1 2026:CGHC:23965-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 579 of 2024 1 - Virendra Ekka Son of Shobhnath Ekka Aged About 28 Years Resident of Village Kumhanipani, Dhajak, Chowki Morga, P.S. Bango, District - Korba, Chhattisgarh. (In Jail) 2 - Filip Ekka Son of Shobhnath Ekka Aged About 24 Years Resident of Village Kumhanipani, Dhajak, Chowki Morga, P.S. Bango, District - Korba, Chhattisgarh. 3 - Sonamani Ekka Son of Filip Ekka Aged About 24 Years Resident of Village Kumhanipani, Dhajak, Chowki Morga, P.S. Bango, District - Korba, Chhattisgarh. 4 - Budhmaniya Ekka Son of Shobhnath Ekka Aged About 25 Years Resident Of Village Kumhanipani, Dhajak, Chowki Morga, P.S. Bango, District - Korba, Chhattisgarh. 5 - Khalaso Ekka Wife of Shobhnath Ekka Aged About 45 Years Resident Of Village Kumhanipani, Dhajak, Chowki Morga, P.S. Bango, District - Korba, Chhattisgarh. ... Appellants versus State of Chhattisgarh Through Station House Officer, Police Station Bango District - Korba, Chhattisgarh. ... Respondent _________________________________________________________ For Appellants : Mr. S.R.J. Jaiswal, Advocate For Respondent/State : Mr. Ashish Shukla, Addl. Advocate General Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 16 .0 6 .202 6 1. Today, though the matter is listed for hearing on I.A. No. 01 of 2024, which is an application for suspension of sentence and ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 grant of bail, however, considering the fact that the appellants are in jail since 25.09.2022 and with the consent of learned counsel for the parties, the appeal is heard finally. 2. This criminal appeal filed by the appellants/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 29.02.2024 passed by the learned Second Additional Sessions Judge, Katghora, District – Korba (C.G.) in Sessions Trial No. 63 of 2022, whereby the appellants/accused have been convicted and sentenced with a direction to run all the sentences concurrently in the following manner :- CONVICTION SENTENCE U/s 148 of IPC RI for 01 year with fine of Rs.100/-, in default of payment of fine, additional RI for 01 month U/s 323/149 of IPC RI for 01 year with fine of Rs.100/-, in default of payment of fine, additional RI for 01 month U/s 302/149 of IPC Life imprisonment with fine of Rs.500/-, in default of payment of fine, additional RI for 03 months U/s 450/149 of IPC RI for 10 years with fine of Rs.500/-, in default of payment of fine, additional RI for 03 months 3. The prosecution case in brief is that the complainant Urmila Tirki lodged an oral report at Chowki Morga, Police Station Bango that she and her husband Balsay Tirki had a ongoing dispute with 3 Virendra Ekka and his wife Budhmania Ekka, who lived in her neighbourhood, a year before the incident, over the wooden planks in her garden being broken by their children and taking away the bell tied around the neck of her pet cattle bull. Due to this enmity, on the date of the incident, when she and her husband were watching TV inside their house after having dinner, after closing the door from inside, then her neighbour Virendra Ekka along with his wife Budhmaniya Ekka, mother Khalaso Ekka, elder brother Philip Ekka, sister-in-law Sonamoni Ekka came with sticks and rods in a planned manner at about 8.00 pm last night and when they opened the door after knocking, they forcibly entered their house and forcibly caught her husband Balasai Tirki from inside his house and while quarreling and abusing him, they beat him with their hands, fists, kicks and the sticks they had with them and took him to the front courtyard near their house and tied his hands and legs to a wooden pillar buried in the ground and beat him with hands, fists, kicks, sticks and rods and beat him on the head, neck, he was killed by inflicting serious injuries on his chest, stomach, back, hands and legs. While trying to rescue him, Budhmaniya Ekka also hit her with a stick on the left side of her head and forehead, inflicting injuries on her. On the basis of the above report of the complainant, a crime was registered against the accused and during the investigation, the complainant’s statement was recorded as directed, and the complainant was treated for her injuries at the CHC, Podi Uproda. Immediately, a 4 notice was issued to the Panchas to prepare a Panchnama of the deceased's body at the scene. The Panchnama was prepared in the presence of the Panchas and the body was sent to the CHC, Podi Uproda, for post-mortem examination. A site map of the scene was prepared as directed by the complainant. Blood- soaked soil and plain soil, along with a wooden pole buried in the ground, were seized from the scene in the presence of witnesses. The accused were taken into custody and questioned. Upon their identification, the clothes they were wearing at the time of the incident, which bore blood stains, were seized in the presence of witnesses. A bamboo stick was seized from the accused, Budhmaniya Ekka, in the presence of witnesses. The accused were arrested and remanded in judicial custody. The testimony of all key witnesses regarding the incident was recorded based on their statements. A site map of the incident was prepared by the concerned Patwari. Subsequently, the seized articles were sent to the Regional Forensic Science Laboratory, Bilaspur, for FSL examination. Upon receipt, the report was presented to the trial Court. After thorough investigation, a charge sheet was prepared and presented before the Court of Judicial Magistrate First Class, Katghora, wherefrom finding that the jurisdiction to try the case lies exclusively with the Sessions Court, the same was referred to the Sessions Judge, Korba, ultimately, the case was duly received by the Court of Second Additional Sessions Judge, Katghora, District – Korba (C.G.) for its disposal. 