CR.A/969/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 969 of 2006 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE J. C. UPADHYAYA =============================================== 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 ? =============================================== TANSUKHBHAI SHANTIBHAI GOHEL. Versus STATE OF GUJARAT. =============================================== Appearance : Mr M. IQBAL A SHAIKH for the Appellant. Mr KC SHAH, APP, for the Respondent. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR.JUSTICE J. C. UPADHYAYA Date : 17/11/2008 ORAL JUDGMENT :- (Per : A. L. DAVE, J.) CR.A/969/2006 2/7 JUDGMENT 1. The appellant is convicted for an offence punishable under Section 307 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for eight years and to pay a fine of Rs.20,000/-, in default, to undergo simple imprisonment for two years. He is also convicted for offence punishable under Section 135 of the Bombay Police Act and sentenced to undergo simple imprisonment for one month. Both the sentences are ordered to run concurrently. The judgment was delivered by Sessions Court, Bhavnagar, in Sessions Case No.38 of 2004. 2. The appellant was working with Govindbhai Kanjibhai Jethwa Koli of Mafatnagar Zupadpatti, at Kumbharwada, on Bhavnagar Ruvapari Road and because of some earlier quarrel, the appellant assaulted Govindbhai Kanjibhai around 9.00 P.M. on 10th May, 2003 with a knife and caused injuries on abdomen, chest and back. He was, therefore, charge-sheeted for offence punishable under Section 307 of I. P. C. on the basis of an F. I. R. lodged by Rupaben, wife of Sanjaybhai Madhabhai Rathod and daughter of injured-Govindbhai Kanjibhai. The Magisterial Court, Bhavnagar, committed the case to the Court of Sessions and Sessions Case No.38 of 2004 came to be registered. The Sessions Court framed charge against the accused at Exhibit 6 for offences punishable under Section 307 of I. P. C. and Section 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and claimed to be tried. 2.1 The Trial Court found that the prosecution was successful in establishing the charges against the accused and recorded his conviction and passed the sentence, as stated in the earlier part of the judgment. This has given rise to the present appeal. CR.A/969/2006 3/7 JUDGMENT 3. Learned Advocate, Mr. Shaikh, for the appellant submitted that the appellant was in jail during the trial for a period of three months and 21 days and he is in jail since conviction, i.e. 28th February, 2006. The main submission is that the prosecution case depends on evidence of Rupaben, the first informant, and injured, Govindbhai, at Exhibits 18 and 51, respectively. The medical evidence is of Dr. Varshaben, at Exhibit 28. Mr. Shaikh submitted that there are contradictory versions emerging from their evidence as to the site of injury on person of the victim. Apart from that, Mr. Shaikh submitted that if the evidence of Rupaben, Govindbhai and Dr. Varshaben is considered together, it would be clear from their contradictions that all the injuries cannot be attributed to the accused. He also submitted that, even if that is done, all the injuries are simple in nature as per the medical evidence and there is no evidence to say that they are sufficient in ordinary course of nature to cause death. He, therefore, submitted that the accused could not have been convicted for the offence punishable under Section 307 of the I. P. C. According to him, at the most, it would constitute an offence punishable under Section 324 of the I.P.C. and, if the Court is of the opinion that the conviction is required to be altered to one under Section 324 of the I.P.C., then appropriate alteration in quantum of punishment may also be made. 4. The appeal is opposed to by learned Additional Public Prosecutor, Mr. Shah. According to him, the evidence of Rupaben and Govindbhai, so far as involvement of the appellant is concerned, is unchallengeable, though there are some discrepancies so far as the number of injuries and the site of injuries are cocnerned. Mr. Shah submitted that in spite of the discrepancies, the fact remains that the injuries were found on CR.A/969/2006 4/7 JUDGMENT person of the victim, which he attributes to the appellant and, therefore, involvement of the appellant be given a second thought. So far as the nature of offence is concerned, learned Additional Public Prosecutor, Mr. Shah, submitted that three injuries with knife have to be seriously viewed. He, therefore, submitted that the appeal may be dismissed. 5. On examining the evidence of P.W.4-Rupaben Govindbhai Jethwa (Exhibit 18), the first informant, it is found that she is the daughter of the victim. She says that she lost her mother, Shantiben, many years back and, thereafter, her father is staying separately in a hut whereas she stays with her grandmother, Liliben. She says that, at the time of the incident, around 8.30 P.M., she was going to give water to the victim when she saw the appellant assaulting the deceased with a knife. She says that she saw the appellant inflicting one knife blow in the abdominal area of the victim. She did not notice any other blow being given or any other injuries. She also says that on seeing the assault being committed by the appellant on the victim, she became unconscious. During cross-examination, she says that her father was sleeping on a cupboard put on its side. She denies the suggestion that she became unconscious on seeing her father bled and asserts that she saw the appellant hitting her father with a knife. She also denies the suggestion that, thereafter, she went to her home and asserted that she became unconscious on-the-spot. She went to hospital on regaining consciousness. The police came to her home at about 9.00 P.M. and recorded her F.I.R. She states that Exhibit 19 is the F.I.R. given by her. 6. Injured-Govindbhai is examined at Exhibit 51 as P.W.9. He says that while he was preparing to sleep, the appellant had come and inflicted knife blow on abdominal portion. Thereafter, he CR.A/969/2006 5/7 JUDGMENT started running. The victim says that she raised shouts and his daughter arrived, so also his mother-in-law. The victim says that one knife blow was given on the abdomen and the other was given on the groin and, while the appellant attempted a third blow, he caught hold of his hand. He says that his daughter, Rupa, was coming to give him water and saw the incident. 6.1 In cross-examination, he admits that he has not stated before police that while the accused was inflicting the third blow, he caught hold of his hand. Rest of the suggestions are denied by him. 7. The doctor is examined at Exhibit 28. She says that she was working as Medical Officer in Sir T Hospital of Bhavnagar on 10th May, 2003, when Govindbhai Kanjibhai was brought before her at 8.45 P.M. The history was given by the patient's mother-in-law to the effect that knife blows were given by Tansukhbhai about half an hour back. The patient was conscious, however, the pulse was missing. On examining, following injuries were found :- (1) A stab would of 8 cm. X 2 cm. bone deep in the middle of lower part of chest between free margins of 10th and 12th ribs. (2) Incised wound of 5 cm. X 1 cm. Muscle deep over middle of chest on back in between two scapulae. The doctor then further says that both the injuries were simple in nature and the injuries were possible with a knife. During cross- examination, she admits that when she examined the patient, two injuries in front and two injuries in the back were noticed. CR.A/969/2006 6/7 JUDGMENT 8. What emerges from these pieces of evidence is that both Govindbhai and Rupaben indicate involvement of the appellant in the incident. This aspect in the deposition has virtually remained unchallenged. It is also found that there are some discrepancies about the number of injuries and the site of injuries as well. But the fact remains that at least one blow is commonly attributed by the two witnesses to the appellant. It also emerges that all the three injuries, even if accepted to be attributed to the appellant, were simple in nature and there is no iota of evidence to show that they were sufficient in ordinary course of nature to cause death. Resultantly, the evidence can be said to indicate involvement of the appellant in an offence punishable for simple hurt with a deadly weapon like knife, but it is difficult to accept that knowledge or intention can be attributed to the appellant about the likely death of the victim by causing the injuries. 9. As a result, the involvement of the appellant has to be accepted and upheld, but the conviction under Section 307 of the I.P.C. deserves to be altered to one under Section 324 of the I.P.C. 10. Now comes the question whether the sentence calls for any interference. Offence punishable under Section 324 of the I.P.C. is punishable with imprisonment of either nature for three years or fine or both. The appellant is in jail for nearly three years and, therefore, the ends of justice would be met if the conviction of the appellant is altered from one under Section 307 of the I.P.C. to one under Section 324 of the I.P.C. and the sentence is reduced to the period of imprisonment already undergone by him. 10.1 So far as fine is concerned, we are informed that the CR.A/969/2006 7/7 JUDGMENT appellant has paid the fine of Rs.20,000/-. The Trial Court ordered that if the fine is paid, an amount of Rs.10,000/- shall be paid to the victim by way of compensation. In light of the alteration in the conviction, punishment of payment of fine also needs to be reconsidered. Applying the golden principle that the punishment should commensurate with the gravity of the crime, we are of the view that the punishment in the form of fine also needs to be altered from Rs.20,000/- to Rs.11,000/- without any change in the direction to give compensation to the victim. 11. In the result, the appeal is partly allowed. The conviction of the appellant is altered from one under Section 307 of the I.P.C. to one under Section 324 of the I.P.C. and the punishment awarded by the Trial Court is also altered and the appellant is sentenced to undergo imprisonment for the period already undergone by him. The appellant be set at liberty forthwith, if not required in any other case. The fine imposed is altered from Rs.20,000/- to Rs.11,000/-, out of which, Rs.10,000/- shall be payable to the victim as compensation. The appellant would be entitled to refund of an amount of Rs.9,000/-, being the excess amount of fine, if the fine is already paid. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt