JUDGMENT K.S. Jhaveri, J. 1. Both these appeals are preferred against the judgment and order dated 29.8.2006 passed by Additional Sessions Judge, Mehsana in Sessions Case No. 43 of 2006, whereby accused No. 1 was held guilty for offence punishable under Section 302 of the Indian Penal Code and ordered to undergo imprisonment for life and to pay fine of Rs. 5,000/- and in default of payment of fine, accused No. 1 was ordered to undergo simple imprisonment for six months. By the impugned judgment, accused Nos. 2 and 3 were convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment of three years and to pay fine of Rs. 5,000/-, and in default of making payment of fine, accused Nos. 2 and 3 shall undergo further simple imprisonment of six months. Accused No. 4 was acquitted of the charges levelled against him. Feeling aggrieved by the impugned judgment, accused No. 1 preferred Criminal Appeal No. 2013 of 2006, while Criminal Appeal No. 1741 of 2006 is preferred by accused Nos. 2 and 3 against their conviction. 2. 2 and 3 shall undergo further simple imprisonment of six months. Accused No. 4 was acquitted of the charges levelled against him. Feeling aggrieved by the impugned judgment, accused No. 1 preferred Criminal Appeal No. 2013 of 2006, while Criminal Appeal No. 1741 of 2006 is preferred by accused Nos. 2 and 3 against their conviction. 2. The facts in brief giving rise to the filing of present appeal are as under: "2.1 It is the case of the prosecution that on the date of incident i.e. on 20.10.2005 at around 9.30 a.m. in the morning, when this original complainant along with his mother i.e. Shantaba and his sister i.e. Hasuba were staying at their place, all of sudden this original accused No. 1 i.e. Takhatsinh Shivaji Chavda alongwith his son i.e. original accused No. 2 - appellant No. 2 herein came over there, with a Dhariya and Kuhadi (Axe) in their hands and started speaking abusive language to complainant and his family, and later this original accuse No. 1 i.e. Takhatsinh Shivaji Chavda and appellant No. 1 herein got angry and in the meantime the appellant No. 2 herein and original accused No. 4 i.e. Kailashba Rajendrasinh Javansinh Chavda came over there, and soon joined them with a Kuhadi (Axe) and Dhoka in their hands and it is alleged that this original accused No. 1 assaulted the mother of the complainant on her head and then the appellant No. 2 herein gave a blow on the front portion of the head of the complainant and at the same time the appellant No. 1 herein gave a blow on the back portion of the complainant and on intervention by Hasuba (the complainant's sister), she was been beaten by appellant No. 1 and original accused No. 4 by Kuhadi and Dhoka on the back portion of the Hasuba, on thigh and on chest of her. It is further alleged that this original accused No. 4 gave blow on the left hand and thigh of the complainant and subsequently after threatening them to not to file a complaint and that they will kill them if they do so, this all the accused persons run away from their and later, this complainant and his family was taken to Mehsana Civil Hospital and after that complainant's mother Shantaba was referred to Ahmedabad wherein soon she died on the next day and it is further say of the complainant that cause of this whole incident is that on 18.11.2005 complainant's younger sister Hetalba was getting married and this accused persons were also invited in the said event but they did not turn up and only keeping that enmity in mind they had created this whole scene. Accordingly, the complainant, son of the deceased, filed a complaint on 20.11.2005 with Vasai Police Station which was registered as I-C.R. No. 97/2005. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exh. 1. Arjanji Takhaji Chavda 10 2. Jiluji Keshaji Chavda 14 3. Himmatsinh Bhagwansinh 15 4. Laluji Gidhaji 16 5. Jasvantsinh Rajju Chavda 18 6. Anga Santdas Jop 19 7. Chunilal Jujaram 22 8. Dr. Kantibhai Dosabhai Parmar 25 9. Sumersinh Bharthiji Chavda 31 10. Narenderasinh Setansinh 33 11. Hasuba Surendrasinh 37 12. Natvarsinh Naransinh 38 13. Khumansinh Banesing 39 14. Akbarkhan Jambudin Shekh 43 15. Chavda Shetansinh Javansinh 44 16. Chavda Laluji Jashuji 45 17. Bhikhabhai Jehabhai 46 18. Somabhai Naranbhai Patel 50 2.4 The prosecution had also produced and relied upon following documentary evidence:-- Sr. No. Description Exh. 1. Panchnama of recovery of clothes of complainants 11 2. Panchnama of cotton containing blood recovered from the place of offence 12 3. Panchnama of recovery of muddamal weapon 13 4. Panchnama of recovery of clothes wore by the deceased at the time of incident 17 5. Letter regarding opinion sought by the police 20 6. No. Description Exh. 1. Panchnama of recovery of clothes of complainants 11 2. Panchnama of cotton containing blood