CR.A/337/2004 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 337 of 2004 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 ? ========================================================= DAUD AMAD KHATAKI - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR NV GANDHI for Appellant(s) : 1, MR PD BHATTE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 10/01/2008 ORAL JUDGMENT 1. The appeal arises out of judgement and order dated 10.2.2004 rendered by learned Sessions Judge, Fast Track Court, Junagadh in Sessions CR.A/337/2004 2/7 JUDGMENT Case No.129/1998. 2. The appellant herein was original accused No.1 who is charged with offences punishable under Section 307 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act. It may be noted that the other accused who were also attributed the same offence, they were acquitted by the trial Court. 3. Broadly stated, the prosecution case was that the appellant had some quarrel with the brother of the complainant. On 23.6.1998, at 20:15 hours, the appellant and other accused therefore, assaulted the complainant. The appellant gave five knife blows and original accused no.2 had at that time held the complainant. 4. Complainant Hasambhai Badubhai-PW6 was examined at exh.40. He stated that on the date of incident, he had gone to the barber's shop for a shave. After shaving when he came out, the appellant met him and started quarreling with him about the previous quarrel that he had with the elder brother of the witness Iqbalbhai. Thereafter, at about 8:15 at night, the witness left the place by bicycle to reach his house. When he reached the lane near the ice factory, the appellant pulled him down. His brother held him and the appellant gave knife blows on his CR.A/337/2004 3/7 JUDGMENT back, on his thigh, on his waist and on his shoulder. At that time his cousin brothers Hasam and Ali arrived upon which the accused person ran away. He was thereupon shifted to a hospital in a rickshaw. He was first treated at a Government hospital at Junagadh. After primary treatment he was shifted to Rajkot for further treatment. 5. Hussenbhai Mohamadbhai-PW7 was examined at exh.41. He stated that on the date of incident he had parked his Rickshaw near Alankar Talkies and he was awaiting there. His brother had entered the barber shop at about 7:30. About half an hour thereafter, he came out. There was a quarrel with the appellant and his brother. His brother had thereafter, left on his bicycle. When he reached near the ice factory, appellant assaulted him with wife and gave him repeated knife blows. 6. Alibhai Karimbhai-PW8 was examined at exh.42. He stated that he was also standing near Alankar Talkies on the date of incident. His cousin Hasamhai had passed on his bicycle. He thereafter, heard shouts of people. He found Hasambhai near the ice factory and the appellant had given him knife blows. 7. Prosecution had also examined Dr.Sumit Bharatbhai Jagani-PW1 at exh.16. He was the CR.A/337/2004 4/7 JUDGMENT medical officer at Junagadh hospital. He had treated the complainant initially when he was brought there at 9 O' clock at night. He had recorded five injuries on the body of the complainant. These injuries correspond to knife blows allegedly given to the complainant by the appellant. 8. Dr. Mahendra Chunilal Chavda-PW3 was examined at exh.22. He had also treated the complainant. He was the medical officer at Rajkot General Hospital where the complainant was referred from Junagadh for further treatment. 9. From the evidence on record, it can be seen that insofar as involvement of the appellant in the incident is concerned, there is hardly any doubt possible. The complainant himself was an eyewitness who had himself received the injuries. The appellant earlier had a quarrel with brother of the complainant. On this account, he had a verbal altercation with the complainant on the date of incident. When the complainant left the barber shop on his bicycle, the appellant pulled him down and gave repeated knife blows to him. The version of the complainant was well supported by Hussenbhai Mohamadbhai-PW7 and Alibhai Karimbhai-PW8. Hussenbhai-PW7 had reached the spot immediately since he was standing closed by after parking his rickshaw. He had seen the appellant giving CR.A/337/2004 5/7 JUDGMENT the blows to the complainant. Alibhai Karimbhai- PW8 reached the spot shortly thereafter. He had seen the complainant leaving the barber shop on bicycle. Soon thereafter, he heard shouts of people. He rushed to the spot and found that the complainant was stabbed by the appellant. It may be that Alibhai Karimbhai-PW8 may not have actually witnessed the incident contrary to what he tried to suggest, fact however remains that he reached the spot within seconds after the incident had taken place. His testimony therefore, would be useful to corroborate the eyewitness account of PW-5 and PW-6. 10.Additionally, the medical evidence also fully corroborates the eyewitness account. PW1 and PW2 are the two doctors who had treated the injured at Junagadh and Rajkot hospital respectively. They have detected five stab injury on the body of the complainant corresponding to the injuries inflicted on him by the appellant. 11.The guilt of the appellant therefore, remained firmly established. Though there are minor contradictions such as who had accompanied the injured to the hospital and whether Alibhai Karimbhai-PW8 himself would have occasion to witness the incident. Nevertheless none of these contradictions are so good to shake confidence of other evidence produced. Conviction of the appellant was therefore, perfectly justified. CR.A/337/2004 6/7 JUDGMENT Though it was submitted that at best the appellant could have stated to have committed offence punishable under Section 326 of the Indian Penal Code and not attempt to murder punishable under section 307, I am unable to concur. The appellant had given indiscriminate knife blows on the body of the complainant and blows could have been fatal. It is true that only third injury indicated by Doctor was serious in nature; the fact remains that the appellant gave several knife blows on the body of the complainant. 12.It can however, be seen that the appellant cannot be attributed intention to cause such injuries as would result into death. He however, ought to have knowledge that such injuries could in ordinary course of nature cause death. This coupled with the fact that the appellant is a married person and also has children to support would convince me that the punishment needs to be reduced to some extent. The appellant is in custody since February 2004. He has thus undergone nearly four years of actual sentence. With remission available as per rules, this period would come close to total sentence of five years that he has been awarded. 13.In facts and circumstances of the case, therefore, it would be appropriate to reduce the sentence to one already undergone by the CR.A/337/2004 7/7 JUDGMENT appellant. 14.In the result, though conviction of the appellant is sustained, sentence is reduced to one already undergone. He shall be released if not required in any other criminal case. 15.The appeal is disposed of accordingly. (Akil Kureshi,J.) (raghu)