JUDGMENT : Biren Vaishnav, J. 1. Criminal Appeal No. 567 of 2012 has been filed at the instance of original accused No. 1 and Criminal Appeal No. 357 of 2015 has been filed by original accused No. 3. Initially, three accused including accused No. 2 Maganbhai Halabhai Pargi, were charged for the offences punishable under sections 302 and 114 of Indian Penal Code. Pending trial, original accused No. 2 died. Having been convicted of the offences under sections 302 and 114 of Indian Penal Code vide judgment and order dated 11.06.2011, original accused Nos. 1 and 3 have therefore preferred the present appeals. They have been sentenced to rigorous imprisonment for life and imposed fine of Rs. 5,000/- under section 302 of Indian Penal Code. No separate sentence has been imposed under section 114 of Indian Penal Code. 2. According to the case of the prosecution, on 27.09.2009, the accused Nos. 1, 2 and 3 armed with stick, dharia and stick respectively attacked Sardarbhai Dindor while he was proceeding to a diary to deliver the cans of milk that he was carrying on his motor-cycle. He was intercepted by the three accused. Accused No. 2 Maganbhai Pargi who was carrying a dharia hit him on his head as accused Nos. 1 and 3 with sticks in their hands attacked Sardarbhai on his hands and legs as a result of which he sustained fractures. The motive attributed to the killing of Sardarbhai was that the deceased's wife was a Deputy Sarpanch and the wife of the accused was a Sarpanch and election disputes in the past had caused bitterness inter se. They were charged for the offences under section 302 read with section 114 of Indian Penal Code. The First Information Report which was lodged by Kamliben - Sardarbhai's wife is at Ex. 8. According to the version in the First Information Report, at around 5 in the morning, her husband Sardarbhai had left for the diary with milk cans on a motor-cycle. 15 minutes after he left, she received a call on her mobile from one jeep driver. The caller informed her that Sardarbhai, her husband was lying on the road and was bleeding. He informed the wife that since he knew Sardarbhai, he was informing her of the incident. 15 minutes after he left, she received a call on her mobile from one jeep driver. The caller informed her that Sardarbhai, her husband was lying on the road and was bleeding. He informed the wife that since he knew Sardarbhai, he was informing her of the incident. On receiving such call, Kamliben - the complainant accompanied by her father-in-law and son Hitesh left for the place where Sardarbhai was lying which was near a dispensary on the road. They found Sardarbhai lying on the road, bleeding. He had sustained injuries on the left side of the head and on the front. He also had sustained injuries on his hand and on the legs below the knee. Her husband was conscious and he informed them that Maganbhai Halabhai Pargi - accused No. 2, Chaturbhai Koyabhai - accused No. 1 and Mangalabhai Koyabhai - accused No. 3 had attacked him with dharia and sticks and that he had sustained injuries as a result of being so attacked by the accused. According to the version in the First Information Report, all the three i.e. the wife, son and father of Sardarbhai carried him to the government hospital where the doctor declared him dead. The motive, according to the complainant, was an election dispute of the Gram Panchayat. According to the complainant, Maganbhai's wife Leela was the Sarpanch whereas she was the Deputy Sarpanch which was the cause of this bitterness. According to the complainant, the incident occurred at 05.15 in the morning. 3. Kamliben was examined as P.W. 1 at Ex. 7. She in her testimony stated that at around 5 in the morning, her husband with milk cans was going to Khajuria diary which is at a distance of about 1½ kms. He was going on a motorcycle. 15 minutes after he left, one jeep owner called her on the phone informing her that Sardarbhai was lying bleeding on the road. This witness further stated that on receiving such call, she along with her father-in-law and son Hitesh immediately went to the place where Sardarbhai was lying on the road. Her husband was conscious and he informed them that he had sustained injuries on the head and the hands and on the legs on being attacked by the three accused with sticks and dharia. Chaturbhai and Mangalabhai were carrying sticks whereas Maganbhai was carrying dharia. Her husband was conscious and he informed them that he had sustained injuries on the head and the hands and on the legs on being attacked by the three accused with sticks and dharia. Chaturbhai and Mangalabhai were carrying sticks whereas Maganbhai was carrying dharia. On being so informed, Sardarbhai was shifted by ambulance to government hospital at Dahod where the doctor declared him dead. This witness further in her examination-in-chief stated that Leelaben, wife of Maganbhai was the Sarpanch whereas she was Deputy Sarpanch. The motive behind the killing was obviously this acrimony as a result of the election disputes. She confirmed of having lodged the complaint at Ex. 8. 3.1 This witness has been cross examined. She agreed that there were differences between the families of Maganbhai and theirs and therefore Maganbhai's wife being the Sarpanch and she being the Deputy Sarpanch of the Gram Panchayat, she had not been able to win the election for Sarpanch for the past 20 to 25 years. She agreed to the suggestion that at around 4 to 6 in the morning, there are people on the road to the diary. She admitted that since she received the call on her mobile they left for the place where her husband was lying and they found him lying in a pool of blood. The defence has tried to bring out a case and suggested that there were hospitals close to the vicinity of the incident and that the hospital at Jhalod was about 20 to 25 kms which was a private hospital. She admitted that they had taken Sardarbhai directly to Dahod hospital. 4. Parthingbhai Dhindor, father of the deceased Sardarbhai has been examined as P.W. 2 at Ex. 9. Even this witness in his examination-in-chief stated that his son Sardarbhai left at 5 in the morning. 15 minutes after he left, they received a call and were informed that Sardarbhai was lying injured on the road. On receiving this call, he along with his daughter-in-law and his grandson left for the place. His son had sustained injuries on the head and on the hands. This witness further stated that his grandson Hitesh specifically asked Sardarbhai as to how did he sustain injuries when Sardarbhai categorically told him that the three accused were standing on the road when he was on his motorcycle. His son had sustained injuries on the head and on the hands. This witness further stated that his grandson Hitesh specifically asked Sardarbhai as to how did he sustain injuries when Sardarbhai categorically told him that the three accused were standing on the road when he was on his motorcycle. Maganbhai was wielding a dharia and the other two were carrying sticks and all the three started hitting him. Sardarbhai was fully conscious at the time when he narrated the incident. All of them then shifted Sardarbhai to Civil hospital, Dahod where the doctor declared him dead. The motive of the incident also according to this witness is the election rivalry between the two families and therefore according to this witness his son was done to death because of this bitterness between the two families. This witness stated that the accused Maganbhai had died during the pendency of the investigation. He identified the clothes of his son. 4.1 In the cross examination, he admitted that the road in the morning would be traversed by the milk owners who would go to the diary to deliver milk. The diary was about 1½ kms away from his house. He denied the suggestion that his son was not in a position to speak. He further agreed that he took his son to the government hospital rather than taking him to Fatehpura or Jhalod clinics. 5. P.W. 8 - Babubhai Pandor is a jeep driver who is examined at Ex. 26. He, however, turned hostile. In his examination-in-chief, this witness stated that he drives a jeep. On the date of the incident, when he was travelling in his jeep, he had seen a motorcycle lying on the road and saw Sardarbhai also lying on the road having sustained injuries. He was accompanied by his cleaner Kanjibhai Somabhai. Since Kanjibhai Somabhai knew Sardarbhai, he called Sardarbhai's wife from his mobile. Sardarbhai's father and son therefore came along with his wife where Sardarbhai was lying. 5.1 In his cross examination, the defence has tried to bring out a case about accidental death by putting suggestions on the condition of the road to suggest that the injuries sustained by the deceased was due to a fall from the motorcycle due to the conditions of the road. 6. The cleaner of the jeep Kanjibhai Somabhai has been examined as P.W. 9 at Ex. 27. 6. The cleaner of the jeep Kanjibhai Somabhai has been examined as P.W. 9 at Ex. 27. According to this witness, Sardarbhai was lying injured on Dugar road. Sardarbhai gave his telephone number to Babubhai, P.W. 8. On being instructed by Sardarbhai, Babubhai called up on the mobile number given by Sardarbhai. Babubhai spoke to Sardarbhai's son. On being so informed, Sardarbhai's father, son and wife came to the place where Sardarbhai was lying. According to this witness, the labourers were sitting in the jeep and were asked to get down. Sardarbhai along with the family was shifted to the Fatehpura government hospital. 6.1 This witness was cross examined. In the cross examination, this witness stated that after Babubhai called Sardarbhai's son on his mobile, the father, son and wife of Sardarbhai arrived at the scene within 15 minutes of the call being made. Babubhai had called an ambulance but since the ambulance did not arrive, Sardarbhai was put into the jeep and the family took him to government hospital. This witness in his cross examination further stated that till the moment Babubhai informed Sardarbhai's family on telephone and till the family arrived at the scene of the incident, Sardarbhai did not utter a word. 7. Dr. Kesri Kamleshkumar Jagatprasadsinh is P.W. 14 who is examined at Ex. 35. He is the doctor who carried out the post mortem. The injuries that the deceased Sardarbhai sustained have been set out in his testimony. On external examination of dead body, the following injuries were found: "- At the anterior part of head, 1½ " x ½ " (deep) wound - At left parietal area of head, 2½ " x 1" (deep) wound (lacerated wound) - Fracture of right Arm bone - 5" below shoulder joint skin deep; - At the point of IInd darkened due to massive hamatoma; - At the back of left elbow joint, 2" x 1" (deep) wound skin deep; - There was fracture of left leg bones below knee joint; - Fracture of right leg bones approximately 3" above ankle joint." 7.1 In the opinion of this doctor, the cause of death was due to bleeding as a result of shocks suffered due to multiple injuries all over the body. All the injuries were ante-mortem. All the injuries were ante-mortem. Such injuries, according to the doctor, could have been caused by dharia and sticks and the injuries if taken together were sufficient to cause death. 7.2 In the cross examination, this doctor has stated that all the injuries were in the nature of lacerated wounds. However, the injury on the head was a result of a sharp cutting instrument. The defence has tried to bring out a case through the cross examination of this witness and the doctor has been cross examined on the question of whether such injuries could have been sustained as a result of a fall from the motorcycle. Suggestions have also been put to the doctor whether the patient could suffer concussion or lose consciousness as a result of having sustained such injuries. The doctor has opined that it is not always possible that as a result of such injuries the victim would lose consciousness or be incoherent in his speech. He has listed out several causes for a patient losing consciousness. Suggestions have also been put to bring out a case that the body was lying at the scene of the incident for more than 8 to 10 hours. 8. P.W. 3, Veljibhai Jethabhai Mal at Ex. 13 is the panch witness to the discovery of the stick at the instance of accused No. 1. He, however, has turned hostile. The panchnama is at Ex. 14. Through the testimony of the Investigating Officer, the execution of this panchnama has been proved more so in the examination-in-chief also. The prosecution witness admits his signatures in the panchnama. The panchnama at Ex. 14 records that accused No. 1 led the police party to a field and from an isolated place at the field he found the stick which was used to cause the injuries that the deceased sustained. However, no blood stains were found on the stick. 9. P.W. 4 also is the panch witness to the same panchnama at Ex. 14. He also, however, has turned hostile. Ex. 17 is the discovery panchnama of the stick used by accused No. 3. P.Ws. 5 and 6 of this panchnama though have turned hostile, through the testimony of the Investigating Officer, the panchnama is proved. Both the witnesses though having turned hostile have admitted their signatures to the panchnama. 14. He also, however, has turned hostile. Ex. 17 is the discovery panchnama of the stick used by accused No. 3. P.Ws. 5 and 6 of this panchnama though have turned hostile, through the testimony of the Investigating Officer, the panchnama is proved. Both the witnesses though having turned hostile have admitted their signatures to the panchnama. Mangalabhai Koyabhai Pargi - accused No. 3 led the police party to an isolated house and from the attic in a room found the stick used in the incident. 10. Ex. 25 is the scene of the offence panchnama. Much emphasis has been placed on this scene of offence panchnama by the defence to state that blood stains were found on the tracks of the tar road, on the grass and not on the main road and to substantiate their case, that the injuries that the deceased sustained were due to a fall from the motorcycle due to the terrain of the road being uneven. 