SHIVABHAI JINABHAI MER Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred against the judgment and order dated 31.05.2011, passed by Sessions Judge, Bhavnagar, in Sessions Case No. 122 of 2010, whereby the accused was held guilty for the offence punishable under Sec. 302 of the Indian Penal Code (for short, IPC), and ordered to undergo imprisonment for life and to pay fine of Rs. 1,000/ - and, in default of payment of fine, the accused was ordered to undergo rigorous imprisonment for three months. The accused was also held guilty under Sec. 135 of the Bombay Police Act, and was ordered to pay fine of Rs. 250/ - and in default of payment, to undergo Simple Imprisonment for one week. Feeling aggrieved by the impugned judgment, the accused has preferred the present Criminal Appeal.

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

(3.) At the time of hearing of this appeal, Mrs. Nisha M. Parikh, learned advocate for the appellant -original accused has contended that except the medical evidence and evidence at PW -13 and PW -15, all the witnesses have turned hostile. In that view of the matter, the prosecution has miserably failed to prove its case against the accused -appellant. In that view of the matter, the trial Court has committed an error in relying upon the evidence of the complainant -wife of the deceased. She further submitted that no independent witness has supported the case of the prosecution. However, after arguing the matter at some length, she 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, she is arguing only on the quantum of punishment. She submitted that the incident in question has occurred in the spur of the moment. Learned counsel for the appellant submitted that considering all these circumstances, offence alleged against the accused may be converted to Sec. 304, Part -I from that of Sec. 302 of IPC.