Judgment : V.M. Deshpande, J. 1. These three appeals arise out of the judgment and order of conviction and consequent sentence, passed by the learned Additional Sessions Judge-1, Jalna, dated 6.3.2012, in Sessions Case No. 56 of 2011. Since these three appeals arise out of one Sessions Case No. 56 of 2011, we propose to dispose of these three appeals by this common judgment. For the sake of convenience, the parties will be referred to as per their original status before the learned trial court. 2. Criminal Appeal No. 225 of 2012 is filed by accused no.1 Nasibkha and accused no.2 Asifkha, since they are aggrieved by finding of guilt recorded against them by the learned trial court that they are responsible for committing an offence punishable under Section 304 Part II r/w 34 of the Indian Penal Code and the direction to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- each and in default to suffer simple imprisonment for six months. Criminal Appeal No. 241 of 2012 is filed by the first informant Kalekha Pathan s/o Sujankha Pathan, who was also examined as prosecution witness no.1. He is brother of deceased Sardarkha s/o Sujatkha Pathan. He feels aggrieved by conviction of accused no.1 Nasibkha and accused no.2 Asifkha for the offence punishable under Section 304 Part II of the Indian Penal Code only, and also by the order of acquittal recorded by the learned trial court in respect of accused no.3 Ansarkha and accused no.4 Jabbarkha. By the said appeal, the first informant prayed that all the accused persons be convicted for the offence punishable under Section 302 of the Indian Penal Code. Criminal Appeal No. 461 of 2012 is preferred by the State of Maharashtra against the order of acquittal passed by the court below against all the accused persons for the offence punishable under Section 302 of the Indian Penal Code. FACTUAL MATRIX :- 3. The prosecution case lies in a narrow compass. The same can be narrated briefly as under:- PW 1 Kalekha is younger brother of deceased Sardarkha. He is having one step brother by name Shabbirkha. Accused nos. 1 to 4 are the sons of Shabbirkha. Thus, the first informant Kalekha, deceased Sardarkha and all the accused are related to each other. The brothers were cultivating their respective lands separately. The same can be narrated briefly as under:- PW 1 Kalekha is younger brother of deceased Sardarkha. He is having one step brother by name Shabbirkha. Accused nos. 1 to 4 are the sons of Shabbirkha. Thus, the first informant Kalekha, deceased Sardarkha and all the accused are related to each other. The brothers were cultivating their respective lands separately. One common well is situated in the land of another deceased brother Abbaskha. All the brothers including the accused were taking well water turn by turn. 4. At 8 O' clock in the morning of 21.10.2010, first informant Khalekha was standing in the area known as Bazar Patti Chowk at village Kathora Bazar. At some distance, his brother Sardarkha (deceased) was also standing. That time, all four accused persons came to the first informant and asked him that they should be given water for one day more. The response of first informant to demand was in negative. Upon that, all the accused persons started abusing first informant. Accused no.1 Nasibkha assaulted first informant. Deceased Sardarkha, who was standing at some distance, immediately rushed and intervened the quarrel. Thereafter, accused no.1 Nasibkha and accused no.2 Asifkha left the spot on their motor cycle. After some time, they came back. That time accused no.1 Nasibkha asked first informant as to how he is not allowing him to take water. That time, accused no.2 Asifkha caught hold neck of Sardakha (deceased) and accused no.1 Nasibkha gave a knife blow on the right side of his stomach. Accused no.3 Ansarkha and accused no.4 Jabbarkha assaulted the first informant by fist blows. Persons, who were standing there, intervened the matter. Injured Sardarkha was taken in a jeep to Ghati Hospital, Aurangabad. They reached Aurangabad at 10.15 a.m. Manwarkha Maheboobkha admitted Sardarkha in the hospital. The doctor declared him dead. 5. On 21.10.2010, Sanjay Chothmal, Police Naik B.No.1640 (PW 11) was attached to medical police chowky at Ghati Hospital, Aurangabad. He registered M.L.C. in respect of the injured person admitted in the hospital. After getting information that the said injured died, the said fact was informed to Bhokardan police station on phone. He was informed by Bhokardan police to prepare inquest panchanama of deceased by zero number. He also informed Begumpura police station, on the basis of which A.D. was registered. He prepared inquest panchanama in presence of two panchas. The said panchanama is at Exh.49. He was informed by Bhokardan police to prepare inquest panchanama of deceased by zero number. He also informed Begumpura police station, on the basis of which A.D. was registered. He prepared inquest panchanama in presence of two panchas. The said panchanama is at Exh.49. 6. The dead body of Sardarkha was sent for autopsy. Dr.Navinkumar Varma (PW 5) conducted postmortem. The postmortem report is at Exh.56. In the mean time, Kalekha (PW 1) registered the first information report at police station Bhokardan. On the basis of his report, Crime No. 117 of 2010 was registered for the offences punishable under Sections 302, 323, 504, 506 r/w 34 of the Indian Penal Code. The said first information report is filed on 21.10.2010 itself at 2330 hours. 7. After registration of Crime No. 117 of 2010, investigation of the said crime was handed over to PW 13 Shaikh Shanoor. On 22.10.2010, he prepared panchanama of the spot. It is at Exh.82. Statements of witnesses were also recorded. On 22.10.2010, he arrested all the accused. Their arrest panchanamas are at Exh. 83 to 86. On 23.10.2010, he seized clothes of all the accused vide seizure panchnamas. On 26.10.2010 accused no.1 Nasibkha gave a memorandum statement under Section 27 of the Indian Evidence Act in presence of panchas, thereby he agreed to discover the weapon used in the crime, which was concealed in his house. The said memorandum statement is at Exh.79. Consequent upon the said memorandum statement, the recovery of the weapon used in the offence was made at the instance of accused no.1 Nasibkha under panchanama Exh.80. 8. After completion of entire investigation, charge sheet was sent to the Judicial Magistrate, First Class, Bhokardan, District Jalna on 17.1.2011. After committal, learned Extra Joint Ad hoc Additional Sessions Judge, Jalna framed charge against all four accused persons vide Exh.21 for the offences punishable under Sections 302, 323, 504, 506 r/w 34 of the Indian Penal Code. All the accused persons denied their respective charge and claimed for trial. 9. In order to bring home the guilt of the accused persons, thirteen witnesses were examined during trial. They are as under:- PW 1 - Kalekhan Sujatkha Pathan, the first informant and eye witness. PW 2 - Salimkha Abbaskha Pathan, eye witness. PW 3 - Kadarkhan Yousufkha Pathan, panch for spot panchanama, turned hostile. PW 4 - Ajijkha Sardarkha, eye witness and son of deceased. They are as under:- PW 1 - Kalekhan Sujatkha Pathan, the first informant and eye witness. PW 2 - Salimkha Abbaskha Pathan, eye witness. PW 3 - Kadarkhan Yousufkha Pathan, panch for spot panchanama, turned hostile. PW 4 - Ajijkha Sardarkha, eye witness and son of deceased. PW 5 - Dr. Navinkumar Varma, who conducted postmortem and proved postmortem report Exh.56. PW 6 - Farukkha Pathan, panch for spot panchanama, turned hostile. PW 7 - Prakash Himmatrao Dokre Patil who reduced in writing the oral information given at Bhokardan police station by PW 1 Kalekha and registered crime No. 117 of 2010. PW 8 - Ramesh Khalse, Police Constable, who carried muddemal to Chemical Analyser at Aurangabad along with forwarding letter. PW 9 - Daulat Landge, Police Head Constable, to whom relevant papers were handed over at Ghati Hospital, Aurangabad, who in turn handed over muddemal and relevant papers to P.I. Dukre Patil. PW 10 - Shaikh Rais Mohd. Gaus, panch in respect of the memorandum statement and recovery. Turned hostile. PW 11 - Sanjay Chothmal, Police Naik, who was attached to medical police chowky, Ghati Hospital, Aurangabad, who registered M.L.C. PW 12 - Gajanan Khandagale, panch witness to Exhs. 79 and 80 memorandum statement of recovery panchanama. PW 13 - Shaikh Shanoor Shaikh Hassan, P.S.I., investigating officer. The prosecution also relied upon various documents duly exhibited during trial. 10. After the full dressed trial, learned Additional Sessions Judge, Jalna acquitted all the accused persons for the offences punishable under Sections 323, 504, 506 r/w 34 of the Indian Penal Code. The learned trial court also acquitted all the accused persons for the offence punishable under Section 302 r/w 34 of the Indian Penal Code. However, the learned trial court convicted accused no.1 Nasibkha and accused no.2 Asifkha for the offence punishable under Section 304 Part II r/w 34 of the Indian Penal Code and directed that they should suffer rigorous imprisonment for ten years and to pay fine amount as indicated in the preceding paragraph of this judgment. 11. We have heard Shri Joydeep Chatterjee, learned counsel appearing on behalf of accused nos. 1 and 2 in Appeal No. 225 of 2012 and Appeal Nos. 241 and 261 of 2012 extensively. We have heard Shri G.K. (Naik) Thigale, learned Additional Public Prosecutor for the State in all the three appeals. 11. We have heard Shri Joydeep Chatterjee, learned counsel appearing on behalf of accused nos. 1 and 2 in Appeal No. 225 of 2012 and Appeal Nos. 241 and 261 of 2012 extensively. We have heard Shri G.K. (Naik) Thigale, learned Additional Public Prosecutor for the State in all the three appeals. We have also heard Shri J.J.Patil, learned counsel appearing for original informant and appellant in Appeal No. 241 of 2012. We have also heard Shri R.S.Shinde, learned counsel appearing for accused no.3 Ansarkha and accused no.4 Jabbarkha in Criminal Appeal Nos. 241 of 2012 and 461 of 2012. 12. Vehemently it was argued on behalf of accused nos. 1 and 2 that the court below has committed serious mistake in recording the order of conviction under Section 304 Part II of the Indian Penal Code and prayed that they be acquitted. Alternatively, he made fervor submission that if this court is of the view that recording of conviction under Section 304 Part II of the Indian Penal Code is legal and proper, then in that event, the sentence be reduced from ten years to seven years. He also pressed into service a decision of Hon'ble Apex Court reported in AIR 1988 SC 2127 [Hari Singh vs Sukhbir Singh] and submitted that this court should pass an order directing his clients to award compensation to the victim. 13. As against this, both the learned A.P.P. and the learned counsel appearing for the first informant-appellant in Criminal Appeal No. 241 of 2012 submitted that the court below has committed serious mistake of law in convicting accused no.1 Nasibkha and accused no. 2 Asifkha for the offence punishable under Section 304 Part II of the Indian Penal Code only. According to them, the appreciation of the evidence, as done by the court below, is perverse. The acquittal of all the accused for the offence punishable under Section 302 of the Indian Penal Code, according to the learned counsel, cannot stand to the scrutiny of law in the light of clinching direct evidence of murderous assault on deceased. According to the learned counsel, the court below has not ascribed any reason, much less cogent one, for acquitting them for the offence punishable under Section 302 of the Indian Penal Code. According to the learned counsel, the court below has not ascribed any reason, much less cogent one, for acquitting them for the offence punishable under Section 302 of the Indian Penal Code. The learned counsel for the appellant in Appeal No. 241 of 2012 has made an attempt to substantiate his arguments by taking assistance of following reported cases of Hon’ble Apex Court. (i) AIR 1958 SC 465 - Virsa Singh vs State of Punjab (ii) AIR 1972 SC 952 - Gudar Dusadh vs State of Bihar (iii) 1991 AIR SCW 654 - Jai Prakash vs State (Delhi Administration) (iv) 2011 AIR SCW 6797 - C.Ronald and Anr. Vs State of U.T. Of Andaman and Nicobar Islands 14. We have analytically evaluated entire evidence and original record and after re-appreciation of prosecution case afresh, following are the points for our determination. POINTS FOR DETERMINATION :- (i) Whether the prosecution is successful to bring home the guilt of all accused persons for causing death of Sardarkha, and consequently they are liable for punishment under Section 302 r/w 34 of the Indian Penal code? (ii) Whether the prosecution has proved that the accused persons are liable for conviction for the offences punishable under Sections 323, 504, 506 r/w 34 of the Indian Penal Code? (iii) What order? ASSESSMENT OF PROSECUTION CASE :- 15. On 21.10.2010, Dr. Navinkumar Varma (PW 5) was working as Assistant Professor at Government Medical College, Aurangabad, and he was on postmortem duty. On the said date, dead body of Sardarkha Sujatkha was brought by police along with papers for postmortem. Dr. Varma conducted postmortem on the dead body. It was commenced at 1.50 p.m. and concluded at 3.15 p.m. Autopsy surgeon found a stab injury vertically placed 6 x 1.5 cm. by cavity deep on right flank region in right hypochondriac region, lower end situated 12 cm. above right anterior superior iliac spine and 18 cm. lateral to mid line in mid axillary line, lower end acute and upper end obtuse. Margins are sharp, slightly elevated and blood stain, track established on right flank region passes through 9th inter costal space by cutting lower margin of right 9th rib into right lobe of liver 6 cm. above lower border 8 cm. middle to right lateral margin going upward, backward and medially depth 12 cm. The said injury is mentioned at column 17 in the postmortem report Exh. above lower border 8 cm. middle to right lateral margin going upward, backward and medially depth 12 cm. The said injury is mentioned at column 17 in the postmortem report Exh. 56, duly proved by Dr. Navinkumar Varma (PW 5). According to column no.20 of postmortem report Exh.56, right 9th rib cut from lower margin in 0.5 cm. area cut ends shows infiltration staining. The doctor also noted haematoma on right flank region around stab injury dark red in colour. Liver stab wound of 3 x 0.3 x 11 cm. in right lobe of liver, which