1 2025:CGHC:42364-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1174 of 2025 Raisamoti @ Rasmati Rathiya W/o Late Ram Prasad Aged About 38 Years (Presently Aged About - 44 Years), R/o Village- Madanpur, Chowki - Rairumakhurd, P.S.- Dharamjaigarh, Distt.- Raigarh (C.G.) ... Appellant(s) versus State of Chhattisgarh Through District Magistrate, Raigarh, Distt.- Raigarh (C.G.) ... Respondent(s) For Appellant : Mr. Avinash Singh, Advocate. For Respondent/State : Mr. S.S. Baghel, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 21 .08.2025 1. Heard Mr. Avinash Singh, learned counsel for the appellant. Also heard Mr. S.S. Baghel, learned Deputy Government Advocate, appearing for the respondent/State. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2025.08.28 18:50:26 +0530 2 2. This criminal appeal filed by the appellant under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) is directed against the impugned judgment of conviction and order of sentence dated 02.05.2025, passed by the learned Additional Sessions Judge, Gharghoda, District Raigarh (C.G.) in Sessions Trial No. 55 of 2019, whereby the appellant has been convicted and sentenced as under: Conviction under Section Sentence Section 302 of the Indian Penal Code (for short, ‘IPC’) Rigorous imprisonment (for short, ‘R.I.’) for life and fine of Rs. 1,000/-, in default of payment of fine, 01 month R.I. more. 3. The prosecution case, in brief, is that on 17.03.2019 at 15:35 hours, complainant, Ramsagar Rathiya (PW-1) lodged a report at Police Station Dharamjaygarh alleging that the appellant, Raisamoti, assaulted her husband Ramprasad Rathiya with an axe (tangi) on the neck and right arm with intent to kill him, causing profuse bleeding, as a result of which he died on the spot. On this information, Sub-Inspector Dhaniram Rathore (PW-6), then posted at Police Outpost Rairumakhurd, registered a zero number merg intimation (Ex.P/1) and a zero number FIR (Ex.P/2) under Section 302 of the IPC, which was later numbered as FIR (Ex.P/13) at Police Station Dharmjaygarh. 4. Sub-Inspector, Dhaniram Rathore (PW-6) visited the spot, prepared a spot map (Ex.P/3) on the basis of the complainant’s 3 statement, issued notices to witnesses (Ex.P/9), and prepared the inquest report (Ex.P/5). The body of the deceased was sent for postmortem through Constable Abhay Minj (PW-11) along with a requisition (Ex.P/16) to CHC Dharamjaygarh. From the spot, blood- stained soil, plain soil, and a black-blue-white lungi with blood-like stains were seized in presence of Balram Yadav (PW-2) and Dashrath Baiga (PW-3). On 17.06.2019, the memorandum statement of the appellant (Ex.P/7) was recorded before the same witnesses, wherein she stated that she had struck her husband on the neck with an axe on 16.06.2019 at about 4:00 p.m. and could produce the weapon. At 16:55 hours, she produced the axe from her house, which was seized under Ex.P/8. She was arrested under Ex.P/17. The axe was sent for medical opinion (Ex.P/18) and Dr. B.L. Bhagat (PW-5), in his query report (Ex.P/12), opined that the injuries found on the deceased’s neck could have been caused by the seized axe. The Patwari also prepared a spot map (Ex.P/22). The seized articles were forwarded for forensic examination. As per the FSL report (Ex.P/21), blood was detected on the axe, soil, and lungi. The blood on the axe and lungi was of human origin, and the group on the lungi was found to be Group A. 5. After due investigation, the Police filed a charge-sheet against the appellant before the jurisdictional criminal Court. The case was committed to the Court of Session for trial, from where it was transferred to the learned Additional Sessions Judge, Gharghoda, District Raigarh (C.G.) for hearing and disposal in accordance with law. 4 6. The learned trial Court framed charge against the appellant for the offence punishable under Section 302 of the IPC. The appellant abjured his guilt and entered into defence, stating that she has not committed any offence and has been falsely implicated. 7. In order to prove the charge, the prosecution examined as many as 12 witnesses and exhibited 25 documents. The appellant/accused did not examine any witness in her defence. 8. Upon appreciation of the oral and documentary evidence on record, the learned trial Court, by judgment dated 02.05.2025, convicted the appellant for the offence punishable under Section 302 of the IPC and sentenced her as aforementioned. Aggrieved thereby, the appellant has preferred this criminal appeal. 9. Learned counsel for the appellant submits that the learned trial Court has erred in convicting the appellant under Section 302 of the IPC, as the prosecution has failed to prove the charge beyond reasonable doubt. It is urged that the conviction rests solely on circumstantial evidence, yet the prosecution has failed to establish a complete chain of circumstances pointing unerringly to the guilt of the appellant. 