JUDGMENT - S.N. KHATRI, J.:---The two respondents were tried before the learned Additional Sessions Judge, Greater Bombay, Shri T.R. Desai, on charges as under sections 392/34, 397 and 302/34 I.P.C. on the allegation that on 11th February, 1975 in the Lalbaug Market locality, Dr. Babasaheb Ambedkar Road, Bombay, they, in furtherance of their common intention committed robbery of cash worth Rs. 15 belonging to one Daji Baloo Gharge and also committed his murder. The learned Judge has convicted both respondents under section 304/34, Part II, and sentenced the first of 7 years' R.I. and the second to 2 years' R.I. The first respondent was further convicted under section 392/397 I.P.C. and sentenced to R.I. for 7 years and a fine of Rs. 50/- while the second respondent was convicted under section 392/34 and sentenced to R.I., for 3 years and a fine of Rs. 50/-. Substantive sentences were directed to run concurrently. By implication both respondents stand acquitted of the capital charge or murder under section. 302. The State has come up in appeal against this acquittal. 2. Neither of the respondents has challenged the convictions and/or sentences recorded against them by the lower Court. Indeed they have already served out their sentences. The learned Counsel of both sides agree that the only question that arises in this appeal is whether the lower Court should have convicted both or either of the respondents under section 302/34 I.P.C. We shall, therefore, restrict our discussion to this particular aspect only, and it is not necessary to refer to all the details in extenso. 3. The material facts as found by the lower Court and not disputed before us are these: The two respondents first accosted eye-witnesses Nathuram Chandrakant Ubhare P.W. 4 and Vinod Bhagwanji Vakharia P.W. 5, who were sitting on the foot steps of a hotel called "Shri Krishna Hindu Hotel" around mid-night of 10th/11th February, 1975. The first respondents was at that time armed with a Rampuri knife. They first tried to relieve the two eye-witnesses of their cash, but it turned out that Vinod P.W. 5 was known to them. As such the respondents did not bother them. As the two respondents moved away, they saw the deceased Daji Baloo Gharge and accosted him. The first respondents was at that time armed with a Rampuri knife. They first tried to relieve the two eye-witnesses of their cash, but it turned out that Vinod P.W. 5 was known to them. As such the respondents did not bother them. As the two respondents moved away, they saw the deceased Daji Baloo Gharge and accosted him. The material part of the evidence of Nathuram P.W. 4 which is accepted by the lower Court in its entirety runs : "Accused No. 2 (respondent No. 2) took out something from the bush shirt pocket of that person (deceased). The person tried to wave his hands. The accused No. 2 caught hold of his bush-shirt. The accused No. 1 (respondent No. 1) thereafter stabbed that person on his stomach with the knife. Thereafter that man (deceased) started shouting and running away. When he started running away, the accused No. 1 again stabbed that person (deceased) on his back." The lower courts' findings are not disputed, that the first respondent was carrying a naked Rampuri knife in his hand and that after the second respondent had relied the deceased of Rs. 15/-, he cause hold of the deceased by his neck, and thereafter the first respondent gave knife blow on the abdomen of the deceased. The deceased started shouting and ran away. Thereafter the first respondent chased him and again stabbed him and gave him a second knife blow on the back. Here we note that the only part assigned to the second respondent is that he relieved the deceased of the cash and thereafter held the latter by his neck when he tried to wave his hands. No further overt acts are attributed to him. 4. It is an admitted position that both respondents were apprehended on the spot itself by Constable Sawant P.W. 7 with the help of the two eye-witnesses. The deceased was rushed to the K.E.M. Hospital where the breathed his last on the following morning around 6.45. Before that the deceased was operated upon around 1.15 a.m. Dr. Dewoolkar P.W. 19 had assisted Dr. Rajdeo, who actually conducted the operation. Dr. Dewoolkar affirms that the deceased had two external incised wounds as follows : 1) Incised wound infer umbilical region about 2' x 1/2" x 7 deep. Small intestines protruding out. 2 perforations of 1' in size seen over small intestines. Dewoolkar P.W. 19 had assisted Dr. Rajdeo, who actually conducted the operation. Dr. Dewoolkar affirms that the deceased had two external incised wounds as follows : 1) Incised wound infer umbilical region about 2' x 1/2" x 7 deep. Small intestines protruding out. 2 perforations of 1' in size seen over small intestines. 2) Incised wound over the inter-scapular region on the left side of midline at T-2---T-3 size 1" x 1/2 x 7 deep. Some air bubblest coming out through the wound. 5. On opening the abdominal cavity, they found three litres of dark blood in it. There were also five multiple perforations over the small intestines. The patient's condition continued to deteriorate and ultimately he developed cardiac arrest and breathed his last on the next early morning. Dr. (Mrs.) Mittal P.W. 22 carried out the autopsy over the death body on 11th February, 1975 around 9.30 a.m. Her evidence shows that there were two incised external wounds as mentioned above. Obviously the second injury which necessitated the operation in the umbilical region was in sutured state, at the time of the autopsy. On internal examination, she detected five perforations on the small intestines. The left lung was found shrunken and there was adhesion of the right lung with the pleura. Both doctors have given their categorical opinion that the two external injuries were fatal, even taken singly. 