11. Serological and FSL reports have been produced at Ex. 43. The opinion as per the Serological report is that it is indecisive regarding the blood stains on the dharia. The defence would contend that since no blood has been found on the sticks, this would go a long way to substantiate their case that the incident did not occur at all and therefore the offences in which the accused have been implicated and convicted for stands disproved. 12. Based on this set of evidence, the learned trial judge has convicted accused Nos. 1 and 3 - appellants herein and held them guilty of offences punishable under sections 302 read with section 114 of Indian Penal Code and sentenced them to undergo life imprisonment. 13. When the contents of the First Information Report at Ex. 8 are compared to that of the version as the witness - complainant Kamliben narrates in her testimony which is at Ex. 7, there is absolutely no variation in the sequences of events that unfolded and which led to the incident in which Sardarbhai - her husband was done to death by the accused - appellants herein. When she was the Deputy Sarpanch and Maganbhai's wife Leela was the Sarpanch and therefore there were election disputes is evident from reading the version in the complaint and the testimony of this witness. When she was the Deputy Sarpanch and Maganbhai's wife Leela was the Sarpanch and therefore there were election disputes is evident from reading the version in the complaint and the testimony of this witness. She has categorically in her evidence stated that, that she was a Deputy Sarpanch was not to the liking of Maganbhai and his family and the direct fall out of this political bitterness was the fact that they had attacked her husband Sardarbhai and put him to death. For more than 20 to 25 years, according to this witness, in her cross examination, she has not been able to become the Sarpanch. The witness stated that at 5 in the morning, on 27.09.2009, her husband left carrying cans of milk on a motorcycle to be delivered to a diary. 15 minutes after he left, she received a call from her mobile phone informing her that her husband was lying on the road. When they went to the place where her husband was lying, her husband categorically informed that he had sustained injuries on being attacked by the accused. He named the accused and the weapons that they used. 14. Parthingbhai - father of deceased Sardarbhai and father-in-law of the complainant also without variations confirmed the narrative of the complainant in her testimony which suggests that his son left for the diary at 5 in the morning. 15 minutes thereafter they received a call from a jeep driver. They immediately went to the scene where his son was lying. His son was fully conscious and on being asked by Hitesh, Sardarbhai informed them that accused had attacked him with sticks and dharia. He was therefore shifted to a hospital where he was subsequently declared dead. In the cross examination, a suggestion was put to him which he denied that his son was not in a position to speak. 15. Babubhai, the jeep driver though has turned hostile, when his testimony in his examination-in-chief is seen, what comes out is that he had a mobile and Kanjibhai, the cleaner was accompanying him. Kanjibhai Somabhai, the cleaner of the jeep categorically in his testimony confirms the narratives of the complainant wife, the father of the deceased and says that he was knowing Sardarbhai. Sardarbhai informed Babubhai, jeep owner to call up his family on his mobile. Since he knew Sardarbhai, he called his son. Kanjibhai Somabhai, the cleaner of the jeep categorically in his testimony confirms the narratives of the complainant wife, the father of the deceased and says that he was knowing Sardarbhai. Sardarbhai informed Babubhai, jeep owner to call up his family on his mobile. Since he knew Sardarbhai, he called his son. On receiving such a call, the son, father and wife of Sardarbhai immediately arrived within 15 minutes at the place and then Sardarbhai was carried in a jeep to the hospital. He was so carried in the jeep as the ambulance that had been called had not arrived on time. 16. Versions of these witnesses when put together and read conjointly, it is evident that Sardarbhai was attacked between 5 and 5.15 in the morning after he left his home which is the time that is confirmed both by the testimony of the wife and the deceased's father. Both these witnesses also confirm the fact that political bitterness between the family due to the past election disputes was the motive behind the incident. 