ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A. J. DESAI

1. By way of the present appeal under Section 374 of the Code of Criminal Procedure, 1973, the appellant has challenged the judgment and order dated 8.4.2015 passed by the learned 4^th Additional District & Sessions Judge, Banaskantha District at Deesa in Sessions Case No.19 of 2013 by which the appellant has been sentenced for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and ordered to undergo life imprisonment for a period of 20 years with remission as per law and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment of three months.

2. The appeal came to be admitted on 4.1.2016.

3. The short facts arise from the record are as under :-

3.1 That one Sujabhai Ajabhai Chaudhary (Patel) lodged one FIR being I C.R. No.89 of 2012 with P.S.I., Dhanera at C.H.C. Dhanera on 25.11.2012 at around 19.00 hours and declared that on the said date, at around 17.30 hours in the evening, when he was present at his field, he heard a big noise of collision on open road and, therefore, he rushed at the place from which the noise was heard. At that time, he found that his uncle, namely, Joitabhai Kevdabhai Chaudhary was attacked by the present appellant – Dinesh Shankarbhai Chaudhary who is his distant nephew and had given a knife blow near the left under arm of Joitabhai Chaudhary. It is further stated in the FIR that the said Joitabhai Chaudhary had raised an alarm and, therefore, the complainant had reached at the place of incident and at that time, one Shankar Nagabhai and Masumbhai Nagabhai and other person also reached at the place of incident and at that time, the present appellant ran away from the scene of offence along with the knife. At that time, Joitabhai Chaudhary informed the complainant and other persons who were present there, that quarrel between him and the appellant took place as to who would reverse the Tractor and, therefore, knife blow has been given by the appellant. It is further alleged that immediately thereafter, Joitabhai became unconscious and the complainant along with other persons took Joitabhai to the nearest Hospital where he was declared dead.

3.2 In pursuance to the registration of FIR, the appellant came to be arrested on 26.11.2012. Subsequent to the complaint lodged by the complainant, the Police Officer started investigation and having found sufficient evidence against the appellant accused, submitted a charge-sheet in the Court of learned Judicial Magistrate First Class, who in turn committed the case to the Court of Sessions at Deesa, Banaskantha District having jurisdiction to deal with the offence punishable under Section 302 of the IPC.

3.3 The charge came to be framed at Exh.13 for the offence punishable under Section 302 of the IPC, which was denied by the appellant accused and, therefore, the learned Additional Sessions Court proceeded with the trial.

3.4 The prosecution examined in all 8 witnesses to prove the case. The appellant accused did not examine any witness. Further statement of the appellant accused was recorded under Section 313 of the Code. The prosecution also produced documentary evidence in the form of complaint, Panchnama of scene of offence, Panchnama of recovery of weapons etc. 3.5 The learned 4^th Additional District & Sessions Judge, Banaskantha District at Deesa after perusing and scrutinizing the evidence led before him, by the judgment and order dated 8.4.2015 found the appellant guilty of having committed offence under Section 302 of the IPC and ordered the appellant to undergo life imprisonment for a period of 20 years with remission as per law and fine of Rs.1,000/- and in default of payment of fine, simple imprisonment of three months.

3.6 Hence the present appeal.

4. Mr. Chetan Pandya, learned advocate appearing for the appellant, at the outset, would submit that it is an undisputed fact that deceased Joitabhai had expired in the incident in quest