J. N. BHATT, J. ( 1 ) BY this appeal under Sec. 374 Code of Criminal Procedure, 1973 (Code), the appellants have assailed the judgment and order of the learned Addl. Sessions Judge, Mehsana recorded in Sessions Case No 223 of 1991, on 21-3-1992, whereby (i) the appellant No. 1 (A-l) - Patel Rasikbhai Bhagwandas came to be convicted and sentenced for imprisonment for life under Sec. 302 I. P. C, and also to pay fine of Rs. 500. 00 and in default to undergo further imprisonment for six months for having committed murder of Mukesh Ranchhoddas, (ii) Appellant No. 2 (A-2) Patel Kapilaben Bhagwandas came to be convicted and sentenced for imprisonment for life under Sec. 302 I. P. C. and also to pay fine of Rs. 500. 00 and in default to undergo further imprisonment for six months for having committed murder of one Ramesh Gandalal, (iii) Appellant No. 3 (A-3)-Patel Gitaben bhagwandas came to be convicted and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 500. 00 and in default to undergo further imprisonment for six months for attempting to murder one Rasik Gandabhai under sec. 307 I. P. C. , (iv) all the appellants (A1 to A3) came to be convicted and sentenced for simple imprisonment for four months and to pay fine of Rs. 250. 00 and in default to undergo further simple imprisonment of one month under Sec. 135 (1) of Bombay police Act, 1951. ( 2 ) SKELETON projection of relevant and material facts, alleged, by the prosecution may, be briefly articulated, at this stage, so as to examine the merits and challenge, against the impugned judgment and order of conviction and sentence. ( 3 ) THE prosecution has, inter alia, alleged that all the three appellants-original accused Nos. I, 2 and 3 respectively (hereinafter referred to as A-l, A-2, and A-3 for short, convenience and brevity) had entertained a common intention of causing death of deceased Mukesh Ranchhoddas and Ramesh Gandalal, the brother of the complainant Rasik Gandalal who has also suffered severe injuries and in furtherance of such common intention attacked on complainant party on 13-8-1991, at about 5-00 p. m. , near the house of accused persons, in village Karajisan of Kadi Taluka, mehsana District. The accused persons gave wild abuses and thereafter A-l-Rasik bhagwandas inflicted a blow of sword on the right side portion of the chest of one mukesh Ranchhodbhai which culminated into his death. The accused No. 2- kapilaben Bhagwandas gave a knife blow on the chest portion of one Ramesh gandabhai which proved to be fatal. The A-3-Gitaben Bhagwandas gave knife blows to the complainant-Rasikbhai in an attempt to murder him. ( 4 ) UPON assessment of testimonial collection and evaluation of documentary evidence, the trial Court found the accused persons guilty and sentenced them, as stated hereinabove by holding (i) that the death of Mukesh Ranchhodbhai was a homicidal death, and accused No. I (A-1)-Patel Rasik Bhagwandas is, individually, liable for causing his murder by inflicting fatal sword blows on the chest portion of the deceased, and therefore, convicted the accused No. 1 (A-l) for imprisonment of life with a fine of Rs. 500. 00 and in default further six months rigorous imprisonment under Sec. 302 I. P. C. , (ii) that the death of Ramesh Gandabhai, brother of complainant-Rasikbhai Gandabhai was a homicidal death caused by A-2- kapilaben Bhagwandas by inflicting a severe knife blow on the chest of Ramesh which culminated into his death and convicted the A-2, individually, for offence punishable under Sec. 302 for imprisonment of lire and fine of Rs. 500. 00 and in default to undergo further six months imprisonment, (iii) that the A-3. Gita bhagwandas. had caused serious injuries in an attempt to murder by inflicting knife blows and convicted and sentenced her for 7 years rigorous imprisonment and to pay fine of Rs. 500. 00 and in default to undergo further six months simple imprisonment under Sec. 307 I. P. C. and (iv) that all the accused persons are guilty for holding weapons prohibited by Notification of the competent authority and thereby committed offence punishable under Sec. 135 (1) of Bombay Police Act, 1951 and sentenced each accused for four months simple imprisonment and each to pay fine of Rs. 250. 00 and in default to undergo one month simple imprisonment. ( 5 ) THE learned Counsel Mr. A. D. Shah has. seriously, criticised the impugned judgment and order of the learned Addl. 250. 00 and in default to undergo one month simple imprisonment. ( 5 ) THE learned Counsel Mr. A. D. Shah has. seriously, criticised the impugned judgment and order of the learned Addl. Sessions Judge in Sessions Case No. 223 of 1991 and has reiterated the submissions raised before the trial Court and some other contentions which are enumerated as under : (i) That the place of offence is sought to be shifted which creates cloud of doubt about the veracity of the prosecution case. (ii) That the clothes of A-3 Gitaben were found torn from front as well as back side and the prosecution has not been able to explain this factual situation as also the injury sustained by her. (iii) Clothes of A-3 Gita on top and bottom contained human blood (Group "a") which was of deceased Mukesh and not of Ramesh. This aspect also created material doubt about the authenticity of the prosecution story. (iv) Change in the description of incriminating weapons, popularly known as gupti and substituted description sword also casts serious doubt, and benefit of said doubt should go to the accused persons. (v) The knife allegedly used by A-3-Gita is found to have contained blood of "a" group which was the group of deceased Mukesh. Whereas, prosecution case is that the complainant-Rasik Gandabhai was inflicted knife blows by a-3-Gita and the blood group of the complainant is found to be of "ab" group which was not found on the knife allegedly used by A-3-Gita. (vi) Alternatively, there is no case for conviction under Sec. 302 I. P. C. against a-1 and A-2 as there was no evidence to show that there was premeditation. In that it was further contended that the incident flared up out of grave and sudden provocation. Therefore, in the absence of any intention and knowledge to inflict particular blow the offence would be only under Sec. 304 Part II i. P. C. ( 6 ) -LEARNED A. P. P. Mr. Rawal has fully supported the impugned judgment and order and has countenanced the submissions raised by Mr. A. D. Shah for accused in defence. He has also ultimately, contended that there is no reason to disbelieve the injured eye-witness and other two eye-witnesses supported by lodging of F. I. R. with prompted and long-drawn animosity between the parties. Rawal has fully supported the impugned judgment and order and has countenanced the submissions raised by Mr. A. D. Shah for accused in defence. He has also ultimately, contended that there is no reason to disbelieve the injured eye-witness and other two eye-witnesses supported by lodging of F. I. R. with prompted and long-drawn animosity between the parties. He has also drawn our attention to the written explanation and statement made by A-3-Gita under Sec. 313 of Cr. P. C. which is produced, at Exh. 93. He has also drawn our attention to the pending disputes between the parties of the earlier litigation. It is also submitted by him that the culpability established by prosecution against A-l and A-2. is, clearly attracting the provisions of Sec. 302 of I. P. C. and quantum of sentence to A-3-Gita is quite justified in the facts and circumstances. Both have placed reliance on host of the judicial pronouncement to which reference will be made by us at an appropriate stage later on. ( 7 ) SINCE the points raised before us and countenanced by the learned A. P. P. are inter-connected. we propose to deal with them. simultaneously, and also with a view to avoid repetition. ( 8 ) THERE is no dispute about the fact that the deceased-Mukesh Ranchhodbhai and Ramesh Gandabhai died homicidal death. The prosecution has, successfully established that both aforesaid persons died homicidal death. The trial Court has placed reliance on the evidence of injured eye-witness PW 6-Rasik Gandalal at Exh. 53 and two other witnesses PW 7-Dahyabhai Chhagandas at Exh. 54 and PW 8- bharat Babulal at Exh. 55 and the medical evidence adduced by the prosecution. ( 9 ) THE PW 6-complainant-Rasik Gandalal, at Exh. 53, has categorically stated in his evidence (i) that the A-1-Patel Rasikbhai Bhagwandas inflicted sword blow on the person of Mukesh after exchange of hot words between the deceased and a-l Patel Rasikbhai, (ii) he went near the house of the accused on hearing commotion and shouts of deceased and the accused-Rasikbhai, (iii) on the date of incident like that, 31-3-1991. at about 6. at about 6. 00 p. m. , the deceased Mukeshbhai ranchhodbhai was returning back home from his field and he was on his way to the house of accused persons happened to be en route and there was exchange of hot words which he heard, (iv) A-1-Rasikbhai Bhagwandas after abusing inflicted sword blow on the person of Ramesh which proved fatal, (v) the deceased Ramesh gandalal when tried to intervene after the infliction of sword blow by A-1 on mukesh Ranchhodbhai and at that time A-2 - Kapilaben who was armed with knife gave blow on the right chest portion of Ramesh. (vi) Thereafter, in an attempt to intervene by him he was inflicted knife blows in the left side portion of chest by a-3 -Gitaben Bhagwandas and thereafter when he tried to save injured Ramesh gandabhai who was trying to run towards the Osri portion of the house of the accused at that time A-3 Gita again inflicted a knife blow on his right wrist, (vi) thereafter he took injured-Ramesh who subsequently fell down. At that time PW 7-his uncle-Dahyabhai Chhaganbhai was present and both had taken the injured- ramesh to Kalol Civil Hospital in a jeep at about 7-30 p. m. where he was declared died, (vii) the main incident was preceded by an incident of exchange of hot words and abuses which occurred two hours prior at about 4-00 p. m. , between father of the deceased-Mukesh and A-1 Rasikbhai, (viii) It was with regard to cow belong to accused-party where injured had account of buffaloes of the A-1s father. Preceded incident was also reported by the complainant to his uncle-Dahya Chhagan. (ix) He had sustained three injuries inflicted by A-3 Gita with the knife produced at Art. 15, (x) PW 6 lodged complaint when he was undergoing treatment in Kalol hospital. (xi) Dr. Mahesh Barot from Kalol Hospital informed the Kadi Police about the incident. It is also informed that two persons have expired and one injured Rasik gandabhai had sustained injuries. On the basis of information the P. S. O. Mr. Rawal noted the entry in the Station Diary at about 20-15 p. m. . and since the offence was disclosed falling within the territorial jurisdiction of Kadi Police Station, intimation was sent to Kadi police by the P. S. O. on the basis of which the Kadi Police Station started investigation. Rawal noted the entry in the Station Diary at about 20-15 p. m. . and since the offence was disclosed falling within the territorial jurisdiction of Kadi Police Station, intimation was sent to Kadi police by the P. S. O. on the basis of which the Kadi Police Station started investigation. ( 10 ) THE evidence of the complainant-injured eye-witness PW-6-Rasik Gandabhai at Exh. 53, clearly, and categorically involve all the three accused persons. It, also becomes quite apparent that A-1-Rasik Bhagwandas inflicted sword blow on the chest portion of deceased-Mukesh Ranchhodbhai which proved fatal and he succumbed to the same immediately after the infliction. It will be quite obvious from the evidence of the complainant that A-2-Kapilaben Bhagwandas gave one blow with a knife on the person of Ramesh Gandalal which stuck on the chest and proved fatal. It is, also proved in the testimony of the complainant that Rasik Gandalal was hit by A-3-Gita with the help of knife at Art. 15. She mentioned that A-2- kapila gave three blows, one blow of knife was given on left portion which struck on the 10th rib, the second knife blow was given on the 8th rib and the third injury was caused on right wrist dorsal which is clearly supported by the evidence of PW 2-Dr. S. M. Chauhan at Exh. 36. The medical case papers of treatment received by pw 6 are produced at Exh. 38. and the medical certificate of Dr. Chauhan is produced at Exh. 37. In fact, the injuries mentioned were found serious and accordingly the Executive Magistrate was also summoned for recording the Dying declaration if any ( 11 ) EVIDENCE of PW 6-injured eye-witness-Rasikbhai inspires confidence of the Court and it radiates an imprint of" truth. He has, categorically, enumerated the role played and the weapon used by all the three accused persons. The trial Court has. rightly, relied on his evidence as he was found quite, trustworthy, by us also. Otherwise also, he had no reason to falsely, implicate the accused persons. After having considered, dispassionately, the entire evidence of this injured eye-witness pw 6-Rasik Gandalal, we have noticed that his evidence runs like knife going through the butter insofar as the main substratum and the main case of the prosecution is concerned. The criticism that the trial Court should not have placed reliance on the injured eye-witness is not acceptable. After having considered, dispassionately, the entire evidence of this injured eye-witness pw 6-Rasik Gandalal, we have noticed that his evidence runs like knife going through the butter insofar as the main substratum and the main case of the prosecution is concerned. The criticism that the trial Court should not have placed reliance on the injured eye-witness is not acceptable. In fact, since homicidal deaths of deceased-Mukesh and Ramesh Gandabhai have not been in controversy and as such on the contrary it is established to the hilt that both of them died homicidal death. The evidence of PW 6-Rasik Gandalal-injured eye-witness, fully, supports the prosecution case. He is an injured eye-witness who has no cause to grudge against the accused persons more so when he is the nearest kith and kin - real brother Ramesh is done away with he would not be interested in implicating the innocent in place of real offenders. Nothing, has been, successfully, shown from the entire record which would affect the authenticity of his testimony. Micro-level discrepancy ultimately with regard to the change in description of incriminating weapon is of no avail. Not only that it can safely be concluded that the description of incriminating weapon was likely and possible for two reasons, (i) that at times, the difference in such two weapons mistakenly is not much of significance and mere change in description of weapon is not sufficient to discredit the trustworthy and reliable testimony of PW 6-Rasik Gandabhai. Firstly, he is a close relative of one of the deceased and secondly he himself is a victim of murderous attack by A 3 - Gita who had sustained three injuries. ( 12 ) AGAIN, in a case of criminal trial particularly, like one on hand. we appreciate the evidence keeping in mind Sec. 374 of the Evidence Act, following aspects which have been, particularly, expounded and settled must be kept before the mental- radar :- (I) Injured witness person cannot be doubted at the venue of offence. Therefore, persons who have sustained injuries, obviously, would be present. (ii) Injured persons have no reason to falsely implicate the accused persons in place of real offenders who gave serious blows to them. (iii) Again, it may, also, be remembered that the evidence of such injured witness carries more weight and high degree of creditworthiness. Therefore, persons who have sustained injuries, obviously, would be present. (ii) Injured persons have no reason to falsely implicate the accused persons in place of real offenders who gave serious blows to them. (iii) Again, it may, also, be remembered that the evidence of such injured witness carries more weight and high degree of creditworthiness. (iv) It must also be mentioned what was the instantaneous reaction of such witness would depend upon circumstances and improbables. Therefore, in the place of such witness some minor defective or tiny contradiction cannot be regarder as a titanic to sink the whole ship of culpability. Such micro-level inconsistenc like slight change in description of weapon, on the spot factual circumstances and the manner, time or some insignificant unimport exaggeration or eve embellishment ought to be discarded, and they should not be considere defective evidence of such persons. (v)It must, also be kept in mind while evaluating and scanning the evidence of such witness with the criticism of the Court and the evidence kept in focus which attracts the guilt of the accused and not the minor inconsistencies or discrepancies which might have happened which might have generated out of the power of observation, emergent situation, lapse or loss of memory which may happen on account of stereotype, monotonous or at times, faulty, investigation. (vi) It must also be recalled that even in case of a truthful witness by one or other reason there is at times contingency to make improvement or embellishment with a view to pick up correct and true version in his testimony. It, therefore. becomes necessary to see that the exaggerated or untrue, aspects are discarded but not the reliable testimony of the injured witness. ( 13 ) APPLYING the aforesaid yardstick to the testimony of the injured eye-witness, the evidence has to be scrutinised, evaluated. Except that there was some mistake in mentioning the name of the incriminating weapon, there was no substantial error, contradiction or discrepancy is clearly stated in the evidence that subsequently in a further statement before the police the mistake crept in at the earlier stage in tile statement and the complaint was. rightly, corrected. Therefore, in the present case. Except that there was some mistake in mentioning the name of the incriminating weapon, there was no substantial error, contradiction or discrepancy is clearly stated in the evidence that subsequently in a further statement before the police the mistake crept in at the earlier stage in tile statement and the complaint was. rightly, corrected. Therefore, in the present case. even irrespective of the aforesaid celebrated guidelines on principles for appreciation of evidence of injured witness, we have satisfactorily noticed that the entire testimony, insofar as the main substance and core of prosecution is concerned, the evidence of PW 6 - injured eye-witness-Rasikbhai Gandalal has remained, totally, impeachable. ( 14 ) THE evidence of eye-witness PW 6-Rasik is also fully, reinforced, by second eye-witness-PW 7-Dahyabhai Chhagandas at, Exh. 54. He is a retired person and a neighbour residing in village Karajisan. He has, clearly, supported the prosecution case and testimony of PW 6 injured eye-witness-Rasik Gandalal. His evidence also inspires the confidence of this Court and the reliance on his evidence by the trial court is quite justified. It becomes clear from his evidence that the main incident came to be preceded by the incident which occurred about 4-00 p. m. on the same day because of which the father of Mukesh Ranchhodbhai rebuked A-l Rasik bhagwandas. There was exchange of hot words between them, cause of the dispute was quite obvious. Accused No. I-Rasik Bhagwandas was leaving a cow in the hut and cows of Ranchhodbhai the father of deceased Mukesh who has as such caused injuries and damage to the cows. ( 15 ) PW 7-Dahyabhai Chhaganbhai was also present at the time of earlier incident which occurred, at about. 