DEVENDRASINH @ DEVO ANUPSINH GOHIL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are preferred against the judgment and order dated 30.1.2009 passed by learned Additional Sessions Judge, Bhavnagar in Sessions Case No.35 of 2007, whereby accused nos.1 and 2 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 imprisonment for life and to pay fine of Rs.5,000/-, and in default of payment of fine, accused nos.1 and 2 were ordered to undergo rigorous imprisonment for one year. By the impugned judgment, accused nos.1 and 2 were also convicted for the offence punishable under Section 394 read with Section 34 of IPC and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, and in default of payment of fine, accused nos.1 and 2 were ordered to undergo further rigorous imprisonment of one year. Accused nos.1 and 2 were also convicted for the offence punishable under Section 135 of the Bombay Police Act and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/-, and in default of payment of fine, accused nos.1 and 2 were ordered to undergo further rigorous imprisonment of three months. However, accused nos.3, 4 and 5 were acquitted of all the charges levelled against them. Feeling aggrieved by the impugned judgment, accused no.1 has preferred Criminal Appeal No.298 of 2009, while Criminal Revision Application No.225 of 2009 is preferred by the complainant against acquittal of accused nos.3, 4 and 5. Criminal Appeal No.299 of 2009, which was preferred by accused no.2 has abated in view of his death and is disposed of accordingly vide order dated 27.1.2016.

(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, Mr.Pratik Barot, learned advocate for the appellant of Criminal Appeal No.298 of 2009-original accused no.1 has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellant. However, after arguing the matter at some length, he 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, he is arguing only on the quantum of punishment. He submitted that the incident in question has occurred in the spur of the moment and there was no pre-planning nor there was any intention on the part of the accused to kill the deceased. He also submitted that from the evidence of the complainant and one Dineshbhai Tapubhai, it is clear that their evidence is highly unnatural and improbable and it cannot be relied to convict the accused. He also submitted that though the presence of the accused at the scene of offence is proved, looking to the medical evidence, it is clear that there was only one blow given by the accused and it was not on the vital part, therefore, he could not have been convicted for offence under Section 302. He also submitted that as per the medical evidence, the injury on the vital part is attributed to accused no.2 and it cannot be attributed to accused no.1. He, 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. He 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.