Hussainbhai Asgarali Lokhandwala vs The State Of Gujarat

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

Digitally signed by satish kumar yadav VERSUS Date: 2024.08.14 17:58:54 IST Reason:

ASGARALI ONALI LOKHANDWALA & ORS. RESPONDENT(S) 2

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

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 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)

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 vide the judgment and order dated 07.11.2006

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

reported in Sukumaran vs. State1. 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

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 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.