Judgment This is a Criminal Appeal filed by the accused-Sellamuthu alias Chinnappan against the judgment dated 15.3.1983 in S.C.No.53 of 1982 on the file of the Court of the learned Additional Sessions Judge, Erode, finding him guilty under Sec.302, I.P.C., convicting him thereunder and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on 10.7.1981 at about 6 p.m., in Cumbanchettikkadu at Sadayapalayamhamlet of Dasanaickenpatti, the accused/appellant herein committed murder by intentionally causing the death of Ponnusamy by cutting him with an aruval on his head, as a result of which he died later in the hospital, and thereby committed an offence punishable under Sec.302, I.P.C. When the charge was read over and explained to the accused/ appellant herein in Tamil by the Lower Court, he pleaded not guilty. 3. On behalf of the prosecution, P.W.1 Chinnasamy, P.W.2 Mani alias Palanisamy, P.W.3, Saraswathi, P.W.4 Dr. Arivazhagan, Medical Officer attached to Gangeyam Government Hospital, P.W.5 Dr. subramaniam Medical Officer attached to Erode Government Hospital P.W.6 P.C. 825, P.W.7 Balakrishnan, P.W.8 Sarangapani, head clerk attached to the Court of the learned Judicial First Class Magistrate, Dharapuram, P.W.9 P.C.352, P.W.10 Assistant Sub Inspector of Police, P.W.11 Padmanaban, Inspector of Police and P.W.12 Vellathurai, Inspector of Police were examined. Arivazhagan, Medical Officer attached to Gangeyam Government Hospital, P.W.5 Dr. subramaniam Medical Officer attached to Erode Government Hospital P.W.6 P.C. 825, P.W.7 Balakrishnan, P.W.8 Sarangapani, head clerk attached to the Court of the learned Judicial First Class Magistrate, Dharapuram, P.W.9 P.C.352, P.W.10 Assistant Sub Inspector of Police, P.W.11 Padmanaban, Inspector of Police and P.W.12 Vellathurai, Inspector of Police were examined. Exs.P1 statement given by P.W.1 dated 11.7.1981 to the Assistant Sub Inspector of Police, P.2 Mahazar for the seizure of M.Os.2 and 3, P.3 observation mahazar, P.4 mahazar for the seizure of M.O.4 series, P.5 wound certificate relating to the injuries found on the deceased dated 10.7.1981, P.6 accident report relating to the deceased Ponnusamy, P.7 requisition for conducting post-mortem, P.8 postmortem certificate, P.9 case-sheet maintained in Erode Government Hospital relating to the deceased Ponnusamy, P.10 admissible portion of the confessional statement given by the accused to the police, P.11 mahazar for the seizure of M.O.1, P.12 requisition for sending the material objects and the blood of the deceased for chemical analysis, P.13 office copy of the letter written by the learned Magistrate for chemical analysis, P.14 report of the chemical analyst, P.15 report of the serologist dated 14.8.1981, P.16 report of the serologist, P.17 memo enclosed along with Ex.P6, P.18, F.I.R. registered under Sec.324, I.P.C., P.19 rough sketch of the place of occurrence, P.20 F.I.R., after Sec.324, I.P.C., had been altered into Sec.302, I.P.C. P.21 intimation of death, P.22 inquest report, and P.23 Form No.95 relating to the seizure of M.O.5 were also filed on behalf of the prosecution M.O.1 aruval. M.O.2 series two pieces of cloth, M.O.3 series three pieces of cloth, M.O.4 series small pieces of chipped ‘Karuvela’ tree, M.O.5 underwear, M.O.6 photograph of the tree and M.O.7 series three photographs showing the surrounding places where the tree is standing, were produced before the lower Court. On behalf of the accused, Ex.D1 portion of the ‘General diary’ of Vellakoil Police station dated 11.7.1981 was filed before the lower Court. 4. The case of the prosecution in brief is as follows: P.W.1 Chinnasamy is residing in Bharathi Nagar at Dasanaickenpatti. The deceased Ponnusamy is the younger brother of P.W.1. The deceased Ponnusamy was living in Cumbanchettikkadu near Sadayapalayam. In Cumbanchettikkadu, the western portion of the land is owned by P.W.1. The eastern portion of the said land is owned by the deceased Ponnusamy. The deceased Ponnusamy is the younger brother of P.W.1. The deceased Ponnusamy was living in Cumbanchettikkadu near Sadayapalayam. In Cumbanchettikkadu, the western portion of the land is owned by P.W.1. The eastern portion of the said land is owned by the deceased Ponnusamy. There is a common ittery-‘common pathway’ running east to west on the southern side of the house of the deceased Ponnusamy. Near the house of the deceased Ponnusamy in the common ittery, there is one ‘Karuvela’ tree with four branches emanating from the bottom of the tree. On the north of Cumbanchettikkadu, the field and garden as Well as the house of P.W.2 Mani alias Palanisamy is situated at a distance of about 150 feet away from Cumbanchettikkadu on the north. The house of the accused/appellant herein is situated on the south-western side of the house of the deceased Ponnusamy, and on the southern side of the common ittery, which runs east to west. The accused/appellant herein owns land adjacent to his house. On the eastern side of the accused, there is a Vettuvankadu garden, and in the said garden, Palanisamy, Muthusamy, Chinnasamy and Nachimuthu had shares. There was enmity and ill-feeling between the accused Sellamuthu alias Chinnappan and the deceased Ponnusamy relating to the goat belonging to the accused having strayed in the land belonging to the deceased and eaten away the crops. 5. On 10.7.1981, at about 6 p.m., P.W.1 Ponnusamy had been going through the ittery which runs east to west for going to his field adjacent to his house. At that time, P.W.2 Mani alias Palanisamy, and one Chinnasamy who are having share in Vettuvankadu garden were coming through the said ittery. All the three of them met each other and were conversing with each other by standing on the ittery at a place 50 feet away from the ‘karuvela tree’. On seeing them, thus talking with each other, the deceased Ponnusamy also came there and joined with them in their conversation. At that time, the accused/ appellant herein came with M.O.1 aruval in his hand and cut the southern branch of the ‘karuvela tree’ by delivering four cuts at the tree. On seeing the accused cutting the tree, the deceased Ponnusamy wept there and asked the accused as to why he is cutting a tree situate in the common ittery. At that time, the accused/ appellant herein came with M.O.1 aruval in his hand and cut the southern branch of the ‘karuvela tree’ by delivering four cuts at the tree. On seeing the accused cutting the tree, the deceased Ponnusamy wept there and asked the accused as to why he is cutting a tree situate in the common ittery. The deceased had also questioned the accused as to why he was also indulging in allowing his goats to stray in his field. The deceased asked the accused as to why he was resorting to such acts. The accused at that time retorted by saying that he would cut only in that manner and the deceased is not the proper person to question him relating to the same. So saying, the accused continued to cut the branch of the tree. The deceased obstructed the accused cutting the tree. At once, the accused delivered a cut forcibly on the head of the deceased with the same aruval, which he was having in his hand at that time. P.Ws.1 and 2 and one Chinnasamy raised alarm and ran towards that place. The accused ran away towards west taking the aruval in his hand. 6. Soon after the receipt of the cut injury on his head, the deceased Ponnusamy became unconscious and fell down on the ground. Blood was gushing from the injury on his head. On hearing the alarm raised by P.Ws.1 and 2 and Chinnasamy, P.W.3 Saraswathy, the wife of the deceased Ponnusamy, who was grazing the goats and one Muthusamy came to that place. Chinnasamy bandaged the injury on the head of the deceased Ponnusamy with M.O.2 series his cloth pieces. Muthusamy went to his house and brought butter-milk and poured it in the mouth of the deceased. Muthusamy bandaged the injuries on the head of the deceased Ponnusamy with M.O.3 series cloth pieces. P.Ws.1 and 2 went on a cycle to Vellakoil, which is at a distance of ten kilometres from that place, and brought a taxi driven by P.W.7 Balakrishnan. It was then 7 p.m. The injured Ponnusamy was taken in that taxi by P.Ws.1 and 2 to Gangeyam Government Hospital; which is at a distance of about 15 kilometres from that place. On that night, at about 9.45 p.m., P.W.4 medical officer attached to Gangeyam Government Hospital gave treatment to the deceased. It was then 7 p.m. The injured Ponnusamy was taken in that taxi by P.Ws.1 and 2 to Gangeyam Government Hospital; which is at a distance of about 15 kilometres from that place. On that night, at about 9.45 p.m., P.W.4 medical officer attached to Gangeyam Government Hospital gave treatment to the deceased. Ex.P5 is the wound certificate issued by him. P.W.4 medical officer sent Ex.P5 accident report to Gangeyam Police Station regarding the deceased Ponnusamy having been brought to the hospital with a cut injury. Since the injury on the head of the deceased Ponnusamy was a serious one, P.W.4 advised the injured being taken to Erode Government Hospital for further treatment. On that night, at 10 p.m., when P.W.9 constable was in-charge of Gangeyam Police Station, Ex.P6 accident report sent from the hospital at Gangeyam was received by him. He started at once and reached Gangeyam hospital at 10.05 p.m. The injured Ponnusamy was not able to talk at that time. Arrangements were being done for taking the injured Ponnusami in a car to Erode Government Hospital. So, P.W.9 could not enquire and obtain a statement from anyone. So, he returned to the police station. Since in Ex.P6 accident report it was mentioned that the injured Ponnusamy belongs to Sadayapalayam and the said place is within Vellakoil Police Station limits, P.W.9 sent Ex.P6 accident report along with Ex.P17 memo, to Vellakoil police station through police constable Krishnan. On 10.7.1981 at about 11 p.m., the injured was brought to Erode Government Hospital and was admitted for further treatment. He was admitted as an in-patient in the said hospital and treatment was given to him. Ex.P9 is the case-sheet relating to the treatment that was given continuously to the injured Ponnusamy. On that night, at about 2.45 a.m., when P.W.10 Assistant Sub Inspector of Police was incharge of Vellakoil police station, he received Ex.P6 accident report and Ex.P17 memo through police constable Krishnan. On the receipt of those documents P.W.10 made an entry in the general diary relating to the same. Since there was no vehicle available to go from Vellakoil to Erode immediately and since the Sub Inspector had gone out in connection with some other duty, on 11.7.1981, after completing urgent duties, at 10.30 a.m., P.W.10 had gone to Erode Government Hospital. He found the injured Ponnusamy lying unconscious. Since there was no vehicle available to go from Vellakoil to Erode immediately and since the Sub Inspector had gone out in connection with some other duty, on 11.7.1981, after completing urgent duties, at 10.30 a.m., P.W.10 had gone to Erode Government Hospital. He found the injured Ponnusamy lying unconscious. So, P.W.1 who is the elder brother of the injured standing by his side at that time was enquired by P.W.10. P.W.10 caused the oral statement given by P.W.1 to be reduced to writing by police constable Ramasamy as per his narration. P.W.10 obtained the signature of P.W.1 in it. Thereafter, P.W.10 Assistant Sub Inspector of police went to Gangeyam and returned at 4 p.m., to Vellakoil police Station. On the basis of Ex.P1, he registered a case against the accused as Crime No.145 of 1981 under Sec.324, I.P.C. Ex.P18 is the first information relating to the same. He sent copies of F.I.R., to the learned Magistrate as well as to his higher authorities. 7. On 11.7.1981 at about 5.15 p.m., P.W.10 went to the place of occurrence and inspected the place of occurrence in the presence of P.W.2 and one Muthusamy Gounder and prepared Ex.P3 observation mahazar. He seized M.O.4 series chips of ‘karuvela’ tree found on the floor near the tree at 7 p.m., under Ex.P4 mahazar. P.W.2 and Muthusamy attested Exs.P3 and P4. On that night at 11.39 p.m., P.W.10 came to Erode government hospital. He seized M.O.2 and M.O.3 series blood stained cloth pieces which were utilised for bandaging the injury on the head of the deceased Ponnusamy under Ex.P2 mahazar attested by P.W.1 and one Nachimuthu. On 17.7.1981 at 9.30. a.m., the injured Ponnusamy died in Erode Government Hospital. Ex.P21 death intimation was sent from the hospital relating to the same. On 17.7.1981 at 4 p.m., when police constable Ravichandran was incharge of Vellakoil police station, he received Ex.P21 death intimation. On the basis of the same, the case which was registered has been altered into one under Sec.302, I.P.C. He prepared Ex.P20 express F.I.R., and sent the same to the learned Magistrate through police constable Rajarathinam and he also sent the copies of the said F.I.R., to his higher authorities. He also gave intimation about the same through V.H.F., to P.W.11 Inspector of Police, Gangeyam. He also gave intimation about the same through V.H.F., to P.W.11 Inspector of Police, Gangeyam. P.W.11 came to Erode Government Hospital at 4.45 p.m., and he held inquest over the dead body of the deceased Ponnusamy in the hospital at 6.45 p.m. P.W.11 examined P.Ws.1 2, 3 and Chinnasamy during inquest. Ex.P22 is the inquest report prepared by him. After completing the inquest, he sent the dead body to P.W.7 through P.W.6 with a requisition for post-mortem. P.W.6 police constable handed over the said requisition to the medical officer at 11 p.m. He guarded the dead body till the post-mortem was completed on the next day. On 18.7.1981 at 7 a.m., in Erode Government Hospital, P.W.5 medical officer conducted autopsy over the dead body of the deceased Ponnusamy and Ex.P8 is the post-mortem certificate issued by him. After the autopsy was completed, P.W.6 seized M.O.5 bloodstained underwear from the dead body and produced the same at the police station. The dead body was given to the relatives of the deceased. Ex.P23 is Form No.95 prepared for the seizure of M.O.5 underwear in the police station. On 18.7.1981 at 7 p.m., P.W.11 Inspector of Police went to the place of occurrence along with a photographer at Vellakoil and caused the place of occurrence photographed by him. M.O.6 series and M.O.7 series are the photographs of the place of occurrence thus taken by the photographer at the instance of P.W.11. 8. On 18.7.1981 at about 12 noon, near Vellakoil bus-stand, the accused was arrested by P.W.11. When the accused was enquired, he gave a voluntary confessional statement, the admissible portion of which is Ex.P10. The accused had stated that if he is taken to the place indicated by him, he would take and produce the aruval. The said confessional statement was attested by P.W.7 Balakrishnan and one Muthuswamy. In pursuance of the said statement, the accused took the Inspector of Police and other witnesses at 2 p.m., to the banks of ‘Vattamalai’ dam and took out M.O.1 aruval which was concealed underneath the grass bundle and produced the same. The Inspector of Police seized the said aruval under Ex.P11 mahazar attested by P.W.7 and one Nachimuthu. On 19.7.1981, the Inspector of Police examined P.W.4 medical officer. On 21.7.1981 he examined P.W.5 medical officer. The Inspector of Police seized the said aruval under Ex.P11 mahazar attested by P.W.7 and one Nachimuthu. On 19.7.1981, the Inspector of Police examined P.W.4 medical officer. On 21.7.1981 he examined P.W.5 medical officer. On 22.7.1981 he gave Ex.P12 requisition to the learned Magistrate for sending the seized material objects and the sample blood of the deceased Ponnusamy kept in the hospital for chemical analysis. On the basis of the same, the learned Magistrate sent those material objects with a letter, the office copy of which is Ex.P13 to the chemical examiner for analysing the same. Ex.P14 is the report of the chemical analyst, and Exs.P15 and P16 are the reports of the serologist received by the Court in this regard. P.W.8 Head Clerk of the Court of the learned Magistrate gave evidence relating to the receipt of those reports. On 1.9.1981, the further investigation was taken by P.W.12 Inspector of Police, Gangeyam, and he verified the investigation already made in this regard and completed the investigation. He filed charge sheet in this case against the accused on 26.1.1982. 9. When the accused/appellant herein was questioned relating to the incriminating circumstances available in the evidence let in by the prosecution under Sec.313, Cr.P.C., he denied the offence. He stated that the prosecution witnesses were deposing falsely against him. He further stated that even about three years prior to the date of occurrence, there was quarrel between the deceased and himself regarding the ittery. According to the accused, the said ittery is within the patta land owned by him, and that in the said ittery, P.W.1, P.W.2 and their men claimed right to pass through, and he had objected to the same. Thereafter, they did not use to go through the said ittery. On 22.7.1981, at about 12 noon, when he was in his garden, police came and took him to the police station. He pleaded ignorance about the assailants of the deceased Ponnusamy or about the time when he was voluntary dealt with. No witness was examined on behalf of the accused/appellant. 10. On 22.7.1981, at about 12 noon, when he was in his garden, police came and took him to the police station. He pleaded ignorance about the assailants of the deceased Ponnusamy or about the time when he was voluntary dealt with. No witness was examined on behalf of the accused/appellant. 10. On the question whether it was the accused/appellant herein who delivered a cut on the head of the deceased Ponnusamy as a result of which the deceased died in the hospital subsequently, the learned Additional Sessions Judge had discussed the evidence in paragraphs 8 to 19 of his judgment and held that it was the accused who had cut on the head of the deceased Ponnusamy with an aruval causing injury as a result of which the deceased Ponnusamy died about a week thereafter in the hospital. The learned Additional Sessions Judge also held that the offence committed by the accused/ appellant is murder punishable under Sec.302 I.P.C., convicted him thereunder and sentenced him to undergo imprisonment for life. Aggrieved by the above decision of the lower Court, the accused Sellamuthu alias Chinnappan has come forward with this criminal appeal. 11. Mr. K. Sengottian, learned counsel for the accused/appellant herein, inter alia, contends that P.W.1 is a chance witness and that he was not able to give convincing reason for his presence at the time and place of occurrence. He also contends that there is delay in giving the F.I.R. He also contended that the lower Court having disbelieved the arrest and recovery, ought to have held that the case has been foisted against the accused/appellant herein and acquitted him. The learned counsel for the accused/appellant also submits that even if the appellant is to be held as the assailant of the deceased Ponnusamy, yet, the offence of murder is not made out in this case, and that the offence can only be held as only punishable under Sec.304, I.P.C. In other words, he submits that the offence alleged against the appellant, if it is to be held as proved, can only be found as ‘culpable homicide, not amounting to murder’. 12. 12. The point for consideration in this appeal is whether the prosecution has proved its case against the accused/appellant that it was he who had cut with an aruval on the head of the deceased Ponnusamy at 6 p.m., on 10.7.1981 and caused injury as a result of which the deceased had died in the hospital subsequently. 13. It admits of no doubt that the deceased Ponnusamy died due to homicidal violence. P.W.4 Dr. Arivazhagan examined the deceased Ponnusamy at 9.45 p.m. on 10.7.1981, who was brought by P.W.2 for report as to certain injuries alleged to have been caused by known person with aruval on the same day at 6 p.m. at Cumbanchettikkadu, and he found the following injuries: (1) an incised deep seated wound on the left parietal region with the termination of craneal content (brain) 2" x 1" x 1/2" with bleeding; and (2) complaining of chest pain and pain all over the body. The deceased reported through signs only. P.W.4 found that the speech was affected.. The deceased could not talk after the occurrence. After immediate treatment, the deceased was sent to Government Hospital, Erode for further treatment. Ex.P15 is the wound certificate issued by P.W.4 relating to the injuries found on the deceased. P.W.4 found only one external injury on the head as noted in Ex.P5. According to him, the said injury could have been caused at that time and in the manner alleged. He further opined that the injury is possible by cutting with an aruval like M.O.1. 14. P.W.5, Dr. Subramaniam, assistant surgeon, Government Hospital, Erode, received the requisition from the Inspector of Police, Gangeyam, on 17.7.1981 at 11.10 p.m., for conducting post-mortem on the body of the deceased Ponnusamy. Ex.P7 is the requisition. He commenced post-mortem at 7 a.m., on 18.7.1981. Rigor mortis was present, and the dead body was not decomposed. He found the following external injuries: "(1) A sutured curved wound left side of scalp 14 c.m., long through which laceration of brain substance is seen. On exploration, there was fracture of parietal bone, through which laceration of brain substance is seen. A portion of brain substance is absent. A bandaged ulcer dorsum of left foot. Lungs, liver, pancreas, spleen and kidneys normal. Intestines empty. Bladder contains 30 cc of urine. Brain: 1200 grams." He preserved the blood sample. On exploration, there was fracture of parietal bone, through which laceration of brain substance is seen. A portion of brain substance is absent. A bandaged ulcer dorsum of left foot. Lungs, liver, pancreas, spleen and kidneys normal. Intestines empty. Bladder contains 30 cc of urine. Brain: 1200 grams." He preserved the blood sample. P.W.5 has opined that the deceased would appear to have died of head injury, and Ex.P8 is the post-mortem certificate issued by him. According to P.W.5, external injury on the head coupled with the internal head injury are sufficient in the ordinary course of nature to cause death. Ex.P9 is the case-sheet relating to Ponnusamy prepared at the time of post-mortem. Meninges is the membrane covering the brain. Before death, the deceased had been treated at Erode Hospital and that is why his wound was sutured. 15. It is relevant in this connection to note that a suggestion has been put in the cross-examination of the eye-witnesses in this case as well as P.Ws.4 and 5 medical officers that the deceased had sustained the injury due to a weapon like axe or pick accidentally failing on his head. P.W.4 has stated in his cross-examination that the injury on the deceased could also be caused by a weapon like axe or pick axe by accidental fall of the said instrument on the head of the deceased. P.W.5 has stated that if a mettalic object fell on the head of the deceased, the brain matter might get lacerated. P.W.5 has specifically stated that the ulcer at the dorsum of the left foot was due to contamination with bacteria. 15-A. The accused/appellant herein is aged 45 years, and the deceased was aged 35 years at the time of the occurrence. Though P.W.3 Saraswathi wife of the deceased Ponnusamy has turned hostile to the prosecution, yet, it is relevant to note that the evidence of P.W.1 and P.W.2 is available as eye-witnesses of the occurrence in this case. Let us scrutinise the evidence of both P.W.1 and P.W.2 to ascertain whether their version relating to the occurrence can be accepted. 16. P.W.1 Chinnasamy is aged 44 years and he is residing at Bharathi Nagar, Dasanaickenpatti. According to him, his younger brother, the deceased Ponnusamy was residing at Cumbanchettikkadu during the time of occurrence and the said place is situated near Sadayapalayam. 16. P.W.1 Chinnasamy is aged 44 years and he is residing at Bharathi Nagar, Dasanaickenpatti. According to him, his younger brother, the deceased Ponnusamy was residing at Cumbanchettikkadu during the time of occurrence and the said place is situated near Sadayapalayam. In that place, P.W.1 owns land on the other side - of Cumbanchettikkadu, while the deceased Ponnusamy was owning the eastern portion of the said field. P.W.1 is also acquainted with the accused/appellant herein. There is a common ittery situate on the southern side of the deceased and it was running east to west. The house of the accused/appellant is situate on the south-western side of the ittery. The accused/appellant owns lands adjacent to his house. On the eastern side of the house of the accused/appellant there is ‘Vettuvankadu’ garden, and in the said garden, one Palanisamy, Muthusamy, Chinnasamy and Nachimuthu are having shares. There was ill-feeling between the deceased and the accused, in that the goat belonging to the deceased. There was also enmity between them due to the same. 17. On 10.7.1981, Friday at about 6 p.m., P.W.1 was proceeding to his field, which is situate near the house of his younger brother-the deceased. While he was thus going, he met Chinnasamy and P.W.2 Palanisamy alias Mani in the ittery. P.W.1 was talking with them by standing on the ittery. During that time, the deceased Ponnusamy came from his house to that place where they were thus conversing with each other. All the four of them were talking for some time at that place. At that time, the accused/appellant came from his house with an aruval in his hand. In the common pathway viz., ittery, there is a ‘karuvela tree’ adjacent to the house of the deceased, it was at a distance of about 50 feets away from the said tree on the east, the four persons viz., P.W.1, P.W.2 and two others were talking with each other, as mentioned above. The said ‘karuvela tree’ has four branches from the ground level. The accused/appellant thus came with an aruval and proceeded to cut one of the branches of the tree viz., southern branch of the tree, and he delivered four cuts on the tree. The said ‘karuvela tree’ has four branches from the ground level. The accused/appellant thus came with an aruval and proceeded to cut one of the branches of the tree viz., southern branch of the tree, and he delivered four cuts on the tree. At once the deceased Ponnusamy proceeded to that place and questioned the accused/ appellant as to why he is cutting a tree which is situate in the common pathway and also questioned as to why the accused has been indulging in allowing his goat to stray in his land. The accused/appellant said that he would cut only in that manner and that the deceased was not the proper person to question him relating to the same and continued cutting the tree. The deceased went and obstructed the appellant from further cutting the tree. At once, the appellant delivered a forcible cut on the head of the deceased Ponnusamy with the said aruval which he was using for cutting the tree at that time. All the four persons who were talking at that place ran towards the place of occurrence. The appellant ran away with the aruval towards west. The deceased became unconscious and fell on the ground. Blood was gushing out from the injury on his head. On hearing the alarm raised by them, P.W.3 Saraswathi wife of the deceased who was then grazing the cattle came running to that place. Chinnasamy took out the towel which he was wearing and bandaged the injury on the head of the injured Ponnusamy with the same. Muthusamy, son of Chennimalai Gounder who is residing near the ittery came to the place of occurrence, went to his house and brought butter-milk and gave the same to the injured Ponnusamy. Since, the injured Ponnusamy was lying giddy, a little butter-milk was poured into his mouth. Muthusamy Gounder had also torn the towel which he was wearing and bandaged the wound on the head of the injured Ponnusamy. It is relevant to note that nothing material has been elicited in the cross-examination of P.W.1 to discredit his evidence. Since, the injured Ponnusamy was lying giddy, a little butter-milk was poured into his mouth. Muthusamy Gounder had also torn the towel which he was wearing and bandaged the wound on the head of the injured Ponnusamy. It is relevant to note that nothing material has been elicited in the cross-examination of P.W.1 to discredit his evidence. As already stated, a suggestion has been made to P.W.1 during the cross-examination that when the stones from the dam were removed and loaded in a lorry, the pick axe which was with the servants working there accidentally fell on the head and foot of the deceased Ponnusamy as a result of which he had sustained injuries and that the injury was not sustained by the deceased in the manner alleged by the prosecution that it was caused by his assailant with an aruval. The above suggestion has been stoutly denied by P.W.1. He has also denied that the injured had been taken to one Dr. Arumugham of Vellakoil for treatment. It is also relevant to note that from P.W.1 during cross-examination, it is also elicited that during the time of occurrence there was enough light available at the place of occurrence and it was not dusk during thattime. Merely on the ground that P.W.1 had not given a complaint to the police station at Vellakoil even when he had gone along with P.W.2 to fetch a taxi, the evidence adduced through P.W.1 cannot be rejected as false. It is relevant to note that both P.W.1 and P.W.2 were more interested in saving the life of the deceased for giving treatment by taking him to the hospital. 18. P.W.2 Mani alias Palanisamy is residing in Kozhikadu garden, which is near the place of occurrence. It is only situate at a distance of about 150 feet away from Cumbanchettikkadu on the north-eastern side of the place of occurrence. He deposes about the occurrence corroborating the evidence of P.W.1, with respect to the relevant particulars relating to the occurrence, he also states that during the time of occurrence, the accused came from his house with an aruval in his hand and proceeded towards east where ‘Karuvela tree’ is situate in the ittery and began to cut the bottom portion of the tree. After he had cut the tree four times, the deceased proceeded towards the accused and questioned him as to why he was cutting a tree standing in the common pathway and also about the accused allowing his goat to graze in the field belonging to the deceased. So asking, the deceased proceeded to the place where the accused was cutting the ‘karuvela tree’. At that time the accused said that he would so cut the tree and that the deceased was not the person to question him relating to the same, and continued cutting the tree by delivering two more cuts on the tree. When the deceased went and obstructed the accused therefor, the accused at once with the same aruval gave a forcible cut on the head of the deceased Ponnusamy. P.W.1 and P.W.2 ran towards that place raising alarm. The accused ran away towards west by taking the aruval with him. Ponnusamy became giddy and fell down on the ground. P.W.2 also deposes about bandaging of the wound and P.W.3 running towards that place, in the similar manner as spoken to by P.W.1 regarding the occurrence. It is relevant to note that nothing material has been elicited in the cross-examination of P.W.2 so as to discredit his evidence relating to the occurrence in this case. Merely on the ground that P.W.2 while accompanying P.W.1 to fetch the taxi had not given the complaint in Vellakoil police station, we cannot reject the evidence of P.W.2, since his presence along with P.W.1 at the place of occurrence is quite possible, especially when both of them belong to the same place where the occurrence took place. It is also elicited from P.W.2 that ‘karuvela tree’ which was cut by the accused is a tree situate in the common ittery. 19. P.W.3, Saraswathi, wife of the deceased, had been treated hostile to the prosecution, and with the permission of the Court, she was cross-examined. In her cross-examination, on behalf of the state, she had stated that there was a panchayat in the village wherein she was offered Rs. 10,000 if she would give a false version relating to the occurrence. 20. It is the prosecution case that there was enmity between the deceased Ponnusamy and the appellant, in that the appellant herein had allowed his goat to stray in the land belonging to the deceased at Cumbanchettikkadu. 10,000 if she would give a false version relating to the occurrence. 20. It is the prosecution case that there was enmity between the deceased Ponnusamy and the appellant, in that the appellant herein had allowed his goat to stray in the land belonging to the deceased at Cumbanchettikkadu. It is contended on behalf of the appellant that there was no intention proved for the occurrence by the prosecution and that the occurrence took place only due to sudden quarrel. In this regard, it is pointed out on behalf of the accused/appellant that the accused had been proceeding with aruval only towards the tree and that he began to cut one of the branches of the tree and that it was only the deceased who had approached the place where the accused had been cutting the tree and began to question him as to why he was cutting the tree and was allowing the goat to stray in his field. It is also pointed out that it was during that point of time, suddenly the accused had cut on the head of the deceased with aruval with which he was cutting the branch of the tree. In other words, it is submitted on behalf of the accused/appellant that there was no premeditation or mens rea proved in this case on the part of the accused/ appellant. Let us discuss about this aspect later. A careful reading of the evidence of both P.W.1 and P.W.2 shows that it is cogent, convincing and trustworthy. Soon after the deceased questioned the accused as to why he was cutting the tree situate in the common ittery and obstructed him for further cutting, the accused gave a cut with the same aruval on the head of the deceased and ran away from that place. The occurrence took place at about 6 p.m., on 10.7.1981. On the very same night, the injured Ponnusamy was admitted in the hospital and he died at 9.30 a.m. on 17.7.1981 in the hospital. P.W.5 medical officer who conducted post-mortem has stated in Ex.P8 postmortem certificate that it was due to cut injury on the head of the deceased Ponnusamy, the deceased Ponnusamy died. Thus, we find that the deceased died only due to the injury on his head after 7 days of the receipt of the injury in the hospital. P.W.5 medical officer who conducted post-mortem has stated in Ex.P8 postmortem certificate that it was due to cut injury on the head of the deceased Ponnusamy, the deceased Ponnusamy died. Thus, we find that the deceased died only due to the injury on his head after 7 days of the receipt of the injury in the hospital. Ex.P9 is the case-sheet relating to the treatment that was given to the deceased Ponnusamy at Erode government Hospital. It is stated in Ex.P9 that during the entire period of treatment, the injured Ponnusamy was in a semi-conscious state and was restless. It was not brought out in the cross-examination of P.W.5 that the deceased might have died due to some other reason than the cut injury inflicted on him by his assailant on his head. It is also not denied on behalf of the accused that the deceased died only due to the head injury sustained by him. This injury, according to both P.W.1 and P.W.2, had been inflicted on the head of the deceased with an aruval by the accused 6 p.m., on 10.7.1981. As already stated, the manner in which the occurrence took place has been comprehensively spoken to by both P.W.1 and P.W.2, and nothing material has been elected in their cross-examination so as to reject their evidence as false. The attempt on the part of the accused/ appellant to raise a doubt relating to the infliction of the injury on the head of the deceased Ponnusamy that it was due to pick axe or axe falling on the head of the deceased Ponnusamy accidentally, cannot be sustained in view of the satisfactory evidence adduced through P.W.1 and P.W.2 by the prosecution, which is also amply corroborated by the medical evidence - P.W.4 and P.W.5 in this case. The appellant herein has also not stated about the alleged accident of an axe or pick axe falling on the head of the deceased Ponnusamy, in Sec.313, Cr.P.C., statement. We are unable to uphold the suggestion regarding the same. It is seen in Ex.P8 post-mortem certificate that there Was a cut injury on the head of the dead body and bandaged ulcer in the left leg of the dead body of the deceased. We are unable to uphold the suggestion regarding the same. It is seen in Ex.P8 post-mortem certificate that there Was a cut injury on the head of the dead body and bandaged ulcer in the left leg of the dead body of the deceased. Perhaps on the basis of these particulars available in Ex.P8 post-mortem certificate, that on behalf of the accused, a suggestion has been put to the eye-witness P.W.1 and the medical officers - P.W.4 and P.W.5 that the axe or pick axe could have fallen on the head of the deceased accidentally. It is also relevant to note that it would be quite impossible that by any material failing both on the head as well as on the foot, one at the same time, can cause injuries in those places. P.W.5 medical officer has stated in his evidence that it is not possible that the death in the present case is due to septicaemia. 21. It is vehemently contended, as already mentioned on behalf of the appellant, that there is inordinate delay in giving the complaint and as such the said delay is fatal to the prosecution case. We are unable to uphold this contention also. The occurrence in this case took place at 6 p.m., on 10.7.1981. Thereafter, P.W.1 and P.W.2 went on a cycle to Vellakoil, which is about 10 kilometres away from the place of occurrence. It is from Vellakoil, they brought a taxi to the place of occurrence, and in that taxi, the deceased Ponnusamy was taken to Gangeyam, both of them accompanying the injured in the said taxi. From Vellakoil to Gangeyam, there is a distance of about 10 miles. From this, it is cear that the distance between the place of occurrence and Gangeyam is about 12 miles. When they reached Gangeyam Government Hospital, it was about 9.45 p.m., and in that hospital the injured was given first-aid. At the same time P.W.4 medical officer sent intimation of accident to. Gangeyam police Station. On receipt of the same, P.W.9 police constable came to Gangeyam hospital at 10.05 p.m. While the police constable was thus approaching Gangeyam Hospital, the injured Ponnusamy was again being taken in a car to Erode hospital, and they were actually starting from Gangeyam to Erode at that time, and the deceased was also in an unconscious state at that time. So, P.W.9 could not record any statement from anyone in those circumstances. The deceased Ponnusamy was taken to Erode. P.W.9 returned to the police station and sent Ex.P6 intimation of accident along with Ex.P17 memo through a constable to Vellakoil police station. It was at 2.45 a.m., during night, P.W.10 Assistant Sub Inspector of Police received the above documents at Vellakoil police station. Since there was no facility of a vehicle, P.W.10 could not reach Erode hospital at once. On the next day, at 8.05 a.m., he started from Vellakoil police station and reached Erode government hospital at 10.30 a.m. Even then the injured was unconscious. So, P.W.1 who was available there was questioned and Ex.P1 statement was obtained by P.W.10 at 12 noon on that day. Thereafter, he proceeded from Erode hospital to Vellakoil police station. On the way, he alighted at Gangeyam and thereafter reached Vellakoil at 4 p.m., on that day. He registered a case against the appellant and prepared Ex.P18 F.I.R. As already mentioned, it is contended on behalf of the appellant that when the occurrence had taken place at 6 p.m., on 10.7.1981, F.I.R. had been given only at 10.30 a.m. on 11.7.1981 on the basis of Ex.P1 and that a case had been registered in the police station only at 4 p.m. As already mentioned, in the instant case before us, we find that there is no inordinate delay in laying the F.I.R. There is no infirmity coming into existence relating to Ex.P1. Under the circumstances, the contention raised on behalf of the appellant herein that there has been delay in laying the F.I.R.m, in this case and that the same is fatal to the prosecution case cannot be upheld. We find that the prosecution has proved its case against the accused that it was he who had delivered the cut injury on the head of the deceased with aruval at 6 p.m., on 10.7.1981 at Cumbanchettikkadu of Sadayapalayam, hamlet of Dasanaickenpatti. 22. Now, let us consider as to the offence committed by the accused/appellant herein. It is relevant to note that the prosecution has failed to prove that there was any previous enmity between the accused/appellant and the deceased. 22. Now, let us consider as to the offence committed by the accused/appellant herein. It is relevant to note that the prosecution has failed to prove that there was any previous enmity between the accused/appellant and the deceased. There is only suggestion to P.W.1 and P.W.2 that the deceased questioned the appellant during the time of the occurrence about the latter allowing his goat to stray and graze in the field of the deceased. In the instant case, there is evidence to show that the appellant had proceeded straight with an aruval from his house to the place where the ‘karuvela tree’ was standing in the common pathway and began to cut one of the branches of the said tree. P.Ws.1 and 2 while talking with two others on the ittery, did see the appellant proceeding towards the said tree and began cutting the branch of the said tree. The appellant herein was proceeding to the said place directly from his house. The accused did not stop for a while or talk with anyone of the four persons including the deceased who were standing at the itteri, while he was thus proceeding straight to the tree which is situate in the ittery. While the appellant was cutting the tree, it was the deceased who proceeded to that place and questioned the propriety of the accused cutting the tree. At that time, the deceased also questioned the appellant as to why he was allowing his goat to stray and graze in his field, it was at that time, without saying anything, it is in evidence, that the appellant resorted to violence by inflicting one cut on the head of the deceased with the same aruval with which he was cutting the branch of tree. On receipt of the cut injury on his head, the deceased fell down on the ground unconscious. The lower Court had held that the offence is nothing short of murder, and as such, found appellant herein guilty under Sec.302, I.P.C., and convicted him thereunder. It is contended on behalf of the appellant that the offence is one coming under the purview of the provision of Sec.304, Part II of the Indian Penal Code since the act committed by the appellant herein can only be held as a culpable homicide not amounting to murder, and not murder. 23. Sec.304, I.P.C., does not create any offence. It is contended on behalf of the appellant that the offence is one coming under the purview of the provision of Sec.304, Part II of the Indian Penal Code since the act committed by the appellant herein can only be held as a culpable homicide not amounting to murder, and not murder. 23. Sec.304, I.P.C., does not create any offence. It provides the punishment for culpable homicide not amounting to murder. It also draws a distinction in the penalty to be inflicted where an intention being present, the act would have amounted to murder but for its falling under one of the exceptions to Sec.300, I.P.C., and the cases in which the crime is culpable homicide not amounting to murder, that is to say where there is knowledge that death will be likely to result but the intention to cause death or bodily injury as is likely to cause death is absent. Sec.304, I.P.C., consists of two parts depending upon the gravity of the offence. The more serious being those depending upon the two types of intention mentioned in the first two clauses of Sec.299, I.P.C., and the less serious not being dependent upon intention but dependent only upon guilty knowledge. Part I of Sec.304, I.P.C., applies where the act by which death is caused is done either with the intention to cause death or with the intention to cause such bodily injury as is likely to cause death. 24. Part I of Sec.304, I.P.C., applies where the act by which death is caused is done either with the intention to cause death or with the intention to cause such bodily injury as is likely to cause death. 24. The clause (1) of Sec.299, I.P.C., is in substance the same as clause (1) of Sec.300, I.P.C. Where the act by which the death is caused is with the intention of causing death, it will be culpable homicide falling under the first limb of Sec.299, I.P.C., and murder under Cl.(1) of Sec.300, I.P.C., and where one or more of the exceptions contained in Sec.300, I.P.C., applied in that case the offence of murder will reduce itself to one of culpable homicide not amounting to murder which is made punishable under first part of Sec.304, I.P.C. Where the act by which the death is caused is with the intention of causing such bodily injury as is likely to cause death (second limb) of Sec.299, I.P.C., the same does not fall under the second or the third limb of Sec.300, I.P.C. Culpable homicide does not amount to murder irrespective of the application of the exceptions in Sec.300, I.P.C., and this type of culpable homicide is also punishable under first part of Sec.304, I.P.C. 25. Where the act by which death is caused does not fall under any of the four clauses of Sec.300, I.P.C., but falls under that second limb of Sec.299, I.P.C., then this type of culpable homicide is also punishable under first part of Sec.304, I.P.C. The second part of Sec.304, I.P.C., will apply when there is no guilty intention but there is guilty knowledge. In other words, the act by which death is caused was done with the knowledge that the act was likely to cause death, but without any intention to cause death or such bodily injury as is likely to cause death, or so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death without any excuse for incurring the risk of causing death. 26. The first part of Sec.300, I.P.C., applies only to cases which would be murder if not falling within one of the exceptions under Sec.300, I.P.C. An offence cannot amount to murder unless it falls within definition of culpable homicide. 26. The first part of Sec.300, I.P.C., applies only to cases which would be murder if not falling within one of the exceptions under Sec.300, I.P.C. An offence cannot amount to murder unless it falls within definition of culpable homicide. It was held in Pyare Lal v. State of M.P., A.I.R. 1977 S.C. 1765, that an offence may amount to culpable homicide without amounting to murder. An offence cannot amount to murder unless it falls within definition of ‘culpable homicide’. Sec.300, I.P.C., merely points out the cases in which culpable homicide Sec.300, I.P.C., merely points out the cases in which culpable homicide is murder. Culpable homicide is not murder if the case falls within any of the exceptions enumerated in Sec.300 I.P.C. The causing of death by doing an act with the intention of causing death is culpable homicide. It is also murder unless the case falls within any of the exceptions in Sec.300 I.P.C. Causing death with the intention of causing bodily injury to any person if the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death falls within the words of Sec.299, I.P.C. If the intention is to cause bodily injury which is likely to cause death the offence committed is culpable homicide. It is also murder unless the case falls within one of the exceptions in Sec.300, Clause (3), I.P.C. 27. Thus it seen that Sec.304, I.P.C., will apply to the following classes of cases: (1) When the case falls within any of the clauses of Sec.300, I.P.C., but not falling within the exceptions enumerated in Sec.300, I.P.C. (2) When the injury caused is not of the higher degree of likelihood to cause death falling under the expression “sufficient in the ordinary course of nature to cause death” but only the lower degree of “likelihood to cause death” falling under the expression “likely to cause death” and which does not fall under Sec.300, I.P.C. (3) That the act is done with the knowledge that death is likely to result, but there is no intention to cause death or injury likely to cause death. In such cases there may be (a) no intention to cause injury, or (b) an intention to cause an injury simple or grievous but not an injury which is “likely to cause death”. The first part of Sec.304, I.P.C., provides for punishment in such cases. In such cases there may be (a) no intention to cause injury, or (b) an intention to cause an injury simple or grievous but not an injury which is “likely to cause death”. The first part of Sec.304, I.P.C., provides for punishment in such cases. The second part of Sec.304, I.P.C. relates to punishment in a case when the act is done with the knowledge that death is likely to result without any intention to cause death being involved. Thus the offence that is made punishable under Sec.304, I.P.C., is culpable homicide not amounting to murder. For the application of the first part, the’ prosecution will have to establish that the act by which death is caused as done with the intention of causing such bodily injury as is likely to cause death. That is to say, that the first part is intended to include cases in which the act of the accused is prima facie culpable homicide not amounting to murder unless it falls under any of the exceptions in Sec.300, I.P.C. The second part of Sec.304, I.P.C., will not apply when there is an intention, to cause bodily injury as is likely to cause death. (Vide State of Gujarat v. Ramanlal Chimanlal, 1969 Crl.L.J. 810 & State v. Ram Khelawan, A.I.R. 1953 All. 555. 28. In Mannam Balaswami v. The State of Andhra Pradesh, (1980)1 S.C.C. 680 : 1980 S.C.C.(Crl.) 313: A.I.R. 1980 S.C. 448, there was some dispute between the accused and his father, the deceased came there and intervened and pushed aside the accused; thereafter the accused went into his room and came with a knife and inflicted two stab injuries, as a result of which the deceased died. It was held that the accused could be convicted under Sec.302, I.P.C., and not under Sec.304, Part I, I.P.C. According to the prosecution, there was some dispute between the deceased and his father and on the date of occurrence, the accused/appellant was quarreling with his father when the deceased came there and intervened in the struggle and pushed aside the accused. Thereafter, the accused went into his room and came with a knife and inflicted two stab injuries one on the chest and the other on the left side of the abdomen of the deceased. As a result of these injuries, the deceased died. Thereafter, the accused went into his room and came with a knife and inflicted two stab injuries one on the chest and the other on the left side of the abdomen of the deceased. As a result of these injuries, the deceased died. The Supreme Court at page 449, in paragraph 2 observed as follows: “...We are Tether surprised how the trial Court took the view that the case of the appellant fell within the purview of Sec.304(1) of I.P.C. There was no question of any sudden and grave provocation at all. In fact the appellant tried to assault the innocent intervenor in the quarrel between him and his father. Secondly, the act of the appellant was a cruel act and he took undue advantage of the situation because instead of keeping quiet he went to the room and brought a knife in order to cause the death of the deceased who was an innocent intervenor. We are, therefore, satisfied that the view taken by the trial Court on the question of law was absolutely wrong and High Court was, therefore, right in setting aside the acquittal of the appellant under Sec.302, I.P.C. On the facts proved in the case, in our opinion, no other view was possible: We, therefore, affirm the judgment of the High Court and dismiss the appeal.” 29. In Mariadasan and others v. State of Tamil Nadu, (1980)3 S.C.C. 68 : 1980 S.C.C.(Crl.) 523: 1980 Crl.L.J. 412: A.I.R. 1980 S.C. 573, the injuries were caused on vital part of the body and they were sufficient to cause death, in the ordinary course of nature. It was held that the offence is murder and Sec.304, Part I or II, of the Indian Penal Code are not attracted. 30. In Kapur Singh v. State of Pepsu, A.I.R. 1956 S.C. 654, it was held that the intention was not to kill the deceased, and the injuries inflicted were not with the intention of murder by the deceased but were such as the accused would have known to be likely to cause the death, Sec.304, I.P.C., first part, would apply. In this case, it is significant that out of all the injuries which were inflicted, none was inflicted on a vital part of the body. In this case, it is significant that out of all the injuries which were inflicted, none was inflicted on a vital part of the body. The Supreme Court observed as follows: “....The motive which actuated the appellant in committing this crime was to wreak his vengeance on the family of Bachan Singh. It appears that the appellant intended to inflict on the arms and legs of the deceased such injuries as would result in the amputation of both the arms and both the legs of the deceased, thus wreaking his vengeance on the deceased for which his son, Bachan Singh, had done to his own son Pritam Singh. The fact that no injury was inflicted on any vital part of the body of the deceased goes to show in the circumstances of this case that the intention of the appellant was not to kill the deceased outright. He inflicted the injuries not with the intention of murdering the deceased, but caused such bodily injuries as, he must have known, would likely cause death having regard to the number and nature of the injuries. We, therefore, feel that, under the circumstances of the case, the proper section under which the appellant should have been convicted was Sec.304(1) and not Sec.302, I.P.C. We, accordingly, alter the conviction of the appellant from that under Sec.302 to one under Sec.304(1), I.P.C. and instead of sentence of death which has been awarded to him which we hereby set aside, we award him the sentence of transportation for life.” 31. In Inder Singh v. State of Pepsu, A.I.R. 1955 S.C. 439, the deceased was strongly built young man and he was struck with Lathi, and survived for 3 weeks after the injury was inflicted. The evidence of doctor was that an injury of that kind was not incurable. It was held that first part of Sec.304, I.P.C., and not Sec.302, I.P.C., is applicable. The accused administered six blows of the lathi on the person of the deceased and the injury No.1 was the fatal injury. The injury No.1 was kept under observation. The deceased however developed slight sumptoms of compression of brain and these symptoms gradually increased and he became absolutely unconscious on 28.3.1952. Extra dural haemorrhage set in and proved fatal. It was held that it was the accused who was responsible for inflicting the injuries which ultimately resulted in the death of the accused. The deceased however developed slight sumptoms of compression of brain and these symptoms gradually increased and he became absolutely unconscious on 28.3.1952. Extra dural haemorrhage set in and proved fatal. It was held that it was the accused who was responsible for inflicting the injuries which ultimately resulted in the death of the accused. Even though the blows were inflicted by the accused on the head of the deceased with force, the lathi not being iron shod and the deceased being a young man and strongly built the accused could not under the circumstances be held to have been actuated with the intention of causing the death of the deceased, nor despite the medical evidence, was the injury sufficient in the ordinary course of nature to cause his death, seeing that he survived for three weeks and seeing on the doctor’s admission that an injury of that kind was not incurable. But the accused no doubt knew that he would be causing such bodily injury as was likely to cause death and the offence committed by him would fall under Sec.304, Part I, I.P.C., and not under Sec.302, I.P.C., the conviction under Sec.302, Penal Code will be converted to that under Sec.304, Part-I, Penal Code and the sentence of transportation for life meted out to the accused, will be converted into one of 10 years rigorous imprisonment. 32. In W. Slaney v. State of M.P., (1956)1 M.L.J.(S.C.) 100: (1955)2 S.C.R. 1140 : A.I.R. 1956 S.C. 116: 1956 S.C.J. 182, the accused who was 22 years old was in love with the sister of the deceased who did not like this intimacy. On the day of occurrence there was a quarrel between the deceased and the accused and the accused was asked to get away from the house of the sister. Shortly afterwards accused returned with his younger brother and called the sister to come out. Instead the deceased came out. There was a heated exchange of words. The accused slapped the deceased on the cheek The accused lifted his fist. The accused snatched a hockey stick from his younger brother and gave one blow on his head with a hockey stick with the result that his skull was fractured. The deceased died in the hospital ten days later. In the opinion of the doctor the injury was likely to cause death. The accused snatched a hockey stick from his younger brother and gave one blow on his head with a hockey stick with the result that his skull was fractured. The deceased died in the hospital ten days later. In the opinion of the doctor the injury was likely to cause death. It was held on the facts and circumstances of the case the offence fell under Sec.304, Part II and not under Sec.302. Admittedly, there was no premeditation and there was a sudden fight. The nature of the injury was such that the accused could not be attributed with the special knowledge required under Sec.300, I.P.C., nor was the injury sufficient in the ordinary course of nature to cause death; and that in the circumstances a sentence of 5 years R.I., would meet the requirements of justice. 33. In Jayaram v. State of T.N., 1976 S.C.C.(Crl.) 293: 1976 Crl.L.J. 1186: A.I.R. 1976 S.C. 1519: (1976)2 S.C.C.788, it was held that it was incumbent on the prosecution to question the medical witness specifically as to whether all or any of the injuries found on the deceased was sufficient to cause death in the ordinary course of nature. But this was not done. Also death resulted after nine or ten days during which the deceased was operated upon in the hospital. So the prosecution had failed to prove beyond all manner of doubt that this injury on the abdomen of the deceased, was sufficient to cause death in the ordinary course of nature. The act of the appellant did not amount to murder, the nature of the offence committed would be culpable homicide not amounting to murder. It was also held that culpable homicide under Sec.299, consists in the doing of an act: (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (c) with the knowledge that the acty is likely to cause death “Intent” and “knowledge” in the ingredients of Sec.299 postulate the existence of positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person. The first clause of Sec.300 reproduces the first part of Sec.299. Therefore, ordinarily, if the case comes within Cl.(a) of Sec.299, it would amount to murder. However, if one of the special exceptions in Sec.300 applies, the offence would be culpable homicide not amounting to murder. If the act of the accused falls under Cl.(b) of Sec.299, that is to say, if the intended bodily injury is likely to cause death as distinguished from one which is sufficient to cause death in the ordinary course of nature, clause Thirdly of Sec.300 would not apply. Exactly this is the situation in the present case. The offence committed by the appellant would therefore fall under the first part of Sec.304, Penal Code. 34. In Gyanedra Kumar v. State of U.P., 1972 M.L.J.(Crl.) 371: 1972 Crl.L.J. 308: A.I.R. 1972 S.C. 502: (1972)1 S.C.J. 601, during the course of a school committee meeting all that B had said was that the father and uncle of the accused were monopolising all seats of authority and they were dishonest. The accused being a near relation may certainly resent such derogatory words addressed to his father and uncle. But they can hardly be said to be grave provocation. It is true that what is grave provocation in one set of society may not be grave provocation in another. But the words uttered by B to the effect that the father and uncle of the accused were dishonest cannot be regarded as grave provocation under the circumstances. In any case the provocation was far from being sudden. The accused went to his house which was about a furlong away and fetched the gun. There was sufficient time for him to cool down. His action was deliberate, it was held that the offence, therefore, is not one under Sec.304, Part I, I.P.C. 35. In any case the provocation was far from being sudden. The accused went to his house which was about a furlong away and fetched the gun. There was sufficient time for him to cool down. His action was deliberate, it was held that the offence, therefore, is not one under Sec.304, Part I, I.P.C. 35. In Ram Swarup v. State of Haryana, (1976)4 S.C.C. 85 : 1976 S.C.C.(Crl.) 524: 1977 Crl.L.J. 252: A.I.R. 1977 S.C. 664, it was held that where death was a result of mutual fight and not out of a premeditated murderous assault, conviction under Sec.302, I.P.C., was improper, and the conviction was altered to that under Sec.304 Part I, I.P.C. The Supreme Court observed as follows: ".......Another important feature which rules out the theory of premeditation is the fact that so far as the appellant is concerned, although he was armed with a deadly weapon like jaili, he took care to assault the deceased only with the lathi portion of it and not with the iron portion of it which would have caused much more severe injury. The High Court has rightly held that in view of the fact that the fight started on the spur of the moment, the accused would have to be guilty only for the individual assault caused by them. According to the prosecution the appellant had caused only one injury on the head out of two injuries. Dip Chand who had caused the other injury was acquitted by the High Court as his plea of alibi was accepted. Taking therefore an overall picture of the entire story it seems to us that this was not a case of premeditated or calculated murder. The deceased who was undoubtedly unarmed was assaulted in the course of the mutual ‘marpit’ When according to the High Court, blows were raining freely by members of both the parties. In these circumstances, therefore, we are satisfied that the established facts in the present case would prove that the appellant could be guilty of an offence under Sec.304, Part 1 of the Indian Penal Code rather than one under Sec.302, I.P.C. In our opinion all the conditions mentioned In Sec.300, Exception 4 have been fulfilled in this case. In these circumstances, therefore, we are satisfied that the established facts in the present case would prove that the appellant could be guilty of an offence under Sec.304, Part 1 of the Indian Penal Code rather than one under Sec.302, I.P.C. In our opinion all the conditions mentioned In Sec.300, Exception 4 have been fulfilled in this case. For these reasons, therefore, we allow the appeal, alter the conviction of the appellant from one under Sec.302, I.P.C. to that under Sec.304, (Part I), I.P.C. and reduce the sentence from life imprisonment to the period already served as we. understand that the appellant has already served about 8 years in jail." 36. In Prandas v. State, A.I.R. 1954 S.C. 36: (1954-55) Crl.L.J. 331, there was sudden altercation between the accused and the deceased ensuing in free fight between two parties in which each party assaulted the other with sticks in their hands. The accused dealt only one blow on the deceased resulting in his death. The accused also received several injuries including injury on head and fracture of bone. It was held that the accused is entitled to benefit of Exception to Sec.300, I.P.C. It was held that the accused is guilty under Sec.304, Part II, I.P.C.; and not under Sec.302, I.P.C. The Supreme Court observed in page 333 - paragraph 10 of the judgment as follows: "10. The question which now arises is whether the High Court was justified in not giving to the appellant, the benefit of exception 4 to Sec.300, Penal Code, inspite of the fact that it found most of the ingredients of that provision to haws been established. In the opinion of the High Court, the case did not come within the exception, because "it cannot be said that the appellant had not taken undue advantage or acted in a cruel or unusual manner". But, beyond this bald statement, there is nothing in the judgment of the High Court to show on what grounds this conclusion is based. According to medical evidence, Prandas had sustained 6 injuries in the course of the occurrence including the fracture of a bone and an injury on the head, and the High Court has not expressly reversed the finding of the Sessions Judge that these injuries were not sustained after Gayaram and his companions had been assaulted. According to medical evidence, Prandas had sustained 6 injuries in the course of the occurrence including the fracture of a bone and an injury on the head, and the High Court has not expressly reversed the finding of the Sessions Judge that these injuries were not sustained after Gayaram and his companions had been assaulted. The High Court has also not expressed its agreement with the finding of the Sessions Judge that Gayaram was not assaulted after he fell on the ground. As will appear from the judgment of the Sessions Judge, several discrepant statements were made by the witnesses as to the number of blows said to have been dealt by Prandas and Agardas speaks of one blow only. In these circumstances, it seems to us that the view of the High Court that the appellant is not entitled to the benefit of exception 4 to Sec.300, Penal Code cannot be sustained, and that being so, the conviction under Sec.302 cannot stand. In our opinion, the case comes within the second part of Sec.3204, which deals with the punishment for culpable homicide not amounting to murder when the act is done with the knowledge that it is likely to cause death or cause such bodily injury as is likely to cause death. The conviction of the appellant is therefore altered to one under Sec.304, and he is sentenced to undergo rigorous imprisonment for five years. His conviction and sentence under Sec.323, Penal Code will stand and the sentence passed by the High Court under that section shall run concurrently with the sentence under Sec.304, Penal Code." 37. In Shankar v. State of M.P., (1979)3 S.C.C. 318 : 1979 S.C.C.(Crl.) 632: A.I.R. 1979 S.C. 1532: 1979 Crl.L.J. 1135, it was observed by the Supreme Court in paragraph 2 of the judgment as follows: "2. The only point which merits consideration is, as to what is the exact nature of the offence committed by the appellant. On the prosecution case itself, the occurrence took place without any premeditation while the deceased along with the accused and others had just finished their meals. In the circumstances, therefore, we do not think that the appellant had any intention of causing the particular injury that he caused to the deceased with a dagger or a part of the body viz. neck. In the circumstances, therefore, we do not think that the appellant had any intention of causing the particular injury that he caused to the deceased with a dagger or a part of the body viz. neck. There can however be no doubt that he must be deemed to have the knowledge that death may be caused by his act. In the circumstances, therefore the case against the appellant squarely falls within the ambit of Sec.304(II) I.P.C. We, therefore, alter the conviction of the appellant from one under Sec.302, to that of under Sec.304(II) and reduce the sentence from life imprisonment to seven years R.I. With this modification, the appeal is dismissed." 38. In Jaspal Singh v. State of Punjab, 1979 Crl.L.J. 1386: 1979 S.C.C.(Crl.) 920: A.I.R. 1979 S.C. 1708, the deceased was run over by a cart driven by the accused and the accused took steps to pay the medical expenses, and it was held that Part II of Sec.304, I.P.C., is applicable. The Supreme Court observed as follows: "Thus, the cumulative effect of the circumstances clearly shows that the deceased was actually put on the ground and then run over by cart driven by Jaspal Singh. At the same time the conduct of Jaspal Singh in meeting the witnesses in the hospital and taking steps to bear’ the expenses of the treatment of the deceased clearly shows that they had no clear intention to cause the murder of the deceased. In the circumstances, therefore, the Sessions Judge was right in convicting the appellants not under Sec.302, but under Sec.304, Part II of the Indian Penal Code. Apart from the argument that the High Court made no mention of the evidence of P.Ws.5, 6 and 11 which proves the oral dying declaration and the extra-judicial confession made by Jaspal Singh. Mr. Anthony, learned counsel for the appellant had no other comments to make against the witnesses. For these reasons, therefore, on a careful scrutiny of the evidence and the circumstances of the case we find ourselves in complete agreement with the view taken by the Sessions Judge and the High Court. The appeals are without any force and are accordingly dismissed." 39. For these reasons, therefore, on a careful scrutiny of the evidence and the circumstances of the case we find ourselves in complete agreement with the view taken by the Sessions Judge and the High Court. The appeals are without any force and are accordingly dismissed." 39. In Molu v. State of Haryana, (1976)4 S.C.C. 362 : 1976 S.C.C.(Crl.) 636: A.I.R. 1976 S.C. 2499, it was held that the direct evidence regarding the assault is worthy of credence and can be believed, and the question of motive becomes more or less academic. Some times, however, the motive is clear and can be proved and sometimes however the motive shrouded in’ mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is credit worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. It was also held that there is no legal evidence that the accused intended to cause the murder of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. As all the accused appear to have acted together and under a preconceived plan which developed at the spot and which is clear from the fact that they suddenly pounced on the deceased and went away together they must be deemed to have possessed a common intention to assault the deceased with the knowledge that the injuries caused by them were likely to cause the death of the deceased. In these circumstances, the accused have committed an offence under Sec.304, Part II, of the Indian Penal Code and not one under Sec.302, I.P.C. The Supreme Court further observed that it is well settled that the mere fact that out of many accused some are acquitted is not sufficient to entitle the rejection of the entire prosecution case. In these circumstances, the accused have committed an offence under Sec.304, Part II, of the Indian Penal Code and not one under Sec.302, I.P.C. The Supreme Court further observed that it is well settled that the mere fact that out of many accused some are acquitted is not sufficient to entitle the rejection of the entire prosecution case. On the other hand, the Supreme Court has pointed out on times without number and particularly in the cases Abdul Gani v. State of Madhya Pradesh, A.I.R. 1954 S.C. 31: (1954-55) Crl.L.J. 323, Kanbi Nanji Virji v. State of Gujarat, (1970)3 S.C.C. 103 : 1970 S.C.C.(Crl.) 520: 1970 Crl.L.J. 363: A.I.R. 1970 S.C. 219 and Dharam Das v. State of U.P., (1973)2 S.C.C. 216 : 1973 S.C.C.(Crl.) 765: A.I.R. 1973 S.C. 2195, that the Court should make every effort to disengage the truth from the falsehood and to sift the grain from the chaff rather than take the easy course of rejecting the entire prosecution case merely because there are some embellishments. In the abovesaid decision, the Supreme Court observed as follows: “The next point that falls for consideration is what is the nature of the offence that the accused have committed on the evidence led before the trial Court. To begin with, as pointed out above, multiple injuries were received by the deceased persons which were caused by blunt weapons like lathis and are of minor character. Furthermore, the injuries are not on any vital parts of the body and even those which are on the scalp portion appear to be very superficial. There is nothing to show that the accused intended to cause the deliberate murder of the two deceased persons. There is no evidence to show that any of the accused ordered the killing of the deceased persons or incited or in any way expressed a desire to kill the deceased persons at the spot. In these circumstances we are satisfied that there is no legal evidence in this case that the accused intended to cause the murder of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. As all the accused appear to have acted together and under a preconceived plan which developed at the spot and which is clear from the fact that they suddenly pounced on the deceased and went away together they must be deemed to have possessed a common intention to assault the deceased with the knowledge that the injuries caused by them were likely to cause the death of the deceased. In these circumstances, the accused have committed an offence under Sec.304, Part II of the Indian Penal Code and not one under Sec.302, I.P.C. We would, therefore, allow this appeal only to this extent that the conviction of the appellants is altered from that under Sec.302 to that under Sec.304, Part II, I.P.C., and their sentences reduced from life imprisonment to seven years’ rigorous imprisonment while maintaining the fine. The conviction and concurrent sentence passed by the High Court under Secs.325/34, I.P.C., is maintained.” 40. In Om Prakash v. State of Haryana, 1980 S.C.C.(Supp.) 91: 1980 S.C.C.(Crl.) 694: 1981 Crl.L.J. 30: A.I.R. 1981 S.C. 642, an occurrence took place, which ended fatally and the appellant was the aggressor. The Supreme Court observed as follows: “We are not called upon to go into the details, having regard to the general circumstances present in this case. It is true that an occurrence took place, which ended fatally and the appellant was the aggressor. The short question is whether the offence under Sec.302 or under Sec.304, Part II is made out. Undoubtedly, there was a quarrel, whether it amounts to a fight within the meaning of Sec.302 or not. Incensed by the situation the appellant gave a blow with a stick. It fell on a vulnerable part of the victim’s body, resulting his death. It is a marginal case where the Sessions Court held that the evidence was one under Sec.304, I.P.C., and awarded a sentence of five and a half years’ rigorous imprisonment. The High Court took a contrary view and convicted the appellant under Sec.302, I.P.C. with the inevitable sentence of life imprisonment. It is a marginal case where the Sessions Court held that the evidence was one under Sec.304, I.P.C., and awarded a sentence of five and a half years’ rigorous imprisonment. The High Court took a contrary view and convicted the appellant under Sec.302, I.P.C. with the inevitable sentence of life imprisonment. We are inclined to take a more lenient view on the facts and hold that the appellant was guilty under Sec.304, Part II I.P.C. In the circumstances, we cannot overlook the fact that the blow was on a vital part and that a life has been lost. Therefore, we sentence the appellant to rigorous imprisonment for seven years. It is. represented by counsel for the appellant that the convict may be kept in the District Jail, Gurgaon so that his wife and child may be able to meet him occasionally. We think that in such cases humane considerations are important and family ties must be preserved instead of dehumanising attitudes and distances being inflicted. We are sure the authorities will take this compassionate view and keep him in the District Jail, Gurgaon”. 41. In Jayappa Dattu v. State of Maharashtra, (1982)2 S.C.C. 453 : 1982 S.C.C.(Crl.) 476: 1982 Crl.L.J. 1394: A.I.R. 1982 S.C. 1183, where the injuries were clearly of a nature likely to cause death, even if the nature of the injuries was such that they were not sufficient in the ordinary course of nature to cause death, it was held that they could certainly be said to be the result of the acts so imminently dangerous that it must in all probability, cause death or such bodily injury as was likely to cause death, so as to fall within the fourth limb of Sec.300, I.P.C. The Supreme Court observed in the judgment as follows: "The evidence of the doctor who carried out the autopsy on the dead body of Mansur revealed two contused lacerated wounds over the right frontal and fronto parietal region of the skull, each measuring 1-1/2" x 1/2" x bone deep, one contused lacerated wound over the right eyebrow region measuring 1" x1/4" x bone deep, two contused lacerated wounds over the right leg measuring 2” x 1/2" x bone deep and 1/2” x 1/2" x bone deep and innumerable abrasions all over the body. The two contused, lacerated wounds over the right leg resulted in fractures of the radius and ulna, and the tibia and the fibula, respectively. There was haematoma all over the scalp. There was also haematoma all over the brain over the frontal, temporal and occipital regions. The doctor opined that the deceased died as a result of shock and haemorrhage due to sub-dural haematoma and fractures of the bones. He further opined that the injuries were not sufficient to cause death in the ordinary course of nature, even cumulatively. He stated that the haematoma all over under the scalp might have been due to the contuses, lacerated wounds over the right frontal and fronto parietal regions. In cross-examination, the doctor stated every head injury need not result in haematoma. He admitted that the post-mortem examination made by him showed that the deceased had consumed alcohol. He stated that the consumption of alcohol results in dilation of blood vessels and that if a person in a drunken condition sustained head injury, haematoma might occur because of dilation of blood vessels. Thus the evidence of the doctor shows that there were three contused lacerated wounds on the head, two of which were on the frontal and fronto parietal region of the skull. There was extensive subdural haematoma and, having regard to the location of the wounds, haematoma was quite obviously due to the head injuries. All the bones of the right leg were broken. The opinion of the doctor was that death was due to shock and haemorrhage due to haematoma and the fractures. We do not see how it makes any difference that Mansur had consumed alcohol. That consumption of alcohol leads to dilation of blood vessels cannot undo the circumstances that the haematoma in the present case was obviously because of the injuries to the head. Even accepting the opinion of the doctor that the injuries were not sufficient in the ordinary course of nature to cause death, we are unable to see how the offence would only be under Sec.325, I.P.C. The injuries were clearly of a nature likely to cause death. Even accepting the opinion of the doctor that the injuries were not sufficient in the ordinary course of nature to cause death, we are unable to see how the offence would only be under Sec.325, I.P.C. The injuries were clearly of a nature likely to cause death. Even if the nature of the injuries was such that they were not sufficient in the ordinary course of nature to cause death, they could certainly be said to be the result of acts so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, so as to call within the fourth limb of Sec.300. We are not here concerned with the question whether the acts of the accused resulting in the injuries received by the deceased fall within the fourth limb of Sec.300 as there is no appeal by the State to this Court. It can, however, be said, without any hesitation, that the acts of the appellants resulting in the injuries to the deceased were done with the knowledge that they would cause such bodily injury as was likely to cause death. The High Court was not in error in convicting the appellants under Sec.304, Part II read with Sec.34. We do not consider the sentences excessive. The appeal is, therefore, dismissed.” 