JUDGMENT Jayant M. Patel, J. 1. The present appeal is directed against the judgment and order passed by the leaned Sessions Judge in Sessions Case No. 55 of 2009, whereby all the accused have been convicted for the offence under Sec. 302 read with Sec. 114 of I.P.C. and sentence imposed is of life-imprisonment with the fine of Rs. 500/- upon each of the accused with the further one month S.I., for default in payment of fine. The short facts of the case are that on 15-12-2007 a complaint came to be registered with Dakor Police Station by Chandrasinh Chhatrasinh Rathod (P.W. 1) (Exh. 10), stating that his brother Narvatsinh had to collect an amount of Rs. 1,400/- towards unpaid consideration for the sale of buffaloes from Raijibhai Merubhai Parmar (A-1). On 14-12-2007 at about 6-00 O'clock, when he was at his residence and Narvatsinh (deceased) had gone to the agricultural field for irrigation to the crop of wheat, he had also gone to A-1 for demanding money of Rs. 1,400/-. At that time, at about 8-00 O'clock, Kalusinh @ Khodsinh Bharatsinh Parmar (P.W. 4) came at his residence and informed that his brother Narvatsinh was being beaten by some persons. Therefore, his younger brother's wife, Janakben Hathisinh Rathod (P.W. 3) (Exh. 15) had reached the field immediately and thereafter he went with his son Ashokbhai and brother Hathisinh and other persons. His younger brother's wife Janakben informed him that Raijibhai Merubhai Parmar (A-1), his son Nakulbhai (A-2), Champaben, wife of Raijibhai Merubhai Parmar (A-3) and Meenaben, wife of Nakul (A-4), by catching hold of the elder brother of her husband Narvatsinh, were beating him and A-1 was having stick and blow was given on the backside of the head of the deceased. As a result thereof, the deceased had fallen down and all the four persons are run away towards their residence. When the complainant reached, he found that his brother (deceased) was in the field and he had sustained injuries and there was bleeding and he found that he had expired. The complaint was registered at about 1-45 a.m., on 15-12-2007. The police investigated into the matter and ultimately charge-sheet was filed against four accused. The case was committed to the Sessions Court being Sessions Case No. 55 of 2009. The complaint was registered at about 1-45 a.m., on 15-12-2007. The police investigated into the matter and ultimately charge-sheet was filed against four accused. The case was committed to the Sessions Court being Sessions Case No. 55 of 2009. The learned Sessions Judge frame the charge for the offence under Sec. 302 read with Sec. 114 of I.P.C. and for the offence under Sec. 135 of Bombay Police Act upon all the accused. The learned Sessions Judge conducted the trial. 2. The prosecution, in order to prove the guilt of the accused examined 13 witnesses and produced 25 documentary evidences the details whereof are mentioned by the learned Sessions Judge at Paragraphs 3 and 4 of the impugned judgment. The learned Sessions Judge, thereafter, recorded the statements of all the accused under Sec. 313 of Cr.P.C., wherein the accused denied the evidence against them. In the further statement, the accused stated that a false charge is made against them and false case is filed and they are innocent. The learned Sessions Judge thereafter heard the prosecution and the defence and found that the prosecution has been able to prove the case for the charged offence against all the accused and convicted all the accused for offence under Sec. 302 read with Sec. 114 of I.P.C. as well as for the offence under Sec. 135 of Bombay Police Act. The learned Sessions Judge thereafter, heard the prosecution and the defence for sentence and ultimately imposed sentence as referred to hereinabove. Under these circumstances, all the original accused-appellants herein have preferred the present appeal before this Court. 3. Mr. Toliya, learned Counsel appearing with Mr. Shirish Patel, learned Counsel for the original accused and Mr. Jani, learned A.P.P. for the State have taken us through the entire evidence on record. We have considered the reasons recorded by the learned Sessions Judge in the impugned judgment. We have heard the learned Counsel appearing for the accused-appellants as well as learned A.P.P. for the State. 4. The evidence led by the prosecution can broadly be considered as stated hereinafter. However, such evidence will have to be considered and appreciated separately for A-1 and for A-2 to A-4 after we consider the aspect of applicability of Sec. 114 for the role played for facilitating abatement for commission of crime by A-2 to A-4. 5. 4. The evidence led by the prosecution can broadly be considered as stated hereinafter. However, such evidence will have to be considered and appreciated separately for A-1 and for A-2 to A-4 after we consider the aspect of applicability of Sec. 114 for the role played for facilitating abatement for commission of crime by A-2 to A-4. 5. The testimony of complainant (P.W. 1) is supporting the case of the prosecution and he has stood by the statement made in the complaint. As per him, various injuries were sustained by the deceased on the right ear and on the backside of the head. He has reached the place of offence after the incident was over. He has stated that the incident happened between 7-00 to 8-00 O'clock in the evening time. He has also stated that there was bleeding and blood was found on account of the injury. As per him the incident had happened between 7-00 to 8-00 O'clock. In the cross-examination, the said witness has stated that when Kalubhai had come, his Bhabhi (brother's wife) was in the field. This part of the evidence is not in full conformity with the statement made in the complaint, but in our view such contradiction is of no much relevance for the incident in question, since Janakben (P.W. 3) is one of the main eye-witnesses as per the prosecution. 6. Janakben (P.W. 3) (Exh. 15) has supported the case of the prosecution. As per her testimony, she was in the field on 14-12-2007 and at that time she heard the shouting of her husband's elder brother (jeth), and therefore, she went to the field of A-1, she found that the deceased was being beaten by A-1, A-2, A-3 and A-4. A-3 and A-4 had caught hold of the deceased and A-1 was having strong stick in his hand and A-1 had given blows with the strong stick on the back portion of the head of the deceased. As per her testimony, A-1 had given blows of about four times and the deceased sustained injuries on the backside of the head, on the right portion of the forehead and there was bleeding. She had identified the accused, who were in the Court. She also identified the stick. As per her testimony, A-1 had given blows of about four times and the deceased sustained injuries on the backside of the head, on the right portion of the forehead and there was bleeding. She had identified the accused, who were in the Court. She also identified the stick. In the cross-examination, the said witness has denied that in the statement before the police, she had not stated that A-3 and A-4 had caught hold of the deceased and A-1 was having strong stick, with which the blow was given on the backside of the head, but the relevant aspect is that in the testimony of I.O., Upendrasinh Ranjitsinh Chohan (P.W. 12) (Exh. 37) in the cross-examination he has admitted that P.W. 3-Janakben had not stated in the police statement that A-3 and A-4 had caught hold of the deceased and A-1 was having strong stick and the blow was given with the strong stick on the back portion of the head of the deceased. Therefore, so far as roles played by A-3 and A-4 are concerned, the statement of Janakben in the examination-in-chief can be said as doubtful. Even on the aspect of A-1 having strong stick and the blow given on the back portion of the head of the deceased, if considered, doubtful, the corroboration may be required to be examined to the said statement. Further, if the statement made in the examination-in-chief is considered for her presence at the field prior to the incident, the same is contradicted by the complaint of P.W. 1, Chandrasinh, because he has stated one Kalubhai gave information that deceased was being beaten, his Bhabhi Janakben (P.W. 3) was at residence and then, she reached the field immediately. Under these circumstances, it could be said that the testimony of P.W. 3-Janakben for her presence prior to the incident at the field is materially contradicted by the complaint, but there is consistency or that there is no material contradiction to the testimony of Janakben (P.W. 3) on the aspect of reaching Janakben at the field of A-1 immediately and when she reached, deceased was being beaten by A-1 and other accused. However, so far as A-2 is concerned, his name is stated for the first time in the examination-in-chief. However, so far as A-2 is concerned, his name is stated for the first time in the examination-in-chief. So far as roles played by A-3 and A-4 are concerned, as recorded earlier, there is material contradiction, if considered, with testimony of I.O. (P.W. 12) in his cross-examination. 7. In view of the aforesaid testimony of complainant (P.W. 1) and Janakben (P.W. 3), if the corroboration is to be traced, the same is by medical evidence of Dr. Arunkumar Roy (P.W. 8) at Exh. 29. As per the record, post-mortem was performed by Dr. Akshay R. Shah (Dr. A.R. Shah) on 17-12-2007 but the post-mortem report was not prepared. Subsequently, he expired on 11-1-2008, and therefore, he has not been examined by the prosecution, but as per the post-mortem note (Exh. 30), in his own handwriting, he had mentioned that the death was due to injury received on the back portion of the skull, on the occipital bone and due to fracture on the parietal bone. Hence, it can be said that for the blows given by A-1 on the back portion of the head of the deceased, there is corroboration by medical evidence. No other injury is recorded and the said doctor has opined that the injury could be caused with the case property-stick, which was discovered during the investigation. However, so far as any other blows given by any other accused are concerned, there is no corroboration in the medical evidence. Further, as stated above, for the role played by A-3 and A-4, the statement of Janakben (P.W. 3) in her testimony is materially contradicted by the testimony of I.O. (P.W. 12). 8. Moreover, in the inquest panchnama at Exh. 13, it has been recorded that there were three injuries on the back portion of the head of the deceased. Such would show that the blows were more than one and the statement of Janakben (P.W. 3) for giving four blows by A-1 to the deceased is getting corroboration to the extent of three injuries sustained on the head by the deceased through panchnama prepared for inquest (Exh. 13). The testimony of Kalubhai @ Khodsinh (P.W. 4) (Exh. Such would show that the blows were more than one and the statement of Janakben (P.W. 3) for giving four blows by A-1 to the deceased is getting corroboration to the extent of three injuries sustained on the head by the deceased through panchnama prepared for inquest (Exh. 13). The testimony of Kalubhai @ Khodsinh (P.W. 4) (Exh. 16) is useful for supporting the case of the prosecution only to the extent of providing information to the complainant and he is not the direct eye-witness, but could be said as chance witness and then he immediately rushed to the residence of the complainant and informed the complainant that the deceased is being beaten by some persons without naming. In the examination-in-chief, there is improvement that the deceased was being beaten by A-1, A-2, A-3 and A-4 and subsequently, he has stated that they were present. Hathisinh (P.W. 5) (Exh. 17) has reached the place after the incident. 9. Prakash Pandya (P.W. 6) (Exh. 18) is the panch for discovery of weapon (stick) from A-1 at the instance of A-1. A discovery panchnama has come on record at Exh. 24, whereby incriminating material of weapon is discovered at the instance of A-1 and the same is supporting the case of the prosecution. The description of the stick shows that it was an old bamboo stick of 4 ft. 10 inches. The panchnama (Exh. 28) for the scene of offence is supporting the case of the prosecution. The testimony of I.O., Upendrasinh Ranjitsinh Chohan (P.W. 12) (Exh. 37) shows that various steps were taken for investigation of the complaint, for filing of charge-sheet and the discovery of weapon and other incriminating material. 10. The appreciation of the aforesaid evidence led by the prosecution shows that the prosecution has been able to prove the case against A-1 beyond reasonable doubt for causing multiple injuries on the head, vital part of the body of the deceased with a strong stick. However, so far as role of A-2 for causing injuries and of A-3 and A-4 for catching hold of the deceased, and thereby, for the offence under Sec. 114 cannot be said as proved beyond reasonable doubt and the benefit can be extended to A-2, A-3 and A-4. 11. However, so far as role of A-2 for causing injuries and of A-3 and A-4 for catching hold of the deceased, and thereby, for the offence under Sec. 114 cannot be said as proved beyond reasonable doubt and the benefit can be extended to A-2, A-3 and A-4. 11. The learned Counsel for the appellant-accused contended that even if it was found that the injury was caused by A-1, then also it was not a case, which can be said as for the offence under Sec. 302 and at the most, it can be said as for the offence under Sec. 304 Part-I or Part-II, because in his submission, the deceased had come to the residence of A-1 and had there been any intention to cause death, the weapon stick would not have been used. It was also submitted that there could be multiple injuries in skull, even if single blow is given. In his submission, when post-mortem note was not produced or that the doctor, who performed post-mortem was not available for cross-examination, it may be termed as injuries caused with a single blow and the benefit to that extent may be available to A-1. 12. The learned Counsel submitted that if the case is treated not under Sec. 302, but under Sec. 304 Part-I or Part-II, the sentence may be the sentence undergone or maximum 10 years and not for life-imprisonment for the offence under Sec. 302 of I.P.C. 13. Whereas, the learned A.P.P. submitted that the prosecution had proved that there were multiple injuries on the vital part of the body, head and the doctor has opined that the cause of death is for more than one injury. There was fracture found on the occipital bone and on the parietal bone and there were continuous blows or at least four blows and it was a case for the offence punishable under Sec. 302 of I.P.C. and the learned Sessions Judge has rightly convicted A-1 for the offence under Sec. 302 of I.P.C. 14. As observed by us hereinabove, the prosecution has been able to prove with the help of medical evidence and with the help of testimony of Janakben (P.W. 3) that blows were given on the head of the deceased by A-1 with the stick. The injury found by the doctor, who performed the postmortem shows that there was fracture on the parietal bone. The injury found by the doctor, who performed the postmortem shows that there was fracture on the parietal bone. Such would show the force with which the strong stick was used for giving blows. Further, the blows were not only more than one but, in any case, three in numbers. Inquest panchnama does show that there were injuries on the head and the right portion of the forehead. In our considered view, as there were multiple blows and multiple injuries sustained by the deceased, on the vital part, it could not be said that the case would fall under Sec. 304 Part-I or Part-II of I.P.C., but in our view, it could be said that the injuries were caused with an intention to cause death. Under these circumstances, we find that it cannot be said that the learned Sessions Judge has committed error in convicting A-1 for the offence under Sec. 302 of I.P.C. However, it can be said that the learned Sessions Judge has committed error in convicting A-2, A-3 and A-4 for the offence under Sec. 302 with the aid of Sec. 114 of I.P.C. Under these circumstances, the judgment and order of the learned Sessions Judge deserves to be modified to that extent. 15. In view of the aforesaid observations and discussions, the judgment and order passed by the learned Sessions Judge for conviction and imposition of sentence upon accused No. 1(A-1) is hereby confirmed. However, the judgment and order passed by the learned Sessions Judge for conviction and imposition of sentence upon accused No. 2(A-2), accused No. 3(A-3) and accused No. 4(A-4) is hereby quashed and set aside and A-2, A-3 and A-4 are hereby acquitted for the charged offence. 16. The appeal of A-1 shall stand dismissed. The Appeal of A-2, A-3 and A-4 shall stand allowed. The present appeal shall accordingly stand partly allowed. The fine, if any, paid by A-2, A-3 and A-4 shall be refunded. R. & P. be returned to the trial Court.