JUDGMENT : RAMACHANDRA D. HUDDAR, J. The appellants, arrayed as accused Nos.1 and 2 in S.C. No.322/2012 on the file of I Additional Sessions Judge, Kalaburagi (Hereinafter referred to as ‘Trial Court’ for the sake of convenience), have questioned the judgment of conviction dated 19.06.2013 and order of sentence dated 20.06.2013 passed by the trial Court convicting and sentencing them “to undergo IMPRISONMENT FOR LIFE and to pay fine of Rs.5,000/- each for the offence punishable under Section 302 read with Section 34 of IPC and in default of payment of fine, they shall further undergo simple imprisonment for a period of 5 months”. 2. The parties to this appeal are referred with reference to their rank before the trial Court. 3. The records of this appeal do reveal that the Co-Ordinate Bench of this Court on hearing the arguments of both the sides vide judgment dated 14.02.2019 passed an order acquitting accused No.2 on the ground that as on the date of incident he was a juvenile as defined under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2015, and found no material to convict accused No.2 i.e. appellant No.2 and ordered to release him from custody forthwith. It is also ordered that so far as appeal against appellant No.1-accused No.1, the matter has to be considered on its merits in accordance with law. Therefore, now in view of the judgment passed by the Co- Ordinate Bench of this Court dated 14.02.2019, this appeal is restricted with regard to accused No.1 only. 4. The brief facts leading to filing of this appeal by the accused No.1 are as under: i. The State of Karnataka (Hereinafter referred to as ‘the State’ for the sake of convenience) prosecuted the appellants in relation to an incident leading to death of one Sharanappa. The prosecution’s case was, that on 14.04.2012, the A.S.I. Mudhol Police Station, received a M.L.C. Report from Basweshwara Hospital, Gulbarga, stating that, one Sharanappa having sustained injuries due to assault has died who was under treatment in the said hospital. Therefore, the A.S.I. Mudhol Police Station visited the hospital at 4.00 p.m., got confirmed death of Sharanappa on account of injuries sustained by him and to that effect he received complaint from one Smt. Kashamma Damargidda, resident of Lakshmi Nagar, Mudhol, who is the sister of the deceased present in the hospital. Therefore, the A.S.I. Mudhol Police Station visited the hospital at 4.00 p.m., got confirmed death of Sharanappa on account of injuries sustained by him and to that effect he received complaint from one Smt. Kashamma Damargidda, resident of Lakshmi Nagar, Mudhol, who is the sister of the deceased present in the hospital. It was alleged in the complaint that, deceased Sharanappa and accused No.1 are her brothers and they used to reside separately for the last six years prior to filing of the complaint. According to the complaint allegations, in between deceased and accused No.1 there was a dispute with regard to the grown up trees on the bund situated in between their respective lands. It is stated in the complaint that often accused No.1 used to give a life threat to the deceased that he will commit his murder. It is alleged that, on 14.04.2012 when this complainant was in the house at 10.00 a.m., some persons came to her house and informed that her brother Sharanappa had sustained grievous injuries, therefore, he was admitted in Government Hospital, Mudhol. She went to the said hospital and noticed that, Sharanappa was taking treatment. He had suffered bleeding injuries on his head, on both hands and on legs. When she enquired him, he informed her stating, that at about 9.00 a.m., on that day when he was cutting the trees grown up on the Bund in his landed property, at that time, the accused No.1 and his son accused No.2 – Ashok came there, quarreled with him and with an intention to commit his murder assaulted him by using axes. Because of this assault by them, he sustained the injuries. She has stated that because of sustaining grievous injuries on the person of deceased, he was given the first aid treatment at Mudhol Government Hospital and for further treatment he was shifted to Basweshwar Hospital Gulbarga in an ambulance. He was accompanied by one Balamma also, who was cultivating the land of her deceased brother. When he was under treatment in the said hospital, he died at 2.30 p.m. Therefore, she prayed to take necessary legal action against the said accused persons. ii. He was accompanied by one Balamma also, who was cultivating the land of her deceased brother. When he was under treatment in the said hospital, he died at 2.30 p.m. Therefore, she prayed to take necessary legal action against the said accused persons. ii. The then A.S.I. Mudhol Police Station, by name Dattatreya Saibanna – PW14 recorded the complaint filed by the complainant, came to the Police Station and registered a case in Crime No.37/2012 for the offence punishable under Section 302 read with Section 34 of IPC. Thereafter, the then C.P.I., Sedum, took up the investigation, visited the scene of offence, prepared the Panchnama, drew Sketch of the scene of offence and recorded the statements of witnesses. His staff apprehended accused Nos.1 and 2 and produced before him. He recorded the voluntary statements of both the accused, recovered the material objects marked in this case at the instance of the accused, which are the weapons used by them. On completion of investigation, he filed charge-sheet against the accused for the aforesaid offence. iii. Before the trial Court, to bring home the guilt of the accused, prosecution in all examined 17 witnesses as PWs.1 to 17 and got marked Exs.P1 to P15. During the course of evidence M.O. Nos.1 to 11 were marked. On behalf of the defence, during the course of cross- examination Exs.D1 to D3 were marked. iv. The defence of the accused is of total denial. The trial Court on evaluation of the evidence and on hearing the arguments, found both the accused guilty for the aforesaid offence and sentenced them as stated above. This is how now accused No.1 is before this Court challenging judgment of his conviction and order of sentence. Contentions of Appellant - Accused No.1: 5. The learned counsel for appellant-accused No.1 argued that, the trial Court ought to have discarded evidence led by the prosecution witnesses. According to his submission, the credibility of the witnesses branded as eyewitnesses is impeached, as one of the witnesses was relative of the deceased and the others were the workers employed by the deceased. According to accused No.1, the statement of the aforesaid witnesses otherwise suffers from material contradictions and are implausible. He submits that if the evidence of the prosecution is taken as a whole, the evidence cannot lead one to conclude that the finding of a common intention is made out. According to accused No.1, the statement of the aforesaid witnesses otherwise suffers from material contradictions and are implausible. He submits that if the evidence of the prosecution is taken as a whole, the evidence cannot lead one to conclude that the finding of a common intention is made out. The learned counsel argued that, the dispute arose is a flash because of cutting of grown trees by the deceased by employing the workers, who are arrayed as eyewitnesses in this case, and suddenly at the spot the deceased quarreled with the accused persons. He further submits that, because of the sudden fight, the alleged assault has taken place. There were no overt-acts established by the prosecution against the present appellant. It was argued alternatively, that the incident happened all of a sudden and without pre- meditation. The appellant had no intention to cause death of his own brother, but because of illegal acts of deceased to deter the illegal cutting of the grown up trees by employing the workers on the Bund, the said incident has taken place. Therefore he submits that, the conviction of accused persons may not travel beyond Section 302 Part- II of IPC. 6. The learned counsel for appellant No.1 also submits that, the death of Sharanappa took place at about 2.30 p.m., on that day, i.e., on the date of incident, because of complications developed during treatment. Therefore, he submits that, it cannot be said the cause of death was the injuries sustained, as the prosecution failed to prove that the injuries caused to the deceased in ordinary course of nature was sufficient to cause death. Learned counsel highlighted that, the injuries caused by accused No.1, particularly, head injuries was not that grave and it was already stitched. He emphasized that, the cause of the death was not because of injuries sustained by the deceased. He submits that, such being the case, the findings of the trial Court that accused No.1 was guilty of the offence under Section 302 of IPC was clearly error in law. He submits that, the cause of death was neither immediate nor direct result of the injuries, therefore, there is no question of the ingredient of offence of murder as defined under Section 302 of IPC, which are to be proved beyond reasonable doubt. 7. He submits that, the cause of death was neither immediate nor direct result of the injuries, therefore, there is no question of the ingredient of offence of murder as defined under Section 302 of IPC, which are to be proved beyond reasonable doubt. 7. Learned counsel for accused No.1 further submits that, if the evidence of the witnesses is read together, at the highest, accused No.1 should be convicted of the offence of culpable homicide not amounting to murder under Section 304 Part-I of IPC, since neither there was intention to kill the deceased nor the injuries suffered by him were sufficient to cause his death in the ordinary course of nature and it was borne out by the circumstances brought in the cross-examination. He submits that, accused No.1 should be granted the benefit of doubt as granted to accused No.2 by the Co-Ordinate Bench of this Court and the sentence imposed at the most required to be modified. Justifying his submissions, he draws attention of this Court to the fact that there was a prior history of civil dispute between accused No.1 and the deceased being the blood relatives. The conduct of the deceased in employing the coolies to cut the trees which are under dispute, has given rise to a sudden provocation, therefore, the exception