JHALA KUVARSANG @ JENAJI RAIMALSANG 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, Mehsana, in Sessions Case No.114/2009 dated 19.05.2010, 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") and under Section 135 of the Bombay Police Act. For conviction under Section 302 IPC, the appellant has been sentenced to undergo imprisonment for life and fine of Rs.1000/, in default of payment of fine, the appellant shall undergo further simple imprisonment for fifteen days. No separate sentence has been awarded for the offence punishable under Section 135 of the Bombay Police Act. The appellant herein has been given the benefit of set off.

(2.) The facts in brief are that on 29.07.2009 at about 8:30 pm. there was a quarrel between the accused and the deceased Thakor Lalaji Chamaji with regard to the altercations occurred between them during a cricket match being played by them before few days. During the said quarrel, the appellant herein inflicted a scythe blow on the head of Thakor Lalji Chamaji. Thereafter, said Thakor Lalji Chamaji was taken to the hospital, where he was declared dead. In this connection a complaint was filed by the complainant Khodaji Belaji Thakor.

(3.) After arguing the matter at length, learned Counsel for the appellant submitted that he is not disputing the presence of the appellant, he is also not disputing the fact that the death of the deceased was a homicidal death, but relied on the postmortem note and contended that the appellant had inflicted only single blow upon the deceased and 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 him but when he was provoked, 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 (partII) of the IPC.