( 1 ) THE appellants (appellant No. 1 now deceased) have filed this appeal challenging the judgment and order of conviction dated 27th June, 1991 passed by the learned Addl. Sessions Judge, Ahmedabad, Court No. 16 holding the appellants guilty of offence punishable under Sec. 302 read with Sec. 34 of the Indian penal Code and sentenced each of them to suffer rigorous imprisonment for life and fine of Rs. 500. 00 in default rigorous imprisonment for two months.

( 2 ) PRECISELY stated, the case of the prosecution is as under : the appellants ("accused" for short) had deposited Rs. 75,000. 00 with the deceased. The said amount was not paid back despite repeated demands. In the evening of 9th July, 1990, accused had gone to the residence of the deceased hareshbhai and pressed the demand for the said amount. As the deceased denied to pay the same, accused No. 1 caught hold of the deceased and accused No. 2 inflicted knife blows. Deceased fell down. By that time, some of the neighbours of the deceased rushed to the scene of offence. One of them telephoned to Navrangpura police Station where one Rupaji Ramaji, PW 10, was on duty as Police Station officer received the telephone and he recorded the same in the register. The said message is that "kantilal Kalidas Vaidya and his son have jointly seriously assaulted harishbhai Amin residing in Pallavi Apartment Tower and had run away. So send police immediately". After sending telephonic message to the Police Station, the neighbours removed the injured to the V. S. Hospital where he was declared dead. In response to the said telephonic message, the police reached the place of incident where they were informed that the injured is removed to the hospital. The Inspector reached to the hospital. Police Inspector recorded the complaint of one Gautambhai in V. S. Hospital and sent the same to the Police Station for registering the offence. On offence being registered, necessary investigation was carried and completed. On completion of the investigation, both the accused were charge-sheeted before the court of Metropolitan Magistrate, 9th Court, Ahmedabad, who in his turn committed the case against the accused in the Court of Sessions at Ahmedabad.

( 3 ) THE learned Additional Sessions Judge, Court No. 16, framed charge against the accused. The accused pleaded not guilty and claimed to be tried. The learned addl. Sessions Judge after completion of trial and after hearing the learned Advocates held both the accused guilty of offence charged and imposed the sentence referred above. The said judgment and order is assailed in this appeal.

( 4 ) IT is stated at the Bar by the learned Advocate for the appellants that appellant no. 1 has died on 1st May 1997 in village Manakpur, District Mehsana. He has produced the original death certificate which is taken on record. In view of this fact, appeal so far as it relates to appellant No. 1 Kantilal Kalidas Vaidya has stood abated. Appeal now, therefore, survives of accused No. 2 Ramchandra @ Manoj kantilal, who hereinafter will be referred to as "the accused".

( 5 ) AFTER the above part of the judgment was dictated we felt it necessary that witness Mr. Manubhai PW 9 should be recalled by the Court and witness Mr. Dahyabhai Jijibhai Patel, Investigating Officer, PW 10 as a consequent witness if necessary. We, therefore, by order recalled witness Mr. Manubhai PW 9 and Mr. D. J. Patel, PW 10, and examined them, further. In our opinion, as we had recalled the said witnesses, they need not be made available for the defence for crossexamination, yet we have afforded an opportunity to the defence Advocate to crossexamine that witness if he so desired. Learned Advocate for the defence has objected to the questions put by us to witness, PW 9. We have, however, overruled the same. The said witnesses are not cross-examined by the defence Advocate. This is how we have now with us the full evidence of PW 9, Mr. Manubhai and PW 10 Mr. D. J. Patel.

( 6 ) LE