JUDGMENT : ANANT S. DAVE, J. Criminal Appeal No. 1644 of 2013 is preferred under Section 378(1)(3) of Code of Criminal Procedure, 1973 (for short, “Code 1973”) against the judgment and order of acquittal passed by the learned Sessions Judge, Rajkot in Sessions Case No. 140 of 2011 dated 23.7.2013 in respect of original accused no. 1, who is acquitted of offences punishable under Sections 307 and 188 of the Indian Penal Code (for short, “IPC”). While, Criminal Appeal No. 1646 of 2013 is filed under Section 377 of Code 1973 against the very judgment in which the respondent/original accused no. 2, is convicted under Section 324 of IPC, but acquitted of offences under Sections 307 and 188 of IPC. Respondent/original accused no. 2 is convicted, however, keeping in mind sentence of three years of imprisonment or fine or both for offence under Section 324, learned trial Judge imposed fine of Rs. 15,000/- and out of which Rs. 10,000/- to be paid to the injured-victim and the above fine is paid by respondent no. 2. Thus, Criminal Appeal No. 1646 of 2013 is for enhancement of sentence awarded under Section 324 of IPC qua respondent/accused no. 2. 2. In nutshell, according to complainant Laljibhai alias Lalo Babubhai Babariya, on 24.7.2011 around 15.00 hours, due to instigation of injured Narubhai Bhikhabhai, the wife of accused no. 2, Vijay alias Pintu, used to quarrel with members of her family and had gone to her parental home and due to such enmity when Narubha was standing nearby the pan shop of Haribhai Mahajan, Narubhai was assaulted by accused no. 1 - Gobarbhai and accused no. 2-Pintu alias Vijay, father and son duo, having baseball stick and iron pipe along with two other unknown persons with clear intention to cause death, caused severe injuries by inflicting blows of iron pipe, baseball stick, stick etc. Injured was hospitalized and at the end of investigation charge sheet was filed and the case was triable by the Sessions Court, accordingly committed, in which impugned judgment and order was passed to which reference is made in earlier paragraph. 3. Injured was hospitalized and at the end of investigation charge sheet was filed and the case was triable by the Sessions Court, accordingly committed, in which impugned judgment and order was passed to which reference is made in earlier paragraph. 3. Learned APP appearing in both these appeals has taken us to evidence on record, appreciation thereof, reasons assigned for arriving at findings and conclusion and submitted that in this case three eye-witnesses have supported the case of prosecution including injured Narubhai Bhikhabhai, PW-2, Laljibhai Babariya, PW-1 and complainant, and Gagji Dhanjibhai, PW-3, at Exh.26, 24 and 30 respectively. Their version is well supported by Dr. Prakashchandra Modha, PW-12, at Exh.54, who treated the injured PW-2 and in no uncertain terms deposed that injuries were fatal and possible by usage of weapon possessed by the accused. The evidence as above ought to have been appreciated in correct perspective by learned trial Judge. It is further submitted that utterances of words before actual commission of crime reflected intention on the part of the accused to kill the injured PW-2 and the above fact is borne out from different testimonies of PW-1 and PW-3. It is submitted that baseball stick, iron pipe, clothes of injured as well as of accused for FSL examination established blood groups of “O” positive that of injured and “B” that of accused. Collectively, evidence so produced and established by the prosecution establish the guilt of the accused and nexus with the crime and, therefore, the prosecution proves its case beyond reasonable doubt which ought to have resulted into conviction and sentence under Section 307, or alternatively maximum sentence provided under Section 324 of IPC, viz. three years imprisonment or fine or with both ought to have been imposed. Learned APP has taken us to the oral testimonies of PW-1 complainant, PW-2 injured and eyewitness, PW-3 an eye-witness. PW-4, PW-5, PW-6, PW-7 and PW-8 have turned hostile. Out of which PW-4 and PW-8 are eye witness, while others are panch witnesses. Police witnesses, PW-10, PW-11, according to learned APP have supported the case of the prosecution. Learned APP has taken us to the oral testimonies of PW-1 complainant, PW-2 injured and eyewitness, PW-3 an eye-witness. PW-4, PW-5, PW-6, PW-7 and PW-8 have turned hostile. Out of which PW-4 and PW-8 are eye witness, while others are panch witnesses. Police witnesses, PW-10, PW-11, according to learned APP have supported the case of the prosecution. Likewise documentary evidence included complaint-Exh.25, scene of offence panchnama-Exh.34, seizure of muddamal-Exh.38, arrest panchnama-Exh.42, various yadis sent by investigating officer, dying declaration-Exh.71, FSL report-Exh.72 Accordingly, it is submitted that both the appeals are required to be allowed by enhancing the sentence and reversing the order of acquittal as prayed for in both these appeals. 4. We have heard Mr. P.V Patadiya, learned advocate for the respondent - original accused no. 2 and Ms. Tejal Shah, learned advocate for original accused no1, who is acquitted. According to learned advocate for original accused judgment and order of acquittal is a well-reasoned order, upon appreciation of evidence declaring innocence of the accused, warrant no interference in this appeal against acquittal and powers of the appellate Court are circumscribed by various decisions of the Apex Court, particularly when view of the trial Court declaring no guilt of the accused and believing their innocence. Even if the appellate Court has another view, the same is not permissible unless cogent, convincing and clinching evidence is either ignored or not appreciated in proper perspective by the trial Court resulting into miscarriage of justice. Therefore, according to them, both these appeals deserve to be rejected. 