CR.A/1513/2003 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1513 of 2003 With CRIMINAL APPEAL No. 1276 of 2003 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 ? ========================================================= RAFIKBHAI @ HAKUDI KASAMBHAI KHATAKI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS RUKHSANA M PATHAN for Appellant in CR.A.No.1513 of 2003 MR LR PATHAN for the appellant in Cr.a.No.1276 of 2003 MR PD BHATE, for Opponent(s) ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/01/2008 ORAL JUDGMENT Both the appeals arise out of a common judgment CR.A/1513/2003 2/8 JUDGMENT and order dated 15.9.2003 rendered by the learned Additional Sessions Judge, Amreli in Special Case No.38 of 2003. 2. Rafik @ Hakudi Kasambhai, appellant in Criminal Appeal No.1513 of 2003 was original accused No.1 and appellant in Criminal Appeal No.1276 of 2001, Ashraf was original accused No.2. These appellants shall hereinafter be referred to as accused No.1 and accused No.2 respectively. Charge against the accused was that on 11.4.2003 at 10.30 at night, accused assaulted complainant Vijay Fulchandbhai. Accused No.1 had a knife with which he gave one blow to the complainant on his stomach. At that time, accused caught hold of the complainant. They were, therefore, charged with offence punishable under section 307 of the Indian Penal Code. They were also charged with offence punishable under the Bombay Police Act well as under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. They were acquitted of the offence under the Bombay Police Act as well as the Atrocities Act. They were, however, convicted under section 307 of the Indian Penal Code. Both the accused were sentenced to rigorous imprisonment for 5 years and directed to pay fine. 3. Complainant Vijay Fulchand, PW-6 was examined at Ex.23. He stated that he had married to one Vimlaben. Out of the marriage, he had two sons and one daughgter. About 2½ years before the CR.A/1513/2003 3/8 JUDGMENT incident, his wife had gone with accused No.2. She at that time taken away his daughter. His sons were staying in a hostel at Paldi. On the date of the incident, in the afternoon, witness received a phone call from Rector of the hostel informing him that his wife had come to the hostel with two other persons to take away his sons with them. He instructed the Rector not to hand over the boys to his wife. On that day, by night, when he was sitting at his brother Jayantibhai's house, the accused persons came there in a rickshaw and started quarreling with the witness asking him why he did not allow to take away the boys. Accused No.1 had a knife with him. He then ran after the complainant and accused No.2 caught hold of his brother Jayantibhai. Accused No.1 gave a knife blow to the complainant on his stomach. Thereafter, they ran away in a rickshaw. In the cross-examination, he denied the suggestion that he himself was trying to inflict knife injury to his wife at which time accused intervened and in a scuffle, he received knife injury by accident. 4. Brother of the complainant, Jayantibhai, PW- 7 was examined at Ex.28. He stated that on 11.4.03 at 10.30 at night when he was at his house, accused No.1 came with an open knife. Accused No.2 was also with him. They inquired about the complainant. The complainant was sitting in the varandah. Accused No.1 saw him and ran after him with a knife. He tried to intervene, but accused No.2 caught hod of him. CR.A/1513/2003 4/8 JUDGMENT Accused No.1 gave a knife blow to his brother Vijay on his stomach. He thereupon fell down on the ground bleeding. 5. Bharatkumar, PW-10, Ex.29, also claimed to be an eye-witness stated that he resides in the same locality where the house of Jayantibhai is situated. He heard some shouts. He thereupon came out of the house and saw many people gathered at the house of Jayantibhai. Accused were shouting. Accused No.1 gave a knife blow to the complainant in his stomach. The witness thereafter helped Jayantibhai in shifting the complainant to the hospital in a Maruti van. 6. Prosecution also examined Dr.Atulbhai Devmurari, PW-1, Ex.11. He had treated the complainant on 11th April 2003 since he was posted as a Medical Officer at Civil Hospital at Amreli. He found that the complainant had received a stab injury of 5 c.m. x 3 c.m. which was deep upto stomach cavity. The injury was on the left side of the naval parallel to the last rib. Other than this, no other injury was noticed. He opined that the injury was of serious nature and could have possibly caused death. He was shown the muddamal article knife. According to him, such injury could have been caused by the knife. 