JAGABHAI KHIMABHAI GAMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred against the judgment and order dated 25.8.2004 passed by learned Additional Sessions Judge and Fast Track Judge, Junagadh in Sessions Case No.78 of 2002, whereby the accused was held guilty for offence punishable under Section 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs.500/-, and in default of payment of fine, the accused was ordered to undergo imprisonment for one month. By the impugned judgment, the accused was also convicted for the offence punishable under Section 447 of IPC and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.200/-, and in default of payment of fine, the accused was ordered to undergo further imprisonment of one week. The accused was also convicted for the offence punishable under Section 135 of the Bombay Police Act and ordered to pay fine of Rs.50/-, and in default of payment of fine, the accused was ordered to undergo imprisonment of two days. Feeling aggrieved by the impugned judgment, the accused has preferred present appeal 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.B.M.Mangukiya, 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. 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 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. 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.