JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the original accused challenging the conviction and sentence rendered by the learned Additional Sessions Judge, Jamnagar by his judgment dated 22.08.2012. Briefly stated the prosecution version was that between the night of 11.01.2009 and 12.01.2009, the complainant Harshaben was sleeping inside her house alongwith her husband, deceased Kantilal and her young son aged about 10 years. The accused Harjindarsing @ Jindaal had an extra marital affair with the complainant Harshaben. Harshaben also had developed recent relations with Digvijaysinh, PW 13. On the night of the incident, Harshaben had already promised to meet Digvijaysinh. The accused, however, was extremely keen on meeting Harshaben. He, therefore, late at night, went to the house of Harshaben and tried to make her open the door. When Harshaben did not do so, he first gently and thereafter more forcefully knocked and banged at the window. Harshaben fearing that her husband would wake up and find out about her relations, herself woke her husband up telling him that some thief seems to have come at the house. Her husband woke up, opened the door of the house upon which, the accused ran and hid himself nearby. Harshaben's husband followed him. Fearing being identified, the accused gave him two knife blows leaving Kantilal profusely bleeding. He was taken to the hospital where after few days he died. The accused was therefore charged with offence punishable under sections 379, 382, 302, 506(2) of the Indian Penal Code and under section 135 of the Bombay Police Act. The learned Additional Sessions Judge, by the impugned judgment, convicted the accused for offences punishable under sections 326, 379, 382, 511, 302 and 506(2) of IPC and 135 of the Bombay Police Act. For the offence under section 302, he was sentenced to undergo life imprisonment. Lesser sentences and fine were imposed for the further offences. 2. We may record the gist of the evidence. Harshaben, wife of the deceased, is the most important witness. She deposed that on the night of the incident at about 10 O'clock, she and her son had gone to sleep inside the house. Her husband went for work after dinner and returned at about 12 O'clock and went to sleep nearby. At about 3 O'clock, she had woken up her husband hearing some noises. She deposed that on the night of the incident at about 10 O'clock, she and her son had gone to sleep inside the house. Her husband went for work after dinner and returned at about 12 O'clock and went to sleep nearby. At about 3 O'clock, she had woken up her husband hearing some noises. The husband opened the door and went out to check. He saw one person running away. He, therefore, ran after him to catch him. A minute or two later, she could hear her husband's screams. She rushed there and saw that her husband had fallen down bleeding. He had injuries on the shoulder and in the stomach. Her husband told her that the man, whom he had chased, had stabbed him. She called for help from the relatives staying in the area and took her husband to the hospital where he died four days later on 15.01.2009. 2.1 While explaining the manner in which, the incident took place, she elaborated that she knew the accused Jindaal whom she had met about two and half years back. The accused was running a food stall (dhaba). She and the accused had developed romantic relations. The accused had given her a mobile phone with the sim card which had a number 9904337449 from which she would speak to the accused. Close to her house, there were rooms of one Dinesh Maharaj. One of the rooms was in the possession of the accused where the two would meet and often have sexual relations. She would keep the phone on vibration mode and, if she did not respond, the accused would throw small stones on the terrace of her house to let her know that he had come. Sometime he would also knock gently on the window and call her. She would sometime open the door of the house and they would meet in the kitchen. He would come to her house couple of times in a month. 2.2 About seven months before the incident, she had a fight with the accused. The reason for fight was that she had not been meeting the accused for a long time. The accused was pressurizing her to run away with him to Punjab and she was not ready to do that. Since then the accused would harass her. On 29.12.2008, she had gone to the market to buy clothes for her son. The reason for fight was that she had not been meeting the accused for a long time. The accused was pressurizing her to run away with him to Punjab and she was not ready to do that. Since then the accused would harass her. On 29.12.2008, she had gone to the market to buy clothes for her son. She came in contact with Digvijaysinh, who was sitting at the store and the two had developed soft feelings and exchanged phone numbers. The number of Digvijaysinh was 9904128970. She had given her number 9904251288 which her husband had given her. 2.3 After 3 O'clock in the afternoon on 11.01.2009, she had spoken with Digvijaysinh on mobile and told him to come to her house after 2 O'clock in the night when she gives a missed call. On that very day, from 6 O'clock in the evening, the accused started calling her frequently and insisted on meeting her. Between 6 and 10 in the evening, he had called at least six to seven times. She did not want to meet the accused as she had already committed to meet Digvijaysinh. Jindaal was using two mobile numbers 9824473825 and 9904226016. From these numbers he had called her several times that day. 2.4 On the night of the incident, she had kept both her mobiles on vibration mode. Her husband returned from work at 12 at night and went to sleep. Between quarter to 12 and 2 at night Jindaal called thrice and insisted on meeting. She gave some excuses for not meeting him. She then gave a missed call to Digvijaysinh from her mobile which was given to her by her husband. Digvijaysinh returned the call and she asked him to come over. After this also, the accused called twice. She refused to meet him. He called couple of times again. When Digvijaysinh came to her house and called him, she opened the door and let him in. A while later she could hear someone throwing stones on the terrace and realized that it must be Jindaal. She and Divijaysinh were sitting inside the room. Digvijaysinh got nervous and thought that somebody has spotted him coming inside and left immediately at about 2:30. Though she heard the noise of throwing stone on the terrace again, she did not open the door, upon which, the accused got very angry. She and Divijaysinh were sitting inside the room. Digvijaysinh got nervous and thought that somebody has spotted him coming inside and left immediately at about 2:30. Though she heard the noise of throwing stone on the terrace again, she did not open the door, upon which, the accused got very angry. He came near the door and asked her to open it and then got angry and started banging the door. She got worried that her husband may wake up. Thinking that if she woke up her husband herself, Jindaal would run away, she woke up her husband and told him that there was some noise outside. Her husband opened the door. Jindaal must have seen him and therefore, started running away. Her husband thinking that it must be a thief, ran after him. Just a minute and a half later, she heard her husband's screams and rushed to him and found him lying bleeding with injuries. He told her that while trying to catch the thief he was stabbed. At that time, she did not think that the injuries were serious and afraid of her illicit relations coming to light, she did not tell anybody about the background. Her husband was shifted to G.G. Hospital, Jamnagar. 2.5 At about 4:15 in the morning, the accused again called her. He wanted to confirm that the injuries were not very serious. She was angry with him for having injured her husband. After this, Jindaal called her few more times only to enquire about her husband. Every time he would plead her not to declare his name. He told her that he had attacked her husband or else he would have been caught. 2.6 Her husband's health went on deteriorating. She switched off the phone and after removing the sim card, threw away the instrument in the dustbin at the hospital. Her husband died on 15.01.2009. She, therefore, told the truth to the family members. Previously she did not do that because if the truth had come out her husband would have thrown her out of the house. She stated that her husband knew accused Jindaal since sometimes he would bring food from his hotel. She had handed over the sim card of her mobile which had a number 9904337449. She had registered FIR which was produced at Exh 76. She stated that her husband knew accused Jindaal since sometimes he would bring food from his hotel. She had handed over the sim card of her mobile which had a number 9904337449. She had registered FIR which was produced at Exh 76. 2.7 In a lengthy cross examination, this witness was questioned on her earlier police statements including FIR where her version was that she had woken up her husband, told him that some thief seems to have come and it was the thief who would have injured her husband while trying to escape. She was also shown the papers relating to a civil suit filed by the relatives of her husband to disinherit her from her husband's property in which, the allegations were made that she was herself an abettor in the offence of murder. She was also questioned on the role of Digvijaysinh since according to the statement of this witness Digvijaysinh himself was inside the house on the very night when the incident took place. She admitted that she had neither seen anybody come out from the nearby chawl where her husband was stabbed nor had she seen accused actually stabbing her husband. 