Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 1016 (GUJ)

Asgarali Onali Lokhandwala v. State of Gujarat

2016-05-06

BIREN VAISHNAV, K.S.JHAVERI

body2016
JUDGMENT : K.S. Jhaveri, J. 1. All these matters arise out of the same judgment and order and therefore, they are decided by this common judgment. 2. Challenge in these matters is to the judgment and order passed by the learned Addl. Sessions Judge, Panchmahals at Godhra in Sessions Case No. 292 of 2001 dated 07.11.2006 whereby, original accused No. 1-Asgarali Onali Lokhandwala and original accused No. 2-Hussainbhai Asgarali Lokhandwala were convicted for the offences punishable u/s. 304 Part-I, 323 & 324 IPC. For conviction u/s. 304 Part-I IPC, both the accused were sentenced to undergo RI for five years and fine of Rs. 50,000/- each and in default, RI for one year. Out of the total amount of fine that may be received from the accused persons, an amount of Rs. 90,000/- was ordered to be paid as compensation to the legal heirs of deceased Idrishbhai and the balance sum of Rs. 10,000/- was ordered to be accepted as Fine. For conviction u/s. 323 IPC, both the accused were sentenced to undergo RI for seven years; whereas, for conviction u/s. 324 IPC, they were sentenced to undergo RI for two years. All the sentences were ordered to run concurrently and the sentence already undergone by the accused was given set-off. 2.1 Criminal Appeal No. 29/2007 has been preferred by both original accused No. 1 & 2 against the conviction awarded by the Court below. 2.2 Criminal Appeal No. 45/2007 has been preferred by the State seeking enhancement of sentence imposed upon the accused. 2.3 Criminal Revision Application No. 35/2007 has been filed by injured witness-Hussaini Mithiborewala (as the original complainant had passed away during the pendency of proceedings) against the impugned judgment and order of conviction of the accused u/s. 304 Part-I IPC instead of Section 302 IPC & related offences. 2.4 Criminal Revision Application No. 182/2007 has been initiated suo motu on the issue of the quantum of sentence. 2.5 Criminal Revision Application No. 294/2007 has been preferred by original accused No. 1 in Sessions Case No. 292/2001, viz. Asgarali Onali Lokhandwala, against the judgment and order passed by the Court of learned Addl. Sessions Judge, Panchmahals at Godhra in Sessions Case No. 171/2004 dated 07.11.2006 whereby, original accused No. 4-Samimben Idrishbhai Mithiborewala have been acquitted of the charge u/s. 452, 427, 323, 324, 504, 498(A) r/w. Section 114 IPC and Section 135 of B.P. Act. Asgarali Onali Lokhandwala, against the judgment and order passed by the Court of learned Addl. Sessions Judge, Panchmahals at Godhra in Sessions Case No. 171/2004 dated 07.11.2006 whereby, original accused No. 4-Samimben Idrishbhai Mithiborewala have been acquitted of the charge u/s. 452, 427, 323, 324, 504, 498(A) r/w. Section 114 IPC and Section 135 of B.P. Act. 2.6 Criminal Revision Application No. 294/2007 has been preferred by original accused No. 1 in Sessions Case No. 292/2001, viz. Asgarali Onali Lokhandwala, against the judgment and order passed by the Court of learned Addl. Sessions Judge, Panchmahals at Godhra in Sessions Case No. 171/2004 dated 07.11.2006 whereby, original accused No. 1-Abbasbhai Idrishbhai Mithiborewala and original accused No. 2-Hussaini @ Gopi Idrishbhai Mithiborewala have been acquitted of the charge u/s. 452, 427, 323, 324, 504, 498(A) r/w. Section 114 IPC and Section 135 of B.P. Act. 3. For the purpose of narration of facts, Criminal Appeal No. 29/2007 arising out of Sessions Case No. 292/2001 is taken as the lead matter. 