ASHWINBHAI AMARSINGH RANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellant, original accused No. 2 has challenged the judgment and order of conviction and sentence passed by the learned Principal Sessions Judge, Bharuch, in Sessions Case No.51 of 2006 on 23.11.2007, whereby the learned Trial Judge has convicted the appellant, original accused No.2, for the offences punishable under section 302 r/w. Section 114 and under Section 324 r/w. Section 114 of the Indian Penal Code (for short, "the IPC").

(2.) A complaint was filed by the complainant Ashokbhai Ratilal Vasava on 11.01.2006, inter alia alleging that on 11.01.2006 at about 3:00 pm. the complainant and one Rakeshbhai were sitting near the temple where one Kanti Jetha and Ashwin Rana, original accused, came with a plastic bag containing Toddy. It is further alleged that when said Rakeshbhai demanded toddy, Kanti Jetha had refused to give the same, therefore Rakesh tried to snatch away the bag from him and due to that the plastic bag was torn.

(3.) LEARNED counsel for the appellant contended that the trial Court has passed the impugned judgment and order without appreciating the evidence on record. He further contended that the prosecution has failed to prove its case beyond reasonable doubt. He further contended that the incident, in question, had happened at the spur of the moment. He further contended that the appellant original accused did not come with an intention of kill the deceased or assaulting him but in provocation due to the heated exchange of words the incident in question had happened. Therefore, he submitted that considering the aforesaid fact, this Court may consider the case of the present appellant under section 304 (Part I) or (Part II) of the IPC.