- (1.)SOLE appellant ('the accused' for short) was charged and tried by the learned Additional Sessions Judge, Vadodara ('the trial Court' for short) for the offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) and under Section 135 of the Bombay Police Act ('BP Act' for short) in Sessions Case No.41 of 2000 on the accusation that he has committed murder of his sister -in -law Nankiben, in a very petty and trifle dispute of not lending money by her to him. At the end of the trial, the accused was found guilty of the offences with which he was charged and, therefore, the trial court vide judgment and order dated 14.9.2000 convicted him for the said offences and sentenced to imprisonment for life and fine of Rs.1,000/ - i.d., RI for six months for the offence under Section 302 IPC and RI for three months and fine of Rs.100/ - i.d., RI for ten days for the offence under Section 135 of the BP Act.
1.1. Aggrieved thereby the accused has filed this appeal under Section 374 of the Code of Criminal Procedure ('the Code' for short) through jail authority.

(2.)THE prosecution case as disclosed from the telephone vardhi received by P.W.10, Kantibhai Balabhai Rathwa, ASI, Karjan Police Station and unfolded during trial is as under:
2.1. Kesrisinh Samantsinh, ASI, Buckle No.1016, serving at Raopura Police Station, Vadodara City was on duty at Government Hospital, received a vardhi at 4.15 P.M., from CMO Smt. Pravinaben Thakkar to the effect that one woman named Nankiben, wife of Budhabhai Ramanbhai Vasava, aged 35 years, occupation labour work, residing at Nishaliya, Taluka Karjan, District Vadodara, had exchange of words on that day with Gordhanbhai Mathurbhai Vasava at 13.45 hours when she was doing labour work in the field of Kantibhai Ambalal Patel. The said woman was injured with a wooden log at face, head and chest and she was brought for treatment and was under treatment at that time. Her condition was serious. The said telephone vardhi is at Ex.23. The said vardhi was registered by P.W.10, Kantibhai Balabhai Rathwa, ASI of Karjan Police Station, vide CR No.229 of 1999 for commission of the offence under Section 325 IPC. During the course of treatment, Nankiben died in SSG Hospital, Vadodara, therefore, offence of Section 302 was added.

2.2. Thereafter PW 13, Amrutlal Ramjibhai Chaudhari, PSI took over the case and started investigation. He went to SSG Hospital, Vadodara and held inquest on the dead body of Nankiben, sent the dead body for post mortem examination and recorded statements of witnesses.

2.3. After that the investigation was transferred to P.W.14, Moinuddin Sirajuddin Shaikh, who has drawn panchnama of the scene of offence, collected sample earth and control earth from the place of offence, arrested the accused in presence of panchas and recovered clothes worn by the accused which was stained with blood. During the course of the investigation, the accused has shown his willingness to show the wooden log used for commission of the offence and on the basis of the willingness shown by the accused, he has recovered the wooden log stained with blood from the place which was shown by the accused in presence of panchas and drawn discovery panchnama as per Section 27 of the Evidence Act. He thereafter sent the muddamal clothes as well as the wooden log having blood stains to FSL for chemical analysis.

2.4. On receipt of the post mortem report as well as FSL report and as sufficient incriminating evidence was found against the accused, he filed charge sheet against the accused in the Court of learned JMFC, Karjan.

2.5. As the offence under Section 302 IPC is exclusively triable by a Court of Sessions, the learned JMFC, Karjan committed the case to the Sessions Court, Vadodara.

2.6. The learned Additional Sessions Judge, Vadodara to whom the case was made over for trial, framed the charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried and thereupon he was put to trial by the trial court in Sessions Case No.41 of 2000.

2.7. To prove the culpability of the accused, the prosecution has examined 14 witnesses consisting of the complainant - husband of the deceased, eye witnesses, panch witnesses and investigating officer and relied upon their oral testimonies.

2.8. To prove the case against the accused, the prosecution has also produced a number of documents such as complaint, post -mortem report, FSL report, discovery panchnama, etc., and relied upon the contents thereof.

2.9. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against him and recorded his further statement under Section 313 of the Code. In his further statement, the accused denied the case of the prosecution in its entirety. He has stated that a false and concocted case has been filed against him. However, he has neither led any evidence nor did he examine any witness in support of his defence.

2.10. On appreciation, evaluation, analysis and scrutiny of the evidence on record, the trial Court came to the conclusion that Nankiben has died a homicidal death and the accused is the author of the injuries caused to the deceased with wooden log. Therefore the prosecution has successfully established the complicity of the accused for commission of murder of Nankiben. On the aforesaid finding, the trial court convicted the accused for the offence under Section 302 IPC and Section 135 of the BP Act and he has been sentenced accordingly to which reference is made in the earlier paragraphs of this judgment, which has given rise to instant appeal at the instance of original accused.

(3.)MS . Sadhna Sagar, learned advocate for the accused appointed by the Legal Aid Committee for the accused, has fairly conceded that deceased Nankiben has died a homicidal death. She has also conceded that the accused is the author of the injuries caused to the deceased. She has contended that there is inconsistency in the testimonies of eye witnesses and the medical evidence. Eye witnesses say that only a single blow was given by the accused whereas medical evidence shows five injuries on the dead body of Nankiben. According to her only one blow was given on the head of Nankiben by the accused and therefore the offence does not amount to murder but it amounts to culpable homicide not amounting to murder. According to her, there was no intention on the part of the accused to commit murder of Nankiben who is his sister -in -law. The incident had taken place on a trifle and petty matter. The accused demanded money which Nankiben refused to lend and therefore the accused suddenly got excited and inflicted a single blow with a wooden log and thereafter he ran away and he has not acted cruelly or in an unusual manner and has also not taken undue advantage. Therefore, offence is not murder but it is culpable homicide not amounting to murder punishable under Section 304 Part I or II IPC. The accused has undergone imprisonment of seven years and since the offence committed by the accused is under Section 304 Part I or II IPC, the custodial sentence undergone by him may be treated as substantive sentence. She therefore urged to allow the appeal partly qua sentence only and appropriate order in this connection may be passed.
Per contra, Mr. Mukesh Patel, learned APP for the respondent - State of Gujarat has submitted that there is no infirmity or illegality committed by the trial Court in recording the conviction and sentence against the accused. Therefore, no interference is called for in the impugned judgment and order. According to him, the accused has committed the crime in a cruel and unusual manner and he has taken undue advantage of the situation. The deceased had not given sudden provocation. The deceased simply refused to lend money and thereupon the accused has inflicted multiple injuries on the face, head and chest of the deceased. Therefore, it is a clearcut case of murder and not an offence of culpable homicide not amounting to murder. Therefore, complicity of the accused for the offence under Section 302 IPC has been duly proved. According to him, there are eye witnesses to the incident who have no reason to falsely rope in the accused in the crime. Therefore, he urged to dismiss the appeal by confirming the judgment and order of conviction and sentence recorded against the accused by the trial court.