JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the original accused challenging the judgment dated 18.02.2013 passed by the learned Additional Sessions Judge, Jamnagar in Sessions Case No. 67 of 2011. These 5 appellants - original accused were charged for the offences punishable under sections 143, 147, 148, 149, 504, 302 and 323 of IPC and section 135(1) of the B.P. Act. They were convicted for the said offences. For the offence under section 302, they were sentenced to life imprisonment. No separate sentences were imposed for lesser offences. 2. Broadly stated, the prosecution version was that one Vijaysinh Bhikhubha - brother of the complainant Ratansinh was passing on a motorcycle when accidentally his motorcycle touched accused No. 1 Kamlesh Jentibhai Tamboliya. There was a quarrel during which Vijaysinh Bhikhubha had abused Kamlesh. Keeping a grudge about this incident, couple of days later on 19.02.2011, at about 08.30 at night, all the accused came to a place where Vijaysinh and his brother Ratansinh were standing near a pan shop. Their cousin brother Vikramsinh was also present. Accused No. 1 challenged Vijaysinh and picked up a quarrel referring to the previous incident and took out a knife. Vijaysinh ran. All the five accused ran after him, caught him and the accused No. 1 gave knife blows to Vijaysinh. His brother Ratansinh tried to intervene. He was also hit with a stick and an iron pipe. Vijaysinh died during treatment. A charge was therefore framed under Ex. 6. 3. Ratansinh Bhikhubha, P.W. 7, Ex. 38 - brother of deceased Vijaysinh was an eye witness and also the first informant. He deposed that on the night of the incident at about 08.30, he and his brother Vijaysinh had gone to a pan shop in the village. Their cousin brother Vikramsinh also came there. When they were standing there, the five accused of the village came there carrying wooden logs and iron pipes. Accused No. 1 started abusing Vijaysinh and reminded him of the incident which took place two days back. He took out a knife upon which Vijaysinh started running. All these five people chased him and caught him behind the temple near the house of Rameshbhai Babubhai. These people started beating him up. Kamlesh - accused No. 1 stabbed him on the thigh. He took out a knife upon which Vijaysinh started running. All these five people chased him and caught him behind the temple near the house of Rameshbhai Babubhai. These people started beating him up. Kamlesh - accused No. 1 stabbed him on the thigh. He started shouting for help and intervening upon which Atul Jenti and Kishor Bachu - accused No. 2 and 4 gave blows with log of wood and iron pipe. His brother was bleeding. When Vikramsinh arrived there, all these five people ran away. His brother was taken to a hospital first in a car and then shifted into an ambulance. At G.G. hospital, Jamnagar he was declared dead. The witness identified the accused and the weapons before the court. He had registered the FIR which was produced at Ex. 39. 3.1 In the cross examination, he agreed that in the history before the doctor, he had initially stated that he had got hurt on the head when he banged against a wall. He, however, stated that the said history was wrongly given since he was afraid of being involved in a criminal case. He later on went to give the correct history. He agreed that after bandaging his head he was allowed to go. The doctor had not given him any medicines nor did he require follow up treatment. 4. P.W. 10, Vikramsinh Bhupatsinh, Ex. 47 the cousin brother of the deceased was another eye witness. He deposed that on 19.02.2010 he had also gone to the pan shop in the evening where his cousins Vijaysinh and Ratansinh were present. All three were standing near the shop when the accused arrived there carrying wooden logs and also pipes. Accused No. 1 picked up a quarrel with Vijaysinh. When they took out a knife he started running. All four accused chased him and caught up with him near the house of Ramesh Babu. They started beating him. Ratan and he both started running. Ratan was hit by Atul Jentilal and Kishor Bachu. Vijaysinh was stabbed by Kamlesh Jenti on the side of his thigh. Vijaysinh was taken to hospital first in a Maruti Fronty Car and then in an ambulance. 5. Dr. Savita Jhankar, P.W. 11, Ex. 51 was the Medical Officer at G.G. Hospital, Jamnagar. She had treated the injured Ratansinh. Ratan was hit by Atul Jentilal and Kishor Bachu. Vijaysinh was stabbed by Kamlesh Jenti on the side of his thigh. Vijaysinh was taken to hospital first in a Maruti Fronty Car and then in an ambulance. 5. Dr. Savita Jhankar, P.W. 11, Ex. 51 was the Medical Officer at G.G. Hospital, Jamnagar. She had treated the injured Ratansinh. She confirmed that initially the patient had given the history of receiving injury due to banging of the head against the wall. He later on changed the history stating that he had given a wrong history out of fear. She agreed that this was the first time for her when an occasion to change the history had arisen. She had given the injury certificate and stated that such injuries could be caused by hard and blunt substances such as pipe and wooden log. 6. Dr. Kalpesh Aasal, P.W. 12, Ex. 52 had carried out the postmortem. In the postmortem note, Ex. 59, he had recorded the following injuries: "4 x 0.5 cm size crescentric shape stab wound seen over the left thigh over the anterolateral surface which is 21 cm below left anterior superior iliac spine, 29 cm above left knee joint. Its depth is 12 cm. It is horizontally placed, inner end sharp and other end blunt. Margins clean cut and red. Its direction is upward, medially and backwards and it pierces skin, subcutaneous tissue, muscles and cut whole femoral vein and 4 mm size cut seen on lateral aspect of femoral artery. Blood is oozing out from this stab wound. 2.5 x 0.5 cm size stab wound seen over the posteromedial surface of right leg. It is obliquely placed. Upper end sharp and lower end blunt. It is 28 cm above medial malleolus of right lower limb and 10 cm below right knee joint. Its depth is 3.5 cm. Its direction is upward, backward and laterally and it pierces skin, subcutaneous tissue and upper muscle deep. Margins clean cut and red." The cause of death according to him was shock on account of stab injury over the left thigh associated with scrotal hematoma. 6.1 In the cross examination, he stated that there was no stab injury on the left thigh. The scrotal sac was enlarged. He agreed that the injuries were not on the vital part of the body. Injury No. 2 was a simple injury. 6.1 In the cross examination, he stated that there was no stab injury on the left thigh. The scrotal sac was enlarged. He agreed that the injuries were not on the vital part of the body. Injury No. 2 was a simple injury. Injury on the scrotal sac by pipes was not sufficient to cause death and could have been cured by operation or even medication. Even injury No. 1 could have been treated with primary treatment. 7. The murder weapon knife was discovered at the instance of accused No. 1 under panchnama Ex. 29. Though the panch witness turned hostile, it was proved through the evidence of Investigating Officer Madhubhai Ratnabhai, P.W. 17, Ex. 77. Various articles collected during the course of investigation were sent for FSL analysis. The FSL report read with Serological report Ex. 84 would show that the deceased had blood group 'B'. It was blood of this group which was found from the knife. 8. This, in the nutshell, is the evidence on record. On the basis of such evidence, involvement of the five accused in forming an unlawful assembly and assaulting the deceased Vijaysinh is duly established. We have two eye witnesses giving substantially consistent accounts. Ratansinh Bhikhubha, P.W. 7 and Vikramsinh Bhupatsinh, P.W. 10 were both present when the incident took place. We may recall the incident took place at about 08.30 at night when according to these two witnesses they and their deceased brother Vijaysinh were at a pan shop. All the five accused arrived there. Accused No. 1 had a previous tiff with Vijaysinh. He took out a knife upon which Vijaysinh started running. The five accused chased him down and accused No. 1 gave knife blows to Vijaysinh. It is true that both these witnesses referred to only one blow and in fact there were two knife blows detected in the postmortem. However, this would not shake our confidence in the testimony of these witnesses. The entire incident took place in quick time. When Vijaysinh started running, the five accused chased him. His brothers obviously would have run after them trying to save him. Before they arrived the assault had already started. In fact, Ratansinh himself received two minor injuries on the head and the hand caused by wooden logs and iron pipes. He was also treated for such injury. When Vijaysinh started running, the five accused chased him. His brothers obviously would have run after them trying to save him. Before they arrived the assault had already started. In fact, Ratansinh himself received two minor injuries on the head and the hand caused by wooden logs and iron pipes. He was also treated for such injury. It is true that in the history recorded initially he had given a different version which he clarified as having given out of fear. Perhaps believing that he would get involved in a criminal case, he may have done so. This by itself would not mean that he was not present when the incident took place. 9. From the record, thus, it emerges that all the five accused came to a place where the deceased and his two brothers were standing outside a pan shop. They were armed with knife, iron pipes and wooden logs. They immediately picked up a fight and chased Vijaysinh and assaulted him. Their intention and premeditation is thus writ large on the face of the record. They had thus formed an unlawful assembly. The question is, did they intend to cause the death of Vijaysinh, and if not, which offences other than section 302 they can be held guilty of. 10. In this context, we may examine the medical evidence more closely. From the evidence of Dr. Kalpesh Aasal, P.W. 12 who had carried out the postmortem, it has emerged that the deceased sustained only two stab injuries. There were no other injuries of any nature including those which could have been caused with hard and blunt substances. The two stab injuries were also as pointed out by the doctor not on the vital parts of the body. One was a stab wound on thigh and the other on the hip. In fact, the doctor agreed that the hip wound was not even serious. From the evidence, it appears that the deceased died due to the injury to his scrotal sac which is a highly vulnerable part of the male anatomy. The doctor informed that such injury by itself was not sufficient to cause death and in any case could have been treated if timely attention would have been available. Thus, under no circumstances, can it be stated that the accused intended to cause death of Vijaysinh. The doctor informed that such injury by itself was not sufficient to cause death and in any case could have been treated if timely attention would have been available. Thus, under no circumstances, can it be stated that the accused intended to cause death of Vijaysinh. Had it been so, in whatever limited time the accused had, he would have given knife blows on the vital parts of the body such as chest, neck or stomach. The fact that he aimed at the thigh and the hip would indicate that his intention was not to kill. Other accused also did not wield their weapons on this person. They only kept his brothers at bay. Nevertheless, the accused No. 1 when gave a blow on the thigh region, he ought to have known that the injury could cause damage to the private parts of a person. He therefore cannot escape the liability of having caused death by such injuries as were likely to cause death. 11. The offence therefore would more appropriately be one under section 304 (Part II) of Indian Penal Code. Since we have already held that the 5 accused formed an unlawful assembly and the common object of this unlawful assembly was to cause serious injuries to the deceased, all of them would be convicted for the said offence with the aid of section 149 of IPC. 12. Accused No. 1, 2, 4 and 5 for offences under section 304 (Part II) read with section 149 of the Indian Penal Code are sentenced to undergo rigorous imprisonment for 7 years. No separate sentence be imposed for other offences. Direction for payment of fine is unchanged. Accused No. 1, 2, 4 and 5 have not been released on bail. If, after set-off and remission, they have served out the modified sentence they will be released forthwith unless required in any other criminal case. 13. We have separated out accused No. 3 for a separate treatment. The reasons being that he is presently over 50 years of age. It is undisputed that he suffers from handicap and is a polio patient. Even according to the witnesses, he had not played any active role. While maintaining his sentence on parity with other accused, looking to his special circumstances, we impose a more lenient sentence of 18 months. Qua him also the direction for fine remains unchanged. It is undisputed that he suffers from handicap and is a polio patient. Even according to the witnesses, he had not played any active role. While maintaining his sentence on parity with other accused, looking to his special circumstances, we impose a more lenient sentence of 18 months. Qua him also the direction for fine remains unchanged. Criminal Appeal is disposed of accordingly. R & P to be transmitted to the trial court forthwith. Disposed off