JUDGMENT : ( PER : URMILA JOSHI PHALKE , J.) 1. The present Appeals are directed against the judgment and order of sentence passed by Additional Sessions Judge, Achalpur Dist. Amravati in Sessions Trial No. 8/1996 dated 28.07.2004 convicting the accused No.1 Wariskhan of the offence punishable under Section 304-II of the INDIAN PENAL CODE (for short “IPC”) and sentenced to suffer Rigorous imprisonment for 10 years and to pay fine of Rs.1000/ in default to undergo simple imprisonment for one month and convicting the accused No.2 Majidkhan of the offence punishable under Section 323 of IPC and sentenced to suffer Rigorous imprisonment for 1 year and to pay fine of Rs.100/ in default to undergo simple imprisonment for 7 days. 2. Brief facts of the prosecution case emerges from Police papers and record and evidence are as under: 2(i). Criminal law is set in motion on the basis of the report lodged by Madhukar Kanetkar the uncle of the deceased at Paratwada Police Station alleging that he owns agricultural property and deceased Suhas, his nephew, was looking after the said property at Village Dhotarkheda. They have cultivated the Orange Plants in the field. Prior to two days of 30.10.1995 some unknown persons attempted to commit theft by plucking the Oranges from the trees with the help of ladder. Deceased attempted to catch them but they fled away. On 30.10.1995, the deceased Suhas alongwith Sanjay Babulal Harasule, a boy of 10 years was returning towards his house on his bicycle, at the relevant time, near the Rest House square at Achalpur the present accused persons obstructed them and accused Wariskhan assaulted the deceased with the help of wooden rip, whereas the other accused Majid Khan assaulted Sanjay who was alongwith the deceased by fist and kick blows. Due to the assault, Suhas fell down and sustained injuries and during treatment succumbed to death, whereas Sanjay sustained the injuries. On the basis of the said report Police have registered the crime against the accused persons. 2(ii). After registration of the crime Investigating Officer has drawn the spot panchnama. Attempt was made to record the statement of deceased but he was unconscious, therefore his statement could not be recorded. On the same day, he reported to be dead. Therefore, the inquest panchnama was drawn. The clothes of the deceased and accused were seized. 2(ii). After registration of the crime Investigating Officer has drawn the spot panchnama. Attempt was made to record the statement of deceased but he was unconscious, therefore his statement could not be recorded. On the same day, he reported to be dead. Therefore, the inquest panchnama was drawn. The clothes of the deceased and accused were seized. Weapon was seized from the place near the spot of incident, having blood stains on it. All the incriminating articles are forwarded to CA. After completion of the investigation the charge-sheet was filed against the accused persons. 2(iii). The learned Sessions Judge framed the charge vide Exh. 38. The contents of the charge are read over and explained to the accused persons in vernacular. They pleaded not guilty and claimed to be tried. In support of the prosecution case, the prosecution had examined in all 17 witnesses which are as follows: 2(iv). Besides oral evidence prosecution placed reliance on Report-Exh.46, FIR Exh.-47, Spot panchnama-Exh. 53, Seizure memos-Exhs. 54 & 55, Inquest panchnama-Exh. 58, Seizure memo-Exh. 63, Intimation to Police by Medical Officer-Exh. 67, Requisition by Police to Medical Officer-Exh. 68, Seizure memos-Exhs. 77 to 79, CA Reports-Exhs. 80 to 83, Seizure memo-Exhs. 84 & 85 and PM Report Exh.95. 2(v). All the incriminating evidence is put to the accused persons to obtain their explanation regarding evidence appearing against them by recording their statements under Section 313 of the Code of Criminal Procedure (for short “Cr.P.C.”). The defence of the accused persons is of a total denial and of a false implication. The learned Trial Court after appreciating the evidence held present accused/appellants guilty and convicted them as aforestated. 2(vi). Being aggrieved and dissatisfied with the same, the State has preferred an Appeal for enhancement of the sentence bearing Appeal No. 651/2004, whereas the accused preferred the Appeal bearing No. 507/2004 for quashing and setting aside the judgment and order of sentence. 3. Heard Mr. Navlani, learned Counsel for the accused, who submitted that the entire genesis of the crime is suppressed by the prosecution. The injuries on the person of the accused are not explained by the prosecution. The evidence of PW-14/Shankarsingh Investigating Officer shows that the accused persons have also sustained the injuries and were referred for medical examination. Neither their injury certificate is brought on record nor their injuries are explained by the prosecution. Therefore, the entire prosecution case becomes doubtful. The injuries on the person of the accused are not explained by the prosecution. The evidence of PW-14/Shankarsingh Investigating Officer shows that the accused persons have also sustained the injuries and were referred for medical examination. Neither their injury certificate is brought on record nor their injuries are explained by the prosecution. Therefore, the entire prosecution case becomes doubtful. 4. He submitted that, as per the prosecution case PW-2/Sanjay Harsule who is a 10 years old boy at the time of incident, PW-3/Murlidhar Padole, PW-4/Devendra Kathe, PW-5/Suresh Kalaskar, PW-6/Dipak Dongre, PW-7/Suresh Sunde are the eyewitnesses. However, their evidence is not consistent. The injury sustained by the deceased are not sufficient to cause death and there was no intention on the part of the accused persons. Considering the admissions given by the Investigating Officer, the deceased has sustained the injuries during the scuffle. Therefore, the Appeal deserves to be allowed. He also raised the defence of sudden fight sudden quarrel. 5. Per contra, Ms. Haider, learned APP strongly opposed the said contention and submitted that the entire evidence of eyewitnesses shows that the deceased was proceeding on bicycle, at the relevant time he was assaulted by the accused persons, and therefore, he has fallen down and sustained the injuries. The deceased has sustained the head injury and succumbed to death, which is sufficient to show the intention of the accused. The defence of sudden fight sudden quarrel was not raised during the cross-examination. Merely, because the injuries of the accused are not explained by the prosecution itself cannot be a reason to reject the evidence. There is no evidence on record to show that, the deceased has sustained the injuries during sudden fight sudden quarrel, and the prosecution case is established beyond reasonable doubt. On that ground, the Appeal for enhancement of sentence by State deserves to be allowed and Appeal of the accused persons deserves to be dismissed. In support of her contention, she placed reliance on Rajendra Singh & Ors. Vs. State of Bihar, AIR 2000 SC 1779 . 6. Mr. Navlani, learned Counsel, also placed reliance on Kumar Vs. State represented by Inspector of Police, Criminal Appeal No.409/2017, decided on 11.05.2018 and Vimalbai Manohar Doballiwar & Ors. Vs. The State of Maharashtra, 2019 ALL MR (Cri) 2252. 7. First and foremost question which requires to be determined is whether the death of the deceased Suhas is homicidal one. 6. Mr. Navlani, learned Counsel, also placed reliance on Kumar Vs. State represented by Inspector of Police, Criminal Appeal No.409/2017, decided on 11.05.2018 and Vimalbai Manohar Doballiwar & Ors. Vs. The State of Maharashtra, 2019 ALL MR (Cri) 2252. 7. First and foremost question which requires to be determined is whether the death of the deceased Suhas is homicidal one. To prove the fact that the death of the deceased is homicidal one, the prosecution placed reliance on the evidence of PW-11/Dr. Mahendra Sangole whose evidence shows that, on 30.10.1995 when he was attaining the duty as Medical Officer in Cottage Hospital, Achalpur the injured Suhas was admitted in the Cottage Hospital in unconscious condition due to head injury. He gave intimation to the Police Station Paratwada vide letter Exh.67. He also received the letter from the concerned Police Station to ascertain whether the injured is in a condition to give statement, he informed that the injured is unconscious and unable to give statement. He examined the injured and found following injuries in his person: (1) Contusion with abrasion over forehead on left side at hairline, size of contusion 2 x 1" obliquely placed, seize of abrasion 3/4 x 3/4 inch. (2) Abrasion over right forearm on dorsal aspect lower third region. size 2" x ½ " obliquely placed. (3) Abrasion over right leg, lower half on anterior side, size 1½" x 1" obliquely place. (4) On external finding right-pupils is fully dilated and bleeding from left nostrils was present. suggestive of head injury and intra-craneal hemorrhage. 8. As per his evidence the injuries were fresh. Accordingly, he issued Medical certificate. His cross-examination shows that the injured was admitted without the Police requisition. He has not noticed any internal injuries and the injuries were contusions and abrasions possible by repeated fall on hard and rough object. He further admits that, if a person falls vertically on head on rough and hard surface, such injuries are possible. 9. PW-10 is also Medical Officer namely Dr. Ravindra Kshirsagar serving in SIMS Hospital, Nagpur. His evidence is only to the extent that on 30.10.1995 the injured was admitted with history of head injuries. He medically examined and observed that his general condition was poor. He died at 02.30 p.m. on the same day. Accordingly, he issued certificate. 9. PW-10 is also Medical Officer namely Dr. Ravindra Kshirsagar serving in SIMS Hospital, Nagpur. His evidence is only to the extent that on 30.10.1995 the injured was admitted with history of head injuries. He medically examined and observed that his general condition was poor. He died at 02.30 p.m. on the same day. Accordingly, he issued certificate. As to the nature of the injuries, only evidence came during cross-examination is that he had only seen head injuries. Rest of the cross-examination is on a technical and procedural aspect. 10. PW-17 another Medical Officer Dr. Laxmikant Bade who examined and conducted Postmortem examination. On his examination he has found the following injuries on the person of the deceased. 