to Section 300 of IPC is very much attracted to the facts of this case. The trial Court has committed an error in not giving benefit of doubt to accused No.1. It is contended that, the evidence and material in respect of alleged involvement of accused No.1 were the same, as in the case of accused No.2, therefore, accused No.1 too is entitled to be treated in a like manner and entitled for acquittal. Submissions of the Respondent-State 8. The learned Additional SPP Sri Siddaling P. Patil on behalf of the State submits that, the learned trial Court after considering the evidence placed on record by the prosecution has convicted and sentenced accused No.1, which does not call for any interference, as it does not contain any glaring infirmity or error. He relied on the depositions of the Doctors, eyewitnesses and other evidence and also highlighted that the victim never recovered from his injuries. Even he was not in a position to give a statement because of the injuries sustained. He relied on the depositions of the Doctors, eyewitnesses and other evidence and also highlighted that the victim never recovered from his injuries. Even he was not in a position to give a statement because of the injuries sustained. On the date of incident itself in the afternoon he died at 2.30 p.m., at Basweshwara Hospital, Gulbarga. The first aid treatment was given to him at Mudhol Government Hospital and for further treatment he was shifted to Basweshwara Hospital, Gulbarga, where inspite of best efforts made by the Doctors he did not recover and he died. He submits that, the credibility of two eyewitnesses cannot be discarded, as they were very much present at the time of incident being employed by the PW13 – Sheshappa to cut the grown up trees and it is they who tried to rescue the deceased when attack was made on the deceased. The victim Sharanappa infact died because of the said attack as he had sustained injuries on his head, hands and legs due to axe blow given by accused No.1. The clinching evidence of the eyewitness clearly establishes their presence at the time of incident, which is not denied by the defence. Though the complainant was not an eyewitness to the said incident, it was she, who lodged the complaint about incident on getting knowledge from the deceased in the Mudhol Government Hospital. She accompanied the deceased to Basweshwara Hospital, Kalaburagi and when the Head Constable visited the Hospital, she gave the complaint. 9. Learned Additional SPP further submits that, the medical examination of the deceased at Government Hospital Mudhol as well as at Basweshwara Hospital, Kalaburagi, shows the nature of injuries sustained by the deceased as narrated in the Wound Certificate as well as the P.M., Report. The evidence of the Doctor proves that, the weapons used by the accused were the weapons from which the said injuries were caused on the person of the deceased due to assault. The injuries were very serious, which have caused death in the ordinary course of nature and those injuries were sufficient to cause death of the deceased and not because of any surgical complications. The injuries were very serious, which have caused death in the ordinary course of nature and those injuries were sufficient to cause death of the deceased and not because of any surgical complications. The learned Additional SPP further submits that there is no ingredients of attracting of grave and sudden provocation by the accused persons in assaulting the deceased, therefore, the provisions of Section 304 Part-II is not attracted since there was a pre-existing dispute in between the deceased and accused persons. Therefore, ipso facto, the submissions of the counsel for the accused is irrelevant factor that the said Section 304 Part - II is attracted. The behavior of the accused itself shows that, he behaved in an unusual and cruel manner and also took undue advantage of the situation and inflicted serious injuries on the deceased by using deadly weapons. Hence, prays to dismiss the appeal. 10. In view of the rival submissions on both the sides, the following point would arise for our consideration: “Whether the judgment of conviction and order of sentence passed by the trial Court against accused No.1 suffers from any factual and legal infirmity and whether it requires interference by this Court?” 11. It is the case of murder alleged by the prosecution. Death of Sharanappa because of the injuries suffered by him is not in dispute. According to the case of the prosecution, it is a homicidal death. PW5 and PW6 are the eyewitnesses to the said incident of assault on the person of the deceased. Deceased is the brother of accused No.1. PW16 – Smt. Kashamma is the sister of deceased and accused No.1. To prove homicidal death of the deceased, prosecution relied upon evidence of PW10 – Dr. Sharanagouda, who was working as Casualty Medical Officer in Basweshwara Hospital, Gulbarga, at the relevant point of time. As per his evidence, on 14.04.2012 at 12.17 p.m., he clinically examined Sharanappa, who was brought by his relatives with the history of assault by using axe. He noticed lacerated injuries on the head of the deceased, on his left thigh, left forearm, right hand and other parts of the body. After providing first aid, he sent the injured Sharanappa to the surgical ward for further treatment, but Sharanappa died because of the injuries at 1.15 p.m. Prosecution also examined PW11 – Dr. He noticed lacerated injuries on the head of the deceased, on his left thigh, left forearm, right hand and other parts of the body. After providing first aid, he sent the injured Sharanappa to the surgical ward for further treatment, but Sharanappa died because of the injuries at 1.15 p.m. Prosecution also examined PW11 – Dr. Prakash Babaladi, the then Professor, Forensic Department, MRMC Gulbarga, who conducted the post mortem on the dead body of the deceased on 15.04.2012 in between 12.30 p.m. and 1.30 p.m. He noticed the following injuries on the person of the deceased: “1. A sutured wound with 4 sutures insitu present over the forehead on right side measuring 4 x 0.5 c.m., 5 c.m. away from the left eyebrow. 2. A sutured wound with 4 sutures insitu present over the left parieto occipital region measuring 4 x 0.5 c.m . 9 c.m. from the left mastoid. 3. On opening the scalp, extradural hemorrhage present over the left parieto-occipital region measuring 20 x 10 c.m. 4. Extra dural Hemorrhage present over the left side of forehead beneath the Injuries measuring 5 x 3 cm. AND 1. Linear abrasion present over the left clavicle in the midline measuring 6 x 1 c.m. 5 c.m. from the left shoulder joint running from above downwards. 2. 2 suture wounds on the Posterior aspect of the forearm (A) shape measuring 4 x 0.5 c.m. below the elbow joint. 3. A Grazed abrasion present on the left mid axillary line measuring 4 x 4 c.m. running from above downwards 8 c.m. from the anilla. 4. Multiple puncture wounds present over the posterior aspect of right forearm measuring 1 x 1 c.m. 1.5 x 0.5 c.m. & 0.5 x 0.5 respectively. 5. A sutured wound placed horizontally over the dorsum of the right hand measuring 4 x 0.5 c.m., with 3 sutures insitu near the base of middle finger extending to little finger. 6. A puncture wound measuring 0.5 x 0.5 x 1 c.m. present on hand 3 c.m. away from the base of the Index finger. 7. A suture wound present over the lateral aspect of the right knee joint measuring 3 x 0.5 c.m. with 3 sutures insitu. 8. A sutured wound present over the medial aspect of left knee joint measuring 0.5 x 0.5 c.m. 9. 7. A suture wound present over the lateral aspect of the right knee joint measuring 3 x 0.5 c.m. with 3 sutures insitu. 8. A sutured wound present over the medial aspect of left knee joint measuring 0.5 x 0.5 c.m. 9. A sutured wound measuring 1 x 1 c.m. with one suture insitu present in the popliteal fossa. 10. Fracture of the right lower end of the femur. 11. Fracture of the right Index finger.” 12. Accordingly, he issued the P.M. Report - Ex.P7. As per his opinion, because of 15 injuries sustained by the deceased and also when dissected the dead body, noticed fracture of left 6th, 7th and 8th ribs with collection of 300 ml blood, the deceased succumbed to the injuries. The evidence of these PWs.10 and 11 clinchingly establish that deceased died because of the injuries noted in the P.M. Report. To disbelieve the evidence of these Doctors, no effective cross-examination is directed by the defence. Coupled with that, on reading the Ex.P1 - Inquest Panchnama, Ex.P6 - Medical Certificate, and also the Material Object Nos.6 and 7 alleged to have been used for committing the offence, do establish that, deceased suffered homicidal death. The trial Court considering all these oral and documentary evidence has opined that deceased Sharanappa suffered homicidal death. We do not find any factual or legal error committed by the trial Court in coming to such conclusion. The medical evidence placed on record do establish about homicidal death of the deceased. 13. Merely because homicidal death is proved, it does not mean that it was accused No.1 along with the acquitted accused No.2 are the real culprits in the commission of the crime. In this case, as per the case of the prosecution, the motive for the crime was a dispute with regard to cutting of grown up trees on the Bund situated in between the landed properties of accused and deceased. 14. It has come in the evidence of the witnesses that, deceased Sharanappa sold Neem Trees to PW13 - Sheshappa and he engaged coolies i.e. PW5 – Shaikh Ahmed and PW6 – Monappa by paying coolie to cut the trees. 14. It has come in the evidence of the witnesses that, deceased Sharanappa sold Neem Trees to PW13 - Sheshappa and he engaged coolies i.e. PW5 – Shaikh Ahmed and PW6 – Monappa by paying coolie to cut the trees. It has come in the evidence that, when PW5 and PW6 started cutting the trees at 7.00 a.m., on that ill- fated day accused No.2 came there and inquired them about cutting of the trees and went away to his house. Thereafter, at 9.00 a.m., both the accused came to the scene of offence. Deceased Sharanappa was cutting the trunks of the cut trees. When accused No.1 asked the deceased about cutting of the trees, the quarrel started and there was attack by accused Nos.1 and 2 on the deceased. It has come in the evidence of PW5 and PW6 that, accused Nos.1 and 2 asked them not to cut the trees as the said trees belong to them. They had brought axes M.O. Nos.6 and 7 with them and started assaulting the deceased. Therefore, the nature of the attack by accused No.1 and the quality of evidence of the eyewitnesses who are the prosecution witnesses especially that of PW5 and PW6 cannot be doubted. In categorical terms they have stated about they witnessing the assault on the person of the deceased by the accused. 15. The motive behind the crime was a dispute between deceased and accused No.1 with regard to the landed property and trees grown up on the Bund of their respective landed properties. The complaint averments reveal that, often this accused No.1 used to give a threat to the deceased that one day or the other he is going to murder him. This fact is not properly denied in the cross- examination by the defence. Therefore, this Court is of the opinion that, the evidence of PW5 and PW6 perse prove that they are the eyewitnesses to the said incident of assault on the person of the deceased by accused No.1 in the manner stated in the complaint. They had no animosity or ill-will against the accused to speak falsehood against the accused. 16. PW1 - Sidramappa is the Inquest Pancha and in his presence Ex.P1 Inquest Panchnama was prepared by the Police, which is not disputed by the defence. 17. They had no animosity or ill-will against the accused to speak falsehood against the accused. 16. PW1 - Sidramappa is the Inquest Pancha and in his presence Ex.P1 Inquest Panchnama was prepared by the Police, which is not disputed by the defence. 17. PW2 – Anjappa Dastappa is the Scene of Offence Panch and he has stated where exactly the offence had taken place. In his presence, Ex.P2 – Spot Panchnama was prepared by the Police and also in his presence from the scene of offence M.O. Nos.1 to 5 were recovered. Further, PW7 – G. Lingareddy, the then Assistant Engineer, P.W.D. Sedam, at the request of the Police prepared Ex.P5 - Sketch Map of the scene of offence by visiting the spot along with the Police on 30.05.2012. The evidence of PW2 as well as evidence of PW7 and the Sketch - Ex.P5 do establish that where exactly the offence had taken place. No effective cross-examination is directed to these witnesses by the defence. 18. PW3 – Narayan is the Tailor at the relevant time of incident and according to his evidence, about 11 months prior to giving of his evidence at 2.30 p.m., the Police called him near the house of accused No.1 and at that time accused No.1 brought two axes from his house and produced before the Police. The Police prepared Ex.P3 – Seizure of Axes Panchnama with regard to recovery of said axes marked as M.O. Nos.6 and 7. He also noticed the breaking of handle of one axe. But in the cross-examination he states that, at the instance of the Police, accused No.1 produced the axes and he put his signature to the panchnama. He identifies the said axes before the trial Court, which were produced by accused No.1 in his presence. 19. PW4 – Ramappa is a witness, who was present when the clothes of the deceased were seized by the Police under Ex.P4 – Seizure of Clothe Panchnama, which are marked as M.O. Nos.8 to 11. No effective cross- examination is directed to this witness. Thus, recovery of above said articles is proved by the evidence of PW3 and PW4. 20. PW4 – Ramappa is a witness, who was present when the clothes of the deceased were seized by the Police under Ex.P4 – Seizure of Clothe Panchnama, which are marked as M.O. Nos.8 to 11. No effective cross- examination is directed to this witness. Thus, recovery of above said articles is proved by the evidence of PW3 and PW4. 20. PW5 and PW6 as stated supra are the eyewitnesses, who speak about their presence from 7.00 a.m., in the morning on the date of incident and also speak about coming of accused No.2 in the morning itself enquiring about cutting of trees and going to the house and again bringing accused No.1 to the scene of offence. In unequivocal terms, both these witnesses state in their respective evidence that, accused assaulted deceased by using M.O. Nos.6 and 7 – axes and deceased sustained injuries, which led to his death. 21. PW8 – Ashok Sharanppa is the son of the deceased, who was aged 16 years and he is hearsay witness to the incident. However, he speaks about motive of dispute between his father and accused No.1 with regard to the trees. He further stated that, accused No.1 always used to give a threat to his father that one day or the other day he will kill him. Because of this threat, his father sent himself and his sisters to his mother-in-laws house. This fact is not denied in the cross-examination. 22. PW9 – Krishna is none else than the brother-in- law of deceased. He speaks about ill-will in between deceased and accused and he came to know about the assault on the person of the deceased on 14.04.2012 and that Sharanappa was taken to the hospital. Therefore, he went to the hospital, noticed injuries on the person of the deceased. Though, he has been cross-examined, but he has withstood the test of cross-examination. 