CR.A/216/1995 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 216 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PATEL DINESHKUMAR - Appellant(s) Versus STATE OFGUJ - Opponent(s) ========================================================= Appearance : MR JM BAROT for Appellant(s) : 1, MS PUNANI APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 13/05/2008 ORAL JUDGMENT 1. Appellant is the original accused. By impugned Judgment and order dated 10.3.1995 passed by CR.A/216/1995 2/15 JUDGMENT learned Additional Sessions Judge, Patan in Sessions Case No.116 of 1992, he was convicted for offence punishable under Section 307 of Indian Penal Code and sentenced to R.I. for 5 years. Fine of Rs.500/- was also imposed on him. In default of payment of fine, he was ordered to undergo S.I. for one month. 2. As per charge Exh.6, it was alleged against the accused that the accused was married to the complainant, Pragnaben about 7 years before the date of incident. Pragnaben was serving as a Teacher. The accused used to harass her for money. On 12.8.1991, the accused had quarreled with his wife. Thereafter, the complainant had gone to her school for duty. The accused had also gone there at about 9 O'Clock in the morning with intention to commit her murder. He had assaulted the complainant with a pair of scissors and caused serious multiple injuries. Injuries were such that if death had been caused, the accused would have been guilty of murder. It was further alleged that the accused had insulted the complainant in public by using foul language and he also prevented her from discharging her duties as primary teacher. He was, CR.A/216/1995 3/15 JUDGMENT therefore, charged with commission of offences punishable under Sections 498-A, 307, 504 and 332 of IPC. 3. It may be noted that the accused was found guilty only of offence punishable under Section 307 of IPC and acquitted for rest of the charges. 4. PW-1, Pragnaben Kantilal Patel, the complainant, was examined at Exh.13. In her deposition, she stated that marriage between her and the accused had taken place in the year 1984. Since 1986, she was serving as a Teacher. Her husband was engaged in diamond polishing work. He used to go for work irregularly because of which there were quarrels between them about money. Her husband used to take away her salary. 4.1 On 12th August, 1991, as usual her husband had made demand for money. She had, however, refused to give any money to him. This led to a quarrel between the husband and wife. After the quarrel, she had gone to the school. It was morning school on that CR.A/216/1995 4/15 JUDGMENT day. During the recess, she did not go home because of her fight with the husband. She was sitting in a class room. Sometime thereafter, her husband came to the school and told her to accompany her to Sidhpur which she refused, at which time, her husband got up to spit near window behind her and gave one blow on her neck upon which she had screamed. She got up and tried to run but the accused pushed her to the ground. He sat on her legs and with the pair of scissors gave repeated blows to her. Some three or four blows on the left arm and on the right arm, one blow on her chest between her breast on her rib, on her elbow, on her left knee and on her left thigh. Due to this attack, she had started crying for help. Upon hearing her shouts, the Principal of the School, Narotambhai and another teacher Laxmanbhai had arrived and caught hold of the accused and snatched the scissor from his hand. As her condition was very serious and she was bleeding profusely, the Principal had taken her to hospital in a jeep. 4.2 In the cross-examination, she admitted that she did not disclose about the irregularity in CR.A/216/1995 5/15 JUDGMENT diamond polishing work of her husband leading to quarrels between the couple about the money. She was shown her own letters dated 13.4.1985, 22.2.1985 and 8.4.1985 written by the accused. She admitted to have written the letters which were exhibited at Exh.15,16 and 17. She denied the suggestion that she had extra marital relations with one Rakesh Patel which was the cause of fight between her and the accused on the date of the incident. She denied that the accused had come across the letters written by the said person to her due to which, there was a quarrel or that this was cause for the quarrel at the school. 