JUDGEMENT
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(1.)In Sessions Case No. 62 of 1983, in all 9 accused were charged for the offences punishable under Sections 147, 148, 149, 302, 323, 325 and 326 of the Indian Penal Code and in the alternative all the accused were charged for the offences punishable under Sections 302 or 324 or 325 and 326 of the Indian Penal Code as stated in the charge Ex. 3. The Additional Sessions Judge, Nadiad by his judgment and order dated 3-8-1983 convicted (i) accused No. 2 Ravjibhai Bhikhabhai Vaghri for the offence punishable under Section 302 of the Indian Penal Code for committing murder of Dhulabhai Becharbhai and ordered him to suffer R.I. for life and pay a fine of Rs. 100/-, in default, to undergo R.I. for one month; (ii) accused No 3 Kanubhai Bhikhabhai, for an offence punishable under Section 324 of the Indian Penal Code for causing injury by axe to witnesses Raman and his wife Bai Mani and sentenced him to undergo R.I. for three months and to pay a fine of Rs. 1,000/- and in default to undergo R.I. for 1 months more; (iii) accused No. 5 Jethabhai Bhikhabhai Vaghri for the offence punishable under Section 324 of the Indian Penal Code for causing injury to witness Shanabhai and ordered him to undergo R.I. for three months and pay a fine of Rs. 1,000/-, in default, to undergo R.I. for 1 months; (iv) Accused No. 7 Dahiben Bhikhabhai for the offence punishable under Section 323 of the Indian Penal Code for causing injury to Bai Madhu and was given benefit of probation; and (v) accused No. 8 Manekben Motibhai for the offence punishable under Section 324 of the Indian Penal Code for causing injury to Bai Punji and ordered her to undergo sentence till rising of the Court and pay a fine of Rs. 1,000/- and in default to undergo R.I. for 1 months. The learned Judge acquitted rest of the accused and also all the accused for other offences for which they were charged.
(2.)The next question which requires consideration is whether accused No. 2 is rightly convicted for the offence punishable under Section 302 of the Indian Penal Code. In this case, it is apparent from the evidence that accused No. 2 alongwith his father, accused No. 1, went to the house of the deceased for calling him at Rupli Mata's Math for taking a vow. At that time he was unarmed. Therefore, it is difficult to hold that accused No. 2 had an intention to commit the murder of the deceased. Further, from the evidence as it stands, it is clear that because of sudden quarrel between the parties over taking a vow, accused No. 2 became angry and he gave only one blow to the deceased by a weapon which was handy at that time. It is, therefore, clear that it was a sudden fight, there was no pre-meditation, it took place in a heat of moment and that the accused had not taken any undue advantage or acted in cruel manner. Therefore, the offence would be covered by exception (4) of Section 300 of the Indian Penal Code and accused No. 2 cannot be convicted for the offence punishable under Section 302 of the Indian Penal Code. Taking the overall view of the incident, we think that the offence committed by accused No. 2 would be punishable under Section 304, Part I of the Indian Penal Code. Hence the conviction and sentence imposed on accused No. 2 Ravjibhai Bhikhabhai under Section 302 of the Indian Penal Code is quashed and set aside and accused No. 2 is convicted under Section 304, Part I of the Indian Penal Code.
(3.)With regard to sentence for the offence punishable under Section 304, Part I of the Indian Penal Code, Mr. Shethna, learned Advocate for the accused, submitted that taking into consideration the facts and circumstances of the case and particularly the fact that accused No. 2 is in jail since the date of the incident, appropriate sentence may be imposed.
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