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2014 DIGILAW 242 (GUJ)

Kantibhai Kalabhai Chauhan v. State of Gujarat

2014-02-13

JAYANT PATEL, Z.K.SAIYED

body2014
JUDGMENT : Jayant Patel, J. As both the appeals arise from the common judgment & order passed by the learned Sessions Judge in Sessions Case No.39/09, they are being considered simultaneously. 2. The short facts of the case are that Jayantibhai Shanabhai Chauhan, PW6 filed complaint (Exh.47) with Kapadwanj Rural Police Station stating that on 10.12.2008 when he was with his father Shanabhai Sukhabhai (deceased) and his brother Prabhatbhai Shanabhai and his younger brother Rabhabhai Shanabhai with Daulatbhai Budhabhai, Savitaben Rabhabhai, Madhuben Raisingbhai and Puniben Jayantibhai, at about 7.30 evening, accused No. 1 Kantibhai Kalabhai (A1) with iron rod (kosh), accused No. 2 Pratapbhai Fatabhai (A2) with stick, accused No. 3 Manubhai Badarbhai (A3) and accused No. 4 Babubhai Badarbhai (A4) with dhariyu, accused No. 5 Chimanbhai Somabhai (A5), accused No. 6 Jesingbhai Kalabhai (A6), accused No. 7 Rameshbhai Kalabhai (A7) and accused No. 8 Dhirabhai Fatabhai (A8) with brick pieces came at the residence of the complainant and told that why Vimlaben who is the widow of Ramabhai Fatabhai is being harassed by Bhikhabhai Budhabhai who is their family member and thereafter, they started abusing and the blows were given upon the complainant and his group. A1 gave blow on the left side of the head to the deceased with the iron rod, A2 gave blow to the deceased with the stick on the lower part of the stomach, A3 gave blow with dhariyu to the deceased from reverse side on the backbone. Further, A4 gave a blow of dhariyu to his brother Ghelabhai on the right side of the head and A5, A6, A7 and A8 threw brick pieces upon them and as a result thereof, Jashiben Ghelabhai was injured on the jaw of the mouth, Naniben was injured on the left hand, Savitaben and Rabhabhai were injured on the forehead, Madhuben was injured on the right leg at the bottom and Puniben was injured on the left knee. Since shouting was made and the crowd had assembled together, the aforesaid assailants had escaped. Thereafter, his brother Ramabhai informed on No.108 and the ambulance was brought. When the doctor examined his father Shanabhai, he was found dead. Therefore, the complaint was filed. 3. The aforesaid complaint was investigated by the police and ultimately, the charge-sheet was filed against 8 accused. The case was committed to the Sessions Court being Sessions Case No.39/09. Thereafter, his brother Ramabhai informed on No.108 and the ambulance was brought. When the doctor examined his father Shanabhai, he was found dead. Therefore, the complaint was filed. 3. The aforesaid complaint was investigated by the police and ultimately, the charge-sheet was filed against 8 accused. The case was committed to the Sessions Court being Sessions Case No.39/09. The learned Sessions Judge conducted the trial. The prosecution in order to prove the guilt of the accused, examined 15 witnesses and produced 27 documents, details of which are recorded by the learned Sessions Judge at para 4 of the judgment. The learned Sessions Judge thereafter, recorded the statement of the accused under section 313 of Cr.P.C., wherein each of the accused denied the evidence against them and in the further statement, the accused stated that a false case has been filed against them. The learned Sessions Judge thereafter, heard the prosecution and defence and the learned Sessions Judge found that the prosecution has been able to prove the case against A1 for the offences under sections 302 and 504 of IPC. Whereas, the prosecution has not been able to prove the case against the other accused for the offences under sections 147, 148, 302, 323, 324 337, 504, 506(2) read with 149 of IPC, but they can be convicted for their individual role for the offence under sections 323 and 324 and 504 respectively and were accordingly convicted. 4. The learned Sessions Judge thereafter heard the prosecution and the defence on the aspect of sentence and imposed sentence of life imprisonment with the fine of Rs. 2,000 and further 4 months SI for default in payment of fine to A1 for the offence under section 302 read with section 504 of IPC. The learned Sessions Judge imposed sentence upon A1 to A8 of 6 months SI for offence under section 323 of IPC and also imposed fine of Rs. 500 upon A2, A3, A5, A6, A7 and A8 and further 15 days SI for default in payment of fine and the learned Sessions Judge imposed further sentence upon A2, A3, A5, A6, A7 and A8 of 30 days SI for the offence under section 504 of IPC. The learned Sessions Judge imposed sentence of 1 year SI for the offence under section 324 of IPC upon A4 with the fine of Rs. The learned Sessions Judge imposed sentence of 1 year SI for the offence under section 324 of IPC upon A4 with the fine of Rs. 500 and further 2 months SI for default in payment of fine and the learned Sessions Judge also imposed sentence of 30 days SI upon A4 for the offence under section 504 of IPC. Under the circumstances, A1 has preferred appeal against conviction being Criminal Appeal No.26/10. Whereas, the State has preferred Appeal No.585/10 against acquittal of A2 to A8 for the offence under section 302 read with section 149 of IPC and other offences. Under the circumstances, both the appeals before this Court. 5. We may state that as the parties shall be referred to as per their original status before the Trial Court as A1 to A8 respectively. 6. The learned counsel for the original accused Mr. Pathan and the learned APP Mr. Jani for the State have taken us to the entire evidence on record. We have considered the judgment and reasons recorded by the learned Sessions Judge. We have heard the learned counsel for the original accused as well as the learned APP for the State in both the appeals. 7. As the facts are common, the aspect for conviction as well as for acquittal shall be considered simultaneously. 8. The consideration of the evidence led by the prosecution shows that Jayantibhai, PW6, Exh.46, has supported the case of the prosecution as stated in the complaint. In the cross-examination, the defence has not been able to bring about any material contradiction so far as the blows given by the respective accused to the deceased as well as the injured person. However, in the cross-examination, the said witness has admitted that the accused had dispute for Bhikhabhai Budhabhai and not for his father Shanabhai (deceased). He has also admitted that Bhikhabhai has not sustained any injury. He has stated that since the brick pieces were thrown by the accused from a distance, he was unable to state that who had given blow to him. In the cross-examination, he has tried to show that that was no darkness at the time of the incident and he has reiterated that except the dispute for chasing Vimlaben by Bhikhabhai, there was no other issue at all. 9. In the cross-examination, he has tried to show that that was no darkness at the time of the incident and he has reiterated that except the dispute for chasing Vimlaben by Bhikhabhai, there was no other issue at all. 9. Jashiben, PW 7, Exh.48, in the examination-in-chief, has supported the case of the prosecution, but in the cross-examination, she has admitted that the family members of the accused had assembled separately and she further admitted that since it was evening time, who was throwing stone could not be identified. She further admitted that since there was apprehension that accused were to beat Bhikhabhai Budhabhai, and as the deceased came in between, otherwise, there was no dispute of the accused with the deceased. She also admitted that when her husband and her father-in-law (deceased) had gone for saving Bhikhabhai, they were injured. 10. Naniben, PW 8, Exh.49, in the examination-in-chief has supported the case of the prosecution, but in her cross-examination, she has stated that initially A1 had come and thereafter, the other accused had come. 11. Madhuben, PW 9, Exh. 50 in examination-in-chief has supported the case of the prosecution for the other parts but she has not stated the presence of Babubhai Badarbhai at the time of the incident. In the cross-examination, she has stated that when the scuffle had started, the stone throw was also started. 12. Dolabhai Budhabhai, PW 10, Exh.53, has supported the case of the prosecution. In the examination-in-chief, he has stated that Bhikhabhai had also come at the place where the incident had happened and Bhikhabhai had tried to save him and he had jumped for saving Bhikhabhai. He further stated in the cross-examination that since it was about 7.30 at night, the colour of the cloths which were put on by the accused could not be identified. 13. Puniben, PW 13, Exh.57, in the same manner, has supported the case of the prosecution. In the cross-examination, she has stated that her father-in-law Shanabhai had told to the accused that he will convey to Bhikhabhai about the conduct of Bhikhabhai with Vimlaben. 14. 13. Puniben, PW 13, Exh.57, in the same manner, has supported the case of the prosecution. In the cross-examination, she has stated that her father-in-law Shanabhai had told to the accused that he will convey to Bhikhabhai about the conduct of Bhikhabhai with Vimlaben. 