(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) 1. These appeals arise out of the judgment and order dated 21.07.2011 passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad in Sessions Case No.237 of 2009, whereby the learned Additional Sessions Judge has convicted accused – appellant of Criminal Appeal No.1130 of 2011 for the offence punishable under Section 307 IPC and awarded sentence of 7 years rigorous imprisonment with fine of Rs.3,000/ and in default of payment of fine, 1 year’s simple imprisonment. Against the aforesaid judgment and order, the original accused No.1 has preferred the aforesaid Criminal Appeal No.1130 of 2011 questioning his conviction and sentence, whereas, the State has preferred Criminal Appeal No.1179 of 2011 for seeking enhancement of the sentence inflicted upon both the accused.
2. As both the appeals arise out of the common judgment and order, these appeals are decided by this common judgment.
3. Precisely, the case of the prosecution is that the Usmanbhai Mohmadbhai Chopda (hereinafter referred to as the ‘victim’) as well as both the accused are near relatives and their agriculture lands are situated on the bank of river Bhadar near Dhandhuka. There was continuous quarrel regarding boundary of the land belonging to the accused as well as the victim. Due to aforesaid dispute, on 27th July 2009, when the victim went to his field, he noticed that the accused ploughed the land belonging to him. In consequence whereof he asked the accused why they did so, to which accused got excited and replied that the lands belonging to their father and thereby they took out quarrel and accused No.2 Ganibhai caught hold of him and accused No.1 inflicted successive knife blows on his abdomen and head due to which he fell down. At that time, one girl Roshan informed Ismailbhai. Thereafter, they took the victim to the Refral Hospital, Dhandhuka, where, upon examination, the Doctor noticed serious injuries and therefore he was referred to the V.S.Hospital, Ahmedabad on the same day where he was admitted as an indoor patient and treated for about 29 days. Due to injuries, the clothes worn by the victim i.e. lungi, banyan and shirt were stained with blood. Ismailbhai, soninlaw of the victim, thereupon, lodged the complaint with Dhandhuka Police Station. Thereupon, investigation was carried out. The statements of various witnesses were recorded. Panchnamas were drawn. The muddamal articles recovered under various panchnamas were sent for analysis at Forensic Science Laboratory. The chargesheet was filed before the concerned Court. The case was committed for sessions trial. The charge was framed. The learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad has rendered his judgment of conviction and sentence dated 21.07.2011 in Sessions Case No.237 of 2009 inter alia convicting the present appellant – original accused No.1 and sentencing him to undergo 7 years rigorous imprisonment with fine.
4. The learned Additional Sessions Judge framed charge at Exh.5 inter alia alleging that the accused, due to previous animosity regarding boundary of the agriculture field, at about 16:00 hours on 27th July 2009, took up quarrel with the victim and accused No.2 caught hold of the victim and accused No.1 gave successive knife blows on the various parts of the body with knowledge and intention that such injuries may result into the death of the victim. Both the accused with the aid of each other assaulted the victim and thereby committed the offence punishable under Section 307 read with Section 114 of IPC.
5. In order to prove the aforesaid charge against the original accused, the prosecution had examined following witnesses:
6. The prosecution had also produced following documentary evidence:
7. Heard Ms Archna Amin, learned advocate for appellant and Ms. HB Punani, learned Additional Public Prosecutor for respondent – State.
8. Ms. Archna Amin, learned advocate for the applicant vehemently submitted that this is a clear case of free fight wherein the accused has also received serious injuries and therefore the accused were compelled to assault the injured. She further argued that due to sudden provocation, the free fight took place and therefore the accused deserves acquittal. In alternative, she also argued that as the accused as well as injured are near relatives and the incident took place on the spur of moment due to dispute regarding boundary of their adjacent fields, the sentence inflicted upon the accused of 7 years R.I. is excessive and it requires to be reduced considering the peculiar facts and circumstances of the case.
9. Against the aforesaid argument, Ms. HB Punani, learned Additional Public Prosecutor has argued that this is a clear case wherein one eyewitness as well as the injured himself had vividly narrated the incident that the accused gave successive knife blows to the injured which resulted into prolong medical treatment of the injured. She also argued that a clear case of attempt to murder is established and the learned trial Court has rightly convicted the accused. She further argued that the punishment inflicted upon both the accused is insufficient and it requires to be enhanced considering the grievous injuries of the injured.
10. In order to decide the present appeal in its proper perspective, we think it proper to bring on record the brief evidence of material witnesses.
11. Mahmad Rafik Anverhusein Kadri – P.W.1 was examined at Exh.9. He was examined to prove the panchnamas with regard to the recovery of clothes worn by the injured at the time of incident as well as the blood samples taken from the place of incident produced on record at Exh.10 and 11 which were carried out in his presence. However, the witness turned hostile but he admitted his signature on both the panchnamas.
