Judgment Anant S. Dave, J. 1. Since both these appeals arise from the common judgment and order passed by the learned Sessions Judge, they are being decided by this common judgment. For the sake of convenience, parties shall be referred to as per their status before the learned Sessions Judge as Accused-2 [Bharwad Punjabhai Radabhai] [A-2]; Accused-3 [Bharwad Makhabhai Punjabhai [A-3]; Accused No. 7 [Bharwad Gokul Togabhai] [A-7]; Accused No. 9 [Bharwad Ukabhai Lakhmanbhai] [A-9]; and Accused No. 11 [Bharwad Khengabhai Arjanbhai [A-11]. 2. Both the appeals are directed against the judgment and order dated 12.2.2009 passed by the learned Additional Sessions Judge, Fast Track Court No. 3, Camp at Botad in Sessions Case No. 145 of 2007. 3. Criminal Appeal No. 276 of 2009 is preferred by accused No. 7 and Criminal Appeal No. 304 of 2009 is preferred by accused Nos. 2, 3, 9 and 14 respectively against the judgment and order of convict and sentence convicting all the accused Nos. 2, 3, 7, 9 and 14 for life imprisonment and fine of Rs. 500 and in default, to further undergo simple imprisonment for 1 year for the offences punishable under Section 302 read with Sections 324, 143, 147, 148 and 149 of the Indian Penal Code and to undergo simple imprisonment for 1 month and fine of Rs. 250/- in default to further undergo 10 days simple imprisonment for the offence punishable under Section 135 of the Bombay Police Act. Both the sentences were ordered to run concurrently and the accused were given benefit of set off. 4. Both these appeals are admitted on 3.3.2009 by this Court and during the pendency of these appeals, on 21.4.2009 accused No. 2 Bharwad Punjabhai Radabhai passed away and accordingly qua him Criminal Appeal No. 304 of 2009 stands abated. 5. It is the case of the prosecution that on 22.1.2006 at 7:00 p.m., when complainant Chndubhai was returning to his home from the Wadi, accused No. 7 Bharwad Gokul Togabhai asked Chandubhai that "he had filled up form for contesting the election of Sarpanch from his ward and that why he did not support him by casting his vote". 5. It is the case of the prosecution that on 22.1.2006 at 7:00 p.m., when complainant Chndubhai was returning to his home from the Wadi, accused No. 7 Bharwad Gokul Togabhai asked Chandubhai that "he had filled up form for contesting the election of Sarpanch from his ward and that why he did not support him by casting his vote". It is further alleged that when the accused No. 7 had abused Chandubhai, he told the accused No. 7 not to abuse him and at that time accused No. 9 Bharwad Ukabhai Lakhmanbhai had given an axe blow on the head of Jegabhai Amarshi due to which Jegabhai fell down on the ground. It is further alleged in the complaint that accused No. 4 - Bharwad Khengar Arjan had also given an axe blow on the head of Babubhai, son of Jegabhai and due to that blow he fell down on the ground and accused No. 7 had given a stick blow on the left leg of the complainant Chandubhai. On hearing the shouts of Chandubhai, his mother Pankhuben, brother Vijay, second brother Arvind came at the place of incident and at that time they were also assaulted by the other accused persons. As Chandubhai continued to shout for help, Ashok Nanu, Balu Lalu, Dinesh Ratha of their community came there and rescued Chandubhai and his family members from any further assault being caused by the accused persons. Thereafter all the injured persons were taken away to the Government Hospital at Gadhada. That on the advice of the doctor, the injured persons were taken to SRT Hospital at Bhavnagar where Jegabhai had expired at the midnight at 2 O'clock and Babubhai had also lost his life. Thus, father and brother of the complainant died as a result of fatal axe blows on the head. 5.1 In connection with the aforesaid incident, Chandubhai had lodged the complaint against 14 persons, which is at Exh. 37 wherein it has been alleged that accused Nos. 9 and 14 were armed with axe and all other accused persons were armed with sticks and that accused No. 9 had given axe blow on the head of Jegabhai and accused No. 14 had given axe blow on the head of Babubhai and all other accused persons had given stick blows to the members of the other group i.e. group of the complainant-Chandubhai. According to him, he and his family members were returning home after doing the labour work from Wadi at 7:00 p.m. near Rekhadi, Village Meghwadia and the alleged incident had taken place as a result of the election lost by the accused No. 7, which was held 10 days before the date of incident and it was alleged that due to this reason, all the accused had made an unlawful assembly with a common object to assault the complainant on the date of the alleged incident i.e. 22.12.2006. 5.2 That pursuant to the said complaint, the investigation was conducted and after the investigation was over, the charge-sheet was submitted and the case was committed to the Court of Session. The trial was conducted by learned Additional Sessions Judge, Fast Track Court No. 3, Bhavnagar, Camp at Botad wherein all the accused did not plead guilty and at the end of the trial, the learned Judge has acquitted the accused Nos. 1, 4, 5, 6, 8, 10, 11, 12 and 13 and convicted the accused Nos. 2, 3, 7, 9 and 14 for the offences referred hereinabove. 5.3 In order to prove its case against the accused persons, the prosecution had inter alia examined the following important prosecution witnesses: PW No. Particulars Exh. 1 Chandubhai Jegabhai 36 11 Dr. Devshibhai Ashwinbhai 61 12 Dr. Brijesh Narendrabhai 65 13 Dr. Anand Dhirajlal 70 14 Vijaybhai Jegabhai 98 16 Dr. Motibhai Anilbhai 102 17 Dr. Akhileshkumar Rampratisingh 115 18 Pankhuben Jegabhai 128 20 Dr. Pinakin Indulal 131 5.4 In order to prove its case against the accused persons, the prosecution had inter alia examined, the following important documentary evidence: Sr. Particulars Exh. 1 FIR 4 2 Inquest Panchnama 21 3 Inquest Panchnama 22 4 Panchnama of clothes of deceased Jega Amarshi-Panchnama of his blood. Akhileshkumar Rampratisingh 115 18 Pankhuben Jegabhai 128 20 Dr. Pinakin Indulal 131 5.4 In order to prove its case against the accused persons, the prosecution had inter alia examined, the following important documentary evidence: Sr. Particulars Exh. 1 FIR 4 2 Inquest Panchnama 21 3 Inquest Panchnama 22 4 Panchnama of clothes of deceased Jega Amarshi-Panchnama of his blood. 23 5 Panchnama of status of body 24 6 Report of major Crime 31 7 Complaint of Chandubhai Jegabhai 37 8 Surname Panchnama 42 9 Discovery Panchnama 43 10 Panchnama of clothes 44 11 Panchnama of place of offence 46 12 Surname Panchnama 48 13 Death from 63 14 PM notes of Jegabhai Amarshi 64 15 Yadi for PM 66 16 Death from 67 17 PM notes of Babubhai Jegabhai 68 18 Doctor certificate of Vijaybhai Jekabhai 71 19 Doctor certificate of Pankhubhahi Jekabhai 75 20 Doctor certificate of Chandubhai Jekabhai 77 21 Medical papers of Chandubhai Jekabhai 78 22 Doctor certificate of Babubhai Jekabhai 81 23 Inspection Report by Bhavnagar FSL 101 24 Medical papers and doctor certificate of Harjibhai Arjanbhai 103 25 Medical papers and doctor certificate of Makhabhai Pujabhai 105 26 Medical papers and doctor certificate of Arjanbhai Sangrambhai 106 5.4 All arrested Panchnmas of accused, Panchnama of discovery of weapons, scene of offence, recovery of clothes of accused and injured, medical certificates of injured eye-witnesses viz. complainant and son and brother of two deceased were perused and considered and referred to in the judgment forming the part of the case papers. 6. Mr. S.V. Raju, learned Senior Advocate appearing for appellant Nos. 3 and 4 and Mr. Yatin Soni, learned Counsel appearing for appellant Nos. 1 and 2 in Criminal Appeal No. 304 of 2009 would contend that conviction and sentence of appellants under Section 302 and other offences of IPC and sentencing them for life imprisonment with fine, etc., is contrary to evidence oral as well as documentary inasmuch as the prosecution has failed to prove the charges against all the accused persons beyond reasonable doubt and the impugned judgment and order being contrary to evidence on record and deserves to be quashed and set aside. 6.1 It is next contended that the prosecution has mainly examined the injured witnesses viz. 6.1 It is next contended that the prosecution has mainly examined the injured witnesses viz. [1] Chandubhai-complainant PW-1, [2] Vijaybhai PW-14 and [3] Pankhuben PW-18 and their depositions are contradictory to each other and all witnesses are telling a different story. It is further submitted that the complainant-Chandubhai had deposed that all other witnesses were unconscious immediately after the alleged incident, however, as per the doctor's evidence all witnesses had received simple injuries and the injured witness Vijaybhai had deposed that he was not unconscious. It is submitted that as per the say of the complainant he was the first person to interact with the accused persons in the alleged incident while the witness Vijaybhai is saying that he was the first person to interact with the accused persons in the alleged incident. The place of incident also different in the evidence of Chandubhai and Vijaybhai and, therefore, the evidence of the said witnesses are not believable. 