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2019 DIGILAW 242 (GUJ)

Navabkhan Ahemadkhan Pathan v. State of Gujarat

2019-03-19

A.C.RAO, J.B.PARDIWALA

body2019
JUDGMENT : A.C. RAO, J. 1. The appellants - original accused Nos.1, 3 and 4 have preferred this Criminal Appeal under section 374 of the Code of Criminal Procedure questioning the legality and validity of the judgment and order of conviction and sentence passed by the Sessions Judge, Anand in Sessions Case No.71 of 2012 dated 10/3/2016. The Sessions Judge convicted the appellants herein - original accused Nos.1, 3 & 4 for the offence punishable under sections 302 read with sections 120(B) and 114 of Indian Penal Code, 1860 sentenced them to undergo life imprisonment with fine of Rs.25,000/- each and in case of non-payment of the fine, directed to undergo further simple imprisonment for a period of five years. The Sessions Judge was pleased to grant benefit of set off as per section 428 of the Code of Criminal Procedure. 2. The case of the prosecution, in nutshell is that, the first informant - Janakben Prakashchandra Shah, wife of the deceased, lodged the FIR being CR No.I-5 of 20 with the Anand Railway Police Station for the offence punishable under sections 302, 120(B) and 114 of IPC and section 135 of Bombay Police Act on 6/5/2011, inter-alia alleging that at 8.30 O'clock in the morning on 6/5/2011, all the accused in collusion with each-other hatched a criminal conspiracy to kill the deceased. The deceased Prakashchandra Ambalal Shah was travelling from his house towards Vasad Railway Station. When he reached at the southern side of the Vasad Railway Station Platform No.1, at that time, the accused No.2 inflicted blows with an iron pipe on the legs of the deceased. The accused Nos.3 showed an iron pipe to the accused No.2 and he threw away the deceased on the road. The accused No.1 took the accused Nos.2 and 3 at the place of the offence on the bike of the accused No.4. It is alleged that the accused No.4 hatched the conspiracy and laid an assault on the deceased keeping the grudge with the deceased on account of the divorce between the daughter of the deceased and the accused No.4. The divorce had taken place at the instance of the deceased. It is alleged that the accused No.4 had hired the other co-accused for assaulting the deceased and had also given his bike to other accused. The divorce had taken place at the instance of the deceased. It is alleged that the accused No.4 had hired the other co-accused for assaulting the deceased and had also given his bike to other accused. It is alleged that the accused Nos.1, 2 and 3 after causing serious injuries with iron pipe, ran away on the bike of the accused No.4. It is stated in the FIR that the deceased was taken to Anand Hospital for treatment where he died during the treatment. The FIR came tobe registered for the offence punishable under sections 302, 120(B) and 114 of IPC. 2.01. After registration of the FIR, investigating officer started investigation and prepared panchnama of the place of offence, called FSL Team, prepared inquest panchnama, sent the dead-body of the deceased for postmortem, recorded statement of the witnesses, recovered muddamal, send muddamal to the FSL, got prepared map of the place of offence, got details of the mobile of accused Rajeshbhai, obtained permission for lie detection test of accused Rajeshbhai, arrested the accused, recovered weapon and prepared panchnama for recovery of the weapon, done identification parade of the accused before the Executive Magistrate and other investigation. 2.02. Since there was sufficient evidence against the accused, on completion of the investigation, the investigating officer filed charge-sheet against the accused under section 173 of the Code of Criminal Procedure in the competent court of the Chief Judicial Magistrate, Anand and the case was registered as Criminal Case. 2.03. Since the case was triable by the Court of Sessions, the Judicial Magistrate after providing copies of the Charge-sheet papers to the accused free of costs, committed the case to the Sessions Court under section 209 of the Cr.P.C. and the case was re-registered as Sessions Case No.71 of 2012 in the Court of Sessions Judge, Anand. 2.04. Thereafter, the Sessions Court framed Charge against the accused under section 228(1)(B) of Cr.P.C. for the offences punishable under sections 302, 120(B) and 114 at Ex.12 on 6/3/2013. The Sessions Judge also recorded Plea of all the accused Nos.1 to 4 were recorded under section 228(2) of the Cr.P.C. At Ex.Nos.13 to 16. The accused pleaded not guilty and therefore, prayed for trial. Therefore, the Sessions Judge conducted the trial in accordance with law. 2.05. The prosecution produced the following oral as well as documentary evidence : : ORAL EVIDENCE : PW No. Ex. The accused pleaded not guilty and therefore, prayed for trial. Therefore, the Sessions Judge conducted the trial in accordance with law. 2.05. The prosecution produced the following oral as well as documentary evidence : : ORAL EVIDENCE : PW No. Ex. No. Particulars Remarks 1 33 Janakben Prakashchandra Shah Complainant 2 36 Dinesh Khandas Parmar Panch of the panchnama of the place of offence 3 38 Maheboobbhai Jashbhai Malek Panch of the panchnama of the place of offence 4 39 Inayatbhai Mohammadbhai Vohraq Panch of the Panchnama of the Recovery of Clothes of the deceased and physical condition of the accused. 5 46 Rajubhai Birjubhai Aggrawal Panch of the panchnama of the physical condition of the accused and identification parade 6 48 Prakashbhai Rajabhai Mahajan Panch of the Inquest Panchnama, arrest panchnama of the accused Rajesh and identification parade 7 53 Mukeshbhai Bhailalbhai Patel Panch of the inquest panchnama 8 54 Rameshbhai Fatelal Jain Panch of the arrest panchnama of accused Rajesh 9 55 Piyushbhai Ramkrishan Gupta Panch of the panchnama of recovery of bike 10 57 Ajitkumar Munishankar Guipta Panch of the panchnama of recovery of muddamal bike 11 58 Dharmendra Kishanrav Sinde Panch of the recovery panchnama of the weapon 12 61 Ramzanali Rafiqbhai Saiyed Panch of the recovery of clothes of the deceased 13 62 Dr.Dhavanbhai Manubhai Bhatiya Doctor 14 65 Dr.Arvindkumar Jethabhai Dalwadi Doctor 15 72 Dr.Meena Ravjibhai Daveshvar Doctor 16 75 Rekhaben Jashubhai Solanki Witness 17 77 Bhalabhai Chandubhai Parmar Witness 18 79 Bhavna Shamjibhai Barad Executive Magistrate 19 81 Manubhai Bachubhai Parmar Witness 20 82 Dalpeshbhai Rameshbhai Shah Witness 21 83 Jigarkumar Prakashbhai Shah Witness 22 85 Arjunbhai Jivabhai Patel Witness 23 86 Sureshbhai Devjibhai Vasava Witness 24 87 Twinkalben Prakashchandra Shah Witness 25 89 Harishbhai Leelabhai PSO 26 97 Rameshbhai Nandubhai Rathwa Investigating Officer : DOCUMENTARY EVIDENCE : Sr. No. Ex. No. Ex. No. Particulars 1 34 First Information Report 2 37 Panchnama of the place of offence 3 40 Panchnama of recovery of clothes of the deceased 4 41 Panchnama of the physical condition of the accused 5 42 Slip bearing signature of the panchas received out of the muddamal 6 47 Panchnama of the identification parade of the accused 7 49 Inquest Panchnama 8 50 Panchnama of the arrest of the accused Rajeshbhai 9 51 Panchnama of the identification of the accused through witness 10 56 Panchnama of the recovery of the muddamal bike used in the commission of the offence 11 59 Panchnama of the recovery of the muddamal weapon used in the commission of the offence 12 60 Slip bearing signature of the panchas received from the muddamal 13 63 Certificate of Orthopedic Hospital, Anand 14 66 Yadi sent for postmortem of the deceased 15 67 Inquest Form 16 68 Forwarding letter sent to Anand Nagar Palika Hospital for sending samples 17 69 Postmortem Report 18 70 Probable Cause of Death Certificate 19 71 Final Cause of Death Certificate 20 73 Report of the Pathology Department 21 74 Yadi sent to Pathology Department, SSG Hospital, Vadodara 22 80 Yadi for Identification Parade 23 91 Extract of Station Diary 24 92 Report for registration of the offence and order appointing investigating officer for investigation of the offence 25 102 Yadi sent for FSL for visiting place of offence 26 103 Report of the FSL Van of place of offence 27 104 Yadi sent to Dog handler 28 105 Report of the Dog handler 29 106 Yadi sent for inquest 30 107 Report retarding preparation of the map of place of offence 31 108 Report for deletion of section 135 of the Bombay Police Act. 32 109- 110 Dispatch Note for sending muddamal to FSL 33 111- 112 Acknowledgment of FSL regarding receipt of the muddamal 34 113 Forwarding Letter of the FSL 35 114 FSL Report 36 115 Serological Report of FSL 37 116 Forwarding Letter of FSL 38 117 Report of FSL 39 118 to 122 FSL Tags 2.06. At the conclusion of the trial, Sessions Judge, Anand convicted the accused including the present appellants - original accused No.1, 3 and 4 for the offences punishable under sections 302 read with sections 120(B) and 114 of IPC and sentenced to undergo life imprisonment with fine, as aforesaid. At the conclusion of the trial, Sessions Judge, Anand convicted the accused including the present appellants - original accused No.1, 3 and 4 for the offences punishable under sections 302 read with sections 120(B) and 114 of IPC and sentenced to undergo life imprisonment with fine, as aforesaid. Therefore, the appellants herein - original accused Nos.1, 3 and 4 have preferred the present Appeal challenging the impugned judgment and order of conviction and sentence. 3. Mr. Pratik Barot, the learned counsel appearing for the appellants - original accused Nos.1, 3 and 4 has vehemently submitted that the trial court erred in convicting the appellants for the offence punishable under section 302 read with section 120(B) and 114 of IPC and imposing the sentence of life imprisonment. He submitted that the trial court failed to appreciate that the case against the appellants is not proved beyond reasonable doubt. However, the trial court has convicted the appellants misinterpreting the evidence on record. He submitted that the conviction is against the evidence on record, against the provision of law and against settled legal position and hence cannot sustain. 3.01. Mr.Barot, learned counsel appearing for the appellants further submitted that the evidence of sole witness Bhalabhai Chandubhai Parmar PW No.17 Ex.77 is not believable and trustworthy. He submitted that from the chief examination of the said witness, it is clear that he is a chance witness and same is clear from the fact that on 6/5/2011 at around 8.00 p.m. in the morning, while the said witness was leaving for his field, that is the time at which he had an occasion to see the incident which itself is doubtful. The said witness has stated that he has seen one person standing nearby Valsad Junction Board, a second person standing with an iron pipe in his hand and in the event, he saw one more person beneath a bridge (gharnama) of Valsad Junction, standing with a bike. It is the case of the said witness that he saw all the witnesses leaving the scene of offence and only after that, he reached to the deceased. He came to know about the incident as disclosed by the deceased about the cause and reason for which he is being assaulted with the help of iron pipe and injuries sustained by him over his back and legs. He came to know about the incident as disclosed by the deceased about the cause and reason for which he is being assaulted with the help of iron pipe and injuries sustained by him over his back and legs. Thus, as such the siad witness is not an eye witness to the incident and evidence of the said witness is not reliable at all. He submitted that at the best it can be said that the said witness had seen the movement of the accused persons post incident leaving the scene of offence on a motorcycle. 3.02. Mr.Barot, learned counsel appearing for the appellants further submitted that the said eye witness Bhalabhai Chandubhai Parmar PW No.17 Ex.77 has identified the appellants in the identification parade as well as in the Court, though he had a very brief acquaintance with the accused persons. The said witness had admitted in his evidence that he had seen the accused persons for the first time on the date of incident. It is submitted that therefore, the identification of the accused by the said witness is also doubtful and not believable and no weightage as a corroborative evidence can be given. 3.03. Mr.Barot, learned counsel appearing for the appellants further submitted that the police arrested the accused persons on 11/5/2011 and Test Identification Parade was conducted on 13/5/20 and therefore possibility of the accused persons being shown to him in advance cannot be ruled out. Even said witness admitted that he had come down to the Court premises for about twice or thrice, he saw accused persons sitting outside the court room. Therefore, even his identification in a Court is also under a realm of doubt. He submitted that therefore, the identification parade cannot be believed and no weightage can be given to the identification parade also. He submitted that therefore, the identification parade and identification in a Court is not reliable. 3.04. Mr.Barot, learned counsel appearing for the appellants further submitted that the so far as the Test Identification Parade carried out at the behest of said eye witness Bhalabhai Chandubhai Parmar PW No.17 Ex.77 is concerned, it is submitted that the said witness has deposed in his deposition that he had not received any communication from the office of the Mamlatdar for the purpose of Test Identification Parade, but has received a phone call from the police station. 3.05. 3.05. Mr.Barot, learned counsel appearing for the appellants further submitted that it is the case of the prosecution that pipe blows, were inflicted upon the back and legs of the deceased, however, if the evidence of eye witness is seen and cross checked with the medical evidence relating to the cause of death of deceased, Dr.Arvindkumar Dalwani PW No.14 Ex.65, in his chief examination by itself clarifies by deposing that once having perused Histopathological report dated 9/7/2011, he has opined of injuries sustained by the deceased were not sufficient enough in ordinary course to cause death of the deceased. The probable and possible cause of death of the deceased is on account of a cardiac arrest resulting into non-supply and stoppage of blood flow in the heart. In view of evidence of Medical Officer, who had an occasion to conduct the postmortem of the deceased, once having opined of injures sustained by the deceased are not sufficient enough to cause his death vis-a-vis the actual cause of death is on account of a cardiac arrest by a fright, how far a conviction under section 302 would sustained in the eye of such a medical evidence more particularly in absence of any fruitful injuries as found in column No.17 of the postmortem note as also the ultimate cause of death of the deceased. 3.06. Mr.Barot, learned counsel appearing for the appellants further submitted that the trial court has erred in convicting the appellants relying on the oral dying declaration by the deceased before his wife PW No.1 his daughter PW No.24 Ex.87, sole witness PW NO.17 EX.77 and lastly before his relative - PW No.20 EX. No.82. 3.06. Mr.Barot, learned counsel appearing for the appellants further submitted that the trial court has erred in convicting the appellants relying on the oral dying declaration by the deceased before his wife PW No.1 his daughter PW No.24 Ex.87, sole witness PW NO.17 EX.77 and lastly before his relative - PW No.20 EX. No.82. He submitted that over and above testimony of sole witness, a test identification parade as a corroborative piece of circumstances and a medical opinion, case of prosecution also talks about the deceased having passed on the background in which he is being assaulted to various witnesses like his wife, daughter, a relative, the sole witness of the case and lastly before a relative, and therefore, a background as passed on by the deceased in form of an oral dying declaration just before his death, in absence of any prosecution witness having actually seen the accused persons doing away with the deceased, the deceased referring to a background in which the incident has taken place, by itself pales into insignificance who no minute details as such, in regard to name, description and specific overt act played by the individual accused persons and is therefore, not to be considered a proved conclusive circumstance against the accused persons in the eye of law. 3.07. Mr.Barot, learned counsel appearing for the appellants further submitted that Mr.Barot, learned counsel appearing for the appellants further submitted that the trial court has erred in convicting the appellants relying on the joint discovery of an iron pipe allegedly used in the commission of the offence though the same cannot be considered as circumstance conclusively and individually proved by the prosecution. He submitted that the accused persons also faced a circumstance in nature of a joint discovery of an iron pipe from a gutter as located near the scene of offence, to which the appellants as accused persons would respond by submitting that once the panch to a joint discovery have not supported the case of the prosecution and are declared hostile at Ex.58, the same having not been proved to the investigating officer as required under section 27 of the Evidence Act, particularly when it was a joint discovery panchanama at the behest of all the accused persons, and therefore, the circumstance would not lend support to the case of the prosecution. 3.08. 3.08. Mr.Barot, learned counsel appearing for the appellants further submitted that the trial court has erred in convicting the appellants relying on the circumstance of purchase of a handkerchief by the accused persons from PW No.9 at Ex.8 and treating the same as a link to establish a case of section 120B of the Indian Penal Code. He submitted that the prosecution has examined PW No.19 Ex.8 to prove purchase of a handkerchief by the accused persons the allegedly tied over the face of one of the accused persons at the time of commission of the offence. He contended that however, the said witness has not supported the case of the prosecution and is declared hostile. He contended that therefore, the said circumstance cannot be said to be proved against the accused persons. 3.09. Mr.Barot, learned counsel appearing for the appellants further submitted that PW No.16 is examined Ex.75 to support and clarify concerning of an iron pipe at the house of the said witness by the accused persons to which, again the said witness have not supported the case of the prosecution and is declared hostile and therefore, even the said circumstance also cannot be said to be proved against the accused persons in letter and spirit. 3.10. Mr.Barot, learned counsel appearing for the appellants further submitted that in overall assessment of the said circumstances, be it a purchase of a handkerchief and an iron pipe concealed at the house of PW No.16 pre-incident, other than witnesses not supporting the case of prosecution, prosecution has miserably failed to prove the very existence of criminal conspiracy hatched amongst the accused persons pre-incident. 3.11. Mr.Barot, learned counsel appearing for the appellants further submitted that the trial court erred in relying upon the evidence of daughter of deceased PW No.24 Ex.87 to prove the motive of the accused persons to commit the crime in question. He submitted that the said witness in her evidence does refer to her entering into relationship with the original accused No.4 vis-a-vis acid being thrown over her fact in past, for which the very set of accused persons were tried for an offence under section 307 of IPC. He submitted that the said witness in her evidence does refer to her entering into relationship with the original accused No.4 vis-a-vis acid being thrown over her fact in past, for which the very set of accused persons were tried for an offence under section 307 of IPC. He submitted that in her overall evidence, she confirms of no sort of harassment was meted out by the accused No.4 once she decided to have divorce from him nor she had any occasion to meet him after the so-called understanding. He submitted that the said witness on an assumption only comes to a conclusion that since acid was thrown on her face in past, the very set of accused persons must have involved in the incident in question, to which the said witness does not have any sure sort of information as regards the very set of accused persons - appellants are involved in the commission of the offence in question. But because it seems that she was nurturing hatred towards accused No.4 for an episode took place with her in past, a background is sought to be canvassed by her to say that appellants accused persons had a reason to assault the deceased. However, there is no fruitful evidence in that regard. 3.12. Mr.Barot, learned counsel appearing for the appellants further submitted that the learned trial court is not justified in convicting the appellants under section 120B and 114 of IPC in facts and evidence led on the record. He submitted that the investigating officer - prosecution witness specifically deposed that he had material to show that all the accused persons have hatched conspiracy to which statements were also came to be recorded. There was material available with him to show that the accused persons had tea at the canteen of one Mohammadbhai so also he had material to suggest that the accused persons pre-incident used to come together as supported by independent witness like Devkumar Omprakash Yadav and Mohammad Shagiraalam Patha, but because the said set of witness are not examined by the prosecution, there exists no material to say that the accused persons hatched conspiracy inter-se, and therefore, conviction u/ss.120B and 114 of IPC cannot be sustained. 3.13. 3.13. Mr.Barot, learned counsel appearing for the appellants further submitted that, lastly a corroborative circumstance as regard a discovery of an iron pipe whether carried blood of the deceased or not, although there is a discovery shown of an iron pipe from a gutter placed near Valsad Cross Roads, there are no blood marks found from the pipe as supported by an FSL and Serological report, nor there are any blood marks found over the clothes of any of the accused persons establishing their presence and involvement in the crime on hand, so therefore also, the said circumstance falls in favour of the appellants while assailing the overall case of the prosecution. 3.14. Mr.Barot, learned counsel appearing for the appellants lastly submitted that looking to the injuries sustained by the deceased and the cause of death, the conviction under section 302 of IPC cannot be sustained and the conviction is altered under section 324 of IPC. Submitting accordingly, it is prayed to quash and set aside the impugned judgment and order of conviction or it may be converted to under section 324 of IPC and reduce the sentence to the period already undergone and order to release the appellants forthwith. 4. The appeal is opposed by Mr.Ronak Raval, the learned APP appearing for the State. He submitted that the prosecution has successfully proved the case beyond reasonable doubt. He further submitted that the witnesses have supported the case of the prosecution. He submitted that the judgment and order of conviction and sentence passed by the trial court is on appreciation of evidence and same is according to the weight of the evidence on record. He submitted that offence under section 302 read with section 120B and 114 of IPC is proved by the prosecution against the accused by leading cogent and convincing evidence. He submitted that no error has been committed by the trial court in convicting and sentencing the accused. He submitted that the impugned judgment and order of conviction is not required to be interfered with. He prayed that the appeal be dismissed. 4.01. Mr.Ronak Raval, the learned APP appearing for the State submitted that there is independent witness PW No.17 Ex.77. The said witness has deposed that he had seen the accused at the place of offence and he had seen the accused leaving place of offence. He prayed that the appeal be dismissed. 4.01. Mr.Ronak Raval, the learned APP appearing for the State submitted that there is independent witness PW No.17 Ex.77. The said witness has deposed that he had seen the accused at the place of offence and he had seen the accused leaving place of offence. The said witness has further stated that he had gone to the deceased and on asking the deceased as to what happened to him, the deceased informed the said witness that the persons assaulted on him were the persons from the side of whom his daughter had married. He submitted that the said witness has identified three accused namely Nawabkhan Ahmedkhan Pathan, Kishorbhai Chandubhai Devipujak, Rafiq @ lalo Punjabhai Rathod. He submitted that the deposition of said witness PW No.17 is supported by the deposition of Executive Magistrate PW No.8 Ex.79 as well as deposition of Arjunbhai Jivabhai Patel PW No.22 Ex.85. It is submitted that the accused were identified in the identification parade Ex.80 and same is supported by the Executive Magistrate PW No.18 Ex.79. 4.02. Mr.Ronak Raval, the learned APP appearing for the State. He submitted that there is oral dying declaration of the deceased before his wife PW No. Ex.33, his daughter PW No.24 Ex.87, sole witness PW NO.7 Ex.77 and relative of the deceased PW No.20 Ex.82. 4.03. Mr.Ronak Raval, the learned APP appearing for the State has submitted that prosecution witnesses - PW No.13 Ex.62 Dr.Dhavalbhai Manubhai Bhatia, PW No.14 Ex.65 Dr.Arvindkumar Jethabhai Dalwadi and PW No.15 Ex.72 Dr.Meena Ravjibhai Daweshwar have supported the case of the prosecution. 4.04. Mr.Ronak Raval, the learned APP appearing for the State. He submitted that complainant PW NO.1 Ex.33 - Janakben Prakashchandra Shah, independent witness PW No.17 Ex.77 - Bhalabhai Chandubhai Parmar, PW No.18 Ex.79 - Bhavna Shamjibhai Barad and PW No.21 Ex.83 - Jigarkumar Prakashbhai Shah (son of the deceased), PW No.24 Ex.87 - Twinkle Prakashchandra Shah, investigating officers PW No.25 and PW No.26 and other witnesses have supported the case of the prosecution. 4.05. Mr.Ronak Raval, the learned APP appearing for the State further submitted that there are other corroborative evidence and attending circumstances like FSL Reports, IT Parade, various panchnama etc. which also supported the case of the prosecution. 4.06. Mr.Ronak Raval, the learned APP appearing for the State further submitted that even the motive is also proved. 4.05. Mr.Ronak Raval, the learned APP appearing for the State further submitted that there are other corroborative evidence and attending circumstances like FSL Reports, IT Parade, various panchnama etc. which also supported the case of the prosecution. 4.06. Mr.Ronak Raval, the learned APP appearing for the State further submitted that even the motive is also proved. It is submitted that the accused No.4 had married with the daughter of the deceased and said marriage was love marriage, however, the said marriage was dissolved and hence the accused No.4, keeping grudge of divorce with the deceased hatched the conspiracy and committed murder with the help of other accused. He submitted that the motive is proved from the deposition of the daughter of the deceased PW No.24 Ex.87. 5. Heard Mr.Pratik Barot, the learned counsel for the appellants and Mr.Ronak Raval, the learned APP appearing for the State at length. Perused the impugned judgment and order of conviction. Re-appreciated the evidence on record. 6. On consideration of the evidence on record, the following facts emerge :- 6.01. The incident occurred in the morning at 8 a.m. on 6/5/2011 and the victim passed away on the same day. The postmortem was carried out at 4.30 p.m. In column No.17, the Doctor has noted only two external injuries namely (1) 1.5 CLW on left leg and abrasion about 1" X 1.1/2" on the upper part of the left shoulder. The Doctor also found fracture of left the tibia and fibula on the upper end. As per the Certificate issued by the Doctor which is at Ex.71, the injury caused to the deceased was not sufficient to cause death and according to the said certificate, the probable cause of death was cardiac arrest. In such circumstances it cannot be said that the injuries suffered by the deceased led to the death of the deceased. 6.02. It is the case of the prosecution that after the incident, the victim was immediately taken to the hospital of Dr.Dhaval Bhatiya PW No.13 but according to the Doctor, the patient had already died. 6.03. We have perused the judgment of the trial court threadbare. The central point of the argument of the learned counsel for the appellants is that the appellant cannot be convicted for the offence punishable under section 302 of IPC. So we have concentrated on the same. 6.03. We have perused the judgment of the trial court threadbare. The central point of the argument of the learned counsel for the appellants is that the appellant cannot be convicted for the offence punishable under section 302 of IPC. So we have concentrated on the same. In our considered opinion, the trial court, after appreciating the evidence, has precisely established the presence of accused at the scene of offence and his involvement in the crime and weapon - iron pipe. There cannot be any ostensible evidence in this regard because it is a mental state of the assailant, but the mental state can be inferred with the conduct and surrounding circumstances. Now, in our view, if the blow is not given n vital part of the body like head with such a force which results in injuries sustained by the deceased, knowledge, on the part of the assailant tat the act was likely to cause death can safely be inferred. However, the crucial issue is as to which was the appropriate provision to be applied looking to the overall evidence. The trial court has not adverted to any reason apropos the submissions made by the accused that the injuries to the victim are not sufficient to cause death in ordinary course. However, it is not the case of the prosecution that there was any attempt on the part of the appellant to cause further injuries. In the present case, firstly, the injury is present. Secondly, the nature of injuries is proved. Thirdly, the injury inflicted are not on the vital part of the body which could be resulted in death. In the light of the circumstances and scenario presented before us, it is hard to accept that there was an intention of the accused of causing murder. However, we certainly satisfied that there is sufficient evidence that the accused in connivance with each other had inflicted grievous hurt to the victim. Thus, it would be appropriate to hold the accused guilty of causing grievous hurt which would bring the present case within the ambit of section 326 of the IPC. 6.04. However, we certainly satisfied that there is sufficient evidence that the accused in connivance with each other had inflicted grievous hurt to the victim. Thus, it would be appropriate to hold the accused guilty of causing grievous hurt which would bring the present case within the ambit of section 326 of the IPC. 6.04. Under the circumstances, we find substance in the submission of the learned counsel for the accused that the trial court erred in convicting the accused for the offence under section 302 instead of section 326 and hence the conviction is required to be altered to one under section 326 of Indian Penal Code and the sentence is required to be reduced to the period already undergone. 7. In the result, the appeal succeeds in part. The impugned judgment and order of sentence passed by the Sessions Judge, Anand in Sessions Case No.71 of 2012 dated 10/3/2016 is hereby quashed and set aside. The conviction of the appellants is altered to section 326 of the IPC and the sentence of the appellants is reduced to the period already undergone. The appellants - original accused Nos.1, 3 and 4 are ordered to be released forthwith, if not required in any other case. The appeal is partly allowed in the aforesaid terms.