JUDGMENT : K.J. Thaker, J. The appellants-Accused have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 29.9.2008 passed by the learned Addl. Sessions Judge, 2nd Fast Track Court, Mehsana in Sessions Case No.76 of 2008 whereby, the learned trial Judge has convicted the appellants - Accused under Section 147 of I.P.C. and sentenced them to undergo S/I for two years and to pay a fine of Rs. 500/- each, in default, to undergo S/I for three months. The appellants-accused are convicted under Section 148 of I.P.C. and sentenced them to undergo S/I for three years and to pay a fine of Rs. 1000/- each, in default, to undergo S/I for three months. The appellants are convicted under Section 302 read with section 149 of I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 8000/- each, in default, to undergo imprisonment for one year. The appellants-accused convicted under section 341 of I.P.C. and sentenced to undergo S/I for one month and to pay a fine of Rs. 200/- each, in default, to undergo S/I for five days. The appellants-accused convicted under section 504 and 506(2) of I.P.C. and sentenced them to undergo S/I for one year and to pay a fine of Rs. 500/- each, in default, to undergo S/I for one month. The appellants-accused convicted under Section 135 of the Bombay Police Act and sentenced to undergo S of I for seven days, which is impugned in this appeal. 2.1. The case of the prosecution is that the complainant is staying at village Ambasan, Tal. Vijapur, Dist. Mehsana and is carrying out the farming activities for the survival of his family. Out of his five brothers, the eldest is Manaji and thereafter is the complainant himself and younger to him Sureshji and next being Chhatraji and the youngest being Amratji. Out of these, three brothers are living separately and the two younger brothers are staying with their father. On 14.1.2008, during the festival of Uttarayan, at village Ambasan, around 9.00 am near the boundary of village, Thakore Babuji Pradhanji and Thakore Samarji Babuji had a quarrel with accused No.4 and a complaint in this regard was given by the accused No.4 to the Vijapur Police Station. On 14.1.2008, during the festival of Uttarayan, at village Ambasan, around 9.00 am near the boundary of village, Thakore Babuji Pradhanji and Thakore Samarji Babuji had a quarrel with accused No.4 and a complaint in this regard was given by the accused No.4 to the Vijapur Police Station. Thus, with regard to this incident, on 14.1.2008 in the evening around 19.30 hours, opposite to the shop of accused No.1, when one Thakore Samarji Babuji had approached, the accused No.1 shouted at Thakore Samarji that he had become a Dada and started quarrel and in the meanwhile, two groups came to be formed and there was a free fight between the accused party and the complainant party. In this fight, accused No.1 was hit with a stone by the complainant party and serious head injury was caused. Further, as per the allegation, the accused persons equipped with lethal weapons and attacked and caused serious injuries on the deceased, who finally succumbed to the same. Therefore, a complaint was lodged. 2.2. The appellants accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellant. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No.76 of 2008. 2.3. Thereafter, the Sessions Court framed the charge below Exh. 2 against the appellant for commission of the offence under section 147, 148, 149, 302, 341, 504, 506(2) and 34 of I.P.C. and under Section 135 of the Bombay Police Act. 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 whose evidence is read before this Court by the learned advocate for the appellants. 1. P.W.-1 Dr. Govindbhai Purshottamdas Patel Ex. 11 2. P.W.-2 Amaratji Babuji Thakor Ex. 16 3. P.W.-3 Rameshji Mohatji Thakore Ex. 20 4. P.W.-4 Babuji Pradhanji Thakor Ex. 21 5. P.W.-5 Dhulaji Manaji Thakore Ex. 23 6. P.W.-6 Chaheraji Kuberji Ex. 25 7. P.W.-7 Niranjanbhai Babulal Barot Ex.27 8. P.W.-8 Kalpeshkumar Manilal Patel Ex. 29 9. P.W.-9 Bharatbhai Mafatlal Patel Ex. 30 10. P.W.-10 Prakash Chimanbhai Rathod Ex. 31 11. P.W.-11 Dolatmiya Kodarmiya Shaikh Ex. 32 12. P.W.-12 Prahladbhai Madhavlal Ex. 33 13. P.W.-13 Kantilal Madhavlal Patel Ex. 34 14. P.W.-14 Parshottambhai Karshandas Patel Ex. 35 15. P.W.-6 Chaheraji Kuberji Ex. 25 7. P.W.-7 Niranjanbhai Babulal Barot Ex.27 8. P.W.-8 Kalpeshkumar Manilal Patel Ex. 29 9. P.W.-9 Bharatbhai Mafatlal Patel Ex. 30 10. P.W.-10 Prakash Chimanbhai Rathod Ex. 31 11. P.W.-11 Dolatmiya Kodarmiya Shaikh Ex. 32 12. P.W.-12 Prahladbhai Madhavlal Ex. 33 13. P.W.-13 Kantilal Madhavlal Patel Ex. 34 14. P.W.-14 Parshottambhai Karshandas Patel Ex. 35 15. P.W.-15 Mahendrabhai Vithalbhai Patel Ex. 36 16. P.W.-16 Popatbhai Chhaganbhai Patel Ex. 37 17. P.W.-17 Ramanbhai Amaratbhai Patel Ex. 38 18. P.W.-18 Vijaykumar Vishnuprasad Vyas Ex. 40 19. P.W.-19 Naranbhai Mahadevbhai Rabari Ex.42 20. P.W.-20 Rameshbhai Bhalabhai Ex. 45 21. P.W.-21 ramtuji Kanji Chauhan Ex. 47 22. P.W.-22 Somabhai Naranbhai Patel Ex. 52 23. P.W.-23 Sanjaysinh Raisinh Parmar Ex. 75 2.5. The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellant-accused. 1. PM Note Ex. 12 2. Certificate of cause of death Ex. 13 3. Inquest panchnama Ex.14 4. Medical certificate Ex. 15 5. Panchnama of scene of offence Ex. 24 6. Map of scene of offence Ex. 28 7. Notification Ex. 41 8. Depute order Ex. 43 9. Copy of station diary No.19 Ex. 44 10. Panchnama of cloth of deceased Ex. 46 11. Complaint Ex. 48 12. Yadi Ex. 49 13. Copy of C.R. No. I-18 of 08 of Vijapur Police Station Ex. 50 14. Yadi to F.S.L. Ex. 53 15. Panchnama of person of accused Ex. 54 16. Panchnama of weapon Ex. 55 17. Panchnama of weapon discovered by accused Vijaykumar Ex. 56 18. Panchmama of weapon Ex. 57 19. Panchnama of weapon knife Ex.58 20. Panchnama of clothes of Jayesh Ex. 59 21. Panchnama of clothes of Prakash Ex. 60 22. Panchnama of clothes of Vijay Ex. 61 23. Panchnama of clothes of Bharat Ex. 62 24. Yadi for P.M. Ex. 63 25. Police report Ex. 64 26. Yadi to Medical Officer for P.M. Ex. 65 27. F.S.L. Report Ex, 66 28. Yadi to Police Inspector, Vijapur Ex. 67 29. Yadi about clothes of dead-body Ex. 68 30. Report to S.P. Ex.69 31. Dispatch note Ex.70 32. Receipt of F.S.L. Ex. 71 33. Yadi to Executive Magistrate Ex. 76 34. Report Ex. 77 35. Yadi for F.S.L. Certificate Ex. 78 36. Forwarding letter of F.S.L. Ex. 79 37. F.S.L. Report Ex. 80 38. Serological report Ex. 81 39. F.S.L. Report Ex. 823. 68 30. Report to S.P. Ex.69 31. Dispatch note Ex.70 32. Receipt of F.S.L. Ex. 71 33. Yadi to Executive Magistrate Ex. 76 34. Report Ex. 77 35. Yadi for F.S.L. Certificate Ex. 78 36. Forwarding letter of F.S.L. Ex. 79 37. F.S.L. Report Ex. 80 38. Serological report Ex. 81 39. F.S.L. Report Ex. 823. Thereafter, after examining the witnesses, further statement of the appellants-accused under Section 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 29.9.2008 held the present appellants-original accused guilty of the charge levelled against them, convicted and sentenced the appellants-accused, as stated above. 5. We have heard at length Mr. N.D. Nanavati learned senior advocate with Mr. G. Ramakrishnana and Mr. N.D. Buch learned advocates for appellants and Ms. C.M. Shah learned A.P.P. for the respondent- State. 6. 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. 7. 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 appeals deserve to be dismissed. 8. It is a matter of fact and even borne out from the complainant given by accused No.1 that it was the deceased who was the first aggressor as the incident occurred at the shop of Mahesh–Accused No.1 where the deceased came, gave abuses and threw a stone which hit the accused No.1, and therefore, there was an altercation between the deceased and accused no.1. After the accused No.1 was injured, the other accused persons arrived at the place. The PM report shows the following injuries on the deceased: 1. oblique incise wound on lower part of Rt. Deltoid region 2.5cm x 0.5cmx muscle deep. After the accused No.1 was injured, the other accused persons arrived at the place. The PM report shows the following injuries on the deceased: 1. oblique incise wound on lower part of Rt. Deltoid region 2.5cm x 0.5cmx muscle deep. 2. Incise wound on Rt. Parietal region. 3Cm x 0.2cmx skin deep. 3. Contuse lacerated wound on Rt. Temporal region 4cm x 2cmx Bone deep. 4. Oval contuse lacerated wound on Rt. Leg upper lateral part about 2.0cm x 1.5cm muscle deep. 5. Oblique elipticle incise wound on lower Rt. Scapular region about 3.5cm x 1cm x Bone deep. 6. Oblique incise wound on medical border of Rt. Scapula 2cm x 1cm x muscle deep. 7. Oblique incise wound on Rt. Side of the vertebrae 3.5cm x 2cm x cavity deep. 8. Oblique incise wound on left side of T8 vertebrae about 3cm x 1cm x muscle deep. 9. As per the medical certificate of doctor who treated the accused No.1 Mahesh, the following injuries are found: 1. contuse lacerated wound on posterior aspect of lt. Parietal region. 4Cm x 3cm x skin deep. 10. Therefore, on the touch stone of provisions of section 341 of I.P.C., we are convinced that none of the accused had restrained the deceased, and therefore, conviction under section 341 of I.P.C. is quashed and set aside. 11. This takes us to the next limb of conviction under section 147 read with section 148 I.P.C. The question which arises is that can it be said that they had gathered with a common intention, common object and/or that they had a consensus to do away with the deceased and they had not formed any unlawful assembly, as Section 147, 148 & 149 I.P.C. requires pre-thinking of rioting mind, and therefore, without delving further, we hold that no case is made out against the accused under Section 147, 148 or 149 and therefore, conviction under section 14, 148 and 149 I.P.C. is quashed and set aside. 12. This takes us to the next issue as to whether the deceased died homicidal death or accidental or whether it would be non-homicidal death. Looking to the injuries on the deceased, we cannot persuaded to take a different view than that taken by the learned trial Judge and without elaborating on the same, we hold that the deceased died homicidal death. 13. Looking to the injuries on the deceased, we cannot persuaded to take a different view than that taken by the learned trial Judge and without elaborating on the same, we hold that the deceased died homicidal death. 13. The next question which arises is whether the homicidal death was and is one which can be said to be murder. 14. Having gone through the medical evidence and the evidence on record, we are convinced that the complaint is fully proved the guilt of the accused. The oral testimony of all the witnesses are scrutinised by us and the documents go to show that the incident occurred and the death was caused, and therefore, it is proved that it is homicidal death. The prosecution has brought home the case that the accused were present at the scene of offence. We concur with the view of the learned trial Judge as far as presence is concerned. This shows that during the altercation between the accused and deceased, the prosecution witness was present. He has fully supported by the F.S.L. report, the panchnama of recovery of weapon at the behest of the accused, and therefore, it is proved that it was homicidal death. 15. Looking to the provisions of section 27 of the Evidence Act, it was a sharp cutting instrument with which the deceased died which was recovered at the instance of the accused, and therefore, the same is also admissible in evidence in view of the decision of the Apex Court in the case of Jagroop Singh v. State of Punjab, reported in (2012) 11 SCC 768 . This takes us to the most crucial point as per the decision of the Apex Court, we are convinced that this would fall within the purview of section 304 part-I of I.P.C. The reasons are herein enumerated. The deceased in first point of time was aggressor. The injuries to the deceased were not motivated nor there was motive to cause death, and therefore, it would fall within the purview of section 304 part-I of I.P.C. qua appellant No.1 – ori. Accused No.1 as the aggressor was the deceased. 16. The learned advocate for the appellant has taken us through the entire record. The injuries to the deceased were not motivated nor there was motive to cause death, and therefore, it would fall within the purview of section 304 part-I of I.P.C. qua appellant No.1 – ori. Accused No.1 as the aggressor was the deceased. 16. The learned advocate for the appellant has taken us through the entire record. Having perused the entire record, we are convinced that this is a case which falls under the category of culpable homicidal, however, the degree of the same is similar to the one in the case of Budhi Lal v. State of Uttarakhand, reported in AIR 2009 SC 87 . The conviction in the said case was altered from section 302 of I.P.C. to 304 Part-I of I.P.C. instead of section 300 of I.P.C. In this case, as distinguished from the said decision, the assault was by Axe and not by only hand. The intention cannot be said to be absent. The cause of death as narrated in the Post Mortem report is shock due to blood loss due to injury on back of right side chest. Therefore, it cannot be said that the accused did not have any intention or knowledge that the injuries which had inflicted with dhriya and knife would culminate into such bodily injury which may or may not cause death. The injuries were sufficient to cause death, and therefore, we deem it fit to consider it as culpable homicide not amounting to murder. The latest decision of the Apex Court would help the accused in the case of Swarn Kaur v. Gurmukh Singh and Ors., reported in JT 2013(9) SC 439. We are unable to accept the submission of the learned advocate that there was no intention or motive. As against this, learned A.P.P. Ms. C.M. Shah has taken us extensively through the entire evidence and therefore, we are unable to convince ourselves that the accused is not guilty or that benefit of doubt requires to be given to them. The finding of fact reached by the learned trial Judge are so succinct, we are unable to take a different view then the one taken by the learned trial Judge, save and except that the conviction under section 302 of I.P.C. requires to be altered to under Section 304 Part-I of I.P.C. qua appellant No.1 – ori. The finding of fact reached by the learned trial Judge are so succinct, we are unable to take a different view then the one taken by the learned trial Judge, save and except that the conviction under section 302 of I.P.C. requires to be altered to under Section 304 Part-I of I.P.C. qua appellant No.1 – ori. Accused No.1 as well as under section 324 and 326 of I.P.C. qua appellants No.2 to 6- accused No.2 to 6. 17. Having considered minutely the evidence on record, oral as well as documentary evidence, which we have appreciated, re-appreciated and reconsidered in light of the latest decision of the Apex Court. The finding of facts as far as the death being homicidal death cannot be found any fault with. The trial Court was justified in holding the appellants guilty for the offence punishable under Section 302, however, on re-appreciation of the facts, the provisions of section 299(b) and section 300(3) and degree of probability of death would be a determining factor. It cannot be said that the accused had any motive to do away with the deceased, however, he had a knowledge looking to the injuries, it cannot be said that he had no knowledge that the danger cause proximate to a practical certainty and such knowledge on the part of the accused was of the higher degree. The act having been committed by the accused is proved beyond reasonable doubt. 18. The residual question which arise before us whether section 302 of I.P.C. has its application or it would be falling within section 304 of I.P.C. 19. This bring us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the I.P.C. culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the I.P.C. practically recognise three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. culpable homicide of this degree is punishable under the second part of Section 304. 20. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done. Intention (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) 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; Knowledge Knowledge (c) with the knowledge that the act is likely to cause death. (3) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 21. (3) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 21. Clause (b) of section 299 corresponds with clauses (2) and (3) of Section 300.The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to section 300. 22. Clause(b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words 'sufficient in the ordinary course of nature' have been used. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words 'sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause(b) of Section 299 and clause(3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury." sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. 23. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the internal bodily injury or injuries sufficient to cause death in the ordinary course of nature. 24. We are convinced that the aggressor was the deceased. The individual role of each of the accused will have to be seen. Learned senior advocate Mr. Nanavati has contended that the injuries on accused No.1 Mahesh is not proved cogently and he should be granted benefit of doubt, and therefore, just because two witnesses who are interest witnesses have not deposed or in their cross-examination have stated that it was not proved that accused No.1 Mahesh was inured. Thus, the injuries were in the same transaction. He has further contended that he should be granted benefit of doubt. It is contended that all the accused were not together. There is no explanation as far as injury to Mahesh is concerned. It is on the vital part of body. The witnesses are interest witnesses and got-up. It is submitted that accused no.1 Mahesh himself was injured. He has further contended that he should be granted benefit of doubt. It is contended that all the accused were not together. There is no explanation as far as injury to Mahesh is concerned. It is on the vital part of body. The witnesses are interest witnesses and got-up. It is submitted that accused no.1 Mahesh himself was injured. It is submitted that he could have gone and brought the dhariya from his place and it is cooked-up story and the dhariya which was produced by him did not have any blood marks. He has further submitted that even if it is considered, it can be said that he had inflicted the blow in the alternative and it was in self defence. The deceased came to be assaulted by Mahesh and Navin as there was a dispute in the morning and the complaint was also lodged by accused No.1 – Mahesh. Mr. Nanavati learned senior advocate placed reliance on the decision of the Apex Court in the case of State of Rajasthan v. Madho and another, reported in AIR 1991 SC 1065 and in the case of Babu Ram and Others v. State of Punjab, reported in (2008)3 SCC 709 . 25. It is further submitted that there is no eye witnesses who can be said to be independent witnesses but their statements were recorded, were not examined. It is further submitted that it happened in a public street and with ulterior motive but independent witnesses were not examined. Therefore, learned senior advocate Mr. Nanavati has claimed that the benefit of doubt should be granted. 26. As against this, learned A.P.P. Ms. Shah has taken us through Ex. 55,56 and 58 and has contended that postmortem report shows that there were eight injuries, one by dhariya blow which was fatal. In Col. No.18 of the postmortem report, it mentioned that there was a fracture in the right leg bones. It can be said that all committed riot in consortium, and therefore, the sentences awarded by the learned trial Judge does not require any interference. She has heavily relied on the evidence of P.W.-6 Chaheraji Kuberji Ex. In Col. No.18 of the postmortem report, it mentioned that there was a fracture in the right leg bones. It can be said that all committed riot in consortium, and therefore, the sentences awarded by the learned trial Judge does not require any interference. She has heavily relied on the evidence of P.W.-6 Chaheraji Kuberji Ex. 25 and has relied on the decision of Apex Court in the case of Rumi Bora Dutta v. State of Assam with Probal Dutta v. State of Assam, reported in AIR 2013 SC 2422 , in the case of State of U.P. v. Naresh & Ors., reported in 2011 Cri.L.J., 2162, in the case of Mano Dutt and another v. State of Uttar Pradesh, reported in, (2012)4 SCC 79 , in the case of Harivadan Babubhai Patel v. State of Gujarat, reported in (2013)7 SCC 45 and the decision of this Court in the case of Vahaji Ravaji Thakore & Anr. v. State of Gujarat, reported in 2004(1) GLR 777 and contended that the accused have been proved to be the perpetrator of the murder of the deceased, and therefore, the appeal deserves to be dismissed. 27. This takes us to the next issue whether the offence under section 504 and 50692) of I.P.C. is committed or not. Section 504 and 506(2) reads as under: "Sec. 504. Intentional insult with intent to provoke breach of the peace:- Whoever, intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Sec. 506. Punishment for criminal intimidation:- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Sec. 506. Punishment for criminal intimidation:- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. If threat be to cause death or grievous hurt, etc.