Station Saraipali, District Mahasamund (Chhattisgarh) v. State of Chhattisgarh Through Station House Officer
Case Details
1 / 37 2025:CGHC:17389-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1476 of 2021 Pradeep Bhoi S/o Shri Subhash Bhoi, Aged About 26 Years R/o Village Singarpur, Station House- Baloda, Police Station Saraipali, District Mahasamund (Chhattisgarh) ... Appellant versus State of Chhattisgarh Through Station House Officer- Baloda, Police Station Saraipali, District Mahasamund (Chhattisgarh) ... Respondent (Cause title is taken from the CIS) For Appellant For State-Respondent : : Mr. R.S. Patel, Advocate Mr. Swajeet Ubeja, PL Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 16.04.2025 1. Proceedings of this matter has been taken through video ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.04.19 15:26:25 +0530 conferencing. 2 / 37 2. Heard Mr. R.S. Patel, learned counsel for the appellant. Also heard Mr. Swajeet Ubeja, learned Panel Lawyer for the State/Respondent. 3. The present appeal has been preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973 questioning the judgment of conviction and order of sentence dated 21/10/2021 passed in Sessions Trial No.43/2018 by the learned First Additional Sessions Judge, Saraipali, District Mahasamund (C.G.), whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 302 of I.P.C., Life time Rigorous 1860 imprisonment and fine of Rs.500/- and in default of payment of fine amount 06 months additional R.I. 4. The prosecution story in short is that, on 08.08.2018, the complainant Kishor Kumar Bhoi lodged a report at the police post Balouda to the effect that on 08.08.2018, at about 08 am, he was going to work in the field at that time in the way, he saw that his uncle Sudam was going to work in Manbodh's field, where the accused Pradeep, Subhash and Subhash's wife Koita came to Sudam and started 3 / 37 abusing him and beating him with their hands and fists, saying that he is encroaching upon their land. Then Sudam's grandson Shekhar came to the spot and intervened. He was defending himself. At the same time, Pradeep hit Sudam on the head with the spade in his hand with the intention to kill him, saying that he would kill him. Due to which Sudam got injured and started bleeding. Seeing this, when Shekhar tried to stop the attack then Pradeep hit Sudam on the head with the spade again, due to which Sudam fell down and blood was oozing out thereafter the accused fled away. The above report was registered at zero in the Baloda Police Station, which is Ex.P. 01, on the basis of which, a complaint Ex.P. 15 was registered in Saraipali Police Station. The injured Sudam was sent to CHC Saraipali for initial treatment where he was examined and a medical report Ex.P. 12 was prepared and he was referred to Raipur for further treatment and Sudam died during treatment in Raipur. 5. After the death of Sudam, the ward boy of Mekahara Hospital Raipur informed about the death of Sudam to Police Station Mohdapara and death intimation Ex. P. 26 was registered and Police Station Modhapara issued notice Ex. P. 06 for the presence of witnesses for the 4 / 37 Panchayatnama of the deceased and map Panchayatnama Ex. P. 07 was prepared. For post-mortem of the deceased, the body of the deceased was sent to Doctor Ambedkar Hospital Raipur along with Ex. P. 27, where the post- mortem of the deceased was conducted and post-mortem report Ex. P. 25 was prepared. 6. During the investigation, accused Pradeep Bhoi was examined and his memorandum statement Ex.P. 09 was recorded and on the basis of that, spade was seized from the possession of accused Pradeep and seizure memo Ex.P. 10 was prepared. Blood stained soil and plain soil was seized from the place of incident in front of witnesses and seizure memo Ex.P. 08 was prepared and the lungi worn by the deceased at the time of incident which had blood stains was seized from the possession of Shekhar Bhoi and seizure memo Ex.P. 04A was prepared. An application was sent from the doctor and a query was made regarding the possibility of the deceased dying from the blow and the blood stains on the spade being human blood, on which query report Ex.P. 13 was provided. An application was sent from the doctor and a query was made regarding the blood on the dhoti of the deceased, on which query report Ex.P. 14 was provided. Since the crime was found against the 5 / 37 applicants, they were arrested and their relatives were informed about it through arrest papers Ex.P. 16 to Ex.P. 18 and information about their arrest was given to their relatives through Ex.P. 19 and Ex.P. 20. In the case, the seized soil, mortar and spade were sent to the State Forensic Science Laboratory, Raipur for FSL test and FSL report Ex.P. 11 was received. After investigation, a charge
Legal Reasoning
sheet was presented in the court of Judicial Magistrate First Class, Saraipali on 04.10.2018, on which criminal case No. 488/2018 was registered in the said court, and on 15/10/2018 the case was committed before the learned Additional Sessions Judge, Mahasamund, for trial, thus Sessions Trial No. 42/2018 was registered and trial was initiated. 7. The charges were framed against the accused under Sections 294/34 and 323/34 of IPC and Section 302/34 of IPC and read out to them, they denied the crime and sought trial. After completion of prosecution evidence, the statement of the accused was recorded under Section 313 of CrPC and in which the accused stated that they were innocent and were falsely implicated in the case. 8. The postmortem of the body of the deceased was conducted by Dr. Shiv Narayan Manjhi, Medical Officer in the Forensic 6 / 37 Medicine Department at Mekahara Raipur (PW-16) vide Ex.P-25 and opined that the cause of death of the deceased was due to cardio-respiratory failure as a result of head injury and its complications. 9. After hearing the arguments of both the counsel, learned trial Court finally convicted the present appellant for the offence punishable under Section 302 of I.P.C. and convicted other co-accused namely Subhash Bhoi and Koita Bhoi for charge under Sections 323 of I.P.C and reduced their sentence to the period already undergone by them vide its judgment dated 21/10/2021. 10. In order to prove the charges against the appellants (accused), prosecution examined as many as 17 witnesses and 27 documents were exhibited. Statement of appellant was also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellants. After completion of trial, trial Court convicted and sentenced the appellant in the manner as described above. Hence, this appeal.
Legal Reasoning
11. Mr. R.S. Patel, learned counsel appearing for the appellant would submit that the prosecution story is completely false 7 / 37 and bogus, as both the alleged eye-witnesses Kishore Kumar (P.W. No. 01) and Shekhar Bhoi (P.W. No. 05) had not supported the case of prosecution in their Examination- in-Chief and nowhere stated that the appellant threatened to kill the deceased during the ongoing fight between them and even they have not stated about any land dispute and there is no evidence that the appellant intended to kill the deceased namely Sudam due to an existing land dispute between them. He would next contend that the learned court below has accepted the defence of the other co- accused persons in para 34 of its judgment that the fight between Subhash and the deceased was not premeditated but was spontaneous and there was no common intention to cause death to the deceased and acquitted the Accused No. 1 and 3 for the offence under Section 302/34 of the Indian Penal Code, 1860 but has failed to apply the said findings to the case of the present Appellant. Since, the incident was not premeditated and the appellant had sudden grave provocation from the deceased by trying to disrobe his mother i.e. Accused No. 3, the death consequently caused cannot be treated as murder. 12. He would next contend that the complainant Kishore Kumar (P.W. No. 01) in para 13 of his statement has admitted that 8 / 37 the deceased was trying to outrage the modesty of Appellant's mother by pulling her Saree with intent to disrobe her and outrage her modesty. The above act is sufficient to establish a sudden and grave provocation to the Appellant by the deceased. He would next contend that the prosecution witness i.e. Shekhar Bhoi (PW-5) in para 2 of his chief examination has stated that the fatal blow which rendered the deceased unconscious was caused accidentally when Shekhar Bhoi intervened and blow which was directed towards him with a Spade. Hence, the findings and reasons recorded in the impugned judgment are liable to be quashed and even if the entire case of prosecution is considered along with material collected by it, the case of the appellant would fall under Section 304 Part-II IPC. Therefore, the interference of this Court is required in the impugned judgment of conviction and order of sentence. 13. Per contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He would further submit that at the time of incident, accused assaulted the deceased with a spade by saying that he will kill him, hence, there is no illegality or infirmity in the finding 9 / 37 of learned trial Court and the impugned judgment passed by the Court below needs no interference. 14. We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 15. From perusal of the record and evidence, it is evident that at the time of incident, the appellants came to the deceased and stated that you have encroached our land and started abusing him in filthy language and the present appellant assaulted the deceased with a spade by stating that he will kill him. 16. Learned trial Court has recorded a negative finding in this regard relying upon the statements of eye witnesses Kishor Kumar (PW-1), Shekhar Bhoi (PW-5), Dr. Shiv Narayan Manjhi (PW-16) and the postmortem report Ex.P-25 proved by Dr. Shiv Narayan Manjhi (PW-16) that the death of the deceased was due to cardio-respiratory failure as a result of head injury and its complications. 17. Kishor Kumar (PW-1), who is the eye-witness in this case has stated in para 2 that on 08/08/2018 in the morning at about 8.00 o’clock it was raining and when the rain stopped he was going towards the field of one Manbodh Sarpanch 10 / 37 because his uncle (the deceased) had told him to sow the paddy in the field of Manbodh. When he reached there he heard the noise of quarrel and he saw that Subhash Bhoi and Koita Bhoi were assaulting the deceased with fists and leg and Pradeep Bhoi was assaulting the deceased with the help of spade and he hit from the reverse side of the spade. At that time the grandson of the deceased namely Shekhar was intervening. Pradeep inflicted two blows from the spade on account of which his uncle felt unconscious and the blood was oozing out from his head. Pradeep also tried to hit Shekhar also with the spade but he ran away. 18. The other eye-witness namely Shekhar Bhoi (PW-5) in his statement at para 2 has stated that on 08/08/2018 at about 7-8 o’clock in the morning his grandfather Sudam was going to plough the field. He was going towards the shop from his house at that time the accused Subhash and his wife were assaulting his grandfather and their son was assaulting by way of spade then he caught hold of the spade then the accused Pradeed tried to assault him also and he escaped himself, however, the blow was made to his grandfather and he fell down on the ground. 19. The son of the deceased namely Ravi Lal has been examined as PW-3 and he is a hearsay evidence. He in 11 / 37 para 2 of his examination-in-chief has stated that on 08/08/2018 in the morning at about 7-7.30 o’clock in the morning his father was going to plough the field. There was a dispute between them and the accused persons with regard to some land. The accused persons abused his father in filthy language and when his younger son reached to the spot and he asked not to do this despite that Pradeep inflicted blow by way of Spade in the head of his father, whereby his father fell down. This witness in his cross- examination at para 04 has stated that on the date of incident he had gone to Loharachatti and returned at about 11-12 o’clock in the noon at that time his father was taken for treatment to Saraipali Hospital. His wife had informed him about the incident. 20. The Sarpanch of the village Manbodh has been examined as PW-7 he in his examination-in-chief has stated that on the date of incident the daughter-in-law of the deceased had come to call him and informed that the accused perosns have assaulted the deceased and he himself reached to the spot and saw that the deceased was lying unconcious and the blood was oozing out from his head. This witness further stated that the family members of the deceased had taken the deceased to the police station Baloda and he also 12 / 37 went there wherefrom he was taken to Saraipali for treatment and he was further referred to Raipur for treatment and in Raipur during treatment he died. 21. Dr. Shiv Narayan Manjhi (PW-16) in his statement stated that on 21/08/2018 at about 1.45 in the noon the deceased was brought for postmortem. The dead body was identified by the son of the deceased Ravilal Bhoi, Santlal Bhoi and Inspector Anil Upadhyay. On being done the postmortem he found that there was 25 cm long Surgically stitched wound present on the left forehead temple part of his head. The stitches had been removed from the wound and some part of the wound had healed. On opening the skin of the head, a 12 x 10 cm cut wound caused by surgery was present on the left fontanel and temporal bone of the skull. On opening the skull, a wound caused by surgery was present in the upper membrane of the head. On removing the membrane, there was a lacerated wound measuring 8 x 4 cm in the left frontal and parietal lobe of the brain surrounded by softening of the brain. The contusion extended into the lateral ventricle and small blood clots were present in the interior of the brain. He further opined that the cause of death of the deceased was due to cardio- 13 / 37 respiratory failure as a result of head injury and its complications. 22. In view of the statement of the eye-witnesses and the postmortem report, the learned trial Court has rightly held that the appellant has committed murder of the deceased and has rightly convicted the present appellant for the offence punishable under Section 302 IPC. 23. The 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 ? 24. Section 304 Part-II reads as under : “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 14 / 37 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.” 25. The cause of death assigned in the postmortem report of the deceased as already noticed is ‘head injury’. 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 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. 26. 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 : 15 / 37 “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.” 27. 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 16 / 37 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. 17 / 37 28. 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 :- “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 18 / 37 payment of fine, he shall undergo further rigorous imprisonment for one year.” 29. 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 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 19 / 37 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 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 20 / 37 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.” 21 / 37 30. 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. 31. 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 :- “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 22 / 37 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) “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 23 / 37 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”. 32. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and 24 / 37 bodily injury, then same would be a case of Section 304 Part-II of the IPC. 33. 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.” 34. 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
Decision
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: 25 / 37 “60. Few important principles of law discernible from the aforesaid discussion may be summed up thus: (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate: ‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ 26 / 37 and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, 27 / 37 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 28 / 37 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case 29 / 37 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 30 / 37 conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in 31 / 37 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 32 / 37 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 33 / 37 squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 35. In the present case, Kishor Kumar (PW-1) & Shekhar Bhoi (PW-5) are the eyewitnesses, stated that on the date of incident, the appellant assaulted the deceased by way of spade because of which the deceased sustained head injury and died during the treatment. 34 / 37 36. During their cross-examination, the statements of the witnesses remain unrebutted, and there are no inconsistency in their statements that would make them unreliable. 37. Further Dr. Shiv Narayan Manjhi (PW-16), who has conducted the postmortem of the deceased on 21.08.2018. 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 cardio-respiratory failure as a result of head injury and its complications. 38. 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 Kishor Kumar (PW-1) & Shekhar Bhoi (PW-5) it is evident that on the date of incident, while the altercation was going on between his parents and the deceased because the deceased was trying to outrage the modesty of the mother of the appellant and being enraged by that the appellant by way of a spade gave a fatal blow to the deceased, 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 35 / 37 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 and only head injury was sustained by the 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. 39. 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, 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. 40. Now coming to the sentence part, since the appellant- Pradeep Bhoi is in jail since 11/08/2018 and as such has undergone about 06 years and 08 months in this case, we are of the considered opinion that the conviction of the 36 / 37 appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-II of the IPC. 41. 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. 42. The appellant is reported to be in jail. He shall serve out the sentence as modified above. 43. In the result, the instant criminal appeal is allowed in part to the extent indicated herein-above. 44. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 37 / 37 45. 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 ashu