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1980 Supreme(SC) 34
SUPREME COURT OF INDIA
A.D.Koshal : M.Fazal Ali Syed
Prabhu Rashu Machhi And Chunnilal Maganlal
Versus
State Of Gujarat
Case No. : 11 , 111 of 1974
Date of Decision : 1/23/80
Headnote:
Criminal Procedure Code, 1973 – Section 428 – Indian Penal Code, 1860 – Sections 34 and 307 - Enlargement of Criminal Appellate Jurisdiction Act, 1970 – Section 2 - Gun Fired – Injuries – Attempted Murder - Appeal by Al and of A2 by special leave are directed against a judgment of high court by which high court set aside an acquittal passed by sessions judge and convicted appellant 1 and appellant 2 - Facts of case have been detailed in judgment of high court - It appears that pw 3 was being taken from jail to court and he had just boarded van when appellant 1 fired a shot by his pistol and ran away - A2 who was just behind constable had fired but constable sat down and shot missed - Held, Thereafter constable also fired at accused 2 and he was injured - Appearing for appellants has pressed this appeal mainly on question of sentence and has submitted that in facts and circumstances of present case sentence imposed by high court errs on side of severity - We have gone through judgment of sessions judge and that of high court and we find ourselves in complete agreement with view taken by high court that prosecution case is fully proved - Coming now to question of sentence we think that there is some room for a substantial reduction in sentence imposed by high court particularly having regard to nature of injury received - In peculiar facts and circumstances of this case while maintaining convictions of appellants we reduce sentence of appellant 1 - Appellants will be entitled to benefit with this modification - Appeal is dismissed.
SYED M.FAZAL ALI, J.
(1) THE appeal by A-l under S. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and of A-2 by special leave are directed against a judgment of the Gujarat High Court by which the High court set aside an acquittal passed by the Sessions Judge and convicted appellant I under S. 307/34 to 10 years and appellant 2 under the same S. to 7 years RI. The facts of the case have been detailed in the judgment of the High court. It appears that PW 3 Amarnath was being taken from jail to the court and he had just boarded the van when appellant I fired a shot at Amarnath by his pistol and ran away. A-2 who was just behind the constable Maiji had fired but the constable sat down and the shot missed. Thereafter the constable also fired at accused 2 and he was injured.
(2) MR. Khanduja appearing for the appellants has pressed this appeal mainly on the question of sentence, and has submitted that in the facts and circumstances of the present case the sentence imposed by the High court errs on the side of severity. We have gone through the judgment of the Sessions Judge and that of the High court and we find ourselves in complete agreement with the view taken by the High court that the prosecution case is fully proved.
(3) COMING now to the question of sentence we think that there is some room for a substantial reduction in the sentence imposed by the High Court, particularly having regard to the nature of the injury received by Amarnath. In the peculiar facts and circumstances of this case while maintaining the convictions of the appellants under S. 307, Indian Penal Code we reduce the sentence of appellant 1 from 10 years to 5 years RI and of appellant 2 from 7 years to 4 years RI. The appellants will be entitled to the benefit of S. 428 of the CrPC. With this modification the appeal is -dismissed.
