CR.A/516/2000 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 516 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 ========================================================= SARDARSINH RATANSINH BARIA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : MR M.J. BUDDHBHATTI for the Appellant MS. MITA PANCHAL, APP, for the respondent ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 19/11/2008 CR.A/516/2000 2/4 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal is filed against the judgement and order dated 1.5.2000 passed by the learned Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No. 256 of 1999. 2. Briefly stated the prosecution case is that on 20.6.1999 at about 4.00 p.m., the deceased Mangalsinh was assaulted by the accused and he darted an arrow on his abdomen. The deceased tried to take out the arrow but the blade portion of arrow was sunk inside the abdomen and due to that the injured succumbed to the injury. The case of the prosecution is that the other co-accused assaulted family members of the deceased who were convicted individually for lesser offence and they have not preferred any appeal. There was a cross-case filed against the complainant-party and in the course of the same transaction, the accused had received serious injury on his head. The dispute was outcome of land which was in possession of the accused. 3. The admitted position in this appeal is that there was only one injury caused by arrow and the accused was seriously injured having bleeding injury on the head. There was cross-complaint filed by the relative of the accused against the deceased and the complainant, who was the brother of the deceased and he has lodged FIR. He was examined by the prosecution. S.P. W-10 Exh. 35 Shri Gopalsinh Raghesinh Baria. This witness has supported the case of the prosecution but has CR.A/516/2000 3/4 JUDGMENT failed to explain the injury on the person of accused and other two co-accused. The theory of right of private defence was put in cross-examination suggesting that the complainant's side was the aggressor. 4. Thus, taking overall view of the matter and considering that there was only one injury caused on the deceased by darting an arrow and the serious injury on the head of the accused was not explained by the prosecution and there was a cross-complained filed against complainant-party, the case was made out for exceeding the right of private defence or alternatively sudden quarrel in which no undue advantage was taken and the offence would fall under Section 304 Part-I of the IPC. The accused is in jail since 20.6.1999 and he has served out more than nine years of actual imprisonment. Therefore, learned counsel for the appellant submitted that the appeal may be partly allowed by altering the conviction of the appellant-accused from Section 302 of the IPC to Section 304 Part I of the IPC and appropriate sentence may be passed. 5. In this appeal since correctness of incident is only assailed to the extent of offence only, we are persuaded to consider the case in that light. The accused has sustained head injury. The same has not been explained by the prosecution. There were cross-cases registered. This makes both the parties vulnerable to law. 6. Having regard to the facts and circumstances of the case that the accused having sustained a head injury which has not been explained by the complainant could base a CR.A/516/2000 4/4 JUDGMENT reasonable right of private defence. But the injury by arrow cannot be considered to be that possible answer to that. In this light, we are persuaded to alter the conviction from Section 302 of IPC to Section 304 Part-I of IPC and reduce the substantive sentence to already undergone. 7. In the result, the appeal is partly allowed. The conviction and sentence are modified as aforesaid. The accused is behind the bar. He is ordered to be released forthwith if not required in any other case. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)