CHANDUBHAI RAMBHAI GOSWAMI (BAVRI) Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this appeal, the appellant-original accused has challenged the judgment and order dated 21.06.2006 passed by learned Additional Sessions Judge, Fast Track Court No.1, Ahmedabad in Sessions Case No.215 of 2005 whereby the appellant-accused was convicted under Section 302 of the Indian Penal Code ( for short IPC ) for life imprisonment and fine of Rs.500/-, and in default to undergo 15 days rigorous imprisonment. Though the appellant-accused was convicted under Section 135 of the Bombay Police Act, but no separate sentenced was awarded.

(2.) Learned counsel appearing for the appellant has contended that he is not challenging the finding of the Sessions Court regarding the incident, but he contended that looking to the incident which has taken place on a spur of moment between the relatives and there is only one blow had given by the appellant, and therefore, this may be treated as an incidental fight since the accused himself was also injured. He further contended that, having regard to the genesis of the occurrence and the surrounding circumstances and the fact that one blow with a knife was given which happened to land on the chest, it cannot be said with reasonable certainty that appellant intended to commit murder of deceased or appellant intended to cause the particular injury and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death, and therefore, this may not be considered for the offence under Section 302 of IPC but the offence may be considered under Section 304 Part II of IPC. He relied upon the decision in Tholan Vs. State of Tamil Nadu, 1984 2 SCC 133.

(3.) The case of the prosecution is that, on the date of incident i.e. on 24.3.2005 in the night at about 10:00 p.m., the deceased along with his mother and brother s sister, accused who is also son of his father s sister ( Fai ) and other peoples were sitting at the residence of the complainant, at that time, the deceased had come in a drunken condition. At that time the accused Chandubhai Rambhai Goswami was talking, and during the discussion, the accused has abused the deceased and called him impotent/barren (Vanziya) and stated that though the period of marriage of five years has passed away, he did not deliver the child. On hearing this, the deceased started abusing the accused, because of which, the accused was annoyed and started fighting with the deceased. At that time, all of a sudden, the accused had taken a knife and had given a blow on the chest part of the deceased and thereafter all people have gathered and they have tried to separate them. Thereafter the deceased was taken into civil hospital and the complaint was lodged immediately.