PIRBHAI MAHMADBHAI MALEK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) HAVING been sentenced to life imprisonment for the offence under section 302 of Indian Penal Code by impugned judgement and order dated 28.02.2006 passed by the learned Presiding Officer, Fifth Fast Track Court, Veraval, Camp at Una in Sessions Case No. 25 of 2005, the appellant, being aggrieved, is before this Court questioning the impugned judgment and order.

(2.) MS . Kapadia, learned advocate appearing for the appellant, looking to the facts and circumstances of the case fairly limited her arguments to alteration of sentence to one under section 304(Part II) from section 302 of Indian Penal Code and submitted that the offence appears to have occurred in the fit of the moment the appellant having reason to be provoked on finding his wife with a male stranger in the late night hours all alone.

(3.) WE have perused the records of the case. The case is based on circumstantial evidence in the absence of any eye witness. It appears from the testimony of the witnesses as also from the statement made by the appellant under section 313 of Cr.P.C that the appellant's wife was suspected to have illicit relations with an unknown person. The brother of the deceased P.W. 4, Ex. 21 had come and stayed at the house of the appellant for the purpose of settling the matter and on that night while the appellant and the witness had gone to sleep, Kasam- the elder son of the appellant cried havoc trying to open the door which could not be opened and on hearing the commotion the witness went inside the room from the other door and found the appellant's wife ­ deceased lying unconscious in blood near a water tank. She was found with injuries on her person. The appellant herein lodged a complaint with the police station.