1 2025:CGHC:11283-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 254 of 2024 Uddav Prasad Malakar S/o Gularam Malakar Aged About 52 Years R/o Village - Kekrabhat, Chowki - Faguram, Police Station - Dabhra, District Janjgir-Champa (C.G.) ... Appellant versus State of Chhattisgarh Through Chowki - Faguram, Police Station - Dabhra, District Janjgir-Champa (C.G.) ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Chitendra Singh, Advocate For Respondent-State : Mr. Shaleen Singh Baghel, Deputy Government Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Amitendra Kishore Prasad , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 07.03.2025 1. Heard Mr. Chitendra Singh, learned counsel for the appellant as well as Mr. Shaleen Singh Baghel, learned Deputy Government Advocate appearing for the State/respondent. YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.03.11 11:15:32 +0530 2 2. This criminal appeal filed by the appellant/accused 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 06.12.2023, passed by the learned Second Additional Sessions Judge, Sakti, District Janjgir-Champa (C.G.) in Sessions Trial No.34 of 2022, by which the appellant has been convicted for the offence punishable under Sections 302 and 324 of IPC and sentenced him to life imprisonment and a fine amount of Rs.5000/-, in default of payment of fine amount additional rigorous imprisonment for 5 months and rigorous imprisonment for 03 years and fine amount of Rs.1000/-, in default of payment of fine amount additional rigorous imprisonment for 01 month (all sentences are directed to run concurrently). 3. Case of the prosecution, in brief, is that on 09.04.,2022 at about 09:30 AM, the brother-in-law of the complainant Pallavi Malakar, namely, Uddhav Prasad Malakar, came to the shed of her house with an axe and abused as well as assaulted her with the help of axe, causing injuries to below elbow of her right hand and left hand. The accused Uddhav Prasad Malakar also attacked upon the complainant’s husband Rajkumar Malakar with the help of big bamboo stick with an intention to kill him in the square in front of Vijay Sidar's house and assaulted him on the head. The concerned Police Station Dabhra, sent the injured to the Community Health Center, Dabhra and received their medical examination reports vide Ex.P/20 and Ex.P/21. The doctor after considering the condition of the injured, immediately sent him to 3 Raigarh and the complainant was admitted to the District Hospital, Raigarh. The husband of the appellant namely Rajkumar was admitted at Jindal Hospital, who during the course of treatment, has died. On the same day, on presenting the hospital memo (Ex.P/28) of the informant, Ambulance driver Pappu Singh has lodged an unnumbered inquest report vide Ex.P/29 at Police Station Kotra Road, Raigarh regarding the death of deceased Rajkumar Malakar. On the basis of said unnumbered inquest report, a numbered inquest report being No.26/2022 has been registered vide Ex.P/30 at Police Station Dabra. During the investigation, the inquest proceedings were conducted by Kotra Road Police Station and after giving notice (Ex.P/8) to the witnesses, the dead body panchanama of the deceased was prepared vide Ex.P/7. Spot map was prepared vide Ex.P/6. The dead body of deceased was sent for postmortem examination, which was conducted by Dr. Dhritiman Nath (PW-12) and gave its report vide Ex.P/19, who opined that the cause of death of the deceased seems to be due to coma resulting from blunt trauma to head and possibility of homicidal cannot be ruled out. 4. During investigation, it was found that accused Uddhav Prasad Malakar, due to a land dispute with his brother Rajkumar Malakar, on 09.04.2022 at about 9.30 AM, assaulted Pallavi Malakar below the elbow of her right hand as on the left waist and also assaulted Rajkumar Malakar on his head with a bamboo stick, causing injury to him. Thereafter, he died during treatment at Jindal Hospital, Raigarh. The 4 wife of the deceased was also admitted in the District Hospital, Raigarh for treatment, where on the report of the wife of the deceased, Pallavi Malakar, Dehati Nalishi was registered vide Ex.P/1 bearing Crime No.0/22 for the offence punishable under Sections 302, 323 of the IPC. The Patwari prepared the site map and site panchnama of the incident vide Ex.P/4 and Ex.P/5, respectively. The accused Uddhav Prasad Malakar was taken into custody and his memorandum statement was recorded vide Ex.P/9. On the basis of his memorandum statement, an axe with a bamboo cane attached to it and a bamboo stick were seized from his garden as per seizure memo vide Ex.P/10. The red, white and blue colored nylon half t-shirt worn by the accused at the time of the incident was also seized vide seizure memo Ex.P/11. Blood stained soil from the scene of the incident and plain soil were seized as per seizure memo vide Ex.P/12. On presentation by Constable Rakesh Yadav, after postmortem of deceased Rajkumar Malakar, a sealed packet and three plastic boxes containing scalp hair sample, nail piece, dried blood, worn clothes were seized vide seizure memo Ex.P/13. The report regarding the query of the seized stick, axe and the clothes worn by the accused at the time of the incident was sent through Ex.P/22 and Ex.P/24, respectively and query report was obtained vide Ex.P/23 and Ex.P/25, respectively. The seized items were sent to the Regional Forensic Science Laboratory Bilaspur for chemical testing and the FSL report has been received vide Ex.P/40. The accused was arrested vide arrest memo Ex.P/34 and the information of the arrest was given to the family members of the accused vide Ex.P/35. 