POPATBHAI DHARMABHAI VALMIKI BHANGI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred against the judgment and order dated 17.06.2011 passed by learned 4th Additional Sessions Judge, Deesa, Camp at Deodar in Sessions Case No. 170 of 2008, whereby the accused was held guilty for offence punishable under Sec. 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life and to pay fine of Rs. 3,000/ - and, in default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for six months. For the offence punishable under Sec. 504 of IPC also, the accused was convicted and ordered to undergo rigorous imprisonment for six months and to pay fine of Rs. 500/ - and, in default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for two months. However, the accused was acquitted from the charge of offence punishable under Sec. 135 of the Bombay Police Act.

(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, Ms. Kiran Pandey, learned advocate for the appellant -original accused has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellant. She submitted that there is no eye witness to the incident. She also submitted that there is no substantive piece of evidence connecting the accused with the offence. She submitted that the present case is based on circumstantial evidence and the prosecution has failed to complete the chain, therefore, the accused is wrongly convicted by the trial Court. She submitted that a child witness has been examined as an eye witness, however, it seems that he has a tutored witness and he is not an eye witness. She further submitted that there is no other evidence to connect the accused with the present offence. 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 there was no motive on the part of the accused to commit the offence and there was no pre -planning and the incident has happened in the heat of the moment. She submitted that even if the case of the prosecution is believed, it has failed to prove any intention on the part of the accused. She, therefore, submitted that the trial Court has committed an error in convicting the accused for offence punishable under Sec. 302 of IPC and at the most it would fall under Sec. 304, Part -I of IPC. She 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.