CR.A/51620/2002 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 516 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 ? 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 ? ====================================== THAKOR CHAMANJI AJMALJI & OTHERS Versus STATE OF GUJARAT ====================================== Appearance : Mr K.J. Panchal, appointed as amicus curiae for the appellants Ms Mita Panchal, Additional Public Prosecutor for the respondent ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 03/12/2008 CR.A/51620/2002 2/5 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) 1. The present appeal calls in question the correctness of judgment and order dated 02.01.2002 passed by the Additional Sessions Judge, Mehsana in Sessions Case No.125 of 2000. Heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and Mr. Bhavik Raiyani for the respondents. We have perused the judgment and gone through the record of the case. The matter was called out twice on 02.12.2008 as well as today, but no one could remain present before the Court, therefore, the Court with a view to secure the ends of justice has appointed Shri K.J. Panchal as amicus curiae to assist the Court. 2. The present appeal is filed by four accused challenging their conviction and sentence for the offences punishable under Section 302 of the Indian Penal Code. All the accused are sentenced to life imprisonment and to pay a fine of Rs.1,000/- in default to suffer R.I. for four months. For committing offence under Section 324, all the accused are sentenced to undergo R.I. for one year and to pay a fine of Rs.300/-, in default to suffer R.I. for two months. For committing offence under Section 325 of the IPC, all the accused are sentenced for two years R.I. and to pay a fine of Rs.500/- in default to suffer R.I. for three months. For committing offence under Section 504, all accused are sentenced to six months R.I. and to pay a fine of Rs.100/- in default to further suffer R.I. for one month. For committing the offence under Section 506(2), all accused are sentenced to one year R.I. and to pay a fine of Rs.300/-, in default to further undergo R.I. for two months. CR.A/51620/2002 3/5 JUDGMENT 3. For the offence which is alleged to have been committed on 12.01.2000, the F.I.R. was fined on 13.01.2000 by the son of deceased. Name of the deceased is Manaji Hiraji Thakor, whereas the name of the complainant is Ranaji Manaji Thakor who is sole eye witness. It is the case of prosecution that in the past, there was some dispute with regard to passing of water through drainage between the parties and therefore, prior to occurrence of incident, there was some verbal altercation and thereafter, the present incident has taken place. It is the case of prosecution that Accused No.1 was armed with Dhariya, Accused No.2 and Accused No.3 were armed with sticks and Accused No.4 was also armed with Dhariya. It is the case of prosecution that accused No.1 inflicted a dhariya blow on head of deceased, Accused No.2 and 3 inflicted stick blows on hands of deceased and when the complainant intervened, he was also beaten by Accused No.4 by dhariya causing injury on head and also causing fracture on the hand of complainant. 4. The prosecution in order to bring some guilt of accused persons has examined in all 15 witnesses. Complainant is sole eye witness who is examined by prosecution at Exh.54, PW 6. He has supported the case of prosecution and has reiterated his version before the Hon'ble Court. As per the medical evidence, i.e. P.M. notes, deceased had received only one injury on head and cause of death is shock due to head injury. As per the evidence of PW 1- Doctor who carried out autopsy on the body of deceased, the injury on head is attributable to dhariya. CR.A/51620/2002 4/5 JUDGMENT As per the medical/ injury certificate of the complainant, he received three injuries- one incised would on head, one abrasion on hand and one fracture on right hand. 5. It is humbly submitted that Accused No.1 has remained behind bars appropriately for about 6 and half years. It is humbly submitted that he has not taken any undue advantage by repeating the blows on the person of deceased. It is humbly submitted that as per the remark which is indicated on board, Accused No.2 has died during the pendency of the present appeal. It is humbly submitted that Accused No.3 was on bail during the pendency of trial and was denied bail by this Hon'ble Court at the time of admission of appeal. So, practically, he has undergone a sentence of about six years. It is humbly submitted that even if whole prosecution case is accepted at its face value, admittedly, he has not caused any fatal injury to the deceased. So far as accused No.4 is concerned, he is in jail since his arrest. It is humbly submitted that the evidence of prosecution is not reliable, dependable, trustworthy and believable. That there are material contradictions, omissions in the version of prosecution witnesses. That for the single blow which proved to be fatal, four accused are sentenced to life imprisonment. It is difficult to find out as to which of the accused caused this injury. Per contra, the learned APP has submitted that so far as appeal of A-2 is concerned, it would abate. For A-1 and A-4, the period of sentence which they have undergone would serve the purpose and meet with the end of justice, if they are convicted for the offence under Section 304 Part-I and Section 326 respectively. CR.A/51620/2002 5/5 JUDGMENT Having considered the arguments of both the learned counsel this Court is of the opinion that it is not certain as to who caused fatal blow as two accused persons are alleged to have possessed dharia. However, looking to the facts and circumstances of the case, if the first blow is to be considered to be the fatal blow, then, it was caused by accused No.1. The incident in question had taken place on 12.1.2000 and the death occurred on 14th January only. Therefore, the gravity of this injury cannot travel beyond Section 304 Part-I of IPC. In that view of the matter, the conviction recorded by the trial Court is altered from Sections 302 of IPC to Section 304 Part-I and conviction under Section 324, 325, 504, 506(2) read with 34 of IPC and under Section 135 of the Bombay Police Act is maintained. The period of sentence undergone is considered sufficient to meet the ends of justice. The same is, therefore, reduced to the sentence already undergone. In the result, the appeal is partly allowed. The accused shall be set at liberty forthwith if not required in any other case. Direct Service is permitted. (Bhagwati Prasad, J.) (Bankim N Mehta, J.) *mohd