Judgment

J.B. Pardiwala, J.

The present Appeal is at the instance of a convict accused of the offence under Section 302 of the Indian Penal Code and is directed against the order of conviction and sentence dated 15th April 2009 passed by the Additional Sessions Judge, Anand, in Sessions Case No.102 of 2008.

By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the IPC and consequently sentenced him to suffer life imprisonment and a fine of Rs.1,000/-. In default of payment of fine, the appellant was directed to undergo further simple imprisonment for six months. The learned Additional Session Judge also found the appellant guilty of the offence punishable under Section 135 of the Bombay Police Act and consequently sentenced him to suffer imprisonment for one month.

I. Case of the Prosecution :

The PW8 Maheshbhai Melabhai Bharwad, brother of the deceased, lodged a First Information Report Exh.34 on 20th March 2008 at the Anand Town Police Station, stating that he resides at the address stated in the complaint along with his mother viz. Rasuben and two brothers viz. Satishbhai and Shaileshbhai. He has further stated that he himself and his brother Shailesh, the deceased, were running a tea stall at the 80 feet road at Anand. He has stated that his brother Shailesh, the deceased, was handicapped from his leg since his birth. He has stated that on the day of the incident he himself and his elder brother Shailesh, the deceased, were present at their tea stall and were carrying on the business. At around 3:30 in the afternoon, Ramanbhai, the accused, residing at Sakar Eklav situated opposite the tea stall, picked up a quarrel with an unidentified person, due to which his brother Shailesh intervened to separate the accused and the unidentified person. He has stated that as his brother Shailesh intervened in the fight between the accused and the unidentified persons, the accused got enraged and brought a sickle somewhere from the near, and while trying to hit a blow, the pointed portion of the sickle got hit in the left eye of Shailesh, as a result Shailesh started bleeding profusely. As a result of such incident and due to commotion, many people from the nearby place gathered at the place of the occurrence. He has further stated that thereafter he himself along with one Rajubhai Bhagabhai Bharwad immediately took Shaileshbhai to the Anand Adarsh Hospital in the Maruti car of Rajubhai Bhagabhai Bharwad. The doctor at the Anand Adarsh Hospital advised them to take the injured to the Karamsad Medical Hospital. Accordingly, an ambulance 108 was called for, and in the same, Shailesh was taken to the Karamsad Medical Hospital. While the treatment was being given to the deceased Shailesh at the Karamsad Medical Hospital, the First Information Report Exh.34 was lodged.

It appears that on 23rd March 2008 during the course of the treatment, the deceased succumbed to the injuries. On the strength of the complaint lodged by the PW8 Maheshbhai, the investigation had commenced. The FIR lodged by the PW8 was registered for the offence under Section 326 of the Indian Penal Code and Section 135 of the Bombay Police Act vide C.R. No.I-143 of 2008. As the injured succumbed to the injuries on 23rd March 2008, Section 302 of the Indian Penal Code was subsequently added.

The inquest panchnama of the dead body Exh.12 was drawn in presence of the panch-witnesses. The scene of offence panchnama Exh.20 was drawn in presence of the panch-witnesses. The dead body of the deceased was sent for the postmortem examination and the postmortem report Exh.10 noted the cause of death to be shock and hemorrhage due to head injury. The clothes of the deceased were collected by drawing the panchnama Exh.57 and the same were sent to the FSL for chemical analysis. The accused was arrested and the arrest panchnama Exh.55 was drawn in presence of the panch-witnesses. The statements of various witnesses