JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)

1. This appeal is at the instance of a convicted person and is directed against the order of conviction and sentence dated 29th July 2008 passed by the learned Additional Sessions Judge, 4th Fast Track Court, Gondal, Camp Jetpur, in Sessions Case No. 51 of 2008 by which the learned Sessions Judge convicted the appellant for the offence punishable under section 302 of the Indian Penal Code and sentenced him to imprisonment for life and a fine of Rs.15,000/-; in default of payment of such fine, a further imprisonment for one year was imposed. The learned Sessions Judge also convicted the appellant for the offence punishable under Section 135 of the Bombay Police Act and sentenced him to rigorous imprisonment for 4 months and a fine of Rs.500/-; in default of payment of such fine, a further simple imprisonment for one month was ordered to be undergone. The learned Single Judge further directed that out of the amount of fine for the offence punishable under Section 302 of the Indian Penal Code, a sum of Rs.10,000/- should be payable to Puriben Shardulbhai, the wife of the deceased Shardulbhai, as compensation under section 357 of the Criminal Procedure Code.

2. The following charge was framed against the appellant:

On 8/4/2004 at 20.30 Hrs., you the accused entered into scuffle with Shardul Khima Ayar, son of the complainant, aged 38 years, at Station Vavdi on trivial issue. While searching him, you went to house of the complainant and again entered into scuffle, pushed the complainant on the ground, caused grievous hurt by causing common injuries to him and you caused serious and fatal injuries to the son of complainant, i.e. Shardulbhai, on his left thigh and put him to death and by doing so, you the accused murdered the son of the complainant Shardulbhai. Though the Notification on Prohibition of Arms issued by the District Magistrate, Rajkot was in force at that time, you possessed lethal weapon like knife at the time of incident and in this way, you the accused, have committed punishable offence u/s. 302 of IPC and u/s 135 of B.P. Act. Therefore, I pass order to proceed trial of case against you the accused for the aforesaid offences.

3. The case made out by the prosecution may be summed up thus:

3.1 On 8th April 2004, Dr. Mansukhlal Chhaganbhai Gajera of Jetpur Government Hospital had informed the Jetpur Taluka Police Station on phone that the dead-body of one Shardulbhai Khimabhai Patel, aged about 38 years, resident of Station Vavdi, Taluka Jetpur, had arrived at the hospital. On receiving such information, a note was made at 22.15 hours on 8th April 2004 in the Station Diary of Jetpur Taluka Station Diary vide Station Diary entry No. 30/04 and the police also made a note No. 19 of 04 of the accidental death under section 174 of the Criminal Procedure Code. Primary Investigation of this note was handed over to Head Constable R.M. Bhalgamadia of the Jetpur Taluka Police Station, Amarnagar Outpost. The P.S.O. of Jetpur Taluka Police Station had also sent a memorandum to the Executive Magistrate of Jetpur to prepare the inquest of the dead-body. The Head Constable, R.M. Bhalgamadia, had drawn the inquest panchnama of the dead-body of Shardulbhai Khimabhai by going to the Government Hospital and also filled in the post mortem requisition form and gave the same to the Medical Officer of the Jetpur Government Hospital to conduct the post mortem of the dead-body of Shardulbhai to ascertain the cause of death.

3.2 In the meantime, one Khimabhai Karshanbhai Ahir, the father of the deceased Shardulbhai, filed a complaint before the Police Sub-Inspector, B.M. Ahir of Jetpur Taluka Police Station, thereby stating that on 8th April 2004 at about half past eight O clock in the evening, after taking his meal, he was lying in a cot in the courtyard in front of his hou