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CR.A/969/2006 7/ 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.) 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.
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 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 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.
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 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. ]
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