10. It is further submitted by the learned counsel for the appellant that the prosecution has failed to establish any motive. The presumption under Section 106 of the Indian Evidence Act, 1872 cannot be invoked unless the prosecution first proves that the appellant and the deceased 5 were last seen together immediately before the occurrence. In the present case, since the dead body was found in an open place accessible to all, as admitted by Ramsagar Rathiya (PW-1), no such presumption can arise against the appellant. Moreover, Jairam Rathiya (PW-8), father of the deceased and father-in-law of the appellant, categorically stated that at the time of incident the appellant was at her maternal home, and that the relationship between the appellant and the deceased had remained cordial since their marriage in the year 2001. The couple had three children living with them, yet none of them were examined by the prosecution, which casts further doubt on the prosecution case. Even if the case of the prosecution is accepted in its entirety, it is argued that at best the appellant is said to have caused injuries to the deceased in a sudden quarrel, in the heat of passion, without any premeditation or motive to commit murder. Thus, the act of the appellant, if any, would fall within the ambit of Exception 4 to Section 300 of the IPC, amounting to culpable homicide not amounting to murder. In such circumstances, the conviction under Section 302 of the IPC deserves to be altered to one under Section 304 Part I or Part II of the IPC. 11. It is lastly submitted by the learned counsel for the appellant that the appellant has been in custody since 17.06.2019 and has already undergone about 06 years, 02 months and 04 days of incarceration. Therefore, considering the period already undergone, it is prayed that the sentence may be reduced to the period already undergone. Hence, 6 the appeal deserves to be allowed either in full or in part. 12. Per contra, learned State counsel supports the impugned judgment of conviction and order of sentence, submitting that the prosecution has proved the case against the appellant beyond reasonable doubt. It is contended that the statements of prosecution witnesses, duly corroborated by the documentary evidence on record, clearly establish the appellant’s guilt. It is further urged that the appellant has committed the heinous offence of murder, and in such circumstances, the conviction under Section 302 of the IPC does not warrant any interference or alteration to Section 304 Part I or Part II of the IPC. The argument of sudden quarrel or absence of motive, as advanced by the appellant, is without merit in view of the consistent and reliable prosecution evidence. Accordingly, it is submitted that the learned trial Court has rightly convicted and sentenced the appellant, and therefore, the present appeal deserves to be dismissed. 13. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 14. The first question for consideration would be, whether death of deceased was homicidal in nature ? 15. In this regard, Dr. B.L. Bhagat (PW-5), who conducted the postmortem on the deceased at Civil Hospital, Dharamjaygarh, District Raigarh (C.G.), deposed that he found two incised wounds on the neck 7 — one measuring 4 × 1.5 × 3 cm on the left upper part and another measuring 4 × 1.5 × 5 cm on the front middle portion. He opined that the cause of death was asphyxia due to obstruction of respiration resulting from severance of the trachea, leading to shock. The estimated time since death was 12 to 24 hours prior to examination, and in his opinion, the death was homicidal. His report is Ex.P/11. 16. After hearing learned counsel for the parties and upon due consideration of the evidence, we are of the considered opinion that the finding of the learned trial Court that the death of the deceased was homicidal in nature is fully borne out from the medical evidence on record. Such finding is neither perverse nor contrary to record, and we accordingly affirm it. 17. Now, the next question for consideration would be whether the accused/appellant herein is the perpetrator of the crime in question ? 18. Ramsagar Rathiya (PW-1) deposed that he knew the appellant, Raisamoti, who was his cousin sister-in-law, as well as the deceased, Ramprasad, her husband. The incident had occurred about seven to eight months prior. On the date of occurrence, around 3:00 p.m., while he was at his residence, he received information from some villagers that Ramprasad had died in his house. Acting upon this information, he, along with other villagers, went to Ramprasad’s house and found his dead body lying in the verandah. He stated that he did not know who was responsible for the death. On the same day, he went to Police 8 Outpost Rairumakhurd with the village Panch and Sarpanch and reported the matter. The merg intimation (Ex.P/1) and FIR (Ex.P/2) bear his signatures. He further stated that the police thereafter reached village Madanpur and accompanied him to the house of the deceased, but no further proceedings were conducted in his presence at that time. The spot map (Ex.P/3) also bears his signature. In cross-examination, PW-1 admitted that the deceased was addicted to liquor and, under its influence, used to quarrel with his wife, the appellant. He expressed ignorance as to whether the deceased had quarreled with the appellant on the day prior to the incident. He admitted having noticed a cut injury on the neck of the deceased, from which blood had oozed. He also admitted that in both the merg intimation (Ex.P/1) and the FIR (Ex.P/2), he had informed the police that the appellant had assaulted her husband with a tangi (axe) on the neck, causing his death. 