1 / 35 2025:CGHC:17391-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1109 of 2024 1 - Kallu Singh @ Amarjeet Singh Rajput S/o Ganga Bakhsha Aged About 52 Years R/o Shaktipara, Urkura, Police Station Khamtarai, District Raipur Chhattisgarh. 2 - Tanesh Singh S/o Kallu Singh @ Amarjeet Singh Rajput Aged About 18 Years R/o Shaktipara, Urkura, Police Station Khamtarai, District Raipur Chhattisgarh ... Appellants versus State of Chhattisgarh Through - Police Station Khamtarai, District - Raipur Chhattisgarh. --- Respondent For Appellants : Mr. Jitendra Shukla, Advocate For State-Respondent : Mr. Shailendra Sharma, Panel Lawyer (Cause title is taken from the CIS) Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 16.04.2025 1. Proceedings of this matter have been taken through video conferencing. VASANT KUMAR Digitally signed by VASANT KUMAR Date: 2025.04.23 10:38:40 +0530 2 / 35 2. Heard Mr. Jitendra Shukla, learned counsel for the appellants. Also heard Mr. Shailendra Sharma, Panel Lawyer for the State/Respondent. 3. The present appeal has been preferred by the appellants under Section 374(2) of the Code of Criminal Procedure questioning the judgment of conviction and order of sentence dated 22.05.2024 (Annexure A-1) passed in Sessions Trial No.143/2022 by the 9th Additional Sessions Judge, Raipur, District Raipur (C.G.), whereby the appellants have been convicted and sentenced as under :- Conviction Sentence Under Section 302/34 of I.P.C. Life Imprisonment with fine of Rs.1,000/-, in default of payment of fine amount, additional rigorous imprisonment for one year (for each appellant) 4. The prosecution story in short is that on 23.03.2022, the appellants have caused injuries to one Sanju Verma from wooden rod and hand & fist. Resultantly, injured- Sanju Verma become unconscious and shifted to DKS Hospital, Raipur and during treatment, he died on 24.03.2022. Therefore, the police has registered the Crime No.207/2022 for the offence punishable under Section 302/34 IPC against the appellants. 5. Panchnama proceedings of deceased’s body was done and map Panchayatnama Exhibit P-03 was prepared. Application for post- 3 / 35 mortem of the deceased was sent through Exhibit P-21 and post mortem report of the deceased was received Exhibit P-16. After post mortem, viscera of deceased was seized in front of witnesses and seizure memo Exhibit P-22 was prepared. 6. The postmortem of the body of the deceased was conducted by Dr. Shiv Narayan Manjhi (PW-8) vide Ex.P-16 and found following injuries :- 1. Surgical stitched wound present on right frontal parietal and temporal region coma shaped 32 cm. long, it has having 32 itches present, on opening of scalp dark red color ecchymosis present, temporalis muscle contused. Skull bone shows surgical cutting on right frontal parietal and temporal bon 17x13 cm. AP, bone piece kept in abdominal wall in situ. Subdural hemorrhage present on all over brain but mostly on right frontal temporal & parietal lobes, 01 to 02 cm. wide clotted blood on right anterior & middle cranial fossa below base of brain. Contusion present on right frontal, parietal and temporal lobes 12x10 cm., area all around contusion brain matter softened which extends upto lateral ventricle & its contains small pieces of clotted blood. 2. Surgical stitches wound present on abdomen just right to umbilicus 09 cm. long with 08 stitches u/n skin & soft tissue 4 / 35 surgical cutting of right fronto parietal and temporal bones 17x13 cm. bone piece kept in situ. 3. Contusion present on right side occipital region at the level of external occipital protuberance 004 cm. area & another is 01 cm. below to this injuries 05x2.5 cm. Transverse. 4. Friction abrasion present on right mallar & zygomatic region 06x03 ст. АР. 5. Impacted abrasion present on right ear tragus and helix region 05x33 cm. Vertical 6. Impacted abrasion present on left tragus to left parieto temporal region 07x02 cm. vertical with rail pattern, u/n dark red color ecchymosis present. 7. Impacted abrasion present on left eye upper lead 04x0.2 cm. Vertical 8. Impacted abrasion present on vertex region 06x02 cm. AP & left parietal region 05x02 cm. AP, u/n dark red color ecchymosis present. 9. Impacted abrasion present on left side throes region just below subscapular angle 09x02 cm. & mid part 09x02 cm transverse same level. 5 / 35 10. Impacted abrasion present on both elbow posterior aspect 02 cm. Diameter. 11. Impacted abrasion present on left iliac crest mid part 06x3.5 cm. AP. 12. Impacted abrasion present on right iliac crest mid part 04x3.5 cm. transverse & just below it 02x01 cm. area transverse & trochanteric region 04x03 cm. AP. 13. Impacted abrasion present on left wrist dorsal aspect 03 cm. diameter 02 in no. 14. Friction abrasion present on left hypochondrial region 06x04 cm. Transverse. 15. Friction abrasion present on right hypochondrial region 04x03 cm, transverse. 16. Friction abrasion present on both knee 02x1.5 cm. Vertical. 17. Impacted abrasion present on right side neck 03x02 cm. mid supra clavicular. 18. Dark red color ecchymosis present on sternal region at the level of 1st rib to 5th rib, sternum & ribs intact. 19. Impacted abrasion present on right toe 02x01 cm. 6 / 35 - All injuries are shows dark red color ecchymosis present. - Injuries were caused with hard & blunt object except surgical intervention on head. - Head injury were sufficient to cause death in ordinary course of nature. Opinion :- i. Death was due to cardio respiratory failure as a result of head injury & its complications. ii. Surgical intervention done on head. iii. Duration of injuries are within between 02 to 04 days prior to death. iv. Duration of death is within 24 hours prior to postmortem examination. 7. After visiting the place of occurrence, a spot map of the crime, Exhibit P-05 was prepared in the presence of witnesses. A mattress cover with stains like human blood was seized from the spot in the presence of witnesses and seizure memo Exhibit P-09 was prepared. A T-shirt of deceased Sanju Verma with stains like human blood was seized in the presence of witnesses and seizure memo Exhibit P-01 was prepared. 7 / 35 During investigation, the blood that had fallen on the floor of the house of the accused at the spot was wiped with cotton. 8. During investigation, memorandum of accused Kallu Singh, Exhibit P-14 and memorandum of accused Tanesh Singh, Exhibit P-15 were recorded in the presence of witnesses. On the basis of memorandum statement of accused Kallu Singh, a plum stick was seized in front of witnesses and seizure memo Exhibit P-10 was prepared. 9. On the basis of memorandum statement of accused Tanesh Singh, a bamboo stick, having blood like stain on it, was seized in front of witnesses and seizure sheet Exhibit P-11 was prepared. On finding evidence of crime against the accused, accused Kallu Singh was arrested and arrest memo Exhibit P-12 was prepared and accused Tanesh Singh was arrested and arrest memo Exhibit P-13 was prepared. 10. During investigation, for providing opinion after conducting chemical test of seized exhibits, written complaint Exhibit P-25 was sent to State Forensic Forensic Science Laboratory. For providing opinion after conducting chemical test of seized viscera, written complaint Exhibit P-26 was sent to State Forensic Forensic Science Laboratory, and on receipt of FSL Report Exhibit P-28 was attached to the case. 11. After completing investigation, on 06.06.2022, accused Kallu Singh alias Amarjit Singh Rajput and Tanesh Singh were found to have 8 / 35 committed the crime, so on filing the charge sheet against them under Section 302, 34 of the IPC before the Judicial Magistrate First Class, Raipur, criminal case No. 7114/2022 was registered and the appellants were convicted for the offence punishable under Section 302/34 of IPC by the learned Sessions Judge. 12. In order to prove the charges against the appellant-accused, prosecution examined as many as 10 witnesses. Statements of appellants were also recorded under Section 313 of CrPC in which they pleaded innocence and false implication. However, no defence witness was examined by the appellants. After completion of trial, trial Court convicted and sentenced the appellants in the manner as described above. Hence, this appeal. 13. Learned counsel appearing for the appellants would submit that trial Court has wrongly convicted the appellants without there being any sufficient evidence available on record against them. He would further submit that the finding given by the learned trial Court against the appellants are perverse and contrary to evidence on record consequently the same is liable to be set-aside. The learned trial court erred in convicting the appellant only on the basis of assumption and presumption. He would further submit that there is no proper evidences to show the involvement of the present appellants in the alleged incident, the accused ought to have been acquitted from the charge framed against them. He would further submit that there is no 9 / 35 eyewitness in the case and the memorandum and seizure witness has also turned hostile before the trial Court. The father of deceased was examined before the trial court and he has not stated anything against the applicant and has turned hostile. It is therefore, most respectfully prayed that this Court may kindly be pleased to set aside the impugned judgment dated 22-05-2024 (Annexure A-1) and the appellants may kindly be acquitted from the charge levelled against them. 14. Per contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature, hence, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment passed by the trial Court needs no interference. 15.We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 16. Now, the question for consideration is, whether the death of deceased was homicidal in nature? 17. Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-16 proved by Dr. Shiv 10 / 35 Narayan Manjhi (PW-08) that the death of the deceased was due to the head injury and nature of death is homicidal. 18.In view of the evidence and the post mortem report (Ex.P-16), the finding given by the trial Court that the nature of death was homicidal in nature is correct. 19. Now the next question for consideration is whether the appellants have committed the murder of the deceased or not? 20. Dinesh Kumar Verma (PW-1) has stated that the deceased Sanju Verma had gone to the house of the accused Tanesh. While searching for him, he reached the house of the accused around 05:00 to 06:00 in the evening, where he saw that his nephew Sanju Verma was arguing with the accused Tanesh. The said argument was resolved by him, after which he returned to his house. Later, he went to the house of the accused Tanesh and saw Sanju Verma lying in a blood-soaked state on the cot in the house of the accused. There were injuries and blood visible on his head, mouth, ears. After that, they took Sanju Verma to the hospital. Where the doctors referred to DKS Hospital, where Sanju Verma died during treatment. 21. From the evidence of Dinesh Kumar Verma (PW-1) it is crystal clear that on the date of incident Sanju Verma had gone to the house of the accused Tanesh and in search of the deceased, Dinesh Kumar Verma (PW-1) reached the house of the accused around 05:00 to 06:00 in the 11 / 35 evening, where he saw that his nephew Sanju Verma was arguing with the accused Tanesh. He intervened and thereafter returned to his house. Subsequently, when he again went to the house of the accused Tanesh he saw that Sanju Verma was lying in a blood-soaked state on the cot in the house of the accused and injuries were also sustained by him. 22. Dr. Lavlesh Rathore (PW-10) has stated that the deceased was brought in D.K.S. Hospital Raipur on 23/03/2022 at about 7 o’ clock in the evening for treatment on account of head injuries. While the deceased was brought he was not opening the eyes and the head injury was very serious. On being conducted the C.T. Scan it was revealed that in the right side of the head of the deceased subdural blood clotting was present which had caused pressure in the mind. On account of the head injury of the deceased right side fronto-temporal and de-compressive craniotomy was conducted and the blood clotting (subdural hematoma) was removed. He further stated that after the operation despite all efforts eventually the deceased died on 24.03.2022. 23.Dinesh Kumar Verma (PW-1) has stated that he had last seen the deceased in the house of the appellant wherein some dispute was going on and he had intervened in the same and came back. When he again went to the house of the accused he saw that the deceased was lying injured and he sustained 19 injuries. No plausible explanation 12 / 35 has been given by the appellants as to how the deceased got injuries in their house. The case of the prosecution case is based upon the circumstantial evidence. 24. The Supreme Court in the matter of Sharad Birdhichand Sarda V. State of Maharashtra {AIR 1984 SC 1622} has reiterated the principle laid down by the Supreme Court in the matter of Hanumat’s V. State of M.P. (1953) SCR 1091 and has held thus in para 3:- “1- The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2- The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3- The circumstances should be of a conclusive nature and tendency; 4- They should exclude every possible hypothesis except the one to be proved; and 5- There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all 13 / 35 human probability the act must have been done by the accused.” 25. In fact, the present case is based on circumstantial evidence and the circumstances speak for themselves. The previous analysis of the evidence shows that the following circumstantial evidence has come against the accused :- 1- The deceased was found injured at the accused's house. 2- Accused Tanesh assaulted the deceased, witness Dinesh Verma, father Kholbahara is shown to have given evidence. 3- The blood was seized from the floor of the house at the scene of incident through cotton wool. According to FSL report Exhibit P-28, the said cotton wool is reported to contain blood. 4- Accused Kallu wrongly stated that the deceased was his nephew while narrating the history of the incident to the doctor. 5- Accused Kallu wrongly described the incident as accidental. The nature of the case has been given and wrong information was given by him regarding the incident, due to which his conduct after the incident is also consistent against 14 / 35 the accused Kallu and shows the circumstantial evidence against him. 6- According to the memorandum at the scene of crime, wife of accused Kallu, Mamta was not there and only the accused were Kallu and Tanesh. 7- Accused Kallu sent a car to the doctor in connection with the incident. It is said that he fell from the vehicle and it is unnatural for the deceased to have suffered so many severe head injuries just by falling from the vehicle. 26. No acceptable explanation has been given by the accused in the light of Section-106 of the Indian Evidence Act in respect of the above circumstantial evidence against them, nor has any such explanation been given as to how the injured/deceased was found in an injured condition in his house, accused Kallu's why was the incident wrongly described as accidental, why was the date of the incident wrongly stated and no evidence has been presented by the accused to refute the circumstances against them. 27.Thus, from the examination of the evidence of the prosecution witnesses, neither any acceptable explanation could be presented by the accused in relation to the facts and circumstances against them, nor any evidence was presented in refutation of the facts and circumstances against them. Thus, from the examination of evidence, 15 / 35 it is shown that on the basis of circumstantial evidence, the guilt of the accused in relation to the incident has been proved beyond doubt by the prosecution and no such fact has been shown from the examination of evidence, which shows any fact of the accused being innocent. 28.Thus, from the above examination of evidence, it is shown that on the basis of circumstantial evidence, the prosecution has been successful in proving beyond doubt that the accused caused the murder of the deceased Sanju Verma by beating him with a stick and hands and fists on the date and time of the incident. 29. 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 ? Section 304 Part-II reads as under : “304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by 16 / 35 which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 30. The cause of death assigned in the postmortem report of the deceased as already noticed is ‘head injury’. 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 the matter of Rampal Singh v. State of Uttar Pradesh reported in (2012) 8 SCC 289. 