HARESHBHAI JILUBHAI DHANDHAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred by accused no.1 against the judgment and order dated 24.08.2012 passed by 6th Additional Sessions Judge, Rajkot, in Sessions Case No.75 of 2009, whereby accused no.1 was convicted for the 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. 5,000/-, and in default of payment of fine, accused no.1 was ordered to undergo further simple imprisonment for six months. By the impugned judgment, accused no.1 was also convicted for the offence punishable under Section 307 of I.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000/-, and in default of payment of fine, accused no.1 was ordered to undergo further simple imprisonment of six months. Accused no.3 was also convicted for the offences punishable under Sections 324 of I.P.C. and 135 of the Bombay Police Act, while accused nos.2 and 4 were acquitted of the charges levelled against them. Being aggrieved by the impugned judgment, accused no.1 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. Ashish Dagli, learned advocate for the appellant-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 accused no.1 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, therefore, the trial Court has committed an error in convicting accused no.1 for the offence punishable under Section 307 of I.P.C. He also submitted that for the incident in question, cross-complaints have been filed and the accused have also received injuries. He submitted that accused nos.1 to 3 had received injuries in the incident. Accused no.1 received injury in parital region, while accused no.2 received injury on the forehead. Therefore, it can be said that it is a case of free fight and the trial Court has committed an error in convicting present appellant for the offences punishable under Sections 302 and 307 of I.P.C. 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 accused no.1, 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 I.P.C. 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 I.P.C.