KANTABEN Vs. THE STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is preferred against the judgment and order dated 26.7.2006 passed by 3rd Additional Sessions Judge, Veraval in Sessions Case No. 31 of 2001, whereby the accused-appellant herein was held guilty for 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. 1,000/- and in default of payment of fine, the accused was ordered to undergo rigorous imprisonment for one month. Feeling aggrieved by the impugned judgment, the accused has preferred present Criminal Appeal No. 1546 of 2004.

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

(3.) Mr. Harshad Patel, 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. He submitted that there is no eye witness to the incident and there is no material to connect the accused with the commission of crime. He also submitted that the prosecution has failed to prove any motive against the accused. He submitted that the deceased was a habitual drunker and used to give mental and physical harassment to the accused. He also submitted that the so-called eye witness, Gulshanben has not seen the incident and, therefore, her evidence cannot be relied to convict the accused. He submitted that from the evidence of Gulshanben and Mohammedbhai Musabhai it seems that they are got up witnesses and their evidence cannot be relied. 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 accused is the wife of the deceased and the deceased was used to drink and beat the accused. He submitted that the incident in question has occurred in the spur of the moment and there was no preplanning 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, it cannot be said that there was any intention on her part to kill her husband. 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.