RASIKLAL SOMABHAI BHANGI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS is an appeal preferred by the appellant original accused against the judgment and order of conviction and sentence dated 25th June, 1999 passed by the learned Additional Sessions Judge, Bhuj -Kutchchh in Sessions Case No. 139 of 1997, whereby the appellant -accused has been convicted to life imprisonment for the offence punishable under Section 302 of IPC with fine of Rs. 2000/ - and in default of payment of fine, the appellant has been sentenced to imprisonment for three months.

(2.) FACTS of the present case are as under: -

(3.) WE have heard the learned counsel on behalf of the appellant. It is submitted by Mr. B.C. Dave, learned counsel appearing for the appellant -accused that the prosecution had failed to prove its case beyond reasonable doubt against the present appellant; that there are enough number of omissions and contradictions in the depositions of the prosecution witnesses which have not been properly appreciated by the trial court. It has also been contended by the learned counsel for the appellant that 2 alleged eye witnesses are not in fact, eye witnesses; that they are not trustworthy witnesses. It is also submitted by the learned counsel for the appellant that one person, namely, Anil Dhaka was found with deceased at her parental house which provided grave and sudden provocation to the appellant and therefore, the whole incident had taken place and the appellant be given benefit of altering sentence from Section 302 IPC to Section 304 Part -I of IPC. Learned counsel for the appellant has read over statement of the accused recorded under Section 303 of Code of Criminal Procedure and has pointed out that it is the case of the accused that because of this grave and sudden provocation, he had inflicted injuries upon the deceased. It is pointed out that it was Anil Dhaka, who had caused injuries to the deceased and not the present appellant and the presence of Anil Dhaka has been established by deposition of P.W. 5 Sitaben, who was examined at Exh. 20. In this set of circumstances, it is submitted that even if culpable homicide is proved, it does not amount to murder as it falls within the Exception of murder and therefore, benefit of reduction in sentence may be given to the present appellant. It is therefore submitted that the order of conviction and sentence of the present appellant under Section 302 IPC deserves to be quashed and set aside.