1 2025:CGHC:13780-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 250 of 2021 Kapil Yadav S/o Ramcharitra Yadav Aged About 30 Years R/o Village- Kutku, Police Station- Samripath, District- Balrampur-Ramanujganj, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through The Station House Officer Police Station, Samripath, District- Blrampur-Ramanujganj, Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Jitendra Kumar Saxena, Advocate For Respondent-State : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 22.03.2025 1. Heard Mr. Jitendra Kumar Saxena, learned counsel for the appellant as well as Mr. Shailendra Sharma, learned Panel Lawyer, appearing for the State/respondent. 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 ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.03.22 17:14:27 +0530 2 sentence dated 25.01.2021 passed by the learned Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, Chhattisgarh in Sessions Trial No.R-83/2018, by which the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced to undergo rigorous imprisonment for life and fine of Rs.2,000/-, in default of payment of fine amount, additional rigorous imprisonment for two years. 3. It is an admitted that mother of the appellant namely Maheshwari Yadav (wife of deceased) has been acquitted by the trial Court. 4. Case of the prosecution, in brief, is that the complainant Lakhan Yadav (PW-1) lived with his family at village Kutku along with his late father. He used to work as a stone breaker in Hindalco Mais and his late father used to work as a watchman. The mother Maheshwari Yadav lived with her younger brother i.e. accused Kapil Yadav in the old house of village Kutku. On the night of the incident i.e. 21.05.018 at about 9:45 PM, Kapil Yadav came to his house and abused his father. At that relevant time, wife of the complainant Sunita Yadav took the children inside the house and closed the door. Kapil Yadav saw that his father Ramcharitra Yadav sleeping on a cot in the shade of his house and asked him why he had not gone to duty. Then his father stated that whether he goes to duty or not, he should mind his own business. The accused got angry upon the said talk and tried to snatch the axe (belonging to the accused) and thereafter, he took off all his clothes and went towards the old house in a naked state. Meanwhile, a dispute took 3 place between his mother i.e. Maheshwari Yadav and father Ramcharitra Yadav. During the same time, the accused went there with a spade in his hand and assaulted his father Ramcharitra Yadav. Meanwhile, the complainant wanted to go out of the house to intervene, then his mother Maheshwari Devi stated the accused that if anyone comes out of the house, then he will also killed, as such, the complainant was not able to come out of the house to intervene. After some time, when the accused left the place, he saw that his father Ramcharitra Yadav was lying injured on the cot. There were deep injury marks on his head and face, he was covered with blood and upon touching him, he was found to be dead. Upn hearing the above incident, he along with his wife and children started crying. After some time, the villagers also gathered and they were also informed about the incident. Thereafter, the incident was reported to the Police Station Samaripath, upon which, the police registered the merg intimation vide Ex.P/1, on the basis of which, First Information Report was registered vide Ex.P/2. The police reached the scene of the incident and after giving notice under Section 175 of Cr.P.C. (Ex.P/3) to the witnesses for the Panchnama of the deceased, the Panchnama of the deceased was prepared vide Ex.P/4 in front of the witnesses. The seizure of blood- stained and plain soil was made under Ex.P/8 in front of the witnesses from the scene of the incident. As per the opinion of the Panchs, the body was sent to the Community Health Center Kusmi for postmortem along with the application (Ex.P/14), where a team of doctors conducted the postmortem of the deceased and gave the report Ex.P/8. Thereafter, 4 the body was handed over to the complainant Lakhan Yadav for final rites vide Ex.P/5. The police wrote a letter to Tehsildar Kusmi for Patwari map vide Ex.P/19, in the context of which Patwari Ramlakhan Ram (PW-10) reached the spot and prepared the spot map vide Ex.P/7. During the investigation by the police, the accused were arrested vide Ex.P/11A on 22.05.2018. Memorandum statement of the appellant was recorded vide Ex.P/13 and and on the basis of his memorandum statement, an spade used in the incident was seized from accused Kapil Yadav vide Ex.P/10A. A sealed packet related to deceased Ramcharitra Yadav containing the t-shirt of the deceased which was to be preserved by the doctor and another sealed packet in which the deceased's blood stain was asked to be preserved vide Ex.P/10. 5. During the investigation, the dead body of deceased was sent for postmortem examination vide Ex.P/14, which was conducted by Dr. T. Sai (PW-6), who opined in the postmortem report (Ex.P/8A) that the cause of death of deceased seems to be coma and excessive hemorrhage due to head injury and the nature of death was homicidal in nature. The seized articles were sent for its chemical examination to the Regional Forensic Science Laboratory, Ambikapur (Surguja) and according to FSL report (Ex.P/18), blood was found on the seized spade and the same is a human blood. 