2.8 She stated that on the mobile number 9904337449 given to her by the accused, she would speak only with the accused and no one else. 3. PW 13 Digvijaysinh @Digubha Kalyansinh Jethva Exh 44 is another important witness. He deposed that at the relevant time, he was sitting at the shop of his brother-in-law Aniruddhsinh and selling clothes. Harshaben had come to his shop to buy clothes for her son on 29.12.2008. The two had immediately developed soft feeling and exchanged their mobile numbers. On 11.01.2009, Harshaben called him in the afternoon at about 3 O'clock and told him to come to her house late at night after she gives a missed call. At 2 O'clock at night she had given a missed call from her mobile number 9904251288 upon which, he called back and Harshaben called him at her house. When he reached there, Harshaben opened the door. When they were necking with each other, he heard a stone falling on the terrace and was scared that someone might have seen him coming and he immediately left the place in a hurry. On the way, he had seen the accused standing. When he reached there, Harshaben opened the door. When they were necking with each other, he heard a stone falling on the terrace and was scared that someone might have seen him coming and he immediately left the place in a hurry. On the way, he had seen the accused standing. He knew the accused because he often would have his meals at his hotel. Harshaben called him couple of times later to confirm that he had reached home safely. Next day, when he woke up, he heard that Kantilal was stabbed and he has been admitted in the hospital. In the cross examination, he was questioned on the appearance of the accused. It was also suggested that on the night of the incident, he was caught in a compromising position with Harshaben upon her husband waking up. He had, therefore, ran away from the place and in the scuffle with the husband he had stabbed her husband. He, however, denied such suggestion. 4. Kishorebhai Thakarsibhai Peshavariya PW 16 Exh 52 was the brother of the deceased Kantilal. He lived close by. He had gone to the house of Kantilal on the night of the incident and found that he was lying on the floor profusely bleeding. According to him, Harshaben had revealed the entire truth to him later on. 5. Firdoshali Gulambhai Chatala, Exh 62 was the owner of a restaurant with a shop attached to it. He confirmed that he had sold a knife from his shop to the accused. In the cross examination, he was questioned on the restaurant and the shop being separated and being looked after by separate people. 6. PW 1 Dr. Maheshbhai Mansukhbhai Tragadiya, Exh 10 had carried out the postmortem. In the postmortem note Exh 13, he had recorded following external injuries: "1. After removing surgical bandage from abdomen, 20 cm long, 1 cm broad and cavity deep open surgical wound seen on just left to the neid line of abdomen, starting from 16 cms above the umbilicus and ends at 4 cms below the umbilicus. Above all 6 cms from umbilicus one oblique open wound seen which is continuous with above mentioned surgical wound. It is 5 cm long and 0.5 cm broad and cavity deep. Stitch marks seen on both wounds margins. Margins are edematous sharp and reddish brown in colour. All ends are sharp. 2. Above all 6 cms from umbilicus one oblique open wound seen which is continuous with above mentioned surgical wound. It is 5 cm long and 0.5 cm broad and cavity deep. Stitch marks seen on both wounds margins. Margins are edematous sharp and reddish brown in colour. All ends are sharp. 2. After removing dressing, a 5 cm long stitched wound seen at outlet surface of left arm, 7 cms below lip of shoulder. It is muscle deep and stitched with black material (6 stitches). On opening stitches, margins are reddish brown in colour, sharp ends are sharp. It is oblique ID posterior end is upper side compared to anterior end." 7. Corresponding to such injuries, following external injuries were recorded: "Just beneath the injury No. 1, Ant. Abdominal muscles are stitched with violet coloured stitch material in opening, peritoneal cavity, omentum and 100p of intestines shows congestion (red in colour) 100 ps of intestine all adulterant with each other and inflamed. Stomach is empty and congested. In small intestine (1) A 2.5 x 1 cm stitched wound seen at 5 cms distal to D.J. Junction (2) A 1.5 x 1 cm stitched wound seen at 2 cms distal to above mentioned wound. (3) a 2x1 cm stitched wound seen at 5 cms distal to No. 2. All stitched wounds are stitched with black materials. Foul smell is perceived from cavity. Rest nothing particular." According to him death was due to shock on account of peritonitis due to complications of intestinal perforations. The injuries could be caused by sharp weapon. 8. The murder weapon knife was discovered by the investigating agency under discovery panchnama Exh 35 which would show that the accused led the police party and the panch-witnesses at an isolated place from where inside the shop without a shutter beneath a big stone on a heap of sand, he took out a knife which was recovered. The FSL with serological report Exh 136 would show that the soil at the place where the incident was stated to have taken place, the clothes of the deceased and the knife carried blood of group 'B' that belonging to the deceased. 9. The call details of the telephone numbers used by the complainant Harshaben, by the accused Jindaal and the witness Digvijaysinh were produced by the officers of different mobile service provider companies. 9. The call details of the telephone numbers used by the complainant Harshaben, by the accused Jindaal and the witness Digvijaysinh were produced by the officers of different mobile service provider companies. It is not necessary to refer to them since the call details produced at Exhs 109, 112, 113, 118, 119 and 120 are not seriously in dispute. We will refer to the call movements of these telephone numbers a while later. 