1 2025:CGHC:7896-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1438 of 2021 Dularam Bhogami S/o Late Aaytu Bhogami Aged About 50 Years Shiv Mandir Para Samlur P.S. Faraspal District Dantewada Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through P.S. Faraspal District Dantewada Chhattisgarh. ... Respondent(s) For Appellant(s) : Mr. Vikas A. Shrivastava, Advocate For Respondent(s) : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 14.02.2025 1. Heard Mr. Vikas A. Shrivastava, learned counsel for the appellant as well as Mr. Nitansh Jaiswal, learned Panel Lawyer, appearing for the respondent / State. 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 RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN 2 sentence dated 20.10.2021 passed by the learned Sessions Judge, South Bastar, Dantewada, District- Dantewada (C.G.) in Session Trial No. 194/2019, 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 03 months. 3. Case of the prosecution, in brief, is that on 22.07.2019, around 03.00 pm, Smt. Chimri Bhogami of village Samlur came back from work at Anganwadi and was washing her hands and feet in the boring near the house. At the same time, the accused Dularam Bhogami of the same village came out of his house and came near the boring and asked Smt. Chimri Bhogami why she was not sending her daughter Kumari to her in-laws. Chimri Bhogami told the accused that her daughter Kumari's in-laws and her husband beat her and drive her away from her in-laws' house, so she will not send her daughter to her in-laws' house right now. The accused quarreled with Chimri Bhogami over not sending Kumari to her in-laws' house and abused her by saying that if she does not send her daughter to her in-laws' house, he would kill her and then went behind Chimri Bhogami and hit her with a sharp tangia near the boring, due to which Chimri Bhogami fell down on the ground. While taking Chimri Bhogami to District Hospital Dantewada in 108 ambulance, she died on the way. 3 4. Dhaniram Bhogami (PW-1) went to the police Station Faraspal and gave him a notice (Ex.P-03) for preparing the Panchnama of his mother Chimri Bhogami's dead body. Rambati Podiyami (PW- 2) has also stated that her signature is on the notice (Ex.P-03). The police prepared the map of deceased body (Panchayatnama) (Ex.P-04). Guddiram (PW-5) has stated that the police gave him a notice (Ex.P-03) for preparing the map of Chimri Bhogami's dead body (Panchayatnama) and that his signature is on the map of the dead body (Panchayatnama) (Ex.P-04). Similarly, Bhadru Bhogami (PW-8) has also stated that he received the notice (Ex.P-03) of the map of the dead body (Panchayatnama) and that the map of the dead body (Panchayatnama) (Ex.P-04) was prepared. 5. The dead body of the deceased was then sent to Dr. Kishore Singh Thakur (PW-07), on 23.07.2019 by District Hospital Dantewada by Inspector Govind Yadav of Faraspal Police Station for conducting the post mortem of the body of the deceased Chimri Bhogami. According to him, in the external examination of the dead body, the following injuries were found on the body of the deceased- 1- There was a cut injury on the right side at the back of the head measuring 2.5 cm x 01 cm x depth of bone, the bone below the said injury was broken. 2- There was a cut injury on the right side at the back of the head 4 measuring 1.5 cm x 01 cm x depth of bone, the bone below the said injury was broken. He opined that the cause of death was brain damage as a result of antemortem injury to head produced by heavy sharp edge weapon; which is imminently fatal and sufficient to cause death in the ordinary course of nature. 6. After completing the investigation in the case, the final report against the accused Dularam Bhogami was presented in the court of Judicial Magistrate First Class, Dantewada on 05.10.2019, from where the case was received by court of learned Sessions Judge South Bastar, Dantewada, District- Dantewada (C.G.) on 14.10.2019. 7. Charges were farmed against accused Dularam Bhogami under Section 302 IPC, the accused denied having committed the crime. In the trial under Section 313 of the Code of Criminal Procedure, the accused said that he was innocent and that he had been falsely implicated. 8. In order to bring home the offence, the prosecution examined as many as 10 witnesses and exhibited 31 documents Exs.P-1 to P- 31. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 20.10.2021, convicted the appellant for offence under Section 302 of the IPC 5 and sentenced him as aforementioned, against which, this criminal appeal has been preferred by the accused / appellant. 10. Learned counsel for the appellant argued that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Sections 302 of the IPC as there was no reason or any motive has been proved by the prosecution to do such type of crime. He further submits that in the present case, there is no eye witness to the incident and case rest on circumstantial evidence which is so weak in nature that is insufficient to convict the appellant for the aforementioned offence. The main witness of the case have not supported the case of the prosecution and declared hostile, inspite of that, the learned trial Court has convicted the appellant on the basis of imagination. The learned trial Court ought to have believed that medical evidence is not corroborated by ocular evidence. 