JUDGMENT : K.S. Jhaveri, J. 1. As both these appeals arise out of the same incident involving cross cases, with the consent of learned advocates appearing for the respective parties, they were tagged and heard together and are being decided by this common judgment.. 2. Criminal Appeal No. 469 of 2009 arises out of judgment and order dated 27-2-2009 passed by the learned Additional Sessions Judge, FTC No. 3, Bhavnagar, Camp at Botad, in Sessions Case No. 222 of 1998 whereby original accused No. 1 was convicted and sentenced to suffer RI for three years and to pay fine of Rs. 250/-, in default, to suffer further SI for one year for the offence punishable under section 324 of IPC read with section 135 of B.P. Act and SI for one month and to pay fine of Rs. 250/-, in default, to suffer further SI for fifteen days for the offence punishable under section 135 of B.P. Act; original accused No. 3 was convicted and sentenced to suffer RI for one year and to pay fine of Rs. 250/-, in default, to suffer further SI for fifteen days for the offence punishable under section 323 of IPC read with section 135 of B.P. Act and SI for one month and to pay fine of Rs. 250/-, in default, to suffer further SI for fifteen days for the offence punishable under section 135 of B.P. Act and original accused Nos. 5 and 6 were convicted and sentenced to suffer RI for life and to pay fine of Rs. 500/-, in default, to suffer further SI for one year for the offence punishable under section 302 of IPC read with section135 of B.P. Act and SI for one month and to pay fine of Rs. 250/-, in default, to suffer further SI for fifteen days for the offence punishable under section 135 of B.P. Act. 3. Criminal Appeal No. 486 of 2009 arises out of judgment and order dated 27-2-2009 passed by the learned Additional Sessions Judge, FTC No. 3, Bhavnagar, Camp at Botad, in Sessions Case No. 62 of 2003 whereby original accused Nos. 1, 2 and 3 were convicted and sentenced to suffer RI for three years and to pay fine of Rs. 3. Criminal Appeal No. 486 of 2009 arises out of judgment and order dated 27-2-2009 passed by the learned Additional Sessions Judge, FTC No. 3, Bhavnagar, Camp at Botad, in Sessions Case No. 62 of 2003 whereby original accused Nos. 1, 2 and 3 were convicted and sentenced to suffer RI for three years and to pay fine of Rs. 250/-, in default, to suffer further SI for one year for the offence punishable under section 324 read with section 114 of IPC; RI for one year and to pay fine of Rs. 250/-, in default, to suffer further SI for fifteen days for the offence punishable under section 323 read with section 114of IPC; RI for one year and to pay fine of Rs. 250/-, in default, to suffer further SI for fifteen days for the offence punishable under section 504 read with section 114 of IPC and SI for one month and to pay fine of Rs. 250/-, in default, to suffer further SI for fifteen days for the offence punishable under section135 of B.P. Act. All the sentences were ordered to run concurrently. Accused were given benefit of set off for the period undergone in jail. 4. Short facts of the cases of the prosecution(Sessions Case No. 222 of 1998) are that on 18-5-1998 at about 1930 hours in Bharvadvada area on Kulnath Mahadev Road, the accused persons armed with deadly weapons like knife, sword, hockey stick and metal used for crushing betelnut formed an unlawful assembly and attacked the complainant and other witnesses by inflicting blows and as a result of which, Puna Bodha died during treatment due to injuries sustained on his stomach. A complaint was, therefore, filed by the complainant against the accused with 'C' Division Police Station, Bhavnagar registered as C.R. No. 92 of 1998 for the offence punishable under sections 302, 147, 148, 149, 324, 323, 504 of IPC and 135 of B.P. Act. A cross complaint was also filed by the otherside with 'C' Division Police Station, Bhavnagar registered as C.R. No. 93 of 1998 for the offence punishable under sections 324, 323, 504, 114 of IPC and 135 of B.P. Act. In pursuance of aforesaid complaints, investigation started and as there appeared prima facie case against the accused, charge sheets were filed against respective accused persons. In pursuance of aforesaid complaints, investigation started and as there appeared prima facie case against the accused, charge sheets were filed against respective accused persons. 4.1 As the offences were triable exclusively by Court of Sessions, the learned Magistrate committed the cases to the Court of Sessions. Thereafter charges were framed against the accused which were read over and explained to the accused. The accused pleaded not guilty to the charges and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 4.2 To prove the guilt against the accused, prosecution examined following witnesses in Sessions Case No. 222 of 1998: P.W. No. Name of witness Exhibit No. 1 Bhakabhai Boghabhai Chavda 49 2 Devabhai Bhavanbhai 51 3 Dhirubhai Naranbhai 53 4 Dhirubhai Vashrambhai 55 5 Bhagubhai Vashrambhai 56 6 Manabhai Vashrambhai 57 7 Sagarambhai Tidabhai 59 8 Dr. Jahangirbhai Bahadurbhai Ratnani 60 9 Rajubhai Karshanbhai 66 10 Rameshbhai Batukbhai 67 11 Vinodbhai Ramjibhai 70 12 Dr. Bhanuben Harilal Shah 71 13 Dr. Khodabhai Lakhabhai 73 14 Hakabhai Kashirambhai 75 15 Kanabhai Laghrabhai 78 16 Dilipbhai Premjibhai 82 17 Bharatbhai Jadavbhai Vaja 84 18 Dineshchandra Popatlal Jani 85 19 Abdulbhai Bachubhai 92 20 Nanubhai Jivabhai 94 21 Mayursinh Gopalji Gohil 96 22 Bhagvatiprasad Govardhandas Bhatt 99 4.3 The prosecution also relied on following documentary evidence: Sr. No. Description Exhibit No. 1 Original complaint 50 2 Medical certificate 31, 39 3 Inquest panchnama 52 4 Panchnama of scene of offence 54 5 Medical certificate 63, 64 6 Medical case papers & x-ray plate 65 7 Panchnamas 68, 69, 76, 77, 80 8 P.M. Note 72 9 Discovery Panchnama 79, 81 10 Panchnama of surname of the accused 83 11 Copy of station diary 86 12 Order for investigation of janvajog entry 87 13 Investigation order received from PAO 88 14 Report of serious offence 89 15 FIR 90 16 Copy of station diary 91 17 Panchnama 93, 95 18 Yadi to Medical officer for P.M. 100 19 Marnotar form 101 20 Yadi to Executive Magistrate to record DD 102 21 Yadi to Executive Magistrate 103 22 Yadi to M.O. for certificate 104 23 Yadi to M.O. for certificate 105 24 Report to add sec. 302 IPC 106 25 Yadi to M.O. for treatment certificate 107 26 Panchnama of body position 108 27 Yadi of PI to PSO 109 28 Yadi to M.O. for treatment certificate 110 29 Muddamal forwarding note 111 30 Muddamal receipt 112 31 Yadi to M.O. 113 32 Letter written to FSL 114 33 Yadi to M.O. 115 34 Yadi to prepare map of place of offence 116 35 Copy of chapter case registrar 117 36 FSL forwarding letter 118 37 FSL opinion 119 38 Serological preliminary report 120 39 FSL preliminary opinion 121 4.4 To prove the guilt against the accused, prosecution examined following witnesses in Sessions Case No. 62 of 2003: P.W. No. Name of witness Exhibit No. 1. Lalabhai Gabhabhai 25 2. Rajabhai Merubhai 28 3. Butabhai Nanubhai 29 4. Dayabhai Amrabhai 30 5. Dr. Jahangirbhai Bahadurbhai 32 6. Javabhai Nathubhai 36 7. Dhirubhai Naranbhai 38 8. Dhirubhai Chandubhai 40 9. Dineshchandra Popatlal jani 41 10. Mathursinh gopalji 45 11. Arvindbhai Nandlalbhai 48 4.5 The prosecution also relied on following documentary evidence: Sr. No. Description Exhibit No. 1 Original complaint 26 2 Medical certificate 33, 35 3 Medical case papers & X-ray plate 34 4 Panchnama of surname 37 5 Panchnama of scene of offence 39 6 Copy of station diary 42 7 Yadi for registration of offence 46 8 Xerox copy of complaint of Bhaka Bodha 47 9 Closing pursis of Appellant 31 4.6 After filing of closing pursis by the prosecution, further statements of accused under Sec. 313 of Cr.P.C. were recorded. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, the impugned judgments and orders were delivered by the trial court giving rise to the present appeals. 5. Heard Mr. Jayprakash Umot, learned advocate for original accused Nos. 1,3 and 6 and Mr. N.R. Kodekar original accused No. 5 in Criminal Appeal No. 469 of 2009 (Sessions Case No. 222 of 1998), Mr. L.R. Pathan, learned advocate for the original accused in Criminal Appeal No. 486 of 2009 (Sessions Case No. 62 of 2003) and Ms. C.M. Shah, learned Additional Public Prosecutor, for the State in both the appeals. 6. Mr. N.R. Kodekar original accused No. 5 in Criminal Appeal No. 469 of 2009 (Sessions Case No. 222 of 1998), Mr. L.R. Pathan, learned advocate for the original accused in Criminal Appeal No. 486 of 2009 (Sessions Case No. 62 of 2003) and Ms. C.M. Shah, learned Additional Public Prosecutor, for the State in both the appeals. 6. Mr. Jayprakash Umot submitted that the prosecution has not examined the investigating officer, who carried out investigation in both the cases, to throw much light on the incident in question, which is a serious lapse on the part of the prosecution. He further submitted that the incident in question took place in a thickly populated area and therefore, many persons would have witnessed the incident, however, no independent person of that area has been examined by the prosecution. He further submitted that the trial court has not properly appreciated the evidence of P.W. No. 2-Devabhai Bhavanbhai, P.W. No. 4-Dhirubhai Chandubhai, P.W. No. 11-Vinodbhai Ramjibhai, P.W. No. 14-Hakabhai Kashirambhai, P.W. No. 15-Kanabhai Laghrabhai, P.W. No. 16-Dilipbhai Premjibhai, P.W. No. 17-Bharatbhai Jadavbhai, P.W. No. 19-Abdulbvhai Bachubhai and P.W. No. 20-Nanubhai Jivabhai on the ground that they have been declared as hostile. Had their evidence been appreciated by the trial court in proper perspective, it would have clearly known the genesis of the incident, which is a serious error committed by the trial court. 6.1 Mr. Umot took us through the evidence of the complainant and other witnesses including the evidence of doctors namely, P.W. No. 8-Dr. Jahangirbhai Bahadurbhai, P.W. No. 12-Dr. Bhanu Harilal Shah, and P.W. No. 13-Dr. Khodabhai Lakhabhai Dabhi and submitted that there was a free fight and otherside were the aggressors and injuries were caused to the otherside in self-defense. Dr. Bhanu Harilal Shah has deposed that as per column No. 17 of the post mortem note, the deceased received stab wound on the left side chest and from left side 2"x1" cavity deep, there was stitch wound of 2" and he deposed that the deceased died due to shock and hemorrhage because of injuries received on vital organs and therefore, looking to the evidence on record, there were nearly two injuries on the deceased and because of said injuries and due to old age, the injured succumbed to his injuries. 6.2 As regards accused No. 6, he submitted that there was no intention on the part of the accused No. 6 to commit the murder of the deceased and it was due to old age and his misfortune, the deceased died. He further submitted that looking to the fact that nearly two injuries were received by the deceased and those injuries were not much serious in nature as to cause death in the ordinary course of nature, accused No. 6 should not have been convicted under section 302 of IPC but his conviction would have been under section 304 Part-I of IPC. He, therefore, submitted that the conviction imposed on the accused No. 6 under section 302 of IPC may be converted into section 304 Part-I of IPC. 6.3 Mr. Umot also submitted that the injuries sustained by these accused were more serious than the injuries sustained by the otherside. He, therefore, submitted that instead of the sentence to be undergone by the accused Nos. 1, 3 and 5, they may be ordered to pay the appropriate amount of fine as prescribed under the Act. 7. Mr. Kodekar took us through the injuries sustained by the deceased in column No. 17 of the post mortem report and cause of death shown therein and submitted that none of the injuries sustained by the deceased were inflicted by accused No. 5, however, injuries sustained by the deceased could have been caused due to injuries inflicted by accused No. 6. Thus, according to him, no case under section302 has been made out against the accused No. 5-Lalabhai Gabhabhai Rathod and at the most, he can be said to have played the role attributed to original accused Nos. 1 and 3. 8. Mr. Pathan, however, took us through the evidence of P.W. Nos. 1 and 3 and other witnesses and submitted that in view of the cross complaints, happening of the incident and presence of the persons are established and therefore, instead of the sentence to be undergone by the accused, they may be ordered to pay appropriate amount of fine. 9. Learned APP, Ms. C.M. Shah, submitted that considering the evidence on record, accused of Sessions Case No. 222 of 2008 were the aggressors. She further submitted that scene of offence is near the stall of the cycle repairing shop and not near the pan parlour, as contended by learned advocate, Mr. Umot. 9. Learned APP, Ms. C.M. Shah, submitted that considering the evidence on record, accused of Sessions Case No. 222 of 2008 were the aggressors. She further submitted that scene of offence is near the stall of the cycle repairing shop and not near the pan parlour, as contended by learned advocate, Mr. Umot. Taking into account the fact that the deceased has lost his life due to the injuries on the same day, no leniency should be shown towards the accused. 10. We have gone through oral as well as documentary evidence on record together with the impugned judgment and order. 11. It appears that the trial court has discussed the evidence in great detail including the medical evidence. Taking into account the evidence of doctors namely, P.W. No. 8-Dr. Jahangirbhai Bahadurbhai, P.W. No. 12-Dr. Bhanu Harilal Shah, and P.W. No. 13-Dr. Khodabhai Lakhabhai Dabhi, and ocular evidence, the contention raised by learned advocate, Mr. Kodekar, to the extent of role played by original accused No. 5 seems to be correct. It appears from column No. 17 of the post mortem report that the deceased received following injuries: "1) Stab wound on the lt. Side chest near the costal margin & extend to mediature about 2"x1"x cavity deep. 2) Stich wound about 2" on the lt. Elbow posterior." It is clear from post mortem note that cause of death of the deceased was shock due to hemorrhage because of injuries received on vital organs. It appears from the oral as well as the documentary evidence including medical evidence that no fatal blow has been caused on the head or body of the deceased by the accused No. 5 and therefore, we are of the opinion that the prosecution could not establish that accused No. 5 has inflicted any injury which could have resulted into death of the deceased except proving his presence at the place of incident and therefore, ingredients of offence punishable under section 302 of IPC are not proved against accused No. 5. However, the trial court, without appreciating these facts, has committed a grave error in convicting original accused No. 5. However, the trial court, without appreciating these facts, has committed a grave error in convicting original accused No. 5. We are, therefore, of the opinion that accused No. 5 is required to be acquitted of the offence punishable under section 302 of IPC and his role can be equated with the role played by original accused No. 1 and therefore, he is required to be convicted for the offence punishable under section 324 of IPC and can be held accordingly. 12. As far as original accused No. 6 is concerned, it appears from the evidence on record and medical evidence including the injuries noted in column No. 17 of the post mortem note that he has played active role in inflicting injuries on the deceased and case against accused No. 6 has been proved by the prosecution beyond reasonable doubt and therefore, we are of the opinion that the trial court was completely justified in convicting him for the offence punishable under section 302 of IPC. It appears that there was a free fight between two groups and there were cross complaints filed by the parties and accused of both the sides were convicted and sentenced. Looking to the serious role played by original accused No. 6-Rajabhai Merubhai Rathod, his conviction and sentence is required to be upheld. However, as far as other accused of both the cases are concerned, although both the sides were convicted and sentenced, this Court is of the opinion that it will be in the interest of justice that their conviction is confirmed but their sentence is converted into payment of appropriate amount of fine by each accused. Thus, both the appeals require to be partly allowed. 13. In view of the above, judgment and order of conviction dated 27-2-2009 passed by learned Additional Sessions Judge, FTC No. 3, Bhavnagar, Camp at Botad, in Sessions Case No. 222 of 1998 qua original accused No. 6-Rajabhai Merubhai Rathod for the offence punishable under section 302 of IPC read with section 135 of B.P. Act and section 135 of B.P. Act is confirmed. He is reported to be on bail and hence, his bail bond stands cancelled. He is directed to surrender before the jail authorities within twelve weeks from today to undergo their remaining period of sentence. He is reported to be on bail and hence, his bail bond stands cancelled. He is directed to surrender before the jail authorities within twelve weeks from today to undergo their remaining period of sentence. It is observed that life imprisonment, as awarded by the trial court, would not be till the last breath and his case may be reviewed by the appropriate authority considering the decision of the Hon'ble Supreme Court in the case of Bhaikon @ Bakul Borah v. State of Assam reported in JT 2013(10) S.C. 373. Original accused No. 5-Lalabhai Gabhabhai Rathod in Sessions Case No. 222 of 1998 is acquitted for the offence punishable under section 302 of IPC read with section 135 of B.P. Act. He is, however, convicted for the offence under section 323 of IPC and is sentenced to undergo RI for one year and to pay fine of Rs. 250/-, in default, to undergo further 15 days' SI. However, the sentence to be undergone by him in this offence and for offence under section 135 of B.P. Act is converted into payment of fine of Rs. 5,000/-. As far as other accused persons of both the Sessions Cases are concerned, their conviction is confirmed but the sentence to be undergone by them shall be converted into payment of fine of Rs. 5,000/- (Rupees Five Thousand only) by each accused. The impugned judgment and order dated 27-2-2009 passed in Sessions Case No. 222 of 1998 and also judgment and order dated 27-2-2009 passed by the learned Additional Sessions Judge, FTC No. 3, Bhavnagar, Camp at Botad, in Sessions Case No. 62 of 2003 are accordingly modified to the aforesaid extent. Their bail bond, if any, shall stand cancelled. Remaining part of the impugned judgments is unaltered. Accordingly, both the appeals stand partly allowed. Records and proceedings shall be sent back forthwith to the trial court.