5. Perusal of the letters Exhs. 15, 16 and 17 written by the complainant to the accused would reveal that at the relevant time, there were major differences between the couple and the complainant had showed her desire in no uncertain terms to seek divorce from the accused. She had repeatedly stated that she was not willing to reside with him. Significantly, however, these letters were written in the year 1985 whereas incident took place in the year 1991 and there is nothing on the record to suggest CR.A/216/1995 6/15 JUDGMENT that the marital discord between the husband and the wife continued in the interregnum period. In fact, from the deposition of the complainant, it can be gathered that after the said letters were written, the wife gave birth to a daughter and a son also. 6. Laxmanbhai Ranchhodbhai Patel, PW-2 Exh.18 was a co-teacher working in the same school. In his deposition, he stated that on the date of the incident, he was serving as an Assistant Teacher in the school at village Kuvara. On the date of the incident, there was recess in the school at 9 O'Clock. He and the Principal were sitting in the Principal's office when they heard some shouts. He and the principal- Narotambhai, therefore, rushed out of the office. They realized that the shouts were coming from 4th standard class room, which was open. When they entered the room, they saw the accused hitting his wife with the scissors and she was lying down profusely bleeding and the accused was sitting on his wife and was giving repeated blows with the scissors. He had saved Pragnaben from further beating and snatched away the scissors from the accused. The CR.A/216/1995 7/15 JUDGMENT principal had gone to get a vehicle and thereafter taken Pragnaben to a hospital in a jeep. Pragnaben's entire body was blood-strained and there were blood stains in the class room also. 6.1 In the cross-examination, he denied that he had produced the scissors which were not used for commission of the offence. 7. PW-3, Shivrambhai Shambhubhai Patel, was examined at Exh.19. He was having a cutlery shop in the village at the relevant time. He stated that on 12.8.1991 between the 8 and 8.30, the accused had come to his shop and stating that his wife wants to learn stitching work, had asked for a pair of scissors. He had sold the scissors to the accused for Rs.30/-, the payment thereof he had kept pending. 7.1 In the cross-examination, he admitted that he had not produced any bill for sale of scissors before the Police. 8. Dr. Rajesh Bhargav, PW-7 was examined at CR.A/216/1995 8/15 JUDGMENT Exh.33. He was the Medical Officer at the Municipal Hospital at Sidhpur where the complainant was brought for treatment. He had found several stab injuries on the body of the complainant. In fact, he had listed as many as 15 different injuries on several parts of the body including on the neck, shoulders, chest on the hips etc. He stated that such injuries could have been caused by the scissors. He opined that injuries on the neck, chest or on the side could have caused death if there was excessive bleeding or on account of injuries to vital internal organs. 9. The Police had collected the scissors as well as the blood stained clothes of the complainant by drawing panchnama which were produced before the Court. 10. The accused himself entered the witness box as DW-1. In his deposition, he stated that on 12.8.1991 when he was looking for his shirt and pants from his wife's suitcase, he found the letter which was written by Rakesh to his wife. In the letter his wife was told to take divorce. There was also mention CR.A/216/1995 9/15 JUDGMENT of photographs having been taken at Deepkala. Upon reading the letter, he had got angry. He had tried to reason with his wife but she did not relent. He had tried to persuade her and had gone to the school. Upon reading the letter, he was very disturbed. He, therefore, followed his wife to the school. In the recess, he had gone inside the room and again tried to pursue his wife. She was, however, giving evasive replies. At that time, there was scissor lying on her table. He had hit her with the scissor out of anger. He stated that the letter was a love letter. 11. Primarily on the above evidence, the prosecution case was built. 12. At the outset, it can be seen that so far as the involvement of the appellant in causing serious injuries to his wife is concerned, there is virtually no dispute. Not only the manner in which the cross examination of the witnesses and in particular, the complainant was carried out, but from the evidence of the accused himself, it can be easily seen that he admitted the commission of the act. It was thus CR.A/216/1995 10/15 JUDGMENT proved beyond doubt that the accused assaulted his wife with the pair of scissors and gave several blows all over her body. As many as 15 injuries were noted by the Doctor which correspond to the evidence of the complainant. Such stab injuries were found on the neck, on the chest, near the ribs, on the elbow, on the hips, on the palm etc. of the complainant. The accused thus repeatedly stabbed his wife with the pair of scissors causing serious injuries, some of which, were also on the vital parts of the body. Doctor also opined that injuries could have been life threatening. He stated that if there was more bleeding, the injuries could have been fatal. 