1 2026:CGHC:902-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1272 of 2025 Tifil Kerketta S/o Late Bariram Kerketta Aged About 38 Years R/o Kanchira, Tendudadh, P.S. - Kaapu, District - Raigarh Chhattisgarh ... Appellant versus State Of Chhattisgarh Through Station House Officer Police Station - Kaapu, District - Raigarh Chhattisgarh ... Respondent(s) For Appellant : Ms. Reena Singh, Advocate through legal aid For Respondent(s) : Mr. Shashank Thakur, Addl. Advocate General Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Arvind Kumar Verma, Judge Judgment on Board Per Arvind Kumar Verma, Judge 07/01/2026 1. Heard Ms. Reena Singh, learned counsel for the appellant through legal aid. Also heard Mr. Shashank Thakur, Addl. Advocate General for the State/Respondent. MADHURIMA THAKUR Digitally signed by MADHURIMA THAKUR Date: 2026.01.09 15:21:02 +0530 2 2. The present appeal has been preferred by the appellant under Section 415(2) of BNSS, 2023 questioning the judgment of conviction and order of sentence dated 16.05.2025, passed by Learned Additional Sessions Judge, Gharghoda, District- Raigarh (C.G.) passed in Sessions Trial No. 51/2020, whereby appellant has been convicted and sentenced as under: CONVICTION SENTENCE u/S 302 of IPC RI for life and fine of Rs. 1000/-, in default of fine amount, additional RI for 1 month. 3. The prosecution story in short is that, on 04.05.2020 at about 10:00 a.m., the accused gave information at Police Station Pathalgaon, District Jashpur (Chhattisgarh) stating that his elder brother Kundal Sai (deceased) had gone out of the house on 03.05.2020 between 4:00–5:00 p.m. to roam around and did not return home till evening. At night, the accused had dinner and went to sleep. In the morning, when his wife Sukmati Kerketta was going to fetch water, she saw Kundal lying in an injured condition near the roadside in the field of Jaylal Tirki. There were visible injury marks on his face and thighs, and he was still breathing. They informed the village panch and sarpanch, and Kundal was taken for treatment to the Primary Health Centre, Pathalgaon, where he died during the course of treatment. On receiving this information, a Merg (unnatural death) intimation at serial number zero was registered at Police Station Pathalgaon. 3 4. During investigation, it was found that the accused and the deceased were real brothers and frequent quarrels used to occur between them. On the day of the incident, the accused, in a fit of anger, assaulted the deceased with an iron rod, as a result of which the deceased died. Accordingly, Crime No. 29/2020 was registered at Police Station Kapu against the accused for the offence punishable under Section 302 of the Indian Penal Code and the FIR (Exhibit P-17) was lodged. The spot map (Exhibit P- 18) was prepared and statements of witnesses were recorded. 5. Witnesses Rajesh Toppo and Pitambar Yadav were served notice to remain present during investigation. In their presence, the memorandum statement of the accused (Exhibit P-1) was recorded and at his instance, one iron rod used in the incident was seized. Blood-stained soil and plain soil were seized from the spot. The accused was arrested and intimation of arrest was given to his wife Sukhmati Bai. 6. On 05.05.2020, Assistant Sub-Inspector Neeta Kurre conducted the inquest proceedings in the presence of Panch witnesses and legal heirs after issuing notice under Section 175 CrPC. Inquest Panchnama was prepared. Since injuries caused by assault were found on the body of the deceased, the dead body was sent through constable Bhimsen Kurre for post-mortem examination to Community Health Centre, Pathalgaon. 7. Dr. Akash Kujur (PW-11) conducted the post-mortem on 05.05.2020 and submitted the post-mortem report (Exhibit P-24) 4 and short post-mortem report (Exhibit P-25). He opined that death was caused due to excessive bleeding resulting from multiple injuries, leading to hemorrhagic shock. The nature of death was opined to be homicidal. On 06.05.2020 at 15:05 hours, Merg No. 21/2020 was registered at Police Station Pathalgaon. 8. The statement of the accused was recorded under Section 313 of Cr.P.C. wherein he denied the charges leveled against him and pleaded innocence. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 30.11.2022, convicted the appellant for offence under Section 302 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 10. Ms. Reena Singh, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence 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 as it is, then also the appellant is said to have caused injuries to the deceased in spur of moment and inebriated condition. 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, in inebriated condition, the appellant caused injuries to the deceased, which caused his death. Learned counsel for the 5 appellant urged that: (a) there was no premeditation; (b) the incident ensued during a sudden domestic quarrel; (c) the appellant was inebriated; (d) the assault consisted of a single blow; and (e) intention to cause death is absent; at best knowledge can be imputed. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of 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 offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Hence, the present appeal deserves to be allowed in full or in part. 11. On the other hand, learned State counsel supports the impugned judgment and submits that Rajesh Toppo (PW-1) and Pitambar Yadav (PW-2) have corroborated the fact that the accused committed the murder of the deceased by assaulting him with a tangi (iron rod). In their presence, the accused admitted the said fact. Both these witnesses have proved the memorandum statement of the accused as Exhibit P-1. It has been proved in writing that the accused accepted that he caused the death of the deceased by assaulting him with a tangi. Further, on the disclosure statement of the accused, the tangi used in the commission of the offence was seized, which is confirmed by seizure memo Exhibit P-2. As per the chemical examination report Exhibit P-22, human blood was found on the seized tangi. Dr. 6 Akash Kujur (PW-11), while submitting the query report Exhibit P- 26, opined that the injuries sustained by the deceased were caused by the seized tangi and that such injuries resulted in his death. Further, in the post-mortem report Exhibit P-24, it has been stated that the nature of death of the deceased was homicidal. The statements of Rajesh Toppo (PW-1) and Pitambar Yadav (PW-2) are found to be wholly reliable and trustworthy, and they are duly corroborated by the investigation conducted by the Investigating Officer Dhaniram Rathore (PW-10), therefore, the learned trial Court has rightly convicted the appellant under Section 302 of the IPC and it is not a case where the appellant’s conviction under Section 302 of the IPC can be altered/converted under Section 304 Part-I or Part-II IPC and as such, the instant criminal appeal deserves to be dismissed. 12. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 13. The first question for consideration would be whether the deceased died under unnatural circumstances ? 14. Assistant Sub-Inspector Neeta Kurre (PW-9) stated that on receiving information of the unnatural death, she reached the spot. As it was evening by then, the inquest (Panchanama) proceedings could not be conducted immediately. Therefore, she deployed Constable Bhimsen Kurre (PW-10) for the protection of the dead body and prepared the duty certificate (Exhibit P-10). 7 The witness further stated that on 05.05.2020, she went to the Civil Hospital, Pathalgaon, and conducted the inquest proceedings of the deceased in the presence of the Panch witnesses. For completing the inquest proceedings, notices were issued to the relatives of the deceased and the Panch witnesses, requiring their presence (The notice under Section 175 CrPC is Exhibit P-14), and, in their presence, after conducting the inquest proceedings, the body of the deceased was examined in the presence of the Panch witnesses. This witness stated that injuries caused by beating were visible on the body of the deceased. Therefore, as per the opinion of the Panch witnesses, in order to ascertain the exact cause of death, an application for post-mortem examination of the body was prepared (Exhibit P-15) and sent to the Medical Officer, Civil Hospital, Pathalgaon. 15. Regarding non-appearance in the death inquiry, witness Shobhan Ekka (PW-3) and Shobhan Bada (PW-4), who were witnesses to the proceedings of the death inquiry notice (Exhibit P-7) and inquest report (Exhibit P-8), stated that they did not participate in the inquiry. However, Ramsahay Ekka (PW-8) stated that the police had called him at the time of the death inquiry and handed over the dead body of the deceased to the relative Jaylal Tirkey after completing the formalities. 16. Constable Bhimsen Kurre (PW-6) also corroborated this fact and stated that, on the directions of the Station House Officer, he took the dead body of the deceased to the Community Health Centre, 8 Pathalgaon, for post-mortem examination, and after the post- mortem, handed over the body to the relatives of the deceased for last rites. 17. From the Duty certificate (Exhibit P-10) and the memo (Exhibit P- 11), it is also evident that Constable Bhimsen Kurre was deployed for the protection of the dead body on 04.05.2020 at 17:30 hours, and on 05.05.2020, along with the post-mortem requisition, the dead body of the deceased was sent under his supervision for examination. After completion of the post-mortem, the said constable handed over the dead body of the deceased to his relatives. 18. Dr. Akash Kurre (P.W. 11) stated that on 05.05.2020 at about 12:05 PM, the dead body of Kundal Sai Kareketta, age 40 years, was produced before him at the Community Health Centre, Pathalgaon for post-mortem examination by Constable Bhimsain Kurre, Constable No. 41. This witness stated that the identification of the dead body was carried out by Somaru Tirki (age 60 years), Jaylal Tirki (age 35 years), and Ramsai Ekka (age 31 years). On examining the dead body, he found the following: External Examination: The deceased was a normally built adult male, approximately 40 years of age. There was a rosary (beads) around the neck, and the deceased was wearing a green-colored vest. Stiffening (rigor mortis) was present. The eyes and mouth were closed. There was swelling below both eyes, which had turned black. Blood was 9 oozing from the nose. The upper two front teeth were broken, and the upper canine tooth on the right side was also broken. Injuries Found on the Body of the Deceased 1. A cut wound below the right cheek, extending up to the jaw bone; the jaw bone was visible and fractured. The face of the deceased was completely swollen. 2. A cut wound on the back right side of the head, measuring 1 × 1 cm, extending up to the depth beneath the skin. 3. Scratch marks and contusions were found on the upper part of the left shoulder. 4. A 6 × 2 cm scratch was found on the left thigh. 5. 2 × 2 cm contusions were found on the right thigh. Internal Examination The head, brain, spinal cord, lungs, throat, trachea, blood vessels, membranes of the small intestine, oral cavity, urinary system, bladder, internal and external genital organs were found intact. The right lung, left lung, liver, spleen, kidneys, pancreas were intact. Both chambers of the heart were empty. The stomach contained partially digested food, and the small intestine contained digested food, while fecal matter was present in the large intestine. 