6.2 It is next contended that accused No. 14-Bharwad Khengar Arjanbhai's name was not disclosed in the FIR as FIR was filed only against 13 persons and the accused No. 14, who was a driver and away from the alleged incident and gone to unload the goods in village Hadala, which is 2 1/2 hours journey from the place of alleged incident. It is further submitted that accused No. 3 - Bharwad Punjabhai is mentally ill since last 4 years and he is not in a position to understand, speak or walk properly since last 4 years and he is falsely implicated in the present offence. It is further submitted that the evidence of the prosecution witnesses is doubtful and they have implicated several other persons of the relatives of the accused persons. 6.3 It is next contended that in the alleged incident the accused persons had even received injuries and their injuries have not been explained by the prosecution. It is further submitted that the prosecution has failed to prove the motive though specific motive is alleged and tried to explain in their deposition. It is further submitted that there are several contradictions in the evidence of the prosecution witnesses and the said contradictions are material and on important points of facts. It is further submitted that the independent witnesses have not supported the prosecution case. It is further submitted that there are several contradictions in the evidence of the prosecution witnesses and the said contradictions are material and on important points of facts. It is further submitted that the independent witnesses have not supported the prosecution case. It is further submitted that though the alleged incident had occurred in public place, but the prosecution has not examined independent witnesses to prove the charge and only interested witnesses are examined - by the prosecution. It is further submitted that there are several material contradictions by way of additions and omissions and the said contradictions are provided by the defence side. 6.4 Mr. S.V. Raju, learned Senior Advocate further submits that the accused No. 14 was not present at the time of the alleged incident and he has proved his alibi defence, however, the learned Judge has not properly considered and appreciated the evidence both oral and documentary and committed grave error in convicting and sentencing the accused persons. 6.5 Reliance is placed on two decisions in the cases of; [i] Ram Narain & Ors. v. State of Uttar Pradesh, reported in 1972 (SLT Soft) 747 : (1973) 3 SCC 246 ; [ii] Lakshmi Singh & Ors. V. State of Bihar, reported in 1976 (SLT Soft) 513 : (1976) 4 SCC 394 [para 12] about when prosecution failed to explain the injuries caused to the accused, benefit of doubt is given to the accused. The above view was taken by the Apex Court in the case of State of Gujarat v. Bai Fatima & Anr., reported in 1975 (SLT Soft) 253 : (1975) 2 SCC 7 . However, exceptions are carved out in the case of Kashiram & Ors. v. State of M.P., reported in VII (2001) SLT 481 : IV (2001) CCR 221 (SC) : (2002) 1 SCC 71 para 22 and State of U.P. v. Mukinde Singh, I (1994) CCR 50 (SC) : (1994) 2 SCC 191 . Nature of injuries reveal of single blow and no intention is surfacing on record. Panchas have almost have turned hostile. 6.6 It is further submitted that joint discovery Panchnama cannot be relied on in view of decision in the case of Mer Vaja Meraman v. State of Gujarat, 1988 (2) GLR 1057 that it was not explained and read out to the accused and it is not a specific piece of evidence. Panchas have almost have turned hostile. 6.6 It is further submitted that joint discovery Panchnama cannot be relied on in view of decision in the case of Mer Vaja Meraman v. State of Gujarat, 1988 (2) GLR 1057 that it was not explained and read out to the accused and it is not a specific piece of evidence. 6.7 Thus, in short, it may be a case where incident alleged had taken in a public place and no independent eye-witnesses is examined and one Ajit, who is alleged to have taken injured to the hospital has turned hostile and injuries on accused is not disclosed by injured eye-witnesses and to that extent their version appears to be unbelievable. However, chef can be separated from grain and truth can be both out from the record of causing vital injuries upon two persons, who succumbed to such injuries. 6.8 Both the appellants accused Nos. 9 and 14 are alleged to have inflicted single blow for which they have no intention to cause death. Therefore, when the incident had preceded by a scuffle, heated exchange of words and in a free fight, the accused be given benefit of Section 304 Part-I, IPC be granted. 