JUDGMENT : ANANT S. DAVE, J. 1. Criminal Appeal No. 1726 of 2017 has been filed by the original accused, three in number, under Section 374 of the Code of Criminal Procedure,1973. By a judgment and order dated 12.10.2017 passed by the Learned Additional Sessions Judge, Devbhumi Dwarka at Khambhalia, in Sessions Case No. 67 of 2012, the appellants have been held guilty for the offences punishable under Sections 302 and 114 of the Indian Penal Code and ordered to undergo rigorous imprisonment for life and fine of Rs.1,000/-, in default, to further undergo rigorous imprisonment for one month. 2. This appeal was admitted by this Court on 22.12.2017. Record and Proceedings were called for from the trial court and they are with the Court for the benefit of perusal. Pending the appeal, the accused/appellants moved Criminal Miscellaneous Application No. 1 of 2018 in the pending appeal, under Section 389 of the Code of Criminal Procedure, 1973 to suspend the order of sentence passed in the Sessions Case No. 67 of 2010, by the learned Additional Sessions Judge. In the said application for suspension, learned advocate Mr. A.D. Shah appearing for the appellants made a submission which was recorded by the order dated 17/09/2018. The order being self-explanatory, is reproduced as under: “Learned counsel for the applicant while arguing this application for suspension of sentence and grant of bail, at this stage, would contend that number of injuries may be 20, but none of the above is likely to cause death in ordinary course. Our attention is invited to medical case record and testimonies of concerned doctor, including nature of injuries so deposed by PW19 Exh.88. No doubt, cause of death is haemorrhage due to multiple injuries. Learned counsel for the applicant placing reliance on the decisions of the Apex Court in the cases of [1] Bhoopat Singh v. J.B.Katariya, (2009) 17 SCC 484 and [2] Karriya v. State of Karnataka, (2002) 6 JT 582 submitted that in the context of multiple injuries and the appellants - accused did not intend to cause death of deceased, conviction of appellant under Section 302 be converted into conviction under section 304 Part II. It is further submitted that the present applicant has already undergone sentence for 6 years. Learned APP to consider possibility of hearing Criminal Appeal No.1726 of 2017 finally, otherwise this application for suspension of sentence shall be proceeded further. It is further submitted that the present applicant has already undergone sentence for 6 years. Learned APP to consider possibility of hearing Criminal Appeal No.1726 of 2017 finally, otherwise this application for suspension of sentence shall be proceeded further. If record & proceedings is not received, same may be called for from the concerned trial court by the next date of hearing and the Registry is directed to take necessary action in this regard. Stand over to 04.10.2018.” 2.1 Looking to the submission of the learned counsel for the appellants, that in the context of multiple injuries and that the appellants-accused did not intend to cause death of deceased, conviction of the appellants under Section 302 IPC be converted into conviction under Section 304 (Part II) IPC and the fact that the appellants have already undergone a sentence for six years, we have proceeded to hear the appeal finally, keeping in context, the medical evidence on record and testimonies of the doctors, including the nature of injuries so deposed by them, inflicted by the appellants, on the deceased. Case of the Prosecution 3. Jusab Abubhai Shedha P.W.25, Ex. 124 is the complainant. He is the cousin of the deceased Saddam Hussain. According to the complainant, he, along with Sadam, on 06.06.2012 at 8.00 in the morning left home together for grazing their livestock. At 9.30 AM, while they were at the field, Accused No. 3 - Irfan Osman also came over with his livestock for grazing. Both Irfan and his cousin were playing games on the mobile phone and while so playing, entered into an altercation. The complainant, Jusab was standing at a distance, not too very far. Irfan left the place and returned after about ten minutes with his father, Osman alias Dadlo, accused no.1 and his brother Mohmad Osman - accused no. 2. The father - Osman - accused no.1 and son - Mohmad - accused no.2 were carrying a pipe, and Irfan was wielding a stick. Osman, with the pipe he was wielding hit on the left frontal region of the forehead of Sadam. Mohmad, with the pipe in hand, hit Sadam on both his legs below the knees and Irfan - accused No. 3 hit Sadam on his hands. When Jusab, as per his version ran towards Sadam, the accused fled the scene. Jusab, then went and called Sadam’s brother Abdul. Mohmad, with the pipe in hand, hit Sadam on both his legs below the knees and Irfan - accused No. 3 hit Sadam on his hands. When Jusab, as per his version ran towards Sadam, the accused fled the scene. Jusab, then went and called Sadam’s brother Abdul. Abdul came over where Saddam was lying and called up Farook, who came over in his Indica car. Sadam was carried in the car to the G.G.Hospital in a semi-conscious condition. Sadam during treatment succumbed to the injuries. The FIR was lodged by the complainant with the aforesaid narrative. 3.1 A charge was framed and the case was committed to the Principal Sessions Judge, Khambhaliya for trial. In order to bring home the charge for offences under Sections 302 read with Section 114 of the Indian Penal Code, the prosecution examined 32 Prosecution Witnesses and produced 46 Documents on record. The defence also examined three Defence Witnesses and produced three documents. 4. Essentially, the case of the prosecution rested on the testimonies of the complainant, Jusab who also was an eye witness and was examined at Exh. 124 as PW-25 and also one Abdul Hussainbhai Sedha who was examined as PW 27, Exh. 141. As we have, at the outset, recorded the contention of the learned advocate Mr A.D. Shah that he is restricting the appreciation in the appeal to contend that the conviction recorded under Section 302 be converted into one under Section 304 Part II, we are not discussing the evidence of the eye witnesses in the context of the factual background of the incident of 6.06.2012. That the act of the accused did result in the death of Sadam Hussain and that it was culpable homicide is not in dispute. That the act of the accused did result in the death of Sadam Hussain and that it was culpable homicide is not in dispute. Since the fact that the incident occurred and that the accused did wield the weapons they did, and inflict such injuries on the deceased, is not disputed and since the arguments are restricted to contend that, though the number of injuries may be 20, but none of them was likely to cause death and though, no doubt, cause of death is haemorrhage due to multiple injuries, the appellants did not intend to cause death, we have examined the merits of the appeal, in the context of the legal provisions of Sections 299, 300 and 304 Part II, of the Indian Penal Code in context of the Medical Evidence which has come on record. 4.1 The Prosecution has examined the following Doctors in order to prove that the fatal injuries were such that the offence was culpable homicide amounting to murder and therefore fell within Section 300 “thirdly” of the Indian Penal Code. PW-19 was Dr Divyesh Keshavji Vadgama who along with one Dr.Bala carried out the Postmortem. The P.M. Note is at Exh. 89. PW 23 was Dr Nehal Nagindas Gandhi and PW 24 was Dr. Ashok Roshanlal Bhasin - Medical Officers of the G.G.Hospital, Jamnagar, where the deceased Sadam was first taken to, in an injured condition and where he succumbed to his injuries. 4.2 Just to recapitulate the incident, which has come on record through the evidence of the complainant, Jusab PW.25 and Abdul Shedha PW 27 that while Sadam, the deceased and Irfan, the accused no. 3 were playing games on the mobile, an altercation took place between the deceased and Accused No:3 Irfan, who went back and returned after ten minutes, with a stick, accompanied by his father Osman - accused no. 1 and brother Mohmad - accused no. 2, both wielding pipes. The version of the complainant suggests that the accused no. 1 Osman hit a blow with the pipe on the left front portion of the forehead of Sadam. The accused no:2, Mohmad hit with the pipe, on the body of Sadam on his two legs, below the knees and Irfan, accused no. 3 hit Saddam with the stick, on his hands and arms. Saddam fell on the ground bleeding from his head. 5. The accused no:2, Mohmad hit with the pipe, on the body of Sadam on his two legs, below the knees and Irfan, accused no. 3 hit Saddam with the stick, on his hands and arms. Saddam fell on the ground bleeding from his head. 5. Let us therefore assess the medical evidence on record, whether if the act is done with the intention of causing bodily injury and that the bodily injury so inflicted and so intended to be inflicted is sufficient in the ordinary course of nature to cause death. If the answer is in the affirmative, then the case would fall within Section 300 “thirdly” and the defence that the conviction be converted in one of Section 304 Part-II would fail. 5.1 Dr. Ashok Bhasin, PW 24 at Exh 118 is the Medical Officer of the G.G. Hospital, where the deceased Sadam was first carried to after the incident. According to this Doctor, in his examination-in-chief, he testifies that when he was on duty at G.G. Hospital, Sadam Hussain was brought to the hospital by his brother Abdul. In the history given by the patient, Sadam had stated that at 9:30 AM, Osman - accused no.1 armed with a pipe, Mohmad - accused no. 2 also armed with Pipe and Irfan - accused no. 3 armed with stick had attacked him and hit him on the head, legs and arms. All the injuries were bleeding. The patient was conscious and answering the questions. In his cross-examination, he admitted that if injuries are inflicted by pipes and sticks, there was a possibility of cut and lacerated wounds, which were not seen on the body of Saddam. 5.2 Dr. Nehal Gandhi was also the Doctor of the G.G. Hospital of the Unit where Sadam was treated. He was PW 22, examined at Exh. 112. The injuries as explained by this doctor in his examination were, that Sadam had injuries on both the legs below the knee, injury on the elbow of the left hand and on the right cheek. The patient succumbed to the injuries at 2’o clock in the afternoon. Nothing substantial has been brought out in the cross-examination of this doctor. 5.3 The crucial witness from the medical point of view is Dr. Dinesh Vadgama PW 19, who was examined at Exh. 88. The patient succumbed to the injuries at 2’o clock in the afternoon. Nothing substantial has been brought out in the cross-examination of this doctor. 5.3 The crucial witness from the medical point of view is Dr. Dinesh Vadgama PW 19, who was examined at Exh. 88. He is the doctor who carried out the post-mortem on the body of the deceased Saddam. In the examination-in-chief, Dr.Vadgama testifies that he along with one Dr. Ketan Balas of M.P. Shah Medical College, carried out the post mortem of Sadam. The body had developed Rigor Mortis. The injuries sustained which were recorded in column 17 of the postmortem report at Exh. 89 were as under: “(1) 5x2 cm sized oblique contused lacerated wound seen over left cheek, 3 cm left from outer angle of left eyebrow, margins are ref and irregular. (ii) 3 x 0.5 cm sized reddish brown abrasion is seen over right cheek. 1 cm below right eye. (iii) 8 x 2 cm sized red coloured railroad type contusion seen over middle 1/3rd part of outer aspect at right sense arm forearm. (iv) Below injury no. 3 there is a close fracture of ulna bone. (v) 5 x 2 cm sized red coloured abraded contusion seen over upper 1/3rd part of outer aspect of right forearm. The part is swollen. (vi) 6 x 3 cm sized reddish abraded contusion seen over lower 1/3rd part of right forearm on outer aspect. The part is swollen. (vii) 3 x 2 cm sized red coloured abraded contusion seen over middle 1/3rd part of left arm on outer aspect (viii) 4 x 1 cm sized CLW seen over upper 1/3rd part of outer aspect of left forearm. Its margins are red and irregular. (ix) On left forearm at lower 1/3rd part close fracture of radius ulna bone seen. The part is swollen. (x) A diffuse red contusion seen over and around the area of injury no. 9. (xi) 8 x 1 cm sized red, vertical abraded contusion seen over left thigh at lower 1/3rd part on outer aspect (xii) 1 x 1 cm sized two split lacerations are seen over upper 1/3rd part of left leg on front side. Margins are red and irregular. (xiii) Below injury no. 12, there is palpable fracture of tibia bone. 9. (xi) 8 x 1 cm sized red, vertical abraded contusion seen over left thigh at lower 1/3rd part on outer aspect (xii) 1 x 1 cm sized two split lacerations are seen over upper 1/3rd part of left leg on front side. Margins are red and irregular. (xiii) Below injury no. 12, there is palpable fracture of tibia bone. (xiv) 3 x 1 cm sized two and 2 x 1 cm sized three split lacerations are seen over lower 1/3rd part of left leg on outer aspect and front region. Margins are red and irregular. (xv) Below injury no. 12 there is underlying tibia fibula fracture palpated. Whole left leg is swollen. (xvi) Diffused red coloured contusion is seen over the left lower leg and left foot. (xvii) 1 x 1 cm sized pressure abrasion, reddish brown in colour is seen over forearm of middle of left foot. (xviii) Close fracture of lower 1/3rd part of right tibia fibula bone is palpated whole leg is swollen. (xix) 2 x 1 cm sized three and 3 x 1 cm sized two split lacerations are seen over middle 1/3rd part of right left on front side. Margins are red and irregular. (xx) About 1 to 3 cm sized multiple red coloured abrasions are seen over right leg.” 5.4 He further stated that there was no visible fracture on the head and the brain was intact. There were no fractures or injuries on the chest. That in his opinion and that of Dr. Balas, the death was as a result of blood loss as a result of multiple injuries on the body. In his cross-examination, he admitted that all the injuries were sufficient to cause death and that the injuries were possible from such weapons as pipe, stick and blunt objects. He further admitted that no open fractures were recorded in the PM Note. That injuries no. 12 and 14 were not recorded to suggest that they were bone deep. That he had not seen bleeding injuries on the left side of the forehead. Describing each injury from injuries no. 1 to 9, the doctor in his cross-examination testified that it is true that injury no.1 could be cured by treatment. That injury No.2 was also simple. That it was not a bleeding injury. He admitted that injuries no. 1 to 3 were not contused and could be cured by simple treatment. Describing each injury from injuries no. 1 to 9, the doctor in his cross-examination testified that it is true that injury no.1 could be cured by treatment. That injury No.2 was also simple. That it was not a bleeding injury. He admitted that injuries no. 1 to 3 were not contused and could be cured by simple treatment. He admitted that injury no.4 fracture could be healed through simple treatment. That injuries no. 6 and 7 were simple injuries, so also were injuries no. 8 and 9. That Injuries no. 10 to 12 were not on the vital parts of the body and that injury no.12 has not damaged any blood vessels. He admitted that injuries no. 13 and 14 were simple in nature and that injuries no. 15 to 20 were also simple in nature. He admitted that all the injuries listed in Column No. 17 were such that could be cured on treatment. It is true that these injuries cannot be said to be ones on the vital parts of the body. The cause of death as per the PM Note was death due to hemorrhagic shock on account of cumulative effect of multiple injuries over the body. 6. Based on this medical evidence, learned counsel Mr. A.D. Shah has argued that though the injuries may be 20 in number, there was no intent to cause death nor were they enough, in the ordinary course sufficient to cause death. In support of his contention that the conviction under Section 302 ought to be converted into one under Section 304 (Part II) IPC, he submitted that it was evident from the testimony of Dr. Vadgama that each one of the injuries were such as could be cured and they were not on the vital organs of the body. He submitted that even according to the doctor they were not sufficient in the ordinary course of nature to cause death and therefore the case of the accused did not fall within the scope of Section 300 and therefore the conviction deserved to be altered to that of one under Section 304 (Part-II) of the Indian Penal Code. Admittedly, therefore, according to Mr. Shah, the case did not fall within the ambit of Section 300 IPC and therefore though it was culpable homicide but not amounting to murder. Admittedly, therefore, according to Mr. Shah, the case did not fall within the ambit of Section 300 IPC and therefore though it was culpable homicide but not amounting to murder. 