JUDGMENT : Sanjay K. Agrawal, J. 1. This Criminal Appeal preferred by the accused/appellant under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and sentence dated 17.09.2014 passed by the Additional Judge to the Court of Additional Sessions Judge, Ramanujganj, District Surguja (Ambikapur) in Sessions Case No.206/2013, whereby, the appellant has been convicted and sentenced as under:- Conviction Sentence Section 302 IPC Life imprisonment and fine of Rs.500/-, in default of payment of fine, RI for one month additional. Section 309 IPC Simple Imprisonment for one year. 2. The deceased Shivnath was the son of the appellant, who was aged about 5 years at the relevant time. Prosecution case is that on 28.03.2013 at about 4 pm the appellant has assaulted her son and caused his murder and also tried to commit suicide. Thereafter, Mahesh Ram (PW-1), who is grandfather of the deceased, has lodged an FIR (Ex.P-1) on 28.03.2013 to the effect that on the said date at about 4 pm his wife CB Bai (PW-2), grandmother of the deceased, came to home crying while carrying deceased Shivnath in her lap and told him that the appellant has killed Shivnath by using knife and also tried to commit suicide by assaulting herself with knife. Subsequently, Merg intimation (Ex.-P/1) was lodged by Mahesh Ram (PW-1). 3. By the Property Seizure memo vide Ex.P/4 one t-shirt was seized which was proved by Mahesh Ram (PW-1) and from the spot blood stained soil was seized vide Ex.P/5. Memorandum statement of the accused was recorded vide Ex.P/9 and one blood stained knife was recovered from her possession. Inquest report was prepared vide Ex.-P/12. The dead body of the deceased was sent for postmortem examination which was conducted by Dr. Josef Lakara (PW-6) who gave his report vide Ex.-P/16 opining that cause of death was shock due to excessive hemorrhage rupture of upper part of left lung fracture of left clavicle and first rib and nature of death is homicidal in nature. The same doctor (PW-6) has also examined the deceased and gave MLC report (Ex.P-17) in which injury was found in the abdomen of the appellant. 4. In order to bring home the charges, the prosecution examined as many as 9 witnesses and exhibited 21 documents. 5. The same doctor (PW-6) has also examined the deceased and gave MLC report (Ex.P-17) in which injury was found in the abdomen of the appellant. 4. In order to bring home the charges, the prosecution examined as many as 9 witnesses and exhibited 21 documents. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment, against which, this appeal has been preferred by the appellant/accused questioning the impugned judgment of conviction and order of sentence. 6. Shri Manoj Kumar Jaiswal, learned counsel appearing for the appellant submits that the trial Court has committed grave error in convicting the appellant for offence under Section 302 and 309 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He submits that at best offence under Section 304 (Part-II) would be made out against the appellant herein because the appellant is said to have assaulted the deceased all of a sudden and she has no intention or premeditation to cause death of the deceased. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of IPC and the act of the appellants is culpable homicide not amounting to murder and, therefore, it is a fit case where the conviction of the appellant for offence under Section 302 of IPC can be converted/altered to an offence under Section 304 (Part-II) of IPC. Since the appellant remained in jail for about 3 years 8 months, she may be sentenced to the period already undergone by her. In support of his contention, he places reliance on the judgment rendered by the Hon'ble Supreme Court in the matter of Chunni Bai Vs. State of Chhattisgarh , 2025 SCC OnLine 955. 7. On the other hand, learned State counsel would support the impugned judgment of conviction and order of sentence and would submit that in the present case the appellant has killedher own son and also tried to commit suicide and the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 and 309 of the IPC. In view of the statements of prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Section 302 and 309 of the IPC. Therefore, the present appeal deserves to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. The first and foremost question is as to whether the death of the deceased was homicidal in nature, which the learned trial Court has recorded in affirmative by taking into consideration the postmortem report (Ex.P/16), wherein it has been opined that nature of death is homicidal, which is duly proved by the evidence of Dr. Josef Lakara (PW-6). Hence, taking into consideration the postmortem report (Ex.P/16) and the statement of doctor (PW-6), who has conducted postmortem on the dead-body of the deceased, we are of the considered opinion that the death of the deceased is homicidal in nature and the trial Court has recorded the correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Accordingly, we hereby affirm the said finding. 10. The next question would be whether the accused/appellant herein is the author of crime in question. 11. The case of the prosecution is not based on direct evidence and same is based on circumstantial evidence. In order to base conviction, the trial Court has relied upon the statements of Mahesh Ram (PW-1), father-in-law of the appellant and C.B. Bai (PW-2), who is mother-in-law the appellant, Dr. Josef Lakara (PW-6) and Investigating Officer M.L. Shukla (PW-9). In their cross-examination, nothing has been elicited to hold that the appellant has not assaulted the deceased and as such, the trial Court after taking into consideration the oral and documentary evidence recorded the finding that it is the appellant who has caused death of her son and the same is correct finding of fact based on evidence and it is neither perverse nor contrary to the record. 12. The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of 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 IPC, as contended by learned counsel for the appellant ? 13. The aforesaid finding brings us to the next question for consideration, which is, whether the case of the appellant is covered within Exception 4 to Section 300 of 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 IPC, as contended by learned counsel for the appellant ? 13. Recently in the case of Chunni Bai (Supra), the appellant therein assaulted her two daughters and caused their death. Earlier in appeal, this Court convicted the appellant for the offence under Section 302 IPC, however, their Lordships in the Supreme Court converted the conviction of the appellant under Part II of Section 304 IPC from that of Section 302 IPC and sentenced her to the period already undertaken by her. In paragraph 18, 19, 20 and 21 following was held by their Lordships:- 18. The difference between “murder” and “culpable homicide not amounting to murder” has been succinctly explained by this Court in State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382 in the following words: “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.” 19. The difference was further elucidated in Rampal Singh v. State of U.P., (2012) 8 SCC 289 in the following words: “18. Culpable homicide of this degree is punishable under the second part of Section 304.” 19. The difference was further elucidated in Rampal Singh v. State of U.P., (2012) 8 SCC 289 in the following words: “18. This Court in Vineet Kumar Chauhan v. State of U.P. [ (2007) 14 SCC 660 ] noticed that academic distinction between “murder” and “culpable homicide not amounting to murder” had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya [ (1976) 4 SCC 382 ] where it was observed as under: (Vineet Kumar case [ (2007) 14 SCC 660 : (2009) 1 SCC (Cri) 915], SCC pp. 665-66, para 16) “16.… that the safest way of approach to the interpretation and application of Sections 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of this Court in Virsa Singh v. State of Punjab [ AIR 1958 SC 465 : 1958 Cri LJ 818] and Rajwant Singh v. State of Kerala [ AIR 1966 SC 1874 : 1966 Cri LJ 1509], speaking for the Court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that wherever the court is confronted with the question whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’, on the facts of a case, it [would] be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to ‘culpable homicide’ as defined in Section 299. …If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the First or the Second Part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. …If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the First or the Second Part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the First Part of Section 304 IPC. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative.” 20. This Court in the aforesaid case of Rampal Singh (supra) further explained the difference between these two offences from the perspective of the punitive provisions of Sections 302 and 304 IPC by grading the offences in three categories as follows: “21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is, (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really “murder”, but mitigated by the presence of circumstances recognised in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. The first clause of Section 304 includes only those cases in which offence is really “murder”, but mitigated by the presence of circumstances recognised in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in Fatta v. Emperor [AIR 1931 Lah 63] , 1151. C. 476 (Refer: Penal Law of India by Dr Hari Singh Gour, Vol. 3, 2009.)” 21. From the above extracts, it can be understood that one of the criteria to determine, in any given case, as to whether the act amounts to “murder” or “culpable homicide not amounting to murder” is the presence or absence of intention of the offender. If the “intention” to cause death or to cause such bodily injury as is likely to cause death or the knowledge, which obviously has to be a conscious one, that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act “without any excuse” for incurring the risk of causing death or such injury, comes out aloud and clear in the case, it would be most appropriate to categorise it as a case of “murder” under Section 300 IPC in which event, penal provision of Section 302 IPC would be attracted. On the other hand, if the “intention” in causing the death or to causing such bodily injury is not so clear, the case will fall under the less stringent category of “culpable homicide not amounting to murder” as punishable under Section 304 IPC. 14. Further, in the above judgment their Lordships in the Supreme Court have observed that a mother is the life giver as well as the nurturer of a child. It is further observed that since time immemorial we have not only been hearing but also observing the essence of the lines ^^iwr diwr lqus cgqrsjs] ekrk lquh u dqekrk^^ which means that a son can be a bad son, but a mother can never be a bad mother. It is further observed that since time immemorial we have not only been hearing but also observing the essence of the lines ^^iwr diwr lqus cgqrsjs] ekrk lquh u dqekrk^^ which means that a son can be a bad son, but a mother can never be a bad mother. It was also held that a mother assaulting her children of tender ages to death, that too when it is admitted that there was no animosity, but only love for her children, is contrary to lived human experiences. In Paragraphs 50, 59 and 60 the following was observed:- 50. In our view, the aforesaid plea ought to have been considered with utmost seriousness by the Trial Court as well as the High Court in the light of the facts and circumstances obtaining in the case. If there were no motivating factors at all which impelled the appellant to commit such a gruesome crime in a domestic environment which was otherwise normal in all respects, it is totally inexplicable and incomprehensible how a mother who loves her children and who had a cordial relation with her husband could resort to such a violent act and be attributed with the “intention to cause death” of her beloved children, except for coming under some influence or forces beyond her control as claimed by her. It is generally accepted in every society, especially in Indian society that one of the most sacred relationships amongst all human relationships is that of a mother and child. A mother is the life giver as well as the nurturer of a child. Since time immemorial we have not only been hearing but also observing the essence of the lines ^iwr diwr lqus cgqrsjs] ekrk lquh u dqekrk^^ which means that a son can be a bad son, but a mother can never be a bad mother. Of course, it cannot be a legal dictum that mothers can never be an offender but that in the present case, in complete absence of motive, a mother assaulting her children of tender ages to death, that too when it is admitted that there was no animosity, but only love for her children, is contrary to lived human experiences. xxx xxx xxx 59. xxx xxx xxx 59. Under the circumstances, applying the practical tests elucidated in State of A.P. v. Rayavarapu Punnayya (supra) and Rampal Singh v. State of U.P. (supra) it can be said that the present case falls within the third category of “culpable homicide of the third degree” as the act was committed by the appellant without the intention of causing death, and the said culpable homicide would be covered under Part II of Section 304 IPC. 60. Accordingly, we convert the conviction of the appellant under Part II of Section 304 IPC from that of Section 302 IPC under which she was initially convicted and sentenced by the Trial Court which was upheld by the High Court." 15. Reverting back to the present case, in the case at hand, Mahesh Ram (PW-1) is the lodger of the FIR (Ex.P-1). He is grandfather of the deceased. He has stated in the FIR that on the date of incident at about 4 pm his wife CB Bai (PW-2), grandmother of the deceased, came to home crying while carrying deceased Shivnath in her lap and informed him that the appellant has killed Shivnath by using knife and also tried to commit suicide by assaulting herself with knife. Though before the Court this witness (PW-1) has turned hostile and not supported the case of the prosecution, however, in cross-examination at Para 9 he has stated that the his wife informed him that someone killed her grand child. Further, CB Bai (PW-2), who is grandmother of the deceased and mother-in-law of the appellant, has stated in her statement that at about 3 pm when she was returning after grazing the buffalo, she found that the deceased was lying dead in the field and thereafter she carried him and brought him to home. She has also stated that the appellant was also present near her child in the same field. 16. In light of the principles laid down Chunni Bai (Supra) and from the evidence available on record and also keeping in view the fact that appellant is the mother of the deceased, it can be safely inferred that the appellant had no premeditation or intention to cause death of the deceased and there was no animosity with the deceased who was no one but her own child. However, looking to the injuries sustained by the deceased, it can be said that though the appellant had no intention, but must have had knowledge that such injuries inflicted by him on the body of the deceased may likely to cause death of the deceased. Therefore, we are of the opinion that conviction of the appellant under Section 302 of IPC can be altered/converted to Section 304 (Part-II) of IPC. 17. In view of the aforesaid discussion, conviction of the appellant for offence under Section 302 of IPC as well as the sentence of life imprisonment awarded to her by the trial Court is hereby set aside. Instead thereof, the appellant is convicted for offence under Section 304 Part-II of IPC, for which, since the appellant remained in jail for more about 3 years 10 months, she is sentenced to the period already undergo by her. 18. As regards offence under Section 309 IPC, MLC report (Ex.P-17) proved by doctor (PW-6) shows that she suffered incised lacerated cutting wound in her abdomen. With regard to said injury, doctor (PW-6) has stated that the said injuries can be caused by sharp aged weapon and for treatment of the injuries the appellant was admitted in the hospital on 28.03.2013. Apart from that Mahesh Ram (PW-1) and CB Bai (PW-2) have also stated that appellant was lying in the field near her son. In the cross-examination of these witnesses, nothing has been elicited to hold that the appellant has not attempted to commit suicide, as such after going through overall evidence, this Court finds that the trial Court has not committed any error while convicting the accused under Section 309 IPC. Accordingly, the conviction under Section 309 IPC is hereby maintained. Since she has already undergone the period of sentence in jail for the said offence, no further order is required in this regard. 19. Accordingly, this Criminal Appeal is partly allowed to the extent indicated herein-above. Since the appellant is reported to be on bail, she need not surrender, however, her bail bonds shall remain in force for a further period of six months in view of provision contained under Section 437-A of CrPC. 20. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith.