CR.A/1366/1986 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1366 of 1986 with CRIMINAL APPEAL NO.1367 OF 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 ? ====================================== STATE OF GUJARAT Versus ISMAIL IBRAHIM SAKHIDAS @ JAGGU AND OTHERS ====================================== Appearance : Mr IM Pandya, Additional Public Prosecutor for the Appellants Mr Sikandar Saiyed with Ms Amee Yajnik for the Opponents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT CR.A/1366/1986 2/4 JUDGMENT Date : 08/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Criminal Appeal No.1366 of 1986 is filed by the State of Gujarat challenging the judgment and order of acquittal dated 23rd September 1986 passed by the learned Additional Sessions Judge in Criminal Appeal No.57 of 1984. All the accused persons were charge-sheeted for the offences punishable under Sections 147, 148, 149, 326, 324 and 506 of the Indian Penal Code. At the end of the trial, the learned Judicial Magistrate First Class, Jambusar by his judgment and order dated 27th September 1984 convicted the accused as under:- Accused Nos.2 and 4: Under Section 323 read with RI for six months and a fine of Section 34 of IPC Rs.500, in default SI for one month Under Section 326 read with RI for one year and a fine of Section 34 of IPC Rs.700, in default SI for 2 months Accused Nos.3 and 5: Under Section 323 read with RI for one year and a fine of Section 34 of IPC Rs.700, in default SI for 2 months Under Section 326 read with RI for 1-1/2 year and a fine of Section 34 of IPC Rs.1000, in default SI for 1 month Accused No.1: Under Section 323 read with RI for one year and a fine of Section 34 of IPC Rs.500, in default SI for 1 month CR.A/1366/1986 3/4 JUDGMENT Under Section 326 RI for 2-1/2 years and a fine of Rs.1000, in default SI for 3 months On appeal, the learned Sessions Judge was of the opinion that the question of commutation is not borne out in the facts and circumstances of the case because it cannot be said that there is a pre-concert among the accused persons earlier. Therefore, all the convictions were therefore set aside, which resulted into conviction of the accused under Section 323 of the Indian Penal Code simpliciter. In case of accused No.1 who was also convicted under the aid of Section 326 of simpliciter, the conviction was altered to under Section 324 of the Indian Penal Code and ultimately the learned Sessions Judge passed order as under:- Accused No.1 is convicted for the offence under Section 324 of the Indian Penal Code instead of under Section 326 of Indian Penal Code and he is sentenced to RI for four months and fine of Rs.500/-, in default RI for one month. Accused Nos.2 to 5 are convicted under Section 323 of IPC and sentenced to till rising of the Court and fine of Rs.1000/- in default one month RI instead of conviction under Section 323 read with Section 34 and 326 read with Section 34 of the IPC. Heard Mr I.M.Pandya, learned Additional Public Prosecutor and counsel for the accused. Since the offence under Section 34 of IPC has not been made out because there was no pre-concert, on appreciation of the evidence, the appellate court has found that no case for pre-concert is made out. Hence, we are of the opinion that the findings of the appellate court are not liable to be interfered with because we see no perversity in the findings of the appellate court. CR.A/1366/1986 4/4 JUDGMENT As regards offence under Section 326 is concerned, suffice it to say that even in the appeal the State has stated that it was grave injury. It is not the case of the State that the injury is not a grievous injury. There is a difference between grave and grievous. The case of grievous injury can only be brought within the ambit of Section 326 of the IPC. Gravity of injury is subjective aspect and on the basis of that subjective aspect conviction under Section 326 cannot be entertained. The first appellate Court has rightly assessed the matter and having found that there is no grievous hurt, the conviction under Section 326 was set aside and in its place sentence under Section 324 of IPC was imposed. In our opinion, it is rightly so because there was no grievous hurt and the allegation is only of grave injury. That by itself is not sufficient to convict the accused. Thus, the conclusions of the lower appellate court cannot be considered in any way perverse and that being the position, the contention of the learned counsel for the respondent is accepted. The State appeals have no merits. Hence, the appeals are dismissed. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd