Judgment S.G. Shah, J.—Criminal Appeal No. 1726/2006 is preferred by Jenabhai @ Ratilal Punjabhai Chauhan, whereas Criminal Appeal No. 1580/2006 is preferred by Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan. All the appellants have challenged the order of their conviction under Sections 343, 323, 504, 506(2) and 114 of IPC by the Additional Sessions Judge and Presiding Officer, 13th Fast Track Court, Nadiad on 5.8.2006 in Sessions Case No. 88/2006. 2. Appellant Jenabhai @ Ratilal Punjabhai Chauhan was convicted for 8 years u/S.304 with penalty of Rs. 7,000/and for 1 years each under Sections 504 and 506(2) with penalty of Rs. 2,000/separately for each section with further direction to undergo imprisonment for additional six months in default of payment of penalty. 3. Whereas, Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan were convicted for simple imprisonment of one year and penalty of Rs. 2,000/differently for each Sections i.e. 323, 504, 506(2) with a condition that in default of payment of penalty, he has to undergo additional imprisonment for two months. 4. Whereas, Bhikhiben w/o Jenabhai @ Ratilal Punjabhai Chauhan is convicted for six months under Section 323 with penalty of Rs. 1,000/and in default of such penalty to undergo two months simple imprisonment. 5. The trial Court has also directed to pay Rs. 10,000/ from the total amount of penalty to the widow of the victim. 6. The record confirms that appellant Bhikhiben w/o Jenabhai @ Ratilal Punjabhai Chauhan had undergone imprisonment for 13 days pending trial, whereas, appellants Bhathibhai @ Bhikho Chootabhai Sodha Parmar had undergone imprisonment for 36 days pending trial. Whereas, appellant Jenabhai @ Ratilal Punjabhai Chauhan is undergoing his imprisonment since 23.2.2006, as the Court has refused to release him on bail, while admitting his appeal, since Criminal Misc. Application No. 10200/2006 seeking bail was withdrawn on 5.4.2007. Thereby, appellant Jenabhai @ Ratilal Punjabhai Chauhan has completed the imprisonment of seven years and five months and he has to undergo for remaining seven months as convicted prisoner. Whereas, appellants Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan were released on bail, since their conviction is for less than two years. 7. Heard learned advocate Mr. Murli N. Devnani for the appellants and Ms. Moxa Thakkar, learned APP for the state at length. Perused the record. 8. Whereas, appellants Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan were released on bail, since their conviction is for less than two years. 7. Heard learned advocate Mr. Murli N. Devnani for the appellants and Ms. Moxa Thakkar, learned APP for the state at length. Perused the record. 8. The case of the prosecution is to the effect that there was a dispute regarding children of the victim and his brotherinlaw and on the date of incident, at the relevant time, i.e. at about 10.30 pm, all the appellants had been at the place of the victim and started to quarrel. At that time, when brotherinlaw of complainant namely Raijibhai had reached at the place, the appellants have started to beat him and during such quarrel, when victim Somabhai had tried to settle the issue, the appellant had given a blow of panjeti (rake or harrow) on his head, which resulted into serious injuries to Somabhai and ultimately, he succumbed to such injuries. It is also stated that appellant Jenabhai @ Ratilal Punjabhai Chauhan had given a blow with panjeti (rake or harrow) on the head of Somabhai and since he could not snatch the panjeti back, the same was allowed to be kept as it is in the head of Somabhai and appellants had run away from the place of incident. Whereas victim was taken to the hospital at Nadiad, where he was declared dead. Thereby, the entire incident was based upon the dispute regarding quarrel due to children and though appellants had been to the place of the victim for settling the dispute, the basic issue requires to be considered is that whether it is a preplanned injury to Somabhai or whether it was misfortune that Somabhai has died because of the injuries received in such quarrel. 9. It is clear from the record that the prosecution has not filed an appeal for enhancement of sentence and therefore learned advocate for the appellant Jenabhai @ Ratilal Punjabhai Chauhan has argued that when Jenabhai @ Ratilal Punjabhai Chauhan had undergone imprisonment for seven years and five months, instead of pressing for his acquittal, the learned advocate for the appellant has submitted that it would be appropriate if the Court considers the case of appellant Jenabhai @ Ratilal Punjabhai Chauhan sympathetically so as to reduce the sentence for couple of months, confirming the conviction. 10. 10. Whereas, so far as appellants Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan are concerned, learned advocate has submitted that on perusal of record, it cannot be said that they have played any active role either in the quarrel or so far as injuries to the victim or other witnesses are concerned and, therefore, they are required to be acquitted from the charges levelled against them. 11. Whereas, Ms. Moxa Thakkar, learned APP has supported the impugned judgment. 12. Therefore, so far as appellant Jenabhai @ Ratilal Punjabhai Chauhan is concerned, the Court has to consider the quantum of sentence only, whereas, so far as other two appellants Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan are concerned, their role is required to be verified and scrutinized so as to confirm whether they were also guilty of offences as alleged and thereby, whether their conviction can be confirmed or not? 13. In view of such arguments, so far as the appellant Jenabhai @ Ratilal Punjabhai Chauhan is concerned, considering the fact that though the victim has received serious injuries from the blow by the appellant Jenabhai @ Ratilal Punjabhai Chauhan and though victim succumbed such injuries, it cannot be said that appellant Jenabhai @ Ratilal Punjabhai Chauhan had intention to kill the victim and that incident and injury was preplanned so as to kill the victim only. Though appellants can be considered as aggressor in starting quarrel since they had been to the place of victim, the fact cannot be ignored that quarrel was for children and that the incident must have occurred in a temporary anger between the groups and even blow by appellant Jenabhai @ Ratilal Punjabhai Chauhan to the victim, though it was fatal, cannot be treated as a preplanned murder. 14. However, this being the first appeal against the order of conviction, Court has to verify and scrutinize that whether trial Court has properly appreciated the evidence so as to come to the conclusion as arrived in the impugned judgment, whereby, appellants are convicted or that there is no scope of confirming conviction so as to avoid injustice or miscarriage of justice. 15. The prosecution has examined 13 witnesses and produced 23 documentary evidence on record. Out of 13 witnesses, at least witness No. 6 namely; Dineshbhai and witness Nos. 15. The prosecution has examined 13 witnesses and produced 23 documentary evidence on record. Out of 13 witnesses, at least witness No. 6 namely; Dineshbhai and witness Nos. 9 and 10 namely Bhanubhai Shantibhai as well as Manubhai being punch witnesses have not supported the case of the prosecution and therefore, their evidence is not much material to prove the guilt of the appellants. 16. Whereas, deposition of injured witness Madhuben being prosecution witness No. 5 and Raijibhai Mohanbhai being prosecution witness No. 4 are material since they themselves have received injury in the scuffle between two groups. Both such witnesses are examined at Exhs. 28 and 29. On perusal of their depositions, it has been revealed that practically complainant and deceased were relative being brotherinlaw of each other. It also reveals that at the time of incident, Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan had given a blow to Madhuben on her back with wooden stick. Similarly, she had also given blow of wooden stick to injured witness Rameshbhai. Both the witnesses have confirmed the role of Jenabhai @ Ratilal Punjabhai Chauhan that he has given a blow of panjeti (rake or harrow) on the head of deceased Somabhai. Thereby, both these eye witnesses have categorically confirmed that Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan has given simple blow by simple wooden stick to them. Their injury certificates confirm that they have not received any serious injuries, which fact can be confirmed from the medical certificates at Exhs. 26 and 27, wherein, only CLW injury is shown on left hand side as a sole injury to Raijibhai Sodha Parmar and practically no visible injury to Madhuben Raijibhai Sodha Parmar. However, in injury certificate, history of injury was noted as assaulted with iron rod over the right forearm, whereas in deposition, it is stated that Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan has given blow by wooden stick. The trial Court has also in Paragraph 7 of the judgment considered such fact that Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan had assaulted with wooden stick to the injured witnesses and at that time, deceased Somabhai had tried to settle the quarrel, thereupon, Jenabhai @ Ratilal Punjabhai Chauhan had given a blow of panjeti (rake or harrow) to Somabhai on his head which resulted into death of Somabhai. Though there are allegations regarding threats to kill the son of such injured witness namely Vipul and though witnesses have said that they have hide Vipul and accused were searching him, considering the internal relation between the complainant and the injured witnesses, the story of threat seems to be incorrect. 17. The other injured witnesses is complainant namely; Rameshbhai, who is examined as prosecution witness No. 1 at Exh. 17. He has also simply stated that Bhikhabhai had given a wooden stick blow to Raijibhai and panjeti (rake or harrow) which was lying nearby was blowed by Ratibhai to Somabhai, which resulted into death of Somabhai. So far as Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan is concerned, the complainant has stated the same story that she had given a blow by wooden stick to all of them. During the crossexamination of this witness, though he has not admitted certain facts, it has been brought on record that practically son of the victim namely Vipul was involved in some mischief with the daughter of Jenabhai @ Ratilal Punjabhai Chauhan. It is also admitted by the complainant that when appellants were going towards the house of the Raijibhai, they do not have anything in their hands, which confirms that wooden stick and panjeti (rake or harrow) were not taken by the appellants with them and thereby the use of such items as assaulting weapons, were all of a sudden, as they were readily available at the place of incident. It is also pertinent to note that complainant who is independent witness, that is not belong to any groups, has categorically stated that incident has happened in the spur of moment and that actually panjeti (rake or harrow) was brought from house of Somabhai, though he has not admitted that practically it was Somabhai who has tried to use panjeti upon Jenabhai @ Ratilal Punjabhai Chauhan but it was dropped by blow of wooden stick. He has also denied the suggestion that practically that Somabhai was fallen on panjeti and received injury and none of the appellants had given a blow of panjeti. 18. He has also denied the suggestion that practically that Somabhai was fallen on panjeti and received injury and none of the appellants had given a blow of panjeti. 18. In view of above evidence, we have to consider the probability of commission of offence as alleged, that whether actually there was scuffle to such a nature, wherein, one person has given a fatal blow to the another person so as to kill him or that because of the scuffle between two groups and because the victim himself has brought deadly weapon from house, whether he was only injured on his own by falling on such panjeti. Thereby the defence version though may not be admitted as proved by some other independent evidence, considering the fact that the scuffle has occurred at about 10.30 p.m. Near Filled House, it cannot be ignored that there is possibility of truth in such defence version, if not for total innocence of appellants, then at least for the reason of the dispute and manner of the quarrel which resulted into such incident. 19. Even widow of the victim namely Manjulaben, who is examined at Exh. 41 as prosecution witness No. 12 has also not stated about more involvement of Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan except using wooden stick against injured witnesses Madhuben and Raijibhai. The most important admission by such witness is to the effect that it is true that during the quarrel, her husband had brought panjeti and one Jogabhai has brought Pavdo Choe. Thereby, the intention of the appellantsaccused to commit the offence as alleged has wiped out, because in fact victim and Jogabhai have brought deadly weapons at the place and ultimately in the scuffle between two groups, they themselves have been injured by such instrument. The witness has also admitted the real dispute between the parties that practically Vipul has committed some mischief with the daughter of Jenabhai @ Ratilal Punjabhai Chauhan and therefore Jenabhai @ Ratilal Punjabhai Chauhan and his wife had been at the place to say something to Vipul and there was no weapons in their hands. The witness has also admitted the real dispute between the parties that practically Vipul has committed some mischief with the daughter of Jenabhai @ Ratilal Punjabhai Chauhan and therefore Jenabhai @ Ratilal Punjabhai Chauhan and his wife had been at the place to say something to Vipul and there was no weapons in their hands. Though, she has denied the fact that practically it was her husband who has tried to give a fatal blow by panjeti to Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhathibhai @ Bhikho Chootabhai Sodha Parmar had saved himself in such scuffle and her husband had received fatal injuries. 