CR.A/31220/2000 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.312 of 2000 With CRIMINAL APPEAL No.247 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD AND 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? ========================================================= = JAGUBHAI @ JAGMALBHAI GOVINDBHAI DODIYA & ORS.-Appellants Versus STATE OF GUJARAT - Respondents ========================================================= = Appearance : MR PM THAKKAR, SR. ADVOCATE FOR M/S THAKKAR ASSOC. for Appellants. MS HANSA B. PUNANI, APP for Respondent. ========================================================= = CORAM : HONOURABLE MR. JUSTICE BHAGWATI PRASAD and HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 17/10/2008 CR.A/31220/2000 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) Heard the learned counsels for the parties. 2. In this case, there is alleged to be three murders, but the trial Court has convicted the appellants-accused only for one murder because there is hardly any substantive evidence to sustain the conviction for three murders. Only conviction has been recorded under Section 302 of the IPC in relation to death of Dhiru Duda. It is alleged that six persons assaulted Dhiru Duda by two sharp edged weapons, one by axe and another by dharia. Two persons also assaulted by iron rods. Those who have inflicted stick injuries have not been convicted. Those, who had dharia and iron rods have been convicted with the aid of Section 34 IPC. Substantive offence has been held to be proved against the appellant namely Jagmal who had an axe. From the medical report, we find that there are only two injuries and the two injuries have been sustained by deceased Dhiru Duda and they are contused lacerated wound, which can be inflicted by hard and blunt substance. 3. In this background, it was offered to the Court that there was no intention of any of the accused to CR.A/31220/2000 3/5 JUDGMENT cause death of deceased and it was only when one Rambhai Kesarbhai – complainant was being given beating that these persons intervened and got killed. 4. Be that as it may, if the incident is not challenged then injuries sustained by Dhiru Duda could not be injuries inflicted by the axe and the dharia and it cannot be an offence under Section 302 IPC, but would be under Section 304 Part I. 5. We are prepared to accept the suggestion. That at the best, this was case a which would fall under exception (4) of Section 300 of the IPC. Therefore, conviction be altered from Section 302 to Section 304 Part I of the IPC. 6. The learned Additional Public Prosecutor vehemently argued that there have been three murders, but is unable to support the case of the prosecution because there is hardly any evidence to record as to who had assaulted other two deceased persons namely, Duda Mula and Balu Duda. As regards Dhiru Duda, though there is saying that accused persons inflicted the injuries, but those persons were wielding sharp edged weapon and there is no sharp cutting injury. There might have been any CR.A/31220/2000 4/5 JUDGMENT knowledge or intention to cause death. The case may fall under clause thirdly of Section 300. That being the position, we feel constrained to observe that the prosecution has not been able to prove the case as put forward, but it is coming from the accused for being convicted under Section 304 Part-I and sentenced the accused to 10 years' R.I. We are prepared to accept the suggestions. 7. Consequently, the appeal of the accused is partly allowed. The conviction is altered from Section 302 read with 34 IPC to Section 304 Part I. We are informed that the accused-appellant No.4 was a student at the time of crime and he has served around five years and thereafter he has been enlarged on bail by this Court. Now, therefore, it would not be possible to send him behind bar. In the result, Criminal Appeal No.312 of 2000 is partly allowed. The conviction of all the appellants- accused recorded under Section 302 IPC by the learned Additional Sessions Judge, Rajkot vide his judgment and order dated 29.01.2000 is altered to Section 304 Part I of the IPC. The appellant Nos.1 to 3 are ordered to suffer sentence of 10 years' R.I. and pay fine of CR.A/31220/2000 5/5 JUDGMENT Rs.500=00, in default S.I. for one month. So far as the appellant No.4 is concerned, his sentence is reduced to the sentence already undergone and he is ordered to pay fine of Rs.500=00, in default S.I. for one month. Conviction and sentences recorded under other Sections are, however, maintained. All the sentences would run concurrently. The appellant No.4 is on bail. The bail bond shall stand cancelled. Direct Service is permitted. 8. Criminal Appeal No.247 of 2000 filed by the State against acquittal is dismissed. [Bhagwati Prasad, J.] [Bankim N. Mehta, J.] Rajendra*