Judgment G.N.Prasad, J. 1. These three appeals have been heard together since they have arisen out of the same trial. There is one appellant in each of them. Appellant Paltan Amat has been convicted under Sec.302, Indian Penal Code and sentenced to suffer imprisonment for life. Appellants Dharam Raut and Ramautar Rai have been convicted under sec. 302 read with Sec.34, as also under Sec.392 of the Code and each of them has been sentenced to undergo imprisonment for life on the first count and rigorous imprisonment for seven years on the second count. The sentences are to run concurrently. 2. The occurrence took place at the time of sun-set on the 26th May 1959 (Tuesday) on the west of village Bhatawalia in the field of Rambahadur Mahto (P.W. 6) situated to the adjacent north of a village road running between village Bhatawalia, on the east, and village Hira Kanhauli, on the west, within the jurisdiction of Belsand police station in the district of Muzaffarpur. This village road branches off at village Bhatawalia from the main road running between Belsand, on the south and Parsauni on the north, and runs westward in the direction of Hirakanhauli. The field where the occurrence took place lies at a distance of about 75 yards to the west of the Balsand Parsauni Road. There was a Banswari (bamboo clump) at a distance of about 95 yards to the north-east of the place of occurrence. There was a dilapidated Math, known as Aghori Math, at a distance of about 200 yards the south-east of the field of Rambahadur (P.W.6) mentioned above. 3. The victim of the occurrence was Chandrika Narain Singh of Hira Kanhauli which lies at a distance of about a mile to the west of the place of occurrence. All the three appellants are also residents of Hira Kanhauli. 4. It appears that on the evening in question Chandrika Narain Singh had come to Belsand dispensary in an injured condition, where he was examined by Jang Bahadur Sharma (P. W. 16), the Medical Officer of the dispensary, who found him in a restless condition. The Medical Officer (P.W. 16) sent a letter (Ext. 7) to this effect to the Sub-Inspector of Belsand police station at 8-45 p. m., in regard to which K.K. Singh (P. W. 22), the Officer-in-charge of the police station, had an entry (Ext. The Medical Officer (P.W. 16) sent a letter (Ext. 7) to this effect to the Sub-Inspector of Belsand police station at 8-45 p. m., in regard to which K.K. Singh (P. W. 22), the Officer-in-charge of the police station, had an entry (Ext. 13) madein his station diary at 8.50p.m. on the 26th May 1959. Thereafter P.W. 22 proceeded to Belsand dispensary, where he found Chandrika Harain Singh lying injured. His hands and feet were cut at several places and were bandaged. At 9 p.m. on the 26th May 1959, P.W. 22 recorded the fard-beyan (Ext. 2/1) of Basawan Raut (P.W. 2) of Hira Kanhauli who was present at Belsand dispensary, Chandrika was found by P.W. 22 to be in a position to speak, but not in a position to sign or give his thumb impression as both his hands had cut injuries which were bandaged. At about the same time, the Medical Offices (P.W.16) made a requisition (Ext. (1) to the police-officer for taking steps to record the dying declaration of Chandrika P. W. 22 forwarded the requisition to R.N. Pandit (P.W.19) who was the Circle Officer of Belsand and also a Magistrate in charge of armed forces. On receipt of the requisition, the Circle Officer (P.W. 19) came to Belsand dispensary and recorded the dying declaration (Ext. 8) of Chandrika there between 9-30 and 9-45 p. m. in the. presence of Rampat Kinkar (P.W. 20), who was running a private dispensary close to the State dispensary at Belsand. Chandrika was not in a poisition to sign the dying declaration or give his thumb impression thereon as his hands and feet were bandaged. The Circle Officer (P.W. 19), therefore, read over the dying declaration to Chandrika who admitted it to be correct, and it was attested by Rampat Kinkar (P.W. 20). On the basis of the fard began (Ext. 2/l), a formal first information report (Ext. 2/2) was drawn up at the police station at. 10-45 p. m. on the same night. 5. The sub-Inspector (P.W. 22) took steps to send Chandrika to Sitamarhi Hospital for better treatment after preparing an injury report (Ext. 14). Chandrika was accordingly brought to Sitamarhi Hospital, where he was examined by the Civil Assistant Surgeon, Dr. R.P. Sinha (P.W. 4) in the morning of the 27th May 1959. 10-45 p. m. on the same night. 5. The sub-Inspector (P.W. 22) took steps to send Chandrika to Sitamarhi Hospital for better treatment after preparing an injury report (Ext. 14). Chandrika was accordingly brought to Sitamarhi Hospital, where he was examined by the Civil Assistant Surgeon, Dr. R.P. Sinha (P.W. 4) in the morning of the 27th May 1959. As many as 18 injuries were found on his body, 17 of which were by sharp cutting weapon. Four of the injuries were simple and the rest were grievous. The condition of the patient was found by Dr. Sinha (P.W. 4) to be hopeless. At 11.30 a. m. on the same day, Chandrika died at Sitamarhi Hospital, and in regard to this an information (Ext. 3) was sent to the Sub-Inspector of Sitamarhi police station, which was received by an Assistant Sub-Inspetcor, H.K. Saran (P. W. 1), attached to Sitamarhi police station. P. W. 1 reached Sitamarhi hospital at 12 noon on the 27th May 1959 and held an inquest over the dead body of Chandrika. Thereafter the dead body was referred to the doctor (P. W. 4) who held the post-mortem examination over it at 3,50 p. m. in the afternoon of the 27th May 1959. 6. In the meantime, the Sub-Inspector (P. W. 22) proceeded with his investigation. He took the further statement of Basawan Raut (P. W. 2) and also examined Rajeshwar Prasad (P. W. 13) and Haranadan Mahto (P. W. 14) on the 26th May 1959. At 12.05 a.m. in the night between the 26th and 27th May 1959, P. W. 22 left for the place of occurrence during the night. He inspected the field of Ramabahadur (P. W. 6) in the morning of the 27th May 1959, wherein he found profuse blood, besides a cut portion of human finger and nail. He also noticed marks of scuffle in the field At a distance of about 93 yards to the south-west- of the field, which may be described as the P.O. field, the Sub-Inspector found a cycle lying on the handle of which was engraved Dr. C.N. Sinha. Some rotten fish was found tied in a handkerchiei to the carrier of the cycle. C.N. Sinha. Some rotten fish was found tied in a handkerchiei to the carrier of the cycle. The Sub-Inspector took charge of these articles as well as blood-stained earth and the cut portion of the human finger from the P.O. field in the presence of witnesses, duly orcparing a seizure list (Ext. 4/5). Subsequently the blood-stained earth along with certain other articles were sent for chemical examination, and the reports of the Chemical Examiner and Serologist (Ext. 18) show that the earth was stained with human blood. After completing the investigation, the Sub-Inspector (P.W. 22) submitted charge-sheet in the case, and in due course, the appellants were sent up for trial after the usual commitment inquiry. 7. The prosecution case as set out in the dying declaration (Ext. 8) of Chandrika is as follows: On the evening in question, Chandrika was returning to his house in Hira Kanhauli from Belsand in the company of Basawan (P.W.2), Rajeshwar (P.W. 13) and Harnandan (P.W. 14), all of Hira Kanhaul. When this party reached to the west of the Banswari in village Bhatawalia at about the time of sunset, the three appellants came up and surrounded Chandrika, armed with Nepali Bhujali and bhala, and began to assault him. When Chandrika was surrounded by the appellants, his companions had fled away out of fear. But by the time they returned, the appellants had taken to their heels; as a result of his being assaulted, the hands and feet of Chandrika were cut. The appellants had also snatched away from his pocket some document executed in his favour by one Awadheshwari Nandan Singh of Sheohar, besides a sum of Rs. 1600/-belonging to a Co-operative Society. It may be mentioned that Chandrika was the Secretary of the Cane Growers Society of his village. It was further stated in the dying declaration (Ext. 8) that Chandrika had enmity with the appellants. 8. The version of the occurrence as presented by the prosecution in Court is that P. Ws. 2, 13 and 14 were returning to their village Hira Kanhauli in the company of Chandrika from Belsand. Chandrika had a cycle with him to which some fish was tied on the carrier, but they were all going on foot. He was also carrying a document and Rs. 1600.00 in cash belonging to the Cane Growers Society. 2, 13 and 14 were returning to their village Hira Kanhauli in the company of Chandrika from Belsand. Chandrika had a cycle with him to which some fish was tied on the carrier, but they were all going on foot. He was also carrying a document and Rs. 1600.00 in cash belonging to the Cane Growers Society. When they reached the village road on the west of village Bhatawalia, the three appellants, who were lying in ambush in the Banswari suddenly came up and surrounded Chandrika. Appellants Dharam and Ramautar were armed with a Bhala each and appellant Paltan was armed with a Ncpali Bhujali. All the appellants began to assault Chandrika with fists and slaps as a result of which he fell down on the ground in the field of Rambahadur (P.W.6). Out of fear the three companions of Chandrika fled away to a distance at about one bigha from where they saw Chandrika lying fallen on the ground. Appellant Ramautar was pressing both the hands of Chandrika with his feet. Likewise, appellant Dharam was pressing both the legs of Chandrika with his feet; while appellant Paltan was giving repeated blows on the hand and feet of Chandrika with his Bhujali. Out of intense pain, Chandrika was imploring his assailant; to kill him straight away instead of torturing him by cutting him bit by bit. Having cut the hands and feet of Chandrika as aforesaid all the three appellants fled away. 9. The prosecution case is that the occurrence was witnessed by the three companions of Chandrika (P. Ws. 2, 13 and 14) as well as by Raghubans Prasad (P.W. 7) of village Bhatawalia, who happened to be returning home at the time of the occurrence from another village, where he had gone to measure some land as a private Amin. After the occurrence P.Ws. 2, 13 and 14 had accompanied Chandrika to Belsand dispensary. The prosecution case further is that before being removed to the dispensary, Chandrika had named the appellants as his assailants in the presence of P.Ws. 2, 13 and 14 as well as of Nand Lal Jha (P.W. 3) of Bhatawalia and Ramlochan Prasad (P.W. 8) of Hira Kanhauli, who had come to the spot after the occurrence and had seen Chandrika in an injured condition. 10. 2, 13 and 14 as well as of Nand Lal Jha (P.W. 3) of Bhatawalia and Ramlochan Prasad (P.W. 8) of Hira Kanhauli, who had come to the spot after the occurrence and had seen Chandrika in an injured condition. 10. It was upon the aforesaid allegations that the three appellants were charged with the various offences of which they have been convicted by the learned Sessions Judge. 11. All the three appellants pleaded not guilty and took the defence of having been falsely implicated at the instance of police in collusion with the prosecution witnesses. According tq them the entire allegations made by the prosecution against them are false. A plea of alibi was also put forward by appellant Dharam Rant who claimed to have been lying ill at Darbhanga at the time of the occurrence. Dr. B.P. Singh (D.W. 1) of Darbhanga Medical College Hospital was examined in support of the plea of alibi taken by the appellant Dharam Raut. 12. Upon a consideration of the evidence on the record, the learned Judge has held the prosecution case against the appellants to be true. The defence taken by the appellants has been negatived by the learned Judge. It has been found that Chandrika had been way laid and assaulted mercilessly at the time and the place alleged by the prosecution, and that his assailants were the appellants as is the prosecution case. The learned Judge has taken the view that the offence committed by the appellants fell within the purview of the fourth clause of section 300, Indian Penal Code. The learned Judge has also found the charge of robbery framed against appellants Dharam and Ramautar to have been proved. Taking the view, however, that the capital punishment was not called for in the circumstances of this case, the learned Judge has awarded the lesser punishment to the appellant for the offence of murder. 13. The appeal was originally heard by us on the 25th and 26th July 1962, when on our attention having been drawn to the medical evidence relating to the injuries found to have been inflicted on the deceased, in consequence of which he had died, if appeared to us that in the event of conviction for murder recorded against the appellants being confirmed, the sentence imposed upon them might be inadequate. Accordingly, we directed that the appellants should be called upon to show cause why in the event of their conviction being maintained, the sentence of life imprisonment awarded by the learned Judge be not enhanced to one of death. A rule to this effect having been issued and served upon the appellants, they have shown cause through their respective counsel, whom we have heard again at length. This judgment will govern all the three appeals as also the rule of enhancement of sentence issued upon the appellants by this Court. 14. X X X 15. X X X 16. X X X 17. X X X 18. X X X 19. The prosecution case receives full support from the evidence of P.Ws. 2, 7, 13 and 14. (After discussing the evidence his Lordship concluded:) Having given a careful consideration to the evidence on the record, I feel fully convinced that the occurrence had taken place in the circumstances and in the manner described by P.Ws 2, 7, 13 and 14. P.W. 7, no doubt, has not named the two culprits whom he had seen standing on the hands and legs of Chandrika. But the evidence of P. Ws. 2, 13 and 14 leaves no room for doubt that those two culprits were Ramautar and Dharam respectively. It has been proved that both these appellants had acted as aforesaid in order to facilitate the cutting of the limbs of Chandrika at the hands of appellant Paltan. All the four eye-witnesses have consistently deposed that it was appellant Paltan who had given the repeated Bhujali blows on the hands and feet of Chandrika. The conclusion is, therefore, irresistible that appellants Dharam and Ramautar had shared the common intention of Paltan in cutting the extremities of Chandrikas tiands and feet. 20. The plea of alibi set up by appellants Dharam Raut has been held by the learned Judge to be ineffective and, in my opinion rightly so. Dr. B.P. Singh (DW 1) was unable to say definitely that Dharam was the person whom he had treated between 24-5-1959 and 1-61959. None of the prescriptions (Exts. B Series) contains the parentage and village home of this appellant. The certificate (Ext A) dated the 11th June 1959, no doubt, mentions these facts, but D.W. 1 did not remember, if appellant Dharam had gone to him for taking the certificate (Ext. A). None of the prescriptions (Exts. B Series) contains the parentage and village home of this appellant. The certificate (Ext A) dated the 11th June 1959, no doubt, mentions these facts, but D.W. 1 did not remember, if appellant Dharam had gone to him for taking the certificate (Ext. A). Except the first prescription (Ext. B) which is dated the 24th May 1959, none of the other prescriptions (Exts B 1 to B 5) shows that the patient had personally appeared before D.W. 1 at Darbhanga on the different dates between 25-5-1959 and 1-6-1959. The statements contained in Ext. B as to the condition of the patient are not what the doctor (D.W. 1) had found, but what were told to him by or on behalf of the patient, except that there was tenderness all over the abdomen on pressure. But there is nothing to show that the condition of the patient was such that he could not have moved freely on the 26th May 1959, which is the date of the present occurrence. No evidence has been led as to the fact that appellant Dharam was actually residing at Darbhanga at the relevant time. I, therefore, feel satisfied that there is no merit in the plea of alibi put forward on behalf of appellant Dharam. 21. The question that now arises for consideration is, what offence was committed in this case. The answer to this question must depend upon the nature of the injuries found to have been inflicted on Chandrika and the intention of the assailants, or at least their knowledge in inflicting them. 22. Culpable homicide is defined in sec. 299 and murder in sec. 300, Indian Penal Code. Unless the act falls under any of the four clauses to section 300 and it is not covered by any of the exceptions thereunder, it is culpable homicide which is a generic term and is punishable under Sec.304 of the Code. 22. Culpable homicide is defined in sec. 299 and murder in sec. 300, Indian Penal Code. Unless the act falls under any of the four clauses to section 300 and it is not covered by any of the exceptions thereunder, it is culpable homicide which is a generic term and is punishable under Sec.304 of the Code. As the four clauses of Sec.300 stand, the act by which death is caused will be murder, when it is done with the intention of causing death (1st Clause) or with the intention of causing such bodily injury as to the knowledge of the offender, the act is likely to cause death of the person to whom harm is caused (2nd clause), or the act is done, with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death (3rd clause) or that the act is done with the know- ledge that it is imminently so dangerous that it must in all probability cause death or even, such bodily injury as is likely to cause death (4th clause), It will be noticed that in every clause intention or knowledge is the essential ingredient, in absence of which the act will not be murder. The 4th clause contemplates, the doing of an imminently dangerous act, in general, and not the doing of any bodily harm to any particular individual. In case of intentionally causing bodily injury to a particular person, the question whether such an act is murder has to be decided with reference to the first three clauses of Sec.300. The fourth clause is designed to provide for rare class of cases, like putting, by the act done, in jeopardy lives of many persons as, envisaged in illustration (d) of the section and the like. 23. The injuries caused to Chandrika were, no doubt, numerous and they were inflicted by means of a sharp-cutting "weapon with sufficient cruelty causing intense pain to the deceased. But it is to be noted that not a single-injury was caused to Chandrika on any vital part of his body. His death was also not instantaneous. Evidently, the injuries were not inflicted with the intention of causing his death. But it is to be noted that not a single-injury was caused to Chandrika on any vital part of his body. His death was also not instantaneous. Evidently, the injuries were not inflicted with the intention of causing his death. It must be regretted that neither the Public Prosecutor nor was the learned Judge careful enough to have it clarified in the evidence of the doctor (P. W. 4) whether the injuries of Chandrika were sufficient in the ordinary course, of nature to cause death. All that was taken from the doctor was that Chandrika had died due to shock and haemorrhaga resulting from the injuries found on his body. In his cross-examination also, P. W. 4 has not given any definite opinion with regard to bleeding from the various injuries of Chandrika. He has only deposed that the injuries "might have" caused copious bleeding and that the blood vessels of the injured parts "might have" been cut. It does not appear that any large blood vessel had been cut. Upon such inconclusive medical evidence it is not possible to hold with any precision thai the injuries in question were inflicted on Chandrika either with the intention of causing his death or of causing such bodily injuries as were sufficient in the ordinary course of nature to cause death, or with the knowledge that they were likely to cause his death. The injuries were, no doubt, such as to lead to the only conclusion that they were likely to cause death, as in fact, they did cause the death of Chandrika within eighteen hours, although it was not instantaneous. But evidence as to the knowledge of the act being so is wanting, the injuries not having been caused to any vital part of the body. The first three clauses of sec. 300 do not, therefore, seem to be attracted, but the act of appellant Paltan would be surely covered by the second part of section 299, namely, the doing of an act with the intention of causing such bodily injury as is likely to cause death. The learned trial Judge has taken the view that the act would fall within the fourth clause of Sec.300, since, he must have known that his act was so imminently dangerous that it must, in all probability, have caused the death of Chandrika, who eventually succumbed to his injuries. The learned trial Judge has taken the view that the act would fall within the fourth clause of Sec.300, since, he must have known that his act was so imminently dangerous that it must, in all probability, have caused the death of Chandrika, who eventually succumbed to his injuries. But he was in the wrong to have taken the aid, of the fourth clause when the other three clauses did not suit the circumstances of the case. Apart, from the fact that Paltan may not have been conscious that his act was so imminently dangerous as must have caused death or caused such bodily injury as was likely to cause death, the fourth, clause ot sec. 300 does not contemplate an act which is done with the intention of causing injury to any particular individual, as in the present case, but it contemplates an act which is imminently dangerous in itself and done with a knowledge that it must, in all probability, cause death or such bodily injury as is likely to cause the death of some other individual, and despite such knowledge the act is done without any excuse for incurring such a risk. I am of the opinion that the offence found to have been committed in this case was not the offence of murder falling under any of the four clauses of Sec.300, but it was an offence of culpable homicide not amounting to murder falling under the second part of Sec.299 and punishable under sec. 304, Part I of the Penal Code. 24. On behalf of the appellants we were referred to the decision in Kapur Singh v. State of Pepsu (S) AIR 1956 SC 654 , which also was a case in which the accused had inflicted as many as eighteen injuries on the arms and legs of the deceased with a garasa. As in the instant case, so also in Kapur Singhs case, (S) AIR 1956 SC 654 , not a single injury was caused on any vital part of the body, although the motive for the crime was to wreak vengeance on the deceased for some cause. It was held that the accused had inflicted the injuries not with the intention of murdering the deceased, but had "caused such bodily injuries as were likely to cause death, having regard to the number and nature of the injuries. It was held that the accused had inflicted the injuries not with the intention of murdering the deceased, but had "caused such bodily injuries as were likely to cause death, having regard to the number and nature of the injuries. In this view, the conviction under Sec.302 recorded against the accused was altered into one under Sec.304 (1) of the Penal Code. It was urged that the facts of the present case are similar to Kapur Singhs case, (S) AIR 1956 SC 654 . It is, however, unnecessary to enter into this question because upon the materials on the record I have come to the conclusion that appellant Paltan Amat, who inflicted all the injuries intentionally, is guilty of an offence punishable under sec. 304, Part I, and not under sec. 302 of the Penal Code. 25. As regards appellants Dharam Raut and "Kamautar Rai, the conclusion is irresistible that they had all shared the common intention with Paltan in causing the injuries which were likely to cause the death of the deceased. This is evident from the fact that both of them had made the deceased altogether powerless by keeping him pressed on the ground, obviously with a view to enabling Paltan to inflict the injuries to the deceased. Thus their act was in furtherance of the same common intention, which was to commit the crime of culpable homicide not amounting to murder. They are both, therefore, guilty under sec. 304, Parti, read with Sec.34 of the Code. The further guilt of these two appellants Dharam Raut and Ramautar Rat under Sec.392 of the Code is also well founded upon the evidence on record. 26. In the result. I alter the conviction of appellant Paltan Amat under ection 302 into tone under Sec.304, Part I, Indian Penal Code. I also alter the conviction of appellants Dharam Raut and Ramautar Rai under Sec.302/34 into one under Sec.304, Part I, read with Sec.34 of the Code. The conviction of these two appellants under sec. 392 of the Code as also the sentence imposed upon them thereunder is upheld. I also alter the conviction of appellants Dharam Raut and Ramautar Rai under Sec.302/34 into one under Sec.304, Part I, read with Sec.34 of the Code. The conviction of these two appellants under sec. 392 of the Code as also the sentence imposed upon them thereunder is upheld. Considering the merciless, brutal, inhuman and most atrocious manner of the assaults on Chandrika, cutting him inch by inch and causing thereby all the pain to him, instead of killing him outright, I am of the opinion that the sentence of life imprisonment imposed upon the appellants is the only appropriate and proper sentence, and I uphold it. In fact, they are fortunate to have escaped the charge of murder and the extreme-penalty of death thereunder, because of the technical view of the matter, only occasioned by the absence of proper evidence which could not be elicited from the doctor conducting the post-mortem, examination. 27. In the view which I have taken, the rule of enhancement of sentence issued against the appellants by this Court is discharged, and all the three appeals are dismissed with modification as indicated above. Anant Singh, J. 28 I agree.