42. It is well recognised principle of law that in cases of death under grave and sudden provocation such as illicit intercourse with wife or sudden quarrel, punishments should not be excessive. At the same time it should not be very lenient as to encourage commission of homicide. 43. As already mentioned, the second part of Sec.304, I.P.C., no doubt speaks of knowledge and does not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. If such bodily injury as is likely to cause death is intentionally caused and results in the death of the victim the case would fall under Part-I, and not under Part-II of Sec.304, I.P.C., stated differently. Part.II of Sec.304, I.P.C., comes into play when death is caused by doing an act with knowledge that it is likely to cause death and when such act is the infliction of bodily injury; the infliction must not be intentional. Part.II of Sec.304, I.P.C., comes into play when death is caused by doing an act with knowledge that it is likely to cause death and when such act is the infliction of bodily injury; the infliction must not be intentional. A person who intentionally causes bodily injury with knowledge that such act is likely to cause death must necessarily be a person who does an act with intent to cause bodily injury likely to result in death. 44. In Chand v. State of Uttar Pradesh, 1972 M.L.J. (Crl.) 605: A.I.R. 1972 S.C. 955: (1972)2 S.C.J. 443, in view of the finding of the High Court that when the accused wielded their lathis on the head of the deceased they must have had knowledge that they were causing such bodily injuries to him as were likely to cause death and that they do not seem to have intended to cause death of anyone, the Supreme Court held that it is apparent that the High Court was in error in convicting them under Sec.304, Part-I, I.P.C., instead of under Sec.304, Part-II, I.P.C., whereunder whoever commits culpable homicide not amounting to murder without an intention to cause death, is punishable with imprisonment of either description for a term which may extend to ten years, or with fine, or with both. 45. In Harden Singh v. State of Punjab, 1975 M.L.J.(Crl.) 369: (1975)3 S.C.C. 3731: (1975)1 S.C.J. 459: A.I.R. 1975 S.C. 179, on the 21st February, 1968, at about 7 p.m., Hardev Singh was armed with a Kirpan. Harjinder Singh had a TAKWA, while Piara Singh carried a SOTA. Harjinder Singh gave a TAKWA blow on the head of the Kewal Singh. The latter fell down. In the meantime mother of Kewal Singh, Smt. Tej Kaur reached there from her house which close-by. She lay herself on Kewal Singh in order to save him. Hardev Singh inflicted a KIRPAN blow on the head of Tej Kaur. Tej Kaur died as a result of the head injury received by her with Kirpan of appellant Hardev Singh. The injury in the opinion of the doctor was sufficient in the ordinary course of nature to cause her death. Hardev Singh inflicted a KIRPAN blow on the head of Tej Kaur. Tej Kaur died as a result of the head injury received by her with Kirpan of appellant Hardev Singh. The injury in the opinion of the doctor was sufficient in the ordinary course of nature to cause her death. It was held that the tilting balance of facts and circumstances of the case was such that it was not safe to maintain the conviction of appellant Hardev Singh under Sec.302, I.P.C. The common intention of the accused party was to assault Kewal Singh. Only simple injuries were caused to him by appellant Harjinder Singh and accused Piara Singh. It indicated that the accused party had not intended either to kill Kewal Singh or to cause any grievous hurt to him. Therefore, on the facts and the circumstances of the case, it was held that the appellant Hardev Singh did not intend to cause the fatal injury to Tej Kaur but when he struck her with a kirpan he must have known that the deceased then being in bent position, the blow could land on any vital part of her body and that it was likely to result in her death. The appellant Hardev Singh was convicted under Sec.304, Part-I, I.P.C. The Supreme Court observed as follows: "...The tests laid down by this Court in the case of Virsa Singh v. The State of Punjab, 1958 M.L.J.(Crl.) 579: 1958 S.C.J. 772: 1958 Crl.L.J. 818: A.I.R. 1958 S.C. 465: 1958 S.C.R. 1495, have often been adopted as the guideline to find out whether an author or an injury which on objective test has been found to be sufficient in the ordinary course of nature to cause the death of the victim had intended to cause that particular injury which caused the death. The question in such a case which falls for determination is whether the causing of the fatal injury was accidental or unintentional or whether some other kind of injury was intended to be inflicted by the assailant. Ordinarily and generally once the existence of the injury is proved, the intention to cause it will be presumed unless the evidence of the circumstances warrant an opposite conclusion. Ordinarily and generally once the existence of the injury is proved, the intention to cause it will be presumed unless the evidence of the circumstances warrant an opposite conclusion. On facts similar to the present once it was held in the case of Harjinder Singh v. Delhi Administration, 1968 M.L.J.(Crl.) 395: (1968)2 S.C.J. 190:A.I.R. 1968 S.C. 867: (1968)2 S.C.R. 246 , by this Court that it could not be said with any definiteness that appellant Harjinder Singh of that case had aimed the blow at the particular part of the body of the victim knowing that it would cut the artery. In the circumstances of that case it was held that it was not proved that it was the intention of the appellant to inflict the particular injury on the particular place. The facts of the instant case are on such a border line that relying upon the decision of this Court in Harjinder Singh’s case, 1968 M.L.J. (Crl.) 395: A.I.R. 1968 S.C. 867, the trial Court convicted appellant Hardev Singh under Sec.304, Part-I, while distinguishing the same decision the High Court changed his conviction to one under Sec.302. In our opinion the tilting balance of the facts and circumstances of this case is such that it is not safe to maintain the conviction of appellant Hardev Singh under Sec.302 of the Penal Code. The common intention of the accused party was to assault Kewal Singh. Only simple injuries were caused to him by appellant Harjinder Singh and accused Piara Singh. It indicates that the accused party had not intended either to kill Kewal Singh or to cause any grievous hurt to him. It does not appear from the prosecution evidence that Kewal Singh escaped getting severe injuries due to anything intervening accidentally between the assailants and the victim. Tej Kaur came suddenly when Kewal Singh was being assaulted. She lay herself on her son. Darkness must have fallen, though it may not be pitch dark, at about 7.00 p.m., in the month of February. It is not clear from the evidence of the prosecution that appellant Hardev Singh aimed his kirpan blow at the head of Tej Kaur. It may well be that Hardev Singh wanted to give a kirpan blow to Tej Kaur as she lay herself upon Kewal Singh but not necessarily on her head. It is not clear from the evidence of the prosecution that appellant Hardev Singh aimed his kirpan blow at the head of Tej Kaur. It may well be that Hardev Singh wanted to give a kirpan blow to Tej Kaur as she lay herself upon Kewal Singh but not necessarily on her head. Falling of the Kirpan accidentally on the head of Tej Kaur cannot be ruled out. In our opinion, therefore, on the facts and in the circumstances of this case also as in the case of Harjinder Singh, 1968 M.L.J. (Crl.) 395: A.I.R. 1968 S.C. 867, it should be held that the appellant Hardev Singh did not intend to cause the fatal injury to Tej Kaur but when he struck her with a kirpan he must have known that the deceased then being in bent position the blow could lend on any vital part of her body and that it was likely to result in her death. The view of the High Court that even the person not committing the particular crime could be held guilty of that crime with the aid of Sec.34 of the Penal Code if the commission of the Act was such as could be shown to be furtherance of the common intention not necessarily intended by every one of the participants, is not correct. The common intention must be to commit the particular crime although the actual crime may be committed by any one sharing the common intention. Then only others can be held to be guilty. In this case assault on Tej Kaur by appellant Hardev Singh was his individual act. There was no common intention to commit the murder or cause grievous hurt to anybody. Circumstances are completely lacking to lead us to any such inference. For the reasons stated above, we allow the appeals in part, set aside the conviction and sentence of appellant Hardev Singh under Sec.302 of the Penal Code, convict him under Sec.304, Part and sentence him to undergo rigorous imprisonment for 7 years. As recently held by a Bench of this Court in Boucher Piere Andre v. The Superintendent,Central Jail, Tihar, New Delhi, (1975)1 S.C.C. 192 : 1975 S.C.C.(Crl.) 70: 1975 Crl.L.J. 182: A.I.R. 1975 S.C. 164, to which one of us (Bhagwati, J.) was a party, the appellant Hardev Singh would be entitled to get a set off. As recently held by a Bench of this Court in Boucher Piere Andre v. The Superintendent,Central Jail, Tihar, New Delhi, (1975)1 S.C.C. 192 : 1975 S.C.C.(Crl.) 70: 1975 Crl.L.J. 182: A.I.R. 1975 S.C. 164, to which one of us (Bhagwati, J.) was a party, the appellant Hardev Singh would be entitled to get a set off. or adjustment under Sec.428 of the Criminal Procedure Code, 1973, of the period if any, during which remained in jail as an undertrial prisoner. His conviction recorded under Secs.324 and 323 read with Sec.34 is maintained; the direction that the sentences under those counts shall run concurrently is also maintained. The conviction and sentence of appellant Harjinder Singh under Sec.326 read with Sec.34 of the Code are set aside. His convictions as recorded by the trial Court are maintained. But taking into consideration all the facts and circumstances of the case we reduce his sentence to the period already undergone either on conviction or as an undertrial prisoner.“ 46. In State of Himachal Pradesh v. Wazir Chand, (1978)1 S.C.C. 130 : 1978 S.C.C.(Crl.) 58: 1978 Crl.L.J. 347: (1978)1 S.C.W.R. 501: A.I.R. 1978 S.C. 315, the Supreme Court held that injury No.1 was fatal in the ordinary course of nature and accused No.1 had wielded dangerous weapon and caused an injury on the vital part of the body and the blows were repeated inasmuch as four injuries were caused, the offence but for the application of Exception 4, would be one under Sec.302, I.P.C., but as Exception 4 is attracted, it would be reduced to Sec.304, Part I, I.P.C., and the conviction of accused No.1 would be modified to one under Sec.304, Part I, I.P.C. The Supreme Court observed as follows: ”After having correctly concluded that a mutual fight took place, the High Court came to the conclusion that the accused had no intention to commit the murder and convicted him for an offence under Sec.304, Part II I.P.C. it is difficult for us to subscribe to this view. Accused No.1 has wielded a weapon like a knife indisputably a dangerous weapon. He has caused four injuries one of which is necessarily fatal. He has received six abrasions. Accused No.1 has wielded a weapon like a knife indisputably a dangerous weapon. He has caused four injuries one of which is necessarily fatal. He has received six abrasions. The proper legal and reasonable inference to be drawn from all the circumstance is that because of the earlier incident in which Om Prakash alias Pashi and Joginder Singh were involved something like a challenge was taken up and Parshottam Lal definitely accompanied by some others, may presumably Om Prakash alias Pashi came over to the House of accused No.1 and there was a mutual free fight between the parties. Accused No.1 had returned to his house probably a little before the incident took place. Therefore, when Parshottam Lal appeared there was a sudden fight upon a sudden quarrel flowing from the earlier incident and in this both sides attacked each other. All the ingredients to attract exception 4 to Sec.300, I.P.C., are established. There is no premeditation. Parshottam Lal left the theatre and came over there. There was a fight that ensued in a sudden quarrel. The previous incident between Om Prakash alias Pashi and accused No.3 Joginder was the cause and in that heat of passion and sudden quarrel parties grappled and attacked each other and it cannot be said in the circumstances that any undue advantage was taken. It may be recalled here that Parshottam Lal was a healthy well built fellow and if accused No.1 alone was to attack him he could not have escaped with few abrasions. Therefore, all the ingredients to attract exception 4 of Sec.300, I.P.C., are fully established. As injury No.1 was fatal in the ordinary course of nature and accused No.1 had wielded a dangerous weapon and caused an injury on the vital part of the body and the blows were repeated inasmuch as four injuries were caused, the offence, but for the application of exception 4 would be one under Sec.302, I.P.C., but as exception 4 is attracted, it would be reduced to Sec.304, Part-I, I.P.C., and the conviction of accused No.1 would be modified to one under Sec.304,‘Part-I, I.P.C., maintaining the sentence as awarded by the High Court as in our opinion that is adequate. Accordingly, Criminal Appeal No.59 of 1975 preferred by the State of Himachal Pradesh against original accused Nos.2 and 3 is dismissed and it is partly allowed as far as accused No.1 is concerned in that his conviction is modified to one under Sec.304, Part-I, I.P.C., maintaining the sentence of 10 years rigorous imprisonment as awarded by the High Court. Criminal Appeal No.369 of 1969 preferred by the Original accused No.1 is dismissed.“ 47. In re Divan Saheb, 1964 M.L.J. (Crl.) 157: A.I.R. 1964 Mad. 480: (1964)1 M.L.J. 188, that an accused an exoercist or magician, was under the genuine impression that the woman was possessed by an evil spirit, and he could exercise her effectively by means of the prolonged ritual. In pursuance of such an impression, quantities of stuff were purchased. They included salt, mustard, firewood, charcoal and other sundries inclusive of license and two green chameleons. A fire were raised and the deceased was made to sit before it, after which the accused tied her hands and feet, and further secured her to a granite mortar in the kodam by means of a rope. The doors were closed and, at the instance of the accused, other persons left him strictly alone with the victim. The deceased was raising cries thought the night, but these were not heeded to. The cries ceased by 4 a.m. and the other immediate relatives became anxious and knocked at the doors. When the accused open the doors and these people went inside, they saw the deceased lying on her back, her hands and legs tied as formerly; but her life was then extinct, and the entire body showed signs of blistering and charring. It was held that the accused has to be credited with the knowledge that the violence that he was causing to the victim by compelling her to inhale smoke and also to burn flames so near her body was likely to cause the death of the victim, and if the indulged in these measures notwithstanding such knowledge, he did so under the peril of being convicted under the criminal law. The accused was convicted under Sec.304, Part II, I.P.C. Anantanarayanan, J., as he then was observed as follows: ”But the problem still remains what is the offence that the accused is guilty of, on the stabilished facts? The accused was convicted under Sec.304, Part II, I.P.C. Anantanarayanan, J., as he then was observed as follows: ”But the problem still remains what is the offence that the accused is guilty of, on the stabilished facts? It is not claimed for the prosecution that the accused intended to cause the death of the woman, or even to do her any grave injury. However deluded he might have been, the accused was under the genuine impression that the woman was possessed by an evil spirit, and that he could exercise her effectively by means of this prolonged ritual. The learned Sessions Judge considers that the accused must be credited with the knowledge that the violence that he was causing to the victim, by compelling her to inhale smoke and also to bear the flames so near her body, was likely to cause her death. The learned Sessions Judge adds that the lacerated injuries that we have earlier referred to, also show that the accused inflicted some further external violence on the unfortunate victim. Upon the findings, as arrived at by the trial Court, it is clear enough that the accused ought to have been convicted under Sec.304, Part II, I.P.C. and not under Sec.302, I.P.C. The only clause that is really applicable is the third clause of Sec.299, I.P.C. is the highest for the prosecution. The question is whether this view is correct, or whether the accused would be guilty only under 5ec.304-A, I.P.C., of causing the death by a rash and negligent act. Upon a careful consideration of the evidence and the probabilities, particularly the data furnished in the medical evidence, we are of the view that the accused should be properly convicted under Sec.304, Part-II, I.P.C. Two decisions to which our attention has been drawn, related to almost identical situations, are Kaku v. Crown (1929) I.L.R. 10 Lah. 555: A.I.R. 1928 Lah. 917 and Nga Po Tha v. Emperor, 44 (1918) Ind Cas. 679: A.I.R. 1918 U.B. 24; both these were cases of attempted exorcism of an evil spirit, by means of some external violence administered to the victim, in the hope of driving away the evil spirit. 555: A.I.R. 1928 Lah. 917 and Nga Po Tha v. Emperor, 44 (1918) Ind Cas. 679: A.I.R. 1918 U.B. 24; both these were cases of attempted exorcism of an evil spirit, by means of some external violence administered to the victim, in the hope of driving away the evil spirit. In both cases the offences were held to be punishable under Sec.304, Part II, I.P.C. It is true that both these decisions relate to blow administered to the victim, whereas here we have a case of prolonged suffocation by smoke, during the course of ritual, in addition to burns caused by heat brought too near the body. But we do not think that that makes any essential difference. In this case also, the accused has to be credited with the knowledge that such measures were likely to cause the death of the victim, and if he indulged in these measures notwithstanding such knowledge, he did so under the perial of being convicted under the criminal law. Learned counsel for the appellant has drawn our attention to certain features of the evidence, which, according to him, tend to throw a doubt upon the veracity of the testimonies of P.Ws.1, 2 and 3. According to him, the photographs show that the woman could not have been tied up by the accused, in the manner deposed to by the witnesses; they are more suggestive of the woman having been tied up after death. Similarly, since the blouse admittedly showed no signs of having been burnt on any portion of the garment, the suggestion is that the woman did not wear this blouse during the exorcism, but that it must have been put upon her after death. But these inferences are not really supported by any established facts, and, with regard to the latter inference, there is not even a suggestion put to the witnesses, in the record of evidence. We have no reason for holding that the woman was not tied up by the accused when she was alive as spoken to by the witnesses, or that she was not wearing the blouse during the ritual. Accordingly, we convict the appellant under Sec.304, Part II, I.P.C. It is true that the appellant does not deserve some sympathy, under the particular circumstances. Accordingly, we convict the appellant under Sec.304, Part II, I.P.C. It is true that the appellant does not deserve some sympathy, under the particular circumstances. He has himself been a victim of the grossest superstition and he had no intention of harming the woman, or causing her death by external violence. Taking all the circumstances of the matter into account, we sentence the accused to undergo rigorous imprisonment for three years. The appeal is otherwise dismissed.“ 48. In Murugan, In re., (1957)2 M.L.J. 9: I.L.R. 1957 Mad. 805: A.I.R. 1957 Mad. 541: 1957 M.L.J.(Crl.) 271, the accused when examined in the Sessions Court stated: ”On the way to the police station, I asked my wife to cease her illicit intimacy with Periaswami. She said that she would not leave Periaswami as he looked after her well and then abused me and swore that she would continue her intimacy with Periaswami. I was unable to control my anger at her conduct and stabbed her.“ The High Court observed that the statement of the accused before the learned Sessions Judge could not be an afterthought, though made at late stage. On consideration of the entire circumstances the High Court observed: ”We are of the opinion that the statement given by the accused before the learned Sessions Judge is that could be accepted as revealing the real circumstances in which the accused was placed when he lost the balance of mind and resorted to the stabbing of his wife and that those circumstances should be viewed in a liberal manner in the psychological setting, which arose, as constituting sudden and grave provocation. This would consequently reduce the offence of murder into one of culpable homicide not amounting to murder by reason of the operation of Exception (1) to Sec.300, I.P.C. We, therefore, hold that the offence committed by the accused in the present case is one that comes within Sec.304, Part-I, I.P.C., and we think that the ends of justice would be amply met if we convict the accused under this section and sentence him to rigorous imprisonment for five years.“ 49. In Rafiq v. State of Maharastra (1979)3 S.C.C. 571 : 1979 Cr.L.J. 706: A.I.R. 1979 S.C. 1179, in a quarrel between the parties Kadir attacked the appellant and inflicted several blows with a stick and the latter then stabbed him with knife in the heart. In Rafiq v. State of Maharastra (1979)3 S.C.C. 571 : 1979 Cr.L.J. 706: A.I.R. 1979 S.C. 1179, in a quarrel between the parties Kadir attacked the appellant and inflicted several blows with a stick and the latter then stabbed him with knife in the heart. The injury to the heart was far too grievous resulting in death of Kadir. It was held that the appellant acted in the exercise of his right of private decence, but if regard was had to nature and violence of the blows suffered and apprehended by him, be exceeded that right when he stabbed Kadir in the heart. The appellant was found guilty of an offence under the first part of Sec.300, I.P.C. The Supreme Court observed as follows: ”Before us, learned counsel for the appellant contends that the offence under Sec.302 is not made out, and urges that this is a case where the provisions of the First Part of Sec.304 can be said to be attracted. It is pointed out that during the quarrel between the parties Kadir attacked the appellant and inflicted several blows with a stick and it was then that the appellant stabbed Kadir with a knife and in doing so, it is submitted, the appellant acted in the exercise of his right of self-defence. It is said that at the worst this is a case where the appellant exceeded his right of private defence. After hearing learned counsel for the parties, it seems to us reasonable to accept the contention raised on behalf of the appellant. There is no dispute that the appellant, suffered a number of injuries when Kadir set upon him with a stick. The question is whether the injuries were inflicted by Kadir on the appellant before or after the appellant had stabbed him with a knife. In support of his contention that the knife blow came after, learned counsel for the appellant has referred us to evidence showing that the knife pierced the heart of the deceased and the blow was of such violence that the deceased fell down immediately and the blood drained out from his heart. It is suggested that there was no possibility thereafter of the deceased inflicting any blows with a stick on the appellant. It is suggested that there was no possibility thereafter of the deceased inflicting any blows with a stick on the appellant. It is pointed out that Nasir and Kadir must have been already armed with sticks when the affray took place because only a few days earlier the appellant is said to have threatened Nasir and thereafter the latter did not move about in the village alone. According to the prosecution case itself, because of the fear so generated, Nasir sent for Kadir to accompany him when proceeding to his fields. We are impressed by the force of these submissions. It seems to us on the evidence before us that Kadir first attacked the appellant and inflicted several blows on him with a stick, and it was thereafter that the appellant plunged the knife into him. The medical evidence does not convince us that Kadir could, after the fatal knife wound in his heart, set about to wield blow after blow with a stick on the appellant. Having regard to all the surrounding circumstances, a continuous assault by Kadir on the appellant after he had been stabbed must, in our opinion, be ruled out. The injury to the heart was too grievous. The prosecution sought to support its case by reference to the testimony of Fakira and Gafoor, according to him the blows with the stick followed the knife injury. But the High Court disbelieved the testimony of Fakira and Gafoor that they had seen the knife blow. It is clear to us that first Kadir started beating the appellant with a stick, and the latter then stabbed him with a knife. The appellant acted in the exercise of his right of private defence, but if regard is had to nature and violence of the blows suffered and apprehended by him he exceeded that right when he stabbed Kadir in the heart. In our view, the appellant is guilty of an offence under the first part of Sec.304, of the Indian Penal Code, and we sentence him to rigorous imprisonment for five years and fine in the sum of Rs.2,500. The fine, if recovered, shall be paid as compensation to the father of the deceased who, we are told, was dependent on the deceased. On failure to pay the fine, the appellant shall be liable to rigorous imprisonment for a further period of two years. The fine, if recovered, shall be paid as compensation to the father of the deceased who, we are told, was dependent on the deceased. On failure to pay the fine, the appellant shall be liable to rigorous imprisonment for a further period of two years. As regards the conviction of the appellant under Sec.307 the circumstances of the case indicate the desirability of reducing the sentence of imprisonment from a period of 7 years to a period of 5 years, and therefore, we reduce the sentence to that period. The substantive sentence pursuant to the two convictions shall run concurrently. The appeal is allowed accordingly.“ 50. In Harej Ali v. State of Assam, 1981 Crl.L.J. 1745, the appellant Harej Ali was charged with murder caused by assaulting the deceased Abdul Rahman Khan., The FIR mentioned altercation. The evidence of the eye-witnesses as well as the written statement of the appellant under Sec.313, Cr.P.C., 1973, left no doubt that the assault was preceded by some altercation which perhaps related to the outcome of the village”mel“. Provocation was a natural probability. The quarrel was sudden and the fight was in the heat of passion. There was no previous enmity or grudge between the families. There was only one external injury and the internal injuries did correspond to it. The LATHI with which the injury was caused on Abdul Rahman’s head had not been seized. It was also in evidence that at the sight of Guffar and Asrab, the accused ran away towards their house. There was no evidence of the accused having taken under advantage or acted in a cruel or unusual manner. The intention to cause death is not proved. The accused-appellant was stated to be 22 years on the date of examination (15th March, 1980) while the occurrence was on (25th July, 1975) when he was a teenager. Considering all these factors, it was held that the ends of justice and crime prevention would be met if the appellant was convicted under Sec.304 First Part, I.P.C., and sentenced to rigorous imprisonment for six years. 51. In Pandurang Narayana Jawalekar v. State of Maharashtra, 1978 Crl.L.J. 995: A.I.R. 1978 S.C. 1082, it was held that before the provisions of Sec.302, I.P.C., can apply, it must be shown that the act committed by the accused was not a cruel one. 51. In Pandurang Narayana Jawalekar v. State of Maharashtra, 1978 Crl.L.J. 995: A.I.R. 1978 S.C. 1082, it was held that before the provisions of Sec.302, I.P.C., can apply, it must be shown that the act committed by the accused was not a cruel one. When there was an exchange of abuses between the accused and the other party, the deceased intervened and asked the parties not to fight. This enraged the accused who took hold of an iron bar and gave only one blow on the head of the deceased with a great force causing extensive damage to the brain from one end to other resulting in several fractures. The deceased who was old man fell down as a result of the blow. It was held that there was no justification for the accused to have given such a serious injury to the deceased who was innocent intervener, resulting in his death. Moreover, before the provisions of Sec.304, I.P.C., can apply, it must be shown that the act committed by the accused was not a cruel one. In the instant case it could not be said from the facts narrated above that the injury caused by the accused was not a cruel one or that the accused did not act in a cruel manner. The case of the accused, therefore, fell within the four corners of Sec.302, and not under Sec.304, Part I. The Supreme Court observed as follows: ”Lastly it was submitted by the learned counsel that this was a case which would not fall within the four comers of Sec.302 of the I.P.C. It was submitted that according to the prosecution the appellant gave only one blow on the head of the deceased and the likelihood that the fracture was due to the fact that the deceased fell on a stone (article 2) cannot be excluded. It was urged that as the blow was given by the appellant in a sudden fight without any premeditation the case of the appellant falls within the purview of Sec.304(1) of the I.P.C. We are, however, unable to agree with this contention. To begin with the doctor, who examined the deceased while he was alive, viz. Balachandra, has clearly stated in his evidence that even if a person would have fallen on a stone like (article 2) he would not have received the contusion as described in the injury report. To begin with the doctor, who examined the deceased while he was alive, viz. Balachandra, has clearly stated in his evidence that even if a person would have fallen on a stone like (article 2) he would not have received the contusion as described in the injury report. On being cross examined by the Court, P.W.23, the Surgeon, who had performed the operation of the deceased, also said that the site of the injury indicated that such an injury could not be caused by a fall on the stone. At one place the surgeon has no doubt said that if a man of 70 falls on a stone like article 2, such an injury is possible. In view of his contradictory statements we would prefer to rely on the evidence of Dr. Balachandra, who was the doctor who had examined the deceased while he was alive. Secondly the nature of the injuries shows that extensive damage was caused to the brain from one end to the other resulting in several fractures as would appear from the evidence of Dr. Rudramani. This shows that the appellant must have struck the blow on the head of the deceased with the iron bar with very great force. The deceased was an old man and was an innocent intervener who was asking the parties not to quarrel, and there was no justification for the appellant to have given such a serious injury to him resulting in his death. Moreover, before the provisions of Sec.304, I.P.C. can apply, it must be shown that the act committed by the accused was not a cruel one. In the instant case we are unable to find from the facts narrated above that the injury caused by the appellant was not a cruel one or that the accused did not act in a cruel manner. For these reasons, therefore, the appeal fails and is dismissed. The appellant, who is on bail, must now surrender and serve out of the’ remaining portion of the sentence imposed. One month’s time is allowed to the appellant to surrender to the concerned authority.“ 52. For these reasons, therefore, the appeal fails and is dismissed. The appellant, who is on bail, must now surrender and serve out of the’ remaining portion of the sentence imposed. One month’s time is allowed to the appellant to surrender to the concerned authority.“ 52. InJagat Singh v. State of Haryana, (1977)1 S.C.C. 225 : 1976 Crl.L.J. 2002: A.I.R. 1976 S.C. 2619, where the appellant brought the gun from his house to protect himself having seen the ”aggressive posture“ of the students and then forced with the fury of the students, he lost nerve and fired from the gun, it was held that the case fell under the first part of Sec.304, I.P.C., and not Sec.302, I.P.C. Taking all the relevant circumstances into consideration including the fact that the appellant had been under the sentence of death for about a year, it was held that a sentence of rigorous imprisonment for seven years was justified to meet the ends of justice. The Supreme Court observed as follows: ”The situation in which the appellant had fired from his gun as recorded by the High Court was like this. The students adopted an “agitational approach” right from the start. A political worker who was not a student was seen addressing the students on the college lawns exhorting them to stay away from the classes, and the appellant trying to catch him gave him a chase. This infuriated a section of the students who considered the said political worker as their “guest”. It was after the incident involving their “guest” that the students adopted an aggressive posture against the appellant. The sportswear about which grievance was made had been supplied to the students about six or seven months before the date of occurrence and the demand for accounts from the appellant was “raised only as a bogey by the students.....to avenge the insult which they thought had been caused to them” by the appellant trying to catch hold of their “guest”. One of the slogans raised by the students was “dismiss Jagat Singh”. The High Court further found that the prosecution witnesses had concealed the real origin of the incident and what “actually happened when they (students) confronted the appellant”. According to the High Court “the students in that agitational mood could not have allowed the appellant to calmly leave for the house as stated by them”. The High Court further found that the prosecution witnesses had concealed the real origin of the incident and what “actually happened when they (students) confronted the appellant”. According to the High Court “the students in that agitational mood could not have allowed the appellant to calmly leave for the house as stated by them”. The High Court observed further that the appellant was a normal man, in possession of normal faculties and was not expected to embask upto such a hazardous path to fire shots without any provocation. The circumstances in which the incident had taken place did not, according to the High Court justify the sentence of death. It seems to us, that the circumstances as found by the High Court are not merely a valid ground for commuting the sentence of death to one for imprisonment for life but also bear upon the nature of the offence. In the situation described in the judgment of the High Court it would seem that the appellant brought the gun from his house to protect himself having seen the “aggressive posture” of the students and then, faced with the fury of the students, he lost nerve and fired from the gun. On the findings of the High Court we hold that the case comes under the first of Sec.304 of the Indian Penal Code and not Sec.302. Taking all the relevant circumstances into consideration including the fact that the appellant had been under the sentence of death for about a year we think a sentence of rigorous imprisonment for seven years would meet the ends of justice....“ 53. In Mohindeer Pal Jolly v. State of Punjab, A.I.R. 1979 S.C. 577: (1979)1 S.C.J. 506, it was held that if the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I of Sec.304, I.P.C. The Supreme Court observed as follows: ”The law regarding the right of private defence of property or person is well-settled and may be briefly recapitulated here. The onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. The onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly, or might or might not adduce any evidence in support of it, but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or both. But the exercise of this right is subject to the limitations and exceptions provided in Sec.99 of the Penal Code-the last one being "The right of private defence in no case extends to the inflicting for the purpose of defence". As to when the right of private defence of the body extends to causing death is provided for in Sec.100. The appellant’s case is not covered by it. In the view which we have expressed above we think that the appellant had not only the right of private defence of his property but also his body to a limited extent within the meaning of Sec.101 subject to the restrictions mentioned in Sec.99. This did not extend to the inflicting of so much harm to Sant Ram and causing, his death, nor the right of private defence of property available to the appellant extended by any of the clauses of Sec.103. Mr. Mulla tried to bring it under ‘4thly’ which says: "Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." Mischief was caused to his property but it was not caused under such circumstances as may reasonable cause apprehension in his mind that death or grievous hurt would be the consequence if such right of private defence was not exercised. A mere claim of such apprehension is not enough. The Court on objective test and on the facts and circumstances of each case must arrive at the conclusion that the situation was such as was likely to reasonably cause such apprehension. A mere claim of such apprehension is not enough. The Court on objective test and on the facts and circumstances of each case must arrive at the conclusion that the situation was such as was likely to reasonably cause such apprehension. The right or private defence of property, also, therefore, in the appellant’s case extended to causing of any harm other than the death. Undoubtedly the appellant did exceed this right of private defence and apparently the murder which he committed within the meaning of clause ‘4thly’ of Sec.300 squarely fell within Exception 2 thereof. He exceeded the power given to him by law and caused the death of Sant Ram against whom he was exercising such right of defence. He did so without premeditation and without any intention of doing more harm than was necessary for the purpose of such defence. He thought that by indulging in this imminently dangerous act he would be able to scare away the labourers and stop them from continuing their unjustified agitation, the raising of the slogans and the throwing of the brick-bats. But then, although the intention was not to kill or cause such bodily injury as was sufficient in the ordinary course of nature to cause death, yet he must have committed the act knowing that it was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death of the worker or workers standing on the other side of the boundary wall. A question now arises whether the appellant was guilty under part-I of Sec.304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part-I. On the other hand, if before the application of any of the Exceptions of Sec.300 it is found that he was guilty of murder within the meaning of clause ‘4thly’, then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part-II of Sec.304 and not Part-I". 54. In Ghansham Dass v. State (Delhi Administration), (1978)3 S.C.C. 391 : 1978 S.C.C.(Crl.) 430: A.I.R. 1979 S.C. 44, where the deceased Kashmiri Lal trespassed into the shop, the accused was entitled to throw out Kashmiri Lal out of the shop. But Kashmiri Lal was not armed and that he had no intention of causing any injury to the accused. It was held that the accused far exceeded his right by using the dangerous weapon, CHHURA, with deadly effect and causing two injuries which cut the heart and lung. It was very likely that the accused caused the injuries when the deceased Kashmiri Lal trespassed into the shop. But there could have been no apprehension that death or grievous hurt was likely to be caused to the accused. The accused exceeded his right of private defence of property. The accused was guilty of an offence under Sec.304(1), I.P.C. Conviction under Sec.302, I.P.C., could not be sustained. The Supreme Court observed as follows: “Taking all the circumstances into account we have no hesitation in rejecting the plea of self-defence as put forward by the appellant in Sessions Court. There are certain circumstances which require a closer examination to determine whether the prosecution case as spoken to by P.Ws.21, 22 and 25 could be accepted in full. It is admitted that P.W.21 is a supporter of Viran Wali in the litigation, so also the deceased Kashmiri Lal. Sham Lal, P.W.22, is the son of Viran Wali. In the circumstances though we have no hesitation in accepting their testimony in general we feel it is necessary to examine the several facts in the case in order to determine in what manner the occurrence took place. Apart from the fact that the injuries on the appellant and Sunder Dass had not been satisfactorily established the discovery of the blood stains inside the shop makes the closer scrutiny necessary. Shri Guru Dutt, P.W.35, Inspector C.I.D., Crime Branch who conducted the investigation has stated that he found blood stained sand lying in front of Shop No.9. He lifted blood from near the sand and from above the gunny bag and from the floor. Shri Guru Dutt, P.W.35, Inspector C.I.D., Crime Branch who conducted the investigation has stated that he found blood stained sand lying in front of Shop No.9. He lifted blood from near the sand and from above the gunny bag and from the floor. In the seizure Memo Ex.P.W.2/B it is seen that blood was lifted from a gunny bag lying near the right wooden frame of shop No.9. He also found pieces and blood stains in a gunny bag. Sample of blood was also lifted from the floor near a heap of sand at the place which according to the prosecution is the scene of stabbing. There was blood also on the cement floor from a place outside shop No.9. The plan that is prepared by the police officer shows that blood stains were found at the entrance and at two spots inside the shop and also on the sheath of the dagger which was blood stained and found inside the shop. The case for the prosecution is that the stabbing took place at the place where the bricks and sand are found stored which is outside the shop. According to the prosecution Kashmiri Lal was stabbed near the place where the blood stains were found on the sand and the victim moved a few places and fell down at the entrance of the shop where some more blood stain were found. The prosecution case is very clear that the deceased never entered into the shop. From the evidence of P.W.21 it is seen that Kashmiri Lal entered into the shop and was requesting the accused and Sunder Dass not to raise a wall during the night. The prosecution would state that Kashmiri Lal approached the appellant and Sunder Dass with folded hands. Taking into account to past history the fact that Kashmiri Lal was staunch supporter of Viran Wali and the fact that he assured Viran Wali that the wall will not go up that night, we are not satisfied that he was entirely on a peaceful mission. We feel it is highly probable that Kashmiri Lal entered into the shop to persuade the appellant and Sunder Dass from proceeding with their plan of erecting the wall. We see no justification for coming to the conclusion that Kashmiri Lal was armed. We feel it is highly probable that Kashmiri Lal entered into the shop to persuade the appellant and Sunder Dass from proceeding with their plan of erecting the wall. We see no justification for coming to the conclusion that Kashmiri Lal was armed. At about midnight when tension was running high, the accused bent upon erecting the wall and Viran Wali and Kashmiri Lal equally determined not to allows the wall to be raised. It is not possible to say that when Kashmiri Lal entered the shop he was not committing criminal trespass. In the circumstances, the accused would be entitled to throw out Kashmiri Lal out of the shop. But as we have found that Kashmiri Lal was not armed and that he had no intention of causing any injury to the appellant or Sunder Dass, the appellant far exceeded his right by using the dangerous weapon, CHHURA, with deadly effect and causing two injuries which cut the heart and the lung. On a consideration of all the circumstances, we feel it is very likely that the appellant caused the injuries when the deceased Kashmiri Lal trespassed into the shop. But there could have been no apprehension that death or grievous hurt was likely to be caused to the accused. The conclusion is therefore irresistible that the appellant exceeded his right of private defence of property. In the circumstances, we feel that the conviction under Sec.302 and the sentence for imprisonment for life cannot be sustained. We find the appellant guilty of an offence under Sec.304(1) and sentence him to imprisonment for five years.” 55. In State of Gujarat v. Bai Fatima, (1975)2 S.C.C. 7 : A.I.R. 1975 S.C. 1478, the deceased died of the shock due to the pressing of his private parts by the accused. The Sessions Judge held the prosecution story to be proved beyond reasonable doubt in all material particulars. Finding that the injury caused to the deceased in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death, he convicted the accused under Sec.304, Part-I, I.P.C. She was further convicted under Sec.323, I.P.C. The High Court exonerated the accused of the charges levelled against her. Finding that the injury caused to the deceased in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death, he convicted the accused under Sec.304, Part-I, I.P.C. She was further convicted under Sec.323, I.P.C. The High Court exonerated the accused of the charges levelled against her. The Supreme Court held that there was absolutely no basis or material in the records an order of acquittal in favour of the accused by extending them a right of private defence. There were two many conjectures, surmises and contradictions in the judgment of the High Court. The Supreme Court observed as follows: “In the instant case not only the plea of private defence was not taken by the respondents in their statement under Sec.342 but no basis for that plea was laid in the cross-examination of the prosecution witnesses or by adducing any defence evidence. In our opinion the burden of establishing that plea was not discharged in any manner by the respondents even applying the test of preponderance of probabilities in favour of that plea. There is absolutely no material in the records of this case to lead to any such conclusion. We do not think that the trial Judge was right in assuming that respondent No.1 must have received the injuries in the first incident. It may well be that she received the injuries in the second incident. Since prosecution did not come forward to show in what manner she received those injuries, assumption can be made to the farthest extent in favour of the respondents that respondent No.1, received the injuries with a stick, may be at the hands of Gulabkhan or any other person on his side. But surely the assumption could not be stretched to the extent it has been done by the High Court. The High Court is not right in saying that by the tripping of the legs Gulabkhan would have fallen on his face and not on his back. A man may fall on back or on face depending upon the side and the angle of the tripping. The High Court is not right in saying that by the tripping of the legs Gulabkhan would have fallen on his face and not on his back. A man may fall on back or on face depending upon the side and the angle of the tripping. The other error committed by the High Court is when it says: It appears to us to be more probable that while the quarrel was going on in the ANGANA of the deceased and the deceased was delivering blows of stick on the accused No.1, she squeezed his testicles in order to liberate herself from his attack. It appears that she did so while the deceased was standing and giving blows on her. The deceased was wearing a pant and it is impossible to imagine that the squeezing of the testicles could be done by respondent No.1 to the extent of causing his death soon after the squeezing when Gulabkhan was in a standing position. In that position he could have at once moved back and liberated himself. The extent of squeezing done in this case was possible only if respondent No.1 could sit on his legs after he had fallen down at (SIC on) his back. This lends further support to the prosecution story that respondent No.2 caught his hands from behind meaning thereby from towards the side of his head, in the front being respondent No.1 on his legs. In our opinion, therefore, there was absolutely no basis or material in the records of this case to enable the High Court to record an order of acquittal in favour of the respondent by extending them a right of private defence. Even going to the maximum in favour of the respondents that respondent No.1 got the blows with a stick at the hands of Gulabkhan and in the second incident it is manifest that her action of assault on him was a deliberate counter attack to cause him such injury which at least was likely to cause his death. The counter attack could in no sense be an attack in exercise of the right of private defence. The counter attack could in no sense be an attack in exercise of the right of private defence. In material particulars the evidence of the three eye witnesses as also the evidence of dying declaration of the deceased PW Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No.1. The prosecution case is not shaken at all on that account. In our judgment this is a case which falls in the third category as enumerated above. In agreement with the trial Court, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt. For the reasons stated above, we allow this appeal, set aside the order of the High Court and restore that of the trial Court as against respondent No.1 as respects her convictions and sentences and as against respondent No.2 only in regard to her conviction. It is no use sending the young girl back to jail for a few months. While maintaining her conviction under Sec.323/114 of the Penal Code, we reduce her sentence to the period already undergone”. 56. In Kaliappan v. State of Tamil Nadu, 1977 Crl.L.J. 341, the appellant participated in the attack on the deceased with aruval and gave a blow on the head causing incised wound. There were also four other injuries caused on the scalp by the lathi blows for which the appellant was not responsible. According to the medical evidence, "injuries 1 to 5 could have been fatal independently, but not necessarily". It was held that it was possible that injury by aruval alone did not cause the death of the deceased through it was likely to cause such death. On this state of evidence, appellant could not be convicted under Sec.302. Offence which appellant appeared to have committed was one under Sec.304, Part I. Judgment of the Madras High Court was reversed. The Supreme Court observed as follows: "This appeal by special leave is limited to two questions, namely: 1. What is the nature of the offence and 2. What should be the punishment to be imposed on the appellant. The Incident in which the deceased Samiappa Gounder met with his death can no longer be disputed in view of the limited questions on Which special leave, has been granted by this Court. What is the nature of the offence and 2. What should be the punishment to be imposed on the appellant. The Incident in which the deceased Samiappa Gounder met with his death can no longer be disputed in view of the limited questions on Which special leave, has been granted by this Court. The appellant, who participated in the attack on the deceased, used aruval, M.O.3, and the finding of the Sessions Court as well as the High Court is that the appellant gave a Now on the head of the deceased with the aruval. The in|ury caused as a result of this blow with the aruval given by the appellant is injury No.5, as stated in the evidence of Dr. Venkataraman. Injury No.5 has been described by Dr. Venkataraman as "an oblique incised wound on the left occipital region of the scalp 4 cm. x 1 c.m. x scalp deep". There were also four other injuries caused to the deceased on the scalp as a result of the attack and they were injuries Nos.1 to 4 as given in the deposition of Dr. Venkataraman. These injuries were admittedly caused by lathi blows and the appellant was not responsible for the same. The appellant was convicted under Sec.302 of Indian Penal Code and sentenced to death on the basis of injury No.5, caused by him to the deceased and this conviction and sentence of death was confirmed by the High Court. The question is whether the Sessions Court and the High Court were right in conviction the appellant of the offence under Sec.302 of the Indian Penal Code and sentencing him to death. Now if we look at the evidence of Dr. Venkataraman, we find that according to him "injuries 1 to 5 could have been fatal independently but not necessarily". This would mean that injury No.5 could have been fatal but it was not necessarily so. It is, therefore, possible that injury No.5 alone did not cause the death of the deceased though it was likely to cause such death. On this state of the evidence we do not think that the Sessions Court and the High Court were right in convicting the appellant under Sec.302 of the Indian Penal Code. It is, therefore, possible that injury No.5 alone did not cause the death of the deceased though it was likely to cause such death. On this state of the evidence we do not think that the Sessions Court and the High Court were right in convicting the appellant under Sec.302 of the Indian Penal Code. The offence which the appellant appears to have committed is one under Sec.304, Part I, and we, therefore, alter his conviction from Sec.302:o Sec.304, Part I and sentence him to rigorous imprisonment for a period of ten years. We accordingly allow the appeal, set aside the sentence of death and sentence the appellant to suffer rigorous imprisonment for 10 years for the offence under Sec.304, Part I, Indian Penal Code." 57. In Tharkarda Lalji v. State of Gujarat, 1974 Crl.L.J. 612, where the occurrence took place without premeditation in a sudden fight in the heat of passion without taking undue advantage or acting in a cruel manner, it was held that the offence committed by the appellant falls within Exception 4 to Sec.300, I.P.C., and he is liable under Sec.304, Part I, I.P.C. It was also held in that case that the part of the prosecution story, that the appellant went back to his house and fetched the Dharia to inflict injury on the head of the deceased was more improbable and had to be eliminated. Consequently, conviction and sentence under Sec.302 were set aside and the appellant was convicted under Sec.304, Part I. The decision of the Gujarat High Court was reversed. The Supreme Court observed as follows: "We think that the findings of the Sessions Judge as well as High Court, on the manner in which the incident took place, would bring the offence committed by the appellant within exception No.4, to Sec.300, I.P.C., if we eliminate a part of the prosecution story which appears to us to be most improbable. This was that the appellant went back to his own house and fetched the Dharia to inflict the injury on the head of the deceased. This was that the appellant went back to his own house and fetched the Dharia to inflict the injury on the head of the deceased. Apart from the fact that it is very doubtful whether the injury was inflicted whether the sharp edge of the Dharia, we think that it is most unlikely that the appellant would have thought of coming back to the scene of occurrence after having gone to his own house when there was three men hostile to him, who were not quite unarmed, as injuries on his own body show. We think that it is far more likely that the occurrence took place "without premeditation in a sudden fight in the heat of passion without taking undue advantage or acting in a cruel manner." The whole pattern of the case and facts admitted by both sides lead us to believe that this was the more natural and correct inference to reach in this case. We have no hesitation in rejecting the contention put forward on behalf of the appellant that he must have acted in exercise of the right of private defence. Apart from the fact that he took up no such plea at any stage, we find that his own admission, contained in his report to the police (Ex.38), to which we have already referred, itself discloses that Chanduji deceased was unarmed. No such act of Chanduji deceased against the appellant is proved or suggested which could justify the infliction of an injury on his head of the nature which is clearly shown to have been inflicted by the appellant. A right of private defence can, sometimes, be reasonably inferred from facts and circumstances revealed in a case even if not specifically set up. But, in the instant case, the existence of such a right against the deceased Chanduji is actually repelled by the appellant’s report to the police when he admitted that Chanduji deceased was unarmed. We also find that the trial Court and the High Court did not err in holding that the appellant was injured when Mathurji and Mobtaji exercised a right of private defence after he had inflicted the serious injuries on Chanduji. It was said to be necessary to prevent him from doing more harm. We also find that the trial Court and the High Court did not err in holding that the appellant was injured when Mathurji and Mobtaji exercised a right of private defence after he had inflicted the serious injuries on Chanduji. It was said to be necessary to prevent him from doing more harm. It is most unlikely that, after such an injury to him, which must have been inflicted at the end of the incident, he could have attacked anyone. At the most, the appellant would be entitled to the benefit of exception 4 of Sec.300, I.P.C." 58. In M.H. Baig v. State of Maharashtra, (1979)3 S.C.C. 321 : 1979 S.C.C.