11. On the other hand, Mr. Nitansh Jaiswal, 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, she succumbed to her injuries, therefore, the learned trial Court has rightly convicted the appellant under Section 302 of 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 6 be dismissed. 12. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 13. The first question for consideration would be whether the deceased died under unnatural circumstances ? 14. With regard to this question, statements of Dr. Kishore Singh Thakur (PW-07), who conducted the post-mortem of the deceased Chimri Bhogami is taken into consideration. 15. Dr. Kishore Singh Thakur (PW-07) stated that there were blood clots in the head (scalp region) of the deceased. According to him, the skull bone was broken and subdural hemorrhage, contusion, intracerebral hemorrhage was present in the right part of the brain. According to him, there was no abnormality in all the remaining organs. According to him, the deceased died due to brain damage which was caused by head injuries before death, which were caused by a heavy sharp weapon. All the injuries on the deceased were fresh and after the post-mortem of the deceased, the clothes of the deceased, blood-soaked gauze, viscera were handed over to the concerned police personnel for FSL. He has stated to give the PM report Ex.P-15. 16. Thereafter, on 06.08.2019, a seized tangia was presented before it for examination by the SHO of Faraspal police station to which, he gave his opinion that it is possible that the injuries on the head 7 of the deceased Chimri Bhogami could have been caused by the seized tangia. It is possible that the deceased died due to the injuries on her body caused by the seized tangia and he has admitted that there are blood stains on the seized tangia, for which FSL examination was advised. It has stated to give query report Ex.P.-16 and 16A. 17. Thus, there is no reason to disbelieve the testimony of the medical witnesses Dr. Kishore Singh Thakur (PW-07), who conducted the post-mortem of the deceased Chimri Bhogami. Hence, the trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. Kishore Singh Thakur (PW-07) and PM report (Ex.P-15) 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 Chimri Bhogami died under unnatural circumstances is the 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? 8 20. Dhaniram Bhogami (PW-1), stated that his mother was an assistant in Anganwadi. According to him, his mother Chimri Bhogami used to go to Anganwadi at 9-10 am and return by 3 pm. According to him, the incident took place at 3 o'clock. At the time of the incident, his mother had gone to wash her hands and feet in the boring attached to the house. His sister Kumari was married in Bhairamgarh, but Kumari was living in their house as her brother- in-law Salaru used to beat her. Regarding this, the accused had a fight with his mother near the boring. He asked why don't you send your daughter to Salaru's place, then his mother said that why would she send her daughter if Salaru beats her. According to him, there was a dispute on this matter, then the accused hit his mother on the head with an axe when she was washing her hands and feet, due to which his mother fell there. He was eating food at the time of the incident. He watched the incident while eating food. When he saw his mother falling, he went to the boring where he saw that blood was coming out of his mother's head. His sisters Kumari and Rambati were also in the house. He has told that he called an ambulance and brought his mother to Dantewada hospital, but he said that she died on the way while being taken to the hospital. In this way, he himself says that he saw the incident happening. 21. Rambati Podiyami (PW-2) stated that her mother had come home from Anganwadi at around 3.00 pm. According to her, on the date of the incident, she had come to her mother's house in 9 the morning from her maternal home Samlur. The house of the accused is also near the boring (place of incident). According to her, her younger sister Kumari was married in Bhairamgarh where she had a quarrel with her husband, then her sister had come to her maternal home. She further stated that there was a dispute between her mother and the accused regarding this matter. She has told that Kumari had come to her maternal home prior to two days of the incident. She later submitted that her mother had gone to the boring to get water, then the accused hit their mother near the head with a tangia, due to which she fell. She told that the incident happened near the boring. 22. Kumari (PW-3) stated that she was staying at her mother's house in Samlur a week before the incident. According to her, on the date of the incident, her mother came from Anganwadi and went to her in the afternoon. At 3.00 pm she went to fetch water from the borewell near the house, then the accused brought a Tangia (weapon of assault) while hiding it and hit her mother Chimri with that Tangia on her right neck, due to which she became unconscious and a lot of blood oozed out. According to her, she was near the borewell at the time of the incident. According to her, when she lifted her mother's head, she saw that a lot of blood was oozing out from her mother's head and neck, then she screamed that her mother has been killed by Dularam. After the incident, she called an ambulance and told that she took her mother to the district hospital Dantewada. She told that her mother died on the 10 date of the incident. Rambati Podiyami (PW-02) has also said that her mother died due to assault made by the accused Dularam. In this way, both these witnesses say that they saw the accused hitting Chimri Bhogami with a Tangia. 23. So far seizure of weapons is concerned, witness Inspector Govind Yadav (PW-10) has stated in his evidence that on the memorandum of accused Dularam Bhogami, tangia was seized as per seizure memo Ex.P-7. 24. Inspector Govind Yadav (PW-10), stated that he prepared a map of the incident site (Ex.P.-11) as told by Dhaniram in front of witnesses on 23.07.2019 at 10.30 a.m. at Shiv Mandirpara Samlur. He has marked the incident site in the lane road in the map from where the house of deceased Chimri Bhogami marked with B symbol is at a distance of 30 meters, the house of accused Dularam Bhogami marked with C symbol is at a distance of 20 meters. He has stated that the incident site is in the lane between the house of Chimri Bhogami and accused Dularam Bhogami and the access road to the kutcha road marked with D symbol is 15 meters away from the incident site. He has stated that the under- construction house of Assistant Secretary marked with E symbol is 100 meters away from the incident site and the old Anganwadi Centre marked with F symbol is 04 meters away from the incident site. It has asked the Patwari to make the map and give an application of Ex.P.-24 to the Tehsildar Geedam. It has said that 11 on 23.07.2019 at 11.30 in the day, 200 grams of blood-soaked soil and 200 grams of plain soil was seized and sealed in front of witnesses at the incident site in village Samlur as per seizure memo (Ex.P.-08). It has said that on 23.07.2019 at 12.00 in the day, accused Dularam Bhogami was interrogated in front of witnesses in village Samlur and memorandum statement (Ex.P.- 06) was written in which the accused has said that he had "hid the sharp-edged sword used in the incident in the bedroom of his house and got it returned". It has said that on the same date at 12.10 pm, in front of witnesses in village Samlur, an iron tangia with sharp blade length 22 cm, blade length 06 cm, total length 73 cm was seized when the accused produced it in the bedroom of the accused's house. It has said that as per seizure memo (Ex.P.- 07), the accused was arrested as per arrest memo (Ex.P.-13). And he has stated that he informed Lokendra Singh Thakur (Ex.P.-25) about the arrest of the accused. He has stated that on 31.08.2019, after the post-mortem of Chimri Bhogami, constable Aditya Kandoi of Police Station Faraspal seized the stomach of the deceased Chimri Bhogami, pieces of small intestine in a silver plastic box given by the doctor, liver, spleen, kidney and other viscera of the deceased in a plastic box, salt solution used for viscera in a plastic sealed box, blood sample in a plastic sealed box, which were seized as per seizure memo Ex.P.-18. According to this, on 31.08.2019 at 10.20 am, after the postmortem of Chimri Bhogami, constable Aditya Kandoi brought Chimri Bhogami's 12 blood gauze (cloth for taking blood sample) in a tube in a sealed envelope given by the doctor and a cloth stained with Chimri Bhogami's blood in a sealed cloth packet, which was seized as per seizure memo (Ex.P.-20). He has stated that he gave an application to the doctor of District Hospital Dantewada for giving plain control sample gauze in relation to Chimri Bhogami (Ex.P.- 26). He has stated that on 10.09.2019, Assistant Sub-Inspector G.V. Ramesh Rao at Police Station Faraspal brought the sample gauze cloth in relation to Chimri Bhogami from the doctor and the same was seized as per seizure memo (Ex.P.-19). It was stated that it has given application (Ex.P.-27) for examining the tangia seized from the accused and giving a query report regarding whether the deceased Chimri Bhogami could have died due to that tangia and whether injuries could have been caused on her body and whether blood stains are present on it. It has stated that it has recorded the statements of witnesses as per their statements, it was stated that the seized viscera, stomach and small intestine pieces, salt solution, blood sample have been sent to the State Forensic Science Laboratory, Raipur along with memorandum (Ex.P.-28) and the acknowledgement receipt of which is (Ex.P.-29). Was sent to the Regional Forensic Science Laboratory, Jagdalpur along with the acknowledgement receipt of which is said to be Ex.P.-31. 25. Head Constable Sampatlal Kosma (PW-09) stated that on 31.08.2019 in Case Number-12/19 of Faraspal police station has 13 asked constable Aditya Kandoi to seize the clothes and blood samples of the deceased after post mortem from the hospital and the internal parts of the deceased in a sealed condition before him by the Police Inspector of Faraspal police station and the same were presented in a sealed condition for FSL as per seizure memo (Ex.P-18). He has asked to seize the same for FSL as per seizure memo (Ex.P-19) when the constable brought the control sample of the deceased Chimri Bhogami in a sealed envelope and presented the same by the Inspector of Faraspal police station. He has asked to seize the same on dated 31.08.2019 when the constable presented the blood stained clothes and blood etc. of the deceased in a sealed condition before him by the constable and the same were seized by the Inspector of Faraspal police station. For this purpose it has been said to be seized as per seizure memo Ex.P.-20. 