JUDGMENT :

K.S. Jhaveri, J.

Both these appeals have been preferred by State against the said judgment and order dated 25.11.1994 passed by the Additional City Sessions Judge, Court No. 14, Ahmedabad in Sessions Case No. 233 of 1993. Criminal Appeal No. 197 of 1995 is filed seeking enhancement of the sentence imposed upon the accused no. 1 under section 304 (Part I) of Indian Penal Code. The original accused no. 1 is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.500/-, in default, rigorous imprisonment for one month under section 376 of IPC. Criminal Appeal No. 198 of 1995 has been filed against the acquittal of the accused no. 1 & 2 under Section 302 of Indian Penal Code.

2. It is required to be noted that the paper book is not ready and therefore we have called upon the R & P and we have perused the same. On a perusal of records, it is borne out that the appeal filed by the accused - Udesingh Umedsingh had become academic as the accused had already undergone the sentence imposed upon him. In that view of the matter, Criminal Appeal No. 1116 of 1994 was disposed of as having become infructuous by this Court vide order dated 04.05.2015.

3. It is the case of the prosecution that on 17.05.1993 the deceased and accused persons had a verbal argument. Thereafter, while original accused no. 2 & 3 caught held the deceased, original accused no. 1 hit the deceased by way of hammer as a result of which the deceased succumbed to injuries. A complaint was therefore lodged by the complainant. Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the Court of Sessions.

3.1 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Trial was initiated against the accused and during the course of trial the prosecution examined around 10 witnesses and also relied upon certain documents as documentary evidences which have been perused by us.

3.2 At the end of the trial and after recording the further statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted accused no. 1 as mentioned aforesaid and acquitted original accused no. 2. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court the State has preferred the present appeals against the acquittal and for enhancement.

4. Ms. C.M. Shah, learned APP appearing for the State has submitted that the trial court committed an error in imposing lesser punishment upon the accused under Section 304 (Part I). It was contended by Ms. Shah, that the judgment and order of the Sessions Court is against the provisions of law; the Sessions Court has not properly considered the evidence led by the prosecution and thereby imposed lesser sentence which is required to be enhanced. Learned APP has also taken this court through the oral as well as the entire documentary evidence.

4.1 Ms. Shah further submitted that the trial court ought to have convicted the accused under Section 302 of Indian Penal Code. She submitted that the trial court ought to have taken into account the deposition of the eye witnesses and ought to have imposed maximum sentence upon the accused under Section 302 of Indian Penal Code.

5. As a result of hearing and perusal of the records, more particularly, the medical evidence, deposition of witnesses and the FSL report it is clear that the case of the prosecution has been proved beyond reasonable doubt. However, it is also to be borne in mind that from the panchnama of recovery of weapon and the FSL report, blood stains were found on the muddamal weapon. From the evidence of the doctor who performed the post mortem, it is clear that the injuries sustained by the deceased were possible by way of muddamal weapon and the said injuries were s