IMPORTANT POINT
Injury on non vital part of body calls for alteration of charge from murder to culpable homicide.

BIREN VAISHNAV, J.

1. Both these criminal appeals arise out of judgement and order dated 29.01.2013 passed by the 5th Additional Sessions Judge, Junagadh. By the aforesaid judgement and order passed in Sessions Case No. 57 of 2009, the learned Sessions Judge has convicted all the accused for life imprisonment for offence under section 302 read with Sections 143, 147, 148, 149, 504 of the IPC and section 135 of the Bombay Police Act. The case of the prosecution as is evident from the reading of the first information report at Exh 137 is as under:

2. On 14.05.2009, when the complainant Bharatbhai Jinabhai Chhaiya was on his way to Manavadar from village Bhindora, at around 11:30 in the morning, he saw Ahir Punjabhai being attacked by six people namely Haresh @ Haja Mandan Chhaiya with a spear, Parbat @ Bava Mandan Chhaiya with an axe, Jagmal Mandan with a gupti, Lala Jagmal with a iron pipe, Govind @ Ganda Vasan Chhaiya with a spear and Raimal Karsan Chhaiya with an iron pipe. According to the version in the complaint, Aahir Punja's son Jagmal Chhaiya ran towards the complainant. Bharatbhai and Bhupatbhai tried to intervene and rescue Punjabhai. Several people had gathered at the scene. Punjabhai had suffered injuries as a result of being hit by pipes, spear and axe and was bleeding. The six accused named in the first information report left the scene with their weapons. The complainant Bhupatbhai and Jagmal Chhaiya carried Punjabhai to his vadi where they informed Punjabhai's wife Dhanbaiben and Heena, daughter of Punjabhai about the incident. Punjabhai was shifted to the Jungagadh Civil Hospital where he succumbed to the injuries sustained. According to the complainant, he was an eyewitness to this incident and the motive behind this was an election dispute. According to the complainant Punjabhai's wife Dhanbai ben had defeated Haresh Chhaiya's wife Jigyasaben in the election to the Gram Panchayat.

3. The Sessions Court framed a charge at Exh 13 implicating all the accused for offences under sections 143, 147, 148, 149, 504 and 302 of IPC and section 135 of the Bombay Police Act.

4. The case of the prosecution essentially rests on three eyewitnesses viz. PW 26, the complainant-Bharatbhai who was examined at Exh 131, P.W. 27, Jagmalbhai Chhaiya, the son of the deceased Punjabhai, who was examined at Exh 141 and Bhupatbhai, P.W. 28, who was examined at Exh 24. P.W. 22, Dr. Tina Ukabhai Gohil is the Medical Officer, Government Hospital, Junagadh who carried out postmortem of the deceased Punjabhai.

5. The Medical Officer, Dr. Tina Gohil, who was examined at Exh 63 as P.W. 22 in her testimony states that on 14.05.2009, when she was working as a Medical Officer at the Junagadh Hospital, she received inquest panchnama and police yadi with the body of the deceased Punjabhai Aahir. She performed the postmortem which began at 5 pm and continued till 6:00 pm. External injuries according to the deposition of this doctor were thirteen in number and all were ante-mortem injuries. Consequential internal injuries have also been elicited in her testimony.

6. “17. (1)A fresh C.L.W. of 1 cm x bone deep, direction above downward laterally posteriorly situated over Lt. parietal region of scalp clotted blood, and half right parietal region.

2. Incised would of 1x1 cm x bone deep situated over anterior surface of junction of upper 2/3rd and lower 1/3rd fresh transverse in direction and clotted blood over Lt leg.

3. A fresh C.L.W. of 7x3 cm. x bone deep fracture or both Tibia and fibula bones situated over posterior surface of upper 3rd of left leg.

4. A fresh C.L.W. of 1x1 cm x bone deep clotted blood, posterior surface of lower 3rd of Rt arm.

5. A fresh C.L.W. of ½ x ½ cm. x ms. deep situated ½ cm. below injury No. 4.”

7. The postmortem report is produced at Exh 66. According to the postmortem report, the cause of death was shock due to intracranial hemorrhage due to head injury and multiple fractures of limbs. According to this doctor, injuries sh