RANCHHOD @ HAKKO JIVANDAS Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CHALLENGE in this Appeal under Section 374 of the Code of Criminal Procedure ("the Code" for short) is to the correctness of the judgment and order dated 26.5.2000 rendered in Sessions Case No. 117 of 1999 by the learned Sessions Judge, Jamnagar, by which the Appellant ("the Accused" for short) has been convicted for commission of the offence punishable under Section 302 of the Indian Penal Code ("IPC" for short) and sentenced to suffer imprisonment of life and fine of Rs.1000/ - in default of payment of fine to undergo SI for 2 months.

(2.) THE prosecution case as disclosed from FIR and unfolded during trial is as under:

(3.) MR .B.S.Supehia, learned advocate of the Accused, who has appeared by way of legal aid, has contended that the witness Shailesh has stated this incident after two months and that the prosecution has not examined the wife of the deceased as witness before the trial Court, therefore, prosecution case suffers from non -examination of the star witness. He has also submitted that the Accused and deceased both are brothers, therefore, it cannot be believed that the Accused has committed murder of his brother. Alternatively, it is submitted by him that the incident has taken place in a trifling manner with respect to which the deceased had given grave and sudden provocation to the Accused, therefore, offence is not a murder under Section 302 but is a culpable homicide punishable under Section 302(part -II). He, therefore, urges that the impugned judgment and order of conviction recorded against the Accused is required to be altered into conviction under Section 304 either Part -I or Part -II of IPC, and as the Accused has already undergone more than 9 years of imprisonment, period undergone by him may be treated as substantive sentence and he may be set at liberty. He, therefore, urges to allow this Appeal by altering the conviction and sentence.