CR.A/44/1987 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 44 of 1987 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 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 MOHMEDYUSUF IBRAHIM MEMON ====================================== Appearance : Mr IM Pandya, Additional Public Prosecutor for the Appellant MR D DHIRAJLAL VYAS for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 10/07/2008 CR.A/44/1987 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed by the State of Gujarat being aggrieved by the decision of the court of the Additional Sessions Judge, Vadodara at Navsari. The accused – respondents were tried by the court below. Accused No.1 – Ibrahim Mohd Memon was convicted for the offence under Section 323 of the Indian Penal Code and was imposed a fine of Rs.75/-. Accused No.2 – Mohd Ibrahim Memon was convicted for the offence under Section 304(2) and 342 of the Indian Penal Code and was released on probation. The present appeal is filed only against accused No.2 – Mohd Ibrahim Memon who was convicted under Section 304(2) and 324 of the Indian Penal Code and was granted the benefit of probation. The incident is alleged to have taken place in the background that the father of the complainant had given clothes to the accused for stitching. While he was returning on the fateful day from outside to his home, he stayed back at the shop of the accused – respondents and asked for the clothes being given. The accused gave the clothes, but demanded the money. However, since money was not paid, the clothes were not given to the father of the deceased. Father of the deceased then sent his another son with Rs.50 to be paid to the accused for stitching the clothes. According to the accused, it was not correct amount and he was required to be paid Rs.70/- and there he did not give the clothes. When son of the complainant returned home, deceased went to the shop. It is alleged that deceased was followed by his younger brother with money. But, the defence case is that the deceased had gone to the shop to take cudgels with the accused. There was an CR.A/44/1987 3/4 JUDGMENT altercation and exchange of abuses and at that time it is alleged that the accused gave following injuries on the person of the deceased:- 1. Incise penetrating wound ¼” x ¼” x ¾” left side of chest below nipple. 2. Incise wound ¾” x ¼” x ¾” oblique 5½” below shoulder. After considering the case of the prosecution learned trial judge was of the opinion that it was not a case of premeditation and the incident had happened on the spur of the moment. There was a hot exchange of words. The cudgels were taken by the deceased. He provoked the accused and thus the case of the accused fell into Exception 1 of the exceptions of Section 300 of the India Penal Code wherein on the spur of the moment and in hot exchange of words the incident had taken place. Thus, the case fell within the category of exceptions of culpable homicide not amounting to murder. Therefore, the learned trial Judge convicted the accused under Section 304 Part (2) of the Indian Penal Code. We have examined the prosecution case. From the evidence it is clearly established that the accused was not given his payment, which was required to be paid to him for the stitching charges. Thrice attempt was made to persuade the accused to give away clothes without due payment. Then, the deceased took cudgels also with the accused. All this is sufficient to bring the case within the Exception 1 of Section 300 of the Indian Penal Code and therefore we feel that the case has been rightly brought in the exceptions of Section 300 of IPC and conviction has been recorded under Section 304 Part-2 of the IPC. The trial Court has granted the benefit of probation to the accused. The incident is of 19th January 1985. The case was decided on 12th September 1986. For almost one year and nine months the accused remained behind the bars. CR.A/44/1987 4/4 JUDGMENT Along with that probation has been granted to him. We consider that at this distance of time the sentence passed does not deserve to be altered. Consequently, we uphold the order passed by the Session Court keeping in view that for almost one year and nine months the accused was behind the bars. In the result, the appeal is dismissed. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd