JUDGMENT : K.S. Jhaveri, J. 1. Heard learned Advocate appearing for both the accused Mr. MIG Mansuri and learned Additional Public Prosecutor for the respondent - State Ms. C.M. Shah. 2. Criminal Appeal No. 825/2007 is preferred by the original accused No. 1 - Abdul Kadar Mohmmad Yusuf Pathan whereas Criminal Appeal No. 883/2007 is preferred by the original accused No. 2 - Shabbir alias Jamki Husensha Fakir, being aggrieved by the judgment and order of conviction dated 29.03.2007 passed by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 2, Ahmedabad (Rural), Mirzapur, Ahmedabad in Sessions Case No. 186/2004 wherein the above accused were handed rigorous imprisonment for life and fine of Rs. 500/-, in default simple imprisonment for three months. 3. The case in brief and the incident which occurred on 25.03.2004 are as under:-- "3.1. It is the case of the complainant that he is living in Village Sanathal near Ramji temple and carries on agricultural activities. He owns an autorickshaw bearing No. GJ-1-XX-1772 and this autorickshaw was being plied on rent by the complainant, his father and his younger brother. On the said day at about 7.00-7.30 am, the complainant's father and brother had taken the above mentioned rickshaw for plying it on rent. On the same day itself, at about 11.00 o'clock the complainant's younger brother - Lalsinh came with the autorickshaw back home and getting down from the rickshaw and crying he had stated that there was some dispute with regard to seating of passengers at the rickshaw stand with Abdul Kadar (driver Rickshaw No. GJ-1-XX-4002). Thereafter, Abdul Kadar Pathan inflicted fist blows on the chest of the complainant's father. Lalsinh tried to intervene but Shabbir alias Jakhmi (driver of Rickshaw No. GJ-7-v-4448) caught Lalsinh. The complainant's father then laid down in the rickshaw of the complainant. The complainants' father was brought to the home by the complainant, his brother, his mother and the complainant's uncle - Jilubhai. At that juncture, the complainant's father was conscious and was also able to speak. The complainant's father then narrated the entire incident. He had stated that at the Sarkhej Rickshaw Stand, near Dholka Circle there was some dispute with regard to picking of passengers and the driver of Sarkhej Rickshaw No. GJ-1-XX-4002 - Abdul Kadar Pathan had some heated words with the complainant's father and thereafter, inflicted fist blows on his chest. The complainant's father then narrated the entire incident. He had stated that at the Sarkhej Rickshaw Stand, near Dholka Circle there was some dispute with regard to picking of passengers and the driver of Sarkhej Rickshaw No. GJ-1-XX-4002 - Abdul Kadar Pathan had some heated words with the complainant's father and thereafter, inflicted fist blows on his chest. When Lalsinh tried to intervene, the complainant's younger brother - Lalsinh was caught hold by the driver of Rickshaw No. GJ-7-V-4448 - Shabbir alias Jakhmi. The complainant's father complained of pain and requested that he be taken to the hospital. Hence, Jilubhai, Lalsinh, the complainant's mother all took the complainant's father to the Vanja Hospital at Sarkhej. The doctor there informed that the case was serious and hence, the complainant's father was shifted for proper treatment at V.S. Hospital and the doctors attending to him declared the complainant's father to be dead on arrival. Hence, as declared by the complainant, both the accused with an intention to kill the complainant's father - Keharsinh inflicted fist blows on his chest as well as on the mouth and thereby caused injuries. Further, when Lalsinh tried to intervene, the accused - Shabbir alias Jakhmi caught hold of Lalsinh and hence, the complaint in this respect was lodged against both the accused with Sarkhej Police Station on 25.03.2004 at 16.00 hours and was numbered as I-C.R. No. 63/2004. Charges were framed under Sections 302 and 114 of the Indian Penal Code. The accused did not plead guilty to the said charges. Their defense was of total denial. 3.2. At the time of the trial, the prosecution examined the following witnesses:- Particulars Exhibit Complainant Pracinsinh Kaharsinh Chauhan 18 Lalsinh Kaharsinh Rajput 21 Jamendrasinh Mangalsinh Chauhan – independent witness 24 Jamendrasinh Chandrasinh Chauhan – independent witness 25 Panch Witness Kantibhai Bababhai Thakore 28 Panch Witness Dilipsinh Navalsinh Vaghela 30 Panch Witness Atmaram Chikhabhai Vaghela 46 Panch Witness Malek Imran Gulamhusain 48 Dr. Dipakbhai Mohanlal Sharma (FSL Officer) 41 Witness Pinakinbhai Madhusudanbhai Acharya 44 Head Constable Vishnubhai Nathabhai (the person who took the complaint in the Police Staion Diary) 52 PI Mahendrakumar Punjabhai Patel (Investigating Officer) 57 PI Keshubhai Ramabhai Bhuva (Investigating Officer) 60 The prosecution also relied upon various documentary evidence, some of them are:- Particulars Exhibit Original Complaint 19 Inquest Panchnama 31 Panchnama of the body of the posting of the accused 32 Forwarding Note for the muddamal 33 Receipt of the FSL about the receiving of the muddamal 34 Letter sent alongwith the Analysis Report 35 The letter of the FSL alongwith the evidences 36-38 Yadi written for conducting the post mortem of the deceased 42 Panchnama of the seizure of clothes from the body of deceased 43 Post mortem Note 43 Report about the visit of the area by the FSL officer 45 Panchnama of the seizure of the autorickshaws of the accused 47 Panchnama of the scene of offence 57 Analysis Report of the FSL 59 3.3. At the end of the trial, the learned Sessions Judge passed the above judgment and order." 4. Learned Advocate appearing for both the accused Mr. MIG Mansuri has submitted that the incident had not occurred out of any premeditation and the accused had no motive for personal vengeance or vendetta against the deceased. Further, the deposition of the eye witnesses as well as the supporting witnesses raises grave doubt on their veracity and the authenticity in the manner in which the incident is alleged to have occurred. It is further submitted that the eye witnesses are interested witnesses and their evidence requires to be examined with extreme caution if found corroboration from truly independent witnesses. In this case, there are no true and genuine independent witnesses though the incident had taken place in broad daylight at a rickshaw stand. It is also submitted that the injuries found on the deceased were essentially abrasions and facial injuries and over the hands and legs. The cause of death is ex-facie due to suffocation and choking of trachea with blood due to dental dislocation injury. Hence, it is submitted that from such injuries no offence under Section 302 of the Indian Penal Code can be made out. Besides, the panch witnesses have been declared as hostile witnesses. The cause of death is ex-facie due to suffocation and choking of trachea with blood due to dental dislocation injury. Hence, it is submitted that from such injuries no offence under Section 302 of the Indian Penal Code can be made out. Besides, the panch witnesses have been declared as hostile witnesses. It is further submitted that since the accused hail from the poor strata of the society, have given up the profession of driving of rickshaws and therefore, some mercy be shown to them. Alternatively it is also submitted that if the Court so directs, the accused are also ready and willing to pay the amount as stipulated by the Court as compensation to the complainant's family. 5. Learned Additional Public Prosecutor for the respondent - State Ms. C.M. Shah has emphasized heavily on the dying declaration given by the deceased wherein the entire incident has been narrated in detail. Learned Additional Public Prosecutor has also drawn the attention of this Court to the evidence of the PW10 - Medical Officer at CHC, Sarkhej i.e. Deepakbhai Mohanlal Sharma who has stated in unequivocal terms that the mouth of the deceased was filled with blood. There was blood coming out even from the nose and even from the gums. Even from the teeth that were dislocated, there was blood coming out. On further investigation, it was found out that there was fracture of the bones of the nose and there were even abrasions on top of the nose which measured 1 cm x 2 cm. Even in the lower portion of the face, there were abrasions which measured 2 cm x 1 cm. There were even abrasions seen on the back portion of the right hand and which were dark red in colour. Even on the back portion there were two abrasions and one abrasion was found on the right leg. The upper and lower teeth had got dislocated and there was blood coming out. On carrying out an internal examination of the body, the Medical Officer opined that the respiratory tract was filled. The right ventricles of the heart was also filled with blood. Considering the above, it is submitted that this is fit case wherein this Court should exercise its discretion and uphold the judgment and order passed by the learned Sessions Judge. 6. The right ventricles of the heart was also filled with blood. Considering the above, it is submitted that this is fit case wherein this Court should exercise its discretion and uphold the judgment and order passed by the learned Sessions Judge. 6. We have heard learned Advocates appearing for the respective parties and perused the records of the case. We have considered in detail the evidence of the PW10 - Medical Officer Deepakbhai Mohanlal Sharma which states clearly that the death had occurred due to 'asphyxiation and suffocation due to choking of trachea and blood due to dental dislocation injury'. Besides, we have also gone through the dying declaration of the deceased given before the family members. We have also considered the statement by the younger son of the deceased - Lalsinh who is an eye witness to the entire incident. Both the accused are referred to in the complaint as well as in the evidence of other witnesses. So it is not in dispute that it were the accused only who were responsible for inflicting injuries on the deceased which later resulted into his death and further, the learned Sessions Judge has given cogent and convincing reasons to arrive at the conviction of the accused. 7. Hence, both the Appeals are partly allowed. The judgment and order of conviction of the appellants under challenge is modified and altered from Section 302 of the Indian Penal Code to one under Section 304 Part II of the Indian Penal Code and the appellants accused are sentenced to undergo rigorous imprisonment of five years instead of life imprisonment. The fine and in default punishment as imposed by the trial Court is maintained. If both the accused are on bail, they shall surrender within a period of ten (10) weeks from today, failing which the concerned Trial Court shall issue non-bailable warrant in the name of the accused to secure their presence to serve the above period of sentence as passed by this Court. If the appellants accused have already served the aforesaid period of sentence, they shall be set at liberty forthwith, provided they are not required by the jail authority for any purpose. Bail and bail bond, if any, stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith. If the appellants accused have already served the aforesaid period of sentence, they shall be set at liberty forthwith, provided they are not required by the jail authority for any purpose. Bail and bail bond, if any, stands cancelled. Record and proceedings be sent back to the concerned Trial Court forthwith. The judgment and order dated 29.03.2007 of the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No. 2, Ahmedabad Rural, Mirzapur at Ahmedabad stands modified to the above extent.