4-00 p. m. He, therefore, supports the prosecution case not only on the main incident, but also the incident which preceded two hours before. It is very clear from his testimony that. he has seen the incident and he is an eye-witness. He is the uncle of the injured and is the resident of same neighbourhood. It is, therefore, clearly testified by him that there was an exchange of hot words between Mukesh and A-l-Rasik Bhagwandas when he rushed near his house on his way back home with his cattle. He was followed by PW 6-injured eye-witness-Rasik. He is the uncle of the injured and is the resident of same neighbourhood. It is, therefore, clearly testified by him that there was an exchange of hot words between Mukesh and A-l-Rasik Bhagwandas when he rushed near his house on his way back home with his cattle. He was followed by PW 6-injured eye-witness-Rasik. When the deceased Mukesh reached near the house of accused- rasik as he had to pass by that way and the house of the accused is, en route, while going from the field to the residence of deceased. At that time the deceased Mukesh and A-1 -Rasik started shouting at each other. On account of such commotion this witness Dahyabhai went to the venue of offence. So he is an eye-witness who has clearly stated in his evidence that A-1-Rasik Bhagwandas inflicted knife blow on the person of Mukesh and in order to see that Mukesh is not given more blows with the sword by the A 1-Rasik deceased Ramesh Gandalal tried to intervene. Thereafter, A 2-Kapila inflicted blow on the right chest portion of deceased Ramesh. On account of sudden attack and serious blow of, deadly, weapon like sword injured- ramesh started running towards the house of accused from which the injured-Rasik gandalal had to come back and in the meantime A 3-Gita inflicted two knife blows on the person of the complainant-injured eye-witness-Rasik Gandalal. At that time according to the evidence of this witness Dahyabhai, injured Mukesh had to sit down pressing the cloth available with him on the injured. Thereafter, the neighbours rushed to the venue in an attempt to rescue the injured who look them to the hospital. We have. carefully, gone through the entire evidence of PW 7-Dahyabhai Chhaganbhai. at Exh. 54. and we found that the testimony of this witness is quite dependable and trustworthy. The trial Court has. rightly, relied, on his evidence. Merely, because he has related and happens to be the uncle of the injured his evidence cannot be discredited and on the contrary such a close witness would not be interested to falsely implicate somebody in place of real offender. His evidence is. therefore, rightly, relied on by the trial Court and his evidence also fully supports the evidence of injured eye-witness-PW 6-Rasik Gandalal. ( 16 ) PW 8-Bharal Babulal is also an eye-witness examined, at Exh. 55. His evidence is. therefore, rightly, relied on by the trial Court and his evidence also fully supports the evidence of injured eye-witness-PW 6-Rasik Gandalal. ( 16 ) PW 8-Bharal Babulal is also an eye-witness examined, at Exh. 55. He had come back home from the job as he was working in the Torrent factory and he was commuting from his home town to Ahmedabad he had come back on the date of incident around 4-30 p. m. He is the neighbour. His house is situated just near the venue of offence. He has. fully, supported the case of the prosecution. The trial court has, elaborately, considered the evidence of this witness. The role played by each of the accused, the weapon used by each of the accused and the blow inflicted by them had been vividly described by him in his evidence and barring a few contradictions in his testimony his evidence fully supports the case of the prosecution and evidence of the injured eye-witness-PW 6-Rasik Gandalal and another eye- witness-PW 7-Dahyabhai Chhaganbhai, at Exh. 54. He is the relative of injured rasik. PW 6 -Rasik is the uncle of this witness and the dead bodies were lying near his house. We are, satisfied, that the trial Court was justified in placing the reliance on the evidence of this eye-witness as well as earlier two witnesses one of whom happens to be the injured one. 20 (i) One more interesting characteristic of this case needs narration at this juncture. A 1 and A 2 in their statements under Sec. 313 of the Code when they were pointedly asked to show anything more, coherently, replied that they are producing their written contentions or statement under Sec. 313 and nothing more they desired to say. The trial Court has given "exh. 90" to such written statement of both A 1 and A 2. There appears to be some mistake in mentioning the number of Exh. Notwi landing that A 3-Gita has in a similar way on being asked the same question submited written statement and it is, also, mistakenly mentioned in the record produced. . , Rxh. 90. That would, obviously, lead us to the written statement with the signature of A 3-Gita in the course of her examination under Sec. 313 of the Code. ( 17 ) OBVIOUSLY, now, it would be interesting to refer to the statements produced, at Exh. . , Rxh. 90. That would, obviously, lead us to the written statement with the signature of A 3-Gita in the course of her examination under Sec. 313 of the Code. ( 17 ) OBVIOUSLY, now, it would be interesting to refer to the statements produced, at Exh. 93. As per the defence propounded in this written statement signed by A-3 following contentions have been raised in said defence strategy : (i) That the accused persons came armed with weapons all of sudden and attempted to attack as a result of which Gita closed the door from inside. (ii) At the time A 2-Kapila was convulsing in the bed on the upper portion of the house as she was operated for appendicitis. (iii) The brother of Gita-A 1-Rasik Bhagwandas had gone to purchase medicine at village Kadi as he was suffering from malaria. (iv) The accused persons attacking her taking undue advantage of the absence of male member in the family and in that process tried to molest her by placing hands on her chest and in that process further her clothes came to be torned (sic. torn) and she sustained injuries on the hand because of Dharia blow. (v) The incident occurred in the Osri portion of the house and both the persons fell down in the osri portion and injured Rasik Gandalal with the help of some outsiders took the dead bodies of Mukesh and Ramesh from the Osri and placed them outside on the road. (vi) That in the course of scuffle and fighting when Mukesh tried to get hold of her from behind her clothes got blood marks on the back portion. (vii) The most interesting part is that all the three persons dragged the deceased and injured, forcibly, entering into the osri portion of the house in an attempt to molest her. Therefore, at that time for self-defence unknowingly and intentionally injuries on all the three persons. ( 18 ) INSOFAR as the statement under Sec. 313 of the Code is concerned, it may be mentioned that it is not a mere ritual nor an empty formality. There is a purpose and policy behind incorporating the provision of Sec. 313. It would be appropriate at this stage to refer to the contention raised on behalf of accused persons by Mr. There is a purpose and policy behind incorporating the provision of Sec. 313. It would be appropriate at this stage to refer to the contention raised on behalf of accused persons by Mr. Shah that such a statement under Sec. 313 when it is not binding to other accused ,per. son. s when it i. s inculpatory also cannot be used against the accused. This submission, primu facie, may appear to be alluring and attractive, but not sound and sustainable. It cannot be contended that the statement recorded under Sec. 313 has no value or utility to the prosecution. No doubt it is true that the inculpatory admissions made in a statement under Sec. 313 of the accused cannot be made sole basis for arriving at a finding of guilt of the accused. However, it cannot be altogether ignored merely because they were advanced a defence strategy and Court could weigh such a statement. Answer given by the accused persons pursuant to the provisions of Sec. 313 of the Code has a value and the Court can attach weight, while evaluating and analysing the overall factual scenario of evidence led by the prosecution. Therefore, it cannot be said that the statement under Sec. 313 has not value, utility or credence. ( 19 ) THE main purpose of such a legislative intent in the provision of Sec. 313 is to afford the accused with an opportunity to explain the incriminating circumstances against him recorded in course of evidence of the prosecution. So it is a statutory provision enabling the accused to explain the incriminating circumstances against him in the evidence of prosecution does not merely for observance of a ritual or only for the sake of statutory formality. It has a salutary impact. It enables the Courts to appraise what the indicated accused persons have to say in the circumstances pitted against him. Answer to said questions obviously ipso facto would constitute base; for conviction. Nonetheless. the statements or answers on the questions recorded by the Court in the course of statutory duty under Sec. 313" of