JUDGMENT : Biren Vaishnav, J. 1. The appellants-original accused, 7 in number, have come before this court challenging their conviction, handed out by the learned 6th Additional Sessions Judge, Panchmahal at Godhra by judgment and order dated 17.08.2011. By the aforesaid judgment, the appellants-original accused have been convicted of offences punishable under sections 143, 147, 148, 149 read with section 302 of Indian Penal Code and sections 232, 325, 326, 504, 506(2) and 120(B) of Indian Penal Code. 2. According to the case of the prosecution, on 16.06.2009, Hajabhai Mansurbhai Charan who was the complainant and who subsequently died due to the injuries sustained at the hands of the accused, filed a complaint stating that at around 12 in the afternoon, when he was crossing the road at Rayan Vadi, the accused, 7 in number came in a Challenger jeep. Accused No. 1 - Ravlabhai Karsanbhai Charan was carrying a farsi and the remaining accused Nos. 2 to 7 were carrying sticks in their hands. Accused No. 1 inflicted a blow with the farsi on the head and the remaining six accused indiscriminately inflicted blows on various parts of the body mainly on the back, legs and on the hands. At that point of time, Labhubhai Charan, the younger brother of the complainant saw that he was being attacked. On seeing his younger brother approaching, the accused left lying the complainant injured on the floor. Labhubhai called an ambulance and the injured complainant was shifted to Jahnavi Hospital. Looking to the injuries sustained, the injured was shifted to the Vadodara SSG Hospital. According to the complainant, the motive behind the attack was an incident which happened before a fortnight where the brother of the complainant had a fight with the accused. Based on the investigation carried out pursuant to the complaint so lodged, a charge-sheet was filed at Ex. 15 before the learned Additional Sessions Judge, Godhra implicating the accused for the offences referred hereinabove. 3. Labhubhai Mansurbhai Charan, P.W. 10 who is examined at Ex. 45 is the brother of the deceased Hajabhai Charan. According to his testimony, Hajabhai was working in the forest department. On the date of the incident, this witness was at Vadatalav grazing cattle at around 12 in the afternoon. At that point of time, he saw a Challenger jeep approaching from Pavagadh. 45 is the brother of the deceased Hajabhai Charan. According to his testimony, Hajabhai was working in the forest department. On the date of the incident, this witness was at Vadatalav grazing cattle at around 12 in the afternoon. At that point of time, he saw a Challenger jeep approaching from Pavagadh. Several persons alighted from the vehicle carrying sticks and Farsi and they started attacking his brother. On hearing the shouts, he ran towards the scene, and the attackers on seeing him approaching, ran away from there after leaving the injured who was lying on the floor. He identified all the 7 accused who were present in the court. The injured Hajabhai informed him that accused No. 1 - Ravlabhai Charan had attacked him with a Farsi whereas the other accused whom he named had attacked him with sticks at various parts of the body. This witness further testifies that he clearly saw the accused and could identify them. Since his brother was injured, he called for an ambulance and his brother was shifted to Jahnavi hospital at Halol. He informed his relatives thereafter. His brother had sustained injuries on his head, on the back and both his hands and legs. The doctor at Jahnavi Hospital had given preliminary treatment, sutured the wounds on the head and advised them to shift Hajabhai to the SSG hospital at Vadodara. He did not go to SSG hospital, however, Hajabhai was shifted to Vadodara along with his other relatives. Hajabhai succumbed to his injuries five days thereafter. A complaint was lodged at the police station. 3.1 In his cross examination, the defence has tried to bring out a theory of the road being a busy one, however with a difficult terrain and therefore trying to bring out a doubt regarding the veracity of the witness having seen the attack being carried out. This suggestion was denied by the witness in the cross examination. Questions were put to this witness regarding the criminal antecedents of deceased Hajabhai. In the cross examination this witness has further stated that it is true that Pavagadh police station was at a distance of 10 kms whereas Halol police station was 18 to 20 kms away from the scene of incident. He admitted that the Pavagadh police station though was on way to the hospital they first went to the hospital rather than going to the police station. He admitted that the Pavagadh police station though was on way to the hospital they first went to the hospital rather than going to the police station. After having accompanied his brother to the hospital, according to this witness, he left for Sultanpura and did not accompany his brother and other relatives to the SSG hospital at Vadodara. He admitted in his cross examination that when his brother was attacked, he did lose his consciousness for about ten minutes. He admitted that in his police statement he had not stated that it was only when he went close to his brother that he realised that it was his brother who was the one who was attacked. 4. Varjanbhai Mansubhai Charan, brother of the deceased is examined as P.W. 11 at Ex. 47. According to this witness, when the incident occurred he was at his house. When informed by Labhubhai, P.W. 10 that his brother Hajabhai was attacked he went to the hospital. In the cross examination, this witness has stated that they went to Vadodara hospital at about 3 in the afternoon. He denied a suggestion that his brother was not in a position to speak clearly when the doctor was treating him at Vadodara. He admitted that the police from Pavagadh had come to the Vadodara hospital on being telephonically informed. 5. P.W. 2 is Dr. Dilip Solanki who is examined at Ex. 28. He is the doctor of Jahnavi hospital where according to the prosecution story, the complainant was taken for primary treatment. According to him, this witness is a doctor and in-charge of a private hospital at Halol. Hajabhai was brought to the hospital on 16.06.2009 at around 02.15 in the afternoon. The relatives who brought him to the hospital informed this witness that Hajabhai had sustained injuries due to being attacked by a stick and a farsi. The doctor issued an injury certificate which is at Ex. Hajabhai was brought to the hospital on 16.06.2009 at around 02.15 in the afternoon. The relatives who brought him to the hospital informed this witness that Hajabhai had sustained injuries due to being attacked by a stick and a farsi. The doctor issued an injury certificate which is at Ex. 29 and the injuries sustained by Hajabhai have been elicited in that certificate as under: "(R) Leg: Puncture wound, swelling tenderness over tibia (L) Leg: Swelling deformity tenderness & wound 4 cm long over tibia (R) Hand: Multiple wounds & swelling deformity tenderness over hand and (R) Thumb and little finger & lower end redness (L) Elbow: Swelling deformity tenderness over lower end humerus (L) Wrist: Swelling deformity tenderness over lower end radius (L) Hand: Swelling deformity tenderness over 1st metacarpal : Scalp CLW over frontal region 8 cm long X-Ray finding Leg (R) fracture tibial tubrality, fracture 1/3 fibia (L) (R) Hand fracture proximal phalynx (R) Thumb & little finger with fracture 3rd 4th Metacarpal. Wrist: Fracture lower end radius (L) Hand: Fracture 1st Metacarpal (L) Wrist: Fracture lower end radius (L) Elbow: Fracture intercondylar humerus" 5.1 According to the doctor, looking to the injuries sustained by Hajabhai, he advised the relatives to take the injured to SSG hospital at Vadodara and a certificate to that effect was issued by him. In the opinion of the doctor, the injuries that were sustained were serious and as a result thereof it could possibly result in death of such injured patient. Such injuries could have been caused by the weapons which the doctor identified. 5.2 In his cross examination, this witness admits that on being informed by the relatives of Hajabhai about the injuries that were sustained by Hajabhai, in his opinion since it was a medico-legal case, the relatives were informed that the police should be informed. The relatives, according to the doctor, informed him that the police complaint was lodged. 6. P.W. 12, Dr. Ashaben Gupta who is examined at Ex. 50 is the Medical Officer of the emergency services of the SSG hospital. According to this witness, at around 6 in the evening of 16.06.2009, Hajabhai Mansurbhai was referred to the hospital by Jahnavi hospital at Halol. The patient was conscious and when asked he informed her that he had sustained injuries as a result of being attacked by the accused. According to this witness, at around 6 in the evening of 16.06.2009, Hajabhai Mansurbhai was referred to the hospital by Jahnavi hospital at Halol. The patient was conscious and when asked he informed her that he had sustained injuries as a result of being attacked by the accused. According to the doctor, on 23.06.2009, Hajabhai succumbed to his injuries. The injuries sustained by the deceased were serious. A certificate was issued which was at Ex. 51. 6.1 In her cross-examination, this witness states that since the patient was referred from the Jahnavi hospital, the police was not informed. She was cross examined on the nature of the injuries and she said that the patient could have suffered the cut and lacerated wound as a result of a stick. She admitted in the cross examination that when the condition of the patient was critical, the relatives were informed and the signatures on the form were obtained. 7. Dr. Sutapa Basu, P.W. 1 is examined at Ex. 24. He is the doctor who carried out the post mortem. As a result of the injuries sustained by the injured Hajabhai - the complainant, he succumbed to his injuries on 23.06.2009. According to this witness, when the body was received he found wounds on the head sutured. The external injuries sustained by the deceased have been enlisted in column No. 17 of the post mortem report: "(1) Sutured wound 4 cms in length with 8 stapler stitches in place in Rt. fronto parietal region of head just right & parallel to the midline. (2) Scabbed abrasion over root of the nose 0.5 x 0.5 cm. (3) Contusion purplish green swelling over the back of the Rt. shoulder & outer aspect of Rt shoulder & Rt upper 1/3 of Rt forearm posterolaterally in an area of 22 x 7 with irregular ill-defined margins. (4) There are 5 abrasion are situated in an area of contused area. (a) 3 x 1 cm over right back of shoulder (b) 2.5 x 0.5 cm over right outer shoulder (c) 2 x 0.5 cm over Rt arm posterolaterally over upper part. (4) There are 5 abrasion are situated in an area of contused area. (a) 3 x 1 cm over right back of shoulder (b) 2.5 x 0.5 cm over right outer shoulder (c) 2 x 0.5 cm over Rt arm posterolaterally over upper part. (5) Abrasion 3 x 2 cm over top of Rt shoulder (6) Railroad pattern bruise over the Rt arm m/3 to lower 1/3 posterolaterally 7 x 3 cms adjacent to each other 2 in number (7) Contusion Rt arm anteromedially from axilla to elbow 22 x 8 cm with swelling (8) Scabbed abrasion 3 x 2 cm, Rt forearm postmedially medially 1/3. (9) Sutured wound with prevalent discharge 4 cms long over the back of Rt index finger and back of hand with underlying palpable fracture." 7.1 Evident from the cause of death as reflected in the post mortem report, the complainant died of shock and hemorrhage following multiple musculo-skeletal injuries and their effects. In the opinion of the doctor, the injuries could be sustained as a result of sticks and the injuries were sufficient to cause death. 7.2 In his cross examination, he admitted that the injuries would have been caused by a hard and blunt substance. He admitted that except the injury on the head, the other injuries were not on the vital part of the body. In his cross examination, it comes out that the patient had suffered an infection and the medicines administered were not sufficient enough to treat such an infection. 8. P.W. 14 at Ex. 55 is the Investigating Officer Shri Vijaybhai Barad. In his cross examination, he admits that the investigation was carried out pursuant to the telephonic information received by the police station which was registered in the telephone vardhi and is at Ex. 61. The investigation initially was carried out by one Shanabhai Mulabhai Parmar who was examined as P.W. 16 at Ex. 63. In his cross examination, he admits that in the telephone vardhi at Ex. 61, the name which figured was Naran Karsan and Rana Nana who were not shown as accused. 9. Based on this evidence by the judgment dated 17.08.2011, the learned trial judge convicted the accused of the offences charged with. However, he acquitted the accused for offence under section 135 of the B.P. Act. The assessment of evidence independently brings forth the following set of facts: 10. 9. Based on this evidence by the judgment dated 17.08.2011, the learned trial judge convicted the accused of the offences charged with. However, he acquitted the accused for offence under section 135 of the B.P. Act. The assessment of evidence independently brings forth the following set of facts: 10. The First Information Report was lodged by the victim Hajabhai Mansurbhai Charan on 16.06.2009 at 10 pm at SSG hospital. In his complaint, so narrated to the police officer, he had categorically named the accused, 7 in number who were charge-sheeted for the offence in question. Not only did he name them, but he categorically stated in his complaint about the nature of injuries that he had sustained due to the weapons used by each individual as also the role of each individual in carrying out the attack. On reading the complaint, it also becomes evident that at the time when the accused, 7 in number had come in the Challenger jeep and were attacking him, his brother Labhubhai was present as a result of he grazing cattle at the field. On seeing Labhubhai, the 7 accused left the scene after having caused serious injuries to the complainant Hajabhai. The complaint, therefore, narrates that as a result of the injuries sustained he was shifted by his brother Labhubhai to the Jahnavi hospital at Halol where the doctor after preliminary treatment advised him to be shifted to SSG hospital. An incident preceding the attack was the motive behind the attack. 11. P.W. 10, Labhubhai, the brother of the deceased has been examined at Ex. 45. It is evident on reading the testimony of this witness in its entirety that he also confirms that Hajabhai informed him since he reached the place of the offence on seeing the attackers indiscriminately attacking him. That the accused, 7 in number, had caused the injuries that he sustained by the use of weapons like sticks and farsi. His presence at the scene of the offence was natural as from the narrative it is evident that he was there for grazing cattle at the time when the incident occurred. He shifted his brother to Jahnavi hospital at Halol for preliminary treatment. He called the relatives who accompanied the injured thereafter to Vadodara hospital and he according to his testimony left for Sultanpura. He shifted his brother to Jahnavi hospital at Halol for preliminary treatment. He called the relatives who accompanied the injured thereafter to Vadodara hospital and he according to his testimony left for Sultanpura. The defence has tried to dent the credibility of this witness on the ground that being a brother obviously the witness was an interested witness and therefore his testimony should not be believed. A suggestion made in the cross examination that he was not really an eye witness and could not have seen the incident clearly cannot be of any assistance to the defence. The defence has also tried to bring out in the cross examination the fact that rather than informing the police at the Pavagadh police station or the Halol police station which was at a distance of about 10 and 18 kms respectively, this witness thought it fit that the injured by shifted to the hospital makes the entire prosecution story doubtful. This submission cannot be accepted in view of the fact that it is but natural for a relative to see that the injured is moved to the hospital for treatment which is the prime concern of such relative. It was in light of this urgency that Hajabhai was shifted to Jahnavi hospital for preliminary treatment. When the other relatives came to the hospital, Labhubhai P.W. 10 left for Sultanpura. Learned advocate for the accused, Shri Sunil Patel has tried to impress upon us that this act on the part of this witness should lead us to believe that the version of this witness is doubtful. However, it is evident on reading the testimony of this witness that not only was he present at the scene of offence and his presence was natural, it also comes out from the testimony of this witness that even the complainant was in a position to narrate the incident and name the accused to Labhubhai. 12. The testimony of Dr. Dilip Solanki P.W. 2 at Ex. 28 also indicates that he had issued a certificate at Ex. 29 and according to the history recorded in the certificate, the injured had sustained such injuries as a result of being attacked by farsi and sticks. Dr. 12. The testimony of Dr. Dilip Solanki P.W. 2 at Ex. 28 also indicates that he had issued a certificate at Ex. 29 and according to the history recorded in the certificate, the injured had sustained such injuries as a result of being attacked by farsi and sticks. Dr. Asha Gupta who was examined as P.W. 12 and who was the Medical Officer at the emergency center of SSG hospital where the injured was subsequently shifted on 16.06.2009 also in her testimony clearly indicates that, when admitted, Hajabhai was conscious and clearly revealed the names of the 7 accused. Shri Sunil Patel in his submission has tried to bring in contradictions inasmuch as he points out that two names namely that of Naranbhai and Rana Nana have been mentioned who otherwise were not the accused. When the testimony of this doctor is read in its entirety it cannot be said that the contradictions are substantial enough to discredit this witness. She has categorically stated in her examination-in-chief that the patient was conscious and when being questioned as to how were the injuries sustained he categorically named the accused with the weapon that were used. Merely because there was slight contradiction in the kind of weapons that were used would not in any manner dilute the prosecution story. 