Gujarat High Court
Popatsinh Kalusinh Makwana vs The State Of Gujarat on 25 June, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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R/CR.A/361/2005 JUDGMENT DATED: 25/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 361 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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POPATSINH KALUSINH MAKWANA
Versus
THE STATE OF GUJARAT
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Appearance:
MR RN SHAH(789) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR LB DABHI APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 25/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This Criminal Appeal preferred by the accused
Popatsinh Kalusinh Makwana - original accused no. 1,
is directed against the impugned judgment of
conviction and order of sentence dated 28.01.2005
passed by the Sessions Judge, Sabarkantha at
Himmatnagar in Sessions Case No. 4 of 2004, by
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which, the appellant has been convicted under
Section 307 of the Indian Penal Code and sentenced
to undergo imprisonment for a period of 3 years and
pay fine of Rs.2000/-, and in default of payment of
fine, to further undergo 30 days additional
imprisonment.
2. The case of the prosecution in short is that, on
17.05.2003 at village : Fatehpur marriage function
was organized by villager Shivsinh Waghsinh. In the
said marriage, one Bhaktisinh Kodarsinh was invited
and he had attended the marriage. After marriage
ceremony, Bhaktisinh Kodarsinh invited by the
complainant PW-1 Bapusinh for refreshment at his
home. The son-in-law of Bapusinh PW-2 Kalusinh
Parvatsinh was also there in the house of Bapusinh.
During the discussion, the dispute arose on the
identification of the caste of 'Thakor' between
Kalusinh and Bhaktisinh. By intervention of PW-1
Bapusinh, the matter was resolved and thereafter,
Bhaktisinh had left the house of PW-1. On account of
said dispute at about 9-00 PM, the brother-in-law of
Bhaktisinh i.e. present appellant - Popatsinh Kalusinh
and other 4 persons armed with deadly weapon came
in the house of complainant PW-1. They hurled
abusive and assaulted Kalusinh Parvatsinh PW-2, who
was sitting in front of house. According to
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prosecution case, the appellant, by weapon scythe
gave a blow on the head of Popatsinh Kalusinh. He
was severely injured and taken to Gambhoi
Government Hospital and thereafter, Himmatnagar
Civil Hospital and after taking primary treatment, he
was referred to Ahmedabad Civil Hospital. He
sustained injury over fronto parietal region and right
side occipital region and there was a depressed
fracture in parietal region. He was admitted at
Ahmedabad Civil Hospital for about 10 days and
discharged thereafter. In such circumstances, PW-1
Bapusinh lodged an FIR with Bhiloda Police Station,
which came to be registered for the offences
punishable under Sections 147, 148, 149, 504, 307
r/w Section 114 of the Indian Penal Code and Section
135 of the Bombay Police Act. The accused were
arrested. The Investigating Officer, PW-10, after
completion of the investigation, filed a chargesheet
and the case was committed to the court of Sessions.
Charges were framed to which the accused pleaded
not guilty and claimed trial. The prosecution
examined 11 Witnesses and exhibited 20 documents,
to establish the guilt of the accused. After closure of
the prosecution evidence, the accused were
questioned under Section 313 of Cr.P.C., to which,
they stated that the complainant party was the
aggressor and had assaulted them, as a result, the
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appellant accused sustained a serious head injury,
for which, the FIR on the same day was came to be
filed against the injured Kalusinh Parbatsinh and
others. Though opportunity was extended, no oral
evidence having been adduced on the side of the
appellant and others.
3. The trial Court, relying on the testimonies of injured
witness and eye witnesses, came to the conclusion
that it was the appellant, who inflicted serious injury
upon Popatsinh Kalusinh PW-2, and having regard to
the medical evidence, the trial court found guilty the
appellant accused for the offence of attempt to
murder, as defined under Section 307 of the Indian
Penal Code and sentenced him to suffer 3 years
rigorous imprisonment and acquitted other 4 accused
from all charges.
4. At this stage, it is relevant to note that, the FIR in a
cross-case filed against injured Popatsinh Kalusinh
and others, the learned Sessions Judge, on technical
ground, acquitted them from all charges.
5. Being aggrieved and dissatisfied with the judgment
of conviction dated 28.01.2005 and order of
sentence, the appellant is before this Court by way of
present appeal.
6. We have heard learned counsel Mr. R.N. Shah and
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Mr. L.B. Dabhi, learned Additional Public Prosecutor
for the respondent State.
7. Mr. R.N. Shah, learned advocate does not dispute the
presence of appellant at the place of offence and the
injuries sustained by PW-2 Popatsinh Kalusinh. In
such circumstances, we are of the view that, the
detail analysis of the evidence is not necessary. The
prosecution has mainly relied upon the testimony of
PW-1 Bapusinh, PW-2 Kalusinh Parbatsinh, PW-6 Dr.
Vinay Ramvilas, PW-7 Ambalal Madhabhai and PW-8
Dr. Suman Bhavarlal.
8. Mr. R. N. Shah, learned advocate, while assailing the
judgment of conviction and order of sentence,
submitted that the essential ingredients of an offence
under Section 307 are not proved and established;
that in the cross case, the learned trial Court despite
of injury sustained by the appellant accused on his
head, extended the benefit of doubt to 3 accused
including PW-2 - Popatsinh and acquitted them; in
the deposition of IO PW-10, the facts established that
the FIR lodged by the accused was first in time and
same came to be registered under Sections 323, 324
of the Indian Penal Code as the appellant sustained
injuries over the forehead allegedly caused with a
stick; that the trial Court while acquitting the witness
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PW-2 and others, observed that, there is
contradiction in the description of weapon as in the
FIR, weapon stick was mentioned, whereas, in the
deposition, the weapon axe, being described by the
witness.
9. In such circumstances, as referred to above, learned
counsel Mr. Shah, has submitted that, the incident
occurred in the year 2003 and the appeal reached for
final hearing in the year 2025. Thus, by afflux of time,
and in a change scenario and having regard to the
result of cross-case, the punishment of 3 years is too
harsh and same may be reduced and modified
accordingly.
10. On the other hand, Mr. L.B. Dabhi, learned State
Counsel would urge that, the essential ingredients of
Section 307 of the Indian Penal Code are established
in the present case and therefore, the sentence of 3
years cannot be said to be inappropriate and too
harsh. Thus, therefore, merely acquittal of the
accused in the cross case, cannot be a sole ground to
reduce the sentence, which is otherwise appropriate,
just, adequate and proportionate with the nature and
gravity of crime.
11. We are of the considered opinion that, when the
factum of injuries and presence of accused as well as
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witnesses at the spot having not been challenged,
then, there is no need to refer and analyse the entire
oral as well as documentary evidence. In such
circumstances, it is proved and established that, on
17.05.2003 at about 9-00 PM at village Fatehpur,
Dist.: Sabarkantha, the PW-2 Kalusinh Parbatsinh
sustained head injuries as per the medical evidence,
alleged to have been inflicted by present appellant
Popatsinh Kalusinh. On the same day, Popatsinh
Kalusinh sustained injuries over his forehead alleged
to have been caused with blunt object by the
opposite party. In such circumstances, the issue arise
for our consideration, as to whether, the conviction
under Section 307 of the Indian Penal Code as held
by the trial Court, is sustainable?
12. We deem it fit to refer the provision of Section 307,
which reads as under:
"307.Attempt to murder.--Whoever does
any act with such intention or knowledge,
and under such circumstances that, if he
by that act caused death, he would be
guilty of murder, shall be punished with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine; and if hurt is
caused to any person by such act, the
offender shall be liable either to
imprisonment for life, or to such
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punishment as is hereinbefore mentioned.
Attempts by life convicts.--When any
person offending under this section is
under sentence of imprisonment for life,
he may, if hurt is caused, be punished
with death. "
13. In order to prove the charge of attempt to murder,
the prosecution, is obliged to prove the essential
ingredients of the offence, which are :
(i) that the death of a human being
was attempted:
(ii) that such death was attempted to be
caused by, or in consequence of the act
of the accused; and
(iii) that such act was done with the
intention of causing death; or that it was
done with the intention of causing such
bodily injury as:
(a) the accused knew to be likely to cause
death; or
(b) was sufficient in the ordinary course
of nature to cause death, or that the
accused attempted to cause death by
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doing an act known to him to be so
imminently dangerous that it must in all
probability cause (a) death, or (b) such
bodily injury as is likely to cause death,
the accused having no excuse for
incurring the risk of causing such death
or injury. The first part makes any act
committed with the intention or
knowledge that it would amount to
murder if the act caused death
punishable with imprisonment up to ten
years. The second part makes such an
act punishable with imprisonment for life
if hurt is caused thereby. Thus even if the
act does not cause any injury it is
punishable with imprisonment up to 10
years. If it does cause an injury and
therefore hurt, it is punishable with
imprisonment for life."
