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SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYAN, JJ.
Hussainbhai Asgarali Lokhandwala – Appellant
Versus
State of Gujarat – Respondent
Criminal Appeal No. 1691 of 2023
WITH
Asgarali Onali Lokhandwala – Appellant
Versus
State of Gujarat and Others – Respondents
Criminal Appeal Nos. 1693-1695 of 2023
WITH
Hussaini Mithiborewala – Appellant
Versus
Asgarali Onali Lokhandwala and Others – Respondents
Criminal Appeal No. 1692 of 2023
Decided On : 14-08-2024
Indian Penal Code, 1860 – Section 304 Part II [Bharatiya Nyaya Sanhita, 2023 – Section 105] – Culpable homicide not amounting to murder – Conviction and sentence – Appellants are estranged in-laws of deceased – It is natural for a young man to be emotionally upset to see his sister allegedly ill-treated by her in-laws – It is quite possible that as a young man, appellant was overcome by emotion which led him to physically attack deceased and his son (brother-in-law) – Incident was not premeditated – Entire incident had occurred in heat of moment and that neither party could control their anger which ultimately resulted into fateful incident – Since High Court had brought down charge from Section 304 Part I IPC to Section 304 II IPC, it would be in interest of justice if sentence of appellant is further modified to period of incarceration already undergone by him while maintaining conviction – While maintaining conviction of appellant under Section 304 Part II IPC, his sentence modified to period already undergone by him – All other criminal appeals dismissed. (Paras 23, 24, 25, 26 and 27)
Facts of the case:
Vide impugned Judgment, High Court modified judgment and order of Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No. 292 of 2001 by altering conviction of appellant from one under Section 304 Part I of Indian Penal Code, 1860 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) but restricted the sentence of imprisonment to the period already undergone by him.
Findings of Court:
While concurring with impugned judgment of High Court dated 06.05.2016 insofar alteration of conviction is concerned, sentence imposed upon appellant should be altered to period of incarceration already undergone by him.
Result : Criminal Appeal partly allowed.
JUDGMENT :
UJJAL BHUYAN, J.
1. This judgment will dispose of Criminal Appeal Nos. 1691 of 2023, 1692 of 2023, 1693 of 2023, 1694 of 2023 and 1695 of 2023.
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.
3. Criminal Appeal No. 1692 of 2023 has been filed by the informant-Husseni Mithiborewala against alteration of conviction of the two accused in Sessions Case No. 292 of 2001, i.e., the appellant-Hussainbhai Asgarali Lokhandwala and the co-accused Asgarali Onali Lokhandwala by the High Court from Section 304 Part I IPC to Section 304 Part II IPC.
4. Criminal Appeal Nos. 1693, 1694 and 1695 of 2023 have been filed by Asgarali Onali Lokhandwala against the aforesaid judgment and order of the High Court in only partly allowing Criminal Appeal No. 29 of 2007 by altering the sentence but maintaining the conviction. Challenge has also been made to the aforesaid judgment and order of the High Court in dismissing Criminal Revision Application Nos. 294 of 2007 and 295 of 2007 whereby the acquittal order of the trial court acquitting Hussaini Mithiborewala and Others in Sessions Case No. 171 of 2004 has been upheld.
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:
(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.
6. Criminal Appeal No. 1691 of 2023, being the lead appeal, facts narrated therein (which is common to all the appeals
The court established that actions taken in the heat of passion without premeditation can lead to a conviction for culpable homicide rather than murder.
The incident constituted sudden provocation without premeditation, justifying a conviction under Section 304 IPC and allowing for a sentence modification based on mitigating factors.
Point of law : Only one blow given by the appellant on the head of the deceased which appears to have been given with full force. Furthermore, the act was committed without premeditation in a sudden ....
The main legal point established in the judgment is the distinction between 'culpable homicide amounting to murder' and 'culpable homicide not amounting to murder' under Section 304 of the Indian Pen....
Intent to kill was established through infliction of dagger wounds; original conviction for culpable homicide was incorrect as the act constituted murder as per IPC definitions.
The court established that culpable homicide can be distinguished from murder based on the presence of intention and premeditation, particularly in cases of sudden provocation.
The conviction was modified from Section 304(Part-II) to Section 325 of IPC, establishing that while the actions resulted in serious injury, they did not demonstrate the intent necessary for murder.
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