6.1 The following decisions were relied upon by Shri Shah in support of his contentions: [1] Bhoopat Singh vs. J.B.Katariya, (2009) 17 SCC 484 According to Mr. Shah, in this case where the deceased had received as many as 18 injuries, on the basis of medical evidence, the conviction was converted to one under Section 304 (Part II). The Supreme Court, in para 13 of the judgment observed that from the testimony of the doctor, it was not safe to come to a firm conclusion that the injuries inflicted by the appellant were sufficient to cause death in the ordinary course of nature and therefore the High Court cannot be sad to have erred in altering the conviction from Section 302 to Section 304- Part-II of IPC. [2] Kariya vs. State Of Karnataka, (2002) 6 JT 582 This judgment was cited by Shri Shah in support of Dr. Vadgama’s testimony in the present case where he had categorically opined that the injuries were not inflicted on the vital parts of the body. Mr. Shah specifically relied on para 19 of the aforesaid judgment to suggest that though 14 injuries were sustained they were not on the vital parts and the same was converted into one under Section 304-Part II of IPC. [3] Ram Lal, vs. Delhi Administration, AIR (1972) SC 2462 Here, the Supreme Court had held that in absence of evidence as to who had given the lathi blows the conviction under Section 302 was required to be altered to one under Section 325 r/w Section 34 of the IPC. [4] Surinder Kumar vs. Union Territory, Chandigarh, AIR (1989) SC 1094 This was relied by Mr. Shah in support of his submission that when there is no premeditation, benefit ought to be given and the conviction be altered to one under Section 304-Part II. [5] Jagdish Prasad alias J.P. and Ors vs. State Of Rajasthan, AIR (2017) SC 2381 Citing the above decision, it was the contention of Mr. Shah that as held by the Hon’ble Supreme Court when injuries are not caused on the vital parts of the body, the conviction deserves to be modified. [5] Jagdish Prasad alias J.P. and Ors vs. State Of Rajasthan, AIR (2017) SC 2381 Citing the above decision, it was the contention of Mr. Shah that as held by the Hon’ble Supreme Court when injuries are not caused on the vital parts of the body, the conviction deserves to be modified. [6] Tularam vs. State Of Madhya Pradesh, AIR (2018) SC 2146 The Apex Court, while deciding the aforesaid case, in absence of premeditation to kill and only causing contusion, had converted the conviction into one under Section 304 (Part II) Indian Penal Code from 302 IPC. [7] Manoj Kumar vs. State Of Himachal Pradesh, AIR (2018) SC 2693 This is also cited in support of the case of absence of premeditation. 6.2 In short, if Mr. Shah’s submission is to be summarised, it is his case that though the number of injuries are 20, they are not on the vital part of the body. The medical evidence of Dr. Vadgama - PW. 19 supports his case, as it has clearly come out from his testimony that the injuries are not on the vital part of the body; that each injury was not fatal and that they were not sufficient in the ORDINARY course of nature to cause death. The testimony of Dr. Vadgmama did not specifically state that the injuries were sufficient in the ordinary course of nature to cause death. All these would definitely suggest that the accused did not intend to cause death. The conviction be accordingly altered to one under Section 304-Part-II and the rigor of life sentence be accordingly reduced to that of rigorous imprisonment for ten years. 7. As against Mr. Shah’s plea of reducing the rigors of conviction, Mr Rutvij Oza, learned Additional Public Prosecutor would contend that the conviction and sentence under Section 302 r/w Section 114 of the Indian Penal Code does not deserve to be disturbed. He submitted that from the version of the complainant which is borne out from reading the complaint, it is evident that the incident took place in an open field. The incident is also witnessed by the complainant. He submitted that from the version of the complainant which is borne out from reading the complaint, it is evident that the incident took place in an open field. The incident is also witnessed by the complainant. Surely there was premeditation and intention in view of the fact that Irfan - accused No. 3 went back and returned in ten minutes with his father and brother wielding pipes and severely hitting the deceased Sadam on all parts of the body with such ferocity to have caused 21 injuries. Intention was, therefore, evident that they wanted that Sadam be done to death. 7.1 He submitted that the act is also supported by the testimony of P.W. 9 - Abubhai Osmanbhai Mundra who had witnessed the incident and had seen the accused wielding pipes and lathi. Relying on the testimony of P.W. 19 - Dr. Vadgama, Mr. Oza submitted that the ferocity and the number of injuries caused had certainly been noted that they were sufficient to cause death. The cause of death was indeed hemorrhagic shock as a result of such injuries and therefore the conviction did not deserve to be altered to that of one under Section 304-Part II of the IPC. 7.2 In support of his submission, Mr Rutvij Oza has relied on the decision of the Supreme Court in the case of State Of Andhra Pradesh vs. Rayavarapu Punnayya And Another, (1976) 4 SCC 382 . Mr Oza extensively relied on the observation of the judgment in the case of Anda vs State of Rajasthan, AIR (1966) SC 148 quoted in the body of this judgment to contend that even if the injuries were not on the vital part of the body and weapons used may not have been specially dangerous, at the same time, the fact that hands and legs were smashed and that the injuries caused were sufficient to cause death in the ordinary course of nature even if cannot be said that his death was intended to be caused, it was sufficient to bring the case within thirdly of Section 300. In the facts on hand, relying on testimony of Dr. Vadgama, Mr Oza contended that injuries listed when read together with the medical opinion, the Court had committed no error in convicting and sentencing the appellants under Section 302 of the Indian Penal Code. In the facts on hand, relying on testimony of Dr. Vadgama, Mr Oza contended that injuries listed when read together with the medical opinion, the Court had committed no error in convicting and sentencing the appellants under Section 302 of the Indian Penal Code. Mr Oza drew our attention to various injuries and the fact that the cause of death was hemorrhagic shock would in itself be enough to sustain the conviction and sentence handed out by the learned Additional Sessions Judge in the impugned judgment and order. 7.3 Mr. Oza also relied on a decision of the Supreme Court in the case of State Of Madhya Pradesh vs. Goloo Raikwar And Another, (2016) 12 SCC 139 . Mr Oza specifically pointed out that the judgment in the case of Rayavarapu Punnayya (Supra) was referred to herein with agreement. However, we shall distinguish this judgment, because in the facts of the case, the weapons were country made bombs and therefore clearly distinguishable in the context of the weapons such as pipes used by the appellants herein. Rigours of that judgment therefore will certainly not apply in the present case. We may point out that as pointed out by Mr A. D. Shah, learned counsel for the appellant, the case of Rayavarapu Punnayya (supra) was also referred to in the case of State of A.P vs. Naragudem Papireddy and Others, (2004) 9 SCC 14 where looking to the weapons used and the fact that the injuries were not caused on the vital parts of the body, the Supreme Court converted the conviction to that of one under Section 325/324 IPC. 8. Having heard learned advocates appearing on behalf of the respective parties and having perused the evidence on record, in order to appreciate the question raised before us i.e. whether, the intention of causing such bodily injury as is likely to cause death and whether such injury intended to be inflicted is sufficient in the ordinary course of nature to cause death and therefore fall within “thirdly” of Section 300, or escape the rigor and be culpable homicide not amounting to murder and therefore the benefit of Section 304-Part II is available or not, let us reproduce the relevant provisions of Sections 299, 300, 302 and 304 of the Indian Penal Code. The provisions read as under: “299. The provisions read as under: “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- (Secondly)-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- (Thirdly)-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- (Fourthly)-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. 