A. K. TRIVEDI, J. ( 1 ) HEARD learned Sr. Counsel Mr. M. R. Barot for the appellants and learned A. P. P. Shri S. P. Dave for the respondent-State. ( 2 ) THE appellants hereinabove alongwith one Bai Mani the wife of the appellant No. 1 and one Surekha, the daughter of appellant No. 1 came to be tried by the learned sessions Judge, Valsad at Navsari in the matter of Sessions Case No. 91/88 in respect to the charge for the offences made punishable under Secs. 302, 326, 324, 307 read with secs. 147, 148 and 149 of the Indian Penal Code ("ipc" for short), in the alternative read with Sec. 34 of the IPC. That vide impugned judgment and order dated 12. 2. 1990, the learned Sessions Judge Convicted the appellants (original accused Nos. 1, 2 and 3) for the offences made punishable under Sec. 302 read with Sec. 34, IPC. That the appellant No. 2 (original accused No. 2) is also convicted for the offence made punishable under Sec. 324, ipc while the appellant No. 3 is convicted for the offence made punishable under Sec. 302 read with Sec. 34, IPC and also for Sec. 323, IPC and imposed the sentence on all the appellants of rigorous imprisonment for life. That no separate sentence is imposed on appellant No. 2 for the conviction under Sec. 324, IPC. Similarly, no separate sentence is imposed on the appellant No. 3 for the conviction under Sec. 323. That vide said judgment and order, the learned Sessions Judge acquitted Bai Mani and Surekha (original accused Nos. 4 and 5) from all the offences charged against them. ( 3 ) THAT the appellants have filed the present appeal to challenge the said judgment and order of conviction as well as sentence imposed on them. It may be noted that being aggreived and dissatisfied by the said judgment and order of acquittal in respect to original accused Nos. 4 and 5, State had preferred application claiming leave to file acquittal appeal vide Appeal No. 374/90. However, vide order dated 28. 3. 1990 this Court (Coram : N. B. Patel and S. M. Soni, JJ.) refused to grant the leave and rejected the appeal summarily. That vide order dated 14. 3. 1990, this Court (Coram : G. T. Nanavati and K. J. Vaidya, JJ.) admitted the present appeal. However, vide order dated 28. 3. 1990 this Court (Coram : N. B. Patel and S. M. Soni, JJ.) refused to grant the leave and rejected the appeal summarily. That vide order dated 14. 3. 1990, this Court (Coram : G. T. Nanavati and K. J. Vaidya, JJ.) admitted the present appeal. That vide subsequent order dated 28. 3. 1990 the appellant No. 3 was ordered to be released on bail with certain conditions as stated in the order and vide order dated 28. 12. 1993 the final hearing of the appeal was expedited and was ordered to be listed for hearing in the month of February, 1994. ( 4 ) THAT the prosecution case as emanating from the material produced on record could briefly be stated as under : that the appellant No. 1 and deceased Dahyabhai Parshottam are the heirs of common descendants and at the time of incident were residing with their respective family in a house situated adjacent to each other. That prior to the incident the family members of appellants as well as deceased Dahyabhai Parshottam were at dispute on account of division of ancesstral property. The prosecution has alleged that on 4. 10. 1988 one Natubhai the brother of deceased Dahyabhai who is also the injured witness had complained to the Sarpanch of village in respect to removal of a babul tree which had fallen on the land which was being used as a thrashing part of the field by the family of deceased Dahyabhai Parshottam. That thereby the Sarpanch had instructed Bai Mani, the wife of the appellant No. 1 to arrange to remove the said babul tree. The prosecution has further alleged that Bai Mani had represented to the Sarpanch to the effect that on availability of labourers the fallen tree shall be removed within 2 to 3 days. That thereafter in the evening at around 8. 00 p. m. when deceased Dahyabhai Parshottam, his brother Natubhai alongwith their mother Dhediben and the wife of the deceased Ushaben were coming to the front portion of their house from the rear part of the building the appellants (hereinafter referred to as "the accused Nos. 1, 2 and 3) alongwith Bai Mani and Surekha (the accused Nos. 4 and 5) were standing at the front door of their house and were abusing. 