Appeal against the sentence modified by the High Court
2. Criminal Appeal No. 1691 of 2023 arises out of SLP(Criminal) No. 7622 of 2016 filed by Hussainbhai Asgarali Lokhandwala (appellant herein). In this appeal, challenge has been made to the judgment and order dated 06.05.2016 passed by the High Court of Gujarat at Ahmedabad (‘High Court’ hereinafter) in Criminal Appeal No. 29 of 2007 whereby, though the High Court modified the judgment and order of the learned Additional Sessions Judge, Panchmahal at Godhra (‘trial court’ hereinafter) in Sessions Case No. 292 of 2001 by altering the conviction of the appellant from one under Section 304 Part I of the Indian Penal Code, 1860 (IPC) to one under Section 304 Part II IPC but, sentenced him to undergo rigorous imprisonment (RI) for five years while maintaining the sentence of fine. Be it stated that, by the same judgment and order, the High Court had similarly altered the conviction of the co-accused (co-appellant) – Asgarali Onali Lokhandwala but restricted the sentence of imprisonment to the period already undergone by him.
5. All the related criminal appeals and criminal revision applications were disposed of by the High Court by the impugned judgment and order in the following terms:
22. For the following reasons, the impugned judgment and order passed by the learned Addl. Sessions Judge, Panchmahal 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. 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 and 295/2007 stand dismissed.
9. All the above criminal appeals and criminal revision applications were heard together by the High Court and by the judgment and order dated 06.05.2016, were disposed of in the manner as indicated in paragraph 5 above. In short, conviction of Asgarali Onali Lokhandwala and Hussainbhai Asgarali Lokhandwala was altered from one under Section 304 Part I IPC to one under Section 304 Part II IPC. While the sentence of Asgarali Onali Lokhandwala was modified to the period of incarceration already undergone by him, insofar Hussainbhai Asgarali Lokhandwala is concerned, his sentence was modified to five years. Consequently, all the other criminal appeals and criminal revision applications were dismissed.
Injury was anti-mortem and was caused by a sharp weapon
19. Dr. Ramesh Chandra deposed as PW-12. He had conducted the postmortem examination of the deceased Idrishbhai. He deposed about the external injuries sustained by the deceased. There was one stab wound on the left side of the stomach at a distance of about 1 inch from the navel. The size of the wound was 2 inches long and 1.5 inches wide. It was deep till the abdominal cavity. It was a sharp wound with blood coming out therefrom. The injury was ante-mortem and was caused by a sharp weapon.
Investigation Officer cross
20. PW-22 Rayjibhai Dahyabhai Solanki is the investigating officer who had investigated the case and had submitted the chargesheet. In his examination-in-chief, he stated that on 09.11.2000, accused Hussainbhai Asgarali Lokhandwala expressed willingness to take the police to the place of occurrence for recovery of the knife used by him. Accordingly, he alongwith the panchas were taken in a police van to the place of crime. Accused Hussainbhai Asgarali Lokhandwala led the police and the panchas to the kitchen of his house and from one of the drawers in the kitchen, he took out a knife saying that the same was used for stabbing the deceased and PW-5. That knife was seized and sealed in the presence of the panchas.
20.1. PW-22 was subjected to a long cross-examination. However, what is of relevance is what he stated in his crossexamination. He stated that the glass pane of the door of the house of the accused was found broken and pieces of glass were lying in the compound. That apart, he stated that there was blood splattered in the compound which was of both the parties. Though the blood belonged to different persons, only the sample of the accused persons was taken. That apart, he had seized one stick from Abbasbhai and one knife from Husseni @ Gopi.
20.2. PW-22 further stated that though the age certificate of the accused Hussainbhai Asgarali Lokhandwala was not obtained but it was a fact that he was a student then, studying in the 12th standard.
21. On a cumulative analysis of the evidence of the above prosecution witnesses, the picture which emerges is that there was a matrimonial dispute between Oneja and her husband Abbas. Despite that they had come home from Ahmedabad on 07.11.2000 for attending the marriage of Merriam. However, because of the strained relationship, Oneja did not stay with Abbasbhai in his residence. Instead, she alongwith her daughter Natasha decided to stay in her father’s house which was in the close vicinity of the residence of her husband Abbas. On that fateful day, despite receiving calls from her husband, Oneja refused to come to his house. A maid was sent to bring back the keys of the cupboard of the Ahmedabad house but Oneja refused to handover the keys to the maid. It was then that Abbasbhai went to the residence of his father-in-law and demanded from his wife that the keys of the cupboard should be handed over to him. At this, pandemonium broke out resulting in a hue and cry as Oneja’s father Asgarali accused Abbasbhai of harassing his daughter. When aunt Arvaben went to the residence of Asgarali to diffuse the situation, she was pushed back by Asgarali as a result of which she fell down and suffered injuries. Idrishbhai went to the place of occurrence followed by PW-5. It appears that the very sight of Idrishbhai flared up the situation and an enraged Asgarali caught hold of his (Idrishbhai’s) arms from behind, calling upon his son Hussain to finish him off. It has come on record that while asking his son to finish off Idrishbhai, Asgarali had said that these people (referring to Idrishbhai and his son Abbasbhai) had caused lot of distress to them. Therefore, he should be finished off. It was at that stage that Hussainbhai Asgarali Lokhandwala, son of Asgarali, brought a kitchen knife from inside the house and fatally stabbed Idrishbhai. When PW-5 sought to intervene, he was also stabbed in the stomach by Hussainbhai as he had stabbed Idrishbhai. That apart, there also appears to be pelting of stones aimed at the glass door of the house of Asgarali shattering the glass pane besides scuffle between the parties.
Conviction and modification
22. The trial court had convicted Asgarali and Hussainbhai under Section 304 Part I IPC as well as under Sections 323 and 324 thereof. On appeal, the High Court by the impugned judgment and order altered the conviction of both Asgarali and Hussainbhai from one under Section 304 Part I IPC to one under Section 304 Part II IPC. While the sentence of Asgarali was modified to the period of incarceration already undergone by him, that of Hussainbhai was modified to five years.
Accused was a young man and was overcome by emotion which led him to physical attack of the deceased further there was only a stab wound on the stomach
23. In so far Hussainbhai is concerned, what is discernible from the record is that he was a young man of 18 years of age at the time of the incident studying in Class 12. There was a history of matrimonial dispute between his sister and brother-in-law Abbasbhai. It is natural for a young man to be emotionally upset to see his sister allegedly ill-treated by her in-laws and when the deceased and Abbasbhai came to their residence leading to the ruckus, it is not difficult to visualize the state of mind of Hussainbhai as well of his father Asgarali. The tension was building up since morning as Abbasbhai was first insisting that his wife Oneja should come to his house and then insisting on the cupboard key of the Ahmedabad house to be handed over to him. It is important to note that the incident had taken place inside the residence of Asgarali (and then spilling over onto the street infront) and not in the residence of Idrishbhai. It is quite possible that as a young man, Hussainbhai was overcome by emotion which led him to physically attack the deceased and his son (brother-in-law). The fact that the incident was not premeditated is buttressed by the happening thereof inside the residence of Asgarali. Besides there was only a stab wound each on the stomach of the deceased and PW-5. The knife was not directed by Hussainbhai at the upper portion of the bodies of the deceased and PW-5.
Hon’ble Apex court accepted the view taken by the High Court
24. We are in agreement with the view taken by the High Court that the entire incident had occurred in the heat of the moment and that neither party could control their anger which ultimately resulted into the fateful incident.
25. That being the position and since the High Court had brought down the charge from Section 304 Part I IPC to Section 304 II IPC, we feel that it would be in the interest of justice if the sentence of the appellant Hussainbhai Asgarali Lokhandwala is further modified to the period of incarceration already undergone by him while maintaining the conviction.
Conviction altered into the sentence period of incarceration already undergone by the appellant
26. Much water has flown down the river by this time. The unfortunate incident leading to the loss of a precious life and sustaining of injuries by a couple of others had happened in a spur of the moment. Therefore, while concurring with the impugned judgment of the High Court dated 06.05.2016 insofar alteration of the conviction is concerned, we are of the view that the sentence imposed upon the appellant should be altered to the period of incarceration already undergone by him. That being the position, it is not necessary to delve into and elaborate upon the other contentions raised at the Bar.
Party
Hussainbhai Asgarali Lokhandwala Appellant(S) versus State of Gujarat Respondent(S) – Criminal Appeal No. 1691 of 2023 – 2024 INSC 609 – August 14, 2024.