6. Statements of the witnesses were recorded. After due investigation, the Police filed charge-sheet against the appellant before the Court of Judicial Magistrate First Class Rajpur, District Balrampur on 5 17.08.2018. The case was handed over to the District Sessions Judge, Balrampur, Ramanujganj by Judicial Magistrate First Class, Rajpur on 29.08.2018. After registration of the case and the case was committed to the Court of Sessions for trial and for hearing and disposal in accordance with law. 7. 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. After appreciating the facts and circumstances of the case, the trial Court has framed charges against the appellant for the offence punishable under Section 302 of the IPC and proceeded on trial. 8. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 19 documents. In order to prove the defence, appellant has not examined any witness but exhibited only one document as Ex.D/1. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 25.01.2021, convicted the accused-appellant for the offence punishable under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 10. Mr. Jitendra Kumar Saxena, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting 6 the appellant for the offence punishable under Section 302 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 and 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 the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Further, as appellant is in jail since 22.05.2018 and therefore, considering the period he had already undergone, he be awarded the sentence of the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part. 11. Per contra, Mr. Shailendra Sharma, learned Panel Lawyer supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. 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 7 convicted the appellant for offence under Section 302 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. 12. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 13. The first question for consideration would be, whether death of deceased- Ramcharitra Yadav was homicidal in nature ? 14. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. T. Sai (PW-6), who conducted postmortem, stated that the reason of death is coma and excessive hemorrhage due to head injury and the nature of death was homicidal in nature. 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 of deceased Ramcharitra Yadav 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. 15. The next question for consideration would be whether the trial Court has rightly held that the appellant is author of the crime by relying 8 upon the following circumstances:- (i) Homicidal death was proved by the prosecution as per postmortem report (Ex.P/8A) of Dr. T. Sai (PW-6) who has conducted the postmortem. (ii) As per the case of the prosecution, the fact of death of deceased Ramcharitra Yadav was within the knowledge of the appellant, however, there was no any explanation given by the appellant in his statement under Section 313 of the Cr.P.C. Thus, burden of proof was on the appellant to explain such circumstance, which he failed to explain. 16. Now, the question would be, whether Section 106 of the Evidence Act would be applicable or not ? 17. Section 106 of the Indian Evidence Act, 1872, states as under:- “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 18. This provision states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. This is an exception to the general rule contained in Section 101, namely, that the burden is on the person who asserts a fact. The 9 principle underlying Section 106 which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the other side. To invoke Section 106 of the Evidence Act, the main point to be established by prosecution is that the accused person was in such a position that he could have special knowledge of the fact concerned. 19. In the matter of Shambhu Nath Mehra v. The State of Ajmer1, their Lordships of the Hon’ble Supreme Court have held that the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 of the Evidence Act is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution, to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The Supreme Court while considering the word “especially” employed in Section 106 of the Evidence Act, speaking through Vivian Bose, J., observed as under: - “11. … The word "especially" stresses that it means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that 1 AIR 1956 SC 404 10 cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. The King, 1936 PC 169 (AIR V 23) (A) and Seneviratne v. R. 1936-3 ER 36 AT P.49 (B).” Their Lordships further held that Section 106 of the Evidence Act cannot be used to undermine the well established rule of law that save in a very exceptional class of case, the burden is on the prosecution and never shifts. 20. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval recently in the matter of Nagendra Sah v. State of Bihar2 in which it has been held by their Lordships of the Supreme Court as under: - “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 2 (2021) 10 SCC 725 11 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 21. Similarly, the Supreme Court in the matter of Gurcharan Singh v. State of Punjab3, while considering the provisions contained in Sections 103 & 106 of the Evidence Act, held that the burden of proving a plea specially set up by an accused which may absolve him from criminal liability, certainly lies upon him, but neither the application of Section 103 nor that of 106 could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It was further held by their Lordships that it is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. Their Lordships also held that the burden of proving a plea specifically set up by an accused, which may 3 AIR 1956 SC 460 12 absolve him from criminal liability, certain lies upon him. 22. The principle of law laid down by their Lordships of the Supreme Court in Gurcharan Singh (supra) has been followed with approval by their Lordships in the matter of Sawal Das v. State of Bihar4 and it has been held that burden of proving the case against the accused was on the prosecution irrespective of whether or not the accused has made out a specific defence. 