JUDGEMENT

(Per : HON'BLE MR.JUSTICE AKSHAY H.MEHTA) 1.At the time of admission hearing of the appeal as well as considering the application under section 389 of the Code of Criminal Procedure [Cr.P.C.], it appeared to us that even prima-facie the finding given by the trial Court with regard to the appellant having committed offence under section 302 of the Indian Penal Code [for short 'IPC'] is erroneous. Hence, we have summoned the record and proceedings from the trial Court by our order dated 8/9/2004. Mr. MM Tirmizi, learned advocate appearing for the appellant has also supplied to the Court as well as to the otherside copies of the relevant evidence for ready reference. With the consent of Mr. MM Tirmizi, learned advocate for the appellant and Mr. PR Abichandani, Ld. APP for the State, we have taken up this matter for final hearing today.

2.According to the prosecution, the incident took place on 9th March, 2001 at about 10.00 p.m. When the complainant was watching television on the second floor of his house, at about 12.00 mid night somebody called him from the front yard of his house and that person informed the complainant that his brother Rasidk