17. Parthingbhai - father of deceased and Kamliben - wife of deceased - complainant both in their testimonies stand by the version in the complaint that since they reached the incident within 15 minutes, Sardarbhai narrated to them the facts as to how he was attacked at the hands of the accused. In the cross examination of Parthingbhai, it has come out that Sardarbhai was in a position to speak and was completely conscious. 18. Even the doctor who is examined at Ex. 35, in his cross examination, has not clearly opined as to whether such injuries resulted into concussion or loss of blood. In fact, on reading the cross examination, it is apparent that it is not always that the injuries that are caused to the victim result in incoherence of speech or that the victim would lose consciousness. 19. Merely because a suggestion was put in the cross examination to P.W. 9, Kanjibhai that Sardarbhai did not utter a word till the family reached would not dilute the veracity of the story. In fact it would obviously strengthen the prosecution case to show that the deceased being attacked was conscious enough to inform Babubhai that a call should be made to the family. On being so instructed by Sardarbhai to make a call, Kanjibhai made a call to the family. In fact it would obviously strengthen the prosecution case to show that the deceased being attacked was conscious enough to inform Babubhai that a call should be made to the family. On being so instructed by Sardarbhai to make a call, Kanjibhai made a call to the family. The family arrived within 15 minutes of the incident and thus Sardarbhai narrated the whole incident. The learned trial judge, in our opinion, has not committed any error in holding that this was in the nature of dying declaration and the narrative to the witnesses was to the effect of dying declaration and therefore the truth could not be faulted. We have no reason to take a different view. 20. Evidently, from the corroborative evidence of the discovery panchnama which are at Exs. 14 and 17 respectively, the sticks used by accused Nos. 1 and 3 respectively have been discovered. The panchas though have turned hostile have admitted their signatures to the panchnama and the Investigating Officer's testimony also confirms that this discovery is in accordance with the provisions of section 27 of the Indian Evidence Act. 21. Taking all these circumstances and the evidence on record together that the accused had a motive to attack Sardarbhai as a result of the political bitterness between the families is beyond dispute. To carry out their plan, the three of them waited for the deceased to arrive on his motorcycle. The attack was carried out in the early hours of the morning with sticks in their hands. The accused No. 2 who has died pending the trial had attacked the deceased with a dharia on his head. However, the accused Nos. 1 and 3 were carrying sticks and had attacked the deceased on the hands and the legs as a result of which the deceased sustained multiple injuries. Put together, the injuries that the deceased sustained had caused the death of Sardarbhai. 22. The accused Nos. 1 and 3 wielding sticks had attacked Sardarbhai on the hands and legs and therefore they at best could be attributed with the knowledge that the attack would cause death of the victim without imputing intention to cause such death. We are therefore of the opinion that looking to the evidence on record, the conviction of the accused Nos. 1 and 3 wielding sticks had attacked Sardarbhai on the hands and legs and therefore they at best could be attributed with the knowledge that the attack would cause death of the victim without imputing intention to cause such death. We are therefore of the opinion that looking to the evidence on record, the conviction of the accused Nos. 1 and 3 is required to be altered from section 302 of Indian Penal Code to that under section 304 (Part II) of Indian Penal Code. 23. Accordingly, the conviction of the appellants - original accused Nos. 1 and 3 under Section 302 of the Indian Penal Code vide judgment and order dated 11.06.2011 passed by the learned Principal Sessions Judge, Dahod in Sessions Case No. 34 of 2010 is altered to conviction under Section 304 (Part II) of Indian Penal Code. The appellants - original accused Nos. 1 and 3 are sentenced to rigorous imprisonment for a period of seven years under section 304 (Part II) of Indian Penal Code. The amount of fine and sentence in default of fine shall remain unchanged. The judgment and order dated 11.06.2011 is modified accordingly. Appeals are allowed to the aforesaid extent. R & P to be transferred to the trial court forthwith. Appeal Partly Allowed