JUDGMENT T.C. Raghavan, J. 1. The appeal is by the State against the two accused persons in Sessions Case No. 61 of 1969 on the file of the Court of the Second Additional Sessions Judge of Trivandrum, in which the first respondent was acquitted of the charge of murder but convicted under S.304 part II of the Penal Code and sentenced to rigorous imprisonment for three years and the second respondent was completely acquitted. 2. The two respondents are father and son respectively; and the deceased (Henry Nadar) was the brother of the first respondent, and Pw. 2, who sustained injuries at the same incident, was the adopted son of Henry Nadar. The mother of the first respondent and Henry Nadar had a coconut garden, which was claimed to be in the management of Henry Nadar, with whom the mother was living. On 16th May 1969, the respondents entered this garden and plucked coconuts without the permission of the mother; and on the day of occurrence, 20th May, in the evening when the respondents met Henry Nadar in front of the tea shop of Pw. 4. Henry Nadar questioned the respondents why they entered the garden and plucked coconuts without the mother's permission. Some altercation ensued, during which Pw. 2 came to the scene. pw. 2 beat the second respondent and the second respondent beat pw. 2 back. In the fight that followed, the first respondent stabbed Henry Nadar twice on his chest with a knife, and a little later when Henry Nadar tried to escape, the first respondent stabbed him twice more. The second respondent, during the fight between him and Pw. 2, brought a spade from behind the shop of Pw. 4 and beat pw. 2 with its handle on his shoulder. Then, a Nesayyan intervened and wrested the spade from the second respondent; and when Henry Nadar fell down on receiving the stabs, the assailants ran away from the place. 3. Henry Nadar was removed to the Primary Health Centre at Vellarada, from where, since the injuries were serious, he was taken to the Medical College Hospital at Trivandrum. Pws. 1 and 3 accompanied him; and pw. 1 gave the first information to the police, who came to the hospital. Pw. 2 was treated at the Vellarada Primary Health Centre by pw. 10. Six days after Henry Nadar died. Pws. 1 and 3 accompanied him; and pw. 1 gave the first information to the police, who came to the hospital. Pw. 2 was treated at the Vellarada Primary Health Centre by pw. 10. Six days after Henry Nadar died. On receipt of the first information the police started investigation; and after the death of Henry Nadar on 26th May, the charge was altered into one under S.302 and the investigation proceeded. Pw. 9, the Professor of Forensic Medicine, Medical College, Trivandrum, conducted the autopsy on the dead body of Henry Nadar and Pw. 6, who saw him for the first time at the Medical College Hospital on the night of 20th May, issued a wound certificate. 4. The respondents were absconding; and they surrendered at the police station at 1.30 p.m. on 5th June 1969. At the time of surrender, the first respondent had with him the knife alleged to have been used by him, which the police took into custody. The further investigation proceeded, the charge sheet was duly filed; the Preliminary Enquiry followed and the trial also followed. 5. The case of the respondents in their statements under S.342 of the Code of Criminal Procedure might now be noted. The second respondent merely stated that he agreed with what the first respondent stated and that he had nothing further to add. The first respondent's case was that he was taking tea at Chella Panicker's tea shop near the scene of occurrence; that Henry Nadar was then in Pappu Panicker's tea shop opposite the place; that Henry Nadar sent a boy to the arrack shop of Ravi nearby for getting arrack; that Ravi told the boy that there was no bottle in the shop and that, if anybody wanted arrack, he should go to the shop and drink there; that the boy returned and reported the matter to Henry Nadar; that Henry Nadar sent the boy again with a bottle; that the boy returned with arrack, which Henry Nadar took that he came out to the road; that an altercation ensued between Henry Nadar and the respondents; that Pw. 2 came there then; that Henry Nadar whispered something in the ear of Pw. 2 and also removed his watch and chain and handed them over to pw. 2; that Pw. 2 came there then; that Henry Nadar whispered something in the ear of Pw. 2 and also removed his watch and chain and handed them over to pw. 2; that Pw. 2 gave a blow on the face of the first respondent; that Henry Nadar beat the first respondent; that the second respondent intervened and asked pw. 2 why he was beating his father; that the second respondent beat Pw. 2; that Pw.2 and the Second respondent pushed and pulled at each other and fell down on the road; that Pw.2 stood on the chest of the second respondent to squeeze his neck; that Alfred Nadar, the brother of the second respondent, came running with a spade with the handle of which he beat pw. 2; that Nesayyan intervened and wrested the spade from Alfred Nadar and also took Alfred away from the scene; that pw. 2 was sitting on the chest of the second respondent with an open knife; that at that juncture, Henry Nadar came near and bent over pw. 2; that pw. 2 was then waving his knife, upwards; and that the knife fell on Henry Nadar causing injuries on him. Thus, the case of the first respondent in his statement is that the stabs were inflicted on Henry Nadar by pw. 2, probably as an accident ......... X X X X (Discussion regarding evidence of eye witnesses omitted...) 6. The main argument of the Public Prosecutor is against the ultimate conclusion of the Sessions Judge. The Public Prosecutor has argued that, on the basis of the finding of the Sessions Judge that the injuries on Henry Nadar were inflicted by the first respondent and that the injuries on pw. 2 were inflicted by the second respondent, the Sessions Judge should have convicted both the respondents of murder or should have convicted at least the first respondent of murder and the second respondent of an offence under S.324 of the Penal Code. 7. To substantiate this contention, the Public Prosecutor has invited our attention to the discussion of the Sessions Judge regarding the applicability of S.34 of the Penal Code to the case, which appears in Para.18 of this judgment. The Sessions Judge says that there is no evidence in the case "to show any prior meeting of the accused persons, a deliberate decision on the question of doing away with the life of Henry". The Sessions Judge says that there is no evidence in the case "to show any prior meeting of the accused persons, a deliberate decision on the question of doing away with the life of Henry". He has also stated that "it is impossible to conceive a case of premeditation or a prior meeting of the minds to achieve the object of stabbing Henry". We wish to point out in this connection that no "deliberate decision" is necessary to attract S.34. It is not as if a previous conference, as it were, of the accused persons, at which they discussed and decided the question of attacking somebody is essential under S.34 of the Penal Code. We wish also to point out that the "prior meeting of the minds" need not be the same as "premeditation". There is well established authority that common intention may develop even after the incident has started - in the course of the incident - and the assailants may also share such common intention developed during the incident itself What is necessary is only a meeting of the minds - a sharing of the common intention - just before the attack. Therefore, if the Sessions Judge means that there is no evidence that the respondents met earlier and took a "deliberate decision" to do away with Henry Nadar or that the attack was the outcome of "premeditation", we wish to point out that such a decision or such premeditation is not essential to attract S.34. 8. In this case, there is no evidence to show that the second respondent was instigating or encouraging the first respondent when the latter was attacking Henry Nadar - there is no evidence that the second respondent did anything to evince his common intention, Therefore, even though we do not agree with the reasoning of the Sessions Judge, probably, his conclusion that S.34 is not attracted might still stand. 9. Next, we come to the question of the offences, if any, committed by the two respondents. We are afraid we may appear pedagogic (not pedantic we hope!) if we proceed to clarify the scheme of the sections in the Indian Penal Code relating to offences of culpable homicide and murder. The discussion of the Sessions Judge in Para.19 of his judgment compels us even to risk that. We are afraid we may appear pedagogic (not pedantic we hope!) if we proceed to clarify the scheme of the sections in the Indian Penal Code relating to offences of culpable homicide and murder. The discussion of the Sessions Judge in Para.19 of his judgment compels us even to risk that. We had also other instances, at least a few, when we felt that our Sessions Judges, at least some of them, should be told how these offences were laid out in the Indian Penal Code. In Para.19 of the judgment the Sessions Judge says "So far as the 1st accused is concerned, the question is whether his action comes within the four corners of S.302 or 304 part II." The Sessions Judge says a little later in the same paragraph "According to the medical evidence, on account of the stab injuries there is reasonable chance of the victim dying. The death cannot be mainly attributed to the stab injuries. These stab injuries were inflicted on the vital part of the body. The chances are towards death." Yet another sentence in the same paragraph is "The injuries are sufficient to cause the death of the person." Still later the Sessions Judge says "Therefore, though stabbing injuries were inflicted by the 1st accused on the chest below the nipple of deceased Henry, I am unable to conceive a case that the 1st accused had the intention of doing away with the life of deceased Henry." And the Sessions Judge states further "It can be only culpable homicide not amounting to murder coming within S.304 part II I.P. C. The circumstances in this case are such that the 1st accused can definitely come within the 4th Exception of S.302 and as such it is not murder, but culpable homicide not amounting to murder." The above extracts show that the Sessions Judge has not even the barest idea of the scheme of the sections relating to culpable homicide and murder. 10. S.299 of the Penal Code defines culpable homicide. Of course, death is the main ingredient which constitutes culpable homicide. One of three kinds of mental element (mens rea) should also be present to. constitute the offence. 10. S.299 of the Penal Code defines culpable homicide. Of course, death is the main ingredient which constitutes culpable homicide. One of three kinds of mental element (mens rea) should also be present to. constitute the offence. The mental ingredients are the intention of causing death, or the intention of causing I such bodily injury as is likely to cause death, or the knowledge that the offender is likely by such act to cause death - the former two, intention and the last one, knowledge. If one of these three elements is also present, then alone the offence is culpable homicide: if none of the elements of mens rea is present, the offence is not culpable homicide merely because death ensued. 11. Then comes S.300 relating to murder. There is no definition of murder in S.300; and the section merely takes the four more serious types of culpable I homicide, basing on the mens rea, and designates them murder. They are an act with the intention of causing death, an act with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, an act done with the intention of causing such bodily injury which is sufficient in the ordinary course of nature to cause the death of any person, and an act, which the offender knows, is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. In the four types of culpable homicide designated murder, the mens rea in the first three is constituted by different types of intention and the mens rea in the last is knowledge - low types - one, the knowledge that the act is so imminently dangerous that it must in all probability cause death, and two, the knowledge that the act is so imminently dangerous that it must in all probability cause such bodily injury as is likely to cause death. If any one of these ingredients of mens rea is present, the particular culpable homicide is murder and not otherwise. 12. It is then that the five Exceptions to S.300 come. If any one of these ingredients of mens rea is present, the particular culpable homicide is murder and not otherwise. 12. It is then that the five Exceptions to S.300 come. The Exceptions deal with special circumstances under which murder is committed, for example, if the offence is committed when the offender is deprived of his power of self control due to grave and sudden provocation, the offence is only culpable homicide because of Exception 1, though, otherwise (but for the Exception) the offence will be murder; if the offence is committed in the exercise, in good faith of the right of private defence but in excess of that right, the offence will not be murder, but will only be culpable homicide by virtue of Exception 2; etc. Thus, for the application of one of the five Exceptions to S.300, the offence must otherwise be murder. In other words, if the offence does not fall within one of the four categories mentioned in S.300, no question of the application of the Exceptions to S.300 can arise. This is the scheme of S.299 and 300: and S.302 provides for the punishment for murder and S.304 provides for the punishment for culpable homicide. 13. We had come across, not infrequently, cases where Sessions Judges did not understand the difference between part I and II of S.304; and therefore, we venture to point out the distinction between the two parts of the section. In part I the mental element or mens rea is intention, and in part II the mens rea is knowledge: that is the distinction between part I and part II. Of course, the intention contemplated by part 1 may either be the intention to cause death or the intention to cause such bodily injury as is likely to cause death. 14. The mens rea, whether it is intention or knowledge of the types mentioned in the aforesaid sections, has to be gathered from the facts and circumstances of each case. Of course, the intention contemplated by part 1 may either be the intention to cause death or the intention to cause such bodily injury as is likely to cause death. 14. The mens rea, whether it is intention or knowledge of the types mentioned in the aforesaid sections, has to be gathered from the facts and circumstances of each case. The particular type of intention or of knowledge that could be imputed to an offender depends upon the circumstances like the nature of the weapon used, the force with which it is wielded, the part of the body where it is used, any special circumstance that made the victim particularly weak or vulnerable, etc., It is not possible to give an exhaustive enumeration of such circumstances, nor is it desirable to do so; and it should always be left to the court which deals with the particular case. A presumption usually relied upon in this connection is that a person is presumed to intend all the normal and reasonable consequences of his act. On the same principle, person is presumed to know the reasonable and normal consequences of his act too. 15. While on this subject, we would just refer to the Full Bench decision of the Rangoon High Court in The King v. Aung Nyun (AIR 1940 Rang. 259), which we had occasion to come across. In that case, there is some observation by Mosely J. in the Order of Reference that Thirdly in S.300 "contains a new definition of culpable homicide which is not contained in S.299, and says that it amounts to murder". The learned Judge has said. "The scheme of the Code is first to define culpable