JUDGMENT : DR. PUSHPENDRA SINGH BHATI, J 1. This criminal appeal under Section 374(2) Cr.P.C. has been preferred claiming the following relief: “It is, therefore, most respectfully and humbly prayed that this appeal may kindly be allowed and the impugned Judgment dated 12.09.2018 passed by the learned Sessions Judge, Dungarpur, in Sessions Case no.60/2015 for the offence U/s 302 of Indian Penal Code may kindly be quashed and set aside and appellants may kindly be acquitted from the alleged offence in the interest of justice.” 2. The accused-appellants laid a challenge to the judgment of conviction and order of sentence dated 12.09.2018 passed by the learned District & Sessions Judge, Dungarpur, in Sessions Case No.60/2015 (CIS No.78/2015) (State of Rajasthan Vs. Devi Lal & Anr.), whereby the accused-appellants have been convicted and sentenced as below: 3. Brief facts of the case, as placed before this Court by learned counsel for the accused-appellants, are that on 17.04.2015, Bharatlal (complainant) presented, from Mortuary, Kothari General Hospital, Dungarpur, a written report before the Police Station officer, Dovda, to the effect that on 16.04.2015, the complainant was in General Hospital, Dungarpur, as his wife Ramila was admitted in the said hospital; his mother Champa had gone to his maternal uncle's house. 3.1. It was further stated that while the complainant’s father, namely, Mohan, was alone at home, at around 10:30 pm, accused-appellants, i.e. Devi Lal and Vasudev came there and owing to the old rivalry, attacked the complainant’s father. Upon hearing his father's cry outs, the complainant’s aunt i.e. Sushila w/o Harilal and Meera w/o Udalal, both came running to the house, and saw the accused-appellants beating the complainant’s father with sticks near the house. The attackers (accused-appellants) ran away after seeing Sushila and Meera; the same was also witnessed by Pannalal s/o Khemji. As a result of the said incident, the complainant’s father died on the spot, and his family members brought him to the Hospital at Dungarpur, whereupon, the concerned doctor declared the complainant’s father dead, and the body was kept in the mortuary. 4. On the basis of the aforementioned information, a case was registered, and the investigation accordingly commenced. After investigation, the police filed the charge-sheet for the offence under Section 302/34 IPC before the Judicial Magistrate, Dungarpur, and owing to the nature of the offence, the case was committed to the learned Trial Court for conducting the trial. 5. 4. On the basis of the aforementioned information, a case was registered, and the investigation accordingly commenced. After investigation, the police filed the charge-sheet for the offence under Section 302/34 IPC before the Judicial Magistrate, Dungarpur, and owing to the nature of the offence, the case was committed to the learned Trial Court for conducting the trial. 5. The learned Trial Court framed the charges against the accused-appellants under the aforementioned provision of law, and the trial accordingly commenced thereafter. 6. During the course of trial, the evidence of 10 prosecution witnesses were recorded and 21 documents were exhibited on behalf of the prosecution; subsequently, the accused-appellants were examined under Section 313 Cr.P.C., in which the accused-appellants pleaded innocence and their false implication in the criminal case in question; in defence, one witness was produced and 09 documents were exhibited. 7. Thereafter, upon hearing the contentions of both the parties as well as considering the material and evidence placed on record, the learned Trial Court, convicted and sentenced the accused-appellants, as above, vide the impugned judgment of conviction and order of sentence dated 12.09.2018, against which the present appeal has been preferred on behalf of the accused-appellants. 8. Learned counsel for the accused-appellants submitted that other than the eye witnesses P.W.5-Sushila Devi & P.W.6-Meera Devi, no one else is said to have seen the present accused-appellants attacking the deceased; further, the incident in question took place at night around 10:30 p.m. and the house of P.W. 5 was 300 metres away from the said place of incident; yet P.W.5 & P.W.6 were able to hear the shouts from the given distance and rushed to the place of incident. Furthermore, P.W.5 & P.W.6 are said to have seen the accused-appellants in torchlight, thus not much reliability can be placed upon the vision of the eyewitnesses. 