JUDGMENT - BRAHME P.S., J.:---The appellants and their son Pradeep Pundalik Gopale were tried for murder of one Vasanta Kisanaji Hendawe, r/o. village Gokulsara which comes under Police Station, Mangrul Dastagir for the offence under section 302 of the Indian Penal Code before the Additional Sessions Judge, Amravati in Sessions Trial No. 96/96. At the trial, the prosecution examined in all nine witnesses. The learned Sessions Judge passed the judgment and order dated 3rd July, 1999 convicting appellant No. 1 Pundalik for the offence under section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for six months. Appellant No. 2 and original accused Pradeep were acquitted of the offence punishable under section 302 of Indian Penal Code. However, appellant No. 2 Suman Pundlik Gopale was convicted for the offence under section 326 of Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for three months. The appellants have challenged in this appeal the judgment of conviction and sentence passed against them. 2.The incident which gave rise to this prosecution against the appellants, took place on 9-5-1996 in front of house of appellants and deceased Vasanta. At the time of occurrence, at about 12.00 noon, deceased Vasanta was stacking dry stems of cotton near his residential house. His wife Kantabai (P.W. 2) and son Jayant (P.W. 3) were helping him. When their work of stacking the stems was going on, appellant No. 1 and his son (original accused No. 2) arrived there in a bullock cart which was also loaded with dry cotton stems. The accused released bullocks from the cart and came to the place where deceased was stacking the stems of cotton crop. It is alleged that both of them objected the deceased for stacking the stems of cotton crop. Then there ensued hurling of abuses between them and the deceased. Appellant No. 1 gave a call to his wife i.e. appellant No. 2 and asked her to bring an axe. It is alleged that original accused No. 2 was armed with stick. It is alleged that both of them objected the deceased for stacking the stems of cotton crop. Then there ensued hurling of abuses between them and the deceased. Appellant No. 1 gave a call to his wife i.e. appellant No. 2 and asked her to bring an axe. It is alleged that original accused No. 2 was armed with stick. When their quarrel was going on, Namdeo (P.W. 1), who happens to be Police Patil of village Gokulsara, intervened and tried to pacify appellant No. 1 and the deceased and then, he proceeded further. But after he left the place and when appellant No. 2 brought axe and gave it to appellant No. 1, appellant No. 1 at once gave a blow by the axe by its blunt end on head of the deceased and inflicted a severe bleeding injury on his head, as a result of which the deceased collapsed and fell down in Gutter, which was by the side of heap of cotton stems. He immediately succumbed to the head injury. 3.Later on, police Patil Namdeo Arguje when came to know about death of deceased Vasanta, went to the Police Station, Mangrul Dastagir and lodged report Exh. P-9. On the basis of the report, offence was registered under section 302 of Indian Penal Code against appellant No. 1 by P.S.I. Tayde (P.W. 9) who was then P.S.O. attached to Police Station, Mangrul Dastagir. He then proceeded to the place of incident and found dead body of Vasanta lying near the Gutter. He prepared spot panchanama (Exh. P-12) and sent the dead body to P.H.C. Dhamangaon Railway for autopsy. The accused were arrested. When P.S.I. Tayade returned to the Police Station, he found that appellant No. 1 had appeared in the Police Station of his own and he also produced one axe which he carried with him. P.S.I. Tayade arrested appellant No. 1 by making arrest panchanama (Exh. P-26) in presence of panch witnesses Sheikh Jabbar Sheikh Abdul (P.W. 7) and Devanand Borkute (P.W. 8). The axe (article No. 6) produced by appellant No. 1 that time came to be seized under seizure memo (Exh. P-23). It was noticed that there were stains of blood on blunt end of the axe. On the same day, one baniyan of appellant No. 1, on which there were stains of blood, was seized under seizure memo (Exh. P-25). 4.Dr. P-23). It was noticed that there were stains of blood on blunt end of the axe. On the same day, one baniyan of appellant No. 1, on which there were stains of blood, was seized under seizure memo (Exh. P-25). 4.Dr. Darda (P.W. 6), who was the then Medical Officer attached to the Primary Health Center, Dhamangaon Railway, carried out autopsy on the dead body of Vasanta and submitted post-mortem report (Exh. 20). While conducting autopsy, Dr. Darda found one external injury i.e. lacerated trauma over the right side of occipital region 3" back to right ear of size 4 cm x 1 cm x 2 cm, deep with depressed fracture of occipital bone. On internal examination, on dissection of the body, he found injuries corresponding to the external injuries. The corresponding injury was lacerated trauma over right side of occipital region and depressed fracture of occipital bone. He noted that the brain matter had come out after receiving blow by the deceased. In his opinion, cause of death was shock due to depressed fracture of occipital bone. Dr. Darda, in his evidence before the Court, has stated that the injury found on dead body was possible by blunt and hard end of the weapon. He, accordingly, submitted his opinion report (Exh. P-21), wherein he has stated that the injury in question was possible by hard and blunt end of the axe (article 6). He opined that the external injury corresponding to the internal injury was sufficient to cause death in the ordinary course of nature. He also stated that if a forceful blow by blunt side of the axe is given, the internal injury is possible. 5.P.S.I. Tayde, after completing the investigation, filed charge-sheet against the appellants and accused Pradeep in the Court of Judicial Magistrate, Dhamangaon Railway who, in turn, committed the case to the Court of Sessions, Amravati. 6.Before the learned Additional Sessions Judge, the accused appellant pleaded not guilty and claimed to be tried. At the trial, prosecution examined in all nine witnesses including Namdeo Arjune (P.W. 1), Police Patil who immediately lodged complaint (Exh. P-9) in the Police Station, Kanta Bhendwe (P.W. 2) widow of the deceased, Jaywant Hindwe (P.W. 3) son of the deceased, who claimed to be an eye-witness to the incident, Ambadas Uikey (P.W. 5) who was also claimed to be an eye-witness, Dr. P-9) in the Police Station, Kanta Bhendwe (P.W. 2) widow of the deceased, Jaywant Hindwe (P.W. 3) son of the deceased, who claimed to be an eye-witness to the incident, Ambadas Uikey (P.W. 5) who was also claimed to be an eye-witness, Dr. Darda (P.W. 6), Sheikh Jabbar Sheikh Abdul (P.W. 7) and Devanand Borkute (P.W. 8) who acted as panchas for seizure of the axe from appellant No. 1 when he was arrested and P.S.I. Tayade (P.W. 9) who carried out investigation in the matter. Defence of the appellants was of total denial, though some part of evidence showing presence of witnesses Kanta and Jaywant at the place of occurrence is not disputed. In addition to that, appellants also propounded a theory that deceased Vasanta died accidental death. Appellant No. 1 in his examination under section 313 of Code of Criminal Procedure in reply to question No. 43 stated thus : "Deceased Vasanta was arranging cotton stems. At that time, we came with bullock cart. Accused No. 2 Pradeep released the bullocks from cart. Accused No. 2 carried the bullock to a distance of 40 to 50 ft. for typing. I asked him now to arrange the cotton stems at that place as I used to stack cotton stems there. Thereupon the deceased uttered whether that place belongs to my father. Then, he uttered that he would come and then he jumped from the heap of cotton stems, then he slipped and fell on the stones and gutter, then I came back to home." The learned Sessions Judge, accepting the evidence of witnesses Kanta and Jaywant coupled with the medical evidence, found that appellant No. 1 assaulted deceased Vasanta with the axe giving a blow on his head by blunt end of the axe and on that count, he found appellant No. 1 guilty for the offence under section 302 of the Indian Penal Code and accordingly, appellant No. 1 came to be sentenced. So far as appellant No. 2 is concerned, the learned Sessions Judge found that as she has provided the axe to appellant No. 2, with which appellant No. 1 assaulted the victim, she was found guilty of the offence under section 326 of the Indian Penal Code and accordingly, she was convicted and sentenced. So far as appellant No. 2 is concerned, the learned Sessions Judge found that as she has provided the axe to appellant No. 2, with which appellant No. 1 assaulted the victim, she was found guilty of the offence under section 326 of the Indian Penal Code and accordingly, she was convicted and sentenced. So far as accused No. 2 Pradeep is concerned, the learned Sessions Judge found that no offence is made out against him and, therefore, he was acquitted. As stated earlier, the appellants have challenged their conviction and sentence passed against them in this appeal. 7.We have heard Mr. Patil, the learned Counsel for the appellants and Mr. Ahirkar, the learned A.P.P. for the respondent-State. 8.We have already referred to the medical evidence in this case. Defence has not challenged the medical evidence. Dr. Darda has candidly opined that victim Vasanta died as a result of head injury he sustained and he found that there was corresponding internal damage and the injury he had sustained was sufficient in the ordinary course of nature to cause death. It is no more in dispute that victim Vasanta died instantaneously when he fell down in the gutter. It is not disputed that Vasanta died on account of the head injury he sustained. There is, however, controversy as to how he died. According to prosecution, deceased Vasanta died on account of the head injure inflicted by appellant No. 1 by inflicting a blow with the axe (article 6). As against that, it is defence version that the deceased fell down from the heap and as a