JUDGMENT : BIREN VAISHNAV, J. 1. Both these criminal appeals arise out of judgement and order dated 29.01.2013 passed by the 5th Additional Sessions Judge, Junagadh. By the aforesaid judgement and order passed in Sessions Case No. 57 of 2009, the learned Sessions Judge has convicted all the accused for life imprisonment for offence under section 302 read with Sections 143, 147, 148, 149, 504 of the IPC and section 135 of the Bombay Police Act. The case of the prosecution as is evident from the reading of the first information report at Exh 137 is as under: 2. On 14.05.2009, when the complainant Bharatbhai Jinabhai Chhaiya was on his way to Manavadar from village Bhindora, at around 11:30 in the morning, he saw Ahir Punjabhai being attacked by six people namely Haresh @ Haja Mandan Chhaiya with a spear, Parbat @ Bava Mandan Chhaiya with an axe, Jagmal Mandan with a gupti, Lala Jagmal with a iron pipe, Govind @ Ganda Vasan Chhaiya with a spear and Raimal Karsan Chhaiya with an iron pipe. According to the version in the complaint, Aahir Punja's son Jagmal Chhaiya ran towards the complainant. Bharatbhai and Bhupatbhai tried to intervene and rescue Punjabhai. Several people had gathered at the scene. Punjabhai had suffered injuries as a result of being hit by pipes, spear and axe and was bleeding. The six accused named in the first information report left the scene with their weapons. The complainant Bhupatbhai and Jagmal Chhaiya carried Punjabhai to his vadi where they informed Punjabhai's wife Dhanbaiben and Heena, daughter of Punjabhai about the incident. Punjabhai was shifted to the Jungagadh Civil Hospital where he succumbed to the injuries sustained. According to the complainant, he was an eyewitness to this incident and the motive behind this was an election dispute. According to the complainant Punjabhai's wife Dhanbai ben had defeated Haresh Chhaiya's wife Jigyasaben in the election to the Gram Panchayat. 3. The Sessions Court framed a charge at Exh 13 implicating all the accused for offences under sections 143, 147, 148, 149, 504 and 302 of IPC and section 135 of the Bombay Police Act. 4. The case of the prosecution essentially rests on three eyewitnesses viz. 3. The Sessions Court framed a charge at Exh 13 implicating all the accused for offences under sections 143, 147, 148, 149, 504 and 302 of IPC and section 135 of the Bombay Police Act. 4. The case of the prosecution essentially rests on three eyewitnesses viz. PW 26, the complainant-Bharatbhai who was examined at Exh 131, P.W. 27, Jagmalbhai Chhaiya, the son of the deceased Punjabhai, who was examined at Exh 141 and Bhupatbhai, P.W. 28, who was examined at Exh 24. P.W. 22, Dr. Tina Ukabhai Gohil is the Medical Officer, Government Hospital, Junagadh who carried out postmortem of the deceased Punjabhai. 5. The Medical Officer, Dr. Tina Gohil, who was examined at Exh 63 as P.W. 22 in her testimony states that on 14.05.2009, when she was working as a Medical Officer at the Junagadh Hospital, she received inquest panchnama and police yadi with the body of the deceased Punjabhai Aahir. She performed the postmortem which began at 5 pm and continued till 6:00 pm. External injuries according to the deposition of this doctor were thirteen in number and all were ante-mortem injuries. Consequential internal injuries have also been elicited in her testimony. 6. “17. (1)A fresh C.L.W. of 1 cm x bone deep, direction above downward laterally posteriorly situated over Lt. parietal region of scalp clotted blood, and half right parietal region. 2. Incised would of 1x1 cm x bone deep situated over anterior surface of junction of upper 2/3rd and lower 1/3rd fresh transverse in direction and clotted blood over Lt leg. 3. A fresh C.L.W. of 7x3 cm. x bone deep fracture or both Tibia and fibula bones situated over posterior surface of upper 3rd of left leg. 4. A fresh C.L.W. of 1x1 cm x bone deep clotted blood, posterior surface of lower 3rd of Rt arm. 5. A fresh C.L.W. of ½ x ½ cm. x ms. deep situated ½ cm. below injury No. 4.” 