JUDGMENT :

A. J. DESAI, J.

1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the appellant has challenged the judgment and order of conviction dated 13.01.2017 rendered by learned 5th Additional Sessions Judge, Ankleshwar (hereinafter referred to as 'the learned Trial Court') in Sessions Case No.09 of 2014 by which the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 and ordered to undergo life imprisonment with fine of Rs.1,000/- and in default thereof, ordered to further undergo simple imprisonment for a period of 30 days.

2. The appeal came to be admitted on 11.10.2018. The records and proceedings along with Paper-book was called for from the learned Trial Court and the same has been placed before this Court accordingly.

3. The short facts of the case put forward by the prosecution before the learned Trial Court is as under :-

4. That on 26.9.2013, one Madinaben @ Sindhuben wife of Majidbhai Ismailbhai Shaikh, resident of Ankleshwar lodged an FIR with Ankleshwar City Police Station and alleged that one Karan L. Vasava and Prakash Dinesh Vasava came on their bike and informed her that near the house of Pamma (uncle of the deceased), his son Razaaq has been attacked by the present appellant with knife and has been admitted in the hospital. She along with her daughter Saeeda went to the Hospital where she found her son dead. It was further alleged that her daughter Saeeda was having relation with the appellant which was not liked by her son Razaaq and, therefore, Razaaq used to raise objection about the said relation and in that connection, on the date of incident, some altercation and scuffle took place wherein the appellant took out a knife and gave one blow on the chest of Razaaq due to which he succumbed to the injury in the Hospital.

5. The appellant came to be arrested on 28.9.2013. Upon completion of investigation, charge-sheet was filed before Court of learned Magistrate. Since the offences are triable by learned Sessions Judge, learned Magistrate has committed the case to the learned Sessions Judge having jurisdiction to try the case.

5. The charge was framed at Exh.7 against the appellant - accused which he denied. Hence, the prosecution proceeded with the trial. The prosecution in all examined 21 witnesses, produced several documentary evidence in support of its case. The appellant did not examine any witness to defend his case. Thereafter, further statement of the appellant under Section 313 of the Code was recorded. The accused denied the case put forward by the prosecution.

6. The learned Trial Court, after scrutinizing oral as well as documentary evidence in detail as well as considering the arguments advanced on behalf of the appellant and the respondent, held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and imposed sentence upon the appellant as referred above.

7. Hence the present appeal.

8. Mr. Nasir Saiyed, learned advocate appearing for the appellant, at the outset, would submit that the appellant does not want to challenge his involvement in the crime. However, the appellant would request the Court to convert his sentence from Section 302 IPC to that one under Section 304 of the Indian Penal Code and the sentence may be reduced accordingly. He would further submit that the complainant and other witnesses have not supported the case of the prosecution and hence, the learned Trial Court has erred in convicting the appellant. He would further submit that it is an admitted position that the complainant is not an eye-witness to the incident. However, from her deposition i.e. Madinaben - P.W. 3 Exh.28, it is clear that deceased Razaaq i.e. son of the complainant had some issues with regard to relationship of his daughter Saeeda with the appellant and due to that, some altercation took place between them and in scuffle, the appellant took a knife