JUDGMENT : G.B. Shah, J. 1. As Criminal Appeal as well as the Criminal Revision Application arise out of the same judgment and order, with the consent of learned advocates appearing for the respective parties, they were heard together and are being decided by this common judgment. 2. Both these Criminal Appeal and Criminal Revision Application arise out of judgment and order dated 14.2.2008 passed by the learned additional Sessions Judge, Dhrangadhra, in Sessions Case No. 13 of 2005 whereby original accused were convicted and sentenced to suffer RI for one year and to pay fine of Rs. 1,000/- each, in default, to suffer further RI for one month for the offence punishable under section 147, RI for one year and to pay fine of Rs. 1,000/- each, in default, to suffer further RI for one month for the offence punishable under section 148 and RI for seven years and to pay fine of Rs. 5,000/- each, in default, to suffer further RI for six months for the offence punishable under section 326/34 of IPC. Original accused No. 1 was also convicted and sentenced to suffer RI for one year and to pay fine of Rs. 500/-, in default, to suffer further RI for one month for the offence punishable under section 506(2) of IPC. All the sentences were ordered to run concurrently. Accused were given benefit of set off for the period undergone in jail. 3. Short facts of the case are that on 10.11.2004 at about 5.30 p.m., all the accused armed with deadly weapons like talvar, bhala, dhariya and revolver caused injury on injured Hussainkhan Jaysingh in the compound of Bhagyoday Hotel at Village Malvan. Further facts are that Joravarkhan caused injury by farsi, Hussainkhan Sahebkhan caused injury by dhariya on right leg, Lakhaji Sahebkhan caused injury on the forehead of Hussainkhan Jaysingh by dhariya, Yasinkhan caused injury by talvar and Banajai @ Kalukhan fired from his revolver and threatened the injured as well as the complainant. A complaint was therefore filed by complainant before Patdi Police Station. In pursuance of the said complaint, investigation started and as there appeared prima facie case against the accused, charge sheet was filed against the accused. 3.1 As the offence was triable exclusively by Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. A complaint was therefore filed by complainant before Patdi Police Station. In pursuance of the said complaint, investigation started and as there appeared prima facie case against the accused, charge sheet was filed against the accused. 3.1 As the offence was triable exclusively by Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 3.2 It may be noted that as injured Hussainkhan suffered grievous injuries, his leg was to be amputated. His treatment went on for six months, initially three months at Surendranagar and later on three months at Junagadh and he ultimately succumbed to his injuries on 16.3.2006. 3.3 To prove the guilt against the accused, prosecution examined following witnesses:- P.W. No. Name of witness Exhibit No. 1. Amirkhan Umarkhan Malek 29 2. Jasubhai Jayantibhai Rathod 31 3. Laljibhai Devsibhai 33 4. Isabkhan Jivaji 35 5. Nasibkhan Rahematkhan 41 6. Dr. Yogendrasinh Devisinh Solanki 42 7. Dr. Rupesh Divyakanth Shah 44 8. Dr. Kamlesh Dhirajlal Parikh 46 9. Babulal Pinjaji Inama 52 10. Torubha Ramubha Jhala 56 11. Mahobatkhan Jesinghji 58 12. Dhanshyamsinh Mansinh Jhala 59 13. Shaktisinh Natvarsinh Jhala 61 S. No. Description Exhibit No. 1. Panchnama of scene of offence 30 2. Panchnama of seizure of clothes worn at the time of offence 32 3. Panchnama of seizure of muddamal 34 4. Original complaint 36 5. Certificate issues by C.J. Hospital in respect of Hussainkhan Jesingh 43 6. Laboratory test report of Hussainkhan Jesingh 45 7. Certificate issued by Dr. Kamlesh Parikh, Ortohpaedic Hospital, Surendranagar for treatment to Hussainkhan Jesingh 47 8. Injury certificate issued by Dr. Kamlesh Parikh pertaining to injured 48 9. X-rays of injured 49/1 to 49/5 10. Entry of Station Diary No. 25/04 57 11. Forwarding letter for preliminary opinion on muddamal pertaining to C.R. No. 89/05 62 12. Receipt 63 13. Opinion of FSL, Junagadh 64 14. Preliminary opinion sent to PSI Patdi 65 15. Dropping pursis 66 3.5 After filing of closing pursis by the prosecution, further statements of accused under Sec.313 of Cr.P.C. were recorded. Forwarding letter for preliminary opinion on muddamal pertaining to C.R. No. 89/05 62 12. Receipt 63 13. Opinion of FSL, Junagadh 64 14. Preliminary opinion sent to PSI Patdi 65 15. Dropping pursis 66 3.5 After filing of closing pursis by the prosecution, further statements of accused under Sec.313 of Cr.P.C. were recorded. Upon conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order, as aforesaid in the earlier part of this judgment, was delivered by the trial court giving rise to the present appeal as well as the revision. 