JUDGMENT : (PER : HONOURABLE MR.JUSTICE Z.K.SAIYED) 1. By way of present appeals, filed under Section 374 of the Code of Criminal Procedure, 1973, the appellants have challenged the common judgment and order of conviction dated 10.02.2011 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Vadodara, in Sessions Case No.47 of 2009. The said case was registered against the appellants – original accused for the offences punishable under Sections 143, 147, 148, 149, 302, 304, 323, 324, 325 and 504 and under Section 135 of the Bombay Police Act. By the impugned judgment and order the appellants of Criminal Appeal No.279 of 2011 original accused Nos.4, 12 and 13 are convicted for offence under Section 148 of the Indian Penal Code and sentenced to undergo R.I. for 01 year and for offence under Section 324 of the Indian Penal Code they are sentenced to undergo R.I. for 01 year and for offence under Sections 302, 325, 323, 143, 147, 149 and 504 of Indian Penal Code and under Section 135 of the Bombay Police Act original accused Nos.4, 12 and 13 are acquitted. However accused Nos.4, 12 and 13 are convicted for offence under Section 304 of the Indian Penal Code and sentenced to R.I. for 10 years. By the impugned judgment and order the appellants of Criminal Appeal No.280 of 2011 original accused Nos.1 and 2 are convicted for offence under Section 148 of the Indian Penal Code and sentenced to undergo R.I. for 01 year and for offence under Section 304 of the Indian Penal Code they are sentenced to undergo R.I. for 10 year and for offence under Sections 302, 325, 323, 143, 147, 149 and 504 of Indian Penal Code and under Section 135 of the Bombay Police Act original accused Nos.1 and 2 accused Nos.4, 12 and 13 are acquitted. Both the sentences are ordered to run separately. 2. According to the prosecution case, the son of the complainant viz. Bipinbhai was in love with Manisha daughter of Chhotiyabhai and got married and Manisha was residing at the house of the complainant. To resolve the dispute the complainant and his son Bipinbhai went to Dhadhoda Village where Bhaljibhai resides. On 14.6.2009, Bhaljibhai telephoned the complainant and informed him that they would come at the house of the complainant. Bipinbhai was in love with Manisha daughter of Chhotiyabhai and got married and Manisha was residing at the house of the complainant. To resolve the dispute the complainant and his son Bipinbhai went to Dhadhoda Village where Bhaljibhai resides. On 14.6.2009, Bhaljibhai telephoned the complainant and informed him that they would come at the house of the complainant. The complainant alongwith Kadubhai Ruplabhai, Kalsinhbhai Dhediyabhai and Sumanbhai Rathwa were present and at that time Bhaljibhai, Gohedabhai Rathwa, Bachubhai Motibhai Rathwa, Rajubhai Motiyabhai Rathwa, Nareshbhai Narsingbhai Rathwa, Rajubhai Jeklabhai Rathwa, Parsing Motiyabhai Rathwa and other persons all armed with weapons came there. Bachubhai was armed with spade (Pavda), Nareshbhai was armed with axe and other persons were armed with sticks and paliyas. Bachubhai came to the house of the complainant and started giving abuses and all the persons attacked, wherein Bachubhai Motiyabhai inflicted spade blow on head of Kadubhai Ruplabhai and other persons also beat him. Alpeshbhai Viththalbhai Rathwa also got injuries. Kadubhai Dhediyabhai got injury on head and Palsingbhai got injury near left ear. Viththalbhai Vestabhai and Arvindbhai were given kick and fist blows. On shouting all the accused persons fled away. The injured Viththalbhai Vestabhai was taken to SSG Hospital Vadodara. 3. The P.S.I. Shri R.C.Pargi was present at Chhota Udepur, Police Station on 14.6.2009 as second P.S.I. The complainant disclosed his complaint before him and complaint was taken by him and offence was registered by P.S.O. Chhota Udepur being CR No.I81 of 2009 for the offence punishable under Section 326 etc., of IPC and on 24.6.2009 injured persons were admitted in Health Center of Chhota Udepur where doctor informed P.S.I. Chhota Udepur to record dying declaration. Therefore yadi was prepared and statements of witnesses were recorded. Panchnama of place of offence was drawn and muddamal sand was recovered. Thereafter 08 accused persons were produced before him and physical panchnama of accused persons was drawn and muddamal clothes and weapon spade (Pavda) were produced and other muddamal weapon were produced by accused persons. Muddamal was recovered under the panchnama and other accused persons appeared before the Investigating Officer and