CR.A/70120/2001 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 701 of 2001 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 ? ========================================= = SOMABHAI PRAGJIBHAI Versus STATE OF GUJARAT ========================================= =Appearance : MR PM THAKKAR, Sr. Advocate with MR JM BUDDHBHATTI for the Appellant MS HB PUNANI, ADDL PUBLIC PROSECUTOR for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 23/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) CR.A/70120/2001 2/3 JUDGMENT Heard the learned counsel for the parties. The original case was that the accused No.1-Kaluji alias Kalio Bhaguji had given sword blow and the accused No.2- Somabhai Pragjibhai had given gupti blow on the deceased. Accused No.1 has died during the pendency of the appeal. The present appeal survives only on behalf of the accused appellant No.2- Somabhai Pragjibhai. Accused No.2- Somabhai is alleged to have caused injury, one on buttock and one on elbow. Both the injuries were inconsequential and incapable of killing the deceased, who died after about 25 days after the incident because of blood clotting. The accused No.1- Kaluji is alleged to have caused abdomen injury to the deceased, who expired during the pendency of the appeal. In this background, the learned counsel for the appellant submitted that the offence under Section 302 of the Indian Penal Code would not be made out against the accused No.2. Accused No.2 may be convicted under Section 304 Part II of the IPC for causing the injuries in question. The learned Additional Public Prosecutor submitted that the accused No.1 was alone the person who had caused abdomen injury and offence under Section 302 of the IPC would be made out against him. In that view of the matter, we are of the considered view that death has occurred after 25 days of the incident and the case is of causing inconsequential injury simplicitor, offence of murder cannot be made out against the accused No.2 looking to his participation, wherein he has caused two injuries which are inconsequential, i.e. one on buttock and another on hand, and the offence can be diluted from Section 302/ 34 to Section 304 Part II of the Indian Penal Code. CR.A/70120/2001 3/3 JUDGMENT The appellant- accused No.2 has already remained behind the bars for about 8 years. Therefore, we consider that his sentence may be ordered to be reduced to the period already undergone. Appeal of accused No.1, Kaluji alias Kalio Bhaguji, is abated due to his death, vide order dated 17.10.2008. In the result, the appeal of Somabhai Pragjibhai is partly allowed. His conviction under Section 302/ 34 is not sustained and instead he is convicted under Section 304 Part II of the Indian Penal Code simplicitor. He has already remained behind the bars for about 8 years. So, the substantive sentence already undergone by him is sufficient to meet with the ends of justice, in addition to, he is imposed fine of Rs.500/-, in default to undergo one month simple imprisonment. Hence, the appeal of appellant- accused No.2 -Somabhai Pragjibhai is partly allowed, as indicated above. He is ordered to be released forthwith if not required in any other case. (BHAGWATI PRASAD, J.) (BANKIM N. MEHTA, J.) omkar