STATE OF GUJARAT Vs. HITESHBHAI BABUBHAI PATEL
LAWS(GJH)-2008-10-225
HIGH COURT OF GUJARAT
Decided on October 14,2008

STATE OF GUJARAT Appellant
VERSUS
Hiteshbhai Babubhai Patel Respondents

JUDGEMENT

- (1.) THIS is an appeal preferred by the State of Gujarat under Section 377 of the Code of Criminal Procedure, praying for enhancement of sentence awarded by the Trial Court to the respondent while convicting him for offences punishable under Sections 304 Part -II and 504 of the Indian Penal Code and Section 135 of the Bombay Police Act. The Trial Court imposed simple imprisonment for three years with a fine of Rs.500/ - and, in default, to undergo simple imprisonment for one month and, hence, this appeal.
(2.) WE have heard learned Additional Public Prosecutor, Mr. Bhatt, for the appellant and learned Advocate, Mr. Hardik Soni, who appeared as amicus curiae.
(3.) THE respondent was alleged to have committed murder of Manoj, brother of the complainant on 19th January, 2004, at about 15.30 hours, by hitting him on his head with a wooden log when deceased Manoj tried to intervene in a quarrel between the accused and Amrutbhai Shanabhai. The F.I.R. was lodged by Jayesh Dhirubhai Patel, brother of deceased -Manoj. There were eye -witnesses to the incident, namely, Savitaben Dhirubhai (Exhibit 17), Amrutbhai Shanabhai Rathod (Exhibit 18) and Sumitraben Manojbhai Patel (Exhibit 19). Out of these witnesses, Amrutbhai Shanabhai Rathod has not supported the prosecution case and has been declared hostile while the other two witnesses have supported the prosecution case. Considering the overall evidence, the Trial Court came to a conclusion that involvement of the respondent was established by the prosecution. However, considering the circumstances in which the incident had occurred, the Trial Court held that provisions contained in Sections 300 and 302 of the Indian Penal Code would not be attracted and that the case would fall in the category of culpable homicide not amounting to murder and, as such, recorded conviction under Sections 304 Part -II and 504 of the I. P. C. and Section 135 of the Bombay Police Act. Against the acquittal of the respondent for the offence punishable under Section 302 of the I. P. C., no appeal is preferred.;


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