JUDGMENT

Anish Dayal, J. This judgment and order shall dispose of the following appeals assailing common judgment and order passed by the learned Trial Court dated 31st August, 2020 (order of conviction) and 8th September, 2020 (order on sentencing):

(i) Criminal Appeal 27/2021 - Kamlesh vs. State, filed on behalf of Kamlesh wife of Late Shri Suraj Mal, resident of Delhi under Section 374(2) Cr.P.C. arrayed as Accused No.3.

(ii) Criminal Appeal 997/2021 - Sunil vs. State, filed by Sunil Kumar S/o Shri Rajinder, resident of Haryana under Section 374(2) Cr.P.C. arrayed as accused No.4.

(iii) Criminal Appeal 566/2020 - Yogesh @ Matru vs. State, filed by Yogesh S/o of Shri Surender Kumar, resident of Delhi under Section 374(2) Cr.P.C. arrayed as accused No. 1.

(iv) Criminal Appeal 604/2020 - Gaurav vs. State, filed by Gaurav S/o Shri Krishan Kumar, resident of Delhi under Section 374(2) Cr.P.C. arrayed as accused No. 2.

(v) Criminal Appeal 616/2020 - Lakhmi Chand vs. State, filed by Lakhmi Chand S/o Late Shri Sher Singh, resident of Delhi under Section 372 proviso Cr.P.C. as father of the deceased.

2. By the said judgment and order of the learned Trial Court accused No. 1 to 4 were held guilty and convicted under Sections 304 (Part I), 308 and 325, read with Section 34 of IPC and the following sentences were passed:

(i) for Section 304(Part I)/34 IPC - life imprisonment,

(ii) for Section 308/34 IPC - 7 years imprisonment,

(iii) for Section 325/34 IPC - 5 years imprisonment.

(iv) In addition, a fine of Rs.5,000/- for each accused in respect of each of the offences stated above and six months simple imprisonment in default of payment of fine.

(v) Gaurav, accused No.2 was additionally sentenced to imprisonment of six months for offence under Section 323 IPC.

(vi) Sentences awarded to the accused were to run concurrently.

3. While the four accused had filed appeals against the above mentioned impugned judgment and order for conviction and sentence, pleading and praying for acquittal, the appellant in Criminal Appeal 616/2020 prayed for setting aside the impugned judgment and order passed by the learned trial court and to modify the conviction from Section 304 (Part I)/34 IPC to Section 302/34 IPC and from Section 308/34 IPC to Section 307/34 IPC.

4. We have heard the counsel for all the appellants and the State on various dates.

5. The accused have been convicted for causing death of victim Umesh Kumar and attempting to murder victims viz. Sunil and Vikas Anand and causing simple hurt to Sanjay and Aman in furtherance of common intention on 15th August, 2013 at about 02:05 pm in gali in front of House No.253, Gali No.13, Mann Singh Nagar, Anand Parbat, Delhi.

6. FIR No.146/2013 was registered at PS Anand Parbat on 15.08.2013 and charge sheet was later filed against all the accused. Charges were framed for offences punishable under Sections 302, 307, 323 read with Section 34 IPC. The matter was committed for trial before the Sessions Court and upon pleading not guilty by the accused, evidence was recorded. The prosecution examined total of 29 witnesses, statement of accused under Section 313 Cr.P.C. was recorded and the accused persons examined 4 witnesses in their defence.

The Incident

7. As per the prosecution, the incident leading to the commission of offences occurred in the afternoon of Independence Day of year 2013 i.e. 15th August, 2013 at around 2 pm. Complainant Sanjay, being father of Aman, gave Rs.100/- to him to purchase kites but while Aman was on his way in the street, the money was snatched by their neighbour Gaurav resulting in Aman returning back to his father crying and complaining. Sanjay accompanied Aman to the street downstairs where Gaurav was standing with his brother-in-law Sunil and cousin Yogesh and asked them the reason for snatching the money from Aman. Thereupon, Gaurav along with Yogesh and Sunil started to misbehave and beat Sanjay and Aman. On hearing their cries, Sunil (real brother of Sanja