Short Note : 1. The prosecution case is this : The relations between the deceased Mukesh Kant and the appellant Anil Kumar were strained. Vijay Kumar Dube (PW11) is the elder brother of the deceased Mukesh Kant. The appellant Anil Kumar has threatened Vijay Kumar Dube (PW 11) regarding his refusal to permit copying by the students in the examinations. There are Rojnamchasanha reports lodged by Rakesh Kumar Dube (PW 12), Ex. P-20-A, by the deceased Mukesh Kant, Ex. P-21-A, by Vijay Kumar, Ex.P-22-A and the appellant-accused Mahadeo Prasad, Ex. P-23-A. The appellant Mahadeo is called Guru by other appellants. 2. On April 25, 1977 at about 6-15 P.M., the deceased came to Malguzar Hotel run by Nathulal Patel (PW 5). There Ram Kishan alias Babbu Pandey (PW 4), Jag Mohan Tiwari (PW 3), Hariom (PW 6) and the owner of the Malguzar Hotel, Nathulal Patel (PW 5) were also present. The deceased ordered for a cup of tea and started talking with Babbu Pandey and others when the four appellants came running there. The appellant Anil Kumar whipped out a knife from his pocket and stabbed Mukesh Kant. The other appellants caught hold of him and assaulted him. Thereafter, the four appellants fled away. In an injured condition, Mukesh Kant was removed to the Kotwali Police Station where he lodged the first information report (Ex. P-1) at 6-30 P.M., that is, within 15 minutes of the incident. After examination and giving a dying declaration, Mukesh Kant died after two days of the incident. 3. Shri R.N. Rai, Advocate, for the appellant Anil Kumar contended that the evidence of Dr. R.K. Dubey (PW 7) was hesitating and does not conclusively establish that the injuries inflicted were sufficient in the ordinary course of nature to cause death. Shri Rai further contended that this was a sudden quarrel without pre-meditation. Both of his arguments suggested that the offence will be one under section 304, Part I or 304, Part II of the Penal Code. The contention of Shri S.C. Dutta was that the arrival of the four appellants together and the call given by the appellant Anil Kumar to see the deceased indicated that they had the common intention to beat Mukesh Shri Dutta further argued that there is no evidence that the three appellants had the knowledge that the appellant Anil Kumar was having a knife in his pocket. His suddenly taking out the knife from his pocket and dealing a blow with it could not be construed that the three other appellants shared the intention to kill the deceased. Held: We have considered these submissions. We are of the view that the conviction of the appellant Anil Kumar under section 302 of the Penal Code is in order while the convictions of the other three appellants under section 302 read with section 34 of the Penal Code is not in order and deserve conversion into one under section 323 read with section 34 of the Penal Code. We will consider the case of the appellant Anil Kumar first. (After discussing the medical evidence, their Lordships observed). Shri R.N. Rai relied on Somnath Dass v. State (AIR 1969 Orissa 13). This was a case where a fatal blow was given without premeditation in a sudden fight in heat of passion under sudden quarrel. There was no evidence that the appellant took any undue advantage or acted in a cruel or unusual manner. On all these facts, it was held that Exception 4 to section 300 of the Penal Code was applicable. Our case is different. This is not a case of free fight. The appellant came duly armed with a knife to settle his dues with Mukesh Kant. At this time Mukesh Kant was unarmed and had given no provocation to the appellant Anil Kumar. The prosecution evidence establish beyond doubt that the appellant Anil Kumar had come with pre-determination and premeditation and acted in a cruel manner by attacking with a knife on a vital part of the body. It could not, therefore, be urged that the appellant's act attracted any of the Exceptions of section 300, of the Penal Code and gives him the advantage of section 304, Part I of the Penal Code. 4. In Vira Singh v. State of Punjab (AIR 1958 Supreme Court 465), it is held that "the prosecution must prove the following facts before it can bring a case under section 300 thirdly'; Firstly 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. 4. In Vira Singh v. State of Punjab (AIR 1958 Supreme Court 465), it is held that "the prosecution must prove the following facts before it can bring a case under section 300 thirdly'; Firstly 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 unintentional, or that some other kind of injury was intended. 5. 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". It is also stated in the above ruling that 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. There was no suggestion that the appellant had intended to inflict injury on another part of the body or that the injury found on the person of the deceased was accidental. Thus, the test laid down in Vira Singh v. State of Punjab (supra) is fully established in this case and the act of the appellant Anil Kumar will clearly attract application of section 302 of the Penal Code. 6. The ruling cited (supra) was also referred to in Kishore Singh and another v. The State of M.P., ( AIR 1977 SC 2267 ). In this case, the death occurred after a month. Therefore, the benefit of section 304, Part I of the Penal Code was given to the appellants. It was however mentioned that in judging whether the injuries inflicted are sufficient in the ordinary course of nature to cause death, the possibility that skilful and efficient medical treatment might prevent the fatal result is wholly irrelevant. Thus, the answer of Dr. Therefore, the benefit of section 304, Part I of the Penal Code was given to the appellants. It was however mentioned that in judging whether the injuries inflicted are sufficient in the ordinary course of nature to cause death, the possibility that skilful and efficient medical treatment might prevent the fatal result is wholly irrelevant. Thus, the answer of Dr. R. K. Dubey (P.W. 7) in paragraph 26 of his deposition, does not help the appellant because his evidence is definite that the injuries to the liver and mess colon were imminently dangerous to life and were sufficient in the ordinary course of nature to cause death. The life was prolonged because of the timely operation and blood transfusion but the injury inflicted was sufficient in the ordinary course of nature to cause death. 7. In Jayaraj v The State of Tamil Nadu ( AIR 1976 SC 1519 ), the death occurred after more than nine days and on facts it "as found that the injury was not caused either with the intention of causing death or with the intention of causing such bodily injury as was sufficient to cause death in the ordinary course of nature. The facts of our case are, therefore, distinguishable. 8. We are, therefore, of the view that the appellant came duly armed which indicated premeditation, dealt a knife blow on the vital part of the body, and caused an injury which was imminenty dangerous to life and was sufficient in the ordinary course of nature to cause death. He was, therefore, rightly convicted under section 302 of the Penal Code and we see no reason to take a different view from the view taken by the Additional Sessions Judge. 9. In regard to the remaining three appellants, Mahadeo, Murli and Vijay Kumar. We are of the view that they did not share the common intention with the appellant Anil Kumar to kill Mukesh Klint There is uniform evidence that the appellant Anil Kumar had kept a knife in his pocket and had suddenly whipped it out. There is no evidence that these three appellants had previous knowledge that the appellant Anil Kumar was carrying a knife with him. The first information report lodged by the deceased himself shows that the knife attack had finished and, thereafter the three appellants had caught hold of Mukesh Kant and had assaulted him with fists. There is no evidence that these three appellants had previous knowledge that the appellant Anil Kumar was carrying a knife with him. The first information report lodged by the deceased himself shows that the knife attack had finished and, thereafter the three appellants had caught hold of Mukesh Kant and had assaulted him with fists. The appellant Anil Kumar without whipping out the knife gave a call to see which indicated that the call was initially to beat Mukesh Kant. Subsequent catching of the victim and assault by fists indicated that the three appellants shared the common intention to beat Mukesh Kant. There is also no consistent evidence that the three appellants had caught hold of Mukesh to facilitate or to aid Anil Kumar in stabbing the victim. The first information report (Ex. P-1) negatives such a situation because the knife attack was over and thereafter, the beating by fists took place. 10. In regard to the sentence awarded to Anil Kumar (life imprisonment) under section 302 of the Penal Code it appears to be proper. Appellants Mahadeo and Vijay Kumar are on bail. They were under custody during the Sessions trial which lasted from 12-8-1977 to 30-9-1977. The appellant Vijay Kumar was released on bail by this Court on 24-10-1977 and the appellant Mahadeo was released on bail by this Court on 24-10-1977. Thus, the three appellants, Mahadeo, Murli and Vijay Kumar have been in jail for more than two months and this will be sufficient punishment for them for the offence under section 323 read with section 34 of the Penal Code. Appeal of Anil Kumar dismissed Appeals of other three accused partly allowed.