20. Thereafter, the only eye witness remains is Pratapbhai Jogabhai, who is examined at Exh. 38 as prosecution witness No. 11. He has also confirmed the time of incident being 10.30 p.m. On 20.2.2006 i.e. in winter time. He has also not alleged against Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan except using wooden stick, though he has alleged against Jenabhai @ Ratilal Punjabhai Chauhan for giving fatal blow to Somabhai. However, he has also admitted that when appellants had reached at the place of incident, they do not have any weapon in their hands and though there was light, it was little. It is not disputed fact that quarrel was because of Vipul who is relative of deceased Somabhai. Though he has denied the fact that panjeti was in fact initially used by Somabhai and instead of injuries to the accused, appellant himself was injured in the scuffle, which happened only during the trial of self defence by Jenabhai. It cannot be ignored that this witness is friend of the victim Somabhai, as he himself has admitted in his deposition. One more important aspect is regarding the contradiction in the police statement and in the deposition of some of the witnesses, so far as threat to kill Vipul is concerned. 21. It cannot be ignored that this witness is friend of the victim Somabhai, as he himself has admitted in his deposition. One more important aspect is regarding the contradiction in the police statement and in the deposition of some of the witnesses, so far as threat to kill Vipul is concerned. 21. In view of above facts and circumstances and discussion of evidence on record, when appellant Jenabhai @ Ratilal Punjabhai Chauhan is not pressing for acquittal but to consider his quantum of sentence only for reducing from 8 years to the imprisonment undergone i.e. 7 years and 5 to 6 months and more particularly, when there is no serious injuries to any of the witnesses that may be effected by the appellants Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan, there is no reason to deny the request of Jenabhai @ Ratilal Punjabhai Chauhan and thereby to partly allow the appeal. 22. It cannot be ignored that there is no sufficient evidence against the appellants Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan so as to confirm their punishment either under Section 323 or under Section 504 or under Section 506(2) of IPC, inasmuch as they have not given any serious blow and thereby they have not injured the deceased victim. Whereas injured witness has not received any injury by the stick blow by them, even if it is believed that such appellants have given stick blow. So far as the threat to kill is concerned, practically, if it is there, it is against Jenabhai @ Ratilal Punjabhai Chauhan and not against these two appellants Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan, therefore, so far as conviction of Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan, the judgment and order of the trial Court is required to be set aside. 23. 23. Whereas, so far as judgment confirming the conviction to the appellant Jenabhai @ Ratilal Punjabhai Chauhan is concerned, since there is sufficient evidence against him, which confirms the death of the victim, even if it was by spur of moment, considering the death of a person, his conviction cannot be altered, but since he has undergone the imprisonment for 7 years and 5 to 6 months, purely on humanitarian ground, his conviction may be modified from 8 years to the period of imprisonment actually he has undergone till date. But so far as order of penalty is concerned, since appellant has already deposited such amount and since it is ordered to be paid to the victim as compensation, such order is not disturbed. 24. Resultantly, Criminal Appeal No. 1580/2006 preferred by Bhathibhai @ Bhikho Chootabhai Sodha Parmar and Bhikhiben Jenabhai @ Ratilal Punjabhai Chauhan is allowed. Thereby they are acquitted from all the charges levelled against them. Amount of penalty if any, paid by them shall be refunded. Their bail bond stands cancelled. 25. Whereas Criminal Appeal No. 1726/2006 is partly allowed by modifying the period of sentence from 8 years to the actual period of imprisonment undergone by Jenabhai @ Ratilal Punjabhai Chauhan. Thereby he is to be released from the Jail, if not required in any other case.