JUDGMENT : S. K. KULSHRESTHA, J The two convicted appellants assail the judgment dated 18-6-2001, of the learned Ist Addl. Sessions Judge, Khargone, in Sessions Trial No. 28/2000 whereby while acquitting three co-accused, the appellants have been convicted respectively under sections 302 and 302/34 of the Indian Penal Code and each has been sentenced to imprisonment for life and fine of Rs. 2,000/-, in default of payment of fine, to RI for six months. Bhavsingh has also been convicted under section 323 and sentenced to RI for 3 months. The substantive sentences have been directed to run concurrently. 2. As per the case of the prosecution, on 24-11-1999, Savkar (PW 1) and his brother Premsya returned to their house from the weekly market at about 5:00 p.m., When they were sitting outside the house of Gulab (PW 2), father of the deceased Premsya at about 6:00 p.m., the accused Vahariya came from the side of Sirwel along with Bhaya @ Bhavsingh, Sapa s/o Nasriya, Unga s/o Naharsingh and Gulab s/o Kana. These people drank water in the house of the deceased and thereafter when they came upto the road, they called Premsya but Premsya refused to respond to their call and enraged by his supercilious conduct and his refusal, Vahariya started abusing him and stating that he would set him his place, he shot an arrow which struck in the chest of deceased Premsya. Deceased Premsya started bleeding profusely while the co-accused Bhaya and others started beating him. Father of the deceased then interceded but he was also assaulted. After belabouring these persons, the accused persons fled away. This incident was witnessed by Kahariya (PW 3) and Jwansingh (PW 4). When the deceased was being taken in a bullock-cart to Dr. Verma, the deceased succumbed to his injuries. It was stated that about 8 to 10 days ago the aunt of the deceased, Pandiya (PW 6) had a quarrel with the accused persons and prompted by the said past enmity, the incident occurred, of which report Ex.P/1 was lodged by Savkar (PW 1), brother of the deceased. 3. Upon receipt of the report, a case was registered and Sub-Inspector B.S. Sisodiya (PW 12) commenced the investigation. After summoning the witnesses, inquest was held and inquest report Ex.P/16 was prepared. The body of the deceased was then sent to the Hospital for post-mortem examination where it was seen by Dr. 3. Upon receipt of the report, a case was registered and Sub-Inspector B.S. Sisodiya (PW 12) commenced the investigation. After summoning the witnesses, inquest was held and inquest report Ex.P/16 was prepared. The body of the deceased was then sent to the Hospital for post-mortem examination where it was seen by Dr. R. Sulia (PW 5) who gave report Ex.P/3. As per the statement of Dr. Sulia and his autopsy report Ex.P/3, the deceased had the following external injuries :- (1) Ante-mortem stab wound at just above and laterally to the left nipple between 3rd and 4th intercostal space having clotted blood at the margin, reddish in colour, regular in nature, measuring about 1½ cm. x ½ cm. x 9 cm.; (2) Ante-mortem contusion wound at just above right ear of the head, it is bluish in colour and measuring about 3 cm. x 3 cm. In the opinion of Dr. R. Sulia (PW 5), the death had occurred on account of haemorrhagic shock due to extensive loss of blood from the mentioned wound. The death was homicidal in nature. 4. Since Gulab was also injured, he was also examined by the said Doctor who gave report Ex.P/4 and as per this report Gulab had received the following injuries :- (1) Contusion wound over left cheek region, it is tender, slight swelling, light bluish in colour caused by hard and blunt object and it is about 4 cm. x 3 cm. and simple in nature. (2) Contusion wound over back of the neck, it is tender, slight bluish in colour and caused by hard and blunt object and it is measuring about 3 cm. x 3 cm. 5. In further sequel of investigation, the Investigating Officer prepared spot map at the instance of complainant Savkar and seized an arrow from Gulab, vide Ex.P/19. The statements of the persons acquainted with the facts of the case were recorded. The accused persons were arrested and weapons at their instance were recovered on disclosure having been made by them and duly recorded as required. The seized articles were sent to the Forensic Science Laboratory from which report Ex. P/21 and P/22 were received. After completion of the investigation, the accused persons were prosecuted. However, while acquitting the three co-accused, the appellants have been convicted as hereinabove stated, notwithstanding that they had pleaded that they had been falsely implicated. 6. Learned Sr. The seized articles were sent to the Forensic Science Laboratory from which report Ex. P/21 and P/22 were received. After completion of the investigation, the accused persons were prosecuted. However, while acquitting the three co-accused, the appellants have been convicted as hereinabove stated, notwithstanding that they had pleaded that they had been falsely implicated. 6. Learned Sr. counsel appearing for the appellants has submitted that on the same set of evidence three persons have been acquitted while the appellants have been convicted and it was not a case where the case of the appellants could be segregated and separately dealt with. He has further submitted that even if the system of separating the grain from the chaff is resorted to, it was not a case where the evidence could have been dissected and case of the appellants considered in separate perspective. He has further submitted that in any case Bhaya could not have been convicted under section 302 read with section 34 as it was not a case of common intention and the incident had suddenly occurred. His further contention is that the accused Vahariya shot a single arrow as per the case of the prosecution and one cannot proceed on the assumption that he had intended to cause death, especially when the arrow was shot from a distance of about 30 feet. Learned Dy. Advocate General, per contra, has pointed out that there is no substance in the argument that on the same set of evidence 3 co-accused have been acquitted and, therefore, the appellants should also have been acquitted. He has pointed out that whereas evidence in respect of the appellants was that Vahariya had shot an arrow and Bhaya @ Bhavsingh had caused injury with 'Kharaliya', no act was ascribed to the other co-accused and they were proceeded against on the basis of omnibus statements of the witnesses. 7. We have heard the learned counsel for the parties and perused the record. 8. It has not been disputed before us that the deceased Premsya's had received injuries as described by Dr. R. Sulia (PW 5) and recorded in the autopsy report Ex.P/3. The eye-witnesses have also deposed to this effect and the inquest report is vocal of the same. It is, therefore, a case where homicidal death has not been assailed. 8. It has not been disputed before us that the deceased Premsya's had received injuries as described by Dr. R. Sulia (PW 5) and recorded in the autopsy report Ex.P/3. The eye-witnesses have also deposed to this effect and the inquest report is vocal of the same. It is, therefore, a case where homicidal death has not been assailed. The only questions that falls for our consideration is : (1) Whether Vahariya s/o Naharsingh had shot an arrow with the intention of causing death of the deceased and Bhaya had participated in a manner from which one could infer that he had shared common intention in assaulting the deceased? (2) If Bhaya had not shared common intention with Vahariya, whether Bhaya could be convicted of any other offence or the offence in question? and what offence has been committed by the appellants if their acts stand established? 9. The prosecution has examined in all 12 witnesses but the ocular account of the incident has been unfurled by Savkar (PW 1), Gulab (PW 2), Kaharia (PW 3) and Panubai (PW 8). Juwan Singh (PW 4), who was examined as an eye witness, has not supported the prosecution and has turned hostile. Savkar (PW 1) is the brother of the deceased while Gulab (PW 2) is his father. Panubai (PW 8) is wife of the deceased but she has not been held to be an eye witness because she was in the kitchen and had reached at the time the deceased had already fallen on the ground. 10. Since Gulab (PW 2) is an injured witness and father of the deceased who had intervened in the matter, we consider it apt to first assess the weight of his testimony. Gulab (PW 2) has deposed that deceased was his son and he knew the accused persons. He further stated that while the accused had returned from the market quite drunk, they had stopped at his place for drinking water. When they started to go back, on reaching the road, the accused persons called Premsya to the road but when Premsya refused, accused got enraged and started beating him stating that why he had not come when called by them. When they started to go back, on reaching the road, the accused persons called Premsya to the road but when Premsya refused, accused got enraged and started beating him stating that why he had not come when called by them. During this altercation, Vahariya shot an arrow which caused injury to his son Premsya on the left side of his chest, while Bhaya assaulted him with 'Kharaliya' and caused injuries over his head and over the back. When his daughter-in-law intervened along with him, he was also beaten. Thereafter the accused persons went away leaving Premsya behind. They rushed to the Police Station to report the matter. He has stated that there was dispute which they wanted Premsingh to resolve and it was on that account that he was beaten. He has also gone to the extent of saying that the other accused persons were shooting arrow at their house. 