STATE OF GUJARAT Vs. IMTIYAZ @ IKUDO HAJI MAHMAD

JUDGEMENT

(1.) The instant appeal under Sec. 378 of the Code of Criminal Procedure, 1973 ("the Code" for short), has been preferred by the appellant-State of Gujarat against the judgment and order dated 11.07.1994, passed by the learned Additional Sessions Judge, Bhavnagar, in Sessions Case No.223/1993, whereby the respondent accused has been acquitted of the charge under Sec. 302 of the Indian Penal Code, 1860 ("the IPC" for short) and has been found guilty of the offence punishable under Sec. 304 Part I Penal Code and sentenced to seven years' imprisonment.

(2.) The case of the prosecution is based upon the first information given by PW1 Nimuben alias Aminaben Aadambhai, mother of deceased Banuben. The deceased had earlier been married to one Isub Aadambhai eleven years prior to the incident. As she did not get along with her husband she had left his house. The deceased had a son from her first marriage. Eight years prior to the incident the deceased had entered into a second marriage with the respondent-accused and gone to live with him. Three daughters and a son were born to her. On 23.07.1993, at about 2:00 p.m., the deceased came to the house of the first informant along with her children as a quarrel had taken place between her and the respondent. The first informant advised and persuaded her daughter to go back and accompanied the deceased to the house of the respondent. The incident took place on 24.07.1993, when the deceased returned to the house of her mother at about 9:00 a.m., with the intention of filing a complaint against the respondent in Court. However, upon inquiry it was found that the Court was closed on that day. The deceased, therefore, stayed at the house of the first informant with her children. At about 9:00 p.m. the deceased was sitting on a cot with her children, outside the house when the respondent came there and tried to forcibly take the deceased back with him. The deceased got up from the cot, saying that she was going to the office of the Deputy Superintendent of Police and would call the Mobile Police Van. She had just left the house when the respondent ran after her, caught hold of her and started stabbing her with a "Rampuri" knife (hereinafter referred to as "the knife") which he took out from his pocket. As per the case of the prosecution, the first blow was inflicted by the respondent on the left ear of the deceased and the second blow on the left side of her chest. The third blow was inflicted on her left thigh, above her knee and the fourth blow was inflicted on the left side of her waist. The deceased was screaming, therefore, the first informant and her son Zakirhussain (PW2) came running and caught hold of the respondent. The deceased was lying on the road in a pool of blood and died immediately thereafter. The Police was informed and the complaint was lodged.

(3.) In support of its case, the prosecution has examined nine witnesses and relied upon documentary evidence such as various Panchnamas and the Postmortem Report etc. After appreciating and evaluating the entire oral and documentary evidence on record, the Trial Court arrived at a conclusion that it is proved beyond reasonable doubt that the respondent inflicted blows with the knife on the person of the deceased and caused four injuries, such as described in the Postmortem Report, out of which injury No.2 was sufficient in the ordinary course of nature to cause death. The Trial Court has also found that both the accused and the deceased were present at the spot of the incident. It has believed the evidence of the witnesses that a quarrel had taken place between them. The respondent was trying to persuade the deceased to return home with him and the deceased was refusing to do so. When she got up and started to go to the office of the Deputy Superintendent of Police in order to file a complaint against the respondent, he ran after her and inflicted injuries with the knife that he took out from his pocket. Having arrived at the above conclusion, the Trial Court has examined the aspect whether the respondent had inflicted the knife blows on the deceased with the intention of killing her, or whether the incident had occurred in the heat of the moment, without premeditation. Examining the evidence on record in this context, the learned Judge has arrived at a conclusion that the respondent had no intention of killing the deceased but had inflicted knife blows upon her as a result of grave provocation. The Trial Court has, therefore, held the respondent guilty of the offence under Sec. 304 Part I and convicted him to suffer seven years rigorous imprisonment and pay a fine of Rs.1,000/, in default of which he would suffer further imprisonment of six months.