JUDGMENT : K.J. Thaker, J. 1. As both these appeals arise out of the impugned judgment and order, one preferred by the original accused Nos. 1 to 5 against the judgment and order of their conviction and sentence and another by the State against acquittal, both these appeals are heard, decided and disposed of by this common judgment and order. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence dated 29.04.2010 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court No. 3, Mehsana, Campat Visnagar (hereinafter referred to as "trial Court") in Sessions Case No. 155/2008, whereby, the learned trial Judge has convicted the appellants herein - original accused Nos. 1 to 5 for the offence punishable under section 302 read with section 149 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo further imprisonment for six months and has convicted the appellants herein - original accused Nos. 1 to 5 also for the offence punishable under section 324 of the IPC and sentenced to undergo imprisonment for six months and each accused to pay a fine of Rs. 200/-, in default, to undergo further imprisonment of one month, the appellants - original accused have preferred Criminal Appeal No. 772/2010. 2.1 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court, Criminal Appeal No. 1511/2010 was preferred by the State against acquittal of original accused Nos. 1 to 7 but subsequently Criminal Misc. Application No. 6636/2014 in Criminal Appeal No. 1511/2010 was preferred by the State seeking deletion of original accused Nos. 1 to 5 - respondent Nos. 1 to 5 in Criminal Appeal No. 1511/2010 as, though the original accused Nos. 1 to 5 were convicted by the learned trial Court and appeal was to be filed only against the acquittal of original accused Nos. 6 and 7, due to inadvertence, the State had joined original accused Nos. 1 to 5 also in the cause title of Criminal Appeal No. 1511/2010. That the Division Bench of this Court vide its order dated 20.06.2014 permitted the State to delete respondent Nos. 1 to 5 - original accused Nos. 1 to 5 from the cause title of Criminal Appeal No. 1511/2010. 1 to 5 also in the cause title of Criminal Appeal No. 1511/2010. That the Division Bench of this Court vide its order dated 20.06.2014 permitted the State to delete respondent Nos. 1 to 5 - original accused Nos. 1 to 5 from the cause title of Criminal Appeal No. 1511/2010. Therefore, now, Criminal Appeal No. 1511/2010 is required to be considered only qua original accused Nos. 6 and 7. 3. The case of the prosecution is that the husband of the complainant was serving at Surat and the complainant was living with her brother-in-law (Jeth) namely Dahyalal. That on 27.05.2008, at about 9.00 p.m., the complainant went to her farm which was situated at Visnagar Road and at that time Patel Ishwarbhai Ramcharandas was present there and asked the complainant as to why his way has been obstructed to which the complainant suggested to talk to her brother-in-law (Jeth). It is further the prosecution case that on next day at about 12.00 a.m., the said Ishwarbhai Patel, Kalpesh Ishwarbhai Patel and Bhikhiben Ishwarbhai Patel came to the complainant's home and quarreled with Dahyalal and because of the shouts, people gathered from the locality and pacified them. It is further the prosecution case that thereafter the accused went back from there. It is further the case of the prosecution that thereafter in the evening at about 7.30 p.m., when the complainant, Dahyalal, her nephew Nikesh and Ranjit were present at home, the original accused No. 1 having sword, original accused No. 2 having spear, original accused No. 4 having dhariya and original accused No. 5 having iron pipe came and on seeing Dahyalal coming from outside, original accused No. 1 inflicted sword blow on his head and Ranjit, nephew of the complainant tried to save Dahyalal and original accused No. 5 inflicted iron pipe blow on his left hand and then original accused Nos. 6 and 7 also came there and inflicted many fist and kick blows to Ranjit. It is further the prosecution case that on hearing the shouts, Patel Khushiben and Mahendrabhai also came at the place of incident and rescued Dahyalal and Ranjit. That thereafter the injured persons were taken to Visnagar Hospital and then to Civil Hospital, Mehsana. Thereafter the complaint was filed for the offences punishable under sections 323, 324, 147, 148 and149 of the IPC and section 135 of the Bombay Police Act. That thereafter the injured persons were taken to Visnagar Hospital and then to Civil Hospital, Mehsana. Thereafter the complaint was filed for the offences punishable under sections 323, 324, 147, 148 and149 of the IPC and section 135 of the Bombay Police Act. It is further the prosecution case that Dahyalal died on 21.10.2008 because of the injuries sustained by him and hence, section 302 of the IPC was added against the accused persons. 3.1 The appellants herein - original accused came to be arraigned for committing the murder of deceased Dahyalal and causing injuries to Ranjit and after the investigation was complete, the charge-sheet was laid against the present appellants. Thereafter, as the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 155/2008. 3.2 Thereafter, the Sessions Court framed the charge below Exh.7 against the appellants for commission of the offences punishable under sections 302, 324, 323, 147, 148 and 149 of the IPC and section 135 of the Bombay Police Act. The appellants-accused has pleaded not guilty and claimed to be tried. 3.3 To prove the case against the present appellants, the prosecution has examined the following witnesses: Sr. No. Name of witness Exh. No. 1. Dr. Yoginiben Dineshkumar Vyas 16 2. Dr. Pravinkumar Popatlal Soni 20 3. Dr. Dipak Shantilal 24 4. Dr. Prakashbhai Pravinbhai Patva 33 5. Dr. Jyotindra Natvarlal Jhaveri 42 6. Dr. Navinchandra Ambalal Patel 44 7. Dr. Maheshbhai Babubhai Trivedi 49 8. Complainant Kapilaben Amrutlal Patel 51 9. Injured witness Patel Ranjitkumar 53 10. Injured witness Mahendrakumar Nanalal Patel 54 11. Injured witness Nikeshkumar Dahyabhai Patel 55 12. Panch witness Sureshbhai Babulal Patel 56 13. Panch witness Bharatbhai Chunilal Patel 601 14. Panch witness Patel Vijaykumar Babulal 65 15. Panch witness Bharatkumar Vitthalbhai Patel 67 16. Panch witness Patel Sureshkumar Mafatlal 75 17. Panch witness Hinaben Yogeshbhai Mehta 76 18. ASI Pratapsinh Ajabsinh Chauhan 77 19. PI Jagatsinh Kachraji Rathod 82 20. ASI Dilipkumar Madhavrao Ralegaonar 89 21. PSI Kanjibhai Rupjibhai Asari 91 3.4 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused. Sr.No. Documentry evidences Exh.No. 1. Complaint 52 2. Panchnama of place of offence 57 3. Panchnama of recovery of clothes of Patel Dahyabhai as well as his physical condition 91 4. PSI Kanjibhai Rupjibhai Asari 91 3.4 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused. Sr.No. Documentry evidences Exh.No. 1. Complaint 52 2. Panchnama of place of offence 57 3. Panchnama of recovery of clothes of Patel Dahyabhai as well as his physical condition 91 4. Panchnama of production of clothes worm by accused at the time of offence and weapons 68 5. Inquest panchnama 66 6. Order made by Police Inspector to PSO for registering offence 79 7. Depute Order 80 8. Report made by PSO to PI regarding death of injured 81 9. Report given by scientific Officer Investigation, Mehsana 88 10. Certificate given by General Hospital, Visnagar regarding treatment of Dahyabhai 17 11. Certificate given by General Hospital, Visnagar regarding treatment of Patel Kapilaben 19 12. Certificate given by General Hospital, Visnagar regarding treatment of Patel Ranjitbhai 18 13. Certificate given by General Hospital, Mehsana regarding treatment of Dahyabhai 13 14. Certificate given by General Hospital, Mehsana regarding treatment of Patel Ranjitbhai 23 15. Certificate of Cause of death of Dahyabhai Patel given by General Hospital, Mehsana 36 16. P.M. Note of Patel Dahyabhai 34 17. Certificate issued by Dr. Navinbhai regarding treatment of Patel Dahyabhai along with its report 48 18. Medical certificate given by Dr. Navinbhai regarding treatment of Patel Dahyabhai 47 19. Dispatch note regarding sending of Muddamal sent to FSL 92 20. Acknowledgement of receipt of muddamal by FSL 81 21. Letter written by Deputy Director, FSL to Visnagar PI, Shri S.S. Brahmbhatt 85 22. Analysis Report given by Scientific Officer, FSL 86 23. Serological Analysis Report given by Scientific Officer, Serological Department of FSL 87 3.5 The prosecution also brought on record the following documentary evidences so as to prove its case. Sr. No. Documentary evidences Exh. No. 1. Certificate issued by Dr. Navinbhai of Harsh Neurosurgical Hospital 45 2. Report made by Dr. Navinbhai to Police Officer with regard to condition of injured 46 3. Medical certificate issued by Dr. Trivedi of Lions Hospital, Mehsana 50 4. Medical Certificate of Nikeshkumar issued by Medical officer of Ahmedabad Civil Hospital 39 5. Medical Certificate of Mahendrakumar issued by Medical officer of Ahmedabad Civil Hospital 40 6. Opinion regarding cause of death given by doctor 35 7. Copy of Histo-pathological report 47 8. Opinion of Histo-pathological report 48 9. Trivedi of Lions Hospital, Mehsana 50 4. Medical Certificate of Nikeshkumar issued by Medical officer of Ahmedabad Civil Hospital 39 5. Medical Certificate of Mahendrakumar issued by Medical officer of Ahmedabad Civil Hospital 40 6. Opinion regarding cause of death given by doctor 35 7. Copy of Histo-pathological report 47 8. Opinion of Histo-pathological report 48 9. Yadi with regard to sending of Viscera to FSLTaken during P.M. 96 10. Yadi written by I.O. to Lions Hospital, Mehsana 93 11. Yadi written by I.O. to Civil Hospital, Ahmedabad 94 12. Yadi written by I.O. to Civil hospital, Ahmedabad regarding certificate of injured 95 3.6 Thereafter, after examining the witnesses, further statement of the appellants-accused under section 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 29.04.2010 held the present appellants- original accused guilty of the charges levelled against them under sections 302 read with section 149 of the IPC and section 324 of IPC, convicted and sentenced the appellants - accused, as stated above. 5. We have heard learned advocate Mr. Ashish M. Dagli for the original accused and Mr. Himanshu Patel, learned APP for the respondent-State. 6. Having gone through the entire record, it would be relevant to refer to section 299 and section 300of IPC, which reads as under: "299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder. - Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." xxx xxx xxx xxx 304. Punishment for culpable homicide not amounting to murder:- Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life],or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or With imprisonment of either description for a term which may extent to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 7. Shri Ashish Dagli, learned advocate appearing on behalf of the original accused has submitted that the judgment and order of conviction is absolutely illegal, unjust, perverse, improper and contrary to the law and evidence on record and hence, the same is liable to be quashed and set aside. 7.1 It is further submitted that the learned trial Court has not appreciated the documentary evidence and oral evidence on record and has committed a serious error of law in convicting the appellants and therefore, the same is liable to be quashed and set aside. 7.2 It is further submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that the learned trial Court has erred in convicting the appellants as there is no evidence worth the name to convict the appellants for the charges under section 149 of the IPC. 7.2 It is further submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that the learned trial Court has erred in convicting the appellants as there is no evidence worth the name to convict the appellants for the charges under section 149 of the IPC. It is submitted that in view of failure of prosecution to prove charges under section 149 of IPC, conviction under section 302 of the IPC is bad, illegal, unjust, improper and contrary to the law and evidence on record and has requested to quash and set aside the same. 7.3 It is further submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that the learned trial Court has erred in relying upon evidence of PW-8 Kapilaben (Exh.51), wherein the witness has stated that deceased Dahyabhai was attacked by Rohitkumar and he had given sword blow on the head of deceased Dahyabhai. It is further submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that complainant had also deposed that she had not-given time of the incident of 9.00 to 9.30. It is humbly submitted that the cross examination of PW-19 Jagatsinh Rathod who was examined below Exh.82, it comes out that it is not true that complainant had given time of incident as 9.30 and he has written time of incident as 7.30. It is submitted that above depositions clearly shows that complainant is improving her version and her evidence is not believable at all. It is submitted that in the cross examination, the complainant admits that she had not given all the details in the complaint. It is further submitted that the complainant has admitted in her cross examination that deceased was a powerful person and the complainant is improving her version so as to implicate as many persons as possible. It is submitted by Shri Dagli, learned advocate that cross examination of the complainant clearly shows that she had improved entire story so as to implicate all the accused persons and that the deposition of the complainant is not trust worthy and her evidence can not be relied upon. It is submitted by Shri Dagli, learned advocate that cross examination of the complainant clearly shows that she had improved entire story so as to implicate all the accused persons and that the deposition of the complainant is not trust worthy and her evidence can not be relied upon. 7.4 It is further submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that all the eye witnesses are not believable at all and it appears that all of them are brought up so as to falsely implicate the appellants herein and that the learned trial Court has erred in believing so called eye witnesses. 7.5 It is further submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that deceased had died after five months of the date of incident. It is submitted that deceased had taken treatment at various hospitals and under various doctors. It is further submitted that in fact he was recovering well, however it appears that due to not taking proper treatment, he has died. In these circumstances, there can not be any evidence to convict appellants under section 302 read with section149 of the IPC. He has further submitted that the learned trial Court has failed to appreciate the said fact and has passed the impugned judgment and order of conviction. 7.6 It is further submitted that there is discrepancy as regards to time of incident. It is submitted that in the complaint time of incident is said to be 19.30 hours on 27.05.2008 and even the further statements of complainant as well as witnesses were recorded and still at no point of time they say time of incident as 9.30 hours. It is further submitted by Shri Dagli, learned advocate that all the prosecution witnesses first time in their depositions have deposed that alleged incident had taken place on 27.05.2008 between 9.00 to 9.30 hours and the learned trial Court has failed to appreciate this aspect and has erred in convicting the appellants. 7.7 It is further submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that learned trial Court has erred in not appreciating deposition of PW-1 Dr. Yoginiben Vyas who was examined below Exh.16 has deposed in her deposition that she had examined deceased Dahyabhai at 9.45 hours on 27.05.2008. 7.7 It is further submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that learned trial Court has erred in not appreciating deposition of PW-1 Dr. Yoginiben Vyas who was examined below Exh.16 has deposed in her deposition that she had examined deceased Dahyabhai at 9.45 hours on 27.05.2008. It is further submitted that she had deposed that deceased was conscious and he had said that he was given sword blow. It is further submitted that no names of any of the appellants have been given and in fact appellants and the complainant and the deceased all are residing in the same vicinity and they are known to each other, still no names of the appellants at the first point of time before the doctor were given. It is further submitted that learned trial Court has failed to appreciate that in the history before the doctor no names of the appellants were given. It has come on record that appellants and the complainant as well as the injured witness are residing in the same locality and they are known to each other. Still in history before the doctor, no names of the appellants were given. 7.8 It is further submitted by Shri Dagli, learned advocate appearing on behalf of the appellants herein that learned trial Court has erred in not appreciating Medical certificate produced below Exhs.17, 18 and 19. It is submitted that Exh.17 is the Medical Certificate of deceased Dahyabhai Nanabhai Patel. In the said certificate, history is given that assaulted injury on 27.05.2008 before some time. It is also stated that one sword blow was given and four to five persons were there. In the said certificate no names of any appellants has been given. Similarly Exh.18 is the Medical Certificate of Ranjitbhai Dahyabhai Patel who is injured witness and he has given history that on 27.05.2008 he was assaulted with sword and four to five persons were there. In Exh.18 Medical Certificate of Kapilaben Patel, history is given that assaulted injury by giving kick and fist blow, blow on the hand by iron pipe by Rohit Lilachand Patel, Nilesh Ishwarbhai Patel, and other ladies have given kick and fist blows. In Exh.18 Medical Certificate of Kapilaben Patel, history is given that assaulted injury by giving kick and fist blow, blow on the hand by iron pipe by Rohit Lilachand Patel, Nilesh Ishwarbhai Patel, and other ladies have given kick and fist blows. It is required to be noted that Kapilaben Patel - complainant was examined at 10.20 hours on 27.05.2008, still no names of any of the appellants and in fact no weapon is attributed to anyone. It is furthermore submitted that certificate produced below Exhs.21 and 23 does not show name of any of the appellants and no weapon is attributed to any of the appellants. Similarly Medical Certificate produced below Exhs.39 and 40 does not refer to any name of the appellants. 7.9 It is submitted by Shri Dagli, learned advocate appearing on behalf of the original accused that weapons allegedly used in the alleged offence are sent for forensic examination and the report of Forensic Laboratory is produced below Exh.86. It is submitted that the said report states that no blood is found on any of the weapons and no explanation whatsoever is coming forward as to why blood is not found on any weapon. 7.10 Shri Dagli, learned advocate appearing on behalf of the original accused has finally submitted that no offence has been committed. He has submitted that there are contradictory version in the evidences of different witnesses and that the learned trial Court has misread the said evidences. Shri Dagli, learned advocate has in the alternative prayed that the original accused can be said to have committed offence punishable under section 304 (Part-I) or section 326 of the IPC. 8. On the other hand, Shri Himanshu Patel, learned Additional Public Prosecutor has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the learned trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeal deserves to be dismissed. Learned APP has further contended that this is a case of brutal murder, and therefore, no leniency should be shown to the accused since the injuries are on the vital part of the body, hence, no interference is called for and the appeal deserves to be dismissed. 9. Heard the learned advocates appearing for respective parties at length. We have perused and re-appreciated the entire evidence on record. 9.1 Before discussing the evidence of prosecution witnesses, post mortem report requires to be considered and referred to. The column No. 19 of the post mortem report reads as under: "Healed linear fracture. Mid Frontal parietal bone going posterior to (Lt) side of parietal bone. Fragments of bone (L-13 cm, W-2 1/2 cm) missing in fractureline, brain tissues + meninges oedematous all over and yellowish sticky inflammatory liquid present all over brain surfaces". The cause of death as suggested in the post mortem report is, "shock due to head injury". Thus, the injuries sustained by the deceased and the cause of death as mentioned in the post mortem report clearly goes to show that the deceased Dahyalal Patel died of the injuries sustained by him in the incident which occurred on 27.05.2008. 9.2 This takes us to whether the deceased died homicidal death or not. For coming to the conclusion of the said issue, let us examine the evidences of different prosecution witnesses. The evidence on record which is before us, more particularly that of Dr. Dipak Shantilal (PW-3), who is examined at Exh.24, states that when the patient Dahyabhai Nanalal Patel was brought to him on 28.05.2008 in the morning with a history that he was beaten by the accused on 27.05.2008 at 9.25 p.m., he was unconscious. He has further deposed that the patient was primarily treated at the Civil Hospital, Mehsana and then shifted to Ahmedabad Civil Hospital. He has opined that there was a blood contusion on right side of the brain and there was a fracture in the brain from front portion bone to parietal bone. He has further deposed that there were found small pieces of bones in bone which were due to fracture and there was also found blood clot in ethmoid sinus. Thus, from the deposition of the said witness it emerges that there were fractures in his brain. He has further deposed that there were found small pieces of bones in bone which were due to fracture and there was also found blood clot in ethmoid sinus. Thus, from the deposition of the said witness it emerges that there were fractures in his brain. Even as per the radiological report, there were fractures and these fractures could have happened due to hitting of rod or by axe. Even the fracture could have occurred due to Dhariya. 9.3 The gist of the medical certificate of deceased Dahyabhai Patel is that the patient when was brought to the hospital was unconscious and that the deceased was hit by the accused persons with different weapons. The certificate further states that primary treatment was taken at Civil Hospital, Mehsana and emergency tracheostomy was done and there was stiffness in the neck, pnuemocranium was noted. The said certificate further shows that haemorrhagic contusion was noted in right parietal region and fracture noted on frontal bone which extend to involve parietal bone with fracture fragments within brain parenchyma in parietal lobe and ethmoidal hemosinus was also noted and different head injuries were also there. 9.4 The next witness Dr. Prakash Pravinbhai Patva (PW-4), who has been examined at Exh.33, who was Panel Doctor for performing the post mortem on the deceased, has deposed that the injuries on the skull were grave and could cause death. However, in the cross-examination this witness has stated that he did not see any injuries on head that were caused by sharp cutting weapon. He has stated that there were infection in the brain and because of that a person can die natural death also. He has also deposed that if the patient would have been treated properly, the patient would have survived and the death of the patient might have been caused due to myocardial infarction. 9.5 The next witness examined by the prosecution is Dr. Jyotindra Natvarlal Jhaveri (PW-5) (Exh.42). The said witness has deposed in his deposition that the deceased Dahyabhai had taken treatment with him from 06.08.2008 and at the time when the patient was brought to him the patient could not speak and he had given treatment only for his weakness and not for any neurosurgical ailment. The witness Dr. Jyotindra Natvarlal Jhaveri (PW-5) (Exh.42). The said witness has deposed in his deposition that the deceased Dahyabhai had taken treatment with him from 06.08.2008 and at the time when the patient was brought to him the patient could not speak and he had given treatment only for his weakness and not for any neurosurgical ailment. The witness Dr. Navinchandra Ambalal Patel (PW-6) (Exh.44), who also treated the patient during the from 28.05.2008 to 20.06.2008 has also deposed on the similar line as that of the above stated doctors. Dr. Maheshbhai Babubhai Trivedi (PW-7), who is a practicing Neuro Surgeon since 15 years, is examined at Exh.49 wherein he has deposed that he also treated the patient Dahyabhai from 20.06.2008 to 05.10.2008 and on 21.10.2008, Dahyabhai expired. He has deposed that on 07.10.2008, the health of the patient started deteriorating, brain had started getting congested due to inflow of water and air and he died on 21.10.2008. The evidences of all these doctors coupled with the evidence of the complainant Kapilaben Amratlal Patel (PW-)(Exh.51) clearly establishes that the death was a homicidal death. 9.6 The evidence of other witnesses is also relevant for the purpose of deciding the present appeal. The prosecution has examined one Patel Ranjitkumar Dahyalal, son of the deceased as PW-9 at Exh.53. The said witness also identifies the witnesses. The evidence of the complainant Kapilaben, who was an injured eye witness has also been corroborated by the evidence of the said witness Patel Ranjitkumar. The said witness has also stated that Mahendrabhai was being beaten by the accused persons. The evidence of Mahendrakumar Nanalal Patel (PW-10), who is examined at Exh.54 goes to show that original accused No. 1 had given injury by sword and PW-9 Patel Ranjitkumar was also injured. This witness states that hand portion i.e. wooden portion of dhariya was used by original accused Nos. 3 and 4 for inflicting injuries. This fact establishes that all the accused were having common intention and therefore, all the five accused having committed the offence punishable under section 304 (Part-I) of the IPC as the death occurred after 6 months and there was no pre-intention to kill the deceased. However, looking to the injuries and the manner in which incident had taken place, we are unable to accept that the original accused are guilty for the offence punishable under section 326 of the IPC. However, looking to the injuries and the manner in which incident had taken place, we are unable to accept that the original accused are guilty for the offence punishable under section 326 of the IPC. 9.7 It is an admitted position that the incident occurred on 27.05.2008 and the deceased died on 21.10.2008. The cause of the death was because of the injuries and therefore, we concur with the learned trial Court as far as it being a homicidal death. We, therefore, confirm the conviction but alternate it into section 304 (Part-I) of the IPC. 9.8 Now, so far as the Criminal Appeal No. 1511/2010 preferred by the State challenging the impugned judgment and order of acquittal passed by the learned trial Court acquitting the original accused Nos. 6 and 7 is concerned, at the outset it is required to be noted that the learned APP is not in a position to point out any infirmity in the impugned judgment and order acquitting the original accused Nos. 6 and 7. On appreciation of the entire evidence on record, we are of the opinion that there is no evidence found against the original accused Nos. 6 and 7 having participated in commission of the offence. The finding recorded by the learned trial Court acquitting the original accused Nos. 6 and 7 are on appreciation of evidence which are not required to be interfered by this Court in exercise of appellate jurisdiction. 10. In view of the above and for the reasons stated above, present Criminal Appeal is partly allowed. Impugned judgment and order of conviction and sentence dated 29.04.2010 passed by the learned Additional Sessions Judge, (3rd Fast Track Court), Camp at Visnagar, District Mehsana in Sessions Case No. 155/2008 is quashed and set aside insofar as convicting the original accused Nos. 1 to 5 for the offences punishable under section 302 read with section 149 of the IPC and section 324 of the IPC and modified to the extent it is held that the original accused Nos. 1 to 5 are held guilty for the offence punishable under section 304 (Part-I) of the Indian Penal Code, 1860 and sentenced to undergo ten years' R.I. with fine of Rs. 1 to 5 are held guilty for the offence punishable under section 304 (Part-I) of the Indian Penal Code, 1860 and sentenced to undergo ten years' R.I. with fine of Rs. 1000/- each and in default of payment of fine to undergo further six months' R.I. It is reported that accused are in jail for serving the sentence imposed by the learned trial Court. It goes without saying that sentence already undergone by accused during the pendency of the trial and/or present criminal appeal shall be given set off in accordance with law. 10.1 In view of the above and for the reasons stated above, Criminal Appeal No. 1511/2010 is hereby dismissed and the impugned judgment and order acquitting the original accused Nos. 6 and 7 is hereby confirmed.