Point of the court : merely on the basis of the single injury, the Court would not convert the case of Section 302 of IPC into Section 304 Part II of IPC. Nature of offence would certainly depend upon the other attendant circumstances whether the act was premeditated; the nature of weapon used as well as the nature of assault on the accused.

JUDGMENT :

A.J.DESAI, J.

1. By way of the present appeal under section 374(2) of the Code of Criminal Procedure, 1973, the appellant- convict has challenged the judgment and order of conviction dated 06/04/2016 passed by learned 8th Additional Sessions Judge, Gandhidham- Kutch in Sessions Case No.46 of 2009, by which the appellant has been convicted for the offence punishable under section 302 of the IPC and sentenced for life imprisonment and imposed fine of Rs.10,000/- and in default, shall undergo further one year simple imprisonment. The appellant is also convicted for the offence punishable under section 135 of the Gujarat Police Act and sentenced to undergo six months simple imprisonment and imposed fine of Rs.500/- and in default, to undergo further simple imprisonment of one month. The appeal came to be admitted on 27/09/2016. It was brought to the notice of this Court that the appellant is behind bar since more than 11 years. It appears from the record that an order was passed by coordinate bench on 21/01/2019 that the appellant has undergone sentence of more than 9 years and therefore, the appeal was fixed for hearing after a period of three weeks. However due to pandemic during the whole year of 2020, the appeal was not heard. Again an application was moved by the appellant being Criminal Misc. Application No.1 of 2021 to release the appellant on bail during the pendency of the appeal, in which, coordinate bench of this Court passed an order on 18/02/2021 and appeal was fixed for hearing today, considering the fact that the appellant has undergone almost 11 years.

2. Short facts, arise from the record, are as under : One Sureshkumar son of Kana Ramji, aged about 18 years, resident of Surat, lodged an FIR with Gandhidham Railway Police Station alleging that he along with his elder brother Bhavarlal, residing at Surat and having shop in Millennium Market at Surat. Since marriage of his relative was scheduled at Gandhidham, he along with his elder brother Bhavarlal, his sister-in-law Bhavridevi and cousin brother Pappu boarded the train at 9:30 pm on 16/04/2009 from Surat for Gandhidham and get down from the train at 7:50 am at Gandhidham. When they came out of the railway station at around 7:55 am, near Railway Musafarkhana he found his brother-in-law namely Hemrajbhai Shankarlal Regar - present appellant, resident of Gandhidham itself. Having seen them, the appellant told them that he had beaten his sister Manjuben, who has married to another brother of the complainant, namely Chhaganbhai. The appellant took out knife and gave knife blow on abdominal part of the Suresh and immediately gave another blow to his elder brother Bhavarlal and run away from the place. Both the persons were seriously injured and taken to the Hospital through 108 ambulance. FIR was recorded. It was further alleged that due to injuries sustained by his brother Bhavarlal, he succumbed to the death and accordingly FIR was lodged for the offence punishable under section 302 and 326 of the IPC as well as section 135 of the BP Act. Subsequently, the complainant namely Sureshkumar died on 21/04/2009 pursuant to the serious injuries sustained by him. The appellant came to be arrested by the Investigating Officer. On completion of investigation, charge-sheet was filed against the appellant. Thereafter, charge-sheet came to be forwarded to the concerned Judicial Magistrate, who committed the case to the learned Sessions Judge, who tried the offence. Charge came to be framed against the sole appellant for the offences punishable under section 302 of the IPC as well as Section 135 of the BP Act. The appellant has denied the charges levelled against him and therefore, trial proceeded further at the instance of the public prosecutor. Prosecution examined in all 27 witnesses to establish the charges levelled against the appellant-accused and produced several documents. The appellant did not examine any witness in his defence. Learned Sessions Judge after consi