Gujarat High Court Case Information System
Print
CR.A/292/2003 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 292 of 2003
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
=========================================================
KAPURJI
@ BHOJAJI RUPAJI - Appellant(s)
Versus
STATE
OF GUJARAT - Opponent(s)
=========================================================
Appearance
:
MR
MAHESH K. PUJARA for MR. A.M. DAGLI for the Appellant
MR. A.J.
DESAI, APP, for the respondent State.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 19/03/2009
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present appeal is filed against the judgement and order dated
5.2.2003 passed by the learned Additional Sessions Judge, Fast Track
Court, Patan in Sessions Case No. 428 of 2002. The learned trial
Judge by the said judgement convicted the accused for the offence
under Section 302 of the Indian Penal Code and sentenced him to
suffer imprisonment for life and fine of Rs. 1000/-, in default,
simple imprisonment for six months.
2. The
incident took place on 4.4.2001. Thereafter, the accused was
arrested. Investigation was carried out. Charge sheet was filed. The
case was committed to the trial Judge. The learned trial Judge, after
completion of trial, convicted the accused for the offence punishable
under Section 302 of the IPC . The accused has been sentenced to life
imprisonment and fine of Rs. 1000/-, in default, to further undergo
simple imprisonment for six months. However, the accused has been
acquitted of the charges under Section 135 of the Bombay Police Act.
3. The
learned counsel for the appellant does not dispute the incident but
claims that the offence would not be as has been held by the trial
Court because the incident which had occurred in the heat of the
moment. The uncle had proved the young man and due to his youthful
exorbitance he could not control himself and caused solitary blow on
the deceased which subsequently resulted into haemorrhage and
ultimately resulted into death of the deceased person. Therefore, it
could not be covered by Clause Thirdly to Section 300 of the IPC.
The accused and the deceased were quarreling and while quarreling
this injury got inflicted. In that view of the matter, the learned
counsel for the appellant submitted that the offence under Section
302 of IPC may be diluted to Section 304 Part I of the IPC and the
accused being behind the bar since 2001, sentence of 10 years’
rigorous imprisonment would meet the ends of justice.
4. The
learned Additional Public Prosecutor is unable to defend the ultimate
prayer made by the learned counsel for the appellant because there is
only one injury and that too caused in the heat of the moment on the
back of the deceased. In that view of the matter, we are persuaded to
hold that the case though stands proved, the offence would not be
under Section 302 of the IPC and it should be under Section 304 Part
I of the IPC.
5. In
the result, the appeal is partly allowed. The conviction and sentence
of the accused under Section 302 of the IPC is set aside. Instead,
the accused is convicted under Section 304 Part I of the IPC. He is
sentenced to 10 years’ rigorous imprisonment and fine of Rs. 5,000/-,
in default, one month’s simple imprisonment.
(BHAGWATI
PRASAD, J)
(BANKIM
N. MEHTA, J)
(pkn)
Top