Minor contradictions cannot be a ground to discredit witnesses testimony in Criminal trial: SC

By applying the aforesaid ratio, as laid down by this Court coupled with the evidence on record, we are clearly of the view that the prosecution has proved the case against all the appellant accused beyond reasonable doubt. The omissions like not seizing the motorcycle and also not seizing the gold chain of one of the victims, by itself, is no ground to discredit the testimony of key witnesses who were examined on behalf of the prosecution, whose say is consistent, natural and trustworthy. (Para 20)

KALABHAI HAMIRBHAI KACHHOT V/S STATE OF GUJARAT

CRIMINAL APPEAL NO.216 OF 2015

Decided on April 28 2021

A two-judge bench consisting of Justice Ashok Bhushan and Justice R.Subhash Reddy decided on this case. The court decided to dismiss the appeals made.

All the criminal appeals are filed against the common judgement dated 09.05.2014 passed by the high court of Gujrat at Ahmedabad in criminal appeal nos.405 of 2010 and 459 of 2010, as such, they are heard together and disposed of by this common judgement. Criminal Appeal No.290 of 2018 is filed by accused no.1 – Vajashibhai Ramshibhai Kachhot; Criminal Appeal arising out of S.L.P.(Crl.)No.3227 of 2015 is filed by accused no.2 – Mulubhai Markhibhai Nandaniya; and Criminal Appeal No.216 of 2015 is filed by accused no.3 – Kalabhai Hamirbhai Kachhot. For the sake of convenience, the appellants in the above appeals shall be referred to as accused nos.1 to 3 hereafters.

The aforesaid appellants were the accused in FIR No.I­ 215/2006 dated 11.11.2006 on the file of Keshod Police Station, which was registered for the offences punishable under Sections 302, 326, 324 and 34 of Indian Penal Code (IPC) and Section 135 of the Bombay Police Act, in which charge sheet was filed on 07.02.2007 in the court of First-Class Magistrate, Keshod. As much as the offences were triable by Sessions Court, the case was committed to the Court of Additional Sessions Judge, Junagadh and the accused were tried for the aforesaid offences in Sessions Case No.14 of 2007. All the accused were convicted for the offences under Section 302 read with 34, IPC and Section 135(1) of the Bombay Police Act. Accused no.1 – Vajashibhai Ramshi bhai Kachhot – was found guilty for offence punishable under Section 302 read with 34, IPC and was sentenced to undergo life imprisonment and to pay fine of Rs.10,000/­ and in default, to undergo further S.I. for 12 months. He was also found guilty for offence punishable under Section 324, IPC and was sentenced to pay fine of Rs.3000/­ and in default, to undergo further S.I. for six months. He was also found guilty for the offence punishable under Section 135(1) of the Bombay Police Act and was sentenced to undergo S.I. for four months and to pay fine of Rs.100 and in default, to undergo further S.I. for ten days. Accused no.2 – Mulubhai Markhibhai Nandaniya – was found guilty for offence punishable under Section 302 read with 34, IPC and was sentenced to undergo R.I. for life and to pay fine of Rs.10000/­ and in default, to further undergo S.I. for 12 months.

He was also found guilty for offence punishable under Section 135(1) of Bombay Police Act and was sentenced to undergo S.I. for four months and to pay fine of Rs.100/­ and in default, to further undergo S.I. for ten days. Accused no.3 – Kalabhai Hamirbhai Kachhot – was found guilty for offence punishable under Section 302 read with 34, IPC and was sentenced to undergo R.I. for life and to pay fine of Rs.10000/­ and in default, to further undergo S.I. for 12 months. He was also found guilty for offence punishable under Section 135(1) of Bombay Police Act and was sentenced to undergo S.I. for four months and to pay fine of Rs.100/­ and in default, to further undergo S.I. for 10 days.

The learned Sessions Judge has acquitted the original accused nos.2 and 3 of the charges under Sections 326 and 324 read with 34, IPC. Against the judgment and order of conviction passed by the learned Sessions Court, accused nos.1 and 3 filed Criminal Appeal No.459 of 2010 and accused no.2 filed Criminal Appeal No.405 of 2010 before the High Court. The High Court, by the impugned common judgment, while confirming the conviction, has partly allowed the appeals and ordered that all the sentences imposed against the accused shall run concurrently and, by extending the benefit of Section 428 of the Code of Criminal Procedure, also ordered that the period of detention of the accused as under­trial prisoners be set off against the sentence. On 10.11.2006, one Rajshibhai Maldebhai Karangiya, resident of Bamnasa Ghed, Taluka Keshod, gave complaint before the Sub­inspector ‘B’ Division, Junagadh stating that he lives at Bamnasa Ghed with his family and is engaged in agricultural work and lives in the orchard situated in sim of village Akha. In his complaint, he has stated that at about 5:00 p.m. on 10.11.2006 Rajshibhai Maldebhai Karangiya; Mitesh Hardasbhai and Gokalbhai Karsanbhai went to Keshod for some work on Gokalbhai’s Hero Honda motorcycle. Gokalbhai was riding the motorcycle. While returning, when they reached near to orchard of Kalabhai at about 7:15 p.m., Vajashibhai Ramshibhai, Mulubhai Markhibhai and Kalabhai Hamirbhai Kachhot were waiting with axe and knives. In order to stop Rajshibhai Maldebhai Karangiya, Mulubhai gave axe blow, which hit on Gokalbhai’s head, due to which Rajshibhai Maldebhai Karangiya, Miteshbhai Hardasbhai and Gokalbhai fell down from the motorcycle. Thereafter the three accused have attacked the deceased Gokalbhai with knives and when Rajshibhai Maldebhai intervened, Vajashibhai gave knife blow on the head of Rajshibhai Maldebhai Karangiya. It is also alleged that Vajshibhai hit knife blow on the back side of head on ear and hit Mitesh on left shoulder. Gokalbhai became unconscious. The three accused then ran away towards Akha on Kalabhai’s motorcycle. Thereafter, relatives of the deceased and injured were called and they were shifted to Government Hospital where Gokalbhai was declared dead and Rajshibhai Maldebhai and Miteshbhai were given medical treatment. It is also stated that the reason behind the incident is that six months earlier to the date of incident there was a quarrel between Vajshibhai and Mulubhai with Gokalbhai. He has stated in the complaint that the present incident is consequence of such rivalry between the accused and the deceased.

The key issue here was to see if there was any merit in the appeals made and could the appeals be granted on those grounds.

The court observed that “By applying the aforesaid ratio, as laid down by this Court coupled with the evidence on record, we are clearly of the view that the prosecution has proved the case against all the appellant accused beyond reasonable doubt. The omissions like not seizing the motorcycle and also not seizing the gold chain of one of the victims, by itself, is no ground to discredit the testimony of key witnesses who were examined on behalf of the prosecution, whose say is consistent, natural and trustworthy.” (Para 20)

The court held that “In that view of the matter, we are fully in agreement with the view taken by the trial court in recording the conviction against the appellants, as confirmed by the High Court. Therefore, no interference is called for with the concurrent findings recorded against the appellants. As discussed earlier it is also clear that there was a quarrel between the deceased about six months earlier to the incident and one accused regarding payment of rent of tractor. Further it is brought on record that there was animosity between them which is the motive for the crime. As such, the prosecution has established, beyond reasonable doubt, that all the accused have committed the offence with a common intention and participated in committing the crime. The trial court as well as the High Court has not committed any error in law or on facts, as such, the same are required to be upheld by this Court. As far as the judgments relied on by the learned counsel for the appellants are concerned, having regard to the facts of the case and the evidence on record, we are of the view that the abovesaid judgments would not render any assistance to support the case of the appellants.” (Para 21)

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Saptarshi Mukhopadhyay