3.1 On 07.11.2000 a quarrel took place between Onejaben, daughter of Asgarali Onali Lokhandwala, original accused No. 1 herein and her husband-Abbasbhai, who is the son of Idrishbhai Fidaali Mithiborewala. On account of the quarrel, Onejaben left her matrimonial house and went to her parental home. At around 1930 hrs., Abbasbhai went to the house of original accused No. 1. However, at that time, original accused No. 1 refused to send her daughter to her matrimonial house, which resulted into an heated exchange of words between original accused No. 1 and Abbasbhai. Arvabhai, who is the wife of original complainant, Turabbhai Abdulhussain and was present in the house at the relevant time, asked the two of them to stop the argument. However, at that time, original accused No. 1 pushed Arvabhai, on account of which she fell on the ground and sustained injury on her hand. During that period, Idrishbhai and his brother-Husaini rushed to the house of original accused No. 1. Original accused No. 1 caught hold of Idrishbhai and original accused No. 2 inflicted a knife blow on the stomach region of Idrishbhai. During the course of treatment, Idrishbhai succumbed to the injuries. 3.2 A complaint in connection with the aforesaid incident was lodged with Godhra Police Station vide I-C.R. No. 314/2000. Necessary investigation was done and the appellants-original accused No. 1 & 2 came to be arrested. During the course of treatment, Idrishbhai succumbed to the injuries. 3.2 A complaint in connection with the aforesaid incident was lodged with Godhra Police Station vide I-C.R. No. 314/2000. Necessary investigation was done and the appellants-original accused No. 1 & 2 came to be arrested. It is pertinent to note that in connection with the same incident, a cross complaint being I-C.R. No. 315/2000 was lodged by original accused No. 1 against the husband and in-laws of her daughter-Onejaben. 3.3 At the end of investigation, charge-sheet was filed against the accused persons before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated. 3.4 During the trial, the prosecution had examined following witnesses; Wt. No. Name of witness Exhibit No. 1 Turabbhai Abdulhussain Patent 34 2 Arvaben Turabbhai Patent 36 3 Abbas Idrishbhai Mithiborewala 38 4 Qutbuddin Salebhai Jinwala 40 5 Hussaini @ Gopi Idrishbhai Mithiborewala 41 6 Yusufkhan Rasulkhan Pathan 44 7 Yakub Ibrahim Mansuri 48 8 Onali Salebhai Jinwala 57 9 Dr. Pankaj Shantilal Shah 65 10 Gurdas Pohumal Tarani 69 11 Dr. Rakesh Sumantlal Shah 70 12 Dr. Rameshchandra Kodarji Chauhan 72 13 Dr. Bhikubhai M. Patel 76 14 Dr. Shasikant Basantilal Nagori 89 15 Jayeshbhai Vinodbhai Patel 94 16 Dr. Hasmukhbhai Vaghsinh Parmar 97 17 Hargovind Mahadev Pandey 105 18 Dinubhai Gordhanbhai Bariya 108 19 Husaini @ Gopi 110 20 Bhagwansinh Khodsinh 111 21 Sarojben Kashinath Upadhyay 112 22 Raijibhai Dahyabhai Solanki 117 4. The prosecution produced and relied upon several documentary evidence, particularly, the complaint at Exh. 107, inquest panchnama at Exh. 43, panchnama of scene of offence at Exh. 49, recovery panchnama of muddamal knife at Exh. 45, Postmortem report at Exh. 74, Dying declaration of injured Hussaini at Exh. 110, FSL Report at Exh. 128 and Cause of Death Certificate at Exh. 131. 5. At the end of trial, the Court below recorded further statement of appellants u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeals. 6. 74, Dying declaration of injured Hussaini at Exh. 110, FSL Report at Exh. 128 and Cause of Death Certificate at Exh. 131. 5. At the end of trial, the Court below recorded further statement of appellants u/s. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeals. 6. In the cognate case being Sessions Case No. 171/2004, all the original accused, who happen to be the husband and in-laws of Onejaben, daughter of original accused No. 1 in Sessions Case No. 292/2001, were acquitted of all the charges, vide judgment and order dated 07.11.2006, which has been challenged by filing Criminal Revision Application No. 294/2007 & 295/2007. 7. Mr. P.M. Thakkar, learned Senior Advocate appearing with Mr. Haresh Joshi for appellants, original accused No. 1 & 2, submitted that the Court below committed serious error in convicting the appellants for the alleged offence. It was submitted that the prosecution has not examined important independent witnesses, who were available at the place of alleged incident and passed the conviction solely on the testimony of so-called witnesses who are relatives of the deceased. Further, the Court below also overlooked the omission and contradiction of the so-called eye-witnesses as they have deposed self-contradictory and inter se contradictory facts. 7.1 It was further submitted by learned Senior Advocate Mr. Thakkar that almost all the eyewitnesses, who claim to have remained present at the time of incident, have deposed in contradiction with other witnesses about the happening of alleged incident. It appears from their deposition that they are hiding true facts with the singular objective of implicating the appellants in the alleged crime. 7.2 Learned Senior Advocate further submitted that original accused No. 1 was also attacked by Abbasbhai (PW-3) and others with stick and he also sustained injuries on his face. This incident happened in the premises of appellants and hence, for the purpose of defending the lives of his mother-Rehanaben and sister-Onejaben, original accused No. 2 had inflicted blows to Hussaini @ Gopi (PW-5) and his father-Idrishbhai. In this background circumstances, it was submitted that original accused No. 2 acted in self-defence as well as for protecting the lives of his mother and sister and therefore, the said fact ought to have been appreciated by the Court below in its true perspective. In this background circumstances, it was submitted that original accused No. 2 acted in self-defence as well as for protecting the lives of his mother and sister and therefore, the said fact ought to have been appreciated by the Court below in its true perspective. It was, therefore, submitted that the Court below seriously erred in convicting original accused No. 1 for abatement of crime though the Court believed that the act committed by original accused No. 2 was in self-defence. Learned Senior Advocate, therefore, submitted that the impugned judgment and order of conviction deserves to be quashed and set aside. 8. As regards Criminal Revision Applications filed by appellants, original accused No. 1 & 2 in Sessions Case No. 292/2001, against the acquittal of Abbasali Idrishbhai Mothiborewala (original accused No. 1 in Sessions Case No. 171/2004 and PW-3 in Sessions Case No. 292/2001), Hussaini @ Gopi Idrishbhai Mithirborewala (original accused No. 2 in Sessions Case No. 171/2004 and PW-5 in Sessions Case No. 292/2001), original accused No. 3 had passed away during the trial and Shamimben Idrishbhai Mithiborewala (original accused No. 4 in Sessions Case No. 171/2004) is concerned, learned Senior Advocate Mr. Thakkar submitted that the Court below has not appreciated the evidence of original complainant-Asgarali Onali Lokhandwala and his wife-Rehanaben in its proper perspective. It was submitted that witness-Rehanaben had sustained knife injury in the incident in question, which took place in the house of complainant-Asgarali. The muddamal knife was recovered by the I.O. from the possession of Hussaini @ Gopi. However, the Court below brushed aside the aforesaid evidence and proceeded to record the impugned judgment of acquittal, which is erroneous and contrary to the settled principle of criminal jurisprudence. 8.1 Learned Senior Advocate Mr. Thakkar further submitted that the Court below seriously erred in brushing aside the evidence of witness-Onejaben merely on the ground that earlier this witness had not given any complaint regarding the alleged physical and mental torture and demand of dowry by the accused persons. In fact, witness-Onejaben had filed a complaint before the Court of learned C.J.M., Godhra under the Muslim Women Protection Act prior to the registration of the present complaint. However, the said fact was lost sight of by the Court below. 8.2 It was submitted that the premise on which the Court below brushed the evidence of witness-Onejaben is completely erroneous and frivolous. However, the said fact was lost sight of by the Court below. 8.2 It was submitted that the premise on which the Court below brushed the evidence of witness-Onejaben is completely erroneous and frivolous. It was, therefore, submitted that the impugned judgment and order of acquittal recorded by the Court below deserves to be quashed and set aside and the accused therein deserve to be convicted for the offence in question. 9. Ms. C.M. Shah, learned APP, submitted that the Court below was justified in convicting both the accused u/s. 304 Part-I IPC & related offences. However, the sentence imposed thereon is on the lower side considering the seriousness of crime. She submitted that the prosecution was successful in establishing its case that accused No. 1 and 2, in abatement of each other, had caused death of Idrishbhai and grievous injury to witness-Hussainibhai @ Gopi. Hence, the Court below ought to have sentenced both the accused for life or at least for a period of 10 years. Mr. Saurin Shah, learned counsel appearing on behalf of original complainant, applicant in Criminal Revision Application No. 35/2007, adopted the submissions made by learned APP Ms. Shah. 10. Over and above, learned counsel Mr. Saurin Shah submitted that the impugned judgment and order of acquittal passed in Sessions Case No. 171/2004 is just and legal since the prosecution had failed to establish the guilt of accused persons beyond reasonable doubt. It was submitted that there was nothing on record to establish that any of the accused were involved in the alleged crime in any manner whatsoever. Hence, the Court below was justified in passing the impugned judgment and order of acquittal in Sessions Case No. 171/2004. 11. We have heard learned counsel for both the sides and perused the oral as well as documentary evidence on record. In order to prove the aspect of homicidal death, the prosecution examined Dr. Rameshchandra Kodarji Chauhan (PW-12), who had performed the autopsy. The Postmortem report (Exh. 74) reveals that the deceased died on account of shock due to internal hemorrhage caused by puncture of Aorta. The Doctor categorically opined that the injuries sustained by deceased was possible by muddamal weapon - knife. Considering the medical evidence on record, we have no hesitation in concluding that deceased died a homicidal death. 12. The Postmortem report (Exh. 74) reveals that the deceased died on account of shock due to internal hemorrhage caused by puncture of Aorta. The Doctor categorically opined that the injuries sustained by deceased was possible by muddamal weapon - knife. Considering the medical evidence on record, we have no hesitation in concluding that deceased died a homicidal death. 12. The prosecution placed heavy reliance upon the testimony of original complainant-Turabbhai Abdulhussain Patent (PW-1) on the ground that he is an eye-witness to the alleged incident. However, it has come to our notice that neither in the complaint (Exh. 107) nor in the evidence before the Court below, the complainant made any mention about the place where the alleged incident is said to have taken place. In fact, it is evident from his cross-examination that the alleged incident was in progress when he reached the scene of offence. This makes it clear that he had not witnessed the entire incident. Though the complaint and his evidence are silent about the location of the complainant at the time when the alleged offence was committed but it is specific about the timing of incident inasmuch as it is established from his evidence that he had witnessed every event that took place after he reached the scene of offence. 13. It is established from his evidence that he witnessed the scene wherein original accused No. 1 caught hold of deceased and during which time the original accused No. 2 came to the spot and inflicted knife blow on the stomach region of the deceased. When Hussaini @ Gopi Idrishbhai Mithiborewala (PW-5), the son of deceased, arrived at the spot and intervened, original accused No. 2 also inflicted knife blow to Hussaini @ Gopi. The evidence of complainant (PW-1) has not been contradicted insofar as the presence and role played by both original accused No. 1 & 2 are concerned. Thus, his evidence proves the presence and role of both accused No. 1 & 2. 14. The evidence of complainant (PW-1) gets corroboration from the evidence of Hussaini @ Gopi Idrishbhai Mithiborewala (PW-5). His evidence also proves the presence and role played by both original accused No. 1 & 2. In the said incident, Hussaini @ Gopi Idrishbhai Mithiborewala (PW-5) had sustained knife injury at the hands of original accused No. 2 and thus, he is an injured eye-witness. 