7. The postmortem report is produced at Exh 66. According to the postmortem report, the cause of death was shock due to intracranial hemorrhage due to head injury and multiple fractures of limbs. According to this doctor, injuries shown in column 17(1) and the consequential internal injuries shown in column No. 19 were injuries serious in nature and sufficient to cause death. According to the postmortem report, the cause of death was shock due to intracranial hemorrhage due to head injury and multiple fractures of limbs. According to this doctor, injuries shown in column 17(1) and the consequential internal injuries shown in column No. 19 were injuries serious in nature and sufficient to cause death. According to the doctor injury shown at Column No. 17(1) was caused due to hard and blunt substance. In her opinion this injury could have been caused due being hit by the rear end of dhariya or an axe. She further elicits in detail injuries caused, the nature of injuries caused in column No 17(2) to 17(12). This doctor has been cross-examined and according to her, injury No. 1 was sufficient to cause death. Remaining individual injuries were not grievous enough to cause death. This doctor admits in her deposition that except injury no.1, rest of the injuries collectively may or may not cause death. 8. The complainant Bharatbhai Chhaiya is examined as PW 26 at Exh 31. In his examination, he states that he is a resident of village Bhindora and is a sarpanch of the village. On 14.05.2009, at around 11:30 in the morning, when he was on his way to Manavadar on the motorcycle, on the Bhindora bypass he saw several people having gathered. He saw that Punjabhai Chhaiya was being attacked by Haresh Chhaiya, Bava Mandan Chhaiya, Jagmal Maandanbhai Chhaiya, Lala Jagmalbhai Chhaiya, Govind @ Ganda Vasan Chhaiya and Raymal Karsanbhai Chhaiya and three others. According to testimony of this witness, of these nine, three of which were not named by him, were abusing Punjabhai and attacking him with the weapons in their hands. This witness further testifies that Punjabhai's son Jagmal Chhaiya approached him and informed that his father Punjabhai was being attacked by stick, spear, pipe and dhariya and axe etc. Bharatbhai, Punjabhai's son Jagmal and the complainant, therefore, intervened. According to this witness, Haresh Chhaiya was carrying a spear, Bava Chhaiya had an axe, Jagmal Mandanbhai Chhaiya had a gupti, Lala Jagmalbhai had a pipe and Ganda Vasan Chhaiya has a spear, Raymal Chhaiya had a pipe and all of them were indiscriminately beating Punjabhai. He also referred to the presence of three other accused whom he had not named. According to this witness, Punjabhai was profusely bleeding and his clothes were soiled with blood. He also referred to the presence of three other accused whom he had not named. According to this witness, Punjabhai was profusely bleeding and his clothes were soiled with blood. From the scene of the incident Punjabhai was carried in a bullock cart to his vadi where Punjabhai's wife Dhanbaiben and daughter Heena were present. He and Punjabhai informed the wife and the daughter of the incident in question. Punjabhai was thereafter taken to the Government Hospital at Junagadh where the doctor informed that Punjabhai had succumbed to the injuries. This witness in his examination-in-chief states that the cause of the incident was that deceased Punjabhai's wife Dhanbaiben had contested the Grampanchayat elections against Jigyashaben, accused No. 9, Haresh's wife. According to this witness, on 15.05.2009, the police had come to this village and visited the scene of offence and made out a panchnama on that date. The police had recorded his statement. A question was put to this witness as to what he had stated in his further statement. To this, the witness replied that the three unnamed persons in the first information report were named by him and they were Kishore Virabhai Chhaiya, Ramesh Kalabhai Chhaiya and Mahesh Walabhai Jallu. He identifies the three persons as accused Nos. 2, 3 and 8 respectively who were present in the Court. This witness was cross-examined extensively. He admits in his cross-examination that when he reached the scene of the offence, he had no prior intimation of the incident in question. An improvement is made in his cross-examination and he admits that he has not stated in the complaint or in the further statement that Jagmal Chhaiya, son of Punjabhai had approached him. He also admits in his deposition that he had not stated in his complaint or in his further statement that Punjabhai had narrated the incident in question to his daughter and to his wife Dhanbaiben. In his cross-examination he further admits that he had not disclosed to the doctor or the constable on duty with regard to the incident in question. He further admits that he is residing at Bhindora for the past five years and is a Sarpanch and the village has a population of around 1,600 to 1,700 residents. In his cross-examination, he further admits that he knows Mandanbhai Parghi, who was a member of the grampanchayat and was elected from his panel. He further admits that he is residing at Bhindora for the past five years and is a Sarpanch