CR.A/769/2002 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 769 of 2002 With CRIMINAL APPEAL No. 44 of 2003 To CRIMINAL APPEAL No. 45 of 2003 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 ========================================================= AMIR TAHER ALI VOHRA SADIKOT - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 769 of 2002 Mr. Anil S. Dave and Ms. Bharti H. Rana for appellant No. 1 Mr. P.M. Thakker, ld. sr. counsel, with MR MI MERCHANT for Appellant(s) : 2 – 6. Mr. Pramthesh Dave for original complainant Ms. Mita Panchal, APP, for the respondent State. Criminal Appeal Nos. 44/2003 & 45 of 2003 Ms. Mita Panchal, APP, for the appellant State Mr. P.M. Thakkar, ld. sr. counsel with Mr. M.I. Merchant for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD CR.A/769/2002 2/6 JUDGMENT and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 22/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) These appeals are filed against the judgement and order dated 11.9.2002 passed by the learned Additional Sessions Judge, Morbi in Sessions Case No. 26 of 1990. Appeal No. 769 of 2002 is filed by the accused-appellants whereas Appeal Nos. 44/2003 and 45 of 2003 are filed by the State of Gujarat against acquittal and for enhancement of sentence. 2. Heard learned counsel for the parties. It is a case where both the parties got engaged to bloody brawl. Both the parties sustained serious injuries. Injuries on the side of the accused are as follows: Injury to accused No. 1 – Amir Taherali – Exh. 57 at page 595: Swelling seen is of normal colour of size 4 cm x 3 cm on forehead Rt. Side oblique and abrasion of size 1 cm diameter on it read b/h on removal of clot. CLW of size 1.5 cm x 0.5 cm x 0.5 cm just above Lt. Eyebrow medial part obli. B/h on removal of clot no sign of inflammation. CR.A/769/2002 3/6 JUDGMENT Swelling of size 3.0 cm x 2.0 cm on forehead Lt. Side vertical. It is not normal colour. Injury to accused No. 2 – Mustanshir Taherali – Ex. 58 – page 596: Stab wound of size 3.0 cm x 1.0 cm x 4.0 cm deep obil. On Lt. Thigh M/3 part laterally clot in and about the wound. Bldt. On removal of clot. Margins are sharp and clearcut , elliptical. Direction – downward inward and forward. Swelling of size 6.0 c.m. X 6.0 cm on Lt. Hand dorsally stain is of normal colour. Bruise of size 12.0 cm x 2.0 cm on Lt. Arm laterally red. Oblique X-Ray Lt. Hand AD laf. R. HAD. Injury to accused No. 9 – Mohij Taherali – Exh. 59 page 597 CLW of size 1.5 cm x 0.3 cm x 0.5 cm on lt. Coipital region clot + oblique b/h on removal of clot. 3. The injuries sustained by other side as well which is as follows: Injury to Abdulla Akbarali Stab wound of 4 cm x 1 cm x 5 cm at near about junction of left hypchoudium and epigastric region just below costal margin – oblique elliptical free bleeding. Margins are sharp clean cut. CR.A/769/2002 4/6 JUDGMENT Stab wound of 5 cm x 2 cm x 6 cm on left side of chest. Abrasion 3 cm x 0.25 cm on Rt. Forearm Injury to Joyeb Fidaali Stab wound of 4 cm x 2 cm x 5 cm on waist region (This injury is simple in nature) 4. Learned counsel appearing for both the parties submitted that it was a mutual quarrel. Learned APP submitted that in such cases where the peace of the society is endangered, serious view should be taken. 5. We have considered the injuries sustained by both the parties and in fact there are cross cases and both the parties have sustained number of injuries. The injuries on both the parties cannot be said by any standard to be such which is not comparable. In that view of the matter, the suggestion of the parties that instead of offence under Section 302 of IPC against accused No. 1, the offence may be dilued to Section 304 Part I of the IPC looking to the fact that a serious right of private defence is involved in the case. 6. Since both parties quarreled it cannot be said with certainty for which offences both the parties hatched conspiracy. Thus, implication of Section 114 of IPC for the offence under Section 302 of IPC cannot be made out with certainty. At best it was a case where a quarrel broke out in CR.A/769/2002 5/6 JUDGMENT between the parties. Only accused No. 1 had caused injury to the deceased. Therefore, it would be in the fitness of things to consider his case qua injuries inflicted on the deceased. The case of other accused is judged in the light of simple injuries sustained by other injured. 7. We have examined the injuries and the statements and we are of the considered opinion that in cases where right of private defence is said, the injuries are not weighed in golden scales and if there are probabilities of inflicted injuries in the right of private defence then instead of offence under Section 302 of IPC, offence under Section 304 Part I of IPC can be made out and in that view of the matter we are of the considered view that the offence as proved against accused No. 1 can be diluted from Section 302 of IPC to Section 304 Part I of the IPC. Conviction of accused No. 1 Amir Taherali Vohra under Sections 302/114 of IPC is set aside. Instead he is convicted under Section 304 Part I of the IPC and sentenced to 7 (seven) years' rigorous imprisonment and fine of Rs. 100/-, in default, three months simple imprisonment. 8. As regards appellant Nos. 2 to 6, simple injuries are attributed to them. Conviction of accused Nos. 6 and 7 under Sections 302/114 of IPC is set aside. Conviction of accused Nos. 2, 3 and 9, under Section 307/114 is altered. Instead they are convicted under Sections 324/114 and sentenced to the period already undergone. They are ordered to be released forthwith if not required in any other case. 9. In the result, the appeal filed by the accused CR.A/769/2002 6/6 JUDGMENT persons is allowed as stated above. The appeals filed by the State against acquittal and enhancement of sentence are dismissed. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)