JUDGMENT : K.S. Jhaveri, J. 1. Challenge is made to the judgment and order dated 15.6.2005 passed by learned Sessions Judge, Navsari in Sessions Case No. 10 of 2005 in this appeal whereby learned Sessions Judge has been pleased to convict the accused and imposed the sentence upon them to undergo life imprisonment and fine of Rs. 1000/- for the offences punishable under sections 147, 148, 337, 338, 302 read with section 149 of IPC and section 135 of Bombay Police Act, in default, to undergo further three months simple imprisonment. Accused No. 5 is also convicted for the offence punishable under section 506(2) of IPC and ordered to undergo two years rigorous imprisonment and fine of Rs. 1000/-, in default, further six months simple imprisonment and sentence upon accused No. 5 are ordered to run concurrently. 1.1 Ms. Jani, learned counsel appearing for the appellants - original accused states that accused No. 1 - Parshottambhai Premabhai Tandel has expired on 1.1.2010 and accused No. 12 - Lalitaben w/o Amrutbhai Premabhai has expired on 24.2.2010. In this view of the matter, appeal qua them stands abated. 2. The broad facts of the case are that on 9.11.2004 at about 17.30 hours, the accused assembled unlawfully at Hanuman Faliya, Mouje Ojal Machhivad and in collusion with one another with an intention to succeed in their design, the deceased keeping suspicion on his wife - Naynaben @ Nutanben that she was in love affair with other person and, therefore, extended harassment and caused injuries with iron rod and, therefore, the accused got angry and tied the deceased with the banyan tree unlawfully, pelted bricks, stones and lime stones on him and caused injuries and ultimately caused the death, threatened the witnesses to done to death and committed breach of the notification and, thereby committed the offences, as alleged and hence, they were charged for the offences punishable under sections 147, 148, 337, 338, 302 read with section 149 of IPC and section 135 of Bombay Police Act. 3. Therefore, FIR bearing CR No. I - 108 of 2004 came to be registered before the Jalalpore Police Station. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused which was numbered as Criminal Case No. 931 of 2005. 3. Therefore, FIR bearing CR No. I - 108 of 2004 came to be registered before the Jalalpore Police Station. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the accused which was numbered as Criminal Case No. 931 of 2005. 3.1 As the case was exclusively triable by the court of sessions, the same was committed to the Court of Sessions on 5.3.2005 vide Exh. 33. The charge was framed against the accused at Exh. 1. The accused pleaded not guilty to the charge and claimed to be tried. To prove the case against the accused, the prosecution has examined the following witnesses. Nos. Name of witness Exh. 1 Dr. Nileshbhai Hasmukhbhai Mistry 6 2 Arvindbhai Maganbhai Tandel 43 3 Chhaniyabhai Radiyabhai Tandel 45 4 Gauriben Kishorbhai Tandel 47 5 Dharmendersinh Pratapsinh 48 6 Sureshbhai Baburao Shinde 54 7 Hemantkumar Maganbhai Patel 57 8 Dr. Janakbhai Nagindas Parekh 61 3.2 The prosecution has also produced the as many as 34 documentary evidences viz., Inquest Panchnama dated 10.11.2004 Exh. 19, Panchnama of recovery of clothes from the dead body Exh. 20, Arrest Panchnama of accused Nos. 1 to 7 dated 14.11.2004 Exh. 21, Arrest Panchnama of accused Nos. 8 to 14 dated 16.11.2004 Exh. 22, Panchnama of scene of offence dated 10.11.2004 Exh. 44, Original complaint dated 10.11.2004 Exh. 46, Panchnama of recovery of rod from the complainant of I CR No. 107/2004 dated 14.11.2004 etc. 3.3 At the end of the trial, after recording the statement of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, the trial Court delivered the judgment and order, as stated above. 3.4 Being aggrieved by the same, the appellants - original accused have preferred the aforesaid Criminal Appeal before this Court. 4. We have heard Ms. Jani, learned counsel for the appellants and Mr. L.R. Pujari, learned APP for the State. 5. Ms. Jani, learned counsel for the appellants has contended that the complainant i.e. Chhaniyabhai Radiyabhai Tandel had filed the complaint Exh. 46 on 10.11.2004, whereas accused No. 1 also filed the complaint Exh. 51 against the deceased which is prior in time and this fact has not been considered by learned trial Judge in its proper perspective. 5. Ms. Jani, learned counsel for the appellants has contended that the complainant i.e. Chhaniyabhai Radiyabhai Tandel had filed the complaint Exh. 46 on 10.11.2004, whereas accused No. 1 also filed the complaint Exh. 51 against the deceased which is prior in time and this fact has not been considered by learned trial Judge in its proper perspective. She further submitted that looking to the deposition of PW 3 - Chhaniyabhai Radiyabhai Tandel at Exh. 45, it is crystal clear that the complainant was not knowing the names of all the 14 accused and the daughter of the complainant i.e. Gauriben had given the names to the complainant. In her submission, therefore, the complainant had tried to involve the other six accused persons in the present offence with ulterior motive and mala fide intention. She further submitted that there is material contradiction in the evidences of PW 3 and PW 7 - Investigating Officer as well as in inquest panchnama Exh. 19 and postmortem Exh. 6 and, therefore, she requested this court that benefit of doubt is required to be given to the accused persons. She further submitted that there was no motive or premeditation to commit the crime in question. She contended that taking into consideration the evidence of the witnesses, at the most, the case would fall under section 304(2) of IPC as the medical evidence is not sufficient to establish the charge of culpable homicide amounting to murder against accused. In her submission, therefore, it was not pre-plan murder and thus the appellants could not have been convicted under section 302 of IPC. In support of her submissions, she has relied upon the following three decisions. "(I) AIR 1972 SC 2462 (Ramlal v. Delhi Administration); (II) AIR 1976 SC 1537 (Ninaji Raoji Baudha and another v. State of Maharashtra) and (III) (2014) 3 SCC 366 (Badal Murmu and others v. State of West Bengal)." 5.1 In Ram Lal v. Delhi Administration, reported in AIR 1972 SC 2462 , it is observed by the Honourable Apex Court as under:- "8. No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. No attempt was made to identify the internal injury with either or both the external injuries found on the head. It is quite possible on that evidence to infer that only one of these two injuries may have been responsible for death or both. The difficulty then arises which was the injury caused by the appellant. The finding of the High Court was that the appellant Ram Lal had given only one blow with the stick on the head and not more than one. In that case it will be very difficult to say whether the blow given by him was the one which ultimately proved to be fatal. Mr. Khanna, appearing on behalf of the Delhi Administration, contended that since the High Court came to the definite conclusion that the other assailants had not given any blow on the head of the deceased it must be assumed that both these blows had been given by Ram Lal, appellant. But that would be contrary to the finding of the High Court which has specifically come to the conclusion that only one blow with the stick had been given by the appellant on the head of the deceased. It was essential in this case, in order to bring home the offence of murder to the appellant, that the lathi blow given by him on the head had proved fatal. Since the evidence clearly discloses that two lathi blows had been given on the head and there is no evidence which of these two was given by the appellant, the benefit of doubt must go to him. He may have given the fatal blow or he may have given the blow which did not prove fatal. In these circumstance, the appellant's conviction under S. 302-IPC was plainly incorrect. He and his companions had the common intention to cause grievous hurt and hence he can be convicted only under Section 325 r/w Section 34. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts. Since in pursuance of the common intention he had given a blow with a lathi on the head which is a vital part of the body he is not entitled to the same consideration as the others in the matter of sentence because the others had given blows on non-vital parts. Therefore, we set aside the conviction under S. 302-IPC and convict the appellant under S. 325 r/w 34 and sentence him to 5 years rigorous imprisonment in respect of the offence committed with regard to deceased Har Lal. We do not interfere with the rest of order passed against him by the High Court." 5.2 In Ninaji Raoji Baudha and Another v. State of Maharashtra, reported in AIR 1976 SC 1537 , it is observed by the Honourable Apex Court as under:- "12. The evidence on record therefore went to show that the appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his 'oota' but passed him by in search of Samadhan who was dressing his injuries, inside the house. Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that injuries were inflicted on his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted in the ultimate death of Bhonaji. The other injuries were on the neck (back side), knees and the right elbow of the deceased and were simple injuries. As has been shown, there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the body and, in the absence of evidence to establish that their common intention was to cause death, it appears that the appellants had the common intention of causing grievous injury with the lathi and the 'khunt'. The other blows did not fall on any vital part of the body and, in the absence of evidence to establish that their common intention was to cause death, it appears that the appellants had the common intention of causing grievous injury with the lathi and the 'khunt'. They could therefore be convicted of an offence under Section 325 read with Section 34, I.P.C. and not Section 302 read with Section 34, I.P.C." 5.3 In Badal Murmu and Others v. State of West Bengal reported in (2014) 3 SCC 366 , it is observed by the Honourable Apex Court as under:- "10. As earlier noted by us, in this case none of the eye witnesses have given specific role to any of the appellants. They have not stated which appellants gave which blow and on which part of the deceased's body. They have not stated which injury was caused by which accused. The doctor has not stated which injury was fatal. Undoubtedly, the deceased had suffered two fractures and haematoma under the scalp, but nobody has said that any particular appellant caused these injuries. It bears repetition to state that though sharp cutting weapons i.e. tangies were available, the appellants did not use them. In the peculiar facts of this case, therefore, it is not possible to hold that the appellants shared common object to murder the deceased and in prosecution of that common object they caused his death. It would not be possible to sustain their conviction for offence punishable under Section 302 read with Section 149 of the IPC. It would be just and proper to resort to Section 304Part II of the IPC and treat the sentence already undergone by them as sentence for the said offence." 6. On the other-hand, Mr. L.R. Pujari, learned APP for the State has taken us through the evidences of the witnesses on record and contended that the decision taken by learned trial Court is just and proper and no interference is called for. 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 by this Court. He also submitted that the learned trial Judge has not committed any error while imposing the sentence on accused. Lastly, he requested this Court to dismiss the present appeal. He also submitted that the learned trial Judge has not committed any error while imposing the sentence on accused. Lastly, he requested this Court to dismiss the present appeal. 7. We have also gone through the impugned judgment as well as evidence on record. In view of the report of PW 1 where the following injuries were described. "Injury Nos. 1 to 4 mentioned in column No. 17 can be caused to any person by pelting bricks, stones or metal. Injury No. 5 can be caused by pelting stone and injury No. 6 can be caused by tiding with rope. External injury Nos. 1 to 4 are sufficient to cause death of any person in natural circumstances." It has come on record that the accused have tried to injured the daughter of accused No. 1 and the Doctor has also examined her and it has come on record that the deceased has tried to injure the daughter of the accused and, therefore, they got angry. In this view of the matter, taking into consideration the evidence on record and in view of the three decisions in the cases of Ramlal (supra), Ninaji Raoji Baudha (supra) and Badal Murmu (supra), it was not certain that which injury was fatal and would cause the death out of the injuries which were caused to the deceased. Therefore, the medical evidence as to fatal injury is not clearly emerging from the prosecution case. In view of the medical evidence, we are of the opinion that the prosecution has not proved beyond reasonable doubt that the accused have committed an offence under Section 302 of IPC. Under the circumstances, in view of the decisions of this Court and the Honourable Apex Court, no weapon is used and, therefore, we are of the considered opinion that the case would fall under section 304, Part-I of IPC and not under section 302of IPC as held by learned trial Court. 8. It is the contention of learned counsel for the appellants Ms. Jani that the complaint at Exh. 51 was lodged by the complainant - Parshottambhai Premabhai Tandel - accused No. 1 herein. We have gone through the entire evidence on record and taking into consideration the fact that the there are contradictions in the evidence of the complainant, we believe that only accused Nos. 1 to 7 were present and other accused Nos. 51 was lodged by the complainant - Parshottambhai Premabhai Tandel - accused No. 1 herein. We have gone through the entire evidence on record and taking into consideration the fact that the there are contradictions in the evidence of the complainant, we believe that only accused Nos. 1 to 7 were present and other accused Nos. 8 to 14 are required to be acquitted by giving benefit of doubt. 9. In view of the aforesaid discussion, the Criminal Appeal is partly allowed. The impugned judgment and order dated 15.6.2005 passed by Sessions Judge, Navsari in Sessions Case No. 10 of 2005 is modified and instead of offence punishable under Section 302 of IPC, accused Nos. 2 and 7 are held guilty for offence punishable under Section 304, Part-I of IPC and ordered to undergo ten years' rigorous imprisonment. The period of sentence already undergone by accused Nos. 2 to 7 be given set off to them. Accused Nos. 2 to 7 shall surrender before the jail authorities within a period of twelve weeks from today to serve out the remaining period of sentence. Remaining part of the impugned judgment shall remain unaltered so far as accused Nos. 2 to 7 are concerned. So far as accused Nos. 8 to 14 are concerned, they are acquitted of the charges by giving benefit of doubt. Bail bond, if any, of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.