( 1 ) A short but important question with which this Court is confronted is as to : whether the offence established by the prosecution against the appellant-original accused is a murder punishable under Sec. 302 IPC or culpable homicide not amounting to murder punishable under Sec. 304 Part-II IPC.

( 2 ) THE only contention which came to be advanced before us in the course of hearing of this appeal by the Ld. Advocate for appellant-Mr. Jhala is that in the facts and circumstances of the case the offence established by the prosecution can not be said to be an offence of murder punishable under Sec. 302 IPC. In that it is submitted that the offence established by the prosecution is a culpable homicide not amounting to murder, and therefore, the conviction under Sec. 302 IPC is bad and illegal and the accused can be convicted, at the best, under Sec. 304 Part-II of IPC. He has, further, argued that the accused has been in custody since 21. 6. 1991 and he has undergone the period in the jail for more than 7 years which should be considered as sufficient. The Ld. APP has opposed and countenanced this submission.

( 3 ) THE question of murder or culpable homicide not amounting to murder has, at times, vexed many a Courts since more than a century. No doubt, there is a thin line, but it is very fine. In order to appreciate the only contention before us, it would be expedient, at this juncture, to refer to relevant material facts emerging from the record of the case.

( 4 ) THE appellant-accused is a cousin brother of the deceased. There were disputes pending between the two families in relation to the immovable properties and many other court cases were also pending. According to the prosecution case on account of deep seated motive, the accused, on 21. 6. 1991 at about 6. 00 p. m. , came to the house of the complainant-Bapusinh with a stick and questioned the deceassed as to why he had sold the field. Saying so, and in agitated mood, the accused gave few pushes with the stick on the chest portion and back portion which ruptured the spleen. It was therefore contended by the prosecution that the accused intentionally gave stick blows which culminated into the death of the deceased Becharsinh and it was an offence of murder. Accordingly, the accused came to be charged by the Addl. Sessions Judge, Sabarkantha at Himmatnagar on 20. 1. 1992 in Sessions case No. 67/91 which was denied by the accused and came to be tried.

( 5 ) IN order to appreciate the charge against the accused prosecution relied on the viva-voce of following 8 witnesses : (i) Bapusinh Becharsinh (ii) Dr. Manish Amaraji, (iii) Nathusinh Kodarsinh, (iv) Pratapsinh Bhemsinh, (v) Badarsinh Udesinh, (vi) Roopsinh Bhemsinh, (vii) Arjunsinh Lalsinh, (viii) Manojkumar Vechatbhai.

( 6 ) THE prosecution also relied on the documentary evidence to which reference may be made at an appropriate stage by us as and when required.

( 7 ) UPON the assessment and evaluation of the evidence on the facts and circumstances emerging from the present case, the Trial Court accepted the prosecution version in toto and held the appellant-accused guilty for the murder of deceased Becharsinh and convicted and sentenced him for life for the offence punishable under Sec. 302 IPC. That is how original accused has now come up before us in this appeal under Sec. 374 Crpc challenging its legality and validity.

( 8 ) AS observed hereinbefore we are called upon to assess and evaluate the evidence and proved facts so as to consider whether the offence committed by the appellant- original accused is murder or culpable homicide not amounting to murder. The trial Court has found that the offence committed by the appellant was of an offence of murder holding that the accused had an intention to kill while giving pushes on the person of the deceased which culminated into rupture of spleen and resultant death.

( 9 ) SO, the prosecution has successfully established that there was a homicidal death of