In a criminal case, the prosecution must prove guilt beyond a reasonable doubt; failure to establish clear evidence or motive results in acquittal.

JUDGMENT :

S.V. PINTO, J.

1. Criminal Appeal No. 3025 of 2008 has been filed by the appellants - original accused under Section 374(2) of the Code of Criminal Procedure and Criminal Appeal No. 132 of 2009 has been filed by the State for enhancement of sentence. Both the appeals are against the judgment and order dated 28.11.2008 passed by the 5^th Additional Sessions Judge, Surat in Sessions Case No. 16 of 2006 and as they both have arisen out of the same impugned judgement and order, have been disposed by this common judgment.

1.1 The appellants were tried for offences under Sections 307 , 452, 34 and 188 of the INDIAN PENAL CODE and were convicted and sentenced to simple imprisonment for four years for the offence under Section 307 read with Section 34 of the IPC, simple imprisonment for one year and fine of Rs 500/- (Rupees Five Hundred only) and in default, simple imprisonment for 15 days for the offence under Section 452 read with Section 34 of the IPC and fine of Rs 200/- (Rupees Two Hundred only) and in default, simple imprisonment for 10 days for the offence under Section 188 of the IPC. All the sentences were ordered to run concurrently, with any period of detention to be set off against the sentence.

1.2 The appellants are referred to as the accused in the rank and file as they stood in the original case for the sake of convenience, clarity and brevity.

2. The brief facts that emerge from the record of the case are as under:

2.1 From the evidence on record, it appears that on 07.09.2005, between 01:30 to 02:00 am, the complainant - Salimkhan Haroonkhan Pathan was working on accounting tasks at his office “Mahek Travels” along with his wife Jiyaben Salimkhan Pathan and at that time, the accused no. 1 - Naranbhai @ Naniyo Khimjibhai Vadher - the first husband of Jiyaben and the accused no. 2 - Ketanbhai Bhanjibhai Dabhi entered the office with knives and assaulted the complainant Salimkhan and his wife Jiyaben. The accused no. 1 attempted to stab the complainant in the stomach but the complainant caught the knife with his right hand, injuring his palm. The accused no. 2 assaulted Jiyaben and she sustained injuries on her head and various parts of her body with severe bleeding from her neck. The accused no. 1 also inflicted injuries on the complainant's chest on the left side, head, left shoulder, waist and left knee. As the complainant shouted, people residing nearby rushed to the place of incident and both the accused fled from the place of incident. The complainant and his wife were taken to Lokhat Hospital by the complainant's mother and others for treatment and at around 03:00 am, a complaint was filed at Chowk Bazar Police Station, Surat by the complainant - Salimkhan Haroonkhan Pathan from the ICU of Lokhat Hospital where he was undergoing treatment which was registered as I – C. R. No. 203/2005 under Sections 307 , 452, 34 and 188 of the IPC.

2.2 The Investigating Officer collected evidence, drew the necessary panchnamas, recovered the weapons, seized the victims' clothes, recorded the statements of the connected witnesses and after the accused were arrested, a Test Identification Parade was conducted and the seized articles were sent for analysis to the Forensic Science Laboratory. After the FSL reports were received, a charge-sheet was filed before the 9^th Additional Civil Judge and Judicial Magistrate First Class, Surat and as the case was exclusively triable by the Sessions Court, Surat a committal order under Section 209 of the Code of Criminal Procedure was passed and the case was registered as Sessions Case No. 16/2006.

2.3 The accused appeared before the learned Trial Court and it was verified that the provisions of Section 207 of the Code of Criminal Procedure were complied with and a charge was framed against the accused at Exh. 6, and their statements were recorded at Exhs. 7 and 8 respectively. The accused denied all the charges and the evidence of the prosecution was taken on record.

2.3 The prosecution e