1 2025:CGHC:10728-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 690 of 2021 Chaitram Rathiya @ Khunda S/o Vipatram Rathiya, Aged About 58 Years R/o Village - Aamgaon, Police Station - Tamnar, District - Raigarh Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh, Through The Station House Officer, Police Station - Tamnar, District - Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Savita Tiwari, Advocate For Respondent(s) : Mr. Swajeet Ubeja, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 05.03.2025 1. Heard Ms. Savita Tiwari, learned counsel for the appellant as well as Mr. Swajeet Ubeja, learned Panel Lawyer, appearing for the respondent / State. MANPREET KAUR Digitally signed by MANPREET KAUR Date: 2025.03.06 10:32:11 +0530 2 2. This criminal appeal filed by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 25.02.2021 passed by the learned Additional Sessions Judge, Gharghoda, District- Raigarh (C.G.) in Session Trial No. 06/2019, whereby the appellant have been convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and fine of Rs.500/-, in default of payment of fine, additional R.I. for 02 months and under Section 452 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for 5 years and fine of Rs.500/-, in default of payment of fine, additional R.I. for 02 months. (Both the sentences are directed to run concurrently) 3. Case of the prosecution, in brief, is that on 03.10.2018, during the day, the informant Chhatar Singh (PW-1) received information that his father Mohit Ram has been killed by accused Chaitram Rathia with a tangia. On receiving the information, the informant reached his house in village Amgaon and saw that his father had cuts on his neck and right hand, from which blood was oozing out. In this regard, Mohit Ram told the informant that accused Chaitram had killed him with a tangia. Thereafter, the informant dialled 112 to call an ambulance, but Mohit Ram died before the ambulance arrived. In this regard, on information given by village Kotwar Visiram Chauhan (PW-6) to Tamnar police station, Inspector Vivek Patle (PW-9) of the said police station reached the spot and as 3 per the information given by the informant, Dehati Merg Intimation (Ex.P-1) and Section 452, 302 of Indian Penal Code. Under the said Act, a rural first information report (Ex.P-2) was registered and the dead body was inspected in presence of witnesses and a map panchayatnama (Ex.P-3) was prepared and the dead body was sent to CHC Tamnar for examination, wherein postmortem of the deceased was conducted by Dr. Dhansingh Pankra (PW-8), Medical Officer in Community Health Centre, Tamnar and accordingly postmortem report (Ex.P-13) was presented, according to which, there was a cut wound of size 5x2x2 cm on the right arm of the deceased and a cut wound of size 4x2x2 cm was present on the neck and the carotid artery (vein) was cut and there was excessive bleeding from it. He opined that the death of the deceased was caused due to cutting of the neck vein and excessive bleeding and the nature of death of the deceased was homicidal. 4. As per the information given by the informant, the site of incident was inspected and a site map (Ex.P-4) was prepared and the blood stained and plain soil from the site of incident was seized as per the seizure memo (Ex.P-5) and the green, blue, white colored printed lungi, on which blood stains were visible at many places was seized as per the seizure memo (Ex.P-6). 5. During the investigation, accused Chaitram Rathia was taken into custody and a memorandum (Ex.P-7) was recorded in presence 4 of witnesses Ghanshyam (PW-4) and Visiram (PW-6) and on the basis of the said memorandum, the axe used in the incident, the blade and handle of which had blood on it, was seized from the accused on the basis of the seizure sheet (Ex.P-8) and the green coloured dhoti worn by the accused at the time of the incident, which had blood stains at various places, was seized from the accused as per the seizure sheet (Ex.P-9). Thereafter, intimation of death (Ex.P-16) was recorded and a First Information Report (Ex.P-17) was registered against the accused under Section 452, 302 of the Indian Penal Code under Crime No. 232/2018. The statements of the witnesses were recorded and the accused was arrested. 6. After completion of investigation, a charge-sheet was presented against the accused in the court of Judicial Magistrate First Class Gharghoda under Section 452, 302 of the Indian Penal Code. Thereafter, the case was received by the Court of learned Additional Sessions Judge, Gharghoda, District- Raigarh (C.G.). 7. On the basis of the charge-sheet presented in the case, the accused prima facie appeared to have committed the offence under Sections 452 and 302 of the Indian Penal Code. When the charges were framed and read out to him, the accused refused to confess the crime. 8. On the basis of evidence presented in the case, when the statement of the accused was examined in the form of a 5 questionnaire under Section 313 of the Code of Criminal Procedure, the accused expressed his innocence, but did not produce any witness in his defence. 9. In order to bring home the offence, the prosecution examined as many as 09 witnesses and exhibited 20 documents Exs.P-1 to P- 20. 10. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 25.02.2021, convicted the appellant for offence under Section 302 and 452 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been preferred by the accused / appellant. 11. Learned counsel for the appellant argued that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Section 302 of the IPC as there was no reason or any motive has been proved by the prosecution to do such type of crime. She further submits that in the present case, the case rest on circumstantial evidence which is so weak in nature that is insufficient to convict the appellant for the aforementioned offence. The learned trial Court has failed to appreciate that there is major contradiction and omission in the statement of so called eye witness namely Geeta Sidar PW-3, which cannot be relied upon. Further, the learned trial Court has erred in convicting the appellant only on the basis of testimony of interested witnesses. 6 The prosecution has failed to establish any motive or intention of the appellant to commit murder of deceased, therefore impugned conviction of the appellant being unsustainable in law, deserves to be quashed. The prosecution has not adduced any cogent & reliable evidence to prove the guilt of murder against the appellant. Further, the findings recorded by the learned trial Court is baseless, perverse, erroneous and contrary to the material evidence available on record, therefore liable to be set-aside/quashed. 12. On the other hand, Mr. Swajeet Ubeja, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that the appellant has caused murder of deceased by deadly attacking her with tangia due to which, he succumbed to his injuries, therefore, the learned trial Court has rightly convicted the appellant under Section 302 and under Section 452 of the IPC and it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II IPC and as such, the instant criminal appeal deserves to be dismissed. 13. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 14. The first question for consideration would be whether the deceased died under unnatural circumstances ? 7 15. With regard to this question, statement of Dr. Dhansingh Pankra (PW-8), who conducted the postmortem of the deceased Mohit Ram is taken into consideration. 16. Dr. Dhansingh Pankra (PW-8), this witness has stated in his judicial evidence while conducting the postmortem of the deceased Mohit Ram, he found that there was a cut wound of size 5x2x2 cm on the right arm of the deceased and a cut wound of size 4x2x2 cm was present on the neck and the carotid artery (vein) was cut and there was excessive bleeding from it. He opined that the death of the deceased was caused due to cutting of the neck vein and excessive bleeding and the nature of death of the deceased was homicidal. 17. Thus, there is no reason to disbelieve the testimony of the medical witnesses Dr. Dhansingh Pankra (PW-8), who conducted the postmortem of the deceased Mohit Ram. Hence, the trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. Dhansingh Pankra (PW-8), and PM report (Ex.P-13) has come to the conclusion that the deceased died under unnatural circumstances. 18. After hearing learned counsel for the parties and after considering the submissions advanced by them, we are of the considered opinion that the finding recorded by the trial Court that the deceased Mohit Ram died under unnatural circumstances is the 8 finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 19. Now, the question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question? 20. Geeta Sidar (PW-3) who is the daughter-in-law of the deceased is an eyewitness to the incident. In the evidence presented by the said witness in the main examination, it is stated that on 03.10.2018 at about 2-2.30 in the afternoon, her father-in-law Mohit Ram was sleeping on a cot kept in the shade of the house. The said witness further stated that at that time, the accused Chaitram came there and asked her about the people of her house, in relation to which she told that everyone had gone to work. Thereafter, the accused went to Mohitram and hit him near the neck and chest with a tangi in his hand due to which blood started flowing and after the said incident the accused fled from there. She has further stated that thereafter she told about the incident to a person named Dasarathi of the village who went to call the village Kotwar. Dasarathi Sidar (PW-5) has further stated supporting the above fact that he informed the village Kotwar Visiram Chauhan about the incident. 21. Visiram Chauhan (PW 6) has further stated that he got the above information and that after getting the information, he immediately went to Mohitram's house. Witness Visiram (PW-6) has further 9 stated that he saw that Mohitram had injury marks on his neck and hand and he was lying on the shade of his house and was alive at that time. It has been further stated by him that Mohitram told him that the accused Chaitram alias Khunda had hit him with a tangi. Witness Visiram expressed that he had informed the police station in this regard through his mobile phone. 22. The informant Chhatar Singh (PW-1) and witness Lakhan Lal (PW-2) who as per the prosecution story are the sons of the deceased Mohit Ram stated that on getting information about the incident, they returned to their house and saw the cut injury near the neck and right hand of their father Mohit Ram and on asking Mohit Ram about it, Mohit Ram told them that the accused had hit him with a tangia and caused the injury. The Informant Chhatar Singh (PW-1) further states that thereafter he dialled 112 to call an ambulance, but before the ambulance arrived, his father Mohit Ram died. According to the seizure memo (Ex.P-8), the green dhoti worn by the accused at the time of the incident on which blood stains were visible at various places was seized, which is supported by PW-1 and PW-2. It is further stated that at the same time, the police of Tamnar came to the spot and he informed the police about the incident and the Merg Intimation (Ex.P-1) and Dehati Merg Intimation (Ex.P-2) were registered and the police prepared the map of the dead body in the Panchayatnama (Ex.P- 3) in his presence. It is also stated by witnesses Lakhan Lal (PW- 2), Ghanshyam Sidar (PW-4) and Bisiram Chauhan (PW-6) that 10 the police had prepared the said map Panchayatnama in their presence. All the above investigation proceedings have been supported by the investigating officer of the case, Vivek Patle (PW-9). 23. Dr. Dhansingh Pankra (PW-8), has further mentioned that on 09.10.2018, the seized firearm was recovered from the Tamnar Police Station in Crime No. 232/2018 under Sections 302, 452 of the Indian Penal Code. The axe was presented to him in a sealed condition with the query whether the injury near the neck and left arm of deceased Mohitram Sidar could have been caused by the said seized axe? In this regard, when he conducted a physical examination of the axe, he found that there were red spots like blood on the blade of the iron axe and according to the query report (Ex.P-14), it was opined that the injuries caused to the deceased could have been caused by the said tested iron axe. 24. It is noteworthy that the opinion given by witness Dr. Dhan Singh Pankra (PW-8) regarding the death of the deceased and the opinion given regarding the seized axe have not been contradicted in the cross-examination conducted by the accused. Thus, the incident is being confirmed by medical evidence as well. 11 25. Considering the aforesaid oral and documentary evidence, the learned trial Court has rightly held that it is the appellant-accused who has caused injuries over the body of the deceased due to which he died. Accordingly, we hereby affirm the said finding. 26. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 27. The cause of death assigned in the post-mortem report of both the deceased as already noticed are ‘shock on account of consequential trauma’. It is a trite law that “culpable homicide” is a genus and “murder” is its species and all “murders” are “culpable homicides, but all “culpable homicides are not “murders” as held by the Hon’ble Supreme Court in Rampal Singh Vs. State of Uttar Pradesh1. The intention of the accused must be judged not in the light of actual circumstances, but in the light of what is supposed to be the circumstances. 28. The Hon’ble Supreme Court in the case of Basdev Vs. State of Pepsu2 has made the following observations : “Of course, we have to distinguish between motive, 1 (2012) 8 SCC 289 2 AIR 1956 SC 488 12 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 has led to a certain amount of confusion.” 29. It requires to be borne in mind that the test suggested in the aforesaid decision and the fact that the legislature has used two different terminologies, ‘intent’ and ‘knowledge’ and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat ‘intent’ and ‘knowledge’ in equal terms. They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 IPC. It is in this background that the expression used in Indian Penal Code namely “intention” and “knowledge” has to be seen as there being 13 a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part 3 of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted. 30. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana3 has observed as under:- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to 3 (2002) 3 SCC 327 14 pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 31. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana4 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse 4 (2009) 15 SCC 635 15 history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 32. Likewise, in the matter of State v. Sanjeev Nanda5, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any 5 (2012) 8 SCC 450 16 intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 33. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh6 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under :(SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this 6 (2017) 3 SCC 247 17 exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 34. In the matter of Arjun (supra), the Hon’ble Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily 18 injury, then same would be a case of Section 304 Part-II of the IPC. 35. Further, the Hon’ble Supreme Court in the matter of Rambir v. State (NCT of Delhi)7 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 36. The Hon’ble Supreme Court in a recent judgment in the case of Anbazhagan vs. The State represented by the Inspector of Police in Criminal Appeal No.2043 of 2023 disposed of on 20.07.2023 has defined the context of the true test to be adopted to find out the intention or knowledge of the accused in doing the act as under: “60. Few important principles of law discernible from the aforesaid discussion may be summed up thus: (1) When the court is confronted with the question, what offence the accused could be said to have 7 (2019) 6 SCC 122 19 committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate: ‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the 20 event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause 21 death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of 22 happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely 23 be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely 24 falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 37. Reverting to the facts of the present case in light of principles of law laid down by their Lordships of the Supreme Court in the above-stated judgments (supra), it is quite vivid that on the date of incident i.e. on 03.10.2018 at about 2-2.30 in the afternoon, the accused Chaitram came to the house of the deceased and asked his daughter-in-law (PW-3) about the people of her house, in relation to which she told that everyone had gone to work, thereafter, the accused went to deceased Mohit Ram and hit him near the neck and chest with a tangi in his hand due to which blood started flowing and after the said incident the accused fled from there. Thus with the intention to cause death of deceased, the appellant caused such injuries and by doing so, he must have had the knowledge that such injuries inflicted by him would likely cause death of the deceased, as such, his case would falls within 25 the purview of Exception 4 of Section 300 of IPC, as the act of appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. 38. Considering the above-stated facts, further considering the evidence of Geeta Sidar (PW-3), Chhattar Singh (PW-1), Lakhan Lal (PW-2) and Medical witness Dr. Dhan Singh Painkra (PW-08), taking into consideration the age of the appellant at present, also considering the postmortem report of the deceased (Ex.P-13) and the material available on record, it would meet the end of justice that if the conviction of the appellant under Section 302 of the IPC is altered/converted to Section 304 Part-I of the IPC. 39. Accordingly, conviction of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part- I of the IPC and sentenced to undergo RI for 10 years. 40. The appellant is stated to be in jail since 04.10.2018 being the date of arrest. He is directed to serve out the sentence as modified above. 41. The criminal appeal is partly allowed to the extent indicated herein-above. 26 42. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the jail term, to serve the same on the Appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 43. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet