JUDGMENT :

Sonia Gokani, J.

This Appeal is preferred under Section 374 (2) of the Code of Criminal Procedure (hereinafter to be referred to as, "CrPC") challenging the judgment and order dated 7th May 2010 of conviction and sentence passed by the learned Sessions Judge, Kheda at Nadiad in Sessions Case No. 97 of 2009, in the following factual background.

Prosecution case :

2. It is the case of prosecution-complainant Rajeshbhai Jashbhai Sodha, the brother of the deceased that on 16th May 2009, he had visited Mamlatdar Gramya Court and when he returned in the evening, his maternal aunt apprised him of the details she gathered from his paternal grandmother, that his elder brother Ajit had gone to meet Darbar in the morning after instructing him to wash a bu-shirt as they were to attend marriage at village Sillor. However, he had not returned home, and therefore, the complainant inquired at the place of Bhadhursinh @ Darbar Bhikhubhai Mahida [present appellant] and thereafter on 18th May 2009, an intimation was given in the form of 'janva jog' entry at Nadiad Police Station. It is also averred in the complaint that when he went to search for his brother, Bahadursinh @ Darbar Bhikhubhai Mahida was not found nor could he get belongings of his. However, he could notice burnt wooden logs lying in the backyard of the house of the appellant wherein he noticed that something was buried and a bad odour was coming from beneath the land. He intimated this to one Punamsinh B. Solanki and also the Police was also in turn reported this aspect. In presence of Mamlatdar and panchas, after removing the wooden logs, body was exhumed. From the clothes he could notice that it was the dead body of his elder brother whose hair were missing and on the backside of the scalp, an injury was noticed from where worms were oozing out. It was found in an extremely bad condition.

3. It is averred in the complaint that his brother disliked the factum of complainant visiting Darbar who also was used to consume liquor. He was unhappy about the complainant keeping company of such persons. He also had scolded the appellant in this respect and that had resulted into acrimonious debate between his brother and Darbar. It is the case of prosecution that the deceased was done away with due to such dispute.

4. On due investigation, charge-sheet came to be filed and on committal of the case to the Court of Sessions, charges came to be framed on 11th November 2009 for the offences punishable under Section 302 read with Section 201 IPC against the appellant.

5. On the appellant denying the charges, prosecution examined in all twenty witnesses and also adduced documentary evidence and on appreciation of oral and documentary evidences, convicted the appellant for the offence punishable under Section 302 terming the same as homicidal death amounting to murder and sentenced the appellant for life imprisonment coupled with fine of Rs. 50,000/-; and in default, punishment of three years rigorous imprisonment. Whereas, for the offence punishable under Section 201 IPC, rigorous imprisonment of one year has been awarded and fine of Rs. 500/- and in default, to undergo rigorous imprisonment of three months, directing both the sentences to run concurrently under Section 427 CrPC. Learned Sessions Judge also directed compensation to the tune of Rs. 30,000/= to the complainant under Section 357(1)(b) from the amount of fine.

Submissions :

6. Aggrieved by such decision, present appeal is preferred where we have heard learned advocate Shri Pratik B. Barot for the appellant and learned APP Mr. J.K Shah for the respondent-State. It is strenuously urged by the learned advocate Shri Barot that the entire case of prosecution hinges on a solitary witness, PW-3, who has chosen not to speak a word with regard to his having eye-witnessed the incident for five days. He also questioned his having left a piece of wood on the shed of the appellant. The entire story narrated by PW-3 is unbelievable, according