12. Maheshbhai Bhagvandas, P.W.2 was examined at Exh.16. He was a panchwitness of three different panchnamas produced on record at Exh.17, 18 and 19 viz. the arrest panchnama of accused no.2 along with recovery of clothes worn by him at the time of incident, panchnama of discovery of knife used for the commission of the offence at the instance of accused No.1 and arrest panchnama of accused no.1 along with recovery of clothes worn by him at the time of incident.
12.1. However, the panch witness turned hostile but he admitted his signature on the aforesaid panchnamas.
13. Rasulbhai Daudbhai Chhuara, P.W.3 was examined at Exh.23. He was a panchwitness of panchnama of scene of offence. He deposed that he was called at the place of incident. The place of incident was shown by Ishmailbhai Yakubbhai Chopda, who was present at the scene of offence. At the place of incident, the field was found freshly ploughed. At the place of incident they also noticed one iron cot. In his presence, the panchnama was carried out and he identified his signature over the panchnama and it was admitted at Exh.24.
14. The prosecution examined Dr. Bhaveshbhai Ramubhai Hadial at Exh.25. He deposed that when he was on duty on 27.07.2009 in the Refral hospital, Dhandhuka, at about 5:00 O’clock in the evening one Usmanbhai Mahmadbhai Chopda was brought before him for the treatment. He had given the history of assault. Upon his examination, he noticed following five injuries:
“(1) lacerated wound at occipital region around 1 x ½ x ½ cm size.
(2) sharp cut wound on left hypochandrum at med axillary line around 4 cm long x 2 cm broad x 56 cm deep
(3) stab wound left side chest 2 inch below left neeple 2 cm long x 1 cm broad 34 cm deep.
(4) stab wound left iliac fossa at left mid axillary line level around 3 cm long x 2 cm broad x 5 cm deep.
(5) stab wound right side chest at mid axillary line level 6 cm long x 3 cm broad x 78 cm deep.”
14.1. The Doctor has further deposed that he had given the preliminary treatment and considering the seriousness of injuries, he was referred to V.S.Hospital at Ahmedabad. Regarding the injuries, he deposed that the injuries could have been fatal. He opined that the injuries could have been possible with muddamal knife.
14.2. In the crossexamination he admitted that the patient had not given any name of the assailants. He further admitted that he had treated Adambhai Valabhai on the same day and issued the injury certificate which has been produced on record at Exh.39.
15. Ahmedbhai Mahmadbhai, P.W.5 was examined at Exh.27. He was the panch of panchnama of recovery of clothes worn by the injured at the time of incident. However, he turned hostile but he has admitted his signatures on the panchnama as well as on the slips.
16. Dr. Vishal Indravadan, P.W.6 was examined at Exh.28. He deposed that on 27th July 2009 he was serving as a general surgeon in the V.S.Hospital. At about 7:00 O’clock in the evening, one patient Usmanbhai Mahmadbhai was brought in the hospital and he was admitted as an indoor patient and ultimately he was discharged on 22nd August 2009. When the patient was brought for treatment, he asked him regarding the history to which he told that before three hours back he was assaulted by knife, stick and other weapon by the opposite party. At that time, the injured complained about pain on abdomen, chest and head.
17. Further he deposed that when the patient was treated, other panel Doctors i.e. Dr. N.C.Vasavda and Dr. Pranav Modi were accompanied him. He also admitted that if timely treatment may not receive, the patient can die from such injuries. Doctor also stated that the injury which he noticed could have been possible by stick and knife. He also admitted that the injuries could have been caused by the muddamal article knife.
17.1. In the crossexamination, the Doctor admitted that the patient did not give names of any assailants. The Doctor admitted that the injuries narrated in the certificate could not have been inflicted by the stick. He also admitted that when the patient was brought at the hospital, he was fully conscious and his condition was good.
18. Ismailbhai Yakubbhai Chopda, P.W.7 was examined at Exh.30. He stated that the injured Usmanbhai is his fatherinlaw. On the day of incident while he was returning from Mosque, at that time, one Hajraben Gandabhai informed that his fatherinlaw was stabbed and he was requested to bring rickshaw. He, thereupon, boarded one rickshaw from vegetable market and reached the place of incident where he noticed that his fatherinlaw sustained injuries over abdomen. The witness asked the injured about the injuries to which he replied that Adam Vala inflicted knife blows. Thereafter, he took his fatherinlaw to the Refral hospital, Dhandhuka. After taking preliminary treatment at Refral hospital, injured was referred to the V.S.Hospital, Ahmedabad. Thereafter he lodged complaint. He also identified his signature over the complaint and it was admitted vide Exh.31. After recording his complaint the panchnama of scene of incident was carried out by the police as per the place shown by him. The clothes worn by the injured were taken in his presence. He had identified the clothes i.e. shirt, banyan and lungi worn by the victim at the time of incident before the Court.
