DEVRAJBHAI VIBHABHAI GADHVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals are preferred against the judgment and order dated 31.05.2011 passed by learned 5th Additional Sessions Judge, Panchmahal at Godhra, in Sessions Case Nos.216 of 2009 & 69 of 2010, whereby both the accused nos.1 and 2 were convicted for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/- each, and in default of payment of fine, accused were ordered to undergo simple imprisonment for one year. Though the accused were also held guilty for the offences punishable under Sections 323, 504, 506 (2) read with Section 114 of IPC as well as Section 135 of the Bombay Police Act, no separate sentence was awarded for these offences. Being aggrieved by this judgment, the appellants-accused have preferred present appeals before this Court.

(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 appellants has 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, 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 PW-3 and PW-8, it is clear that they are not eye witness to the incident and they reached there incidentally. 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 only one injury given by the accused on the head of the deceased was the cause of death of the deceased, therefore, he could not have been convicted for offence under Section 302. 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.