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2013 Supreme(Guj) 747
IN THE HIGH COURT OF GUJARAT
Akil Kureshi, R.P. Dholaria, JJ.
Adambhai Valabbhai Chopda - Appellant
Versus
State of Gujarat - Respondent
Criminal Appeal No. 1130 of 2011 With Criminal Appeal No. 1179 of 2011
Decided On : 27-09-2013
For the Appellant :Ms. Archna Amin For Mr. G.M. Amin, Advocates
For the Respondent: Ms. H.B. Punani, APP.
Headnote:
Penal code,1860 - Section 307 - Attempt to murder - Whether proved - Appeal against conviction - Appeal - Held, 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 - Appeal partly allowed.
Facts of the case:
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, son-in-law 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 charge-sheet was filed before the concerned Court. The case was committed for sessions trial. The charge was framed.
Findings of the case:
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
Result: Appeal partly allowed
JUDGMENT :
R.P. Dholaria, J.
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, son-in-law 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 charge-sheet 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:
| Sr. No. | Name | Exh. No. |
| 1 | Mahmadrafik Anverhusein | 9 |
| 2 | Maheshbhai Bhagvandas | 16 |
| 3 | Rasulbhai Daudbhai Chhuara | 23 |
| 4 | Dr. Bhaveshbhai Ramubhai Hadial | 25 |