5 5. Statements of the witnesses were recorded. After due investigation, the Police filed charge-sheet against the appellant before the jurisdictional criminal Court and the case was committed to the Court of Sessions for trial and for hearing and disposal in accordance with law. Statement of the appellant was recorded under Section 313 of Cr.P.C., in which, he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. After appreciating the facts and circumstances of the case, the trial Court has framed charges against the appellant for the offence punishable under Sections 302 and 324 of the IPC and proceeded on trial. 7. In order to bring home the offence, the prosecution examined as many as 23 witnesses and exhibited 45 documents. In order to prove the defence, appellant neither examined any witness nor exhibited any document. 8. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 06.12.2023, convicted the accused-appellant for the offence punishable under Sections 302 and 324 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 9. Mr. Chitendra Singh, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the 6 appellant for the offence punishable under Sections 302 and 324 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted on the face of it, then also the appellant is said to have caused injuries to deceased on the spur of the moment. It has been contended that the appellant is the real brother of the deceased and the father of the appellant who was living with the appellant wanted to give share of his property to the appellant which annoyed the deceased as such, there arose a dispute between the appellant and the deceased and the appellant is said to have caused injuries to the deceased by way of stick, who suffered head injury on his person on account of which he died, as per the postmortem report, the injuries sustained on the head was found to be fatal. It has been further contended that there was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of the IPC and the act of the appellant is culpable homicide not amounting to murder, and therefore, it is a fit case where the conviction of the appellant for the offence punishable under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. 10. Per contra, Mr. Shaleen Singh Baghel, learned Deputy Government Advocate, appearing for the State/respondent supported 7 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. He further submits that in view of statements of the prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 and 324 of the IPC. It has been contended that appellant has committed heinous crime of murder and in such circumstances, it is not the case where conviction of the appellant for offence under Section 302 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves to be dismissed. 11. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 12. The first question for consideration would be, whether death of deceased- Rajkumar Malakar was homicidal in nature ? 13. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon statement of Dr. Dhritiman Nath (PW-12), who conducted postmortem, stated that the reason of death is coma resulting from blunt trauma to head and possibility of homicidal death cannot be ruled out. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death 8 of deceased Rajkumar Malakar was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 14. Now, the next question for consideration would be whether the accused/appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of Dr. Dhritiman Nath (PW-12), who conducted postmortem had opined that the cause of death was coma resulting from blunt trauma to head and possibility of homicidal death cannot be ruled out. The Doctor ultimately opined through his report the nature of death to be homicidal. The learned trial Court further relying upon the statements of injured eyewitness Pallavi Malakar (PW-1) as well as the statements of eyewitnesses, namely Rajkumari Malakar (PW-2) and Vijay Sidar (PW-3) and on the basis of their testimonies has held that it is the appellant herein who on the fateful date and time has caused grievous injuries to the deceased and caused injuries to PW-1, eyewitness, due to which Rajkumar Malakar died. As such, the learned trial Court has rightly held that it is the appellant/accused who has caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding. 15. The aforesaid finding brings us to the next question for consideration, whether 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 9 Part-II of IPC, as contended by learned counsel for appellant ? 16. The cause of death assigned in the postmortem report of the deceased as already noticed are ‘shock as a result of external and internal hemorrhage caused by trauma on head’. 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 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. 17. The Hon’ble Supreme Court in the case of Basdev v. 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 1 (2012) 8 SCC 289 2 AIR 1956 SC 488 10 interchangeably and this has led to a certain amount of confusion.” 18. 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 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 11 found to be present was the injury that was intended to be inflicted. 19. The 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 pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.” 20. 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 3 (2002) 3 SCC 327 4 (2009) 15 SCC 635 12 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 history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to 13 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.” 21. Likewise, in the matter of State v. Sanjeev Nanda5, their Lordships of the Supreme Court have held that once knowledge that it 5 (2012) 8 SCC 450 14 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. 22. 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 6 (2017) 3 SCC 247 15 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 parties had 16 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”. 23. 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. 24. Further, the 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 7 (2019) 6 SCC 122 17 300 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.” 25. In the matter of Ajmal v. The State of Kerala8, the Hon’ble Supreme Court while dealing with the said issue has held in paragraphs -16 and 17, which is as follows :- 16. The only question which falls for our consideration is as to whether the manner in which the entire transaction took place in particular relating to the physical assault, would amount to culpable homicide amounting to murder or culpable homicide not amounting to murder. 17. The distinctive features and the considerations relevant for determining a culpable homicide amounting to murder and distinguishing it from the culpable homicide not amounting to murder has been a matter of debate in large number of cases. Instead of referring to several decisions on the point reference is being made to a recent decision in the case of Mohd. Rafiq vs. State of M.P., (2021) 10 SCC 706, wherein Justice 8 2022 LiveLaw (SC) 609 18 Ravindra Bhatt, speaking for the Bench, relied upon two previous judgments dealing with the issue as narrated in paragraph nos.11, 12 and 13 of the report which are reproduced below: - “11. The question of whether in a given case, a homicide is murder 3, punishable under section 302 IPC, or culpable homicide, of either description, punishable under section 304 IPC has engaged the attention of courts in this country for over one and a half century, since the enactment of the IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this court. The use of the term “likely” in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300 IPC which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes. 19 12. The decision in State of Andhra Pradesh v Rayavarapu Punnayya & Anr, 1976 (4) SCC 382, notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that: "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice- versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of section 304.. 13. The academic distinction between "murder" and "culpable homicide not amounting to 20 murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of sections 299 and 300." 13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh, (2006) 11 SCC 444. This court observed that: "29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. 21 At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances; (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the 22 accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.”” 26. The Hon’ble Supreme Court in a recent judgment in the case of Anbazhagan v. The State represented by the Inspector of Police9, 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. 9 2023 LiveLaw (SC) 550 23 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 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 24 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 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 25 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 happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the 26 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 27 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 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 28 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.” 27. Pallavi Malakar (PW-1), who is wife of the deceased deposed in her evidence that she know the accused Uddhav Prasad, who is her brother-in-law. She lived at village Karrapali. She was married to Rajkumar Malakar in 2004 according to Hindu customs. She has four children, three daughters and one son. Her husband has five brothers, the eldest being Bhagwat, the second being Uddhav Prasad, the third being Munuram, the fourth being her husband Rajkumar and the youngest being Navratan. All the brothers lived separately with their 29 families. Her mother-in-law has passed away. At the time of incident, her father-in-law Gularam was alive, currently he has also passed away. Her father-in-law Gularam used to live with the accused Uddhav. The incident was of 09.04.2022 at 09:30 in the morning. Uddhav has sold his share of land and was tried to sell the remaining land, which the other brothers were objecting. The accused used to fight every day over the same issue. In the morning, her brother-in-law, accused Uddhav Prasad came to this house with an axe in his hand and asked her where is her husband Rajkumar, therafter started assaulting her with the axe. Her right hand and left waist got injured and blood was coming out. She ran from her house to the house of her neighbor Surendra Malakar and hide herself. She called her brother-in-law Bhagwat Malakar and told him about the incident. Her husband Rajkumar and her sister-in-law Rajkumari both went to attend a wedding at village Dhekrapali on a motorcycle and were returning from there. The accused was standing in front of Vijay Sidar's house. When her husband and sister-in-law reached near Vijay Sidar's house, the accused stopped her husband and assaulted him on his head with a bamboo stick, due to which her husband fell down on the ground and blood was started oozing out from the head of her husband. Thereafter, villagers were took them to Dabhra hospital for treatment, where after initial treatment, we were referred to Raigarh Government Hospital, from there, her husband was referred to Jindal Hospital Raigarh. She was also treated at the Government Hospital of Raigarh. During the course of treatment, her husband died at Jindal Hospital, Raigarh. 30 28. Similarly, Rajkumari Malakar (PW-2) has deposed in her evidence that the incident took place on 09.04.2022 at 09:30 in the morning. She along with her brother-in-law Rajkumar had gone to village Dhekrapali on motorcycle to deliver rice and pulses to a wedding. At the same time, her husband Bhagwat received a call that Uddhav had assaulted Pallavi, then her husband told Rajkumar about the incident. Thereafter, they returned after giving rice and pulses in the wedding. She saw that the accused was standing in front of the house of Vijay Sidar, the accused stopped her brother-in-law Rajkumar and assaulting him with the help of bamboo stick on his head, due to which, he fell on the ground and the blood was oozing out from his head. She further deposed that she saw that Pallavi also sustained injuries on her elbow and waist, then they called the Police and took Pallavi and Rajkumar to Dabhra hospital for treatment. After initial treatment, they were referred to Raigarh Government Hospital. From there, they were referred to Jindal Hospital, Raigarh. Rajkumar died at Jindal Hospital, Raigarh during the course of treatment. 29. Likewise, Vijay Sidar (PW-3) has deposed in his evidence that the incident took place before about 5-6 months at about 9.30 AM. He was sitting in front of his house, at that time he saw that accused Uddhav Prasad assaulted Rajkumar on his head with the help of bamboo stick, due to which Rajkumar fell down on the ground. He further deposed that Uddhav assaulted Rajkumar with a stick again five times, due to which his head got cracked and blood was flowing from his head. Then the villagers came and took Pallavi and Rajkumar both husband and wife to 31 Dabhra Hospital for treatment. He also deposed that Uddhav had also assaulted Pallavi with a sword inside the house, due to which Pallavi suffered injuries on her right hand and waist. After Dabhra Hospital, both were referred to Raigarh Hospital for treatment and Rajkumar died during the course of treatment at Raigarh Hospital. 30. Conviction of the accused-appellant is mainly based on the evidence of Dr. Dhritiman Nath (PW-12), who has conducted postmortem on the body of deceased, vide Ex.P/19 and he found following injuries on the dead body of the deceased:- “External examination:- The body was a little fat, her height was 155 CM, the body was of a woman, the deceased was wearing a lined shirt which was of yellow colour, cotton was put in both the nostrils, eyes were closed, mouth was slightly open, there was black circle around the eyes. Rigor Martis was present on the entire body. The body was cold, there was postmortem hypostasis on the back. During the postmortem the following injuries were found on the body of the deceased:- 01. There was a bruise on the left side of the head which was stitched and its size was 7 x 1 CM. On the side of the said injury there were small bruises with irregular edges and blood clots were present in them. 02. Small sized wounds were present behind the right ear, there was swelling in the right ear which was red and blue in colour. 32 03 There was a long bruise on his right shoulder, measuring 7 X 1.5 CM. 04. There were two scratch marks on the back side of the right shoulder, measuring 1.5 CM and 1.00 CM respectively, which were dark red in colour. Internal examination of dead body:- 01. There was swelling on the right side of the head, measuring 15 x 10 CM. 02. There was swelling on the left side of the head, measuring 17 x 13 CM. 03. The skull bone was broken on the left side, its size was 9 CM. 04. There were blood spots on the right and left side of the brain. 05. The curtain, rib was normal. All other internal organs of the body were normal. Opinion:- 01. All the injuries found on the body of the deceased were pre-mortem and were caused by a blunt object. The deceased appeared to have died due to a head injury. In my opinion, the nature of death being homicidal cannot be ruled out. 02. The interval between death and post mortem examination appeared to be between 18 and 24 hours.” 31. According to Dr. Dhritiman Nath (PW-12), the cause of death of deceased is coma resulting from blunt trauma to head and possibility of homicidal death cannot be ruled out. It has been also opined by the 33 concerned Doctor that the injury caused to the deceased has been caused by such stick and axe. 32. 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, it is quite vivid that on the date of incident, there were some land dispute between the appellant and his brothers, due to which, out of anger and on sudden quarrel, the appellant assaulted the wife of the deceased and thereafter the deceased with a stick and axe on his head, by which he received grievous injuries and died during the course of treatment due to coma resulting from blunt trauma to head. It is apparent that though there was no premeditation on the part of the appellant to cause death of deceased. The appellant did not any intention to cause death of deceased, but by causing such injury, he must had the knowledge that such injuries inflicted by him would likely to cause death of Rajkumar Malakar, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the 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. 33. Considering the above-stated facts, also considering the evidence 34 of witnesses and taking into consideration that at present appellant- Uddav Prasad Malakar is aged about 52 years and he is in jail since 10.04.2022 (for about 02 years and 11 months), the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-II of the IPC. 34. Accordingly, conviction and sentence of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo rigorous imprisonment for 7 years. As a consequence, the conviction of the appellant under Section 324 of the IPC is hereby affirmed. 35. The appellant is stated to be in jail since 10.04.2022 being the date of arrest. He is directed to serve out the sentence as modified above. The fine sentence imposed by the learned trial Court shall remain intact. 36. The criminal appeal is allowed in part to the extent indicated hereinabove. 37. 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 appellant is undergoing his jail sentence 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, if so advised, with the assistance of High Court Legal Services 35 Committee or the Supreme Court Legal Services Committee. 38. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action forthwith. Sd/- Sd/- (Amitendra Kishore Prasad) (Ramesh Sinha) Judge Chief Justice Yogesh