CR.A/31920/2000 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 319 of 2000 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 ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 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 ? 5 Whether it is to be circulated to the civil judge ? ====================================== RAIYESH AHMED @ BHURIO @ MANJRA MOHMAD HUSSAIN SHAIKH Versus STATEE OF GUJARAT ====================================== Appearance : MR MH BAREJIA for the Appellant Ms Mita Panchal, Additional Public Prosecutor for the State ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA CR.A/31920/2000 2/4 JUDGMENT Date : 11/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the appellant – original accused challenging judgment and order dated 4th November 1999 passed by the learned Sessions Judge, Ahmedabad in Sessions Case No.362 of 1998. It is the prosecution case that on the date of the incident i.e. on 3rd July 1998 around 11.00 O'clock in the morning when complainant Mohd Yakub Kadarbhai was going from Ziziwad to Nagina Pole towards his house, he saw some sales girls came there for sales promotion of Colgate product. At the relevant point of time, some quarrel took place between deceased Mohd Yasin Ismail Shaikh and one Bhanubib with regard to purchase of Colgate produt and therefore accused tried to intervene. It is further alleged that thereafter accused went to his house and came back with Katar and gave one blow of Katar in the stomach of deceased Mohd Yasin Ismail Shaikh. The offence was registered with Dariyapur police station on 3rd July 1998 between 12.00 to 20.00 hours at C.R.No.I 51 of 1998. After occurrence of the incident, injured – Mohd Yasin was admitted in the V.S. Hospital and during the course of medical treatment injured died at 18.45 hours. After completion of investigation charge sheet was filed before the learned Metropolitan Magistrate, Court No.10, Ahmedabad and the same was registered as Criminal Case No.1482 of 1998. As the offence was under Section 302 of IPC and the case is to be exclusively triable by the CR.A/31920/2000 3/4 JUDGMENT Court of Sessions, the learned Metropolitan Magistrate committed the same to Sessions Court and it was registered as Sessions Case No.362 of 1998. The learned Sessions Judge framed charge below Exhibit 1. After considering the entire evidence on record, the learend Sessions Judge was pleased to convict the accused person under Section 302 of IPC and imposed sentence of life imprisonment vide his judgment and order dated 4th November 1999. Being aggrieved and dissatisfied with the said order of conviction, the appellant has preferred the present appeal before this Court. Heard learned counsel for the parties. Learned counsel for the appellant does not challenge the factum of the incident, but he challenges the nature of findings. The accused is alleged to be of around 20 years of age when the incident took place. It was not a pre-meditated affair. It was only a sudden quarrel wherein young boiling blood inflicted one injury, which has resulted into death of the deceased, which was not as consequence of a pre-negotiated assault. That being certain, this Court feels that this case does not fall under Section 302 of the Indian Penal Code and it would be covered by exception 4 of Section 300 of the Indian Penal Code. In that view of the matter, we alter the conviction from Section 302 to Section 304 Part-I of IPC. The accused has remained more than 9 years behind the bars. This Court considers that period already undergone would meet ends of justice. In the result, the appeal is partly allowed. The conviction is altered from Section 302 of IPC to Section 304 Part-I. The period of sentence already undergone would meet ends of justice. The accused will pay a fine of Rs.1,000/- in addition to sentence undergone, in default, he will have to undergo SI for six months. CR.A/31920/2000 4/4 JUDGMENT With the above modification, the appeal is partly allowed. The accused shall be set at liberty forthwith if not required in any other case. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd