JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. These appeals arise out of the judgement dated 01.10.2012 rendered by the learned Sessions Judge, Junagadh, in Sessions Case No. 85 of 2012. 2. Briefly stated, the prosecution case was that accused No. 1 Harigiri Sundargiri Goswami Bavaji and his wife Hansaben, accused No. 3 lived with their son Kamleshgiri @ Bogha, accused No. 2 at village Malshram. Right next to their house was the house of the complainant Manjuben. She lived with her husband Jeramgiri Kunvargiri Goswami. On the date of the incident, i.e. on 01.04.2010, at about 8 O'clock in the evening, smoke was coming out from the house of the accused to which apparently, the complainant had complained. The three accused got angry and rushed to the house of the complainant. Accused No. 1 had an iron pipe in his hand, accused No. 2 was carrying an axe, accused No. 3 had a log of wood. They assaulted Jeramgiri. Accused No. 2, Kamleshgiri gave blows on his head with the axe, accused No. 1 assaulted him with the iron pipe, accused No. 3, Hansaben gave a blow on the head of the complainant Manjuben with the log of wood. Jeramgiri died due to such injuries. Upon hearing the shouts, the son of the complainant who was residing right next door and other people from the locality rushed there, upon which, all the three accused went away threatening to eliminate other members of the family also. A charge was, therefore, framed at Exh 10 alleging that the three accused had committed offence punishable under sections 323, 504, 302 read with section 34 of IPC. 3. Manjuben Jeramgiri Goswami, PW 8, Exh 51, was also the first informant. She was the wife of deceased Jeramgiri. She deposed that at the time of the incident, she and her husband lived together. At about 8 O'clock in the evening, they had set down for meal, at which time, smoke started coming out from the house of accused No. 1. His son Kamleshgiri, accused No. 2 stated that no matter what, the smoke will come. Soon the three accused came to her home where they were eating. Accused No. 2 had an axe in his hand with whom he gave one blow to her husband on the head and followed up with few other blows. Her husband fell down. His son Kamleshgiri, accused No. 2 stated that no matter what, the smoke will come. Soon the three accused came to her home where they were eating. Accused No. 2 had an axe in his hand with whom he gave one blow to her husband on the head and followed up with few other blows. Her husband fell down. Accused No. 1 Harigiri had an iron pipe. He hit her husband on the head and on the hand. She tried to intervene, upon which, accused No. 3 Hansaben who had come with the log of wood hit her on the head. When she started shouting, her son Kishoregiri, the neighbours, Naynaben-Kishoregiri's wife and others came upon which, the three accused left using foul language. Accused No. 2 threatened to eliminate all other family members also. Her husband was taken in ambulance to Kodinar Government Hospital where he was declared dead. After that, she had gone to the police station to lodge FIR Exh 52. In the cross examination she was confronted with some of the discrepancies in her deposition as compared to the complaint. The defence particularly highlighted the statement of this witness in her FIR suggesting that the accused had broken into the house to enter. 4. Kishoregiri Jeramgiri Goswami, PW 7, Exh 42 was the son of the complainant. He lived next to the house of the complainant. He deposed that he lived separately from his parents next to their house. At about 8 O'clock in the evening he and his wife were at home. He heard shouts of his father and mother from their house. He and his wife Naynaben rushed to the place and saw that in the kitchen of the house, accused No. 1 and his son, accused No. 2 and his wife, accused No. 3 had entered and all the three were beating his father. Accused No. 1 had an iron pipe, accused No. 2 had an axe, accused No. 3 had a log of wood with which she was beating his father. Accused No. 3 had also hit his mother. Other neighbours also shortly arrived, upon which, the accused left threatening the family. His father was put on a cot and then taken to the government hospital to Kodinar in an ambulance. This witness was cross-examined on the issue as to why he did not file the FIR instead of his mother. Accused No. 3 had also hit his mother. Other neighbours also shortly arrived, upon which, the accused left threatening the family. His father was put on a cot and then taken to the government hospital to Kodinar in an ambulance. This witness was cross-examined on the issue as to why he did not file the FIR instead of his mother. There were certain statements in his deposition which were not part of his police statement with which also he was confronted. 5. Hajabhai Bhikhabhai Hamaliya, PW 9, Exh 54, deposed that on the night of the incident, he had gone to this locality for hiring labourers, at which time, he heard shouts from the house of Jeramgiri. Some fight was going on and noises were coming. He, therefore, went to his house and saw that the accused No. 2 was in the house of Jeramgiri with an axe, his father, accused No. 1 had an iron pipe and his mother, accused No. 3 had a wooden log. These three people were beating up Jeramgiri. He had fallen on the ground. His wife Manjuben was also present. At that time Manugiri Bhikhagiri, Harigiri Rameshgiri and Naynaben and her husband Kishoregiri had also come. These people had put Jeramgiri on the cot. They had called an ambulance and taken him to the hospital. In the cross-examination though he agreed that many people had gathered at the place, denied that because of that it was not possible to see who was causing which injury to whom. 6. Dr Navalkumar Maheshkumar Mishra, PW 6, Exh 31, was the Medical Officer at Community Health Center, Kodinar at the relevant time. He had treated Manjuben, the first informant, on the night of the incident when she had come to him with the police yadi. He found blood clog on the head in a periphery of 3 x 2.5 cm. After preliminary treatment, he had referred her to Civil Hospital at Junagadh. In his opinion, such injury could be caused by hard blunt substance. The patient had given a history of being injured during an assault. This witness had also carried out the postmortem of Jeramgiri. In the PM note, Exh 35, he had recorded the following external injuries: "1. Hematoma 4 x 4 cm over upper parietal-occipital region of head; 2. Incised wound 3 x 0.5 bone deep over posterior upper Lt. parietal region; 3. This witness had also carried out the postmortem of Jeramgiri. In the PM note, Exh 35, he had recorded the following external injuries: "1. Hematoma 4 x 4 cm over upper parietal-occipital region of head; 2. Incised wound 3 x 0.5 bone deep over posterior upper Lt. parietal region; 3. Incised wound 2 x 0.3 cm x 5 cm deep over upper mid Rt parietal region; 4. Incised wound 1 x 0.2 x bone deep over Rt size of upper forehead; 5. Bruise 24 x 5 cm over Rt chest running oblique from Rt shoulder torrid sternum; 6. Incised would 4 x 0.3 x 0.3 cm over lateral mid aspect of Lt forearm; 7. Incised wound 4 x 0.5 x 0.3 cm over Lt mid forearm; 8. Abrasion 6 x 3 cm over distal 2/3rd of anterior Lt FA." 7. Corresponding to such external injuries, he had recorded following internal injuries: "Sub-cutaneous hemorrhage in occipital part of head. Superficial skull bone ceet corresponding the injury No. 2, 3, 4 of Cl 17. Comminuted of skull bone corresponding the injury No. 1 of Cl. 17. Multiple hemorrhage such in brain substances." 8. He had recorded the cause of death as shock due to severe injury to brain. In his deposition he stated that the injuries No. 1, 5 and 8 could be caused by hard blunt substance and injuries No. 2 to 4, 6 and 7 with sharp instrument such as muddamal articles axe, pipe which were shown to him. In the cross examination, he agreed that Manjuben had not given the history of being assaulted by which persons. He stated that injuries No. 5 to 8 were simple injuries which could be caused even by falling down accidentally. 9. Ankurbhai Chhotubhai Patel, PW 12, Exh 70, PSI had carried out the investigation. He narrated before the Court different steps taken by him during the course of search investigation. Through testimony of this witness, the defence could bring on record certain improvements and variations in the depositions of the witnesses as compared to police statement. 10. This, in the nutshell, is the evidence on record. On the basis of such evidence, the learned Judge found accused No. 1 and 2 both guilty of offence punishable under section 302 read with section 34 of IPC. They were sentenced to imprisonment for life. Fine of Rs. 10,000/- each was also imposed. 10. This, in the nutshell, is the evidence on record. On the basis of such evidence, the learned Judge found accused No. 1 and 2 both guilty of offence punishable under section 302 read with section 34 of IPC. They were sentenced to imprisonment for life. Fine of Rs. 10,000/- each was also imposed. Accused No. 3 was convicted for the offence under section 323 of IPC and sentenced to simple imprisonment for one year and fine of Rs. 1000/-. The total fine of Rs. 21,000/- so collected would be paid over to complainant Manjuben. This judgement, accused Nos. 1 and 2 have challenged in Criminal Appeal No. 1732 of 2012 whereas accused No. 3 has filed Criminal Appeal No. 1700 of 2012. The fact that the complainant was living with her husband in a house right adjacent to that of the three accused, there is no doubt. This aspect has come on record through the deposition of complainant Manjuben, PW 8 and her son Kishoregiri, PW 7 and has remained largely unchallenged by the defence. Likewise, the fact that Kishoregiri lived separately but right next to the house of his parents Manjuben and Jeramgiri also is not disputed by the defence. According to the prosecution, on the date of the incident, when Manjuben and her husband Jeramgiri were having their dinner, heavy smoke was coming out from the house of the accused, upon which, there was a quarrel. The three accused rushed to her house and assaulted her husband and her also. Manjuben, therefore, is an important witness. Her presence along with her husband in her own house at about 8 O'clock in the evening was the most natural phenomenon. Before the Court she pointed out that since her husband had complained about the smoke coming out from the house of the accused, the three accused came to her husband. Accused No. 1 had an iron pipe, accused No. 2 an axe and accused No3 was carrying a piece of wood. Accused No. 2 gave one blow on the head of her husband and followed it up by a series of blows. Accused No. 1 gave blows with his pipe, accused No. 3 hit her on the head with the piece of wood. This version is duly corroborated by the medical evidence of Dr. Navalkumar Mishra, PW 6. Accused No. 2 gave one blow on the head of her husband and followed it up by a series of blows. Accused No. 1 gave blows with his pipe, accused No. 3 hit her on the head with the piece of wood. This version is duly corroborated by the medical evidence of Dr. Navalkumar Mishra, PW 6. He had carried out postmortem and had recorded as many as eight injuries on the body of the deceased, four of them on the head, the rest on other parts of the body. He clarified that injury Nos. 5 to 8 could be caused by hard and blunt substance such as iron pipe, the rest with a sharp edged instrument as axe. 11. It is true that there were certain inconsistencies in the statement of this witness in her first information as compared to her deposition before the Court. However, none of these inconsistencies could be stated to be so crucial or fundamental as to shake the very reliability of this witness. For example, in her FIR, she seems to have suggested that the accused broken into the house to enter whereas before the Court, she stated that they entered through the door. Likewise, in the FIR she had referred to a main blow given by the accused No. 2 with axe to her husband whereas before the Court she attributed followed up blows by the same accused. We must, however, evaluate the evidence of this witness from the stand point of a person whose husband was brutally murdered right in her presence barely a couple of hours before her FIR was being recorded. If she, therefore, had made minor discrepancies in so significant aspect of the matter wherefrom a little bit, it would not make her an entirely unreliable witness. If any corroboration was needed to strengthen the testimony of this witness, ample corroboration was available from the materials on record. For example, the medical evidence supported the version of the deceased being assaulted on the head with an axe more than once and the rest of the body also carrying injuries but minor. Such minor injuries could be caused by an iron pipe. The head injuries were largely attributed to the axe. Additionally, we also have the support of other witnesses viz. Kishoregiri, PW 7 and Hajabhai, PW 9. Kishoregiri, the son of the complainant lived right next door. Such minor injuries could be caused by an iron pipe. The head injuries were largely attributed to the axe. Additionally, we also have the support of other witnesses viz. Kishoregiri, PW 7 and Hajabhai, PW 9. Kishoregiri, the son of the complainant lived right next door. Upon hearing the shouts, he had rushed to the place and seen the three accused in the house of his parents and his father was bleeding. This witness might have claimed to have seen the entire incident, a version we may not totally believe. From the evidence of Manjuben it appears that the people from the surrounding area or neighbourhood reached the site after the assault had taken place. This is also to be expected since from Manjuben's deposition, it appears that without any arguments, the accused started assaulting her husband. The entire assault could have lasted not more than a few seconds or at best, a couple of minutes. However, in the neighbourhood where there were many houses, the neighbours hearing the shouts during such assault is the most natural phenomenon. If Kishoregiri, therefore, rushed to the house of his father sensing that something untoward was happening, his conduct was perfectly natural. Kishoregiri, PW 7, thus would have reached the place when the assault was actually still going on or immediately thereafter. Even if we therefore do not place much reliance on the deposition of this witness in connection with which accused used which weapon and gave what kind of blow to the deceased on which part of the body, his statement that these three accused were present in the kitchen of the house of his parents with an iron pipe, an axe and a wooden log respectively is an important piece of evidence strongly corroborating the version of his mother. In addition to the deposition of Kishoregiri, PW 7, we also have on record the deposition of Hajabhai, PW 9. He had come to the area to hire labourers. Upon hearing the shouts, he had also gone to the house of Manjuben. He had also seen the presence of three accused with the weapons respectively attributed to them. 12. The deposition of Manjuben thus gets ample corroboration from the evidence on record to summarize what Manjben stated before the Court was in consonance with the medical opinion of Dr. Navalkumar, PW 6. He had also seen the presence of three accused with the weapons respectively attributed to them. 12. The deposition of Manjuben thus gets ample corroboration from the evidence on record to summarize what Manjben stated before the Court was in consonance with the medical opinion of Dr. Navalkumar, PW 6. The presence of three accused with the weapons in their hands in the house of the complainant was supported by PW 7 and 9 also. We therefore, have no hesitation in accepting the version of Manjuben that accused No. 2 had given multiple axe blows on the head of her husband and that accused No. 1 had given blows with the pipe on the body of the deceased. Her version that she herself was assaulted by accused No. 3 with wooden log also gets support from the medical evidence. Dr Navalkumar Mishra, PW 6 had treated her on the night of the incident and referred her to further treatment to the hospital at Junagadh. 13. This leaves us to the final analysis of which offence which accused could be stated to have committed. Insofar as accused No. 2 is concerned, he had given the fatal blows to the deceased on his head with an axe. Consider the nature of injury caused by him, the weapon used and the fact that the blows were given on the vital and vulnerable part of the body, we have no hesitation in confirming the view of the Trial Court that this accused had committed an offence of murder. It may be that he had not given such blows with an intention to cause death, nevertheless, he can be stated to have assaulted the deceased with the intention of causing such bodily injury as he knew to be likely to cause death. His conviction and sentence therefore, shall have to be upheld. 14. Insofar as accused No. 1 is concerned, however, the evidence that can be relied upon would suggest that he had used an iron pipe but given the blows to the deceased not on his head but on other parts of the body. If one peruses the FIR Exh 52, the complainant had referred to a blow given by the accused No. 1 to the deceased on his hand. The charge Exh 10 also referred to this blow. If one peruses the FIR Exh 52, the complainant had referred to a blow given by the accused No. 1 to the deceased on his hand. The charge Exh 10 also referred to this blow. Even though Manjuben PW 8 in her deposition had attributed more blows to this accused, Dr. Navalkumar, PW 6, agreed that injuries No. 5 to 8 were simple injuries. Some of them even would be caused if the person accidentally fell down. It is true that the doctor attributed the first injury on the head with a blunt substance. However, in absence of further reliable evidence, we would not co-relate this injury to the blow given by accused No. 1. Such an injury could also be on account of the blunt side of the axe being used. Be that as it may, so far as reliable evidence on record is concerned, what get established against accused No. 1 is that, he used an iron pipe to hit the deceased on the body and the injuries were not serious. Further, there was no evidence that accused Nos. 1 and 2 shared a common intention. By all accounts, the incident took place on the spur of the moment. The deceased seems to have complained to the family of the accused about smoke coming out from the house at a time when the deceased and his wife were having dinner. The three accused, therefore, rushed to the house of the complainant and assaulted the deceased. There was no prior meeting of mind, no sharing common intention was demonstrated from the record. The accused No. 1 therefore cannot be held vicariously liable for the action of accused No. 2 with the aid of section 34 of IPC. 15. Insofar as accused No. 3 is concerned, the fact that she had given one blow with a piece of wood on the head of the complainant has been duly established through the evidence of Manjuben and duly corroborated by Dr. Navalkumar Mishra, PW 6. However, the injury was rather simple in nature. The incident took place more than 07 years back. There is nothing to suggest that this accused has any criminal antecedents. We would, therefore, after reducing the sentence, grant the benefit of probation. 16. In the result, the appeals are disposed of with following directions: "1. Conviction and sentence of accused No. 2 is upheld. The incident took place more than 07 years back. There is nothing to suggest that this accused has any criminal antecedents. We would, therefore, after reducing the sentence, grant the benefit of probation. 16. In the result, the appeals are disposed of with following directions: "1. Conviction and sentence of accused No. 2 is upheld. Criminal Appeal No. 1732 of 2012 qua him is dismissed. 2. Conviction of accused No. 1 is reduced from that under section 302 read with section 34 of IPC to section 323 of IPC and is sentenced to undergo simple imprisonment of six months. Direction for payment of fine and default sentence shall remain unchanged. Criminal Appeal No. 1732 of 2012 qua him is, therefore, partly allowed. 3. Conviction of accused No. 3 for offence under section 323 is confirmed. We are informed that she has undergone total imprisonment close to four months including set off period. Her sentence is reduced to the period already undergone. Direction for fine shall remain unchanged. Criminal Appeal No. 1700 of 2012 is allowed in part. 4. Both the criminal appeals are disposed of in above terms. Bail bonds of accused Nos. 1 and 3 stand discharged. R & P to be transmitted to the concerned trial court."