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2006 DIGILAW 698 (UTT)

NAVEEN CHANDRA v. STATE

2006-12-05

J.C.S.RAWAT, RAJEEV GUPTA

body2006
JUDGMENT Per:- Hon’ble J.C.S.Rawat, J. 1. This Criminal Appeal has been directed against the judgment and order dated 09.12.1993 passed by Shri M.A. Khan, the then Sessions Judge, Pithoragarh in S.T. No.36/1992, State Vs. Naveen Chandra and another convicting the appellants u/s 302 r/w 34 I.P.C. and sentencing them to undergo R.I. for life. 2. The facts, in a nutshell, are that on 06.05.1991 the complainant-Yashpal Verma (PW2) lodged an F.I.R. Ex.ka.2 at the police station Didihat alleging therein that on 05.05.1991 at about 9:30 p.m. his father Lallu Lal Verma (deceased) was trying to extinguish the fire of the forest at Kasba Bhagichaura because it was heading to the house of Lallu Lal Verma. It was further alleged that the appellant-Naveen Chandra reached there and started hurling abuses on his father. Thereafter, Bipin Chandra (real brother of Naveen Chandra) also reached there and both the appellants assaulted the deceased with knife and screwdriver (Pechkas), due to which the deceased fell on the ground and became unconscious. It was further alleged that there was sufficient light coming from the electric bulbs fitted on the road. The incident was also witnessed by Bansidhar-PW3, Ghanshyam, Yashpal Verma-PW2, Dwarika Lal-PW5 and others. The accused persons fled away from the scene of occurrence. Thereafter, the injured-Lallu Lal Verma was taken to Didihat Hospital where the doctor declared him as dead. Thereafter, the complainant-Yashpal Verma- PW2 lodged a written report at the police station Didihat from where it was transferred to police station Askote because the occurrence took place in the jurisdiction of police station Askote. A case was registered at police station Askote. The police prepared the panchayatnama (Ex.Ka.14) of the dead body of the deceased and also prepared photo lash (Ex.Ka.15), challan lash (Ex.Ka.17). The dead body of the deceased was sent to the District Hospital, Pithoragarh for postmortem. The investigation was conducted by Vinod Kumar Pant, S.O. Ashkote. Vinod Kumar Pant-PW7 also prepared the site plan (Ex.Ka.5). He also took the sample of blood stained earth from the place of occurrence and prepared the memo thereof (Ex.Ka.6). A blood stained ‘baniyan’ (undershirt) of the deceased was also taken into possession by the I.O. Thereafter, the Investigating Officer arrested the appellants and discovered a ‘Sooja’ on pointing of the appellant-Bipin Chandra. After completing the investigation, the I.O. had submitted the chargesheet (Ex.Ka.10) against the appellants. 3. A blood stained ‘baniyan’ (undershirt) of the deceased was also taken into possession by the I.O. Thereafter, the Investigating Officer arrested the appellants and discovered a ‘Sooja’ on pointing of the appellant-Bipin Chandra. After completing the investigation, the I.O. had submitted the chargesheet (Ex.Ka.10) against the appellants. 3. The accused/appellants were charged u/s 302 I.P.C. r/w 34 I.P.C. The accused/appellants denied the charges and claimed trial. 4. The prosecution is support of its case examined Dr. R.C. Joshi, PW1 who was the medical officer. He conducted the post mortem of the deceased on 06.05.1991 at 1:30 p.m. and found the following ante-mortem injuries on the person of the deceased :- Front of body 1. Abraded contusion right arm near elbow inner side (middle side) size 2 cm x 0.2 cm. (above elbow). 2. Abraded contusion left knee size 1.5 cm x 0.2 cm above left knee. Back of body One punctured wound left infra scapular region 10 cms. Below left scapula and 9 cm. From spine (away). On probing the probe goes deep into thoraces cavity (communitates) and blood oozing from the wound. Wound size 0.8 cm x 0.3 cm x thorax cavity deep. The medical officer opined that the time of death of the deceased was more than twelve hours old. The death of the deceased was caused due to syncope as a result of massive hemorrhage from the punctured wound. The Medical Officer PW1 has proved the post mortem report Ex. Ka. 1. 5. The prosecution had also adduced the evidence of the complainant-Yashpal Verma-PW2 who is the son of the deceased. He is an eyewitness of the incident. He had supported the case of the prosecution. He had further stated in his evidence that in the year 1981 a dacoity was committed at his house in which his sister and father of the appellants were murdered by the dacoits. After that incident, the accused persons had an impression that their father had been murdered during the course of dacoity at the instance of Lallu Lal Verma-deceased. The prosecution had also adduced the evidence of other eyewitness namely, Banshidhar Pant PW3, Dwarika Lal PW5 and Manohar Lal PW7. Head Constable-Fool Chand (PW4) was a formal witness who proved the chick FIR and G.D. by which the case was registered at the police station. Vinod Kumar Pant-PW6 was the Investigating Officer of this case. The prosecution had also adduced the evidence of other eyewitness namely, Banshidhar Pant PW3, Dwarika Lal PW5 and Manohar Lal PW7. Head Constable-Fool Chand (PW4) was a formal witness who proved the chick FIR and G.D. by which the case was registered at the police station. Vinod Kumar Pant-PW6 was the Investigating Officer of this case. He submitted the chargesheet against the appellants after completing the investigation. 6. The accused/appellants were examined u/s 313 Cr.P.C. and they had pleaded not guilty of the offence. They had stated that they had been falsely implicated in this case due to enmity. The defence had not adduced any evidence in its support. 7. The learned trial court on his appreciation of the evidence in the case held the appellants guilty and convicted and sentenced them under section 302 I.P.C. r/w 34 I.P.C. as mentioned above. 8. We have heard learned counsel for the appellants and learned Addl. G.A. for the State. Perused the record carefully. 9. At the outset, it needs to be mentioned here that it is not disputed that the deceased met a homicidal death on account of injuries sustained by him on the date of occurrence. The post mortem report of the deceased shows that the death of the deceased was caused due to syncope as a result of massive hemorrhage from the punctured wound. The Medical Officer has proved the post mortem report Ex. Ka.1. Thus, it is amply established that the deceased met a homicidal death on account of injuries sustained by him. 10. Now, we have to consider whether the appellants were responsible for the injuries sustained by the deceased or not. The prosecution had adduced the eye-account evidence of Yashpal Verma (PW2), who is the son of the deceased. He lodged the first informatiokn report. Yashpal Verma PW2 had stated in his evidence that in the year 1981 a dacoity was committed by the gang of dacoits headed by Dharam Singh at his house in which his sister and the father of the appellants were murdered by the dacoits. After that incident, the appellants had an impression that their father had been murdered during the course of dacoity at the behest of Lallu Lal Verma-deceased. The appellants had been keeping an ill-will against the deceased-Lallu Lal Verma. After that incident, the appellants had an impression that their father had been murdered during the course of dacoity at the behest of Lallu Lal Verma-deceased. The appellants had been keeping an ill-will against the deceased-Lallu Lal Verma. The prosecution had also adduced the evidence of Dwarika Lal PW5, who is the elder brother of the deceased and he was also living at Bhagichaura with his brother Lallu Lal Verma (deceased). Manohar Lal PW7 is another eye-witness of the occurrence. He had stated in his evidence that the deceased was his maternal uncle. Yashpal Verma PW2, Dwarika Lal PW5 and Manohar Lal PW7 had stated in their evidence that on 05.05.1981 at 9 pm or about 9:30 p.m. when Lallu Lal Verma-deceased was trying to extinguish the fire of the forest because it was heading towards his house, the appellant-Naveen Chandra reached there and started hurling abuses on him. The deceased tried to pacify him. Instead of being pacified Naveen Chandra overpowered the deceased and fell him on the ground. In the meantime, the appellant-Bipin Chandra (real brother of Naveen Chandra) also reached at the spot. On the exhortation of Naveen Chandra, Bipin Chandra assaulted the deceased with ‘Sooja’ (Bhutiya), due to which the deceased sustained the punctured wound on his back and fell on the ground and became unconscious. The incident was witnessed by Yashpal Verma PW2, Banshidhar Pant PW3 and Dwarika Lal PW5 and Manohar Lal PW7. Immediately after the incident, the appellants fled away from the place of occurrence after giving threats that yet another murder would be committed. Thereafter, the deceased was rushed to P.H.C. Bhagichaura for medical aid, where doctor advised him to be shifted him to a big hospital. Accordingly, the deceased was taken to Didihat Hospital where the doctor declared him as dead. Thereafter, Yashpal Verma PW2 lodged a written report Ex. Ka. 2 of the occurrence at the police station Didihat. 11. The prosecution had also adduced the evidence of Banshidhar Pant PW3, who had stated that on 05.05.1991 the murder of the deceased-Lallu Lal Verma was committed in the night when the forest wood caught fire. He had further stated that some hot altercations were going on between the appellants and the deceased. Thereafter, he brought the appellant-Naveen Chandra to his house and he did not see the appellants committing the murder of the deceased. He had further stated that some hot altercations were going on between the appellants and the deceased. Thereafter, he brought the appellant-Naveen Chandra to his house and he did not see the appellants committing the murder of the deceased. Thereafter, the deceased was rushed to Didihat Hospital where the doctor declared him as dead. The prosecution sought the permission to cross examine the said witness and the permission was granted. It is well settled position of law that the evidence of the hostile witnesses can also be relied to the extent it supports the prosecution version. Evidence of such witnesses cannot be treated to be washed of the record. It remains admissible in the trial and there is no legal bar to base the conviction on their testimony. The very object of taking evidence is to discover the truth as far as it is humanly possible for the court to do so. The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the Court of its own high duty of attempting to discover the truth. Even when a witness deposes in favour of the case of the party calling him, the Court on a consideration of his evidence may either believe or disbelieve him. Even in such a case, the Court has power and duty of deciding whether or not to believe the witnesses. 12. We will examine the evidence of Banshidhar Pant PW3 in light of the observations made above. Banshidhar Pant PW3 had supported the theory of the prosecution that there was an altercation between the appellants and the deceased on the fateful day and time. It was also stated by PW3 that at the time of incident the forest wood caught fire and the occurrence took place on the road. The defence had not cross examined the witness on this point. The evidence of Banshidhar Pant PW3 is credible and cogent to the above extent. He had only denied to see the appellants committing the murder of the deceased. The evidence of PW3 corroborates the prosecution story to the above extent. His presence at the spot cannot be doubted. 13. Yashpal Verma PW2 is the son of the deceased. The evidence of Banshidhar Pant PW3 is credible and cogent to the above extent. He had only denied to see the appellants committing the murder of the deceased. The evidence of PW3 corroborates the prosecution story to the above extent. His presence at the spot cannot be doubted. 13. Yashpal Verma PW2 is the son of the deceased. The incident took place at about 9:30 p.m. It is natural that he would be present in his house at the time of incident. Dwarika Lal PW5 is an elder brother of the deceased. He had stated that he was living with his brother – Lallu Lal Verma (deceased). Manohar Lal PW7 is also related to the deceased. They are most natural witnesses who could be present at the time of occurrence and presence of these witnesses cannot be doubted at all. Yashpal Verma PW2 had lodged the FIR in which he had mentioned the names of the witnesses, who were present at the spot. The defence had made a lengthy cross examination of all the witnesses, but nothing could be elicited from their evidence which could lead an inference that the prosecution witnesses are not reliable. On the contrary, it is established that the presence of the witnesses was natural at the spot. 14. Learned counsel for the appellants contended that the alleged eye-witnesses of the prosecution are interested witnesses. The eye-witnesses namely, Yashpal Verma PW2, Manohar Lal PW7 and Dwarika Lal PW5 are not trustworthy as they are related to the deceased. The prosecution should have adduced the evidence of independent witnesses who were also present at the time of incident. Learned Addl. G.A. refuted the contention. Although, it is true that the witnesses are related to the deceased but their evidence cannot be discarded on this ground alone. There is no rule of law or prudence which requires that the evidence of a close relation must be discarded for the simple reason i.e. they are related to each other. Yashpal Verma PW2, Dwarika Lal PW5 and Manohar Lal PW7 must be interested to give their evidence so as to convict the appellants for their wrong doings and they would not like to adopt a course by which some innocent person would be convicted in place of the person really guilty of the murder of the deceased. Yashpal Verma PW2, Dwarika Lal PW5 and Manohar Lal PW7 must be interested to give their evidence so as to convict the appellants for their wrong doings and they would not like to adopt a course by which some innocent person would be convicted in place of the person really guilty of the murder of the deceased. In such circumstances, it would not be just and proper to discard their evidence on account of their relationship with the deceased. So far the contention regarding that no independent witness was produced is concerned, learned Addl. G.A. contended that it is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is the quality of the evidence and not the quantity, which is required. It is the evidence available on record is otherwise satisfactorily in nature and can be said to be trustworthy and increase in the number of witnesses cannot be turned up as the requirement of the case. Moreover, it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. So, the witnesses avoid to come to the court. The evidence of prosecution witnesses is consistent and nothing had been elicited from their cross examination which could lead an inference that the evidence is unreliable. The evidence of the prosecution witnesses is credible and cogent. In view of the above discussions, we do not find any force in the contentions advanced by the learned counsel for the appellants. 15. Learned counsel for the appellants further contended that there are certain discrepancies in the evidence of prosecution witnesses. It was pointed out that the complainant- Yashpal Verma PW2 had mentioned in the FIR that the appellants were having a knife and screwdriver (Pechkas) in their hands at the time of incident, whereas the witnesses had not stated in their deposition that the appellants had a knife and screwdriver (Pechkas) at the time of incident. It was pointed out that the complainant- Yashpal Verma PW2 had mentioned in the FIR that the appellants were having a knife and screwdriver (Pechkas) in their hands at the time of incident, whereas the witnesses had not stated in their deposition that the appellants had a knife and screwdriver (Pechkas) at the time of incident. It was further contended that it has come in the evidence of the prosecution witnesses that the deceased at the time of being hit had cried that he had been attacked with a knife by the appellants. It was further contended that knife in fact was neither recovered nor there is any evidence to show that the deceased was hit by the accused persons with any knife and further there is no statement of any eye witnesses to show that the deceased was attacked by the appellants with a knife. The prosecution witnesses had only stated in their evidence that the deceased was assaulted by a “Sooja” (Bhutiya). As such, the prosecution story is not reliable. Learned Addl. G.A. refuted the contentions. There is consistent evidence on record that the deceased was hit by the appellants. The wound sustained by the deceased was on the back side. The learned Sessions Judge has rightly held that when the deceased was hit he cried under an impression that he had been assaulted by the appellants with a knife. There is consistent evidence on record that the deceased was hit by the appellants from behind and the punctured wound sustained by him is also on the back side. The deceased thus might not have been in a position to know as to with what weapon he was being attacked by the appellants, when he was hit he cried under an impression that he had been assaulted by the appellants with a knife. However, those who in fact saw the occurrence have clearly and unambiguously deposed that appellant-Bipin Chandra has assaulted the deceased with a ‘Sooja’. The incident took in the night at about 9:30 p.m. and a scuffle took place between the deceased and the appellants. Yashpal Verma PW2 had an impression that the appellants were having a knife and screwdriver (Pechkas) and that is why he had mentioned the same in the FIR. There is a slight difference between the ‘Sooja’ (Bhutiya) and ‘screwdriver” (Pechkas). Yashpal Verma PW2 had an impression that the appellants were having a knife and screwdriver (Pechkas) and that is why he had mentioned the same in the FIR. There is a slight difference between the ‘Sooja’ (Bhutiya) and ‘screwdriver” (Pechkas). If a person would see one of them with a minor observation, then he cannot differentiate between them. Mere mentioning the screwdriver in place of ‘Sooja’ (Bhutiya) does not make the prosecution story unbelievable. The prosecution witnesses had stated that Bipin Chandra – appellant assaulted the deceased by ‘Sooja’ (Bhutiya). It is well settled position of law that the FIR is not the encyclopedia in which all the details should be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to give the motion to the investigation. The observation differs from person to person and what one may notice, another may not. An object or moment might emboss its imagine on one person’s mind whereas it might go unnoticed on the part of another. By and large the people cannot accurately tell the exact name of the weapons used in the crime and cannot reproduce the very words used by them or heard by them. He can only recall the summary of the incident. It is unrealistic to expect a witness to be a human tape-recorder. The witness cannot be expected to pose a photographic memory and to recall the minor details of an incident. In view of the above discussion, the testimony cannot be discarded only on the ground of minor discrepancies. As such, there is no force in the convention advanced by the learned counsel for the appellants. 16. Learned counsel for the appellants further contended that the conduct of Dwarika Lal PW5 was unnatural immediately after the incident. It is natural conduct of a normal human being to rush with injured person to the hospital more so when he is the brother of the deceased. It is natural conduct of a normal human being to rush with injured person to the hospital more so when he is the brother of the deceased. It was pointed out that Dwarika Lal PW5 did not accompany his brother (injured) to the hospital. He remained at his house. The conduct of the said witness leads to take an inference that his evidence is not credible and cogent. Learned Addl. It was pointed out that Dwarika Lal PW5 did not accompany his brother (injured) to the hospital. He remained at his house. The conduct of the said witness leads to take an inference that his evidence is not credible and cogent. Learned Addl. G.A. refuted the contention. There is no set of rules regarding the natural reaction. The defence had not cross examined the said witness as to why he did not accompany his brother to the hospital. Dwarika Lal PW5 thought it proper to remain in the house to look after the family of the deceased. The prosecution has come with clean hands before the court. There is no set principle of natural conduct. Therefore, no adverse inference can be drawn against the said witness. Such conduct of Dwarika Lal PW5 cannot be a ground to discard his credible and trustworthy evidence. 17. The prosecution had also proved the motive for committing the murder of the deceased. In order to prove the motive, the prosecution had adduced the evidence of Yashpal Verma PW2, who had stated in the evidence that in the year 1981 a dacoity was committed at his house in which his sister and the father of the appellants were murdered by the dacoits. After the incident, the appellants had an impression that their father had been murdered during the course of dacoity at the behest of Lallu Lal Verma-deceased. Therefore, the appellants were keeping an ill-will against the deceased. The evidence of the prosecution on this point is credible and cogent. The defence could not elicit anything from the cross examination. It is also in the evidence that the appellants and the deceased used to quarrel generally after the dacoity. The motive to commit the murder of the deceased is also established by the prosecution. 18. The above inference is lent credence to the fact that Yashpal Verma PW2 who was present at the scene of the occurrence reported the matter to the police station on 06.05.1991 at 12:30 a.m., whereas the incident took place at 9:30 p.m. on 5.5.1991. Thus, the report was lodged within three hours of the incident. The prompt FIR thus inspires confidence that it was not the outcome of due consultation or deliberation. Thus, the report was lodged within three hours of the incident. The prompt FIR thus inspires confidence that it was not the outcome of due consultation or deliberation. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. The fact that the appellants committed the murder of the deceased further stand corroborated by the prompt FIR in which the name of the appellants have been shown. 19. The evidence of Dr. R.C. Joshi PW1 further corroborates the prosecution version. Dr. R.C. Joshi, PW1 conducted the post mortem of the deceased on 06.05.1991 at 1:30 p.m. and found one punctured wound on the back of the deceased. The doctor was of the opinion that the death of the deceased was caused due to syncope as a result of massive hemorrhage from the puncture wound. According to the doctor, the injuries were more than 12 hours old. The Medical Officer had also proved the post mortem report Ex. Ka. 1 and the defence has neither disputed the time of death nor has disputed the cause of death and nothing has come in the cross examination of the medical officer. Thus, the FIR and medical report further support the prosecution case about the commission of the offence, also the mode and manner of the assault and also time and place of the occurrence. 20. The learned trial court had disbelieved the evidence of discovery of ‘Sooja’ at the instance of appellant-Bipin Chandra on the ground that the discovery was made from the open place and the evidence of discovery is not convincing and trustworthy. It is pertinent to mention here that it is not the only evidence in this matter. 20. The learned trial court had disbelieved the evidence of discovery of ‘Sooja’ at the instance of appellant-Bipin Chandra on the ground that the discovery was made from the open place and the evidence of discovery is not convincing and trustworthy. It is pertinent to mention here that it is not the only evidence in this matter. The prosecution had produced the ocular testimony to support the prosecution case. The evidence of prosecution is trustworthy and the appellants can be convicted on the ocular testimony. 21. In view of the foregoing discussion, the prosecution has proved the case beyond reasonable doubt that on 5.5.1991 at about 9:30 p.m. in Bhagichaura the appellants in furtherance of their common intention caused the death of Lallu lal Verma. 22. Learned counsel for the appellants vehemently contended that if the appellants are held guilty for inflicting fatal injury on the person of the deceased – Lallu Lal Verma then, they are liable for culpable homicide not amount to murder as they had lacked the requisite intention to cause the death. It was further contended that the scenario projected by the prosecution clearly rules out the application of Section 302 IPC. The scenario projected by the prosecution clearly shows that the assault was given in the course of a sudden quarrel. There was no premeditation. Only one blow by ‘Sooja’ (Bhutiya) was given. In essence it was contended that Section 302 IPC has no application and in essence Fourth Exception of Section 300 IPC applies. Learned Addl. G.A. refuted the contention and supported the judgment of the trial court. 23. We have given our thoughtful and anxious consideration to the rival contentions of the learned counsel for the appellants. It is not in dispute that the punctured wound was inflicted on the left infra scapular region 10 cms below left scapula and 9 cm from spine (away). Only one punctured wound was found in the postmortem report. Two abraded contusions were found on the dead body of the deceased. One abraded contusion was on the right arm near elbow inner side (middle side) size 2 cm x 0.2 cm and second abraded contusion was on the left knee size 1.5 cm x 0.2 cm. Above left knee. No attempt was made by the appellant-Bipin Chandra to cause serious injury on any vital part of the body of the deceased. One abraded contusion was on the right arm near elbow inner side (middle side) size 2 cm x 0.2 cm and second abraded contusion was on the left knee size 1.5 cm x 0.2 cm. Above left knee. No attempt was made by the appellant-Bipin Chandra to cause serious injury on any vital part of the body of the deceased. The appellant-Bipin Chandra could have caused injury on the head or chest or other vital part of the body of the deceased. Intent which is a state of mind cannot be proved by precise direct evidence; as a fact, it can only be detected or inferred from other factors. Some of the relevant considerations may be nature of the weapon used, the place where the injuries were inflicted, the nature of injuries and the circumstances in which the incident took place. ‘Sooja’ (Bhutiya), which was used in the crime, is not a conventional weapon. The injury was inflicted by ‘Sooja’ (Bhutiya) as projected by the prosecution. If the appellant-Bipin Chandra would have an intention to kill the deceased he would have brought such a weapon by which he could have inflicted grievous injuries on the person of the deceased. The injury was inflicted on the back side of the deceased and according to a layman it cannot be a vital part of the body. If the appellant-Bipin Chandra would have an intention to cause the death of the deceased he would have inflicted injury on the head or chest of the deceased. He would have further repeated the assault on the person of the deceased. There is no evidence that he repeated the assault by the weapon in hand. It is also in the evidence that Naveen Chandra – appellant overpowered the deceased and fell him on the ground. There is no case of the prosecution that other two abraded contusions were caused by the appellant. It is evident that the deceased sustained other injuries by way of fall. No attempt was made by the appellant – Bipin Chandra to cause serious injury on the vital part of the body of the deceased. Now, the circumstances as indicated above lead to take an inference that there was no motive or intention of appellants to cause the death of Lallu Lal Verma (deceased). No attempt was made by the appellant – Bipin Chandra to cause serious injury on the vital part of the body of the deceased. Now, the circumstances as indicated above lead to take an inference that there was no motive or intention of appellants to cause the death of Lallu Lal Verma (deceased). Therefore, the question is whether the offence can be said to be covered by Clause (iii) of Section 300 IPC. Clause (iii) of Section 300 IPC requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts :- the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of deceased- Lallu Lal Verma. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not ensure. In other words, looking at the matter objectively, the injury, which Bipin Chandra intended to cause, did not include specifically the cutting of the left lungs, but to wound Lallu Lal Verma in his back. Therefore, we are of the opinion that Clause (iii) of Section 300 does not cover the case. In as much as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 IPC is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, the appellant-Bipin Chandra did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death, and that also, as we have shown above, was not the intention of the appellants. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death, and that also, as we have shown above, was not the intention of the appellants. Therefore, the second part is also not applicable. The case falls within third part is also not applicable. The case falls within third part of Section 299 and will be punishable under the second part of Section 304 IPC as culpable homicide not amounting to murder. 24. There may be one another aspect of the case. The pivotal plea taken by the appellants relates to the applicability of Exception 4 of 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by First Exception. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden firth; (c) without the offender’s having taken undue advantage or acted in a cruel manner, and (d) the fight must have been with the person killed. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down. In the case in hand, the deceased and his family members were extinguishing the fire of forest because it was heading to the house of the deceased. The appellant-Naveen Chandra hurled abuses upon the deceased and a hot altercation took place between them. When Bipin Chandra saw that there was an altercation between his brother and the deceased he also reached at the spot. Meanwhile, the appellant-Naveen Chandra overpowered Lallu Lal Verma and fell him on the ground. The appellant-Naveen Chandra exhorted and called upon his brother Bipin Chandra to make assault on Lallu Lal Verma. On this, appellant-Bipin Chandra assaulted the deceased with Bhutiya (Sooja) which he was having at that time. Meanwhile, the appellant-Naveen Chandra overpowered Lallu Lal Verma and fell him on the ground. The appellant-Naveen Chandra exhorted and called upon his brother Bipin Chandra to make assault on Lallu Lal Verma. On this, appellant-Bipin Chandra assaulted the deceased with Bhutiya (Sooja) which he was having at that time. Thus, the presence of the assailants at the spot is sudden and there was no premeditation to cause injury on the person of the deceased. When the above factual scenario is tested on the above principles, the conclusion is that the conviction under section 302 IPC cannot be maintained and the conviction has to be altered under Section 304 Part-II IPC. 25. It was further contended that the appellant-Bipin Chandra was convicted under section 302 IPC of common intention. It was further pointed out that so far as appellant Bipin Chandra is concerned, his conviction with the aid of section 34 IPC is not justified in the facts and circumstances of the case. Learned Add. G.A. had support the judgment of the trial court and contended that the appellant-Bipin Chandra had participated in the commission of the offence and as such the trial court had rightly convicted him under section 302/34 IPC. To attract the provisions of section 34 IPC two postulates are indispensable. (1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person, (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons. To attract the applicability of section 34 IPC the prosecution is under obligation to establish that there existed a common intention which requires a prearranged plan, because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention. There is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of moment. Such preconcert or preplanning may develop on the spot or during the course of commission of offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case. In the case in hand, the prosecution has led cogent and reliable evidence of eye-witnesses of the incident. The appellant-Naveen Chandra, who has been convicted under section 302 IPC with the aid of section 34, overpowered Lallu Lal Verma (deceased) by his neck and fell him on the ground . On the exhortation of Naveen Chandra, Bipin Chandra assaulted the deceased with Bhutiya (Sooja). Bipin Chandra arrived at the spot with a ‘Sooja’ (Bhutiya). After assaulting the deceased, the appellants left the scene of occurrence after extending threats that yet another murder shall be committed. Thus, the participation of the appellant – Naveen Chandra cannot be ruled out in this case. Considering the above factual backgrounds, the learned trial court was justified to convict the appellant – Naveen Chandra with the aid of section 34 IPC. As we have already indicated in the preceding paragraph that Bipin Chandra was liable to be convicted under section 304 Part-II IPC instead of section 302 IPC. Naveen Chandra is liable to be convicted under Section 304 Part-II read with 34 IPC instead of section 302/34 IPC. It would be just and proper, looking to the facts of the case, to award custodial sentence of 10 year to each appellant. 26. Accordingly, the appeal is liable to be partly allowed. We, accordingly, after the conviction of the appellant-Naveen Chandra from Section 302/34 IPC to Section 304 Part-II read with 34 IPC. We also alter the conviction of the appellant – Bipin Chandra from Section 302/34 IPC to Section 304 Part-II IPC. Custodial sentence of 10 (Ten) years would meet the ends of justice. 27. The appeal is partly allowed to the aforesaid extent.