JUDGMENT :

Uday Umesh Lalit, J.

1. This appeal by special leave at the instance original Accused No.2, seeks to challenge the judgment and order dated 16.02.2009 passed by the High Court of Gujarat at Ahmedabad dismissing Criminal Appeal No. 1035 of 2002 preferred by the appellant challenging his conviction and sentence in Sessions Case No. 62 of 1998, Rajkot, for offence punishable under Section 302 of the Indian Penal Code (for short IPC).

2. The incident giving rise to the present matter occurred on 16.09.1997 around 11:30 a.m. in the Courtroom of 6th Joint Civil Judge (Senior Division) and Judicial Magistrate First class, Bhavnagar. According to the prosecution one Dalpat was required to attend the 6th Court as an accused and was standing with his co-accused PW 29 Mahendra in the corridor next to the Courtroom waiting for their case to be called out. On the very day original accused No.1 Keshu Badha also had a case listed in that Court for framing of charges. While Dalpat was waiting in the corridor, Accused No.1 Keshu Badha and Accused No.2 Jivraj Badha i.e. the appellant came running with sharp cutting weapons in their hands. Apprehending danger to his life, Dalpat rushed into t