JUDGMENT : B.K. Patra, J. - Respondent No. 1 Raidhar Gouda and his son Dileswar Gouda Respondent No. 2 were tried by the Sessions Judge, Sambalpur-Sundergarh on a charge u/s 302/34, Indian Penal Code but were convicted u/s 324, Indian Penal Code and each was sentenced to undergo rigorous imprisonment for one year. The State has appealed against the conviction and sentence on the ground that the learned Sessions Judge erred in not convicting the Respondents u/s 302/34, Indian Penal Code. There has been no appeal by the Respondents against their conviction. 2. The prosecution case may be briefly stated. The deceased Banchhanidhi Pani was a Forest Guard posted to Binjipali forest beat. He was residing in his quarters at Binjipali. P.w. 17 Judhisthir Panda is also a Forest Guard posted to Akadanda Reserve Forest beat. He also was staying in his quarters in Binjipali mouza close to the quarters : of the deceased. On 2-9-1968, p.w. 17 and the deceased went to the forest on duty. While inside the forest, they detected Respondent No. 1 Raidhar grazing goats within the limits of the reserve forest. He was, therefore, fined Rs. 22/- by the deceased. Raidhar went home, brought the amount, deposited the same with the deceased and took back his goats from the forest. P.w. 17 and the deceased went further into the forest and detected p.w. 6 Kulamani and p.w. 9 Ghasia Munda while they were returning from inside the by forest carrying bamboo sprouts. Their offence was compounded the deceased and while the compromise petition was being written, Respondent No. 2 Dileswar came there holding a lathi and an axe. After the compromise petition was written, p.ws. 6 and 9 left the place. The deceased then asked Dileswar what brought him there and. Dileswar questioned the deceased as to why he had taken Rs. 22/- from his father. The deceased explained the circumstances under which the amount was realised from Respondent No. 1 Dileswar then demanded a receipt and the Forest Guard told him that it would be issued after obtaining it from the Divisional Forest Officer. Thereafter p.w. 17 and the deceased left the place. 22/- from his father. The deceased explained the circumstances under which the amount was realised from Respondent No. 1 Dileswar then demanded a receipt and the Forest Guard told him that it would be issued after obtaining it from the Divisional Forest Officer. Thereafter p.w. 17 and the deceased left the place. Hardly had they proceeded a few steps, p.w. 17 who was walking ahead of the deceased heard the sound of lathi blow and looking back saw Dileswar giving two blows with his axe one on the head and the other on the right hand of the deceased. The latter fell down on the ground. Just at that moment, the other Respondent Raidhar appeared at the spot from inside the jungle carrying an axe and gave a blow with it on the head of the deceased. Immediately afterwards both made good their escape, P.w. 17 then raised an alarm hearing which Gobindaram Patel p.w. 8 reached the spot. Shortly thereafter some of the villagers also came there. They carried the deceased Banchhanidhi to the Laida Primary Health Centre where he was examined by the doctor K.C. Misra p.w. 14. The doctor found the deceased in an unconscious state. He rendered necessary first aid but as he considered the injuries to be of serious nature he sent the patient to the Burla Medical College hospital where the deceased died at about 10.30 a.m. On 7-9-1968. 3. Meanwhile at about 5 a.m. on 3-9-1968, p.w. 17 had reported about the occurrence to p.w. 18, the Officer-in-charge of Kuchinda Police Station. The Sub-Inspector of Police recorded his statement and treated this as First Information Report u/s 333/326, Indian Penal Code and took up investigation. He arrested the accused and recovered the axe M.O. III from, the house of Respondent Raidhar. Respondent Dileswar produced before him the axe M.O. I and the lathi M.O. II. 4. After the death of Banchhanidhi intimation was given by the hospital authorities at Burla to the Officer-in-charge of Burla Police Station who held an inquest over the dead body and sent it for post-mortem examination. P.w. 5 conducted the autopsy over the dead body and submitted his post-mortem report Ext. 5. The inquest and the post-mortem reports were sent by the Officer-in-charge, Burla to the Officer-in-charge of Kuchinda who after completing investigation submitted the charge sheet u/s 302/34, Indian Penal Code. 5. P.w. 5 conducted the autopsy over the dead body and submitted his post-mortem report Ext. 5. The inquest and the post-mortem reports were sent by the Officer-in-charge, Burla to the Officer-in-charge of Kuchinda who after completing investigation submitted the charge sheet u/s 302/34, Indian Penal Code. 5. Both the Respondents pleaded not guilty. Raidhar admitted that as his goats were found to have strayed into the reserve forest he was fined Rs. 22/- by the deceased and that he paid the same. He denied to have gone to the forest thereafter and having been present there at the time of the alleged assault on the deceased. Respondent Dileswar stated that on hearing that his father had been fined Rs. 22/- by the deceased he went inside the jungle and demanded a receipt for the amount from the deceased. The latter chased him to a distance and gave a few slaps on his cheek. Thereafter the deceased chased to assault him with an axe. In self defence the Respondent Dileswar brandished his Tangi and he was not a ware if and how the deceased sustained injuries. 