S. L. TALATI, J. ( 1 ) THE State of Gujarat by this appeal challenges the acquittal recorded by the Sessions Judge Bharuch in Sessions Case No. 97 of 1979 by which the three respondents came to be acquitted for the charges under sec. 302 read with sec. 34 of the Indian Penal Code. The short facts which gave rise to this appeal may be stated as under:p. W. 1-Bhupendrabhai exh. 8 lodged a complaint before P. W. 8 Mohanbhai the Police Station Officer. That complaint is exh. 9. It appeared that in village Karmad Taluka Jambusar on 3-9-1979 the incident happended some time between 9-30 P. M. and 10-30 P. M and in that incident one Ranchhodbhai Motibhai was seriously injured. He was removed to Jambusar hospital and at 0-45 A. M. on that very night the complaint exh. 9 was filed. Ultimately the deceased was removed to Baroda hospital for better treatment and he ultimately expired on 7-9-1979. It may here be stated that Mohanbhai P. S. O. after recording the complaint handed over the papers to another Head-constable Hilal Ragha (P. W. 9) exh. 25 for further investigation. Hilal got the papers at 1-15 A. M. on that very night and he immediately went to the hospital where Ranchhodbhai was lying in an injured position. He recorded his statement and as Ranchhodbhai expired on 7-9-1979 at Baroda hospital that statement is taken in evidence as dying declaration and is at exh 26. Hilal after recording the complaint reached Karmad at 2-30 A. M. which is at a distance of about 6 miles from Jambusar and he prepared the panchnama of the place of scene of the offence which is at exh. 16. He recorded the statements of Ambalal and sarpanch Shantibhai. He recorded the statements of other persons in the vicinity. The accused surrendered themselves at Jambusar and they were arrested under a panchnama exh. 18 Further statements were recorded on 5-9-1979 and when Headconstable knew that Ranchbodbhai expired he handed over the investigation to his superior Mr. Raol. Mr. Raol Ajitsinh exh. 28 arrested the accused as formerly they were released on bail. The muddamal which was attached was sent to the Forensic Laboratory for examination. Further statements of Bhupendra Soma Jashbhai etc. were recorded and after completing the investigation the charge-sheet was submitted on 6-10-1979. Raol. Mr. Raol Ajitsinh exh. 28 arrested the accused as formerly they were released on bail. The muddamal which was attached was sent to the Forensic Laboratory for examination. Further statements of Bhupendra Soma Jashbhai etc. were recorded and after completing the investigation the charge-sheet was submitted on 6-10-1979. ( 2 ) IN due course the case came to be committed to the Court of Sessions. Before the learned Sessions Judge at Bharuch ten witnesses were examined and after appreciating the evidence on record the learned Sessions Judge came to the conclusion that the offence against the accused was not proved and as a result acquittal of the these respondents was recorded. The State has challenged that acquittal by filing this appeal. ( 3 ) NOW so far as this case is concerned there are three eye witnesses and they are P. W. 1 Bhupendra P. W. 2 Ambalal and P. W. 5 Shantilal. There is also a dying declaration recorded by the Head Constable which is at exh. 26. The learned Sessions Judge for the reasons recorded in the judgment which we will discuss shortly came to the conclusion that the eye witnesses may not have seen the incident and they might be giving evidence from hearsay and he also rejected the dying declaration on the ground that he could find some discrepancies in the dying declaration. ( 4 ) BEFORE we reappreciate the evidence we would like to state that we are conscious of the fact that we are hearing an appeal from acquittal. The law on the point is well settled and in a case of SHEO SWARUP and ORS. V. KING EMPEROR REPORTED IN A. I. R. 1934 PRIVY COUNCIL 227 the learned Judges held as under :secs. 417 418 and 428 of the Code (Cr. P. C. 1898) give to the High Court full power to review at large the evidence upon which the order of acquittal was found and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code. P. C. 1898) give to the High Court full power to review at large the evidence upon which the order of acquittal was found and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact the High Court should and will always give proper weights and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. ( 5 ) THIS judgment is followed constantly by the Supreme Court and in the case of SANWAT SINGH AND OTHERS V. STATE OF RAJASTHAN A. I. R. 1961 S. C. AT PAGE 715 the Supreme Court observed asunder :in an appeal against acquittal the appellate Court has full power to review the evidence upon which the order of acquittal is founded. The principles laid down in SHEO SWARUPS CASE AIR 1934 P. C. 227 (2) afford a correct guide for the appellate Courts approach to a case in disposing of such an appeal and different phraseology used in the judgments of the Supreme Court such as (i) substantial and compelling reasons (ii) good and sufficient cogent reasons and (iii) strong reasons are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in its arriving at a conclusion on those facts but should also express those reasons in its judgment which lead it to hold that the acquittal was not justified. 9 ( 6 ) IN another case BHAGWATI and OTHERS V. STATE OF UTTAR PRADESH REPORTED IN A. I. R. 1976 SUPREME COURT AT PAGE 1449 it was observed as under:the power of an appellate Court to review evidence in appeals against acquittal is as extensive as its power in appeals against convictions. Before an appellate Court can set aside an order of acquittal it must carefully consider the reasons given by the trial Court in support of its decision and give its own reasons for rejecting them. If the finding reached by the trial Judge cannot be said to be unreasonable the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court therefore should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record it is not expected to interfere simply because it would have taken a different view if the case had been tried by it. ( 7 ) HAVING stated this law we are clearly of the opinion that if the view which the learned Sessions Judge took was a reasonable view or that it was a possible view we would not interfere with it. Bearing this principle in mind we have gone through the entire evidence on record and also the judgment rendered by the learned Sessions Judge Bharuch. ( 8 ) FIRST we would like to consider the dying declaration exh. 26. Now this dying declaration is recorded by Head-constable Hilal exh. 25 Hilal in his evidence stated that he took over the investigation at 1 A. M. and he reached Karmad at 2-30 A M. which is at a distance of about 6 miles from Jambusar. This would mean that he recorded dying declaration between 1-15 A. M. and 2-00 A. M. Now the incident had occurred some time at 10-30 P. M. and Ranchhod was removed to Jambusar for treatment. At 00-45 A. M. the complaint was filed by P. W. 1 Bhupendra. Within one hour thereafter the statement of Ranchhod was recorded. This would mean that he recorded dying declaration between 1-15 A. M. and 2-00 A. M. Now the incident had occurred some time at 10-30 P. M. and Ranchhod was removed to Jambusar for treatment. At 00-45 A. M. the complaint was filed by P. W. 1 Bhupendra. Within one hour thereafter the statement of Ranchhod was recorded. Now Hilal clearly stated in his evidence that he recorded the statement in Government hospital. Hilal had signed the statement as recorded before him. In cross-examination the witness stated that when he recorded the statement he had not kept the Medical Officer present and he had not questioned the Medical Officer in regard to the health of Ranchhodbhai. He denied the suggestion that when the statement was recorded Ranchhod was not in a position to speak. Now so far as exhibit 26 is concerned in that statement it is stated that three accused Kanu Harman and Nagin were abusing Ambalal Chairman of the Dairy. Kanu had a stick Harman had an Ada and Nagin had a pick axe. According to the statement of Ranchhod he tried to explain to them not to quarrel but they did not agree with him and Kanu was stating that the Chairman did not give a form for buffalo which he wanted for one Surabhai. So saying Kanu and Harman gave him stick and Ada blows stating that why should he meddle in between. At that time Ranchhod having received blows moved a little and Nagin threw pick axe at him which hit him on his head and he fell down on the ground bleeding and the three accused ran away. According to him. thereafter he was removed in a cart to Jambusar where Bhupendra had lodged a complaint. Now the learned Sessions Judge discussed exhibit 26 and in his judgment stated that in the whole statement he did not say that other persons were present at that place and yet other persons had come out to give evidence as if they were the eye witnesses. Further the learned Sessions Judge stated that orally Ranchhodbhai had stated to his brother Somabhai exh. 22 regarding the incident and therefore there were two dying declarations one oral and one written. But the evidence of Somabhai exh. 22 is discussed at that place and that evidence disclosed that Ranchhod had told Somabhai also that accused no. Further the learned Sessions Judge stated that orally Ranchhodbhai had stated to his brother Somabhai exh. 22 regarding the incident and therefore there were two dying declarations one oral and one written. But the evidence of Somabhai exh. 22 is discussed at that place and that evidence disclosed that Ranchhod had told Somabhai also that accused no. I had given him a stick blow accused no. 2 had given him an Ada blow and accused no. 3 had given him a blow with pick axe. Now that therefore even if there were two dying declarations one oral and one documentary the two dying declarations did not differ and there was no contradiction anywhere except a discrepancy by which one can say that to his brother he orally told that he was given a blow with pick axe by accused no. 3 while in his written dying declaration there is a mention that the pick axe was thrown at him by accused no. 3. Barring this discrepancy there is nothing else. This could hardly be considered to be any infirmity. Dying declaration is admissible under sec. 32 of the Evidence Act. Sec. 32 (1) reads as under: ( 9 ) STATEMENTS written or verbal of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable are themselves relevant facts in the following cases : (1) When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that persons death comes into question. ( 10 ) SUCH statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may by the nature of the proceeding in which the cause of his death comes into question. ( 11 ) NOW in this particular case cause of death of Ranchhodbhai was in question. Now therefore any statement made as to the cause of his death or to any of the circumstances of the transaction which resulted in his death was relevant. It was admissible. ( 11 ) NOW in this particular case cause of death of Ranchhodbhai was in question. Now therefore any statement made as to the cause of his death or to any of the circumstances of the transaction which resulted in his death was relevant. It was admissible. Dying declaration does not come from a tainted source. A person making dying declaration is not accomplice. Therefore dying declaration does not ordinarily require any corroboration. If the dying declaration is found reliable conviction on the dying declaration itself can be based. Normally the Judge would look for corroboration if he finds any infirmity attached to that dying declaration. In a case of THURUKANNI POMPIAH AND ANOTHER V. STATE OF MYSORE REPORTED IN A. I. R. 1965 AT PAGE 939 the Supreme Court held as under :a dying declaration is relevant and material evidence in the prosecution of the assailants and a truthful and reliable dying declaration may form the sole basis of conviction even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be sub jected to a close scrutiny considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross examination. If the Court finds that the declaration. It is not wholly reliable and a material and integral portion of the deceaseds version of the entire occurrence is untrue the Court may in all the circumstances of the case consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. ( 12 ) IN a case of LALLUBHAI DEVCHAND SHAH AND OTHERS V. STATE OF GUJARAT REPORTED IN 1971 (3) SUPREME COURT CASES AT PAGE 767 the Supreme Court held as under :- (I) The law with regard to dying declaration is very clear. A dying declaration must be closely scrutinized as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case bearing in mind on the one hand that the statement is by a person who has not been examined in court on oath and on the other hand that the dying man is normally not likely to implicate innocent persons falsely. If the Court is satisfied on a close scrutiny of the dying declaration that it is truthful it is open to the Court to convict the accused on its basis without any independent corroboration. ( 13 ) IN a case of DALIP SINGH AND OTHERS V. STATE OF PUNJAB REPORTED IN 1979 SUPREME COURT CASES AT PAGE 332 it is held as under:although a dying declaration recorded by a police officer during the course of investigation is admissible under sec. 32 of the Indian Evidence Act ill view of the exception provided in sub-sec. (2) of sec. 162 of the Code of Criminal Procedure 1973 it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it vas not recorded by a Magistrate or by a doctor. ( 14 ) THE practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It is not that such dying declarations are always untrue worthy but better and more reliable methods of recording dying declarations of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. ( 15 ) NOW this legal position was completely overlooked by the learned Sessions Judge. If exhibit 26 was closely scrutinised it was more than clear that the dying declaration contained all details. The cause of quarrel was stated the place of quarrel was stated the names of the accused were stated Each weapon in the hand of each accused was described separately. The statement was made in regard to different blows given by different accused-persons. Now that therefore nothing which was of importance was left out. Thereafter the learned Sessions Judge was expected to find out as to why no further dying declaration was recorded either by the Medical Officer or by the Executive Magistrate. There the evidence was clear. Girish Trivedi exh. 11 Medical Officer who examined Ranchhod at Jambusar clearly stated that when Ranchhod came to the hospital he was in a position to speak and walk. That situation continued till he was removed to Baroda. Now the injury was such according to Doctor that he immediately advised the patient to be removed to Baroda. Girish Trivedi exh. 11 Medical Officer who examined Ranchhod at Jambusar clearly stated that when Ranchhod came to the hospital he was in a position to speak and walk. That situation continued till he was removed to Baroda. Now the injury was such according to Doctor that he immediately advised the patient to be removed to Baroda. However the relatives desired that the patient may be removed to Baroda in the morning and therefore Ranchhod was removed to Baroda hospital in the morning. Dr. Raman Patel who examined him at Baroda in his evidence stated that the patient was unconscious when he was admitted in Baroda hospital and he remained unconscious till he died. According to him such an injured person might immediately become unconscious. He might gain consciousness for some time and again may become unconscious. According to him on 4-9-1979 he had regained consciousness. Now that therefore the patient was conscious for few hours only and thereafter throughout till he died he was unconscious. It was therefore not possible to get his dying declaration recorded through some other agency. Final (P. W. 9) is examined at exh. 25 and in his cross-examination only denial is taken making a suggestion that when statement-exh. 26 was recorded Ranchhod was not in a position to speak and that suggestion was denied. It is not suggested anywhere to P. S. O. Hilal that Ranchhod was conscious and yet no effort was made to record his dying declaration through the Executive Magistrate. On the contrary a denial was taken to the effect that it was not true that Ranchhod was not in a speaking position when his statement exh. 26 was recorded. In such a situation when it was established that the man was conscious and his statement was recorded by a Police Officer and full details were given in that statement that statement cannot be easily brushed aside and merely on the ground that it is recorded by a Police Officer. There is nothing on record by which one can come to the conclusion that there was a possibility of recording dying declaration by someone else. Under these circumstances this dying declaration is a dying declaration to which no infirmity is attached and the conviction could be based on such a dying declaration without any corroboration. There is nothing on record by which one can come to the conclusion that there was a possibility of recording dying declaration by someone else. Under these circumstances this dying declaration is a dying declaration to which no infirmity is attached and the conviction could be based on such a dying declaration without any corroboration. But in this particular case there are three witnesses whose evidence independently of the dying declaration is sufficient to hold the accused guilty. The accused could be held guilty on the basis of the dying declaration the accused could be held guilty on the basis of the evidence of the eye witnesses and when the evidence of the eye witnesses corroborates dying declaration the Judge would find double support for the conclusion which he is likely to reach. ( 16 ) P. W. 1 Bhupendra exh. 8 is the first eye witness examined in the case and in his evidence he stated that on the date of the incident he had gone to the house of Shantilal (P. W. 5 ). Shantilal is the Sarpanch of the village. According to Bhupendra Ambalal Motibhai the Chairman of the Dairy was also present. At that time accused no. 1 came there and he wanted a form for a buffalo for one Surabhai Mansukhbhai. At that time Ambalal told that the form could be given to a person who requires buffalo and it cannot be given for someone else. This enraged accused no. 1 and he left. The incident happened thereafter after about half an hour according to Bhupendra. He was going to his house and on the way he met Ranchhodbhai. At that time three accused were coming to beat Ambalal the Chairman of the Dairy. Accused no. 1 had a stick accused no. 2 had an Ada and accused no. 3 had a pick axe. They were telling that they wanted to kill Ambalal. Ranchhodbhai told them that they were all relatives and such a thing could not be done. On that accused no. 1 gave a stick blow to Ranchhod accused no. 2 gave an Ada blow to Ranchhod and accused no. 3 gave a blow with pick axe to Ranchhod. Thereafter he was removed to Jambusar as several persons came there. This is what Bhupendra (P. W. 1) exh. 8 stated in his examination-in-chief. On that accused no. 1 gave a stick blow to Ranchhod accused no. 2 gave an Ada blow to Ranchhod and accused no. 3 gave a blow with pick axe to Ranchhod. Thereafter he was removed to Jambusar as several persons came there. This is what Bhupendra (P. W. 1) exh. 8 stated in his examination-in-chief. The witness is cross-examined at great length and ultimately after a long cross-examination running into more than three typed pages in paragraph 28 a suggestion was made to the witness that an assault was made on accused no. 2 with a stick which resulted in a quarrel and the whole incident occurred. That suggestion was denied. Now that therefore the presence of practically accused no. 2 and Ranchhod was admitted. Apart from that there is nothing on record from which one can come to the conclusion that Bhupendra was not present at the time of the incident or that what he was telling was not true. ( 17 ) ANOTHER witness P. W. 2 Ambalal is examined at exh. 10. He in his evidence stated that he had gone to the house of Shantibhai Jethabhai and at that accused no. 1 had gone there to take a form for Surabhai Mansukhbhai. At that time Ambalal told him that the form can be given to a person who is desirous of having a buffalo and that the person so desirous has to go personally and no form could be given to someone for other person. Accused no. 1 was enraged and he stated that he would like to beat Ambalal. According to the witness thereafter about half an hour accused no 1 had gone to beat the witness with his brother. When Bhupendra was trying to explain Ambalal and the accused not to quarrel accused no. 1 gave a stick blow accused no. 2 gave an Ada blow and accused no. 3 gave a blow with pick axe. This witness is also cross-examined at great length and nothing which could be helpful to the defence was extracted from the witness in crossexamination. Shantilal (P. W. 5) exh. 21 in his evidence stated that he was at his house at night on 3-9-1979 and accused no. 1 had gone there and he wanted a form for Surabhai Mansukhbhai. Ambalal stated that in that way form could not be given and on so saying accused no. Shantilal (P. W. 5) exh. 21 in his evidence stated that he was at his house at night on 3-9-1979 and accused no. 1 had gone there and he wanted a form for Surabhai Mansukhbhai. Ambalal stated that in that way form could not be given and on so saying accused no. 1 was enraged. Thereafter at about half an hour or 45 minutes he came with his brothers and at that time when Ranchhodbhai intervened the three accused beat Ranchhodbhai and accused no. 1 gave a stick blow accused no. 2 gave an Ada blow and accused no. 3 gave a blow with pick axe on his head. ( 18 ) BEFORE we go to the medical evidence it is sufficient to say that all the three witnesses P. W. 1 Bhupendra P. W. 2 Ambalal and P. W. 5 Shantilal were the witnesses whose evidence could not be discarded. It was also required to be remembered that the incident occurred sometime between 10-0 P. M. and 10-30 P. M. Ranchhodbhai was immediately taken to Jambusar and the complaint was filed by Bhupendra at 0-45 hours. Bhupendra therefore was fully corroborated by the complaint exh. 9. Immediately between 1-30a. M. and 2-0 A M. exh. 26 was recorded. The statements of other witnesses who were eye witnesses were recorded at the earliest. The names of the accused transpired immediately. They themselves surrendered at Jambusar. It these facts were read together the evidence was of conclusive The learned Sessions Judge came to the conclusion that because other persons who were residing in the neighborhood were not perhaps Bhupendra and others might have Come to know the three accused were responsible out of rumours and hearsay. is pure imagination and conjecture not based on evidence. The evidence is misread and not properly appreciated. A view which is unreasonable and impossible is taken. Under these circumstances have got to interfere and set aside the acquittal. ( 19 ) THE injuries on the person of Ranchhodbhai were examined by Dr. Trivedi (P. W. 3) exh. 11. The injuries found are as under:one incised cut wound on the right side of the head 6 cmt. above the eye and wound was 1. 1/2 cmt. deep. There was a fracture at that place. Another injury was on the waist. It was 2 cmt. x 1/2 cmt x 1/2 cmt. Trivedi (P. W. 3) exh. 11. The injuries found are as under:one incised cut wound on the right side of the head 6 cmt. above the eye and wound was 1. 1/2 cmt. deep. There was a fracture at that place. Another injury was on the waist. It was 2 cmt. x 1/2 cmt x 1/2 cmt. This injury was by hard and blunt substance. At Baroda also Ranchhodbhai was examined on 4-7-1979 and the incised injury was found. Post-mortem examination revealed two injuries and they were as under: (1) Oblique stitched wound on right forehead of 2 length above the middle eyebrow to the mid line. (2) Abrasion 1 by 1/4 on the right posterior surface iliac space contusion 4 by 4. On internal examination it was found as under: (1) Communated depressed fracture of Rt. side frontal bone of 3 x 3 around from the base into multiple pieces also one fracture lobe passing to the Rt. parietal bone correspond to external injury No. 1. (2) Fracture of Rt. oblique plate fracture muscle bones. ( 20 ) THE cause of death is head injury fracture skull bones intracranial hemorrhage and laceration of brain. According to the medical opinion external injury No. 1 with corresponding internal injury No. 2 was sufficient in the ordinary course of nature to cause death. Now that therefore the blows described in exh. 26 and the blows described by the eye witnesses practically tallied with the medical evidence and therefore the medical evidence also corroborates the dying declaration and the version given by the eye witnesses. All the above evidence is brushed aside. The learned Sessions Judge came to the conclusion that exh. 26 cannot be depended upon on the ground that in that statement it is not stated that other persons were present and on that count the learned Sessions Judge also did not believe the eye witnesses. It is curious to note that the Public Prosecutor who conducted this case was not at all vigilant and it is surprising to note that he conceded that even if statement exh. 26 was found to be reliable the conviction cannot be based on that sole statement. With that concession the learned Sessions Judge observed that if there was a doubt in regard to the truthfulness of exh. 26 was found to be reliable the conviction cannot be based on that sole statement. With that concession the learned Sessions Judge observed that if there was a doubt in regard to the truthfulness of exh. 26 there was necessity for unimpeachable and reliable evidence in corroboration of that statement and according to the learned Sessions Judge such evidence in that case was not available. It is more than clear that the law in regard to dying declaration was misunderstood by the Public Prosecutor and he did not put the case properly in the court. The learned Sessions Judge also perhaps was led away by the arguments of the Public Prosecutor and he did not bother to look into law and properly appreciate the evidence of the eye witnesses who were on the face of it reliable trust-worthy and nothing in the cross-examination could be brought out to impeach any statement in regard to any of those witnesses. . ( 21 ) THE next question that arises is what offence if any is committed by the accused-persons. The accused are charged for the offence punishable under sec 302 read with sec. 34 of the Indian penal Code. The common intention as it appears from the evidence was to commit murder of Ambalal. That is suggested by one witness. While the other witnesses suggested that there was common intention to belt Ambalal. Bhupendra exh. 8 stated that the accused were stating that they wanted to kill Ambalal while Ambalal himself in his evidence at exh. 10 stated that the accused were stating that they wanted to beat Ranchhodbhai. Now therefore it would be difficult to hold that there was common intention to commit murder of Ranchhodbhai. Even if one were to come to the conclusion it is sufficient to say that in furtherance of that common intention nothing was done except that they were going perhaps to attack Ambalal and Ranchhod intervened. There was no intention to commit murder of Ranchhod. The intervention of Ranchhod was sudden. Therefore there was no common intention even to beat Ranchhod. Sudden incident by which Ranchhod intervened to prevent the three accused from betting Ambalal enraged each of the accused and each one of them used the weapon in his hand. The result would be that each accused would be responsible for the act that he did. Therefore there was no common intention even to beat Ranchhod. Sudden incident by which Ranchhod intervened to prevent the three accused from betting Ambalal enraged each of the accused and each one of them used the weapon in his hand. The result would be that each accused would be responsible for the act that he did. The medical evidence disclosed that there was only one contused wound which was possible by hard and blunt substance. The evidence disclosed that atleast 2 to 3 blows were given by accused nos. 1 and 2. Such a situation is not supported by the medical evidence. When there is only one blow it is very difficult to come to the conclusion as to whether it was accused no. 1 or accused no. 2 who gave that blow. It is clear that accused nos. 1 and 2 did take part in the attack. But as the evidence is conflicting because there is only one blow and it is not possible to find out as to whether it was the blow given by accused no. 1 or accused no. 2 they get benefit of reasonable doubt. Under these circumstances the order of acquittal so far as accused nos. 1 and 2 are concerned is required to be confirmed. Their bail bonds are cancelled. ( 22 ) COMING to the case of accused no 3 the evidence is that a blow with a pick axe was given. That blow according to the medical opinion was sufficient in the ordinary course of nature to cause death. The discrepancy in the evidence is that one witness says that the blow was given with pick axe while there is other evidence on record which says that the pick axe was thrown at Ranchhodbhai. That therefore there is no doubt that the blow was given by pick axe whether it was a direct blow or it was thrown one cannot say and when there is quarrel in the sense that Ranchhod wanted to prevent even by persuation not to proceed to beat Ambalal and the pick axe was thrown the case would not come under sec. 300 clause thirdly of the Indian Penal Code which reads as under :-300 Except in the cases hereinafter excepted culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or xxxx xxxx xxxx xxxx thirdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. ( 23 ) NOW in this case when the pick axe was thrown the intention was to cause bodily injury. That bodily injury is found to be sufficient in the ordinary course of nature to cause death. The only missing thing is as to whether bodily injury which is found was intended to be inflicted. It that bodily injury was not intended to be inflicted the case would not fall under sec. 300 clause thirdly. As the pick axe we thrown one cannot say that the bodily injury which is ultimately found on Ranchhod was the bodily injury which was intended to be inflicted though that injury is found to be sufficient in the ordinary course of nature to cause death. . As a result the case would fall under sec. 304 Part I of the Indian Penal Code. This View is taken in the case of HARJINDER SINGH V. DELHI ADMINISTRATION REPORTED IN A. I. R. 1968 SUPREME COURT AT PAGE 867. The Supreme Court held as under :intention of accused to inflict the particular injury on the particular place not proved. Held sec. 300 cl. Thirdly could not apply. Held further on facts that it was quite legitimate to hold that the accused struck the deceased with the knife with the intention to cause an injury likely to cause death and that therefore the offence fell under sec. 304 Part 1. ( 24 ) THE Supreme Court in the said case followed the case reported in A. I. R. 1958 Supreme Court at page 465 wherein it was observed as under :for the application of this clause it must be first established that an injury is caused next it must be established objectively what the nature of that injury in the ordinary course of nature is if the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. It this is also held against the offender the offence of murder is satisfied. ( 25 ) NOW that therefore in this case it is not established that this was the very injury which was intended to be given. Under these circumstances we have to come to the conclusion that accused no. 3 is guilty for the offence punishable under sec. 304 Part I of the Indian Penal Code ( 26 ) IN the result the appeal filed by the State is partly allowed. The order of acquittal so far as accused nos. 1 and 2 are concerned is confirmed. The bail bounds of accused nos. 1 and 2 shall stand cancelled. ( 27 ) CONSIDERING the poverty and young age and also the circumstances appearing in this particular case we feel that the ends of justice will be met if accused no. 3 is sentenced to suffer rigorous imprisonment for six ears. Under the circumstances it is ordered that accused no. 3 is sentenced to suffer R. 1. for a period of six years under sec. 304 Part I of the Indian Penal Code. Order accordingly. .