result of that, he sustained head injury when he fell down in the gutter and as a result of sustaining head injury in that manner, he died. That is how, as per the defence story, the death of victim Vasanta was accidential one. It has to be stated at this juncture that defence is placing reliance on the opinion given by Dr. Darda in his cross-examination wherein he has stated that if a person jumps from cotton stem heap having height of about 7 ft. to 8 ft. and in the process, if he slips and falls on the gutter coming his right side head in contact of stony floor of the gutter, the injury is possible. Darda in his cross-examination wherein he has stated that if a person jumps from cotton stem heap having height of about 7 ft. to 8 ft. and in the process, if he slips and falls on the gutter coming his right side head in contact of stony floor of the gutter, the injury is possible. In other words, according to learned Counsel for defence, this opinion expressed by the Medical Officer probabalises theory of accidental death of deceased Vasanta, as suggested by the defence. 9.In earlier part of the judgment, we have said that presence of deceased, his wife Kanta and son Jayant at the time of occurrence, as also presence of appellant No. 1 is not disputed. To substantiate this, we may refer to question Nos. 5, 6 and 7 put to appellant No. 1 in his examination under section 313 of the Code of Criminal Procedure and his replies to these questions. The question No. 5 was "P.W. 2 Kanta has deposed that on the date of incident at about 11.00 a.m. her husband i.e. deceased was depositing the cotton stems in front of the house. What do you want to say in this regard?". The answer given by appellant No. 1 was "It is true". 10.The question No 6 was that "Kanta (P.W. 2) has further deposed that she and her son Dinesh were helping the deceased to deposit cotton stems. What do you want to say about this ?" The question No. 7 to the effect that "Kanta (P.W. 2) has deposed that at that time you accused Nos. 1 and 2 came to your house with bullock cart which was then loaded with cotton stem. What do you want to say about it." The reply was in the positive. 11.According to prosecution witness Namdeo Arjune (P.W. 1) he had been to the place of occurrence on that day, and he noticed that some sort of verbal exchange of words and abuses was going on between deceased and the appellant. Witness Namdeo, in his evidence, has stated about these facts. Where this evidence of witness Namdeo was put to appellant No. 1 in his examination under section 313 of the Code of Criminal Procedure, he admitted the same to be true. He admitted that accused No. 1 came to his house with bullock cart which was loaded with cotton stems. Witness Namdeo, in his evidence, has stated about these facts. Where this evidence of witness Namdeo was put to appellant No. 1 in his examination under section 313 of the Code of Criminal Procedure, he admitted the same to be true. He admitted that accused No. 1 came to his house with bullock cart which was loaded with cotton stems. He also admitted that witness namdeo Arjune while proceeding on bicycle and on the way to village Borgaon, found deceased Vasanta putting or depositing the stems of cotton in front of his house. So it clearly shows presence of appellant No. 1 and deceased at the place of occurrence and also that of witness Kanta and her son Dinesh at the place of occurrence is not disputed. Prosecution has examined witness Jaywant (P.W. 3), who is also son of the deceased Vasanta and according to him, he was present along with his mother at the place of occurrence. Appellant in reply to question No. 15 has admitted the claim of witness Jaywant that on the day of incident his father was depositing cotton stems in front of his house and he and his mother (witness Kanta) were assisting him. In this admission by appellant No. 1, in our opinion, emphasis is on he factum of presence of witnesses Kanta and Jaywant. That is very material as both these witnesses have been claimed as eye-witnesses to the incident. 12.Both these witnesses, in their evidence before the Court, have categorically stated that while the work of stacking cotton stems was going on, the appellant along with his son Pradeep came there with bullock cart which was loaded with cotton stem. After releasing the bullocks from the cart, appellant No. 1 came near the heap of cotton stems and abused deceased Vasanta. However, deceased vasanta remained silent. Thereafter appellant No. 1 gave a call to appellant No. 2 asking her to bring the axe. When she brought the axe, appellant No. 1 dealt a blow with the axe on the head of deceased and as a result of that, deceased fell down in the gutter and he sustained bleeding injury. Both the witnesses have stated that the deceased had sustained bleeding injury on the head and the brain matter had come out. When she brought the axe, appellant No. 1 dealt a blow with the axe on the head of deceased and as a result of that, deceased fell down in the gutter and he sustained bleeding injury. Both