Full Judgment Text
2024 INSC 609
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1691 OF 2023
HUSSAINBHAI ASGARALI
LOKHANDWALA APPELLANT(S)
VERSUS
STATE OF GUJARAT RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS. 1693-1695 OF 2023
ASGARALI ONALI LOKHANDWALA APPELLANT(S)
VERSUS
STATE OF GUJARAT & ORS. RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 1692 OF 2023
HUSSAINI MITHIBOREWALA APPELLANT(S)
Signature Not Verified
VERSUS
Digitally signed by
satish kumar yadav
Date: 2024.08.14
17:58:54 IST
Reason:
ASGARALI ONALI LOKHANDWALA & ORS. RESPONDENT(S)
2
J U D G M E N T
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
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:
22. For the following reasons, the impugned
judgment and order passed by the learned Addl.
Sessions Judge, Panchmahal at Godhra in
4
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
th
before 29 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
st
withdrawn, on or before 31 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)
are referred to hereunder.
5
7. Onejaben is the daughter of Asgarali Onali
Lokhandwala (accused No. 1) and was the wife of Abbasbhai, who
is the son of Idrishbhai Fidaali Mithiborewala. On 07.11.2000,
both husband and wife had come to Godhra alongwith their minor
daughter to attend a marriage. Because of matrimonial dispute,
the wife did not stay with her husband but came to the residence
of her parents. At around 19:30 hours, husband Abbasbhai came
to the residence of accused No. 1 Asgarali Onali Lokhandwala to
take back his wife Onejaben. However, accused No. 1 refused to
send his daughter alongwith Abbasbhai. This resulted in a heated
exchange of words between accused No. 1 and Abbasbhai. On
hearing the hue and cry, Arvaben, wife of the informant-Turabbhai
Abdulhussain, came to the residence of accused No. 1. She asked
accused No. 1 and Abbasbhai to stop quarreling. However, accused
No. 1 pushed Arvaben, as a result of which she fell on the ground
and sustained injuries on her hand. During this period, Idrishbhai
Fidaali Mithiborewala and his other son i.e., brother of Abbasbhai,
Husseni rushed to the residence of accused No. 1. At this stage,
accused No. 1 caught hold of Idrishbhai Fidaali Mithiborewala and
accused No. 2 Hussainbhai Asgarali Lokhandwala (son of accused
No. 1) brought a knife and inflicted a knife blow on the stomach
region of Idrishbhai Fidaali Mithiborewala who had to be
6
hospitalized because of the injuries sustained by him. In the
course of his treatment, Idrishbhai Fidaali Mithiborewala
succumbed to the injuries and died.
7.1. In this connection, FIR was lodged before the Godhra
police station, being I-C.R. No. 314/2000. In the course of
investigation, both accused No. 1 and accused No. 2 were arrested.
In connection with the same incident, a cross FIR was lodged by
accused No. 1, being I-C.R. No. 315/2000, against the husband
and in-laws of Onejaben.
7.2. On completion of investigation, chargesheet was filed
against the accused persons before the trial court. Being a sessions
triable offence, the case was committed to the Court of Sessions
where it was registered as Sessions Case No. 292 of 2001
whereafter trial was initiated. In the trial, prosecution examined as
many as 22 witnesses and also relied upon several documentary
evidence. On conclusion of the evidence of the prosecution
witnesses, statement of the accused were recorded under Section
313 of the Code of Criminal Procedure, 1973 (CrPC). Thereafter,
the trial court the judgment and order dated 07.11.2006
vide
convicted both the accused, i.e. Asgarali Onali Lokhandwala and
Hussainbhai Asgarali Lokhandwala under Section 304 Part I IPC
7
read with Sections 323 and 324 of the said Code. For the
conviction under Section 304 Part I IPC, both the accused were
sentenced to undergo RI for a period of five years and to pay a fine
of Rs. 50,000.00 each with a default stipulation. It was clarified
that out of total fine amount, an amount of Rs. 90,000.00 should
be paid as compensation to the legal representatives of the
deceased-Idrishbhai Fidaali Mithiborewala. For the conviction
under Section 323 IPC, both the accused were sentenced to
undergo RI for seven days and for the conviction under Section
324 IPC, they were sentenced to undergo RI for two years. All the
sentences were directed to run concurrently with the period of
imprisonment already undergone by the accused, given a set off.
