CR.A/386/2000 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 386 of 2000 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 ? ========================================= = MAGANBHAI BHATHIBHAI CHAUHAN Versus STATE OF GUJARAT ========================================= =Appearance : MS SHILPA R SHAH for the Appellant MR MG NANAVATI, ADDL PUBLIC PROSECUTOR for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 12/11/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The learned counsel for the appellant in this appeal has CR.A/386/2000 2/3 JUDGMENT not disputed the incident. However, she submits that there are two injuries sustained by the deceased, one on the neck and another on the hand. It is only an abrasion. Thus, it cannot be said that it is an injury attributable to the death of the deceased. From the facts obtaining and recorded, it cannot be said that the incident which has occurred was premeditated. It had only occurred on the spur of the moment. In that background, the learned counsel for the appellant urges that the case would not be covered by Clause thirdly of Section 300 of the Indian Penal Code. According to the learned counsel, it is not an intended injury to kill the deceased, but the incident had occurred on the spur of the moment. Therefore, she prays that the offence be converted to Section 304 Part-I of the Indian Penal Code. The learned Additional Public Prosecutor submits that though the death has occurred, but yet the fact remains that it was not premeditated act or plan and, therefore, the arguments are not as such baseless. In the aforesaid circumstances, without disturbing and doubting the prosecution case, the sentence is altered from Section 302 of the Indian penal Code to Section 304 Part I of the Indian Penal Code. Accordingly, the sentence is altered from life imprisonment to 10 years with fine of Rs.2,000/-, in default, six months simple imprisonment. The appeal is partly allowed. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) CR.A/386/2000 3/3 JUDGMENT omkar