ORDER 1. Nine accused persons including the respondent herein were tried by the Additional Sessions Judge, Hingoli district, Maharashtra for the offences punishable under Section 302 read with Section 149 and Sections 147, 148, 324 read with Section 149 and Section 326 read with Section 149 of the Indian Penal Code. In the said trial, the trial court acquitted A-6, A-7 and A-8 for lack of evidence. It convicted A-I to A-5 and A-9 of all the charges mentioned hereinabove and sentenced them for an offence punishable under Section 302 read with Section 149 IPC to undergo imprisonment for life. It also awarded various other sentences for the offences punishable under other sections mentioned hereinabove which were to run concurrently. 2. In an appeal filed by the convicted appellants, the High Court of 1 Judicature at Bombay, Aurangabad Bench, while accepting the prosecution case in regard to the incident in question altered the sentence of the respondents herein for the offence punishable under Section 302 read with Section 149 IPC to sentence for the offence punishable under Section 304 IPC read with Section 149 IPC and sentenced them on that count to undergo rigorous imprisonment for five years. It confirmed the sentence awarded by the trial court on other counts. 3. Against this reduced sentence awarded by the High Court the appellant State is in this appeal before us. 4. Brief facts necessary for the disposal of this appeal are that these respondents along with the acquitted accused persons on 23-6-1991 at about 5 p.m. in Village Gota formed themselves into an unlawful assembly and attacked one Kishan Pawar who died due to the said attack. The said accused persons according to the prosecution also caused injuries to PW 3, the wife of the deceased, PW 6, the brother of the deceased and PW 7, the brother-in-law of the deceased. The prosecution had also adduced evidence apart from the three injured witnesses of two other witnesses who did not support the prosecution case. It is based on the motive as projected by the prosecution as f• also on the evidence of the injured witnesses that the trial court came to the conclusion that the present respondents were guilty of causing murder of deceased Kishan Pawar and sentenced them to undergo imprisonment as stated above. It is based on the motive as projected by the prosecution as f• also on the evidence of the injured witnesses that the trial court came to the conclusion that the present respondents were guilty of causing murder of deceased Kishan Pawar and sentenced them to undergo imprisonment as stated above. In appeal filed by the convicted accused, the High Court while accepting the involvement of the accused altered the sentence from Sections 302 to 304 Part II IPC on the ground that the respondents herein did not have any intention or knowledge of committing the murder of the deceased. 5. Learned counsel appearing for the appellant State of Maharashtra pointed out to us from the judgment of the High Court that the High Court proceeded on a wrong factual basis to come to the conclusion that the offence committed by the respondent-accused was not one which falls under Section 302 IPC. He pointed out from para 24 of the judgment of the High Court that it proceeded on the basis that the injuries on the person of the deceased were not on the vital parts of the body. He also pointed out that the High Court has observed that because the accused used the blunt side of the axe it should be presumed that the accused did not have any intention to cause the death of the deceased. Both these facts as noted by the High Court, according to the learned counsel for the State, are factually incorrect. He pointed out from the evidence of the doctor that the deceased among other injuries had suffered the following injuries: 1. Contused lacerated wound on vertex horizontally placed measuring 2" x 1-1/4" with evidence of depressed fracture of skull vertex. 2. Contusion on right temporal region measuring 1 II x 1-1/2 ". 3. Contusion on right parietal region measuring 2" xl". 6. A perusal of the evidence of PW 5 who is the doctor who conducted the post-mortem, shows that he had noticed the following internal injuries: "I also noticed evidence of external cranial haematoma from right parietal to left parietal region. There was depressed fracture of skull vertex and comminuted. There was evidence of linear fracture of the skull starting from right parietal region almost crossing middle line to left frontoparietal region 7" x 1/4" through which black tarry-coloured blood was seen. There was depressed fracture of skull vertex and comminuted. There was evidence of linear fracture of the skull starting from right parietal region almost crossing middle line to left frontoparietal region 7" x 1/4" through which black tarry-coloured blood was seen. In the brain covering and in brain tissues proper I found extradural haematoma. So also subdural haematoma and huge intracerebral haematoma about two hands full." 7. From the above injuries, learned counsel pointed out that the finding of the High Court that the injuries caused by the respondents are not on the vital parts of the body of the deceased is incorrect. He also pointed out that perusal of the said injuries indicates that the respondents had actually intended to commit murder, hence they are liable to be punished under Section 302 read with Section 149 IPC. 8. Learned counsel appearing for the respondent-accused persons, however, contended that from the fact that the accused persons did not use the sharp part of the weapon carried by them would indicate that they had no intention to cause such injuries which would in the normal course lead to death, therefore, finding of the High Court is justified. He also relied upon a judgment of this Court in the case of State of A.P. v. Rayavarapu Punnayyal to support the contention that the action of the respondent-accused persons could be only one that falls under Section 304 Part II IPC as has been held by the High Court. Though the accused have not challenged the finding of the two courts below by way of separate appeal, learned counsel taking advantage of the State appeal argued that even the finding of the courts below that the respondents were responsible for the death of the deceased is unsupportable on the basis of the evidence on record. He extensively relied upon the evidence of the witnesses PWs 3, 6 and 7 to establish that there were numerable omissions, improvements and contradictions in their evidence based on which there could be no conviction. 9. We will first consider the case of the State in regard to the alteration of a the sentence made by the High Court. We notice that the prosecutions case that the incident in question took place on 23-6-1991 wherein the accused persons came armed with deadly weapons to the house of the deceased is accepted by both the courts below. We will first consider the case of the State in regard to the alteration of a the sentence made by the High Court. We notice that the prosecutions case that the incident in question took place on 23-6-1991 wherein the accused persons came armed with deadly weapons to the house of the deceased is accepted by both the courts below. Both accepted the fact that attack on the deceased Kishan Pawar had taken place as projected by the prosecution consequent to which he had died. Both the courts below accepted the prosecution case that witnesses PWs 3, 6 and 7 were injured in this incident and they were actually eyewitnesses to the incident and that the accused persons had a motive to attack the deceased. In spite of these findings the High Court came to the conclusion that the action of the accused persons would come under Section 304 Part II IPC and not under Section 302 IPC. 10. We notice that the foundation of this finding of the High Court is based on an erroneous fact that the injuries caused to the deceased were not on the vital part of the body. We have hereinabove noticed from the evidence of the doctor that at least three of the injuries are on the head of the deceased consequent to which the deceased had died. By no stretch of imagination can it ever be said that these injuries were not on the vital part of the body. In our opinion, the High Court made a serious error in holding that these injuries are not on the vital part of the body. We also notice from the evidence of the doctor, PW 5 that this attack on the head resulted in internal fracture and profuse bleeding, therefore, assuming that the accused used the blunt side of the axe that by itself would not indicate any lack of intention to cause murder nor can the accused plead lack of knowledge that such injuries would lead to death, therefore, we are of the opinion that the High Court erred in altering the sentence awarded by the trial court under Section 302 IPC to one under Section 304 Part II. 11. 11. Learned counsel appearing for the respondents as stated above relied upon a judgment of this Court in the case of Rayavarapu Punnayya1 We have gone through the said judgment of this Court where this Court after discussing various facets of the case held: (SCC pp. 388-89, paras 21-22) "21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal Connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in Section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Penal Code. 22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages." 12. According to us this judgment does not help the respondents. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages." 12. According to us this judgment does not help the respondents. On the contrary, if we apply the principles laid down in that case to the facts of this case we are of the opinion that the present case is clearly incapable of being brought under Exception 4 of Section 300 IPC as contended by the learned counsel for the respondents. Exception 4 to Section 300 IPC reads thus: "Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner." 13. Bearing in mind the various requirements of Exception 4 to Section 300 IPC, if we analyse the facts of this case we find that the accused having sufficient motive to kill the deceased came to the house of the deceased armed with axes and sticks which would in itself show that the incident is not one which had taken place in a sudden fight or in the heat of passion upon a sudden quarrel. Therefore, we are of the considered view that the facts of this case do not fall under Exception 4 to Section 300 IPC. 14. As stated above, learned counsel for the respondent-accused then took us through the evidence led by the prosecution to support his case that the respondent-accused are entitled to an acquittal because the findings of the two courts below are unsustainable in law. The main argument in this is that in the cross-examination of the eyewitnesses PWs 3, 6 and 7 have made some improvements or there are omissions in the statements given by them to the investigating officer under Section 161 CrPC. We have noticed that the so-called omissions and improvements all pertain to sequence of attack on the deceased. In a situation like the one in this case it will be humanly very difficult to remember each and every act of the accused persons; therefore, there will be some likelihood of variation in the evidence of different witnesses. We have noticed that the so-called omissions and improvements all pertain to sequence of attack on the deceased. In a situation like the one in this case it will be humanly very difficult to remember each and every act of the accused persons; therefore, there will be some likelihood of variation in the evidence of different witnesses. Therefore, the courts will have to consider these differences in the context of the case as a whole and in the instant case the courts have done exactly the same. Having perused the evidence ourselves, we are satisfied that the two courts below are justified in coming to the conclusion that the incident as projected by the prosecution had taken place and the accused are guilty of causing death of the deceased and injuries to others. Hence we find no reason to differ with the said findings of the two courts below, therefore, this argument of the learned counsel for the respondent-accused has to be rejected. 15. For the reasons stated above, this appeal succeeds and the finding of the High Court in regard to the nature of offence is set aside. We restore the judgment of the trial court by holding that the respondents are guilty of the offence punishable under Section 302 read with Section 149 IPC and sentence them to undergo imprisonment for life. All other convictions imposed by the two courts below are also confirmed. If the respondents are on bail, their bail bonds are cancelled.