CR.A/707/2002 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 707 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 MUSABHAI MIYANA - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ========================================================= Appearance : MS Sadhana Sagar, appointed for the Appellant Ms. H.B. Punani, APP, for the respondent State. ========================================================= CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 17/12/2008 ORAL JUDGMENT CR.A/707/2002 2/3 JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been filed against the judgement and order dated 19.8.2002 passed by the learned Additional Sessions Judge, Fast Track Court, Junagadh in Sessions Case No. 26 of 2001. By the said judgement the learned trial Judge has convicted the appellant-accused and sentenced him imprisonment for life. Heard learned counsel for the parties. The learned counsel for the appellant has put forward a case of right of private defence. In this case the accused sustained injury on head apart from other injuries at the hands of the deceased. It was a case of sudden quarrel. That being the position, the case squarely gets out of the ambit of clause Thirdly to Section 300 of the Indian Penal Code and falls within the provision of Section 304 Part I of the Indian Penal Code, being covered by Exception 4 to Section 300 of the Indian Penal Code. That being the position since the accused remained behind the bar approximately for 9 years, we are of the considered opinion that conviction under Section 302 of the IPC is required to be altered to Section 304 Part I of the Indian Penal Code and accused is sentenced to rigorous imprisonment for 10 years and fine of Rs. 1000/- and in default of fine, further one month rigorous imprisonment. In the result, the appeal is allowed. Conviction and sentence of the appellant-accused under Section 302 of the Indian Penal Code is altered to Section 304 Part I of the IPC. The accused is sentenced to rigorous imprisonment for 10 CR.A/707/2002 3/3 JUDGMENT years and fine of Rs. 1000/- and in default of fine, further rigorous imprisonment of one month. The accused is behind the bar. He should serve out his remaining sentence, if any. (BHAGWATI PRASAD, J) (BANKIM N. MEHTA, J) (pkn)