Judgment :- Ratnavel Pandian, J.- This appeal is preferred by accused 1 and 2 in Sessions Case No. 4 of 1979 on the file of the Court of Session, Ramanathapuram Division at Madurai, against the judgment convicting them under section 302 read with section 34, Indian Penal Code, and sentencing each of them to imprisonment for life. Both the accused were tried under a charge on the allegations that on 19th October, 1978 at 7-30 a.m. in front of the tea shop of one Samayandi in the main road at Than-gachimadam, both the accused, in furtherance or their common intention, committed the murder of one Ajmal Khan by beating, fisting, kicking and stamping him. To substantiate the above charge, the prosecution examined P. Ws. 1 to 13, filed Exhibits P-1 to P-7 and marked M.Os. 1 to 3. 2. The facts of the case, as disclosed by the oral and documentary evidence, can be summarised thus: P.W.8 is the mother of the deceased Ajmal Khan and P.W.2. Though the deceased was married, his wife had deserted him as the deceased was a man of questionable character and a spendthrift. At the time of the occurrence, the deceased was residing in Thangachi-madam in Ramanathapuram taluk and was having illicit intimacy with one Siluvaimuthu Ammal of Puthur Village, wife of P.W.7. The house of P.W.7 and Siluvaimuthu is situate adjacent to the house of the first accused. It transpires from the evidence of P.W.7 that the deceased and Siluvaimuthu had developed illicit intimacy since two years prior to the occurrence and continued their relationship despite the protests raised by the villagers. 3. Of the accused, the first accused is an ex-police constable while the second accused is a cooly by profession. On the date of the occurrence, at about 7-30 a.m., accused 1 and 2 went to the tea shop of P.W.1 and took tea. While they were in that shop P.W.6 also came there. The deceased, who too came to the shop, stood first at its entrance and complained to P.W.6 that on the previous night accused had beaten him and request-ed P.W.6 to enquire the first accused about that incident. While they were in that shop P.W.6 also came there. The deceased, who too came to the shop, stood first at its entrance and complained to P.W.6 that on the previous night accused had beaten him and request-ed P.W.6 to enquire the first accused about that incident. The first accused, on being enquired by P.W.6 replied that he had done so, because the deceased came to his village in the odd hours with apple (presumably meaning thereby that the deceased was visiting Siluvaimuthu in the odd hours and bringing disgrace to the villagers) and further said that the beatings he bad given to the deceased on the previous night were not sufficient and the deceased deserved more beatings. P.W.1, the owner of the tea shop, apprehending some trouble between these two groups, asked all of them to leave the place. Immediately P.W.6 went away. The two accused, while coming out of the shop, tripped the deceased, thereby making him fall down. After the deceased had fallen down, the first accused held the deceased to the ground by pressing his left palm on the chin of the deceased and fisted on the face end chest of the deceased with his right hand. The second accused kicked on the stomach and the flank of the deceased. Then the first accused made the deceased stand by holding his banian and once again tripped him. Then, the first accused, by heavily pressing the neck of the deceased by the left hand, fisted on the face of the deceased with his right hand. Now again the second accused kicked the deceased. A crowd had gathered at the scene by this time. But, nobody attempted to intervene and separate them. However, P.W.2 and P.W.3 who came to the scene, separated the assailants and the victim and took the deceased to the side of Chindha Madhar Gori (Samadi) marked as No. 3 in the plan, Exhibit P-6 and made him sit under a margosa tree. P.W.2 went to the tea shop and P.W.3 left to his house. An hour later, P.W.2 came to the place where he had laid his brother, taking a cup of tea but to his surprise and shock, the injured Ajmal Khan was found dead. Then, P.W.2 informed the matter to P.W.1 who also went to the samadhi and found Ajmal Khan dead. Thereafter, P.Ws. An hour later, P.W.2 came to the place where he had laid his brother, taking a cup of tea but to his surprise and shock, the injured Ajmal Khan was found dead. Then, P.W.2 informed the matter to P.W.1 who also went to the samadhi and found Ajmal Khan dead. Thereafter, P.Ws. 1 and 2 went in search of the Village Munsif. P.W.9 who was reported to have gone to Pamban. So, both of them went to Rameswaram Police Station, reaching there at 10-30 a.m. and P.W.1 gave a report, Exhibit P-1 attested by P.W.2 to P.W.12, the Sub-In-spector of police, who registered a case on the basis of Exhibit P-1, in Crime No. 1209 of 1978, under section 302, Indian Penal Code and prepared express reports. The printed first information report and Exhibit P-1 were sent to the Judicial Second Class Magistrate, Ramanathapuram, and the copies of the said reports to all other concerned officials. P.W.13, the Inspector of Police, took up investigation, and reached the scene place, at about 12-15 p.m. accompanied by P.W.12. At the scene place, he found the dead body of Ajmal Khan lying by the side of the Samadhi. He prepared a topography of the scene place, Exhibit P-6, and drew an observation mahazar, Exhibit P-3 attested by P.Ws. 6 and 9. Between 1-30 p.m. and 3-30 P.M. he held inquest over the dead body, during which he examined P.Ws. 1 to 6, 8 and 9. Exhibit P.7 is the inquest report. After the inquest was over, he sent the dead body to the Medical Officer, P.W.10, through P.W.11 with a requisition, Exhibit P.4, for conducting post-mortem examination. 4. P.W.10, on receipt of the requisition, Exhibit P-4 conducted autopsy on the dead body of Ajmal Khan at about 4-45 p.m. on 19th October, 1978. The dead body was of a well nourished man and the age of the deceased, according to the doctor, was about 28. He found the following external injuries on the various parts of the body: Head:. (1) A diffused swelling, green in colour, about 4"X3", over the mastoid bone region of scalp-right side -contusion Section - coagulated blood was present in the subcutaneous region. Face: (2) A small abrasion, 1 mm. x 1 mm. was present 1½" below the level of lateral can thus of left eye. Blood Clot was present. (3) A diffused swelling, 5½ cms. x 5 cms. Face: (2) A small abrasion, 1 mm. x 1 mm. was present 1½" below the level of lateral can thus of left eye. Blood Clot was present. (3) A diffused swelling, 5½ cms. x 5 cms. contusion — green in colour — in the middle of the forehead with an old wound scar lying 3 cms. above the medial end of left eyebrow. Lips (4) An abrasion, 2 mm. X 2 mm. in the middle of lower lipon its inner side. Blood clot was present. (5) An abrasion, 2 mm. x 2 mm. in the midline of upper lip on its inner surface. Blood Clot was present. (6) Ablack — coloured contusion, 2 mm. x 1 mm lying 1" to the right of injury No. 5 in the upper lip. Nose: (7) A small abrasion, 2 mm. X 1 mm, on the bridge of nose, lying ½" below the medial end of left eye — brow. No fracture of the septum of nose. Neck: (8) An oblique abrasion 1 cm. X 1 mm its lower end lying 1½" above the medial end of left clavicle — brown in colour. (9) Multiple interrupted abrasion, each 2 mm. X 1 mm. numbering about three and lying ½" to the left of injury No. 8 — brown in colour. (10) A diffused swelling on the left side of neck measuring 6 cms. X 5 cms. lying 1 cm. to the left of midline of anterior side of neck. (11) An abrasion, 1 cm. X ½ cm. in the right side of neck, lying 6 cms. below the angle of right mandible — brown in colour. (12) An abrasion, ½ cm. X ¼ cm. and lying 1 cm below injury No. 11, brown in colour. (13) A diffused swelling, black in colour, lying on the posterior side of neck, measuring about 10 cms. X 8 cms. Section: coagulated blood was present in the subcutaneous region. (14) A diffused swelling, 8 cms X 10 cms. extending from 2 cms anterior to the left ear to 8 cms. posterior to left ear, and 1 cm below the left ear lobule. Section: coagulated blood was present in the subcutaneous region. Chest: (15) Greenish discolouration of skin was presentalong the right costal margin and extending 1" above it and 2" below it. Coagulated blood was present in the subcutaneous region on section. (16) A small abrasion, 1 cm. posterior to left ear, and 1 cm below the left ear lobule. Section: coagulated blood was present in the subcutaneous region. Chest: (15) Greenish discolouration of skin was presentalong the right costal margin and extending 1" above it and 2" below it. Coagulated blood was present in the subcutaneous region on section. (16) A small abrasion, 1 cm. X ½cm. on the right side of chest, lying 2 cms. to the tight of midline of chest and 8 cms below the right clavicle. Back: (17) An extensive contusion extending from the medical border of left scapula to the right shoulder and from the C7 spine to the level of lower angle of scapula. (18) Two small abrasions each ½ cm. ½ cm. and lying 1 cm. apart from each other, the upper one lying 15 cms. below lower angle of left scapula. Both abrasions lying 2 cms. to the left of midline of back. Abdomen: (19) Greenish decolouration of the whole of anterior wall of abdomen was present except around the umbilicus. Left forearm: (20) A small abrasion 2mm. 2mm was present in the left forearm on its posterior surface, 4" above the wrist joint. Right Forearm: (21) An abrasion, 1 cm. 9 cm. in the anterior surface of right forearm and 3" below the right cubital fossa, brown in colour. (22) A small abrasion, 1 mm 1mm in the middle of posterior surface or right forearm brown in colour. On exploration of the body, he found discharge of blood from abdomen and extravasation of blood in the omentum. The peri-tonealcavity was found to contain coagulated blood clots with fluid blood of about 1½ litres. In the pericardium there were spots of haemorrhage. All the chambers of the heart were empty. There were blood spots of haemorrhage on the surface of lungs. The outer surface of the stomach was covered with blood. There was a rupture 3" in length in the right lobe on the anterior surface. The anterior surface on the spleen was also reputed. Huge blood clots were found around the spleen. The kidneys were reddish black covered with extra vasated blood. The intestines were also completely covered with blood. Goagulated blood was present below the skin of the scalpt over the mastoid boneregion and occipital region. The brain was congested. 5. The anterior surface on the spleen was also reputed. Huge blood clots were found around the spleen. The kidneys were reddish black covered with extra vasated blood. The intestines were also completely covered with blood. Goagulated blood was present below the skin of the scalpt over the mastoid boneregion and occipital region. The brain was congested. 5. prom the above injuries, the doctor is of opinion that the deceased would appearto have died of internal haemorrhage and shock due to the injuries to vital orgens of the abdomen, like the liver and spleen, and the deceased should appear to have died about 26 to 28 hours prior to the commencement of the autopsy and that the injuries to the abdomen, liver and spleen were necessarily fatal. He would further state that injuries 1 to 8 and 11 to 14 could have been caused by fisting and beating with hands, and injuries 9 and 10 could have been caused by holding the neck with hands, whilst injuries 15 to 19 could have been caused by kicking with foot. Injuries 20 to 22 were finger-nail marks. He issued post-mortem certificate, Exhibit P5. In the opinion of the medical officer, the victim, after the receipt of all the injuries, would have survived for about halfan hour. In the cross examination it is brought out that all the external injuries were simple in nature and that it was possible that the deceased would have died even 30 to 32 hours prior to the autopsy. 6. After the inquest, P.W.11 seized M.Os. 1 and 2 (banians) and M.O. 3 (kaili) from the dead body and produced them at the police station. P.W.13, in continuation of his investigation examined P.Ws. 10 and 11 on 20th October, 1978. He sent all the material objects to the Court of the Judicial Second Class Magistrate of Ramanatha-puram. Cm 25th October, 1978, he examined P.W.7 and his wife, Siluvaimuthu. After completing the investigation, P.W 13 laid the charge-sheet against the accused on 2nd December, 1978. 7. When questioned under section 313, Criminal Procedure Code, as to the incriminating evidence appearing against them, both the accused denied the offence. Cm 25th October, 1978, he examined P.W.7 and his wife, Siluvaimuthu. After completing the investigation, P.W 13 laid the charge-sheet against the accused on 2nd December, 1978. 7. When questioned under section 313, Criminal Procedure Code, as to the incriminating evidence appearing against them, both the accused denied the offence. The first accused would add that he is falsely implicated in this case on account of some animosity which the police had against him as he had sent petitions after petitions to the Prime Minister’ of India and the Chief Minister of Tamil Nadu. He has also filed a copy of such a petition said to have been sent by him against the police and the postal acknowledgements. 8. The trial Judge, for the discussions made in paragraphs 12 to 17 of his judgment and the reasons assigned therein, found both the accused guilty of the offence of murder and convicted them under section 302 read with section 34, Indian Penal Code, sentenced them each to undergo imprisonment for life. Hence this appeal. 9. Mr. N.T. Vanamamalai, learned Counsel appearing for the accused, raised the following contentions; — (1) The motive on the part of the accused, attributed by the prosecution, for commit-ting the offence in question, is not satisfactorily established and the evidence adduced in respect of the same is very slender and meagre. (2) The trial Court ought to have rejected the evidence of P.W.1, and P.Ws. 3 to 5, who claim to be eye-witnesses to the occurrence as their evidence cannot inspire the confidence of the Court. (3) The evidence of P.Ws. 2and 3, according to which they did not render any help to the injured Ajmal Khan, looks very artificial and hence the same should be deemed to bean invented one and as such it is unworthy of oredence. (3) The evidence of P.Ws. 2and 3, according to which they did not render any help to the injured Ajmal Khan, looks very artificial and hence the same should be deemed to bean invented one and as such it is unworthy of oredence. Fourthly and lastly, it was contended that even accepting the evidence of the prosecution witnesses that aecused 1 and 2 had inflicted the injuries, accused 1 beating and fisting with hands and accused 2 kicking with legs on the deceased, they could not be held to have intentionally caused the death of the deceased within the meaning of section 300, Indian Penal Code, but on the other hand, the act of the first accused would fall within the ambit of section 299, Indian Penal Code (culpable homicide not amounting to murder) and that of accused 2 under section 323, Indian Penal Code. 10. Before adverting to the legal submissions made by the learned Counsel as to the nature of the offences committed by the accused, we would like to examine the other contentions, viz., contentions 1 to 3. Admittedly the first accused and P. W. 7 are neighbours, belonging to the same community and more or less of the same age. Since two years prior to the occurrence the deceased and the wife of P. W. 7 by name Siluvaimuthu Ammal, a mother of six children, had developed illicit intimacy as the latter used to go often to the tea shop of the deceased. The villagers took a very strong objection to their unbecoming conduct and reprimanded them; but, still they continued their adulterous conduct. P.W.2 and P.W.8, the brother and father respectively of the deceased, have stated that the deceased was a man of questionable character and that his wife had left him finding fault with his conduct and character. It is elicited in the cross-examination of P.W.2 that the deceased married thrice, that he divorced his first wife and ill-treated and drove away the second and third wives, that he refused even to give maintenance to his third wife despite a legal notice sent by her, that he did not use to take bed in his house, that he was indulging himself in various illegal activities, having association with men of bad character and that he was also addicted to drinking. During the relevant period of the occurrence, he was concerned in a criminal proceeding but had come out on bail. Both his brother and father would unreservedly admit that he was leading a continuous adulterous life with Siluvaimuthu Ammal and that he did not pay any heed to their advice. 11. It transpires from the evidence of P.W.6 that the first accused, being a neighbour of Siluvaimuthu, the concubine of the deceased, did not like the deceased visiting the house of Siluvaimuthu Ammal during odd hours in the night. It is said by P.W.6 that when he asked the first accused at the request of the deceased, as to why he beat the deceased on the previous night, the first accused replied that when the deceased came to his village during odd hours after 10 p.m. with apples, etc., he could not do anything else except giving him some thrashing. At the time when the accused was enquired by P.W.6, the deceased was inside the tea shop. P.W.6 after advising both the accused and the deceased to forget the past incidents, left to Pamban. The evidence of P.W.1 (the tea shop owner) and P.Ws. 3, 4 and 5 shows that after P.W.6 had left the tea shop, both the accused who were inside the tea shop of P.W.1 came out and that on seeing the deceased standing in front of the tea shop of P.W.1, tripped him down and attacked him by fisting and beating. Thus, it is well established by the prosecution that the first accused, who was all along objecting to the conduct of the deceased in visiting the house of Siluvaimuthu during the odd hours and who had become aggrieved on account of the persistent behaviour of the deceased in continuing his sexual relationship with Siluvaimuthu by paying visits to her house during odd hours, had obviously thought that he would be quite justified in teaching the deceased a lesson by giving him a good thrashing so that the latter would not continue his vicious way of life with Siluvaimuthu, a woman belonging to his village and to his community. 12. Of the witnesses examined, P.Ws. 1, 3, 4 and 5 claim to have witnessed the actual occurrence in question. P.W.1 is the owner of the tea shop in front of which the occurrence took place. 12. Of the witnesses examined, P.Ws. 1, 3, 4 and 5 claim to have witnessed the actual occurrence in question. P.W.1 is the owner of the tea shop in front of which the occurrence took place. P.W.2, who is also a tea shop owner, was having his shop at a distance of 120 ft. from that of P.W.1. P.W.3, a Muslim, and a launch mechanic by a vocation, claims to have Witnessed the occurrence at the time when he was proceeding to his house from west towards east after taking tea shop, P.W.4 was having his tea shop to the west of the scene shop indicated as No. 6 in Exhibit P-6, the rough sketch of the scene of occurrence. P.W 5 was a vegetable vendor and at the time of the occurrence, he was vending vegetables, sitting in front of one Nahuman Grocery Shop shown as No. 17 in Exhibit P.6. The totality of the ocular testimony of all these witnesses is to the effect that both the accused, after coming out of the tea shop of P.W.1, tripped the deceased, who was standing in front of the shop of P.W.1, and made him fall and thereafter the first accused held the deceased to the ground by pressing his legs, palm and the chin and fisted on his face and chest with his right hand. The second accused kicked the deceased on the stomach and flank. Then the first accused made the deceased stand, by holding his banian, and once again tripped him. Thereafter, the first accused, by heavily pressing the neck of the deceased by the left hand, fisted on the face of the deceased with his right hand. There again", the second accused kicked the deceased. A crowd gathered. According, to P.W.1 none in the crowd intervened. But, P.W.2, the brother of the deceased, who came to the scene place on hearing that his brother was being attacked, would state that he saw his brother (the deceased) lying on the ground in front of the tea shop of P.W.1 lying with face upwards and the first accused pressing the neck of the deceased and fisting on his face and the second accused kicking him and that P.W.3 intervened and pushed away the first accused. It should not be lost sight of that the occurrence took place in broad day light at 7-30 a. m. at the main Rameswaram Road where on either side of it there are a number of tea shops, grocery shops, petty shops, etc., as indicated in Exhibit P-6, the rough sketch of the scene place, and as indicated in the observation mahazar, Exhibit P-3. P.Ws.1, 2 and 4 are having their tea shops adjacent to the scene place and P.W.5, as his testimony goes, used to vend his vegetables, sitting infront of the shop No. 17 in Exhibit p-6. Therefore, the presence of these witnesses at the time of the occurrence is probable and natural, P. W. 3, who is a Muslim and for whom no animosity towards the accused is shown, says that he happened to witness the occurrence while he was on his way after taking tea in a nearby tea shop, On a careful scrutiny and a thorough examination of the testimony of these witnesses, we have absolutely no compunction to accept and act upon their testimony. Nothing has been brought out in the cross-examination as to why they should choose to depose falsely against these accused persons. In fact, their evidence inspires the confidence of this Court and commands acceptance. The evidence of these witnesses would lead to an inescapable conclusion that the deceased in this case was a victim of assault at the hands of these two accused. 13. The attack made by the learned Counsel for the accused as against the evidence of P.Ws. 2 and 3 is that since admittedly they did not render any help to the injured by taking him either to his house or to any dispensary situated nearby, then evidence appears very artificial and therefore, should be looked with suspicion. As pointed out during the narration of the case, the deceased was a disowned and disliked member of the family of P. W. 12. It transpires from the evidence of P.W.2 that since the deceased was a man of questionable character, he did not even allow the deceased to come to his house. As pointed out during the narration of the case, the deceased was a disowned and disliked member of the family of P. W. 12. It transpires from the evidence of P.W.2 that since the deceased was a man of questionable character, he did not even allow the deceased to come to his house. In the cross-examination it is admitted by P.W.2 that at the time when he and P.W.3 intervened and separated the assailants and the victim and took the latter to the side of the Chindha Madha Gori (Samadhi) and made him lie under a margosa tree, he did not think that the victim had received any serious injuries. P.W.2 would state that after leaving the injured at the above said Gori, he went to his tea shop, prepared tea and took it to his brother and only thereafter he came to know that the life of his brother had become extinct. P. W. 3 states that he helped P.W. 2 in taking the injured to the samadhi and then he went home after leaving him there. P.W.2, after finding his brother dead, took P.W.1 with him to the house of P.W.9, the village Munsif, who was not available then, and thereafter P.Ws.1 and 2 went to the police station at Rameswaram where P.W.1 gave a statement, Exhibit P-1 to P.W.12, the Sub. Inspector of Police, which statement has been attested by P.W.2. Thus, it is seen that even though P.W.2. did not take the injured to the hospital or make any attempt to render any medical aid, obviously for the reason that he did not expect the deceased to die, the fact that he was the person who went to the police and gave Exhibit P-1 and thus set the law in motion, cannot be challenged. Therefore, the criti-cism levelled against the testimony of P.Ws. 2 and 3 by the defence does not merit any consideration. 14. Now, the important question that remains to be considered is whether both the accused had the common intention of causing the death of the deceased, thus making themselves liable to be punished under section 302 read with section 34, Indian Penal Code and if not, what is the nature of the offence committed by them. 15. 14. Now, the important question that remains to be considered is whether both the accused had the common intention of causing the death of the deceased, thus making themselves liable to be punished under section 302 read with section 34, Indian Penal Code and if not, what is the nature of the offence committed by them. 15. According to the defence counsel, the facts and attendant circumstances of this case would not spell out that both the accused had the common intention of causing the death of the deceased and therefore, in case the Court comes to the conclusion that the victim received injuries at the hands of both the accused, each one of the accused would be liable only for the individual acts that can be attributed to him. He would further submit that the acts done by the first accused would not fall within the definition of section 300, Indian Penal Code, but would attract only section 299, Indian Penal Code, and that of accused 2 would fall only under section 323, Indian Penal Code, as the latter can be held to have caused only simple injuries by kicking the deceased. In support of the respective contentions, a plethora of decisions were cited at the Bar. We feel that before adverting to the submissions made by the learned Public Prosecutor and the defence counsel, it would be worthwhile to examine the scope and distinction between sections 299 and 300, Indian Penal Code. 16. Section 299, Indian Penal Code, defines culpable homicide broadly and lays down, that acts which fall within the definition given constitute the offence of the culpable homicide punishable either under Part I or under Part II, as the case may be, of section 304, Indian Penal Code whilst section 300 lays down what acts of culpable homicide amount to murder, the punishment for which is prescribed in section 302, Indian Penal Code. Thus eulpable homicide is of two kinds: (1) culpable homicide amounting to murder, and (2) culpable homicide not amounting to murder. In the scheme of the Penal Code, culpable homicide is genus and murder is species. All murder is culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide rot amounting to murder. In the scheme of the Penal Code, culpable homicide is genus and murder is species. All murder is culpable homicide, but not vice versa. Generally speaking, culpable homicide sans the special characteristics of murder is culpable homicide rot amounting to murder. In other words, what is left out of culpable homicide after the special charecteristics of murder have been taken away from it. is culpable homicide not amounting to murder. 17. As pointed out by the Supreme Court in State of Andhra Pradesh v. Rayavarapu Punnayya1the academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has vexed Courts for more than a century and the confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the Legislature in these sections, allow themselves to be drawn into minute obstructions and the safest way of approach to the interpretation and application of the provisions seems to be to keep in focus the key words used in the various clause of sections 299 and 300, Indian Penal Code. This can best be understood and appreciated from the following comparative table. Section 299 Section 300 A person commits culpable homicide, if the act by which the death is caused is done Subject to certain exceptions, culpable homicide is murder. if the act by which death is caused is done- Intention Intention (a) with the intention of causing death; (1) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death: (2) 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; (3) 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: Knowledge Knowledge (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so to cause death. imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. From the above table, it is clear that Clause (a), section 299 corresponds to Clause (1) of section 300; Clause (b) of section 299 cor. (4) with the knowledge that the act is so to cause death. imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. From the above table, it is clear that Clause (a), section 299 corresponds to Clause (1) of section 300; Clause (b) of section 299 cor. responds clauses (2) and (3) of section 300 and to Clause (c) of section 299 corresponds to Clause (4) of section 300. 18.Clauses, (a) of section 299 and Clause (1) of section 300, Indian Penal Code.- The causing of death by doing an act with the intention of causing death is culpable homicide. It is also murder unless the case falls within one of the Exceptions in section 300, Indian Penal Code. The Supreme Court in Jayaraj v. State of Tamil Nadu2has explained Clause (a) of section 299 and Clause (1) of section 300, in the following words; “The first clause of section 300 reproduces the first part of section 299. Therefore, ordinarily if the cafe comes within Clause (a) of section 299, it would amount to murder. However, if one of the special exceptions in section 300 applies, the offence would be culpable homicide not amounting to murder.” 19.Clause (b) of section 299 and Clauses (2) and (3) of section 300 — The distinguishing feature of the mens rea required under Clause (2) of section 300 is knowledge possessed by the offender regarding the peculiar phyical condition or state of health of the particular victim and the further knowledge that the injury intended to be caused likely to be fatal notwithstanding the fact that such a harm would not in the ordinary course of nature be sufficient to cause death of that person in normal health or condition. It is to be noted that the “intention to cause death” is not an essential requirement of Clause (2) of section 300. Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such an injury causing the death of the particular victim is sufficient to bring the act of killing within the ambit of this clause. This is illustrated by Illustration (b) of section 300. 20. Clause (b) of section 299 does not contemplate any Such knowledge on the part of the offender. This is illustrated by Illustration (b) of section 300. 20. Clause (b) of section 299 does not contemplate any Such knowledge on the part of the offender. Instances of cases falling under Clause (2) of section 300 can be where the assailant causes the death of the victim by intentionally causing an injury which would not be sufficient to cause the death of an ordinary grown up human being, but knowing that the victim was suffering from subnormal state of health or was labouring under a physical disorder or bodily infirmity due to some disease like an enlarged liver or an enlarged spleen or a diseased heart, or by reason of weakness due to age or previous injuries, etc., and that the injury is likely to cause the death of that particular person. If the assailant had no knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence would not be murder even if the injury which caused the death was intentionally given. In Clause (3) of section 300, instead of the words ‘likely to cause death’ occurring in the corresponding Clause (4) of section 299, the words ‘sufficient in the ordinary course of nature to cause death’ have been used. Evidently, the distinction lies between a bodily injury which is likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and if over-looked may result in gross miscarriage of justice. The word ‘likely’ means ‘probable.‘It is distinguished from ‘possible’. When the chances of a thing happening, are even with or greater than its not happening we say that the thing will ‘probably’ happen. When the chances of its happening are very high, we say that it will ‘most probably’ happen. An injury “sufficient in the ordinary course of nature to cause death” merely means that the death will be the most probable result of the injury having regard to the ordinary course of nature. The expression does not mean that death must result in every case in which such an injury is caused. Therefore, the expression “sufficient in the ordinary course of nature” is a species of the genus “likely”. The expression does not mean that death must result in every case in which such an injury is caused. Therefore, the expression “sufficient in the ordinary course of nature” is a species of the genus “likely”. In section 299 and in the penal provision under section 304, the word ‘likely’ is used in a comprehensive sense as including both the higher and the low degrees of likelihood. This is very often lost sight of. In section 300 the word ‘likely’ is used in the sense of a higher degree of likelihood. In common parlance the word ‘likely’ is used as only denoting a lower degree of likelihood. It is in this sense the word is used in decided cases to distinguish between an offence punishable under section 302 from that falling under section 304. Though we talk of the intention of causing an injury ‘likely to cause death’, it is not necessarily implied that consequences of the injury are foreseen. All that is necessary to be shown is that such an injury was intended as in fact is likely to cause death. So also in Clause (3) of section 300, the intention spoken of is to cause a particular injury which in fact is of such a nature as is ordinarily sufficient to cause death. 11 is not necessary that the accused should have the knowledge that the injury he intends to cause will be sufficients the ordinary course of nature to cause death. For cases to fall within Clause (3) of section 300, it is not necessary that the offender intended to cause death so long as death ensues from the bodily injury intentionally inflicted and sufficient to cause death in the ordinary course of nature: See Rajwant and another v. State of Kerala.1In the oft quoted decision Virsa Singh v. State of Punjab1, Vivian Bose, J., speaking for the Court explained the meaning and scope of Clause (3) of section 300 as follows: "The prosecution must prove the following facts before it can bring a case under section 303, Thirdly. 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. 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. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional 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 was 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." Thus, according to the rule laid down in Virsa Singhs case1, even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) to section 3C0, clearly brirgs out this point. 21. Clause (c) of section 299 and Clause (4) of section 300: Both require knowledge of the probability of the act causing death. Clause (4) of section 300 requires this knowledge of probability of the act in a very high degree. It will be sufficient to say that Clause (4) of section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general — as distinguished from a particular person or persons — being caused from his imminently dangerous act, approximate to a practical certainty. In ascertaining such knowledge on the part of the offender, the following factors may be taken in to consideration; 1. that the act is imminently dangerous; 2. that in all probability, it will cause death or such bodily injury as is likely to cause death, and 3. that the act is done without any excuse for incurring the risk. Clause (4) of section 300 is not intended to apply to cases in which a person intends to inflict an injury likely to cause death, because the section speaks of knowledge and not of intention of an injury likely to cause death. See Behari v. State2 and The King v. Aung Myun3. 22. Clause (4) of section 300 is not intended to apply to cases in which a person intends to inflict an injury likely to cause death, because the section speaks of knowledge and not of intention of an injury likely to cause death. See Behari v. State2 and The King v. Aung Myun3. 22. From the above discussion, it emerges that whenever a Court is confronted with the question whether the offence is ‘murder’ or "culpable homicide not amounting to murder" on the proved facts of the case, it will be convenient for the Court to approach the problem in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death of the victim leads to the second stage for considering whether that act of the accused amounts to a "culpable homicide" as defined in section 299. If the answer to this question is prima facie found in the affirmative, the state for considering the operation of section 300, Indian Penal Code is reached. This is the stage at which the Court should determine whether the proved facts bring the case within the ambit of any of the four clauses of the definition of "murder" contained in section 300. If the answer to that question is in the negative, the offence would be ‘‘culpable homicide not amounting to murder" punishable under the first or the second part of section 304, Indian Penal Code depending respectively, on whether the second or the third clause of section 299 is applicable. If this question is found in the positive, but the case comes within any one of the exceptions enumerated in section 300, the offence would be "culpable homicide not amounting still to murder" punishable under the first part of section 304. As pointed out by the Supreme Court in Rayavarapo Punnayya’s case4 the above are only the broad guidelines and not cast-iron imperatives. As a result of the above discussion, it may be laid down that section 304 will apply to the following classes of cases: (1) When the case falls under one or the other of the clauses of section 300, but is covered by the exceptions to that section. As a result of the above discussion, it may be laid down that section 304 will apply to the following classes of cases: (1) When the case falls under one or the other of the clauses of section 300, but is covered by the exceptions to that section. (2) When the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of lower degree of likelihood, which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under clause (3) of section 300. (3) When the act is done with the knowledge that death is likely to ensue, but there is no intention to cause death, on an injury likely to cause death: In such cases there may be either no intention to cause an injury at all, or there may be an intention to cause simple or grievous hurt but not an injury likely to cause death. The Supreme Court in Jayaraj v. State of Tamil Nadu1 has explained the words “intent” and “knowledge” occurring in section 299, thus: “As was pointed out by this Court in Anda v. State of Rajasthan2 ‘intend’ and ‘knoweldge’ in the ingredients of section 299 postulate the existence of positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause death. The knowledge in the third condition contemplates knowledge of the likelihood of the person”. Now, let us examine the nature of the offence committed by each of the accused in this case in the light of the above enunciation of law. 23. We have already concluded, on the basis of the evidence, that the first accused twice tripped the deceased and made him-fall on the ground and then fisted him on his face and chest with his right hand on each occasion, and finally heavily pressed the neck of the deceased with is left band. During both the occasions, the second recused is stated to have kicked the deceased on the stomach and flank. During both the occasions, the second recused is stated to have kicked the deceased on the stomach and flank. Only as a result of the injuries sustained due to the fisting and beating with hand, as per the evidence of P.W. 10 the Medical Officer who conducted autopsy on the dead body of the deceased, injuries 1 to 8 and 11 to 14 noted in Exhibit P-5 could have been caused - injuries 9 and 10 due to pressing the neck of the deceased with hands, and injuries 15 to 19 could have been caused by kicking with foot and injuries 2 to 22 by finger nails or toe nails, P.W. 10has opined that the deceased would appear to have died of internal haemorrhage and shock due to injuries to vital organs of abdomen like the liver and spleen and of the injuries sustained by the deceased, the injuries to the abdomen, liver and spleen were necessarily fatal. When the direct evidence of the eyewitnesses is scrutinized in the background of the evidence of P.W. 10, it could be seen that the deceased died on account of the injuries sustained by him on the abdomen, chest and flank. Both the accused are said to have attacked the deceased-accused fisting on the chest and accused 2 kicking on the stomach and flank. In the cross-examination of P.W. 10, nothing has been brought out so as to fix the liability on any one of the accused for the causation of the fetal injuries. Now, the question that arises for our consideration is whether both the accused, in furtherance of a common intention, committed murder punishable under section 302 read with section 34, Indian Penal Code or culpable homicide not amounting to murder punishable under section 304 read with section 34, Indian Penal Code or whether there was no such common intention on the part of both accused 1 and 2 and if so what is the nature of the offence committed by each one of them? 24. Mr. 24. Mr. N.T. Vanamamalai relied on a plethora of decisions of various High Courts and the Supreme Court in support of his contention that neither of the accused did have the intention of causing the death or the intention of causing such bodily injury knowing that such injury inflicted was likely to cause the death of the deceased, nor did they intentionally inflict the particular injuries which were sufficient in the ordinary course of nature to case death, nor again did they have the knowledge that the injuries caused must in all probability cause the death of the deceased or likely to cause death. 25. Now, we shall refer to the decisions relied on by the learned Counsel and see how far the principles laid down therein could be made applicable to the facts of the present case. In Emperor v. Saberali1 the deceased having a weak constitution and en larged spleen was given some thrashing (by kicks and blows) by the accused, intending to teach him a lesson as the former had approached the accused’s kept mistress for the purpose of having sexual intercourse with her. The deceased died. A Bench of that High Court, observed that the facts and circumstances of that case indicated that the accused evidently did not believe that there was anything serious in giving certain be lows to the victim and therefore, he could not be held that he either intended or knew it to be likely that he would cause death or grievous hurt by such thrashing. On the basis of the above finding, the Court held that the offence would fall only under section 323, Indian Penal Code. In our view the above decision cannot be of any avail to the accused in the present case as in the decision cited there was nothing to show that the blows inflicted by the accused therein were so serious in order to cause the death of the deceased, nor did he have the knowledge of probability of his thrashing causing the death of the deceased in view of the peculiar physical condition of the deceased as the accused did not have any knowledge of the bodily infirmity of the deceased. But, in the present case, both the accused repeatedly fisted and kicked the deceased on some vital parts of his body, which alone, according to P.W. 10, had resulted in the death of the deceased. There is nothing in this case to show that the death of the deceased was accelerated by any physical infirmity of the deceased. 26. In Martina Gounden v. The Emperor2 Lakshmana Rao, J. taking into consideration the absence of any mark of injury, external or internal, on the body of the deceased, held that it was difficult to hold that the accused therein intended or knew that by kicking on the abdomen as he did, he was likely to endanger the life of the deceased and accordingly altered the conviction Under section 304, Part II, Indian Penal Code into one under section 323, Indian Petal Code. This case also cannot be made applicable to the facts of the present case because in the present case the medical evidence discloses that there were a number of external and internal injuries on the vital parts of the body of the victim resulting in his death. 27. The next decision relied upon on the side of the defence is Urmese v. State of Kerala3. The facts of that case disclose that the accused therein dealt only one blow with his hand on the neck of the deceased, causing fracture of the vertebra, a vital organ, and unconsciousness resulting in death and the blow not followed by other acts of violence nor was any weapon used. The victim died a few-hours later. On the above facts, setting aside the conviction under section 304, Part II, Indian Penal Code passed by the trial Court, the High Court found him guilty only under section 323, Indian Penal Code observing thus: “It is true that the blow caused fracture of the vertebra but that could not have been intended or anticipated while giving a blow with the open palm on the neck. So long as the intention or knowledge to cause grievous hurt has not been proved, the offence is only one under section 323 even though death ensued.” Thus in the above case, the conviction was altered only on specific finding that the assailant had neither intended to cause the fracture of the vertebra nor did the assailant have the knowledge that his and was likely to cause death. The blow was not followed by any other act of violence. In our view, the observation made in the case cannot be of any help to the accused, in the present case who according to us for the reasons to be mentioned by us later, had the necessary knowledge that their acts were likely to cause death. 28. Strong reliance was placed on the decision of the Supreme Court in Kishun v. U.P. State1. In that case, four accused were tried and convicted under section 302 read with section 34, Indian Penal Code. Of the injuries, only one injury on the head was vital. The evidence disclosed that there was no previous enmity between the parties and that quarrel culminating in the occurrence arose over a trifling incident. The High Court confirmed the conviction. The Supreme Court altered the conviction into one under section 325 read with section 34, Indian Penal Code, observing thus: “The fact that one of them (the accused) exceeded the bound and gave a fatal blow on the head of the deceased would make himself personally liable for the fatal blow. But, so far as the other three are concerned, they can be held liable Only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material on record to find out as to which ore of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can be guilty of the offence under section 325 read with section 34, Indian Penal Code.” The above conclusion was arrived at by the Supreme Court on acceptance of the finding of trial Court that the common intention of all the accused was to cause only grievous injury to the victim. Relying on this decision, Mr. Vanamamalai, would contend that in case this Court completely accepts the evidence of the prosecution witnesses, at the worst, the evidence would show that one of the accused had intended to cause grievous hurt and the other simple hurt punishable under sections 325 and 323 respectively, of the Penal Code, or both of them would be vicariously liable only for an offence punishable under section 325 read with section 34, Indian Penal Code. In case this Court concludes that the common intention of both the accused was only to cause grievous hurt, but had inflicted only such injuries, then there may not beany difficulty for this Court, on the basis of this ruling to find both the accused vicariously liable only for the offence of causing grievous hurt punishable under section 325 read with section 34, Indian Penal Code. But, as the facts and circumstances of the present case do indicate that both the accused should have had the knowledge that the injuries inflicted by them were likely to cause death, they cannot have umbrage under this decision to minimise the nature of the offence. 29. In the present case, even though the injuries to the abdomen, liver and spleen, as the evidence of the medical officer goes, were necessarily fatal, there is no circumstance leading to a presumption that both the accused or any one of them lad an intention of actually causing the above injuries which have resulted in the death of the deceased. As pointed out by numerous authoritative judicial pronounce men is of the Supreme Court as well as various High Courts, one has to take into consideration the following factors before arriving at any conclusion whether or not the assailant in a criminal case had the intention of causing a particular injury resulting in then death of the victim: (1) the presence or absence of motive; (2) the intention of the accused, or/and (3) the knowledge of the accused. (4) the nature of the weapon used and the nature of the attack, and (5) the nature of the injuries caused. 30. In Rajinder Kumar v. State of Punjab2, their Lordships of the Supreme Court observed that the motive behind a crime is a relevant fact of which evidence can be given and absence of motive is also a circumstance which is relevant for assessing the evidence and that once the evidence and circumstances prove the guilt of the accused, the absence of motive does not at all weaken the guilt of the accused if the evidence and circumstances warrant such a conclusion, because it often happens that only the culprit himself knows what moved him to a certain course of action. Therefore, it is clear that though the presence of motive plays an important role in prompting a man to form an intention, it is not a necessary ingredient in proving the offence of murder. In other words, the absence of motive or inadequacy of it is immaterial where there is direct, clear and convincing evidence of the crime. 31. As pointed out by the Supreme Court in Basdeo v. State of Pepsu1, motive is something which prompts a man to form an intention and knowledge is an awareness of the consequence of the Act. In many cases, intention and knowledge merge with each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they connote different things. As far as intent or intention is concerned, we must gather it from the attending general circumstances of the case, paying due regard to the degree of various factors. 32. The test laid down by the Supreme Court in Virsa Singh’s case2, has often been adopted as the guideline to find out whether the author of an injury, which On objective test has been found to be sufficient in the ordinary course of nature to cause the death of the victim, has intended to cause that particular injury which caused the death. 33. In Hardev Singh v. State of Punjab3, the Supreme Court, approving the view taken in Virsa Singh’s case2, pointed out thus: “The question in such a case which falls for determination is whether the causing of the fatal injury was accidental or unintentional or whether some other kind of injury was intended to be inflicted by the assailant. Ordinarily and generally, once the existence of the injury is proved, the intention to cause it would be presumed unless the evidence of the circumstances warrant an opposite conclusion.” 34. In the case on hand the first accused is proved to have had the motive, as pointed out supra, only to prevent the deceased from once again paying visit to his colony where Siluvaimuthu was residing. Therefore, the motive was not strong enough for causing the death of the deceased. In the case on hand the first accused is proved to have had the motive, as pointed out supra, only to prevent the deceased from once again paying visit to his colony where Siluvaimuthu was residing. Therefore, the motive was not strong enough for causing the death of the deceased. Even though the second accused did not have any such motive on his part, he, being a close associate of accused 1, is shown to have shared the intention of accused 1 in giving a good thrashing to the deceased so as to teach him a lesson and thereby prevent him from continuing his visits to the village of accused 1. 33. Admittedly, both of them did not use any weapon, nor had they any weapon. The evidence of the eye-witnesses did not disclose that the first accused had intended to cause the death of the deceased. It transpires from the evidence of P.Ws. 1 and 6 that at the time when the first accused was questioned by P.W.6, accused 1 is reported to have said that the beatings which he had given to the deceased on the previous night were not sufficient and that the deceased deserved more beatings. When the substratum of the evidence of the prosecution witnesses examined is scrutinised, it shows that the evidence on the part of accused 1 was only to give a good thrashing to the deceased, and he did not have any intention of causing an injury which would result in the ordinary course of nature in the death of the deceased. Therefore, the presumption remains unshaken that the first accused, when he inflicted the injuries on the person of the deceased, did not have the knowledge that the injuries were sufficient in the ordinary course of nature to cause death or that the said injuries would in all probability cause the death of the deceased. Such is the position of the second accused also. Therefore, both the accused cannot be made liable for the offence of murder. 36. The cumulative effect of the evidence is that the death of the victim was as a result of the beatings and kicks by both the accused and therefore, the evidence and circumstances warrant an unimpeachable conclusion that each of the assailants possessed the knowledge that death was the likely consequence of their criminal acts, 37. 36. The cumulative effect of the evidence is that the death of the victim was as a result of the beatings and kicks by both the accused and therefore, the evidence and circumstances warrant an unimpeachable conclusion that each of the assailants possessed the knowledge that death was the likely consequence of their criminal acts, 37. In Marimuthu, In re1, the facts of the case were as follows: The accused and his wife had frequent quarrels wherein the accused taxed his wife with consorting, or at any rate, flirting with other men and the wife replied “what does it matter?” The accused immediately struck her on the cheek. She fell down and cursed. Then the accused kicked her forcibly resulting in her death. A question arose whether the accused had not at any rate considerably minimised the violence he used to cause his wife’s death or whether it had not covered cases of direct violence wilfully inflicted with the intention of causing the death. William Ayling, J., held that a conviction for causing grievous hurt would be illogical as well as inadequate to the facts, and that the circumstances seemed to fully justify that in kicking the deceased, the accused knew that he was likely to cause the death and hence guilty under section 304, Indian Penal Code, latter part. Odgers, J., agreeing with the above view of William Ayling, J., observed that the accused must be taken to have known that he was likely to cause death, there being no evidence of any contributory cause. 38. In Slavey’s case2, it was held that if the act is only likely to cause death and there is no special knowledge on the part of the offender, the offence would come only under section 304, Part II, Indian Penal Code. 39. In Riasat v. State of U.P.3, the facts were that the accused pushed one, Halima on the ground, sat on her chest and pressed his knee-joints with great force resulting in her death. The post-mortem examination disclosed that the deceased had two large contusions on the right and left sides of the chest and on the right side 4 to 7 ribs in the mixaxillary line were fractured. Pleura was found lacerated at the situs of fractures. There was laceration on the left lung. The post-mortem examination disclosed that the deceased had two large contusions on the right and left sides of the chest and on the right side 4 to 7 ribs in the mixaxillary line were fractured. Pleura was found lacerated at the situs of fractures. There was laceration on the left lung. The doctor opined that the injuries were sufficient to cause death in the ordi-nary course of nature and that it was a laceration on the left lung caused by one of the broken pieces of the left ribs which primarily resulted in her death. The Supreme Court, while setting aside the conviction under section 302, Indian Penal Code, passed by the trial Court as well as the High Court, and modifying the sentence into one under section 304, Part II, Indian Penal Code, observed that the appellant did not realise that the pressure he was applying was so great so as to cause such grievous injuries which might result in the death of the deceased, and after considering the facts and circumstances of the case and the manner of attack, the Court held as follows; viz., the beatings and kicks, which would difinitely attract the definition under clause (c) of section 299, Indian Penal Code, punishable under section 304, Part II, Indian Penal Code. This conclusion of ours is fortified by a number of decisions of this Court and of the Supreme Court. ......“In these circumstances, we think that the only inference which would have been justifiably drawn was that the appellant did not intend to cause the death of Smt. Halima or to cause such injuries as would, in the ordinary course of nature, result in her death; but, he did try to punish her by causing her severe pain by applying great pressure with the knees.....He should therefore, have had the knowledge that the injuries which he was likely to cause, might result in death, even though he was not intending to cause death”. The principles laid down in the above case would on all fours be applicable to the facts of the present case. 40. It is unnecessary to refer in extenso to all the decisions on this point. See L.K. Nikalge v. State of Maharashtra4; Rymond v. State5; Theimmaraya, In re6, Shanker v. State of Madhya Pradesh1 and Maiza Hidayatullah Baig v. State of Maharashtra2. 41. 40. It is unnecessary to refer in extenso to all the decisions on this point. See L.K. Nikalge v. State of Maharashtra4; Rymond v. State5; Theimmaraya, In re6, Shanker v. State of Madhya Pradesh1 and Maiza Hidayatullah Baig v. State of Maharashtra2. 41. The learned Public Prosecutor referred to a judgment rendered by a Division Bench of this Court consisting of Somasundaram and Ramaswami Gounder, JJ. in Palani v. Natesa Mudali, In re3. In that case, the death of the victim was as a result of the kicking by the accused with his legs on the abdomen of the deceased. The Division Bench differing from the view taken in Nur Mohamed v. Emperor4, that the offence under such circumstances would fall only under section 304, Indian Penal Code, held that the offence would fall under clause II of section 300, Indian Penal Code, and be punishable under section 302, Indian Penal Code, on the conclusion that the accused intentionally caused that injury with the full knowledge that the said injury was most likely to result in her death. As in the present case we have already found that the evidence in the present case does not warrant a conclusion that the accused had intended to cause the injuries on the deceased, having full knowledge that those injuries were likely to cause the death of the victim, the observations made in Criminal Appeal No. 578 of 1975 cannot be made applicable to the facts of the present case. 42. For the foregoing discussions, we hold that the appellants accused 1 and 2 in the present case, who had repeatedly fisted and kicked the deceased on vital parts of his body should be ascribed with the knowledge that death was the likely consequence of their criminal acts, thereby attracting clause (e) of section 299, Indian Penal Code, and punishable under section 304, Part II, Indian Penal Code. 43. The last contention of Mr. Vanamamalai that the second accused should be held liable only for an offence under section 323, Indian Penal Code, cannot be accepted, because the medical evidence discloses that the injuries on the stomach due to kicking were necessarily fatal. Both the accused are associates. They came to the tea stall of P.W. 1 and attacked the deceased. Vanamamalai that the second accused should be held liable only for an offence under section 323, Indian Penal Code, cannot be accepted, because the medical evidence discloses that the injuries on the stomach due to kicking were necessarily fatal. Both the accused are associates. They came to the tea stall of P.W. 1 and attacked the deceased. Therefore, the only inference is that both of them had the common intention of assaulting the deceased by beating and kicking and both of them are vicariously liable for the offence of culpable homicide not amounting to murder. 44. In the result, we set aside the conviction under section 302, read with section 34, Indian Penal Code, and the sentence of imprisonment for life imposed therefor, and instead convict both the appellants under section 304, Part II, read with section 34, Indian Penal Code, and sentence each of them to undergo rigorous imprisonment for two years. Subject to the above modification in the conviction and sentence, the appeal is dismissed. Appeal dismissed; conviction altered.