23. PW12 – Gulam Rasool was Village Accountant, who issued Ex.P8 - RTC Extract and there was no denial of this fact. 24. PW13 – Sheshappa had engaged PW5 and PW6 for the purpose of cutting the trees sold to him by deceased. He states that on that day at 10.00 a.m., PW6 called him and informed about assault on the person of Sharanappa by the accused and it was told that injured was taken to the hospital in an Ambulance. 24. PW13 – Sheshappa had engaged PW5 and PW6 for the purpose of cutting the trees sold to him by deceased. He states that on that day at 10.00 a.m., PW6 called him and informed about assault on the person of Sharanappa by the accused and it was told that injured was taken to the hospital in an Ambulance. Though he was cross-examined, but he is consistent that he engaged PWs.5 and 6 to cut the trees having purchased the same from the deceased. 25. PW14 – Dattatreya Saibanna, A.S.I., recorded the complaint and set the criminal law into motion by registering the crime. There is no denial of this fact by the defence. 26. PW15 – Santosh Banatti, C.P.I., is the I.O., who conducted the investigation and filed charge-sheet. We do not find any infirmity or lacuna in the investigation done by PW15. He has been cross-examined at length, but he has spoken about the investigation done by him. 27. PW16 – Kashamma is the complainant and though she is not an eyewitness, but she was the first person to meet the injured in the hospital and enquired about assault on him. She deposed that she was informed by the injured Sharanappa about assault on him by the accused. Based upon that information, she lodged a complaint. The fact of giving information by the deceased about history of assault by the accused on the person of deceased to her is not effectively denied in the cross- examination. Thus, evidence of PW16 do establish about the motive i.e., about dispute in between accused No.1 and deceased, so also getting information about history of assault by the accused on the person the deceased. 28. PW17 - Balamma is the hearsay witness, she has turned hostile. Nothing worthwhile is extracted from her evidence. Her evidence will not help the defence. 29. In support of his submission, learned counsel for accused No.1 to prove the grave and sudden provocation and not a deliberate act of the accused, he relied upon the provisions of Sections 299 and 300 of IPC. The said provisions read as under: “299. Nothing worthwhile is extracted from her evidence. Her evidence will not help the defence. 29. In support of his submission, learned counsel for accused No.1 to prove the grave and sudden provocation and not a deliberate act of the accused, he relied upon the provisions of Sections 299 and 300 of IPC. The said 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, or2ndly.-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. or3rdly.-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, or4thly.-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.” 30. With regard to the grave and sudden provocation, the famous judgment of the Hon’ble Apex Court is K.M. Nanavati v. State of Maharashtra, A.I.R. 1962 Supreme Court 605 wherein, the Hon’ble Apex Court had the occasion to consider and deal with Exception – I to Section 300 of the IPC. Their Lordships held as under: "The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused. placed in the situation in which the accused was placed would be so provoked as to lose his self-control. In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300. placed in the situation in which the accused was placed would be so provoked as to lose his self-control. In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300. The mental background created by the previous act of the victim may be taken into con- sideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. The fatal blow should be clearly tracted to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation." 31. Insofar as appreciation of evidence led by the prosecution, the test of credibility or reliability when applied, is fully satisfied in respect of the strength of their testimonies. PW5 and PW6 are the eyewitnesses. The other witnesses are not the eyewitnesses. PW16 is the complainant and her evidence is insufficient to doubt the veracity of what she recounted during the trial, which is that accused attacked the deceased with axes. Whereas, PW5 and PW6 being the eyewitnesses have categorically stated about they witnessing the said incident of assault on the person of the deceased by accused No.1. It is their evidence that, accused assaulted the deceased by using the axes marked as M.O. Nos.6 and 7. In all there are 15 injuries on the person of the deceased as noted in the Post Mortem Report. There is no explanation on the part of the appellant-accused as to why these PWs.5 and 6 should depose falsely nor is there any explanation as to how the deceased sustained injuries. The evidence of PWs.5 and 6 is corroborated by the evidence of the Doctors. Though the other witnesses are not the eyewitnesses, in view of the sterling evidence of PWs.5 and 6, this Court is the of the opinion that, all the material aspects or factual accusation against appellant-accused No.1 and how the accused attacked the deceased in an unprovoked manner, cannot be doubted. 