M.S. Shah, J.
1. Criminal Appeal No. 23 of 1998 is filed by Fatesinh Jesinh Parmar, original accused No. 1, against the judgment and order dated 13-11-1997 passed by the learned Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No. 53 of 1995, convicting the appellant-accused No. 1 for the offence punishable under Section 302 I.P.C. and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 1,000/- in default rigorous imprisonment for one month.
2. Criminal Appeal No. 52 of 1998 is filed by the State of Gujarat for challenging the same judgment and order by which the learned Sessions Judge, Sabarkantha acquitted the other accused of the offence punishable under Section 302 I.P.C. read with Section 149 I.P.C. By the said judgment, the learned Sessions Judge convicted accused Nos. 2, 6 and 13 for the offence punishable under Section 325 I.P.C. and sentenced the said accused to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- in default to undergo rigorous imprisonment for 15 days. Accused No. 13 was also convicted for the offence punishable under Section 323 I.P.C. and sentenced to suffer rigorous imprisonment for 15 days and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for 7 days.
3. In all 21 accused were charged with the offence of committing murder of Agarsinh (hereinafter referred to as 'the deceased') who was residing in the same locality of the accused and the witnesses. The prosecution case is that six months before the incident in question took place on 9-4-1994, there was a dispute between the accused and his family members on the one hand and the complainant and his family members on the other hand. On 9-4-1994 at about 5-00 O'clock, Vinusinh, brother-in-law of accused No. 1-Fatesinh Jesinh had gone to the well in the agricultural field of the complainant and complainant-Sardarsinh, nephew of the deceased, had offered water to Vinusinh. Thereafter, in the same evening at about 8-30 p.m., accused No. 1 along with the other accused including accused Nos. 2, 6 and 13 went to the house of the deceased along with deadly weapons like dharia and sticks and accused No. 1 inflicted two dharia blows on the head of the deceased and the other accused gave stick blows to the witnesses and also pelted stones. The deceased as well as the witnesses were rushed to the Civil Hospital at Himmatnagar where the statement of the deceased was recorded before the Investigating Officer in presence of the medical witness, and thereafter, the deceased was rushed to the Civil Hospital, Ahmedabad where the deceased succumbed to the injuries. The crime for the offences punishable under Sections 147, 148, 302, 323 and 325 read with Section 149 I.P.C. and also for the offence punishable under Section 135 of the Bombay Police Act, was therefore, registered against the accused. The weapons used in the incident were produced by the accused themselves which were recovered under the panchnama. The case was committed to Sessions on 14-2-1995 and the accused pleaded not guilty.
4. At the trial, the prosecution examined Dr. V. J. Prajapati who had examined Agarsinh before he expired and also the other injured witnesses at Exhs. 44 and 91. Dr. Hansaben Shukla who conducted the post-mortem was also examined. Apart from complainant-Sardarsinh Kesarisinh (nephew of the deceased) (Exit. 57), P.W. 4-Lalusinh Bhupatsinh Rathod (brother of the deceased) (Exh. 58), P.W. 5-Pratapsinh Bhupatsinh Rathod (another brother of the deceased) (Exh. 59), P.W. 6-Manguba Pratapsinh (sister-in-law - Bhabhi of the deceased) (Exh. 61) were examined as eye-witnesses in support of the prosecution case. P.W. 7-Shantaben Daulatsinh and P.W. 8-Udesinh Prabhatsinh Jadav (Exhs. 62 and 63 respectively) also deposed about the incident more particularly in respect of the injuries received by them. The panch witnesses in respect of the panchnama for recovery of the weapons viz, P.W. 9-Ramsinh Kodarsinh and P.W. 10-Lalsinh Bhathisinh were also examined at Exhs. 66 and 72 respectively. Apart from the said panchas, the panchas in connection with the inquest panchnama and the Investigation Officer were examined. Police Inspector-P. U. Raol was also examined at Exh. 101.
5. The learned Sessions Judge held that, as per the prosecution witnesses, about six months prior to the date of the incident, there was a dispute between two groups in connection with the distribution of flowers amongst the girls of the respective families on the celebration of gauri vrat. Since then, the parties were not on talking terms. In the early evening of 9-4-1994, Vinusinh, brother-in-law of accused No. 1-Fatesinh Jesinh (i.e. Fatesinh's sister's husband) had visited the well in the agricultural field of compIainant-Sardarsinh Kesarisinh, nephew of the deceased and had requested for water, which complainant Sardarsinh readily offered. Thereafter, the complainant had returned to his residence. On coming to know that Vinusinh had been to the well of compIainant-Sardarsinh (nephew of the deceased), accused No. 1 was enraged as to why the family of the deceased had invited a relative of accused No. 1 and accused No. 1 had gone to the residence of the deceased with a dharia. Accused Nos. 2, 6 and 13 had thereafter gone with sticks. Accused No. 1 gave two dharia blows on the head of the deceased and accused Nos. 2, 6 and 13 gave stick blows to the five eye-witnesses including two lady members of the family of the deceased. Hence, the deceased and the other injured witnesses were taken to the Civil Hospital at Himmatnagar. The learned Sessions Judge further held that the deceased gave his dying declaration (Exh. 103) before the Investigating Officer and before Dr. Prajapati in the Civil Hospital at Himmatnagar and as per the dying declaration, accused No. 1 had gone to the place of the deceased with a dharia and gave him two blows. The deceased also disclosed the names of accused Nos. 6, 7, 11 and 13 and said that there were also other persons who had pelted stones. Thereafter, the deceased became unconscious and was rushed to the Civil Hospital at Ahmedabad. The learned Sessions Judge held that Dr. Prajapati was an absolutely independent witness who had no reason for making any false statement. The learned Sessions Judge believed the said medical witness when he stated that the deceased was conscious when he gave the dying declaration before the Investigation Officer and in presence of the said medical witness. The learned Sessions Judge held that accused No. 1 had given two dharia blows, one of which was an incised wound of 10 cms. x 1 cm. x 1 cm. on the right parietal region with bone with a diametre of 5 cms. protruding out of the head. There were also other injuries, one of 1 cm. x 0.5 cm. on the forehead near the left eye, another one of contused lacerated wound of 1 cm. x 0.5 cm. x 0.5 cms. on the forehead near the right eye. There were also fractures on the front parietal right side of the head. Dr. Prajapati also opined that the aforesaid incised wound of 10 cms. x 1 cm. x 1 cm. was capable of being caused by a sharp cutting instrument like a dharia and was sufficient in the ordinary course of nature to cause death. The panchnama under which the weapons were taken from the accused at Exh. 70 (Page 516) also indicates that there were blood-stains on the sharp edge of the dharia recovered from accused No. 1. The learned Sessions Judge, therefore, held that accused No. 1 had gone to the house of the deceased with a dharia with an intention to cause bodily injuries on the deceased and the injuries on the head of the deceased were serious enough in the ordinary course of nature to cause death, and therefore, accused No. 1 was guilty of culpable homicide amounting to murder.
6. As far as the other accused are concerned, the learned Sessions Judge did not accept the prosecution case that they had gone to the house of the deceased with a common object or common intention of causing death of the deceased. The learned Sessions Judge held that because the houses of accused No. 1, the deceased and other accused as well as the prosecution witnesses are near one and another and on the same road, and therefore, when the incident took place, the neighbours and the relatives in the same locality are bound to come out of the house and merely on that ground they cannot be said to have entertained any common intention or common object. It was after accused No. 1 gave the blows to the deceased that other accused went to the scene of the offence and naturally thereafter there might have been cross-fight. The learned Sessions Judge, therefore, convicted accused No. 1 of culpable homicide amounting to murder punishable under Section 302 I.P.C. and convicted accused Nos. 2, 6 and 13 for the offence punishable under Section 325 I.P.C.. Accused No. 13 was also convicted for the offence punishable under Section 323 I.P.C. for injuring other witnesses.
7. Aggrieved by the above judgment, accused No. 1-Fatesinh Jesinh Parmar has filed Criminal Appeal No. 23 of 1998 whereas the State of Gujarat has filed Criminal Appeal No. 52 of 1998 for challenging the same judgment and order insofar as the accused (other than accused No. 1-Fatesinh Jesinh Parmar) have been acquitted of the offence punishable under Section 302 I.P.C.
8. We have heard Mr. J. V. Japee, learned Counsel for the accused in both the appeals and Mr. K. T. Dave, learned Additional Public Prosecutor for the State. We have also gone through the evidence on record and the record and proceedings of the Sessions case.
9. Mr. Japee has made the following submissions at the hearing of the appeals :-
(i) As per the medical evidence, there was only one incised lacerated wound on the head of the deceased whereas accused No. 1 is alleged to have given two dharia blows on the head of the deceased, and therefore, the version given by the eye witness is not borne out by the medical evidence, and therefore, the said oral evidence must be discarded.
(ii) In any view of the matter, accused No. 1 could not have been convicted under Section 302 I.P.C. It was a case of group fight as accused No. 1-Fatesinh Jesinh Parmar himself had filed cross complaint at Exh. 113 which we have seen from the original record and proceedings. It is further submitted by him that the accused themselves had sustained injuries. Therefore, it was a mere case of group fight following the enmity between the two groups as emerges from the prosecution case itself.
(iii) When the medical evidence discloses that there was only one incised wound on the head, the deceased could not be said to have entertained any intention to cause death of the deceased and therefore, at the highest the case would fall under Section 304 Part II.
10. On the other hand, Mr. K. T. Dave, learned Addl. Public Prosecutor has supported the judgment of the learned Sessions Judge insofar as the conviction of accused No. 1 for the offence punishable under Section 302 I.P.C. is concerned, but has assailed the same judgment on the ground that accused No. 1 was accompanied by the other accused who had also gone to the residence of the deceased with lathis and had gone to the place of the residence of the deceased with common object and common intention of causing death of the deceased and that the injuries received by the complainant and other eye-witnesses also bear out the prosecution case.
11. Having heard the learned Counsel for the parties at length, we are unable to find any infirmity in the judgment of the learned Sessions Judge either in respect of the conviction of accused No. 1-Fatehsinh Jesinh Parmar under Section 302 I.P.C. or in respect of acquittal of the other accused for the same offence read with Section 149 I.P.C.
12. As regards the alleged discrepancy between the medical evidence and the ocular evidence, the learned Sessions Judge rightly accepted the evidence of Dr. Prajapati (Exh. 44) who had examined the deceased at the time of his admission to the Civil Hospital at Himmatnagar. As per the said evidence, the serious injury on the parietal region incised wound of 10 cm. x 1 cm. x 1 cm. was caused by a sharp cutting instrument and the blood-stains on the dharia of accused No. 1 corroborate the said case. Merely because the witnesses including family members of the deceased said that accused No. 1 gave two dharia blows on the deceased and only one long incised wound is found cannot be a ground for discarding the ocular version of the eye-witnesses, who were members of the family of the deceased and whose presence in the house of the deceased was quite natural. Two of the eye-witnesses were brothers of the deceased and the third one a sister in law (Bhabhi) of the deceased.
13. As regards the submission of Mr. Japee for accused No. 1 that there was a sudden fight and that in the heat of passion accused No. 1 had given the dharia blow on the deceased, we are not in a position to hold that the evidence on record corroborates any such case of the accused which was not even pleaded at the trial. In his further statement under Section 313 Cr.P.C., accused No. 1 himself denied that he had filed the complaint Exh. 113. As regards the injuries on the body of accused No. 1 as stated in the evidence of Dr. Vinodkumar J. Prajapati (Exh. 91), they were only three minor injuries -
(i) incised lacerated wound of 1 cm. x 0.5 cm. on the right index finger.
(ii) an abrasion on the bottom of the right foot.
(iii) complaint of pain on left thigh when pressed.
Apart from the fact that the injuries are very minor and insignificant, they are clearly explained by the finding given that after the deceased fell down on account of dharia blows given by accused No. 1, the eye-witnesses and all the accused had a fight.
