NARANBHAI DEVABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is a criminal revision application against the judgment of the Additional Sessions Judge of Surat Shri B. K. Soonawala in Criminal Appeal No. 9 of 1960 against the judgment of the second Extra Assistant Sessions Judge of Surat in Sessions Case No. 95 of 1959. The application is by the original accused No. 2. The charge against him at the Sessions trial was under section 304 read with sec. 34 of the Indian Penal Code for causing the death of one Makan Chhiba. The trial court convicted accused No. 2 under sec. 325 read with sec. 34 Indian Penal Code and also some other co-accused. In appeal the learned Additional Sessions Judge set aside the convictions of accused Nos. 1 3 and 4 and as regards accused No. 2 he altered the conviction from section 325 read with section 34 Indian Penal Code to one under section 304 part II Indian Penal Code. The learned Additional Sessions Judge held that the main prosecution witnesses upon whom the prosecution relied namely Makan Daji and Rama Khalpa were unreliable witnesses and that their evidence should be discarded. He however relied on the statement of accused No. 2 made under sec. 342 Criminal Procedure Code and convicted accused No. 2 the present applicant under sec. 304 Part II Indian Penal Code.

(2.) In revision it is contended by Mr. Jafrabadwala that having disbelieved the prosecution witnesses the learned Additional Sessions Judge was not right in relying on the statement of accused No. 2 under sec. 342 Criminal Procedure Code. He also contended that the learned Additional Sessions Judge was also wrong in altering the conviction of accused No. 2 from sec. 32-5 read with sec. 34 Indian Penal Code to one under sec. 304 Part II Indian Penal Code.

(3.) As regards the second contention it is obvious that the learned Additional Sessions Judge has erred in altering the Conviction from sec. 325 read with sec. 34 I. P. Code to one under sec. 304 Part II I. P. Code. It is true that original charge was under sec. 304 read with sec. 34 I. P. Code but the trying Court namely the extra Assistant Sessions Judge passed the conviction only under sec. 325 read with sec. 34 I. P. Code and it cannot be said that the offence under sec. 304 I. P. Code is a minor offence as compared to the offence under sec. 325 I. P. Code. The learned Government Pleader Mr. Choksi concedes that the learned Additional Sessions Judge erred in altering the conviction from sec. 325 read with sec. 34 to one under sec. 304 Part II I. P. Code. It is not open to a Judge in appeal to change the conviction from one offence to another offence which is not a minor offence. I therefore accept the contention of the learned counsel for the applicant that the learned Additional Sessions Judge erred in altering the conviction of the applicant from sec. 325 read with sec. 34 to one under sec. 304 Part II Indian Penal Code.