- And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 28. In fact, from the evidence of P.W.-2 Amaratji Babuji Thakore, complainant Ex. 16, it appears that there were no such words used by any of the accused which would break the public peace, and therefore, neither the offence under section 504 nor under section 506(2) of I.P.C. is made out. P.W.-3 Rameshji Mohatji Thakore Ex. 20, who is eye witness, speaks only about the altercation of words between Mahesh and Samaraji and no others have used any words which would cause breach of peace in that area. None of them have used the words which can be said to be intimidated, and therefore, we convinced that no offence under section 504 and 506(2) of I.P.C. is made out against the accused. 29. This takes us to the main issue. On the touch-stone of the decisions cited herein above, we are convinced that it is not a murder which would fall under Section 299 of I.P.C., but it requires now to be seen on the touch-stone of the over-tact of each and every individual. In that circumstances, the dhariya blow which was given by appellant No.1–Accused No.1 proved to be practically fatal but he had no motive or intention, and therefore, the incident occurred on a spur of moment and he was also injured, and therefore, it can be said to be the case falling within the purview of section 304 Part-I of I.P.C. looking to the severity of the infliction of the blow so far as appellant No.1 – ori. Accused No.1 is concerned. 30. As far as appellant No.2- ori. Accused No.1 is concerned. 30. As far as appellant No.2- ori. accused No.2 is concerned, he was not armed with any weapon, and therefore, his case would fall within the purview of section 324 of I.P.C. So far as appellants No.3, 4, 5 and 6 are concerned, looking to their act and looking to the injuries, it cannot be said that they have not taken any part, but their act would be lesser in number, and therefore, they are convicted under section 326 of I.P.C. This takes us to the last limb of the punishment aspect, that is, custodial sentence to appellant No.1 – ori. Accused No.1 would be of 10 years. The appeal deserves to be partly allowed. 31. In the result, this appeal is partly allowed. The impugned judgment and order of conviction and sentence dated 29.9.2008 passed by the learned Addl. Sessions Judge, 2nd Fast Track Court, Mehsana in Sessions Case No.76 of 2008 convicting the appellants for the offence under section 147, 148, 341, 504, 506(2) and 302 of I.P.C., is quashed and set aside and is modified as under: 32. Appellant No.1 – ori. Accused No.1 is convicted under section 304 Part-I of I.P.C. and sentenced to undergo 10 years imprisonment. Fine is maintained but default sentence is reduced to six months instead of one year. 33. Appellant No.2 – ori. Accused No.2 is convicted under section 324 of I.P.C. and sentenced to undergo custodial sentence of three years with a fine of Rs. 1000/-, in default to undergo further S/I for three months. The conviction and sentence under section 135 of the Bombay Police Act is quashed and set aside qua appellant No.2 – ori. Accused No.2. 34. Appellants No.3, 4, 5 and 6 are convicted under section 326 of I.P.C. and sentenced to undergo R/I for five years and to pay a fine of Rs. 1000/- each, in default, to undergo further S/I for three months. 35. The conviction and sentence imposed upon the appellants No.1, 3, 4, 5 and 6 under section 135 of the Bombay Police Act, is confirmed. 36. The appellants No.2 to 6 – original Accused No.2 to 6 are on bail. Their bail and bail bonds stands cancelled. R & P to be sent back to the trial Court, forthwith. 37. 35. The conviction and sentence imposed upon the appellants No.1, 3, 4, 5 and 6 under section 135 of the Bombay Police Act, is confirmed. 36. The appellants No.2 to 6 – original Accused No.2 to 6 are on bail. Their bail and bail bonds stands cancelled. R & P to be sent back to the trial Court, forthwith. 37. The appellants No.2 to 6 – original Accused No.2 to 6 are directed to surrender before the Jail Authority within a period of twelve weeks from the date of this order, failing which, the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellants No.2 to 6 - ori. Accused No.2 to 6. Appeal partly allowed.