PRAKASHBHAI BHIKHABHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are preferred against the judgment and order dated 23.06.2008 passed by learned Additional Sessions Judge, Court No. 6, Ahmedabad City in Sessions Case No. 184 of 2007, whereby all the accused were held guilty for offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life, however, the accused were acquitted from the charge of offence punishable under Section 135 (2) of the Bombay Police Act. Feeling aggrieved by the impugned judgment, accused No. 1 has preferred Criminal Appeal No. 2369 of 2008, while Criminal Appeal No. 357 of 2009 is preferred by accused Nos. 2 and 3.

(2.) The facts in brief giving rise to the filing of present appeal are as under:--

(3.) At the time of hearing of these appeal, Ms. Contractor and Ms. Amrtia Ajmera, learned advocates appearing for the appellants have taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellants. However, after arguing the matter at some length, they fairly conceded that in view of the medical evidence and statements of other witnesses, though the offence against the accused can be said to have been proved, they are arguing only on the quantum of punishment. It is submitted that the case of the prosecution is based on circumstantial evidence and there is no substantial evidence to connect the accused with the crime. It is also submitted that wife of the deceased is not an eye witness. It is further submitted that even the resident of the flat, one Ms. Gracy cannot be said to be an eye witness and even from her evidence it is clear that she could not identify the accused persons. It is further submitted that from the postmortem report it is clear that only one injury is the reason for death of the deceased. It is submitted that even if the presence of the accused at the scene of offence can be said to have been proved by the statement of Executive Magistrate, who undertook the test identification parade, looking to the medical evidence, it is clear that there was only one blow given by the accused, therefore, they could not have been convicted for offence under Section 302. It is, therefore, submitted that the trial Court has committed an error in convicting the accused for offence punishable under Section 302 of IPC and at the most it would fall under Section 304, Part-I of IPC. It is further submitted that considering all these circumstances, offence alleged against the accused may be converted to Section 304, Part-I from that of Section 302 of IPC.