1. Contused abrasion left arm outer side middle contusion majouring 4" x 3". Abrasions majoring half inch by one forth inch, one forth by one forth inch and one third inch by one third inch in the area of contusion upper side. On incerssion anti-mortem blood plots presents. Abrasions red. 2. Abrasion back of left elbow joint majouring 1/4th inch x 1/4 inch red. 3. Abrasion front of left knee joint majouring 1/2 inch x 1/4th inch red. 4. Abrasion 1/2 inch below injury no.3 majouring 3/4th inch by half inch red. 5. Abrasion middle front left leg one and half inch by 3/4inch red in colour surrounding by conclusion majouring 4 inch by 2 inch anti-mortem blood plots present. 6. Abrasion right leg lateral side 7 inches above ancle majouring 2 inch by 1 inch red with area of contusion majouring 3 inch by 1 inch anti-mortem blood plot present. 7. Abrasion one in chi about injury no.6 majouring 3/4th inch by half inch red. 8. Abrasion front of right knee joint majouring one inch by three forth inch red. 9. Abrasion one inch above right ankle transverse in direction majouring one inch in length red. 10. Lacerated wound palmer surface right hand at the base of middle finger majouring 3/4th inch by half inch skin deep with evension of skin. 11. Lacerated wound joining injury no.10 of base of ring finger majouring half inch by 1/4th inch. Anti-mortem plot present. At laces margines clean eat. 12. Linear abrasion on back of right wrist majouring 3/4th by half inch red. 13. Abrasion one inch above injury no.12 majouring half inch by 1/4th inch red. 14. 11. Lacerated wound joining injury no.10 of base of ring finger majouring half inch by 1/4th inch. Anti-mortem plot present. At laces margines clean eat. 12. Linear abrasion on back of right wrist majouring 3/4th by half inch red. 13. Abrasion one inch above injury no.12 majouring half inch by 1/4th inch red. 14. Abrasion linear 4 inch above right wrist joint lateral side majouring 2 and half inch in length. Red. 15. Contusion posterior side right forehand majouring 3 inch by 2 inch. Anti-mortem clots present Abrasion in the area of contusion majouring one and half inch by three fourth inch. Red. 16. Inside the injury right hand palmer surface wrist joint majouring half inch by one forth inch anti-mortem plots presents. 17. Abrasion front right side of chest/in direction extending from colur bone down words majoring 4 inches in length breadth varies, upper side 3/4th inch and tappring at lower end. Red in colour. 18. Incise injury 3 inch left ear and 2 and half inches from the outer angle of left eye, majouring 2 and half inch by 1/4th inch. Bone deep with anti-mortem class present. At lesses margine clean cut. 19. Contusion on the top of head on occipital majouring 6 inches by 4 inches. Antimortem blood cloth present. 20. Abrasion right side of abdomen 8 inches by 4 inches. He found following internal injuries also: 1. Heamatoma under the scalp on top and back of head. 2. Crack fracture right parietal bone starting from junction of saggital and corolal suture upto temporal suture majouring 4 inches in length. 3. Crack fracture along corolal scture left side 3 inches in length joining injury no.2. 4. Crack fracture right parietal bone transverse in direction joining injury no. 2 and 3. 5. Subdural himatoma right temoral lobe 4 inches by 3 inch and sub-arachnoidaal Himorage all over brain. 6) Entra cerebal himatoma one inch by half inch right temporal lobe. 11. His evidence further shows that all the internal injuries are corresponding to the external injuries. The death of the deceased is due to shock as a result of fracture of skull bones with entra cranial hemorrhage. Accordingly, he prepared Postmortem report Exh. 95. He admitted during cross-examination that injury Nos. 2 to 17 are simple in nature and superficial injuries. The injuries were within 24 hours. The death of the deceased is due to shock as a result of fracture of skull bones with entra cranial hemorrhage. Accordingly, he prepared Postmortem report Exh. 95. He admitted during cross-examination that injury Nos. 2 to 17 are simple in nature and superficial injuries. The injuries were within 24 hours. He further admitted that, in view of fracture of skull it was not possible to save the life of the patient. He further admits that, the life of the patient might have safe if immediate medical help would have extended to the patient. Thus, as far as medical evidence is concerned, which shows that the death of the deceased is due to head injury i.e. due to fracture of skull bones. 12. PW-8/Gopal Deshpande acted as a panch on Inquest panchnama, who only stated that the deceased has sustained injuries on head and other parts of the body. The recitals of the Inquest panchnama also shows that the deceased has sustained head injuries. 13. Thus, as far as the evidence of all these witnesses who examined to prove the cause of death is consistent and no other reason is brought on record to show that the death of the deceased is natural one. Thus, the prosecution succeeded in establishing the fact that the death of the deceased is due to head injury in the nature of homicidal death. 