18.1. In the crossexamination, he admitted that Hajraben is his cousin sister. He also admitted that he had not seen the incident. He denied the suggestion that there was continuous quarrel regarding boundary.
19. Usmanbhai Mahmadbhai, P.W.8, the victim was examined at Exh.32. He stated that he was holding 30 Bighas of land, out of which one piece of land was situated on the bank of river Bhadar in the outskirt of the village. The accused were also holding lands on the southern side of the aforesaid land. The incident took place on the boundary of aforesaid land on the day of incident at about 4:00 O’clock in the evening. He went to his field and saw that the accused ploughed his field as well. He, thereupon asked accused no.1 the reason for such act to which accused No.1 got excited and told that the land was belonging to his father and started quarreling with him. At that time, accused No.2 caught hold of him and accused No.1 gave successive knife blows to him. The accused gave knife blows on abdomen, chest as well as on the head due to which he fell down. Thereupon, the cousin sister of injured Roshan went to the village and informed about the incident. Thereupon, his soninlaw Ismailbhai came to the place of incident and took him to the village in a bullockcart and from village they took the injured to Referal hospital in an autorickshaw. After taking preliminary treatment at Refral hospital, Dhandhuka, he was referred to V.S.Hospital, Ahmedabad for further treatment where he was treated for about 29 days as an indoor patient. His statement was recorded by the police. He identified both the accused before the Court. He also identified the clothes worn by him at the time of incident. On being shown muddamal article knife, he replied that he had not seen the knife properly but the knife was big. The incident occurred due to the dispute regarding boundary.
19.1. In the crossexamination, he denied the suggestion that he abused accused No.1 due to which he excited. He also denied that he was carrying a knife. He also denied that as he was carrying a knife, the accused became afraid of being killed by him. He also denied that due to scuffle between them, he received injuries by the knife itself which was carried by him. He denied that he had wrongly implicated the accused so that he can take the possession of the land. He also denied that during the course of scuffle he received injuries by his own weapon.
20. Anvarbhai Ahmedbhai, P.W.9 was examined at Exh.33. He stated that he is plying rickshaw and he took the injured to the hospital at about 4:30 p.m. on the day of incident.
21. Mahemudbhai Aljibhai, P.W.10 was examined at Exh.34. He was supposed to be an eyewitness but he turned hostile.
22. Hajraben Gandabhai, P.W.11 was examined at Exh.37. She stated that the incident took place at about 4:15 p.m. On being heard shouts, she came to know about the quarrel between the victim and the accused. She thereupon ran towards the field where the scuffle took place and noticed that Gani Vala (accused No.2) caught hold of Usman Mahmad (victim) and Adam Vala (accused No.1) inflicted knife blows to the victim. She thereupon ran towards the village and Ismailbhai Yakub, the soninlaw of Usmanbhai met her in the way. She informed him about the incident and told him to board an autorickshaw. As the river was full of water, the injured was taken in a bullockcart up to the river and thereafter he was taken to the hospital at Dhandhuka in a rickshaw boarded by his soninlaw. The incident occurred due to dispute regarding boundary. She stated that her statement was recorded by the police. She identified the accused before the Court.
22.1. In her crossexamination, she stated that the scene of incident is visible from her house. She also admitted that she came to know about the incident from one Roshan. She also admitted that the injured is her cousin brother. She took 5 to 6 minutes to reach the place of incident. She denied that the incident was over when she reached the place of incident. She admitted that the accused as well as injured Usman are near relatives. Soon after they reached to the hospital at Dhandhuka, the Doctor referred the injured to V.S.Hospital. She accompanied there also and she stayed for about 30 days at the hospital at Ahmedabad.
23. Samratsinh Nathusinh Vaghela, Police SubInspector, P.W.12 was examined at Exh.41. He stated that on 27th July 2009 when he was on duty as Police SubInspector at Dhandhuka Police Station, Ismailbhai Yakubbhai came there and lodged his complaint in his presence. He identified the said complaint and signature of complainant as well as his signature over it. He stated that he had carried out the investigation during which he drawn several panchnamas, recorded the statements of various witnesses and also recovered medical certificates from the Refral hospital as well as V.S.Hospital. He also recorded the dying declaration of the injured, recovered the clothes worn by the injured at the time of incident and after obtaining the certificate he made report for adding Section 307 of IPC to the concerned Magistrate. He deposed that the panchnama at Exh.18 was carried out in his presence wherein the accused had shown his willingness to show the place where the weapon was concealed. He drew a preliminary panchnama in presence of panchas and thereafter they went to the place where the accused concealed the knife and the knife was discovered at the instance of the accused in his presence. The contradiction so far as the police statement of Mahemudbhai Aljibhai, P.W.10 was taken on record. He identified the muddamal as well as accused before the Court.