4. Mr. I.H. Syed, learned advocate, who appears for the appellants-original accused in Criminal Appeal No. 1041 of 2008 seeks permission to file his appearance on behalf of the original accused in Criminal Revision Application No. 286 of 2008. Permission is granted. Mr. I.H. Syed shall file his appearance on behalf of original accused in Criminal Revision Application No. 286 of 2008 during the course of the day. 5. Heard Mr. I.H. Syed, learned advocates for the original accused, Mr. Pathan for Mr. Ashish M. Dagli for the original complainant and learned APP, Mr. K.L. Pandya, for the State. 6. Mr. Syed drew attention of this Court on the order dated 8.9.2009 passed in this appeal and submitted that as far as appellant-original accused No. 4-Yasinkhan Banaji @ Kalukhan Malek is concerned, appeal was partly allowed and while confirming his conviction, sentence imposed on him was set aside as he was a juvenile at the time of incident and he was set at liberty forthwith and therefore, the present appeal remained for hearing only qua appellants-original accused Nos. 1, 2, 3 and 5. He further drew attention of this court on the jail report dated 20.6.2015 and submitted that appellant-original accused No. 2-Hussainkhan Sahebkhan Malek, appellant-original accused No. 3-Joravarkhan Banaji @ Kalukhan Sambhaji and appellant-original accused No. 5-Lakhaji Sahebkhan Malek have completed the prescribed period of sentence of seven years imposed on them by the trial court and hence, they were released from jail. He, therefore, did not press legality and validity of the impugned judgment and order qua original accused Nos. 2, 3 and 5 as they have already undergone the prescribed period of sentence. He, therefore, did not press legality and validity of the impugned judgment and order qua original accused Nos. 2, 3 and 5 as they have already undergone the prescribed period of sentence. Under the circumstances, he submitted that now the present appeal as well as revision, as such, remained for hearing only qua appellant-original accused No. 1-Banaji @ Kalukhan Sambhaji. He further drew attention of this Court on the deposition of the complainant-Isabkhan Jivaji, who was examined as P.W. No. 4 at Exh.35 and submitted that if the version given by him in his chief-examination qua appellant-original accused No. 1 is perused, there appear much improvements and contradictions and, therefore, only allegation against him would be of taking out revolver from his waist and threatening the crowd gathered at the scene of offence when complainant shouted to save deceased-Hussainkhan Jaysingh. Except this, no other allegation has been levelled against appellant-original accused No. 1 and in light of the same, if the deposition of Investigating Officer is perused, then the said improvements and contradictions have been proved. He then submitted that considering the above factual aspect, as such, after a period of 12 years of the incident, accused No. 1 should be released as, rest of the evidence is also in favour of accused No. 1 more particularly when inspite of the fact that deceased-Hussainkhan Jaysingh had visited thrice before the hospital, he had not disclosed names of any of the accused in the history recorded by the concerned doctor at the hospital. He, therefore, requested to exonerate appellant-original accused No. 1 from the charges levelled against him. 7. Learned APP, Mr. Pandya, vehemently opposed by submitting that after the incident, complaint was lodged immediately on the same day i.e. on 10.11.2004 at about 10.40 p.m. disclosing names of original accused No. 1 as well as other accused along with the respective role played by them and considering the said aspect and also the fact that evidence of the complainant, which is supporting the complaint, is found to be trustworthy and reliable, this Court should not interfere with the conclusion and the findings arrived at by the trial court so far as accused No. 1 is concerned. 8. Learned advocate, Mr. Pathan for Mr. 8. Learned advocate, Mr. Pathan for Mr. Ashish M. Dagli, learned advocate for the original complainant, submitted that the injured was initially treated for about 64 days from 11.11.2004 to 13.2.2005 at Surendranagar and thereafter for three months at Junagadh in the hospital of Dr. G.J. Makadiya as an indoor patient. The accused suffered CLW injuries of 4 x 3 x 2 cm CLW on forehead, 6 x 3 x 3 cm deep wound on right hand and 13x5x7cm spear injury on right leg and tibia bone of right leg was broken and there were other injuries. In view of the serious injuries suffered by deceased-Hussainkhan and the fact that he was treated as an indoor patient initially for three months at Surendranagar and thereafter for three months at Junagadh and number of operations were required to be performed on him including insertion of rod in his leg and consequent amputation of leg, intention or knowledge for commission of offence punishable under section 307 of IPC has been proved by the prosecution beyond reasonable doubt. He further submitted that looking to the fact that deadly weapon has been used in the commission of offence, offence punishable under section 25(1)(b) of Arms Act has also been proved against accused No. 1 and, therefore, he submitted that accused No. 1 be punished for the offence punishable under section 307 of IPC and also under section 25(1) (b) of Arms Act and be punished appropriately. 