CR.A/786/1987 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 786 of 1987 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 ? ========================================================= IMTIAZ HASAN PANJA & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR ND NANAVATI for Appellant(s) : 1 - 2. MR PD BHATE, APP for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 07/05/2008 ORAL JUDGMENT Appellants are original accused Nos.1 and 2 respectively. The appellants and one Hasan Mehmud Panja were charged with offence punishable under CR.A/786/1987 2/7 JUDGMENT section 302 read with section 114 of the Indian Penal Code. By the judgment and order dated 22nd September 1987 passed in Sessions Case No.28/85, learned Sessions Judge, Junagadh though acquitted original accused No.3, convicted original accused No.1 for offence under section 324 of the IPC and sentenced him to rigourous imprisonment for one year and fine of Rs.1,000/-. Accused No.2, appellant No.2 herein was convicted for offence punishable under section 304 Part II of the IPC. He was sentenced to RI for five years and fine of Rs.2,000/-. 2. As per charge Ex.1, it was alleged against the accused persons that at about 11.45 in the morning of 31.10.84, in the fish market of Jungadh town, they along with juvenile offender Mahmud Hasan had assaulted deceased Karim Mahmed with knife and caused his death and thereby committed offence punishable under section 302 read with section 114 of the Indian Penal Code. It was specifically alleged that accused No.1 had given a knife blow to the complainant causing simple injury. He was charged with offence punishable under section 324 of the IPC. Accused No.2 had given the fatal blow. He was, therefore, charged with offence under section 302 of the IPC. 3. Complainant, Osman Allarakha, PW-2 was examined at Ex.22. He stated that he was doing the business of selling fish in the fish market. On the date of the incident, his wife and his nephew had reached the CR.A/786/1987 3/7 JUDGMENT market at 7.00 O' clock in the morning. He himself had reached at 10.00 O' clock. Next to his stall, there is a stall of Hasan Mahmud Panja, who with the help of his three sons namely, Imtiaz Hasan, Iabal Hasan and Mahmud Hasan also sells fish there. At 10 O' clock when he reached, his wife told him that in the morning there was a quarrel with Imtiaz Hasan and Iqbal Hasan (who were the present appellants). Therefore, Karim Amad was explaining to Hasan Mahmud and his sons not to quarrel. The witness was standing close to Karim. Imtihaz Hasan thereupon got excited and gave a knife blow on the head of the witness. Iqbal Hasan gave a knife blow to Karim Amad. At that time, accused No.3 Hasan Mahmud and his third son Mahmud Hasan was standing nearby with knife in their hands and was shouting “kill them, kill them”. Karim was bleeding. Hearing the commotion, some 5 to 10 people rushed there. He and Karim were taken in rickshaw to the hospital. During treatment, Karim died next day. In the cross-examination, he agreed that as a trader in fish market, every one would carry knife for cutting fish. On the date of the incident, he, his wife and others were also carrying such knives. He, however, denied that when the incident took place, Karim was carrying knife or that he had gone to the stall of the accused and attacked them with his knife. 4. One Havabai Arab, PW-3 was examined at Ex.24. CR.A/786/1987 4/7 JUDGMENT She stated that she is also engaged in selling fish at the fish market. On the date of the incident, at 8 O' clock in the morning, the accused had a quarrel with her daughter Ayesha, wife of the complainant Osman. In the afternoon, Imtiaz had given a knife blow to Osman on the head and Iqbal had given a knife blow to Karim in his stomach. 5. Khatijaben Iqbal Juma, PW-4 was examined at Ex.25. In her deposition, she also stated that in the morning, there was quarrel about the place of selling the fish. In the later part of the day when Karim was trying to persuade the accused and when Osman was standing nearby, Imtiaz gave a knife blow on the head of Osman and Izbal gave a knife blow on the stomach of Karim. 6. Similar version was also given by Ayesha, PW-5, E.26. 7. The eye witness accounts is corroborated by the medical evidence. Dr.Hasmukhrai Maganlal, PW-1 was examined at Ex.20. He had carried out the post-mortem of deceased Karim. He had found three injuries on the stomach as indicated in column 17 of the post mortem report. He, however, explained that injury Nos.2 and 3 were on account of operations carried out. So far as injury related to knife blow is concerned, he had found the following injury: “Sutured wound of about 3.¾” length longitudinal CR.A/786/1987 5/7 JUDGMENT in direction over just rt. Side to mid line epigastiric region (original wound of 2” in length from case paper). He opined that death of the deceased was on account of bleeding resulting to shock. He stated that the injuries were in ordinary course of nature sufficient to cause death. 8. Insofar as the involvement of the accused in the incident is concerned, thus there is hardly any doubt possible. Consistently the eye witnesses stated before the Court that the accused as well as the complainant and other family members have been doing the business of selling fish in the fish market at Junagadh since sometime. On the date of the incident in the morning, there appeared to have been some quarrel between the two sides about the place of hawking. Later on, when Karim and the complainant Osman arrived, the two tried to persuade the accused upon which accused No.1 gave a knife blow on the head of the complainant and accused No.2 gave one knife blow to deceased Karim in his stomach. During treatment he died on the next day. 9. The weapons have been recovered by the police at the instance of the accused. Several eye-witnesses have given consistent accounts and no major contradictions have been extracted by the defence. Accused and the complainant and other witnesses were known to each other. The incident took place on broad day light. Identification of the assailants, CR.A/786/1987 6/7 JUDGMENT therefore pose no problem. In view of the above overwhelming direct evidence, which also gets corroboration from the medical evidence, there is no doubt in my mind that both the accused persons gave one blow each to the complainant and the deceased respectively. The learned Judge, therefore, rightly convicted original accused No.1, present appellant No.1 for offence under section 324 of the IPC since the blow that he gave caused only simple injury. On the other hand, accused No.2, present appellant No.2 gave one knife blow to the deceased on vital part of the body resulting in his death, the learned Judge considering the sudden quarrel and the fact that only one blow was given, convicted accused No.2 for offence under section 304 Part II instead of section 302 of the IPC. He has been sentenced to five years R.I. I see no possibility to interfere. 10. Insofar as appellant No.1 is concerned, however, he needs to be granted the benefit of probation. The incident took place way back in the year 1984. The said accused was aged about 20 years at that time. It would, therefore, not be proper to send him to jail at such a distant point of time. He does not have any criminal antecedents nor there was anything on record to suggest that he misused his liberty during trial or pending appeal. Though the conviction and sentence of this appellant is confirmed, he is being given the benefit of probation. CR.A/786/1987 7/7 JUDGMENT 11. So far as appellant No.2, Iqbal Hasan is concerned, he has been convicted for much graver offence causing death of a young boy. He, therefore, shall have to serve out the sentence as imposed. 12. In the result, appeal is disposed of in following terms: (i)conviction and sentence of both the appellants are confirmed. (ii)Appellant No.1, original accused No.1, however, is given the benefit of probation. He, therefore, shall not have to serve out the sentence if he executes a bond before the Trial Court of maintaining peace and good behaviour for a period of one year. Such bond shall be executed latest by 30th July 2008. His bail bond stands cancelled. In case of breach of the bond, he shall have to serve out the sentence. (iii)Conviction and sentence of appellant No.2 is maintained. Bail bond stands cancelled. He shall, however, have time to surrender upto 30th June 2008. (Akil Kureshi, J.) (vjn)