7.3. In the related case arising out of I-C.R. No. 315/2000,
Sessions Case No. 171 of 2004 came to be registered. Here,
husband and in-laws of Onejaben were accused. On conclusion of
the trial, all the accused in Sessions Case No. 171 of 2004 were
acquitted by the trial court vide the judgment and order dated
07.11.2006.
8. We may mention that the judgment and order dated
07.11.2006 passed by the trial court in Sessions Case No. 292 of
2001 came to be challenged by the two accused Asgarali Onali
Lokhandwala and Hussainbhai Asgarali Lokhandwala before the
8
High Court in Criminal Appeal No. 29/2007. In this appeal, the
conviction of the accused by the trial court was challenged.
8.1. Criminal Appeal No. 45 of 2007 was filed by the State
seeking enhancement of sentence imposed on the two accused in
Sessions Case No. 292 of 2001.
8.2. Criminal Revision Application No. 35 of 2007 came to be
filed before the High Court by the injured witness-Husseni
Mithiborewala (as the original complainant had passed away in the
interregnum ) seeking conviction of the two accused Asgarali Onali
Lokhandwala and Hussainbhai Asgarali Lokhandwala under
Section 302 IPC instead of under Section 304 Part I IPC.
8.3. Criminal Revision Application No. 182 of 2007 was
registered suo - motu by the High Court on the issue of quantum of
sentence in Sessions Case No. 292 of 2001.
8.4. Criminal Revision Application No. 294 of 2007 was
preferred by Asgarali Onali Lokhandwala against the judgment
and order of the trial court dated 07.11.2006 passed in Sessions
Case No. 171 of 2004 whereby accused No. 4 in Sessions Case
No. 171/2004 Samimben Idrishbhai Mithiborewala was acquitted
of all the charges framed against him under Sections 452, 427,
9
323, 324, 504 and 498A IPC read with Section 114 IPC and Section
135 of the Bombay Police Act, 1951.
8.5. Similarly, Criminal Revision Application No. 295/2007
was filed by Asgarali Onali Lokhandwala against the judgment and
order of the trial court dated 07.11.2006 passed in Sessions Case
No. 171 of 2004 whereby accused Nos. 1 and 2 of that case
Abbasbhai Idrishbhai Mithiborewala and Husseni @ Gopi
Idrishbhai Mithiborewala were acquitted of all the charges framed
against them under the aforesaid provisions of law.
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.
10
10. Mr. Nikhil Goel, learned counsel for the appellant at the
outset submits that the trial court was not justified in convicting
the appellant under Section 304 Part-I IPC. Though the High Court
had altered the conviction from one under Section 304 Part-I IPC
to one under Section 304 Part-II IPC, it was not justified in
sentencing the appellant to suffer RI for five years. According to
the learned counsel, it is a clear case of acquittal.
10.1. Learned counsel for the appellant has placed reliance
on the evidence tendered by PW-1, PW-2, PW-3, PW-4 and PW-5,
more particularly on the evidence tendered by PW-3. According to
him, though they all claim to be eyewitness to the incident, they
were interested witnesses. He submits that a dispassionate
analysis of the evidence tendered by the aforesaid witnesses would
clearly reveal that the appellant had acted in private defense. It
was the deceased and the others who were the aggressors. This
aspect was overlooked by the High Court while altering the
conviction. In support of his submissions, as regards private
defense, learned counsel has relied upon a decision of this Court
1
reported in Sukumaran vs. State . He finally submits that Criminal
1
(2019) 15 SCC 117
11
Appeal No. 1691 of 2023 may be allowed and conviction and
sentence of the appellant may be set aside.
10.2. Learned counsel for the appellant has also referred to
the evidence of PW-16, PW-17 and PW-21 to contend that it was
the informant and his family members who were the aggressors.
Three members of the appellant’s family had suffered knife and
lathi injuries at the hands of the informant and his family
members. As a matter of fact, there was recovery of lathi and knife
from PW-3 and PW-5. It has also come on record that the glass
door of the appellant’s house was shattered due to stone pelting
and that blood of both the appellant and the informant was found
inside the residence of the appellant. Further, appellant had called
the police twice citing apprehension of being assaulted by the
family of his brother-in-law Abbasbhai as they were more in
number. In order to defend himself and his father, appellant had
acted in self-defense by inflicting injuries on the person of the
deceased and PW-5 (only one blow each). Relying on the decision
of this Court in the case of Sukumaran (supra), learned counsel
submits that appellant had invoked his right to self-defense which
aspect had been overlooked by both the courts below.
11. Ms. Archana Pathak Dave, learned counsel appearing
for the State of Gujarat on the other hand supports the impugned
12
order and judgment. On a query by the Court, she submits that
State has not filed any appeal against the altered conviction and
modified sentence of accused No.1 Asgarali Onali Lokhandwala
and of accused No.2 Hussainbhai Asgarali Lokhandwala (appellant
herein). Contending that there is no merit in the appeal, she seeks
dismissal of the same.
12. On the other hand, Ms. Meenakshi Arora, learned senior
counsel appearing for the informant, has opposed the prayer made
in Criminal Appeal No.1691 of 2023 and has further prayed that
Criminal Appeal No. 1692 of 2023 filed by the informant may be
allowed. According to her, it is a clear case of murder committed
by both the accused resulting in the death of Idrishbhai Fidaali
Mithiborewala. While the trial court was not justified in only
convicting the two accused persons under Section 304 Part-I IPC,
the High Court committed further error by altering the conviction
from one under Section 304 Part-I IPC to one under Section 304
Part-II IPC. Referring to the evidence tendered by PW-1 and the
other prosecution witnesses as well as the cross-examination of
PW-18, she submits that the clear picture which emerges
therefrom is that it was a brutal assault on the deceased by the
two accused resulting in his death and hence a case of murder
under Section 302 IPC is made out. She further submits that this
13
Court should interfere with the altered conviction as well as the
modified sentence imposed by the High Court and thereafter
suitably convict the appellant and the other co-accused.
13. Submissions made by the learned counsel for the
parties have received the due consideration of the Court.
14. To appreciate the rival submissions, let us analyse the
evidence of the material witnesses.
15. PW-1 is Turabbhai. In his examination-in-chief, he
stated that his house and the house of Asgarali Onali Lokhandwala
are situated just opposite to each other in the same colony.
Asgarali Onali Lokhandwala is the father-in-law of the son of
Idrishbhai Fidali Mithiborewala who is his brother-in-law. The
house of Idrishbhai Fidali Mithiborewala is also situated opposite
to the house of PW-1. He stated that Asgarali Onali Lokhandwala
has one son Hussain and daughter Oneja. Oneja was married to
the son of his brother-in-law Idrishbhai Fidali Mithiborewala by
the name of Abbasbhai.
15.1. Oneja and Abbasbhai i.e. son of Idrishbhai were
residing at Ahmedabad. Marriage of the niece of Idrishbhai was
fixed on 07.11.2000 in the residence of Sakirabai, the maternal
14
aunt of Abbasbhai. Abbasbhai and Oneja came to attend that
marriage from Ahmedabad.
15.2. On 07.11.2000, Abbasbhai came to the residence of his
father-in-law Asgarali Lokhandwala to call his wife Oneja. Asgarali
refused to send his daughter with Abbasbhai. Abbasbhai came out
of the house and in a loud voice was heard saying that Oneja
should be sent with him.
15.3. PW-1 was relaxing on his swing in the verandah when
he heard a commotion in the house of Asgarali Lokhandwala. His
wife then went to the house of Asgarali to impress upon the two
not to quarrel. However, Asgarali pushed his wife as a result of
which she fell down. PW-1 and his son Akil went to the residence
of Asgarali from where son Akil took his mother to the dispensary.
15.4. PW-1 noticed that while Asgarali was holding the arms
of his brother-in-law Idrishbhai, Hussain came and stabbed in the
stomach portion of Idrishbhai by a knife. At that time, son of
Idrishbhai, Gopi @ Husseni also arrived. Hussain, son of Asgarali
stabbed Gopi @ Husseni too by that knife. On hearing the
commotion, Kutubuddin Jinwala, a neighbour, came from the
opposite house. Thereafter, Asgarali and Hussain went inside the
house. Idrishbhai and his son Gopi also went to their house. Gopi
15
was taken to the civil hospital by a neighbour. Idrishbhai was also
taken to the civil hospital by a neighbour in his sumo.
15.5. Idrishbhai was declared dead in the hospital. As the
injury of Gopi @ Husseni was serious, the doctor sent him to a
private dispensary whereafter he was shifted to a hospital at
Vadodara.
15.6. PW-1 stated that after the incident, he lodged a
complaint before the police.
15.7. As to his wife, he stated that since she fell down, she
had fractured her left hand and also got a head injury. He further
stated that the incident happened between seven to half past seven
in the evening. He identified the knife used by Hussain (Ex.10).
15.8. In his cross-examination, he stated that the house of
Asgarali was surrounded by a compound wall of six feet height.
Therefore, he could not see what was happening inside the house.
Referring to the knife, he stated that it was made from hex blade.
Such type of knives are used to cut vegetables in the house.
Though he had identified the knife, he had not placed an
identification mark thereon.
16. Arvaben is PW-2. She is the wife of PW-1. In her
evidence, she stated that Idrishbhai was her brother and his son
16
Abbasbhai was her nephew. Their house is at Bungalow No. 3 of
her society. Marriage of Abbasbhai was solemnized with Oneja,
daughter of Asgarali Onali Lokhandwala whose house is Bungalow
No. 6, opposite to the house of PW-2. Marriage of Abbasbhai and
Oneja was solemnized about five years back. They have one
daughter named Natasha. Because of his business, Abbasbhai was
residing at Ahmedabad. Oneja was also residing with him at
Ahmedabad.
16.1. Sakirabai is the maternal aunt of Abbasbhai. Merriam
is the daughter of Sakirabai. Her marriage was scheduled on
07.11.2000. Abbasbhai and Oneja came to attend the marriage
from Ahmedabad alongwith their daughter four days prior to the
marriage.
16.2. PW-2 stated that Abbasbhai went to the residence of
Asgarali Onali Lokhandwala to take the keys in the evening of the
marriage day i.e. 07.11.2000. An altercation took place between
father-in-law Asgarali Onali Lokhandwala and son-in-law
Abbasbhai. On hearing the hue and cry, she went to the house of
Asgarali Onali Lokhandwala. At that stage, Idrishbhai and his
other son Gopi @ Husseni also came there. Asgarali Onali
Lokhandwala pushed PW-2 whereafter she fell down. Husband of
17
PW-2 i.e. PW-1 and her son came there and lifted her. As she stood
up, she saw Asgarali Onali Lokhandwala holding her brother
Idrishbhai by the arms. Since PW-2 was having much pain, she
was taken away from the scene by her son to the dispensary where
it was detected that she had fractured her left hand.
16.3. In the morning, her husband told her that her brother
Idrishbhai was murdered and that her nephew Gopi @ Husseni
was injured for which he was taken to Vadodara for treatment.
16.4. In her cross-examination, PW-2 stated that there was
matrimonial dispute between Abbasbhai and Oneja prior to the
incident but neither she nor any member of her family including
her husband intervened. She further stated that when altercation
took place between father-in-law and son-in-law, there was no
loud outcry.