10. In his cross-examination, Gulab had admitted that the arrow was shot from a distance of about 30 feet and that appellant No. 2 Bhaya had assaulted with 'Kharaliya' and caused injury on the back was stated to the Police while statement Ex.D/2 was recorded. However, he has not been able to account for the omission of this fact in Ex.D/2. 11. The testimony of Gulab is duly corroborated by Savkar (PW 1), brother of the deceased. He has also deposed to the facts in the same manner as Gulab (PW 2). He has stated that the accused persons had come drunk to their house and when they asked for water, it was given to them. They then sat on the cot but when accused Vahariya called him, he refused to go to him. Vahariya then shot an arrow which struck him in his chest. His father also tried to intervene but he was also assaulted. He has admitted that the arrow was shot from a distance of 20 feet and this fact he had stated in the FIR but why this fact was not mentioned, he could not say. He has also stated that he got injury on his shoulder of 'Kharaliya' having been struck but why this fact was not mentioned in Ex.P/1 FIR and Ex.D/1 report, he could not say. 12. Kaharia (PW 3) has been examined as an eye witness. He has also stated that he got injury on his shoulder of 'Kharaliya' having been struck but why this fact was not mentioned in Ex.P/1 FIR and Ex.D/1 report, he could not say. 12. Kaharia (PW 3) has been examined as an eye witness. He has stated that the accused persons started abusing Premsya and accused Vahariya loaded an arrow on his bow and shot him which caused injury on his chest. Other persons also participated and caused injuries. 13. Panubai (PW 8) aunt of the deceased has also been examined as an eye witness. But she has not been believed because she has admitted that she reached after the deceased had fallen down. She has clearly admitted in cross-examination that at the time when the incident had taken place, she was cooking meals and before she came out her husband had already fallen down. She could not have been an eye witness to the incident. 14. The other evidence which the prosecution has led is that Pandiya (PW6) reached the place afterwards, Kunwarsingh (PW 7) has deposed about the land having been taken on lease and Gyansingh (PW 9) and Remsingh (PW 10) have not supported the prosecution story with regard to the arrest, information and recovery of the weapons. Even otherwise, the Forensic Science Laboratory report Ex.P/21 and P/22 only speak of blood on the arrow and nothing has been stated to show that it was human blood. That apart, in view of the eye witness account, it loses its significance. 15. Coming to the arguments of the learned Sr. Counsel seriatim, the learned counsel has submitted that the offence committed by Vahariya cannot be said to be one punishable under section 302 of the Indian Penal Code. Learned counsel has submitted that in order that a person can be convicted under section 302 of the Indian Penal Code, it is incumbent upon the prosecution to show that the alleged culpable homicide was of a nature which amounted to murder. Learned counsel has submitted that when it is clear that intention to cause death is absent from a single shot of arrow though it struck in the vital part, one cannot come to the conclusion that the arrow was shot with intention to cause death as it was quite likely that the arrow could have missed or injury over a non-vital part. Reference has been made by learned Dy. Advocate General to the decision of the Supreme Court in Kotikalapudi Subba Rao vs. State of Andhra Pradesh and another, (2008) 5 SCC 390 . Paragraph 14 of the said report shows that it is only when the case falls within one of the exceptions to section 300 that the offence would stand excluded from the rigours of section 300. First and Fourth exception to section 300 read as follows :- Exception 1.- When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death or any other person by mistake or accident. The above exception is subject to the following provisos :- First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation. - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2. - ... ... ... Exception 3. - ... ... ... 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 offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. 16. It is luculent from the provision that in order that the case falls within the excepted category, section 105 of the Evidence Act lays burden on the accused to prove it and though this burden is not required to be discharged as is enjoined on prosecution and on the basis of preponderance of probabilities the plea can be accepted, we have to see whether there are probabilities which render the defence acceptable. 17. 17. As would be seen from Exception I, it is only when offender is deprived of the power of self control by grave and sudden provocation and death is caused that it will be a case falling within the parameters of the said exception. However, in the present case, we do not find that the mere refusal of Premsya to come to the appellant Bhavsingh constituted grave and sudden provocation. Speaking about Exception 4, it is attracted only when the act is without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. There was no quarrel insofar as Premsingh was concerned and it was only on account of his refusal that with a view to show his might that the accused Bhavsingh had shot the arrow. Learned Sr. counsel for the appellant has next contended that while in the case of Exception I, there is total deprivation of self control, in case of Exception IV there is only heat of passion which cannot be equated with Exception I (ibid). 18. Learned Sr. counsel has pointed out that in the case of a single injury and that too from a distance of 30' where the arrow could have struck the deceased on any part, it cannot be inferred that there was intention on the part of the accused to cause death. According to him, it was only an intention to cause injury that was likely to cause death which would fall within the domain of section 299, punishable under the first part of section 304. 19. Section 304 of the Indian Penal Code reads as follows :- 304. Punishment for culpable homicide not amounting to murder. - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. 20. From the testimony of the witnesses, there can be no two opinion that the incident occurred suddenly without premeditation in which the accused had shot one single arrow and run away though the case of the prosecution was that there were five persons who had conjointly attacked. From the language of section 304 Part I, as hereinabove extracted, it is clear that if such bodily injury is caused with the intention of causing such injury as is likely to cause death, it would fall within the category of homicide punishable under first part of section 304 of Indian Penal Code. Accordingly, we find that conviction of appellant No. 1 Vahariya s/o Naharsingh under section 302 of the Indian Penal Code cannot be sustained. He is, instead, guilty for commission of the offence of culpable homicide punishable under section 304 Part I. 21. Appellant Bhaya has been convicted under section 304/34 as also under section 323. It is clear from the fact that though Bhaya has been stated to have caused two injuries, only one contusion was found near the right ear measuring 3 cm. x 9 cm. This injury has been described as simple. Though witnesses stated that injury was also caused on the back of the deceased by means of 'Kharaliya', it is an admitted position that no such injury was found by the Doctor. Since the Court below has also been very discerning considering the individual participation of the accused persons and it has acquitted 3 persons, had it been a case of common object or common intention, the other co-accused could not have been acquitted. It is only the common intention attributed to the present two appellants that appellant No. 2 Bhaya has been convicted under section 302 read with section 34. It is only the common intention attributed to the present two appellants that appellant No. 2 Bhaya has been convicted under section 302 read with section 34. We have already stated that the act of the appellant Vahariya was outside the ambit of section 300 or 302 and he has been found guilty only under section 304 Part I. Under these circumstances and the fact that there are material omissions in respect of the participation of Vahariya, we find that it would be perilous to infer that he had acted along with appellant No. 1 and both had shared common intention. In fact, it was Vahariya who had called Premsya and on his refusal he had shot an arrow from a distance of 30 feet. It is, therefore, be unfair to infer that Bhaya had acted in furtherance of the common intention with Vahariya. 22. Consequently, conviction of Vahariya and Bhaya under section 302 read with section 34 cannot be sustained. 23. Ex consequentia, the appellant No. 1 Vahariya s/o Naharsingh is convicted under section 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for ten years and fine of Rs. 1,000/-. In default of payment of fine, he shall undergo rigorous imprisonment for a period of two years. Conviction of Bhaya for offence punishable under section 302/34 is set aside. His conviction and the sentence awarded to him under section 323 of Indian Penal Code, is maintained. Both accused shall be entitled to set off under section 428 of the Criminal Procedure Code. Appellant No. 1 Vahariya s/o Naharsingh shall also pay compensation to Panubai (PW 8) in the sum of Rs. 5,000/- failing which the same shall be recovered as an arrear of land revenue. 24. It is reported that Bhaya @ Bhavsingh has already undergone long undertrial period and in view of the set off under section 428, Criminal Procedure Code, it is not necessary for him to serve out his sentence. The details of the sentence undergone be furnished to the trial Court and the trial Court shall thereafter decide whether the said appellant has undergone more than the sentence awarded to him. If so, he need not be sent back to Jail.