5 4. Upon having found prima facie that accused have committed offence punishable under sections 148, 323/149, 302/149 and 360/149 of the IPC, when charges were framed against them and read out and explained to them, they denied the crime and sought defence. The plea of the accused has been recorded in their own words. In support of their case on behalf of the prosecution, statements of Urmila Tirkey (PW-01), Mohanpuriya alias Shamnath (PW-02), Baijnath Tirkey (PW-03), Dhansai Manjhwar (PW-04), Kanhai Ekka (PW-05), Dr. Umashankar Singh (PW-06), Uttam Kumar Singh (PW-07), Raman Ekka (PW-08), Hriday Tigga (PW-09), Monika (PW-10), Ramnarayan Ratre (PW-11) and I.O. Rajesh Tiwari (PW-12) have been recorded. 5. When the accused were examined under Section 313 of the Cr.P.C., they claimed to be innocent and falsely implicated and no defence witness has been produced on their behalf. 6. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 29.02.2024, convicted and sentenced the appellants / accused as aforementioned, against which, this criminal appeal has been filed by the appellants / accused. 7. Mr. S.R.J Jaiswal, learned counsel for the appellants vehemently argued that the learned Trial Court has erred in convicting the appellants under Sections 302/149 and 450/149 of the IPC. He further submitted that even if the prosecution case is accepted in 6 its entirety, the evidence on record does not establish the requisite intention to cause death so as to attract the offence of murder. The incident admittedly arose out of a long-standing neighbourhood dispute between the parties regarding petty issues relating to broken wooden planks and a bell tied to cattle. He also submitted that the occurrence appears to have been the result of a sudden outburst of anger arising from existing animosity and not a premeditated act committed with the intention of causing death. The appellants are alleged to have used ordinary sticks, bamboo rods, and hands and fists, and no deadly weapon was employed. He contended that the circumstances suggest that the assault occurred in the course of a quarrel and, at the highest, the appellants can be attributed the knowledge that their acts were likely to cause death. Therefore, the conviction under Section 302 IPC deserves to be altered to one under Section 304 Part I IPC. It is further submitted that the prosecution has failed to establish beyond reasonable doubt that all the appellants shared a common object either to commit murder or to commit house-trespass in order to commit an offence punishable with imprisonment for life, as required under Sections 149 and 450 IPC. The evidence does not clearly establish the specific role of each accused or prove that they entered the complainant's house pursuant to any pre- concerted plan. 8. Mr. Jaiswal further submitted that the prosecution case rests substantially on the testimony of PW-1 Urmila Tirkey, an 7 interested witness being the wife of the deceased and admittedly inimical towards the appellants on account of previous disputes. In the absence of reliable and independent corroboration, the omnibus allegations regarding forcible entry and participation of all accused persons cannot be safely relied upon. Even assuming that the appellants entered the house of the complainant, the evidence does not establish that such entry was made with the intention necessary to attract Section 450 IPC. At best, the allegations may constitute a lesser offence of criminal trespass or house-trespass, but the ingredients of Section 450 IPC have not been proved beyond reasonable doubt. It is also submitted that the prosecution evidence is further marred by material contradictions and omissions regarding the manner of occurrence, participation of the accused persons, use of weapons, and the sequence of events. The recovery of ordinary sticks and blood- stained clothes does not conclusively connect the appellants with the alleged offences. In these circumstances, the conviction under Sections 302/149 and 450/149 IPC is unsustainable. The evidence on record, even if accepted, would at the highest make out a case under Section 304 Part I IPC against the concerned accused. Alternatively, in view of the doubtful common object, interested testimony, and deficiencies in the prosecution case, the appellants are entitled to the benefit of doubt. Accordingly, the appeal deserves to be allowed, the conviction under Sections 302/149 and 450/149 IPC be set aside, and the appellants be 8 acquitted; or in the alternative, the conviction under Section 302/149 IPC be altered to Section 304 Part I IPC with a consequential reduction in sentence. 9. On the other hand, Mr. Ashish Shukla, learned Additional Advocate General, appearing for the State/respondent opposed the aforesaid submission and submitted that the impugned judgment of conviction and sentence passed by the learned Trial Court is well-reasoned and based upon proper appreciation of oral and documentary evidence on record, and does not call for any interference in the present appeal. The prosecution has successfully proved beyond reasonable doubt that the appellants, in furtherance of their common object, formed an unlawful assembly and forcibly entered the house of the deceased and his wife and thereafter committed a brutal assault resulting in the death of Balasai Tirki. He further submitted that the genesis of the incident, as established from the consistent testimony of PW-1 Urmila Tirkey and other prosecution witnesses, clearly shows prior enmity between the parties, which culminated in a pre-planned and concerted attack by all the accused persons. The evidence on record demonstrates that the appellants came armed with sticks and rods, forcibly entered the house, and thereafter dragged the deceased to the courtyard where he was mercilessly beaten, tied to a wooden pillar, and repeatedly assaulted on vital parts of the body, resulting in his death. Such acts clearly establish the intention and knowledge required to bring the case 9 within the ambit of Section 302 IPC. It is further submitted that the prosecution evidence, including the testimony of injured witness PW-1 Urmila Tirkey, medical evidence of PW-6 Dr. Umashankar Singh, and corroborative evidence of other witnesses, consistently establishes the active participation of all the appellants in the commission of the offence. The fact that the deceased was tied and thereafter beaten on vital parts of the body with sticks and rods clearly indicates a brutal and coordinated attack, sufficient to infer common object under Section 149 IPC to commit murder. The medical evidence fully corroborates the ocular version regarding the nature and extent of injuries sustained by the deceased, which were sufficient in the ordinary course of nature to cause death. Therefore, the conviction under Sections 302/149 IPC is fully justified and in accordance with law. 10. With respect to the conviction under Section 450/149 IPC, it is submitted by learned State counsel that the prosecution has clearly established that the appellants, forming an unlawful assembly and armed with deadly weapons, entered the house of the deceased at night-time after forcibly opening the door and thereby committed house-trespass with the intention of committing the offence of murder. The entry into the dwelling house of the complainant in a coordinated manner, followed immediately by a violent assault, clearly satisfies the ingredients of Section 450 IPC. The argument that there was no premeditation is contrary to the evidence on record, which shows 10 prior enmity and collective action by all accused persons. Therefore, the conviction under Section 450 read with Section 149 IPC is also fully sustainable. It is further submitted that the defence has failed to point out any material contradiction or infirmity in the prosecution case which goes to the root of the matter. Minor discrepancies, if any, are natural and do not affect the core of the prosecution story. He lastly submitted that the plea for conversion of offence from Section 302 IPC to Section 304 Part I IPC is wholly untenable in view of the brutal nature of the assault, targeting of vital parts of the body, and the conduct of the appellants in tying the deceased and repeatedly assaulting him. The learned Trial Court has rightly appreciated the evidence and convicted the appellants for the offences charged. 11. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 12. The first question for consideration would be whether the deceased died under unnatural circumstances ? 13. The complainant Urmila Tirki (PW-01) has stated in her judicial evidence that on the night of the incident, the deceased Balsay Tirki was tied to a pole and beaten with sticks, batons, kicks and punches, due to which he died and she had informed about this at the outpost Morga. Sub-Inspector Rajesh Tiwari (PW-12) has stated that on the basis of the above information only, the First 11 Information Report under Ex.P-01 and the Inquest on Zero as per Ex.P-25 were registered and on the basis of the Inquest written on the above mentioned Zero and the First Information Report only, the Inquest was registered as per Ex.P-23 in the Police Station Bango and the First Information Report was registered as per Ex.P-24 by Sub-Inspector Ramnarayan Ratre (PW-11). The testimony of the above three witnesses has not contradicted the fact that the deceased Balsay Tirki was beaten up and the information about the same was recorded as per Ex.P-01. 14. The medical witness Dr. Umashankar Singh (PW-06) has stated that the post-mortem of the deceased Balsay Tirki was conducted on 25.09.2022 at 2.30 pm as per Ex.P-15 and has clarified that there was a scratch mark of 4X2 cm on the right hand of the deceased, two contusions of the size 8X4 cm and 11X4 cm on the upper part of the right thigh of the deceased, two contusions of the size 3X2 cm and 4X2 cm on the lower part of the right thigh of the deceased, three contusions of the size 4X3 cm, 4X2 cm and 4X2 cm respectively on the back part of the left thigh of the deceased, 8X3 cm and 6X3 cm on the back part of the right thigh of the deceased and 3 contusions of the size 5X3 cm, one contusion of the size 10X8 cm in the right gluteal region of the deceased, one contusion of the size 10X4 cm in the right lumbar region of the deceased, a contusion of the size 4X3 cm in the back of the left thigh of the deceased, a contusion of the size 10X6 cm in the right parietal region of the head of the deceased 12 and a scratch mark of the size 3X2 cm in the right palm of the deceased were found. Apart from this, there was a contusion of the size 3X4 cm in the front part of the abdomen of the deceased. This witness has stated that the cause of death was sudden cardiac arrest and severe blood loss within 24 hours of the PM, and that the deceased's death was homicidal. The witness denied in cross-examination that the deceased was a frail and weak person and that his death was due to high blood pressure. The witness made no other significant adverse statement in cross- examination. 15. After hearing learned counsel for the parties and after considering the submissions advanced by them, we are of the considered opinion that the finding recorded by the trial Court that the deceased Balsay Tirki died under unnatural circumstances is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 16. Now, the next question for consideration is whether the complainant Urmila Tirkey was also hurt by the accused ? 17. Complainant Urmila Tirkey (PW-1) has stated that she was struck on the head with a stick on the night of the incident. This fact is not contradicted in cross-examination; rather, during her cross- examination, defence of causing injury to the victim has been taken, which the witness has denied. Witnesses Mohanpuriha (PW-02), Kanhai Ekka (PW-05), Monika (PW-10) have also 13 revealed in their court evidence that witness Urmila had told them the fact that she had received injury to her head after the incident and no facts contrary to this have been shown in the cross- examination of these witnesses also. 18. Sub-Inspector Rajesh Tiwari (PW-12) has stated that the complainant, Urmila, was sent to the hospital for treatment in the written complaint (Ex.P-29). According to the medical report (Ex.P-17) on the back of the said Ex.P-29, Dr. Umashankar Singh (PW-06) stated that he had conducted a medical examination of the complainant, in which he stated that a 5.5 x 3 cm wound was found on the complainant's head which was caused with a hard and blunt object and that the injury was occurred 12 to 18 hours prior to the incident. The witness's cross-examination does not contain any notable adverse facts in this regard. Therefore, as above, it is also shown that on the night of 24.09.2022, the complainant, Urmila Tirki, was also voluntarily hurt. 19. Having heard learned counsel for the parties and upon meticulous examination of the entire evidence on record, this Court finds that the homicidal death of Balsai Tirki stands duly proved from the medical evidence and is not in dispute. The testimony of PW-1 Urmila Tirki, who herself sustained injuries in the same occurrence, inspires confidence and finds substantial corroboration from the medical and other circumstantial evidence. The evidence further establishes that the accused persons entered the house of the deceased, dragged him outside, tied him 14 to a wooden pillar and assaulted him with sticks, fists and kicks. Thus, the participation of the appellants in the incident and the existence of an unlawful assembly are established beyond reasonable doubt. The prosecution has thus successfully proved the participation of the appellants in the occurrence and their membership of an unlawful assembly. Consequently, the conviction of the appellants under Section 148 IPC and Section 323 read with Section 149 IPC calls for no interference. 20. This Court further finds that the conviction under Section 450 read with Section 149 IPC has been rightly recorded by the learned Trial Court. The evidence of PW-1 Urmila Tirki clearly establishes that the appellants came together to the house of the deceased at night, knocked on the door and, upon the door being opened, forcibly entered the dwelling house and immediately subjected the deceased and PW-1 Urmila Tirki to assault. Their entry was not innocent or casual but was directly connected with the commission of a grave offence. The manner in which the appellants entered the house as members of an unlawful assembly and thereafter forcibly removed the deceased from inside his dwelling sufficiently establishes the ingredients of house-trespass in order to commit an offence punishable with imprisonment for life. Accordingly, the conviction under Section 450 read with Section 149 IPC is affirmed. 21. The principal question that arises for consideration is whether the conviction under Section 302 read with Section 15 149 IPC is sustainable ? 22. However, while considering whether the offence would fall under Section 302 IPC or Section 304 Part I IPC, it is necessary to examine the surrounding circumstances, namely, the admitted prior neighbourhood dispute between the parties, the absence of any evidence of prior planning or pre-arranged conspiracy, and the fact that the assault was carried out with ordinary sticks and rods and not with inherently deadly weapons. 23. It is a trite law that “culpable homicide” is a genus and “murder” is its species and all “murders” are “culpable homicides, but all “culpable homicides are not “murders” as held by the Hon’ble Supreme Court in Rampal Singh Vs. State of Uttar Pradesh1. The intention of the accused must be judged not in the light of actual circumstances, but in the light of what is supposed to be the circumstances. 24. The Hon’ble Supreme Court in the case of Basdev Vs. State of Pepsu2 has made the following observations : “Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin 1 (2012) 8 SCC 289 2 AIR 1956 SC 488 16 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.” 25. It requires to be borne in mind that the test suggested in the aforesaid decision and the fact that the legislature has used two different terminologies, ‘intent’ and ‘knowledge’ and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat ‘intent’ and ‘knowledge’ in equal terms. They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 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 17 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. 26. 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 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.” 27. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana4 has laid down certain factors which are to be taken into 3 (2002) 3 SCC 327 4 (2009) 15 SCC 635 18 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 in the ordinary course of nature to cause 19 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.” 28. 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 5 (2012) 8 SCC 450 20 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. 29. 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.” 6 (2017) 3 SCC 247 21 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 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”. 30. In the matter of Arjun (supra), the Hon’ble Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the 22 IPC. 31. 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.” 32. The Hon’ble Supreme Court in the case of Anbazhagan vs. The State represented by the Inspector of Police in Criminal Appeal No.2043 of 2023 disposed of on 20.07.2023 has defined the context of the true test to be adopted to find out the intention or knowledge of the accused in doing the act as under: “60. Few important principles of law discernible from the aforesaid discussion may be summed up thus: (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or 7 (2019) 6 SCC 122 23 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 24 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 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. 25 (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. 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. 26 (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant 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. 27 (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 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, 28 would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 33. On a careful evaluation of the evidence, this Court finds that although the appellants were responsible for the injuries sustained by the deceased, the circumstances of the case do not establish beyond reasonable doubt that they possessed the requisite intention to commit murder. The prosecution evidence reveals that the parties were neighbours and had a long-standing dispute arising out of trivial issues relating to broken wooden planks and a bell tied around cattle. The occurrence appears to have been the outcome of such pre-existing animosity. There is no evidence of prior planning, conspiracy or preparation to eliminate the deceased. The weapons allegedly used were ordinary sticks and rods and not inherently deadly weapons. Further, the prosecution has not been able to establish which particular accused inflicted the fatal injury. The cumulative circumstances indicate that the appellants intended to cause bodily injuries which were likely to cause death, but it cannot safely be concluded that they intended to cause death or such bodily injury as was sufficient in the ordinary course of nature to cause death so as to attract Section 302 IPC. 34. The distinction between murder and culpable homicide not amounting to murder has been explained by the Hon'ble Supreme Court in State of Andhra Pradesh v. Rayavarapu Punnayya8, 8 (1766) 4 SCC 382 29 wherein it was held that the difference between the two offences is often one of degree depending upon the probability of death resulting from the intended act. Similar principles were reiterated in Arjun (supra), where the Supreme Court converted convictions from Section 302 IPC to Section 304 Part I IPC upon finding absence of premeditation and existence of circumstances indicating intention to cause bodily injury likely to cause death rather than an intention to commit murder. Applying the aforesaid principles to the facts of the present case, this Court is of the considered opinion that the offence committed by the appellants would fall within the ambit of Section 304 Part I read with Section 149 IPC. 35. Accordingly, the conviction of the appellants under Sections 148 IPC, 323/149 IPC and 450/149 IPC is affirmed. However, the conviction under Section 302 read with Section 149 IPC is set aside and is altered to one under Section 304 Part I read with Section 149 IPC. Consequently, while maintaining the conviction, the sentence of imprisonment for life imposed upon the appellants for the offence under Section 302/149 IPC is reduced to Rigorous Imprisonment for a period of ten years along with the fine amount imposed by the learned Trial Court. The sentences awarded under the remaining offences shall remain unaltered and shall run concurrently. The appellants shall be entitled to set-off under Section 428 of the Code of Criminal Procedure for the period already undergone in custody. 30 36. The appeal is accordingly partly allowed to the extent indicated hereinabove. 37. It is stated that the appellants are in jail, they shall serve out the remaining sentence as modified by this Court. 38. 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 appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra