(Per : HONOURABLE MR.JUSTICE A.L.DAVE) This appeal is preferred by original accused Nos.1, 2 and 3 in Sessions Case No.62 of 1999 of Sessions Court, Sabarkantha, which came to be decided by judgment and order dated 11.10.2002 convicting all the three accused along with accused No.4 (appellant in Criminal Appeal No.851 of 2002) for offence punishable under Section 302 read with Section 34 of IPC for murder of Raghubhai Bhudarbhai allegedly committed on 3.3.1999 at about 21-00 hours near Chhaparia Cross Roads, Hanuman temple in Himmatnagar town.
2. Since both the appeals arise out of the same judgment and order, they were tagged together and heard by a Coordinate Bench of this Court and decided on 5.12.2008 whereby Criminal Appeal No.851 of 2002 by original accused No.4 came to be disposed of by altering the conviction to one under Section 304 of IPC from Section 302 of IPC.
3. By that very order, the Coordinate Bench considered the cases of original accused Nos.1 and 2, Ranjitsinh Balusinh Makwana and Khumansinh Radhusinh Makwana and altered their conviction from Section 302 read with Section 34 of IPC to Section 304 read with Section 34 of IPC. Since original accused No.3, Balwantsinh @ Bobby Badal Mohansinh Chauhan was then absconding his case was not considered. Now that he has surrendered to jail, this appeal has come up for our consideration.
4. We have heard learned advocate Ms Suneeta Shukla for the appellant and learned APP Mr Mengdey for respondent-State. We have examined the record and proceedings in the context of rival submissions.
5. It transpires from the evidence that original accused Nos.1 and 2 inflicted blows with sword on lower limb of the victim, whereas the present appellant inflicted blows with Gupti on the left thigh of the victim, but death occurred because of rupture of femoral artery and, but, for that injury, death may not have ensued. The Coordinate Bench, therefore, extended benefit of Clause Thirdly to Section 300 of IPC and altered the conviction to one under Section 304 Part-I of IPC. Appellant No.3 is similarly situated to original accused Nos.1 and 2 and, in our view, the view taken by the Coordinate Bench can be accepted and applied to the case of appellant No.3 in Criminal Appeal No.900 of 2002.
6. We find that the judgment and order rendered by the Coordinate Bench on 5.10.2008 in Criminal Appeal No.851 of 2002 with Criminal Appeal No.900 of 2002 has attained finality, as no SLP is preferred by the State.
7. The appeal, therefore, would stand partly allowed. The conviction of appellant No.3, namely, Balwantsinh @ Bobby Badal Mohansinh Chauhan for the offence punishable under Section 302 read with Section 34 of IPC is altered to one punishable under Section 304 Part-I read with Section 34 of IPC. He is sentenced to undergo RI for 5 (five) years with a fine of Rs.1000/- (Rupees one thousand), in default, SI for one month. The appellant shall be entitled to the benefit of set off.
Criminal Appeal No.900 of 2002 thus stands disposed of in the above terms.
(A.L.
DAVE, J.) (BANKIM N. MEHTA, J.) zgs/-
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