JESINGHBHAI LAXMANBHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 1. to 4. xxx xxx xxx.

(2.) Learned Advocate Mr. P. M. Vyas for the appellant was heard at length. Learned Advocate Mr. Vyas for the appellant fairly submitted that so far as the proved facts of the case are conernced he had nothing to submit but he advanced his argument and focused the attention on the facts and circumstances of the case and the nature the offence proved against the accused -appellant. According to the learned advocate for the appellant, facts and circumstances clearly establish that the appellant could not have been convicted for the offence punishable under Section 302 of the IPC but what is proved against the accused is the offence under Section 304 Part I or II of the Indian Penal Code. In short it was argued that this is not a case of murder but a case of culpable homicide not amounting to murder. Learned Advocate for the appellant draw our attention to Exception 4 of Section 300. It was submitted that the parties are near relatives. There was an earlier incident and there could not have been an intention on the part of the accused No. 1 - appellant to cause murder of Maiji. It was urged that the accused appellant is attributed a single blow below right knee of the deceased. It was urged that there was no premeditation on the part of the appellant. It was also urged that it was a sudden quarrel and in heat of passion the incident occurred. It was also submitted that the accused did not act cruelly nor did take the undue advantage of the situation. It was urged that the appellant is undergoing sentence since 1993. It was also urged that the conviction of the appellant under Section 302 is erroneous and is required to be converted into Section 304 Part I or II of the Indian Penal Code. It was further submitted that the appellant accused has already undergone 8 to 9 years imprisonment and this period of undergone imprisonment may be considered sufficient punishment for the act done by the appellant. Therefore it was lastly submitted that the appellant may be ordered to be released and appeal be allowed.

(3.) On the other hand, learned APP Mr. K. T. Dave has drawn our attention to the evidence of 3 eye witnesses including injured eye witness and the Doctor who performed post -mortem and submitted that the Sessions Judge rightly convicted the appellant for the offence under Section 302 of the IPC and in the facts and circumstances of the case, the Sessions Judge did not fell into error. It was further submitted that the appeal be dismissed.