CR.A/72220/2002 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 722 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 ? 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 ? ====================================== SOMABHAI SAVABHAI MAKWANA Versus STATE OF GUJARAT ====================================== Appearance : MS SUBHADRA G PATEL for the Appellant Ms Hansa Punani, Additional Public Prosecutor for the respondent-State ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 24/12/2008 CR.A/72220/2002 2/3 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed by the appellant – accused against the judgment and order dated 26th August 2002 passed by the learned Additional Sessions Judge, Amreli in Sessions Case No.55 of 1999 by which the appellants have been convicted under Section 302, 354 and Section 447 of IPC. The learned Additional Sessions Judge by his judgment and order sentenced the appellant – accused No.1 for the offence under Section 302 of IPC and sentenced him to undergo RI for life. Appellant – accused No.2 was convicted for the offence under Section 354 of IPC and sentenced to undergo RI for one year with a fine of Rs.5,000/-, in default to further undergo SI for three months. Appellant – accused No.2 was also convicted for the offence under Section 447 of IPC and was sentenced to undergo RI for three months. Heard the learned counsel for the parties. The learned counsel for the appellant does not dispute the incident. Her case is that the accused – appellant No.1 has inflicted one dharia blow on the head of the deceased. The other injuries are inconsequential. The incident had taken place in the spur of moment when the deceased had gone to the field of the accused to reprimand him. She said names to the accused and in that enragement, he inflicted a blow on the head and caused death. Thus, it cannot be said that the injury inflicted would be covered by Clause 3 of Section 300 of the Indian Penal Code and it may best fall under Section 304 Part-I of the IPC. We also agree with her. Per contra, the learned Public Prosecutor was not in agreement, but was not able to dispute this fact that the deceased lady had gone to the field of the accused to reprimand him. In that background, it CR.A/72220/2002 3/3 JUDGMENT appears that alteration of the findings is an appropriate remedy in the given fact. Accordingly, we allow the appeal in part setting aside the conviction under Section 302 of IPC and instead convict the accused appellant No.1 under Section 304 Part-I of IPC and sentence him to undergo RI for 10 years with a fine of Rs.1,000/-, in default to further undergo SI for one month. The conviction of other accused who has been convicted under Sections 354 and 447 of IPC is confirmed and sentence already undergone is considered to be sufficient to meet with the ends of justice. Accused – Appellant No.2 is on bail. His bail bonds are ordered to be cancelled. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd