ORAL JUDGMENT

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

1. By way of the present appeal under section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short), the appellant – original accused No. 1 has challenged the judgement and order dated 30.08.2013 passed by learned Additional Sessions Judge, Bhavnagar in Sessions Case No.196 of 2012, by which, the appellant has been convicted for the offences punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo life imprisonment and has been imposed a fine of Rs.2000/- and in default of payment of fine, to undergo one year rigorous imprisonment as well as conviction under Section 135 of the Gujarat Police Act and has been convicted for one year rigorous imprisonment and has been imposed a fine of Rs.1,000/- and in default of payment of fine, to undergo rigorous imprisonment of three months.

2. The appeal came to be admitted on 23.01.2014. Record and proceedings have been tagged along with paper book.

3. Short facts emerge from the record of the appeal are as under:

3.1. One Ashokbhai Bhavsangbhai Solanki, resident of village Ishwariya, Taluka Shihor, District Bhavnagar lodged an FIR bearing C.R.No.I-28 of 2012 with Songadh Police Station, District Bhavnagar against five accused for the offences punishable under Sections 302, 147, 148, 149, 447, and 504 of the Indian Penal Code as well as under Section 135 of the Gujarat Police Act. The accused persons came to be arrested by the Investigating Officer and on completion of investigation, charge sheet was filed before learned Magisterial Court. Since the offences are triable by learned Sessions Judge, learned Magistrate committed the case to learned Sessions Judge.

3.2. By an order dated 31.12.2012, charge came to be framed by

3rd Additional Sessions Judge, Bhavnagar vide Exh.6. Charges levelled against the accused are denied by each of the accused and therefore, the Public Prosecutor proceeded with the trial. In all, 14 witnesses were examined by the prosecution to prove the case whereas the defence examined only two witnesses in support of the say of all the accused that they have been wrongly implicated in the crime. Further statement under Section 313 of the Code was recorded. Each of the accused persons denied the case put forward by the prosecution.

3.3. Learned Sessions Judge, after considering the oral as well as documentary evidence like panchnama, map, postmortem note etc., acquitted rest of four accused persons from the charges levelled against them; however, present appellant – original accused No. 1 came to be convicted as stated herein above.

3.4. Hence, this appeal.

5. Mr. Param Buch, learned advocate for Mr. Satyam Chhaya learned advocate appearing for the appellant, at the outset, would submit that the appellant accused does not want to challenge his involvement in the crime but would submit that it is not a case of murder as defined under Section 299 and 300 of the IPC but the case falls under exception 4 of Section

304 of the IPC which is treated as culpable homicide not murder and therefore, his case may be converted under Section 304 of the IPC.

6. Mr. Buch, learned advocate for the appellant, by taking us through the deposition of the complainant namely Ashokbhai Bhavsangbhai Solanki, which has been recorded at Exh. 37, would submit that his four brothers are residing in the same area (faliya), wherein, the appellant and his brothers are also residing adjacent to the house of the deceased and his brother’s houses. He would submit that the incident had taken place at around 8.30pm on 04.07.2012, which began with the altercation between the parties and continued to 35 to 40 minutes. He would submit that as per the case of the prosecution as well as per the case of the complainant, who happens to be real brother of the deceased, the appellant and his brothers are residing adjacent to the deceased. He would submit that as per the deposition, the incident had