10. This, in the nutshell, is the evidence on record. While trying to appreciate such evidence one thing that becomes immediately clear to us is that the entire case hinges on the reliability of the complainant Harshaben. If we accept her version to be by and large true, we would have no hesitation in confirming the involvement of the accused. On the other hand, if we find that her testimony is not trustworthy, the accused would get a benefit of doubt. This is so primarily because there are only two witnesses, who have been able to give some idea of what might have happened on the fateful night. Keeping the testimony of Harshaben aside for a moment, we have a brief version of Digvijaysinh. He claimed to be at the house of Harshaben late at night and left in a hurry when he could hear some stone being thrown on the terrace. On the way home, he claims to have seen the accused standing nearby the house of the complainant. Firstly, this witness can, at best, corroborate the principal evidence of Harshaben since the personal knowledge of this witness is confined to spotting the accused near the house of the complainant rather late at night. However, it would be unsafe to accept the version of this witness in this regard. Digvijaysinh himself admits to have been inside the house of Harshaben a short time before the incident took place. He and Harshaben both admitted to having extra marital relations. The call details between the two, to which we would refer later, point out that they had exchanged phone calls at odd hours on the night of the incident itself. Under ordinary circumstances therefore, the role of Digvijaysinh himself would be under scanner. He, therefore, had every reason to deflect the suspicion from him. The call details between the two, to which we would refer later, point out that they had exchanged phone calls at odd hours on the night of the incident itself. Under ordinary circumstances therefore, the role of Digvijaysinh himself would be under scanner. He, therefore, had every reason to deflect the suspicion from him. His reference to the presence of the accused at an unearthly hour at night when he himself was escaping from the house of Harshaben, would not be a reliable piece of information. 11. This leaves us with the testimony of Harshaben to assess. In brief the version of Harshaben was that she and Jindaal had come in contact about two and half years before the incident. Jindaal had given her a mobile phone with the sim card which they used freely to be in touch with her. Often Jindaal would come late at night at her house and the two would have sexual intercourse. However, about seven months before the incident, the relations started getting tensed. Jindaal wanted Harshaben to run away with him which she was not prepared for. A couple of weeks before the incident, Digvijaysinh also came in the life of Harshaben. In the night of the incident, Harshaben had promised to meet Digvijaysinh. The accused also was desperate to see her for which he made multiple calls. Even though Harshaben refused to meet, he arrived nevertheless at her house. When spurned, he first threw stones on the terrace and then started knocking at the door initially gently then more insistently. It was then that Harshaben panicked and woke her husband up. Her husband came out of the house and chased Jindaal who stabbed him a little distance away. 12. Initially Harshaben did not speak the truth and stuck to the version of an unknown person having stabbed her husband while trying to escape. It was when the things became more serious with the death of her husband she first told the whole story to the relatives of her husband and then to the police. 13. Relevant pieces of evidence when put together would show that what Harshaben has said in her deposition is substantially true. To begin with she had given a detailed version of her past relations with Jindaal. 13. Relevant pieces of evidence when put together would show that what Harshaben has said in her deposition is substantially true. To begin with she had given a detailed version of her past relations with Jindaal. Then on to her more recent relations with Digvijaysinh and the possibility of both of them being at her house on the night of the incident. Having promised to see Digvijaysinh, she made all her efforts to avoid Jindaal coming to her house also. Jindaal, on the other hand, got more and more angry and insistent. Quite apart from her deposition, we have corroborative evidence in the form of mobile call details to which we may presently refer to. 14. Mobile number 9904337449, according to this witness, was given to her by the accused. The sim card of this number was recovered from her during the course of investigation. The complainant also used another mobile number 9904251288 which was given to her by her husband. The accused was also using two mobile sim cards one being 9824473825 and other being 9904426106. Digvijaysinh, PW 13 was using mobile phone number 9904128970. 15. Late at night on 11.01.2009, i.e. technically on 12.01.2009, Digvijaysinh called Harshaben at 2:11 am. This was followed by calls at 2:18 am, 2:49 am and 2:52 am. Each one was a brief call of not more than couple of minutes. Likewise, there were hectic call movements between the number of the complainant given to her by the accused i.e. 9904337449 and those of the accused viz. 9824473825 and 9904226016 around the date of the incident. In fact, the call details of the number 990437449 shows that almost all calls were with the two phone numbers of the accused. On 11.01.2009 itself the calsl started at 3:15 in the afternoon and were made number of times in succession. Some of them turned out to be missed calls. Between 3:15 and 3:17 itself the accused made as many as nine failed attempts to talk to the complainant. At 5:28, he spoke to her for more than 39 minutes. At 6:12 the same day, he again spoke to her for twenty seven minutes. At 7:25 another conversation lasted for nearly twelve minutes. This pattern continued when from 10 O'clock onwards the complainant refused to receive the calls, except for an isolated occasion when the conversation seems to have taken place. At 6:12 the same day, he again spoke to her for twenty seven minutes. At 7:25 another conversation lasted for nearly twelve minutes. This pattern continued when from 10 O'clock onwards the complainant refused to receive the calls, except for an isolated occasion when the conversation seems to have taken place. The accused made another nearly eight to ten such attempts to speak to the complainant on the night of 11.01.2009 and the early morning of 12.01.2009. Even after the incident was over, we find that the accused had spoken to the complainant at 4:21 am on 12.01.2009 itself. 16. These call details are significant since they corroborate the testimony of the complainant about the events of the night of 11.01.2009. She had been in touch with Digvijaysinh at the crucial time just before she referred to his presence in her house. The call details also bear out her testimony that the accused was impatient to meet and in fact, his impatience reached the level of desperation. 17. In further corroboration, we have the discovery of the knife at the instance of the accused. The knife so recovered carried the blood of the same group as that of the deceased. The fact that the incident took place slightly away from the house was established by recovering blood stained soil from the scene of incident. The investigation also noticed blood spots just outside the house where the husband of the complainant in an injured condition was kept before arrival of the ambulance. 18. It was argued that Kantilal did not give the name of assailant in the history given to the doctor and therefore, the version of the complainant should not be believed. It was pointed out that according to the complainant, her husband knew the accused very well. However, the complainant herself had referred to the accused covering his face with a cloth to avoid identification. The possibility therefore, while the accused trying to get away would have covered his full face cannot be discarded. 19. Having found that the accused was involved in stabbing Kantilal, the question is which offence did he commit? From the evidence on record, it is clear that the accused had not arrived at the house of the complainant with the pre-meditation of causing death of Kantilal. His prime purpose was to meet the complainant. 19. Having found that the accused was involved in stabbing Kantilal, the question is which offence did he commit? From the evidence on record, it is clear that the accused had not arrived at the house of the complainant with the pre-meditation of causing death of Kantilal. His prime purpose was to meet the complainant. It was when trying to escape and in order to avoid his identity being revealed, the accused seems to have used a knife which he was carrying. That apart, we may also note the nature of injuries caused by him. One is a knife blow given in the shoulder region, another was given in the stomach. If the intention was to cause death, nothing prevented the accused from giving more blows with greater effect. The deceased survived for nearly four days and died due to septicemia caused by perforation in the intestine. Considering the manner, in which the offence was committed and the fact that accused does not have any criminal antecedents, in our opinion, he should be convicted for offence punishable under section 304 part I instead of section 302 of IPC and awarded sentence of 10 years of rigorous imprisonment. Additionally, we are surprised that having convicted the accused for offence under section 302, learned Judge also convicted him for offence under section 326 for the same set of injuries which was not permissible. 20. In the result, the appeal is disposed of in following terms: "Conviction of the accused for offence under section 302 is converted into one under section 304 Part I. He is sentenced to undergo rigorous imprisonment for 10 years. His conviction and sentence for offence under section 326 is set aside. Remaining convictions and sentences including fine shall remain unchanged. Appeal is allowed in part and disposed of accordingly. R & P to be transmitted back to the Trial Court." Disposed off