JUDGMENT : P.K. Mohanti, J. - The appeal is by the State of Orissa against the judgment of the learned Sessions Judge of Sambalpur acquitting the Respondents 1 to 3 of the charge u/s 302/34, Indian Penal Code Respondent No. 4 of the charge u/s 302/114. Indian Penal Code. 2. The accused persons and the deceased Gaja Bhoi were neighbours. Accused Ghana and Rana are sons of accused Arakhita and grandsons of accused Pareswar. 3. In the morning of 3-4-1974 there was quarrel between the deceased and accused Pareswar in course of which the former gave a slap to the latter. Accused Ghana appeared there and challenged the deceased as to why he slapped his grandfather. Thereupon the deceased picked up a piece of iron rod and attempted to assault accused Ghana. At the intervention of the persons present there the matter was settled and the deceased and the accused Pareswar and Ghana went to their respective houses. In this background, it was alleged that at about midday while the deceased was returning from his field carrying a bhar and two baskets, accused Rana suddenly dealt a lathi blow on his head and immediately thereafter accused Ghana dealt a knife blow on his back. After the deceased fell down on receiving the blows, accused Arakhita dealt a lathi blow on his head. The deceased died shortly thereafter. Accusation against Pareswar was that he instigated the other three accused persons to kill the deceased. One Magi Padhan who was following the deceased witnesses the assault. He raised a cry which brought the people of the locality to the spot. F I. R. was lodged by Magi Padhan (P.W. 1) on the lame day at 4 p. m. implicating the accused persons as the culprits. 4. At the trial, the accused persons denied the charges and pleaded innocence. 5. In order to establish the charges, prosecution relied mainly, on the direct testimony of P.Ws. 1. 3, 5, i and 11. The learned Sessions Judge, on a consideration of the evidence led by the prosecution, held that the death of the deceased was homicidal. He came to the findings that accused Rana dealt a lathi blow on the bead, accused Ghana dealt a knife blow on the right side of the chest and accused Arakhita dealt a lathi blow behind the left ear of the deceased. He came to the findings that accused Rana dealt a lathi blow on the bead, accused Ghana dealt a knife blow on the right side of the chest and accused Arakhita dealt a lathi blow behind the left ear of the deceased. He, however, held that the accused persons bad no common intention to cause the death of the deceased, though they had intended to commit assault on him on account of the previous incident. Relying on the evidence of the doctor to the effect that the life of the deceased would have been saved by proper medical treatment in a properly equipped Medical College Hospital, the learned Judge held that the injuries inflicted by accused Ghana and Rana were not sufficient in the ordinary course of nature to cause death, but that the injuries were inflicted by them with the intention of causing such bodily injuries as were likely to came death. Accordingly, he convicted accused Ghana and Rana u/s 304. Indian Penal Code and sentenced each of them to undergo R. I. for seven years. He convicted accused Arakhita u/s 323. Indian Penal Code and sentenced him to R. I. for six months. He acquitted accused Pareswar of the charge u/s 302/114, Indian Penal Code under benefit of doubt. 6. No appeal has been preferred by Respondents 1 to 3 against their convictions. The sole question canvassed before us on behalf of the State is that the trial Court committed an error of law in acquitting the Respondents of the charge under Sections 104/34, Indian Penal Code. 7. It is not necessary to consider the evidence of the eye witnesses in detail and all the circumstances brought forth on the record by the prosecution to establish the guilt against the accused as there is no appeal by the Respondents challenging the findings of the trial Court, that accused Ghana, Rana and Arakhita had caused the injuries which were present on the body. However, we have looked into the evidence of the witnesses and are satisfied that the prosecution has established beyond reasonable doubt that the incident took place in the manner as alleged by the prosecution and that the accused persons caused the injuries as found by the doctor at the time of post mortem examination. 8. However, we have looked into the evidence of the witnesses and are satisfied that the prosecution has established beyond reasonable doubt that the incident took place in the manner as alleged by the prosecution and that the accused persons caused the injuries as found by the doctor at the time of post mortem examination. 8. It seems to us that the learned Sessions Judge has taken an unnecessarily lenient and erroneous view in convicting the accused Ghana and Rana u/s 304, Indian Penal Code. 9. The question, that requires consideration is as to what offence has been committed by the Respondents. It would be, in the first instance, necessary to examine the nature of the injuries inflicted on the deceased. According to the post mortem certificate and the evidence of the doctor (P.W. 12) the deceased had the following external injuries: (l) One out wound 21/2" x 1/2" x bone deep situated obliquely on the middle of the scalp. (2) One cut wound I" x 1/2" x skin deep on the left pinna, and (3) one cut wound I" x 1/2" x thoracic wall in the sixth right space (back), Internal examination revealed fracture of both the parietal bones corresponding to injury No. (*1). The dura was torn and there was sub-dural haematoma beneath the fracture. There was no internal injury corresponding to injury No. (2). On dissection of injury No (3), it was found that the pleura of the right side was torn and the lung was lacerated. There was collection of blood about half a pint on the right side at the pleural cavity. In the doctor's opinion, death of the deceased was due to shock and haemorrhage resulting from injuries (1) and (3) which were grievous in nature. These two injuries individually were sufficient in the ordinary course of nature to cause death. The doctor, however, stated that a man sustaining injury No. (1) may be saved from death if he is given proper medical treatment within six to twelve hours in a properly equipped Medical College Hospital. He also stated that if the lung is injured it may be taken out by operation to save the