G. T. NANAVATI, K. J. VAIDYA, J.

( 1 ) THESE two Criminal Appeals one by the State of Gujarat being Criminal Appeal No. 520 of 1988 (Acquittal) in the matter of offences under Secs. 3 (2) 323 326 read with 34 of the I. P. C. against the respondent-accused viz. (i) Panubhai @ Paniya Kolaji; and (ii) Premji Gora; and another by the aced. No. 1 only being Criminal Appeal No. 5 of 1989 against the impugned order of conviction and sentence under Secs. 304-II 325 read with 34 of the I. P. C. are directed against the common judgment and order dated 18 rendered in Sessions Case No. 20 of 1988 by the learned City Sessions Judge IInd Court. Ahmedabad. 1. 1 The learned Sessions Judge which convicting each of the accused for offences under Secs. 304-II 325 read with Sec. 34 of the I. P. C. has awarded the sentences as tabulated hereunder: @@@ Sr. Name of the Convicted Substantive Fine In-default No. accused for offences sentence Rs. to undergo 1 Panubhai @ (i) under Sec. R. I. for our Further R. I. Paniya 304-II r. w. s. years 25/- for 7 days. Kolaji 34 IPC (ii) under Sec. R. I. for one 325 r. w. s. 34 years -do- -do- IPC 2 Premji (i) under Sec. R. I. for 3 25/- Further R. I. Gorabhai 304-II r. w. s. years for 7 days 34 IPC (ii) under Sec. R. I. for 6 325 r. w. s. months -do- -do- 34 IPC @@@1. 2 The substantive sentences awarded on different Counts against each of the accused were directed to run concurrently. 1. 3 Both the accused were declared not guilty for the offence under Sec. 302 r. w. s. 34 of the I. P. C.

( 2 ) AS stated above since both these Appeals arise out of the common judgment and order they are heard together and disposed off by the common judgment.

( 3 ) THE prosecution case as briefly summed up and reflected in charge Exh. 3 was that the incident in question wherein Naresh came to be murdered and his father Chandrasen received grevious hurt took place on 18-9-1987 at about 8-15 p. m. near Shorabji Compound situated at Old Wadaj Ahmedabad. The two respondents-accused herein along with one another accused Tagia (since deceased) armed with pipes and sticks assaulted Naresh and his father Chandrasen as a result of which Naresh ultimately succumbed to injuries in the Hospital on 20 at 12-15 a. m. The injured Chandrasen thereafter give a complaint in the Hospital naming the accused as assailants. He also named Tagia as one of the assailants. Tagia who happened to be the brother of the accused No. 1 Panubhai as stated by P. S. I. U. N. Malvi committed suicide on 23-9-1987 at the house of the sister of his mother. It further appears that P. S. I. Barad arrested accused Nos. 1 and 2 on 21-9-1987 and handed over them at Naranpura Police Station at 11-45 a. m. After the investigation was over the accused persons came to be charge-sheeted for offences under Secs. 302 325 326 read with Sec. 34 of the I. P. C. and under Sec. 35 (1) of the Bombay Police Act to stand trial before the Sessions Court.

( 4 ) AT the trial the accused pleaded not guilty and claimed to be tried. in defence they pleaded that at the relevant time they were at a different places in Ahmedabad for securing and attending their respective works. They returned home at about 10-00 to 10-30 p. m. In defence though the accused have pleaded alibi none of them have either examined themselves or lead any defence evidence in support of their case.

( 5 ) IN order to bring home the charge against the accused the prosecution in all has examined 13 witnesses. . . . . . . . . . . . . . . . . . . . .

( 6 ) THE trial Court after duly appreciating the prosecution evidence and defence version convicted and sentenced the accused as stated earlier in para 2 of this judgment and hence aggrieved by the same these appeals.

( 7 ) MR. B. S. Supehia and Mr. B. D. Dholakia learned Advocates (appointed) for the accused while challenging the impugned judgment and order of conviction and sentence have taken

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