J. B. Pardiwala, J.

As the captioned criminal confirmation case as well as the criminal appeal arise from a selfsame judgment and order of conviction and sentence of capital punishment, those were heard analogously and are being disposed of by this common judgment and order.

2. There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounder duty of the Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied, but for that mistake. This is aptly summed up in the maxim "Actus curiae neminem gravabit." (Jang Sing vs. Brij Lal & Ors., (1966) AIR SC 1631)

CRIMINAL APPEAL NO.74 OF 2017

3. This appeal is at the instance of a convict-accused and is directed against the judgment and order of conviction and death sentence passed by the 3rd Addl. Sessions Judge, Mehsana at Vishnagar dated 29th September, 2016 in the Sessions Case No.48 of 2015.

4. The appellant was put on trial in the court of the 3rd Addl. Sessions Judge, Mehsana at Vishnagar for the offences punishable under sections 302, 307, 333, 353, 324, 504 and 506(2) of the IPC and section 135 of the Gujarat Police Act. At the conclusion of the trial, the Trial Court held the appellant guilty of the offences punishable under sections 302, 324, 307, 353, 332 and 333 of the IPC and section 135 of the Gujarat Police Act. The appellant, however, came to be acquitted by the Trial Court of the offences punishable under sections 504 and 506(2) of the IPC. The Trial Court, having regard to the serious nature of the offence being one of triple murder, sentenced the appellant to death. The appellant also came to be sentenced to rigorous imprisonment for a term of 10 years with fine of Rs. 1,000/- for the offence punishable under section 307 of the IPC. For the offence punishable under section 324 of the IPC, the Trial Court imposed sentence of three years of simple imprisonment with fine of Rs. 500/- For the offence punishable under section 332 of the IPC, the appellant came to be sentenced to undergo two years of simple imprisonment with fine of Rs. 500/-. For the offence punishable under section 333 of the IPC, the Trial Court sentenced the appellant to undergo 10 years of rigorous imprisonment with fine of Rs. 500/-. For the offence under section 353 of the IPC, the Trial Court sentenced the appellant to undergo one year of simple imprisonment with fine of Rs. 100/- and for the offence punishable under section 135 of the Gujarat Police Act, the appellant came to be sentenced to undergo six months of simple imprisonment with fine of Rs. 100/-.

The case of the prosecution

5. One Dashrathji Punjaji Thakore, a resident of Malarura, Tal: Kheralu examined by the prosecution as the P.W. No.6, Exh.43, lodged a first information report dated 15th April, 2015 at the Kheda Police Station as regards the incident. The first information report, Exh.44, reads as under;

"I, Dashrathji Punjaji Thakore, Aged: 45, Occupation: Agriculturist, Resident of Malarpura, Thakore Vas, Tal: Kheralu, District: Mehsana, Mobile No.9726030765.

Having come personally I hereby give my complaint that I am residing at the above mentioned addressed with the members of my family. I am having 2 Vigha land in the sim of village Malarpur. By doing agricultural work, I am earning my livelihood. I am residing behind my cousin brother Babuji Nathuji.

Today, at around 6:30 in the morning, I woke up and when I saw towards the house of my cousin brother Babuji, nobody was there outside the house. At that time, the wife of my nephew Nagjiji, namely, Dakshaben came outside the house. As she was bleeding from the head, I asked her as to what had happened. However, she did not tell anything. I took Dakshaben to my house and called 108 ambulance so as to take her to the hospital. Thereaft