CR.A/304/1998 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 304 of 1998 With CRIMINAL APPEAL No. 394 of 1998 With CRIMINAL REVISION APPLICATION No.337 of 1998 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 ? ========================================= = PATHAN SHIKANDARKHAN SATTARKHAN AND ANOTHER Versus STATE OF GUJARAT ========================================= =Appearance : MR YOGESH S LAKHANI for the Appellants MS HANSA PUNANI, ADDL PUBLIC PROSECUTOR for the Opponent Appearance in Criminal Revision Application No.337 of 1998 MR DM AHUJA for the Petitioner- original Complainant MS HANSA PUNANI, APP for Respondent No.1 MR YOGESH S LAKHANI for Respondent Nos. 2 to 4 ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 14/10/2008 CR.A/304/1998 2/4 JUDGMENT COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Heard the learned counsel for the parties. 2. By this judgment, we propose to decide two appeals filed by the accused persons and revision application by the complainant. 3. Accused-appellants, namely Pathan Sattarkhan Pirzadakhan and Pathan Salimkhan Hanifkhan have been convicted as under: 3.1. Sattarkhan Pirzadakhan Pathan has been convicted for the offence punishable under Section 302 of the Indian Penal Code and directed to undergo the rigorous imprisonment for life and a fine of Rs.500/- and in default of the same, to undergo further R.I. for 3 months. Pathan Salimkhan Hanifkhan has been convicted for the offence punishable under Section 324 of the Indian Penal Code and directed to undergo the rigorous imprisonment for two years and a fine of Rs.500/- and in default of the same, to undergo further R.I. for 3 months. 3.2. Other accused, namely Pathan Shikandarkhan Sattarkhan and Pathan Sharfarazkhan Sattarkhan have been convicted for the offences punishable under Section 324 of the Indian Penal Code and are directed to undergo the sentence for the rigorous imprisonment of two years and fine of Rs.500/- and in default of the same to suffer further rigorous imprisonment for thee months. CR.A/304/1998 3/4 JUDGMENT 4. From the prosecution case, it is revealed out that two dying declarations recorded, one of Firozkhan and another of Samirkhan, give different story than the story given in the FIR. None of these persons were cross-examined qua dying declarations and they were unable to explain that. This is also in the prosecution case that accused Sattarkhan P. Pathan was armed with revolver and he had not used it. Thus, it stands out clearly that had he been the intention of causing death, he could have certainly used revolver. But, he has used another weapon. Thus, in that background, the conviction of Sattarkhan Pathan under Section 302 of the Indian Penal Code is not treated to be one which can be punishable under Section 302 of the IPC and in that background, we are persuaded to convert the conviction of accused Sattarkhan P. Pathan to conviction under Section 304 Part-I of the IPC because, from the facts, it brings out that it was sudden quarrel where Sattarkhan P. Pathan restrained himself from using fire arm, which was said to be available. Thus, his conviction is altered from offence punishable under Section 302 of the IPC to offence punishable under Section 304 Part-I of the IPC and, consequently, his sentence is reduced from life to 10 years and fine of Rs.500/-. As regards the other three accused persons are concerned, they have been acquitted under Sections 302 and 34 of the IPC. They have only been convicted under Section 324 of the IPC. Looking to the facts and circumstances of the case, their convictions are maintained. However, at this distance of time, we are not prepared to send them behind the bar and hence their substantive sentence is reduced to the period already undergone. CR.A/304/1998 4/4 JUDGMENT 5. In the result, the appeal of accused Sattarkhan Pirzadakhan Pathan is partly allowed and his conviction is altered from Section 302 to Section 304 Part-I of the Indian Penal Code and he is sentenced to suffer R.I. for 10 years and fine of Rs.500/-. He appears to have served the sentence. If that is so, he should be released forthwith if not found involved in any other case. As regard the appeal of other three accused persons, namely Pathan Salimkhan Hanifkhan, Pathan Shikandarkhan Sattarkhan and Pathan Sharfarazkhan Sattarkhan is dismissed qua their conviction under Section 324 of the Indian Penal Code. However, their substantive sentences are reduced to the period already undergone. ORDER IN CRIMINAL REVISION APPLICATION NO.337 OF 1998: Criminal Revision Application is not entertained in the background of facts noticed by us in the appeals filed by the accused. The revision application is, therefore, dismissed. (BHAGWATI PRASAD, J.) (BANKIM N.MEHTA, J.) omkar