14. It is true that all witnesses are injured witnesses and they were also eye witnesses, but over all reading shows that in the examination-in-chief, they have deposed the same as per the case of the prosecution, but even in examination-in-chief, the same can be bifurcated into two parts; one is for the role played by A1 and another is for the role played by other accused. However, in the cross-examination, so far as the role played by A1 is concerned, there is no inconsistency, but for the other accused, different overt act has been referred to and there is no complete consistency. There is consistency on the aspect that dispute was on account of Bhikhabhai who as per the accused was chasing Vimlaben and the accused had gone to convince the family members of Bhikhabhai and since it was apprehended that Bhikhabhai may be beaten, the deceased came in between and he was injured and subsequently, died. So far as other injured persons are concerned, they sustained injuries, but as observed earlier, for the role played by other accused than A1, the matter requires to be considered with little more scrutiny and mere say of eyewitnesses needs to be examined with the medical evidence and the corroboration by the evidence of other witnesses. It has also come on record that initially, A1 came and thereafter, other accused came. There is no evidence for meeting of mind or assembling prior to the incident. Even as per the prosecution, the common object was to scold Bhikhabhai and that was also at the time when the accused reached at the place of incidence and not prior thereto. It has also come on record that the accused well as the injured and the deceased were residing in the same locality and the distance between the houses was about 2030 ft. The incidence has happened at about 7.30 night during darkness and as observed earlier, one of the witness had stated that the colour of the cloth which was put on by the accused could not be identified on account of the darkness. The incidence has happened at about 7.30 night during darkness and as observed earlier, one of the witness had stated that the colour of the cloth which was put on by the accused could not be identified on account of the darkness. It is in light of the aforesaid evidence of eyewitnesses, we have further to consider as to whether corroboration is available by the other material evidence and if yes, to what extent. 15. The medical evidence of Doctor Hinaben PW 1, Exh.21 shows that she had performed postmortem on the dead body of the deceased. When she examined, one injury and two contusions were found on the body of the deceased. Injury of 4 CM X 2 CM was found on the skull skin deep on the left side of the head. Therefore, it can be said that so far as the role played by A1 for giving blow with the iron rod, the medical evidence of the said Doctor is supporting the case of the prosecution. The other injuries of contusions on the backside below scapula and contusions found on the neck and on the backside are as per the prosecution case attributed to other accused. All the witnesses have stated that A2 gave blow with the stick to the deceased on the lower portion below the stomach (pedu) whereas no contusion is found or no injury is found by the Doctor who performed on the body of the deceased below the stomach on the lower portion (pedu). The contusion is found on the neck which cannot be termed as pedu (the lower portion of the stomach). In this manner, so far as role placed by A2 is concerned, there is no corroboration in the medical evidence. Therefore, we find that the benefit of doubt can be made available to A2 for the case of the prosecution for the charge that A2 gave blow with the stick on the lower portion of the stomach to the deceased. 16. A3 has been attributed with the role of giving dhariyu blow by using reverse blade of dhariyu on the lower portion of the back. The contusion is recorded when the postmortem was performed on the backbone below scapula. If the injury found on the body is considered with the shape of dhariyu blade, even if used from reverse, it cannot be said that there would be only contusion. The contusion is recorded when the postmortem was performed on the backbone below scapula. If the injury found on the body is considered with the shape of dhariyu blade, even if used from reverse, it cannot be said that there would be only contusion. But if the blade of dhariyu even on reverse is used on the back on the lower portion, it will certainly show the skin cut injury or atleast a sharp deep abrasion showing the shape of dhariyu blade and not mere contusion. This injury is further required to be considered with the case of the defence that at the scene of offence, there were iron rod foundation (khuta) for the cattle and the deceased had fallen down. In our view, as the injury found on the body of the deceased by way of medical evidence is not supporting the case of the prosecution to the role played by A3 of giving blow with dhariyu from reverse side on the back of the deceased, the benefit of doubt could be available to A3 for the alleged role charged by the prosecution for giving blow to the deceased. 