23. In the present case, homicidal death due to coma and excessive hemorrhage due to head injury and the nature of death is homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. T. Sai (PW-6) and the postmortem report (Ex.P/8A) that the death of deceased was homicidal in nature. 24. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of Dr. T. Sai (PW-6) as well as the evidence of eye-witnesses i.e. Lakhan Yadav (PW-1), which the learned trial Court has recorded in affirmative by relying upon the testimony of Dr. T. Sai (PW-6), who conducted postmortem had opined that the cause of death is coma and excessive hemorrhage due to head injury. The Doctor ultimately opined through his report the nature of death to be homicidal. Thus, on the basis of testimony of Dr. T. Sai (PW- 6), it is clear that it is the appellant herein who on the fateful date and 4 AIR 1974 SC 778 13 time has caused grievous injuries to the deceased, due to which he 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. 25. 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 ? 26. 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 Pradesh5. 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. 27. The Hon’ble Supreme Court in the case of Basdev v. State of Pepsu6 has made the following observations : 5 (2012) 8 SCC 289 6 AIR 1956 SC 488 14 “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.” 28. 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 15 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. 29. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana7 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 7 (2002) 3 SCC 327 16 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.” 30. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana8 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; 8 (2009) 15 SCC 635 17 (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 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 18 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.” 31. Likewise, in the matter of State v. Sanjeev Nanda9, 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. 32. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh10 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 9 (2012) 8 SCC 450 10 (2017) 3 SCC 247 19 217 : 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) 20 “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”. 21 33. 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. 34. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)11 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.” 35. 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 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 11 (2019) 6 SCC 122 22 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 23 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 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 24 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 without intention to cause death or an injury likely to cause death. 25 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 26 brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely 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 27 sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely 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 28 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.” 36. The main eye-witness of the incident Lakhan Yadav (PW-1), who is son of the deceased and brother of the appellant has stated in his deposition that his younger brother Kapil Yadav and mother Maheshwari Yadav lived in the old house of village Kutku and he and his father i.e. the deceased lived together in the new house. The deceased father worked as a night guard in Hindalco Mines and he was at home on the date of the incident. He further deposed at about 9:30 PM, the accused came to the house abusing his father why he had not gone to work, after which his father stated that he think about himself, on account of which, accused went to his old house abusing the deceased and brought a spade from there and assaulted his father over his head, due to which the head got split and he was covered in blood. The accused assaulted his father on the head with the sharp side of the spade as well as on the dice side, due to which his face was also not recognizable, his mother was also present there. She was instigating the accused to assault him. He further deposed that his wife had locked him in the house due to fear, but he saw the incident of assault from the window of the house in the shade. He stated that he too did not come out of the house due to fear, after the accused left from there, he came 29 and saw that his father was lying dead on the cot. Upon hearing the noise, the villagers also came to the spot and they were informed about the incident. Thereafter, he went to the police station to lodge report along with 10-12 people of the village. 