19. Dhaniram Rathore (PW-6), the Investigating Officer, deposed that on 17.06.2019, he recorded the memorandum of the appellant (Ex.P/7) and, pursuant to her disclosure, seized an iron axe fitted with a wooden handle from her room. The iron blade measured 24 cm in length, 15 cm in circumference, and 5.50 cm in width, and bore bloodstains on both sides. The seizure was made under memo (Ex.P/8). The axe was thereafter sent for medical examination through a requisition letter (Ex.P/18). PW-6 further stated that all seized articles were forwarded to the State Forensic Science Laboratory, Bilaspur, under SP’s letter No.150/2019 (Ex.P/19). The FSL report (Ex.P/21) was later received. 9 20. Constable Rajendra Lakda (PW-12) corroborated that on 27.06.2019, he transported the seized articles for forensic examination to the RFSL, from where an acknowledgment (Ex.P/25) was issued. Their statements regarding forwarding of seized properties and receipt of the FSL report remained unshaken in cross-examination. 21. From the FSL report (Ex.P/21), it is evident that blood was detected on the seized axe, on blood-stained soil, and on the lungi of the deceased. The blood on the lungi and the axe was of human origin. The lungi stains were identified as group ‘A’. The soil sample was too decomposed for grouping. The blood on the axe was human, though its group could not be determined. Thus, the report clearly established the presence of human blood on the seized axe, on the deceased’s lungi, and on the soil from the place of occurrence. 22. With respect to seizure, PW-6 deposed that the memorandum (Ex.P/7) and seizure memo (Ex.P/8) were prepared in the presence of independent witnesses Balram Yadav (PW-2) and Dashrath Ram Baiga (PW-3). PW-3 confirmed his signatures on both documents but initially denied that the memorandum was recorded or the seizure effected in his presence. When confronted with leading questions by the prosecution, however, he admitted that the memorandum (Ex.P/7) was indeed recorded in his presence, that the appellant produced the axe, and that it was seized under Ex.P/8. 23. On the basis of the above evidence, the learned trial Court found that the deceased’s body was discovered in the verandah (parchi) of his 10 house. According to the prosecution, apart from the deceased and the appellant, no other person resided in that house. In para 14 of his cross- examination, PW-1 initially described the place of occurrence as an open area, but upon being questioned by the Court, clarified that it was the verandah of the deceased’s house, which was enclosed by walls though without a door, and thus appeared open. PW-6 stated that he prepared the site map (Ex.P/3), while Patwari Arvind Kumar Kerketa (PW-7) prepared the Patwari site map (Ex.P/22) and the panchanama (Ex.P/23). PW-7 confirmed that in the site map the place of occurrence is marked as Point No.1, i.e., the deceased’s house inside Sakraliya Basti. The testimony of these witnesses on this point remained unshaken. In para 37 of his cross-examination, PW-6 denied the suggestion that the place of occurrence was open and accessible to all, reiterating that it was the deceased’s house where ordinarily outsiders could not enter freely. The defence led no evidence to suggest any unlawful entry by a third person. No such fact emerged during investigation either. 24. The learned trial Court further noted that on the morning following the incident, when relatives and villagers entered the deceased’s house, they found his body in the verandah with a neck injury. At that time, the appellant was absent, having gone to her parental home. On her return, she produced an axe from her room, which was seized and later confirmed to bear human blood. 25. Taken cumulatively—the body found in the verandah of the house, 11 the neck injury caused by a sharp-edged weapon, the appellant’s absence from the house immediately thereafter, her unexplained visit to her parental home, and the recovery of the blood-stained axe at her instance—the learned trial court held that these circumstances clearly pointed to the appellant’s guilt. It concluded that the appellant, with the intention of causing death, inflicted an axe blow on the neck of her husband Ramprasad and thereby committed his murder. 26. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 27. The postmortem report of the deceased, as already noticed, records the cause of death as “asphyxia due to obstruction of respiration resulting from severance of the trachea, leading to shock,” and the nature of death has been opined to be homicidal. It is well settled that culpable homicide is the genus and murder is a species thereof. All murders are culpable homicides, but all culpable homicides do not amount to murder. This distinction has been clearly explained 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. 1 (2012) 8 SCC 289 12 28. 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 interchangeably and this has led to a certain amount of confusion.” 