JUDGMENT : K.S. Jhaveri, J. 1. Both these Criminal Appeals are preferred against judgment and order dated 30.3.2012 passed by learned 2nd Additional Sessions Judge, Dhrangadhra, in Sessions Case No. 19 of 2009. By the said judgment, both the accused were convicted for offences punishable under Section 304, Part-I of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years and ordered to pay fine of Rs. 1,000/- and in default, they were ordered to undergo simple imprisonment for 30 days; for offence punishable under Section 135 of the Bombay Police Act, the accused were convicted, however, considering the fact that this was their first offence and they were already convicted for offence under Section 304, Part-I, for this offence they were ordered to undergo simple imprisonment for seven days and fine of Rs. 100/- was imposed and in default of payment of fine, they were ordered to undergo simple imprisonment for three days. Being aggrieved by the impugned judgment, the accused have preferred Criminal Appeal No. 463 of 2013, while Criminal Appeal No. 704 of 2012 is preferred by the State for enhancement of sentence imposed by the impugned judgment upon the accused persons. 2. As both these appeals are arising out of the same judgment rendered in connection with the same incident and the evidence is also common in these appeals, the same are taken up for hearing together. 3. The facts in brief giving rise to the filing of present appeal are as under: 3.1 The case of the prosecution is that the complainant Rajendrasinh Indubha Jhala, brother of the deceased registered complaint against accused persons with Dhrangadhra Taluka Police Station, which was registered as I-CR No. 62 of 2009 for the offences punishable under Section 302 and 114of the Indian Penal Code and Section 135 of the Bombay Police Act. On 23.4.2009, at about 13.30 hours, at Village-Jiva, accused No. 1 quarelled with deceased Mayursinh Indubha Jhala for mobile and at that time, accused No. 1 inflicted axe blow on the head of Mayursinh Indubha Jhala and accused No. 2, Ghanshyamsinh Mepubha Jhala inflicted dhariya blow on the right side of deceased Mayursinh Indubha Jhala. With these allegations, the complaint was lodged with the police. 3.2 Investigation was carried out and charge sheet was filed in the Court of learned Magistrate. With these allegations, the complaint was lodged with the police. 3.2 Investigation was carried out and charge sheet was filed in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused persons. The accused pleaded not guilty and claimed to be tried. 3.3 During the trial, the prosecution had examined following witnesses:- Sr. No. Name Exh. 1. Rajendrasinh Tapubha Zala 14 2. Dubabhai Tabhabhai Vaniya 17 3. Dharmendrasinh Juvansinh Zala 22 4. Virendrasinh Hanubha Zala 23 5. Vijaysinh Mahipatsinh Zala 27 6. Narottambhai Vashrambhai Rathod 30 7. Dahyabhai Chhaganbhai Solanki 34 8. Jashvantbhai Keshabhai Solanki 37 9. Ratilal Mohanbhai 40 10. Ashwinbhai Shantilal Shah 41 11. Sanjivbhai Rameshchandra Shah 44 12. Lalitbhai Narsinhbhai Patel 45 13. Dr. Sitaprasad Maheshprasad 48 14. Dalsukhbhai Padmabhai Jadav 52 15. Rajendrasinh Indubha Zala 55 16. Nakabhai Alabhai Gadhvi 64 17. Babubhai Punjabhai Makwana 65 18. Nirmalsinh Bhavubha Gohil 67 19. Dr. Ashish Champaklal Shah 68 20. Chandrakant Jayantilal Sahayata 72 21. Champakbhai Lakhabhai Damor 74 22. Gagabhai Dalabhai Pargi 79 23. Balmukund Gautamprasad Bhatt 84 3.4 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exh. 1. Inquest panchnama of the deceased 15 2. Panchnama of local place of offence 18 3. Receipt of muddamal signed by the panchas 19 to 21 4. Seizure pachnama regarding muddamal weapon 24 5. Receipt of muddamal signed by the pancas 25-26 6. Panchnama of recovery of clothes from the dead body 28 7. Discovery panchnama of seizing muddamal mobile phone and weapon axe 31 8. Receipt of muddamal signed by the panchas 32-33 9. Panchnama of Arrest of accused No.1 35 10. Receipt of muddamal signed by the panchas 36 11. Panchnama of arrest of Accused No.2 with clothes 42 12. Receipt of muddamal signed by the panchas 43 13. Discovery panchnama of seizure of muddamal Dhariya 46 14. Receipt of muddamal signed by the panchas 47 15. P.M. Report of the deceased 49 16. Police yadi 50 17. Police report of postmortem 51 18. Original complaint of the incident 56 19. Medical certificate of Accused No.2 given by Dr. Ashish Shah 69 20. Case paper of accused No.2 70 21. Discharge Card of the hospital of accused No.2 71 22. Yadi sent to Executive Magistrate for inquest panchnama. 73 23. Police yadi 50 17. Police report of postmortem 51 18. Original complaint of the incident 56 19. Medical certificate of Accused No.2 given by Dr. Ashish Shah 69 20. Case paper of accused No.2 70 21. Discharge Card of the hospital of accused No.2 71 22. Yadi sent to Executive Magistrate for inquest panchnama. 73 23. Yadi sent to Executive Magistrate for preparing map of the place. 75 24. Map of local place along with report of the circle officer 76-77 25. Copy of notification of Addl. District Magistrate regarding prohibition of arms 78 26. Copy of Dhangdhra Taluka Police Station Diary Entry No.19/09 80 27. Copy of FIR 81 28. Copy of Station Diary Entry No.22/09 of Dhangdhra Taluka Police Station. 82 29. Copy of FIR and complain given by Accused No.2 against deceased to Dhangdhra Taluka Police Station being Cr. No. 163/2009 83 30. Serological report 85 31. Letter demanding information of mobile phone 86 32. Forwarding letter of sending muddamal to FSL Junagadh 87 33. Letters of sending blood samples of deceased and accused 88 to 90 34. Receipt of receiving muddamal of FSL 91 35. Yadis sent to Dhanghdra Medical Officer for collecting blood samples. 92-93 36. Letter regarding photographs of local place of offence 94 37. Letter written to Dy. Superintendent of Police, M.O.B. Branch for taking negatives of photographs. 95 38. Letter written for providing CD of photographs of offence 96 39. CD of photograph of body of the deceased 97 40. 10 photographs of deceased and place of offence 98 41. Muddamal Analysis report of FSL Junagadh 111 3.5 At the end of trial, the Court below recorded further statements of accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Mr. Ashish Dagli, learned advocate for the accused-appellants in Criminal Appeal No. 463 of 2013 has taken us through the oral as well as documentary evidence referred above and submitted that the prosecution has miserably failed to prove its case against the appellants. He contended that in the first version before police, no names of the assailants were disclosed nor any weapon was disclosed and the complaint is lodged after delay of four hours with the names of the accused persons. He contended that in the first version before police, no names of the assailants were disclosed nor any weapon was disclosed and the complaint is lodged after delay of four hours with the names of the accused persons. He also submitted that when dead body was identified, inquest panchnama was done and the body was sent for postmortem, thereafter, the complaint is lodged and though the complainant was present althroughout, he has not disclosed anything about the incident at that time. This creates doubt as to whether he was eye witness to the incident. He also submitted that most of the panch witnesses have not supported the case of the prosecution. He also submitted that there is contradiction in the medical evidence and the say of the complainant with regard to the injury caused to the victim. He further contended that the medical evidence do not support the case of the prosecution and the accused are wrongly roped in the present offence. He, therefore, submitted that the accused have not committed the alleged offence and they are wrongly roped in the present case. He also submitted that accused persons have already undergone the period of sentence imposed upon them by the impugned judgment and they are already released, therefore also, the present appeal may be disposed of. 5. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the accused persons is just and proper and she has supported the conviction recorded by impugned judgment. So far as Criminal Appeal No. 704 of 2012 is concerned, which is preferred for enhancement of sentence imposed on accused, she has taken us through the evidence and contended that the trial Court has committed an error in imposing the sentence upon the accused inspite of voluminous evidence against them and contended that the trial Court ought not to have imposed such a lesser punishment. She also submitted that considering the fact that the accused have committed the offence and attacked the victim with deadly weapons, therefore, the sentence imposed by the learned trial Court is not sufficient. She also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment upon accused. She also submitted that without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective, learned Judge has erred in imposing lesser punishment upon accused. She submitted that the prosecution has examined 23 witnesses in support of its case and has also produced 41 documentary evidences on the record of the case. However, without