JUDGMENT : K.S. Jhaveri, J. 1. Both these appeals are preferred against the judgment and order dated 21.03.2011 passed by learned Additional Sessions & Fast Track Judge, Gandhinagar, in Special Atrocity Case No. 11 of 2008, whereby all the accused were convicted for offence punishable under Section 302 read with Section 34of the Indian Penal Code (for short, "IPC") and ordered to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/- and in default of payment of fine, accused were ordered to undergo further rigorous imprisonment for six months. Accused No. 1 was also convicted for the offence punishable under Section 135 of the Bombay Police Act and ordered to undergo simple imprisonment for six months and to pay fine of Rs. 100/- and, in default of payment of fine, accused No. 1 was ordered to undergo further simple imprisonment for seven days. However, the accused were acquitted for the offence under the Atrocities Act. Feeling aggrieved by the impugned judgment, the accused have preferred present appeal before this Court. 2. The facts in brief giving rise to the filing of present appeal are as under:- "2.1 On 19.10.2000, at about 9 a.m., when the complainant was going for computer class, his younger brother, Yogesh, told him that when they went to see garba and he fell down while doing bamboo dance, accused No. 1 started laughing and when he was asked to stop, he got angry and started using abusive language and a scuffle took place. Thereafter, when younger brother of the complainant went to see garba at Jantanagar, accused No. 1 came with some persons to fight with him. Thereafter, the accused called the complainant for compromise. When they were crossing the road, accused No. 1 caught hold of brother of the complainant and accused Nos. 2 and 3 started beating him. Accused No. 1 attacked brother of the complainant with a knife and caused injury on his neck and also on his back. Since the injured raised shout, the accused ran away from the scene of offence. In the incident, the brother of the complainant became unconscious and when he was taken to the hospital, he was declared dead. With these allegations, the complainant gave complaint against the accused persons. Since the injured raised shout, the accused ran away from the scene of offence. In the incident, the brother of the complainant became unconscious and when he was taken to the hospital, he was declared dead. With these allegations, the complainant gave complaint against the accused persons. Since the deceased was belonging to scheduled caste, offence under Sections 3 [1] [10] and 3 [2] [5] of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (For short, "Atrocity Act") was also alleged against the accused persons. 2.2 On complaint being filed, investigation was carried out and the accused came to be arrested. At the end of investigation, charge-sheet was filed against the accused persons before the Magistrate Court. Since the offence was exclusively triable by the Court of sessions, the case was committed to Sessions Court and, ultimately, trial was initiated and charge came to be framed. The accused pleaded not guilty and claimed to be tried. 2.3 During the trial, the prosecution had examined following witnesses:- S. No. Name Exhibit 1. Dr. Manojkumar Bhalabhai Patel 24 2. Kirtibhai Dahyabhai Parmar 28 3. Brijesh Mahendrabhai Vaghela 33 4. Rajnikant Amrutbhai Jadav 36 5. Bhaveshkumar Govindbhai Parmar 47 6. Nareshkumar Kantilal Solanki 55 7. Gunjankumar Pradipbhai Vaghela 58 8. Siddharth Rameshbhai Solanki 59 9. Dashrathbhai Amratbhai Desai 78 10. Vasantbhai Laljibhai Jadav 86 11. Jayantilal Arjundas Pandya 95 12. Kishanbhai Kalidas Parmar 99 13. Manojkumar Lallubhai Ninama 110 2.4 The prosecution had also produced and relied upon following documentary evidence:- S. No. Description Exhibit 1. Yadi for postmortem of the deceased 25 2. PM Note 26 3. Panchnama of place of offence 31 4. Discovery panchnama 35 5. Inquest panchnama 37 6. Complaint 48 7. Panchnama of physical condition of the accused 67 8. Certificate of treatment of accused, Rajendrasinh 71 9. Certificate of treatment of accused, Umesh Navdhari 72 10. Certificate of treatment of accused, Umesh Pravinbhai 73 11. Case papers of accused Rajendrasinh 74 12. Case papers of accused Umesh Navdhari 75 13. Case papers of accused Umesh Pravinbhai 76 14. Panchnama of seizure of clothes of the deceased 79 15. Copy of extract of register of caste certificate of Yogesh 87 16. Copy of case certificate of deceased Yogesh 88 17. Report of PSI for registering the offence 96 18. Copy of the notification 111 19. Letter written by FSL officer to police officer 113 20. Panchnama of seizure of clothes of the deceased 79 15. Copy of extract of register of caste certificate of Yogesh 87 16. Copy of case certificate of deceased Yogesh 88 17. Report of PSI for registering the offence 96 18. Copy of the notification 111 19. Letter written by FSL officer to police officer 113 20. Muddamal report of FSL 114 21. Serological analysis report regarding muddamal 115 22. Order for carrying out investigation made by SP Gandhinagar 116 23. Muddamal dispatch note 117 24. Receipt regarding muddamal being received by FSL 118 2.5 At the end of trial, the Court below recorded further statements of accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeals are preferred before this Court." 3. Mr. Yogesh Lakhani, learned Senior Advocate for the appellant of Criminal Appeal No. 598 of 2011-original accused No. 1 has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that the incident has happened in the spur of the moment and there was no pre-planning on the part of the accused. He further submitted that for the incident in question, cross-complaints were filed. He submitted that the accused was not the aggressor and he acted in exercise of his right to self-defence and it can be said that he has acceded his right of self-defence. He further submitted that it is alleged by the prosecution that the deceased had called his brother by making a telephone call at the time of the incident, however, no call details in this regard are produced on record. He further submitted that, as per the case of the prosecution, the complainant was at a distance of 1 km. and he reached the scene of offence immediately, but if we look at the evidence of the doctor, it is clear that the deceased was lying in injured condition at least for five to ten minutes, therefore, it seems that the evidence of the complainant is not reliable. and he reached the scene of offence immediately, but if we look at the evidence of the doctor, it is clear that the deceased was lying in injured condition at least for five to ten minutes, therefore, it seems that the evidence of the complainant is not reliable. He further submitted that the story of the Gunjan and Ravi taking the deceased to the hospital is also not believable, as there were no blood stains on the way to the hospital from the scene of offence and the clothes of these witnesses were also not blood stained. He further submitted that considering the evidence on record, since the deceased was lying on the road for ten minutes, it clearly established that there was no one present along with him and it cannot be said that the injuries caused to the deceased were caused by the accused. He further submitted that even the blood sample of the accused was not taken for analysis and this fact is admitted by the investigating officer in his deposition. He further submitted that though the incident had occurred at a public place, no independent witnesses have been examined by the prosecution in support of its case. He further submitted that the witnesses examined by the prosecution are interested witnesses, as they are either related or having intimacy with the deceased or the complainant. He submitted that considering all these aspects, accused No. 1 is required to be acquitted by setting aside the impugned judgment. 4. Mr. Hemant Raval, learned advocate appearing for accused Nos. 2 and 3, appellants in Criminal Appeal No. 558 of 2011 has adopted the submissions made by learned Senior Advocate, Mr. Lakhani. He further submitted that presence of accused Nos. 2 and 3 is not proved beyond reasonable doubt nor any weapon or injury is attributed to these accused persons. He further submitted that even accused Nos. 2 and 3 have also received injuries in the incident, therefore, it can be said that they acted in self-defence and they cannot be convicted for an offence punishable under Section 302 of IPC. He, therefore, prayed to allow Criminal Appeal No. 558 of 2011. 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 is just and proper and she has supported the conviction recorded by impugned judgment. He, therefore, prayed to allow Criminal Appeal No. 558 of 2011. 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 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. She has taken us through the documents at Exh. Nos. 71, 72 and 73 and submitted that from these documents, presence of all the three accused at the scene of offence is proved. She further submitted that for the offence in question cross-complaints have been filed, therefore also, presence of the accused persons is not in dispute. She further submitted that since there was a previous quarrel and the accused attacked with knife, it cannot be said that the accused has acted in self-defence and it can be said that the accused have committed murder of the deceased with pre-planning. In support of her submission, she has relied upon the decision of the Apex Court in the case of Mano Dutt and Another v. State of Uttar Pradesh report in (2012) 4 SCC 79 , wherein the Honourable Apex Court has observed as under:- "44. Even where there are less than five persons who are accused, but the facts and the evidence of the case is convincing as in the present case, where the accused had returned to the place of occurrence with complete preparedness and after giving lalkar had attacked the deceased there, they have to be held liable for commission of the crime (Refer : Kartar Singh v. State of Punjab, AIR 1961 SC 1787 . 45. The learned counsel for the respondent-State also relied upon the judgment in the Yunis @ Kariya v. State of M.P. (2003) 1 SCC 425 to contend that an overt act on the part of one of the accused is immaterial when his presence, as part of the unlawful assembly, is established. This case was for an offence under Section 302/149 IPC and, therefore, would not squarely apply to the present case as it has been held by the Court that the accused was not constituting an unlawful assembly of five or more persons. This case was for an offence under Section 302/149 IPC and, therefore, would not squarely apply to the present case as it has been held by the Court that the accused was not constituting an unlawful assembly of five or more persons. However, it cannot be ignored that the extent of participation, even in a case of common intention covered under Section 34 IPC would not depend on the extent of overt act. If all the accused have committed the offence with common intention and inflicted injuries upon the deceased in a pre-planned manner, the provisions of Section 34 would be applicable to all. 46. The learned counsel had also relied upon the judgment of this Court in Marimuthu & Ors. v. State of Tamil Nadu (2008) 3 SCC 205 to contend that this was a fight at the spur of the moment and the conviction of the appellants could be converted into that under Section 304, Part I of the IPC. This judgment is distinguishable on facts and has no application to the present case. It was not a dispute which arose at the spur of the moment as the evidence clearly shows that the accused had gone again to the site in question with a common intention and with the preparedness to assault and even kill the deceased. Even the site plan, Ex. Ka9 clearly shows that all these places, i.e. the land on which the deceased was putting the earth, the house of Fateh Mohd., the house of the accused and that of the deceased were all nearby. This is even fully corroborated by the oral evidence. Thus, on the basis of the documentary and ocular evidence, we are fully satisfied that the prosecution has been able to prove its case beyond reasonable doubt and has brought home the guilt of the accused under Section 302 read with Section 34 IPC." 5.1 She, therefore, submitted that the learned trial Judge has not committed any error while imposing the sentence on the accused and, therefore, no interference is called for in the present appeals. 6. We have heard Mr. Yogesh Lakhani, learned Senior Advocate for accused No. 1 and Mr. Hemant Raval, learned advocate for accused Nos. 2 and 3 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. 6. We have heard Mr. Yogesh Lakhani, learned Senior Advocate for accused No. 1 and Mr. Hemant Raval, learned advocate for accused Nos. 2 and 3 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. From the postmortem report of the deceased, it is clear that the cause of death of the deceased was shock due to hemorrhage. From the deposition of Dr. Manojkumar Bhalabhai Patel, PW-1, Exh. 24, it is clear that there were stab wounds on the body of the deceased. It is also deposed by the doctor that the injuries in question were sufficient to cause of a person in the ordinary course of nature. From the deposition of the complainant, Bhavesh Parmar, Exh. 47, it is clear that he has supported the case of the prosecution and narrated the incident. Not only that Gunjan Pradipbhai Vaghela, who allegedly took the deceased to the hospital, has also supported the case of the prosecution. Not only that, in the present case, cross-complaints are filed, therefore, presence of the accused at the scene of the offence is also proved. However, considering the medical certificates produced at Exh. 71, 72 and 73, it is clear that the accused have also received injuries in the incident. It is also clear that the accused were also attacked with knife, stump and stick. Considering these certificates, it can be said that the accused might have acted in self-defence. Therefore, having regard to the circumstances of the case, it is difficult to hold that the appellants intended to cause death. Under these circumstances, in our opinion, the ends of justice would be met if the conviction of the appellants under Section 302 IPC is set aside and the conviction of the appellants deserve to be altered to one Section 304 Part-I IPC with the punishment of imprisonment for ten years. 7. For the foregoing reasons, both these appeals are partly allowed. 7. For the foregoing reasons, both these appeals are partly allowed. The impugned judgment and order dated 21.03.2011 passed by learned Additional Sessions & Fast Track Judge, Gandhinagar, in Special Atrocity Case No. 11 of 2008 is modified and, instead of offence punishable under Section 302 read with Section 34 of IPC, the accused are convicted for the offence punishable under Section 304, Part-I of IPC and ordered to undergo rigorous imprisonment for a period of ten years, without disturbing the order regarding fine and default sentence. Remaining part of the impugned judgment shall remain unaltered. The period of sentence already undergone by the accused be given set off to them. Accused No. 1 may also be given benefit of remission in accordance with law. It is reported that accused Nos. 2 and 3 are on bail, therefore, accused Nos. 2 and 3 are directed to surrender before the jail authorities on or before 29th July 2016 to serve the remaining period of sentence. Bail bond, if any, of the accused stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.