37. In the cross-examination, Lakhan Yadav (PW-1) has admitted in paragraph-7 that his mother Maheshwari Yadav had reached to the spot crying after the incident. He further admitted that he and his wife Sunita Yadav are eyewitnesses, but Sunita Yadav has not been examined by the prosecution. He had stated in his examination-in-chief that his mother Maheshwari Yadav was present during the incident and had instigated the murder, while refuting the said fact, he has accepted the above suggestion, which leads to the conclusion that the accused Maheshwari Yadav was not present at the time of the incident, rather she had reached there crying after the incident. He has not accepted the fact that during the incident, there was darkness in the shade where the incident took place, rather he himself has said that the light was on at that time. In paragraph-8 of the cross-examination, he admitted that at the time of the incident, there was a lot of abuse between his father and the accused for a long time and in paragraph-9 of the cross- examination, it has been denied that there is no window in his room, through which he has said that he saw the incident taking place. Further, he was admitted that at the time of the incident, his wife had closed the door of the room adjacent to the place of incident. He, his wife and children were inside that room, who could not see the incident due to the door being closed, which has been denied by him. Further he 30 has admitted that the accused did not bring a spade to the scene of the incident nor did he hit his father with the spade. Hence the said suggestion does not contradict the statement given in the examination- in-chief that the accused went to his house and brought a spade from there and assaulted his father with the spade. 38. Dr. T. Sai (PW-6), who has conducted postmortem on the body of deceased, vide Ex.P/8A and he found following injuries on the dead body of the deceased:- “External examination:- The dead body was lying face down. The body was wearing a T-shirt which had blood on it. In the said examination, I found the following injuries:- 1. Cut injury was present in the right parietal part of the head and from the parietal bone of the right cheek to the right mandible part. The parietal bone and the right mandible bone and the materella bone were torn into pieces. The bone was irregular in shape and was torn outside the brain. It was blue-brown in colour. Internal examination:- Skull and spine The skull, parietal bone of skull and cervix and right mandible bone and mesenteric bone were torn into pieces. The membranes were ruptured, spinal cord was congested and torn. The thoracic membrane, ribs and clavicle, lungs, larynx and windpipe, right and left lungs, perion percussion and heart were healthy. Left chamber was empty, right chamber had small amount of blood. Large vessels were healthy. Abdomen, membrane, intestinal 31 membrane, mouth and oesophagus, pharynx, liver, spleen, kidney, urinary bladder, internal and external genitals were healthy. Abdomen and its contents were normal and undigested food material was present. The small intestine and its contents were normal and digested food material was present. The large intestine and its contents were normal and fecal matter was present. Allegation regarding the items sent for examination I had examined the T-shirt which had blood on it. I had advised to get it chemically tested to confirm that it was human blood. After examination, the said T-shirt was sealed and handed over to the said constable. Opinion:- The cause of death was coma and excessive bleeding caused by head injury which was fatal in nature and occurred 12 to 16 hours before examination.” 39. According to Dr. T. Sai (PW-6), the cause of death of deceased is coma and excessive hemorrhage due to the injury to the head of the deceased and nature of death was homicidal. It has been also opined by the concerned Doctor that the injury caused to the deceased has been by the hard and blunt weapon and the same may be caused by spade. 40. 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, the deceased was sleeping in his house of his elder son, where his younger 32 son came and on account of petty dispute of not going to work, out of anger, the appellant assaulted the deceased with an spade over his head, by which he received grievous injuries and died on account of coma and excessive hemorrhage due to head injury. It is apparent that though there was no premeditation on the part of the appellant to cause death of deceased. The appellant did not had 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 Jai Singh, 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. 41. Considering the above-stated facts, also considering the evidence of witnesses and taking into consideration that at present appellant- Kapil Yadav is aged about 30 years and he is in jail since 22.05.2018, the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-I of the IPC. 42. Accordingly, conviction and sentence of the appellant under Section 302 of the IPC is set aside, however, he is convicted under 33 Section 304 Part-I of the IPC and sentenced to undergo rigorous imprisonment for 10 years. 43. The appellant is stated to be in jail since 22.05.2018 being the date of arrest. He is directed to serve out the sentence as modified above. 44. The criminal appeal is allowed in part to the extent indicated hereinabove. 45. 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 Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Anu