ORAL JUDGMENT

1. The present appeal under Section 374 of the Code of Criminal Procedure, 1974, the appellant has challenged the judgment and order on conviction dated 23.12.2003 passed by the learned Additional Sessions Judge, Court No.9, Ahmedabad in Sessions Case No.308 of 2000, whereby and whereunder, while acquitting under Sections 302, 120(B) of Indian Penal Code (“I.P. Code” for short) and Section 135 of Bombay Police Act (“B.P. Act” for short) the appellant came to be convicted for the offence punishable under Section 201 of I.P. Code.

2. The prosecution case as mentioned in paragraph No.1 of the impugned judgment are as under:-

2.1. As per the case of the prosecution accused No.1 to 4 in the instant case are allegedly involved in hatching a criminal conspiracy to kill Yasinmiya Hussainmiya and in pursuance thereof, on dated 18.03.1997 between 13:00 to 13:30 hours near Sarvodaya Commercial Shopping Complex while Yasinmiya was going on his scooter for reaching to the Court, accused no.1 and one Mehamoodkhan (since deceased) had intercepted and accused No.1 gave blow with knife he had with him on the right sid of abdomen of the deceased and Mehamoodkhan, since deceased, had also run after the complainant at the relevant point of time with the knife. A complaint in that respect had been given by the complainant numbered as 1st C.R. No.00662/1997, recorded at Karanj Police Station at 15:00 hours.

3. After conclusion of investigation, the charge-sheet was filed against the appellant in the Metropolitan Court, Ahmedabad. As the offence was exclusively triable by the Court of Sessions, the learned Magistrate committed the case under Section 209 of the Code to the Court of Sessions, where the case came to be registered as Sessions Case No. 308 of 2000.

4. The charge vide Exhibit-1 for the offence punishable under Section 302 read with Sections 34, 120(B) of I.P. Code and Section 135 of B.P. Act came to be framed against the appellant and co-accused persons. It was read over to them, they pleaded not guilty and claimed to be tried. The prosecution, therefore, adduced documentary and ocular evidence to prove the guilt of the accused.

5. Upon conclusion of the trial, the statement under Section 313 of the Code of the appellant and co-accused persons came to be recorded. All the prosecution witnesses, except Police witnesses, did not support the prosecution case. The trial Court, after considering the evidence on record and arguments of learned APP and learned advocate for the appellant and other accused persons while acquitting the appellant and co-accused persons of the charge of Sections 302, 120(B) of I.P. Code and Section 135 of B.P. Act convicted the appellant alone for the offence punishable under Section 201 of I.P. Code in absence of charge thereof.

6. I have heard Mr. Maulik Nanavati, learned advocate for the appellant and Mr. K.L. Pandya, learned APP for the respondent–

State. I also perused the record of Sessions Case No.308 of 2000.

7. Mr. Maulik Nanavati, learned advocate for the appellant vehemently submitted that the learned trial Judge has committed a serious error of law in convicting the appellant for the offence punishable under Section 201 of IPC while acquitting him and other accused persons for the main offence punishable under Section 302 of IPC. It is his further submission that the learned trial Judge has misunderstood and misinterpreted various decisions of the Supreme Court to convict the appellant for the offence punishable under Section 201 of IPC without formal charge while acquitting him for the offence punishable under Section 302 of IPC. He submitted that assuming without admitting that no formal charge for the offence under Section 201 of IPC was required, even then, in the facts of the case ingredients for Section 201 of IPC are not at all attracted to convict the appellant for the said offence. He submitted that Section 201 of IPC postulates among others that the accused causes disappearance of evidenc