the Code can be considered by the Court while making assessment or analysis of the evidence of the prosecution case. even if such a statement is in a form of admission. Nonetheless. the statements or answers on the questions recorded by the Court in the course of statutory duty under Sec. 313" of the Code can be considered by the Court while making assessment or analysis of the evidence of the prosecution case. even if such a statement is in a form of admission. The answers given pursuant to the questions raised by the Court under Sec. 313 also can be taken into account by the Court for the purpose of examining the facts and circumstances and in the process of adjudication of the criminality of the accused party. It cannot be contended that whenever there is a inculpatory or exculpatory admission in a statement under Sec. 313 of the Code it is to be overlooked or neglected. It is in this context it has been, rightly, appreciated in various decisions of the Honble Supreme Court that even in case of inculpatory admissions during the course of statement under Sec. 313 the Court called upon to determine the criminality of the accused and the evidence of the prosecution can consider such statement or such answers. We may also, at the cost of repetition, clarify that it cannot form the basis for conviction, but it can be considered by the Court while examining and appreciating the evidence as a whole. This could be very well highlighted by referring to the provisions of sub-sec. (4) of Sec. 313. It is clearly prescribed by the legislature in its wisdom in sub-sec. (4) of Sec. 313 of the Code that the answers given by the accused may be taken into consideration in such an enquiry or trial and put in evidence for or against him in any other enquiry or trial for any other offence which such answers may tend to show he has committed offence. ( 20 ) THE view which we want to take at this juncture is succinctly reinforced by the legislative advice incorporated under Sec. 313. In this connection it will be profitable to refer to the judicial pronouncement of the Apex Court in the case of "ratan Singh v. State of H. P. . reported in 1997 (4) SCC 161 ". It has been held in para 20 of the judgment that the examination of the accused under Sec. 313 of the Code is not a mere formality. reported in 1997 (4) SCC 161 ". It has been held in para 20 of the judgment that the examination of the accused under Sec. 313 of the Code is not a mere formality. Answers given by the accused to the questions put to him during such examination have. practical utility for criminal Courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the Court in appreciating the entire evidence adduced in the Court during the trial. It is further observed that, "exh. P-1-gun admittedly belongs to the assailant. Therefore, when PW 10 said in Court that she succeeded in snatching it from the assailant and she surrendered it to the police, we see no reason to disbelieve her, particularly, in view of evasive answer given by the appellant to the question concerned. " . ( 21 ) IN the case of Jethamal Pithaji v. The Asstt. Collector of Customs, 1974 (3) SCC 393 while interpreting the provisions of Sec. 342 under the Old Code (Sec. 313 of the New Code) it has been held that inculpatory part of the statement could be accepted even though the exculpatory part of the statement of the accused was rejected. In case, the Court finds the exculpatory part of the statement of the accused to be inherently improbable, there is no reason why the other part of the statement which implicates the accused and which the Court sees no reason to disbelieve, should not be accepted. ( 22 ) THE proposition of law on the interpretation of applicability of the provisions of Sec. 313 of the New Code which we expounded earlier is further, clearly, reinforced by the decision of the Supreme Court in the case of "state of u P. v. Laxmi, reported in 1998 SCC (Cri.) 929. " The three-Judge bench while interpreting the provisions of Sec. 313 has in clear terms observed that :"it cannot be said that statement of an accused recorded under Sec. 313 of the code does not deserve any value or utility if it contains inculpatory admissions. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases the accused would offer some explanations to incriminative circumstances. In very rare instances the accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases, the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance appearing in the evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground thai such admissions were advanced as a defence strategy. Sub-sec. (4) of Sec. 313 contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the court. The words "may be taken into consideration in such enquiry or trial" in sub- sec. (4) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding. Answers of the accused, when they Contain admissions of circumstances against him are not by themselves, delinked from the evidence, be used for arriving at a finding that the accused has committed the offence". ( 23 ) IN view of the aforesaid position of law we have no hesitation in finding that the submission raised on behalf of the accused in this behalf of the accused in this behalf is unmerited which cannot be accepted in the teeth of clear legislative advice incorporated under Sec. 313 in general and in sub-sec. (4) of Sec. 313 as otherwise it would tantamount to doing against the criminal justice system. (4) of Sec. 313 as otherwise it would tantamount to doing against the criminal justice system. ( 24 ) IT is a settled proposition of law that each case has to be decided on the strength of evidence recorded in it and the evidence recorded in another case though helps the prosecution case cannot be taken into consideration. That such a course or exercise is Hot permissibleeven if the parties agree to it. Subject to the concurrence of the parties/the evidence recorded in one case cannot be considered even in civil case. The evidence recorded in one criminal case cannot be considered as evidence in another case. In the case of Mitthulal v. . State of M. P. , reported, in AIR 1975 sc 149 , it has beenheld that it is doubtful whether the evidence recorded in one crtmfnal case can be regarded as evidence in the other case even with the consent of the accused. We also agree with the submission of Mr. Shah that the observations ofthe trial Court about the presence of eye-witness on the basis of the complaint in other prosecution case is also not legal and valid. ( 25 ) NOTWITHSTANDING that, even after excluding those observations and that part of evidence, the merits of prosecution case in proving the culpability of the accused persons have remained unchanged. ( 26 ) IN view of the evidence of the prosecution it has been, succinctly, and without any doubt established that A 1-Rasik Bhagwandas is responsible for the homicidal death of the deceased Mukesh by giving a Sword blow. It is also, clearly. established without any doubt that the A 2-Kapila Bhagwandas is responsible for the homicidal death of Ramesh Gandalal on account of infliction of knife blows on the vital part of the body of the deceased and the deceased sustained serious injuries and succumbed to the same. We have also no hesitation in holding that A 3-Gita Bhagwandas inflicted three knife blows on the left portion of the chest of the injured complainant Rasik Gandalal. Thus, the culpable homicidal death of deceased Mukesh Ranchhodbhai by A I and of Ramesh Gandalal by A 2-Kapila bhagwandas has been established without any doubt. The trial Court has, therefore, rightly reached the conclusion that A 1 is guilty of homicidal death of deceased mukesh and A 2-Kapila Bhagwandas is guilty of homicidal death of Ramesh gandalal. We. Thus, the culpable homicidal death of deceased Mukesh Ranchhodbhai by A I and of Ramesh Gandalal by A 2-Kapila bhagwandas has been established without any doubt. The trial Court has, therefore, rightly reached the conclusion that A 1 is guilty of homicidal death of deceased mukesh and A 2-Kapila Bhagwandas is guilty of homicidal death of Ramesh gandalal. We. also, agree with the trial Court that A 3-Gita Bhagwandas caused three injuries by giving knife blows to the complainant-Rasik Gandalal. The evidence of three eye-witnesses in proving the homicidal death of deceased Mukesh and ramesh and for causing injuries to complainant by A 3-Gita is quite justified. The evidence of three eye-witnesses is, fully, supported by the medical evidence and promptly lodged F. I. R. in the backdrop of long-drawn animosity between the parties. in fact, the homicidal death of Mukesh and Ramesh has not been questioned. The prosecution has, successfully, established without any doubt that A 1 is responsible for the homicidal death of deceased Mukesh and A 2-Kapila Bhagwandas is, responsible, for causing homicidal death of deceased Ramesh. The A 3-Gita bhagwandas is responsible for causing injuries on the person of the complainant. ( 27 ) NOW, coming to the question of nature-of offence committed by the accused persons it will be necessary to screen and scan the evidence so as to fix the nature of offence committed by each accused person since we are also in broad agreement with the trial Court that there was no common intention on the part of accused persons. ( 28 ) SECTION 299 of I. P. C. prescribes what is the culpable homicide. Whoever, causes death by doing an act with the intention of causing death, or with theintention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such an act to cause death, commits the offence of culpable. homicide. Sec. 300 of I. P. C. provides and prescribes as to what is the murder. From the aforesaid conspectus we are called upon to consider as to whether the offence committed by the accused persons 1 and 2 is an offence of murder or culpable homicide not amounting to murder. Of course, such a problem has to be approached in three stages. The question to be considered at the first stage would be whether the accused Nos. Of course, such a problem has to be approached in three stages. The question to be considered at the first stage would be whether the accused Nos. 1 and 2 have done an act by doing which they cause of the death of deceased Mukesh and Ramesh. Proof of such connection or nexus between the act of the accused persons and the resultant death would, lead us to consideration of second stage whether the act of the accused amounts to culpable homicide as defined under Sec. 299 and if the answer to this question is in affirmative, the Court is required to consider the third stage-the stage for considering the operation of provisions of Sec. 300 of I. P. C. This is a stage at which the Court is obliged to consider and confirm whether the facts established by the prosecution prove the case within the ambit of any one of the four clauses of the definition of "murder" prescribed under Sec. 300 of I. P. C. If the answer to this question is in negative, obviously, the offence would be culpable homicide not amounting to murder punishable under the first or second part of the provisions of Sec. 304 I. P. G. depending, respectively, on whether the second or third clause of Sec. 299 is. attracted or applicable or not. If the answer is found in positive, but. the case comes within any of the clauses incorporated in Sec. 300 the offence would be culpable homicide not amounting to murder punishable under first part of Sec. 304. ( 29 ) THIS brings into consideration of the alternative submissions raised on behalf of the appellant-accused persons. In that it was contended that the offence committed by accused Nos. 1 and 2 will attract the provisions of 2nd part of Sec. . 304 and not the provisions of Sec. 302 as held by the trial Court. This submission requires serious consideration in the light of evidence of the prosecution and the provisions of Secs. 299 and- 300 of I. P. C. ( 30 ) IN the absence of common intention accused persons are required to be held guilty for their individual action. The prosecution has not been successful in proving that there was common intention and we also agree with the conclusion of the trial court on this point. 299 and- 300 of I. P. C. ( 30 ) IN the absence of common intention accused persons are required to be held guilty for their individual action. The prosecution has not been successful in proving that there was common intention and we also agree with the conclusion of the trial court on this point. ( 31 ) INSOFAR as, the question of nature of offence committed by the A I -Rasik bhagwandas is concerned, following aspects must receive serious consideration at this stage : (i) He had used a sword. The homicidal death of deceased-Mukesh is proved to have been caused by inflicting sword blows by the A 1. (ii) Blow of sword was inflicted on the vital part of the deceased Mukesh. (iii) Main incident which occurred on 13-8-1991 was preceded by an incident which occurred between 4-00 and 4-30 p. m. in the afternoon on the same day. (iv) There was old animosity and dispute between the complainant party and accused party. (v) Thus. there was motive for the commission of crime and offence of culpable homicide by the A 1. ( 32 ) THE question of intention or knowledge on the part of the offender is not required to be proved by direct evidence as it is, rightly, said that the human mind is unfathomable. When the Court is called upon to determine the nature of offence committed by the accused, it becomes obligatory for the Court to consider the evidence and to determine whether there was sufficient proof for inference of guilty intention or knowledge. There cannot be a scientific gadget or barometer or any other parameter to gauge and judge the guilty mind of the accused. It is, therefore, required to infer from the surrounding set of proved facts on record. Insofar as the nature of offence committed by the A 1-Rasik Bhagwandas is concerned, we are in complete agreement with the- observations and conclusions of the trial Court. Intention to kill the deceased-Mukesh on the part of A 1-Rasik Bhagwandas can, safely, be inferred from the proved facts in general and the aforesaid aspects in particular. ( 33 ) THE contention that insofar as the offence committed by the A 1 -Rasik bhagwandas is concerned, it was the outcome of sudden quarrel and provocation is not acceptable. Intention to kill the deceased-Mukesh on the part of A 1-Rasik Bhagwandas can, safely, be inferred from the proved facts in general and the aforesaid aspects in particular. ( 33 ) THE contention that insofar as the offence committed by the A 1 -Rasik bhagwandas is concerned, it was the outcome of sudden quarrel and provocation is not acceptable. There is clear evidence to infer that the A 1-Rasik Bhagwanbhai has committed offence of culpable homicide amounting to murder as provided under sec. 300 and punishable under Sec. 302 of I. P. C. There was no question of sudden quarrel or any provocation for the commission of offence by inflicting sword blows on the vital parts of the deceased-Mukesh. In fact, deceased Mukesh was returning back home, in the afternoon, and while passing near the house of the accused en route. Therefore, the deceased Mukesh had to pass near the house of A 1 in order to reach home. There was, however, exchange of hot words between the deceased- mukesh and A 1 -Rasik when the deceased-Mukesh reached near the house of A 1. After hearing raised voice and exchange of hot words deceased-Ramesh Gandalal and his real brother-complainant-Rasik Gandalal who had seen it from near their house which is very close to the house of accused in view of panchnama of scene of offence Exh. 58, and the topography emerging from the map of scene of offence, exh. 59. The evidence does not permit us to agree with the contention that the offence committed by A 1-Rasik Bhagwandas was a result of on the spot quarrel or even sudden provocation. Therefore, the version of defence raised before us in this appeal that the offence committed by A 1 is not punishable under Sec. 302 I. P. C. but is punishable under Sec. 304 Part II is not sustainable. ( 34 ) THE trial Court after having considered all the relevant facts and circumstances has, rightly, reached to the conclusion that the offence committed by A 1-Rasik bhagwandas in giving blow with the help of sword is punishable under Sec. 302 is quite justified. We are also, fully, satisfied that the proved facts without doubt insofar as the culpability of A 1 is concerned attract the mischief of provisions of sec. 300. It is found to be murder only. We are also, fully, satisfied that the proved facts without doubt insofar as the culpability of A 1 is concerned attract the mischief of provisions of sec. 300. It is found to be murder only. The endeavour on the part of the learned counsel for the appellants that it is. alternatively, covered by 3rd Clause of Sec. 300 unfortunately, ended in smoke in view of the proved facts on record. It is no doubt that Clause 3 of Sec. 300 in an exception which provides that the culpable homicide is not murder if it is the result of provocation. The nature of offence committed by the A 1 is. succinctly, established to be covered by the provisions of Sec. 300 culpable homicide amounting to murder in giving fatal blow of sword on the vital organ of the deceased-Mukesh. ( 35 ) NO doubt, there is fine but thin istinction between the murder and culpable homicide not amounting to murder which has as such vexed Courts, at times since long. We are also of the opinion that the A 1is responsible for giving fatal blow of sword on the vital part of deceased-Mukesh and thereby he has committed, offence of murder punishable under Sec. 302. ( 36 ) AS regards nature of offence committed by the A 2-Kapila Bhagwandas we find that the reasons and the ultimate conclusion of the trial Court in holding her guilty of the offence punishable under Sec. 3021. P. C. are not justified and legal in the light of the evidence emerging from the record of the present case. ( 37 ) WE are inclined to give benefit of doubt insofar as alleged complicity of a 2 is concerned and the fact that of intentional infliction of knife blow on the chest portion of the deceased-Ramesh Gandalal. The manner and mode in which she came out of the house and inflicted only one blow, of course, on the vital part of the deceased-Ramesh Gandalal. There is no sufficient evidence to infer that there was intention to commit murder. In fact, the offence committed by her can be said to be culpable homicide not amounting to murder. As intention has not been spelt out but the knowledge can be attributed to her complicity. There is no sufficient evidence to infer that there was intention to commit murder. In fact, the offence committed by her can be said to be culpable homicide not amounting to murder. As intention has not been spelt out but the knowledge can be attributed to her complicity. The act of giving one knife blow on the person of deceased-Ramesh cannot be said to be intentional, but knowledge can be attributed that such a blow on the vital part of the body with a knife was likely to cause death. Therefore, in our opinion, the nature of offence committed by A 2-Kapila is punishable under Sec. 304 Part II. and not under Sec. 302 of 1. P. C. as held by the trial Court. Part II of Sec. 304 speaks of knowledge and does not refer to the intention which has been sagregated in Part I of Sec. 304. But knowledge is the knowledge of likelihood of causing death. Therefore, A 2- kapila Bhagwandas could be held liable for the offence punishable under Sec. 304 part II. With the result, the conviction of A 2-Kapila under Sec. 302 by the trial court in the impugned judgment is required to be quashed and substituted by Sec. 304 Part II of I. P. C. ( 38 ) LASTLY, it will take us to complicity of A 3-Gita Bhagwandas. The trial Court has found her guilty of offence punishable under Sec. 307 1. P. C. Section 307 prescribes punishment for attempting to murder. The prosecution has, successfully, established that A 3-Gita Bhagwandas gave three knife blows to complainant-Rasik - gandabhai after A 1 gave fatal sword blow to deceased-Mukesh Ranchhodbhai ana a 2-Kapila Bhagwandas also gave fatal blow with knife. The proved facts do not justify the offence under Sec. 307 1. P. C. To justify the conviction under Sec. 307, it is not imperative that bodily injury capable of causing death should have been inflicted. However, the nature of injury, actually, caused often gives us considerable help and assistance in reaching the conclusion as to the intention of the accused. As observed, hereinbefore, the intention could be inferred from the set of proved facts. It can also be ascertained even without reference to any actual injuries. Sec. 307 makes a distinction between the act of the accused and its result, if any. As observed, hereinbefore, the intention could be inferred from the set of proved facts. It can also be ascertained even without reference to any actual injuries. Sec. 307 makes a distinction between the act of the accused and its result, if any. A 3 if not proved to have such an intention to commit murder of injured-complainant- rasik Gandabhai. What would have happened had the intended act been accomplished ? What would have been the offence had the assault or attack been successful ? such an act may not be affected by result so far as the person assaulted is concerned, 6ut still there may be case in which offender would be liable under Sec. 307. It is, necessary, and imperative for the prosecution to show or to make inference that the act committed by A 3 was with such an intention and knowledge and under such circumstances that if by that act the death is caused, the offender would be guilty of murder. If it is established by the prosecution the rigorous of provisions of Sec. 307 would be attracted. ( 39 ) AS discussed, hereinabove, the accused No. 3 intervened at a later stage. From the manner and mode, the nature of weapon employed by accused No. 3, it cannot be inferred that it was an attempt to commit murder. However, the culpability of the accused in causing serious injuries to the complainant, in our opinion, was an attempt to commit culpable homicide not amounting to murder. The motive which is ascribed in case of accused No. 1 out of the incident which preceded in the evening two hours before the main incident, the accused No. 3 was not involved or concerned. The motive which is ascribed in case of accused No. 1 out of the incident which preceded in the evening two hours before the main incident, the accused No. 3 was not involved or concerned. Therefore, the act committed by the accused No. 3 for the criminality proved against the accused No. 3 from the facts of the case would attract the provisions of Sec. 308 of I. P. C. Sec. 308 of I. P. C. provides that "whoever does any act with such intention or knowledge and under such circumstances that, if he by that act cause death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both". So it prescribed punishment for attempt to commit culpable homicide not amounting to murder. Prosecution has. therefore, in our opinion, failed to prove the culpability of accused No. 3 for the offence punishable under Sec. 307 of I. P. C. However, the attempt or action on the part of accused No. 3-Gita Bhagwandas in giving knife blows to the person of complainant would fall under the mischief of Sec. 308 I. P. C. Therefore, the conviction of accused No. 3 under Sec. 307 I. P. C. is required to be altered from sec. 307 I. P. C. to Sec. 308 I. P. C. ( 40 ) RELIANCE has been placed on the decision of the Honble Supreme Court in the case of Surendra Kumar v. Union Territory, reported in AIR 1989 SC 1094 by learned Advocate Mr. Shah to substantiate his contention that in case of a sudden quarrel the benefit of Exception 4 to Sec. 300 is available to the accused and the accused can be convicted under Sec. 304 Part I. When this Exception 4 to Sec. 300 can be invoked is highlighted in para 6 of its judgment. It was held in the facts and circumstances of that case that the cause of quarrel is not relevant nor is it relevant who offered the provocation or started the assault. It was held in the facts and circumstances of that case that the cause of quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender and the offencer must have acted in a fit of anger. It was further held, of course, the offender must not have taken any undue advantage or acted in cruel manner. . ( 41 ) RELIANCE is also placed by Mr. Shah on the decision in the case of State of Karnataka v. . Basangouda Patil of the Honble Supreme Court reported, in AIR 1990 SC 1047 . In that case in view of the facts and circumstances narrated in para 6 the conviction under Sec. 302 was altered to Sec. 304 Part II. It was proved from the facts of the case that the deceased had gone to the house of the accused and picked up a quarrel, the blood-stains were found on the floor inside the house as well as on the front door of the house indicating that the deceased had trespassed into the house of the respondents, the incident had preceded with a quarrel, the genesis and origin of the incident are suppressed and the attack was not a calculated one. ( 42 ) RELIANCE is also placed by Mr. Shah on the decision in the case of Gurmail singh v. State of Punjab, reported in AIR 1982 SC 1466 . In it was held that to bring the case within Para III of Sec. 300 I. P. C. it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. The injury landed on the chest and penetrated deep into the chest cavity. In the circumstances of the case. since the prosecution failed to show the nature of offence committed will be an offence under Sec. 304 part II I. P. C. and not Sec. 302 I. P. C. ( 43 ) MR. Shah has also placed reliance on the decision of the Supreme Court in the case of Hemraj v. State (Delhi Administration), reported in AIR 1990 SC 2252 . Shah has also placed reliance on the decision of the Supreme Court in the case of Hemraj v. State (Delhi Administration), reported in AIR 1990 SC 2252 . It was contended placing reliance on this case of the Apex Court that when the occurrence happening in a spur of moment and in the heat of passion upon sudden quarrel and when accused has inflicted single stab blow landing on the chest of the deceased in such a situation intention to cause death or to cause fatal injury could not be imputed against the accused and therefore, the accused was held guilty for the offence punishable under Sec. 304 Part II and the conviction under Sec. 302 was set aside. Similarly reliance is also placed by Mr. Shah on the decision of ranjitsinh Chandrasinh Atodaria v. State of Gujarat, reported in AIR 1994 SC 1060 . In that case one stab injury was given by the accused after sudden quarrel and fight. The conviction under Sec. 302 came to be altered to under Sec. 304 Part II as intention to cause death could not be spelt out. ( 44 ) IT can be very well seen from the aforesaid decision of the Apex court that in case the prosecution has not been able to successfully show or proved facts do not spell out the intention to kill, then in that case the offence would be under Sec. 304 Part II and not under Sec. 302 I. P. C. This proposition of law is very well settled and will be obviously applicable insofar as the accused No. 2 is concerned. In the light of earlier discussions, we have noticed that the accused No. 2-Kapila enters at the scene of offence after accused No. 1 gave vital sword blow to deceased-Mukesh. The complainant-Rasik and deceased-Ramesh came nearer to the venue and thereafter accused No. 2-Kapila came out of the house and used kitchen knife and gave one blow on the person of deceased-Ramesh. Of course, it proved to be fatal but the manner and mode in which the kitchen knife blow was given by accused No. 2-Kapila after deceased Ramesh and complainant-Rasik ventured to rush and rescue deceased Mukesh. In such a situation, she inflicted knife blow on the chest portion of deceased-Ramesh. Of course, it proved to be fatal but the manner and mode in which the kitchen knife blow was given by accused No. 2-Kapila after deceased Ramesh and complainant-Rasik ventured to rush and rescue deceased Mukesh. In such a situation, she inflicted knife blow on the chest portion of deceased-Ramesh. Obviously, there is no material to even, remotely, infer the guilt and the intentional act and evidently it appears to be in an attempt to save the brother from being retaliated by the complainant and his brother Ramesh. In these circumstances, it is not possible for us to infer the intention on the part of accused No. 2, but however, the culpability in causing homicidal death of Ramesh by giving one stab blow will be covered by the provisions of Sec. 304 part II I. P. C. ( 45 ) IN the light of the facts and circumstances and notification issued by the competent authority under Sec. 371 of the Bombay Police Act the conclusion of the trial Court and the resultant conviction of all the accused persons for the offence punishable under Sec. 135 (1) of the Bombay Police Act is quite justified and is required to be confirmed, and accordingly, we confirm it. Now, reverting back to the facts of the case for the purpose of imposing appropriate sentence for the aforesaid offence. We have. exhaustively, heard the learned A. P. P. , and the learned Counsel for the appellant-original accused persons on the question of sentencing in view of the fact that the conviction of original a 2-Kapilaben if altered to Sec. 304 Part II and special subsequent circumstances referable to the A 3. Of course, they were already heard by trial Court on sentence. ( 46 ) LEARNED A. P. P. has raised following contentions before us insofar as sentencing of accused personsis concerned : (i) That the A 2-Kapila had used knife which landed on the vital part of the body of the deceased and it being a serious crime heavy sentence should be imposed. (ii) That the incident, character and conduct in view of long-drawn animosity would not warrant lenient view. (iii) In the alternative, heavy amount of fine should be imposed out of which reasonable amount should be paid to the victims of the offence insofar as a 2 is concerned. (ii) That the incident, character and conduct in view of long-drawn animosity would not warrant lenient view. (iii) In the alternative, heavy amount of fine should be imposed out of which reasonable amount should be paid to the victims of the offence insofar as a 2 is concerned. (iv) That in case of A 3-Gita heavy amount of fine not less than Rs. 40. 000. 00 out of which part of it could be paid by way of compensation to the victims of offence. ( 47 ) LEARNED Advocate Mr. Shah appearing for the original accused persons has made following submissions qua sentencing the A 2 and A 3 : (i) Relying on the facts which have not been controverted that the A 2-Kapila is married, aged about 32, that there are two minor children, one son aged about 11 years and one daughter aged about 9 years. (ii) That accused Kapila has no elderly member in her family to look after her minor children. (iii) That she belongs to a respectable family and she has never been involved in any crime in the past and the offence in this appeal is the first offence. (iv) That A 2-Kapila remained in custody as an under trial prisoner and as an convict prisoner totally for a period of 65 days and in the facts and circumstances it should be considered as sufficient for the purpose of heavy reasonable amount of fine. (v) That the mother-in-law of Kapila died four years before and there is no female member in the family at present to look after the minors. (vi) That the only male member in her family is her husband who is doing business in partnership and therefore, further period of imprisonment would insulate her from the minors and they would be rendered without help and assistance of mother or any female member in the family. (vii) Considering the family background any period of imprisonment in jail with hardened criminals will not serve the purpose of sentence. ( 48 ) INSOFAR as, A 3-Gita is concerned he has raised following submissions :- (I) That she was hardly 19 years old at the time of incident. (ii) That she is married and during the course of bail period and now she has serious ailment. (iii) That A 3-Gita has become victim of serious neurological problem and she is undergoing extensive treatment. (ii) That she is married and during the course of bail period and now she has serious ailment. (iii) That A 3-Gita has become victim of serious neurological problem and she is undergoing extensive treatment. (iv) Medical case papers and the nature of ailment is stated in the affidavit supporting the medical papers signed by Dr. K. K. Lakhani. (v) Her neurological problem resulted into brain haemorrhage, particularly after second delivery. She has also two girls, one aged about 4 years and the youngest one is hardly 5 months, at this stage. (vi) That she in such a physically handicapped position that she needs constant care and attendance and sending her to jail for any further period would be counter to the policy and philosophy of sentencing in such a situation. She is not at all in a position to help herself much less repeating crime or offence in future. (vii) That Gita has undergone, the total period of 16 months and 15 days and it should be considered as sufficient for the offence under Sec. 308 and reasonable amount of fine not more than Rs. 10,000. 00 which could be ordered to be paid by way of compensation to the victims of offence, namely, the widow and minors of deceased Mukesh Ranchhodbhai. ( 49 ) MR. Shah has also placed reliance on the decisions to which reference will be made by us hereinafter. ( 50 ) WE are, thus, called upon to strike balance by imposing appropriate quantum of sentence bearing in mind the principles, policy and parameters of the provisions of Secs. 235 (2) and 357 of Cr. P. C. , and underlying purport and design of sentencing philosophy in the background of the important trends prevalent in the realm of criminality, penalty and also victimology. ( 51 ) THE very purpose of statutory mandate and design of the provisions of Sec. 235 (2) of the Code is to see that the question of sentence, relevant aspects of accused should be considered as during the course of trial the Court may not be in a position to have such aspects. ( 52 ) BEARING in mind the importance of sentencing principles, purpose and object the Court has to strike the balance. ( 52 ) BEARING in mind the importance of sentencing principles, purpose and object the Court has to strike the balance. In the course of hearing we have found that insofar as the A 3-Gitas case is concerned, it is really a very pathetic and pitiable physical situation she has. Looking to the age, the physical disability in the form of neurological ailment resulting on account of brain haemorrhage after the second delivery and the age of two children and peculiar factual situation of A 2-Kapila she has also to shoulder the responsibility of bringing-up two minors in a family whew there is no other female family member and the only male member is husband who is doing business, Therefore, further period of imprisonment in their case would, definitely,, tell upon the bringing-up of the minors who will also be the sufferers for want of motherly warmth, love and affection during the childhood. This is one of the important aspects like that social purpose to be considered by the Court while imposing sentence. Not only that further period of imprisonment in their case would deprive the minors from required motherly care and comforts would also insulate the young woman from the social environment to, the company of hardened offenders and criminals in the prison which, definitely, would run counter to the social. object of the sentencing part. Instead, if heavy amount of fine out of which heavy amount of compensation to the victims of offence like minors and widow of the deceased is ordered to be paid will meet the ends of justice and will strike the balance. ( 53 ) APPELLANT No. 2 is found guilty of offence under Sec. 304 Part II of I. P. C. for which maximum punishment prescribed is imprisonment for life or imprisonment of other description of term which may extend to ten years or with fine or with both. A 2 has, already, undergone period of 65 days imprisonment. Prima facie, one would be inclined to agree with the learned A. P. P. that it will be lenient for the court to impose period of imprisonment already undergone only looking to the magnitude of the crime with the help of a knife and cutting short the life of young man-Ramesh. However, that is one part of the sentencing policy. Prima facie, one would be inclined to agree with the learned A. P. P. that it will be lenient for the court to impose period of imprisonment already undergone only looking to the magnitude of the crime with the help of a knife and cutting short the life of young man-Ramesh. However, that is one part of the sentencing policy. The Court is also obliged to consider various aspects while determining and imposing quantum of sentence. We would like to highlight following aspects material and relevant to the issue of sentencing. ( 54 ) THE principles and parameters required to be examined and kept in the mental-radar while adjudicating upon the issue of sentencing for the offences are very well. exhaustively propounded and expounded in number of decisions. Learned advocate Mr. Shah has placed reliance on the decision in the case of Bishnum Deo shaw v. State of W. B. , reported in AIR 1979 SC 964 . Relying on the observations made in paras 25 and 26 and 27 he has submitted that victimology as well as personal factors referable to the accused persons and peculiar aspects ought to be reflected in the process of imposing sentence :"apart from Sec. 354 (3) there is another provision in the case which also uses the significant expression "special reasons". It is Sec. 361, Sec. 360 of the 1973 Code re-enacts, in substance, Sec. 562 of the 1898 Code and provides for the release on probation of good. conduct or after admonition any person not under 21 years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under 21 years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and it appears to the Court having regard to the age, character and antecedents of the offender and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct or after admonition. If the Court refrains from dealing with an offender under Sec. 360 or under the provisions of the Probation of offenders Act or any other law for the treatment, training or rehabilitation of youthful offenders, where the Court could have done so. If the Court refrains from dealing with an offender under Sec. 360 or under the provisions of the Probation of offenders Act or any other law for the treatment, training or rehabilitation of youthful offenders, where the Court could have done so. Sec. 361 which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment "special reasons" for not doing so. Sec. 361 thus casts a duty upon the Court to apply the provisions of Sec. 360, wherever, it is possible to do so and to state "special reasons" if it does not do so. In the context of Sec. 360 the "special reasons" contemplated by Sec. 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Secs. 361 and 354 (3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends of criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character and antecedents and other circumstances and the tractability of the offender to reform himself must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal Justice system is not a computer machine. It deals with complex human problems and diverse human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget. Like the rest of us they too are the creatures of circumstances. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget. Like the rest of us they too are the creatures of circumstances. Heredity, environment, home, neighbourhood, upbringing, school, friends, associates, even casual acquaintances, the book that one reads, newspapers, radio and TV, the economics of the household, the opportunities provided by circumstances, and the calamities resulting therefrom, the success and failures of ones undertakings, the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extraordinary incidents of life contribute to persons personality and influence his conduct. Differently shaped and differently circumstanced individuals react differently in given situations. A Judge has to balance the personality of the offender with the circumstance, the situations and the reactions and choose the appropriate sentence to be imposed. A Judge must try to answer a myriad questions such as was the offence committed without premeditation or was after due deliberation ? What was the motive for the crime ? Was it for gain ? Was it the outcome of village feud ? Was it the result of a petty, drunken street brawl or a domestic bickering between a hapless husband and a hapless wife ? Was it due to sexual jealousy ? Was the murder committed under stress, emotional or otherwise ? What is the background of the offender ? What is his social and economic status ? What is the level of his education or intelligence ? Do his actions betray a particularly callous indifference towards the welfare of a society or on the other hand do they show a great concern for humanity and are in fact inspired by such concern ? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society ? Or he is a person who is patently amenable to reform ? Well, may one explain with Prof. Vrij "what audacity is involved in these three tasks to interpret life, explain an act, predict the latest inclination of a human mind". Or he is a person who is patently amenable to reform ? Well, may one explain with Prof. Vrij "what audacity is involved in these three tasks to interpret life, explain an act, predict the latest inclination of a human mind". ( 55 ) HE has also placed reliance on the decision in the case of Hari Kishan v. Sukhbir Singh, reported in AIR 1988 SC 2127 and has contended that it highlights the issue of compensation to victims of offence. In this connection, it is submitted that it is a case wherein proper balance can be struck if the period undergone by the accused Nos. 2 and 3 were ladies and period of imprisonment undergone by them respectively for the purpose of the amount of fine out of which reasonable amount of compensation was determined under Sec. 357. In that case amount of compensation awarded to the victim for the offence punishable under Sec. 307 came to be enhanced to Rs. 50. 000. 00. ( 56 ) HE has also placed reliance on the decision of the Division Bench of this court in Lakhdhirsingh v. State of Gujarat, in Criminal Appeal No. 553 of 1983 decided on 16-1-1984. We have gone through the said decision. In that case, the accused came to be convicted under Sec. 304 Part II and was awarded R. I. for four years by the trial Court and in appeal before this Court the conviction appeal and the final order of the trial Court was not pressed and it was urged that the benefit of probation of good conduct may be granted to the accused. In the facts and circumstances, it was accepted by this Court and accused was permitted to be released on probation for a period of two years with appropriate condition. While suspending the sentence imposed by the trial Court and appellate Court the appeal was partly allowed. ( 57 ) MR. Shah has also placed reliance on the decision of the Division Bench of this Court in Criminal Appeal No. 1016 of 1984 decided on 23/24-1-1995 and 24-2-1995 (Coram : B. C. Patel and Y. B. Bhatt, JJ. ). In that case, the Court relied upon the decision in the case of Hari Kishan (supra) the benefit of Sec. 357 of the Code was considered and amount of fine of Rs. 50,000. ). In that case, the Court relied upon the decision in the case of Hari Kishan (supra) the benefit of Sec. 357 of the Code was considered and amount of fine of Rs. 50,000. 00 was imposed for the offence punishable under Sec. 307. The conviction under Sec. 307 was confirmed and the sentence imposed already undergone by the accused was considered sufficient while imposing fine of Rs. 50,000. 00 out of which sum of Rs. 45,000. 00 was ordered to be paid by way of compensation under Sec. 357 of the Code. Mr. Shah states that he had appeared in the said matter and the period undergone was three months. ( 58 ) HE has also relied on the decision in the case of Hari Kishan v. Sukhbir singh. reported in AIR 1988 SC 2127 and has contended that even in a case of conviction under Sec. 325 only maximum sentence is imprisonment for seven years and fine. Accused persons were granted benefit of probation of good conduct and they were directed to pay compensation of Rs. 2,500. 00 to the victim-injured in the incident. Relevant observations of the Apex Courtin Para 8 are as under :"the question next to be considered is whether the accused are entitled to the benefit of probation of good conduct ? We gave our anxious consideration to the contentions urged by Counsel. We are of the opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to the temptation or provocation. In placing such type of offenders on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare-up. These are not shown to be incorrect. We have already said that the accused has no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate". It is, therefore, in that case directed to pay compensation and striking the order of sentence directed the amount of Rs. 50,000. We have already said that the accused has no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate". It is, therefore, in that case directed to pay compensation and striking the order of sentence directed the amount of Rs. 50,000. 00 to be paid by way of compensation under Sec. 357 (3) of the Code. ( 59 ) IT was, therefore, contended that the Court has consider not only the weapon used or the magnitude of the offence but even the special circumstances and peculiar facts pertaining to the accused. ( 60 ) AFTER having considered all the facts and circumstances of the case and underlying purport and design of sentencing policy the conviction of A 1 under sec. 302 and sentence is confirmed, whereas, the conviction of appellant No. 2- original A 2-Kapila Bhagwandas is altered to Sec. 304 Part II and she is sentenced to period of imprisonment undergone so far and to pay fine of Rs. 60. 000. 00 and in default to undergo R. I. for two years and six months. The amount of rs. 50. 000/- out of the amount of fine of Rs. 60. 000. 00, if paid, shall be paid to the heirs and legal representatives of deceased-Mukesh Ranchhodbhai. namely, the widow, minor children after due verification by the trial Court by way of compensation under Sec. 357 (1 ) (b) of the Code. . ( 61 ) APPELLANT No. 3-original A 3-Gita Bhagwandas is convicted for the offence punishable under Sec. 308 instead of Sec. 307 and the period of sentence of imprisonment undergone is treated as sufficient and also to pay fine of rs. 15,000/- in default to undergo R. I. for one year and the amount of fine, if paid, shall be paid to the heirs and legal representatives of deceased-Mukesh ranchhodbhai, namely, widow, minor children after due verification by the trial court by way of compensation under Sec. 357 (1 ) (b) of the Code. ( 62 ) ACCUSED Nos. 2 and 3 are on bail and after four weeks within which period if the fine is paid the bail shall stand cancelled. ( 62 ) ACCUSED Nos. 2 and 3 are on bail and after four weeks within which period if the fine is paid the bail shall stand cancelled. ( 63 ) IN the course of hearing we had called for muddamal articles No. 14 (sword) and Art. 15 (knife) and Art. 22 (Kitchen knife) for the purpose of our examination and appreciation of evidence which shall be returned to the trial Court, immediately, through messenger. ( 64 ) IN view of our above observations and directions M. C. A. No, 3054 of 1998 also stands disposed of accordingly. Appeal also shall, partly, stand allowed, accordingly. .