CR.A/2528/2005 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 2528 of 2005 For Approval and Signature: HONOURABLE MR. JUSTICE A. L. DAVE HONOURABLE MR. JUSTICE J. C. UPADHYAYA =============================================== 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 HITESHBHAI BABUBHAI PATEL. =============================================== Appearance : Mr UR BHATT, APP, for the Appellant. Mr HARDIK S SONI for the Respondent. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE J. C. UPADHYAYA Date : 14/10/2008 ORAL JUDGMENT : (Per: A. L. Dave, J.) CR.A/2528/2005 2/5 JUDGMENT 1. This is an appeal preferred by the State of Gujarat under Section 377 of the Code of Criminal Procedure, praying for enhancement of sentence awarded by the Trial Court to the respondent while convicting him for offences punishable under Sections 304 Part-II and 504 of the Indian Penal Code and Section 135 of the Bombay Police Act. The Trial Court imposed simple imprisonment for three years with a fine of Rs.500/- and, in default, to undergo simple imprisonment for one month and, hence, this appeal. 2. We have heard learned Additional Public Prosecutor, Mr. Bhatt, for the appellant and learned Advocate, Mr. Hardik Soni, who appeared as amicus curiae. 3. The respondent was alleged to have committed murder of Manoj, brother of the complainant on 19th January, 2004, at about 15.30 hours, by hitting him on his head with a wooden log when deceased Manoj tried to intervene in a quarrel between the accused and Amrutbhai Shanabhai. The F.I.R. was lodged by Jayesh Dhirubhai Patel, brother of deceased-Manoj. There were eye-witnesses to the incident, namely, Savitaben Dhirubhai (Exhibit 17), Amrutbhai Shanabhai Rathod (Exhibit 18) and Sumitraben Manojbhai Patel (Exhibit 19). Out of these witnesses, Amrutbhai Shanabhai Rathod has not supported the prosecution case and has been declared hostile while the other two witnesses have supported CR.A/2528/2005 3/5 JUDGMENT the prosecution case. 4. Considering the overall evidence, the Trial Court came to a conclusion that involvement of the respondent was established by the prosecution. However, considering the circumstances in which the incident had occurred, the Trial Court held that provisions contained in Sections 300 and 302 of the Indian Penal Code would not be attracted and that the case would fall in the category of culpable homicide not amounting to murder and, as such, recorded conviction under Sections 304 Part-II and 504 of the I. P. C. and Section 135 of the Bombay Police Act. Against the acquittal of the respondent for the offence punishable under Section 302 of the I. P. C., no appeal is preferred. 5. We have heard learned Additional Public Prosecutor on this aspect. According to him, the Trial Court has awarded disproportionately low sentence in the instant case when a human life is lost in the incident involving the respondent. He, therefore, submitted that the sentence may be enhanced. 6. We have examined the judgment and, particularly, the reasoning aspect for awarding the punishment recorded by the Trial Court. We have also examined provisions contained under Section 304 Part-II of the I.P.C. CR.A/2528/2005 4/5 JUDGMENT 7. If provisions contained under Section 304 Part-II of the I.P.C. is seen, the offence is punishable with imprisonment or fine or both. This would mean that only imprisonment can be or only fine can be awarded or both can be awarded. Differently put, in the opinion of the Legislature, the nature of the offence is such that no substantive sentence for imprisonment is compulsory to be awarded and only fine can be imposed. This is only for the purpose to indicate that though human life is lost, keeping that very aspect in mind, this type of punishment is prescribed by the Legislature. 7.1 Reading of the said provision would also indicate that no minimum imprisonment is prescribed. 8. With this legal background, if the reasoning adopted by the Trial Court is seen, the learned Judge has observed that the respondent is young; that he has a younger brother who is suffering from mental ailment; that the whole family is dependent upon the appellant; and that, above all, the incident occurred in heat of the moment, and, rightly so, because at the time of the incident there was no quarrel between the respondent and the deceased. The deceased was only an intervenor in a quarrel between the respondent and Amrutbhai Shanabhai Rathod and, in that transaction, he was given this blow with a wooden log by the respondent. We are, therefore, of the opinion that the Trial Court has taken into consideration relevant aspects and has used its CR.A/2528/2005 5/5 JUDGMENT discretion in awarding the punishment. The punishment awarded cannot be considered to be unduly lenient and, therefore, no interference is called for in the sentence awarded by the Trial Court by allowing this appeal. 9. We may also record that the respondent has served his sentence of imprisonment and has been released from the prison on 6.1.2007, as per the Prison Report submitted to us by the learned Additional Public Prosecutor. The appeal, therefore, must fail and stands dismissed. [ A. L. DAVE, J. ] [ J. C. UPADHYAY, J. ] gt