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2019 DIGILAW 1234 (SC)

Manabhai Laxmanbhai Rathod v. State Of Gujarat

2019-04-12

INDIRA BANERJEE, MOHAN M.SHANTANAGOUDAR

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ORDER : 1. Leave granted. 2. The appellant is convicted by the trial court for an offence under Section 302 IPC. The judgment of the trial court is confirmed by the High court. The correctness of the judgments of the trial court and the High Court is assailed in this appeal by the convicted accused. 3. Notice was issued in this appeal on 11th March, 2019, to consider the case as to whether the matter would fall under Section 304 Part I or Part II of the I.P.C. 4. The charge framed by the Additional Sessions Judge in its order dated 3.5.2012 clearly reveals that on the date of incident, i.e., on 5.11.2010 at 6.30 p.m. Gordhanbhai Somabhai Rathod (deceased) was proceeding towards Navi Nagri; at that point of time he ran towards Manabhai Laxmanbhai Rathod (accused), the appellant herein and altercations took place. The accused being agitated by provocation of the deceased who started abusing, the accused immediately took out a knife and stabbed Gordhanbhai twice. 5. The aforesaid charge as well as the evidence produced by PWs.8 and 9 (the injured witnesses) would clearly reveal that the incident has taken place without premeditation and due to the provocation of the deceased. Therefore, the offence would fall under Section 304 Part II of IPC and not under Section 302 IPC. 6. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that justice would meet if the petitioner is sentenced to undergo imprisonment for ten years for the offence under Section 304 Part II of IPC. 7. The appeal is accordingly allowed in part. The judgments of the trial court and the High Court are modified. The accused is hereby convicted under Section 304 PartII and is sentenced for a period of ten years. The appellant is entitled to set off, of the period already undergone by him. 8. The conviction ordered upon by the trial court and the High Court with regard to other offences shall stand confirmed and all the sentences shall run concurrently. 9. Pending application, if any, shall stand disposed of.