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CR.A/536/2002 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 536 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
=========================================================
RABARI
SAJAN JINA & 3 - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
MJ BUDDHBHATTI for
Appellant(s) : 1 - 4.
Ms. Mita Panchal, APP, for the respondent
State. =========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 01/12/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present appeal is filed against the judgement and order dated
10.6.2002 passed by the learned Additional Sessions Judge, Fast Track
Court, Junagadh, in Sessions Case No. 110 of 2000.
Heard
learned counsel for the parties. The case rests of the testimony of
child witness. The child witness is of the age of 12 years. He has
been administered oath which is against law. A child of 12 years
could not have been administered oath. The first illegality of the
trial Court is to that extent. The injuries which are sustained by
the deceased are 13 in number but only one injury is said to be
fatal. There are four accused persons. It is difficult to assign the
particular role to any one of the accused persons. All four accused
persons are behind the bars since approximately eight years.
Per
contra learned A.P.P. has submitted that as per the prosecution case
there was a dispute between the parties with regard to right of way.
Thus, there was enmity between the parties.
The
incident had occurred all of a sudden without there being any
previous preparation on an old feud. Since there is only one grievous
hurt, attraction of common intention to all accused causing death of
the deceased cannot be considered. Four accused persons having
suffered approximately eight years’ imprisonment. They are behind the
bars since 2000. This Court considers that the case would not be one
which can be covered by clause Thirdly of Section 300 of the Indian
Penal Code. In that background this Court considers that the offence
can be converted into Section 304 Part-I of the IPC. Approximately
eight years’ imprisonment has been suffered by all the four accused
persons. The sentence already undergone is considered as sufficient
to meet with the ends of justice.
With
the aforesaid modification, the appeal is partly allowed. Conviction
under Section 302 read with Section 34 of IPC is altered to Section
304 Part-I read with Section 34 of the IPC. The sentence is reduced
to already undergone by the accused. The accused are behind bars.
They are ordered to be released forthwith if not required in any
other case.
(BHAGWATI
PRASAD, J)
(BANKIM
N. MEHTA, J)
(pkn)
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