JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the original accused to challenge the judgment dated 23.7.2012 passed by the learned Additional Sessions Judge, Nadiad, in Sessions Case No. 128/2010. 2. Briefly stated, the prosecution version was that deceased Balwantbhai and the accused were distant relatives. They had long standing disputes about the ancestral land. As a fall out of such past soured relations, on the night of the incident, i.e. 1.6.2010 at about 9:30, all the five accused who were carrying different weapons, assaulted Balwantbhai outside their house, causing serious injuries to which he succumbed shortly. Accused No. 1 Pratapbhai was carrying a dhariya with which he gave blows on the head of Balwantbhai, the other four accused, Jayantibhai accused No. 2, Jadiben accused No. 3, Tiniben accused No. 4 and Shardaben accused No. 5 were carrying sticks with which they gave multiple blows to Balwantbhai on other parts of the body. Balwantbhai received serious injuries. He also received fractures on other parts of the body. All the five accused were therefore, charged with offences punishable under sections 143, 147, 148, 302, 506(2) read with section 149 of the Indian Penal Code below charge exh.4. 3. Gopalbhai Balwantbhai Sodha Parmar, PW-5, exh.51, was the son of the deceased. He deposed that on the night of the incident, there was a marriage in the village. He was at the house along with his grandparents Madhuben and Ambalal. His father had gone to deposit milk in the dairy. When he was returning, Pratapbhai Ramabhai accused No. 1 had assaulted his father, warning him and others against coming closer. There was an electric pole nearby where the light was on. He pointed out that Pratapbhai had a dhariya, others had sticks. All of them were giving blows to his father. According to him, the quarrel was about the agricultural land. In the cross examination, he agreed that he stayed at the house constructed on the field along with his grandparents and parents. When the incident took place in the village, there was a marriage of the daughter of Ratnabhai Manglabhai and it was because of this that all of them had come to their house in Nana Faliya to attend the marriage. His sister Dakshaben and her husband Arvindbhai had also come to attend the marriage. When the incident took place in the village, there was a marriage of the daughter of Ratnabhai Manglabhai and it was because of this that all of them had come to their house in Nana Faliya to attend the marriage. His sister Dakshaben and her husband Arvindbhai had also come to attend the marriage. He also agreed that he, his sister Dakshaben and Arvindbhai had attended the marriage at the house of Ratnabhai. In Nana Faliya, house of Pratapbhai Ramabhai was also situated. His house in Nana Faliya was at a distance of about 1 km from the house on the field. House of Pratapbhai Ramabhai was separated by 25 houses from the house of Ratnabhai Manglabhai. He stated that when he and others reached, the accused were still beating his father. He did not intervene because he was scared. 4. Madhuben Ambalal Sodha, PW-6, exh.66, mother of the deceased, deposed that her father-in-law had given half vigha land to her husband. The rest, out of 4 vighas, was in possession of Narsinhbhai and Pratapbhai. Pratapbhai and other family members were quarrelling with them because they had got half vigha land. On the night of the incident, her son Balwantbhai had gone to deposit milk in the village. While he was returning, he was passing from the house of Pratapbhai. At that time, the accused had picked up a quarrel. She was at home with her husband and son Gopal. Upon hearing the shouts, Gopal ran towards the house of Pratapbhai and came back to inform them about the quarrel. They all went there and saw all the accused giving blows to her son. She also referred to accused No. 1 carrying dhariya and the rest carrying sticks. In the cross examination, she agreed that because of age, her and her husband's eyesight had become weak and particularly, at night could not see properly from a distance. She agreed that her family members believed that they also had a right over the four vigha land and wished that they could get back such land. They had also taken advise on how to get back the land. She agreed that because of the marriage, her entire family had taken dinner at Ratnabhai's place. At the time of the incident, Balwantbhai lived on the field with his wife and sons. They had also taken advise on how to get back the land. She agreed that because of the marriage, her entire family had taken dinner at Ratnabhai's place. At the time of the incident, Balwantbhai lived on the field with his wife and sons. When she reached the place of the incident, Balwantbhai had lost his consciousness and was unable to speak. A crowd of about 100 to 150 people also had gathered. She clarified that the accused prevented her from going closer giving threats. 5. Vimlaben Balwantbhai Sodha Parmar, PW-7, exh.68, wife of the deceased, deposed that on the night of the incident at about 7 O' clock, she had milked the buffaloes which her husband had taken for delivering in the dairy. She herself had gone to a shop for purchasing sugar and tea. She heard the shouts at about 9 O' clock of a quarrel going on near the house of Pratapbhai. She went there and saw that her husband was present there. A heated exchange was taking place with Pratabhai Ramabhai. Her son Gopal, her in-laws, daughter and son-in-law also arrived. Pratapbhai had a dhariya, Jayantibhai, Jadiben, Tiniben and Shardaben had sticks. They were all giving random blows to her husband. They warned them against coming close. They did not save her husband but saw the entire incident from a close distance. In the cross examination, she stated that after attending the marriage, she and her husband had gone to the house at the field where they lived with their sons whereas her father and mother-in-law lived in an old house in the village which was at a distance of about one to one and half kilometer from the field. She denied the suggestion that all the family members were at the house on the field. She clarified that they were all at the old house in the village. She stated that when they could finally go close to her husband, he had already died. 6. Prahladbhai Balvantbhai Sodha Parmar, PW-8, exh.70, son of the deceased also gave a similar version. He pointed out that there was a marriage in the family of Ratnabhai Manglabhai. To attend the marriage, all the family members had gathered including his sister Daksha and her husband Arvindbhai. They were at their old house in the village. His father was returning after delivering milk when they heard the shouts. He pointed out that there was a marriage in the family of Ratnabhai Manglabhai. To attend the marriage, all the family members had gathered including his sister Daksha and her husband Arvindbhai. They were at their old house in the village. His father was returning after delivering milk when they heard the shouts. Pratapbhai had a dhariya. Jayantibhai, Jadiben, Tiniben and Shardaben had sticks. They were giving blows to his father. His mother had gone to the grocery shop. She also returned. There was a light pole nearby and there was enough light to witness the incident. In the cross examination, he was also questioned on his presence but denied that he was at the house on the field when the incident took place. 7. Arvindbhai Ambalal Chauhan, PW-9, exh.72, son-in-law of the deceased, deposed that on the date of the incident, there was a marriage in the village of his wife. After the marriage, they were at the house. Balwantbhai had gone to the village to deliver the milk. At 9 O' clock, he was returning when the quarrel took place near the house of Pratapbhai Ramabhai. Since he was at the old house, he could hear the shouts and went to the place which was about 40 feet from the house and he could see the accused carrying dhariya and sticks, giving blows to the deceased. To this witness also the defence questioned about his presence and the possible motive for making the false allegations. 8. Dr. Vikas Vitthalbhai Patel, PW-1, exh.12, had carried out the postmortem. In the postmortem note exh.14, he had recorded the following injuries: "(1) Right external ear CLW of inner pinna size 2 1/2 cm x 1/4 cm x 1/4 cm. (2) Right nose CLW size 2cm x 1/2 cm x 1/4 cm. (3) Sharp cutting incised would of central jaw below lower lip. Size 3 cm x 1/4 cm x 1/4 cm. (4) 4 linear contusion of left chest "1/11" size-(1) 2 cm x 1/2 cm (2) 5 cm x 1/2 cm (3) 3 cm x 1/2 cm (4) 4 cm x 1/2 cm. (3) Sharp cutting incised would of central jaw below lower lip. Size 3 cm x 1/4 cm x 1/4 cm. (4) 4 linear contusion of left chest "1/11" size-(1) 2 cm x 1/2 cm (2) 5 cm x 1/2 cm (3) 3 cm x 1/2 cm (4) 4 cm x 1/2 cm. (5) 3 contusion on right chest "11" size (1) 3 cm x 1/2 cm (2) 2 cm x 1/2 cm (3) 5 cm x 1/2 cm (6) contusion on central chest size 4 cm x 1/2 cm (7) 2 linear contusion on abdomen size 8 cm x 1/2 cm (2) 3 1/2 cm x 1/2 cm (8) swelling above umbilicus on abdomen 3 cm x 2 cm (intestinal Hernia) due to injury (9) left leg abrasion 4 cm x 1/2 cm (10) contusion right thigh 2 cm x 1 cm (1) Depressed fracture of Parieto occipital bone neck and lamdorid suture. (2) Right mid forearm # dislocation (3) left upper arm swelling # upper humerus" He had recorded the following internal injuries: "Depressed fracture of Parieto occipital bone near lamdorid suture size 2 cm x 1 cm (1) Acute subdural hemorrhage of parieto occipital region (skin deep) size 6 cm x 3 cm (2) Intra-cerebral hemorrhage on Basal ganglia size 1 cm x 2 cm Multiple contusions over left, right and central chest. No fracture detected clinically of chest, congested." In his opinion, the cause of death was hemorrhage shock due to severe central parieto-occipital head injury and/or closed fracture of left upper arm, closed fracture right mid-forearm and multiple injuries over chest, abdomen and face. He deposed that such injuries were sufficient in ordinary course of nature to cause death. He was shown the muddamal article dhariya and the bamboo sticks and agreed that such injuries could be caused by such weapons. On 3.6.2010, this doctor had also examined all the four accused. He had recorded minor injuries such as bruises and complaint for pain or soreness on certain parts of the bodies. 9. The scene of the incident panchnama exh.40 would show that the incident took place right outside the house of Pratapbhai Ramabhai and that there was an electric light pole at a distance of about 18 feet. It also shows that the house of Ambalal i.e. father of the deceased was at a distance of about 100 meters from the scene of the incident. It also shows that the house of Ambalal i.e. father of the deceased was at a distance of about 100 meters from the scene of the incident. 10. Vinodbhai Ramprasadji Khengar, PW-11, exh.78 was the investigating officer. He gave a detailed outline of the steps taken during such investigation and produced a copy of the FIR at exh.79. 11. Various articles collected during the course of investigation was sent for forensic analysis. FSL report read with serological report exh.78 would show that the deceased had blood group 'O" which was found from his clothes. The weapons dhariya and the sticks, all had blood and wherever it was in sufficient quantity, which was in case of dhariya and three sticks, it was analysed as group 'O'. In the fourth stick though the blood was present, group could not be analysed. This in the nutshell is the evidence on record. 12. On the basis of such evidence, learned Additional Sessions Judge, convicted all the accused for offences punishable under sections 143, 147, 148, 302, 506(2) read with section 149 of the IPC. He awarded life sentence and also imposed lesser punishments for other offences which the accused have challenged in the present appeal. 13. From the deposition of the prosecution witnesses, it emerges that the deceased and the accused were distant relatives. The family had 4 vighas of agricultural land. A small portion of land was given to the father of the deceased. The remaining part was in the possession and under cultivation of the accused. There was heartburning on both sides. The mother of the deceased Madhuben PW-6 admitted that she and her other family members were not happy about the smaller portion of land being given to them and had sought guidance on how to get back the remaining land. At the same time, all the witnesses had also referred to the family members of the accused being equally unhappy about the complainant and other family members getting the portion of agricultural land. 14. The evidence also suggests that the complainant and his family members had two houses to reside. Son Balwant lived at the house built on the field whereas his parents and some of the other relatives resided in their old house in the village. The house in the village was situated very close to where the incident took place. 14. The evidence also suggests that the complainant and his family members had two houses to reside. Son Balwant lived at the house built on the field whereas his parents and some of the other relatives resided in their old house in the village. The house in the village was situated very close to where the incident took place. Though eyewitnesses have given the distance being barely at about 40 to 50 feet, the panchnama of the incident exh.40 suggested that it was somewhat further down at a distance of about 100 meters. However, it cannot be denied that the two locations were in the same locality and were not separated by a great distance. 15. The witnesses have also referred to the marriage of the daughter of Ratnabhai Manglabhai in the village. The entire family was invited which included even the married daughter Dakshaben and her husband Arvindbhai PW-9 who had specially come to the village to attend such function. After the marriage was over and the dinner was served, the complainant and others were at their house in the village when the assault on deceased Balwant took place. According to the witnesses, Balwantbhai had gone to the village for delivering milk in the dairy and while returning from such errand, when he was passing by the house of accused No. 1, a quarrel took place which led to serious assault on the deceased. 16. The above-noted facts are more or less clear from the record. The only question is, were the accused or any of them involved in assaulting and injuring deceased Balwantbhai? Here also, we have several eyewitnesses referring to their presence and in fact, active role played by them with the nature of weapons attributed to each one of them. For example, Gopalbhai PW-5, son of Balwantbhai, rushed to the scene of the incident upon hearing the shouts and saw Pratapbhai accused No. 1 with a dhariya, his son Jayantibhai with a stick and other lady members accused No. 3 to 5 also with sticks. Pratapbhai gave blows on the head, others gave random blows to the deceased on all parts of the body with the sticks. To a large extent, his deposition was corroborated by other eyewitnesses including Vimlaben PW-7 wife of the deceased, Prahladbhai PW-8 son of the deceased and Arvindbhai PW-9 son-in-law of the deceased. Pratapbhai gave blows on the head, others gave random blows to the deceased on all parts of the body with the sticks. To a large extent, his deposition was corroborated by other eyewitnesses including Vimlaben PW-7 wife of the deceased, Prahladbhai PW-8 son of the deceased and Arvindbhai PW-9 son-in-law of the deceased. Barring minor variations, the depositions of all these eyewitnesses were consistent. Even if therefore, discarding the deposition of Madhuben PW-6, due to old age failing eyesight, we have as many as four eyewitnesses whose presence was natural and who referred to the five accused present at the scene of the incident with dhariya and sticks and giving multiple blows to the deceased. As noted, there were after marriage ceremony at the house in the village which was situated barely 100 meters away from the scene of the incident. If therefore, they could rush to the spot upon hearing the shouts and other noises, they would be in time to witness at-least part of the assault. The fact that there was an electric pole with light bulb comes in the deposition of the witnesses. The light pole is referred to in the scene of the incident panchanama exh.40 also. To put the matter beyond any doubt, we may refer to the deposition of Dr. Vikas Vitthalbhai Patel, PW-1. In addition to carrying out the postmortem, he had also treated all the five accused for minor bruises and complaint of soreness and pain which could be caused during a scuffle or a fight. Presence of these accused person at the scene of the incident therefore, gets further corroborated. 