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(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. By way of this appeal, original accused has challenged the judgement and order dated 15.12.2011 passed by the learned Sessions Judge, Navsari in Sessions Case No. 24 of 2011 whereby the trial court has convicted the accused under Section 302 of Indian Penal Code and sentenced him for life imprisonment and fine of Rs. 5000/- in default simple imprisonment for two years.

2. It is the case of the prosecution that on 14.02.2011, the complainant had gone to sell fish towards Sonwadi village and returned home at 08.00 pm. At that time, the complainant came to know that some dispute had taken place between his cousin and the accused. It is the case of the prosecution that the accused had beaten the deceased by soda bottle as the accused was under the impression that the deceased was having illicit relations with the accused's wife. A complaint was therefore registered by the complainant with Gandevi Police Station which was numbered as Cr. - I No. 9 of 2011.

2.1 The accused was apprehended and after investigation charge sheet was submitted. The case was committed to the Court of Sessions. The trial was initiated against the accused and during the course of trial the prosecution examined the following witnesses whose evidences were read before us by learned advocates for both the sides:

evidences which have been perused by us such as complaint at Ex. 9, panchnama of scene of offence at Ex. 43, inquest panchnama at Ex. 12, panchnama of seizure of clothes of deceased at Ex. 13, post mortem report at Ex. 16, cause of death certificate at Ex. 17, FSL report at Ex. 35, dispatch note at Ex. 39, extract of station diary entry at Ex. 41 etc. 2.3 At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the accused as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the accused has preferred the present appeal.

3. Mr. Yogendra Thakore, learned advocate appearing for the accused - appellant has submitted that though the case Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri May 06 02:24:21 IST 2016 R/CR.A/239/2012 JUDGMENT against accused cannot be said to have been proved inasmuch as there is no sufficient evidence found against him, he does not dispute the same but has restricted his arguments to alteration of conviction imposed upon accused under Section 302 of IPC to one under Section 304(Part I) of IPC. It is submitted that, this Court may consider the fact that out of the two injuries sustained by the deceased as per column no. 17 of the post mortem report only one injury proved fatal whereas the other injury was merely a bruise and accordingly the conviction under Section 302 of Indian Penal Code may be altered to one under Section 304 (Part I) of Indian Penal Code and impose suitable punishment as this court may think fit.

4. Ms. C.M. Shah, learned APP, however, submitted that the trial court has given cogent reasons for sustaining the conviction under section 302 of Indian Penal Code and this court may not interfere in this appeal. It is submitted that the trial court has based the conviction not only on the evidence of the complainant and witnesses but also considered entire circumstances of the case and the facts which are proved by cogent evidence.

5. We have perused the records of the case. We have gone through the medical evidence on record. Since, learned advocate for the appellant has restricted his arguments to the alteration of conviction from Section 302 to one under Section 304 (Part I) of Indian Penal Code and not challenged the guilt, we do not discuss the evidence so far as the guilt of the accused is concerned. The accused is held guilty of the injuries inflicted upon the deceased and his consequent death.

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5.1 However, it shall be pertinent to refer to the medical evidence, more particularly the cause of death mentioned in the post mortem report which reads as under:

"Shock & hemorrhage due to injury of heart and lung."

5.2 The nature of injuries as mentioned in column no. 17 of the post mortem report is reproduced as under:

"(I) Pane injury incised wound over middle of interior of left chest situated at 4th inter costal space 1 cm away from mid sternal line and 12 cm away from the left sterno claviclor joint 6 cm in length, 1.5 cm in breadth, 8 cm in depth penetrating obliquely through thoracic cavity edges of wound is clean cut spindle shaped curved red in colour. Under lying skin subcutaneous tissue muscles underlying tissue clean cut, clothed blood present around wound.

(II) Bruise over left occipital region of head 2 cm x 1 cm red in colour"

6. We have gone through the medical evidence of the doctor who had conducted the post mortem of the deceased. From the post mortem report and the evidence of doctor, we are of the view that the contention raised by learned advocate for the appellant is required to be accepted.

6.1 P.W. 4 - Dr. Pragnesh Mohansinh is the medical officer who had conducted the autopsy of the dead body of deceased. This witness has stated that the injury found on the body of deceased was sufficient in the ordinary course of nature to cause death. He has stated that the injuries sustained by the deceased were possible by way of muddamal soda bottle.

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7. However, the fact remains that the offence is said to have been committed and the appellant appears to have been driven by the grave and sudden provocation after the quarrel with the deceased. Therefore, while we are inclined to hold that the offence had taken place as alleged by the prosecution we have a reason to say that the nature of offence would fall under exception to section 300. We are therefore inclined to alter the charge and the sentence from one under section 302 to section 304 (Part I) and convict the appellant for the offence under section 304 (Part I) and sentence him to imprisonment for a period of ten years.

8. For the foregoing reasons, appeal is partly allowed. The conviction of the appellant - original accused under Section 302 of the Indian Penal Code vide judgment and order dated 15.12.2011 arising from Sessions Case No. 24 of 2011 passed by the Sessions Judge Navsari is altered to conviction under Section 304 (Part I) of Indian Penal Code. The appellant - original accused is ordered to undergo rigorous imprisonment for a period of ten years under section 304 (Part I) of Indian Penal Code instead of life imprisonment as awarded by the trial court under section 302 IPC. The amount of fine and sentence in default of fine is maintained. The judgement and order dated 15.12.2011 is modified accordingly. The period of sentence already undergone shall be considered for set off of sentence. R & P to be sent back to the trial court forthwith.

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