and the village has a population of around 1,600 to 1,700 residents. In his cross-examination, he further admits that he knows Mandanbhai Parghi, who was a member of the grampanchayat and was elected from his panel. He further admits that six or seven days prior to the incident in question, Mandanbhai Parghi had lodged a complaint against Mahesh Jallu, accused No.8 and Ramesh Kalabhai Chhaiya accused No.3 that he was cited as a witness in the complaint. He further admits that he knows Kishore Chhaiya, Mahesh Jallu and Ramesh Chhaiya as they were residents of his village and he knew them before the incident happened. In his cross examination, this witness further admits that in his complaint, he had not named the three persons i.e. accused No. 2, 3 and 8 and also did not attribute any role to them and was not aware which weapon were used by the three, who where subsequently named in his further statement. 9. Jagmal Punja Chhaiya, son of the deceased Punjabhai has been examined as PW 27 at Exh 141. In his testimony he states that on14.05.2009 he was going from his village to the vadi with his father Punjabhai. Haresh Chhaiya, Bava Mandan Chhaiya, Jagmal Mandanbhai Chhaiya, Lala Jagmalbhai Chhaiya, Ganda Chhaiya, Raymal Chhaiya, Ramesh Chhaiya, Mahesh Jallu had approached from the back and attacked his father Punjabhai with the weapons they were carrying. In his deposition he named each of the accused and attributes each of the accused with a specific role they played and the weapon they were carrying. According to this witness these 09 accused without any warning attacked his father. Bhupatbhai and Bharatbhai, the complainant were approaching the scene of the offence and he accordingly informed them. All the three tried to intervene and rescued the deceased Punjabhai. However, all of them after hurling abuses left the scene. Bullock cart of Devayat Raydhan was brought and Punjabhai was carried to his field. Dhanbaiben and Heenaben, wife and daughter of the deceased respectively were present and his father had narrated the incident in question and named Haresh the other accused. However, all of them after hurling abuses left the scene. Bullock cart of Devayat Raydhan was brought and Punjabhai was carried to his field. Dhanbaiben and Heenaben, wife and daughter of the deceased respectively were present and his father had narrated the incident in question and named Haresh the other accused. According to this witness, the cause of the incident in question was, as narrated by the complainant earlier, the election of the deceased wife Dhanbaiben in the gram panchayat where she contested and won against Haresh's wife Jigyashaben. In his examination-in-chief, this witness further states that his further statement was taken on 15.05.2009. In his cross examination he denies that he had stated in his police statement that his father had narrated the incident in question to his mother Dhanbaiben and Heena. In his cross examination this witness states that at around 7 in the morning he had gone alongwith his father Punjabhai to Nagdanbhai. He further admits that when he, Bharatbhai and Bhupatbhai reached the scene of the offence, about 7 to 8 people had gathered in his field. He was not in a position to name the seven persons. He admits that there was between the family of Haresh and his family as a result of the election dispute that had occurred where his mother had contested and won the election of the grampanchayat. 10. Bhupatbhai Jinabhai Chhaiya, P.W. 28, brother of the complainant Bharatbhai has been examined at Exh 144. In his testimony this witness states that on 14.05.2009 at around 11:30 to 12:00 in the morning, the incident happened on the bridge of the Khokhri river of village Bhindora. He was proceeding towards the plot area of Bhidora village when he saw the accused Hareshbhai Chhaiya, Bava Mandan Chhaiya, Jagmal Mandanbhai, Lala Jagmalbhai, Raymalbhai Karsanbhai, Rameshbhai Kalabhai, Kishorebhai Veerabhai, Maehshbai Valabhai were attacking Punjabhai. He names each accused and associates weapon with each of the accused whosoever was carrying. According to him, Punjabhai was shouting for help. Bhupatbhai, his brother and Punjabhai's son Jagmal tried to intervene but the accused with their weapons ran towards the houses. Bullock cart of Devayat Raydhan was brought and Punjabhai was carried to his vadi. This witness more or less repeats his testimony the same way that has been elicited by the other witnesses viz. Bharatbhai and Jagmal. Bhupatbhai, his brother and Punjabhai's son Jagmal tried to intervene but the accused with their weapons ran towards the houses. Bullock cart of Devayat Raydhan was brought and Punjabhai was carried to his vadi. This witness more or less repeats his testimony the same way that has been elicited by the other witnesses viz. Bharatbhai and Jagmal. Bhupatbhai has been cross-examined and according to him, he was at a distance of 15 to 20 ft when he saw Punjabhai being attacked and surrounded by the accused. Punjabhai had collapsed on the ground. He was being indiscriminately attacked by accused in question. In his cross examination, this witness admits that he had stated in the police statement as to when Bharatbhai had arrived at the scene. According to the testimony of this witness, in his cross-examination he states that he had gone towards Bhindora to fetch labour. 11. Heenaben Punjabhai Chhaiya, daughter of the deceased Punjabhai has been examined as PW 29 at Exh 145. the testimony of this witness is only relevant for the fact that she in her examination-in-chief states that the deceased had narrated the incident, named the accused in question when brought to the field by the bullock cart. 12. The Investigating Officer, Vanrajsinh Jadeja was examined as PW 34 who carried out the investigation. He explained the sequence and the nature of the investigation. Improvements in the testimonies of the witnesses were sought to be proved through the cross-examination of this witness. 13. The defence has examined three defence witnesses. Lakhmanbhai Dangar has been examined as Exh 186 as D.W.1. In his deposition he states that he is a resident of village Ronki which is at a distance of about 14 to 15 kilometers from Bhindora. He was an acquaintance of Mahesh Jallu. On 14.05.2009 according to this witness, a wedding of his daughters Dakshaben and Sheetalben was scheduled at about 10 in the morning and Mahesh Jallu and his father were invited to the wedding. According to him, both Mahesh Jallu and Davayatbhai Jallu were at the wedding from the 8:00 in the morning till 4:00 in the evening and were present throughout the ceremony. Photographs have been produced in support of his statements. 14. Defence witness No.2 Karsanbhai Naranbhai Dangar has been examined at Exh 91. According to him, both Mahesh Jallu and Davayatbhai Jallu were at the wedding from the 8:00 in the morning till 4:00 in the evening and were present throughout the ceremony. Photographs have been produced in support of his statements. 14. Defence witness No.2 Karsanbhai Naranbhai Dangar has been examined at Exh 91. He also supports the version of the defence witness no.1 Lakhmanbhai and states that an invitation was sent to Mahesh Jallu and both Mahesh Jallu and his father were present at the wedding from 9:00 am to 4:00 in the evening. 15. In light of the evidence as has been discussed here-in-above essentially, at the first instance, we need to examine the role of accused No.2 Kishore Chhaiya, accused No.3 Ramesh Chhaiya and accused No. 8 Mahesh Jallu. If the first information report at Exh 137 is read, the first information report names six accused viz. accused Nos. 1, 4,5,6,7 and 9. It is only in the further statement the complainant Bharatbhai discloses names of accused No. 2, 3 and 8. Further, from the deposition of PW 2 Bharatbhai it is evident that Ramesh Chhaiya and Mahesh Jallu were arraigned as accused in the complaint filed by one Mandan Punja and in that episode PW 2 was cited as witness. As far as accused Nos. 3 and 8 are concerned, Bharatbhai can be termed as an interested witness. In his cross examination this witness further admits that as far as the three accused are concerned i.e. 2, 3 and 8 respectively, he was not in a position to explain the roles of these accused and the weapons that they were carrying and what injuries that these accused had inflicted on the deceased Punjabhai. This witness further admits that Haresh Chhaiya had given the statement against them in the atrocity case that was filed against them. In his cross examination, this witness denies a suggestion that Mahesh Jallu i.e. accused No. 8 was not present as he was attending the wedding at Ronki. 16. Even from the testimony of PW No. 27 Jagmal, it is evident that he had not disclosed the names of the three accused i.e. accused Nos. 2, 3 and 8 respectively in his police statement. He further admits that there was an enmity between his uncle and Kishore Virabhai Chhaiya. 