High Court
Facts
CriAppeal-222-2005+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 222 OF 20051.Anil s/o Hanumant Hendale Age : 34 years, Occu : Agril,2.Hanmant s/o Sambhaji Hendale Age : 78 years, Occu : Agril,Both R/o Gugalgaon,Taluka Omerga, District Osmanabad.… AppellantsVersus.The State of Maharashtra… Respondent….WITHCRIMINAL APPLICATION NO. 6095 OF 20161.Chimabai w/o Sambhaji Hendale,Age : 45 years, Occu : Agri.,R/o. Gugalgaon, Taluka Omerga,District Osmanabad.2.Jyoti w/o Ram Wakde,Age : 25 years, Occu : Household,R/o. Gugalgaon, Taluka Omerga,District Osmanabad.3.Ganesh s/o Sambhaji Hendale,Age : 23 years, Occu : Education,R/o. Gugalgaon, Taluka Omerga,District Osmanabad.4.Khulas S/o Sambhaji Hendale,Age : 21 years, Occu : Education,R/o. Gugalgaon, Taluka Omerga,District Osmanabad.… ApplicantsVersus1.Anil S/o Hanumant Hendale,
Legal Reasoning
CriAppeal-222-2005+-17- that by the act he was likely to cause death.(7) The distinction between culpable homicide (Section 299 of theIPC) and murder (Section 300 of the IPC) has always to be carefullyborne in mind while dealing with a charge under Section 302 of theIPC. Under the category of unlawful homicides, both, the cases ofculpable homicide amounting to murder and those not amounting tomurder would fall. Culpable homicide is not murder when the case isbrought within the five exceptions to Section 300 of the IPC. But, eventhough none of the said five exceptions are pleaded or prima facieestablished on the evidence on record, the prosecution must still berequired under the law to bring the case under any of the four clausesof Section 300 of the IPC to sustain the charge of murder. If theprosecution fails to discharge this onus in establishing any one of thefour clauses of Section 300 of the IPC, namely, 1stly to 4thly, thecharge of murder would not be made out and the case may be one ofculpable homicide not amounting to murder as described underSection 299 of the IPC.(8) The court must address itself to the question of mens rea. If Clausethirdly of Section 300 is to be applied, the assailant must intend theparticular injury inflicted on the deceased. This ingredient could rarelybe proved by direct evidence. Inevitably, it is a matter of inference tobe drawn from the proved circumstances of the case. The court mustnecessarily have regard to the nature of the weapon used, part of thebody injured, extent of the injury, degree of force used in causing theinjury, the manner of attack, the circumstances preceding andattendant on the attack. (9) Intention to kill is not the only intention that makes a culpablehomicide a murder. The intention to cause injury or injuries sufficientin the ordinary cause of nature to cause death also makes a culpablehomicide a murder if death has actually been caused and intention tocause such injury or injuries is to be inferred from the act or actsresulting in the injury or injuries. CriAppeal-222-2005+-18- (10) When single injury inflicted by the accused results in the death ofthe victim, no inference, as a general principle, can be drawn that theaccused did not have the intention to cause the death or that particularinjury which resulted in the death of the victim. Whether an accusedhad the required guilty intention or not, is a question of fact which hasto be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intentionto cause death of any person or to cause bodily injury to him and theintended injury is sufficient in the ordinary course of nature to causedeath, then, even if he inflicts a single injury which results in the deathof the victim, the offence squarely falls under Clause thirdly of Section300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guiltyintention or guilty knowledge in a case where only a single injury isinflicted by him and that injury is sufficient in the ordinary course ofnature to cause death, the fact that the act is done withoutpremeditation in a sudden fight or quarrel, or that the circumstancesjustify that the injury was accidental or unintentional, or that he onlyintended a simple injury, would lead to the inference of guiltyknowledge, and the offence would be one under Section 304 Part II ofthe IPC.”13.Here on complete re-appreciation and on recapitulating theevents, there is neither premeditation nor “intention” to kill or even“knowledge” so as to invoke either parts of 304 of the IPC. Incident seems to have taken place when deceased himselfwent towards his father and asserted share. Neither of the appellantswere aware that deceased would come and demand