5. Having heard learned APP and learned advocates appearing for the original accused, and perusal of entire record of the case including the judgment and order under challenge, we find prayer in Criminal Appeal No. 1646 of 2013 filed under Section 377 of Code 1973 against original accused no. 2-Vijay alias Pintu Gobarbhai Jadavbhai Jakheliya Koli is for enhancement of the sentence awarded for the offences under Section 324, while prayer in Criminal Appeal No. 1644 of 2013 is to convict original accused no. 1 for the offence under Sections 307, 188 and 114 of IPC by setting aside the acquittal so ordered by the trial Court. 2-Vijay alias Pintu Gobarbhai Jadavbhai Jakheliya Koli is for enhancement of the sentence awarded for the offences under Section 324, while prayer in Criminal Appeal No. 1644 of 2013 is to convict original accused no. 1 for the offence under Sections 307, 188 and 114 of IPC by setting aside the acquittal so ordered by the trial Court. It will be just and proper if we briefly refer to the testimonies of the eye-witnesses including the injured Narubhai since we are in agreement with the reasonings, findings and conclusion drawn by the trial Court for the final order of conviction and sentence passed under Section 324 of IPC qua original accused no. 2 and acquittal of original accused no. 1 of all the offences. It is pertinent to note that PW-2, injured-Narubhai, whose dying declaration was recorded at Exh.72 at around 12.40 on 25.7.2011 by Executive Magistrate reveal presence of Pintu alias Vijay accused no. 2, who suddenly gave a blow of pipe on head of Narubhai resulted into bleeding and thereafter he became unconscious and he had no knowledge about hospitalization. Though the above statement in view of survival of injured can be appreciated as a previous statement, in the testimonies number of improvements are noticed but fact remains as per medical evidence that one injury on the head resulting into extra axial hemorrhage is seen in right high frontal region and C.T Scan carried out on the day after the incident i.e. 27.6.2011 reveal small thing hairline fracture and no further complication had arisen as the injured was discharged with the stitches from the hospital. Dr. Prakashchandra Modha, Medical Officer, PW-26 examined at Exh.53 opined about injuries and medical certificate, Exh.55, deposed and confirmed and admitted the injuries but about possibility of such injuries resulting into death no clear opinion was given except that injuries were fatal. The above medical witness had not produced any papers of treatment or relied thereon. Even nature of treatment given for such injuries, no clear opinion was rendered except that such injuries were inflicted on parietal region of the head, which is a tender part of the body. Thus, injuries on the body of the injured, medical certificate, version of the injured in the dying declaration and testimony of doctor Prakashchandra Modha reveal that injured was not assaulted by indiscriminate blows of instruments or weapons of assault. That presence of accused no. Thus, injuries on the body of the injured, medical certificate, version of the injured in the dying declaration and testimony of doctor Prakashchandra Modha reveal that injured was not assaulted by indiscriminate blows of instruments or weapons of assault. That presence of accused no. 1-Gobarbhai is not shown by injured, PW-2, Narubhai. So far as testimonies of Gagjibhai, PW-3 is concerned, even as per the say of the injured PW-2 Narubhai he had dropped PW-3 at his residence and, therefore, learned trial Judge has rightly not believed presence of PW-3 at the scene of offence. The testimonies of Laljibhai again suffers from vices of discrepancies, omissions and improvements, if seen in the context of complaint Exh.25 FSL report, Exh.72 conclusively do not establish guilt of the accused and at the most it confirms blood group of injured and the accused but in absence of clear analysis of blood stain marks either on the body of the injured or the accused, it cannot be said that such circumstance is proved beyond reasonable doubt by the prosecution. Even iron pipe which was sent for FSL contained no blood stains/marks. Overall circumstances reveal certain events preceded before the crime was committed viz. exchanges of abusive words, stone pelting etc. including injured Narubhai picking up a wooden stick from his motor bike either trying to resist assault made by the accused or to make a counter attack. As it may be, we are convinced that neither oral nor documentary evidence establish the guilt of the accused, resulting into acquittal so ordered by the trial Court suffers from any illegality warranting interference of this Court in exercise of powers under Section 377, 378(1)(4) read with Section 386 of the Code 1973. 6. Accordingly, both these appeals are dismissed. The impugned judgment and order dated 23.7.2013 passed by the learned Sessions Judge, Rajkot in Sessions Case No. 140 of 2011 acquitting original accused no. 1 of offences under Sections 307 and 188 of the Indian Penal Code and convicting original accused no. 2 of offence under Section 324 of IPC, while acquitting him of offences under Sections 307 and 188 of IPC is hereby confirmed. Bail bond, if any, stands cancelled. Registry to return the R&P to the concerned trial Court forthwith.