JUDGMENT Mukerji, J. - This is an appeal by Sidheshwar, aged 30 years, a resident of Kanpur, who has been convicted u/s 302 of the IPC and sentenced to death by the learned Sessions Judge of Kanpur. Along with the appeal there is the usual reference u/s 374 of the Code of Criminal Procedure by the learned Judge for the confirmation of the sentence of death passed on the Appellant. 2. On the 9th of June, 1955, one Chhotke was stabbed in the back by Sidheshwar, who was assisted by three others, namely, Chhanga, Ram Prasad and Maiku. The attack was made in a locality near the Bara Chauraha of Gilis Bazar, Kanpur, at the door of a Hata known as the Bhainsiya Hata, at about 5-15 in the evening on 9-6-1955. The assault was witnessed by some persons and in particular by Lal Singh, Puttan Singh, a young girl by the name of Kumari Ram Babul, and one Chhote Lal--these persons appeared in the case as eye-witnesses to prove the assault. Chhotke received grievous injury to his back. According to the prosecution case, Ram Prasad caught hold of Chhotke by the collar, Maiku shouted "dekhte kya ho, mar sale ko" and then Sidheshwar Appellant picked out a karauli from his waist and gave a blow to Chhotke on his back, with the result that the blow fell 1 1/2" away from the middle line of the right side of the back penetrating through the sixth intercostal space and causing an injury 2 1/4" X 3/4" X pleura cavity. Chhotke was almost immediately taken to the police station, which was at a distance of only two furlongs from the scene of occurrence and from there he was sent to hospital where he died at 7 p.m. 3. Chhotke was an employee in a shop which was owned by Chhotey Singh and Lal Singh and which sold sweets, puris and parathas and was situate in Mohalla Bara Chauraha, Gilis Bazar. Lal Singh was at his door at the time of the assault and so he was able to witness he occurrence; he, however, was unable to render any assistance save getting a rick; haw, placing Chhotke on it and taking him to the police station and the hospital. A kind of bandage was put round the bleeding wound of Chhotke. 4. A kind of bandage was put round the bleeding wound of Chhotke. 4. A first information report was lodged by Lal Singh at police station Kotwali at 6-25 p.m. on 9-6-1955. In this first information report four persons were nominated as assailants. The first information report gives the reason for the assault as also the manner in which the assault was made on Chhotke and it would be, in our opinion, appropriate at this stage to quote the entire first information report. The report was as follows: I live in Gilis Bazar, Chhotke Kahar of Patkapur also lives in my house and used to work in my shop. At 6-15 o'clock this evening I was sitting at my house. Chhotke Kahar had gone towards the shop of Lalman. Just then Chhanga Kori of Ram Mohan Ka (sic) came to me and enquired about Chhotke. I told him that he had gone towards the shop of Lalman. After a short time I saw that Chhanga and Chhotke were returning towards home from the shop of Lalman. As soon as both of them reached in front of Bhainsiya Hata on the road, Sidheshwar alias Lala of Bangali Mohal, Ram Prasad Kori of Hata Ram Mohan came out from Bhainsiya Hata, Maiku washerman of Ram Mohan ka Hata also came there. Ram Prasad caught hold of Chhotke. Maiku accosted and Sidheshwar alias Lala struck Chhotke with a karauli on his back. He shouted. Puttan Singh, Chhote Lal of Gilis Bazar, Sarju of Bangali Mohal, Manna (wrongly written as Panna) of Gilis Bazar, I and several other men of the Mohalla and the passersby who were there ran up there. Sidheshwar alias (Lala ran away towards the compound of Kailash Temple and the rest of them ran away towards Ram Mohan ka Hata. Musammat Ram Babul, daughter of Ram Nath of Gilis Bazar was also present there. After having made Chhotke sit in a rickshaw I have brought him and have come to make a report. His condition is serious. He may be sent to the hospital soon. Four days ago Sidheshwar had come to my shop and having made purchases from Chhotke he at those things. He did not make payment. He used abusive language when a demand was made from him and held out threats and said that he (Sidheshwar) would settle things with him (Chhotke). He may be sent to the hospital soon. Four days ago Sidheshwar had come to my shop and having made purchases from Chhotke he at those things. He did not make payment. He used abusive language when a demand was made from him and held out threats and said that he (Sidheshwar) would settle things with him (Chhotke). Day before yesterday Sidheshwar alias Lala, Chandar, Babu and Hari led a raid on my house and enquired as to where Chhotke was. They used abusive language and held out threats and pelted brick-bats and gummas. The people of the Mohalla and the passersby asked them not to do so. Then these men went away. In this connection Ram Nath also rebuked Sidheshwar alias Lala. My complaint against Sidheshwar alias Lala and (one word not decipherable) Ram Prasad, Chhanga and Maiku is for inflicting injuries on Chhotke in order to kill him.... 5. It may be, at this stage, pointed out that the same evening, a few minutes later, Sidheshwar was alleged to have also attacked Ram Nath, the Ram Nath who is referred to in the first information report as being one of the persons who had rebuked Sidheshwar. We refer to this incident because in this case there is evidence to show that there was such an attack, further there was evidence to show that in respect on that attack there was a separate trial in which Sidheshwar was convicted and sentenced, but this is only referred to here just to indicate that what was contained in the first information report in regard to the dispute, which is alleged to have been the motive for this crime, had a good deal of foundation. Chhotke, the deceased, is stated to have said to the Head Moharrir Ram Narain Singh, who took down the first information report, that he had been attacked by Sidheshwar with a karauli. No statement, however, was recorded of Chhotke in the sense of a dying declaration or in the sense of a report by him of the incident, but Ram Narain Singh made an entry in the general diary of the fact that Chhotke had stated that he had been attacked by Sidheshwar with a karauli. 6. A post-mortem was conducted on the body of Chhotke on 10-6-1955 at 7-30 a.m. by Dr. B.W. Lyall, Civil Surgeon, Kanpur. 6. A post-mortem was conducted on the body of Chhotke on 10-6-1955 at 7-30 a.m. by Dr. B.W. Lyall, Civil Surgeon, Kanpur. The following injuries were found on the body: (1) "Stab wound on the right side of back 1 1/2" away from the middle in the sixth intercostal space 1/4" X 3/4" X pleural cavity. (2) Linear abrasion 1 3/4" long over the right costal margin." The right pleura was found cut 1" long under injury No. 1. Right pleural cavity was full of clotted and liquid blood-quantity being 2 1/2 pints. The right lung was punctured in middle and in the lower lobes through and through under injury No. 1. Death was due, according to the medical opinion, to syncope, following from injury No. 1. 7. Four persons were put up for trial before the learned Sessions Judge of Kanpur. They were the Appellant, Chhanga, Ram Prasad and Maiku. The learned Judge charged Sidheshwar as follows: That you on or about the 9th day of June 1955 at about 6-15 p.m. near Bhain-siya Ahata, Mohalla Gilis Bazar, police station Kotwali, Kanpur, committed murder by intentionally causing the death of Chhotke with a karauli and thereby commited an offence punishable u/s 302 of the Indian Penal Code.... 8. As against the other three Appellants this is how the: charge was framed: That you on 9-6-1955 at about 6-15 p.m. near Bhainsiya Ahata, Mohalla Gil's Bazar, police station Kotwali, Kanpur, committed murder by intentionally causing the death of Chhotke in furtherence of the common intention of you all and Sidheshwar co-accused. You Chhanga brought Chhotke to the scene of murder and you Maiku instigated Sidheshwar and Ram Prasad to kill Chhotke and you Ram Prasad caught hold of Chhotke by the collar of his shirt and thus Sidheshwar inflicted a karauli blow on his back and thus killed Chhotke in furtherance of your common intention, and thereby committed an offence punishable u/s 302/34 and 302/109 of the Indian Penal Code.... 9. The trial Judge has acquitted Chhanga and has convicted Ram Prasad u/s 352 IPC, and Maiku u/s 352/109 IPC, and sentenced each of them to rigorous imprisonment for three months only. We cannot help stating, at the very outset, that we have been unable to understand how the learned Judge convicted Ram Prasad and Maiku u/s 352 only. 9. The trial Judge has acquitted Chhanga and has convicted Ram Prasad u/s 352 IPC, and Maiku u/s 352/109 IPC, and sentenced each of them to rigorous imprisonment for three months only. We cannot help stating, at the very outset, that we have been