recovered from the place of offence 12 3. Panchnama of recovery of muddamal weapon 13 4. Panchnama of recovery of clothes wore by the deceased at the time of incident 17 5. Letter regarding opinion sought by the police 20 6. Certificate Issued by the Doctor 21 7. Postmortem report 23 8. Certificate issued by the Doctor 24 9. Medical Certificate of the deceased Kantaben 26 10. Medical Certificate of the complainant Narendrasinh 27 11. Inquest Panchnama 28 12. Medical Certificate of the injured Hasuba 29 13. Panchnama carried out in the house of complainant 32 14. Original complaint 34 15. Marriage invitation card 35 16. Original FIR 40 17. Depute order 41 18. Letter of ASI, Civil Duty along with the statement 42 19. Reply of deceased Shantaba 47 20. Panchnama of place of offence 48 21. Forwarding report of sending muddamal to FSL 51 22. Letter of FSL 52, 53 23. Original report of FSL 54 24. Serological report 55 25. Report of Mobile Investigation Van 56 26. Police report 57 27. Major offence report 58 2.5 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court." 3. At the time of hearing of these appeals, Mr. Mahesh Pujari, learned advocate appearing for the original complainant submitted that the dispute is settled between the parties and an affidavit in this regard is filed by the complainant, which is taken on record. He submitted that accused Nos. 1 and 3 are the real uncles of the complainant, while accused No. 2 is the cousin of the complainant. It is stated in the affidavit that the accused persons are taking care of the complainant and his family members. It is also stated in the affidavit that the complainant is not keeping good health and his income is not sufficient to maintain the family and the accused persons are maintaining his family. It is also stated that they are living in peace and harmony and, therefore, he prayed that appropriate order may be passed in these appeals. 4. Mr. It is also stated in the affidavit that the complainant is not keeping good health and his income is not sufficient to maintain the family and the accused persons are maintaining his family. It is also stated that they are living in peace and harmony and, therefore, he prayed that appropriate order may be passed in these appeals. 4. Mr. Y.S. Lakhani, learned Senior Advocate appearing with Mr. Darji, learned advocate for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellant. He also submitted that in view of the medical evidence of PW-6, though there are three injuries but only one injury is crucial for the cause of death and in this view this, offence in question will not fall under Section 302 of IPC and it may fall under Section 304, Part-II of IPC so far accused No. 1 is concerned. He submitted that the for the incident in question cross-complaint was also filed against the present complainant, however, he is acquitted in that case. Not only that the accused in the present case also received injury in the incident, therefore, he submitted that considering all these circumstances, offence alleged against the accused No. 1 may be converted to Section 304, Part-II from that of Section302 of IPC. He also submitted that looking to the age of the accused No. 1, which is 70 years, and in view of the fact that 10 years have elapsed from the date of the incident, in view of the decision of the Hon'ble Apex Court in "ANKUSH SHIVAJI GAIKWAD v. STATE OF MAHARASHTRA", 2013 (6) SCALE 778, which is followed by this Court in a number of decisions, this Court may invoke the provisions of Section 357 of the Criminal Procedure Code and allow the appeal by enhancing the amount of fine. 4.1 So far as Criminal Appeal No. 1741 of 2006 filed by accused Nos. 2 and 3 is concerned, Mr. Lakhani submitted that the accused persons are convicted for the offence under Section 324 of IPC, however, considering the affidavit filed by the complainant it is clear that the parties have settled the dispute. As per the affidavit, the accused are ready to take the responsibility of daughters of the deceased for the life time. He, therefore, prayed that so far as accused Nos. As per the affidavit, the accused are ready to take the responsibility of daughters of the deceased for the life time. He, therefore, prayed that so far as accused Nos. 2 and 3 are concerned, they may be acquitted of the charges of offence under Section 324 of IPC and Criminal Appeal No. 1741 of 2006 be allowed. Accordingly, he prayed that both these appeals may be allowed by setting aside the impugned judgment. 5. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused persons is just and proper and she has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant, and other witnesses, the view taken by the trial Court is just and proper and no interference is called for. She also submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused persons and, therefore, no interference is called for in the present appeals. 