ANANT S. DAVE, J.

1. Criminal Appeal No. 1726 of 2017 has been filed by the original accused, three in number, under Section 374 of the Code of Criminal Procedure,1973. By a judgment and order dated 12.10.2017 passed by the Learned Additional Sessions Judge, Devbhumi Dwarka at Khambhalia, in Sessions Case No. 67 of 2012, the appellants have been held guilty for the offences punishable under Sections 302 and 114 of the Indian Penal Code and ordered to undergo rigorous imprisonment for life and fine of Rs.1,000/-, in default, to further undergo rigorous imprisonment for one month.

2. This appeal was admitted by this Court on 22.12.2017. Record and Proceedings were called for from the trial court and they are with the Court for the benefit of perusal. Pending the appeal, the accused/appellants moved Criminal Miscellaneous Application No. 1 of 2018 in the pending appeal, under Section 389 of the Code of Criminal Procedure, 1973 to suspend the order of sentence passed in the Sessions Case No. 67 of 2010, by the learned Additional Sessions Judge. In the said application for suspension, learned advocate Mr. A.D. Shah appearing for the appellants made a submission which was recorded by the order dated 17/09/2018. The order being self-explanatory, is reproduced as under:

“Learned counsel for the applicant while arguing this application for suspension of sentence and grant of bail, at this stage, would contend that number of injuries may be 20, but none of the above is likely to cause death in ordinary course. Our attention is invited to medical case record and testimonies of concerned doctor, including nature of injuries so deposed by PW19 Exh.88.

No doubt, cause of death is haemorrhage due to multiple injuries. Learned counsel for the applicant placing reliance on the decisions of the Apex Court in the cases of [1] Bhoopat Singh v. J.B.Katariya, (2009) 17 SCC 484 and [2] Karriya v. State of Karnataka, (2002) 6 JT 582 submitted that in the context of multiple injuries and the appellants - accused did not intend to cause death of deceased, conviction of appellant under Section 302 be converted into conviction under section 304 Part II. It is further submitted that the present applicant has already undergone sentence for 6 years.

Learned APP to consider possibility of hearing Criminal Appeal No.1726 of 2017 finally, otherwise this application for suspension of sentence shall be proceeded further.

If record & proceedings is not received, same may be called for from the concerned trial court by the next date of hearing and the Registry is directed to take necessary action in this regard.

Stand over to 04.10.2018.”

2.1 Looking to the submission of the learned counsel for the appellants, that in the context of multiple injuries and that the appellants-accused did not intend to cause death of deceased, conviction of the appellants under Section 302 IPC be converted into conviction under Section 304 (Part II) IPC and the fact that the appellants have already undergone a sentence for six years, we have proceeded to hear the appeal finally, keeping in context, the medical evidence on record and testimonies of the doctors, including the nature of injuries so deposed by them, inflicted by the appellants, on the deceased.

Case of the Prosecution

3. Jusab Abubhai Shedha P.W.25, Ex. 124 is the complainant. He is the cousin of the deceased Saddam Hussain. According to the complainant, he, along with Sadam, on 06.06.2012 at 8.00 in the morning left home together for grazing their livestock. At 9.30 AM, while they were at the field, Accused No. 3 - Irfan Osman also came over with his livestock for grazing. Both Irfan and his cousin were playing games on the mobile phone and while so playing, entered into an altercation. The complainant, Jusab was standing at a distance, not too very far. Irfan left the place and returned after about ten minutes wi