- (1.)MR. Adil Mehta, learned advocate appearing for the accused no. 1 has stated that the accused has already undergone the sentence imposed upon him. In that view of the matter, Criminal Appeal No. 67 of 1997 has become academic.
1. 1 Criminal Appeal No. 788 of 1996 is directed against the judgement and order dated 12. 07. 1996 passed by the Additional Sessions Judge, Mehsana in Sessions Case No. 79 of 1995, whereby the accused have been acquitted of the charges leveled against them under section 302 r/w section 34 and section 323 r/w section 504 of Indian Penal Code.

(2.)THE brief facts of the prosecution case are as under:
2. 1 On 17. 12. 1994 at about 7. 00 am, while the complainant and her sister in law were collecting and dumping cow-dung, the complainant's uncle-in-law accused no. 2 came there and asked them as to why they were throwing stones. An exchange of words took place. In the meantime the father in law of the complainant came there and persuaded the accused no. 2 to stop the arguments. The accused abused them. The complainant started shouting. At that time, the deceased came out of the house. The accused no. 1 all of a sudden came with a knife from his house and gave a blow to the deceased. He succumbed to the said blow.

2. 2 Therefore a complaint with respect to the aforesaid offence was filed against the respondents with the Visnagar Police Station. Necessary investigation was carried out and statements of several witnesses were recorded. During the course of investigation, respondents were arrested and, ultimately, charge-sheet was filed against them. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.

2. 3 The trial was initiated against the respondents and during the course of trial the trial court examined the following witnesses as oral evidences: dr. Bhagwanbhai Modi Ex. 32 vimlaben Arvindbhai Ex. 35 mahendrabhai Somabhai Ex. 36 lakshmanbhai Sardarbhai Ex. 39 chhaganbhai Revabhai Ex. 42 bipinbhai Chhaganbhai Ex. 43 shivrambhai Mohanbhai Ex. 44 mahisinh Dipsinh Ex. 45 asgarali Amirali Ex. 46 bhupendra Ratilal Ex. 50

2. 4 The prosecution also exhibited the following documentary evidences: report for inquest Mark 27/1 police station papers Ex. 28-31 p. M. Note Ex. 33 medical certificate Ex. 34 panchnama of scene of offence Ex. 37 panchnama of blood stained clothes Ex. 38 panchnama of seizure of weapon Ex. 40 inquest panchnama Ex. 41 report of civil surgeon Ex. 47 complaint Ex. 51 letter to register complaint Ex. 52 muddamal outward note Ex. 53 letter by FSL Ex. 54 letter by FSL Ex. 55 serological report Ex. 56

2. 5 At the end of trial, after recording the statement of the accused under section 313 of Cr. P. C. , and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the respondents of all the charges leveled against them by judgement and order dated 12. 07. 1996.

2. 6 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellant State has preferred the present appeal.

(3.)IT was contended by Mr. Kodekar, learned APP that the judgement and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and looking to the provisions of law itself it is established that the prosecution has proved the whole ingredients of the evidence against the present respondents. Learned APP has also taken this court through the oral as well as the entire documentary evidence.
3. 1 Mr. Kodekar has submitted that the trial court has wrongly applied exception 4 to section 300 as under exception 4, it would be a part of requirement that during a hot discussion between the parties, the accused should have been a sudden fight in the heat of passion upon a sudden quarrel.