JUDGMENT : Ahmad, C.J. - There is little controversy to this case that on the night in between 12th/13th April, 1964 at about 1 a.m. the Appellant Ugrasen Mukhi who is aged about 50 years, struck two blows with a Khatabahi (solid wooden bar) on the head or his wife, Sambari Dei aged about 45 years, and as a result thereof she died then and there instantaneously. These facts have not been challenged before us by Mrs. Padhi, appearing for the Appellant. Therefore there is no doubt that it was a case of man-slaughter. The doctor (p.w.7) who held the post-mortem examination on the dead body of the deceased on 13-4-1964 at about 1l.30 a.m. found the following two injuries on her person (1) a lacerated wound 1/2" x 1/4" bone deep on the right temporal region with an underlying contusion 2" x 2", and (2) an incised looking '.lacerated wound 2" x 1/4" x bone deep on the right mandible region. In the opinion of the doctor both these injuries were ante-mortem and could be caused by a hard and blunt weapon like the Khatibahi exhibited in the case as M.O.I. Further the doctor has also deposed that death was due to' shock and haemorrhage resulting from external injury No. 1 with its corresponding internal injury. Therefore, his evidence gives full support to the statement of the prosecution witnesses as to the mode and manner of the assault that was inflicted on the deceased. 2. The 12th of April, 1964 was Pana Sankranti day-a day of festivities-and both the husband and wife had taken liquor.. There was a "Chou Nacha" as well organised in the village on that day. The Appellant has five sons. Two of them had been on that night to the Chou dance and the remaining three along with their parents were sleeping in their house. At about 1 a.m. the Appellant asked his wife for some water which she did not give and told him that the house was closed. At his the Appellant assaulted her with the Khatabari as just stated. In the course of that assault one of her minor sons Manglu (p.w.3) beard his mother shrieking "Oh mother". Hearing that he, came running to the open shed where his mother was sleeping and found blood coming out of her mouth and nostrils. At his the Appellant assaulted her with the Khatabari as just stated. In the course of that assault one of her minor sons Manglu (p.w.3) beard his mother shrieking "Oh mother". Hearing that he, came running to the open shed where his mother was sleeping and found blood coming out of her mouth and nostrils. The Appellant was then found standing at a distance of about 15 cubits from the charpoy on which the deceased was sleeping and the claim of this p.w.3 is that on his arrival there, the Appellant admitted to him to have killed his mother. At this he was enraged and gave him a push. He then ran to the place of "Chou Nach" and reported the matter to his brothers. The two brothers immediately rushed to the place. By that time their mother was dead. One of these two sons was examined at the trial as p.w.2. His evidence is that before him, too, the Appellant admitted his guilt. At about 2 a.m., p.w.2 went to the P.S. Gorumohisani where the F.I.R. was, on his statement, recorded by the Officer-in-Charge (p.w.6). 3. It is true that there is no eye-witness in the case to claim that the assault inflicted by the Appellant was made in his presence. It is also true that the extra-judicial confession said to have been made by the Appellant before p.w.2 immediately after the occurrence and the judicial confession made later before p.w.1 on 14.4.1964 (ext. 1 on the record) were both ultimately, at the trial, retracted. But the other materials on the record and more particularly, the evidence of p.w.3 firmly establish the truth of what has been stated by the Appellant in those confessions, both extra-judicial and judicial. The judicial confession was made voluntarily as is quite evident from the evidence of p.w.1. In these circumstances, there is no doubt that the fatal assault on the deceased, as claimed by the prosecution, was made by the Appellant and none else. 4. The judicial confession was made voluntarily as is quite evident from the evidence of p.w.1. In these circumstances, there is no doubt that the fatal assault on the deceased, as claimed by the prosecution, was made by the Appellant and none else. 4. The serious controversy, however, that has been raised before us on the facts of this case is that even conceding that they are all true, they do not establish a case of Section 302, Indian Penal Code but at best one of Part II of Section 304, Indian Penal Code and therefore it has been submitted that the Sessions Court has erred in law in convicting the Appellant u/s 302, Indian Penal Code and sentencing him to life imprisonment thereunder. The circumstances relied on by Mrs. Padhi in support of this part of her submissions are (i) That the relationship between the Appellant and the deceased was all along cordial and not at any time strained. In other words there was no motive for the Appellant to have committed this assault; (ii) That both the husband and wife were at that time in a drunken state; and (iii) That the night was dark and therefore the Appellant could have no idea as to the exact part of the body where he struck her with the wooden bar. 5. The first two circumstances are substantially well established by the prosecution evidence and the third is also admitted, at least to this extent - that the night was dark. None-the-less, the view taken by the Sessions Court is that the injuries having been caused with a heavy weapon on a vital part of the body, the Appellant must be deemed to have known that the injuries were likely to cause death. Therefore it has been held by the learned Sessions Judge that it is a case which is covered by clause 'fourthly' of Section 300, Indian Penal Code and the Appellant is guilty u/s 302, Indian Penal Code. Therefore it has been held by the learned Sessions Judge that it is a case which is covered by clause 'fourthly' of Section 300, Indian Penal Code and the Appellant is guilty u/s 302, Indian Penal Code. Under clause 'fourthly' of Section 300, Indian Penal Code, culpable homicide, unless attracted by any of the exception given therein, is murder if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits the act without any excuse for incurring the risk of causing death or such bodily injury as aforesaid. Thereunder, therefore, the essential requisite necessary to be established is that the degree of knowledge as to the dangerous character of the act should be such as to necessarily lead to the presumption that the assailant had fun consciousness of the probable consequences; for if the dangerous character of the act committed by the accused person is so imminent that it must in all probability cause death or such bodily injury as is likely to cause death, the conclusion is irresistible that the act was done with fun consciousness of its probable consequences; and it is this degree of knowledge which is spoken of in clause "fourthly" of Section 300, Indian Penal Code. But it is not so in the case of the third and last part of Section 299, Indian Penal Code. Therein knowledge required is not of this higher degree but of a degree which creates consciousness only to this extent that by his act is likely to cause death, or in other words a consciousness which is not definite of the probable consequence. Therefore it follows that so long as the circumstances are not so coercive and clear as to irresistibly lead to a presumption of full consciousness of its probable consequence, the offence cannot be said to be covered by clause "fourthly" of Section 300, Indian Penal Code but by the third and last part of Section 299, Indian Penal Code. The third and last part of Section 299, Indian Penal Code lays down that Whoever causes death by doing an act ... The third and last part of Section 299, Indian Penal Code lays down that Whoever causes death by doing an act ... with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide Necessarily therefore in an cases of culpable homicide where its commission depends on the degree of knowledge as to its probable consequences, what has to be carefully looked into in order to decide whether it is a case of murder or culpable homicide not amounting to murder, is the degree of knowledge which the assailant had about the probable consequences of his act. Therefore, in the ultimate analysis it will be a question of fact depending on the circumstances of each case, as to whether the knowledge on the part of the assailant was of a degree which must necessarily lend to a presumption that he was fully conscious of the probable consequences of his act. 6. Now in the present case it is established by evidence, that the Appellant at the time of committing culpable homicide was in a drunken state. Therefore, as provided in Section 86, Indian Penal Code his liability is to be judged ordinarily on the footing as if he had the same knowledge as he would have had if he had not been intoxicated unless there are circumstances on the record to prove that it was an act done by him intentionally. What however has been contended by Mrs. Padhy is that so far as the element of knowledge referred to in Section 86, Indian Penal Code is concerned, that is not a knowledge of that degree which is contemplated by clause 'fourthly', of Section 300, Indian Penal Code. No doubt there is a well established rule of presumption that every person is presumed to intend the nature and probable consequences of his act until the contrary is proved. But that presumption, rebuttable as it is, seems to have been taken by the learned Sessions Judge as rebutted and we think rightly; for in the circumstances of this case the materials that are there on the record go a long way to establish that, in any case, there was no intention on the part of the Appellant in doing what he did. Therefore, the case has to be judged on the footing that though he had no intention in doing it but he had the knowledge as provided in Section 86, Indian Penal Code. 7. This, therefore, takes us to the submission made by Mrs. Padhy as to whether this knowledge was such as to lead necessarily to the conclusion that the Appellant in doing what he did, was fully conscious of the probable consequences of his act. It is in this connection that learned Counsel has drawn our attention to the remaining two other facts referred to above: (i) that there was no motive on the part of the Appellant to kill his wife, and (ii) that the night was dark and therefore the Appellant could have no idea as to which part of the body of the deceased was struck by him with the wooden bar. The submission made by learned Counsel is that in the face of these two circumstances it cannot be safely held that the Appellant in inflicting the blows with the wooden bar had the full consciousness of the fact that it would strike her on any vital part of the body and much less the head. In other words it has been submitted that in the face of these two facts it cannot be conclusively held that the Appellant is inflicting the injuries was fully conscious of the probable consequences of his act or of the fact that the act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. 8. In our opinion, this submission of the learned Counsel is not without substance. It is understandable that as the night was dark the Appellant had no appreciation of the fact that the blow he was inflicting was to fall on the head of the deceased. It may have fallen on that part of the body by accident. Therefore, full consciousness of the probable consequences of his act cannot, in these circumstances, be attributed to him. The position may have been different if the blows had been struck with the wooden bar on the head in light. In that case there would have been little scope for any accident but in the present case it cannot be said so with certainty. The position may have been different if the blows had been struck with the wooden bar on the head in light. In that case there would have been little scope for any accident but in the present case it cannot be said so with certainty. Therefore, the acknowledge that can be held to have been proved in the present case is not what is required under clause 'fourthly' of Section 300. Indian Penal Code. 9. We accordingly hold that the charge as framed against the Appellant has not been proved beyond reasonable doubt. In the result therefore the conviction and sentence imposed on the Appellant u/s 302, Indian Penal Code are set aside, and that conviction is altered to one u/s 304 (Part II), Indian Penal Code. Thereunder he is sentenced to undergo rigorous imprisonment for a period of five years. The appeal is accordingly dismissed subject to the modification of the conviction and sentence as stated above. Das, J. Appeal dismissed; conviction modified. Final Result : Dismissed