- (1.)CRIMINAL Appeal No. 2167 of 2008 preferred by the accused is directed against the judgement and order of conviction dated 28. 04. 2008 passed by the Additional Sessions Judge and Presiding Officer, khambhaliya in Sessions Case No. 71 of 2004, whereby the accused nos. 1 to 3 have been convicted of the charges leveled against them under section 304 part I and 447 r/w section 34 of Indian Penal Code. The original accused nos. 1 and 2 have also been convicted under section 135 of B. P. Act.
1. 1 Criminal Appeal No. 1941 of 2008 preferred by the State is against the judgement and order of acquittal dated 28. 04. 2008 passed by the Additional Sessions Judge and Presiding Officer, Khambhaliya in sessions Case No. 71 of 2004, whereby the accused have been acquitted of the charge leveled against them under section 302 of Indian Penal Code. 1. 2 The accused are ordered to undergo rigorous imprisonment for ten years and fine of Rs. 5000/- in default to undergo simple imprisonment for one year for offence under section 304 part I r/w section 34 of Indian Penal Code and simple imprisonment for a period of three months and fine of Rs. 500, in default to undergo simple imprisonment for seven days for offence under section 447 r/w section 34 of Indian penal Code. The accused nos. 1 and 2 are further ordered to undergo simple imprisonment for six months, and fine of Rs. 200/- in default to undergo simple imprisonment for seven days for offence under section 135 of B. P. Act.

(2.)IT is the case of the prosecution that on 06. 05. 2004, at around 8. 00 am the complainant in his field was carrying out work pertaining to constructing water tank. The complainant, his wife, son, daughter-in-law, grandsons and a mason Nathu Jutha were present at that time. At around 10. 00 am the accused persons came to his field and started asking as to why Rambhai had stopped the work in the accused's field. An altercation ensued and the accused got excited. At that time, accused nos. 1 and 2 took out knives from their custody and the accused nos. 3 and 4 caught hold of the complainant's son. The accused no. 2 stabbed the complainant's son on the left chest and the accused no. 1 stabbed the complainant's son on the left side of his abdomen. The complainant and the mason intervened and tried to rescue the complainant's son but accused no. 1 pushed the complainant and accused no. 3 inflicted a blow upon the head of the mason Nathu with a wooden plank which was available nearby. The wife, daughter-in-law and grandsons of the complainant started screaming and therefore one Shri Jeshabhai parbatbhai came running. The accused therefore ran away and escaped. The victim complainant's son was taken to the government hospital but he was declared dead on arrival.
2. 1 Thereafter the offence was registered against the present respondents-accused with Kalyanpur Police Station as C. R. No. I-31/2004 for the offences u/s 302, 323, 447, 504 r/w section 34 of Indian Penal code and u/s 135 of B. P. Act and after their arrest and necessary investigation, chargesheet was submitted against the accused. Thereafter, as the case was exclusively triable by the Sessions Court, the same was committed to the Sessions Court.

2. 2 The trial was initiated against the accused and during the course of trial the prosecution examined the following 22 witnesses as oral evidences:
JUDGEMENT_249_GHJ22_2009Html1.htm 2. 3 The prosecution also exhibited the following 43 documents as documentary evidences: JUDGEMENT_249_GHJ22_2009Html2.htm
2. 4 At the end of trial, after recording the statement of the accused, and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge passed the judgement and order dated 28. 04. 2008.

2. 5 Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the accused as well as State have preferred the present appeals.

(3.)MR. P. M Thakkar, learned Senior Counsel appearing for Mr. Joshi for the accused has submitted that a cross complaint was filed on the date of the incident. He has submitted that the accused Rajshi Vira had received bleeding injury on his forehead and stitches were required to be taken by the Doctor. The complainant has not mentioned the said injury and therefore there is a serious infirmity in the case of the prosecution.
3. 1 Mr. Thakkar has submitted that even the prosecution witnesses have not given any evidence to indicate as to how the accused sustained injuries in the very incident. The earlier version given by the prosecution witnesses before the doctor was that there was a free fight and thereafter a go by was given to this theory. The prosecution witnesses have unfolded only that part of evidence or story which would connect the accused with the crime in question and have suppressed their own involvement in the incident.

3. 2 Mr. Thakkar has further submitted that the genesis of the entire incident in question is not established by the prosecution. The motive and intention of the accused is not established and therefore it was not appropriate on the part of the trial court to convict the accused. In these circumstances the impugned judgement and order of conviction is erroneous and against the provisions of law and therefore the same deserves to be quashed and set aside.

3. 3 Mr. Thakkar in support of his submissions has relied on the decisions of the Apex Court in the cases of K. RAMAKRISHNAN unnithan VS. STATE OF KERALA REPORTED IN AIR 1999 SC 1428 AND ABDULKADAR MANSURMIYA MALEK VS. STATE OF gujarat REPORTED IN 1998 SCC (CRI) 569. He has also relied upon an unreported decision dated 20. 07. 2009 PASSED BY THIS COURT IN criminal APPEAL NO. 1444 OF 2006.

3. 4 In the alternative, Mr. Thakkar has submitted that considering the aforesaid decisions of the Apex Court as well as this court, the sentence awarded to the accused is on the higher side and therefore the same may be reduced if not quashed. He has submitted that even if the case of the prosecution is accepted, it emerges that the accused nos. 1 and 2 were armed with knives and therefore sentence of ten years is excessive. He has submitted that as per the case of the prosecution, the accused no. 3 was unarmed but his alleged role was only to the extent that he caught hold of the deceased. Mr. Thakkar has submitted that the sentence awarded to accused no. 3 deserves to be quashed and set aside.

3. 5 He has submitted that even if the prosecution case is accepted in toto, the blow inflicted upon by each of the accused to the deceased is single and therefore the trial court ought to have applied section 304 part II of the Indian Penal Code. He has submitted that even on that ground the judgement of the trial court requires to be altered.