CR.A/536/2002 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 536 of 2002 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 ========================================================= RABARI SAJAN JINA & 3 - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MR MJ BUDDHBHATTI for Appellant(s) : 1 - 4. 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/536/2002 2/3 JUDGMENT The present appeal is filed against the judgement and order dated 10.6.2002 passed by the learned Additional Sessions Judge, Fast Track Court, Junagadh, in Sessions Case No. 110 of 2000. Heard learned counsel for the parties. The case rests of the testimony of child witness. The child witness is of the age of 12 years. He has been administered oath which is against law. A child of 12 years could not have been administered oath. The first illegality of the trial Court is to that extent. The injuries which are sustained by the deceased are 13 in number but only one injury is said to be fatal. There are four accused persons. It is difficult to assign the particular role to any one of the accused persons. All four accused persons are behind the bars since approximately eight years. Per contra learned A.P.P. has submitted that as per the prosecution case there was a dispute between the parties with regard to right of way. Thus, there was enmity between the parties. The incident had occurred all of a sudden without there being any previous preparation on an old feud. Since there is only one grievous hurt, attraction of common intention to all accused causing death of the deceased cannot be considered. Four accused persons having suffered approximately eight years' imprisonment. They are behind the bars since 2000. This Court considers that the case would not be one which can be covered by clause Thirdly of Section 300 of the Indian Penal Code. In that background this Court CR.A/536/2002 3/3 JUDGMENT considers that the offence can be converted into Section 304 Part-I of the IPC. Approximately eight years' imprisonment has been suffered by all the four accused persons. The sentence already undergone is considered as sufficient to meet with the ends of justice. With the aforesaid modification, the appeal is partly allowed. Conviction under Section 302 read with Section 34 of IPC is altered to Section 304 Part-I read with Section 34 of the IPC. The sentence is reduced to already undergone by the accused. The accused are behind bars. They are ordered to be released forthwith if not required in any other case. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)