7. It is primarily on the basis of the above evidence that the prosecution sought to establish the charge against the accused persons. CR.A/1513/2003 5/8 JUDGMENT 8. Insofar as the incident is concerned, as narrated by the complainant, PW-6 and his brother Jayantibhai, PW-7, there appears to be hardly any doubt or dispute possible. Both brothers have consistently and categorically stated that the accused came to the house of Jayantibhai at about 10.30 at night looking for the complainant. Accused No.1 had a an open knife in his hand. Accused No.2 had accompanied him. Upon seeing the complainant, accused No.1 ran after him and gave one knife blow in the stomach causing serious injury. Accused No.2 at that time caught hold of PW-7 Jayantibhai to prevent him from helping his brother to avert the assault. Nothing substantial has come out in the cross- examination of these two witnesses so as to convince this Court to discard their versions. Nature of blow described by the witnesses gets support and corroboration from the medical evidence. PW-1, Dr.Atulbhai also identified a corresponding stab wound on the stomach of the complainant. He had treated the complainant immediately after the incident. He had given a certificate in this respect. The motive behind the crime also was properly established before the Court. There appears to be hardly any doubt about the fact that the complainant and his wife had strained relations. She was not residing with the complainant since some time before the incident. She had, while leaving her husband, taken away her daughter. Sons of the couple, however, remained in custody of the husband. They were staying CR.A/1513/2003 6/8 JUDGMENT in a boarding school. On the date of the incident, wife tried to take the boys away from the boarding school. She was accompanied by two unknown persons. The complainant thwarted the attempt and instructed the Rector not to permit his wife to take away his sons. The incident happened on the very same night. Accused No.2 is stated to have relations with the wife of the complainant. He along with accused No.1 came searching for the complainant and when they found him at the house of Jayantibhai, without any further ado, inflicted one knife injury on his stomach. Accused No.1 actually inflicted the injury with a knife which he was carrying. Accused No.2 though did not cause any injury, helped accused No.1 in doing so by catching hold of Jayantibhai, brother of the complainant and thereby prevented Jayantibhai from intervening and averting the attack. 9. Two questions, however, remain. One is with respect to the exact offence that the accused can be said to have been committed and the second is with respect to the respective roles played by the accused in the incident. 10. At the outset, it may be noted that it is not the case of the prosecution that there was a privious meeting of mind between two accused persons to cause such bodily injury which is likely to cause death. Though PW-7, Jayantibhai tried to suggest that accused came looking for the complainant stating that they would like to finish him, this is somewhat CR.A/1513/2003 7/8 JUDGMENT at a variance with the version given by the complainant himself. The complainant was also present when the accused persons arrived at the house of Jayantibhai. He, however, did not attribute such utterances to the accused persons. The role of accused No.2 thus in the entire incident was of catching hold of Jayantibhai, brother of the complainant. The actual blow was given by accused No.1 to the complainant. To my mind, therefore, the role played by accused No.2 cannot be equated with the role of accused No.1. It can further be seen that admittedly only one blow was given by accused No.1 with the knife which he was carrying. The resultant injury though serious cannot be termed as one which was caused with the intention of causing such bodily injury as was likely to cause death or with an intention of causing bodily injury sufficient in ordinary course of nature to cause death, nor can the injury be such that the person committing knew that it was imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. To my mind, therefore, the nature of blow given by accused No.1 and the resultant injury is such that even if death has been caused, conviction under section 302 of the Indian Penal Code would not have been justified. Appropriately, the offence would fall under section 304 either part I or part II. Therefore, conviction of the accused under section 307 of the Indian Penal Code is not justified. Under section 308 of the Indian Penal Code, punishment is prescribed for any CR.A/1513/2003 8/8 JUDGMENT act done with such intention or knowledge or circumstances that if the offender by the act caused death, he would be guilty of culpable homicide not amounting to murder. To my mind, therefore, conviction of both the accused is required to be converted into one under section 308 of the Indian Penal Code. As noted earlier, the role played by accused No.2 is far less grave as compared to the role played by accused No.1. Section 308 prescribes maximum punishment of 7 years. Accused No.2 has already undergone rigorous imprisonment for a period just short of two years. His sentence is therefore reduced to one already undergone. Sentence of accused No.1 is reduced to three years. 11. Under the circumstances, following order is passed: Conviction of both the accused is converted to one under section 308 of the Indian Penal Code. Sentence of accused No.1 is reduced to three years of rigourous imprisonment. Sentence of accused No.2 is reduced to one already undergone. Direction for payment of fine remains unaltered. The appeal is disposed of accordingly. (Akil Kureshi, J.) (vjn)