life of a person, but if the parietal pleura and the lung are both injured, then the life cannot be saved unless expert medical treatment which is only available in the S. C. B. Medical College Hospital, Cuttack is given. He also stated that if the lung is injured it may be taken out by operation to save the life of a person, but if the parietal pleura and the lung are both injured, then the life cannot be saved unless expert medical treatment which is only available in the S. C. B. Medical College Hospital, Cuttack is given. It was also elicited in cross-examination of the doctor that injury No. (3) was definitely a fatal injury and if medical treatment was available in the S. C B. Medical College Hospital at Cuttack would have been given to the injured immediately that would have saved his life and in that sense it was not fatal in the ordinary course of nature to cause death. The learned Sessions Judge appears to have placed strong reliance on the above statements of the doctor in support of his conclusion that injuries (1) and (3) were not sufficient in the ordinary course of nature to cause death so as to bring the case within the purview of clause "thirdly" of Section 300, Indian Penal Code. 10. The ordinary course of nature means "in the usual course and if left alone." Whether the life of an injured man could be saved by medical treatment is not a relevant factor for determination of the question whether the injury was or was not sufficient in the ordinary course of nature to cause death. If the person Injured recovers by skilled medical treatment, the accused has the benefit of his recovery, for he could not then be convicted at murder though he may be convicted of an attempt to commit murder. If the person Injured dies without any medical treatment, the accused will none the less be guilty of murder, for the effect was the natural consequence of his act. 11. In this connection we may usefully refer to the opinion of Taylor at page l75 of his treatise "Principles and Practice of Medical Jurisprudence" (Twelfth Edition), Volume 1: Neglect to, call in a medical practitioner, or refusal to receive medical advice will not always be considered as a mitigatory circumstance in favour of the accused, even though the wounds were originally capable of being cured. Refusal of medical advice or treatment does not always operate as a mitigatory circumstance on the part of an assailant, because a wounded person is not compelled to call for medical assistance or to submit to an operation. A doctor may not be able to swear that an operation would have saved the life of the victim; he may merely affirm that it might have afforded him a better prospect of recovery. 12. In Re: Singaram Padayachi and Others the Court held: If the probability of death is very great, then it seems to us the requirements of thirdly u/s 300 are satisfied, and the fact that a particular individual may by the fortunate accident of his having secured specially skilled treatment or being in possession of a particular strong constitution have survived an injury which would prove fatal to the majority of persons subjected to it, is not enough to prove that such an injury is not sufficient 'in the ordinary course of nature' to cause death.... 13. In the case of Amar Singh v. The State 1969 71 PLR 358, a Division Bench of the Punjab and Haryana High Court held as follows: Whether an injury is not sufficient in the ordinary course of nature to cause death is determinable as soon as the injury is inflicted provided the details of the damage caused by it are available. Whether death ultimately results from the injury or not would not necessarily be a factor to be considered in judging whether the Injury was or was not of the type indicated above. An Injury, which is sufficient in the ordinary course of nature to cause death, may not be allowed to cause death, by recourse to medical treatment. On the other hand, an injury which is not sufficient in the ordinary course of nature to cause death may still result in death it it is mishandled. The medical treatment or the mishandling, however, does not play any part in the determination of the question whether the injury was or was not sufficient 10 the ordinary course of nature to cause death provided its details at the time of infliction are known. The medical treatment or the mishandling, however, does not play any part in the determination of the question whether the injury was or was not sufficient 10 the ordinary course of nature to cause death provided its details at the time of infliction are known. For example, a serious brain injury like the one which we find in the present case may be sufficient in the ordinary course of nature to cause death but medicine or surgery may save the victim in spite of the serious nature of the injury which on that account, however, would not cease to be one sufficient in the ordinary course of nature to cause death. Again, a small wound caused by a sharp-edge weapon on a vital part would not be an injury sufficient in the ordinary course of nature to cause death but if it is mishandled and allowed to become suppurative or gangrenous, it may result in death in all such cases, therefore, the chief cause of the death in question is to be determined and if that is found to be an injury which is sufficient in the ordinary course of nature to cause death, the offence would be murder if the infliction of the injury was intentional.... We are in respectful agreement with the views expressed in the cases cited above. 14. The evidence on record dearly establishes that accused Rana caused the head injury by giving a lathi blow on the head as a result at which the deceased bent down with face downwards and at that point of time accused Ghana dealt a knife blow just below the right scapula from the back side as a result of which the deceased fell down. Accused Rana must have dealt a violent blow on the head as both the parietal bones were fractured and the pleura was torn. Injury No. (3) was caused by accused Ghana with a knife and as a result at this injury the pleura of the right side was torn and the lung was lacerated. In view of the severe nature of the injuries caused on vital put of the body, the probability of death was very great. The evidence on the record shows that death occurred within half an hour after infliction of the injuries. The doctor P.W. 12 clearly stated that injury Nos. In view of the severe nature of the injuries caused on vital put of the body, the probability of death was very great. The evidence on the record shows that death occurred within half an hour after infliction of the injuries. The doctor P.W. 12 clearly stated that injury Nos. (1) and (3) were individually sufficient in the ordinary course of nature to cause death. He, however, made a statement that a man sustaining the injuries may be saved from death if he is given proper medical treatment in a properly equipped Medical College Hospital. According to him, if the parietal pleura is cut it may cause death, but if the parietal pleura and the lung are both injured then the life cannot be saved unless expert medical treatment which is available in Cuttack Medical College is given. Probably what the doctor meant was that even though the injuries were sufficient in the ordinary course of nature to cause death, yet the deceased could have survived if he had efficient medical treatment in time. In the light of the principles enunciated above we are dearly of the view that the injuries caused by Rana and Ghana were sufficient in the ordinary course of nature to cause death. 15. The injuries were not accidental or unintentional. The accused came armed with weapons to cause the injuries which were actually found on the person of the deceased. The case, therefore, comes squarely within the ambit of clause Thirdly of Section 300, Indian Penal Code as explained in Virsa Singh Vs. The State of Punjab, . 16. The learned Sessions Judge came to hold that the accused persons had no meeting of minds to do away with the life of the deceased but that they intended to assault the deceased for the incident which took place in the morning. In our opinion, if the common intention was with regard to the criminal act of beating and if the result of the beating is the death of the victim, there is no reason why Section 34 should not be applied in convicting the accused persons u/s 302. Indian Penal Code. All that is necessary to attract the applicability of the clause "Thirdly" of Section 300, Indian Penal Code is whether the accused intended to inflict the injury that was present on the body. Indian Penal Code. All that is necessary to attract the applicability of the clause "Thirdly" of Section 300, Indian Penal Code is whether the accused intended to inflict the injury that was present on the body. When that is proved, the further matter to be considered is whether the Injury is sufficient In the ordinary course of nature to cause death. The intention in relation to sufficiency or otherwise of the injury is not a matter for consideration at all. The evidence on the record clearly establishes that accused Rana and Ghana intended to cause the injuries and the injuries are sufficient in the ordinary course of nature to cause death. Though it is not possible to say as to which particular injury resulted in the death of the deceased, the acts of both the accused Ghana and Rana ultimately resulted in his death. We, therefore, hold the accused Ghana and Rana guilty u/s 302/34. Indian Penal Code. 17. The learned Government Advocate did not press the appeal as against Respondent No. 4 Pareswar. This Respondent was charged u/s 302/114, Indian Penal Code. Section 114 provides as follows: Whenever any person, who if absent would be liable to he punished as an abettor is present when the act or offence for which he would be punished in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. The real test to see whether or not his section is applicable lies in the words "who if absent would be liable to be punished as an abettor." These words clearly indicate that abetment to come under this section must be one which is prior to the commission of the offence and complete by itself and not an abetment which is done immediately before or at the time of the commission of the offence for in the latter case the abettor would not have committed the abetment if he had not been present and would not, therefore, have been liable to punishment as an abettor. In order to bring a case within Section 114, the act of abetment must have taken place at a time prior to the actual commission of the offence and it is only when the abettor happens to be present at the time of the commission of the offence itself, that the operation of Section 114 would be attracted. In order to bring a case within Section 114, the act of abetment must have taken place at a time prior to the actual commission of the offence and it is only when the abettor happens to be present at the time of the commission of the offence itself, that the operation of Section 114 would be attracted. It is not applicable to a case where the abetment is at the time when the offence takes place. 18. In the present case, it cannot be said that death of the deceased was the probable consequence of Pareswar's abetment. 1 he evidence of the eye-witnesses clearly shows that Pareswar came to the scene of occurrence while the deceased was lying on the ground after receiving the two fatal blows dealt by Rana and Ghana. Thus, it is clear that if Pareswar had been absent from the scene of occurrence he could not have been liable as an abettor, for there was no conspiracy between him and the other accused persons nor was there any instigation on his part before hand. The learned Government Advocate rightly conceded that acquittal of this Respondent is justified. 19. So far as accused Arakhita is concerned, the evidence of P.W. 1 clearly shows that he was not present at the scene of occurrence when Ghana and Rana dealt the fatal blows on the deceased. But he came to the place of occurrence on hearing the alarm raised by P.W. 1 after the deceased had fallen down on receiving the two fatal blows dealt by Ghana and Rana. There is nothing to indicate that this accused shared the common intention of accused Ghana and Rana. The injury caused by this accused is of a simple nature. His conviction u/s 323, Indian Penal Code is therefore justified. 20. The result, therefore, is that the appeal is allowed in part,. The conviction of accused Ghana and Rana u/s 304, Indian Penal Code is altered to one u/s 302/34, Indian Penal Code and they are sentenced to undergo imprisonment for life. The conviction and sentence of accused Arakhita are maintained. The order of acquittal of accused Pareswar is also maintained. R.N. Misra J. 21. I agree. Appeal partly allowed. Final Result : Allowed