Even looking at the prosecution evidence for this purpose, all that emerges from the record is that Vinusinh (accused No. 1-Fatesinh's sister's husband) had gone to the well of complainant-Sardarsinh (nephew of the deceased) and Vinusinh was offered water by Sardarsinh between 5-00 and 5-30 in the early evening on 9-4-1994. On the same day at about 8-00 in the evening, accused No. 1 went to the house of the deceased; accused No. 1 was enraged and annoyed with the deceased as to why a family member of the deceased (the deceased was the uncle of complainant Sardarsinh) had invited Vinusinh to the well of the complainant when there were disputes and animosity between the two groups. Assuming that there was any altercation between accused No. 1 and the deceased at that point of time, there is no explanation as to why accused No. 1 had gone to the house of the deceased with a dharia. This circumstance also is sufficient to rule out the submission of Mr, Japee for accused No. 1 that accused No. 1 had gone to the house of the deceased without any premeditation. It was not that the incident in question had taken place in the agricultural field and that the accused had used any agricultural equipment which would be found in an agricultural field for the purpose of agricultural activities and a verbal altercation might provoke the accused to use any such agricultural equipment. Vinusinh had gone to the well in the agricultural field of complainant Sardarsinh between 5 and 5.30 in the evening and it was thereafter around 8 in the evening i.e. after three hours that accused No. 1 had gone to the house of the deceased with a dharia, enraged by the fact that his brother in law had visited or had been invited to the well of a person from the family of the deceased (complainant was the nephew of the deceased). It is not even the case of the defence that Vinusinh was given any ill-treatment by the complainant, the deceased or any of their family members. On the contrary, the deceased had merely said 'your guest is equally our guest. Why have animosity against a guest?'. In the above set of circumstances, it can hardly be said that the ingredients of Exception 1 or Exception 4 to Section 300 have been satisfied.300 and Exceptions 1 and 4 thereof are set out hereinbelow :-
'Section 300. Murder :- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused with the intention of causing death, or -
2ndly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom the harm is caused, or -
3rdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
4thly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and committed such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
When culpable homicide is not murder
Exception 1 : Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos :-
...... ...... ...... ......
Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel and unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.'
15. Mr. Japee, learned Counsel for the accused, however, vehemently submitted that as per the medical evidence, the deceased had only one incised wound on his head, and therefore, the case will fall under Section 304 I.P.C. and not under Section 302 I.P.C. It is submitted that if accused No. 1 had any intention of causing death of the deceased, a number of dharia injuries would have been inflicted on the head of the deceased. Therefore, the presence of only one incised wound on the head of the deceased is sufficient to show that accused No. 1 did not have any intention to cause death of the deceased. It is, therefore, submitted that the case would fall under Section 304 Part II and not under Section 304 Part I.
The learned Counsel for the accused has relied on the following decisions of the Apex Court in support of his contention that when the accused is found to have given only one blow on the deceased, the Courts have altered the conviction under Section 302 to one under Section 304 Part II I.P.C. :-
(i) Takhaji Hiraji v. Thakore Kubersing Chamansinh, AIR 2001 SC 2328 : 2002 (1) GLR 1 (SC),
(ii) Addha v. State of M. P., AIR 2001 SC 3973,
(iii) Camilo Vaz v. State of Goa, AIR 2000 SC 1374,
(iv) Masumsha Hasanasha Masalman v. State of Maharashtra, AIR 2000 SC 1876,
(v) State of U.P. v. Indrajeet, AIR 2000 SC 3158,
(vi) K. Ramakrishnan Unnithan v. State of Kerala, AIR 1999 SC 1428,
(vii) Chandrakant Murgyappa Umrani v. State of Maharashtra, AIR 1999 SC 1557,
(viii) State of Bihar v. Ramnath Prasad, AIR 1998 SC 466 and
(ix) Mavila Thamban Nambiar v. State of Kerala, AIR 1997 SC 687.
16. We are, however, not persuaded to accept the above submission made by the learned Counsel for the accused because before considering the question whether the case would fall under Section 304 Part I or 304 Part II, once the prosecution has shown beyond reasonable doubt that any one of the four clauses of Section 300 are satisfied, it amounts to a culpable homicide amounting to murder unless the accused is able to invoke any of the five exceptions. It is only if any one of the five exceptions applies, then only it would be a case of culpable homicide not amounting to murder. In the instant case, as per the evidence already discussed by the learned Sessions Judge with which appreciation we entirely agree, this was a case where accused No. 1 had given a serious dharia blow on the head of the deceased which not only caused the incised wound of 10 cms. x 1 cm. x 1 cm. on the head but the skull bone with 5 cms. diameter protruded out of the head, only because the nephew of the deceased had offered water to the brother-in-law of accused No. 1 when the said brother-in-law had gone to the well of the said nephew (complainant).
