BHARATSINH PRATPSINH PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Present Criminal Misc. Application is filed under Section 389 of the Code of Criminal Procedure by the original accused Bharatsinh Pratapsinh Parmar who has been convicted by the Additional Sessions Judge, Fast Track Court No. 1, Bhavnagar for committing offence under section 302 of the Indian Penal Code [IPC] and he has been sentenced to suffer rigorous imprisonment [RI] for life vide judgment and order dated 29th December, 2003 passed in Sessions Case No. 50 of 1995. Original accused nos. 2 and 3 have been convicted for offences under section 324 read with section 114 of the IPC as well as section 135 of the Bombay Police Act, but they have been granted benefit under the Probation of Offenders Act.

(2.) The incident in question had taken place on 16th November, 1994 at about 7.30 p.m. in the city of Bhavnagar. It was alleged by the prosecution that the present appellant alongwith original accused assaulted the deceased and others with deadly weapons like axe, crowbar fitted in the pipe and piece of wood. As a result of assault, complainant's son Ajay had received serious injuries and ultimately died due to them. In view of the incident, the FIR was lodged and the police carried out the investigation and on completion of the same, submitted charge-sheet in the Court of the Ld. Magistrate, Bhavnagar, who in turn committed the case to the Court of Sessions since offence under section 302 is exclusively triable by the Court of Sessions.

(3.) On going through the evidence on record as well as the judgment of the trial Court and after hearing Mr. IM Malik, learned advocate for the appellant and Miss Harsha Devani, Ld. APP for the respondent State, we have given our careful consideration to the entire case. So far the involvement of the appellant in the incident is concerned, Mr. Malik has fairly conceded that it is duly proved by the prosecution. In his submission, even if the facts are taken to be true, the offence would not be covered under section 302 of the IPC. As against that, Miss Devani, Ld. APP has submitted that there is no error in the judgment of the trial Court and the conviction is required to be maintained.