CR.A/886/1986 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 886 of 1986 With CRIMINAL APPEAL No. 932 of 1986 With CRIMINAL APPEAL No. 934 of 1986 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 ? 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 ========================================================= VIRSINH @ BAGO PRABHATSING RAJ & 1 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR KJ SHETHNA for Appellant(s) : 1 - 2. Mr. Maulik Nanavati, Addl. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and CR.A/886/1986 2/4 JUDGMENT HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 22/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) These three appeals one is filed by the accused and the other two are filed by the State of Gujarat against the order of the learned Additional Sessions Judge, Nadiad, on 21.6.1986 in Sessions Case No. 127 of 1985. 2. We have considered the questions in detail. The State has filed Criminal Appeal No. 932 of 1986 for enhancement of sentence. Criminal Appeal No. 934 of 1986 is filed by the State against the order of acquittal passed by the learned Additional Sessions Judge, Nadiad. The accused has challenged the conviction under Section 326 and other Sections of the Indian Penal Code. 3. As the facts of the case go we are not persuaded that the acquittal order as recorded by the trial Court under Section 302 of the Indian Penal Code is liable to be interfered with because it was a case wherein 40 days old infant was killed. The prosecution case was that the blow was intended to be given to somebody else which accidentally fell on the infant. In that background, the case under Section 302 of the Indian Penal Code was not made out and the learned trial Judge CR.A/886/1986 3/4 JUDGMENT acquitted the accused. We do not find that any illegality has been committed by the learned trial Judge in not considering the case to be one made out under Section 302 of the I.P.C. Therefore, we are not inclined to interfere in appeal against the acquittal. 4. As regards the case of the accused where he has challenged order under Section 326 and other Sections of the Indian Penal Code. Suffice it to say that the conviction has not been challenged and it is only stated that after so many years a sentence of imprisonment may not be appropriate because the incident is alleged to have occurred in 1985. Considering the statement of the learned counsel for the accused, we are of the considered opinion that instead of sending the accused behind the bars for suffering substantive sentence, we would convert the substantive sentence into a sentence of fine as submitted by the learned counsel for the accused. The substantive sentence is reduced to the sentence already undergone by the accused and fine is increased to Rs. 25,000/- each. They have prayed for time for depositing the same. One month time is given to pay the fine. In case the fine is not deposited as stated hereinabove, the substantive sentence as awarded by the trial Court will come into effect. To the aforesaid extent the order of the learned trial Judge is modified. Rest of the order of the learned trial Judge is confirmed. 5. The State has filed appeal for enhancement of the sentence awarded by the learned trial Judge. We are not inclined to interfere with the order of the learned trial Judge. CR.A/886/1986 4/4 JUDGMENT 6. For the foregoing reasons, the appeals filed by the State of Gujarat are dismissed. The appeal filed by the accused is partly allowed as indicated above. Bail bonds of accused are cancelled. (BHAGWATI PRASAD, J) (S.R. BRAHMBHATT, J) (pkn)