JUDGMENT : K.S. Jhaveri, J. 1. All these three appeals are arising out of the judgment and order rendered in Sessions Case No. 74 of 1998 on 29/06/2006 by the learned Additional Sessions Judge, Khmbhalia, convicting the appellants-original accused Nos. 2, 3, 4 and 5 for the offence punishable under Sections 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Original accused No. 2 was awarded with fine of Rs. 10,000/-, in default, to undergo one month simple imprisonment; whereas original accused Nos. 3, 4 and 5 were awarded with fine of Rs. 1,000/-, in default, to undergo one year simple imprisonment. 1.1 At the outset, it is required to be noted that, original accused No. 1 was died before the framing of charge. Whereas, original accused Nos. 4 and 5 have preferred Criminal Appeal No. 1219 of 2006; original accused No. 2 has preferred Criminal Appeal No. 1271 of 2006 and original accused No. 3 has preferred Criminal Appeal No. 1272 of 2006 against their conviction and sentence as stated herein above. 2. The prosecution case in nutshell is as under: 2.1 That complainant-Shantaben Dayaram gave a complaint on 13/04/1998 the deceased had gone to Varvala at about 12:00 hours on the occasion of Urs with Memiben @ Okhaibai. At that time, accused-Dhanibhai met her and asked her to come to Samrabhai's place to burry all past disputes. The deceased and Dhanibai had gone to Samrabhai's house at about 14:00 hours. All the accused were present at the house. When the settlement talks were going on, suddenly, Lakhabhai lost temper and started hurling abuses. Later, Dhaniben, Nathiben and Mitalben caught hold of the complainant and Lakhabhai pulled out a knife and cut the tip of the nose of the complainant. Samrabhai picked up a wooden log and inflicted the same on both the legs of the complainant. As the complainant started raising hue and cry, she was thrown outside the house near the gate and succumbed to the injuries. It is also the case of prosecution that org. accused Nos. 3, 4 and 5 had also given the kick and fist blows to deceased - Shantaben and thereby caused grievous injuries. As the complainant started raising hue and cry, she was thrown outside the house near the gate and succumbed to the injuries. It is also the case of prosecution that org. accused Nos. 3, 4 and 5 had also given the kick and fist blows to deceased - Shantaben and thereby caused grievous injuries. It is also the case of prosecution that while accused persons were beating deceased-Shantaben, witness Memiben @ Okhaiben intervened, who also had been beaten by giving stick blows, as also giving kick and fist blows. 2.2 FIR was lodged with Dwarka Police Station, on basis of which offence was registered and case was investigated. Initially, the offence was registered under Section 307 of the Indian Penal Code, however, the complainant was died during the treatment, offence punishable under Section 302 of the Indian Penal Code was added. At the end of investigation, the Police found that there was sufficient material against the accused and, therefore, the charge-sheet was filed in the Court of learned JMFC, Dwarka, who in turn, committed the case to the Court of Sessions and Sessions Case No. 74 of 1998 came to be registered. 2.3 Charge was framed against accused at Exh. 23, to which he pleaded not guilty and claimed to be tried. 2.4 During the trial, the prosecution had examined following witnesses as oral evidence:- Sr. No. Name Exhibit 1 Dr. Gulabbhai Jethabhai Solanki 36 2 Memiben Adambhai 45 3 Bankimchandra Chandulal Jethva 46 4 Mayaben Maandanbhai 52 5 Rasul Jusab 53 6 Devendrabhai shantilal Thakkar 54 7 Mansinh Kalyansinh Rayjada 55 8 Sombha Somiyabha Manek 56 9 Devshibhai Ranabhai 57 10 Dhanjibhai Jethabhai kumbhar 58 11 Arjanbhai Muljibhai Satwara 59 12 Harunbhai Jusabhai Memon 60 13 Jashuben Khetabha subhania 61 14 Dineshbhai Mohanlal Parmar 71 15 Jayantilal Arjanbhai Kobia 72 16 Laxmanbhai Baburao Chauhan 75 17 Jiteshbhai Dayaram Bujad 77 18 Jusab Jumabhai 78 19 Prabhudas Bhadabhai Patel 96 20 Chetnaben Dayarambhai Bujad 104 21 Jaysukhbhai Jerambhai Arodhara 115 2.5 The prosecution had also produced and relied upon following documentary evidence:- Sr. No. Name Exhibit 1 Injury Certificate of Bhikhiben Bachubhai 37 2 Yadi to get the injury certificate. No. Name Exhibit 1 Injury Certificate of Bhikhiben Bachubhai 37 2 Yadi to get the injury certificate. 38 3 Papers of indoor treatment of Bhikhiben Bachubhai 39 4 Injury Certificate of deceased – Shantaben 47 5 Case papers of deceased Shantaben 48 6 Yadi sent for conducting PM of the deceased 49 7 Copy of form of PM Note 50 8 Postmortem report of the deceased 51 9 Yadi sent for recording DD 73 10 Dying declaration of deceased 74 11 Complaint of the complaint 76 12 True Xerox copy of station diary entry No. 13 80 13 Yadi to prepare map of local place 81 14 Report of commission of crime 82 15 Inquest Panchnama 83 16 Panchnama of recovery of clothes of deceased 84 17 Arrest Panchnama of accused 85 18 Yadi to get the clothes of the deceased 86 19 Yadi of forwarding muddamal 87 20 Receipt of FSL of receiving muddamal 88 21 Forwarding letter with analysis report of muddamal by the FSL 89 22 Muddamal analysis report by the FSL 90 23 Serological report of muddamal by FSL 91 24 Arrest Panchnama of accused 97 25 Application made to the Chief Minister by witness-Chetnaben, acknowledgement receipt and window receipt 105 26 Reply given by the Home Department, Government of Gujarat to Chetnaben 106 27 Reply to application by District Police Superintendent of Police, Surendranagar 107 28 Photographs of deceased with negative 108 29 A letter written by Chetnaben to local Police, Jamnagar 109 30 Panchnama of place of incident 116 31 Discovery Panchnama 117 32 Panchnama of recovery of clothes of accused – Lakha Arjan 118 33 A yadi written to PSI, Dwarka Police Station by Hospital Duty Constable on account of admission by injured – Memiben 119 34 Receipt of handing over the dead body 120 35 Yadi sent for addition of Section 201 in the FIR 121 3. At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Learned Senior Advocate Mr. N.D. Nanavati, appearing with Mr. Jaivik Bhatt, learned advocate for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court. 4. Learned Senior Advocate Mr. N.D. Nanavati, appearing with Mr. Jaivik Bhatt, learned advocate for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He also submitted that as per the medical evidence the cause of death is due to internal hemorrhage due to injury to spleen and stomach, offence in question will not fall under Section 302 of IPC and it may fall under Section 304, Part-II of IPC. He submitted that even if the prosecution case is believed then also it is clear that the accused were not armed with weapon and they had no intention to kill the deceased. He submitted that the accused were not knowing that their act would result into death of the deceased and, therefore, considering all these circumstances, offence alleged against the accused may be converted to Section 304, Part-II from that of Section 302 of IPC. 4.1 Learned Senior Counsel while relying upon the decision of the Hon'ble Apex Court rendered in Criminal Appeal No. 1130 of 2008 arising out of SLP (Crl.) No. 3368 of 2008 in the case of Vashrambhai Rambhai Barpara Vs. State of Gujarat dated 21/07/2008 has submitted that in similar situated circumstances like the present case wherein the cause of death was due to shock and haemorrhage due to multiple injury and injury and injury to spleen, the conviction of the accused was altered to one under Section 324 of the IPC from one under Section 304 Part-II of the IPC. 4.2 Reliance was placed in the case of State of Gujarat Vs. Babu Kava [2003 (4) GLR 892] wherein also the similar view was taken while altering the conviction of the accused to one under Section 323 from one under Section 304 Part-II of the IPC. 5. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused persons is just and proper and she has supported the conviction recorded by impugned judgment. 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. 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. She also submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused persons and, therefore, no interference is called for in the present appeals. 6. We have heard Mr. N.D. Nanavati, learned Senior Advocate appearing for the appellants-original accused, and Ms. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. The cause of death shown in the report is due to internal hemorrhage due to injury to spleen and stomach. Therefore, it is clear that this injury is the reason for death of the deceased and this is unnatural death. Now coming to the point whether it falls within 302, or 304, part-II, taking into consideration the injury, leaves a room for the accused to argue that this is not a case for offence under Section 302 of IPC. We are of the opinion that the trial Court has not committed any error in convicting the accused persons, however, looking to the nature of the injury, it can be said that the accused are guilty of offence under Section 304, Part II of IPC and not for the offence under Section 302 of IPC. 7. Further, the Hon'ble Apex Court in Vashrambhai Rambhai Barpara (supra) has also considered the similar nature of injuries like the present one and has altered the conviction, the relevant part of which reads thus: "Having considered the submissions made on behalf of the respective parties, and having regard to the nature of the injuries to the deceased and since there is no explanation as to what had caused rupture of the spleen in the absence of any external injury to the vital parts of the abdomen, we are inclined to agree with Mr. Arora's submissions that the injuries do not attract the provisions of Section 304 Part II, I.P.C. under which provision the High Court has convicted the appellant and has awarded sentence. Accordingly, we alter the conviction to one under Section 324 of the IPC and also reduce the sentence to a period of one year, and increase the fine to Rs. Arora's submissions that the injuries do not attract the provisions of Section 304 Part II, I.P.C. under which provision the High Court has convicted the appellant and has awarded sentence. Accordingly, we alter the conviction to one under Section 324 of the IPC and also reduce the sentence to a period of one year, and increase the fine to Rs. 10,000/- which is to be paid to the victim's family." 8. Further, in the case of Babu Kava (supra), this Hon'ble Court has also taken the similar view by quashing and setting aside the conviction of the accused under Section 304, Part-II of the IPC and instead of that, accused are convicted for commission of offence under Section 323 of the IPC. Relevant discussion made by the Hon'ble Court reads thus: "13. In this connection, adverting to the evidence of Dr. Ravindra Shrikrishna Bhise, P.W. 4, Ex. 25, who has performed the autopsy in a panel of two doctors, has inter alia in his examination in chief testified that weight of the spleen of the deceased was 900 grams measuring 20 c.m. x 15 c.m. x 5 c.m. According to him, cause of death of the deceased was shock following intra-abdominal haemorrhage due to injuries sustained and according to him injury caused to spleen of the deceased in the ordinary course of nature was sufficient to cause death. He has also admitted that the said injury was possible by a blow with a hard and blunt substance or if the spleen came into contact with hard and blunt substance. In cross-examination he has admitted that weight of a healthy spleen varies from 250 grams to 300 grams and pursuant to suffering from malaria, tumor or cancer, the weight of the spleen can be more. It is also testified by him that measurement of healthy spleen is 12.5 c.m. x 7.5 c.m. x 2 c.m. He has also admitted that while performing autopsy he has not inquired why the weight of spleen of the deceased was more as he did not find it necessary. He has also not inquired whether the deceased was suffering from chronic malaria. He has issued autopsy report at Ex. 26 wherein in column 21 it is mentioned that the weight of the spleen is 900 grams, enlarged upto 11 c.ms. He has also not inquired whether the deceased was suffering from chronic malaria. He has issued autopsy report at Ex. 26 wherein in column 21 it is mentioned that the weight of the spleen is 900 grams, enlarged upto 11 c.ms. below costal margin surrounded by bloodclots, uniformly, grossly, enlarged ruptured spleen; measuring about 20 x 15 x 5 c.ms. in size. Irregularly linear tear present on the gastric surface of the spleen, size 4 x 3 x 2 c.ms. 14. In view of the aforesaid evidence of Dr. Ravindra S. Bhise at Ex. 25 and autopsy report produced by him at Ex. 26 there is no manner of doubt that the deceased was having an enlarged and diseased spleen weighing at least three times more and size was almost double and if this is so we have to decide which offence is proved against the accused, i.e., murder, culpable homicide not amounting to murder, grievous hurt or hurt. 15. As per Modi's Medical Jurisprudence and Toxicology, the normal spleen in an adult measures 12 x 8 x 4 c.ms. In some cases, the spleen decomposes earlier than the stomach and the intestines, especially if it is swollen and hypepraemic from an acute infectious disease or enlarged from chronic malaria. However, it may resist putrefaction longer, if it happens to be firm and comparatively bloodless. Owing to putrefaction, the spleen becomes soft, pulpy, greenish-steel in colour, and it may be reduced to a diffluent mass within two to three days in summer. On account of its situation, rupture of a normal spleen is very rare unless caused by considerable crushing and grinding force, such as the passing of a carriage or motor car over the body, or by a crush in a railway accident, or by a fall from a very great height; in such cases it is usually associated with injuries to other solid organs and to the ribs overlying the spleen. A normal spleen may sometimes be ruptured by the broken ends of a rib, which may be fractured by a severe kick or by a blow from a blunt weapon. A spleen subjected to traction forces may be torn from its pedicle. An enlarged spleen becomes softened and brittle. Hence it is liable to rupture from a fall or from violence of a very slight degree. A spleen subjected to traction forces may be torn from its pedicle. An enlarged spleen becomes softened and brittle. Hence it is liable to rupture from a fall or from violence of a very slight degree. In such cases, the abdominal wall may not show any external mark of injury. 16. As per Dr. Jhala & Raju's Medical Jurisprudence, normally the spleen is very high up in the abdomen and well protected by the ribs. Thus, unless enlarged to double its size, it is not directly exposed to external injury. Penetrating injuries can certainly involve the organ. When enlarged, it is clearly vulnerable even to direct blows like kicks. Furthermore, such an enlarged organ is friable in structure and hence likely to bleed profusely. Such profuse bleeding may prove fatal and that too rapidly so. On the other hand when the spleen is of normal size and texture and found to be lacerated, the overlying side and abdominal wall must show signs of blunt injury viz., contusion. A kick on an enlarged spleen resulting in fatal haemorrhage amounts to a milder offence even of simple hurt depending on circumstantial evidence. 17. In view of the above referred to authoritative passages on Science of Medical jurisprudence it cannot be gainsaid that enlarged and diseased spleen itself is sensitive and it is vulnerable and susceptible to rupture by a slightest force. Now, therefore, the question which requires to be considered is as to whether the accused have committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part II of IPC or grievous hurt punishable under Section 325 of the IPC or hurt punishable under Section 323 of the IPC. 18. A similar question arose before the Calcutta High Court way back in 1920 in the case of Emperor v. Sabeali Sarkar, AIR 1920 Calcutta 401. In that case, the accused, having found that a young man had approached his kept mistress for the purpose of having sexual intercourse with her, thought that he would be justified in teaching him a lesson by giving him a good thrashing. He accordingly sent for the brother of the young man, and in the presence of the villagers gave him a good beating by kicks and blows, which resulted in his death. He accordingly sent for the brother of the young man, and in the presence of the villagers gave him a good beating by kicks and blows, which resulted in his death. The deceased was of a weak constitution and had an enlarged spleen, and it appeared that when the villagers told the accused that he was about to kill the young man by his kicks and blows, he observed that the deceased was merely pretending and gave him some more strokes with a cane. The accused was thereupon charged with an offence under S. 304. The jury found him guilty under S. 323. The Sessions Judge disagreed with the jury and being of opinion that the accused was guilty under S. 325, referred the matter to the High Court under Section 307 of the Old Code. In the aforesaid fact situation, the High Court held that in the circumstances of the case it was doubtful whether the accused had either intended or knew it to be likely that he would cause grievous hurt and as the case seemed to be on the border line between Ss.323 and 325 the accused might be given the benefit of the doubt and should be convicted of an offence under S. 323. 