CR.A/378/2002 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 378 of 2002 With CRIMINAL APPEAL No. 426 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 ========================================================= IQBAL KASAM JAGA - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================================= Appearance : Criminal Appeal No. 378 of 2002 MR YOGESH S LAKHANI, ld. sr. counsel for Appellant(s) : 1 - 4. Mr. Mukesh Patel, APP, for the respondent State Criminal Appeal No. 426 of 2002 Mr. Mukesh Patel, ld. APP, for the appellant State Mr. Y.S. Lakhani, ld. sr. counsel for the respondents ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD CR.A/378/2002 2/3 JUDGMENT and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 01/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeals are filed against the judgement and order dated 24.1.2002 passed by the learned Additional Sessions Judge, Junagadh in Sessions Case Nos. 99-100/1998. Heard learned counsel for the parties. In this case five accused persons were tried. One accused i.e. accused No. 4 had already been acquitted. There are four injuries sustained by the deceased. Two injuries are minor abrasions. The other two injuries – one injury is on neck and another on buttock. These two injuries which can be said to be caused by sharp edged weapons are attributed to Iquabal Kasam Jaga. The other appellant accused have not been attributed to any such injury. They have only assigned the role of catch holding of the deceased. The learned trial Judge has convicted the accused under Section 304 Part-I of the Indian Penal Code. Learned counsel for the appellants has not disputed the incident. However, he has urged that the offence which has been proved against Iquabal Kasam Jaga, the sentence awarded is excessive. As regards other three accused persons, they have been held guilty of offence under Section 304-Part-I read with Section 114 of the IPC. Evidence of abetment is not there. Therefore, they deserve to be acquitted. Since one of CR.A/378/2002 3/3 JUDGMENT the identical accused has been acquitted, they also deserve the same treatment. Learned A.P.P. submitted that when there is an assault and knife is put on the neck, notwithstanding the fact that the offence is only made under Section 304 Part I of the Indian Penal Code, the sentence of life is appropriate. We have considered the rival submissions. The accused have remained behind the bars for more than years years. In the facts and circumstances of the case, the conviction of Iquabal Kasam Jaga under Section 304 Part I of the Indian Penal Code is maintained. However, he is ordered to be sentenced to 10 years rigorous imprisonment and fine of Rs. 3000/-. The other accused persons having similarly situated to the one acquitted person and only charged with abetment which has not been found to be proved. The charge against the other three accused persons fails. They are acquitted of the charges levelled against them. In the result, the appeal is partly allowed. The conviction of accused No. 1 - Iquabal Kasam Jaga is maintained. He is ordered to serve out sentence of 10 years rigorous imprisonment and fine of Rs. 3000/-. The other accused persons are acquitted of the charges levelled against them. They are ordered to be released forthwith if not required in any other case. In view of the above circumstances, the State appeal against the acquittal does not survive. The same is dismissed. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)