15. His evidence also proves the presence and role played by both original accused No. 1 & 2. In the said incident, Hussaini @ Gopi Idrishbhai Mithiborewala (PW-5) had sustained knife injury at the hands of original accused No. 2 and thus, he is an injured eye-witness. 15. It transpires from the record that after sustaining knife injury in the incident, Hussaini @ Gopi (PW-5) took initial treatment from Dr. Shasikant Basantilal Nagori (PW-14) at General Hospital, Godhra, which is evident from the deposition of the Medical Officer (PW-14) and the M.L.C. Certificate (Exh. 90). Thereafter, injured-Hussaini (PW-5) was shifted to the private clinic of Dr. Pankaj Shantilal Shah (PW-9) for further treatment. The documents at Exh. 67 are the Medical Case-papers. In respect of the treatment given to injured-Hussaini (PW-5), Dr. Pankaj Shah (PW-9) issued the Medical Certificate (Exh. 67). On the same day, late in evening, injured-Hussaini @ Gopi (PW-5) was shifted to another Hospital in Vadodara, where he took further treatment from Dr. Bhikubhai M. Patel (PW-13). The Medical Certificates have been produced vide Exhs.77 & 80. Thus, the oral evidence on record in the form of testimonies of Dr. Shasikant Basantilal Nagori (PW-14), Dr. Pankaj Shantilal Shah (PW-9) and Dr. Bhikubhai M. Patel (PW-13) establish beyond doubt that injured witness-Hussaini (PW-5) had sustained knife injury in the evening of 07.11.2000. 16. The prosecution case also gets support from the evidence of Arvaben Turabbhai Patent (PW-2), who is the sister of deceased Idrishbhai and mother of complainant (PW-1). Her evidence is relevant only to the extent that she had noticed original accused No. 1 catching hold of the deceased and that she was pushed off by original accused No. 1 when she tried to intervene. 17. It is to be noted that this witness (PW-2) has not deposed anything about the alleged role, if any, played by original accused No. 2 in the entire incident. PW-2 is a near relative of deceased and if she had been carrying the motive to implicate both the original accused in the alleged crime, then she would have given false evidence against original accused No. 2. However, she has not averred anything against original accused No. 2, which speaks about the truthfulness of her evidence. She has not made a whisper about the alleged role played by original accused No. 2 in the entire incident. However, she has not averred anything against original accused No. 2, which speaks about the truthfulness of her evidence. She has not made a whisper about the alleged role played by original accused No. 2 in the entire incident. Nothing prevented her from deposing or attributing any overt act to original accused No. 2. Thus, from the evidence of this witness (PW-2), the prosecution has been able to establish the presence and role of original accused No. 1. 18. The evidence of Arvaben (PW-2) gets corroboration from the evidence of Dr. Rakesh Sumantlal Shah (PW-11), who had given necessary treatment to Arvaben (PW-2). The Medical Certificate (Exh. 71) issued by this witness reveals that Arvaben (PW-2) had sustained fracture injury on her left hand, which was possible by a firm push. Thus, the evidence led by PW-2 that she was pushed down by original accused No. 1 gets corroboration from the medical evidence on record in the form of testimony of Dr. Rakesh Sumantlal Shah (PW-11) and Medical Certificate (Exh. 71). Further, the fact that Arvaben (PW-2) was present at the scene of offence at the relevant time and was pushed off by original accused No. 1 gets corroboration from the evidence of original complainant-Turabbhai Abdulhussain Patent (PW-1), who happens to be her husband. 19. Another important witness who has supported the prosecution case is Abbas Idrishbhai Mithiborewala (PW-3). He is the son of deceased and son-in-law of original accused No. 1. His evidence shows that he is an eye-witness to the incident in question. He has categorically deposed about the presence and role played by both the accused persons. Abbas (PW-3) was the first individual, who had gone to the house of accused persons to collect the keys. However, after some time, a quarrel took place between them. On hearing the shouts, Arvaben (PW-2), who was residing in the neighborhood, deceased-Idrishbhai and brother-Hussaini @ Gopi rushed to the house of the accused persons. Thus, the evidence of Abbas (PW-3) proves the presence of both Arvaben (PW-2) and Hussaini @ Gopi (PW-5) at the house of accused persons at the relevant point of time. 20. The evidence of Abbasbhai (PW-3) corroborates the testimonies of original complainant-Turabbhai Abdulhussain Patent (PW-1), Arvaben Turabbhai Patent (PW-2) and Hussaini @ Gopi Idrishbhai Mithiborewala (PW-5). The evidence of all the four witnesses establish that they are eyewitness to the incident in question. 