7. Mr. Bharat Surti, learned Counsel for the accused No. 7 appearing in Criminal Appeal No. 276 of 2009 would contend that appellant had not given any stick blow to deceased Jagabhai or Babubhai and he was not armed with deadly weapon and from the evidence of Pankhuben it was only brought on record that he had given a stick blow on the mother of Chandubhai-complainant and not on the deceased. Therefore, the case of the appellant is on par with other accused, who have been acquitted by the learned Judge. The appellant is convicted only on the ground that he was one of the members of the unlawful assembly holding him equally liable though main offence was committed by accused Nos. 9 and 14. It is further submitted that even version of PW-1 Chandubhai - complainant Exh. The appellant is convicted only on the ground that he was one of the members of the unlawful assembly holding him equally liable though main offence was committed by accused Nos. 9 and 14. It is further submitted that even version of PW-1 Chandubhai - complainant Exh. 36 in his testimony alleging the incident when he was returning home along with his five family members and at that time accused No. 7 asked Chandubhai that why they had not voted for him in the election for the post of Sarpanch and thereafter started abusing him to which Chandubhai had shown resistance and a stick blow was given to him. Thus, version of the complainant do not implicate the appellant accused No. 7 in active participation in crime and causing any injury on the deceased duo father and son. Other witnesses have turned hostile. Even according to doctor Vijay Jega, injured complainant received simple injuries and dying declaration given by Vijay Jega PW-14 before the Executive Magistrate on 23.12.2006 he was conscious and able to give perfect statement but no mention was made in the above dying declaration about presence of appellant accused No. 7 and giving any stick blow on the left leg of complainant-Chandubhai. It is further submitted that there are other lacunas which could not be explained successfully by the prosecution. Even the story of unlawful assembly is also not born out from the testimonies of witnesses. At the most accused No. 7 is liable for a criminal act, which is punishable under Section 323 of the IPC only if it is to be believed that injury by stick was inflicted upon the complainant. In a case of free fight where accused also received injuries as per the medical certificate Exh. 103 and Exh. 112 which remain unexplained by the prosecution. Mr. Bharat Surti, learned Counsel prays to acquit appellant - accused No. 7. He placed reliance on the decision of the Apex Court in the case of Shridhar v. State of Madhya Pradesh reported in AIR 2003 SC 3134 . It was a case when presence of the accused appellant was doubtful and no role was assigned to him for active participation in assault except inflicting lathi blow on complainant and not on injured. 8. It was a case when presence of the accused appellant was doubtful and no role was assigned to him for active participation in assault except inflicting lathi blow on complainant and not on injured. 8. Per contra, learned APP submits that heinous crime was committed by the accused persons in which father and son duo were done to death in a cruel manner by inflicting axe blow on their heads which was supported by injured eye-witnesses, medical certificates of injuries at Col. 17 of post-mortem note, cause of death due to hemorrhage and shock due to injuries on head and recovery of weapon, FSL report, depositions of investigating officers, etc. 8.1 It is next contended that another injured witness Pankhuben, injured mother PW-18 Exh. 128 also clearly deposed about accused Nos. 7, 9 and 14 inflicting injuries. Dr. Anand Exh. 70 confirmed about injuries, however, Exh. 103 is about injury certificates of accused which remained unexplained by the prosecution. 8.2 Learned APP placed reliance on the following decisions of the Apex Court: [1] In the case of Sheesh Ram & Ors. v. State of Rajasthan reported in I (2014) CCR 464 (SC) : II (20140 SLT 179 : (2014) 3 SCC 689 [paras 10 and 11]. [2] In the case of Ravi v. State Rep. by Inspector of Police reported in (2014) 11 SCC 266 [para 15]. 8.3 Learned APP also placed reliance on the decision of this Court in the case of Vinugiri Motigiri v. State of Gujarat reported in 2002 (1) GLH 176. 9. Heard learned Counsel for the parties. 9.1 On perusal of the record and proceedings of case including judgment and order under challenge, submissions made by learned Senior Counsel and learned Advocate appearing for the convicts/appellants and learned APP, we find three injured eye-witnesses viz. Chandy Jega PW-1 Exh. 36, injured son of deceased Jega Amarshi and brother of deceased Babu Jega, who was present at the scene of offence along with his brother Vijay Jegabhai PW-14 Exh. 98 and Pankhuben PW-18 Exh. 128, wife of deceased and mother of deceased No. 2 and the complainant. Though Vijaybhai whose dying declaration was recorded but survived and accordingly deposed before the trial Court. We have also noticed unexplained injuries on accused as per medical certificate Exh. 103 and depositions of Dr. Pinakin Indulal PW-20 Exh. 98 and Pankhuben PW-18 