he mentioned in column no.21 of postmortem report. According to autopsy surgeon Dr. Varma, the cause of death is, ‘shock and haemorrhage due to stab injury to liver’. The doctor found that the injury was antemortem. According to the evidence of PW 5 Dr. Varma, injury mentioned in column no.17 was sufficient in normal course to cause death. Article 11 knife was shown to him and he expressed his opinion that the injury mentioned in column no.17 of postmortem notes is possible by the said weapon. Looking to the nature of the injury, as mentioned by PW 5 Dr. Varma in the postmortem report and in view of his evidence, it is clear that deceased died homicidal death. Passingly, it may be observed here that the nature of death is also not disputed by the accused persons. 16. In the present case, the first information report was filed by PW 1 Kalekha on 21.10.2010 itself at 2330 hours. In the first information report, the first informant gave explanation that after the postmortem, time was consumed in funeral and since they were disturbed by the death of Sardarkha, delay was occurred in lodging the first information report. However, the fact remains that the first information report was recorded on the day of the incident itself. The police station Bhokardan is situated at 15 kms. away from village Kathora Bazar. In that view of the matter, delay is properly explained by the prosecution. 17. In the present case, there are three eye witnesses, who have witnessed the assault on deceased Sardarkha. They are : (1) PW 1 Kalekha Sujatkha Pathan; (2) PW 2 Salimkha Abbaskha Pathan; and (3) PW 4 Ajijkha Sardarkha. Deceased, first informant, and accused persons were cultivating their lands separately. 17. In the present case, there are three eye witnesses, who have witnessed the assault on deceased Sardarkha. They are : (1) PW 1 Kalekha Sujatkha Pathan; (2) PW 2 Salimkha Abbaskha Pathan; and (3) PW 4 Ajijkha Sardarkha. Deceased, first informant, and accused persons were cultivating their lands separately. They were fetching water from one common well situated in the land of another deceased brother Abbaskha turn by turn. 18. 21.10.2010 was the fateful day. At 8.00 a.m. Kalekha (PW 1) was standing at Bazar Patti area. Deceased was standing at some distance from him. The evidence of PW 1 Kalekha would reveal that, that time all the accused came there. They requested first informant that due to load shedding they should be give water for one more day. However, PW 1 Kalekha replied negatively. According to PW 1 Kalekha, therefore, all the accused started abusing him. Accused no.1 Nasibkha assaulted him. That time, deceased Sardarkha who was standing at some distance, intervened the quarrel. Thereafter, accused nos. 1 and 2 left the spot on the motor cycle. The testimony of PW 1 Kalekha further discloses that after some time, the accused came back. That time, accused no.1 Nasibkha told him that how he will not allow him to take more water. That time, accused no.2 Asifkha caught hold neck of Sardarkha and accused no.1 Nasibkha assaulted by knife on the right side of the stomach of Sardarkha. Accused no.3 Ansarkha and accused no.4 Jabbarkha assaulted first informant by fist blows. The version of PW 1 Kalekha is fully corroborated by the evidence of PW 2 Salimkha Pathan and PW 4 Ajijkha Sardarka. 19. From the analytical scrutiny of the testimonies of these three eye witnesses, there appears that two separate and independent incidents occurred on the said day. From the survey of their evidence, following things emerge :- (a) On 21.10.2010 at about 8.00 a.m., PW 1 Kalekha was present at Bazar Patti area of village Kathora Bazar. (b) Deceased Sardarkha Sujatkha was also present there at some distance. (c) All the accused persons came there and asked PW 1 Kalekha to give water one more day. (d) PW 1 Kalekha refused to oblige them. (e) All the accused hurled abuses to PW 1 Kalekha and assaulted him. (f) Deceased Sardarkha, who was standing nearby, came there and intervened in the said quarrel. (c) All the accused persons came there and asked PW 1 Kalekha to give water one more day. (d) PW 1 Kalekha refused to oblige them. (e) All the accused hurled abuses to PW 1 Kalekha and assaulted him. (f) Deceased Sardarkha, who was standing nearby, came there and intervened in the said quarrel. (g) Thereupon, all the accused left the spot. Accused nos. 1 and 2 left on motor cycle. From the above, thus it is clear that the first incident was over after the intervention of deceased Sardarkha. The matter does not rest there. The second incident occurred thereafter. On the basis of the ocular version, it is as under:- (i) After some time accused came back. (ii) Accused no.1 Nasibkha asked PW 1 Kalekha as to how he will not allow him to take more water. (iii) That time, accused no.2 Asifkha caught hold neck of deceased Sardarkha and accused no.1 Nasibkha gave knife blow on the right side of the stomach of deceased. The occurrence of the first incident is an admitted position, as it could be seen from the answer given by accused no.1 Nasibkha to Question No. 5 and Question No. 9 when his statement under Section 313 of the Code of Criminal Procedure Code was recorded during trial. 