26. As per the above, Dhaniram Bhogami (PW-1), Rambati Podiyami (PW-2) and Kumari (PW-3) have seen accused Dularam Bhogami hitting Smt. Chimri with a tangia. In this way, direct evidence has been proved by the prosecution regarding accused Dularam Bhogami hitting Smt. Chimri Bhogami with a tangia, in which there is no doubt. On the basis of the statement memorandum of the accused, an iron tangia has been seized by the investigating officer, regarding which Dhaniram Bhogami, the witness of the statement memorandum, has also supported the statements of the investigating officer. The incident took place on 22.07.2019 at 14 03.00 pm and on the same day at 19.40 pm, First Information Report (Ex.P-2) was written and Merg Intimation (Ex.P-1) was also written at 19.30 pm, in which it is mentioned that the accused killed Smt. Chimri Bhogami by hitting her with a tangia. There is no doubt or discrepancy in the First Information Report and the Inquest Intimation. The said Inquest Intimation and First Information Report confirms the statements of the applicant Dhaniram Bhogami. The death of Smt. Chimri Bhogami was due to the head injuries and the tangia seized from the accused had hit the head of the deceased The doctor has said that the injuries were possible. Therefore, the accused himself murdered Smt. Chimri Bhogami, as proved by the statements of the above witnesses and the documents. 27. 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. 28. 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 ? 29. The cause of death assigned in the post-mortem report of both the 15 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. 30. 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, 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.” 31. 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 1 (2012) 8 SCC 289 2 AIR 1956 SC 488 16 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 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. 32. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. 17 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 pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 33. 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 3 (2002) 3 SCC 327 4 (2009) 15 SCC 635 18 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 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 19 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.” 34. 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 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. 35. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh6 has elaborately dealt with the issue and observed 5 (2012) 8 SCC 450 6 (2017) 3 SCC 247 20 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 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 21 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”. 36. 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 injury, then same would be a case of Section 304 Part-II of the IPC. 37. 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: 7 (2019) 6 SCC 122 22 (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.” 38. 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 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’ 23 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 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 24 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 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 25 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 ‘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 26 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 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 27 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 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.” 39. 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 the incident 22.07.2019 at 03.00 pm and on the same day at 19.40 pm, First Information Report (Ex.P-2) was written and Merg Intimation (Ex.P-1) was also written at 19.30 pm, in which it is 28 mentioned that the accused killed Smt. Chimri Bhogami by hitting her with a tangia. There is no doubt or discrepancy in the First Information Report and the Inquest Intimation. The said Inquest Intimation and First Information Report confirms the statements of the applicant Dhaniram Bhogami. The death of Smt. Chimri Bhogami was due to the head injuries and the tangia seized from the accused had hit the head of the deceased. The doctor has said that the injuries were possible. Though there was no motive or premeditation on the part of the appellant to cause death of deceased, but in heat of passion, he became furious and with intention to cause death of deceased 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 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. 40. Considering the above-stated facts, further considering the evidence of Dhaniram Bhogami (PW-1), Rambati Podiyami (PW- 2) and Kumari (PW-3) and Medical witness Dr. Kishor Singh Thakur (PW-7), taking into consideration the age of the appellant at present, also considering the postmortem report of the 29 deceased (Ex.P-15) 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. 41. 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. 42. The appellant is stated to be in jail being the date of arrest. He is directed to serve out the sentence as modified above. 43. The criminal appeal is partly allowed to the extent indicated herein-above. 44. 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. 45. 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 Rahul Dewangan