19. In the case of Ramakrishna Panicker v. State of Kerala, AIR 1959 Kerala 372, before Kerala High Court the victim was having a spleen of diseased condition which got ruptured. In the said fact situation, Kerala High Court held that when the injury is not serious and there was no intention to cause death or grievous hurt, nor did the accused have knowledge that it was likely to cause grievous hurt or death, he is guilty of causing hurt and not death even though death is caused. It was further held that therefore where from the circumstances of the case it is impossible to draw an inference that the accused would have intended to give the deceased anything more than a beating or thrashing to teach him a lesson for using foul language to him, a police officer, it would not be possible to attribute to him the requisite intention or knowledge merely because of the diseased condition of the spleen of the deceased which got ruptured. In such circumstances his conviction under S. 304 cannot stand. 20. In such circumstances his conviction under S. 304 cannot stand. 20. A similar question arose before a Division Bench of Allahabad High Court in the case of Sri Prakash v. The State, 1990 Cr.L.J. 486. In that case, the beating given by the accused to a child has resulted into the death of the child. However, there was no visible injuries found on the dead-body. Beating given to the child, therefore, could not be severe. On medical evidence, spleen of the child was found to be ruptured and, therefore, enlarged spleen could only be the reason of death. The accused was not knowing of the enlarged spleen of the deceased. On the fact situation, the Division Bench held that the accused could not be held guilty under Section 304 of IPC and further held that conviction will be proper under Section 323 and not under Section 325 of IPC. 21. Applying the principles laid down by three High Courts in the above referred to judgments and the passages quoted by us from the Medical jurisprudence of Dr. Modi and Dr. Jhala and Raju to the facts of the present case, it cannot escape from the conclusion that the deceased Gordhanbhai died in an ordinary incident which has resulted into quarrel between the complainant and the accused, the accused got excited and gave fist blows to the deceased whose spleen as per the medical evidence was ruptured as it was enlarged and diseased. Therefore neither intention nor knowledge can be attributed to the accused for causing murder or culpable homicide not amounting to murder of deceased Gordhanbhai. At the most the offence under section 323 of IPC is proved as all of them gave fist blows to deceased as well as A-2 has given fist blows to complainant Vimlaben. 22. In aforesaid view of the matter, conviction under section 304 Part II recorded against all the accused cannot be sustained and therefore it deserves to be quashed and set aside by holding that all the accused have committed offence under section 323 of IPC only by giving fist blows to the deceased Gordhanbhai as well as to the complainant Vimlaben. They are, therefore, convicted of the offence punishable under Section 323 of the IPC." 9. They are, therefore, convicted of the offence punishable under Section 323 of the IPC." 9. Thus, in light of the above and in light of the discussions made herein above, all these appeals are required to be allowed by holding the accused guilty for offence under Section 304, Part II of IPC and not for offence under Section 302 of IPC and sentence imposed upon them is required to be reduced to five years imprisonment. 10. In the result, all the three appeals are partly allowed. The judgment and order rendered in Sessions Case No. 74 of 1998 on 29/06/2006 by the learned Additional Sessions Judge, Khmbhalia, convicting the appellants-original accused Nos. 2, 3, 4 and 5 for the offence punishable under Sections 302 of the Indian Penal Code, is altered to one punishable under Section 304 Part-II of the Indian Penal Code with a fine of Rs. 1,000/- each. The appellants-original accused Nos. 2, 3, 4 and 5 shall undergo rigorous imprisonment of five years for the said offence and the period of sentence already undergone shall be considered for remission of sentence. The bail bond and surety of appellants-original accused Nos. 2, 3, 4 and 5, shall stand cancelled and they are directed to surrender before the Jail Authorities concerned, within a period of twelve weeks from today to serve the remaining sentence. R & P to be sent back to the trial Court forthwith. Yadi of this Farad shall be forwarded to the Jail Authorities immediately.