CR.A/12619/1997 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 126 of 1997 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 - Appellant(s) Versus VIJAYKUMAR DUHANATH RAY - Opponent(s) ========================================================= Appearance : MR UR BHATT, APP for Appellant(s) : 1, NOTICE UNSERVED for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE J.C.UPADHYAYA Date : 16/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The State has preferred this appeal under Section 377 CR.A/12619/1997 2/4 JUDGMENT of the Code of Criminal Procedure, challenging the quantum of punishment awarded by the learned Additional Sessions Judge, Valsad at Navsari, while convicting the respondent under Section 304-Part II of Indian Penal Code by judgment and order dated 6.12.1996 in Sessions Case no.73/1993. The Sessions Court awarded rigorous imprisonment for 5 years and fine of Rs.500/-, in default to undergo simple imprisonment for 3 months, to the respondent. 2. The appeal is pending since 1997. Attempts to serve the respondent have failed. We have also inquired whether an appeal against acquittal or conviction of the accused had been filed, and it is reported by the Registry that no such appeal is preferred, cognate to the present appeal. Since almost 11 years have passed, we examined the merits of the appeal, to assess whether any fruitful purpose is likely to be served, and having found the answer in negative, we have finally heard and disposed of this appeal. 3. The brief facts of the case are that the respondent has committed an offence punishable under Sections 302, 307 read with Section 34 of the Indian Penal Code, whereby allegedly he caused death of one Nanubhai by inflicting knife blows on chest and left knee, while attempting to murder Varji Rupa Katara by causing injuries with knife. It was the case of the prosecution that the respondent acted with absconding accused Ajaykumar Devsaran. 4. The trial Court, after considering the evidence led CR.A/12619/1997 3/4 JUDGMENT before it, came to the conclusion that offence punishable under Section 304-Part II is proved against accused and rest of the offences were not proved. The trial Court heard the accused and recorded that the accused is a young man, aged 25 and was in jail for nearly 43 months. And considering the circumstances in which the incident has occurred, the trial Court came to the conclusion that if half of the maximum sentence provided under the law is awarded, the ends of justice would be served. 5. We have heard learned APP Mr.Bhatt. He submitted that the trial Court has awarded lesser punishment. Such incidents are on rise, and therefore, to set an example, the higher punishment ought to have been awarded. It is submitted that a young man has lost his life in the accident, which ought to have been considered by the trial Court. 6. We have considered the submissions made to us. We find that the incident has occurred without any pre-meditation, and the trial Court has also accepted that part. So far as quantum of punishment is concerned, which is the only aspect, a look at Section 304-Part II would indicate that a person convicted for an offence punishable under Section 304-Part II can be punished with imprisonment for 10 years or fine or both. If that is so, the intention of the lawmaker is that only fine can be imposed. In the instant case, the trial Court, considering the facts of the case, awarded 5 years rigorous imprisonment and have imposed a fine of Rs.500/-. In our opinion, it cannot be said that the trial Court has not used its judicial discretion properly. The sentence CR.A/12619/1997 4/4 JUDGMENT awarded cannot be considered as grossly disproportionate. We find no reason to interfere with the sentence part of the judgment. The acquittal is not under challenge before us. The appeal therefore must fail and is dismissed. (A.L.DAVE, J.) (J.C.UPADHYAYA, J.) (binoy)