8.1. It was further submitted that as per the statements given by P.W.9-Dr. Furthermore, P.W.5 & P.W.6 are said to have seen the accused-appellants in torchlight, thus not much reliability can be placed upon the vision of the eyewitnesses. 8.1. It was further submitted that as per the statements given by P.W.9-Dr. Gaurav Kumar and as per the postmortem report, there were a total of 08 injuries caused to the deceased; the death of the deceased was due to the head injury; however, during the cross examination of P.W.9, it was admitted that the said injuries could be caused due to falling down as well and that there was a probability of fracture if lathi is used to attack a person on the head with the intention of killing such person, however no such fracture was found in the present case, and even the injury sustained by the deceased was of 1 c.m. in diameter. 8.2. It was also submitted that as per the prosecution witnesses, namely, P.W. 1, P.W. 3, P.W. 4, P.W.5 & P.W.6, the body of the deceased victim was brought to the hospital in the police car at the night of the incident only, however the FIR (Ex/P.12) was given by P.W. 1 on the next day i.e. on 17.04.2015 at around 2:15 p.m. thus there is a clear delay in filing of the FIR. 8.3. It was also submitted that P.W.5 (eyewitness) in her statement though deposed that she saw accused-appellant-Vasudev attacking the deceased with lathi and it was then that the deceased fell down on the ground, however as per the crossexamination of P.W.6, she saw the deceased on the ground at the time when she reached the place of incident, thus clearly the two eye-witnesses who reached the place of incident at the same time and saw the accused-appellants, have given a different statement regarding the same incident itself. 8.4. 8.4. It was further submitted that P.W.10-Bhagwanlal Bunkar (S.H.O. at the time of incident) during his cross examination had stated that neither there was blood found on the lathi nor any fingerprints were taken from the said lathi; furthermore, it was admitted by P.W.10 that there were no signature of witness on the discovery of the lathi as made on the basis of the information given by the accused under Section 27 of the Indian Evidence Act, 1872; in furtherance, it was submitted that D.W.1 Khema had stated in his statement that Vasudev was present in his house during a function at night around 9-10 p.m. on the day of the incident and had tried calling his wife during that period of time. 8.5 It was also submitted that the accused-appellant No.1 Devilal has undergone a custody period of 01 year owing to the grant of suspension of sentence, whereas the accused-appellant No.2 has undergone a custody period of 09 years. 8.6. In order to fortify his submissions, the learned counsel for the accused-appellants placed further reliance upon the following judgments: (a) Durbal Vs. State of U.P. (2011) 2 SCC 676 ; (b) The State of Bihar Vs. Dani Singh and Ors. 2014 SCC OnLine Pat 883; (c) Nand Lal and Ors. Vs. The State of Chhattisgarh (2023) 10 SCC 470 ; (d) Raghunath Vs. State of Haryana and Anr. (2003) 1 SCC 398 ; (e) Dunga Ram Vs. State of Rajasthan 1996 SCC OnLine Raj 227; (f) Fula @ Fulachand Vs. State Through PP (D.B. Criminal Appeal No. 304/2019, decided on 17.05.2022 by a Coordinate Bench of this Hon’ble Court); and (g) Pinkoo @ Jitendra Vs. State of U.P. Criminal Appeal No. 633 of 2013 decided on 31.01.2022 by a Division Bench of Hon’ble High Court of Uttar Pradesh). 9. On the other hand, learned Public Prosecutor while opposing the submissions made on behalf of the accused-appellants submitted that as per the statements of P.W.10 and the postmortem report, 08 injuries have been received by the deceased victim and the accused-appellants were seen, attacking the deceased, by P.W.5 and P.W.6 as per their respective statements; furthermore, P.W.4 Pannalal (neighbour of the deceased) stated that while he was returning to his house, he saw both the accused-appellants running from the direction of his house, and upon reaching there, he saw the deceased lying in Kariya unconscious. 9.1. 9.1. It was further submitted that as per the statements of P.W.10 and the Ex/P-5 discovery report, lathi was found from the pashugarh of accused-appellant Vasudev; furthermore, as per the statement of P.W.9, it was not necessary that there should be a fracture of skull if lathi is struck on a person’s head with the intention of killing a man. 9.2. It was also submitted that D.W.1 Khema though in his statement deposed about the presence of the accused-appellant Vasudev during a function in his house, however the same defence was not taken by the accused-appellant in the examination under Section 313 Cr.P.C. 10. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 11. This Court observes that the incident in question took place on 16.04.2014 when the deceased (complainant’s father) was attacked at night around 10:30 p.m. and the incident was witnessed by P.W.5 & P.W.6, and during the course of such incident, the accused-appellant no.1 hit the deceased with kicks and fists, while the accused-appellant no.2 was seen to be using a stick (lathi), whereafter both the accused-appellants ran away from the place of incident; the deceased was taken to the hospital, where on reaching, he was declared dead and an FIR was registered against the present accused-appellants under Section 302/34 IPC, and accordingly the investigation commenced and a charge-sheet was filed under Section 302/34 IPC, whereafter the Trial began and the learned Trial Court vide the impugned judgment and order dated 12.09.2018 convicted the accused-appellants as above. 12. This Court further observes that both P.W.5-Sushila Devi & P.W.6-Meera Devi were eyewitnesses to the incident in question and as per the statements of P.W.5, she and PW-6 were talking while sitting in the courtyard of the house when both of them heard loud shouting from the deceased’s home at night and ran towards the same, whereafter in the torchlight they saw the accused-appellant no.2 attacking the deceased with a stick (lathi), while another accused-appellant was hitting the deceased with kicks and his fists due to which the deceased fell down in kariya, after which both the P.W.5 & P.W.6 also shouted and the accused-appellants made a run for it; moreover, P.W.6 also gave similar statements with regard to how the events transpired on the night of the incident to that of P.W.5. 13. 13. This Court also observes that as per the statements of P.W.4 Pannalal (neighbour of the deceased) who, at the relevant time, was returning to his house, saw both the accused-appellants running from the direction of his house and heard shouting, subsequent to which he reached the deceased’s house and saw the deceased lying in the kariya; P.W.5, P.W.6, P.W.3 Hari Lal and one Kamlesh were already present there at the relevant time. 14. This Court further observes that as per the statement of P.W.3 Hari Lal, shouting was heard by him coming from the direction of the deceased’s house (elder brother of P.W.3), after which his wife (P.W.5) & his sister-in-law (P.W.6) ran towards the same, however he could not do so, due to his fractured leg, whereafter P.W.5 & P.W.6 shouted that the deceased had been killed, and by the time he reached, the deceased was lying unconscious in Kariya and P.W.3 also shouted, upon which the other family members also assembled at the place of the incident, other than P.W.3; thus it is clear from the above paragraphs that two eyewitnesses (P.W.5 & P.W.6) saw the attack taking place while P.W.4 saw the accused-appellants running from the direction of his house accompanied by shouting; further, P.W.3 though did not see the incident but heard the shouting coming from the direction of his deceased brother’s house. 15. This Court also observes that as per the statement of P.W.9-Dr. Gaurav Kumar and the postmortem report (Ex.P/7), a total of 08 injuries were suffered by the deceased and the cause of death was the injury received on the head as per the opinion of the medical officer (P.W.9); in furtherance, though P.W.9 stated that when lathi is used to hit on on a person’s head with the intention of taking life, there is a probability of the same causing fracture; however, he further stated that there is also a probability of there being no fracture, thus though there was no loss of blood after the said attack on the deceased, it cannot be said that an injury from a wooden stick (lathi) is bound to cause the blood loss. 16. 16. This Court further observes that as per the statements of P.W.10-Bhagwanlal Bunkar (SHO), the accused-appellant no.2 had voluntarily given information under Section 27 of the Indian Evidence Act, 1872 with regard to the lathi used by him to attack the deceased and that the said lathi had been hidden by him in pashughar whereafter the same was recovered from there. 17. This Court also observes that as per the statements of P.W.3 Harilal, P.W. 7 Shankar and P.W.8 Marta, the deceased and the accused-appellant no.1 (Devilal) had prior animosity between each other due to the fact that Leela Ram (son of accused-appellant no.1) had eloped with Gita, who was the wife of Chetan (son of the deceased), and thenceforth, the enmity between the two began. 18. This Court is conscious of the judgment rendered by the Hon’ble Apex Court in the case of Anbazhagan vs. The State represented by the Inspector of Police (Criminal Appeal No.2043 of 2023 decided on 20.07.2023), relevant portion whereof is reproduced as hereunder: “60. Few important principles of law discernible from the aforesaid discussion may be summed up thus: (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate: ‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 18.1. This Court is also conscious of the judgment rendered by the Hon’ble Apex Court in the case of Krishnamurthy alias Gunodu and Ors. This Court is also conscious of the judgment rendered by the Hon’ble Apex Court in the case of Krishnamurthy alias Gunodu and Ors. vs. State of Karnataka (2022) 7 SCC 521 , relevant portion whereof is reproduced as hereunder: “26. Section 34 IPC makes a co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply there should be common intention between the co-perpetrators, which means that there should be community of purpose and common design or prearranged plan. However, this does not mean that co-perpetrators should have engaged in any discussion, agreement or valuation. For Section 34 to apply, it is not necessary that the plan should be prearranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. Common intention is necessarily a psychological fact as it requires prior meeting of minds. In such cases, direct evidence normally will not be available and in most cases, whether or not there exists a common intention has to be determined by drawing inference from the facts proved. This requires an inquiry into the antecedents, conduct of the co-participants or perpetrators at the time and after the occurrence. The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack, etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. We must remember that Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants.” 18.2. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. Section 34 or the principle of common intention is invoked to implicate and fasten joint liability on other co-participants.” 18.2. This Court is, therefore, of the opinion that in the present case, both the accused-appellants had attacked the deceased with the intention of killing him as is clear from the fact that the two together attacked the deceased during night hours and the place of incident being the house of the deceased himself and the injury caused due to the blow on his head, and both the accused-appellants were involved in the attack as seen by the eyewitnesses, though the form of attacking by the two accused-appellants might differ; however, the said incident fulfills the elements of common intention as laid down under Section 34 IPC. 19. Thus, in light of the above said observations and looking into the factual matrix of the case as well as the aforementioned precedent laws, this Court does not find it a fit case so as to grant any relief to the present accused-appellants in the instant appeal. 20. Consequently the present appeal is dismissed, and accordingly, the impugned judgment and order of sentence dated 12.09.2018 passed by the learned Trial Court is upheld. 20.1. Accused-appellant No.1-Devi Lal is on bail, in pursuance of the order dated 01.11.2018 passed by this Hon’ble Court in D.B. Suspension of Sentence (Appeal) Application No.1210/2018, whereby the sentence awarded to him by the learned Trial Court vide the impugned judgment was suspended. In view of the present judgment, his bail bonds stand cancelled and his sureties stand forfeited; accused-appellant No.1-Devi Lal is directed to be taken into custody forthwith, to be sent to the concerned Jail to undergo the remaining period of the sentence awarded to him by the learned Trial Court vide the impugned judgment of conviction and order of sentence. However, as regards, accused-appellant No.2-Vasudeo, he is presently lodged in the concerned Jail and serving the sentence as awarded to him by the learned Trial Court, and therefore, no direction for taking him into custody is warranted. 20.2. All pending applications stand disposed of. The record of the learned Trial Court be sent back forthwith.