17. Abbas, son of Idrishbhai Fidaali Mithiborewala, deposed
as PW-3. In his examination-in-chief, he stated that he had one
more brother by the name of Husseni @ Gopi and one sister by the
name of Jenamben. He was doing business in wood for which he
used to stay at Ahmedabad though his original home is at Godhra.
He used to frequently visit Godhra during festivals where other
family members were residing. His marriage with Oneja was
18
solemnized in the year 1997. Oneja was also residing with him at
Ahmedabad. They had one minor daughter by the name of
Natasha.
17.1. PW-3 stated that his conjugal life was going on well.
When he came to Godhra from Ahmedabad, his wife also
accompanied him. Though she came to the residence of PW-3, she
left after 10 minutes and went to the residence of her father
Asgarali to stay.
17.2. Wedding of the daughter of the maternal aunt of PW-3,
Merriam was on 07.11.2000. To attend the marriage, PW-3
alongwith his wife and daughter came to Godhra from Ahmedabad
on 03.01.2000. Though they came to the house of PW-3 in Haidari
society, wife of PW-3 Oneja stayed there for only about 10 minutes
and went to her father’s house alongwith Natasha. While PW-3 was
residing in his house, his wife was living in her parental home.
17.3. On the wedding day, PW-3 called Oneja over phone at
10’o clock in the morning whereafter she came to the residence of
PW-3 at 3’o clock in the afternoon. From there, they went to the
wedding keeping their daughter Natasha in the residence of the in-
laws of PW-3 i.e. with the parents of Oneja. In the wedding, before
PW-3 could finish his meal, his wife Oneja left the wedding venue
19
for her home saying that her daughter Natasha was at home. After
the wedding, PW-3 came to his house at 6’o clock in the evening
whereater he called his wife over phone telling her to come to his
home but she refused to come. At this stage, PW-3 sent his maid
Mangliben to the residence of Asgarali Onali Lokhandwala (his
father-in-law) to get the keys of the cupboard of their Ahmedabad
house from his wife. Mangliben had gone around 7’o clock in the
evening. She came back and told PW-3 that Oneja had refused to
handover the keys to her.
17.4. Thereafter, PW-3 went to the residence of Asgarali Onali
Lokhandwala and from the verandah he told his wife Oneja that
she should come home alongwith him but she refused. At this, PW-
3 told her that if she was not coming then atleast she should
handover the keys of the cupboard to him. This also she refused.
17.5. At that time, father-in-law of PW-3, Asgarali and his son
Hussain came out and told PW-3 that he was very much harassing
Oneja. According to PW-3, they were very angry and sensing that
a quarrel would break out, he came out of their compound onto
the road. His father-in-law and brother-in-law followed him to the
road where an altercation took place. Hearing the hue and cry, his
aunt Arvaben who was residing just in the opposite house came to
the scene; so also his father and younger brother Husseni @ Gopi.
20
17.6. Arvaben told Asgarali that instead of quarreling, he
should give them the keys of the cupboard. Asgarali then pushed
Arvaben as a result of which she fell down. On hearing the
commotion, her husband Turabbhai and son Akil came to the
scene. Father of PW-3 i.e. Idrishbhai also came there.
17.7. It was at that stage that Asgarali caught hold of the
father of PW-3, Idrishbhai Fidaali Mithiborewala, by his arms from
behind and told his son (brother-in-law of PW-3) that he was
harassing them a lot and that he should be finished. Then,
Hussain stabbed Idrishbhai in his stomach with a knife which he
was carrying. As the brother of PW-3, Gopi tried to intervene,
Hussain also stabbed him in his stomach with that knife.
17.8. Hearing the hue and cry, Kutubuddin Jinwala, a
neighbour, rushed out of the opposite compound and when he
came, Asgarali and his son Hussain walked back towards their
house.
17.9. As his father and brother suffered knife injuries, PW-3,
Kutubuddin and Turabbhai brought them to their house
whereafter they were taken to the civil hospital where father of PW-
3 was declared dead.