1, 2 and 3) alongwith Bai Mani and Surekha (the accused Nos. 4 and 5) were standing at the front door of their house and were abusing. According to prosecution when the appellant and his family members opened the door and came out on the otta to inquire about, the accused Nos. 1 and 2 caught hold of deceased Dahyabhai Parshottam and dragged him from the Otta to the road about 8 to 10 ft. That the accused No. 1 had inflicted one axe blow on the head of deceased Dahyabhai and as such deceased had fallen on the ground. That accused No. 2 mahesh had inflicted a knife blow on the back of the deceased. That Natubhai, the brother of the deceased attempted to intervene and the accused No. 3 inflicted a blow with crow bar (parai) on his head. That thereby Natubhai has become unconscious. That mother of the deceased Dhediben tried to intervene. At that time the accused No. 3 inflicted a blow of crow bar on her legs. That the accused Nos. 4 and 5 gave stick blows to them and thereafter all the accused had run away with their weapons. That injured Dahyabhai and Natubhai were removed to Mengusi Hospital, Bilimora at around 9. 00 p. m. by the persons gathered there for the treatment. That injured dahyabhai expired in the hospital at 10. 45 p. m. during treatment while injured witness natubhai was subsequently discharged on 13. 10. 1988 i. e. within l0 days of the incident. That Ushaben the wife of deceased Dahyabhai had given the complaint. The PS1 ghanshyam Nirubha Jhala who was present at the police station has recorded the FIR and on registration of the offence against the accused carried out the investigation and filed the charge-sheet. ( 5 ) THAT in order to establish the charge the prosecution examined in all thirteen witnesses as under and also produced documentary evidence as well as Muddammal weapons and articles: 1. PW. 1 Dhirubhai Panabhai Patel, Exh. 27 Panch Witness for recovery of clothes of the deceased, inquest Panchnama and recovery of weapons. 2. PW. 2 Maganbhai Narsibhai, Exh. 29, the Sarpanch of village. 3. PW. 3 Kuvarjibhai Jagabhai Rajput, Exh. 31 Circle Inspector who has prepared the map of the scene of incident. 4. PW. 4 Kishorebhai Bhanabhai Patel, Exh. PW. 1 Dhirubhai Panabhai Patel, Exh. 27 Panch Witness for recovery of clothes of the deceased, inquest Panchnama and recovery of weapons. 2. PW. 2 Maganbhai Narsibhai, Exh. 29, the Sarpanch of village. 3. PW. 3 Kuvarjibhai Jagabhai Rajput, Exh. 31 Circle Inspector who has prepared the map of the scene of incident. 4. PW. 4 Kishorebhai Bhanabhai Patel, Exh. 33 rickshaw driver who is alleged to have been driven away by the accused No. 1. 5. PW. 5 Arvindbhai Dhirubhai Tandel, Exh. 34 who carried the injured witnesses in his rickshaw to the hospital. 6. PW. 6 Dineshbhai Daulatbhai, Exh. 35 a neighbour who arranged to take the injured to the hospital. 7. PW. 7 Haribhai Bhanabhai, Exh. 36 Panch Witness in respect to the panchnama of the scene of offence. 8. PW. 8 Ushaben, Exh. 38 the widow of deceased and the original complainant. 9. PW. 9 Natubhai Prabhubhai, Exh. 40 injured eye witness. 10. PW. 10 Dhediben Prabhubhai, Exh. 41 injured eye witness. 11. PW. 11 Dilip Ishverlal Dalai, Exh. 42 a Medical Officer of Mengusi hospital, Billimora who has examined and treated injured witnesses and has issued injury certificates Exhs. 46, 47. He has also carried out the postmortem and has proved the P. M. note, Exh. 48. 12. PW. 12 Govindrao Krishnarao Kadam, Exh. 49 Police Head Constable who has registered the offence as PSO. 13. PW. 13 Ghanshyamsinh Nirubha. Zala Exh. 52 PSI, the Investigating Officer. That the list of Muddamal articles is produced at Exh. 18 while Panchnamas are produced at Exhs. 21, 23 and 37. The FIR is produced at Exh. 39. ( 6 ) MR. M. R. Barot, learned Sr. Counsel appearing for the appellant has fairly stated at the Bar that in view of the fact that the appellant Nos. 1 and 2 have already undergone sentence of imprisonment for more than 10 years and having earned the benefit of two years remission on account of Golden Jubilee Year of Independence have almost served the major part of the sentence. Under the circumstances, he would restrict the contest in respect to the nature of offence for which the appellants are convicted and the quantum of sentence imposed on them to avoid undue academic exercise. It is submitted that the Trial Court has rightly rejected the prosecution case in respect to charge for the offence made punishable under Secs. Under the circumstances, he would restrict the contest in respect to the nature of offence for which the appellants are convicted and the quantum of sentence imposed on them to avoid undue academic exercise. It is submitted that the Trial Court has rightly rejected the prosecution case in respect to charge for the offence made punishable under Secs. 147, 148 and 149 of IPC. However, the Trial Court has failed to appreciate the distinction between offence of "murder" and "culpable homicide not amounting to murder". That in the instant case if the medical evidence as well as the evidence of eye witness PW. 8 Ushaben, the complainant and PW. 9, the injured witness Natubhai are construed in proper perspective the appellants Nos. I and 2 cannot be held to have committed the offence of "murder" but at the most for the offence punishable under Sec. 304 Part I. Furthermore, in absence of any cogent or convincing evidence to establish any overt or covert act on the part of the appellant No. 3 qua deceased Dahyabhai Parshottamdas, the conviction of the appellant No. 3 for the offences made punishable under Sec. 302 read with Sec. 34 cannot be sustained. That the appellant No. 3 could be attributed to have caused simple hurt to injured witness natubhai. Mr. Barot has also submitted that considering the decade old animosity between the rival parties and the fact that prosecution has tried to implicate the entire family of the appellant No. 1 for various offences by deposing exaggerated version of the incident which is not in consonance with the medical evidence; the Court should leniently consider the aspect of sentence to be imposed on the appellant, keeing in mind, the period of imprisonment already undergone by each of the appellant. As against that learned A. P. P. Mr. S. P. Dave has supported the judgment of the Trial court and has urged that no alteration in the order of conviction or sentence is warranted in the facts and circumstances of the present case. ( 7 ) IN order to appreciate the rival submissions as urged at the Bar, it is necessary to consider the medical evidence produced on record and to examine the same in the context of evidence of eye witnesses PWs. 8, 9 and 10. ( 8 ) AS per the postmortem note Exh. ( 7 ) IN order to appreciate the rival submissions as urged at the Bar, it is necessary to consider the medical evidence produced on record and to examine the same in the context of evidence of eye witnesses PWs. 8, 9 and 10. ( 8 ) AS per the postmortem note Exh. 48 following external injuries were found on the dead body of deceased Dahyabhai Parshottamdas : (1) Incised wound (Lt) Parieto Occipital region little concave wound towards (Lt.) 4 1/2" x 1" with fracture occipital and parital region with crush injury to brain. (2) Incised wound rt. shoulder 3" x 1/2" muscle deep. Lt. Lower abdomen 2" x 1/2" muscle deep. (3) Abrasion (Lt) knee joint 2" x 1/2". That the corresponding internal injury as deposed by PW. 11 Dr. Dilip Dalal, Exh. 42 vide para 6 could be listed as under : "brain was congested and crushed in occipital lobe. Lungs, heart were congested. In stomach loz of froth by fluid without smell of alcohol. In my opinion expired due to extensive head injury and due to shock and haemorrhage. " ( 9 ) IT may be noted that during crosss-examination PW. 11 Dr. Dalal has admitted in paragraph 11 of his deposition,". . . hard and blunt substance can cause crush fracture of skull. Sharp weapon causes fissured fractures. I cannot say that injury to skull wall would indicate weapon used. I agree that looking to internal findings of P. M. notes indicates that weapon used may be hard and blunt. I agree that often CLW on scalp be mistaken as incised wound. . . . . " ( 10 ) THAT as per injury certificate Exhs. 46 and 47 proved by PW. 11 Dr. Dalai, the following injuries were found on the body of injured witnesses Dhediben and Natubhai respectively : 1. Incised wound left leg lower 1/3 anterior aspect 1/2" x 1/4" muscle deep. Contusion right forearm 3" x 1" posterior aspect near elbowjoint. 2. C. L. W. occipital region 3-1/2" x 1/4". Incised wound (It.) anxilla 2" x 1/2" antaxillary cold through and through. Contusion (It.) forearm 1/2" x 1/2". C. L. W. (Rt.) middle third of arm, 3-1/2" x 1/4" muscle deep. Contusion (It) eye brow 1/4" x 1/4". ( 11 ) THAT the original complainant-Ushaben has given following version in her FIR exh. Incised wound (It.) anxilla 2" x 1/2" antaxillary cold through and through. Contusion (It.) forearm 1/2" x 1/2". C. L. W. (Rt.) middle third of arm, 3-1/2" x 1/4" muscle deep. Contusion (It) eye brow 1/4" x 1/4". ( 11 ) THAT the original complainant-Ushaben has given following version in her FIR exh. 39 to the concerned Police Officer at about 10. 00 p. m. on 4. 10. 1988. . . . . On 4. 10. 1988. . . . . That in the evening at around 8. 00 p. m. , she alongwith her family members were moving to their house from the rear portion of the building and as they entered their house they heard abuses being given by the accused Nos. 1 to 5. That when she opened the door, she found the accused No. 1 armed with axe. That accused No. 2 was armed with dharia and the accused No. 3 was armed with crowbar (parai ). That the accused Nos. 4 and 5 were also there with stick in their hands. That the accused Nos. 1 and 2 dragged her husband Dahyabhai from the front door of the house towards the road and the accused No. 3 had dragged her brother-in-law Natubhai. That the accused No. 1 had given an axe blow on the head of her husband Dahyabhai near the front door while the accused No. 2 had given a knife blow on the back of her husband. That the accused no. 3 had given a blow of crowbar on the head of her brother-in-law Natubhai. That the accused No. 4 had given stick blows to her brother-in-law Natubhai on the hands and legs. That the accused No. 2 had given knife blow on the chest below left hand. That her mother-in-law Dhediben intervened and she received injuries on her right knee and left leg. That on account of their shouting for help the accused Nos. 1 to 5 had run away with the weapons that thereafter the persons gathered there, removed the injured to the mengusi Hospital and she has come to police station to give her complaint. ( 12 ) USHABEN PW. 8 has deposed vide Exh. 38 before the Court as under : in paragraph 3 of her deposition she has stated that when they entered the house and opened the outer door she had seen the accused Nos. ( 12 ) USHABEN PW. 8 has deposed vide Exh. 38 before the Court as under : in paragraph 3 of her deposition she has stated that when they entered the house and opened the outer door she had seen the accused Nos. 1 to 5 standing outside the door. That the accused were abusing. That the accused Nos. 1 and 2 caught hold of hand of her husband Dahyabhai and dragged him about 8 to 10 ft. and thereafter the accused No. 1 had given an axe blow on the head of her husband. That thereby her husband Dahyabhai had fallen on the ground. That after her husband fell on the ground the accused No. 2 had given a knife blow on his back. That her husband had fallen on the ground facing downwards. Her brother-in-law Natubhai attempted to intervene. At that time the accused no. 3 had given a blow with crowbar on the head of Natubhai. That thereby her brother-in-law Natubhai bent down. Thereafter the accused No. 2 had given two dharia blows on both the shoulders of Natubhai and had also given a blow on his neck and thereafter had given knife blows on his back. Thereby Natubhai had fallen on the ground and he was unconscious. He was bleeding. That thereafter my mother-in-law Dhediben tried to intervene and as such the accused No. 3 had given a blow of crowbar on her legs. That the accused Nos. 4 and 5 have given stick blows to her mother-in-law on her back. That thereby her mother-in-law had also fallen on the ground. That neighbours have gathered there on hearing their shouts for help and as such the accused Nos. 1 to 5 had run away with the weapons to their house. That thereafter a rickshaw was called. However, the accused No. 1 came out and drove away the rickshaw driver. That in the meanwhile the Sarpanch and others had come there who had called another rickshaw and they had taken her husband injured Dahyabhai, her brother-in-law Natubhai and her mother-in-law dhediben to the Mengusi Hospital. They have reached the hospital at around 9. 30 p. m. and thereafter she had gone to the Police to lodge the complaint. She had also stated that there was a dispute between her family members and the family of the accused Nos. They have reached the hospital at around 9. 30 p. m. and thereafter she had gone to the Police to lodge the complaint. She had also stated that there was a dispute between her family members and the family of the accused Nos. 1 to 5 since last 10 to 12 years about property. ( 13 ) THAT during the cross-examination PW. 8 Ushaben has stated as under: ". . . . . I have not stated before the police that there was light on the Otta portion. . . . . My husband was strong and sturdy and had equal height to accused No. 1. . . My husband has not made any scuffle when he was being dragged from the otta. . . The accused Nos. 1 and 2 were abusing with anger while dragging my husband. Both were armed with weapons and as such I felt that they will mount an assault, hence I had started to shout for help. . . . The width of the Otta is about 4 to 5 feet. My husband was dragged beyond Otta but he had not attempted to get free. . . . My husband sustained scratches on knee and hands when he was dragged. Ambu Kika (accused No. 1) had given first blow on the head of my husband when he was being dragged. My husband was caught by one. hand and axe blow was given by another hand. . . . My brother-in-law (Natu) was two to three feet away when axe blow was given to my husband. . . . Accused No. 3 had dragged my brother-in-law. My brother-in-law is strong and sturdy as compared to accused No. 3. . . . . . . I have stated before police that my husband and brother-in-law were unconscious. . . . That my brother-in-law regained consciousness on the next day. He was unconscious till the morning of next day when I had left the hospital to go to my home. . . . All the five accused were standing below the Otta when we had entered the front room from rear side of the house. ( 14 ) PW. 9 Natubhai Parbhubhai who is an injured eye witness has deposed vide Exh. 40. The material portion is stated hereunder :". . . . Para-4. . . . . . . All the five accused were standing below the Otta when we had entered the front room from rear side of the house. ( 14 ) PW. 9 Natubhai Parbhubhai who is an injured eye witness has deposed vide Exh. 40. The material portion is stated hereunder :". . . . Para-4. . . . When we entered into the front room of the house, the accused were abusing, standing in the courtyard of our house. As soon as we had come out on the Otta, the accused No, 1 came running and caught hold of my brother and dragged him into the courtyard. That the accused No. 1 had given an axe blow on the head of my brother, thereby he fell down. That the accused No. 2 having taken out a knife from his pocket had given a knife blow on the back of my brother. When I tried to intervene the accused No. 3, caught hold of my hand and dragged me to the courtyard and gave a blow of crow-bar on the head. That thereby I felt like fainting. That thereafter accused No. 2 gave dharia blow on my left hand and three blows near neck. That accused No. 2 also gave two knife blows on my back accused No. 3 gave a blow of crow-bar on right thing. I do not know who had given blow on my legs. Thereafter I fell down and became unconscious. I regained consciousness in the Mengusi Hospital. . . "that PW. 9 has stated during cross-examination as under:". . . . . IN para 6 it is stated. . . . . accused No. 3 is younger to me. He has given the blow of crow-bar on my head with both the hands. That as a result I felt like I would faint but I had not become unconscious. The accused No. 1 had caught hold of my brother with one hand and had given axe blow on his head with other hand. . . . I did not intervene to save my brother, but before I could intervene the accused No. 3 had dragged me. I might have forgotten to mention in my police statement that I was to intervene to save my brother. . . . " ( 15 ) THAT PW. 10 Dhediben who is also an injured eye witness, has deposed vide Exh. I might have forgotten to mention in my police statement that I was to intervene to save my brother. . . . " ( 15 ) THAT PW. 10 Dhediben who is also an injured eye witness, has deposed vide Exh. 41. The material portion is set out hereunder :". . . . . PARA 3. . . . . We had opened the door to look on Otta as to who were abusing from outside. In the meanwhile the accused Nos. 1 and 2 dragged my son Dahyabhai from the place near the door to the place below the Otta. The accused No. 1 had given axe blow on the head of Dahya. When Natu tried to intervene, the accused No. 3 had given a blow of crow-bar on his head but Natu moved away. Thereafter, accused No. 2 gave dharia blows and knife blows to natu. Then I intervened and accused No. 3 gave a blow of crow-bar on my left leg. That thereafter accused Nos. 4 and 5 had given stick blows on my right hand and right leg. I shouted for help and sat down. . . . . "that during cross-examination, the witness has stated as under:". . . . I have not stated before police that accused had dragged my son Dahya from our house to the place below the Otta. . . . . It is not true that Dahya and natu were lying just near the main road. But they were lying near the door of our house ( 16 ) THAT the following material contradictions are proved through the evidence of investigating Officer PW. 13 who has deposed vide Exh. 52 : (a) The complainant PW. 8 Ushaben has not stated in police statement that her brother-in-law had tried to intervene to save her husband. (b) PW. 8 has not stated in police statement that when her mother-in-law intervened, the accused No. 3 had given a blow of crow-bar on her leg. That accused No. 4 Bai Mani had given a stick blow to her on hand and the accused No. 5 Surekh had given stick blow on her back. (c) PW. 8 has not stated in her police statement that the accused No. 2 had given dharia blows on both the shoulders and near the neck. (d) PW. 9 Natu has not stated in police statement that the accused Nos. (c) PW. 8 has not stated in her police statement that the accused No. 2 had given dharia blows on both the shoulders and near the neck. (d) PW. 9 Natu has not stated in police statement that the accused Nos. 1 and 2 had entered into their house and had dragged his brother Dahya outside. He has also not stated in the police statement that he was about to intervene to save his brother. (e) PW. 9 Natu has not stated in police statement that the accused No. 2 had given him three dharia blows near neck and two knife blows on the back. (f) PW. 9 has stated before police that all the accused Nos. 1 to 5 had collectively entered into their house and had dragged outside his brother dahya and his mother Dhediben alongwith him. (g) PW. 10 Dhediben has not stated in her police statement that accused No. 3 had given a blow with crow-bar to her. ( 17 ) THAT PWs. 8, 9 and 10 the eye witnesses, being interested and partisan to prosecution, their evidence should be subjected to strict scrutiny and corroboration before accepting the same against the accused persons. Keeping in mind the said proposition, if the version of the incident in question as deposed by said eye-witnesses, is appreciated, she genesis and details of the occurrence of the incident as projected by the prosecution cannot be said to be without any clouds of reasonable doubt. If the sequence of events constituting the incident of assault is objectively construed after discarding the exaggeration, variation and contradictions from the versions deposed by PWs. 8, 9 and 10, following conclusions could be derived : (a) The incident of assault must have been preceded by exchange of abuses between the rival parties and scuffle between the deceased Dahyabhai and the accused Nos. 1 and 2 as well as between injured witness Natu and the accused No. 3. (b) That the head injury sustained to the deceased Dahyabhai must have been sustained during the scuffle with the accused Nos. 1 and 2 and not at the inception of the incident. (c) That the nature and extent of corresponding internal injuries of the said head injury being a "crush injury" the external injury must be C. L. W. mistaken as "incised wound", while recording the same as injury No. 1 in P. M. Note Exh. 48. 1 and 2 and not at the inception of the incident. (c) That the nature and extent of corresponding internal injuries of the said head injury being a "crush injury" the external injury must be C. L. W. mistaken as "incised wound", while recording the same as injury No. 1 in P. M. Note Exh. 48. (d) That the injury of two incised wounds as noted in P. M. Note Exh. 48 must have been sustained by the deceased during the said scuffle with the accused nos. 1 and 2. (e) That considering the nature and extent of corresponding "crush injury" on the head as found on the body of deceased Dahyabhai it could not be said to be as a result of premeditated or intentionally inflicted blow with the sharp side of the axe, with intent to cause the death of the deceased. However, the accused Nos. 1 and 2 could be attributed knowledge that the resultant injury might be of the nature as of "likely to cause death" of the deceased. But it could also not be said that the accused No. 1 and 2 have inflicted such injury having taken undue advantage or had acted in a cruel and unusual manner - as prescribed vide exception four to Sec. 300 of IPC. (0 There is no material evidence to infer the fact that the accused No. 3 also shared the "common intention" alongwith the accused Nos. 1 and 2 and/or the accused No. 3 had acted in furtherance of such "common intention"; when deceased Dahyabhai sustained the bodily injuries in the said incident of assault; and as such the accused No. 3 cannot be held liable for the injuries caused to the deceased Dahyabhai, in the said incident. ( 18 ) THAT the conceptual distinction between the offence of "murder", as punishable under Sec. 302 of the IPC and, "culpable homicide not amounting to murder", as punishable under Sec. 304 Part I or II, is elaborated by the Apex Court in the matter of state ofandhra Pradesh vs. Rayavarapu Punnayya and Anr. , reported in AIR 1977 SC 45 into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. " ( 19 ) THAT the Trial Court has rejected the prosecution case regarding formation of alleged unlawful assembly by the accused Nos. , reported in AIR 1977 SC 45 into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. " ( 19 ) THAT the Trial Court has rejected the prosecution case regarding formation of alleged unlawful assembly by the accused Nos. 1 to 5 with a "common object", to mount assault on the deceased and his family members with deadly weaponts so as to cause death of deceased Dahyabhai and to cause bodily harm to any person who attemps to intervene to save said Dahyabhai etc. However, the Trial Court appears to have erred in law and has convicted the accused Nos. 1, 2 and 3 for the offence made punishable under sec 302 read with Sec. 34 of the Indian Penal Code. In our considered opinion, such error is required to be corrected in view of facts and circumstances involved in the matter as analyzed and discussed here-in-above and on application of the above stated test as suggested by the Apex Court. That in the facts and circumstances of the case, the nature and extent of the offence qua the accused Nos. 1 and 2, could be determined by application of clause secondly of sec. 300 read with Sec. 299 of IPC, but excepted vide exception 4 of Sec. 300, IPC and as such it would be, "culpable homicide not amounting to murder", punishable under Sec. 304 Part I of the IPC. Hence, we are of the opinion that impugned order of convicting the accused Nos. 1, 2 and 3 for the offence made punishable under Sec. 302 read with Sec. 34 of the IPC has to be set aside and altered to the extent of convicting the accused Nos. 1 and 2 for the offence made punishable under Sec. 304 Part I read with Sec. 34 of the IPC. That the accused Nos. 2 and 3 should also be convicted for the offence made punishable under secs. 324 and 323 of the IPC respectively. ( 20 ) AS a result, the following orders are passed : the appeal is partly allowed. The order of conviction and sentence passed by the learned Sessions Judge, Valsad at navsari dated 12th February, 1990 in the matter of Sessions Case No. 91/98 is hereby modified to the extent as under: (A) The order convicting the appellants Nos. ( 20 ) AS a result, the following orders are passed : the appeal is partly allowed. The order of conviction and sentence passed by the learned Sessions Judge, Valsad at navsari dated 12th February, 1990 in the matter of Sessions Case No. 91/98 is hereby modified to the extent as under: (A) The order convicting the appellants Nos. 1 and 2 (original accused Nos. 1 and 2) for the offences made punishable under Sec. 302 read with Sec. 34 of the indian Penal Code is set aside and altered to conviction under Sec. 304 Part I read with Sec. 34 of IPC. (B) The appellant No. 2 (original accused No. 2) is also convicted for the offence punishable under Sec. 324 of the IPC. (C) The appellant No. 3 (original accused No. 3) is convicted for the offence punishable under Sec. 323 of the IPC. We have heard the learned Advocate appearing for the appellants as well as the learned A. P. P. Mr. S. P. Dave on the question of sentence in respect to conviction altered as stated hereinabove. We are informed that the appellants Nos. 1 and 2 (original accused Nos. 1 and 2) were arrested on 5. 10. 1988 and since then both of them have remained in jail as under trials as well as after conviction. As such both the appellants Nos. 1 and 2 have already undergone the imprisonment of 10 years and if the remission earned by them on account of Golden Jubilee year of Independence is added, the total period of imprisonment of the appellants Nos. 1 and 2 would come to nearly 12 years. The appellant No. 3 arrested on 5. 10. 1988 and was released on bail on 18. 10. 1988. Thereafter, on conviction he surrendered on 12th February, 1990 and was released on bail on 28. 3. 1990. As such the appellant No. 3 has also remained in jail for more than two and a half months. Keeping in mind the said fact and the passage of time during which the present appeal has remained pending for final hearing, we deem it just to pass the following order of sentence : (A) Sentence of the appellants Nos. 1 and 2 (original accused Nos. 1 and 2) will stand altered from life imprisonment to the period of imprisonment undergone uptill now. 1 and 2 (original accused Nos. 1 and 2) will stand altered from life imprisonment to the period of imprisonment undergone uptill now. We do not propose to impose separate sentence of imprisonment on the appellant No. 2 in respect to conviction under Sec. 324 of the Indian Penal code and direct that the sentence for the said offence will be covered by the sentence already undergone uptill now. The appellant No. 3 is sentenced for the period undergone uptill now as undertrial as well as convict prisoner in respect to conviction under Sec. 323 of the Indian Penal Code. As a result, of the above stated order, the appellants Nos. 1 and 2 shall be set at liberty forthwith, if not required in any other case and the bail bond of the accused No. 3 shall stand cancelled. .