8.1 In light of the above submissions, he took this Court through the depositions of P.W. No. 6-Dr. Yogendra Solanki recorded at Exh. 42 and P.W. No. 8-Dr. Kamlesh Parikh recorded at Exh.46 as well as the medical evidence and submitted that considering the fact that deceased-Hussainkhan Jaysingh had not been recovered and his leg had to be amputated even after prolonged treatment of six months, initially three months at Surendranagar and subsequently three months at Junagadh, and he passed away on 16.3.2006 and also considering the trustworthy and reliable evidence of P.W. No. 4-complainant, who was present at the time of incident and who supported his complaint, the sentence imposed by the trial court for the offence punishable under section 326 of IPC is on the lower side more particularly when no convincing reason has been given for giving lesser sentence and therefore, sought to enhance the sentence for the offence punishable under section 326 of IPC. He ultimately urged to allow Criminal Revision Application. 9. Considered the rival submissions made by learned advocates for the respective parties. 10. So far as appellant-original accused No. 4-Yasinkhan Banaji @ Kalukhan Malek is concerned, appeal was partly allowed vide order dated 8.9.2009 whereby his conviction was confirmed while sentence imposed on him was set aside as he was a juvenile at the time of incident and he was set at liberty forthwith. 11. So far as appellants-original accused Nos. 2, 3 and 5 are concerned, as Mr. Syed, learned advocate did not press legality and validity of impugned judgment and order qua appellants-original accused Nos. 2, 3 and 5 in view of the fact that they have already undergone the sentence imposed on them by the trial court, this appeal qua them has become academic. 12. If the dates of incident i.e. 10.11.2004 and death of deceased-Hussainkhan Jaysingh i.e. 16.3.2006 are considered, it would appear that he had passed away almost after sixteen months of the incident. It appears from the depositions of P.W. No. 6-Dr. Yogendrasinh Devisinh Solanki and P.W. No. 8-Dr. Kamlesh Dhirajlal Parikh that initially the deceased was shifted to Government Hospital at Dhrangadhra and thereafter he was transferred to C.J. Hospital, Surendranagar and then he was treated at Shreeji Orthopaedic Hospital and Trauma Centre, Surendranagar by Dr. Kamlesh D. Parikh. Considering the entire medical evidence and the evidence of doctors, it is not under dispute that after the incident on 10.11.2004, the deceased was initially taken to Government Hospital at Dhrangadhra and thereafter to C.J. Hospital, Surendranagar where Dr. Yogendra Solanki had treated the patient and issued medical certificate at Exh. 43 wherein as many as eight injuries were narrated and out of which, except injury No. 3, rest of the injuries were not serious in nature. It further appears from the deposition of Dr. Solanki at Exh. 42 and the certificate at Exh. 43 that deceased-Hussainkhan Jaysingh was admitted in the hospital at 9 p.m. and was discharged at 10 p.m. on the same day i.e. 10.11.2004. In the chief examination, Dr. Solanki has specifically stated that after giving preliminary treatment at 10 p.m., the patient had taken discharge from the hospital as he wanted to take treatment from a private hospital and accordingly, he was discharged. If the entire deposition of Dr. In the chief examination, Dr. Solanki has specifically stated that after giving preliminary treatment at 10 p.m., the patient had taken discharge from the hospital as he wanted to take treatment from a private hospital and accordingly, he was discharged. If the entire deposition of Dr. Solanki is perused, it would appear that nothing has come on the record to show as to what kind of treatment had been given to deceased-Hussainkhan Jaysingh. Certificate Exh.43 is also silent on that aspect. It is an admitted fact that after discharge from the hospital at 10 p.m. on 10.11.2004, the patient was admitted to Shreeji Orthopaedic Hospital and Trauma Centre of Dr. Kamlesh Parikh on 11.11.2004 at about 2.40 a.m. Before said doctor also, no name of the appellant-original accused No. 1 or any of the accused was disclosed by deceased-Hussainkhan Jaysingh inspite of the fact that he was conscious. Dr. Parikh in his deposition at Exh. 46 has narrated nine injuries and deposed that injuries Nos. 6 and 9 were grievous and rest were simple. It is the fact that long treatment had been given to deceased-Hussainkhan Jaysingh at Shreeji Orthopaedic Hospital during the period between 11.11.2004 and 13.2.2005 and it appears from the certificate at Exh.48 issued by Dr. Parikh that deceased-Hussainkhan Jaysingh was discharged on 13.2.2005. In the internal page No. 6 of the certificate dated 12.3.2005 at Exh.48, it has been mentioned as under:- "4. 