BUTASING RAJSING THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellants original accused challenging judgment and order dated 16th April 2002 passed by the learned Additional Sessions Judge, Banaskantha in Sessions Case No. 137 of 1999 by which the appellant has been convicted under Section 302 of the Indian Penal Code and under Section 135 of the Bombay Police Act.

(2.) HEARD the learned counsel for the parties. In this incident, the deceased is said to have sustained one fatal blow on the head and other bruises at the hand of three accused persons. One of them is said to have an axe. According to the eye-witness, who is the wife of the deceased, it was night time and at that hour the incident occurred. The learned counsel for the appellant, without disputing the incident, stated that at that point of time it was very difficult to say that except accused Pravinsing Raising Thakor, who is said to have injured the deceased, all have inflicted the injury on head. It was a case where parties were having earlier enmity and that something had occurred in the heat of moment. It being a night time, with preciseness it cannot be said that the injury inflicted would be covered by Clause 3 of Section 300 of the Indian Penal Code. In that view of the matter, the learned counsel for the appellant pleaded that accused Pravinsing Raising Thakor may be convicted under Section Section 304 Part-I and the offence can be altered from Section 302 to 304 Part-I of the Indian Penal Code. He has already remained behind the bars for more than nine years. In that view of the matter, the sentence already gone by the appellant would meet the ends of justice.

(3.) PER contra, Ms Mita Panchal, learned Additional Public Prosecutor submitted that three accused persons had killed the deceased. However, we are of the considered view that the offence and the sentence can be diluted from Section 302 of IPC to 304 Part-I of IPC simpliciter qua appellant No. 3 Pravinsing Raising Thakore. The other two accused appellants Nos. 1 and 2 having only caused simple injuries are convicted under Section 323 instead of Section 302 of IPC.