BHARAT JETHALAL JOSHI Vs. STATE OF GUJARAT
LAWS(GJH)-2008-12-225
HIGH COURT OF GUJARAT
Decided on December 02,2008

BHARAT JETHALAL JOSHI Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

- (1.) THE present appeal has been filed by the appellant original accused challenging judgment and order dated 25th June 2002 passed by the learned Additional Sessions Judge, Kutch -Bhuj in Sessions Case No.35 of 2001 by which the appellant has been convicted under Section 302 read with Section 324 of the Indian Penal Code.
(2.) HEARD the learned counsel for the parties. It is a case of single blow on the abdomen of the deceased by the appellant. Admittedly, neither there was any previous animosity nor a quarrel took place at the scene of offence. The only allegation is that the accused was footloose with a knife and was making brave gestures here and there. The rickshawalla, who is the deceased, had nothing to do with him. How the incident had occurred and what was the reason is not coming forward. It cannot be determined with definiteness that the accused had any intention of causing any injury for the purpose of killing deceased Ibrahim. How and why the deceased was killed was not coming on the record boldly. It appears that it was only an act of misplaced bravery, which, the accused has done and in that view of the matter, clause 3 of Section 300 of Indian Penal Code would not be attracted and there being only one injury and there being no pre -meditation, the offence would be covered by Section 304 Part -I of Indian Penal Code. In that background, we are persuaded to alter the conviction from Section 302 to IPC to 304 Part -I. It is stated that the accused has remained beind the bars since 26th August 2001. In that background, this Court is of the considered opinion that the sentence already gone by the appellant would meet the ends of justice.
(3.) IN the result, the appeal is partly allowed. The conviction is altered from Sections 302 of IPC to Section 304 Part -I and conviction under Section 324 of IPC is, however, maintained. The period of sentence undergone in both the sentences would meet ends of justice. With the above modification, the appeal is partly allowed. The accused shall be set at liberty forthwith if not required in any other case.;


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