14. As per the prosecution on 30.10.1995 when deceased and PW-2/Sanjay Harsule were coming towards house on bicycle, the deceased was attacked by the present accused persons and accused No.1/Wariskhan assaulted him by means of wooden rip, due to which he sustained the injuries and succumbed to death. PW-1/Madhukar Kanetkar the uncle of the deceased admittedly is not the eyewitness of the incident. His evidence shows that, he was informed by PW-2/Sanjay Harsule about the incident that the deceased and PW-2/Sanjay Harsule were assaulted by the accused persons. In the meantime, he also received the phone call of his son PW-9/Amol Kanetkar who also disclosed the incident to him, therefore he rushed to the spot and the deceased was immediately referred to the Hospital initially at Paratwada and thereafter at Nagpur but the deceased succumbed to death. He lodged report Exh. 46 and FIR Exh. 47. In the meantime, he also received the phone call of his son PW-9/Amol Kanetkar who also disclosed the incident to him, therefore he rushed to the spot and the deceased was immediately referred to the Hospital initially at Paratwada and thereafter at Nagpur but the deceased succumbed to death. He lodged report Exh. 46 and FIR Exh. 47. During his cross-examination some minor omissions are brought on record, as far as the disclosure of the incident is concerned, the evidence of PW-1/Madhukar Kanetkar was not shattered. 15. PW-2/Sanjay Harsule is the injured eyewitness, who stated about the incident that on 30.10.1995 when he alongwith the deceased on the bicycle of the deceased were returning from the field, accused started assaulting them. Due to the assault by the accused No.1 deceased fallen down from the bicycle and sustained head injury. He was assaulted by accused No.2/Majid Khan by fist and kick blows. He deposed that because of fall he sustained the injuries like abrasions. He immediately rushed to the house of PW-1/Madhukar Kanetkar and narrated the incident to him that the deceased was assaulted by Waris Khan by means of wooden rip. He has identified the said wooden rip before the Court. His cross-examination is in the nature that there was cordial relations between him and the family of the deceased and some minor omissions are brought on record. Attempt was made to bring on record that he has not stated that the accused Waris Khan was having wooden rip, but in fact this fact was stated by him. His evidence is not affected as far as the incidence is concerned. 16. The evidence of PW-3/Murlidhar Padole and PW-4/Devendra Kathe shows that they have witnessed the incident of assault on the deceased. PW-3/Murlidhar Padole deposed that, the deceased was alongwith PW-2/Sanjay Harsule and the accused Waris Khan assaulted the deceased with wooden rip and other accused Majid Khan assaulted the deceased as well as injured. Deceased has sustained the head injuries. Whereas the evidence of PW-4/Devendra Kathe shows that, the quarrel was going on between Waris Khan and Suhas and Suhas had received the injury in that scuffle. The cross-examination of PW-3/Murlidhar Padole shows that, the alleged incident has taken place near the Rest House square. As far as the incident is concerned, the evidence of PW-3/Murlidhar Padole remained unshattered. The minor omissions are brought on record. The cross-examination of PW-3/Murlidhar Padole shows that, the alleged incident has taken place near the Rest House square. As far as the incident is concerned, the evidence of PW-3/Murlidhar Padole remained unshattered. The minor omissions are brought on record. The cross-examination of PW-4/Devendra Kathe wherein also the evidence as to the incident, he admitted that Waris Khan and Suhas were pushing each other. 17. PW-5/Suresh Kalaskar is also alleged eyewitness but he has not supported the prosecution case. PW-6/Dipak Dongre is also an eyewitness who has also stated that when deceased and Sanjay were coming from the field on bicycle the accused Waris Khan started assaulting him by wooden rip and deceased had sustained the injuries. He also acted as a panch as to the seizure of the wooden rip which was thrown by the accused Waris Khan behind the Saloon. His cross-examination shows that, he has signed the Seizure panchnama as to the seizure of wooden rip and seizure of the blood stained shirt of the accused. His cross-examination is also only in the denial form. His presence at the spot is not denied. 18. PW-7/Suresh Sunde has also similarly deposed that he alongwith PW-6/Dipak Dongre was near tea stall of one Pinjurkar. At the relevant time, the deceased Suhas came on his bicycle and accused Waris Khan assaulted him by wooden rip, due to which deceased has sustained the head injury. His evidence further shows that, the people who gathered at the spot were threatened by the accused Waris Khan. His entire cross-examination is around the aspect that the alleged incident has taken place near Auto rickshaw stand and not the Rest House square, which is denied by this witness. 19. Evidence of PW-9/Amol Kanetkar shows that, he received the information about the incident. Deceased was his cousin. He immediately rushed to the spot with the vehicle and shifted the deceased in the Hospital and also informed his father. Thus, he is not the eyewitness of the incident. 