Judgment K.J. THAKER, J. The present appellants have preferred this appeal under Sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 20-7-2006 passed by the learned Addl. Sessions Judge, Fast Track Court No.3, Amreli in Sessions Case No. 16 of 2006, whereby, the learned trial Judge has convicted the appellants under Sec. 302 of I.P.C. and sentenced to undergo R./I. for life and to pay a fine of Rs.30,000/- each, in default, to undergo further imprisonment for two years. It is further ordered by the learned Addl. Sessions Judge that out of total fine of Rs.90,000/-, Rs.60,000/- shall be paid to the mother of the deceased by way of compensation under Sec. 357 of Cr. P.C., which is impugned in this appeal. 2.1. The case of the prosecution is that on 23-10-2005, at about 23-30 O'clock, at village Savarkundala, District Amreli, when son of complainant Razak went to call Doctor Umarbhai as her husband was having some breathing problem and when deceased called the doctor by standing opposite the house of doctor, at that time, appellant Nos. 1 and 2 armed with knife and appellant No.3 armed with stick, came there, caught hold of the deceased and appellant Nos. 1 and 2 had given knife blows and appellant No.3 had given stick blows, and thereafter, the appellants ran away from the place of offence, the complainant came there and taken her son Razak to the Hospital at Savarkundala where doctor had declared him as dead. Thereafter the complaint was filed. 2.2. The appellants accused came to be arraigned for committing the murder and after the investigation was complete, the charge-sheet was laid against the present appellants. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 16 of 2006. 2.3. Thereafter, the Sessions Court framed the charge below Exh. 3 against the appellants for commission of the offence under Sec. 302 read with Sec. 34 of I.P.C. The appellants-accused have pleaded not guilty and claimed to be tried. 2.4. To prove the case against the present appellants, the prosecution has examined the following witnesses : 1. P. W. 1 Kalubhai Valibhai Exh. 9 2. P.W. 2 Irfan Unushbhai Exh. 11 3. P.W. 3 Dr. Ramjibhai Deshabhai Exh. 16 4. 2.4. To prove the case against the present appellants, the prosecution has examined the following witnesses : 1. P. W. 1 Kalubhai Valibhai Exh. 9 2. P.W. 2 Irfan Unushbhai Exh. 11 3. P.W. 3 Dr. Ramjibhai Deshabhai Exh. 16 4. P.W. 4 Jenuben Baghabhai Exh. 26 5. P.W. 5 Daudbhai Jamalbhai Mir Exh. 27 6. P.W. 6 Salmaben Baghabhai Exh. 31 7. P.W. 7 Dahyabhai Amrabhai P.S.O. Exh. 32 8. P. W. 8 Ranjitsinh Hathisinh Exh. 35 9. P.W. 9 Rameshchandra Bhikhudas, I.O., Exh. 36 2.5. The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused. 1. Inquest panchnama Exh. 13 2. Panchnama of scene of offence place Exh. 12 3. Discovery panchnama Exh. 12 4. Panchnama of clothes of deceased Exh. 14 5. Arrest panchnama Exh. 15 6. Case-papers of deceased Exh. 17 7. Yadi to P.I., Amreli City Exh. 18 8. Yadi for post-mortem Exh. 19 9. Post-mortem Note Exh. 20 10. Yadi Exh. 25 11. Yadi Exh. 33 12. Complaint Exh. 34, 36 13. Despatch Nondh Exh. 39 14. F.S.L. report with forwarding letter Exh. 40 15. Serological report Exh. 41 16. Receipt Exh. 42 17. Form Exh. 43 18. Certificate for cause of death Exh. 44 19. Notification Exh. 45 20. Copy of station diary Exh. 46 21. Map Exh. 51 3. Thereafter, after examining the witnesses, further statement of the appellants-accused under Sec. 313 of Cr. P.C. was recorded in which the appellants-accused have denied the case of the prosecution. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 20-7-2006 held the present appellants-original accused guilty of the charge levelled against them under Sec. 302 read with Sec. 34 of I.P.C. and convicted and sentenced the appellants-accused, as stated above. 5. We have heard learned Advocate Mr. A.M. Dagli for the present appellants and Mr. L.R. Pujari learned A.P.P., for the respondent-State. 6. Mr. Dagli learned Advocate appearing for the present appellants has fairly submitted that he could not claim clean acquittal or could not claim the benefit of doubt and tried to persuade the Court that conviction under Sec. 302 of I.P.C. may be modified and the present appellants may be convicted under Sec. 304, Part-1 of I.P.C. 7. 6. Mr. Dagli learned Advocate appearing for the present appellants has fairly submitted that he could not claim clean acquittal or could not claim the benefit of doubt and tried to persuade the Court that conviction under Sec. 302 of I.P.C. may be modified and the present appellants may be convicted under Sec. 304, Part-1 of I.P.C. 7. The learned Advocate for the present appellants has contended that the trial Court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserves to be given the benefit of doubt and be acquitted. Mr. Dagli learned Advocate for the appellants has relied on the decision of the Apex Court reported in AIR 1993 SC 319 in the case of Dharam Singh v. State of Punjab, AIR 1993 SC 1469 in the case of Bhimappa Jinnapa Naganur v. State of Karnataka. He has further relied on the decision of the Division Bench of Allahabad High Court reported in 2002 Cri. LJ 3660 in the case of Ram Sewak v. State of U.P., and contended that the motive was not proved. He has unsuccessfully tried to propound the theory of the witnesses as doubtful, and that the F.I.R. was also suspicious. 8. On the other hand, learned A.P.P. has strongly opposed the contentions raised by the learned Advocate for the present appellants and has submitted that the trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it, and hence, no interference is called for and the appeal deserves to be dismissed. Learned A.P.P. has further contended that this is a case of brutal murder, and therefore, no leniency should be shown to the accused since the injuries are on the vital part of the body, hence, no interference is called for and the appeal deserves to be dismissed. 9. Having gone through the entire record, it would be relevant to refer to Sec. 299 and Sec. 300 of I.P.C., which reads as under: "299. 9. Having gone through the entire record, it would be relevant to refer to Sec. 299 and Sec. 300 of I.P.C., which reads as under: "299. Culpable homicide :- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder :- Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly :- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly :- If it is done 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 4thly :- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. xxx xxx xxx xxx 304. Punishment for culpable homicide not amounting to murder :- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or With imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 10. Having gone through the above provisions, we are unable to persuade ourselves that it is a clear case of acquittal and the reason for the same is that the complaint was given by the mother of the deceased, and therefore, there is no question of mistaken identity. The present appeal is mainly on three aspects : motive, intention and the incident occurred at the spur of moment in the night. Learned Advocate for the appellants has tried to propound the theory of the complainant mother was, in fact, not present at the place of the incident. We are unable to accept the same on the basis of the evidence on record. The injuries which are found on the body of the deceased corroborates with the discovery panchnama, inquest panchnama and the medical report. The cause of death is shock due to vital organ and vessels injury. Col. 17 of the post-mortem report reads as under : "Col. 17 : 1. stab wound It. Iliac fogga near inquinal region oblique size 2" x 1" cavity deep. Loop of small intestine present. 2. stab wound Rt. Side chest below the Rt. Clavial region oblique size 2" x 1" cavity deep. 3. Abrasion Lt. Zygomatic region size 1" x 1" 11. In this case, P.W. 5-Daudbhai Jamalbhai Mir Exh. 27, is not appearing to be speaking the truth. P.W. 6-Salmaben Baghabhai Exh. 31 daughter of the complainant is not knowing about the incident which took place. It is submitted by the learned Advocate for the appellants that the police witnesses cannot be relied on as they have been inconsistent with their deposition and attempts were made that the police have tried to manipulate, however, he has not been successful in the said aspect. The blood-stains on the body, clothes and weapons are of the deceased and as per the submission of learned A.P.P. that the case cannot fall under Sec. 304, Part-I or 304, Part-II of I.P.C. and the provision of Sec. 300 read with Sec. 34 of I.P.C. would permit this Court to confirm the conviction under Sec. 302 of I.P.C. as recorded by the learned trial Judge. 12. 12. In the recent decision of the Apex Court reported in AIR 2013 SC 1484 in the case of Bakshish Ram v. State of Punjab, wherein, the Apex Court has held that the High Court should apply its independent mind and record its own finding by making independent assessment of evidence. 13. Having given our anxious thought, we are unable to accept the submission that the case would fall under Sec. 304, Part-II of I.P.C. However, it is clear that the motive has not been proved by the prosecution and the intention has also not been proved. The Injury would such that accused would be having the knowledge that it would be fatal. From the evidence of doctor, it is crystal clear that had the mother taken the deceased for early treatment, the deceased might have survived. On this small piece of evidence, we cannot give clear acquittal but case is made out that the conviction under Sec. 304 Part-I can be imposed. 14. In view of the above discussion, there is no doubt left in our mind about the guilt of the appellants. However, at the same time, we feel that looking to the totality of the facts and circumstances under which the alleged incident occurred, though, the knowledge of the fact of inflicting knife blows on the body of the deceased could be attributed to the present appellants, the intention cannot be. 15. We are, therefore, inclined to accept the submission of the learned Advocate for the appellants that, in the facts and circumstances of the case, at the most, Sec. 304, Part-I would be attracted and not Sec. 302 of I.P.C. Hence, the appeal deserves to be allowed partly. 16. In the result, appeal is allowed in part. The impugned judgment and order dated 20-7-2006 passed by the learned Addl. Sessions Judge, Fast Track Court No.3, Amreli in Sessions Case No. 16 of 2006 recording the conviction of the present appellant herein-under Sec. 302 of the I.P.C. is modified and the present appellant is convicted under Sec. 304, Part-I of the Indian Penal Code and is sentenced to undergo R./I. for ten years. Fine of Rs.30,000/- imposed upon each of the appellant is reduced to Rs.30,000/- each, in default, to undergo imprisonment for one year. Fine of Rs.30,000/- imposed upon each of the appellant is reduced to Rs.30,000/- each, in default, to undergo imprisonment for one year. The amount of fine so recovered, the same shall be paid to the mother of the deceased, as per the judgment and order of the trial Court. Rest of the judgment and order of the trial Court stands confirmed. R. & P. to be sent back to the trial Court, forthwith. A writ of this order be sent to the concerned Jail Authority, forthwith. (NRP) Appeal partly allowed.