19. Dr. Akash Kurre (P.W. 11), while confirming his signature on Short Post-Mortem Report Exhibit P-25 and Post-Mortem Examination 10 Report Exhibit P-24, stated that according to him, the cause of death of the deceased was due to excessive bleeding caused by injuries on the body, resulting in hemorrhagic shock. The nature of death was homicidal, and the death appeared to have occurred within 24 hours prior to the post-mortem examination. 20. During cross-examination, Dr. Akash Kurre (P.W. 11) denied the suggestion that the injuries sustained by the deceased could have been the result of a road traffic accident. In relation to the post-mortem report, the statements of this witness remained unshaken during cross-examination. 21. From Short Post-Mortem Report Exhibit P-25 and Post-Mortem Report Exhibit P-24, it is clear that there was a cut wound below the right cheek extending up to the jaw bone, the jaw bone was visible and fractured, the face was swollen, there was a cut wound on the back right side of the head, scratch marks and contusions on the upper left shoulder, a scratch on the left thigh, and contusions on the right thigh. 22. The medical evidence on record conclusively establishes that the injuries sustained by the deceased were grievous, inflicted by sharp and blunt force, and sufficient in the ordinary course of nature to cause death. Due to these injuries, the deceased died as a result of excessive bleeding leading to hemorrhagic shock. Dr. Akash Kurre (P.W. 11) clearly stated that the nature of death was homicidal, and that the death occurred within 24 hours prior 11 to the post-mortem examination. 23. Now, the question for consideration would be whether the accused-appellant herein is the perpetrator of the crime in question? 24. In this regard, PW–01 (Rajesh Toppo) deposed that he knows the accused Tifil Kerketta and the deceased Kundal Kerketta, who were real brothers. He stated that he came to know through villagers that a quarrel took place between the accused and the deceased on 03.05.2020, during which the accused assaulted the deceased with a tangi (axe), causing serious injuries to his head and body. The injured was taken to the Government Hospital on 04.05.2020, where he later died due to the injuries. The witness stated that police prepared various documents in his presence, including the memorandum statement of the accused, seizure of the tangi, seizure of blood-stained and plain soil, arrest memo, and panchanama, on which he signed. He admitted that the incident and several facts were known to him through hearsay and that he did not personally witness the assault. During cross- examination, he denied false implication of the accused and admitted that many facts were informed to him by police or villagers. 25. PW-02/ Pitambar Yadav stated that the accused Tifil Kerketa and the deceased Kundal Kerketa were real brothers. About one and a half years prior to the incident, at around 03:00- 04:00 pm the 12 accused, while intoxicated, stated in presence of villagers that he had assaulted his elder brother Kundal Kerketta with a tangi. When villagers reached the deceased’s house, he was found lying injured and bleeding. When the villagers inquired about the matter to the accused, he replied that there were some prior dispute between them, he therefore, assaulted his brother. The deceased was taken to the government hospital the next morning, where he succumbed to his injuries. The witness confirmed that the police recorded the memorandum statement of the accused, seized the weapon and blood-stained soil in his presence, and arrested the accused. During cross-examination, the witness clarified that the deceased was not in a condition to speak, had suffered serious head injuries, and that the death occurred due to those injuries. Hence, all the circumstances of the case indicate that the accused assaulted his brother in the state of intoxication with a tangi (axe). 26. It is evident from the memorandum statement of the accused (Exhibit P/01) that he and his elder brother (deceased) used to live separately in different houses of the same courtyard. On 03.05.2020, at about 04:00- 05:00 pm, both of them had consumed liquor and had an argument. Whereafter, he assaulted his elder brother in anger inside his house by hitting him with tangi as a result of which, he sustained injuries. Thereafter, on 04.05.2020, his brother (deceased) was taken for treatment to the Government Hospital, Pathalgaon, where he died during treatment. He further admitted that he hid the said tangi behind 13 his house. This extra judicial confession of the accused has remained un-rebutted in the cross-examination of PW-02. 27. It is also evident that Dr. Akash Kujur (PW-11) has proved his Query Report (Ex. P/26) and stated that the deceased could have sustained the injuries caused by the seized tangi, and that such injuries were sufficient to cause death in the ordinary course of nature. Also, as per the FSL report (Ex. P/22), human blood was found on the seized tangi as well as on the soil seized from the house of the deceased. The blood group was “O+ve”, which establishes that the incident was committed by means of the seized tangi. 28. It is also evident from the statements of the witnesses, that the deceased was taken for treatment on 04.05.2020 whereas the incident took place on 03.05.2020. Had the deceased been taken to the hospital on the same day, he would not have died. 29. Hence, it is proved that the accused/appellant herein the perpetrator of the crime in question. 30. 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 ? 31. Section 304 Part-II reads as under : 14 “304. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” 32. The cause of death assigned in the postmortem report of the deceased as already noticed is ‘internal carotid artery trauma and jugular vein trauma’ and the mode of death is ‘hemorrhagic shock’ and nature of death is homicidal. 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 Pradesh reported in (2012) 8 15 SCC 289. 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. 33. The Hon’ble Supreme Court in the case of Basdev v. State of Pepsu reported in AIR 1956 SC 488 has made the following observations : “Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.” 34. 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 16 committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be unsafe to treat ‘intent’ and ‘knowledge’ in equal terms. They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 of the IPC. It is in this background that the expression used in Indian Penal Code namely “intention” and “knowledge” has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part 3 of Section 300 of the IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted. 35. The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana reported in (2002) 3 SCC 327 has observed as under :- 17 “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.” 36. The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana reported in (2009) 15 SCC 635 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to 18 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; 19 (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflictd; (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 20 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.” 37. Likewise, in the matter of State v. Sanjeev Nanda, (2012) 8 SCC 450, 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. 38. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh reported in (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- 21 “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the 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) 22 “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”. 39. 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 23 the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC. 40. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi) reported in (2019) 6 SCC 122 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.” 41.The Hon’ble Supreme Court in a recent judgment in the case of Anbazhagan v. The State represented by the Inspector of Police in Criminal Appeal No. 2043 of 2023 disposed off on 20.07.2023 has defined the context of the true test to be adopted to find out the intention or knowledge of the accused in doing the act as under: “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 24 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 25 of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the 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 26 IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case 27 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. 28 (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge 29 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 sufficient in the ordinary cause of nature to cause death 30 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 31 accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 42. In the present case, Rajesh Toppo (PW-1) & Pitambar Yadav (PW- 2) stated that on the date of incident, the appellant assaulted the deceased by way of tangi (axe) because of which the deceased sustained injuries and died during the treatment. 43. During their cross-examination, the statements of the witnesses remain unrebutted, and there are no inconsistency in their statements that would make them unreliable. 44. Further Dr. Akash Kujur (PW-11), who has conducted the postmortem of the deceased on 05.05.2020. After the postmortem, he found the injuries as stated in preceding paragraphs and he opined that the death of the deceased was caused due to ‘internal carotid artery trauma and jugular vein trauma’ and the mode of death is ‘hemorrhagic 32 shock’ and nature of death is homicidal. 45. Applying the aforesaid principles of law laid down by their Lordships of the Hon’ble Supreme Court in the above-stated judgments (supra) in the facts of this case, it is quite vivid that as per the evidence of Rajesh Toppo (PW-1) & Pitambar Yadav (PW- 2), it is evident that on the date of incident, the appellant assaulted the deceased who was his real brother with tangi in the fit of rage leading to his death, therefore, the nature of evidence would show that the assault was made with no premeditated mind and at the spur of moment it happened and because of which the deceased sustained head injury and died during the treatment. The appellant did not had any intention to cause death of deceased, but by causing such assault, he must had the knowledge that such injuries inflicted by him would likely to cause death of deceased, 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. 46. In such circumstances, offence punishable under Section 302 of IPC would not be applicable in this case. However, offence punishable under Section 304 Part-II would be applicable, 33 therefore, the appellant is convicted for the offence punishable under Section 304 Part-II of IPC instead of Section 302 of IPC. Accordingly, the appellant is convicted under Section 304 Part-II IPC. 47. Now coming to the sentence part, since the appellant- Tifil Kerketta is in jail since 07.05.2020 and as such has undergone about 05 years and 07 months in this case, we are of the considered opinion that the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-II of the IPC. 48. Accordingly, conviction and sentence of the appellant under Section 302 of the IPC is altered to the offence under Section 304 Part-II of the IPC and sentenced to undergo rigorous imprisonment for 07 years. 49. The appellant is reported to be in jail. He shall serve out the sentence as modified above. 50. In the result, the instant criminal appeal is allowed in part to the extent indicated herein-above. 51. 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 34 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. 52. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- Sd/- (Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice Madhurima