the witnesses have stated that the deceased had sustained bleeding injury on the head and the brain matter had come out. So far as the factum of sustaining injury, even as to the extent of the injury and the nature of injury, the claim by these two witnesses is substantiated and supported by the medical evidence about which there is no dispute. The trial Court has accepted the evidence of both these witnesses so far it relates to the part played by appellant No. 1 in assaulting deceased with the axe. Both these witnesses have been thoroughly cross-examined by the defence. But on the material particulars the evidence given by these witnesses remained unshaken. No material has been brought or elicited in their cross-examination by the defence so as to discredit their testimony. It is, no doubt true that in the cross-examination of witness Kanta some omissions have been brought. We have carefully considered the omissions and in our opinion, the omissions which have been brought in her evidence are of insignificant nature as the basic claim by witness Kanta regarding assault by appellant No. 1 with the axe on the deceased is in no way discredited or rendered doubtful. Both the witnesses have stoutly denied the suggestion by defence that the deceased, during the exchange of words , jumped from the heap of the cotton stems and fell in the gutter of stones. No material has been brought on record and particularly, in the evidence of these two witnesses, to show that the deceased jumped from the heap and fell in the gutter and thereby sustained head injury. Presence of both witnesses is not disputed. We, therefore, found the evidence of both these witnesses cogent, consistent and reliable. The trial Court has rightly accepted the evidence of both these witnesses. 13.Prosecution has examined witness Namdeo Arjune. He has not supported prosecution. However, prosecution did not claim witness Namdeo Arjune as an eye-witness to the incident. The fact that this witness Namdeo had arrived at the place of occurrence is not disputed. The trial Court has rightly accepted the evidence of both these witnesses. 13.Prosecution has examined witness Namdeo Arjune. He has not supported prosecution. However, prosecution did not claim witness Namdeo Arjune as an eye-witness to the incident. The fact that this witness Namdeo had arrived at the place of occurrence is not disputed. We have already referred to his evidence and the fact that his evidence to that extent and also to the extent that he immediately went to the Police Station and lodged report about occurrence, is not disputed by defence. In his evidence, he did state as to verbal exchange of words between appellant and the deceased. However, in his evidence, he has declined to support prosecution case that the axe was with appellant No. 1. In fact, in his report Exh. P-9, he has stated that the axe with appellant No. 1 or that he saw the axe with appellant No. 1 at the time when he noticed exchange of words between appellant No. 1 and the deceased. But still he had audacity to say that the axe was in the bullock cart. This witness was cross-examinationed by the learned A.P.P. after he was declared hostile and in his cross-examination, the improvement made by this witness has been duly proved in respect of the axe. The Investigating Officer P.S.I. Tayde has also confirmed in his evidence that witness Namdeo has not stated in his supplementary statement the fact that the axe was in the bullock-cart. It is significant to note that though this witness Namdeo was cross-examined by the defence, nothing has been brought in his cross-examination in respect of this improvement made by this witness as regards the axe. Therefore, inspite of the fact that the witness was hostile to prosecution, his evidence in respect of other facts and circumstances attending the case, thus lends assurance to the evidence of witnesses Kanta and Jaywant. In his report (Exh. P-9), the contents of which he had admitted, there is there is reference to the fact that deceased Vasanta was assaulted with the axe by appellant No. 1. In our opinion, this lends assurance to the claim of witnesses Kanta and Jaywant that appellant No. 1 inflicted blow on the head of deceased Vasanta with the axe. 14.We refer to the evidence of witness Ambadas Uikey (P.W. 5). In our opinion, this lends assurance to the claim of witnesses Kanta and Jaywant that appellant No. 1 inflicted blow on the head of deceased Vasanta with the axe. 14.We refer to the evidence of witness Ambadas Uikey (P.W. 5). It is true that this witness also did not support the prosecution. It is very material to note that even the trial Court has observed that this witness was claimed to be an eye-witness to the incident, but when his evidence is scrutinized, it is found that he did not claim to be an eye-witness to the incident. His presence at the place of occurrence is not disputed. He has also stated about the same in his evidence before the Court. But, he was declared hostile because in his examination-in-chief he stated that deceased Vasanta and appellant No. 1 Pundalik were challenging each other and thereafter, deceased Vasanta jumped from the heap of cotton stems and fell in the gutter. As this witness has been declared hostile, his evidence is of no assistance either to prosecution or to the defence. But, one thing is very clear that in his cross-examination by prosecution side, it has been brought that his statement that the deceased Vasanta jumped from the heap of cotton stems was an improvement made by him and obviously, for the reason that in his statement recorded by the police during the course of investigation under section 161 of the Code of Criminal Procedure, no such statement was made by him. This has been duly proved through the evidence of Investigating Officer P.S.I. Tayde who recorded his statement. Therefore, whatever the witness has stated in his examination-in-chief regarding the deceased having jumped from the heap of cotton and fallen in the gutter, cannot be placed reliance on and it is in that context that the evidence of this witness is of no assistance to the defence in support of defence story that the deceased had sustained injury by fall from the heap of cotton stems. 15.The learned Counsel for the appellants, vehemently submitted that when, admittedly, the deceased was on the heap of cotton stems which was of the height of 7 to 8 ft. it does not stand probable that the deceased would sustain injury on his head on account of inflicting blow by the person who is standing on ground. 15.The learned Counsel for the appellants, vehemently submitted that when, admittedly, the deceased was on the heap of cotton stems which was of the height of 7 to 8 ft. it does not stand probable that the deceased would sustain injury on his head on account of inflicting blow by the person who is standing on ground. The learned Counsel further submitted that if that possibility is ruled out the defence version that the deceased sustained injury as a result of fall from the heap stands probable and that falsifies the claim of witnesses Kanta and Jaywant. We have carefully gone through the evidence of both the witness Kanta and Jaywant. It is no doubt true and also borne out on the evidence on record that initially deceased Vasanta was on the heap of cotton stem which was of the height of about 7 to 8 ft. It is also borne out on the evidence on record that appellant No. 1 when gave call to appellant No. 2 to bring axe, he was standing on ground near the heap. But there is nothing on record to show that the deceased remained on the heap of cotton stems when appellant inflicted blow with the axe. In this context, we refer to the vernacular (Marathi) version of witness Jaywant which was brought in his cross-examination by the defence. We re-produce the relevant portion of Marathi version of witness Jaywant as under:-- ^^TksOgk vkjksih ua- 1 ;kus dq gkMhus ekjys R;kosGh ek>s ofMy tfeuhoj gksrs- (emphasis is supplied by us) dq gkMhpk okj ykXkY;koj ek>s ofMy XkVkjkr iMys-^^ This version clearly shows that when blow was inflicted by appellant No. 1, deceased Vasanta was on the ground. This shows that when the assault was made on him he was not on the heap of cotton stems, though initially he was there. We have already stated that witness Kanta has also not stated in her evidence nor it is brought in her cross-examination by the defence that when the blow was inflicted, deceased was on the heap of cotton stems. So far as witness Jaywant is concerned, in his examination-in-chief he has nowhere stated that his father was on the heap of cotton stems when assault was made by appellant No. 1 with the axe. So far as witness Jaywant is concerned, in his examination-in-chief he has nowhere stated that his father was on the heap of cotton stems when assault was made by appellant No. 1 with the axe. As against that, in his cross-examination by the defence, he has clarified by saying that his father was on the ground when appellant No. 1 assaulted him with the axe. This evidence clinclingly goes to show that the appellant assaulted the victim when he was on the ground. Therefore, the submission of the learned Counsel that it is not probable that the deceased would have sustained injury as a result of blow by the axe when he was on the heap of cotton stems is not correct. 16.The trial Court has elaborately dealt with the manner in which the deceased came to be assaulted by appellant No. 1 with the axe. Though the medical evidence on record shows the possibility of head injury being caused by fall from the heap that cannot be accepted having regard to clinching direct evidence of witnesses Kanta and Jaywant showing that the victim Vasanta sustained head injury as a result of assaulted by appellant No. 1 with the axe. 17.We also considered the circumstances that appellant No. 1 on his own surrendered before the police when he went to the Police Station on the same day carrying with him the axe (article 6). Seizure of axe from the appellant at that time is substantiated by the evidence of panch witnesses Sheikh Jabbar (P.W. 7) and Devanand (P.W. 8) coupled with the evidence of P.S.I. Tayade (P.W. 7). What is significant is the fact that the factum of seizure of the axe from appellant No. 1 in the Police Station as stated by these witnesses is not specifically challenged by the defence. In our opinion, this circumstance of seizure of the axe from appellant No. 1 in the Police Station, when he himself appeared in the Police Station has a significance of its own. In the first place, when the defence version was that the deceased sustained injury as a result of fall from the heap, there was no propriety for appellant No. 1 to appear in the Police Station and that too, carrying the axe (article No. 6) with him. In the first place, when the defence version was that the deceased sustained injury as a result of fall from the heap, there was no propriety for appellant No. 1 to appear in the Police Station and that too, carrying the axe (article No. 6) with him. In our opinion, this itself is additional reason to discard the defence version of deceased having sustained injury as a result of fall from the heap. 18.Another significant fact is that there were stains of blood on the but end of the axe as could be seen from the recital of the seizure memo (Exh. 23) and also as stated by P.S.I. Tayade. This fact is not disputed by the defence. It is true that no effort was made to send the articles seized including the axe during the course of investigation to the Chemical Analyser. But the fact remains that the axe (article 6) which was seized from appellant No. 1 had stains of blood which fact has not been disputed by the appellants. In our opinion, this is a circumstance incriminating in nature showing the complicity of appellant No. 1 commission of the crime. 19.There is also seizure of Baniyan of appellant No. 1 under the seizure memo (Exh. P-25). It is a matter of record that there were stains of blood on his baniyan. Appellant No. 1 has offered no explanation regarding existence of blood stains on his baniyan. On the other hand, existence of blood stains on the baniyan of the appellant No. 1 is not controverted by appellant No. 1. This, in our opinion, is again an incriminating circumstance against appellant No. 1. So on the evidence on record and on facts and circumstances of the case, it is established that appellant No. 1 has assaulted victim Vasanta on his head with the axe causing severe fatal injury as a result of which he died. 20.The learned Counsel for the appellants submitted that as per the prosecution case, appellant Pundalik dealt blow with the axe on the head of deceased while there was exchange of words between them and at that time, they were standing facing each other. He pointed out that the solitary injury sustained by deceased was lacerated trauma over right side of occipital region 3" back to the right ear. He pointed out that the solitary injury sustained by deceased was lacerated trauma over right side of occipital region 3" back to the right ear. Therefore, his submission is that having regard to the location of injury, it is not possible that the deceased would have sustained such injury when the blow is inflicted by the person standing in front of him. We do not think that there is any force in this submission. No material is brought on record showing exact position vis a vis the victim and appellant No. 1 and particular, at the time when the blow was given with the axe by appellant No. 1. Both the prosecution witnesses have clinchingly stated that while the victim was standing, appellant No. 1 dealt the blow with the axe on his head and as a result of that, victim Vasanta sustained injury on his head. The Medical Officer has also admitted the possibility of particular injury being caused by inflicting blow with the axe. Therefore, impossibility and improbability of that particular injury being caused as submitted by the learned Counsel for the appellant is only hypothetical. 21.The learned Counsel submitted that the incident had occured on the spur of moment following hot exchange of words and the abuses between appellant No. 1 on one side and deceased Vasanta on the other. Appellant No. 1 had no intention to cause death of deceased. Further no knowledge and intention could be attributed to him that the injury which he caused was sufficient in the ordinary course of nature to cause death. Admittedly, the appellant has inflicted a single blow with the axe. Therefore, the learned Counsel submitted that the offence of murder under section 302 of the Indian Penal Code is not made our and that having regard to the facts and circumstances, appellant No. 1 can be said to have committed the offence of culpable homicide not amounting to murder available under section 304-II of the Indian Penal Code. 22.It is not disputed that, as the evidence stands, appellant No. 1 has inflicted a single blow with the axe on the head of deceased. It is also true that initially there ensued altercation between the two. But the nature of injury that has been inflicted certainly goes to show the intention on the part of appellant No. 1 while inflicting the blow. It is also true that initially there ensued altercation between the two. But the nature of injury that has been inflicted certainly goes to show the intention on the part of appellant No. 1 while inflicting the blow. It is a matter of record that while there was altercation appellant No. 1 asked appellant No. 2 to bring the axe. After she brought the axe and gave it to appellant No. 1, he at once inflicted blow on the head of the victim. This shows that appellant No. 1 was aware that he was using a deadly weapon i.e. axe and intentionally he used the axe for inflicting blow on the head. This further shows that while inflicting blow with the axe the appellant intentionally dealt a blow on the vital part of the body. It is not the case that accidentally the axe or the blow with the axe landed on the vital part of the body. In addition to this, having regard to the extent of injury that has resulted into death of the victim, one can imagine the force with which the blow was inflicted and thereby intention to cause death could be spelt. The injury noticed by the Medical Officer Dr. Darda was lacerated trauma over right side of occipital region 3" back to right ear and on palpation there was depressed fracture of occipital bone. There was corresponding internal damage wherein there was lacerated trauma over right side of occipital region. Brain matter had come out. Deceased died instantaneously on the spot. Taking into consideration all these facts and circumstances, it is very difficult that the appellant did not intend to cause that particular injury and it being a case of single blow, the offence would be that of under section 304-II of the Indian Penal Code. 23.We are fortified in our view that the offence committed by the appellant was under section 302 of the Indian Penal Code by the observations of the Apex Court in (Mahesh Balmiki @ Munna v. State of M.P.)1, reported in A.I.R. 1999 S.C. 3338. The Apex Court observed thus: "There is no principle that in all cases of single blow section 302 of the Indian Penal Code is not attracted. The Apex Court observed thus: "There is no principle that in all cases of single blow section 302 of the Indian Penal Code is not attracted. Single blow may, in some cases, entail conviction under section 302 of I.P.C., in some cases under section 304-A of I.P.C. and in some other cases under section 326 of I.P.C. The question with regard to the nature of offence has to be determined on the facts and circumstances of each case. The nature of injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him." 24.In the instant case, appellant No. 1 though inflicted a single blow with the axe, deceased was attacked by him at once and as such the deceased had no opportunity to save himself. The appellant has given fatal axe blow on the head of deceased. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed the knowledge that the axe blow given by him is so eminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. Therefore, the conviction of appellant under section 302 I.P.C. is proper. We do not think that the trial Court has committed any error in convicting appellant No. 1 for the offence under section 302 of the Indian Penal Code. 25.The learned Counsel for the appellant submitted that so far as appellant No. 2 is concerned, the trial Court has committed an error in holding her guilty for the offence under section 326 of the Indian Penal Code inasmuch as the only role played by her was of providing the axe to appellant No. 1. 26.When appellant No. 2 gave the axe to appellant No. 1, it is obvious that she did know that her husband appellant No. 1 would use the axe for inflicting blow on the deceased. It is true that she could not be said to have shared the common intention of appellant No. 1 to commit murder of the deceased. 26.When appellant No. 2 gave the axe to appellant No. 1, it is obvious that she did know that her husband appellant No. 1 would use the axe for inflicting blow on the deceased. It is true that she could not be said to have shared the common intention of appellant No. 1 to commit murder of the deceased. So the trial Court rightly acquitted her of offence under section 302 of I.P.C. But, at the same time, knowledge could be attributed to her that by inflicting blow with the axe, grievous injury would be caused to the deceased. When appellant No. 2 gave the axe to appellant No. 1, in all probability she must have been aware that he would use the axe with the intention to cause serious injury on his head. Thereby it has to be held that appellant No. 2 had implicit knowledge and intention that severe injury would be inflicted on the deceased. Therefore, the trial Court was right in convicting appellant No. 2 for the offence under section 326 of the Indian Penal Code. 27.In the result, we do not find any reason to interfere with the judgment of conviction and sentence passed by the trial Court against the appellants. The appeal merits no consideration. The same is, therefore, dismissed. Appeal dismissed. -----