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CR.A/1820/2001 2/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 18 of 2001
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 ?
======================================
SARDARBHAI
NAVABHAI NAYAK
Versus
STATE
OF GUJARAT
======================================
Appearance
:
MR BS SUPEHIA for the Appellant
Ms Hansa B Punani, Additional Public Prosecutor for the
respondent ======================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 13/11/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present appeal has been filed by the appellant ? original accused
challenging judgment and order dated 16th December 2000
passed by the learned Sessions Judge, Panchmahal at Godhra in
Sessions Case No.11 of 2000 by which the appellant has been convicted
under Section 302 read with Section 324 of the Indian Penal Code.
Heard
the learned counsel for the parties. The learned counsel for the
appellant has candidly stated that it cannot be said that the accused
has not caused the injury which is assigned to him. However, it is
borne out from the record that the accused was assaulted by the
complainant party. The injuries are there and are established. In
that view of the fact that the accused was assaulted and in
retaliation he caused the injury by arrow, which would fall within
Exception 2 of Section 300 of the Indian Penal Code. In that view
of the matter, he restricts his arguments to the nature of offence.
The
learned Additional Public Prosecutor is unable to defend the case
because, there are injuries on the person of the accused. It was a
single injury of an arrow from a distance of 25-30 ft. Such kind of
craftsmanship cannot be attributed to the accused that he would be
able to target the vulnerable part of the deceased. In that view of
the matter, we are constrained to observe that the intention to kill
is not there on the part of the appellant and therefore the offence
can be altered from Section 302 to 304 Part-I of the Indian Penal
Code. In that background, when the accused is behind the bars
since 1999, this Court is of the considered opinion that the sentence
already gone by the appellant would meet the ends of justice.
In
the result, the appeal is partly allowed. The conviction is altered
from Sections 302 and 324 of IPC to Section 304 Part-I. The
period of sentence already undergone would meet ends of justice. The
accused will pay a fine of Rs.1,000/- in addition to sentence
undergone, in default, he will have to undergo SI for one month.
With
the above modification, the appeal is partly allowed. The accused
shall be set at liberty forthwith if not required in any other case.
(Bhagwati
Prasad, J.)
(Bankim
N Mehta, J.)
*mohd
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