Judgment K.S. Jhaveri, J. 1. Heard learned Additional Public Prosecutor for the appellant - State Mr. L.R. Pujari and learned Advocate for the respondents accused Ms. Sadhana Sagar. 2. Criminal Appeal No. 371/2012 is the Appeal for enhancement preferred by the Appellant - State being aggrieved by the judgment and order dated 08.12.2011 of the learned Additional Sessions Judge, Court No. 18, City Sessions Court, Ahmedabad in Sessions Case No. 398/2010 whereby the accused herein were convicted and sentenced as under:- Sentence qua accused No. 1 Under Section 302 and 114 of IPC and u/s. 135(1) of the Bombay Police Act Acquitted Under Sections 323 and 114 of IPC Simple imprisonment for 50 days and no fine. Under Section 294 of IPC No separate order Sentence qua accused No. 2 Under Section 302 and 114 of IPC and u/s. 135(1) of the Bombay Police Act Acquitted Under Sections 326 and 114 of IPC Rigorous imprisonment for five years and fine of Rs. 3,000/-, in default, simple imprisonment for one month. Under Section 294 of IPC No separate order Sentence qua accused No. 3 Under Section 302 and 114 of IPC and u/s. 135(1) of the Bombay Police Act Acquitted Under Sections 326 and 114 of IPC Rigorous imprisonment for three years and fine of Rs. 500/-, in default, simple imprisonment for fifteen days. Under Section 294 of IPC No separate order Sentence qua accused No. 4 Under Section 302 and 114 of IPC and u/s. 135(1) of the Bombay Police Act Acquitted Under Sections 323 and 114 of IPC Simple imprisonment for 21 days and no fine. Under Section 294 of IPC No separate order Criminal Appeal No. 1738/2012 is the Appeal preferred by the accused herein challenging their conviction as stated above. The accused No. 1 is the maternal uncle of the deceased, the accused No. 2 is the brother-in-law of the deceased, the accused No. 3 is the nephew of the deceased and son of accused No. 2 and the accused No. 4 is the mother of the deceased. 3. The case in brief and the incident which is alleged to have occurred on 27.06.2010 is as under:- 3.1. The complainant Jyotsnaben Rajeshbhai Dalsani stays with her husband Rajeshbhai at Parasnagar, Ahmedabad. 3. The case in brief and the incident which is alleged to have occurred on 27.06.2010 is as under:- 3.1. The complainant Jyotsnaben Rajeshbhai Dalsani stays with her husband Rajeshbhai at Parasnagar, Ahmedabad. The husband of the complainant was engaged in the work of fabrication and there was a dispute with regard to the residential house when the alleged incident took place. On the said day at about 1.15 pm, Jyotsnaben had gone to provide lunch to her husband. The husband of the complainant and his brother Chikanbhai had taken lunch and while having rest at their shop, at about 2.00 pm, it is alleged that all the accused persons came to the shop and started giving filthy abuses to the husband of the complainant, to which it was requested by the deceased that the abuses may not be given. The accused No. 2 Mukeshbhai got excited and inflicted a pipe blow on the head of Rajeshbhai. The accused No. 3 Pratikbhai picked up some bricks which was lying near the place of offence and threw on Rajeshbhai. The other accused Shantaben and Fatabhai started giving kick and fist blows to Rajeshbhai. When the complainant and the deceased's brother tried to save Rajeshbhai, the accused started giving kick and fist blows even to these two persons. Looking to the scuffle, a mob gathered and hence all the accused ran away from the place of offence. As Rajeshbhai became unconscious, 108 Ambulance was called and the injured Rajeshbhai was taken to V.S. Hospital. The complaint for the alleged incident was given on 27.06.2010 before the V.S. Hospital for the offences punishable under Sections 326, 323, 294(B) and 114 of the Indian Penal Code and under Section 135(1) of the Bombay Police Act vide I-C.R. No. 369/2010. Since the incident occurred within the limits of Naranpura Police Station, the case was transferred to Naranpura Police Station. Further investigation of the case was handed over to PSI - Mr. Ninama, who recorded the statement of witnesses and necessary panchnamas were drawn. The clothes of the deceased were recovered and the blood sample was sent to the FSL. On 05.07.2010, the injured Rajeshbhai expired during treatment and hence, offence under Section 302 of the Indian Penal Code came to be added. 3.2. Ninama, who recorded the statement of witnesses and necessary panchnamas were drawn. The clothes of the deceased were recovered and the blood sample was sent to the FSL. On 05.07.2010, the injured Rajeshbhai expired during treatment and hence, offence under Section 302 of the Indian Penal Code came to be added. 