6. The learned trial Judge has substantially accepted the evidence of the two doctors. He, however, thought it unsafe to accept the opinion of the two doctors that the injuries were necessarily fatal, because Dr. Rajdeo who had actually performed the operation, was not examined. The learned Judge further held in substance that the prosecution had failed to prove that the first respondent had caused both or either of the injuries with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death. At the highest, the learned Judge went on to hold, the prosecution had established that this respondent had knowledge that his act of inflicting that two injuries was likely to cause death. On these findings he held that the case did not fall under section 302, but only under section 304 (Para 11) I.P.C. 7. We are conscious of our limitations in disposal of appeals against acquittal. On these findings he held that the case did not fall under section 302, but only under section 304 (Para 11) I.P.C. 7. We are conscious of our limitations in disposal of appeals against acquittal. However, on consideration of the relevant evidence and after hearing the learned Counsel of both sides, we are satisfied that the present is a case where the learned Judge's findings that the case does not attract section 302 virtually borders on perversity. We proceed to give our reasons for this view. 8. We have already described the nature and extent of the injuries along with the internal damage cause by them. The small intestine were perforated at as many as 5 places. The internal hemorrhage was so extensive that the three litres of blood was found in the abdominal cavity when the deceased was on the operation table. The injury on the scepular region had caused substantial damage to the lung. In fact air bubbles were coming out of the injury. Even in absence of an express opinion of a doctor in so many words, all this date was more than enough to compel the Court to record a finding that the two external wounds were fatal not only cumulatively, but also individually. 9. We are not impressed by the submission of Shri Rajadhyaksha for the respondents that the evidence of Dr. Dewoolkar does not deserve credence because of the omission of the prosecution to examine Dr. Rajdeo who had conducted the operation. Nor are we impressed by the reasons given by the learned trial Judge that or (Mrs.) Mittal's evidence is also unsafe, because she had relied on some medical papers relating to the operation and that her post mortem notes prepared on the basis of rough notes taken by her students while the autopsy was on. This doctor had stated that while she was doing the autopsy. She was dictating her observations to her students who were taking them down. Immediately after autopsy was over, the doctor prepared her own notes after verifying the correctness of the students' notes. Now simply because the rough notes, having been destroyed, are not available, it cannot be said that Dr. (Mrs.) Mittal's findings are wrong. She was dictating her observations to her students who were taking them down. Immediately after autopsy was over, the doctor prepared her own notes after verifying the correctness of the students' notes. Now simply because the rough notes, having been destroyed, are not available, it cannot be said that Dr. (Mrs.) Mittal's findings are wrong. The learned trial Judge fell into a grave error in holding that the prosecution had failed to establish that the two injuries were fatal individually, or that the cumulative effect was necessarily fatal. 10. Shri Rajadhyaksha next draws our attention to the evidence of Dr. Dewoolkar P.W. 19 that the treatment of the deceased was interrupted for some time when the Police Officer turned up to enquire about the condition of the deceased. He also points out an observation in the post mortem notes that the liver of the deceased was fatty and enlarged. Dr. Dewoolkar has further stated in his deposition that the second injury which was on the scapular region was not probed by him and that he had put vaseline guage dressing over it. The learned Counsel's suggestion is that had proper and effective medical treatment been given to the deceased, he would not have expired. 11. We do not find any material whatever on record to suggest that there was any negligence on the part of the doctors that would support the learned Counsel's submission. Even otherwise in view of the second explanation to section 299 I.P.C. the first respondent shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment, the death might have been prevented. Simply because liver was found fatty and enlarged, we cannot in absence of any other material jump to the conclusion that this was the cause of death. The Police Officer's intrusion for a short while would also not by itself seal the fate of the unfortunate victim. Two doctors have given their considered opinion on the real cause of death and there is absolutely no reason to doubt the same. We thus hold that the two external injuries which were undisputably caused by the first respondent, were fatal individually and that their cumulative effect was necessarily fatal. 12. Two doctors have given their considered opinion on the real cause of death and there is absolutely no reason to doubt the same. We thus hold that the two external injuries which were undisputably caused by the first respondent, were fatal individually and that their cumulative effect was necessarily fatal. 12. As regards the question whether the act of the first respondent amounts to murder proper, or culpable homicide simplicitor, we feel that the facts, duly proved squarely attract the 'secondly': and 'thirdly' of section 300. The law governing cases falling under 'thirdly' to section 300, has been correctly recapitulated by the lower Court on the basis of Virasingh's case, A.I.R. 1958 S.C. 465 (Virasingh v. State of Punjab)1. We can do no better than reproduce paras 12 and 13 of the decision verbatim: "(12) To put it shortly, 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 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. (13) 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 matter that there was no intention to cause death. It does not matter 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 (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. It does not even matter 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. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional." (Emphasis Supplied) 13. Although the learned Judge has stated the law correctly, we find that while actually applying it, to the facts of the case he has misdirected himself on a vital aspect. At more than a couple of places, he observes that the first respondents intention was not to inflict an injury sufficient in the ordinary course of nature to cause death. What the law required of the prosecution was to establish that injuries Nos. 1 and 2 found on the body of the deceased, were the injuries intended to be inflicted by the first respondent. On this aspect, the evidence clearly shows that neither of these injuries came to be caused accidentally or unintentionally. The evidence of the two eye-witnesses shows unmistakably that while the second respondent kept the deceased at bay by catching him by the neck, the first respondent dealt a knife's blow on the abdomen (which is injury No. 1) and after the deceased started running, the first respondent chased him and dealt a second knife blow in the back-in the inter scapular region (second injury). No suggestion whatever is made either during the cross-examination of either witness of from the Bar that the knife had in fact landed at the place unintended by the first respondent. We are thus fully satisfied that the act of the first respondent falls under section 300 "thirdly". 14. No suggestion whatever is made either during the cross-examination of either witness of from the Bar that the knife had in fact landed at the place unintended by the first respondent. We are thus fully satisfied that the act of the first respondent falls under section 300 "thirdly". 14. Considering the nature of the Rampuri Knife with a blade of more than 6 inches, and the damage inflicted on the deceased, it cannot be doubted for a moment that the first respondent knew the injuries to be likely to cause the death of the deceased. Indeed when the deceased had taken to heels after receiving the first injury, it was not at all necessary for the first respondent to chase him and deal one more knife blow after the main object of committing robbery had already been accomplished. The intention was obviously to cause death. The case also squarely falls even under section 300 secondly' I.P.C. The offence committed by the first respondent would thus amount to murder proper. 15. The next question is whether the second respondent should also be deemed to have committed the offence of murder by operation of section 34 I.P.C. Smt. Rao for the prosecution submits that the first respondent was openly carrying a naked Rampuri knife for quire some time before the actual incident and the second respondent should be presumed to knew that the first respondent might even kill some person while committing robbery. We have given our anxious thought to her submission. We cannot persuade ourselves to accept it. As the law is, the inference of common intention should never be reached, unless it is necessarily an inference deducable under the circumstances of the case. In the present case, the respondents did not even previously know the deceased. Undeniably the motive of the respondents was only to commit robbery. The deceased had already been relieved of his cash before the respondent No. 2 caught him by the neck and the first respondent proceeded to deal the knife blow. Simply because the first respondent was carrying a naked knife in his hand to the knowledge of the second respondent, we cannot hastily jump to the conclusion that both shared a common intention to kill the victim of the robbery. Simply because the first respondent was carrying a naked knife in his hand to the knowledge of the second respondent, we cannot hastily jump to the conclusion that both shared a common intention to kill the victim of the robbery. As the second respondent has not come up in appeal against his conviction under section 304 (Part II) I.P.C., we are not inclined to disturb it. However, the evidence on record is not sufficient to sustain the finding that the second respondent shared the common intention to kill the victim of the robbery. He did not take any part whatever in actual assault on the deceased. When the latter took to heels, the second respondent did not even chase him. In the circumstances, it will not be safe to hold that the second respondent had shared the common intention with the first respondent to kill the deceased. 16. In passing, Shri Rajadhyaksha drew our attention to Full Bench decision of the Patna High Court reported in A.I.R. 1986 Patna 324 (Madheswardhari Singh v. State of Bihar)2. This decision lays down that the continuation of the investigation and trial beyond a period of 7 years would bring in the weightiest presumption that the fundamental right under Article 21 of the Constitution to a speedy public trial, stands violated. Such delay would per se be indicative of prejudice and burden would automatically shift heavily on to the shoulders of the State to show that such grave delay was either entirely the handiwork of the accused himself or was occasioned by such special and exceptional circumstances so as to merit condonation thereof. 17. It is not necessary for us in the present case to express our considered opinion on the merits of the ratio of the Patna case. Suffice it to say that in the case before us, we are satisfied that the prosecution are not to blame for the inordinate delay in disposal of this appeal. Here the offence committed in February 1976 the trial Court rendered its judgment in September 1977, and the State appeal has been pending in this Court since 1977 for almost 10 years. After inspecting the record, we find that although the State had taken steps to get the respondents served, they could not be served till 1984, because their current address were not readily available. After inspecting the record, we find that although the State had taken steps to get the respondents served, they could not be served till 1984, because their current address were not readily available. The main reason, if not the sole, why this appeal could not be heard earlier is that the Court had no time to hear it. In the circumstances, we do not think that the respondents can press in aid Patna Full Bench decision. 18. The result is that this appeal succeeds partly so far as the first respondent is concerned. The appeal is partly allowed. The conviction of respondent No. 1 under section 304 Part II is raised to that under section 302 I.P.C. He is sentenced to life imprisonment. Arrest warrant shall issue against him, so that he may serve the balance of the sentence. The appeal is dismissed against the second respondent. Order accordingly. ------