unable to understand how the learned Judge convicted Ram Prasad and Maiku u/s 352 only. The judgment of the learned Judge in regard to this matter is thoroughly jejune. No adequate reasons have been given to show why Maiku and Ram Prasad could not have been convicted of the offences with which they were charged. On the prosecution evidence, as it stood, there was ample material to hold that all the accused, who were before the learned Sessions Judge standing their trial, had a common plan which was motivated or worked out by a common intention. Chhanga played his part, while the other two Maiku and Ram Prasad played their parts. The learned Sessions Judge appears us to have completely gone wrong in weighing the circumstances which should have been weighed in determining the guilt of Chhanga, Maiku and Ram Prasad. We need, however, say no more about this matter since there is no appeal before us against the acquittal of Chhanga Maiku and Ram Prasad of the charge u/s 302/34 or 302/109 I.P.C., nor is there an appeal before us by Maiku and Ram Prasad against their convictions and sentences. 10. The prosecution attempted to prove their case by three types of evidence; first--and the most important--by eye-witness account of the actual assault. The second type of evidence that was adduced was of a circumstantial nature, namely, first evidence of motive and second, evidence showing association and evidence of at least one witness, showing that Sidheshwar was seen running away from the scene of occurrence very soon after the assault with a blood-stained karauli in his hand. The third type of evidence is the evidence given by three witnesses, who deposed to have heard Chhotke crying out while he was being taken on a rickshaw to the police station that he had been attacked by Sidheshwar with a karauli. 11. As a preliminary to the actual assault, we may first notice the evidence that has been adduced on behalf of the prosecution of motive. Three witnesses, Chhotey Singh, Lal Singh and Mewa Lal speak of it. 11. As a preliminary to the actual assault, we may first notice the evidence that has been adduced on behalf of the prosecution of motive. Three witnesses, Chhotey Singh, Lal Singh and Mewa Lal speak of it. Chhotey Singh and Lal Singh said that there was a quarrel between Sidheshwar and Chhotke over the payment of certain price for eatables which Sidhehwar had consumed at the pari shop of Chhotey Singh and had not paid for them. Mewa Lal proves that about three days prior to the occurrence there was some quarrel between Lal Singh and Sidheshwar accused. On the 7th of June a report was made at police station Kotwah by Chhotey Singh against Sidheshwar and three others in regard to the incident about which Mewa Lal P.W. 9 spoke in his evidence. Chhotey Singh also proves the quarrel that took place between Chhotke and Sidheshwar over the non-payment of the dues in respect of purchases made from his shop. From the evidence it is clear that the cause for this assault was the dispute that had taken place between Chhotke and Sidheshwar over the non-payment of pricee of eatables taken from the shop. From the evidence it is also clear that Chhotke and Sidheshwar were rough people and 'fighting and quarrelling' to them almost second nature. According to the eye-witntsses, namely, Lal Singh, Puttan, Singh, Kumari Ram Babul and Chhote Lal, on the date of the incident Sidheshwar assaulted Chhotke with a knife after Maiku had shouted "dikhte kya ho mar sale ko" and after Ram Prasad had caught hold of Chhotke by the collar in order that Chhotke did not run away, as Chhotke was attempting to Lal Singh was a part owner of the shop with his father from which the purchases had been made and not paid for by Sidheshwar and at which shop Chhotke was an employee as a salesman. No adequate reason has been shown why Lal Singh should have falsely stated anything against any of the accused in the case. Lal Singh made the first information report at the police station within a few minutes of the assault and in that first information report he gave all the relevant details so that the first version of the assault was recorded at the earliest opportunity; before there was opportunity to improve upon it or to fabricate things in it. 12. Lal Singh made the first information report at the police station within a few minutes of the assault and in that first information report he gave all the relevant details so that the first version of the assault was recorded at the earliest opportunity; before there was opportunity to improve upon it or to fabricate things in it. 12. Puttan Singh was a passerby and not a person living in the immediate neighbourhood. His testimony was severely criticised by Mr. S.N. Misra on the ground that he had been appearing for the police and the Excise Department very often; further that he was not a witness on whom much reliance could be placed because he had been bound down Under Sections 107 and 109 of the Code of Criminal Procedure It was also pointed out that there was something in this witness which prompted him to go out of his way to take interest in the investigations etc., inasmuch as he went to the Kotwali and stayed there for some time. After carefully scruinising the testimony of this witness, we are of the opinion that it would be safer not to rely on his testimony, for we do find him appearing for the prosecution very often in cases and we also find that he was a chance witness and a witness whose antecedents were not above suspicion. 13. Chhote Lal was also a passerby but even so we have seen nothing in his cross-examination which made us doubt his testimony. An attempt waft made to shake his credit by showing that he had been contradicted by Lal Singh in regard to the dress that Lal Singh (witness) was wearing at the time when Lal Singh came out and witnessed the assault. We are unable to hold that because of this contradiction the testimony of this witness should be rejected. We have found nothing on which we could otherwise doubt the testimony of Chhote Lal. 14. Kumari Ram Babui P.W. 3 was a young girl of ten years. She lived in the locality and was at the time of the assault playing with her little brother just a few steps away from the scene of assault. She described the assault graphically and she stood her cross-examination, which was fairly full, perfectly. 14. Kumari Ram Babui P.W. 3 was a young girl of ten years. She lived in the locality and was at the time of the assault playing with her little brother just a few steps away from the scene of assault. She described the assault graphically and she stood her cross-examination, which was fairly full, perfectly. The trial Judge was impressed by her demeanour and the trial Judge has recorded that she gave her statement "in a straight-forward and convincing manner". We have ourselves carefully scrutinised her evidence and we are satisfied that her evidence was reliable. Mr. Misra, appearing on behalf of the Appellant, contended that Kumari Ram Babui gave tutored evidence because of the assault which had been made by Sidheshwar on Ram Nath a few minutes later the same evening on which he is alleged to have assaulted Chhotke. We are unable to hold that that was the reason why Kumari Ram Babui was figuring as a witness in this case. It may be pointed out here that Kumari Ram Babui was specifically named as a witness in the first information report which was taken down earlier in point of time than the report of the assault on Ram Nath by Sidheshwar. There is nothing in the evidence to indicate that Lal Singh knew at the time when he made the first information report that there had been an attack by Sidheshwar on Ram Nath also. There is a pointed reference in the first information report of the fact that in the earlier quarrel Ram Nath rebuked Sidheshwar: so that if Lal Singh bad been aware of the fact that Sidheshwar had attacked Ram Nath also the same evening, then he would, in our view, certainly have made a reference to it also. We do not think learned Counsel's argument is right that Kumari Ram Babui was mentioned as a witness because Lal Singh was sure that he would be able not only to persuade Ram Babui, but to coach her up properly, to give false evidence, as true evidence, in this case. We do not think Lal Singh had either the capacity or the foresight to do what was suggested by learned Counsel lor the Appellant. We do not think Lal Singh had either the capacity or the foresight to do what was suggested by learned Counsel lor the Appellant. We reiterate that we were greatly impressed by the testimony of this witness, Kumari Ram Babui, and we are of the opinion that she should be believed and we do believe her. 15. In view of the fact that we have found the eye-witness account of the assault unquestionably true, we think it unnecessary to enter into the other type of evidence which we characterised as more or less circumstantial in nature. The evidence adduced by those witnesses, who say that they heard Chhotke cry out saying that he had been assaulted by Sidheshwar with a karauli. also needs no close scrutiny in view of the eye-witness account of the assault, but we may, nonetheless, mention the fact that we saw no reason to disbelieve this last category of evidence, for we saw nothing in either the injury sustained by the deceased or other attendant circumstances to entertain a doubt in regard to the deceased's capacity to speak soon after the assault on him. 16. The defence of the Appellant was a total cenial. Sidheshwar's defence was that he had been falsely implicated because the police were opposed to him. It is no doubt true that Sidheshwar was prosecuted several times and was acquitted in some cases, but that, in our opinion, could be no reason for the police to go to the length of manufacturing a false case against Sidheshwar and even if the police had the desire to do a thing of that kind, the police could not have influenced Lal Singh, Kumari Ram Babui and Chhote Lal to give false evidence against Sidheshwar. 17. Mr. Misra, appearing for the Appellant, contended that the offence that had been committed by the Appellant was not punishable u/s 302 of the IPC but was punishable u/s 304, Part I. Mr. Misra's contention was that on the evidence, intention to kill, or to cause such bodily injuries as were likely in the ordinary course of nature to lead to death was not made out. We are unable to agree with this contention of Mr. Misra. The intention has to be gathered, primarily from the act committed. As a general rule, every man is taken to intend the natural and probable consequences of his own acts. We are unable to agree with this contention of Mr. Misra. The intention has to be gathered, primarily from the act committed. As a general rule, every man is taken to intend the natural and probable consequences of his own acts. This has been held in several English cases. 18. In the case of Rex v. William Varrington (1811) Russell, Ryan's Reports p. 207 it was held that the intent of a man has to be inferred necessarily from the act and the consequences thereof. 19. In the case of the King v. Dixon (1814-15) Maule & Salwyn's Reports p.11 Lord Ellenborough, C.J., is quoted to have held that "it was a universal principle, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act." 20. It is clear that there can be no direct evidence of a man's intention; intention has got to be gathered from, primarily, the act itself. If a man attacks another with a knife and causes a vital injury, then it cannot be said that the man intended anything less than causing such bodily injuries as he knew were likely in the ordinary course of nature to lead to death. Mr. Misra argued that the exhortation which Maiku made for the attack was 'Mar' and not 'Mardalo' and, therefore, there was nothing to indicate that the intention of Sidheshwar was to do anything more than to give a beating. We are unable to agree with this contention, for, in our opinion, he word 'Mar' is a generic term and is usable when some one exhorts another to kill as well. On the facts and circumstances of this case there is nothing to indicate that the intention of Sidheshwar was anything else than to kill. We have, therefore, been unable to hold that Sidheshwar could be punished for any other offence save the one punishable u/s 302 of the IPC. 21. Mr. Misra lastly contended that in this case we should not impose the extreme penalty prescribed by law. We regret we are unable to agree to this contention either, for we find no extenuating circumstances on which, as a court of law, we could justly commute the sentence. Mr. 21. Mr. Misra lastly contended that in this case we should not impose the extreme penalty prescribed by law. We regret we are unable to agree to this contention either, for we find no extenuating circumstances on which, as a court of law, we could justly commute the sentence. Mr. Misra made a plea for mercy, but as we pointed out to him, ours was not a sphere in which we could depart from law in the name of mercy. An appeal to that effect has to be made to an authority that has that power. 22. In the result, we dismiss this appeal, uphold the conviction and the sentence passed on the Appellant and accepting the reference made by the learned Sessions Judge direct that the sentence of death be carried out in accordance with law.