CR.A/320/2001 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 3 of 2001 With CRIMINAL APPEAL No. 196 of 2001 WITH CRIMINAL MISC. APPLICATION NO.7960 OF 2007 in CRIMINAL APPEAL No. 3 of 2001 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 ? ====================================== GANPATBHAI VIRAMBHAI THAKORE & OTHERS Versus STATE OF GUJARAT ====================================== Appearance : Criminal Appeal No.3 of 2001 MR KARTIK V PANDYA for the Appellants Ms Mita Panchal, Additional Public Prosecutor for the State CR.A/320/2001 2/5 JUDGMENT Criminal Appeal No.196 of 2001 Ms Mita Panchal, Additional Public Prosecutor for the appellant-State MR KARTIK V PANDYA for the respondents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 13/11/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) These two appeals arise out of the judgment and order dated 1t December 2000 passed by the learned Additional Sessions Judge, Deesa in Sessions Case No.88 of 1999. Criminal Appeal No.3 of 2001 is filed by the appellants - original accused Nos.1, 2 and 3 challenging their conviction under Section 302 of the Indian Penal Code whereas Criminal Appeal No.196 of 2001 is filed by the State against acquittal of accused Nos.4 to 8 for the offence under Sections 302, 147, 148, 149, 324, 323 of IPC and Section 135 of the Bombay Police Act. By the said judgment and order the learned Additional Sessions Judge imposed the following punishment :- (i) Accused No.1 – Ganpatbhai Virambhai Thakore was convicted under Section 302 of IPC and was sentenced to undergo life imprisonment with a fine of Rs.1000/- in default to further undergo SI for three months. He was also convicted under Section 324 of IPC and was sentenced to undergo RI for six months with a fine of Rs.500/-, in default to further undergo SI for one month. CR.A/320/2001 3/5 JUDGMENT (ii) Accused No.2 – Rajubhai Virambhai Thakore was convicted under Section 302 of IPC and was sentenced to undergo life imprisonment with a fine of Rs.1000/- in default to further undergo SI for three months. (iii) Accused No.3 – Ganeshbhai Virambhai Thakore was convicted under Section 302 of IPC and was sentenced to undergo life imprisonment with a fine of Rs.1000/- in default to further undergo SI for three months. The learned trial Judge has categorically found that there was no unlawful assembly and therefore acquitted accused Nos.4 to 8. These five accused persons who have been acquitted have been stated to be wielding sticks. The injuries found on the person of the deceased are not attributable to these accused persons. In that view of the matter, this Court is of the view that the acquittal recorded by the trial Court for accused Nos.4 to 8 cannot be doubted and cannot be held to be in any way perverse or not warranted by the facts of the case. In that view of the matter, Criminal Appeal No.196 of 2001 is filed by the State against acquittal of accused Nos.4 to 8 who have been only attributed with wielding sticks is rejected. As far as Criminal Appeal No.3 of 2001 filed by accused Nos.1 to 3 is concerned, out of three accused persons one accused No.1 - Ganpatbhai Virambhai Thakore was wielding sword, accused No.2 – Rajubhai was wielding knife and accused No.3 – Ganeshbhai was wielding Dharia. According to the eye witness, Rajubhai gave repeated blows. He was having knife. Though the Doctor in his deposition has stated that the injuries sustained by the deceased cannot be attributed to CR.A/320/2001 4/5 JUDGMENT the weapons recovered, but, then it is always not necessary that the recovered weapon can be said to be the weapon which was used at the time of commission of the offence, because it is difficult to identify the weapon. In the facts and circumstances of the case, the learned counsel restricts his arguments only on the nature of the offence and in that background this Court is of the opinion that the nature of the offence as regards accused No.2 – Rajubhai is concerned is definitely falling under Section 302 of the Indian Penal Code, because, he has not only caused fatal blow, but, repeated the blow. Hence, his intention of causing death cannot be doubted. Therefore, his conviction under Section 302 of IPC and consequent life imprisonment is not liable to be disturbed. The other two accused – Ganpatbhai and Ganeshbhai have caused simple injuries. They have sufficiently remained behind the bars of around 8-9 years. In that background, it would be appropriate if their conviction is altered from 302 IPC to 304 Part-I of IPC. In the result, Criminal Appeal No.3 of 2001 is partly allowed. The conviction recorded by the trial Court under Section 302 of IPC and sentence of life imprisonment qua appellant no.2 – Rajubhai Virambhai Thakore is not liable to be disturbed. So far as the conviction recorded by the trial Court qua appellant No.1 – Ganpatbhai Virambhai Thakore and appellant No.3 – Ganeshbhai Virambhai Thakore is concerned, the same is to be altered from Section 302 of IPC to 304 Part-I of IPC. The period of sentence already undergone would meet ends of justice. The accused/appellant Nos.1 and 3 shall be set at liberty forthwith if not required in any other case. As far as Criminal Appeal No.196 of 2001 is concerned, the findings recorded by the trial Court are not likely to be interfered qua respondents Nos.4 to 8 because the reasons are cogent and plausible. CR.A/320/2001 5/5 JUDGMENT The State appeal is dismissed. Bail bonds qua respondents – accused Nos.4 to 8 stand cancelled. In view of the disposal of the main appeal being Criminal Appeal No.3 of 2001, Criminal Misc. Application No.7960 of 2007 filed by wife of accused-appellant No.2 – Rajubhai Virambhai for releasing him on temporary bail does not survive and the same is accordingly dismissed. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd