PATHUBHA GOVINDJI RATHOD & ANR.versusSTATE OF GUJARAT

                    [2015] 1 S.C.R. 491


          PATHUBHA GOVINDJI RATHOD & ANR.                          A
                             v.
                   STATE OF GUJARAT
            (Criminal Appeal No. 2282 of 2014)
                     JANUARY 21, 2015
                                                                   B
     [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

     Penal Code, 1860 - s. 304 (Part-I) rlw s. 149 - Fight
between two groups - Cross-complaints - Resulting in
conviction of the accused in both the cases [including the         C
conviction of appellant No. 1 u/s 3021149 and of appellant No.
2 u/s 304(part /)] - Appellants taking plea of private defence
- Held: The present was a case of free fight - Normally right
of private defence is not available in such cases - But in view
of the fact that appellant No. 1, having suffered knife injury     D
exceeded his right to private defence, his case would be
covered under Exception 2 of s. 300 /PC - Thus conviction
of appellant No. 1 altered to one uls 304 (Part-I) rlw s. 149 -
Sentence reduced to 1O years RI from life imprisonment -
Conviction and sentence of appellant No. 2 is affirmed.            E

    Partly allowing the appeal, the Court

     HELD: 1. In the present case, there are cross-
versions of the incident, and cross-complaints were
lodged with the police. Both the cases resulted in                 F
conviction. Considering the number of persons involved
in the incident, it can be safely said that it is a case of free
fight between two groups of people. In the cases of free
fights, accused are to be fastened with individual liability
taking into consideration the specific role assigned to            G
each one of them, and normally right of private defence
is not available in such cases unless circumstances in a
given case warrant so. But that is not a rule without
exception. [para 13 and16] [500-H; 501-B-C; 502-E]
                             491                                   H
    492      SUPREME COURT REPORTS            [2015] 1 S.C.R.


A        2. Considering the facts and circumstances of the
    present case and evidence on record, it is evident that
    accused/appellant No.1 who suffered knife injury in the
    incident has caused death of one of the deceased by
    firing several shots thereby exceeding right of private
s   defence. A person faced with injury with a deadly weapon
    to his life, cannot be expected to weigh in balance the
    precise force needed to avoid danger. [para 14 and 16]
    [501-D; 502-G-H]

       Bhanwar Singh v. State of M.P. 2008 (9) SCR 1 = 2008
C (16) SCC 657, this Court, in State of Rajasthan v. Manoj
  Kumar 2014 (5) SCC 744; Mohd. Khalil Chisti v. State of
  Rajasthan 2012 (13) SCR 777 = 2013 (2) SCC 541 - relied
  on.

o      3. Thus, it is a case of culpable homicide not
  amounting to murder covered under Exception 2 of
  Section 300 of IPC.The conviction and sentence
  recorded against accused/appellant No.1 under Section
  302 IPC r/w Section 149 IPC is altered to one u/s 304 (Part-
E I) IPC and he is sentenced to imprisonment for a period
  of ten years. The conviction and sentence recorded
  against accused/appellant no. 2 u/s 304(Part I) read with
  Section 149 IPC, does not require any interference. [para
  17] [503-8-E]
F                          Case Law Reference:
          2008 (9) SCR 1          relied on         para 14
          2014 (5) sec 744        relied on         para 14
          2012 (13) SCR 777       relied on         para 15
G
        CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
    No. 2282 of 2014.
       From the Judgment & Order dated 30.06.2014 of the High
  Court of Gujarat at Ahmedabad in Criminal Appeal No. 1391
H of 2007.
    PATHUBHA GOVINDJI RATHOD v. STATE OF                  493
                 GUJARAT
    Meenakshi Arora, Tulika Prakash, Sheeba Khan,Vasav            A
Anantharaman for the Appellants.

    Jesal, Hemantika Wahi, Preeti Bhardwaj, Puja Singh for
the Respondent.

    The Judgment of the Court was delivered by                    B

     PRAFULLA C. PANT, J. 1. This appeal is directed
against judgment and order dated 30.6.2014 passed by High
Court of Gujarat whereby the said Court has partly allowed the
criminal appeals arisen out of Sessions Case No. 85 of 2003       c
and the cross Sessions Case No. 53 of 2004, which were
decided by two separate orders of the same date, i.e.,
5.10.2007 by Additional Sessions Judge/Fast Track Court,
Junagarh.
                                                                  D
    2. We have heard learned counsel for the parties and
perused the record.

    _3, Prosecution story, in brief, is that complainant Satish
Jotva (PW-42) used to live with his family in Village Arena. On
2.9.2003 his uncle Bhurabhai Jivabhai (PW-46) was going to        E
his field on a bicycle. At about 10.30 a.m., he was intercepted
by Pathubha Govindji Rathod (appellant no. 1) near bus stand.
Accmed/appellant no.1 picked up a quarrel with Bhurabha
Jivabhai as to why he supported Natha Nagabhai (one of the
deceased) in Gram Panchayat Election with whom the                F
accused/appellant no.1 was not having cordial relations.
Meanwhile Natha Nagabhai came there and joined Bhurabhai
Jivabhai in the quarrel. This led heated exchange of words
between both the sides, and crowd gathered there. Accused/
Appellant no.1 was joined by his other supporters (co-accused},   G
who were armed with deadly weapons like swords, knives and
sticks. Out of the accused persons, accused Pathubha Govindji
was armed with revolver, and accused Bhavubhai Gagubhai,
Bhuraji Gaguji, Kirit Jesing and Punjaji Muluji were armed with
swords. Accused Mala Gaguji was armed with knife. Rest of         H
    494       SUPREME COURT REPORTS               [2015] 1 S.C.R.


A   the accused Gaguji Manji, Gomubha Halarwadi, Navalsinh
    Motisinh, Kanubha Jesangji, Dhiru Jesing, Kiritsinh Punjajai,
    Veraji Punjaji, Jayubha, Samatsinh, Sidharajsinh Manji, Bharat
    Manji, Kanu Bhai Devu bhai and accused/appellant no.2
    Hemubha Govindji were armed with sticks. On hearing the
B   noise, complainant Satish Jiva Jotva (PW-42) and his another
    uncle Bhimshi Jiva (PW-47), father of the complainant Hamir
    Nagabhai (another deceased), Malde Nagabhai (PW-43),
    Bhurabhai Jivabhai (PW-46), Punjabhai Bhimshibhai (PW-44),
    Jagmal Jivabhai (PW-45) and some other villagers also
c   gathered there. When the quarrel further aggravated between
    the two sides, accused/appellant no.1 Pathubha Govindji
    exhorted his supporters to kill Natha Nagabhai and teach
    lesson to other supporters. Thereafter, accused/appellant no.1
    Pathubha Govindii himself took out revolver from his pocket and
0   fired at him. Natha Nagabhai suffered bullet injuries on the
    stomach and fell down. In the incident, Bhimshibhai who was
    attacked with sword suffered injury on his head. Bhavubhai
    Gagubhai assaulted Punja Bhimshi with sword in his hand, and
    he also suffered injury on his head. Punjaji gave blow to Bharat
E   Jiva on his head, Gomubha Halarwala gave blow on the head
    of Jagmal Jiva. Accused/appellant no.2 Hemubha Govindji
    inflicted injury with sword on the head of Hamir Nagabhai.
    Accused Malde Nagabhai Jotva assaulted with stick to some
    other persons. Several persons suffered injuries in the incident
    on both sides. According to prosecution, after the incident
F   complainant took his uncle Natha Nagabhai on his motor cycle
    to Mangrol Government Hospital, and other injured persons
    were also taken on rickshaw to said Hospital for medical
    treatment. Out of the injured Natha Nagabhai, Bhimshi Jivabhai,
    Hamir Nagabhai, Bhura Jivabhai, Malde Nagabhai, Punjabhai
G   Bhimshibhai, Jagmal Jivabhai were shifted to Junagarh Hospital
    for further treatment. In the incident Natha Nagabhai and Hamir
    Nagabhai succumbed to the injuries and died.

       4. A complaint was given by Satish Jiva Jotva regarding
H the incident on the basis of which ICR No. 70 of 2003 was
    PATHUBHA GOVINDJI RATHOD v. STATE OF                    495
        GUJARAT [PRAFULLA C. PANT, J.]
registered at Mangrol Police Station. A cross version of incident   A
(ICR No. 71 of 2003) was also registered by the police. After
investigation, charge sheets were filed by the police against
both set of accused. Sessions Trial No. 85 of 2003 relates to
the charge sheet filed against accused/appellants Pathubha
Govindji R.athod and Hemubha Govindji Rathod and eighteen           B
others. After hearing the parties in the aforesaid sessions case,
a charge was framed by the trial court against all the twenty
accused in respect of offences punishable under Sections 147,
148, 302 r/w 149, 307 r/w 149, 326 r/w 149, 325 r/w 149, 324
r/w 149 and 506 (2) r/w 149 of Indian Penal Code and under          c
Section 135 of the Bombay Police Act. Accused/appellant no.1
Pathubha Govindji was further charged in respect of offence
punishable under Section 25(1 )(a) and Section 27 of Arms Act.
AU-the accused pleaded not guilty and claimed to be tried.

     5. Ori this, prosecution got examined PW-1 Dr. M.G.            D
Satrodiya, PW-2 Dr. Linesh Makwana, PW-3 Dr. Anil
Sakhiyani, PW-4 Naran Punja, PW-5 Desha Devshi, PW-6
Nasinghbhai Nensibhai, PW-7 Parsottambhai Savjibhai, PW-
8 Ratibhai Khimjibhai, PW-9 Nagabhai Hirabhai, PW-10
Virambhai Kanabhai, PW-11 Hardas Desa, PW-12 Arjan                  E
Govindbhai, PW-13 Vikram Arjanbhai, PW-14 Bhikhabhai
Virabhai, PW-15 Mansukh Amarsinh, PW-16 Lakhabhai
Pethabhai, PW-17 Laxmanbhai Makwana, PW-18 Rasulkhan
Gulamkhan, PW-19 Razak Ismail, PW-20 Hanif Ibrahim, PW-
21 Ali Giga, PW-22 Ismail Hussain, PW-23 Gova Parbat, PW-           F
24 Kanjibhai Karsanbhai, PW-25 Hasmukh Raja, PW-26
Karmanbhai Jethabhai, PW-27 Arjan Parbat, PW-28 Musabhai
Allarakha, PW-29 Amadbhai Musabhai, PW-30 Dhirubhai
Naranbhai, PW-31 Mohanlal Khimjibhai, PW-32 Mamadbhai
Ismail, PW-33 Ibrahim Kasam, PW-34 Atul Prabhudas, PW-35            G
Dr. Jigna Dave, PW-36 Dr. Kartik Modha, PW-37 Bhanji
Vashram, PW-38 Ranchhodbhai Rathod, PW-39 Dr.
Bhalchandra Joshi, PW-40 Dr. Jitendra Gajera, PW-41 Dr. P.B.
Nariyani, PW-42 Satishbhai Bhimsinh Jothwa (complainant),
PW-43 Malde Naga (injured), PW-44 Punjabhai Bjhimsinhbhai           H
    496      SUPREME COURT REPORTS                [2015) 1 S.C.R.


A   (injured), PW-45 Jagmal Jivabhai, PW-46 Bhurabhai Jivabhai
    (injured), PW-47 Bhimsinhbhai Jivabhai (injured), PW-48
    Chandrakant Natwarlal, PW-49 Mahipatbhai Bhikhubha, PW-
    50 Ravjibhai Valjibhai, PW-51 Jayeshbhai Tapubhai, PW-52
    Karsanbhai Gangabhai, PW-53 Subhashbhai Vadhera, PW-54
B   Hasmukhlal Aahir, PW-55 Arjanbhai Meraman, PW-56
    Harishchandra Trivedi, PW-57 Bharatbhai Mistri, PW-58
    Vishnukumar Vyas, PW-59 Manharlal Mehta (Investigating
    Officer), and PW-60 Kalekhan Kureshi (Investigating Officer).

C       6. The trial court put oral evidence of above witnesses and
  documentary evidence including medical reports, inquest
  reports, post mortem reports of Natha Nagabhai and that of
  Hamirbhai Nagabhai, complaint, serologist report and chemical
  analyst report to the accused under Section 313 of Cr.P.C. In
  reply to the prosecution evidence accused stated that evidence
D adduced against them is incorrect. It is also pleaded that it were
  the accused, who were attacked by the complainant and his
  supporters. In defence, it was brought on record that serious
  injury was caused by Hamir Naga (deceased) to accused/
  appellant no.1 Pathubha Govindji, with a knife. It is also brought
E on record that from the side of accused/appellants, Gumansinh
  Motibha, Juvan Singh Gogubha, Punjaji Muluji, Navalsinh,
  Pathubha (present appellant no. 1), and Punja Bhimshi suffered
  injuries. It is also established that in cross Sessions Case No.
  53 of 2004, witnesses of present case, namely, Malde
F Nagabhai Jotva, Bhimshi Jivabhai Jotva, Jagmal Jivabhai
  Jotva, Bhurabhai Jivabhai Jotva, Punjabhai Bhimshibhai Jotva
  are accused, who assaulted the accused of the present case.
  Due to death of Hamir Naga, his name did not figure in charge-
  sheet as an accused in the said sessions case.
G
        7. After hearing the parties, learned Sessions Judge
  decided both the sessions trials by two separate orders of the
  same date and recorded conviction against the accused in both
  the cross cases. In Sessions Case No. 53 of 2004 the five
H accused, namely, Malde Nagabhai Jotva, Bhimshi Jivabhai
    PATHUBHA GOVINDJI RATHOD v. STATE OF                  497
        GUJARAT [PRAFULLA C. PANT, J.]
Jotva, Jagmal Jivabhai Jotva, Bhurabhai Jivabhai Jotva,           A
Punjabhai Bhimshibhai Jotva were convicted by the trial court
under Sections 323, 324, 325, 147,148 all read with
Section149 of Indian Penal Code and under Section 135 of the
Bombay Police Act. Each one of accused in said Sessions
Case No. 53 of 2004 was sentenced to undergo five years'          B
simple imprisonment and to pay a fine of Rs.2500/- under
Section 326 r/w Section 149 IPC, simple imprisonment for a
period of one month and to pay a fine of Rs.1000/- under
Section 324 r/w Section 149 IPC, simple imprisonment for a
period of three months and to pay a fine of Rs.500/- under        c
Section 147 r/w S,ection 149 IPC, simple imprisonment for a
period of one year and to pay a fine of Rs.1000/- under Section
325 r/w Section 149 IPC, simple imprisonment for a period of
one year and to pay a fine of Rs.1000/- under Section 148 r/w
Section 149 IPC.                                                  D
      8. On the other hand, in Sessions Case No. 85 of 2005 in
which the present appellants were accused, the trial court
convicted and sentenced each of the twenty accused under
Sections 302, 307, 326, 325, and 324 all r/w Section 149 IPC,
to undergo imprisonment for life and to pay a fine of Rs.5000/    E
- under Section 302 r/w Section 149 IPC, imprisonment for
seven years and directed to pay a fine of Rs.2500/- under
Section 307 r/w Section 149 IPC, imprisonment for a period
of five years and directed to pay a fine of Rs.2500/- under
Section 326 r/w Section 149 IPC. Similar sentence was passed      F
against each of them under section 325 r/w Section 149 IPC.
As to the offence under Section 324 r/w Section 149 IPC each
one was sentenced to imprisonment for one year and directed
to pay a fine of Rs.1000/-. Similar sentence was passed under
Section 147 r/w Section 149 IPC. On the count of charge of        G
offence punishable under Section 148 r/w Section 149 IPC
each one of twenty accused was sentenced to imprisonment
for a period of one year and directed to pay fine of Rs.1000/-
  U nder Section 506 r/w Section 149 IPC, the trial court
sentenced each convict to imprisonment for a period of seven      H
    498        SUPREME COURT REPORTS                [2015] 1 S.C.R.


A   years and directed to pay a fine of Rs.1000/-. The trial Court
    further convicted accused/appellant no.1 Pathubha Govindji
    under Section 27 of Arms Act, and sentenced him to
    imprisonment for a period of three years and directed to pay a
    fine of Rs.2500/-.
B
        9. Criminal Appeal No. 1391 of 2007 and Criminal Appeal
  No.1394 of 2007 were filed by the convicts of Sessions Case
  No. 85 of 2003, and Criminal Appeal No. 1244 of 2007 was
  filed by the convicts of Sessions Case No. 53 of 2004, before
C the High Court. All the three appeals were decided by the High
  Court by common judgment challenged before us. The High
  Court decided three appeals with following directions:

          "26. For the foregoing reasons, the following order is
          passed;
D
          (I) All the three appeals are partly allowed.

          (II) Insofar as Criminal Appeal No.1391/2007 and1394/
          2007 are concerned, the judgment and order passed by
          the Court of learned Addi. Sessions Judge, Junagadh in
E         Sessions Case No.85/2003 dated 05.10.2007 is modified
          to the extent that original accused no.1 Pathubha is
          convicted for the offence punishable u/s.302 IPC and is
          sentenced to undergo imprisonment for life. The order
          regarding fine and default sentence is not disturbed qua
F         original accused no.1. It is also clarified that punishment
          of imprisonment for life imposed upon original accused
          no.1 shall not mean imprisonment till last breath and that
          the State may grant the accused benefit of remission at
          the appropriate lime. His conviction and sentence u/s.27
G         of the Arms Act is also confirmed.

          Insofar as original accused no.2 Hemubha is concerned,
          his conviction Ts allered to one punishable u/s.304 Part1
          IPC instead of Section 307 r/w. Section 149 IPC. For
          conviction u/s.304 Part1 IPC, original accused no.2 is
H
PATHUBHA GOVINDJI RATHOD v. STATE OF                   499
    GUJARAT [PRAFULLA C. PANT, J.]
sentenced to undergo imprisonment for Ten years. The           A
order regarding fine and default sentence is not disturbed
qua original accused no.2. The jail report shows that
original accused no.2 is on bail. His bail bonds stand
cancelled and he is ordered to surrender to custody within
a period of Ten Weeks from today.                              B

Out of original accused no.3 to 20, original accused no.5,
original accused no.13 and original accused no.16 have
expired. Therefore, the appeals stand abated qua the said
three accused persons.
                                                               c
Insofar as the remaining accused persons are concerned,
viz. original accused no.3, 4, 6 to 9, 11 to 12 and 14, 15
and 17 to 20, their conviction is altered to one punishable
u/s.323 IPC without the aid of Section 149 IPC. For
conviction u/s.323 IPC, the sentence already undergone by      D
each of the accused persons is ordered to be treated as
sufficient sentence and each of the accused is ordered to
pay fine of Rs.2500/. None of the accused person is
required to undergo any further sentence in respect of the
offence in question. The above accused persons are on          E
bail and hence, their bail bonds stand cancelled and surety,
if any, stands discharged.

Rest of the impugned judgment and order remains
unaltered.
                                                               F
(Ill) Insofar as Criminal Appeal No.1244/2007 is concerned,
the judgment and order passed by the Court of learned
Addi. Sessions Judge and Fast Track Court, Junagadh in
Sessions Case No.53/2004 dated 05.10.2007 is modified
whereby, each of the five accused persons, viz. original G
accused no.1 to 5, is convicted u/s. 323 IPC without the
aid of Section 149 IPC. Their conviction, accordingly,
stands altered to one punishable u/s.323 IPC. For
conviction u/s.323 IPC, the sentence already undergone by
each of the five accused persons is ordered to be treated H
        500       SUPREME COURT REPORTS                   [2015] 1 S.C.R.


    A         as sufficient sentence and each of the accused is ordered
              to pay fine of Rs.2500/. None of the accused person is
              required to undergo further sentence in respect of the
              offence in question. The above accused persons are on
              bail and hence, their bail bonds stand cancelled and surety,
    B         if any, stands discharged.

             Rest of the impugned judgment and order remains
        unaltered."

           10. The present appeal has been filed before us by way
    C of Special Leave Petition, by two of the above convicts, namely,
      Pathubha Govindji Rathod and Hemubha Govindji Rathod.

            11. The only point pressed and argued before us in this
      appeal is that the courts below have erred in law in not
    0 accepting the plea of private defence taken by appellant no.1.
      It is argued that the accused/appellant no.1 was assaulted with
      a knife and suffered the injury on the vital part, as such he has
      a right of private defence to save his person. It is further
      contended that charge relating to causing death of Natha Bhai
    E with a fire arm, even if proved, is covered by Exception 2 of
      Section 300 IPC.

            12. We have considered the submissions of the learned
        counsel for the appellants. Exception 2 to Section 300 IPC
        reads as under: -
    F
              "Exception 2.-Culpable homicide is not murder if the
              offender, in the exercise in good faith of the right of private
              defence of person or property, exceeds the power given
              to him by law and causes the death of the person against
    G         whom he is exercising such right of defence without
              premeditation, and without any intention of doing more
              harm than is necessary for the purpose of such defence."

            13. It is not disputed in the present case that there are
        cross versions of the incident, and cross complaints were
    H



•
     PATHUBHA GOVINDJI RATHOD v. STATE OF                     501
         GUJARAT [PRAFULLA C. PANT, J.]
lodged with the police. It is also not disputed that in both the      A
cases police submitted charge sheets against both set of
accused. It is also evident from the record that both Sessions
Case No 85 of 2003 and Sessions Case No. 53 of 2004
resulted in conviction on conclusion of trial by Additional
Sessions Judge, Junagarh. Considering the number of persons           8
involved in the incident it can be safely said that it is a case of
free fight between two groups of people. It is settled principle
of law that in the cases of free fights accused are to be
fastened with individual liability taking into consideration the
specific role assigned to each one of them, and normally right        c
of private defence is not available in such cases unless
circumstances in a given case warrant so.

      14. A person faced with injury with a deadly weapon to his
life cannot be expected to weigh in balance the precise force
needed to avoid danger. Referring to case of Bhanwar Singh            D
v. State of M.P.1, this Court, in State of Rajasthan v. Manoj
Kumar2, has obseNed as under: -

     "15.3. In Bhanwar Singh v. State of M.P., it has been ruled
     to the effect that for a plea of right of private defence to     E
     succeed in totality, it must be proved that there existed a
     right to private defence in favour of the accused, and that
     this right extended to causing death; and if the court were
     to reject the said plea, there are two possible ways in
     which this may be done i.e. on one hand, it may be held          F
     that there existed a right to private defence of the body,
     however, more harm than necessary was caused or,
     alternatively, this right did not extend to causing death and
     in such a situation it would result in the application of
     Section 300 Exception 2 IPC."
                                                                      G
                                                       3
     15. In Mohd. Khalil Chisti v. State of Rajasthan , this court
1.   (2ooa) 16 sec 657.
2.   (2014} 5 sec 744.
3.   (2013) 2 sec 541.
                                                                      H
    502        SUPREME COURT REPORTS                   [2015] 1 S.C.R,


A   has observed in para 42 as follows:;-

          "42. The analysis of the materials clearly shows that two
          versions of the incident adduced by the prosecution are
          discrepant with each other. In such a situation where the
          prosecution leads two sets of evidence each one which
B
          contradicts and strikes at the other and shows it to be
          unreliable, the result would necessarily be that the court
          would be left with no reliable and trustworthy evidence upon
          which the conviction of the accused might be based.
          Though the. aGcused would have the benefit of such
c         situation and the counsel appearing for the appellants
          prayed for acquittal of the appellants of all the charges, in
          view of the principles which we have already discussed,
          we are of the view that each accused can be fastened with
          individual liability taking into consideration the specific role
D         or part attributed to each of the accused. In other words,
          both sides can be convicted for their individual acts and
          normally no right of private defence is available to either
          party and they will be guilty of their respective acts".

E      16. No doubt normally the right of private defence is not
  available to either of the parties in incidents of group fighting,
  but that is not a rule without exception. In the case at hand, we
  have a special circumstance where the injured person
  (appellant no. 1) who was given 2cm x 2cm x 1.5cm deep knife
F blow on his back (scapular region) has retorted by using
  licensed firearm, and killed one of his rivals in the same incident.
  Accused/appellant Pathubha Govindji has taken plea of private
  defence right from beginning of the trial. From the judgment of
  the trial court also, it is clear that the plea of private defence
G was taken by the appellant no.1. Considering the facts and
  circumstances of the present case and evidence on record, it
  is evident that accused/appellant no.1 Pathubha Govindji
  Rathod who suffered knife injury in the incident has caused
  death of one of the deceased by firing several shots thereby
H exceeding right of private defence. Injuries suffered by both the
  sides are on record.
     PATHUBHA GOVINDJI RATHOD v. STATE OF                     503
         GUJARAT [PRAFULLA C. PANT, J.]
      17. In the above circumstances, from the evidence, as           A
discussed above, we are inclined to accept the argument that
it is a case of culpable homicide not amounting to murder
covered under Exception 2 of Section 300 of IPC. Therefore,
after weighing the submissions of learned counsel for the
parties and going through the papers on record, we are of the         B
opinion that appeal of the accused/appellant no. 1 deserves to
be allowed partly. Accordingly, the appeal is partly allowed and
the conviction and sentence recorded against accused/
appellant no.1 under Section 302 IPC read with Section 149
IPC is set aside. Instead he (accused/appellant no.1 Pathubha         C
Govindji Rathod) is convicted under Section 304 Part-1 IPC and
sentenced to imprisonment for a period of ten years and
directed to pay fine of Rs.5000/-, in default of payment of fine
he shall undergo simple imprisonment for a further period of
six months. He is reported to have undergone nine years and
six months of imprisonment. He shall serve out unserved part
                                                                      0
of the sentence. The conviction and sentence recorded against
accused/appellant no. 2 Hemubha Govindji Rathod under
Section 304 Part I read with Section 149 IPC, does not require
any interference.
                                                                      E
     18. The appeal stands disposed of.
Kalpana K. Tripathy                          Appeal partly allowed.