23.1. In his crossexamination he admitted that the accused Adam Vala also sustained injuries and he obtained the medical certificate. He also admitted that the accused sustained injuries in the same incident. He recorded the N.C. complaint but he did not take any action regarding his N.C. Complaint.
24. The aforesaid set of evidence is available on the record. We have perused it with the assistance of learned advocates for the respective parties. We have reappreciated the evidence on the record.
25. In our scrutiny of the evidence on record, we noticed from the record that the accused as well as the injured are near relatives, their respective agriculture fields are adjacent to each other and the boundaries of their fields were not demarcated, consequently, the dispute was going on regarding boundary of their respective fields. On account of the persisting dispute regarding boundary of their respective fields, when the injured Usmanbhai visited his field on the day of incident, he noticed that his field has been ploughed by the accused. On being asked the reason of such act by the injured, a brief altercation took place between the injured and the accused and suddenly accused got excited and accused no.2 caught hold of the injured and accused No.1 started giving successive knife blows to the injured. The genesis of the incident i.e. persisting dispute as regards the boundary of agriculture field of the injured and the accused is, thus, established on record. It is not forthcoming on the record that anybody has either prevented him or interfered during the course of scuffle. The Doctor has, however, opined that the injuries are not such, which, in ordinary course, may likely to cause death.
26. The incident is vividly narrated by two witnesses viz. Usmanbhai, injured himself and Hajraben, P.W.11. Furthermore, regarding the incident, in the crossexamination of injured himself the defence has tried to establish that as the injured was abusing, the accused got excited and gave knife blows to the injured. Consequently therefore the defence itself is admitting the incident as well as assault. So, in view of the aforesaid evidence on record the brief altercation and resultant assault with knife on the part of accused No.1 is clearly established on the record. In view of the aforesaid evidence on the record, the contention raised by the learned advocate for the appellant regarding free fight and sudden provocation by the injured does not sustain. It is also established on record by way of evidence of injured himself that accused no.2 caught hold of the injured and accused No.1 gave successive knife blows to the injured and during the course of assault the accused also received injuries. That fact is also established in view of the history of assault given by the accused before Doctor Bhavesh Hadial and also in the deposition of I.O. as well as in the cross examination of Usmanbhai, the injured. Even otherwise also the injuries sustained by the accused during the course of scuffle were superficial in nature and he was treated as an outdoor patient. On the other hand, the injured sustained about 6 injuries. It is also true that due to timely treatment the injured survived and came to be discharged after prolong treatment of about one month. Therefore also the argument advanced by the learned advocate for the appellant is not believable.
27. Precisely, on overall appreciation of evidence, the learned trial Court has rightly recorded the conviction of accused for the offence punishable under Section 307 IPC and we do not find any hesitation in upholding the conviction of the accused for the offence punishable under Section 307 IPC.
28. Now, coming to the question of sentence, as noted above, the accused and the injured are near relatives and the incident took place due to subsisting dispute as regards the boundary of their respective agriculture fields. The incident irrupted within a spur of moment. The evidence on the record leads us to believe that there may not be any intention of killing the injured on the part of the accused as one had caught hold of the injured and another had given successive blows which were not so forceful so that the injured survived after taking treatment of about 30 days. At the same time, we also find that while assaulting with the deadly weapon like knife, the accused must have knowledge that by giving such blows the death may cause. Therefore, the offence falls within the purview of Section 307. But, on overall consideration of the peculiar facts and circumstances of the case, genesis of incident and the injured and accused being near relatives and the nature of injuries, we are of a considered opinion to reduce the sentence from 7 years R.I. to 4 years R.I. by enhancing the fine imposed upon accused No.1 from that of Rs.3,000/ to Rs.25,000/ out of which Rs.20,000/ is directed to pay as compensation to the victim Usmanbhai Mahmadbhai Chopda. Hence, the following order:
(i) The State appeal being Criminal Appeal No.1179 of 2011 is dismissed.
(ii) The appeal of the appellant – original accused No.1 being Criminal Appeal No.1130 of 2011 is partly allowed. The sentence of the accused is reduced to Rigorous Imprisonment of 4 years. The fine of Rs.3,000/ (Rupees three thousand only) imposed on the appellant is enhanced to that of Rs.25,000/ (Rupees twenty five thousand only) and in default of payment of fine, he shall undergo the sentence as stipulated by the trial Court. Out of the total amount of fine of Rs.25,000/ which the appellant shall have to pay, Rs.20,000/ (Rupees twenty thousand only) be paid to the injured Usmanbhai Mahmadbhai Chopda as compensation. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad in Sessions Case No.237 of 2009 is modified accordingly.
(iii) R & P to be transmitted to the trial Court.”
(AKIL KURESHI, J.) Jani (R.P.DHOLARIA,J.)