17. The submission that giving of one blow by itself would not indicate that accused No. 1 had the intention of causing death of the deceased also proceeds on the assumption that culpable homicide would amount to murder only if the act by which the death is caused is done with the intention of causing death. Section 300 enumerates four clauses and if any one of them applies, it would be a case of culpable homicide amounting to murder, unless the accused is in a position to invoke any of the five exceptions enumerated after the four ingredients and illustrations thereto. Section 300 read with Exceptions 1 and 4 thereof which are invoked in the instant case are already set out hereinabove. In the facts of the instant case, it is clear that the deceased had deliberately inflicted the dharia blow with the sharp edge on the head of the deceased. It was bodily injury with a dealy weapon inflicted on the head of the deceased which was sufficient in the ordinary course of nature to cause death. Clause 3rdly of Section 300, is therefore, clearly applied. In the facts of the case, he can also certainly be imputed the knowledge that such a head injury with the sharp edge of the dharia on the head of the deceased was so imminently dangerous that it must, in all probability, cause death or that such bodily injury was likely to cause death and the accused committed the act of giving dharia blow with the sharp edge on the head of the deceased without any excuse for incurring the risk of causing death or the aforesaid injury. Thus, Clause 4thly of the offence of culpable homicide amounting to murder is also satisfied. Once it is so held, and it is also held, that the accused is not entitled to get benefit of any of the exceptions to Section 300, there can be no question of considering whether the case would fall under Part I or Part II of Section 304 I.P.C. It is only when the case goes out of Section 300 because the benefit of any of the five exceptions were to be available to the accused, and therefore, it would be a case of culpable homicide not amounting to murder, that the question would arise whether the accused is to be convicted of the offence punishable under Part I or Part II of Section 304. Once the Court holds that it is a case of culpable homicide and any one of the four clauses in Section 300 is satisfied and the accused is not able to get the benefit of any of the five exceptions, it is a case of culpable homicide amounting to murder, and therefore, there is no question of applying the provisions of Section 304 which only deal with culpable homicide not amounting to murder.
18. In Ramashraya v. State of M. P., AIR 2001 SC 1129, the appellants contended that the offence, if at all committed by the appellants, will not come within the definition of 'murder', but only 'culpable homicide' looking to the nature of injuries and the sudden quarrel took place without any premeditation. It was, therefore, contended that at the highest the appellants were liable to be punished under Section 304 Part II I.P.C. The Apex Court held that 'from the nature of the injuries and the origin and genesis of the incident, it would be spelt out that all the ingredients of the offence of murder defined under Section 300 I.P.C. were made out and it was not possible to bring the offence within any of the five exceptions of Section 300 I.P.C. Therefore, Section 304 I.P.C. cannot be invoked.'
19. The plea that when the death is caused by a single injury inflicted by the accused, it should be treated, not as a murder punishable under Section 302, but as culpable homicide not amounting to murder punishable under Section 304 has been rejected in a number of cases where the accused had inflicted the injury on the deceased either with the intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death or with the knowledge that his act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and has committed such act without any excuse for incurring the risk of causing death or such injury as is likely to cause death.
20. In Jai Prakash v. State (Delhi Admn.), 1991 (2) SCC 32 : 1991 SCC (Cri.) 299, the accused had inflicted a stab injury in the chest of the deceased with a kirpan after an altercation and exchange of hot words. The deceased died immediately. The doctor opined that the injury was sufficient to cause death in the ordinary course of nature. The accused was convicted of the offence punishable under Section 302 I.P.C. and sentenced to life imprisonment. The contention of the accused before the Supreme Court was that the accused having inflicted only a single blow which proved fatal, the offence committed would not be covered by Section 300 I.P.C. and would be of culpable homicide not amounting to murder. Negativing the contention, the Apex Court held as under :-
'In this case, the accused intentionally inflicted the injury though it may not be premeditated one. All the circumstances would certainly indicate such a state of mind namely that he aimed and inflicted that injury with a deadly weapon. In the absence of evidence or reasonable explanation to show that the appellant did not intend to stab in the chest with a kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did. When once the ingredient 'intention' is established, the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death. Therefore, an offence of murder is made out.
It is fallacious to contend that when death is caused by a single blow Clause Thirdly of Section 300 is not attracted, and therefore, it would not amount to murder. The ingredient 'intention' in that clause is very important and that gives the clue in a given case whether offence involved is murder or not.
Clause Thirdly of Section 300 consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part is that the said injury was sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury, not to cause death, as in case of intention to cause death it will be murder simpliciter. Whereas under the second part the question as to whether the injury was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury.'
21. Again in State of Karnataka v. Vedanayagam, 1995 (1) SCC 326 : 1995 SCC (Cri.) 231, the Apex Court reiterated the same principle in the following words :-
'The ingredient of Clause 3rdly is not the intention to cause death but onthe other hand the ingredient to be proved is the intention to cause the particularinjury that was present. It is fallacious to contend that wherever there is asingle injury only a case of culpable Homicide is made out irrespective of othercircumstances. There is no legal basis whatsoever to hold that since therespondent-accused gave only one blow, though found to be sufficient in theordinary course of nature to cause death, clause 3rdly of Section 300 is notattracted.'
22. In Karu Malik v. State of Bihar, 2001 (5) SCC 284 : 2001 Cri. LJ 2615, also the Apex Court has laid down the following principles when the accused is found to have inflicted the injury with intention of causing such bodily injury as he knew to be likely to cause the death of the person to whom the harm is caused :-
'Such intention may be inferred not merely from the actual consequences of his act, but from the act itself also. Hence, the manner of causing injuries, the nature of the injuries caused, the pans of the body where they were inflicted, the weapon of assault employed in the commission of the offence and conduct of the accused are relevant factors in determining whether the offence committed is one of murder or culpable homicide not amounting to murder. Even the most illiterate and rustic person would know and, realize that a savage blow with a sharp cutting weapon on vital parts like chest and abdomen would cause bodily injury which would result in death. Ordinarily, a man is presumed to intend necessary consequences of his act.'
It is not necessary to pursue this line of discussion as the case at hand sufficiently attracts Clause 3rdly of Section 300.
23. Various decisions cited by the learned Counsel for the accused are not required to be dealt with in detail for the simple reason that those decisions are rendered in the facts and circumstances of those concerned cases where the Court held that they were cases of culpable homicide not amounting to murder. Merely because the Court may not have referred to the provisions of any particular exception to Section 300, it would not mean that the Court held it to be a case of culpable homicide amounting to murder, and thereafter, applied the provisions of Section 304 Part II. For instance, in Addha v. State of M.P., AIR 2001 SC 3973, the Court found that there was a sudden quarrel between two groups of people and that the lathi used by the accused caused injury to the deceased resulting in his death. This would clearly mean that the Court applied Exception 4 to Section 300, and therefore, the case went out of Section 300 and it was held to be a case of culpable homicide not amounting to murder, and thereafter, the provisions of Section 304 Part II were applied.
Similarly, in State of U. P. v. Indrajeet, AIR 2000 SC 3158, the accused was a carpenter by occupation and he had used the implement ordinarily used in carpentry, and therefore, the Court held that it cannot be considered as a deadly weapon used with any premeditation, and that there was only one serious blow given by the accused with the said implement and there was absence; of intention to cause death. The Court, therefore, did not attribute any intention or knowledge contemplated by the four ingredients of Section 300, and therefore, held that it was a case of culpable homicide not amounting to murder.
24. In view of the above discussion, the contention of the learned Counsel for the appellant-accused that the Court should consider whether the case would fall under Part I or Part II of Section 304 cannot be accepted.
25. For the reasons aforesaid, we do not find any substance in the appeal of accused No. 1 challenging his conviction under Section 302 I.P.C, for which he has been sentenced to the minimum punishment of imprisonment for life.
26. Coming to the acquittal appeal of the State against acquittal of the other accused of the offence punishable under Section 302 I.P.C., we have gone through the relevant evidence in this behalf, and the judgment of the learned Sessions Judge and also heard the learned Addl. P.P. and the learned Counsel for the accused. In view of the finding given by the learned Sessions Judge that it was after the deceased fell down upon the dharia blow given by accused No. 1 that the other accused, who were relatives of accused No. 1 and were also residing in the same neighbourhood, came to the scene of offence and none of them was carrying any deadly weapon and they were only carrying lathis with them and none of them was found to have inflicted any injuries on the body of the deceased, the learned Addl. P.P. was not in a position to persuade us to take any different view from the one taken by the learned Sessions Judge that no common object or common intention could be attributed to any of the other accused. Hence, there is no basis whatsoever for, conviction of the accused other than accused No. 1 for the offence punishable under Section 302 read with Section 114 or 149 I.P.C.
In view of the above discussion, the appeal of the State of Gujarat also deserves to be dismissed.
27. Accordingly, both Criminal Appeal Nos. 23 and 52 of 1998 are hereby dismissed.