Judgment Anant S. Dave, J. 1. This Appeal preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 ("Code, 1973") is preferred by the appellants (original accused Nos. 1 to 5) against the judgment and order passed by the learned Additional Sessions Judge, Bhuj - Kutch in Sessions Case No. 7 of 2010 on 25.1.2011. 2. The appellants herein are named as original accused Nos. 1 to 5 as show in complaint which came to be filed as I C.R. No. 139 of 2009 registered with Nakhtrana Police Station for offence punishable under Sections 302, 307, 143, 147, 148, 324, 323, 504, 506(2) of the Indian Penal Code and Section 135 of the Bombay Police Act on 9.10.2009. It is respectfully submitted that a complaint came to be lodged by one Jakab Jusab Rayma against present appellants - accused who are named in the FIR for the afore mentioned offences. It is a case of the complainant as reflected in the complaint that due to petty quarrel took place for parking of tractor on the way causing obstruction. In the said incident in question, one Abu Bhakhkhar Amad Rayma was assaulted by accused -appellants. It is alleged in complaint in detail that quarrel took place on 9.10.2009 at about 9:00 a.m. for giving the side of Chakkda driven by deceased Abu Bhakhkhar Amad Rayma. It is the allegation that the accused persons were armed with axes, dhariya and sticks and are alleged to have assaulted injured witnesses including the complainant and the deceased. Since the names of the present appellants were reflected in complaint which came to be registered on 9.10.2009, the appellants were arrested on 19.10.2009. At the end of trial, the conviction and sentence recorded earlier was imposed by the learned Sessions Judge. 3. Being aggrieved and dissatisfied by their conviction and sentence so awarded, learned advocate for the appellants would contend that the imprisonment of sentence for rigorous life under Sections 302 read with 149 of the Indian Penal Code and fine for which the prosecution has not proved its case beyond reasonable doubt and particularly, in absence of any convincing and cogent evidence for bringing home the charge under Sections 143, 147, 148, 149, 323, 324 and 302 of the Indian Penal Code, such conviction and sentence deserves to be quashed and set aside. Accordingly, the learned advocate for the appellants, even as per testimonies of Amad Alias Abdulla Jusab Rayma at Exhibit 55 and P.W. 5 - Jamilaben Jakaria at Exhibit 61, it is evident that in the version of both these witnesses before the police and what was deposed by them before the learned Sessions Judge, there appears to be major contradictions along with vital omissions about actual scene of offence and in fact, none of them could be said to be eye-witness. It is also submitted that reliance placed by the learned Sessions Judge on deposition of P.W. 4 namely Dr. Madanji Suryaprasad at Exhibit 56 and another Dr. Manikant Shrinath Mishra at Exhibit 46 along with injury certificates at Exhibit 47, 48 and 59 as well as P.M. report at Exhibit 50, once again contradiction with regard to accused persons, who had attacked and used weapons so described for commission of crime vis-à-vis nature of injury caused during the course of incident and even above evidence is considered in juxtaposition to panchnama of scene of offence and testimonies of expert about injuries on body of the injured, did not reveal intention to cause death inasmuch as sole blow was inflicted. 4. Inter-alia, it is submitted that material evidence of investigating Officer namely P.W. 22 at Exhibit 90 reveals that no treatment was taken at Nakhtrana and further shifting of injured to the hospital at Bhuj upon reference by Medical Officer of Nakhtrana, if considered in context of testimonies of the complainant, it reveals that the complainant has not disclosed true facts before the Investigating Officer about nature of incident and therefore, the case of the prosecution is not only unbelievable but it suffers from vital lacuna in investigation especially of registration of cross case being C.R. No. 140 of 2009 with Nakhtrana Police Station, in which, the accused herein were injured by the complainant side for which the treatment was taken at hospital at Nakhtrana was not reflected. The fact as above was deposed by the Dr. Madanji Suryaprasad, P.W. 4 who could only produce register No., names of persons, who were brought at the hospital and date on which the treatment was given, since the medical papers about the treatment of injuries to the accused as well as injured eye-witness were not available and further, the Doctor allegedly treated the injured on both the sides, had unfortunately died. 5. 5. It is submitted that for the incident dated 9.10.2009, no doubt, the complaint was filed by one Jakab Jusub Rayma, uncle of the complainant, but further statements were recorded on 17.10.2009 and 24.10.2009 including that of the father of deceased did not rule out false implication of the accused. Though the incident had taken place in afternoon in the locality surrounded by inhabitants and on the day of Friday, when the person had returned after offering 'Namaz' at nearby mosque, except interested relative witnesses, no other independent witness was examined. Along with P.W. 5 namely Jamilaben Jakaria another female witness Jaluben, who had also seen the incident of crime, was not examined and likewise another person present at the house of the complainant came out upon hearing shouts of the people and statement was recorded by the police was also not examined. Even scene of offence is also doubtful. 6. It is further submitted that only weapons were attributed to the accused No. 1 and accused No. 5 and not for other assailants and it has come on record that the injured witnesses had left the hospital at Nakhtrana and also Government Hospital at Bhuj against medical advice, which would speak about the conduct of such witnesses and trustworthiness and truthfulness of their versions fall in realm of suspicion. 7. Learned advocate for the appellants would further contend that unlawful assembly is not constituted only because five persons assembled together, but all ingredients of Section 141 read with Section 149 about the agreement to commit crime and common object are to be established. The above aspect is also not borne out from the evidence on record and learned Judge has believed such unlawful assembly convicting the accused under Section 302 of the Indian Penal Code for rigorous imprisonment for life. 8. Or in the alternatively, it is submitted that in absence of any motive or intention, particularly, when the incident of morning around 9:30 on the same day about quarrel which took place between the deceased and the accused for parking of tractor came to be resolved due to intervention of villagers and thereafter the incident in question had taken place about 14:30 for which FIR was registered. 9. It is accordingly or alternatively, submitted that if the nature of the injuries on body of the deceased is seen only injury No. 1 possibly could result into death. 9. It is accordingly or alternatively, submitted that if the nature of the injuries on body of the deceased is seen only injury No. 1 possibly could result into death. In view of the fact that it was inflicted on vital part but for which neither there was any intention nor any knowledge with the accused, that in ordinary course of nature, it would result into death. Therefore, it is submitted that conviction and sentence ordered by the learned trial Judge be quashed accordingly. 10. Learned advocate for the appellants relied on the decision in the case of Ram Jattan And Ors. v. State of U.P. reported in 1995 Supreme Court Cases (Cri.) 169 and submitted that in absence of any intention to cause death without any common object was not established even in the case, multiple injuries caused by 12 accused, was treated as conviction under Section 304, Part II read with Section 149 of the Indian Penal Code instead of Section 302 of the Indian Penal Code. He further relied on the case of Sudhir Samanta v. State of W.B. and Anr. reported in (1998) 1 Supreme Court Cases 581 and submitted that on the similar line, when the accused had knowledge but no intention that the act, so likely to cause death which could be inferred from the evidence and there also convict was ordered under Section 304 Part II of the Indian Penal Code. He further placed reliance on the decision of Mummidi Hemadri and ors. v. State of Andhra Pradesh reported in (2007) 13 Supreme Court Cases 496, where the Apex court has reiterated the principle to be taken into consideration when Section 149 of the Indian Peal Code is invoked with other offence under Section302 etc. 11. Learned APP Mr. Soni appearing for the State would rely on the nature of findings based on reasoning given by the learned trial Judge after appreciating oral as well as documentary evidence in backdrop of first incident which took place around 9:00 a.m. on 9.10.2009, when the nephew of the complainant had gone in rickshaw to drop the labourers in Vadi area and returning to the village Moti Khabhadi. At that point of time, the accused Mamad Isaq Sumara and his son Liyakatali had parked their tractor on the road and therefore, nephew had complained about the same to the accused Nos. At that point of time, the accused Mamad Isaq Sumara and his son Liyakatali had parked their tractor on the road and therefore, nephew had complained about the same to the accused Nos. 4 and 5 to take tractor on the side of the road and meanwhile quarrel had taken place, which was resolved later on by intervention of villagers. Keeping grudge of the above incident, the accused Nos. 4 and 5 with other accused armed with lethal weapons followed the nephew of the complainant to which initially he had complained to his uncle, who in turn asked his nephew to return to his Vadi. However, after prayer for 'Namaz' during noon on the day of Friday was over, father of the deceased offered a cup of tea to the complainant and while they were sitting in side the house, above incident had taken place and upon hearing noise and screaming outside by the females of family, immediately the complainant and his brother rushed to the scene of incident and witnesses inflected blow of sword on the head of his nephew by accused No. 5 and further blow of Dhariya again on the head of his nephew by accused No. 1 and then injured nephew had followed, but while the complainant and his brother namely father of the deceased tried to intervene and to save their nephew and son also received injuries for which treatment was given and so deposed by the Medical Officer and thus the testimonies of the injured eye-witness namely the complainant, uncle of nephew and father and another female witness Jamilaben inspires confidence and contradiction of minor in nature and insignificant omissions, if any are to be ignored. 12. It is submitted that presence of the accused is established at the scene of crime witnessed by injured eyewitness and other eye-witnesses. Usage of weapon for inflicting injury possible by sword and Dhariya and so deposed by Medical Officer coupled with the report of FSL etc. warrants no interference, when the judgment and order of conviction and sentence for life imprisonment is awarded by the learned Judge as per the procedure established by law. 13. We have perused the records, which basically include injured witnesses and eye-witness P.W. 2 Jakab Jusab, P.W. 3 Amad Alias Abdulla Jusab Rayma and P.W. 5 Jamilaben Jakariya, medical certificate and depositions by Medical Officer P.W. 1 Dr. 13. We have perused the records, which basically include injured witnesses and eye-witness P.W. 2 Jakab Jusab, P.W. 3 Amad Alias Abdulla Jusab Rayma and P.W. 5 Jamilaben Jakariya, medical certificate and depositions by Medical Officer P.W. 1 Dr. Manikant Srinath Mishra and P.W. 2 Dr. Madanji Suryaprasad, Panch witness and Investigating Officer namely police witness P.W. 19 Himmatsinh Laghusinh Vadher and P.W. 20 Amad Isaq Sameja and also public servants P.W. 17 Vivek Mohan Gadhvi and P.W. 19 Bhagvanji Premjibhai Chauhan and documentary evidence i.e. injury certificate of Amadbhai, injury certificate of Jakab, Yadi, P.M. Note, death certificate and complaint, in juxtaposition to analysis of FSL and Serological report and judgment and order impugned in this appeal. 14. Dr. Manikant Shrinath Mishra P.W. 1 Exhibit 46 admits about the treatment given to Rayma Amad Jusab and Rayma Jakab Jusab on 9.10.2009 at G.K. General Hospital, Bhuj. He further deposed about injuries on their persons namely on head the wound stitched being measurement of 3 cm. x 2 cm. and other complaint about pain in body. Likewise, the injury of Rayama Jakab was on head with length of 5 cm, but both of them had left hospital against medical advice. 15. However, injuries on the body of the deceased described as injury No. 1 namely cut-wound on right side of head admeasuring 3" x 1" skin deep, injury No. 2 was right parietal back region by 2" x 1/3" skin deep and other injuries of forehead upon over left eye and abrasion and bruise being injury Nos. 5, 6 and 7 on right thigh and left elbow and right palm and all injuries were antemortem with cause of death attributed injuries on head and cardio-respiratory failure. It was further deposed that possibility of such injuries by usage of weapon so described by injured and other eye-witness and so recovered by the Investigating Officer and shown to Medical Officer. 16. P.W. 2 Jakab Jusab - complainant and uncle of deceased, no doubt confirms substantial averments made by him in the complaint in his testimonies barring minor contradictions about not mentioning name of some of the witnesses and exact description of place of incident, but substantially confirms the manner in which assault was made by the accused upon his nephew and subsequent to injuries received by them. That Amad Jusab Rayma, father of the deceased, P.W. 3 at Exhibit 55 also confirms place of incident, manner in which injured were assaulted and earlier incident for which quarrel had taken place in morning on 9.6.2009. The next in line is Exhibit 61 P.W. 5 Jamilaben who was present at the scene of offence and had witnessed assault of Abubhakhar and started screaming and immediately, uncle and father of the injured rushed there. However, the above P.W. 5 states that the incident in question had taken place near Panchayat Naka. Likewise we have perused carefully the evidence of Investigating Officer and other police witnesses with documentary evidence of column No. 17 of P.M. report Exhibit 50 reveals some injuries as reflected in medical certificate and deposed by P.W. 1 and 2 that the presence of the accused is already established from the fact that they did receive injuries for which C.R. No. 140 of 2009 was registered and Sessions Case was tried being Sessions Case No. 33 of 2010, which came to be disposed of on 25.1.2011 by the Sessions Court, Bhuj. Therefore, it cannot be said that the cross case was not investigated by Investigating Officer and the material fact was suppressed. The nature of injuries of accused being simple and even if it remained unexplained by itself, would not result into any fault on the part of the Investigating Officer for which any benefit can be extended to the accused, besides, analysis of FSL and serological report of weapons used by the accused recovered in presence of panchas connected the accused with crime as per Exhibit 97. 17. 17. For reappraisal of evidence as above, in context of submissions made by the learned advocate for the appellants and reasoning and findings and conclusion drawn by the learned trial Judge, no doubt, established that the prosecution has succeeded in establishing its case beyond reasonable doubt, but the fact about the manner in which crime was committed by forming unlawful assembly and injuries, as reflected on the body of the deceased, which was incised wound, over mid upper forehead towards right side and was 3" x 1" skin deep resulting into no fracture of head, but internal injuries for which degree of force applied by assailants is evidenced of lesser improbability for which any intention could be attributed to them except the knowledge that such injuries were likely to cause death. Besides, the fact about accused also receiving injury on their persons for which offence is registered under Section 324 of the Indian Penal Code and availability of the extract of registration of medical history as deposed by Doctor also revealed possibility of scuffle. Moreover, the accused herein have not inflicted repeated blows on injured who died and only injury No. 1 was described as fatal and likely to cause of death by medical evidence. Injuries on other injured eye-witness were simple in nature and they have left hospital at Nakhtrana and Bhuj against medical advice reveals absence of any grievous injuries. Thus, nature of quarrel initially took place in morning hrs. on 9.10.2009, the role and manner in which assailants inflicted injury, nature of injury and usage of weapon and further both the complainant as well as the deceased remained in desert terrain of Kutch and social strata to which they belong, though guilt of the accused is established even scale of justice demand for conviction of the accused u/s. 304 Part II with sentence of 10 R.I. and fine as it is. 18. In the result, present appeal is partly allowed. The impugned judgment and order of conviction dated 25.1.2011 passed by the learned Additional Sessions Judge, Bhuj - Kutch, in Sessions Case No. 7 of 2010 is hereby altered under Section 304 Part- II read with Section 149 of the Indian Penal Code and the sentence of life imprisonment awarded by the learned Additional Sessions Judge, is hereby modified to the extent that the appellants to undergo rigorous imprisonment for 10 years and fine as it is. Rest of the impugned judgment and order shall remain unaltered. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. The appellant No. 2 - Abdul Razak @ Kara Sumra and appellant No. 4 - Liyakatali Amad Sumara are hereby ordered to surrender before the concerned Jail Authority within a period of eight weeks from today. Their bail bonds shall stand cancelled. Appeal Partly Allowed.