3.2. During investigation, the police recorded statement of witnesses and as there was prima-facie evidence connecting the accused with the crime, the chargesheet was filed before the Court of the learned Metropolitan Magistrate, Court No. 9, Ahmedabad. As the case was triable by Court of Sessions, the learned Magistrate committed the case to the Sessions Court at Ahmedabad where it was numbered as Sessions Case No. 398/2010. Thereafter, charge was framed against the accused. 3.3. At the time of trial, the prosecution examined the following witnesses:- Particulars Exhibit Medical Officer Dr. Tapan Jitendrabhai Mehta 15 Panch Witness Mahendrabhai Dahyabhai Trivedi 17 Panch witness Kailashbhai Kashiram Panchal 19 Panch witness Vikramsinh Shivsinh Solanki 20 Panch witness Jivanbhai Ramanbhai Thakore 22 Complainant Jyotsnaben Rajeshbhai Dalsani 24 Ramchandra Rajeshbhai Dantani 26 Chetanbhai Bhikhabhai Vaghela 27 Investigating Officer Rupaji Kalaji Ninama 30 Investigating Officer Raghuvirsinh Takubha Gohil 33 Medical Officer Dr. G. Anant G.B. Prasad 44 The prosecution also relied upon various documentary evidences, some of them are:- Particulars Exhibit Panchnama of the scene of offence show by the complainant 12 Inquest Panchnama 13 Panchnama of the clothes worn by the deceased and presented by the complainant 14 P.M. Note 16 Panchnama of the clothes and blood samples collected by the Doctor from the body of the deceased 18 Panchnama of the weapons used by the accused - Mukesh, Pratik and Shantaben at the time of offence 21 Complaint 25 Report under Section 157 of the Criminal Procedure Code 31 Wardi received the PSO of V.S. Hospital 32 Regarding addition of Section 302 written by the learned Judge, Metropolitan Magistrate, Court No. 9. 34 Regarding sending of Muddamal 35 Receipt of muddamal by the FSL 36 Letter regarding sending back of the muddamal by the FSL 37 The opinion received from the FSL 38 FSL Serological Report 39 3.3. At the conclusion of the trial, the learned Additional Sessions Judge, Court No. 18, City Sessions Court, Ahmedabad passed the order as above. 4. Learned Additional Public Prosecutor Mr. At the conclusion of the trial, the learned Additional Sessions Judge, Court No. 18, City Sessions Court, Ahmedabad passed the order as above. 4. Learned Additional Public Prosecutor Mr. L.R. Pujari has submitted that the sentence imposed by the learned Judge for the offences under Sections 326 and 114 of the Indian Penal Code is highly inadequate and disproportionate to the offence committed by the accused. Further, the sentence for the offences under Sections 323 and 114 of the Indian Penal Code is also highly inadequate and disproportionate to the offence committed by the accused. It is also submitted that the young age of the accused should not be a ground for imposing lesser sentence. It is further submitted that the learned Judge has not properly appreciated the provision of Section 326 of the Indian Penal Code and thereby committed error in imposing lesser sentence. The learned Judge ought to have seen that maximum punishment under Section 326 of the Indian Penal Code is rigorous imprisonment for life or ten years with fine and in such a case, the learned Judge has committed error in imposing lesser sentence upon the accused. Further, it is clear from the evidence of the complainant Jyotsnaben that the accused No. 2 Mukeshbhai had inflicted a pipe blow on the deceased Rajeshbhai and the accused No. 3 Pratikbhai inflicted injuries with bricks on the head of the deceased Rajeshbhai. This evidence is further supported by the evidence of Ramchandra Rajeshbhai Dantani and witness Chetanbhai. Further, the accused No. 1 Fatabhai and accused No. 4 - Shantaben also are alleged to have given kick and fist blows to the deceased. The evidence of the Doctor at Exhibit 44 ought to have been believed because he had given treatment to the deceased. According to the evidence of this witness, injuries of fracture and hemorrhage caused to the deceased were sufficient to cause the death of the deceased and the same was possible because of the injuries inflicted by pipe and bricks. Hence, the learned Judge ought to have imposed maximum punishment for the offences punishable under Sections 326 and 114 of the Indian Penal Code. Hence, the learned Judge ought to have imposed maximum punishment for the offences punishable under Sections 326 and 114 of the Indian Penal Code. Considering the above, it is submitted that this is a fit case which requires the interference of this Court and the judgment and order of the learned Additional Sessions Judge requires to be upturned and the accused be handed over maximum punishments as envisaged under the Indian Penal Code. 5. Per contra, learned Advocate