13. Only defence taken by the accused was that there was provocation from the wife. He had got excited because he had on the date of the incident read the love letter written by one Rakesh Patel to his wife. The defence seem to be aiming at establishing that on account of sudden and grave provocation, even if, the death of the complainant had occurred, the offence would be one of culpable homicide not amounting to murder and, therefore, the CR.A/216/1995 11/15 JUDGMENT attempt for such an offence would be punishable under Section 308 of IPC and not under Section 307. 14. The defence of the accused needs to be examined in light of the evidence on record. 15. The complainant suggested before the Court that the quarrel in the morning of 12th August, 1991 took place on account of the usual demand by the husband for money. She also stated that her husband was not working regularly and always made demand for money from her. On the other hand, the accused suggested that the quarrel was on account of affair of her wife about which the accused came to know in the morning of 12th August, 1991, through a letter which he came across, allegedly written by one Rakesh Patel. 16. So far as money demand is concerned, the same was never stated by the complainant before the police. The statement that her husband was going for work irregularity and was continuously making money demands from her and this was the reason for the CR.A/216/1995 12/15 JUDGMENT fight between the couple in the morning of 12th August, 1991 was stated by the complainant before the Court for the first time. There were thus material improvements on this count. 16.1 On the other hand, the accused also failed to establish the existence of so called love letter from one Rakesh Patel. Except for his bare words, there was nothing on the record to establish these allegations. Though, he produced the letter before the Court, he did not prove the authorship of the letter. The letter was,therefore, not exhibited. 16.2 The reason for quarrel between the husband and the wife thus remained unproved. What is, however, not in dispute is that there was a serious quarrel between the two in the morning of 12th August, 1991. This is so much as admitted by the accused himself. Question is, was there a sudden and grave provocation to bring the ultimate offence within the parameters of Section 308 of IPC. In other words can provision of Section 307 be ruled out. CR.A/216/1995 13/15 JUDGMENT 17. Here again, both sides tried to lead contradictory evidence. Prosecution examined Shivram as PW-3, Exh.19, to show that the accused had shortly before the incident purchased the pair of scissors from the shop keeper. The accused in his deposition tried to suggests that the scissors were lying on the table in the class room of the complainant. 18. I find that the evidence of Shivram, PW-3 is quite believable. There is no reason for the independent witness to falsely implicate the accused. Even otherwise, there is no reason why the pair of scissors should be lying on the table of the primary school teacher in a class room when she had nothing to do with stitching and it is even the case of the defence that she was stitching or a craft teacher. 19. From the evidence as assessed above, it emerges that in the morning of 12th August, 1991, there was a fight between husband and wife after which wife went to attend her duty in the morning at about 9 O'Clcok. Accused reached the school armed CR.A/216/1995 14/15 JUDGMENT with the pair of scissors newly purchased. In the class room the husband and the wife again quarreled upon which accused gave as many as 14 to 15 blows to the wife on all parts of the body. He gave blows on the neck. When wife tried to run he pushed on her ground and sat on her legs and repeatedly stabbed. She was helped by co-teachers. The accused had sufficient time to think to cool down and to take a proper decision after the quarrel in the morning. His wife left for the school. His assertion about revelation about his wife's extra marital affair remained unproved. The dispute was after the quarrel in the morning with a premeditated desire to cause serious bodily injuries. He armed himself with the pair of scissors, went to the class room during recess time, stabbed his wife several times on different parts of the body including some vital parts. The offence committed by the appellant -original accused, therefore, was rightly held to be one punishable under Section 307 of IPC. There was no case of sudden provocation and the offence cannot be converted into one punishable under Section 308 of IPC. His conviction, therefore, was justified. CR.A/216/1995 15/15 JUDGMENT Considering the nature of injuries caused and the proof of injuries, caused by the accused and other attending circumstances, learned Judge sentenced him to 5 year of R.I. which also I do not find excessive. 20. Request of the counsel for the appellant to give benefit of probation, considering the facts and circumstances of the case is refused. 21. Under the circumstances, I find no merits in the appeal. Appeal is, therefore, dismissed. Bail bond stands cancelled. Appellant, however, shall have time upto 30th June, 2008 to surrender. (AKIL KURESHI, J.) ashish//