JUDGMENT 1. - This is an appeal by the accused appellants against the judgment of the learned Sessions Judge, Bikaner dated 14-8-1981 whereby he convicted the accused Sohania under Section 302 and accused Pappu under Section 302 read with Section 34, I.P.C. and sentenced them to life imprisonment. 2. The facts giving rise to this case are that accused Sohania and Pappu are real brothers. They are residents of Rampura Basti, Bikaner. Deceased Ali Asgar owed Rs. 200/- from the accused persons. On 5-5-1980 in the evening Ali Asgar met accused Pappu, who is a child of 14-15 years of age. Ali Asgar demanded Rs. 200/- from him. On that there was some discussion between them and Ali Asgar gave beating to accused Pappu. Thereafter, Ali Asgar went to the house of his friend Chain Singh, PW 1. He sat at his house for some time and thereafter, they started from the house of Chain Singh. Chain Singh also accompanied Ali Asgar to some short distance. When they reached near the shop of Bhinya Ram, Ali Asgar stayed for some time to purchase cigarette. At about 7.30 p.m. when Ali Asgar was going towards the shop, both the accused persons came running from the street Accused Sohania protested to Ali Asgar that he has beaten his brother so he would teach him a lesson. Thereupon, accused Pappu caught hold of both the hands of deceased Ali Asgar from behind and accused Sohania who was armed with Gupti (a sharp edged weapon) pierced that Gupti in the chest of the deceased Ali Asgar. Chain Singh immediately ran to the rescue of Ali Asgar. But meanwhile both the accused persons ran away back to the street, from where they came. Meanwhile Ratan Lal and Mohan Singh reached there. Chain Singh brought a Tonga and they immediately went to the hospital. On the way, they informed about the incident to Wali Mohammed father of deceased, Ali Asgar. He also accompanied the victim in the Tonga to the Hospital. On the way, Ali Asgar informed about the incident to his father. After one and half hour of their reaching to the hospital, Ali Asgar died. 3. A report of this incident was filed at the Police Station on 5-5-1980 at about 10 p.m. by Wali Mohammed PW 3 father of the deceased. On the way, Ali Asgar informed about the incident to his father. After one and half hour of their reaching to the hospital, Ali Asgar died. 3. A report of this incident was filed at the Police Station on 5-5-1980 at about 10 p.m. by Wali Mohammed PW 3 father of the deceased. On this information, the police registered a case under Section 302, I.P.C. against both the accused persons and took up the investigation. After the close of the necessary investigation, the accused Sohania and Pappu were sent for trial under Section 302, I.P.C. and Section 302 read with Section 34, I.P.C. respectively, before the learned Sessions Judge, Bikaner. 4. The prosecution examined as many as 9 witnesses and got a large number of documents exhibited. 5. Learned Sessions Judge after due trial found the accused Sohania guilty under Section 302, I.P.C. and accused Pappu under Section 302 read with Section 34, I.P.C. and sentenced them to life imprisonment. 6. Learned trial Judge found the testimony of PW 1 Chain Singh as reliable and also found the testimony of PW 3 Wali Mohammed and Ratan Lal before whom the deceased while going to the hospital in Tonga informed about the incident and the role played by the accused Sohania and Pappu as reliable. 7. Mr. Doongar Singh, learned Counsel for the appellants took us to the statements of the prosecution witnesses and necessary record. Learned Counsel could not challenge the testimony of PW 1 Chain Singh and he also could not shatter the testimony of PW 3 Wall Mohammed and Ratan Lal. As narrated above, PW 1 Chain Singh, who was accompanying the deceased the whole incident and he is the person who took the deceased in a Tonga along with Ratan Lal and the father of the deceased Wali Mohammed to the hospital at Bikaner. The testimony of PW 1 Chain Singh appears to be straight forward and trust worthy. He has deposed that on account of earlier incident where in deceased belaboured the accused Pappu, Pappu informed this to his brother and both of them came running armed with Gupti, accused Pappu caught hold of both the hands of deceased from the back and accused Sohania attacked the deceased with Gupti. Thereafter, both of them ran away from the scene of occurrence. Thereafter, both of them ran away from the scene of occurrence. This testimony is supported by PW 3 Wali Mohammed to whom the whole incident was narrated by the victim Ali Asgar and likewise PW 5 Ratan Lal. Thus, we are convinced that the testimony of there witnesses is reliable and they successfully connected the accused with the commission of the offence. 