Decided on April 07,2016

Gandabhai Raghubhai Nirashrit Thakor Appellant


K.S. Jhaveri, J. - (1.) This appeal is preferred against the judgment and order dated 21.11.2009 passed by learned Additional Sessions Judge, Fast Track Court No. 2, Patan in Sessions Case No. 78 of 2008, whereby the accused was held guilty for offence punishable under Sec. 302 of the Indian Penal Code (for short, "IPC") and ordered to undergo imprisonment for life and to pay fine of Rs. 1,000/ - and, in default of payment of fine, the accused was ordered to undergo further simple imprisonment for six months.
(2.) The facts in brief giving rise to the filing of present appeal are as under: - - "2.1 It is the case of the prosecution that on 31.12.2008, in the evening at about 7 p.m. the accused went to the house of the victim, Dahyabhai Devshibhai Thakor for calling him. Then the accused and the victim went away and about 4 a.m. in the morning, the accused came with the deceased carrying him on his shoulder. As the wife of the deceased asked the accused the reason for doing so, he told that the deceased had consumed liquor and allow him to sleep for some time. Thereafter, the accused put the deceased down on the bed and went away. When wife of the deceased tried to awake him, she saw wound on his cheek and head from which blood was oozing out. Then the wife of the deceased informed it to the complainant. With these allegations, a complaint came to be filed against the accused. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge -sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses: - - 2.4 The prosecution had also produced and relied upon following documentary evidence: - - 2.5 At the end of trial, the Court below recorded further statement of the accused under Sec. 313 of Cr.P.C. and thereafter, passed the impugned judgment and order. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court."
(3.) At the time of hearing of this appeal, Mr. Tejas Satta, 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. He also submitted that there is no substantive piece of evidence connecting the accused with the offence. He submitted that the present case is based on circumstantial evidence and the prosecution has failed to complete the chain, therefore, the accused is wrongly convicted by the trial Court. 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 there was no motive on the part of the accused to commit the offence and there was no pre -planning. He submitted that even if the case of the prosecution is believed, it has failed to prove any intention on the part of the accused. He, therefore, submitted that the trial Court has committed an error in convicting the accused for offence punishable under Sec. 302 of IPC and at the most it would fall under Sec. 304, Part -I of IPC. He submitted that considering all these circumstances, offence alleged against the accused may be converted to Sec. 304, Part -I from that of Sec. 302 of IPC.;

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