21
17.10. PW-3 identified the knife (Ex. 10) in court which was
used by the appellant in the incident.
17.11. In his cross-examination, PW-3 stated that when he had
called Oneja over phone, she refused to come and had put the
phone down. However, he did not ask the reason as to why she
was refusing to come. Though the house of Asgarali was just about
200 footsteps away, PW-3 neither made a phone call nor went to
her house prior to the incident when he had gone to collect the
keys of the cupboard.
17.12. PW-3 further stated that though he had carried his
injured father back home, there were no blood stains on his cloth;
neither were his hands blood stained though blood was all over his
father.
17.13. About the incident, PW-3 stated that after he had
entered into the compound of Asgarali, he had climbed about five
staircases onto the verandah. He did not ring the doorbell but
shouted once. Oneja refused to go with him. Instead of going home,
he came out of the compound and shouted loudly. He admitted
that in the entire incident, he did not suffer any injury at all.
18. Husseni @ Gopi is PW-5. In his deposition, he stated
that Abbas was his brother. For the marriage of Merriam on
22
07.11.2000, Abbas alongwith his wife Oneja and their daughter
had come to Ahmedabad but Oneja stayed in her father's house
alongwith the daughter Natasha. Abbas had told his father-in-law
on 07.11.2000 over phone to send Oneja to his house. However,
Oneja refused. Thereafter, Abbas sent his maid Mangliben to the
residence of Asgarali Onali Lokhandwala after 06:00 PM to bring
back the keys of the cupboard of their Ahmedabad house. The
maid came back and told that Oneja had refused to handover the
keys. Thereafter, Abbas went to the residence of his father-in-law
Asgarali Onali Lokhandwala to get the keys of the cupboard.
PW-5 stated that after some time, he heard a loud outcry from the
residence of Asgarali Onali Lokhandwala. On hearing the hue and
cry, father of PW-5 Idrishbhai Fidaali Mithiborewala went to the
residence of Asgarali Onali Lokhandwala. PW-5 followed behind
his father. At around the same time, Arvaben also arrived at the
scene and sought to pacify the parties. Asgarali Onali
Lokhandwala pushed Arvaben as a result of which she fell down.
No sooner did his father reached the place then Asgarali said that
this Idrishbhai had come and that he should be beaten. Saying so,
he held the arms of Idrishbhai from behind and instructed his son
Hussainbhai Asgarali Lokhandwala to finish him off. It was then
that Hussainbhai Asgarali Lokhandwala stabbed Idrishbhai in his
23
stomach by a knife which he was carrying. As PW-5 tried to
intervene in order to save his father, he was also stabbed on the
left part of his stomach by Hussainbhai Asgarali Lokhandwala by
the same knife.
18.1. In his cross-examination, PW-5 stated that he came to
know from his relatives that his father Idrishbhai had died around
8’o clock in the night of 07.11.2000. This he came to know on the
fourth day of the incident. He denied the suggestion that he, his
brother and father were taunting and harassing Oneja to bring
dowry.
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.
20. PW-22 Rayjibhai Dahyabhai Solanki is the investigating
officer who had investigated the case and had submitted the
24
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 cross-
examination. 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
25
but it was a fact that he was a student then, studying in the
th
12 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
26
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.
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.
27
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.
28
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.
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.
29
27. Consequently, Criminal Appeal No. 1691 of 2023 is
partly allowed. While maintaining the conviction of the appellant
Hussainbhai Asgarali Lokhandwala under Section 304 Part II IPC,
his sentence is modified to the period already undergone by him.
All the other criminal appeals are, however, dismissed.
28. In view of the above, appellant Hussainbhai Asgarali
Lokhandwala is directed to be released forthwith, if his detention
is not required in any other case.
. ………………………………J
[ABHAY S. OKA]
.………………………………J
[UJJAL BHUYAN]
NEW DELHI;
AUGUST 14, 2024.