appearing for the accused Ms. Sadhana Sagar has submitted that the judgment and order of the learned Judge is illegal, improper and contrary to the principles of criminal jurisprudences, settled principles of law and therefore, is liable to be quashed and set aside. The learned Judge ought to have appreciated that the depositions of the witnesses which are examined by the prosecution are full of major contradictions and omissions. It is further submitted that the complaint of the complainant reflected only one pipe blow and a brick hit however, in the post mortem note, it has been shown that there were about 12 - 16 injuries. It is also submitted that as per the say of the complainant, the complainant had taken the head of the deceased on her folded legs, however, there was no blood found on her clothes and this creates a doubt as to handing over the clothes by the complainant before the police. In addition, it is submitted that the accused has been wrongly and willfully involved in the offence due to rivalry in the property matter between the accused and the complainant's family. Further, the accused are all poor persons and are not habitual offenders. Hence, it is submitted that there is no case of enhancement of the sentences and instead this Court should upturn the judgment and order of sentence passed by the learned Additional Sessions Judge. 6. We have heard learned Advocates appearing for the respective parties and perused the records of the case. 6.1. At this stage, we would like to refer to the decision of the Hon'ble Apex Court in the case of Som Raj alias Soma v. State of H.P. reported in AIR 2013 Supreme Court 1649. Relevant part of the decision reads as under:- "14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. 6.1. At this stage, we would like to refer to the decision of the Hon'ble Apex Court in the case of Som Raj alias Soma v. State of H.P. reported in AIR 2013 Supreme Court 1649. Relevant part of the decision reads as under:- "14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done - Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done - INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (1) with the intention of causing death; or (2) with the intention of causing such bodily injury as the offender know to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) with the knowledge that the act is likely to the cause death (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.” 6.2. We have in particular gone through the medical evidence furnished by the Doctor which has given in detail about the serious and grave injuries suffered by the deceased. Relevant part of the medical papers read as under:- "The pt. was asymptomatic before 7 days. Then, after assault & brick on back of head by opposite party on 28/6/10 he became unconscious. Then he was shifted to V.S. Hospital where some brain surgery was done. After operation, his condition has remained same. He is unconscious and not responding to external stimuli." 6.3. In addition, the Post Mortem Report furnished by Dr. Tapan J. Mehta, M.D. (F.M.), Department of Forensic Medicines & Toxicology, Smt. N.H.L. Municipal Medical College, Sheth V.S. General Hospital, Ellisbridge, Ahmedabad 380 006 details the nature and extent of injuries suffered by the deceased. Relevant portion of the Report namely Column Nos. 17, 19 and 23 reads as under:- 17. Surface wounds and injuries:- Their natural position, dimension (measured) and directions to be accurately stated, their probable age and causes to be noted If bruises are present, what is the condition of the subcuraneous tissues ? (N.B.) :- when injuries are numerous and cannot be mentioned within …. available they should be mentioned on a separate paper which should be signed) (A) Surgically stitched wound with well apposed margins and in healing phase present over right fronto-parieto-temporal region, curvi linear, starting 3 cm in front and 1 cm above right tragus, 34 cm long. On opening stitches, it is brain tissue deep, Anterior 12 cm is sutured with 14 interrupted stitches with black suture material and posterior 22 cm sutured with 36 white metallic pins, terminating 3 cm behind right ear. Highest point from upper end of right ear pinna is 13 cm. (B) Surgically stitched wound with 36 white metallic pins, well apposed margins healing phase present over left fronto-parieto-temporal region, curvi linear, starting 2 cm in front and 1 cm above upper and of left ear pinna, 28 cm long, with 36 white metallic pins, terminating 4 cm behind left ear. On opening stitches, it is bond deep. Highest point is 13 cm from upper end of left pinna. (C) Surgically stitched wound with black suture material with well apposed margins and in