JUDGMENT :

RAJENDRA M.SAREEN, J.

1. Present Criminal Appeal has been preferred by the appellant - State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 05/07/1994 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No.119 of 1993 acquitting the respondent Nos.1 to 4 - original accused Nos.1 to 4 from the offence punishable under sections 302, 34, 326 and 324 of Indian Penal Code.

2. Facts of the case, in brief, are as under:-

The complainant - Sababhai Hahabhai Thakor is residing at Biyok, Taluka Vav. His elder brother is residing in the field and oil engine for pumping water is put in the partnership with one Thakor. One the day of incident when he returned from the field, the accused met on the road and due to personal enmity, accused No.1 Chamanji inflicted Dhariya blow on the head of the deceased, accused No.2 - Dehlaji inflicted Dhariya blow on the left hand fingers of the deceased and accused No.3 - Bhuptaji inflicted an axe blow on the right hand of the deceased and accused No.4 - Isaji inflicted injury with stick on left hand and left leg of the deceased. The informant alleged that he and his brother Thakra intervened to save the deceased. The complainant and his brother took the deceased in a tractor owned by Sarpanch to the hospital and gave F.I.R. at Vav Police Station, from where he was referred to Palanpur and while going to the hospital, the deceased expired. Hence the complainant filed the complaint for the aforesaid offence.

3. On the basis of the said complaint, investigation was started and after through investigation, as there was sufficient evidence against the respondents - accused persons, Chargesheet was filed before the learned Judicial Magistrate, First Class. As the offence committed by the accused persons was exclusively triable by the Court of Sessions as per the provisions of Section 209 of Criminal Procedure Code, the learned Judge was pleased to commit the case to the Court of Sessions and the case was transferred and placed for trial in the court of learned Additional Sessions Judge, which has been numbered as Sessions Case No.119 of 1993. Thereafter, Charge was framed against the accused for the offence punishable under sections 302, 34, 326 and 324 of Indian Penal Code. The accused persons pleaded not guilty to the Charges and claimed to be tried. The prosecution, therefore, laid evidence, oral as well as documentary. At the conclusion of the trial, the learned Additional Sessions Judge was pleased to acquit the accused Nos.1 to 4 for the charges levelled against them. Hence, the appellant has preferred the present Criminal Appeal challenging the judgment and order of acquittal.

It is pertinent to note that the respondent Nos.2 and 3 - original accused Nos.2 and 3 expired during the pendency of the present appeal and hence present appeal stood abated qua respondent Nos.2 and 3 and the present appeal is required to be considered qua respondent Nos.1 and 4 - original accused Nos.1 and 4 only.

4. Heard Ms.C.M. Shah, learned APP for the State and Mr.Tejas Barot, learned advocate for Mr.M.C. Barot, learned advocate on behalf of the respondent Nos.1 and 4.

5. Ms.C.M. Shah, learned APP for the appellant State has vehemently argued that the Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence adduced by the prosecution. It is further submitted that the Sessions Judge has erred in acquitting the respondents - accused from the charges levelled against them. It is further argued that the prosecution has proved that the respondent Nos.1 and 4 have committed offence under sections 302, 34, 326 and 324 of Indian Penal Code. It is further submitted that Sessions Judge has acquitted the respondent Nos.1 and 4 merely on some minor contradictions and omissions in the evidence of the prosecution witnesses. It is further argued that the Sessions Judge