Point of law: Though the conviction is confirmed, the conviction deserves to be altered to Section 304 Part II of the IPC and the appellant deserves to be convicted for the offence punishable under Section 304 Part II of the IPC

JUDGMENT :

Nirzar S. Desai, J.

1. The present set of appeals are preferred by appellants original accused in the respective appeals filed by them against the judgment and order of conviction dated 03.06.2014 passed by the learned Second Additional Sessions Judge, Anand whereby they have been convicted and sentenced to undergo imprisonment imposed upon them.

2. Learned advocates for the appellants and learned Additional Public Prosecutor for the respondent – State have consented the disposal of these appeals have been arisen out of the same judgment and order. Since the appellant accused of Criminal Appeal No.1115 of 2014 is in the jail since 10 years and Criminal Appeal No.818 of 2014 which has arisen from the same sessions case, both these appeals are taken up for hearing, with the consent of the learned advocates for the parties.

2.1 The appellant – original accused viz. Munno @ Habibsha Rustamsha Diwan has challenged the judgment and order of conviction and sentence dated 03.06.2014 passed by the learned Second Additional Sessions Judge, Anand in Sessions Case No.94 of 2011 whereby the present appellant accused was convicted for the offence punishable under Sections 302, 323, 324 and 506(2) of the Indian Penal Code and sentenced to undergo one month simple imprisonment for the offence punishable under section 323 of the Indian Penal Code with a fine of Rs.100/- and in default thereof he was ordered to undergo simple imprisonment for ten days. He was also sentenced to undergo simple imprisonment for three months for the offence punishable under Section 324 with fine of Rs.100/- and in default thereof was ordered to undergo simple imprisonment for ten days. He was also sentenced him to undergo six months simple imprisonment and imposing fine of Rs.100/- for offence punishable under Section 506(2) of the Indian Penal Code and in default thereof to undergo simple imprisonment for one month. The appellant accused Munno @ Habibsha Rustamsha Diwan was sentenced to undergo life imprisonment for offence under section 302 of the IPC.

2.2 Criminal Appeal No.818 of 2014 is preferred by original accused nos. 2 to 6 and 8 in the above referred Sessions Case No.94 of 2011 wherein vide judgment and order of conviction and sentence dated 03.06.2014, learned Second Additional Sessions Judge, Anand convicted the appellants of Criminal Appeal No.818 of 2014 for the offence punishable under Sections 323 and 506(2) of the Indian Penal Code and sentenced them to undergo one month simple imprisonment for the offence punishable under Section 323 of Indian Penal Code along with fine of Rs.100/- each and further sentenced them to undergo simple imprisonment for a period of six months for the offence punishable under Section 506(2) of the Indian Penal Code imposing fine of Rs.100/- each and in case of default of making payment of fine they were ordered to undergo further simple imprisonment for one month. Vide aforesaid common judgment and order dated 03.06.2014, the learned second Additional Sessions Judge, Anand further ordered that all the sentences to run concurrently and benefit of set-off be given to original accused no.1 only i.e. appellant of Criminal Appeal No.1115 of 2014. Both the appeals came to be admitted on 19.11.2014.

3. The facts of case, in nut-shell, are as under:

3.1 It is the case of the prosecution that, as per the complaint lodged by the complainant viz. Pankajkumar Atulbhai Makvana, some land dispute was going on between the appellant ( the appellant original accused of Criminal Appeal No.1115 of 2014) and one Parvatiben wd/ o. Chhaganbhai @ Kabhai Pujabhai Parmar.

3.2 On 02.04.2010 when the deceased was driving his bike at night, one auto-rickshaw, which was drive by Mayudin, rushed on the deceased. Sensing that this might lead to some quarrel, the deceased along with the complainant i.e. Prosecution Witness No.2 viz. Pankajkumar Atulbhai Makvana, who happened to be his cousin, went to the father of Mayudinsha Habibsha Diwan (i.e. ori