particular side ofthe land by way of his share. Thus, incident has taken place all of a CriAppeal-222-2005+-19- sudden. Apparently, there is no use of any deadly weapon or articlein assault. Appellant no.1 gave kick and appellant no.2 allegedly usedfootwear. Both appellants were not aware that result would turn outto be so fatal. Moreover, after the incident, deceased seems to havewalked back with his wife and children to his house. Hence, for suchreasons neither “intention” nor “knowledge” could be attributed toeither of the appellants as incident had happened on the spur of themoment. In the considered opinion of this Court, this is a case whichwould attract offence under Section 325 of the IPC i.e. voluntarilycausing grievous hurt and case won’t travel beyond it. Therefore,learned trial Court’s findings about offence under Section 304 Part IIto be made out, are required to be interfered with. 14.Here as stated above, the incident has erupted all of a sudden.Deceased was brother of appellant no.1 and son of appellant no.2.Incident in question had taken place on 17-06-2004. Appeal is heardalmost after more than two decades. At the time of conviction,recorded by learned trial Judge, appellant no.1 was shown to be of 34years old whereas appellant no.2 father was shown to be of 78 yearsold. Appeal is preferred in 2005. CriAppeal-222-2005+-20- 15.The Hon’ble Apex Court in Suo-Motu Writ Petition (C) No.3 of2023 in the case of Right to Privacy of adolescents with CriminalAppeal No.1451 of 2024, has made following observations inparagraph 13 as regards to judgment of appellate court and for readyreference, the observations are borrowed and reproduced as under :“13. When a Court deals with an appeal against an order of conviction,the judgment must contain (i) a concise statement of the facts of thecase, (ii) the nature of the evidence adduced by the prosecution andthe defence, if any, (iii) the submissions made by the parties, (iv) theanalysis based on the reappreciation of evidence, and (v) the reasonsfor either confirming the guilt of the accused or for acquitting theaccused. The appellate court must scan through the evidence, bothoral and documentary, and reappreciate it. After reappreciating theevidence, the appellate court must record reasons for either acceptingthe evidence of the prosecution or for disbelieving the evidence of theprosecution. The Court must record reasons for deciding whether thecharges against the accused have been proved. In a given case, if theconviction is confirmed, the Court will have to deal with the legalityand adequacy of the sentence. In such a case, there must be a findingrecorded on the legality and adequacy of the sentence with reasons.The ultimate object of writing a judgment is to ensure that the partiesbefore the Court know why the case is decided in their favour oragainst them. Therefore, judgment must be in a simple language.Then conclusions recorded by the Court in the judgment on legal orfactual issues must be supported by cogent reasons. 16.Thus, appellate Court is not only expected to appreciateevidence on merits but has also to ponder as to whether sentencingpolicy has been adhered to by the learned trial Court and whether CriAppeal-222-2005+-21- sentence awarded is in consonance with the offence proved. Similarview was expressed by Hon’ble Apex Court in the case of Jameel v.State of U.P., (2010) 12 SCC 532 “punishment, held, must beappropriate and proportional to the gravity of the offencecommitted”.Taking this mandate into consideration, in view of abovefactual aspects, sentence part of the judgment of learned trial Court isalso required to be interfered and modified as it is disproportionate tothe act proved by prosecution. Sentence of one year to appellantno.1, who was at the time of incident said to be a young man, forgiving kick on the chest, commensurates with his act. Considering theage of appellant no.2 - father at the time of filing of appeal to be 78years and currently reported to be over 95 years, leniency is requiredto be extended to him and he can be set at liberty for the sentencealready undergone by him. Learned trial Court seems to have only awarded fine ofRs.5,000/- each, which apparently seems to be meager. Apparentlyno distinct compensation has been awarded by the trial Court. TheHon’ble Apex Court in the cases of Jitendra Singh v. State of U.P,(2013) 11 SCC 193 and Ankush Shivaji Gaikwad v. State ofMaharashtra, (2013) 6 SCC, 770 held that, consideration of grant ofcompensation to the victim of crime is mandatory. In view of above CriAppeal-222-2005+-22- discussion, following order is passed : ORDER(I)Criminal Appeal No.222 of 2005 is partly allowed.(II)The conviction awarded to appellant nos.(1) – Anil s/o.Hanumant Hendale and (2) Hanmant s/o. Sambhaji Hendale inSessions Case No.80 of 2004 by the learned Additional SessionsJudge, Omerga on 22-03-2005 for the offence punishable underSection 304 Part-II read with 34 of the Indian Penal Code, standsquashed and set aside.(III) Instead, appellant nos.(1) Anil s/o. Hanumant Hendale and (2)Hanmant s/o. Sambhaji Hendale are hereby convicted forcommission of offence under Section 325 of the Indian PenalCode and Appellant No.1 - Anil s/o. Hanumant Hendale issentenced to suffer rigorous imprisonment for one year with fine ofRs.5,000/-, in default to suffer rigorous imprisonment for one month.Appellant No.2 - Hanmant s/o. Sambhaji Hendale is sentenced tosuffer imprisonment for the period already undergone by him. (VI)Bail bonds of appellant No.2 stand cancelled. (V)It is clarified that rest of the operative order passed by the trialCourt is maintained. (VI)Compensation to the tune of Rs.50,000/- is awarded to the wifeof deceased. The District Legal Services Authority, Osmanabad totake effective steps for arranging payment of compensation to wife ofdeceased i.e. PW4 Chimabai Sambhaji @ Appasaheb Hendle. [ABHAY S. WAGHWASE, J.]SPT
Arguments
CriAppeal-222-2005+-2- Age : 46 years, Occu : Agri.,R/o. Gugalgaon, Taluka Omerga,District Osmanabad.2.Hanmant S/o Sambhaji Hendale,Age : 90 years, Occu : Nil,R/o. Gugalgaon, Taluka Omerga,District Osmanabad.3.The State of Maharashtra… Respondents…..Mr. Pradeep V. Ambade, Advocate for the Appellants.Mrs. Chaitali Chaudhari Kutti, APP for Respondent-State.Mr. T. M. Venjane, Advocate for the Applicants in Appln/6095/ 2016..... CORAM :ABHAY S. WAGHWASE, J. RESERVED ON : 28 NOVEMBER, 2024 PRONOUNCED ON : 17 DECEMBER, 2024 JUDGMENT : 1. In this appeal, there is challenge to the judgment and orderdated 22-03-2005 passed by learned Additional Sessions Judge,Omerga in Sessions Case No.80 of 2004 recording guilt of theappellants for offence under Section 304 Part II read with 34 of theIndian Penal Code (IPC).2.During pendency of appeal, Criminal Application No.6095 of2016 is filed by the informant, who is wife of deceased, and she seekspermission to intervene in the present appeal. Said application isallowed and disposed of. CriAppeal-222-2005+-3- BRIEF FACTS OF THE CASE3. Prosecution was launched against present appellants by wifeof deceased Sambhaji at Omerga Police Station alleging commissionof murder of her husband by present appellants. She reported that on17-06-2004, she, her husband and two sons approached appellantfather-in-law and her husband sought partition and separate share inthe agriculture land. At that time, her brother-in-law was alsopresent. She reported that getting annoyed by the same, brother-in-law Anil gave kicks on the chest of her husband and father-in-lawbeat him with footwear as a result of which her husband complainedof chest pain and was unable to stand and walk and therefore, wastaken to hospital, where he was examined and declared brought dead.Therefore, she approached Omerga Police Station and lodged reportexh.21, on the basis of which, Crime bearing no.83 of 2004 wasregistered and it was investigated by PW8 Shaikh (Dy.S.P.). After gathering sufficient evidence, Investigating Officerchargesheeted appellants for Section 302 read with 34 of the IPC. After appreciating oral and documentary evidence and onhearing both the sides, learned trial Judge, by its judgment and orderdated 22-03-2005 reached to a finding and conclusion that offenceunder Section 304 Part II read with 34 of the IPC and not underSection 302 of the IPC is made out by prosecution and sentenced CriAppeal-222-2005+-4- appellants father and his son to suffer rigorous imprisonment for fiveyears each and to pay fine. Feeling aggrieved by the above judgment and order ofconviction, now exception has been taken by way of instant appeal. SUBMISSIONSOn behalf of appellants :4. Questioning the above judgment, learned Counsel forappellants would submit that there is no convincing evidenceregarding occurrence of the offence. It is submitted that deceasedhimself went alongwith his family to his own father to soughtpartition. That some incident allegedly took place. According tolearned Counsel, there are allegations that brother-in-law gave kickson the chest and father-in-law hit with footwear. That thus, therewas no intention or knowledge to commit above offence. Learnedcounsel submitted that medico legal expert opined death due to“head injury and sub-dural haematoma”. According to learnedcounsel, alleged manner of beating would not result death andneither of the appellants had any intention to kill nor they had anyknowledge that their beating would take away life of deceased. Thatinjuries could be possible on account of fall after leaving the scene ofoccurrence. Learned Counsel submitted that by no stretch of CriAppeal-222-2005+-5- imagination, kick or use of footwear in beating would result intodeath and therefore, accused cannot be connected to death whichtook later point of time. It is pointed out that deceased was taken byinformant to house and given primary treatment and thereafter, lateron he was shifted to hospital. That CA report also does not supportprosecution, rather it supports accused.5.He submitted that only interested witnesses are examined, whohas given exaggerated version and has improvised their stories. Thatdeceased went walking and died later on and as such, it is also not acase of culpable homicide not amounting to murder. That learnedtrial Court has failed to appreciate evidence of PW7 Dr.Thite, medicalexpert, more particularly, answers given by him in cross-examinationand further law has also not been correctly applied and hence, heurged to allow the appeal. On behalf of State :6. In answer to above, learned APP would point out thatinformant wife and her sons, who were accompanying deceased areeye witnesses. Thus, there is direct eye witness account. She pointedout that their testimonies are consistent and they are lending supportto each other. That there was merciless beating to deceased in their CriAppeal-222-2005+-6- presence by his own father and brother. That these witnesses arenarrating about complain of pain in chest. That injury no.3 has beendeclared by Doctor to be fatal. That there are allegations of repeatedhitting on head. That deceased was frequently sitting while returningand was complaining of pain. That he was required to be taken totwo hospitals. Learned APP pointed out that PW7 Dr.Thite, AutopsySurgeon has attributed death due to injury no.3, which was found tobe sufficient in ordinary course of nature to cause death. Thatdeceased died on the day of assault itself and therefore, it is hersubmission that both appellants being solely responsible for the death,learned trial Court has correctly held them guilty and convicted themfor offence under Section 304 Part II of the IPC, which according toher, is justified. Consequently, she supports findings of learned trialCourt. On behalf of Intervenor :7.There is intervention at the hands of informant resisting theappeal and supporting the conviction. Learned counsel for intervenoralso supported the findings, reasons and conclusion reached at by thelearned trial Court and prays to dismiss the appeal. CriAppeal-222-2005+-7- EVIDENCE IN TRIAL COURT8.In support of its case, prosecution has examined in all eightwitnesses. Their role and status and the sum and substance of theirevidence is as under :PW1Niranjan Dhulayya Swami acted as pancha to spot panchanamaExhibit 15.PW2Sanjay Yeshwant Yemgar, pancha to recovery of chappal[footwear] Exhibit 17, did not support prosecution.PW3Sunil Manohar Patil, another pancha to recovery panchanamaExhibit 17, also did not support prosecution.PW4Informant Chimabai Sambhaji @ Appasaheb Hendle - wife ofdeceased, at Exhibit 20, deposed as under :“Sambhaji was my husband. He is no more. He wasdriver. Accused Anil is my brother-in-law. Accused Hanmant ismy father-in-law. Both of them are present in court.2.I and my husband were residing at Gugalgaon separatefrom my father-in-law, as there was conflict between myhusband and my brother-in-law, father-in-law.3.There was land of 9 acres in the name of my father-in-law. I, my husband and my two sons had been to my father-in-law to demand partition and our separate share of 2 acres. It CriAppeal-222-2005+-8- occurred on 17th June, 2004. It is about 10.00 a.m. we hadcame to Gugalgaon from Gugalgaon-wadi. After coming toGugalgaon we went in a square, in a old locality. At that time,accused were there. My husband demanded partition to myfather-in-law and asked to give middle 2 acres of land. On this,my brother-in-law Anil asked by husband “I am going to sellmiddle 2 acres of land, take 2 acres of one side.”Then myhusband insisted for middle 2 acres of land only. On this, Anilinflicted kick blow on chest of my husband. He was wearingchappal at that time. He said, “I will finish you” and started togive more kick blows in the chest of my husband. At that time,my father-in-law also stood up. Took out his chappal andstarted to beat my husband over his head. I was standing atsome distance at that time. I rushed and came across. At thattime, four persons, who were in the square, came andintervened the quarrel. Then I caught hold one hand of myhusband, while my sons have caught another hand of myhusband, and we proceeded towards Gugalgaon-wadi. Duringthe way, my husband was in painful condition. He wasfrequently sitting and getting up, and was saying, “then beat meextremely. I am having extreme chest pain”. “Kadu Anya”.Thereafter, I brought my husband to my house anyhow (basatuthat). I applied Zandu balm to his chest as he had more pains.At that time, my husband was saying, “my chest is painingextremely. I am feeling much problematic what I can do”.4.…… I had carried my husband in the auto rickshaw atOmerga. First of all I brought him to Dr. Ahankari Compounderexamined there and asked us to take him to Govt. hospital. CriAppeal-222-2005+-9- 5.From there we brought him to the hospital of Dr.Shendge. He examined and told, he was no more, and why forhe was brought. He asked us to take him to Govt. Hospital.6.From there, we came to Govt. Hospital, carrying myhusband in the auto rickshaw, keeping my husband in ruralhospital, I went to police station Omerga, and stated the event,to the officer. Police reduced it to writing. I read it, I told to theofficer that the contents were correct and then I signed it. (FIRis shown to the witness) This bears my signature. It is at Exhibit21. PW5Khulas s/o Sambhaji @ Appasaheb Hendle is younger son ofdeceased aged 12 years. After putting general questions to himand getting satisfied as to his competency, his evidence isrecorded at Exhibit 22, relevant portion of which reads asunder:“4.Occurrence has taken place at Gugalgaon’s square. I, mybrother and parents had been to Gugalgaon, as my grandfatherhad told that, he would partition the land. After coming toGugalgaon, we came in square. My father went to mygrandfather. I and my brother accompanied my father. Mymother was standing behind a wall of temple of Lord Maruti.My grandfather and uncle Anil were sitting on platform of flagpole. My father asked to my grandfather “given me middle 2acres of land”. My uncle told, “we will not give that land to you,we are going to sell that land”. My father told “give me that CriAppeal-222-2005+-10- land only”. My father insisted for the same. Then my unclecame and kicked my father on chest, wearing chappal. Then myfather fell down. He started to beat my father. Father attemptedto stand up. Then my grandfather also came. He took outchappal from his foot and beat my father on his head. I startedto pull shirt of my grandfather. At that time, my grandfatherpushed me by means of left hand. Therefore, I fell down.5.Then they both started beat my father extremely. Mymother rushed there. My mother and people assembled there,intervened the quarrel. My grandfather and uncle went fromthere. My father became restless there only. My father kept hispalm on his forehead and stated “I am feeling as if I am beingrotated”. He also said chest is also paining. Thereafter I, mybrother and my mother took my father and proceeded towardsour house. In a way, my sister came across. Thereafter we alltook my father to our house.6.Then my father became more restless. Then my motherapplied zandu balm to the chest of my father. My father becamemore restless. Then mother raised shouts. Then peopleassembled. Then somebody called rickshaw. Rickshaw meansauto rickshaw. I, my brother, my mother, police patil andneighbour Basawraj brought my father to Omerga, and tookhim to the hospital of Dr. Shendge. The Doctor examined myfather and told that my father was dead.PW6Ganesh s/o Sambhaji @ Appasaheb Hendle, another minor sonof deceased, also deposed about the occurrence at Exhibit 23. CriAppeal-222-2005+-11- Para 3 of his examination-in-chief reads as under :“3.My father died on 17th June, 2004. On that day, I was atmy house at Gugalgaonwadi. My mother told me, “we arerequired to go to Gugalgaon, as my grandfather was going topartition”. Then I, my parents and brother Vilas went toGugalgaon. We came to the square of flag point. My uncle andgrandfather were sitting on the platform of the flag pole. I andmy brother Vilas went with my father to the platform of flagpole. My mother was at a distance equal to a distance fromwitness box to door of court hall. (A distance between witnessbox and door of court hall is 18 to 20 ft.) My father asked to mygrandfather, “give my 2 acres of land out of the agriculturalland”. My uncle told “we will sale middle 2 acres of land”. Myfather asked “give me middle 2 acres of land”. My uncle kickedmy father on chest. My father fell down. My grandfather camefrom there, took out chappal from his right foot and beat myfather over his head. I pulled my grandfather catching his shirt.He pushed me. Then my mother rushed there. Some unknownpersons staying there, intervened the quarrel. Then uncle andgrandfather left that place. My father was laying there only.Then I, my brother and mother took my father to our house. Onway, my sister came across. Then we all took my father to ourhouse. After reaching to house, my father became more restless.My mother applied zandu balm to the chest of my father. Whenmy father became more unrest, my mother raised shouts. Thensomebody brought autorickshaw. Then I, my mother, brother,police patil and Baswraj Swami took my father to Omerga. Wetook my father to the hospital of Dr. Shendge. He examined CriAppeal-222-2005+-12- and told that my father is no more.PW7Dr. Dattatraya Sambhajirao Thite is the Medical Officer, whoconducted postmortem on 17-06-2004. On externalexamination, he claims to have noticed three injuries i.e., (1)contusion over chest on left side at infra clavicular region,measuring 7 x 5 cm oblique red colour, (2) abrasion over neckat supra sternal region measuring 1½ x ½ cm oblique redcolour and (3) contusion over scalp on superior aspect,anteriorly measuring 7 x 5 cm oblique red colour. According tothis medical expert, injuries were antemortem and injury no.3to be sufficient to cause death in ordinary course. He deposedthat injury no.3 is possible in case of forceful blow on head bymeans of handmade footwear i.e. chappal having sole of tyreand nails to the sole at front side, and that injury no.1 ispossible in case of kick blow on chest wearing footwear i.e.chappal. He deposed that abrasion on neck is possible in astruggle. That the injury no.3 in column no.17 of post mortemnotes was corresponding to injury no.3 noted in column no.19.PW8PI Mohmad Yunus Ismail Shaikh is the Investigating Officer. ANALYSIS 9.Incident in question seems to have taken place betweendeceased, his father and brother. It is emerging that deceased himselfwent to his father and brother to seek partition and there, when heinsisted middle share of the land, the same was objected by his CriAppeal-222-2005+-13- brother and the episode of brother giving kicks on chest followed byfather using footwear to beat deceased took place. Therefore, incidenthas erupted all of a sudden. PW4 Chimabai, informant (wife ofdeceased and PW5 Khulas and PW6 Ganesh, two minor children ofdeceased are claiming to be eye witnesses. Their testimonies arealready reproduced above. Both wife and children are consistentabout appellant no.1 giving kick and appellant no.2 using footwear tobeat. They are all consistent about deceased complaining of chestpain while they were returning to their house. Though abovewitnesses are cross-examined, their above version about deceasedbeing kicked and being hit with footwear has remained intact. 10.Deceased was initially taken to home by PW4 Chimabai andgiven primary aid and then taken to hospital, where he was declaredto be brought dead. This was followed by performing autopsy.11.PW7 Dr.Thite, Medical Officer, who conducted post mortem hasnoticed above quoted three injuries and this medico legal expert iscategorical that injuries are ante mortem whereas injury no.3 wassufficient to cause death in ordinary course of nature. He alsodeposed that said injury no.3 is possible due to forceful blow on headby hand-made footwear. Injury no.3 is contusion over scalp. CriAppeal-222-2005+-14- 12.Learned trial Judge has, on complete appreciation of evidence,held offence of 304 Part II of the IPC and not 302 of the IPC to bemade out. Very recently the Hon’ble Apex Court in the case ofAnbazhagan v. The State, Represented by the Inspector of Police[2023 LiveLaw (SC) 550] while deciding Criminal Appeal No.2043 of2023 has elucidated the entire judicial precedent on the point ofculpable homicide not amounting to murder i.e. as to when offence of304 Part I or Part II would get attracted and where and when to applyPart I and where to apply Part II. Thus above ruling of Hon’ble ApexCourt is looked upon as an instructive judgment. Paragraph 60 dealswith important principles, which are carved out as regards toapplicability of culpable homicide not amounting to murder. Thesame read thus : “60. Few important principles of law discernible from the aforesaiddiscussion may be summed up thus:- (1) When the court is confronted with the question, what offence theaccused could be said to have committed, the true test is to find outthe intention or knowledge of the accused in doing the act. If theintention 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 asingle 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 hishead killing him instantaneously. Here, there will be no difficulty inholding that the intention of 'B' in shooting 'A' was to kill him, though CriAppeal-222-2005+-15- only single injury was caused. The case would, therefore, be of murderfalling within Clause (1) of Section 300 of the IPC. Taking anotherinstance, 'B' sneaks into the bed room of his enemy 'A' while the latteris asleep on his bed. Taking aim at the left chest of 'A', 'B' forciblyplunges a sword in the left chest of 'A' and runs away. 'A' dies shortlythereafter. The injury to 'A' was found to be sufficient in ordinarycourse of nature to cause death. There may be no difficulty in holdingthat 'B' intentionally inflicted the particular injury found to be causedand that the said injury was objectively sufficient in the ordinarycourse of nature to cause death. This would bring the act of 'B' withinClause (3) of Section 300 of the IPC and render him guilty of theoffence of murder although only single injury was caused.(2) Even when the intention or knowledge of the accused may fallwithin Clauses (1) to (4) of Section 300 of the IPC, the act of theaccused which would otherwise be murder, will be taken out of thepurview of murder, if the accused's case attracts any one of the fiveexceptions enumerated in that section. In the event of the case fallingwithin any of those exceptions, the offence would be culpablehomicide not amounting to murder, falling within Part 1 of Section304 of the IPC, if the case of the accused is such as to fall withinClauses (1) to (3) of Section 300 of the IPC. It would be offence underPart II of Section 304 if the case is such as to fall within Clause (4) ofSection 300 of the IPC. Again, the intention or knowledge of theaccused may be such that only 2nd or 3rd part of Section 299 of theIPC, may be attracted but not any of the clauses of Section 300 of theIPC. In that situation also, the offence would be culpable homicide notamounting to murder under Section 304 of the IPC. It would be anoffence under Part I of that section, if the case fall within 2nd part ofSection 299, while it would be an offence under Part II of Section 304if 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 withinthe first two clauses of cases of culpable homicide as described inSection 299 of the IPC it is punishable under the first part of Section CriAppeal-222-2005+-16- 304. If, however, it falls within the third clause, it is punishable underthe second part of Section 304. In effect, therefore, the first part of thissection would apply when there is ‘guilty intention,’ whereas thesecond 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 wasintended, and objectively that injury was sufficient in the ordinarycourse of nature to cause death, the requirements of Clause 3rdly toSection 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 Section300, 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 whichis covered by the expression 'sufficient in the ordinary course of natureto cause death' but is of a lower degree of likelihood which is generallyspoken of as an injury 'likely to cause death' and the case does not fallunder Clause (2) of Section 300 of the IPC, (iii) when the act is donewith the knowledge that death is likely to ensue but without intentionto cause death or an injury likely to cause death. To put it moresuccinctly, the difference between the two parts of Section 304 of theIPC is that under the first part, the crime of murder is first establishedand the accused is then given the benefit of one of the exceptions toSection 300 of the IPC, while under the second part, the crime ofmurder is never established at all. Therefore, for the purpose ofholding an accused guilty of the offence punishable under the secondpart of Section 304 of the IPC, the accused need not bring his casewithin 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 nothappening, we may say that the thing will 'probably happen'. Inreaching the conclusion, the court has to place itself in the situation ofthe accused and then judge whether the accused had the knowledge