A bare reading of the provision would provide that
to justify the conviction under Section 307, it is
necessary to prove that the act was done with such
intention or knowledge and under such
circumstances that, if he or she by that act cause
death. In the case of Hari Singh Vs. Sukhbir Singh
(1988 (4) SCC 551), the Supreme Court held that
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while examining whether a case of commission of
offence under Section 307 is made out, the Court is
required to see whether the act, irrespective of its
result, was done with the intention or knowledge or
under circumstances mentioned in the section. It is
also settled that, the proof of grievous or life
threatening hurt is not sine-qua-none. The intention
of the accused can be gathered from the actual
injury, nature of the weapon used, manner in which
the incident took place, motive for the crime, severity
of the blow, the part of body where the injuries
inflicted. In addition to that, for the conviction under
Section 307, more important has been given to
mens-rea.
14. In AIR 1982 SC 2013, Kundan Singh Vs. State of
Punjab, the Hon'ble Apex Court has observed as
under:- "We are of the view that having regard to the
facts and circumstances of the present case and
particularly in view of the fact that P.W. 6 and P.W. 7
were in the courtyard of their house when the
appellant fired gun shots and he could not, therefore,
have intended to injure them, the conviction of the
appellant under Section 307, I.P.C. was not justified.
We think that the conviction of the appellant could be
maintained only under Section 324 of the I.P.C. since
P.W. 6 and P.W. 7 received simple injuries. We
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accordingly allow the appeal and alter the conviction
of the appellant to one under Section 324 of the I.P.C.
for causing simple injuries to P.W. 6 and P.W. 7 and
since the appellant has already suffered
imprisonment for about 16 months, we direct that
the sentence imposed on the appellant be reduced to
that already undergone by him and that he may be
set at liberty forthwith.
15. In Ramesh vs. State of U.P., AIR 1992 SC 664,
wherein the injury was found on the back of the
injured. Accused was tried along with two other was
convicted under Section 307/34 I.P.C. and sentenced
to undergo rigorous imprisonment for four years,
while the 9 two others were acquitted. The Apex
Court altered from section 307 of IPC into Section
324 of I.P.C. and sentence was reduced to the period
already undergone with fine of Rs. 3000/-, which was
to be paid to the complainant as compensation
16. The facts of this case are to be considered on the
touchstone of the law, which has been laid down by
the Supreme court. In our opinion, the court below,
failed to take into consideration the injury sustained
by the appellant accused and same is brought on
record in the testimony of IO PW-10. The witnesses,
have not explained the said injury. In other words,
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the prosecution failed to explain the injuries
sustained by the accused herein. It is not in dispute
that the said injuries caused in the course of same
occurrence. It is relevant to note that, father in law of
injured Bhaktisinh, had come to the house of PW-1,
where on the issue of caste, the verbal spat took
place between the appellant and Bhaktisinh. After his
leaving the house of PW-1, he informed his son-in-law
about the said dispute and thereafter, the appellant
and others came to the house of PW-1. In such
circumstances, in our opinion, the injuries found upon
PW-2 cannot be inflicted with the intention or
knowledge as on the trivial issue, the fight between
two groups alleged to have taken place and both the
parties have inflicted injuries, as a result the cross
FIR came to be registered. In such circumstances, in
our opinion the ingredients of Section 307 as
believed by the trial Court, are not satisfied and the
prosecution evidence accepted, as it is the case
against the appellant, does not travel beyond Section
324 of the Indian Penal Code.
17. In view of the discussions, the conviction under
Section 307 of the appellant accused is not
sustainable in law and he has been convicted under
Section 324 of the Indian Penal Code. So far as
sentence is concerned, the incident is of 2003 and
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having regard to the factum of cross case and motive
behind the incident, the sentence of 3 years, is
reduced and modified to the period already
undergone. The order of sentence shall stands
modify to the above extent.
18. Accordingly, the appeal is allowed in part and
disposed of in aforesaid terms. The bail bond shall
stand cancelled and surety is discharged. R&P, if any,
be sent back to the trial Court.
(ILESH J. VORA,J)
(P. M. RAVAL, J)
P.S. JOSHI