(Crl.) 631: A.I.R. 1979 S.C. 1525, the evidence showed that an altercation started over the passing of dirty water through the drain in front of the house of the deceased, in course of which the accused was said to have given a cane stick blow to the deceased. The weapon was merely a walking stick and would not have normally caused the death of the deceased. It was held that in the circumstances the accused did not have the intention to cause the particular injury which had resulted from the blow given to the deceased. But as the accused aimed the blow at the head of the deceased which was a vital part of the body, there could be no doubt that he must be presumed to have the knowledge that death was the likely result of his act. It was held that in these circumstances, the case clearly fell within the ambit of Sec.304(ii), I.P.C. The Supreme Court observed as follows: "This appeal has been pressed on the limited point of the applicability of Sec.302 to the present case. Mr. Kohli appearing for the appellant has contended that having regard to the facts and circumstances of this case and the nature of the weapon used, it cannot be said that the. appellant intended to cause the death of the deceased Akhtar Hussain. The evidence shows that an altercation started over the passing of dirty water through the drain in front of the house of the deceased. An altercation followed in course of which the appellant is said to have given a case stick blow to the deceased. The weapon was merely a walking stick and. would not have normally caused the death of the deceased. An altercation followed in course of which the appellant is said to have given a case stick blow to the deceased. The weapon was merely a walking stick and. would not have normally caused the death of the deceased. In the circumstances we are satisfied that the appellant did not have the intention to cause the particular injury which has resulted from the blow given to the deceased. But as the appellant aimed the blow at the head of the deceased which is a vital part of the body, there can be no doubt that he must be presumed to have the knowledge that death was the likely result of his act. In these circumstances this case clearly falls within the ambit of Sec.304(ii) I.P.C. We therefore alter the conviction of the appellant from Sec.302, I.P.C., to Sec.304, Part II and reduce the sentence to the period already undergone as we understand that the appellant who was not granted bail has already served about 6 years. With this modification, the appeal is dismissed." 59. InRandhir Singh alias Dhira v. State of Punjab, (1981)4 S.C.C. 484 : 1981 S.C.C. (Crl.) 856: A.I.R. 1982 S.C. 55: 1982 Crl.L.J. 125: 1982 S.C.Cr.R. 106, there was only one injury. The weapon was not carried by the appellant in advance. There was no premeditation. He was a young college going boy. There was some altercation between the deceased and his father. Death occurred nearly after six days. It was held that the appellant must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. Under these circumstances, the appellant is shown to have committed an offence under Sec.304, Part II, I.P.C., and he must be convicted for the same. 60. In Kesho Ram v. Assam, 1978 M.L.J. (Crl.) 644: (1978)2 S.C.C. 407 : 1978 S.C.C.(Crl.) 219: 1978 Crl.L.J. 1089: (1978)2 S.C.J. 502: A.I.R. 1978 S.C. 1096: (1978)2 S.C.R. 788 , the deceased entered the land of the accused arid assaulted the co-accused with a lathi which provoked the accused to assault the deceased purporting to act in self-defence. Neither the accused nor co-accused received any injury. As neither the accused nor the co-accused received any injuries, there can be no doubt that the accused exceeded the right of private defence. Neither the accused nor co-accused received any injury. As neither the accused nor the co-accused received any injuries, there can be no doubt that the accused exceeded the right of private defence. It was held that the accused could only be convicted of an offence under Sec.304, Part II, I.P.C. for having exceeded the right of private defence. The Supreme Court observed as follows: "....The Sessions Judge appears to have treated the evidence of two witnesses, namely P.W.5, and 7 as the spokesmen of the prosecution case when in fact these witnesses had been declared hostile by the prosecutor and the Court granted permission to the prosecution to cross-examine these witnesses. While it is true that merely because a witness is declared hostile his evidence cannot be rejected on that ground alone it is equally well settled that when once a prosecution witness is declared hostile the prosecution clearly exhibits its intention not to rely on the evidence of such a witness. In these circumstances, therefore, the Sessions Judge was not at all justified in treating the version given by P.Ws.5 and 7 as the version of the prosecution itself. The High Court, therefore, rightly set aside the findings of the learned trial Judge on this point. Learned counsel for the appellant submitted that a material part of the prosecution case having been rejected the High Court was wrong in convicting the appellant on the residue, particularly when he had been acquitted by the trial Court. It is now well settled that the principle Falsus unus falsus omnibus does not apply to criminal trials and it is the duty of the Court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking any easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities. In the instant case, the High Court has clearly found that the evidence of P.Ws.1, 2, 4, 6 and 8 proves beyond reasonable doubt that the occurrence had taken place according to the manner alleged by the prosecution. Even the appellant in his statement under Sec.342, Cr.P.C. stated as follows: "Rahim and Mohammed were ploughing in our land. They told me that while they were ploughing, Kalinath with a dao prevented them and so, they stopped ploughing. At that time Kalinath was not there. I asked both of them to plough again. Even the appellant in his statement under Sec.342, Cr.P.C. stated as follows: "Rahim and Mohammed were ploughing in our land. They told me that while they were ploughing, Kalinath with a dao prevented them and so, they stopped ploughing. At that time Kalinath was not there. I asked both of them to plough again. They began to plough. Kalinath alias Kalinath again came there with a dao. He uttered sic "who are you" and chased me raising a dao to assault me. Looking hither and hither I could find nobody. As soon as he came near me by raising dao, I having found No means, started assaulting him with the holanga taken for bringing paddy. After a little while he fell down. My elder brother, Someshwar also arrived there". It will appear from the categorical admission made by the accused that he did assault the deceased with a sharp cutting weapon which he calls "holanga" as a result of which the deceased Kalinath fell down. The justification pleaded by the accused is that he did so in order to protect his ploughmen from being attacked with a dao. A perusal of the statement of the accused clearly reveals that he does not depute having fatally assaulted the deceased, but has pleaded self defence. The prosecution evidence, therefore, has to be judged in the light of the admission made by the accused. It was submitted by counsel for the appellant that it was not open to the Court to take the inculpatory part into consideration and reject the exculpatory part. It is submitted that an admission can be taken either as a whole or not at all. It is a well settled that where a confession or an admission is separable there can be no objection to taking one part into consideration which appears to be true and reject the other part which is false. In the case of Nishi Kan Jha v. State of Bihar, 1969 M.L.J.(Crl.) 456: (1969)2 S.C.R. 1033 : (1969)1 S.C.J. 844: A.I.R. 1969 S.C. 422, this Court observed as follows: “In the circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant Ex.6 the High Court had acted rightly in accepting the inculpatory part and placing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime”. In the instant case, the circumstances are almost identical with the facts of the case of this Court cited above, here also, even the prosecution evidence proves that the deceased was assaulted with a “holanga” as a result of which he died. The only bone of contention between the prosecution and the defence case is as to the situs or the place where the assault took place. According to the prosecution, the occurrence took place in the land of the deceased. It would, however, appear from the evidence of P.W.5 that the land in which the assault took place belonged to Kamal Singh. Although this witness was declared hostile, this part of the statement made by the witness is amply corroborated by the testimony of an independent witness, namely, P.W.6 Ananta Kumar Bora who also says that the land belonged both to Kalinath and Kamal Singh. The police does not appear to have found blood marks either in the land of the deceased or in the land of the accused which would have been a conclusive factor to determine where the occurrence took place. 61. In Tholan v. State of Tamil Nadu, 1984 Crl.L.J. 478: (1984)2 S.C.C. 133 : 1984 S.C.C.(Crl.) 164: A.I.R. 1984 S.C. 759, the accused started remonstrations using filthy language against certain organisers of a chit fund who had no connection with the deceased in front of the house of the deceased and the decease came out of his house and asked the accused to go away, the accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance. It was held that, in the circumstances of the case, that though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to "cause death". In such a situation though he could not be convicted under Sec.302, I.P.C., he would be guilty of committing an offence under Sec.304, Part II, I.P.C. In the said decision, the Supreme Court observed in paragraph 12, Pages 761 and 762 as follows: "12. It is equally not in dispute that appellant gave only one blow with a knife. Appellant had no quarrel or dispute with deceased Sampath. It is equally not in dispute that appellant gave only one blow with a knife. Appellant had no quarrel or dispute with deceased Sampath. It is not shown that deceased Sampath had anything to do with the chit organised by K.G. Rajan. No malice has been alleged to have been entertained by the accused towards deceased Sampath. The incident occurred on the sput of the moment. It appears that the house of the deceased Sampath was somewhere near the house in which the organisers or at least one of them was residing. Appellant had his dispute and grievance with the organisers of the chit. It is the prosecution case that accused abused organisers of the chit. Deceased Sampath is not shown to be the organiser of the chit. Probably when the deceased Sampat told the accused not to misbehave in the presence of ladies and not to use vulgar and filthy language, the appellant retorted by questioning the authority of Sampat to ask him to leave the place. Presence of Sampat is wholly accidental. Altercation with Sampat was on the spur of the moment. Even the meeting was accidental. There arose a situation in which appellant probably misguided by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background, he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the appellant be said to have committed murder? In other words, whether Part I or Part III of Sec.300, I.P.C., would be attracted in the facts of this case. Even Mr. Rangam, learned counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant, when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is obviously found by the medical evidence to be fatal and therefore Part III of Sec.300, I.P.C., would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh v. State of Haryana, 1981 S.C.C.(Crl.) 768: 1981 Crl.L.J. 1136: (1981)3 S.C.C. 616 : A.I.R. 1981 S.C. 1552: Randhir Singh v. State of Punjab, (1981)4 S.C.C. 484 : 1981 S.C.C.(Crl.) 856: A.I.R. 1982 S.C. 55: 1982 Crl.L.J. 195: Kulwant Rai v. State of Punjab, A.I.R. 1982 S.C. 126: (1981)4 S.C.C. 245 : 1981 S.C.C.(Crl.) 826 and Hari Ram v. State of Haryana, (1983)1 S.C.C. 193 : 1983 S.C.C.(Crl.) 159: A.I.R. 1983 S.C. 185: 1983 Crl.L.J. 346. To this list two more cases can be added: Jagat Singh v. State of Punjab, Crl.A.No.81/83 decided on 14.2.1983 (reported in 1983 S.C.C.(Crl.) 459: 1983 Crl.L.J. 852: A.I.R. 1983 S.C. 463, and Ram Sunder v. State of U.P., Crl.App.No.555/83 decided on 24.10.1983. Having regard to the ratio of each of these decisions, we are satisfied that even if exception I is not attracted, the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence under Sec.304, Part II, I.P.C. Having regard to the circumstances of the case, a sentence of 5 years would be quite adequate". 62. In Mohinder Singh v. State (Delhi Admn.), 1985 S.C.C.(Supp.) 473: 1985 S.C.C.(Crl.) 488: 1985 Crl.L.J. 1903: A.I.R. 1985 S.C. 309, the accused was contented under Sec.302, I.P.C., by the trial Court. In appeal the High Court upholding the guilt of the accused modified the conviction to one under Sec.304, Part II, I.P.C., and sentenced him to rigorous imprisonment for ten years and fine. The plea of alibi raised by the accused appellant was not acceptable. The evidence as given in the case was of a general type and it was difficult to correlate the blow given by appellant with the internal injury which according to medical evidence led to death. It was held that the accused could be convicted under Sec.325, I.P.C. As regards sentence the period of 4 years already suffered by him was held sufficient. It was held that the accused could be convicted under Sec.325, I.P.C. As regards sentence the period of 4 years already suffered by him was held sufficient. The accused has settled in life by setting up a typing institute after being enlarged on bail. It was held that no useful purpose would be served in sending him back to jail at belated stage. The Supreme Court observed as follows: "The question then for consideration is what offence has the appellant committed. The trial Court had found him guilty of murder while the High Court changed the conviction from one under Sec.302 to Sec.304, Part II, I.P.C., on a finding, that It was not a case of murder. The evidence as given In the case is Indeed of a general type and it Is difficult to correlate the blow of Mohinder Singh with the internal Injury which according to medical evidence led to death. Mr. Mahajan fairly conceded that if this be the position, the appropriate section under which the appellant or for the matter of that others, should have been convicted, is Secs.325/34 I.P.C. In view of the fact that the other accused persons have not been convicted under Sec.325, I.P.C. and there has been no further appeal by the Delhi Administration, the question of convicting others under Sec.325, I.P.C., does not arise. But we are of the view that the appellant should appropriately be convicted under Sec.325, I.P.C. We accordingly set aside the conviction under Sec.304, Part II, I.P.C. as given by the High Court and in lieu thereof we convict the appellant under Sec.325, I.P.C. Coming to the question of sentence, the appellant appears to have already undergone, 3-1/2 years of imprisonment both as an undertrial prisoner and as a convict in the hands of the trial Court as also during the pendency of the appeal. In the bail application made to this Court it has been asserted that he had undergone imprisonment of more than three years by September, 1976 and he was admitted to bail by order of this Court dated February 14, 1977. Thus he. appears to have already suffered a sentence of imprisonment of almost four years. In the facts of the case, we are satisfied that the sentence already undergone is adequate punishment. Thus he. appears to have already suffered a sentence of imprisonment of almost four years. In the facts of the case, we are satisfied that the sentence already undergone is adequate punishment. We accordingly alter his conviction from Sec.304, Part II, I.P.C., to Sec.325, I.P.C., and direct that for the said offence the punishment of about 4 years, rigorous imprisonment which he has already undergone is adequate. We are told that the appellant after being enlarged on bail this Court has set up a typing institute and has settled himself in life. No useful purpose would be served in sending him back to jail at this belated stage. This has weighed with us as a consideration for confining his sentence to the period undergone". 63. Bearing in mind the principles laid down by the Supreme Court in the above decisions referred to, we have no hesitation to hold that the offence committed by the appellant herein is not murder, but culpable homicide not amounting to murder. It is in evidence that the deceased Ponnusamy approached the place voluntarily where the appellant was cutting the ‘karuvela tree’ and indulged in wordy altercation with him. The deceased Ponnusamy had also questioned about the appellant allowing his goat to graze in the field belonging to him. It is, in these circumstances, the appellant had inflicted the injury on the head of the deceased with M.O.1 aruval with which he was cutting the tree during that time. The evidence on record clearly shows that only one cut was inflicted on the head of the deceased Ponnusamy by the appellant with the aruval with which he was cutting the tree. Sec.304, I.P.C., reads as follows: “304. The evidence on record clearly shows that only one cut was inflicted on the head of the deceased Ponnusamy by the appellant with the aruval with which he was cutting the tree. Sec.304, I.P.C., reads as follows: “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.” In the instant case before us, we find that the act of causing an injury on the head of the deceased Ponnusamy had been resorted to by the appellant only with the knowledge that the said bodily injury is likely to cause death. The offence committed by the appellant herein falls within the purview of Sec.304, Part I, I.P.C. 64. Accordingly, we set aside the conviction of the appellant herein by the lower Court under Sec.302, I.P.C., and find the appellant guilty under Sec.304, Part I, I.P.C., and convict him thereunder. We sentence the appellant herein to undergo rigorous imprisonment for five years under Sec.304, Part I, I.P.C. Apart from the modification in the conviction and sentence, as mentioned above, in other respects, the criminal appeal is dismissed.