25-12-2004 : Reinsert of flap by Dr. Upadhyay. 5. 9-1-2005 : Division of flap by Dr. Upadhyay GA. 6. 31-1-2005 : Drill holes made on exposed titera 1/3 titera 7. 9-2-2005 : External fixation of the tibia fibula don ISA. 8. 13-2-2005 : Pt. Discharged with pus discharging wounds over proximal & distal tibia." 13. If the finding given at Sr. No. 7 above is verified, it would appear that on 9.2.2005, external fixation of right tibia fibula was done and when the deceased was discharged after long treatment, he was not completely recovered. Attention of this Court was drawn towards the deposition of the complainant wherein it was stated that thereafter again, the deceased was shifted to the hospital at Junagadh and leg of the deceased was amputated. However, to substantiate the said submission, nothing is forthcoming on the record. During the course of submission, even though Mr. Attention of this Court was drawn towards the deposition of the complainant wherein it was stated that thereafter again, the deceased was shifted to the hospital at Junagadh and leg of the deceased was amputated. However, to substantiate the said submission, nothing is forthcoming on the record. During the course of submission, even though Mr. Pathan, learned advocate for the original complainant, tried his best to find out any evidence from the record on that count, he could not lay his hands on any medical evidence after he was discharged from the hospital of Dr. Parikh on 13.2.2005. It is the fact that within a span of 16 months, deceased-Hussainkhan Jaysingh had passed away, however, except the death certificate, no documentary evidence in the form of post mortem report or anything is forthcoming on the record to show the cause of death of deceased-Hussainkhan Jaysingh. 14. Under the circumstances, considering the allegations made in the complaint and the improvements and the contradictions made by the complainant in his deposition which have been proved by the defence through the evidence of Investigating Officer and considering the period of twelve years elapsed after the incident coupled with the fact that rest of the appellants-original accused have already undergone the imprisonment of seven years imposed on them, a reasonable doubt has been created in the mind of the court so far as the role allegedly played by the appellant-original accused No. 1 is concerned and hence, appellant-original accused No. 1 is entitled to the benefit of doubt and, accordingly, present appeal is required to be partly allowed and the conviction and sentence imposed on him is required to be quashed and set aside. 15. Considering the medical evidence on record and what has been discussed hereinabove, I am of the view that sentence imposed by the trial court of seven years for the offence punishable under section326 of IPC qua other accused is just and proper and there is no room for enhancement and further, ingredients of offence punishable under section 307 of IPC are not attracted and I find myself in agreement with the conclusions and findings arrived at by the trial court and under the circumstances, there appears no reason to interfere with the impugned judgment and order in that regard. Hence, the Criminal Revision Application requires to be dismissed. 16. Thus, Criminal Appeal No. 1041 of 2008 is partly allowed. Hence, the Criminal Revision Application requires to be dismissed. 16. Thus, Criminal Appeal No. 1041 of 2008 is partly allowed. Impugned judgment and order dated 14.2.2008 passed by the learned additional Sessions Judge, Dhrangadhra, in Sessions Case No. 13 of 2005 is quashed and set aside qua appellant-original accused No. 1-Banaji @ Kalukhan Sambhaji and he is acquitted of the charges levelled against him. He is ordered to be set at liberty forthwith, if not required in any other case. Fine paid by him shall not be refunded. Since legality and validity of the impugned judgment and order qua original accused Nos. 2, 3 and 5 is not pressed by the learned advocate, Mr. I.H. Syed, as they have already undergone the prescribed period of sentence, this appeal qua them is disposed of accordingly. Impugned judgment and order shall stand modified only to the aforesaid extent. Remaining part of the impugned judgment shall remain unaltered. Criminal Revision Application, however, is dismissed. Rule is discharged. Record and proceedings shall be sent back forthwith to the trial court.