6. The sole eye-witness to the occurrence is p.w. 17 the Forest Guard who was with the deceased right up from the time both went to the forest till the deceased was assaulted in the forest and was subsequently brought to the Primary Health Centre, Laida. He has completely supported the prosecution case that the two Respondents caused the injuries found on the person of the deceased with tangia and axe. P.ws. 6 and 9 are the person who were detected by the deceased when they were taking bamboo sprouts from the jungle. They were detected after the deceased was paid the fine amount of Rs. 22/- by Respondent Raidhar and after the latter went away from the jungle. For taking bamboo sprouts p.ws. 6 and 9 were fined Rs. 3/- each by the deceased and while the documents relating to this matter were being written, Respondent Dileswar came to the spot with an axe and a lathi. This is spoken to by p.ws. 6 and 9. After the necessary documents were written, p.ws. 6 and 9 left the spot while Dileswar was still with the deceased. P.w. 10 had also seen Dileswar coming to the deceased at that time. 7. This is spoken to by p.ws. 6 and 9. After the necessary documents were written, p.ws. 6 and 9 left the spot while Dileswar was still with the deceased. P.w. 10 had also seen Dileswar coming to the deceased at that time. 7. P.w. 17 stated that after the deceased was assaulted by the two Respondents, he (p.w. 17) raised a hulla, hearing which several persons came to, the spot. P.w. 8 says that on the date of occurrence he was working in his field when on hearing the hulla raised by p.w. 17 he went inside the jungle and found the deceased lying on the ground with bleeding injuries. At a distance of about 100 feet therefrom he found the Respondents going away each armed with a tangia. The evidence given by p.ws. 6, 9, 10 and 8 corroborates the testimony given by p.w. 17 that both the Respondents had assaulted the deceased with tangias. Immediately after the deceased was assaulted, he was taken to the Primary Health Centre at Laida where the doctor p.w. 14 found the following injuries on his person: (1) A cut injury on the scalp near the vertex extending to right side measuring 2?'? 1"? ?'. (2) One cut injury on the scalp measuring 1?"? ?"? ?" (3) One cut injury on the left hand 1 above the wrist joint measuring ?"? ?"? ?". (4) One abrasion on the face 2" ? 1"on the lateral aspect of the right eye. The injured was in an unconscious state and all possible medical aid was give to him at the Primary Health Centre. As his condition was serious, he was shifted to the Burla Medical Hospital where he died on 7-9-1968. P.w. 5 who conducted the post-mortem examination on the dead body found the following external injuries: (1) A stitched wound on the left forearm 1" length 1?" above the wrist joint. (2) One abrasion. 1?" ? ?"by the lateral side of the right eye. (3) A stitched wound on the frontal region of the skull 1?"in length 4" above the root of the nose. (4) One stitched wound on the skull 2?' in length 4?" inches above the upper border of the right ear. On opening the stitches it was found to be a scalp deep. (5) A fissured fracture on the parietal region on the right side of skull. (4) One stitched wound on the skull 2?' in length 4?" inches above the upper border of the right ear. On opening the stitches it was found to be a scalp deep. (5) A fissured fracture on the parietal region on the right side of skull. (9) On dissection he found that there was laceration necrosis of the frontal lobe on the left side of the brain in its postero interior part which is about 1"in diametre. (7) A small laceration of ?" ? ?" on the left lobe of cerebellum with a blood clot sticking to it. There was extra dural clot 4" ? 3" on the left side pressing the parietal lobe extending up to frontal lobe of the brain. A subdural clot 3" ? 2" on the left side was pressing the parietal lobe. He opined that all the injuries were ante-mortem in nature and the internal injuries are the result of external injury No. 4, which is responsible for the death of the deceased. He further opined that on receiving the external injury No. 4, the death of the deceased might not have been instantaneous but his life could not have been saved even after giving proper medical treatment. In his opinion, the death of the deceased was due to shock and haemorrhage as a result of the injuries received. 8. Having regard to the evidence referred to above, the learned Sessions Judge disbelieved the plea of self-defence taken by Respondent No. 2 Dileswar. He held that both the Respondents inflicted the injuries found on the person of the deceased. He, however, thought that the fatal injury which is external injury No. 4 was caused by a single blow of an axe and it did not appear to have been given with considerable velocity. The injuries were also not deep-seated so as to infer that the accused persons intended to kill or that they had knowledge that such injuries were likely to cause death of the deceased. He, therefore, held that the two Respondents were guilty u/s 324, Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for one year. 9. The Respondents have not appealed against their conviction which is based on the finding that both of them had caused the injuries found on the person of the deceased. No attempt was, therefore, made in this Court to disturb this finding. 9. The Respondents have not appealed against their conviction which is based on the finding that both of them had caused the injuries found on the person of the deceased. No attempt was, therefore, made in this Court to disturb this finding. In any case, having regard to the evidence adduced on behalf of the prosecution, the inference is irresistible that both the Respondents had caused the injuries found on the person of the deceased. 10. The only question, therefore, for consideration is whether having regard to the nature of injuries which ultimately resulted in the death of the deceased, the learned Sessions Judge is right in convicting them only u/s 324, Indian Penal Code, or whether the conviction should have been for murder punishable u/s 302, Indian Penal Code as is contended on behalf of the State. To us it appears that the offence committed by the Respondents is clearly one of murder and fails within Clause "Thirdly"of Section 300, Indian Penal Code which says that culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Here the emphasis is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When this sufficiency exists and death follows and the causing of such injury is intended, the offence is clearly one of murder. If the injury caused cannot be said to be sufficient in the ordinary course of nature to cause death, that is to say, there was probability in a lesser degree, ensuing from the act, the offence would not fall within murder but within culpable homicide not amounting to murder. The question, so far as the intention is concerned, is not whether the accused persons intended to kill the deceased or to inflict an injury of a particular degree of seriousness on him, but whether they intended to inflict the injuries in question and once the existence of the injuries is proved the intention to cause the injuries would be presumed unless the evidence or the circumstances warrant an opposite conclusion. 11. In Virsa Singh Vs. 11. In Virsa Singh Vs. The State of Punjab, their Lordships had laid down the circumstances under which a case can be said to fall within the Clause "Thirdly"of Section 300, Indian Penal Code. They are "First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or uniutentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution, the offence is murder u/s 300 "Thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in ordinary course of nature, or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death." It has been established in this case that both the Respondents had inflicted injuries on a vital part of the body of the deceased, namely, the head of the deceased with Tangias M.O. I and III. There can, therefore, be no doubt that they intended to cause the injuries which were present on the body of the deceased. There is evidence of the doctor that the injury No. 4 was sufficient in the ordinary course of nature to cause death and that life could not have been saved even after giving proper medical treatment. There can, therefore, be no doubt that they intended to cause the injuries which were present on the body of the deceased. There is evidence of the doctor that the injury No. 4 was sufficient in the ordinary course of nature to cause death and that life could not have been saved even after giving proper medical treatment. In these circumstances, there can be no manner of doubt that the case comes within Clause "Thirdly"of Section 300, Indian Penal Code. It is also clear from the evidence and circumstances that both the Respondents had a common intention to cause the injuries found on the person of the deceased. Both the Respondents were therefore guilty of having committed the murder punishable u/s 302/34, Indian Penal Code. 12. In the result, we allow this appeal and set aside the conviction and the sentence imposed on the Respondents and convict them u/s 302/34, Indian Penal Code and sentence each of them to undergo rigorous imprisonment for life. S. Acharya, J. 13. I agree. Final Result : Allowed