VISHAL PUSHKARBHAI JATASHANKAR THAKER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this appeal, the appellant, original accused, has challenged the judgment and order passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.3, Ahmedabad (Rural) Ahmedabad, in Sessions Case No.76/2008 dated 29.08.2009, whereby, the appellant herein, original accused, has been convicted for the offence punishable under section 302 of the Indian Penal Code (for short, "the IPC") read with section 135 (1) of the Bombay Police Act and sentenced him to undergo rigorous imprisonment for life and fine of Rs.3,000/ , in default of payment of fine, the appellant shall undergo further simple imprisonment for one month.

(2.) A complaint was filed by the complainant Girishchandra Navinchandra Datania on 06.12.2009 inter alia alleging that he is residing with his family and his sister Shilpa. It is alleged in the complaint that on the date of incident he received a phone call of his friend Atul, who asked him to come at Sterling Hospital immediately. Therefore, the complaint went there, where he saw his friend Atul and his mother. They informed him that when his sister deceased was passing near surgeon tower, one unknown person gave a knife blow on her neck and also injured her left wrist and fled away from there. Thereafter, his sister was taken to the hospital. In this connection, a complaint was lodged by the complainant against the unknown person.

(3.) LEARNED advocate for the appellant has firstly contended that the appellant herein is entitled to benefit of doubt and thereafter, he has restricted his arguments to alteration of sentence to one under section 304 (Part I) or (part II) from section 302 of Indian Penal Code and submitted that the offence in question had been occurred in the heat of the moment. He further contended that the appellant herein did not come with any intention of killing the deceased or assaulting her but when he was provoked by 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.