20. The evidence of Abbasbhai (PW-3) corroborates the testimonies of original complainant-Turabbhai Abdulhussain Patent (PW-1), Arvaben Turabbhai Patent (PW-2) and Hussaini @ Gopi Idrishbhai Mithiborewala (PW-5). The evidence of all the four witnesses establish that they are eyewitness to the incident in question. Though they are relatives of the deceased, their evidence is found to be consistent on all material aspects of the case. The facts and circumstances of the case show that the entire incident occurred in the heat of moment and neither party could control their anger, which, ultimately, resulted into the fateful incident. 21. Considering the aforesaid aspects, we are of the opinion that conviction of both the accused persons u/s. 304 Part-I IPC deserves to be altered to Section 304 Part-II IPC. It is established from the record that the role played by original accused No. 1 is limited only to the extent of catching hold of deceased. Original accused No. 1 had not caused any kind of injury to the deceased and the deceased died only on account of the knife injury caused by original accused No. 2. Considering their individual roles and when we have come to the conclusion that the alleged offence would fall within the definition of Section 304 Part-II IPC, the sentence imposed upon original accused No. 1 deserves to be reduced. Except original accused No. 1 & 2 in Sessions Case No. 292/2001, no other member on either side appears to have played any overt act in the entire incident. Hence, the Court below was justified in acquitting the accused persons in Sessions Case No. 171/2004. In view of the aforesaid, the impugned judgment and order passed in Sessions Case No. 292/2001 deserves to be modified and the judgment and order passed in Sessions Case No. 171/2004 is required to be confirmed. 22. For the foregoing reasons, the impugned judgment and order passed by the learned Addl. Sessions Judge, Panchmahals at Godhra in Sessions Case No. 292 of 2001 dated 07.11.2006 is modified to the extent hereunder; "(A) The conviction imposed upon both original accused No. 1 & 2 u/s. 304 Part-I IPC is altered to one u/s. 304 Part-II IPC, without disturbing the order regarding Fine and default sentence. (B) For conviction u/s. 304 Part-II IPC, original accused No. 1 is imposed the punishment of sentence for the period already undergone by him. (B) For conviction u/s. 304 Part-II IPC, original accused No. 1 is imposed the punishment of sentence for the period already undergone by him. However, the amount of Fine deposited by him shall not be returned. The original accused No. 1 is on bail and therefore, his bail bonds stand cancelled. (C) Insofar as original accused No. 2 is concerned, he is sentenced to undergo RI for Five Years, without disturbing the order regarding Fine and default sentence imposed by the Court below for conviction u/s. 304 Part-I IPC. Original accused No. 2 is on bail. His bail bonds stand cancelled and he is directed to surrender to custody on or before 29th July, 2016 failing which appropriate action shall be taken to secure his arrest. (D) As regards the amount of Fine, it is observed that original complainant shall be at liberty to withdraw the same but, if the same is not withdrawn, on or before 31st December, 2016, then the entire amount shall be utilized for Legal Aid purposes by the Court below. 22.1 Consequently, Criminal Appeal No. 29/2007 stands partly allowed whereas, Criminal Appeal No. 45/2007 is dismissed. Criminal Revision Applications No. 35/2007, 182/2007, 294/2007 & 295/2007 stand dismissed. 22.2 Records and proceedings, if lying here, be sent to the Court below forthwith.