healing phase present over following areas of the deceased : 1) Single stitch present over right parietal eminence, 1 cm long, scalp tissue deep. On opening stitches, it is bond deep. Highest point is 13 cm from upper end of left pinna. (C) Surgically stitched wound with black suture material with well apposed margins and in healing phase present over following areas of the deceased : 1) Single stitch present over right parietal eminence, 1 cm long, scalp tissue deep. 2) Two stitches present over left parietal region, 3 cm anterior to left parietal eminence, 2 cm long, scalp tissue deep. (D) Open surgical wound of tracheostomy present over front of neck in midline, just below thyroid cartilage, 1x1 cm size, tracheal lumen deep. (E) Abrasion with black hard scab present over following areas of the body : 1) right side of fore head, 6 cm above lateral 1/3 rd of left eye brow, 3x2 cm size. 2) Just above lateral ½ of left eye brow, 3x2 cm size. 3) 4 cm lateral to lateral end of left eye, 2x1 cm size. 4) Right side of front of chest, 9 cm above and 3.5 cm medial to right nipple, 3x0.5 cm size. (F) Greenish Contusions present over following areas of the body : 1) Right frontal region, 10x6 cm size. 2) Left temporo-ocipital region, 9x5 cm size. 3) Lower half of left arm, 5 in number, vertical From medical to lateral side, 8x0.3 cm, 3x0.2 cm, 9x0.3 cm, 6x0.2 cm, and 3x0.2 cm long, respectively with intermittent gap of 2 cm, 1.5 cm, 1.5 cm and 2 cm respectively. INTERNAL EXAMINATION: 19. Head (i) injuries under the scalp and their nature. Scalp tissue echymoses present over right frontal, both temporal, both parietal and occipital regions with both temporalis muscles echymosed. (ii) Skull Vault and base, describe fractures, their sites, dimensions directions etc. (a) 11x10 cm size bone flap absent from right fronto-parieto-temporal region with 5 burr holes over its margins. (Therapetic craniectomy). (b) 8x7 cm size bone pieces. 7x3.5 cm sized posterior flap and 8x4.5 cm sized posterior flap present over left front-parieto-temporal region with 4 burr holes at its margins from where brain tissue bulged out (Therapeutic in nature). (c) Linear fracture present over right parietal bone from starting from the margin of the absent bone piece on right side, which extends transversely through midline to involve left parietal bone and merges with injury mentioned in 19, (ii), (b), 10.5 cm long. (c) Linear fracture present over right parietal bone from starting from the margin of the absent bone piece on right side, which extends transversely through midline to involve left parietal bone and merges with injury mentioned in 19, (ii), (b), 10.5 cm long. (d) Linear fracture present over right side of frontal bone, transverse, 3 cm long. 23. Opinion as to the cause or probable cause of death. Shock as a result of head injury sustained. 6.4. We have perused the evidences led by various witnesses and in particular the evidence by the complainant - Jyotsanaben which gives in detail the circumstances leading to the injuries inflicted on the deceased. Further this evidence has been also supported by other witnesses. 7. Hence, looking to the gravity of the crime and the injuries inflicted on the deceased which ultimately resulted into his death, Criminal Appeal No. 1738/2012 preferred by the appellants convicts deserves to be dismissed and the same is hereby dismissed. 8. Insofar as the appeal preferred by the appellant - State being Criminal Appeal No. 371/2012 is concerned, the same is partly allowed. The judgment and order of conviction and sentence qua original accused No. 1, 3 and 4 in respect of the offences for which they have been convicted, is confirmed. However, so far as the accused No. 2 - Mukesh Babubhai Dantani is concerned, the judgment and order of conviction and sentence is modified and enhanced to the effect that the accused No. 2 - Mukesh Babubhai Dantani is convicted for the offence punishable under Section 304 Part I of the Indian Penal Code instead of his conviction under Section 326 of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for ten (10) years for the offence punishable under Section 304 Part I of the Indian Penal Code. Bail bonds shall stand cancelled. The accused No. 2 is directed to surrender before the jail authority to undergo the remaining period of sentence within eight weeks from today. If the accused Nos. 1, 3 and 4 have not undergone the prescribed period of sentences, they shall also surrender before the jail authority within eight weeks from today, to undergo the remaining period of sentence. The rest of the judgment and order of conviction and sentence remains unaltered. Record and proceedings, if any, shall be sent back forthwith.