302. Punishment for murder.-Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine. 304. Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished with 1[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.” 9. In context of whether in the case of the appellants, Section 302 IPC would be applicable or not, it has been very succinctly laid down by the Apex Court in the case of Buddhi Lal vs. State of Uttarakhand, AIR (2009) SC 87 discussing the scheme of IPC vis- -vis “culpable homicide” and “murder”. Relevant paras namely paras 12 to 16 read as under: “12. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide’ sans ‘special characteristics of murder is culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the gravest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 13. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 200 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (1) with the intention of causing death; or (2) 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 (3) 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 KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 15. Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words ‘likely to cause death’ occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury.........sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 16. The word ‘likely’ in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words “bodily injury.........sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 16. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and Anr. v. State of Kerala, AIR (1966) SC 1874 is an apt illustration of this point.” 9.1 Reading the relevant paragraphs reproduced hereinabove what one gathers therefrom is that culpable homicide is murder and therefore an offence punishable under Section 302 of the Indian Penal Code if the act by which the death is caused is done - [a] With the intention of causing death: or [b] With the intention of causing such bodily injury as the offender knows to be likely to cause death or [c] 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 [d] With the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury that is likely to cause death. 9.2 In the facts of the case in the present appeal, what is seen is that the incident started when the deceased, Sadam and accused No. 3 Irfan were playing games on the mobile. The altercation occurred over the mobile game. The accused no. 3 Irfan left the scene. He returned after ten minutes, in the company of his father - accused no. 1 - Osman alias Daadlo and his brother accused no. 2 - Mohmad Osman. Mohmad came armed with pipes and Irfan was armed with a stick. As per the prosecution case, which is supported by the medical evidence, and not even disputed by the defence, that Osman, with the pipe in his hand inflicted a blow on the left frontal portion of the forehead of Sadam. Mohmad hit Saddam with his pipe below the knees on both the legs and Irfan - accused no. 3 hit Sadam on his arms. Mohmad hit Saddam with his pipe below the knees on both the legs and Irfan - accused no. 3 hit Sadam on his arms. 9.3 The incident happened at 9:30 am. Jusab, along with the brother of the deceased, Abdul and one Farook carried Sadam in the Indica Car to G.G.Hospital at Jamnagar where he was admitted at 11:45 am. Dr. Bhasin - P.W. 24 and Dr. Nehal Gandhi - P.W. 22 were the Medical Officers on duty at the G.G.Hospital. They recorded the history where Sadam named all the three accused and the role each one of them played in the injuries that were caused, which ultimately led to his death at 2:00 pm the same day. That the injuries sustained resulted in his death would therefore bring it within the ambit of “culpable homicide” but whether it was “murder”? 9.4 The testimony of Dr. Dinesh Vadgama P.W. 19 at Exh. 88 here becomes crucial. The PM Note at Exh 89 records the injuries sustained by the deceased as referred in para 5.3 of this judgment. As per the testimony, he noticed the injuries which we have reproduced in the earlier part of our judgment. What comes out from his evidence is that there was no fracture or injury on the head and the brain covering was intact. No injury was seen on the chest region. That the cause of death was hemorrhagic shock due to multiple injuries. The Medical Officer did testify that these injuries were sufficient to cause death. When we minutely deal with the cross-examination of the doctor, what clearly emerges is that there was no bleeding injury on the forehead. Injuries no. 1 to 9 were simple injuries. All injuries including injuries no. 12 to 14 were injuries, which in the opinion of the doctor were curable injuries which were cause of ordinary blood loss. Injuries no. 13 to 15 also were curable on treatment. None of the injuries were on the vital part of the body. 9.5 For better understanding of testimony of Dr. Dinesh Vadgama PW-19, relevant portion of his examination-in-chief Exh.88 is reproduced herein below: “Exh.88 Deposition of Prosecution Witness No.19, Dr. Divyeshbhai Keshavjibhai Vadgama, Professor, PDU Medical College, Rajkot 1 On 7/6/2012 myself and my colleague doctor Ketan Balas were on duty at the M.P. Shah Medical College, Jamnagar in the Forensic Medicine Division, at that time ASI Mr. Dinesh Vadgama PW-19, relevant portion of his examination-in-chief Exh.88 is reproduced herein below: “Exh.88 Deposition of Prosecution Witness No.19, Dr. Divyeshbhai Keshavjibhai Vadgama, Professor, PDU Medical College, Rajkot 1 On 7/6/2012 myself and my colleague doctor Ketan Balas were on duty at the M.P. Shah Medical College, Jamnagar in the Forensic Medicine Division, at that time ASI Mr. C.B.Jhala, City - B. Division Police Station, Jamnagar came with one male corpse having name Saddam Hussainbhai Shetha for autopsy. This corpse and the police documents with it such as, police yadi, after death form and inquest panchanama were received on 7/6/2012 at 9.15 hours in the morning. The autopsy of this corpse was done on 7/6/2012 in the morning started at 9.30 and concluded at 10.30 in the morning. 2 On carrying out the external examination of the corpse the following observations were made. The corpse brought was of 17 years male identified body. There was grey colour underwear on the body. There were two clothes covering the corpse. Underwear was wet. On both legs and left forearm there was surgical bandage tied with temporary slab, there was black thread on the neck, the corpse was medium built and cold, in all parts of the body rigor mortis was fully developed, PM lividity was found in the backside of the body and it was fixed, mouth and eyes were close, tongue was inside cavity, on the body there were blood marks found, both hands and leg were straight with body. 3 On the corpse there were injuries as recorded in the column No.17, which are as under: [All injuries described by this witness are reproduced in para 5.3 of this judgment, therefore, we are not repeating the same] 4 On carrying out the internal examination of the corpse the following observations were made. On the head of the corpse there was no injury or fracture found, all the coverings of the brain were intact, brain was pale, there was no injury or fracture found on the torso. Both the lungs were pale, the internal wall of the stomach was normal and there was about 50 cc normal odour liquid in the stomach. In the intestine there was yellow paste like substance found, the internal organs in the abdomen were pale, during the autopsy clothes and blood samples were preserved. Both the lungs were pale, the internal wall of the stomach was normal and there was about 50 cc normal odour liquid in the stomach. In the intestine there was yellow paste like substance found, the internal organs in the abdomen were pale, during the autopsy clothes and blood samples were preserved. 5 In the opinion of myself and my colleague doctor Ketan Balas the death of the said Saddam Hussainbhai Shetha had taken place due to several injuries and bleeding and shock. 6 From the court records I am shown Mark 7/18 original PM note, on perusal of the same I say that, it is in the handwritings of my colleague doctor Ketan P. Balas, I identify the handwritings of my colleague doctor and at the bottom of this PM myself and my colleague doctor Ketan P. Balas have signed, and the description of the external injuries is given on page No. 4A and 4B on both these pages myself and my colleague doctor have signed, and myself and my colleague doctor have given a short report at the end of the PM and on the said short report myself and my colleague doctor Ketan P. Balas have signed, and at the bottom of the report myself and my colleague doctor have signed and stamped, I identify the same, it is produced in this matter as Exh. 89. I was given the Mark 7/17 yadi for autopsy of the copse with the after death form, I have brought the original other than the fracture all injuries were such that could be seen. It is not true that, the fractures that were on the corpse from amongst these not a single fracture was open fracture. It is true that, the entry of the open fracture is made in the PM note. It is true that, in the PM report there is no entry made regarding the open fracture. The witness deposed that, in the PM report injury No. 13 and injury No. 15 shown are open fractures because, at both these places the skin above the fracture is split lacerations shown as injury Nos. 12 and injury No. 14. It is true that, injury No. 12 and 14 were seen upto the bone no such entry is made in the PM note. It is true that, in the injury No. 12 and 14 bone was not visible. 12 and injury No. 14. It is true that, injury No. 12 and 14 were seen upto the bone no such entry is made in the PM note. It is true that, in the injury No. 12 and 14 bone was not visible. It is not true that, from the fracture injury the bone is visible only then such fracture is said to be open fracture. In my opinion it is not necessary for the bone to be seen. In my opinion if the tissues above the fractured area are fully damaged and fracture is communicated outside then it is called open fracture, moreover it is deposed that, in the open fracture after the upper area tissues are injured thereafter also in certain cases it is covered, that is the open fracture cannot be seen from outside. It is true that, in the injury No. 12 and 14 the tissues were fully destroyed, this is recorded in the PM note. It is true that, in the injury No. 12 and 14 the tissues were fully destroyed this is recorded in the PM note. It is true that, how deep was the injury No.12 and 14 there is no entry made in the PM note. It is true that, a normal person who does not have any medical knowledge cannot say anything about a single fracture. It is true that, before carrying out the autopsy we were sent the inquest panchanama yadi, and we had examined the same. It is true that, on the left temple there was no bleeding or injuries from which blood was coming out were not seen by us. The witness has further deposed that, 3 cm from the left eyebrow there was entry shown as injury No. 1. Cheek is cheek part and there is difference between cheek and temple. It is true that, the injury No. 1 was found near the cheek. It is true that at the time of autopsy there was no bleeding from the injuries on the corpse. It is true that, from the column No. 17 injuries there was not a single injury that, the blood veins were cut. It is true that, by the injury No. 1 there was no serious injury caused to any internal vital organ. It is true that, injury No. 1 was not such that maximum blood supplies in the body would flow out. It is true that, by the injury No. 1 there was no serious injury caused to any internal vital organ. It is true that, injury No. 1 was not such that maximum blood supplies in the body would flow out. It is true that, injury No. 1 could be cured by treatment it was such nature of injury. It is true that, injury No. 1 would normally get healed in about 15 to 20 days. It is true that, injury No. 2 is simple injury and it can be healed by treatment. It is true that, injury No. 2 was not such that would cause maximum blood loss in the body. It is true that, injury No. 2 was not bleeding injury. It is true that, in contusion injury No. 3 there would be maximum blood loss, it was not such type of injury and it was such that could be healed by normal treatment. It is true that, injury No. 4 fracture was such that could be mended by normal treatment. It is true that, injury No. 5 would not cause maximum blood loss and it was simple nature of injury, and can be healed by normal treatment. It is true that, injury No. 6 and 7 were simple injuries and these injuries would not cause maximum blood loss and there is no entry regarding any blood loss made in the PM note. It is true that, injury No. 8 was not injury on any vital part and it was simple injury that could be healed by treatment. It is true that, injury No. 8 was not such that would cause maximum blood loss in the body. It is true that, injury No. 9 would normally be healed on giving treatment. It is true that, injury Nos. 10, 11 and 12 were not injuries on any vital part of the body and were such type of injuries that would heal by giving treatment, all these injuries would not cause maximum blood loss but there would be normal blood loss. It is true that, how deep was the injury No. 12 is not recorded in the PM note. It is true that, injury No. 12 did not cause any damage to blood vessels in the body. It is true that, injury No. 13 was such that could be healed by treatment. It is true that, how deep was the injury No. 12 is not recorded in the PM note. It is true that, injury No. 12 did not cause any damage to blood vessels in the body. It is true that, injury No. 13 was such that could be healed by treatment. It is true that, injury No. 14 was simple injury and by the said injury there is no damage caused to any blood vessels and it was such that could be healed by treatment. It is true that, injury No. 15 fracture could be healed by treatment it was such nature of injury. It is true that, injury Nos. 16, 17, 19 and 20 were simple injuries and were not on the vital parts of the body, and by these injuries there would not be maximum blood loss and these injuries were such that can be healed by treatment. It is true that, injury No. 18 was such that can be cured by treatment. It is true that, all the injuries shown in the column No. 18 were such that could be cured by treatment. It is true that, none of these injuries can be said to be injuries on the vital part of the body.with me, on which Dr. Alpesh Bambhaniya has endorsed the acknowledgment of receipt, on which he has endorsed the date, time and his signature, I identify the same, it is produced in this matter as Exh. 90. 7 It is true that, all these injuries were sufficient to cause death. The injuries shown in the column No. 17 can be caused using hard blunt substance such as, stick, pipe and etc. I am shown the muddamal weapons by opening the seal. Muddamal article No. 10 is one steel pipe and article No. 11 is shown it is also steel pipe and muddamal article No. 12 is one stick, all these muddamal articles are shown to me. It is true that, using such type of weapons the injuries recorded in the column No. 17 are possible. I am shown muddamal article No. 13 on looking at the same I say that, it is the grey colour underwear worn by the corpse, it is the same. Cross examination on behalf of all the accused by learned advocate Mr. D.M. Virani through the proxy advocate Mr. H.M. Bhatt. I am shown muddamal article No. 13 on looking at the same I say that, it is the grey colour underwear worn by the corpse, it is the same. Cross examination on behalf of all the accused by learned advocate Mr. D.M. Virani through the proxy advocate Mr. H.M. Bhatt. 8 It is true that, under normal circumstances other than fracture all injuries can be seen and in the present case also other than the fracture all injuries were such that could be seen. It is not true that, the fractures that were on the corpse from amongst these not a single fracture was open fracture. It is true that, the entry of the open fracture is made in the PM note. It is true that, in the PM report there is no entry made regarding the open fracture. The witness deposed that, in the PM report injury No. 13 and injury No. 15 shown are open fractures because, at both these places the skin above the fracture is split lacerations shown as injury Nos. 12 and injury No. 14. It is true that, injury No. 12 and 14 were seen upto the bone no such entry is made in the PM note. It is true that, in the injury No. 12 and 14 bone was not visible. It is not true that, from the fracture injury the bone is visible only then such fracture is said to be open fracture. In my opinion it is not necessary for the bone to be seen. In my opinion if the tissues above the fractured area are fully damaged and fracture is communicated outside then it is called open fracture, moreover it is deposed that, in the open fracture after the upper area tissues are injured thereafter also in certain cases it is covered, that is the open fracture cannot be seen from outside. It is true that, in the injury No. 12 and 14 the tissues were fully destroyed, this is recorded in the PM note. It is true that, in the injury No. 12 and 14 the tissues were fully destroyed this is recorded in the PM note. It is true that, how deep was the injury No.12 and 14 there is no entry made in the PM note. It is true that, a normal person who does not have any medical knowledge cannot say anything about a single fracture. It is true that, how deep was the injury No.12 and 14 there is no entry made in the PM note. It is true that, a normal person who does not have any medical knowledge cannot say anything about a single fracture. It is true that, before carrying out the autopsy we were sent the inquest panchanama yadi, and we had examined the same. It is true that, on the left temple there was no bleeding or injuries from which blood was coming out were not seen by us. The witness has further deposed that, 3 cm from the left eyebrow there was entry shown as injury No. 1. Cheek is cheek part and there is difference between cheek and temple. It is true that, the injury No. 1 was found near the cheek. It is true that at the time of autopsy there was no bleeding from the injuries on the corpse. It is true that, from the column No. 17 injuries there was not a single injury that, the blood veins were cut. It is true that, by the injury No. 1 there was no serious injury caused to any internal vital organ. It is true that, injury No. 1 was not such that maximum blood supplies in the body would flow out. It is true that, injury No. 1 could be cured by treatment it was such nature of injury. It is true that, injury No. 1 would normally get healed in about 15 to 20 days. It is true that, injury No. 2 is simple injury and it can be healed by treatment. It is true that, injury No. 2 was not such that would cause maximum blood loss in the body. It is true that, injury No. 2 was not bleeding injury. It is true that, in contusion injury No. 3 there would be maximum blood loss, it was not such type of injury and it was such that could be healed by normal treatment. It is true that, injury No. 4 fracture was such that could be mended by normal treatment. It is true that, injury No. 5 would not cause maximum blood loss and it was simple nature of injury, and can be healed by normal treatment. It is true that, injury No. 4 fracture was such that could be mended by normal treatment. It is true that, injury No. 5 would not cause maximum blood loss and it was simple nature of injury, and can be healed by normal treatment. It is true that, injury No. 6 and 7 were simple injuries and these injuries would not cause maximum blood loss and there is no entry regarding any blood loss made in the PM note. It is true that, injury No. 8 was not injury on any vital part and it was simple injury that could be healed by treatment. It is true that, injury No. 8 was not such that would cause maximum blood loss in the body. It is true that, injury No. 9 would normally be healed on giving treatment. It is true that, injury Nos. 10, 11 and 12 were not injuries on any vital part of the body and were such type of injuries that would heal by giving treatment, all these injuries would not cause maximum blood loss but there would be normal blood loss. It is true that, how deep was the injury No. 12 is not recorded in the PM note. It is true that, injury No. 12 did not cause any damage to blood vessels in the body. It is true that, injury No. 13 was such that could be healed by treatment. It is true that, injury No. 14 was simple injury and by the said injury there is no damage caused to any blood vessels and it was such that could be healed by treatment. It is true that, injury No. 15 fracture could be healed by treatment it was such nature of injury. It is true that, injury Nos. 16, 17, 19 and 20 were simple injuries and were not on the vital parts of the body, and by these injuries there would not be maximum blood loss and these injuries were such that can be healed by treatment. It is true that, injury No. 18 was such that can be cured by treatment. It is true that, all the injuries shown in the column No. 18 were such that could be cured by treatment. It is true that, none of these injuries can be said to be injuries on the vital part of the body. It is true that, injury No. 18 was such that can be cured by treatment. It is true that, all the injuries shown in the column No. 18 were such that could be cured by treatment. It is true that, none of these injuries can be said to be injuries on the vital part of the body. In my opinion in a 17 year old youth for every one kilo weight there is 70 ml blood in the body. We had not measured the weight and height of the corpse. It is true that, if there is 1/3rd blood loss in the body then there is damage caused to the vital part of the body and therefore the hemorrhagic shock would be suffered. It is true that, in the body of the deceased 1/3rd or more blood loss would have taken place. It is true that, the injuries shown on the corpse may not have been necessarily caused using the muddamal weapons, and these injuries can be caused using any blunt substance. It is not true that, the cause of death stated by us is not consistent with the Medical Jurisprudence. It is not true that, there are no possibilities that the injuries shown in the Column No. 17 would cause more than 1/3rd or more blood loss. It is not true that, I have given false opinion in collusion with the prosecution. It is not true that, in the inquest panchanama column No. 17 injuries are not shown. It is true that, in the inquest panchanama other than the fracture there are no visible injuries mentioned. It is not true that, I am in collusion with the prosecution and shown false and additional injuries in the PM note. It is not true that, I am making false deposition on oath.” 9.6 In cross-examination Dr. Ashok Roshanlal Bhasin PW-24 Exh.118 admitted as under: “2 It is true that, at the relevant time I was working as the CMO. And as CMO we have to examine several cases. It is true that, there are more cases therefore only on basis of memory if there is no entry made regarding the injuries then it cannot be stated. I am shown OPD case papers rear side, on which 6/6/12 is written such entry is made, it is by the emergency department doctor. It is true that, there are more cases therefore only on basis of memory if there is no entry made regarding the injuries then it cannot be stated. I am shown OPD case papers rear side, on which 6/6/12 is written such entry is made, it is by the emergency department doctor. I had examined this patient and immediately referred to the emergency department. 3 When the patient reached the emergency department at that time the patient was unconscious. On perusal of the case documents I say that, this patient had reached at 11-45. It is true that, in the case papers what nature of injuries, how many injures and using which weapons the injuries were caused is not recorded in the case papers by me. The patient had multiple injuries or not is not recorded in the case papers. It is true that, if the patient himself gives history then we are recording the same. It is true that, in the case papers the patient had himself given the history or the person with him had given in this regard there is no clarification made. The witness voluntarily states that, the condition of the patient was very serious that, what was he saying had to be heard very carefully and at that time the brother of the patient was also present there and he was also narrating. 4 It is true that, the patient came to me and at that time whether he was fit and mentally healthy to make any statement or not in this regard there is no entry made in the case papers. It is true that, in the case papers it is not recorded that any injury was of serious nature by me. It is true that, other than blood injury I did not see any other injuries. It is true that, it is not recorded in the documents that any one injury was bleeding. I am in agreement with the fact that, if bone area is injured using bat and pipe forcefully then CLW injury is possible. And on perusal of the case papers I say that I had not seen any CLW injury. 5 On examining the patient I had found that, there were more than one injuries on the head of the patient and it was bleeding. And on perusal of the case papers I say that I had not seen any CLW injury. 5 On examining the patient I had found that, there were more than one injuries on the head of the patient and it was bleeding. It is not true that, there was not a single injury on the head of the patient. It is true that, I had seen injuries on both the hands and both legs of the patient, and these injuries were blunt injuries. There was bleeding from the hands and legs and there was edema. I am in agreement with the fact that, if any person gets thrown on any hard surface and falls and accident takes place then blunt injuries are probable. It is true that, the time that is recorded in the case papers it is of twelve o’clock and at that time I had examined the patient. It is true that, the place from where the case papers are issued from the said window after one room there is CMO room. And on perusal of the case papers prepared at the case window I say that, the said case was registered at eleven twenty five.” [emphasis supplied] The above testimony of Dr. Ashok Roshanlal Bhasin PW-24 Exh.118 reveals that in case papers it is not recorded that any injury was of serious nature and other than blood injury he did not see any other injuries. That injuries were blunt injuries and by and large on hands and both legs. 9.7 In the background of this medical evidence, can it be said that that the injuries inflicted on the body of the deceased were so inflicted with the knowledge that it is likely to cause death, but without any intention to cause death, or such bodily injury as is likely to cause death, so as to fall within the ambit of Section 304-Part-II? Looking to the manner and the incident as it happened, when the deceased Sadam and accused Irfan were playing a game on the mobile which led to the starting of the altercation and thereafter Irfaan returned with the other two and carried out the attack and looking to the multiple injuries which are 21 in number was whether the causing of such bodily injuries were sufficient in the ordinary course of nature to cause death and hence would the case fall in the “thirdly” clause of Section 300? 10. Let us therefore fall back on the judgment of the Supreme Court, in the case of Virsa Singh vs State of Punjab, AIR (1958) SC 465 which even as per the later judgments is the locus classicus. In the case of Virsa Singh (supra), Khem Chand, the deceased died to a spear thrust which caused a punctured wound 2”x1/2” transverse in direction on the left side of the abdominal wall in the lower part of the iliac region. As per the medical evidence, three coils of intestines were coming out of the wound. The doctor had opined that the injury was sufficient to cause death in the ordinary course of nature. The defence had argued that the prosecution had failed to prove that there was intention to inflict bodily injury that was sufficient to cause death in the ordinary course of nature. The Court in face of such facts observed as under: “9. This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary course of nature, then the intention is to kill and in that event, the “thirdly” would be unnecessary because the act would fall under the first part of the section, namely - “If the act by which the death is caused is done with the intention of causing death.” In our opinion, the two clauses are disjunctive and separate. The first is subjective to the offender : “If it is done with the intention of causing bodily injury to any person. The first is subjective to the offender : “If it is done with the intention of causing bodily injury to any person. It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present. 10. Once that is found, the enquiry shifts to the next clause :- “and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.” The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it that is to say, if the circumstances justify an inference that a man’s intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining- “and the bodily injury intended to be inflicted” is merely descriptive. All the means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference of deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention. 11. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that “twelve good men and true” could readily appreciate and understand. 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. 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 no 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. 14. We were referred to a decision of Lord Goddard in R. v. Steane, (1947) 1 AllER 813 at p. 816 (A) where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that S. 300 “thirdly” requires, and how is it to be proved? 15. The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: “if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury’s satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted”. We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment: “No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged”. That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three place. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury. 16. The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan, AIR (1916) Bombay 191 at p. 192 : ILR 41 Bom 27 at p. 29, (B) where Beaman J., says that : “where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended”. With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, in not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he know of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the would is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. 17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess-work and fanciful conjecture. 18. The appeal is dismissed.” 10.1 What is culled out especially from reading paragraph no. 12 of the judgment is that in order to prove that the case falls within Section 300 “thirdly”, the prosecution must establish four things: [a] that the bodily injury is present. [b] the nature of injury must be proved [c] it must be proved that there was an intention to inflict that particular bodily injury. [d] it must be proved that the injury of the type just described is sufficient to cause death in the ordinary course of nature. 11. Applying these parameters to the facts of the present appeal, it is not disputed even by the defence that the injuries were inflicted by the pipes and stick. The medical evidence suggests that all the injuries were not on the vital part of the body. Each injury was curable and there was no injury on the head fatal enough as there was no fracture and the brain was intact. P.W. 19, Dr Vadgama though opined that the injuries were sufficient to cause death, no evidence based on the nature of injuries which were not fatal, were such as were likely to cause death or sufficient in the ordinary course of nature to cause death. That aspect was missing in the medical opinion. In effect, if the testimony of Dr Vadgama is seen in the whole context, it is evident that the injuries all put together were not fatal but curable after treatment. All such injuries may have resulted in hemorrhagic shock and not haemorrhage as the brain was intact. That aspect was missing in the medical opinion. In effect, if the testimony of Dr Vadgama is seen in the whole context, it is evident that the injuries all put together were not fatal but curable after treatment. All such injuries may have resulted in hemorrhagic shock and not haemorrhage as the brain was intact. All these suggest that the case would squarely fall within the ambit of Section 304 Part II IPC as the injuries inflicted were not which were such bodily injuries as were likely to cause death. It will be beneficial to supplement and support the aforesaid reason with the observation of the Supreme Court in the case of Nankaunoo vs State Of Uttar Pradesh, (2016) 3 SCC 317 : “11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering the clause thirdly of Section 300 IPC and reiterating the principles in Virsa Singh’s case, in Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32 , para (12), this Court held as under:- “12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7) “These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465 for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law.” The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.” 12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place.” [emphasis supplied] 12. The emphasis, therefore, is in the sufficiency of such injury to cause death in the ordinary course of nature. On reading the testimony in the appeal, from the evidence of Dr. Vadgama coupled with the fact that the injuries were not fatal and also not on the vital parts of the body, they were not sufficient enough to cause death in the ordinary course of nature. In the case of Rayavarapu Punnayya (supra) relied upon by Mr Oza, learned Additional Public Prosecutor, the doctors had clearly opined that the injuries were sufficient enough to cause death in the ordinary course of nature and therefore both the elements of Section 300 that whether the bodily injuries found on the deceased were intentionally inflicted and if so were they sufficient to cause death in the ordinary course of nature stood established. 13. In the cases relied on by Mr. Oza, learned APP viz. Rayavarapu Punnayya [supra] and Goloo Raikwar [supra], injuries were 5 in number and victim was beaten with sticks on legs and arms and thereafter when hospitalized the deceased succumbed to his injuries. In both cases the doctors, who conducted postmortem definitely opined cause of death was shock and haemorrhage resulting from multiple injuries and the said injuries were cumulatively sufficient to cause death in the ordinary course of nature. In both cases the doctors, who conducted postmortem definitely opined cause of death was shock and haemorrhage resulting from multiple injuries and the said injuries were cumulatively sufficient to cause death in the ordinary course of nature. In the above context, it was borne out from the evidence on record that all injuries intentionally caused by the accused are cumulatively sufficient to cause the death in ordinary course of nature and even if none of those injuries individually measures up to such sufficiency, the expression “bodily injury” in clause Thirdly will be attracted bringing the case under Section 300 of the IPC. 13.1 In the case of Rayavarapu Punnayya [supra], in para 35, Dr. Sarojini PW-12 testified that the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death, which reads as under: “35 This takes us to the second element of Clause (3). Dr. Sarojini, PW 12, testified that the injuries of the deceased were cumulatively sufficient in the ordinary course of nature to cause death. In her opinion - which we have found to be entirely trustworthy - the cause of the death was shock and haemorrhage due to the multiple injuries. Dr. Sarojini had conducted the post-mortem examination of the deadbody of the deceased. She had dissected the body and examined the injuries to the internal organs. She was therefore the best informed expert who could opine with authority as to the cause of the death and as to the sufficiency or otherwise of the injuries from which the death ensued. Dr. Sarojini’s evidence on this point stood on a better footing than that of the Doctors (PWs. 11 and 26) who had externally examined the deceased in his life-time. Despite this position, the High Court has not specifically considered the evidence of Dr. Sarojini with regard to the sufficiency of the injuries to cause death in the ordinary course of nature. There is no reason why Dr. Sarojini’s evidence with regard to the second element of Clause (3) of s. 300 be not accepted. Dr. Despite this position, the High Court has not specifically considered the evidence of Dr. Sarojini with regard to the sufficiency of the injuries to cause death in the ordinary course of nature. There is no reason why Dr. Sarojini’s evidence with regard to the second element of Clause (3) of s. 300 be not accepted. Dr. Sarojini’s evidence satisfactorily establishes the presence of the second element of this clause.” Therefore, in para 36 the Apex Court held as under: “36 There is therefore, no escape from the conclusion, that the offence committed by the accused was ‘murder’, notwithstanding the fact that the intention of the accused to cause death has not been shown beyond doubt.” 13.2 In the facts of this case Dr. Vadgama PW-19 is not giving clear and specific opinion even about single injury independent of others was serious enough to result into fatal consequences like death. 13.3 In the facts of this case, a direct casual connection between act of the accused and death cannot be said to have been established in view of the fact that sufficient evidence is not brought on record to prove that all injuries were direct cause of the death. In the above case, the Apex Court relied on another decision in the case of Anda [supra] wherein the aim of assailants was found premeditated and calculated and 19 injuries included fractures of most of the bones of the legs and the arms. So is not the case in the present case. 13.4 In the facts of this case since Dr. Divyeshbhai Vadgama PW-19 Exh.88 categorically deposed that there was no visible fracture on the head and the brain was intact and there were no fractures or injuries on the chest and in the opinion and that of Dr. Balas, the death was a result of blood loss as a result of multiple injuries on the body, and therefore, the present case do not fall within the scope of Section 300 of the IPC as per the law laid down in the cases [1] Bhoopat Singh [supra], [2] Kariya [supra], [3] Ram Lal [supra], [4] Surinder Kumar [supra], [5] Jagdish Prasad alias J.P. [supra], and [6] Manoj Kumar [supra]. Therefore, the accused are entitled for altering the conviction from Section 302 to Section 304 of the IPC. 14. Therefore, the accused are entitled for altering the conviction from Section 302 to Section 304 of the IPC. 14. In the present appeal, the prosecution has through the examination of the doctors failed to examine and bring on record the second issue of the sufficiency of the injuries to cause death in the ordinary course of nature. Hence, we are inclined to accept the submission of Mr A.D. Shah, learned advocate for the appellants and alter the conviction and sentence of the appellants from one for life under Section 302 of the Indian Penal Code, to that of imprisonment for a term of ten years under Section 304 (PartII) IPC, maintaining the fine and the default sentence on failure to pay such fine. 15. Accordingly, the conviction of the appellants - original accused under Section 302 of the Indian Penal Code vide judgment and order dated 12.10.2017 passed by the learned Additional District & Sessions Judge, Devbhoomi Dwarka at Khambhaliya in Sessions Case No. 67 of 2012 is altered to conviction under Section 304 (Part-II) of Indian Penal Code. The appellants - original accused are ordered to undergo rigorous imprisonment for a period of ten years under section 304 (Part-II) of Indian Penal Code. The judgment and order dated 12.10.2017 is modified accordingly. Appeal is accordingly partly allowed. Records and Proceedings to be remitted to the Trial Court forthwith. In view of the disposal of the main appeal, no orders on Criminal Miscellaneous Application No.1 of 2018. The same stands disposed off.