panchnama was drawn. Injured person Kadu Rupla was hospitalized in S.S.G.Hospital, Vadodara, where he expired on 19.6.2009 at about 6:30 and, therefore, report was made to the learned Magistrate Court to add Section 302 of the Indian Penal Code. Muddamal was recovered under the panchnama and other accused persons appeared before the Investigating Officer and panchnama was drawn. Injured person Kadu Rupla was hospitalized in S.S.G.Hospital, Vadodara, where he expired on 19.6.2009 at about 6:30 and, therefore, report was made to the learned Magistrate Court to add Section 302 of the Indian Penal Code. Inquest Panchnama was drawn, dead body was referred to the doctor for postmortem. Statements of witnesses were recorded, clothes of the injured persons were recovered under the panchnama and map of place of offence was drawn. The accused persons were arrested and entry was made in the station diary. 4. Thereafter, charge Ex.8 came to be framed and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 5. In order to bring home the charges against the accused persons, prosecution examined 19 witnesses and also produced 39 documentary evidences. 6. Thereafter, after filing closing pursis by the prosecution, further statements of accused persons under Section 313 of the Code of Criminal Procedure, 1973 were recorded, wherein the accused persons denied the case of the prosecution and submitted that a false case is filed against them. 7. On conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment and order convicted the appellants – accused as stated above. 8. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 10.02.2011 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Vadodara, in Sessions Case No.47 of 2009 the appellants have preferred the present appeals before this Court. 9. Heard Ms.Kruti Shah, learned counsel for the appellants. She has contended that the judgment and order passed by the learned Judge is contrary to law and evidence on record. She has contended that the learned Judge has not properly appreciated oral as well as documentary evidence adduced by the parties in its proper perspective. She has contended that it is passed on the assumption, presumptions, conjunctures, surmises and suppositions which are not permissible in the criminal law. 10. She has contended that learned Judge has wrongly convicted the accused persons when the so called eyewitnesses have deferred in their version and there is material contradiction in their evidence. She has contended that it is passed on the assumption, presumptions, conjunctures, surmises and suppositions which are not permissible in the criminal law. 10. She has contended that learned Judge has wrongly convicted the accused persons when the so called eyewitnesses have deferred in their version and there is material contradiction in their evidence. She has contended that the Court has also not considered medical evidence vis-a-vis the ocular evidence which materially defers from each other. 11. She has contended that no identification parade was held and only because of the fact that in the cross case Bhaljibhai Chhotabhai who is complainant of the cross case has also stated about the injury received on the accused side, would not establish the presence of the accused persons. She has contended that the Court has not considered the contradiction regarding weapon and injury by the so called eyewitnesses. 12. She has contended that the learned Judge has erroneously held that there was an unlawful assembly by the accused persons, the accused No.1 Bachla @ Bachubhai Motibhai Rathwa and the accused No.2 Nareshbhai Narsingbhai Rathwa have inflicted blows by spade and back side of spear on the head of the deceased Kadu Rupla and in absence of any cogent and convincing evidence it is also wrongly held that the accused No.2 Nareshbhai has inflicted injuries to the witness Alpesh and the accused No.4 Bhaljibhai Chhotiyabhai has inflicted stick blow to the witness Ramilaben, the accused No.12 Rameshbhai Chhotiyabhai has inflicted stick blows to the witness Kadu Dhediya and Kalsing and that the accused No.13 Nandu Babubhai has inflicted paliya blow to the witness Alpeshbhai. 13. She has further contended that present appellants are in jail and are poor persons. She has prayed to reduce the sentence imposed by the trial Court. She has submitted that in any case, if this Court comes to a conclusion that the appellants are guilty, then it should hold them guilty of culpable homicide not amounting to murder because there was no intention to kill the deceased. She submitted that the appellants are in jail for considerable long time and therefore, the conviction and sentence may be modified from one under Section 304 of the Indian Penal Code to one under Section 304 part II of the Code. She submitted that the appellants are in jail for considerable long time and therefore, the conviction and sentence may be modified from one under Section 304 of the Indian Penal Code to one under Section 304 part II of the Code. Lastly, she has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge deserves to be set aside. 14. Heard Ms.Jirga Jhaveri, learned APP for the respondent – State. She has contended that taking into account the facts and circumstances produced before the Court an unlawful assembly had been formed at the time of the incident, and armed with deadly weapons such as shovel, paliya, axe, sticks etc., assault had been made on the witnesses by rioting, and, the accused No. 1 Bachla @ Bachubhai Motiyabhai Rathva and the accused No. 2 Nareshbhai Narsingbhai Rathva caused fatal injuries to Kadu Rupla in head, a vital body-part, with shovel and the rear part, that is, the blunt part of axe respectively, with the knowledge that injuring one with such weapons on such a part of body could result in the death of a person and by doing so, they caused the death of Kadu Rupala. She has contended that the accused Nareshbhai Narsingbhai caused injuries to the witness Alpesh by the blunt part of axe, and the accused No. 4 Bhaljibhai Chhotiyabhai caused injuries to the witness Ramilaben by hitting her with a stick, the accused No.12 Rameshbhai Chhotiyabhai caused injuries to the witnesses Kadu Dhediya and Kalsing Dhediya by hitting them with a stick, and the accused No. 13 Nandu Babubhai caused injuries to the witness Alpeshbhai by hitting him with a paliya (a kind of weapon). She has contended that, in this way, the accused persons voluntarily caused injuries to different witnesses and committed offence in abetment with one another. She has contended that, in this way, the accused persons voluntarily caused injuries to different witnesses and committed offence in abetment with one another. She has contended that sufficient evidences have been produced whereby the accused No. 1 Bachla @ Bachubhai Motiyabhai Rathva and the accused No. 2 Nareshbhai Narsingbhai Rathva are held guilty for the offence under Sections 148 and 304 of the I.P.C., and the accused No. 4 Bhaljibhai Chhotiyabhai Rathva, the accused No. 12 Rameshbhai Chhotiyabhai Rathva and the accused No. 13 Nandubhai Babubhai Rathva are held guilty for the offence under Sections 148 and 324 of the I.P.C. and under Section 304 of Indian Penal Code. Hence, the said persons are held guilty for the same. Whereas, sufficient evidences have not been produced in respect of the accused persons for holding them guilty for the offences under other Sections shown in the Charge. She has contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper judgment. Therefore, the impugned judgment and order of conviction and sentence passed by the learned Judge requires to be confirmed. 15. She has contended that sufficient corroborative pieces of evidences are produced on record. She has contended that the prosecution, by leading sufficient evidence has proved the offence beyond reasonable doubt and learned Judge has rightly considered the case of the prosecution against the present appellants. She has, therefore, prayed to confirm the judgment and order of the learned Judge. 16. We have heard learned counsel for the respective parties. We have gone through the papers produced in the case. We have minutely perused evidence of the witnesses examined by the prosecution. The prosecution has examined witnesses in support of its case. 17. P.W. no.1 Madhubhai Vestabha has been examined by the prosecution. He is the complainant of this case. In his deposition, he has stated that the deceased was inflicted with Kuhadi, however, he does not state as to who had inflicted that blow. He states that he does not know the name of the said person who had given Kuhadi blow to the deceased. Though he identifies the person in the court. 18. P.W. 2 Vithalbhai Vestabhai Rathwa has been examined by the prosecution. He is the brother of the complainant. He states that he does not know the name of the said person who had given Kuhadi blow to the deceased. Though he identifies the person in the court. 18. P.W. 2 Vithalbhai Vestabhai Rathwa has been examined by the prosecution. He is the brother of the complainant. He in his deposition has stated that the accused persons had assembled before the house of Chiman Vesta Kanubhai and had started fighting. He states that they had come with spade, Kuhadi, Dinga and Paliya and he was injured. However, he does not attribute specific role of each of the accused as to who inflicted with what weapon. 19. PW 3 Alpeshbhai Vithalbhai Rathwa has been examined vide exh. 26. He is the nephew of the complainant. In his evidence, he has stated that the accused persons had arrived in their village and after arriving, they had started beating all persons. He states that in the incident, all persons had sustained injuries and that he was inflicted with Kuhadi and his hand was broken and had also sustained injury on the left side of the shoulder. He states that does not know as to others had sustained injury or not. Thus, this witness does not attribute any specific role to each of the accused. 20. Prosecution has examined PW 4 Arvindbhai Narayanbhai Rathwa.This witness has turned hostile. He staets that he does not know the accused persons. In his cross-examination he disowns the facts of his statement recorded by the police and states that his statement was recorded by the police. 21. Prosecution has examined PW 6 Kalsingbhai Dhediyabhai Rathwa who has turned hostile. The prosecution has examined PW 8 Nandubhai Ruplabhai Rathwa at exh. 32. He has denied the contents of the panchnama of the person of the accused persons and panchnama of seizure of weapons. He has turned hostile. Thus most of the panch witnesses have turned hostile. 22. Prosecution has examined PW 13 Bhargavbhai Dineshbhai at exh. 42. He in his evidence has narrated the injuries sustained by the deceased. He has stated that the injury no.1 caused on the head of the deceased could be caused with solid and blunt substance and if any other difficulty does not arise, this injury could be recovered within one to two weeks. He has stated that this injury was of grievous nature and not simple injury. He has stated that the injury no.1 caused on the head of the deceased could be caused with solid and blunt substance and if any other difficulty does not arise, this injury could be recovered within one to two weeks. He has stated that this injury was of grievous nature and not simple injury. He has stated that this injury could be caused by inflicting the back side part of Kuhadi. As regards other injuries caused to the deceased as also to other injured persons, he has stated that those injuries were of simple nature and could be caused with solid and blunt substance. 23. Prosecution has examined PW 14 Dr. Bhairvi Balvant Pande at exh. 49. She was the doctor who had performed postmortem of the dead body of the deceased along with other his companion doctors. She has stated the injuries caused to the deceased in the postmortem report. 24. Prosecution has examined Dr. Ramprakash Ramsevak Gupta at exh. 55. He in his evidence has stated that while he was on duty on 14.6.09, deceased was brought before him along with refer memo. He has stated that the deceased was completely in conscious condition. He had sustained injury on the parietal port of head which could be caused with blunt part of weapon like Kuhadi or spade. 25. In this case, the incident has taken place in the spur of moment and the blows given to the deceased are with blunt part of the weapons kuhadi and other sticks, paliyos etc.. In this case, the son of the complainant had brought one Manisha with her willingness at his home as he had love affair with her. Pursuant to this incident the accused persons who came at the house the complainant for solution of the dispute. 26. Considering the nature of the injuries caused to the deceased and the weapons used by them, it cannot be ruled out that the accused assaulted the deceased with the knowledge that the injury may cause death of the person. Moreover, there is no evidence from the side of the prosecution that the accused persons preplanned to cause death. After analyzing the entire evidence, it is evidently clear that the occurrence took place suddenly and there was no premeditation on the part of the appellants. Moreover, there is no evidence from the side of the prosecution that the accused persons preplanned to cause death. After analyzing the entire evidence, it is evidently clear that the occurrence took place suddenly and there was no premeditation on the part of the appellants. There is no evidence that the appellants made special preparation for assaulting the deceased with the intent to kill him and to cause injuries to others. There is no dispute that the appellants assaulted deceased in such a manner that the deceased suffered grievous injury which was sufficient to cause death, but we are convinced that the injury was not intended by the appellants to kill the deceased. 