homicide in S.299, then to lay down in S.300 that one of the three definitions of culpable homicide given in S.299 (299 (a)) and other fresh definitions of culpable homicide amount to murder if the exceptions do not apply, then to give the punishment for murder (S. 302), and finally to give the punishment for the residuary cases of culpable homicide not amounting to murder, irrespective of whether they do not so amount by reason of the exceptions of S.300 applying, or whether they are offences of culpable homicide pure and simple which do not so amount because they are not hit by S.300" 16. With due respect to the learned Judge, we do not subscribe to the view that S.300 contains a fresh definition of culpable homicide not amounting to murder. We may, at the same time, point out that there is nothing in the Opinion on the Reference by Roberts C. J. which is not in tune with what we have hereinbefore, indicated (vide the discussion of the learned Chief Justice in the second column of P. 273 and the first column of P. 274) of the reports. 17. If a person is charged of murder and the offence of murder is not made out but some other offence is made out, the offence made out is not necessarily culpable homicide. The Sessions Judge seems to think that if the offence is not murder, then it must be culpable homicide. First of all, it should be made out that the offence is culpable homicide coming under S.299; then, it must be seen whether the mens rea comes under any of the four categories mentioned in S.300, when alone the offence will be murder: it must thereafter be considered whether any of the five Exceptions to S.300 applies, in which case the offence will again be culpable homicide. If the first test fails, the offence is not culpable homicide; and thereafter, there is no question of the offence being murder. As it is pithily put, all murders are culpable homicides, but all culpable homicides are not murders. The first sentence extracted from Para.19 of the judgment of the Sessions Judge makes us feel that the Sessions Judge is labouring under a misapprehension that, if the offence is not murder, it must necessarily be culpable homicide. He seems to have started from the wrong end: he has not considered whether the offence satisfies the definition of culpable homicide. 18. Now we shall consider the nature of the offence: and in this connection, we have to refer to the evidence given by the two doctors, Pws. 8 and 9. Pw. 8, a Tutor in the Medical College, Trivandrum, saw Henry Nadar, when the latter was taken to the hospital, and he issued Ex. P6. which discloses four incised injuries. In his examination in chief, he has given his opinion regarding the nature of the injuries and has stated that the injuries are "endangering life". 8 and 9. Pw. 8, a Tutor in the Medical College, Trivandrum, saw Henry Nadar, when the latter was taken to the hospital, and he issued Ex. P6. which discloses four incised injuries. In his examination in chief, he has given his opinion regarding the nature of the injuries and has stated that the injuries are "endangering life". He has also stated in his cross examination that injury No. 1, left to itself, need not necessarily be fatal. He has expressed the same opinion regarding injury No. 2 also. 19. Pw. 9 is the Professor of Forensic Medicine in the Medical College, Trivandrum; and he conducted the autopsy on the dead body of Henry Nadar, Ex. P8 being the post mortem certificate. He has given his opinion as follows: "(i) The deceased died as a result of shock due to penetrating injuries into the chest and abdominal cavity. (ii) Operative shock could have contributed to the causation of death." If the first part alone of the opinion of Pw. 9 is taken into consideration, death was the result of the injuries inflicted by the first respondent. The second part of the opinion, however, seems to take away from this result, because that states that operative shock could have contributed to the causation of death. Probably, if matters stood at that, we would not have found the position as difficult as we find now after seeing the evidence of this witness. In the box he has stated in his cross examination. "But for the operation there was a chance of surviving." 20. This opinion given in the box does not appear to go well with the first part of his opinion given in Ex. P8 A Professor in Forensic Medicine is called by a court to help the court to ascertain the nature of the offence committed by an accused from the nature of the injuries caused by him; and when such an expert speaks to the nature of the injuries, he should speak in such precise language known to jurisprudence, as he is expected to know the ingredients of the offence with reference to which he is giving evidence. If his opinion in the box that, but for the operation there was a chance for survival, is correct, we are afraid that the first part of his opinion in Ex. P8. If his opinion in the box that, but for the operation there was a chance for survival, is correct, we are afraid that the first part of his opinion in Ex. P8. cannot stand, unless he means that the injuries mentioned by him, in the first part of his opinion, to the chest and the abdominal cavity included surgical wounds as well. We do not think that he would have meant so. 21. If we go by the opinion of the Sessions Judge appearing in Para.19 of his judgment, we are afraid that the offence might even be murder. The Sessions Judge has stated that the injuries are sufficient to cause the death of a person. If so, the offence might come within either Secondly or, at any rate, Thirdly of S.300. In this connection, we might also point out the observation of the Sessions Judge that the injuries were inflicted by the first respondent on the chest below the nipple of Henry Nadar, from which we have to gather his intention or at least knowledge. He states further that the offence would fall under Exception 4 to S.300. We do not think that he is right in this conclusion, because the circumstances will not indicate that the stabbing took place in the heat of passion, upon a sudden quarrel, without the offender taking undue advantage of the position. It must be remembered that Henry Nadar had four stabs. 22. Leaving aside the reasoning of the Sessions Judge, we shall now consider the nature of the offence: and for this, probably, the evidence of pw. 8 is the best guide. The witness has said that the injuries were "endangering life": he has not said that they were sufficient in the ordinary course of nature to cause death or necessarily fatal or even likely to cause death. If this evidence of Pw.8 is given due weight, the offence would fall only under S.320 of the Penal Code - grievous hurt Eighthly of this section states that any hurt which "endangers life" is grievous hurt. It may be remembered that Henry Nadar died only on 26th May-six days after the incident. Therefore, in the light of the evidence given by pw. 8, we are of opinion that the offence committed by the first respondent must come within S.326 of the Penal Code - voluntarily causing grievous hurt by a dangerous weapon. It may be remembered that Henry Nadar died only on 26th May-six days after the incident. Therefore, in the light of the evidence given by pw. 8, we are of opinion that the offence committed by the first respondent must come within S.326 of the Penal Code - voluntarily causing grievous hurt by a dangerous weapon. We shall also try to give meaning to both parts of the opinion of pw. 9: and the result will, probably, be that death was due to shock caused by the injuries and also I due to operative shock. Then also, the offence might come under S.326. The counsel of the respondents has suggested that the offence might come within S.335 of the Penal Code. Evidently, S.335 cannot apply and; that section is intended for an entirely different situation. 23. Now we come to the second respondent. Pw.2 had injuries; and pw. 10 examined him and issued the relevant wound certificate, Ex. P-10. He had five abrasions. The prosecution case was that the second respondent beat Pw.2 on his shoulder with the handle of a spade. None of these five abrasions could have been the result of such beating with the handle of a spade. Of course, there is the evidence that there was a beating and a beating back between Pw.2 and the second respondent; and all these five abrasions found on the person of Pw.2 could very well have been the result of such beating and beating back. The evidence also discloses that the second respondent beat Pw. 2 once and only once with the handle of the spade, and that, on his shoulder, and not on his back as suggested by the Sessions Judge. In Ex. P-10 no injury is noted to correspond with this beating: and therefore, we find it difficult to agree with the prosecution case that the second respondent E beat Pw.2 with the handle of a spade. We might also add that the Public Prosecutor has stated before us that, if the beating with the handle of a spade is not established, he is not pressing for a conviction for any hurt that might have been caused during the mutual beating or skirmish. We might also add that the Public Prosecutor has stated before us that, if the beating with the handle of a spade is not established, he is not pressing for a conviction for any hurt that might have been caused during the mutual beating or skirmish. Since our opinion is that all these five abrasions could have been the result of the mutual beating by the second respondent and Pw.2 we confirm the conclusion of the Sessions Judge regarding the second respondent. 24. Now about the sentence to be imposed on the first respondent. The Sessions Judge has proceeded on the basis that the offence fell under S.304 part II of the Penal Code, where the maximum punishment is rigorous imprisonment for ten years. On the other hand, the maximum punishment under S.326 is imprisonment for life. If the maximum sentences, are any guide, the offence under S.326 appears to be more serious than the offence under S.304 part II. We have already pointed out that Henry Nadar had four injuries and the injuries were fairly serious ones too. Taking into consideration that fact and the fact that the maximum sentence provided under S.326 is more severe than the maximum under S.304 part II, we feel that the sentence of rigorous imprisonment for three years is inadequate. And we also feel that anything less than rigorous imprisonment for five years will still be inadequate. 25. In the result, the appeal is partly allowed and the conviction and sentence of the first respondent are altered into a conviction under S.326 and a sentence of rigorous imprisonment for five years. The appeal against the second respondent is dismissed.