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. 31. The Hon’ble Supreme Court in the case of Basdev v. State of Pepsu reported in AIR 1956 SC 488 has made the following observations : “Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an 17 / 35 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.” 32. 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 18 / 35 held guilty under second part of Section 304 of the 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 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 of the 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. 33. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana reported in (2002) 3 SCC 327 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 19 / 35 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 pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 34. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana reported in (2009) 15 SCC 635 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 : 20 / 35 (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 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; 21 / 35 (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 22 / 35 be kept in view while convicting and sentencing the accused.” 35. Likewise, in the matter of State v. Sanjeev Nanda, (2012) 8 SCC 450, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any 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. 36. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh reported in (2017) 3 SCC 247 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 23 / 35 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 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. …. '18. 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 24 / 35 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”. 37. In the matter of Arjun (supra), the 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 injury, then same would be a case of Section 304 Part-II of the IPC. 38. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi) reported in (2019) 6 SCC 122 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: 25 / 35 (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.” 39. The Hon’ble Supreme Court in a recent judgment in the case of Anbazhagan v. The State represented by the Inspector of Police in Criminal Appeal No. 2043 of 2023 disposed off 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 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 26 / 35 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 27 / 35 which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of 28 / 35 cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower 29 / 35 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 happening are even or greater than its not happening, we may say that the thing will 30 / 35 ‘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, 31 / 35 namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (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 32 / 35 injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge 33 / 35 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.” 40. Further Dr. Shiv Narayan Manjhi (PW-08), who has conducted the postmortem of the deceased on 24.03.2022. After the postmortem, he found the injuries as stated in paragraph 06 of this appeal and he opined that the death of the deceased was caused due to head injury and homicidal in nature. 41. Applying the aforesaid principles of law laid down by their Lordships of the Hon’ble Supreme Court in the above-stated judgments (supra) in the facts of this case, it is quite vivid that on the date of incident, i.e., 23.03.2022, the appellants have caused injuries to one Sanju Verma from wooden rod and hand & fist. Resultantly, injured- Sanju Verma become unconscious and shifted to DKS Hospital, Raipur and during treatment, he died on 24.03.2022. Since the alleged incident occurred on 22.03.2022 and the deceased was taken to the hospital on 34 / 35 23.3.2022, thereafter, he died on 24.03.2022 which shows that the deceased did not die immediately after the incident. Therefore, there was no premeditation on the part of the appellants to cause death of deceased. The appellants do not had any intention to cause death of deceased, but by causing such accident, they must had the knowledge that such injuries inflicted by them would likely to cause death of deceased and only head injury was sustained by the deceased, as such, their case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellants 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. 42. Considering the above-stated facts, also considering the evidence of witnesses and taking into consideration that appellant No.1 was in jail from 25.03.2022 to 02.05.2023 and thereafter from the date of judgment, i.e., from 22.05.2024 and appellant No.2 is in jail since 25.03.2022, the conviction of the appellants under Section 302/34 of the IPC can be altered/converted to Section 304 Part-II read with Section 34 of the IPC. 43. Accordingly, conviction and sentence of the appellants under Section 302/34 of the IPC are set aside, however, they are convicted under 35 / 35 Section 304 Part-II read with Section 34 of the IPC and sentenced to undergo rigorous imprisonment for 10 years. 44. The appellants are in jail and they shall serve out the sentence as modified above. 45. In the result, the instant criminal appeal is allowed in part to the extent indicated herein-above. 46. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing thier jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Vasant