Exh. 128, wife of deceased and mother of deceased No. 2 and the complainant. Though Vijaybhai whose dying declaration was recorded but survived and accordingly deposed before the trial Court. We have also noticed unexplained injuries on accused as per medical certificate Exh. 103 and depositions of Dr. Pinakin Indulal PW-20 Exh. 131, who treated accused, which remained unexplained by the prosecution and no investigation was carried out and even injured complainant and no other eye-witnesses mention about the same. 9.2 That homicidal death of two persons stand established. Col. 17 of post-mortem note viz. autopsy report of both the deceased carried out by Dr. Devshibhai Ashwinbhai PW-11 Exh. 133 of Jega Amarshi deceased and Dr. Brijesh PW-12 Exh. 65, who carried out autopsy of Babu Jega and Col. 17 of post-mortem note injuries are reflected on father-Jega Amarshi and son-Babu Jega. In the testimonies, the concerned doctors inter alia deposed as under: "(15) Thereafter, P.W. No. 11, Dr. Devarshibhai Ashwinbhai has been examined at Exh-61. He has stated that on 23.12.2006, when he was on duty, a Yadi was received from the hospital duty to perform post-mortem of a dead body which has been produced in this case at Exh-62. Post-mortem form is produced at Exh-63 and inquest Panchnama is produced at Exh-21. Post-mortem of the dead body was started at 9-30 hrs in morning and completed at 11-00 hrs in morning on 23.12.2006. It was a dead body of a 60 years old male person namely Jegabhai Amrishbhai Devipujak of Bhavnagar. Clothes of the dead body were smeared with blood and mud. There was a 5 c.m. long cut mark on back side of left sleeve. There were signs of mud and blood on the body. Appearance was normal. Eyes were closed. Pupils were dilated. Tongue was inside the mouth. Nails were pale. There were no injuries on private parts. There was a swelling of 10 x 8 c.m. on front part of left hand of the dead body. It was injury No. 1 as per column No. 17 of p.m. note. On making a cut therein, dark red coloured clotted blood was there. Injury No. 2 -- a diffuse swelling of 20 x 15 x 5 c.m. was found on right shoulder. It was injury No. 1 as per column No. 17 of p.m. note. On making a cut therein, dark red coloured clotted blood was there. Injury No. 2 -- a diffuse swelling of 20 x 15 x 5 c.m. was found on right shoulder. It was spreading up to middle part of elbow from the shoulder on right hand and posterior aspect and on the upper part of right collar bone. Making a cut therein, dark red coloured clotted-blood was found. Injury No. 3-a swelling of 20 x 5 c.m. on left hand in the middle between elbow and wrist covering side aspect and 3/4 posterior aspect. Injury No. 4-a sutured injury mark of 6 x 0.5 c.m. on right side part on the head. Its right edge was 10 c.m. above from last edge of right eyebrow and interior edge of the injury was about 14 c.m. above from the near edge of right eyebrow. Its margins were ragged. During internal examination, clotted blood was seen in both frontal parts of head below skin and in left side temporal parietal region. Fissured linear transverse fracture of skull was seen on front part of the skull. It extended up to left side which was 4 c.m. above from left ear, 6 c.m. away from left temporal parietal of the part of skull and at medial part from right ear. It was extended 3 c.m. long and 1 c.m. away. Fracture was found in maxillary sinus of right side skull on the part of posterior wall. Subdural and subarcanoid haemorrhage was seen in front temporal parietal occipital part of left side skull. Pressed lateral ventricle on left side and wide right lateral ventricle was there. There was a contusion of 3 x 2 c.m. on left side temporal part of brain. Swelling was present in the part of brain. Looking at internal structure of chest, vocal cord and trachea were pale. Right lung and left lung were by-congestion. Examining the heart, no abnormal fact was found and it was found normal. Examining internal skin of the abdomen, it was found pale. Food pipe was congested. Undigested food was found in the abdomen. Digested food and gas were present in small intestine. Walls were normal. Faecal matter was found in large intestine, gas was present there and walls were normal. Liver, stomach, spleen, kidneys were pale. Urinary bladder was empty. Examining internal skin of the abdomen, it was found pale. Food pipe was congested. Undigested food was found in the abdomen. Digested food and gas were present in small intestine. Walls were normal. Faecal matter was found in large intestine, gas was present there and walls were normal. Liver, stomach, spleen, kidneys were pale. Urinary bladder was empty. Clothes, shirt, pant, half pant, jersey and fifteen bottles of blood were taken for examination and they were given to