17. The aforesaid discussion would go to show that the evidence has come on record and the prosecution has been able to prove the case against A1 for giving blow with the iron rod on the head of the deceased which is the cause for death on account of hemorrhage sustained due to the such injury as per the medical evidence. However, it cannot be said that the prosecution has been able to prove the case beyond reasonable doubt for the role played by A2 and A3 for giving the stick below on the lower portion of the stomach (pedu) or the lower portion of the backbone by using dhariyu blade from reverse respectively. 18. We may now consider the aspect of common object and the common intention charged by the prosecution upon all the accused for the offence under section 302 of IPC. 19. Before we consider the facts of the case, it would be useful to make reference to the decision of the Apex Court in the case of Ram Dular Rai and others v. State of Bihar, reported in AIR 2004 SC 1043 . 19. Before we consider the facts of the case, it would be useful to make reference to the decision of the Apex Court in the case of Ram Dular Rai and others v. State of Bihar, reported in AIR 2004 SC 1043 . The Apex Court in the said decision had an occasion to examine the common object and common intention in light of the provisions of sections 141 and 149 of the IPC. At paragraphs 7 to 10, it was observed thus: "7. Coming to the question whether Section 149 has application when presence of more than five persons is established, but only four are identified, Section 149 does not require that all the five persons must be identified. What is required to be established is the presence of five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that does not in any way affect applicability of Section 149 IPC. 8. Another plea which was emphasised relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly. 9. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti. 10. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word 'knew' used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore, AIR 1956 SC 731 .)" 20. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore, AIR 1956 SC 731 .)" 20. It may be that in a given case, if the common object or the common intention so as to bring within the purview of section 141 read with section 149 of IPC, is not proved beyond reasonable doubt for all the accused and the number of accused is reduced to less than 5, the question may be required to be examined for applicability of section 34 qua the accused who have played role in commission of crime. Therefore, it may have to be examined as to whether section 34 can be applied to the facts of the prosecution if the charge under section 141 read with section 149 of IPC is found as not proved and the accused who have played role are less than 5 in number. At this stage, we may refer to the decision of this Court in the case of Kantibhai Shanabhai Nayak v. State of Gujarat reported at 2000(9) 5 GLR 4106, wherein, this Court had an occasion to examine the scope and ambit of section 34 of IPC after taking into consideration the decision of the Apex Court in the case of Dukhmochan Pandey v. State of Bihar reported in 1997 (8) SCC 405 and it observed at paras 14 to 16, as under: "14. It appears that the common intention could be gathered on the basis of the material on record, the other circumstances and also the conduct of the accused at the time when the incident has occurred. Had it been a case where there was evidence available on conspiracy or a meeting at which the decision is taken to kill the deceased, it may be a valid circumstance, which is not at all available in the facts of the present case. Had it been a case where there was evidence available on conspiracy or a meeting at which the decision is taken to kill the deceased, it may be a valid circumstance, which is not at all available in the facts of the present case. It is true that even in absence of predetermination by way of conspiracy or otherwise, the common intention could be gathered if the facts and circumstances so warrant at the time when the incident had happened and more particularly arising from the conduct on the part of each accused qua the deceased. Merely because all have gone together cannot be a sole basis for upholding conviction under Section 34 treating the same as common intention of everybody. If the overall circumstances are considered in the present case it appears that the accused are the relatives of the deceased and they had the ill-feeling that as the deceased was a witch, their family members were remaining sick or ill. Therefore, to express their ill-feeling, it appears that all the accused together with their father Shana Nayak had gone to the place of the deceased. Not only that, but even in the complaint there is a reference of altercation and exchange of words on the said aspects and there is also reference to the quarrel on the said aspect. This shows that at least there could not be common intention to kill but to express the ill feeling. It, at the most, could be said as to give assault by some of the accused. At this stage, reference may be made to the decision of Apex Court in the case of Dukhmochan Pandey and Ors. v. State of Bihar, reported in AIR 1998 SC, 40 and more particularly the observations made by the Apex Court on page 46, the relevant of which reads as under:" 6. ... The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a prearranged plan which in turn presupposes a prior meeting of mind. ... The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a prearranged plan which in turn presupposes a prior meeting of mind. But in a given case such common intention which developed at the spur of the moment is different from a similar intention actuated a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment." 15. It was further observed that "The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice." 16. It was also observed that "In other words, unless such common intention is established as a matter of necessary inference from the proved circumstances of the case then the accused persons could be individually liable for their respective overt attacks and not for the act done by any other person." 21. The aforesaid shows that unless a common intention is established, as a matter of necessary inference as per the proved circumstances of the case, the accused could be made liable for their respective overt act and not for the act done by any other person. 22. We have now to consider the facts of the present case further. It has come on record that the accused and the injured persons including the deceased are residing in the same area and the distance between their houses was about 2030 ft. The common object as stated by all the witnesses and even as per the prosecution case was to scold Bhikhabhai Budhabhai for chasing Vimlaben and to convince the family members. All the witnesses who are injured have stated in the complaint that there was no dispute of the accused with the deceased Shanabhai. Naniben, PW 8 Exh. 49 in her cross examination has stated that initially, A1 came and thereafter other accused. 23. All the witnesses who are injured have stated in the complaint that there was no dispute of the accused with the deceased Shanabhai. Naniben, PW 8 Exh. 49 in her cross examination has stated that initially, A1 came and thereafter other accused. 23. The aforesaid circumstance shows that there was no prior meeting of mind to liquidate or to kill or murder the deceased Shanabhai nor there is any evidence to show that any of the accused had any enmity with the deceased or that there was meeting or assembly formed amongst the accused prior to the incident. As recorded by us earlier, in the testimony of Naniben, PW 8, Exh. 49 in her cross-examination, she has stated that A1 had come at the first instance and thereafter, other accused had come. Therefore, there is absence of prior meeting of mind or there is absence of formation of unlawful assembly for commission of crime against the accused. 24. It may be that common object or common intention may be lacking earlier. But the accused could form the common object or common intention at the time of the incident. Such can be gathered from the conduct of the accused. The circumstance showing that A1 was the only person giving blow with the iron rod and the other accused A2 and A3 have participated even as per the prosecution for giving blow to the deceased with the stick and with the reverse side of dharia blade are not getting corroboration from the medical evidence. Under these circumstances, if the prosecution has not proved the case beyond reasonable doubt of giving blow by A2 and A3 to the deceased, the common object for causing murder of deceased cannot be attributed to A2 and A3. No role played by A2 and A3 in view of the discussions made by us hereinabove could be said as proved beyond reasonable doubt. If the injury Nos. 2 and 3 as found from the body of the deceased is considered, such could not be termed as for causing death nor can be termed as sufficient to cause death. No evidence has come on record for facilitating A1 to commit crime for the offence under section 302 of IPC by A2 or A3. If the injury Nos. 2 and 3 as found from the body of the deceased is considered, such could not be termed as for causing death nor can be termed as sufficient to cause death. No evidence has come on record for facilitating A1 to commit crime for the offence under section 302 of IPC by A2 or A3. Under the circumstances, it cannot be said that any common object or any common intention was formed by A2 and A3 for causing murder or for killing the deceased. 25. So far as other accused are concerned, no injury is said to have been attributed by any of them to the deceased. Under these circumstances, even for other accused, it cannot be said that any common object or common intention was formed at the time of incident. 26. Further, as stated above, the common object or common intention of all was to scold Bhikhabhai who was chasing Vimlaben and to convince and prevail over the family members of Bhikhabhai. The said part of the common object and common intention has been stated by all the witnesses and the witnesses have further gone to say that there was no dispute whatsoever between the deceased and any of the accused. 27. Under these circumstances, we find that the ultimate decision taken by the learned Sessions Judge for absence of common object or common intention on the part of A2 to A8 for the offence under section 302 of IPC cannot be said to be erroneous. 28. Consequently, the acquittal granted by the learned Sessions Judge to other accused for the offence under section 302 of IPC could not be said to be by committing error of judicial discretion which may call for interference. 29. In any case, the power of this Court in appeal against the order of acquittal could be attributed only if one view is possible and not in a case where two views are possible. As such, in view of the reasons recorded by us hereinabove, one of the strong possible view is that there was no common intention or common object on the part of A2 to A8 to cause murder of the deceased. As such, in view of the reasons recorded by us hereinabove, one of the strong possible view is that there was no common intention or common object on the part of A2 to A8 to cause murder of the deceased. Even if it is considered for the sake of examination that the second view was possible, then also, it would not be a case for interference in the appellate power against the acquittal granted by the learned Sessions Judge to A2 to A8 for the offence under section 302 read with section 149 and/or section 34 of IPC. 30. Under the circumstances, the appeal preferred by the State against acquittal deserves to be dismissed. 31. The learned counsel for A1 lastly contended that it has come in the evidence that the deceased came in between and he sustained injury when A1 had come to the place for scolding Bhikhabhai. Therefore, there was no intention to cause death of the deceased. He submitted that even as per the case of the prosecution, there was quarrel and atmosphere of excitement and provocation and under these circumstances, the case may be considered for 304 Part I and/or Part II and not under section 302 of IPC since in any case there was no intention to cause death of A1. 32. Whereas, the learned APP submitted that the discretion has been properly exercised by the learned Sessions Judge after appreciation of the evidence and sentence has also been appropriately imposed and therefore, this Court may not interfere on the said aspect. 33. In our considered view, when the prosecution witness Jashiben who is the wife of the complainant in her cross-examination has specifically admitted that apprehending that the accused will beat Bhikhabhai Budhabhai, the deceased had intervened with the further statement that the accused had no quarrel or dispute with the deceased. She further admitted that when the deceased tried to save, they sustained injury. Under these circumstances, we find that the case would fall under section 304 Part II of IPC and not under section 302 of IPC. Resultantly, the appropriate sentence would be 10 years RI and not life imprisonment as imposed by the learned Sessions Judge. 34. She further admitted that when the deceased tried to save, they sustained injury. Under these circumstances, we find that the case would fall under section 304 Part II of IPC and not under section 302 of IPC. Resultantly, the appropriate sentence would be 10 years RI and not life imprisonment as imposed by the learned Sessions Judge. 34. We may record that so far as the individual role played by each of the accused for causing injury, which is found as proved by the prosecution, the learned Sessions Judge has already convicted the other accused. 35. In view of the aforesaid observations and discussions, the judgment and order of the learned Sessions Judge in Sessions Case No.39/09 for conviction of accused No. 1 (A1) is maintained, but for the offence under section 304 Part II of IPC and not for the offence under section 302 of IPC. It is further observed and directed that the sentence imposed upon A1 shall be of 10 years RI with the fine and default in payment of fine as ordered by the learned Sessions Judge. The other conviction made and the sentence imposed upon A1 by the learned Sessions Judge is not interfered with. Criminal Appeal No.26/10 preferred by A1 shall stand allowed to the aforesaid extent. 36. In view of the discussions already made by us hereinabove, the acquittal ordered by the learned Sessions Judge against which Criminal Appeal No.585/10 is preferred by the State deserves to be dismissed. Hence, dismissed. 37. Both the appeals are disposed of accordingly. Cri. Appeal No. 26 of 2010 partly allowed, Cri. Appeal No. 585 of 2010 dismissed.