Sendhabhai Kalubhai Thakor vs State Of Gujarat on 22 September, 2021
5.5 Mr. Nitin Amin, learned advocate for the
appellant by relying upon judgments of the Apex Court
in the case of [1] Hariram vs. State of Haryana
reported in 1983(1) SCC 193 [2] Jagtar Singh vs.
State of Punjab reported in 1983(2) SCC 342 and (3)
Stalin vs. State represented by the Inspector of
Police reported in (2020)9 SCC 524, submitted that
when there is death due to single blow caused to the
deceased unless is proved and when it is without any
knowledge or intention, the conviction would be under
Section 304 Part-I or under Section 304 Part-II, but
not under Section 302 of the IPC and urged that in
the instant case also the conviction of the appellant
be converted into Section 304 Part-II from Section
302 of the IPC and reduce the punishment accordingly.
6 As against that Mr. J.K.Shah, learned APP
appearing for the respondent State submitted that it
is true that there is only one knife blow given on
the chest of the deceased. However, whether the
conviction of the accused appellant can be converted
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into Section 304 of the IPC or not can be examined
only by the circumstances, which led to occurrence of
the offence. He further submitted that it is deposed
by PW-12 Mukeshbhai one of the eye witnesses at
Exh.40 that the reason behind the incident was so-
called illicit relationship between the appellant and
wife of the deceased. He further submitted that even
PW-9 Chudabhai Laxmanbhai Thakor Exh.37 also in his
cross examination admitted the fact that there was
some illicit relationship between wife of the
deceased and the appellant. Mr. Shah submitted that
therefore the present appellant had a motive to kill
the deceased. He further submitted that as per the
postmortem report, the knife wound on the left side
of the chest was 4 cms. long and 8 cms. deep, which
shows that the blow was given with full force with an
intention and knowledge to kill the deceased. On the
basis of the aforesaid submissions, learned APP Mr.
Shah prayed for dismissal of Criminal Appeal No.1009
of 2013 and to confirm the conviction rendered by the
learned trial judge under Section 302 of the IPC.
7 With respect to Criminal Appeal No.1175 of
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2013 filed by the State against the acquittal of
respondents - accused Nos.2 and 3, Dungarji Iswarji
Thakor and Maheshbhai Lakshmanbhai Thakor,
respectively the learned APP submitted that the
learned Judge has not properly appreciated the oral
as well as documentary evidence inasmuch as even as
per the version of the eye witnesses, the accused
Nos.2 and 3 had caught hold of the victim. Learned
APP further submitted that as the accused Nos.2 and 3
had caught hold of the deceased and the accused No.1
gave knife blow, all the three together have acted in
furtherance of common intention in respect of
committing offence under Section 302 of the IPC and
since there was common intention they were required
to be convicted under Section 302 of the IPC. Learned
APP also took us through the evidence of both the eye
witnesses PW-12 Maheshbhai and PW-10 Rajubhai Thakor
as well as evidence of complainant - PW-9 Chodabhai
Exh.37 and submitted that both the eye witnesses have
categorically stated that accused Nos.2 and 3 caught
hold of the deceased and that itself is sufficient to
convict accused Nos.2 and 3 also for the offence
under Sections 302, 504 and 34 of the IPC.