29. It requires to be borne in mind that the test suggested in the aforesaid decision and the fact that the legislature has used two different terminologies, ‘intent’ and ‘knowledge’ and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat ‘intent’ and ‘knowledge’ in equal terms. They are not different things. 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 2 AIR 1956 SC 488 13 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. 30. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana3 has observed as under:- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under 3 (2002) 3 SCC 327 14 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.” 31. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana4 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient 4 (2009) 15 SCC 635 15 in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 32. Likewise, in the matter of State v. Sanjeev Nanda5, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any 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. 5 (2012) 8 SCC 450 16 33. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh6 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this 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 6 (2017) 3 SCC 247 17 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 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”. 18 34. 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. 35. Further, the Hon’ble Supreme Court in the matter of Rambir v. State (NCT of Delhi)7 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 36. The Hon’ble Supreme Court in a recent judgment in the case of Anbazhagan 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: 7 (2019) 6 SCC 122 19 “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’ 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 20 is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause 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 21 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 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 22 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 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 23 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.” 37. Reverting to the facts of the present case, and in light of the principles of law laid down by the Hon’ble Supreme Court in the aforementioned judgments, it is evident from the material collected during investigation that the deceased, Ramprasad, was the husband of the appellant, Raisamoti. The prosecution evidence prima facie establishes that on the date of the incident, a quarrel took place between the deceased and the appellant, both of whom were residing together in the same house. In the heat of the moment, and without any premeditation, the appellant inflicted a blow with a tangi (axe) on the neck of the deceased. The medical evidence, coupled with the seizure of the blood-stained tangi at the instance of the appellant, corroborates that the death of Ramprasad was caused by the said blow. At the same time, it emerges from the case diary statements that the deceased was addicted to liquor and was in the habit of quarreling with his wife under its influence. There is no material to suggest that the appellant had any prior motive or pre-planned intention to commit the murder of her 24 husband. The incident, therefore, appears to have occurred suddenly in the course of a domestic quarrel, resulting in the fatal assault. 38. In these circumstances, although the act of the appellant was of such a nature as was likely to cause death, and she had the knowledge that an injury inflicted on a vital part of the body would ordinarily be sufficient to cause death, the material on record does not prima facie establish that she acted with the intention of causing her husband’s death. As such, the case of the appellant falls within the ambit of Exception 4 to Section 300 IPC, since her conduct satisfies all four requisite conditions: (i) there was a sudden fight; (ii) the act was without premeditation; (iii) it was committed in the heat of passion; and (iv) the appellant did not take any undue advantage nor act in a cruel or unusual manner. 39. Considering the aforesaid facts, the testimony of the prosecution witnesses, and the circumstance that the appellant, Raisamoti @ Rasmati Rathiya, aged about 38 years, has been in judicial custody since 17.06.2019, it is appropriate that her conviction under Section 302 of the IPC be modified and converted into one under Section 304 Part-II of the IPC. 40. Accordingly, the conviction and sentence of the appellant under Section 302 of the IPC are hereby set aside. Instead, she is convicted under Section 304 Part-II of the IPC and sentenced to undergo rigorous imprisonment for a period of 06 years. The sentence shall be reckoned against the period already undergone by her in custody. 25 41. In the result, the criminal appeal is partly allowed to the extent indicated above. The appellant, who is presently in jail, shall be released forthwith unless required in connection with any other case. 42. Keeping in view the provisions of Section 437-A of the CrPC (now Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 43. The learned trial Court record along with the copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Brijmohan