CR.A/594/2002 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 594 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 ========================================================= MUKESHBHAI PILAJIBHAI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS SADHANA SAGAR for the Appellant Mr. Maulik Nanavati, APP, for the respondent State ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 03/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/594/2002 2/3 JUDGMENT The present appeal is filed against the judgement and order dated 23.4.2002 passed by the learned Sessions Judge, Surat in Sessions Case No. 241 of 2000. 2. Heard learned counsel for the parties. The only point urged in this case is about the offence of death by burning. The death ensued after burning of the lady. Total amount of kerosene which is said to be poured is out of a bottle which could contain maximum 180 millilitre. In the container of 25 ml of kerosene was still found. The death has occurred after about a month by septicemia . In these circumstances, the learned counsel for the appellant submits that the offence under Section 302 of the Indian Penal Code cannot be made out. It can at best be said to be an offence under Section 326 of the Indian Penal Code. In that view of the matter, she prays that instead of convicting the accused for the offence under Section 302 of the IPC, the offence may be altered to Section 326 of the Indian Penal Code. The accused has remained behind the bars for eight and half years and the amount of sentence may be awarded to be sufficient sentence to meet the ends of justice. 3. Per contra: learned AP.P. stated that death of the lady has occurred. Burning received was less. Only 60% to 70% of the body burnt. Death has occurred after about one month by septicemia. Therefore, this Court is left to decide the case on its facts. CR.A/594/2002 3/3 JUDGMENT 4. We have given our thoughtful consideration to the facts of the case. In view of the fact that the death has occurred after about a month by septicemia and the accused was not properly equipped to execute his intention, it could not be covered by clause Thirdly to Section 300 of the Indian Penal Code. Hence the argument of the learned counsel for the appellant is accepted. The accused is convicted under Section 326 of the Indian Penal Code and the sentence already undergone is considered as sufficient to meet the ends of justice. Conviction under other Sections is maintained. No separate sentence is however passed in that regard. 5. In the result, the appeal is partly allowed. Conviction and sentence of the accused under Section 302 of the IPC is altered to Section 326 of the IPC. The accused is behind the bars for eight and half years. Substantive sentence is reduced to already undergone by the accused. He is ordered to be released forthwith if not required in any other case. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)