the police. As per his opinion, reason of the death was intracenial haemorrhage and shock thereof due to the injury in head. This P.M. note is in his handwritings. He states that it bears his signature and signature of the panel doctor Dhaval Parmar and it has been produced at Exh-64. On showing the Muddamal weapons, he states that as per his opinion the injuries stated in column No. 17 were such which can cause death of a person in routine course of nature. The injuries of head which have been found during internal examination shown in column No. 17 are corresponding to the injury No. 4. He admits the fact in cross-examination that in the absence of external injury No. 4 of the column No. 17, death of this person is not possible. He admits the fact that external injury Nos. 1, 2, 3 were not sufficient to cause death in routine course of nature. He admits the fact that external injury Nos. 1, 2, 3 are normal injuries. He admits the fact that skin was not cut or crushed at the place of external injury No. 1, 2 and 3. (16) Thereafter, Prosecution Witness No. 12 Dr. Brijeshbhai Narendrabhai has been examined vide Exhibit No. 65. He has stated that when he was discharging his duty at Sir T Hospital, Bhavnagar on 27.12.2006, he received a Police Yaadi for performing P.M. on one dead body. The same is produced at Exhibit No. 66 in this case. The inquest Panchnama vide Exhibit No. 67 and Exhibit No. 22 are shown wherein there is a signature of on duty P.S.I., A-Division, at below which he identifies. It is the same as was received by me. The dead body was of Babubhai Jegabhai Shekhaliya, resident of Meghavadiya, Taluka Gadhda, District Bhavnagar. I received dead body as per inquest Panchnama and identification of dead body was done accordingly. It is the same as was received by me. The dead body was of Babubhai Jegabhai Shekhaliya, resident of Meghavadiya, Taluka Gadhda, District Bhavnagar. I received dead body as per inquest Panchnama and identification of dead body was done accordingly. I started P.M. on dead body at 2.15 p.m. and completed at 3.15 p.m. on the same day i.e. 27.12.2006. The dead body was of a male person. His age was about twenty five years. He had worn bottle green coloured shirt and grey coloured pant. On making external examination of dead body, clothes on dead body were smeared with blood. The physique was normal. The dead body was cold. As per injuries in the column No. 17, there was swelling on elbow and there was swelling on the lower part of elbow also. As bottles were administered on both hands, there was dressing. No injuries like fracture were found on external examination. The injuries were ante-mortem. During internal examination, it was found that there was a CLW having sixteen stitches on the head, which was 2 cms. left from mid-line and one c.m. deep. There was a depressed fracture on left temporal bone. There was a fracture on left parietal bone. There was an extra dural haemorrhage on the left front parietal bone. Clotted blood was present over right temporal parietal region. The right and left lungs on the chest part were congested. The digested liquid was found in the stomach. Acidic liquid was found in the small intestine. The faecal matter was present in the large intestine. Urine was present in the urinary bladder. Viscera was not taken. As per the opinion of this witness, cause of death was haemorrhage due to injuries sustained on the head. The Muddamal weapons are shown. On looking at the same, he states that injuries, shown on the head during internal examination, can be sustained. The death of person can occur in the ordinary course of nature due to these injuries. This P.M. bears handwriting of this witness. The same is produced vide Exhibit No. 68 in this case. He admits such fact during the cross-examination that skin was not cut or crushed at the place of swelling in the external injuries of column No. 17. (17) Thereafter, Prosecution Witness No. 13 Dr. Anandbhai Dhirajlal has been examined vide Exhibit No. 70. The same is produced vide Exhibit No. 68 in this case. He admits such fact during the cross-examination that skin was not cut or crushed at the place of swelling in the external injuries of column No. 17. (17) Thereafter, Prosecution Witness No. 13 Dr. Anandbhai Dhirajlal has been examined vide Exhibit No. 70. He has stated that when he was discharging his duty as a Medical Officer at Sir T. Hospital, Bhavnagar on 22.12.2006, he examined patient Vijaybhai Jekabhai, resident of Meghavadiya, Taluka Gadhda, at 10.45 hours in the evening. He gave such history that Makabhai, Vanabhai, Balo and Uka have beaten me with stick. This incident has taken place at half past seven in the evening at Meghavadiya village. On examining him, there was a 15 cms. long and 2.5 cms. wide bruise in the middle of back. Similar bruise of 4 cms. was over right shoulder. There was swelling over left wrist. His x-rays were taken which were found to be normal. As per the opinion of witness, these injuries can be caused with hard and blunt substance and he can recover within seven to ten days if no complication occurs. (24) Thereafter, Prosecution Witness No. 20 Dr. Pinakin Indulal Vora has been examined vide exhibit No. 131. He has stated that he treated Arjanbhai Sagarambhai on 22.12.2006. The fracture of left hand bone and Ulna bone was found to have been sustained by him during the examination. This fracture can be sustained any way - through scuffling or accident. As only plaster is possible during the treatment, patient was discharged after applying plaster on the elbow. The certificate issued in this regard and indoor case papers have been produced vide Exhibit No. 132. He gave such history during the cross-examination that he was attacked. He admits such fact that this patient may take eight to ten weeks to recover." 9.3 The contentions raised by Mr. B.S. Surti for accused No. 7 that he was not named and usage of stick is not established even in the so-called dying declaration of Vijaybhai, who survived later and he was wrongly implicated thereafter. Therefore, acquittal order for other accused having similar role to that of the accused No. 7 may well apply to the case of accused No. 7. Therefore, acquittal order for other accused having similar role to that of the accused No. 7 may well apply to the case of accused No. 7. It is not in dispute that Accused No. 7 has not caused any injury on deceased and even as per the depositions of Chandubhai, Vijaybhai and Pankhuben, a stick blow was given to Vijaybhai. Similar role attributed to one accused No. 12, who is also acquitted by the trial Court. 9.4 In the case of Bai Fatima [supra], the Apex Court in paras 17 and 20 held as under: "17. In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: [1] That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. [2] It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. [3] It does not affect the prosecution case at all. Question is in which category the present case falls? 20. In material particulars the evidence of the three eye-witnesses as also the evidence of dyeing declaration of the deceased before PW-Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No. 1. The prosecution case is not shaken at all on that account. In our judgment this is a case which falls in the third category as enumerated above. In agreement with the trial Court, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt." On overall appreciation of evidence viz. nature of injuries reflect only a blow of axe for which intention is reflected. However, that injury in ordinary course of nature may not be sufficient to cause death, but likely to cause death of the injured. Therefore, the version of injured eyewitness though inspired confidence qua deceased persons, but implication of other accused due to political rivalry and past incidents cannot be ruled out. However, that injury in ordinary course of nature may not be sufficient to cause death, but likely to cause death of the injured. Therefore, the version of injured eyewitness though inspired confidence qua deceased persons, but implication of other accused due to political rivalry and past incidents cannot be ruled out. That injuries on accused person remained unexplained and truth can be separated from the cobweb of exaggeration, contradiction, etc., but conviction under Section 302 cannot be sustained and we are of the considered opinion that charged offence for which accused can be convicted under Section 304 Part-I, IPC. In view of the above discussion, Criminal Appeal No. 276 of 2009 is allowed and conviction. and sentence dated 11.2.2009 rendered by the learned Additional Sessions Judge, Fast Track Court No. 3, Camp at Botad in Sessions Case No. 145 of 2007 is hereby quashed and set aside qua the appellant accused No. 7-Bharwad Gokul Togabhai. Fine, if paid be refunded to him. So far as Criminal Appeal No. 304 of 2009 is concerned; [i] appeal is abated qua appellant accused No. 2 - Bharwad Punjabhai Radabhai since he died on 21.4.2009; [ii] appeal is allowed and conviction and sentence qua the appellant accused No. 3 - Bharwad Makhabhai Punjabhai is quashed and set aside. Fine, if paid be refunded to him. [iii] the conviction of the appellant accused No. 9-Bharwad Ukabhai Lakhmanbhai and appellant accused No. 14 - Bharwad Khengabhai Arjanbhai under Section 302, IPC is altered to Section 304 Part-I, IPC and they are sentenced to undergo rigorous imprisonment for a period of 10 years. The sentence of fine remains the same. Accordingly, Appeal No. 304 of 2009 is partly allowed. Appeal Allowed.