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7.1. In this connection, FIR was lodged before the Godhra police station, being I-C.R. No. 314/2000. In the course of investigation, both accused No. 1 and accused No. 2 were arrested. In connection with the same incident, a cross FIR was lodged by accused No. 1, being I-C.R. No. 315/2000, against the husband and in-laws of Onejaben.

7.2. On completion of investigation, chargesheet was filed against the accused persons before the trial court. Being a sessions triable offence, the case was committed to the Court of Sessions where it was registered as Sessions Case No. 292 of 2001 whereafter trial was initiated. In the trial, prosecution examined as many as 22 witnesses and also relied upon several documentary evidence. On conclusion of the evidence of the prosecution witnesses, statement of the accused were recorded under Section 313 of the Code of Criminal Procedure, 1973 (CrPC). Thereafter, the trial court vide the judgment and order dated 07.11.2006 convicted both the accused, i.e. Asgarali Onali Lokhandwala and Hussainbhai Asgarali Lokhandwala under Section 304 Part I IPC read with Sections 323 and 324 of the said Code. For the conviction under Section 304 Part I IPC, both the accused were sentenced to undergo RI for a period of five years and to pay a fine of Rs. 50,000.00 each with a default stipulation. It was clarified that out of total fine amount, an amount of Rs. 90,000.00 should be paid as compensation to the legal representatives of the deceased-Idrishbhai Fidaali Mithiborewala. For the conviction under Section 323 IPC, both the accused were sentenced to undergo RI for seven days and for the conviction under Section 324 IPC, they were sentenced to undergo RI for two years. All the sentences were directed to run concurrently with the period of imprisonment already undergone by the accused, given a set off. 7.3. In the related case arising out of I-C.R. No. 315/2000, Sessions Case No. 171 of 2004 came to be registered. Here, husband and in-laws of Onejaben were accused. On conclusion of the trial, all the accused in Sessions Case No. 171 of 2004 were acquitted by the trial court vide the judgment and order dated 07.11.2006.

10. Mr. Nikhil Goel, learned counsel for the appellant at the outset submits that the trial court was not justified in convicting the appellant under Section 304 Part-I IPC. Though the High Court had altered the conviction from one under Section 304 Part-I IPC to one under Section 304 Part-II IPC, it was not justified in sentencing the appellant to suffer RI for five years. According to the learned counsel, it is a clear case of acquittal. 10.1. Learned counsel for the appellant has placed reliance on the evidence tendered by PW-1, PW-2, PW-3, PW-4 and PW-5, more particularly on the evidence tendered by PW-3. According to him, though they all claim to be eyewitness to the incident, they were interested witnesses. He submits that a dispassionate analysis of the evidence tendered by the aforesaid witnesses would clearly reveal that the appellant had acted in private defense. It was the deceased and the others who were the aggressors. This aspect was overlooked by the High Court while altering the conviction. In support of his submissions, as regards private defense, learned counsel has relied upon a decision of this Court reported in Sukumaran vs. State1. He finally submits that Criminal (2019) 15 SCC 117 Appeal No. 1691 of 2023 may be allowed and conviction and sentence of the appellant may be set aside.

11. Ms. Archana Pathak Dave, learned counsel appearing for the State of Gujarat on the other hand supports the impugned order and judgment. On a query by the Court, she submits that State has not filed any appeal against the altered conviction and modified sentence of accused No.1 Asgarali Onali Lokhandwala and of accused No.2 Hussainbhai Asgarali Lokhandwala (appellant herein). Contending that there is no merit in the appeal, she seeks dismissal of the same.

12. On the other hand, Ms. Meenakshi Arora, learned senior counsel appearing for the informant, has opposed the prayer made in Criminal Appeal No.1691 of 2023 and has further prayed that Criminal Appeal No. 1692 of 2023 filed by the informant may be allowed. According to her, it is a clear case of murder committed by both the accused resulting in the death of Idrishbhai Fidaali Mithiborewala. While the trial court was not justified in only convicting the two accused persons under Section 304 Part-I IPC, the High Court committed further error by altering the conviction from one under Section 304 Part-I IPC to one under Section 304 Part-II IPC. Referring to the evidence tendered by PW-1 and the other prosecution witnesses as well as the cross-examination of PW-18, she submits that the clear picture which emerges therefrom is that it was a brutal assault on the deceased by the two accused resulting in his death and hence a case of murder under Section 302 IPC is made out. She further submits that this Court should interfere with the altered conviction as well as the modified sentence imposed by the High Court and thereafter suitably convict the appellant and the other co-accused.

22. The trial court had convicted Asgarali and Hussainbhai under Section 304 Part I IPC as well as under Sections 323 and 324 thereof. On appeal, the High Court by the impugned judgment and order altered the conviction of both Asgarali and Hussainbhai from one under Section 304 Part I IPC to one under Section 304 Part II IPC. While the sentence of Asgarali was modified to the period of incarceration already undergone by him, that of Hussainbhai was modified to five years.