JUDGMENT :

1. The present appeal has been filed by the appellant under Section 374 of the Criminal Procedure Code against the judgment and order dated 05.08.2002 passed by learned Additional Sessions Judge, Court No.10, Ahmedabad in Sessions Case No. 114 of 2001 for the offence punishable under Section 201 of the Indian Penal Code (hereinafter referred to as “IPC” for short) and Section 135(1) of the Bombay Police Act. By the said judgment, the appellant-accused was sentenced to undergo (i) rigorous imprisonment for a period of six years and ordered to pay Rs.5000/- as fine and in default of payment of fine, simple imprisonment for a period of one year was imposed for the offence punishable under Section 201 of IPC (ii) simple imprisonment for a period of one month and ordered to pay Rs.250/- as fine and in default of payment of fine, simple imprisonment for a period of 15 days was imposed for the offence punishable under Section 135 of the Bombay Police Act. Both the sentences were ordered to run concurrently.

2. As per the prosecution version, on 21.02.2001 at about 7.30 to 8.00 hours in the evening, due to dispute as regards the financial transaction, some altercations took place between the deceased and the present appellant-accused as well as absconding accused, due to which, the absconding accused caught hold the deceased and the present appellant gave two blows of big knife. Ultimately, the deceased succumbed to the injuries given by knife and died. Thereby, the appellant committed an offence punishable under Section 302 read with Section 34 of IPC.

3. Investigation was carried out and charge-sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable, the same was committed to the Court of Sessions. Thereafter, the charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.

3.1 In order to bring home the charges against the accused, the prosecution has examined witnesses and produced the documentary evidence.

3.2 Thereafter, after filing of closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him.

3.3 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge delivered the impugned judgment. Being aggrieved by and dissatisfied with the said judgment and order dated 05.08.2002 passed by learned Additional Sessions Judge, Court No.10, Ahmedabad in Sessions Case No. 114 of 2001, the appellant-accused has preferred the present appeal before this Court.

4. Learned senior advocate Mr. Yogesh Lakhani assisted by learned advocate Ms. Rinny Kantaria for the appellant has taken this Court through the entire record & proceedings and argued that father and brother of the deceased have been declared hostile to the case of the prosecution as they had not supported the case of the prosecution and even three witnesses, who are claimed to be eye-witnesses, have also not supported the case of the prosecution and consequently therefore, the learned trial court rightly acquitted the present appellant for the offence punishable under Section 302 of IPC. He has argued that however, while recording such finding, the learned trial court committed a grave error in convicting the appellant under Section 201 of IPC as if he had caused disappearance of material evidence, though neither he was charge-sheeted for commission of such offence nor any such charge was framed against him.

4.1 Learned senior advocate has pointed out that though as per the prosecution version, prosecution witness No.3- Mohammadhussain Bashirahmed Shaikh was eye-witness to the incident, he has at all not supported the case of the prosecution and furthermore, prosecution witness Nos. 1 & 2 – father and brother of the deceased before whom it w