8. Mr. Doongar Singh laid much stress on the question that in the present situation the accused Sohania cannot be held guilty under Section 302, I.P.C. and likewise accused Pappu under Section 302 read with Section 34, I.P.C. Learned Counsel submitted that the accused had no intention to cause death and it is by sheer chance that the assault on the body of the deceased hit the vital part of the body and as a result of which deceased died. Learned Counsel submits that this is only a case of stray incident where the accused had no intention to cause death or knowledge, that such bodily injury is likely to cause death. Like wise, learned Counsel submitted that the accused Pappu can not be imputed with the knowledge that accused Sohania has intention to cause such bodily injury or knowledge that such bodily injury is likely to cause death. Therefore, accused Sohania cannot be convicted under Section 302, I.P.C. but at best he can be imputed with the knowledge that such act might cause the death and the offence so far he is concerned cannot travel beyond Section 304, Part-II. I.P.C. In this connection, learned Counsel has invited our attention to Kulwant Rai v. State of Punjab ( AIR 1982 Sc 126 ) ; Jawahar Lal and Anr. v. State of Punjab 1983 SCC (Cr.) 805 ; Gokul Parasha Ram Patil v. State of Maharashtra AIR 1981 SC 144 ; Jagtar Singh vs. State of Punjab (1983 SCC (Cr.) 459) ; Hari Ram v. State of Haryana 1983 SCC (Cr.) 159 . Learned Counsel has also invited our attention to a Division Bench decision of this Court in Shaitan Singh v. State of Rajasthan (D.B. Criminal Appeal No. 320/ 1981, decided on 18-12-1986) 9. We have given our utmost consideration to the cases cited by the learned Counsel for the appellants. Learned Counsel has also invited our attention to a Division Bench decision of this Court in Shaitan Singh v. State of Rajasthan (D.B. Criminal Appeal No. 320/ 1981, decided on 18-12-1986) 9. We have given our utmost consideration to the cases cited by the learned Counsel for the appellants. Before we deal with the cases cited by the learned Counsel it will be relevant to mention here the authoritative pronouncement of their Lordships of the Supreme Court in Virsasingh v. State of Punjab AIR 1958 SC 465 where in the scape of Section 300. thirdly has been dealt with exhaustively. It has been held as under: "The prosecution must prove the following facts before it can bring a case under Section 300 "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 Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution, (and of course, the burden is on the prosecution, throughout), the offence is murder under Section 300 thirdly". It does not matte; that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death." In Kulwant Rai's case AIR 1982 SC 126 there was no prior enmity or premediation. On account of a short quarrel this assault preceded and only one dagger blow was given in the epigastrium area. Learned Sessions Judge convicted the accused under Section 302, I.P.C. and sentenced him to life imprisonment. The conviction was upheld by the High Court and the matter ultimately went to the Supreme Court. In this case, it was found that there was lack of premeditation or prior enmity and lastly it was a case of hit and run. Therefore, in these circumstances it was found that Section 300 "thirdly" will not be attracted and accordingly the conviction of the appellant from under Section 302 was converted to Section 304, Part II and sentenced him to five years rigorous imprisonment. But that is not the case here. Here the accentuated circumstances is that both the accused came armed with Gupti which is a sharp edged long weapon though it is concealed and while carrying it gives a look of a small stick. But it has a deadly potentiality and the same proved fatal in this case when this was pierced in the chest region of the deceased. The deceased received the following injuries: "Penetrating incised wound 1.5 c.m. x 0.5 c.m. x 0.5 placed obliquely in direction of 2 O'clock position on right side chest 2 c.m. above the exiphig sternum 1 c.m. lateral to Median line. Clotted blood found in & around the wound on the further exploration it was found in the space between sterno chondrial junction of 5th & 6th ribs. Clotted blood found in retrosternal tissues. Peri cardium was full of liquid blood (250 CC) & found out for 1.2 c.m. x 0.5 c.m. (through & through) anteriorly in the same plane of Ext. injury of chest. Right ventrical was found cut for 0.5 c.m. x 0 3 c.m. x 0.5 cavity deep anteriorly in the direction of external injury of chest. Extravasation of blood found in the tissues around the wound. Chambers were found empty." It is, thus, not a case of hit and run. The very fact that when the accused Pappu demonstrated to his brother about the altercation with the deceased, both the brothers i e. accused persons came armed with Gupti and one caught hold of the hands and the other pierced the Gupti in the chest of the deceased, which ultimately proved fatal. The very fact that when the accused Pappu demonstrated to his brother about the altercation with the deceased, both the brothers i e. accused persons came armed with Gupti and one caught hold of the hands and the other pierced the Gupti in the chest of the deceased, which ultimately proved fatal. This intention of the accused is squarely covered by Section 300 thirdly. From the nature of the injuries and the manner in which the deceased was assaulted on the vital part of the body proved sufficient intention of the accused that he intended to cause such bodily injury which was in the ordinary course of nature sufficient to cause death. Such facts cannot be construed to mean a stray case of hit and run. 10. In Jawahar Lal's case 1983 SCC (Cr.) 805 , a single knife blow was inflicted on chest in dim light in the night due to sequel to a trivial dispute. The accused was a young boy at the time of occurrence. In this back ground, the conviction of the accused was converted from under Section 302 I.P.C. to Section 304 Part II. 11. Likewise in Gokul Prashram Patil's case AIR 1981 SC 144 a solitary blow was given by the accused to the deceased on the clavicle a non-vital part of the body and, therefore, it was found that the case is not covered by Section 300 thirdly and conviction was converted from Section 302, I.P.C. to Section 304. Part II. 12. Similarly, in Jagtar Singh's case 1983 SCC (Cr.) 459 also a single knife blow was inflicted in chest, no premeditation or malice was found on the part of the accused, the accused was a young boy and on the spur of the moment and to some extent on deceased's provocation in a sudden and chance quarrel on a trivial issue the accused hit the deceased on chest. In these circumstances, it was found that the case does not fall in firstly or thirdly of Section 300, I.P.C. Therefore, the conviction of the accused was converted from one under Section 302 I.P.C to that of under Section 304, Part II. 13. In these circumstances, it was found that the case does not fall in firstly or thirdly of Section 300, I.P.C. Therefore, the conviction of the accused was converted from one under Section 302 I.P.C to that of under Section 304, Part II. 13. In Hari Ram's case 1983 SCC (Cr.) 159 also in the heat of the moment a Jeli blow was thrusted in the chest of the deceased with an intention to chastise and it was found that the intention to kill was missing. Therefore, the conviction of the accused was converted from Section 302, I.P.C. to Section 334, Part II 14. In Shaitan Singh's case (supra) a knife blow given by the accused was not imputed with the knowledge that such injury is likely to cause death and, therefore, the conviction of the accused under Section 302, I.P.C. was converted to Section 304, Part II. 15. But as mentioned above, in the present case the peculiar features are that before this assault the accused Pappu was belaboured by deceased and that enraged his elder brother Sohania and after lapse of some time both of them tame armed with Gupti and way-laid the deceased, one caught hold of the hands of the deceased from the back and the other assaulted the deceased with Gupti, a sharp edged weapon on the vital part of the body Thus, from these sets of circumstances it is clear that this case squarely falls in thirdly of Section 300 I.P.C. In Criminal Law facts of the case vary from case to case and the shades of the evidence always plays a very decisive factor that which case will fall in Section 300 or 304, Part-II, I.P.C. The number of cases cited by the learned Counsel for the appellants clearly show that there was a varied shades of evidence and various factors which persuaded the court to convert the offence from under Section 302, I.P.C. to Section 304, Part II. Some times a single blow on the vital part of the body on a stray incident may cause death but that alone would not attract Section 300. Some times a single blow on the vital part of the body on a stray incident may cause death but that alone would not attract Section 300. But the same blow if it is caused with some premeditation or malice could constitute the offence under Part I or III of Section 300, I.P.C. But in this case for the reasons mentioned above we are of the opinion that so far the accused Sohania is concerned he is guilty under Section 300 Thirdly, I.P.C. and he has been rightly convicted under Section 302, I.P.C. 16. The next question which arises for our consideration is whether accused Pappu can be convicted under Section 302 read with Section 34, I.P.C. or not. It is true that accused Pappu caught hold of the hands of the deceased from the back. Though he actively assisted in the commission of the crime, but same knowledge or intention cannot be imputed to accused Pappu that accused Sohania actually wanted to cause such bodily injury which will be in the ordinary course of nature sufficient to cause death. 17. In Narendra Kumar and Ors. v. The State of Rajasthan (1984 Cr. LJ (Raj) 117) , this Court has taken the view that such commission of the offence with the assistance of another accused by catching hold of the bands of the victim at the back cannot be imputed a knowledge of causing death of the victim. It was held that in such circumstances the proper course is to convict the accused under Section 304, Part II read with Section 34, I.P.C. and we accordingly convert the conviction of accused Pappu under Section 304, Part-II read with Section 34, I.P.C. The accused Pappu at the time of the trial was 14-15 years of age i.e. blow 21 years of age. Instead of sentencing him to any punishment in view of Section 360, Cr. P.C. read with Section 6 of the Probation of Offenders' Act, 1958 he is being given benefit of probation 18. In the result, the appeal of accused Sohania is dismissed and his conviction and sentence is affirmed. The appeal of accused Pappu is partly allowed and his conviction and sentence under Section 302 read with Section 34, I.P.C. is altered to that under Section 304, Part II read with Section 34, I.P.C. 19. In the result, the appeal of accused Sohania is dismissed and his conviction and sentence is affirmed. The appeal of accused Pappu is partly allowed and his conviction and sentence under Section 302 read with Section 34, I.P.C. is altered to that under Section 304, Part II read with Section 34, I.P.C. 19. The sentence awarded to him is set aside and he is on bail he need not surrender, instead of sentencing him at once to any punishment we hereby direct that he should enter into a bond in the sum of Rs. 10,000/-together with two sureties in the amount of Rs. 5,000/- each to the satisfaction of the learned Sessions Judge, Bikaner to appear and receive sentence when called upon during a period of 3 years and in the mean time to keep the peace and be of good behaviour. Accused Pappu in allowed on month's time to submit the aforesaid bonds. The appeal is accordingly disposed of.Appeal of P partly allowed. *******