6. We have heard Mr. Y.S. Lakhani, learned Senior Advocate for the appellants-original accused, Mr. Mahesh Pujari, learned advocate for the complainant and Mr. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. The cause of death shown in the report is cardio-respiratory arrest due to head injury. Therefore, it is clear that this injury is the reason for death of the deceased and this is unnatural death. Now coming to the point whether it falls within 302, or 304, part-II or 302, taking into consideration the injury, leaves a room for the prosecution that this is not a case for 302. Therefore, we are of the opinion that the trial Court has not committed any error in convicting the accused, however, looking to the nature of the injury, it can be said that the accused No. 1 is guilty of offence under Section 304, Part II of IPC and not for the offence under Section 302 of IPC. Therefore, we are of the opinion that the trial Court has not committed any error in convicting the accused, however, looking to the nature of the injury, it can be said that the accused No. 1 is guilty of offence under Section 304, Part II of IPC and not for the offence under Section 302 of IPC. Therefore, Criminal Appeal No. 2013 of 2006 is required to be allowed by holding the accused No. 1 guilty for offence under Section 304, Part II of IPC and not for offence under Section 302 of IPC and sentence imposed upon him is required to be reduced to five years imprisonment. 7. The incident in question took place on 20.11.2005, ten years have passed and the circumstances have changed. The complainant has also remained present before us and we have seen his helpless condition. He also requested us to allow these appeals so that his family may not suffer further. He has also filed an affidavit, as per the direction of this Court. Taking into consideration the social and economic condition, which the complainant is facing, we are of the opinion that any order that may be passed against the accused persons will aggravate the problem of the complainant. In that view of the matter, taking into consideration the facts stated in the affidavit filed by the complainant, we are taking a sympathetic view of the matter. 8. So far as role of accused Nos. 2 and 3 is concerned, they are convicted for offence under Section 324 of IPC, however, looking to the fact that the dispute is settled between the parties and considering the fact that this is a compoundable offence, Criminal Appeal filed by them is required to be allowed. 9. In view of above and considering the affidavit filed by the complainant, both these appeals are partly allowed. 10. So far as Criminal Appeal No. 1741 of 2006 is concerned, conviction of accused Nos. 2 and 3 recorded by the impugned judgment and order dated 29.8.2006 passed by Additional Sessions Judge, Mehsana in Sessions Case No. 43 of 2006 for offence punishable under Section 324 of IPC is maintained, however, the sentence imposed upon them is reduced to two months. Fine is maintained. 11. So far as Criminal Appeal No. 2013 of 2006 filed by accused No. 1 is concerned, it is partly allowed. Fine is maintained. 11. So far as Criminal Appeal No. 2013 of 2006 filed by accused No. 1 is concerned, it is partly allowed. The impugned judgment and order dated 29.8.2006 passed by Additional Sessions Judge, Mehsana, in Sessions Case No. 43 of 2006 is modified and instead of offence under Section 302 of IPC, the accused No. 1 is held guilty for offence under Section 304, Part II of IPC and ordered to undergo five years' rigorous imprisonment. It is stated that accused No. 1 has already undergone three years of imprisonment, therefore, the period of sentence already undergone by accused No. 1 may be given set off to him. Looking to the special circumstances and the principles enunciated in the case of ANKUSH SHIVAJI GAIKWAD v. STATE OF MAHARASHTRA, 2013 (6) SCALE 778, accused No. 1 is directed to deposit a sum of Rs. 1,50,000/- (Rs. 50,000/- in the name of each of the three daughters of the complainant) towards compensation, which will be paid to them. If accused No. 1 deposits such amount, he is not required to undergo remaining period of sentence of two years and if accused No. 1 fails to deposit the amount of compensation within two months from today, he shall surrender before the jail authorities to undergo the remaining period of sentence. This order is passed looking to the special circumstances and considering the advance age of accused No. 1 which is stated to be 70 years. Therefore, this should not be treated as precedent. 12. Remaining part of the impugned judgment shall remain unaltered. Bail bond, if any, of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.