16. Even from the testimony of PW No. 27 Jagmal, it is evident that he had not disclosed the names of the three accused i.e. accused Nos. 2, 3 and 8 respectively in his police statement. He further admits that there was an enmity between his uncle and Kishore Virabhai Chhaiya. It is evident even from the version of witness DW 1 Lakhman Dangar and that of DW 2 Devayat Jala that accused No.8 Mahesh Jallu was, in fact, at Ronki attending the wedding of the daughters of defence witness No. 1 Lakhman and was therefore, not present at the scene of the offence. Evidence of the witnesses vis-a-vis role of accused No.2, Kishore Virabhai Chhaiya, accused No.3 Ramesh Chhaiya and accused No.8 Mahesh Jallu is concerned, indicate that their names do not figure in the first information report. The complainant is not coming forth with the nature of the role played by these accused and the weapon wielded by them. In the complaint, they are referred to as unknown persons. Admittedly, accused No.2 and 8 were arraigned as accused in a case in a complaint which was filed four to five days before the incident in question. That the accused No.8 was not present at the scene of the offence was evident in light of the deposition of DW 1 and DW 2. Names of these accused surfaced only when the further statement of Bharatbhai was recorded. 17. Evidence, therefore, on record indicates that as far as the appellant Mahesh Jallu of Criminal Appeal No. 296 of 2013 is concerned original accused No.8 and appellant Nos. 2 and 3 of Criminal Appeal No. 509 of 2013 (Accused Nos. 2 and 3) are concerned they cannot be attributed to have committed the offences in question and therefore, the conviction of these accused for offences under section 302 read with sections 143, 147, 148 and 504 of the IPC cannot be sustained. 18. This now brings us to the question of deciding the complicity of the remaining accused viz. accused No.1, 4, 5, 6, 7 and 9 who are appellants nos.1, 4, 5, 6, 7 and 8 in Criminal Appeal No. 509 of 2013. Bharatbhai, Bhupatbhai and Jagmal Chhaiya in their versions have testified that they were present when the incident in question happened. accused No.1, 4, 5, 6, 7 and 9 who are appellants nos.1, 4, 5, 6, 7 and 8 in Criminal Appeal No. 509 of 2013. Bharatbhai, Bhupatbhai and Jagmal Chhaiya in their versions have testified that they were present when the incident in question happened. Bharatbhai, the complainant in his first information report, states that when he was proceeding from Manavadar these accused, which he named in the complaint, together with the roles they had with the weapons were attacking deceased Punjabhai indiscriminately. According to his version, in the complaint which also find supports from the testimony, it was Jagmal son of Punjabhai who approached him. Jagmal, Bharatbhai and Bhupatbhai tried to intervene. The accused left the scene. Deceased Punjabhai was injured and was shifted in a bullock cart to his vadi where subsequently shifted to the hospital where he succumbed to the injuries. The motive behind the incident was an election dispute wherein the deceased's wife Dhanbaiben had won the election against accused No.9's wife Jigyashaben. Bharatbhai in his deposition stands by the narration in the complaint and further admits that he had no prior information of the incident. His presence, therefore, at the scene of the offence was natural. His omission to narrate the incident in question to the doctor on duty and the constable are not material omission which would dent the credibility of this witness. 19. Jagmal, P.W.27, who was the son of the deceased also narrates the sequence of events as it happened and as recorded in the first information report at the instance of the complainant Bharatbhai. He also named accused Nos.1, 4, 5, 6, 7 and 9 with the weapons that each accused wielded. He also supports the theory of the motive that led to the killing of Punjabhai. Jagmal Chhaiya identifies the accused in the Court. 20. Bhupatbhai, PW 28 was examined at Exh 144 who is the brother of the complainant and is also an eyewitness to the incident and supports the testimonies of Bharatbhai and Jagmal Chhaiya. From the testimonies of all these three witnesses, who were eyewitnesses to the incident and who narrated the role played by each of the six accused with the weapons in hand, their testimonies cannot be said to be such which cannot be believed. From the testimonies of all these three witnesses, who were eyewitnesses to the incident and who narrated the role played by each of the six accused with the weapons in hand, their testimonies cannot be said to be such which cannot be believed. Their presence at the scene of the offence was natural and that they had witnessed the incident in question, therefore, cannot be doubted. On a harmonious reading of the testimonies of these three witnesses it cannot be said that there are at material omissions or variations or contradictions in their testimonies so that credibility can be doubted. 21. Learned advocate Mr. A.D.Shah has extensively taken us through medical evidence i.e. the deposition of Dr. Tina Gohil who was examined as PW 22 to contend that from the deposition, it is evident that what was found was that the deceased had suffered this fresh cut and lacerated wounds which were mainly on the left leg, right leg and right and left hands. Only one cut and lacerated wound was on the left side of the head. All the injuries, except injury No. 1, were on the non-vital parts of the body which were caused by hard and blunt substance. According to Mr. Shah, Medical Officer in her testimony has admitted that except injury No.1 all the injuries cumulatively may or may not result in the death. According to him accused No. 1, 5, 7 and 9 were carrying sharp cutting weapons. Whereas No. 4 and 6 were carrying iron pipes. 22. Various decisions have been cited by learned advocate Mr. A.D. Shah to contend that looking to the nature of injuries and in context of the weapon that they used injuries were caused by a hard and blunt substance and not by the sharp cutting weapons and were also not on the vital part of the body. The injuries caused were not those which were caused by the sharp aged of the weapons and therefore convictions under section 302 of IPC was not justified and that the conviction be altered to one under section 304 part-II. 23. Medical evidence on record through the testimony of Dr. Tina PW 22 at Exh 33, indicates that the cause of death was due to shock due to intracranial hemorrhage and multiple fractures of the limbs. 23. Medical evidence on record through the testimony of Dr. Tina PW 22 at Exh 33, indicates that the cause of death was due to shock due to intracranial hemorrhage and multiple fractures of the limbs. Except injury No.1 as referred to in column No. 17(1) of the postmortem report, rest of the injuries were on the vital parts of the body. Even as per the testimony of the doctor these injuries on their own cumulatively may or may not cause death. 24. The question therefore would be, whether the accused No.1, 4, 5, 6, 7 and 9 are entitled to have their conviction altered to that one under section 304 part-II. 25. From the testimony of the three eyewitnesses to the incident in question, it is evident that accused nos.1, 4, 5, 6, 7 and 9 were armed with deadly weapons. Accused No. 1 and 9 were wielding a spear, accused No. 4 and 6 were carrying iron pipes accused No. 5 was wielding an axe and accused No. 7 was carrying gupti. Testimonies of the three witnesses indicate that Punjabhai was being indiscriminately attacked. Merely because more than five accused were present at the scene of offence it may not call for their conviction under the provision of section 149 of the Act. However, the fact that all of them were present together and therefore it can be safely inferred that there was a common intention to carry out the act, though not a common object to do so. In such circumstances provisions of Section 34 of the Indian Penal Code could be attracted based on the evidence on record. 26. Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participation and liability of participants when the act in question is done by more than one person. 27. There is a clear distinction between provisions of section 149 and section 34 of the India Penal Code. The principle element of section 34 is the common intention to commit a crime. In such a situation section 34 provides for that each one of them would be liable for that crime in the same manner as if all acts resulting in that rime had been done by him alone. Whereas in an offence under section 149 there is no question of common intention. In such a situation section 34 provides for that each one of them would be liable for that crime in the same manner as if all acts resulting in that rime had been done by him alone. Whereas in an offence under section 149 there is no question of common intention. If the offence is committed in the prosecution of a common object although there was no common intention each person shall be liable irrespective of the participation by the other members. 28. Both, sections 149 and section 34 deal with a group of persons who become liable to be punished as charged in the commission of the offence. Conviction under section 34 is permissible if evidence discloses the commission of an offence is in furtherance of a common intention. Section 149 unlike section 34 speaks of common object. Section 149 is a constructive crime itself whereas section 34 is substantive evidence and other sections like section 302 have to be clubbed with it. 29. In the present case, presence of the accused Nos. 1, 4,5,6,7 and 9 at the time and place of occurrence has not been denied. The act of indiscriminately attacking Punjabhai did cause death by a blow on the head. In the instant case the accused No. 1, 4, 5, 6, 7 and 9 were armed with deadly weapons and had a common intention as envisaged under section 34 of the Act. 30. From the testimonies of the three witnesses together with the medical evidence on record though the injuries that except injury No.1 were caused on the non-vital parts of the body, it cannot be said that the acts were not done with the knowledge that such act is likely to cause death or cause such bodily injury which is likely to cause death. The evidence on record clearly suggests that the accused, in all six in number, were armed with weapons. The deceased had fallen down on the ground. His son had run away for safety. The accused therefore had ample opportunities to give more serious blows on the vital parts of the body. The fact that they did not, would indicate they had no intention to cause death. We, therefore, may not agree that the benefit under section 304 part II be accorded to accused Nos. His son had run away for safety. The accused therefore had ample opportunities to give more serious blows on the vital parts of the body. The fact that they did not, would indicate they had no intention to cause death. We, therefore, may not agree that the benefit under section 304 part II be accorded to accused Nos. 1, 4, 5, 6, 7 and 9, however, the benefit under section 304 part I needs to be accorded to the accused. 31. Having found, no credible evidence against Accused Nos. 2, 3 and 8, they as aforesaid have been acquitted of the offences charged of that leaves us with the accused Nos. 1, 4, 5, 6, 7 and 9. 32. The charge against these accused is of having committed offences under sections 302 and sections 143, 147, 148 and 149 of the Indian Penal Code. 33. Evidence on record, from the testimonies of the eyewitnesses to the incident, namely Bharatbhai, the complainant, Jagmal Chhaiya, son of the deceased and Bhupatbhai, establish the presence of all the accused/appellants No. 1, 4, 5, 6, 7 and 9 at the time and place of occurrence. The act was carried with a common intention as is evident from the manner in which all the accused were armed. There was active participation of all in attacking the deceased and therefore the act was carried out in furtherance of the common intention to inflict such injuries with the knowledge that such injuries could cause death. Hence the aforesaid accused deserve to have their conviction altered to that of one under Section 304 Part I read with Section 34 of the Indian Penal Code from that of the ones they have been charged and convicted of. 34. In the result, Criminal Appeal No. 296 of 2013 is allowed. Criminal Appeal No. 509 of 2013 is partly allowed. The impugned judgement and order of conviction and sentence dated 29.01.2013 passed by the 5th (Ad-hoc) Additional Sessions Judge, Junagadh, in Sessions Case No. 57 of 2009 is modified as under: 35. The appellants No. 2 and 3 of Criminal Appeal No. 509 of 2013 and the sole appellant of Criminal Appeal No. 296 of 2013 are acquitted of the offences charged. Ordered accordingly. The fine deposited by them, if any, shall be refunded to them after proper verification. 36. The conviction of accused Nos. The appellants No. 2 and 3 of Criminal Appeal No. 509 of 2013 and the sole appellant of Criminal Appeal No. 296 of 2013 are acquitted of the offences charged. Ordered accordingly. The fine deposited by them, if any, shall be refunded to them after proper verification. 36. The conviction of accused Nos. 1, 4, 5, 6, 7 and 9 namely appellant Nos.1, 4, 5, 6, 7 and 8 in Criminal Appeal No. 509 of 2013 under section 302 read with sections 143, 147, 148, 149 of IPC is altered to one under section 304 Part-I read with Section 34 of IPC. Accordingly, accused Nos. 1, 4, 5, 6, 7 and 9 are ordered to undergo rigorous imprisonment for 10 years with fine of Rs. 1000/- in default, simple imprisonment for one year under section 304 (Part-I) read with section 34 of Indian Penal Code. 37. The acquittal of the appellants under section 504 r/w 149 of the Indian Penal Code as well as under section 135 of B.P. Act is upheld. 38. In view of the above, Criminal Misc. Application 18498 of 2016 does not survive and is disposed of accordingly. R & P may be transmitted back to the concerned Trial Court. Order accordingly.