32. The question then is, whether the appellant is guilty of the offence of murder punishable under Section 302 of IPC, or whether he is criminally liable under the provision of Section 304 of IPC. 33. 32. The question then is, whether the appellant is guilty of the offence of murder punishable under Section 302 of IPC, or whether he is criminally liable under the provision of Section 304 of IPC. 33. The Hon’ble Apex Court in several judgments over a century has observed and laid down the principles of law with regard to the culpable homicide not amounting to murder. The distinction between these two is discernible in the manner they are defined under Sections 299 and Section 300 of IPC. 34. The Hon’ble Apex Court in the case of Virsa Singh vs. State of Punjab, AIR p467, para 12 has held as under: "12.... the prosecution must prove the following facts before it can bring a case under Section 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 was 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." 35. Likewise in the case of State of A.P. v. Rayavarapu Punnayya, [1958] S.C.R. 1495 1977 SCR (1) 601 the Hon’ble Apex Court observed in Para Nos.14-17 as under: “17. In State Of A.P. v. Rayavarapu Punnayya & Anr. another oft-cited judgment, this court observed as follows: (SCC pp.386-88, paras 14-17) “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. 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. 16. 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. 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. 17. 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 v. State of Kerala is an apt illustration of this point”.” 36. Thus, on reading the aforesaid principles laid down by the Hon’ble Apex Court, the Court should proceed to decide the pivotal question of intention with care and caution, as that will decide whether the case falls under Sections 302 or 304 Part-I or 304 Part-II of IPC. In this case as per the evidence of the complainant, son of the deceased has deposed that, there was ill-will and animosity in between deceased and accused. Because of the dispute, always accused No.1 used to give a threat to the deceased that, one day or the other he is going to kill him. It was a motive for the crime. Usual motive like revenge, greed, jealousy or suspicion may also contribute to form an opinion with regard to the intention. Here in this case, there was a revenge expressed by the accused because of dispute between both brothers. There may be no intention. To attract the provisions of Section 304 Part-II of IPC, there may be no pre-meditation. Even there may not be criminality. Here in this case, there was a revenge expressed by the accused because of dispute between both brothers. There may be no intention. To attract the provisions of Section 304 Part-II of IPC, there may be no pre-meditation. Even there may not be criminality. But, in view of the motive being expressed by the accused often, which he has been spoken to by complainant and son of the deceased, the intention to cause death can be gathered generally from the combination of a few or several of the circumstances i.e., (1) Nature of the weapon used (2) whether the weapon was carried by the accused or was picked up from the spot (3) whether the blow is aimed at a vital part of the body (4) the amount of force employed in causing injuries (5) whether the act was in the force of sudden quarrel or sudden fight or free for all fight (6) whether the incident occurred by chance or whether there was any pre- meditation (7) whether there was any prior enmity or whether the deceased was a stranger (8) whether there was any grave or sudden provocation, if so, the cause of such provocation (9) whether it was in the heat of passion (10) whether the person inflicting injury has taken undue advantage and acted in criminal and unusual manner (11) whether the accused dealt a single blow or several blows. This list is not exhaustive. There may be several other special circumstances with reference to individual cases which may throw light on the question of intention. 37. Herein this case, accused used deadly weapons - M.O. Nos.6 and 7 Axes. They carried the weapons from their house. Accused No.1 aimed at the deceased on his vital part of the body i.e., head, legs and hands, because of that assault by using axe, deceased sustained 15 cut injuries and the accused also has applied force in causing the injuries. As per the evidence placed on record it was not a sudden quarrel or a sudden fight or free from all fight. Because of the frequent threat by the accused to kill the deceased, it can be termed that there was a pre- meditation to commit the crime by the accused because of prior enmity. Deceased was not a stranger to the accused. Both are full blood brothers. Because of the frequent threat by the accused to kill the deceased, it can be termed that there was a pre- meditation to commit the crime by the accused because of prior enmity. Deceased was not a stranger to the accused. Both are full blood brothers. There was no grave and sudden provocation and even there was no sudden provocation, the said incident has taken place without any heat of passion. Because of continued assault causing 15 injuries, the accused has acted in a cruel and unusual manner. More than 15 times there were blows on the person of the deceased. After causing injuries, they went away from the said place. 38. Therefore, the question is in the case of present nature, as the grave and sudden provocation is not proved because of this attack on the deceased, definitely falls within the description of Section 300 Thirdly (‘if it is done with an intention of causing bodily injury to any person and the bodily injury intended to be inflicted the sufficient in the ordinary course of nature to cause death’) or it falls in the mischief of Section 300 Fourthly. (‘if the person committing the act knows that it is so eminently dangerous that if 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 risk of causing death or such injury as aforesaid’). 39. There is evidence of PWs.5 and 6 in the form of eyewitnesses and the accused had pre-existing dispute with the deceased. PW5 and 6 corroborated each other and stated that the quarrel pertain to the trees being cut by them at the instance of PW13, which was sold the by deceased to PW13. The quarrel was persisting and was continuous. Therefore, there was no sudden quarrel between the deceased and the accused, it can never be termed that it may be of gave and sudden provocation as submitted by the counsel for the accused. In the opinion of this Court, there was no sudden quarrel. 40. The testimony of two important eyewitnesses PWs.5 and 6 does establish that the deceased was cutting the trunks of the trees cut by PWs.5 and 6, at that time accused came there with deadly weapons and assaulted the deceased. These facts brought on record by the prosecution do not constitute a “sudden quarrel”. 40. The testimony of two important eyewitnesses PWs.5 and 6 does establish that the deceased was cutting the trunks of the trees cut by PWs.5 and 6, at that time accused came there with deadly weapons and assaulted the deceased. These facts brought on record by the prosecution do not constitute a “sudden quarrel”. Even, the accused abused the deceased in an unprovoked manner. The accused was armed with axe and assaulted him. Even assuming for the sake of argument that, there was sudden fight, it cannot be said that the accused failed to act in cruel manner and did not take undue advantage. This is because accused were armed with axe and the fact of bringing the axes from the house show pre-meditation on the part of the accused. More so, accused attacked deceased on his head, which is a vital part of the body, thus, took the undue advantage of the situation. Therefore, if all these factual matters are taken together coupled with law as laid down by the Hon’ble Apex Court in catena of judgments, what is evident is that, there was a pre-existing dispute of some vintage, between the accused and the deceased. There is nothing to show that, they had been aggregated. There is no evidence that, deceased said anything to the accused at the time of incident, which triggered the accused, leading to loss of self control as to result in “grave and sudden provocation”. In any case, if there were something, the accused ought to have brought the relevant material or evidence on record, as what facts did exist was within his peculiar knowledge. 41. During the course of arguments, though the learned counsel for the appellant-accused argued that at 2.30 p.m., on that day deceased died and if the best treatment was given to him he would have survived, but the nature of injuries sustained by the deceased were suffice to cause death in the ordinary course of nature. The Hon’ble Apex Court in catena of judgments has categorically held that, if the injury sustained in the ordinary course of nature is sufficient to cause death then the doctrine of culpable homicide not amounting to murder, is not attracted. Every criminal case has its unique fact situation. What is important is a nature of the injuries and whether it is sufficient in the ordinary course to lead to death. Every criminal case has its unique fact situation. What is important is a nature of the injuries and whether it is sufficient in the ordinary course to lead to death. There are oral and documentary evidence and also medical evidence to show that as a result of injuries inflicted on the deceased he died. That means, death was closely and directly linked to the injuries sustained by the deceased. 42. In view of the aforesaid discussion, we are of the considered opinion that, there is no illegality or infirmity in the impugned judgment passed by the trial Court. Therefore, the conviction and sentence imposed on accused No.1 by the trial Court do not call for any interference. Consequently, the appeal is liable to be dismissed having no merits. Accordingly, the aforesaid point is answered against the accused. ORDER i) Appeal is dismissed. ii) The impugned judgment dated 19.06.2013 passed in S.C. No.322/2012 by the I Additional Sessions Judge, Gulbarga is hereby confirmed. iii) Send the operative portion of this judgment to the trial Court forthwith by mail. iv) Send back the trial Court records along with copy of this judgment, forthwith.