1. The State has preferred the present appeal under S.378 of Code of Criminal Procedure against the judgment and order dated 26.09.1995 passed by the Additional Sessions Judge, Bharuch in Sessions Case No. 73 of 1995. By the impugned judgment and order, two accused persons who were tried for the charge of offence under S.302 read with S.34, IPC and S.135 of the Bombay Police Act, were acquitted from the charge of S.302 read with S.34 of IPC, but convicted for offence under S.304, Part - II of IPC.

2. We are informed that respondent No.2 has expired and hence, the appeal stands abated qua respondent No.2 and so far as respondent No.1 is concerned, no appeal has been preferred against conviction and apparently, has undergone sentence. The case of the prosecution on the basis of the evidence of eye - witnesses, it is coming out on record that when two eye - witnesses; PW - 3 and PW - 4 have also given version, where this witnesses along with the deceased just came across the accused persons and when they questioned them about previous incident, present incident occurred, where allegedly respondent No.1 was attributed with an act of giving inflicting knife blow on the chest.

3. By order dated 27.04.2022, the Court has recorded that respondent No.2 - Abbas Mahmed Adam Banda has expired on 23.05.1997 and thereafter upon production of the death certificate and its verification by order dated 13.06.2022, the appeal stood abated qua respondent - accused No.2. Respondent - accused No.1 who was a 19 years of age has already undergone the sentence inflicted by the impugned judgment and order and as per the jail report produced, the sentence was undergone on 13.08.1996.

4. The incident had taken place on 23.11.1994 on account of a dispute between the two sides for digging up the cricket pitch by the accused side, which was later on confronted by the complainant side and at that time, two accused persons in feat of rage, accused No.2 caught hold of deceased Rashid and accused No.1 delivered blow with knife on vital part of the body which has resulted into death of Rashid and in connection with which in an FIR being I - C.R.No.76 of 1994 came to be registered with Vedach police station.

5. Upon due investigation, the respondent accused persons were arrested and charge sheeted and upon completion of necessary procedure of providing with the documents of charge sheet under S.209 of the Code of Criminal Procedure, the case came to be committed by Judicial Magistrate First Class, Jammsura vide order at Exh.7 to the Session Court.

6. The State has preferred the present appeal, contending inter alia. that despite the State having produced sufficient relevant evidence to establish case under S.302 of the IPC, erroneously the trial Court has convicted both the accused only for the offence under S.304, Part - II of the IPC.

7. Learned Additional Public Prosecutor submitted that considering the nature of injury sustained by the deceased on the vital part of the body that is piercing injury in the heart, the intention of respondent accused was clearly established and that the accused has caused such an injury knowingly, which would result in death of the deceased.
7.1 It is submitted that from the evidence of the eye witness himself who was present when the incident took place and his presence at the time and place of incident is not in doubt, The prosecution was able to establish the motive and the previous altercation which led to the present assault and therefore also the intention of respondent accused to commit murder was clear.
7.2 Learned APP has taken this Court through the evidence of eyewitness PW - 3 Abbasbhai Ismailbhai Akhadawala at Exh. 24 as well as eyewitness PW - 4 Yunus Ibrahim at Exh. 25. Learned APP has thereafter taken this Court through the evidence of panch witness PW - 6 Laxmanbhai Mohanbhai Parmar at Exh.27 in whose presence the weapon knife was discovered and submitted that the discovery panchnama was proved and therefore, the