20. From the line of cross-examination of PW 1 Kalekha, it was tried to be suggested that accused no.1 Nasibkha and deceased Sardarkha were talking and PW 1 Kalekha came running there and started assaulting accused no.1 Nasibkha. That time, Sardarkha (deceased) hold accused no.1 Nasibkha from behind and that time accused no.1 Nasibkha spat on Kalekha. Getting annoyed by that, PW 1 Kalekha was about to assault Nasibkha (accused no.1) by knife, however, he rescued himself by force from the clutches of Sardarkha (deceased) and in that Sardarkha received the knife blow. The afore said suggestion is flatly denied by PW 1 Kalekha. Further, except this suggestion, there is nothing available on record to show that it has any grain of truth. 21. The afore said suggestion, implies that, PW 1 Kalekha was also armed with knife. As seen, in the first incident, abuses were given by accused persons to PW 1 Kalekha and he was assaulted by accused nos. 1 and 2. In the said quarrel, Sardarkha (deceased) intervened. This fact is admitted by accused no.1 Nasibkha, as seen in the preceding paragraph. As seen, in the first incident, abuses were given by accused persons to PW 1 Kalekha and he was assaulted by accused nos. 1 and 2. In the said quarrel, Sardarkha (deceased) intervened. This fact is admitted by accused no.1 Nasibkha, as seen in the preceding paragraph. Had PW 1 Kalekha armed and/or possessing a deadly weapon like knife, he would have used the same at the time of first incident. That fact itself shows and confirms the prosecution case and the hollowness in the suggestion given by the accused persons in the cross-examination of PW 1 Kalekha. 22. In the present case, on the point of first incident and the second incident, the evidence of three eye witnesses is consistent and is corroborative with each other. Nothing could be brought on record during their cross-examination to impeach their testimonies. Further, the recovery of the weapon at the instance of accused no.1 Nasibkha is duly proved by the prosecution through PW 12 Gajanan Khandagale, an independent person, who has proved Exh.79 the memorandum statement of accused no.1 Nasibkha and the consequent recovery at his instance of the weapon by recovery panchanama Exh.80. This corroborative piece of evidence also goes in favour of the prosecution. 23. After analytical survey of the prosecution case, there is no doubt in our mind that accused no.2 Asifkha caught hold neck of deceased Sardarkha and thereupon accused no.1 Nasibkha made a murderous assault by means of knife on deceased Sardarkha. Therefore, accused no.1 Nasibkha and accused no.2 Asifkha are held to be guilty of homicidal death of deceased Sardarkha. 24. In so far as role of accused no.3 Ansarkha and accused no.4 Jabbarkha is concerned, both the learned counsel Shri Jivan J. Patil and learned Additional Public Prosecutor fairly made a submission that in the light of the evidence of the prosecution case, they cannot be held responsible for the death of Sardarkha. 25. Upon the afore said evidence of the prosecution, the learned trial court has convicted accused no.1 Nasibkha and accused no.2 Asifkha for offence punishable under Section 304 Part II of the Indian Penal Code. For reaching to the said conclusion, learned trial court in paragraph 43 of the judgment has observed as under:- “43. I have gone through the above cited authorities and facts of the present case. For reaching to the said conclusion, learned trial court in paragraph 43 of the judgment has observed as under:- “43. I have gone through the above cited authorities and facts of the present case. The number of injuries is not always the determining factor in ascertaining the intention. It is the nature of the injury, the part of the body where it is caused, weapon used in causing such injury which are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. In the instant case, prior to the incident there was no enmity between complainant and accused. On the contrary, they were taking water from the common well situated in the land of the deceased brother of the complainant by rotation. Due to load-shedding, accused could not get adequate water. Therefore, on the day of incident, accused no.1 asked the complainant to give excess water which complainant refused. From the aforesaid fact, it is apparent that after first altercation took place, accused nos. 1 and 2 went back to their house and came back armed with knife. This itself shows that it was the intention of the accused to cause some injury to the deceased. There is only one injury on the person of the deceased, as admitted by Doctor PW 5 Varma in his cross. The Doctor opined that this injury was sufficient in ordinary course of nature to cause the death, but one cannot lose sight of the fact that the injury was 6 cm x 1.5 cm. Into cavity deep. Moreover, profuse bleeding was there as admitted by Doctor. Deceased was taken to Aurangabad from the spot and it took near about one hour to receive medical aid. From the material on record, it does not appear that the intention of the accused was to kill the deceased, but the fact that accused no.1 was armed with knife, blade of which itself was 15.5 cm. In length and, therefore, accused should have been aware that if he stabbed the deceased, he may be acting in such a manner that the injury he caused is likely to cause the death. He would have knowledge that if he stabbed the deceased, he would cause his death, even if the intention may not have been to cause his death. He would have knowledge that if he stabbed the deceased, he would cause his death, even if the intention may not have been to cause his death. Therefore, I do not find the accused guilty of having committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Accused nos. 1 and 2, however, can be convicted of having committed an offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code.” and has thus acquitted accused nos. 1and 2 for the offence punishable under Section 302 of the Indian Penal Code. 26. What shall be the approach of the appellate court in appeal against acquittal is firmly established by catena of decisions of Hon’ble Apex Court. In one of such cases, reported in (2011) SCC 288 [Brahm Swaroop and anr. Vs State of Uttar Pradesh], the Hon’ble Apex Court has observed as under:- “33. It is well established in law that the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law.” 27. Keeping in mind the afore said principle, let us examine what offence appellant nos. 1 and 2 have committed. In the light of the afore mentioned established facts on record, it will be useful to reproduce Sections 299 and 300 of the Indian Penal Code. “299. Culpable homicide Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. “299. Culpable homicide Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 2ndly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- 3rdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly,- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations ......... ....... (c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death. ......... ....... 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 of 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 defense. 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 defense. Explanation- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2 - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense. Exception 3- Culpable homicide is not murder if the offender, being a public servant or aiding. a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. 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. Exception 5- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.” 28. In AIR 1958 SC 465 [Virsa Singh vs State of Punjab], the Hon'ble Apex Court has observed as under:- “12] To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300, ‘thirdly’; First, it must establish, quite objectively, that a bodily injury is present ; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300, ‘thirdly’. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.” 29. In the present case, after the first incident was over, the second occurred after some time. It occurred after ten minutes. This fact is brought on record in cross-examination of PW 1 Kalekha. After the first incident was over, both accused nos. 1 and 2 left the place on their motor cycle. They returned after ten minutes. In the present case, after the first incident was over, the second occurred after some time. It occurred after ten minutes. This fact is brought on record in cross-examination of PW 1 Kalekha. After the first incident was over, both accused nos. 1 and 2 left the place on their motor cycle. They returned after ten minutes. Obviously, they returned along with deadly weapon knife with them, because at the first incident when deceased intervened in the quarrel, no weapon was used. 30. True it is, they were demanding water for one more day from the first informant, which was refused by him, thereby enraging them to hurl abuses and picked up a quarrel with PW 1 Kalekha, which was intervened by the deceased. Refusal of giving water for one more day culminating into giving abuses to PW 1 Kalekha and even quarrel with him, may be most natural, however, on the intervention of the deceased it was pacified. Not only that, consistent evidence of the prosecution shows that thereafter both accused no. 1 Nasibkha and accused no.2 Asifkha left the place on motor cycle. They arrived at the spot after ten minutes. This period was enough for their ‘cooling’ in respect of the first incident, however, the prosecution evidence shows that after ten minutes, they, not only returned to the spot, but they returned with deadly knife with them. This act on the part of accused nos. 1 and 2 clearly establishes that with premeditation they returned to the spot. They returned to the spot with a specific intention. Further, from the evidence, it is clear that on reaching to the spot, they immediately caught deceased Sardarkha and gave knife blow as per the role ascribed to them by the prosecution witnesses. This fact clearly establishes that both the accused nos. 1 and 2 were nursing grudge against the deceased, because at the first instance it was the deceased who rescued PW 1 Kalekha from the quarrel with them. 31. As seen, Dr. Navinkumar Varma (PW 5) has clearly stated before the court that the injury mentioned in column no.17 was sufficient in normal course to cause death. 32. In the present case, once the court reached to the conclusion that there was intention on the part of accused nos. 31. As seen, Dr. Navinkumar Varma (PW 5) has clearly stated before the court that the injury mentioned in column no.17 was sufficient in normal course to cause death. 32. In the present case, once the court reached to the conclusion that there was intention on the part of accused nos. 1 and 2 to cause bodily injury, which is proved to be present on the dead body of Sardarkha and when the doctor is of the view that the said injury was sufficient in the ordinary course of nature to cause death, they must face the consequences. 33. In the present case, the learned trial court has observed in its judgment paragraph 43 and recorded a finding that, there was an intention on the part of accused nos. 1 and 2 to cause injury to the deceased, however, the learned court below in one breath gives reasoning that, ‘from the material on record, it does not appear that the intention of the accused was to kill the deceased’; however, in the next breath, the learned Judge reasoned that, ‘accused no.1 was armed with knife, blade of which itself was 15.5 cm. in length, and therefore, the accused should have been aware that if he stabbed the deceased, he may be acting in such a manner that the injury he caused is likely to cause death’, and still the learned court below has acquitted accused nos. 1 and 2 under Section 302 of the Indian Penal Code. 34. This appreciation on the part of learned court below, in our view, is perverse. Once the intention is established, and in the light of medical evidence and existence of the injury found on the dead body of Sardarkha, there is no escape but to record a finding of guilt against the accused nos. 1 and 2 for having committed the offence under Section 302 of the Indian Penal Code. The learned counsel for accused nos. 1 and 2 found it very difficult and could not bring their case in any of the Exceptions of Section 300 of the Indian Penal Code. 35. In the present case, the first information report is lodged on very same day, though there is some delay of some hours, the same is properly explained by the prosecution. 1 and 2 found it very difficult and could not bring their case in any of the Exceptions of Section 300 of the Indian Penal Code. 35. In the present case, the first information report is lodged on very same day, though there is some delay of some hours, the same is properly explained by the prosecution. The ocular evidence of giving knife blow on the portion of the body of Sardarkha is corroborated by the medical evidence. The prosecution case is further corroborated, as observed above, by recovery of the weapon at the instance of accused no.1 Nasibkha. In that view of the matter, the afore said analytical survey of the prosecution case leads us to draw following conclusions. CONCLUSIONS:- (i) Criminal Appeal Nos. 241 of 2012 and 461 of 2012 are partly allowed. (ii) The acquittal of accused no. 3 Ansarkha and accused no.4 Jabbarkha is hereby confirmed. (iii) The order of conviction and sentence convicting accused no.1 Nasibkha s/o Shabbirkha and accused no.2 Asifkha s/o Shabbirkha for the offence punishable under Section 304 Part II r/w 34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for six months is hereby quashed and set aside. (iv) Accused no.1 Nasibkha and accused no.2 Asifkha are hereby convicted for the offence punishable under Section 302 r/w 34 of the Indian Penal Code and they are sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/- each and in default to suffer simple imprisonment for one month. (v) Consequently, Criminal Appeal No. 225 of 2012 filed by accused no.1 Nasibkha and accused no.2 Asifkha is dismissed. (vi) Order accordingly.