DADUBHAI JIVABHAI KATHI DARBAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred against the judgment and order dated 29.9.2006 passed by Additional Sessions Judge, Fast Track Court No.3, Surendranagar in Sessions Case No.23 of 2006, whereby accused no.1 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.2,000/- and in default of payment of fine, accused no.1 was ordered to undergo rigorous imprisonment for two months. Feeling aggrieved by the impugned judgment, accused no.1 has preferred present Criminal Appeal.

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

(3.) Mr.Nitin Amin, learned advocate for the appellant-original accused no.1 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant. He submitted that in this case the accused is wrongly implicated in the offence. He submitted that as per police station diary entry, Exh.41, it is clear that the deceased was hit by the horn of cattle and he succumbed to this injury after one month and two days, therefore, the accused is wrongly convicted in the present offence. He also submitted that after the injury the deceased was admitted to the hospital, he was once discharged and then he was again admitted to the hospital and he died after one month, therefore, even if the case of the prosecution is believed, the accused cannot be held guilty for the offence under Section 302 of IPC. He also submitted that even the doctor, who performed postmortem has opined that such injury can be caused with the horn of the cattle. In view of all these, he submitted that the offence in question will not fall under Section 302 of IPC and, at the most, it may fall under Section 304, Part-II of IPC. He submitted that even if the prosecution case is believed then also the accused had no intention to kill the deceased. Considering all these circumstances, he prayed that the offence alleged against accused no.1 may be converted to Section 304, Part-II from that of Section 302 of IPC.