CR.A/460/1999 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 460 of 1999 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 ? ========================================= = VIJAY PRABHASHANKER MEHTA Versus STATE OF GUJARAT AND ANOTHER ========================================= =Appearance : MR KJ SHETHNA for the Appellants. MS MITA PANCHAL, ADDL PUBLIC PROSECUTOR for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 14/10/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. Heard the learned counsel for the parties. CR.A/460/1999 2/3 JUDGMENT 2. The incident is not disputed. But, what is disputed is the offence as alleged, is not made out. 3. The fact which is broadly come out is that the five accused persons who were alleged to be co-convict persons have already been acquitted and appeal against their acquittal filed by the State has already been dismissed. 4. This also stands out broadly that two accused persons have also been acquitted under Sections 302 and 34 of the Indian Penal Code and acquittal appeal has also been dismissed. Now the case remains for two accused persons, namely accused No.1, who is convicted under Section 302 of the IPC and accused No.2 who is convicted under Section 326 of the IPC. Out of that, the conviction of one of the accused is not challenged under Section 326 of the IPC. Only thing brought is that his sentence may be reduced at this distance of time. We feel that his appeal be partly allowed and conviction under Section 326 be maintained and his sentence be treated as already undergone. 5. Now, we take out the case of Vijay. This stands out broadly by the arguments of the learned counsel for the appellant that the accused persons were injured in the incident, there is no plausible explanation available on record for the injury sustained by the accused. Though two explanations are available on record, but that is not considered sufficient. Since both the parties got injured, we are prepared to see that it was a case of sudden incident and dominant CR.A/460/1999 3/3 JUDGMENT intention of murder cannot be seen and that being the position, when both the parties were injured, exception (4) of Section 300 of the IPC is invoked and conviction of the appellant No.1 is altered from 302 to 304 Part-I and he is ordered to be sentenced for 10 years R.I. and fine of Rs.500/-. With these directions, the appeal is partly allowed and conviction and sentence of Harish is maintained and his sentence is reduced to the sentence already undergone. As regards accused No.1, his appeal is partly allowed. His conviction is altered from 302 to 304 Part-I and he is ordered to serve out 10 years sentence with fine of Rs.500/-. With the aforesaid direction, the appeal is partly allowed, as aforesaid. As regards accused No.2- Harish Prabhashankar Mehta, his conviction is maintained. His substantive sentence is reduced to the period already undergone. Direct service is permitted. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) omkar