CR.A/1094/2000 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1094 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 ? 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 ========================================================= THAKOR BAKAJI BIJALJI & 8 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR PRAKASH K JANI for Appellant(s) : 1 - 9. Ms. Mita Panchal, APP, for the respondent State ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 01/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/1094/2000 2/3 JUDGMENT 1. The present appeal is filed against judgement and order dated 7.12.2000 passed by the learned Additional Sessions Judge, Mehsana, in Sessions Case No. 214 of 1999. 2. Heard learned counsel for the parties. It is not disputed that the death of the injured Takhaji Dhiraji occurred on 15.3.1999. The incident occurred on 9.1.1999 which was a very trifling of the demand of Rs. 200/-. That the accused had gone at the residence of Pashiben Bijalji. The injured deceased intervened and on that intervention he received about 12 injuries which ultimately proved fatal at the passage of time of two months. The learned counsel has not disputed the incident but has canvassed that in no case it can be said to be a case which would fall clause Thirdly of Section 300 of the Indian Penal Code. Since clause Thirdly of Section 300 of the Indian Penal Code is not attributable, the incident was trifling, death has occurred after more than two months, the accused may be convicted Section 304 Part-I of the Indian Penal Code. Most of the accused have remained behind the bars beyond 8 years. Accused No. 5 died during the pendency of the appeal. Accused No. 3, a very old person, was released recently. Ladies were granted bail by this Court but their complicity cannot be said to the extent of that the male accused members are. 3. Looking to the facts and circumstances of the case, the learned A.P.P. has submitted that when death has caused, the culprits should be dealt with sternly. 4. Having regard to the facts and circumstances of the case, this Court is of the opinion that offence under Section CR.A/1094/2000 3/3 JUDGMENT 302 of the Indian Penal Code cannot be said to be made out as death of the deceased did not ensue immediately. It was occurred after more than two months and few days. Ladies and accused No. 1 have been granted bail. The remaining accused have remained behind the bars beyond 8 years. 5. In that view of the matter, this Court is of the opinion that the conviction of the accused under Section 302 read with Section 149 of the Indian Penal Code is altered to Section 304 Part-I read with Section 149 of the Indian Penal Code and the sentence is reduced to already undergone by the accused. 6. In the result, the appeal is partly allowed. Conviction of the accused under Section 302 read with Section 149 of the Indian Penal Code is altered to Section 304 Part-I read with Section 149 of the Indian Penal Code and the sentence is reduced to already undergone by the accused. Accused Nos. 2 – Thakor Mansangji Jenaji, accused No. 4 Thakor Jugaji alias Vishnuji Janaji, accused No. 6 Thakor Bhikhaji Kacharaji, accused No. 9 Thakor Bharatji Fataji are ordered to be released forthwith if not required in any other case. Accused No. 5 died during pendency of appeal. Hence his appeal stands abated. Accused Nos. 1, 7 and 8 are on bail. Their bail bonds stand cancelled. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)