JUDGMENT :

Rajendra M. Sareen, J.

1. Criminal Appeal No.701 of 1995 has been preferred by the appellant - State of Gujarat under Section 378 of the Criminal Procedure Code, 1973 against the judgment and order dated 30/11/1994 passed by the learned Additional Sessions Judge, Banaskantha at Palanpur in Sessions Case No.92 of 1993 acquitting the respondents - original accused Nos.1 to 4 - original accused Nos.1 to 4 from the offence punishable under sections 302, 324, 325, 326, and 114 of Indian Penal Code and 135-A of Bombay Police Act.

2. Criminal Revision Application No.493 of 1994 has been filed by the original complainant under section 397 read with section 401 of the Code of Criminal Procedure challenging the aforesaid judgement and order of acquittal.

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

The complainant lodged the complaint alleging that the respondents - original accused committed offence on 03/11/1992 at village Varnoda, Taluka Deesa when Tejaji Suraji, Vardhaji Suraji and Parkhaji Suraji were installing electric fuse in the line when the respondent No.4 - original accused No.4 Ishwarji Paruji came on the spot and raised quarrel as to why the above three persons closed the main switch and thereupon, original accused Nos.1 to 3 - respondent Nos.1 to 3 herein with a common intention to cause serious injuries to aforesaid three persons joined respondent No.4 when respondent nos.1 to 3 - original accused Nos.1 and 3 were armed with Dhariya and No.2 with stick and caused injuries on the aforesaid three persons. That Talaji Suraji on 4/11/1992 succumbed to the injuries and he died at 2.30 in the night whereupon section 302 was added to CR.No.I-142 of 1992.

4. 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.92 of 1993. Thereafter, Charge was framed against the accused for the offence punishable under sections 302, 324, 325, 326, and 114 of Indian Penal Code and 135-A of Bombay Police Act. 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 and the original complainant have preferred the captioned Criminal Appeal and Criminal Revision challenging the judgement and order of acquittal, respectively.

5. Heard Ms. C.M. Shah, learned APP for the State and Mr. Tejas Barot, learned advocate for the respondent Nos.2 and 4 - accused nos.2 and 4, in Criminal Appeal and Mr. Dhruvin Bhuptani, learned advocate appearing on behalf of Mr. Y.S. Lakhani learned advocate for the revisionist-original complainant and Mr. Tejas Barot, learned advocate for the respondent No.2 and 4 in Criminal Revision Application and Ms. C.M. Shah, learned APP for the respondent No.5 - State.

6. Mr.Tejas Barot, learned advocate has submitted that respondent Nos.1 and 3 - original accused Nos.1 and 3 have expired. The present proceedings survives qua accused Nos.2 and 4.

7. Ms. C.M. Shah, learned APP for the appellant State in Criminal Appeal and Mr. Dhruvin Bhuptani, learned advocate for the petitioner - original complainant in Criminal Revision Application have vehemently argued that the learned Sessions Judge has committed a grave error in not believing the deposition of the witnesses examined by the prosecution and evidence a