CR.A/851/2002 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 851 of 2002 With CRIMINAL APPEAL No. 900 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= PIYUSH PRAVINCHANDRA SUTHAR - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 851/2002 MR JM PANCHAL for Appellant(s) : 1,MR KJ PANCHAL for Appellant(s) : 1, Mr. Maulik Nanavati, APP, for the respondent State. Criminal Appeal No. 900/2002 Mr. J.B. Pardiwala for appellant Nos. 1 and 2 Mr. Harshit Tolia for appellant No. 3 Mr. Maulik Nanavati, APP, for the respondent State. CR.A/851/2002 2/5 JUDGMENT ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 05/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeals are filed against the judgement and order dated 11.10.2002 passed by the learned Additional Sessions Judge, Sabarkantha in Sessions Case No. 62 of 1999. 2. So far as Appeal No. 900 of 2002 is concerned, it is preferred by three accused appellants original accused Nos. 1, 2 and 3. Mr. Pardiwala, learned advocate appears for appellant No. 1 and 2 whereas for original accused No. 3 appearance of Shri Harshit Tolia is shown on the board. It is informed by Mr. Pardiwala that so far as accused No. 3 Balwantsinh @ Boby Badal is concerned, he is reported to be absconding. Therefore, his appeal is segregated and the same is not decided by this judgement. 3. Both the appeals arise from the common judgement and order of conviction passed by the learned Additional Sessions Judge, Sabarkantha, dated 11.10.2002. The accused appellants were charged with the offence of having committed CR.A/851/2002 3/5 JUDGMENT murder of one Raghubhai. It is the case of the prosecution that the accused persons on the date of incident came on two motorcycles wherein appellant Nos. 1 and 2 of Criminal Appeal No. 900 of 2002 were armed with sword whereas appellant of Criminal Appeal No. 851 of 2002 was riding a motorcycle and in the same manner the absconding accused i.e. appellant No. 3 of Criminal Appeal No. 900 of 2002 was also riding a motorcycle. 4. The case of the prosecution is that appellant Nos. 1 and 2 of Criminal Appeal No. 900 of 2002 inflicted blows on the lower limb of the deceased whereas appellant (accused No. 4) in Criminal Appeal No. 851 of 2002 has caught hold of the deceased from behind by his neck. In all five injuries were noted by the doctor at the time of post-mortem. However, the medical evidence is to the effect that the cause of death is due to rupture of femoral artery. As per the medical evidence on record but for the injury to femoral artery probably injuries sustained would not have caused the death of the deceased. Thus, the case which would not be covered by Clause Thirdly to Section 300 of the Indian Penal Code. 5. It cannot be said with definiteness that appellant Nos. 1 and 2 aimed the blows at this particular part of the time knowing that it would cut the femoral artery. In these circumstances, it cannot be said that it has been proved that it was the intention of appellant Nos. 1 and 2 to inflict this particular injury on this particular place. It is, therefore, not possible to apply clause 3 to Section 300 of the IPC to the CR.A/851/2002 4/5 JUDGMENT accused. The appeal is thus basically addressed on the question of nature of offence. 6. The date of incident is 3.3.1999. So far as appellant Nos. 1 and 2 of Criminal Appeal No. 900 of 2002 is concerned, they are in jail since the date of incident. So far as appellant of Criminal Appeal No. 851 of 2002 is concerned, since he had not caused any injury to the deceased and no weapon is attributed to him, he was released on bail pending trial as well as even after the conviction, the substantive sentence was suspended and he was ordered to be released on bail. Under these circumstances, the conviction of the appellant Nos. 1 and 2 of Criminal Appeal No. 900 of 2002 and the appellant of Criminal Appeal No. 851 of 2002 is altered from Section 302 of the IPC to 304 Part-I of the IPC and the sentence is reduced to the period already undergone. 7. In the result, Criminal Appeal No. 900 of 2002 of appellant No. 3, namely, Balwantsinh @ Boby Badal is not decided by this judgement since he is reported absconding. His appeal is ordered to be segregated and adjourned sine die. Conviction and sentence of appellant Nos. 1 and 2, namely Ranjitsinh Balusinh Makwana and Khumansinh Radhusinh Makwana of Criminal Appeal No. 900 of 2002 and the appellant of Criminal Appeal No. 851 of 2002 is altered from Sections 302/34 of the IPC to Sections 304 Part I/34 of the IPC. The substantive sentence is reduced to the period already undergone. Appellant Nos. 1 and 2 of Criminal Appeal No. 900 of 2002 are in jail since the date of incident. They are ordered to be released forthwith if not required in any other case. Appellant of Criminal Case No. 851 of 2002, namely, Piyush CR.A/851/2002 5/5 JUDGMENT Pravinchandra Suthar is on bail. His bail bond stands cancelled. The appeals are partly allowed. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)