K.S.JHAVERI, J. - (1.) THE appellants have preferred the present appeal challenging the judgement and order dated 30.12.2006 passed in Sessions Case No. 41 of 1998. The appellants ­ original accused were convicted for the offences punishable under sections 302, 324, 323 & 504 read with section 114 of Indian Penal Code as well as sections 37(1) & 135 of B.P. Act. 1.1 The appellants were ordered to undergo the following sentence : (i) Life imprisonment and fine of Rs. 10,000/ - each, in default, simple imprisonment for one year for offence under section 302 r/w 114 of Indian Penal Code; (ii) Rigorous imprisonment for three years and fine of Rs. 3,000/ - each, in default, simple imprisonment for three months for offence under section 324 r/w 114 of Indian Penal Code; (iii) Rigorous imprisonment for one year and fine of Rs. 1,000/ - each, in default, simple imprisonment for one month for offence under section 323 r/w 114 of Indian Penal Code; (iv) Rigorous imprisonment for two years and fine of Rs. 2,000/ - each, in default, simple imprisonment for two months for offence under section 504 r/w 114 of Indian Penal Code; (v) Rigorous imprisonment for three months and fine of Rs. 500/ - each, in default, simple imprisonment for fifteen days for offence under sections 37(1), 135 of B.P. Act. The accused were given benefit to set off. All the sentences were ordered to run concurrently.
(2.) IT is the prosecution case that on 05.11.1997, at around M, a verbal fight took place between the accused and one Kantaben Govindbhai (hereinafter referred to as 'the deceased') near the house of Govind VashraM Harijan with regard to the issue of parking of autorickshaw. It is the prosecution case that accused no. 3 inflicted knife blows upon the deceased thereby causing her death and also inflicted knife blows on the stoMach of P.W. 8 - Nareshbhai thereby causing grievous injury. On the other hand, accused no. 1 inflicted injury on the right hand of P.W. 10 ­ Gani Abdulbhai by way of iron pipe and accused no. 2 gave fist blows to the coMplainant ­ Govindbhai Harijan. 2.1 The appellants - accused caMe to be arraigned for coMMitting Murder of Kantaben Govind. The investigation being coMplete, the charge -sheet was laid against the present appellants. The case being exclusively triable by the Court of Sessions was coMMitted to the Court of Sessions, which was given nuMber as Sessions Case No. 41/1998. 2.2 Thereafter, the Sessions Court fraMed the charge below Exh. 1 against the appellants for coMMission of the offence under sections 302, 323,324 and 504 read with section 114 of IPC and under secs. 37 (1) and 135 of the BoMbay Police Act. The appellants -accused have pleaded not guilty and claiMed to be tried. 2.3 To prove the case against the present appellants, the prosecution has exaMined the following witnesses whose evidence is read before this Court by the learned advocates for the appellants : JUDGEMENT_125_CRLJ_2014.htm 2.4 The prosecution also exhibited the following docuMents as docuMentary evidences: JUDGEMENT_125_CRLJ_20141.htm 2.5 At the end of the trial and 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 Additional Sessions Judge convicted the appellants as Mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgeMent and order passed by the Sessions Court the appellants have preferred the present appeal. 3. Mr. AMirkhan Pathan, learned advocate appearing for Mr. A.M. Dagli for the appellants subMitted that the trial court has coMMitted an error in passing the iMpugned judgMent and order inasMuch as it failed to appreciate the Material on record in its proper perspective, and hence, the present appellants deserve to be given benefit of doubt and be acquitted. 3.1 Mr. Pathan subMitted that the trial court ought to have considered the fact that there was a scuffle followed by free fight. He subMitted that the death was caused because of a single blow of knife and that in the very saMe incident the present appellants also suffered grievous injuries. He subMitted that one of the appellants got stitches on his head and that the other appellant was adMitted in the hospital as an indoor patient. 3.2 Mr. Pathan further subMitted that the eye witnesses who were exaMined are near relatives of the deceased and are therefore interested witnesses. He also subMitted that no blood stains were found froM the place of offence or the autorickshaw in which the deceased was stated to have been taken to hospital. 3.3 Mr. Pathan also subMitted that even if the case of the prosecution is accepted, the appellants no. 1 and 2 have not inflicted any knife blows on the deceased so as to cause her death. He subMitted that even the injuries which are alleged to have been caused by theM are only superficial in nature which could even have been self inflicted. 3.4 In the alternative, Mr. Pathan subMitted that even if the case of the prosecution is accepted, considering the fact that the offence was coMMitted in the spur of MoMent, this Court May consider the case of appellant no. 3 under section 304(I)of the Indian Penal Code. He has relied upon a decision of the Apex Court in the case of Ankush Shivaji Gaikwad vs. State of Maharashtra, reported in 2013(6) Scale 778, and subMitted that this Court May increase the aMount of fine or coMpensation in lieu of the sentence awarded considering the provisions of Section 37 of Cr.P.C.
(3.) ON the other hand, Ms. C.M. Shah, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeals deserve to be dismissed.;