13. When the First Information Report is read in conjunction with the testimony of P.W. 10 and that of Dr. Gupta P.W. 12 at Ex. 50, consistency is evident inasmuch as in all the three, the accused have been named. That the attack was carried out and the injuries that the deceased suffered as a result of such injuries is also evident on reading the testimonies of these witnesses. Further, the fact that the complainant, as a result of such injuries, succumbed to same, the narrative in the complaint and the one revealed to his brother Labhubhai P.W. 10 and the nature of oral dying declarations therefore lend credence to the prosecution story. 14. The fact that the First Information Report was lodged 10 hours after the incident on 16.06.2009 at 2200 hours will not be in any manner fatal to the prosecution case. Evidently, as is apparent from the chain of events, Labhubhai shifted the injured Hajabhai to Jahnavi hospital at Halol. On the advice of the doctor at Jahnavi hospital, the injured was moved to the SSG hospital the same evening. Evidently, as is apparent from the chain of events, Labhubhai shifted the injured Hajabhai to Jahnavi hospital at Halol. On the advice of the doctor at Jahnavi hospital, the injured was moved to the SSG hospital the same evening. It is at that point of time, in the SSG hospital, that the complaint was registered. Naturally, therefore if there has been some delay, in registering the First Information Report, it is purely on account of the fact that due to the injuries sustained by the victim, which apparently on reading the testimony of P.W. 1 and 2 are serious in nature as multiple fractures have been caused due to the attack, medical attention was a primary cause of concern rather than lodging the complaint. In our view, therefore, the argument of Shri Sunil Patel, learned advocate for the accused that the First Information Report was lodged after a gap of ten hours need not detain us any further. 15. From the evidence of P.W. 10, it becomes evident that the seven accused had come in a jeep, the motive behind the attack evidently was an incident that occurred 15 days prior to the incident in question. Pre-meditation therefore to carry out the attack was apparent. The injuries were caused by the weapons in hands, sticks and farsi. It has also come out from the evidence that though the attack was carried out by the weapons in hand, the accused fled the scene on seeing Labhubhai approach, leaving behind Hajabhai with serious injuries. The cause of death as is evident from the post mortem report was multiple fractures which the deceased sustained. The incident occurred on 16.06.2009 and the victim succumbed to the injuries on 23.06.2009. Merely because the death occurred 7 days after the attack would not in any manner dilute the gravity of the attack and the intention or the pre-meditation at the hands of the accused. 16. It, however, becomes evident that the body injury was caused with an intention to cause death. That, the accused had no intention of causing death was evident from the fact that they left the deceased only in a seriously injured condition. Looking to the fact that the accused were though a part of the unlawful assembly they could not be attributed with culpability as such with the knowledge of causing such injuries. That, the accused had no intention of causing death was evident from the fact that they left the deceased only in a seriously injured condition. Looking to the fact that the accused were though a part of the unlawful assembly they could not be attributed with culpability as such with the knowledge of causing such injuries. The medical evidence which has come on record indicates that the deceased had suffered multiple fractures. Except the injury on the head, the other injuries were not on the vital part of the body. Therefore, we are inclined to alter the conviction of the accused from sections 302 and 326 of Indian Penal Code to one under section 304 (Part I) of Indian Penal Code. 17. Accordingly, the conviction of the appellants-original accused under section 302 and 326 of the Indian Penal Code vide judgment and order dated 17.08.2011 passed by the learned 6th Additional Sessions Judge, Panchmahal at Godhra in Sessions Case No. 165 of 2009 is altered to one under Section 304 (Part I) of Indian Penal Code. The appellants- original accused are ordered to undergo rigorous imprisonment for a period of ten years under section 304 (Part I) of Indian Penal Code. The amount of fine and sentence in default of fine shall remain unchanged. The judgment and order dated 17.08.2011 is modified accordingly. Rest of the judgment and order shall remain the same. Appeal is allowed to the aforesaid extent. As appellants No. 5 and 7 are on bail, they shall surrender before the jail authorities on or before 31.03.2017. Bail and bail bond shall stand cancelled on surrender of the appellants No. 5 & 7 or on 01.4.2017 whichever is earlier. R & P, if lying with this Court, to be sent back forthwith.