27. The question is whether the case will come under the first part or the second part of Section 304, IPC. In our opinion it will come under the second part in view of the decisions of this Court in Ramesh Vithalrao Thakre and Anr. v. State of Maharashtra, AIR 1995 SC 1453 , Sarup Singh vs. State of Haryana, AIR 1995 SC 2452 , Mavila Thamban Nambiar v. State of Kerala, AIR 1997 SC 687 , Sudhir Samanta v. State of West Bengal and Anr., AIR 1998 SC 289, K. Ramakrishnan Unnithan v. State of Kerala, AIR 1999 SC 1428 , Tholan v. State of Tamil Nadu, 1984 (2) SCC 133 , Jagpati v. State of Madhya Pradesh, AIR 1993 SC 1360 , Tarsem Singh and Ors. vs. State of Punjab, AIR 2002 SC 760 , Hari Ram v. State of Haryana, AIR 1983 SC 185 , Randhir Singh v. State of Punjab AIR 1982 SC 55 , Kulwant Rai v. State of Punjab, AIR 1982 SC 126 and Shankar v. State of Madhya Pradesh, AIR 1979 SC 1532 . 28. In the facts and circumstances of the case, in our considered opinion, the present case cannot be said to be a case falling under the provisions of Section 304 IPC. The instant case falls under Section 304 Part II IPC. Although the appellants had no intention to cause death but it can safely be inferred that the appellants knew that such bodily injury was likely to cause death, hence the appellants are guilty of culpable homicide not amounting to murder and are liable to be punished under Section 304, Part II IPC. 29. Although the appellants had no intention to cause death but it can safely be inferred that the appellants knew that such bodily injury was likely to cause death, hence the appellants are guilty of culpable homicide not amounting to murder and are liable to be punished under Section 304, Part II IPC. 29. It is well settled proposition of law that the intention to cause death with the knowledge that the death will probably be caused, is very important consideration for coming to the conclusion that death is indeed a murder with intention to cause death or the knowledge that death will probably be caused. From the testimonies of the witnesses, it does not reveal that the accused persons intended to cause death and with that intention they started inflicting injuries on the body of the deceased and other persons. 30. While coming to the aforesaid conclusion, we are fortified by a decision of this Court in Dharam and Ors. v. State of Haryana [JT 2007(1) SC 299], wherein also under similar circumstances, this Court held that the offence committed by the accused persons would fall within the ambit of Section 304 Part II. In that case the deceased and the accused happened to be blood relations and having regard to the peculiar circumstances of the case in which the incident took place, fatal injury inflicted on the head of the deceased, which was found to be sufficient in the ordinary course of nature to cause death could not be held as an injury intended by the accused persons to cause death or an injury likely to cause death of deceased. The facts, therefore, are almost similar to case in hand and the ratio is fully applicable to the facts of this case. 31. The Criminal Appeal No.279 of 2011 is partly allowed. Though the appellant Nos.1 and 2 are convicted for the offence punishable under Sections 148 and 324 of the Indian Penal Code, the period of sentence of 1 year for each offence as imposed by the trial Court is substituted by the period of sentence which they have already undergone. 32. In so far as Criminal Appeal No.280 of 2011 is concerned, the same is partly allowed. The order of conviction and sentence imposed upon appellants under Section 148 of the Indian Penal Code is set aside. 32. In so far as Criminal Appeal No.280 of 2011 is concerned, the same is partly allowed. The order of conviction and sentence imposed upon appellants under Section 148 of the Indian Penal Code is set aside. The order of conviction and sentence of the appellants is modified from one under Section 304 of the Indian Penal Code to one under Section 304 Part II of the Indian Penal Code and are ordered to undergo sentence for a period of 8 years instead of 10 years as imposed by the trial Court. 33. The impugned judgment is modified to the above extent. Record and proceedings, if any, be sent back to the trial Court concerned, forthwith.