in the evidence are not
such in a nature which can cause any damage to the case of
the prosecution. In fact, the depositions of the witnesses are
found trustworthy and inspires confidence.
12.2 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Firoz Khan
Akbarkhan versus State of Maharashtra reported in 2025
SCC OnLine SC 627, more particularly para : 20 thereof,
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which reads as under :
"20. To our mind, the prosecution has
succeeded in proving its case beyond
reasonable doubt. Having carefully gone
through the material on record, especially the
depositions of the witnesses and upon a keen
examination of the relevant aspects of the
case, we find that the presence of the
appellant at the site of the incident and him
having stabbed the deceased on the stomach
repeatedly has been the consistent stand of
the PWs who were eye-witnesses. The Courts
below have also concurrently found the same.
The accused-appellant has not been able to
controvert the evidence on record. Minor and
immaterial inconsistencies and/or discrepancies
shall not harm the case of the prosecution,
as held, inter alia, in State of Himachal
Pradesh v Lekh Raj, (2000) 1 SCC
247; Narayan Chetanram Chaudhary v State
of Maharashtra, (2000) 8 SCC 457; State of
Madhya Pradesh v Ramesh, (2011) 4 SCC
786; Mekala Sivaiah v State of Andhra
Pradesh, (2022) 8 SCC 253, and; Rameshji
Amarsingh Thakor v State of Gujarat, 2023
SCC OnLine SC 1321. The following
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observations from Lekh Raj (supra) are
instructive :
'7. In support of the impugned
judgment the learned counsel
appearing for the respondents
vainly attempted to point out
some discrepancies in the
statement of the prosecutrix and
other witnesses for discrediting
the prosecution version.
Discrepancy has to be
distinguished from contradiction.
Whereas contradiction in the
statement of the witness is fatal
for the case, minor discrepancy or
variance in evidence will not
make the prosecution's case
doubtful. The normal course of
the human conduct would be that
while narrating a particular
incident there may occur minor
discrepancies, such discrepancies
in law may render credential to
the depositions. Parrot-like
statements are disfavoured by the
courts. In order to ascertain as to
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whether the discrepancy pointed
out was minor or not or the
same amounted to contradiction,
regard is required to be had to
the circumstances of the case by
keeping in view the social status
of the witnesses and environment
in which such witness was
making the statement. This Court
in Ousu Varghese v. State of
Kerala [(1974) 3 SCC 767 : 1974
SCC (Cri) 243] held that minor
variations in the accounts of the
witnesses are often the hallmark
of the truth of their
testimony. In Jagdish v. State of
M.P. [1981 Supp SCC 40 : 1981
SCC (Cri) 676] this Court held
that when the discrepancies were
comparatively of a minor
character and did not go to the
root of the prosecution story, they
need not be given undue
importance. Mere congruity or
consistency is not the sole test of
truth in the depositions. This
Court again in State of Rajasthan
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v. Kalki [(1981) 2 SCC 752 :
1981 SCC (Cri) 593] held that in
the depositions of witnesses there
are always normal discrepancies,
however, honest and truthful they
may be. Such discrepancies are
due to normal errors of
observation, normal errors of
memory due to lapse of time, due
to mental disposition such as
shock and horror at the time of
occurrence, and the like. Material
discrepancies are those which are
not normal and not expected of a
normal person.
8. Referring to and relying
upon the earlier judgments of this
Court in State of U.P. v. M.K.
Anthony [(1985) 1 SCC 505 :
1985 SCC (Cri) 105 : AIR 1985
SC 48] , Tahsildar Singh v. State
of U.P. [AIR 1959 SC 1012 :
1959 Supp (2) SCR 875] ,
Appabhai v. State of Gujarat
[1988 Supp SCC 241 : 1988 SCC
(Cri) 559 : JT (1988) 1 SC 249]
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and Rammi v. State of M.P.
[(1999) 8 SCC 649 : JT (1999) 7
SC 247], this Court in a recent
case Leela Ram v. State of
Haryana [(1999) 9 SCC 525 : JT
(1999) 8 SC 274] held:
"There are bound to be
some discrepancies between
the narrations of different
witnesses when they speak
on details, and unless the
contradictions are of a
material dimension, the
same should not be used to
jettison the evidence in its
entirety. Incidentally,
corroboration of evidence
with mathematical niceties
cannot be expected in
criminal cases. Minor
embellishment, there may
be, but variations by reason
therefor should not render
the evidence of eyewitnesses
unbelievable. Trivial
discrepancies ought not to
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obliterate an otherwise
acceptable evidence....
The court shall have to bear in
mind that different witnesses react
differently under different situations:
whereas some become speechless,
some start wailing while some
others run away from the scene
and yet there are some who may
come forward with courage,
conviction and belief that the wrong
should be remedied. As a matter of
fact it depends upon individuals
and individuals. There cannot be
any set pattern or uniform rule of
human reaction and to discard a
piece of evidence on the ground of
his reaction not falling within a set
pattern is unproductive and a
pedantic exercise."' (emphasis
supplied)"
13. At this stage, it would be fruitful to refer to the
deposition of Dr.Satishkumar - PW10 (Exh.45), wherein he
has categorically deposed that there are multiple injuries
found on the head and other parts of the body, which proves
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that accused No.1 had given several axe blows with accused
Nos.2 and 3, who had caught hold deceased and also played
active role in dragging the deceased from the front yard to
back yard of the house. The said witness has performed
postmortem of the deceased. The postmortem report (Exh.47)
supports the said version of the doctor. The injuries in
column Nos.17 and 23 of the postmortem note are mentioned
as under :
"17. To mention the outer wound
and injuries on the body and its position,
size and its exact direction and how old the
said wound and injuries and its reasons :
(1) Brown abrassion on middle of eyes are 3
in number.
(1) 9 c.m. x 0.5 c.m. x Skin
(2) 5 c.m. x 0.5 c.m. x Skin
(1) 5 c.m. x 0.5 c.m. x Skin
(3) Brown absrassion mid.rt.scapular
region 5 cm x 1 cm x Skin
(4) Brown abrassion over back & neck 9
cm x 1 cm x Skin
(5) Sharp cutting over middle occipital
bone longitudenally
(6) conlused lacerated wound over
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accipital bone are L shaped 7 cm x 1 cm x
deep bone
(7) sharp cutting over rt. Side over
occipital bone 15 cm x 10 cm x deep bone
(8) Lounge haematoma over occipital bone
15 cm x cm x deep bone
(9) C.L. wover Rt. Hemporal region 5 cm
x 3 cm x deep bone
xxx
23. Cause of death / probable cause
of death and opinion : In my opinion, the
cause of death is intracerebal haemorrhage
erael shook leading to cardio respiratory
arrest."
14.1 Further, looking to the deposition of PW-9 -
Sugraben, whereby she has deposed that after the incident,
accused Nos.2 and 3 have run away from the place of
incident and arrested later on. Therefore, the investigation
officer has filed supplementary charge-sheet soon after they
were arrested at a later stage. Considering the material
available on record by way of deposition of witnesses and
other documents, accused Nos.2 and 3 have also played active
role in the commission of offence by holding the deceased
and thereafter dragging the deceased to the backyard where
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accused No.1 has given axe blows on the vital part of the
body of the deceased.
14.2 Further, we have not seen any version from the
entire evidence - documentary as well as oral that how the
deceased travelled from the front yard of his house to back
yard of the house of the accused. It has not come on record
that the deceased himself went towards back yard of the
house. It has also not come on record that accused No.1
dragged the deceased towards back yard of the house. No one
has stated about it except the version of eye-witnesses, where
they have clearly stated that accused No.2 and accused No.3
dragged the deceased towards back yard of their house.
Therefore, accused Nos.2 and 3 have played equal role in the
commission of offence, which the learned trial Court has
rightly evaluated.
15. Under the circumstances, the learned trial Judge
has rightly convicted the appellants - accused for the
elaborate reasons stated in the impugned judgment and we
also endorse the view/finding of the learned trial Judge
leading to the conviction.
16. We have minutely scrutinised the entire evidence
available on record. Except relying upon aforesaid evidence,
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no any other direct evidence either oral or documentary is
pressed into service to interfere with the findings of the
learned trial Court leading to conviction of the appellants -
accused. When substantial evidence is connecting the accused
with the crime, there is no need for any consideration to
upset the findings of the learned trial Court and therefore,
there is no need to overburden the judgment anymore.
17. In view of above and on our own analysis and re-
appreciation of the evidence, we do not find any infirmity or
compelling reasons to interfere with the order of conviction
recorded by the trial Court. We have also perused the
judgment and findings given by the trial Court and find that
the same are in accordance with law. Therefore, the
impugned judgment and order passed by the learned trial
Court is just, proper and legal. These appeals, therefore,
deserve to be dismissed.
18. It is noted that the appellant of Criminal Appeal
No.801 of 2015 is in judicial custody and has already
undergone imprisonment for about 13 years out of life
imprisonment. The appellants of Criminal Appeal No.799 of
2015 have been released on regular bail by this Court, more
particularly on the ground of age and marital status. Accused
No.2 has been enlarged on regular bail by this Court on the
ground that she is aged about 57 years at that time.
Accused No.3 has been enlarged on regular bail by this
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Court mainly on the ground that she was aged about 18
years at the relevant time and thereafter, she got married
and having one girl child. While granting bail, no merit has
been discussed at all.
19. In view of the above discussion, these appeals are
accordingly dismissed. Bail bonds of appellants of Criminal
Appeal No.799 of 2015 stand cancelled and they are ordered
to be taken into judicial custody.
20. Record and proceedings be sent back to the trial
Court, forthwith.
Sd/-
(ILESH J. VORA,J)
Sd/-
(SANDEEP N. BHATT,J)
After the judgment is pronounced, learned advocate
for the appellants prayed for stay of this judgment for some
time, as the appellants of Criminal Appeal No.799 of 2015
have been enlarged on regular bail during pendency of the
appeal. Considering the same, the operation of this judgment
qua Criminal Appeal no.799 of 2015 only is stayed for a
period of four weeks from today.
Sd/-
(ILESH J. VORA,J)
Sd/-
(SANDEEP N. BHATT,J)
M.H. DAVE
