J.B. PARDIWALA, J.

1. As the captioned Criminal Confirmation Case as well as the Criminal Appeal arise from a self-same 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 bounden 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 v. Brij Lal and others, (1966) AIR SC 1631)

CRIMINAL APPEAL NO.474 OF 2019 :

3. This Appeal is at the instance of a convict lady accused and is directed against the judgment and order of conviction and death sentence passed by the 2nd Additional Sessions Judge, Gandhidham, Kachchh, dated 15th March 2018 in the Sessions Case No.31 of 2017.

4. The appellant was put on trial in the court of the 2nd Additional Sessions Judge, Gandhidham, Kachchh, for the offences punishable under Sections 302, 307 of the Indian Penal Code 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 and 307 of the Indian Penal Code and Section 135 of the Gujarat Police Act. The trial court, having regard to the serious nature of the offence being one of double murder, sentenced the appellant to death. The appellant also came to be sentenced to rigorous imprisonment for a term of five years with fine of Rs.2,000-00 for the offence punishable under Section 307 of the Indian Penal Code.

THE CASE OF THE PROSECUTION :

5. The brother of the appellant, namely Vijaybhai Kasturbhai Kunvariya (Devipujak), lodged an FIR at the A-Division Police Station, Gandhidham, Camp Rambaug Hospital, Adipur, dated 17th February 2017 (Exh.31), which reads as under :

"Exhibit-31
Sessions Case No.31/17
Sd/-(Illegible)
Additional Sessions Judge,
Gandhidham-Kachchh
7th February, 2018
Date: 17/02/2017
My name is Vijaybhai S/o Kasturbhai Kunvariya (Devipujak), Aged: 30 years, Occupation: Hawker selling old clothes, Residing at: Kuvar, Ta-Shankheshwar, Dist-Patan, At present residing at: Sathavara Vas, Navi Sundarpuri, Gandhidham, Mobile No.85119 29469.
Upon being personally asked, I hereby state the fact of my complaint that at present, I have been residing with my parents, brother and sisters at the above mentioned address and earn my livelihood by selling old clothes. My father Kasturbhai Nanjibhai Kunvariya also does the business of selling of clothes. My mother Rajiben does the household work. We are six brothers and sisters. Kishan is the eldest one aged about 40 years, who is married and living with his family at Rajkot and doing the business in fruits. My sister Madhuben is younger than Kishor, aged about 34 years, who is a spinster and living with us. I am third in position and a spinster. My sister Aarti is aged about 25 years. My younger brother Naran is aged about 22 years and is living with me and doing the business of selling clothes. My sister Manjuben is a spinster and I do not know her exact age.
Yesterday, on 16.02.2017, we returned home from our work at 7 O'clock in the evening as per our daily routine. At that time, my mother Rajiben was scolding my sister Manju over the household chores and Manju was hurling abusive words. As the mental condition of Manju is not sound, she has been under treatment at Gandhidham and I do not know the name of the doctor and the hospital. As my sister Manju was hurling abusive words, my mother had slapp