17. The medical and scientific evidence lends sufficient credence to the prosecution theory. The postmortem note reveals a major head injury and multiple injuries on the entire body which could be caused by weapons such as dhariya and sticks. The serological report exh.78 showed presence of blood of group 'O' on the dhariya and three sticks. On the fourth stick, the blood was present but the group could not be detected. 18. The defence through the cross examination of the witnesses has mainly raised three defences. First, that the eyewitnesses were not present and therefore, could not have seen the assault. On the fourth stick, the blood was present but the group could not be detected. 18. The defence through the cross examination of the witnesses has mainly raised three defences. First, that the eyewitnesses were not present and therefore, could not have seen the assault. Second, that the accused were being falsely implicated so that the complainant can illegally take over the agricultural land and lastly, that the injuries could be as a result of a fall from the tree. 19. None of these defences are credible or probable. There were as many as five eyewitnesses who were present at the house of Ambalal which was situated very close to, where the incident took place. The fact that there was history of disputes between the sides because of the agricultural land could in fact, be a reason for the assault itself. Lastly, the nature of injuries particularly, on the head could not have been caused from a fall from the tree. 20. Under the circumstances, we have no hesitation in believing the involvement and the role played by each accused in causing multiple injuries to the deceased. The question is whether their conviction for offence under section 302 read with section 149 of the IPC justified? 21. We have come to the conclusion that accused No. 1 Pratapbhai carrying a dhariya had given the blows on the head of the deceased which caused the most serious damage. In addition to causing skull fracture, it also damaged the brain. 22. Remaining blows and injuries were given with the help of sticks and were mostly found on other parts of the body. The attack was obviously not preplanned. It happened right outside the house of the accused. This was therefore, not a case where the accused carrying dangerous weapons to the house of the deceased sort him out and attacked him. It was obviously a case where some heated exchange of words got out of control and all the accused started giving blows to the deceased. The fact therefore, that the accused person had formed unlawful assembly is beyond doubt. However, it cannot be stated that common object of this unlawful assembly was to cause murder. The common object instead was to cause injury, may be serious and to teach him a lesson. 23. The fact therefore, that the accused person had formed unlawful assembly is beyond doubt. However, it cannot be stated that common object of this unlawful assembly was to cause murder. The common object instead was to cause injury, may be serious and to teach him a lesson. 23. While therefore, maintaining the sentence and conviction of the accused No. 2 to 5 for other offences, their conviction and sentence for offence punishable under section 302 read with section 149 of the IPC is set aside. Accused No. 1 alone is convicted for offence punishable under section 302 of the IPC and the sentence awarded qua him for the said offence shall remain unchanged. Accused No. 2 to 5 have caused grievous hurt. Their conviction is therefore, converted into one punishable under section 325 read with section 149/34 of the IPC. The jail record suggests that accused No. 2 Jayantibhai has already served out a sentence of more than six and half years, accused No. 3 Jadiben has already served out a sentence of more than four years, accused No. 4 Tiniben has already served out a sentence of more than four years and accused No. 5 Shardaben has already served out a sentence of more than three years and three months. The offence of causing grievous hurt punishable under section 325 of IPC prescribes a maximum punishment of seven years or fine. Looking to the facts and circumstances of the case, accused No. 2 to 5 for offence punishable under section 325 read with section 149/34 of the IPC, are ordered to undergo rigorous imprisonment of three years. Accused No. 2 who is in jail may be released forthwith, if not required in any other criminal case. Bail bonds of accused No. 3 to 5 are cancelled. We are informed that the accused No. 1 is already released by the State by giving order of remission/pardon. Nothing stated in this judgment is meant to destroy such order. We have only decided the legality of his conviction which we were called upon to do. 24. Appeal is disposed of. R&P may be transmitted back to the concerned trial Court. Disposed off