20. PW-12/Anil Undirkar though as per the prosecution is an eyewitness but he has not supported the prosecution case. 21. Thus, as far as the evidence of eyewitnesses PW-2/Sanjay Harsule, PW-3/Murlidhar Padole, PW-4/Devendra Kathe, PW-5/Suresh Kalaskar and PW-6/Dipak Dongre is consistent as far as the assault is concerned. Only in the evidence of PW-4/Devendra Kathe shows that, the scuffle was going on between the deceased and the accused. 22. 21. Thus, as far as the evidence of eyewitnesses PW-2/Sanjay Harsule, PW-3/Murlidhar Padole, PW-4/Devendra Kathe, PW-5/Suresh Kalaskar and PW-6/Dipak Dongre is consistent as far as the assault is concerned. Only in the evidence of PW-4/Devendra Kathe shows that, the scuffle was going on between the deceased and the accused. 22. PW-2/Sanjay Harsule is the injured eyewitness. In the said incident he has sustained the injuries. His injuries are proved by PW-13/Dr. Yadavrao Deshmukh who testified that, he medically examined Sanjay Harsule and on examination he found following injuries on his person: 1. Abrasion on right knee joint size 1 x 1 inch. 2. Abrasion on left knee joint 1 x ½ inch on patellar. 23. His evidence shows that the injuries caused within 8 hours. Injuries are simple in nature. He specifically admitted in the cross-examination that injuries of the injured are simple in nature. 24. PW-6/Dipak Dongre is not only an eyewitness but he also acted as a panch on Spot panchnama. As to the drawing of the Spot panchnama his evidence is only to the extent that in his presence Police prepared the panchnama and one wooden rip was seized from the backside of Saloon. Spot panchnama Exh.53 and Seizure panchnama Exh. 54 are proved. His cross-examination as to the spot of incident is concerned, nothing is brought on record that the spot of incident is not near the square of Rest House but it was near the Bus stand/Auto rickshaw stand. 25. PW-14/Shankarsingh Rajput and PW-15/Narendra Shinde are the Investigating Officers. PW-14 carried out the investigation and drawn the Spot panchnama, recorded the statement of witnesses, seized the clothes of the deceased i.e. the Shirt having blood stains on it. His evidence further shows that, accused Waris Khan had also given a report in Police Station on 30.10.1995. His cross-examination shows that, accused Waris Khan had given a report in Police Station and he was also referred to the Hospital. The omission that PW-3/Murlidhar Padole has not stated before him that Suhas had fallen down from the bicycle as he was assaulted by the accused, is proved. 26. PW-15/Narendra Shinde has also carried out the part investigation. His investigation is to the extent that he has seized the clothes of the deceased, blood samples of the deceased and forwarded the same to CA. 26. PW-15/Narendra Shinde has also carried out the part investigation. His investigation is to the extent that he has seized the clothes of the deceased, blood samples of the deceased and forwarded the same to CA. As far as the cross-examination is concerned, nothing is brought on record to falsify his version as to the investigation carried by him. 27. As already observed that, one wooden rip was seized from the backside of Saloon of one witness Anil Undirkar. The Seizure memo shows that, it was having some blood stains. Similarly, one Shirt of the accused having blood stains on it was also seized by drawing the panchnama. The CA report Exh.80 shows that the clothes of the deceased, Shirt of the accused and wooden rip were forwarded to CA. The blood detected on the clothes of the deceased, bed sheet, napkin, wooden rip, full shirt seized from the person of the accused is human and with blood group “B”. Admittedly, neither the blood group of the deceased nor the blood group of accused was determined from the analysis of the samples. 28. On appreciation of the evidence, it is not disputed that, the alleged incident has taken place on the road and witnessed by various witnesses namely PW-3/Murlidhar Padole, PW-4/Devendra Kathe, PW-5/Suresh Kalaskar and PW-6/Dipak Dongre and PW-7/Suresh Sunde. Their presence at the spot is not at all denied by the accused. As far as the incident is concerned, the evidence of these witnesses except the evidence of PW-4/Devendra Kathe is consistent. Only PW-4/Devendra Kathe stated that, the scuffle was going between the deceased and accused. He also admitted that, the accused Waris Khan and Suhas were pushing each other in the scuffle. This fact is further corroborated by PW-14/Shankarsingh Rajput, who stated that the accused Waris Khan had also given the report in Police Station and he was referred for medical examination. Thus, one thing is clear that the accused Waris Khan had also sustained the injury in the said incident but Investigating Officer has neither collected his Medical certificate nor produced the same alongwith the charge-sheet. 29. Mr. Navlani, learned Counsel for the accused, vehemently submitted that, the entire genesis of the incident is suppressed by the prosecution as the injuries of the accused are not explained. 29. Mr. Navlani, learned Counsel for the accused, vehemently submitted that, the entire genesis of the incident is suppressed by the prosecution as the injuries of the accused are not explained. He invited our attention towards the evidence of PW-14/Shankarsingh Rajput Investigating Officer who specifically stated that regarding the said incident the accused Waris Khan has also approached the Police Station and lodged report. He was also referred for medical examination. 30. In support of his contention, he placed reliance on the decision of the Hon’ble Apex Court in the case of Kumar Vs. State represented by Inspector of Police (supra), wherein the Hon’ble Apex Court by referring its earlier judgment in Mohar Rai and Bharath Rai Vs. The State of Bihar, 1968 Cri LJ 1479 and Lakshmi Singh & Ors. Vs. State of Bihar, 1976 Cri LJ 1736, wherein it is observed that: “Where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.” It was further observed that: “In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which completes in probability with that of the prosecution one.” 31. In the case in hand, the Investigating Officer has stated about the report filed by the accused Waris Khan and also stated that he was referred to the Hospital. Admittedly, the prosecution did not produce his medical record nor the Medical Officer was examined on the nature of the injuries sustained by the accused. In the case in hand, the Investigating Officer has stated about the report filed by the accused Waris Khan and also stated that he was referred to the Hospital. Admittedly, the prosecution did not produce his medical record nor the Medical Officer was examined on the nature of the injuries sustained by the accused. At the same time, the accused has also not put the defence that he has sustained the injuries which are grievous in nature and sustained by him at the hands of either of the deceased or PW-2/Sanjay Harsule. 32. In the case Mohar Rai and Bharath Rai (supra), it is made clear that, failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise, in the case of Lakshmi Singh (supra), it is observed that non-explanation of the injuries on the accused by the prosecution may affect the prosecution case and such non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. These aspects further highlighted by the Hon’ble Apex Court in the case of Vijayee Singh Vs. State of U.P. AIR 1990 SC 1459 that if the prosecution evidence is clear, cogent and creditworthy and the Court can distinguish the truth from the falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. 33. Thus, the law is settled that the non-explanation of injuries by the prosecution will not affect the prosecution’s case where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, probable, consistent and creditworthy, it would not affect the omission on the part of the prosecution to explain the injuries. 34. The Hon’ble Apex Court in the case of Ramlagan Singh Vs. State of Bihar, MANU/SC/0216/1972, that prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put the questions to the prosecution witnesses regarding the injuries of the accused persons. 34. The Hon’ble Apex Court in the case of Ramlagan Singh Vs. State of Bihar, MANU/SC/0216/1972, that prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put the questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of the accused. 35. In Hare Krishna Singh & Ors. Vs. State of Bihar, 1988 Cri LJ 925, it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. 36. Here in the present case, the evidence on record nowhere shows that the witnesses especially the eyewitnesses are either inimical or interested witnesses. On the contrary it shows that, they were independent witnesses. Their evidence is not shattered during the cross-examination. Even defence has not put any questions to the prosecution witnesses regarding the injuries of the accused persons. Even no suggestion was given that accused Waris Khan was also assaulted in the alleged incident. Thus, it is the settled law that if there are serious injuries or grievous injuries found on the body of the accused than the prosecution owes the duty to explain such injuries and the failure on the part of the prosecution to explain may point towards the innocence of the accused. At the same time, the well settled law is that if the injuries are superficial or minor in nature than the prosecution need not explain such injuries. 37. Here in the present case, the accused has not offered any explanation to show that he has also sustained the grievous injuries in the said incident. He has not explained the same even during his 313 statement when incriminating circumstance as to the blood stains on his Shirt was put to him. He nowhere explained that he had also sustained the injuries in the said incident. He has not explained the same even during his 313 statement when incriminating circumstance as to the blood stains on his Shirt was put to him. He nowhere explained that he had also sustained the injuries in the said incident. Thus, the defence has not brought on record anything to show that the accused Waris Khan has also sustained the grievous injuries, and therefore, the prosecution is under obligation to explain the said injuries. Therefore, there is substance in the submission of the learned APP that in the light of the evidence laid by the prosecution which is clear, cogent and creditworthy the Court can distinguish the truth from the falsehood. A mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence. 38. The entire evidence nowhere shows that there was any previous enmity between the accused and the deceased. If the evidence of PW-4/Devendra Kathe and PW-14/Shankarsingh Rajput is taken into consideration, the inference can be drawn that during the sudden dispute between them the alleged incident has taken place. 39. Learned Judge of the Trial Court has considered this aspect and held that as far as intention is concerned, admittedly there is no evidence to show that the accused has an intention to cause death of the deceased but the act of the accused is sufficient to attract the knowledge that he is having knowledge that this act can cause the death of the deceased. In the light of the evidence of Medical Officer PW-17/Dr. Laxmikant Bade who conducted the Postmortem examination also shows that, the injuries 2 to 17 are simple injuries mentioned in column No.17. Thus, the internal injury Haematoma under the scalp, top and back of the head proves to be fatal. Therefore, the observation of the learned Trial Court that the knowledge is attributable to the accused is plausible view taken by the Trial Court. 40. The culpable homicide is defined in Section 299 of the INDIAN PENAL CODE and it is genus. Whereas, the murder defined in Section 300 of the INDIAN PENAL CODE and it is specie. Under Section 299 of the INDIAN PENAL CODE , whoever causes death with an intention or knowledge specified in that Section, commits offence of culpable homicide. 40. The culpable homicide is defined in Section 299 of the INDIAN PENAL CODE and it is genus. Whereas, the murder defined in Section 300 of the INDIAN PENAL CODE and it is specie. Under Section 299 of the INDIAN PENAL CODE , whoever causes death with an intention or knowledge specified in that Section, commits offence of culpable homicide. However, since culpable homicide is only genus, it includes two forms; one is a graver offence which amounts to 'murder' and lesser one which does not amount to 'murder'. It can be seen that, therefore, though the offence of culpable homicide is defined, the said provision does not provide any punishment for that offence as such and, for the purpose of punishment, the court has to examine facts and find out whether the offence falls or does not fall under the definition of murder under Section 300 of the INDIAN PENAL CODE . In view of this scheme, therefore, every act of homicide falls within the definition of culpable homicide under Section 299 of the INDIAN PENAL CODE . Section 300 of the INDIAN PENAL CODE on the one hand mentions that a homicide is murder. However, in that section five exceptions have been given and these exceptions lay down the circumstances in which the act causing death is not murder even though it may have been done with the intention or knowledge specified in Section 300 of the INDIAN PENAL CODE . Therefore, it has to be seen; (1) what was the intention or knowledge with which the act was done and what are circumstances in which it was done, (2) if it is established that the offence is culpable homicide, but it does not fall within the definition of murder and if it falls under any of exceptions to that Section, the offence is punishable under Section 304 of the INDIAN PENAL CODE . Once, it is held that the offence falls under Section 304 of the INDIAN PENAL CODE , the punishment differs, depending upon whether the death is caused with an intention or only with the knowledge and, therefore, if the element of intention exists, the offence is punishable under Part-I of Section 304 of the INDIAN PENAL CODE , otherwise, the offence falls under Part-II of Section 304 of the INDIAN PENAL CODE . 41. In the case of Anbazhagan Vs. 41. In the case of Anbazhagan Vs. State represented by the Inspector of Police, 2023 SCC OnLine SC 857 also, while considering the aspect of “intention” and “knowledge”, the Hon’ble Apex Court observed that the word "intent" is derived from the word archery or aim. The "act" attempted to must be with "intention" of killing a man. Intention, which is a state of mind, can never be precisely proved by direct evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission. Intention of a person cannot be proved by direct evidence but is to be deduced from the facts and circumstances of a case. There are various relevant circumstances from which the intention can be gathered. Some relevant considerations are that 1. the nature of the weapon used; 2. the place where the injuries were inflicted; 3. the nature of the injuries caused, and 4. the opportunity available which the accused gets. 42. By referring its earlier decision in the case of Smt. Mathri Vs. State of Punjab, AIR 1964 SC 986 , the Hon’ble Apex Court observed that the word "intent" by its etymology, seems to have metaphorical allusion to archery, and implies "aim" and thus connotes not a casual or merely possible result- foreseen perhaps as a not improbable incident, but not desired- but rather connotes the one object for which the effort is made- and thus has reference to what has been called the dominant motive, without which, the action would not have been taken. While distinguishing between “motive”, “intention” and “knowledge”, “motive” is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this had led to a certain amount of confusion. A man's intention has to be inferred from what he does. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this had led to a certain amount of confusion. A man's intention has to be inferred from what he does. The degree of guilt depends upon intention and the intention to be inferred must be gathered from the facts proved. Sometimes an act is committed which would not in an ordinary case inflict injury sufficient in the ordinary course of nature to cause death. Proof of such knowledge throws light upon his intention. On the other hand, awareness is termed as “knowledge”. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he must have been aware that certain specified harmful consequences would or could follow, the knowledge that specified consequences would result or could result by doing an act is not the same thing as the intention that such consequences should ensue. If an act is done by a man with the knowledge that certain consequences may follow or will follow, it does not necessarily mean that he intended such consequences and acted with such intention. Intention requires something more than a mere foresight of the consequences. It requires a purposeful doing of a thing to achieve a particular end. 43. With the above proposition, if the evidence in the present case is taken into consideration and the attending circumstances are looked into, admittedly there is nothing on record to show that there was any overt act on the part of the accused Waris Khan which would show that the intention of the accused was only to cause death of the deceased. There is no single circumstance from which it can be gathered that there was no any other intention on the part of the accused Waris Khan but to cause death of the deceased. 44. There is no single circumstance from which it can be gathered that there was no any other intention on the part of the accused Waris Khan but to cause death of the deceased. 44. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. 45. Difference between two parts of Section 304 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. 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. 46. 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. 46. After applying the above principle and while determining the question, admittedly the facts of the present case and the circumstances under which the alleged incident taken place are sufficiently to show that accused Waris Khan was having knowledge that his act would cause the death, and therefore, the observation of the Trial Court that the said act would cover under Section 304-II of IPC calls no interference. 47. As far as accused No.2/Majidkha is concerned who has caused the injuries to PW-2/Sanjay Harsule is proved by PW-2/Sanjay Harsule as well as PW-13/Dr. Yadavrao Deshmukh. Admittedly, the injuries sustained by PW-2/Sanjay Harsule are simple in nature. The injuries on the person of PW-2/Sanjay Harsule are proved by the prosecution and no contrary evidence is brought on record to show that he had sustained the injuries due to any other reason. Therefore, the said finding also calls no interference. 48. Insofar as the facts of the present case are concerned, admittedly there was no previous enmity between accused and the deceased and injured. There was no intention on the part of the accused to cause the death of the deceased. As far as the submission of the learned APP for enhancement of sentence is concerned, is not acceptable as there is no evidence on record to show that accused Nos. 1 and 2 were sharing the common intention to cause death of the deceased. The entire evidence adduced by the prosecution sufficiently established that, during the scuffle the deceased was assaulted by the accused persons with knowledge that the act would cause his death. Admittedly, no direct evidence is available to show the intention of the accused, the intention to be gathered from the circumstances. The accused has not carried any weapon. He has used the wooden rip which was available at the spot and caused the injuries. Most of the injuries are simple in nature, only one injury proved to be fatal. The accused persons had not caused the injuries by way of overt act. 49. The accused has not carried any weapon. He has used the wooden rip which was available at the spot and caused the injuries. Most of the injuries are simple in nature, only one injury proved to be fatal. The accused persons had not caused the injuries by way of overt act. 49. For all the above reasons, there is no hesitation to held that the learned Trial Court has rightly considered that there was no intention but knowledge, therefore no perversity is found in the said finding. Therefore, both the Appeals i.e. the Appeal filed by the accused persons for quashing and setting aside the judgment of conviction and sentence as well as the Appeal for enhancement of sentence filed by the State are being devoid of merits liable to be dismissed. 50. Accordingly, the Appeals are dismissed. 51. Pending application/s, if any, shall stand disposed of accordingly.