appreciating the documentary as well as oral evidence available on the record of the case in its proper perspective the learned Judge has erred in imposing lesser punishment upon the accused. She submitted that the reason put forth on behalf of the accused is not sufficient and reasonable for imposing the lesser sentence on the accused. Therefore also, as the sentence imposed by the learned Judge is not sufficient and reasonable the same deserves to be enhanced by this Hon'ble Court. She also submitted that from the available material and from facts and circumstances of the case, it is clear that the accused deserve maximum sentence of life as provided under Section 304, Part-I. She further submitted that the learned Judge has failed to appreciate that there is no any mitigating circumstance to impose lesser punishment and it is very clear from the facts and circumstances of the case available on the record of the case that there are aggravating circumstances in which Hon'ble Judge ought to have imposed the maximum sentence as provided under the law. She also submitted that the trial Court has committed an error in not considering the evidence forthcoming on the record in right perspective and without considering the medical evidence, maximum sentence which was required to be imposed had not been imposed. She also submitted that the learned trial Judge has committed an error in taking lenient view while imposing sentence on the accused and, therefore, the sentence imposed is required to be enhanced. Therefore, she submitted that Criminal Appeal No. 704 of 2012 may be allowed and the sentence imposed by the trial Court may be enhanced. 6. We have heard Mr. Ashish Dagli, learned advocate for the accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the impugned judgment and evidence on record. From the evidence on record, presence of the accused is proved at the place of offence. 6. We have heard Mr. Ashish Dagli, learned advocate for the accused and Ms. C.M. Shah, learned APP for the State. We have also gone through the impugned judgment and evidence on record. From the evidence on record, presence of the accused is proved at the place of offence. It is found by the trial Court that from the evidence on record, it is clear that the deceased was the aggressor and he had also caused injury to accused Ghanshyamsinh Mepubha. Even the complainant has admitted this fact in his deposition. Therefore, it is clear that firstly the deceased had caused injury to the accused and, thereafter, the accused attacked the deceased, therefore, the accused is rightly held guilty for offence under Section 304, Part-I of IPC. Therefore, from the evidence on record, it is clear that the prosecution has remained successful in proving its case beyond reasonable doubt against the accused. We are of the opinion that the accused are rightly convicted by the learned trial Judge of the offences alleged against them, however, considering the fact that the accused persons have already undergone the period of sentence imposed by the impugned judgment and they have been released, Criminal Appeal No. 463 of 2013 filed by them has become academic and is required to be disposed of accordingly. 7. We are in agreement with the view taken by the learned Sessions Judge in convicting the accused and imposing sentence of rigorous imprisonment for six years. However, looking to the provisions of law, the sentence imposed upon the accused appears to be on a lower side, but, taking into consideration the fact that the accused have already undergone the sentence imposed upon them and were released on Gandhi Jayanti i.e. 2nd October 2013, we deem it proper not to enhance the sentence. Accordingly, the Criminal Appeal No. 704 of 2012 filed by the State for enhancement of sentence, requires to be dismissed and is accordingly dismissed. 8. In view of aforesaid discussion and since the accused persons have already undergone the period of sentence imposed by the impugned judgment and they have been released, Criminal Appeal No. 463 of 2013 filed by them has become academic and is disposed of accordingly. 9. The impugned judgment and order dated 30.3.2012 passed by learned 2nd Additional Sessions Judge, Dhrangadhra, in Sessions Case No. 19 of 2009 is hereby confirmed. 9. The impugned judgment and order dated 30.3.2012 passed by learned 2nd Additional Sessions Judge, Dhrangadhra, in Sessions Case No. 19 of 2009 is hereby confirmed. Bail bond, if any, of the accused shall stand cancelled. Record and proceedings be sent back to the concerned trial Court forthwith. Disposed off