JUDGMENT 1. - The sole appellant has preferred this appeal against the judgment and order dated October 20, 1994 passed by the learned Special Judge, SC/ST Prevention of Atrocities Cases, Jhalawar, in Sessions Case No. 161/94 (Old case No. 163/93) whereby he has been convicted under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/7. In default of payment of fine, he was awarded further six months rigorous imprisonment. 2. The appellant was put on trial under Section 302 IPC and under Section 3(3)(5) of the Scheduled Cassete/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `the Act of 1989') for causing murder of Kuldeep at about 9.15 RM. on April 8, 1993 in Mohalla-Baseda, Jhalawar. The report of the incident was made without any loss of time at 10.10 p.m. in the same night at Police Station, Jalawar by PW-1 Ram Swaroop, the father of the deceased, who was also an eye- witness of the occurrence. The prosecution case as unfolded in first information report (for short `FIR') is that the appellant had previous enmity with the deceased Kuldeep arid while he was returning home from the market at about 9.15 p.m., and passing in front of the house of the appellant, he was assaulted by the appellant and his younger brother Mohd. Irshad, who inflicted successive knife blows on his person. It was alleged that on hearing the cries, the informants-Ram Swaroop, Brij Mohan and one Laxmi Narain, rushed to the place of occurrence and saw the assailants inflicting knife blows to Kuldeep, who ran away seeing the witnesses. 3. Initially, the case was registered under Section 307 and 34 IPC as injured Kuldeep was alive at that, but after his death offence under Section 302 IPC was also added. After registeration of the case, investigation commenced. The Investigating Officer, PW-8-Mavendra Singh prepared inquest report (Ex.R 2) of the deceased Kuldeep. The site of incident was also inspected by him and site-plan Ex. 4 was prepared. The blood-smeared sand and control sand were obtained from the place of occurrence. The accused-appellant was arrested and on his information a knife was recovered. 4. The autospy on the dead body was conducted by PW- 6-Dr. Ramesh Chand Dube. The site of incident was also inspected by him and site-plan Ex. 4 was prepared. The blood-smeared sand and control sand were obtained from the place of occurrence. The accused-appellant was arrested and on his information a knife was recovered. 4. The autospy on the dead body was conducted by PW- 6-Dr. Ramesh Chand Dube. He found the following injuries on the person of the deceased- (1) Transverse incised wound (clear-cut) one-forth and half inch Co cavity deep down wards & medially over 9th left inter cortal space over anteriorly auxiliary line (tail of would or outeside). (2) Transverse incised would one inch x half inch cavity deep over on & a half inch Lateral to umblicus over left side of Abdomen (tail of wound on outerside). (3) Oblique incised would one inch x half inch x cavity deep two inch above the left ihic crest over lateral aspect of abdomen. (4) Elcancent vehicle incised wound one inch x half inch x half inch, one inch below the left elbow joint on anterior aspect. (5) Transverse clean-cut incised wound one inch x half inch x half inch over mid of left arm on anterior aspect. (6) Clean-cut oblique incised wound one fourth inch x half inch x half inch over mid of left tasermine on anterior aspect. (7) Oblique clean-cut incised wound one inch x half inch x half inch just blow the Rt. elbow joint. All the injuries were opined to be ante-mortem. The doctor also found the peritorium injured and the spleen ruputured. He opined that injuries No. 1, 2 and 3 sustained by the deceased were sufficient in the ordinary course of nature to cause death. 5. After completion of investigation, charge-sheet was filed against the appellant in the Court of Munsif & Judicial Magistrate, Jhalawar. The co-accused Irshad was below 16 years of age at the time of the incident, as such, his case was forwarded to the concerned Juvenile Court, Kota. 6. The learned trial court framed charges undet Section 302 IPC and under Section 3(2)(5) of the Act of 1989, against the appellant, during trial, nine witnesses were examined by the prosecution and two witnesses namely-Satyanarain and Madan Lal were examined in defence. Out of nine prosecution witnesses, PW-1 am Swaroop, PW-2 Brij Mohan and PW-3 Laxmi Narain were examined as eye-witnesses of the incident. Out of nine prosecution witnesses, PW-1 am Swaroop, PW-2 Brij Mohan and PW-3 Laxmi Narain were examined as eye-witnesses of the incident. However, Laxmi Narain (PW-3) did not support the prosecution case and he was declared hostile. The trial court, placing reliance on the testimony of eye-witnesses Ram Swaroop and Brij Mohan and all other facts and circumstances convicted and sentenced the appellant as stated aforesaid. 7. Mr. Gupta, learned counsel appearing for the appellant, made two fold submission. The first submission is that there was no charge under Section 34 IPC and there is no evidence to show that the appellant was the author of fatal injury sustained by the deceased and as such his conviction under Section 302 IPC simplicition, is not sustainable. The second contention, which was seriously agitated is that the appellant had no intention to commit murder of the deceased - Kuldeep and in any case, it cannot be said that the appellant shared with common intention to commit murder of the deceased. 8. So far first contention is concerned, it is not disputed before us that the trial in a case is not vitiated if there was some irregularity in the charge unless some prejudice is shown to the accused. If no conviction is recorded by the trial court with the aid of Section 34 IPC, this defect can be corrected by the appellate court even in the appeal preferred by the accused. This legal position cannot be disputed. In the instant case nothing has been shown or argued by the learned counsel for the appellant that the case of the appellant has been prejudiced by not framing the charge with the aid of Section 34 IPC. We, therefore, have no hesitation in rejecting first contention.For second contention, Mr. Gupta contended that there was no serious previous enmity and from facts of the case no inference can be drawn that the appellant intended to commit murder of the deceased. It was also contended that the appellant was 19 years old or so, and there might be some quarrel between the boys of the same age group but intention of appellant by inflicting knife blows cannot be inferred to the extent of murder. We have examined this aspect minutely in the facts and circumstances of the case. It was also contended that the appellant was 19 years old or so, and there might be some quarrel between the boys of the same age group but intention of appellant by inflicting knife blows cannot be inferred to the extent of murder. We have examined this aspect minutely in the facts and circumstances of the case. It cannot be disputed that the appellant had played active role in inflicting successive knife blows to the deceased. The weapon of assault was a knife which is a formidable one. It also appears that there was previous enmity and some altercation had taken place between the deceased and younger brother of the appellant in the morning of the day of incident. The deceased was un-armed while he was returning to his house and he was attacked by the appellant and his younger brother. Out of seven injuries, three injuries were on vital parts of the body and the doctor has opined that injuries No. 1, 2 an 3 were sufficient in the ordinary course of nature to cause death. Nothing has been brought on record in cross-examination of the doctor to dis-credit his testimony. Learned counsel for the appellant also could not point out any infirmity in the evidence of the eye-witness-Ram Swaroop and Brij Mohan, which has been relied upon by the trial Judge. It cannot be said that the injuries caused by the appellant and his younger brother to the deceased-Kuldeep, were either accidental or unintentional or they had intended to cause some other kind of injury. After giving our careful consideration, we are satisfied that the case is squarely covered by clause `thirdly' of Section 300 IPC. 9. In visra Singh v. State of Punjab, ( AIR 1958 SC 465 ) the Apex Court of the country has considered clause of section 300 IPC and it was laid down as under- "12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 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. 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 forthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to 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 S. 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. 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." 10. We are satisfied from the materials on record that the appellant was an active participant in assaulting the deceased - Kuldeep and he shared with the common intention to commit his murder. There is no evidence that the appellant caused particular injuries to the deceased as the evidence is that both the accused inflicted successive knife blows to the deceased. We are satisfied from the materials on record that the appellant was an active participant in assaulting the deceased - Kuldeep and he shared with the common intention to commit his murder. There is no evidence that the appellant caused particular injuries to the deceased as the evidence is that both the accused inflicted successive knife blows to the deceased. We agree with the view taken by the learned trial court with slight modification that conviction of the appellant be made under Section 302 IPC with the aid of Section 34 IPC.Consequently, we do not find any merit in this appeal and it is, hereby dismissed with modification that conviction of the appellant is made under Section 302 IPC read with Section 34 IPC. *******