Judgment R.N.Sahay and S.K.Katriar JJ. 1. The appellant in this appeal is Bihari Prasad who was aged only 22 years at the time of his conviction in the year 1988. The appellant was tried before the 5th Additional Sessions Judge, Arrah for having committed murder of Sheo Shankar Ram on 17-3-1986. Learned Additional Sessions Judge found the appellant guilty under Sec. 302, IPC and sentenced him imprisonment for life. 2. The case of the prosecution as unfolded in the First Information Report and evidence in Court "has been accurately stated in paragraphs No.2 to 4 of the judgment under appeal as extracted below for convenience sake: "2. The prosecution case as unfolded in the first information report and the evidence of the prosecution witnesses, in short, was as follows: The accused with his father Ramlal Ram who was an employee of Sahar Block resided in the house of the father of Urmila Devi (PW7), wife of the deceased Sheo Shankar Ram, which situated at Sahar. The accused and Urmila Devi, thus, got acquainted with each other prior to her marriage with the deceased a year before the occurrence. Urmila Devi (PW 7) appeared at Matriculation examination that commenced from 11-3-1986. Her examination centre was at Government Girls High School, Arrah. She along with her husband Sheo Shankar Ram went to Arrah on 10-3-1986 and both of them put up with the accused who was a student and was residing in a rented premises at Arrah. One or two days after their arrival at Arrah, the accused teased PW 7 Urmila Devi and he wanted to quench his sexual thrust with her. She made a strong protest against his action and she narrated the episode to her husband Sheo Shankar Ram. Being aggrieved with the conduct and behaviour of the accused with his wife the deceased Sheo Shankar Ram assaulted the accused and there was altercation between the two in course of which the accused threatened Sheo Shankar Ram that he would be killed. PW 7 and her husband leaving the residence of the accused shifted to the house of an Advocate named Pyare Baboo. 3. After finishing her examination of certain papers, PW 7 along with her husband went to their house situated at village Pawna. PW 7 and her husband leaving the residence of the accused shifted to the house of an Advocate named Pyare Baboo. 3. After finishing her examination of certain papers, PW 7 along with her husband went to their house situated at village Pawna. The deceased Sheo Shankar on being asked by his brother Sudama Ram, the informant told him the entire story relating to the evil design of the accused to have sexual connection with PW 7 and the protest made by her against his action as well as the altercation and assault that took place between the accused and the deceased and also threat hurled by the accused on the life of the deceased Sheo Shankar Ram. The informant Sudama Ram (PW 8) had reasonable apprehension that the accused might assault his brother and so he accompanied his brother Sheo Shankar Ram and his wife (PW 7) to Arrah where PW 7 was to appear at the examination of the rest subjects and all the three persons went to Arrah. On 17-3-1986 PW 7 went to her examination centre to appear at the examination. At about 3 p.m. While PW 7 was in Examination Hall her husband Sheo Shankar Ram and his brother Sudama Ram (PW 8) had been in the compound of Sone Cannal department where they were to wait there till the examination was to be over. The accused went to the deceased Sheo Shankar Ram who was lying on the grassy lawn and PW 8 was moving a little away from there. The accused soon gave a dagger blow on the deceased Sheo Shankar Ram on his neck and he took to heels. PW 8 raised alarm and he chased the accused to some distance. However, he could not catch hold of him and he ran away after crossing the boundary wall of the compound referred to above. Certain M.M.P. Constables such as Keshaw Ram (PW 1), Gopal Sharma (PW 2), Jageshwar Ram (PW 3) and Murli Singh (PW 4) who had been on examination duty also happened to reach the scene of occurrence and some of them saw and identified the accused fleeing away after committing crime and they also followed the accused but, in vain as he jumped the compound wall and made good escape. 4. 4. The aforesaid prosecution witnesses including the informant went near the place where the injured Sheo Shankar Ram was lying in a pool of blood and some one of the aforesaid constables gave a chit of paper (marked material Ext. III), which contained the writings that it was a boy of village Shobhi Dumra, said to have been written by the deceased as he was not in a position to speak. Soon the witnesses put the injured Sheo Shankar on a rickshaw for taking him to hospital. However, he succumbed to his injury on way to the hospital. The deceased was taken to the hospital where fardbeyan (Ext. 3) of the informant was recorded at about 4 p.m. on the basis of which a formal FIR was drawn up and the case was registered. Investigation started and after completion of the same chargesheet was submitted. "3. Learned Additional Sessions Judge held that the cold-blooded murder of Sheo Shankar Ram at the time and place as alleged by the prosecution is beyond any controversy. It is relevant to mention that Dr. B.P. Yadav, who had performed autopsy on the dead-body of the deceased Sheo Shankar Ram, found only one single injury on the person of the deceased which was lacerated wound 1-1/2" x 1" x cavity deep and the trachea was half cut on the right side. On exploration of the wound, clotted-blood poured into exterior. The oesophagus is also out into two halves. Some rice particles came out through the wound. On dissection the stomach contained about 4 ounce of clotted-blood. 4. The informant was elder brother of the deceased. He was the eyewitness only of the occurrence. Learned Additional Sessions Judge, however held that the evidence of the informant Sudama Ram and amply corroborated by Keshav Ram (PW 1), Gopal Sharma (PW 2), Jageshwar Ram (PW 3) M.M.P., Murli Singh, M.M.P. Havildar (P.W 4). These functionaries were on duty to maintain law and order at the Examination Centre. PW 2 Gopal Sharma claims to have identified the appellant running away. This witness chased the appellant but could not apprehend. The appellant is said to have escaped jumping over the boundary wall. The appellant was looking behind time to time while trying to escape after jumping over the wall. PW 2 Gopal Sharma claims to have identified the appellant running away. This witness chased the appellant but could not apprehend. The appellant is said to have escaped jumping over the boundary wall. The appellant was looking behind time to time while trying to escape after jumping over the wall. This witness further stated that he had given a piece of paper to the deceased to mention the name of the accused. The deceased wrote "it was a boy of Sobhi Dumra". The paper was smeared with blood. 5. Before the Trial Court. the evidence of the informant was attacked by the defence Counsel on the ground that he was own brother of the deceased and interested witness and his evidence was not fit to be relied on. That was the only criticism advanced in this behalf in the Trial Court. 6. Mr. Rana Pratap Singh learned Senior Counsel for the appellant vehemently attacked the finding of the Trial Court that the informant had witnessed the occurrence. Learned Counsel has referred to the evidence of Urmila Devi, widow of the deceased Sheo Shankar Ram. In her statement before the Police, she had not stated that the informant was with his brother. She had not stated that she along with her deceased husband had gone to Arrah where she had to appear in the examination. This witness was married to the deceased in village Pawna. P.S. Sandesh. The occurrence took place at about 3.00 p.m. and the case was registered at 6.00 p.m. but the case number was given on the inquest report which was prepared at 4.00 P.m. which was not possible. 7. The fardbeyan was recorded at 4.00 p.m. There is no delay in recording the fardbeyan. We, therefore, agree with the learned Additional Sessions Judge that Sudama Ram was a reliable witness. He had seen the occurrence. The conviction of the appellant is quite proper and the judgment does not warrant any interference. The question for consideration is whether the appellant has been rightly convicted under Sec. 302. IPC or was liable to be convicted only under Sec. 304. Part I of the Indian Penal Code. As held by the Supreme Court in Virsa Singh V/s. State of Punjab, the prosecution must prove the following before, it can bring a case under Sec. 300. IPC or was liable to be convicted only under Sec. 304. Part I of the Indian Penal Code. As held by the Supreme Court in Virsa Singh V/s. State of Punjab, the prosecution must prove the following before, it can bring a case under Sec. 300. Indian Penal Code third Clause: "(1) It must establish, quite objectively, that a bodily injury is present. (2) The nature of the injury must be proved; these are purely objective investigations. (3) It must be proved that there was an intention to inflict that particular injury, that is to say that it was not accidental or unintentional or that some other kind of injury was intended. (4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the inquiry is purely objective and inferential and has nothing to do with the intention of the offender. The third clause of Sec. 300, Indian Penal Code consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury that is found to be present and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death. The words "and the bodily injury intended to be inflicted" are merely descriptive. All this means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature it must in addition be shown that the injury found to be present was the injury intended to be inflicted. Whether, it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention." 8. There is earlier case law in Reg V/s. Govinda, in which the distinction between culpable homicide and murder is distinguished by Melvill, J. In that case, the accused knocked his wife down, put one knee on her chest and struck her two or three violent blows on the face with the closed fist, producing extravasation of blood on the brain and she died in consequence. It was held that there was no intention to cause death and bodily injury is not sufficient in ordinary course of nature to cause "death. The offence committed was not murder but culpable homicide. 9. In Public Prosecutor V/s. Somasundaram, a Division Bench of Madras High Court held as follows: "The intention or knowledge necessary in order to render killing culpable homicide must be clearly proved by the prosecution, which can usually be done by proof of the circumstances which prove the act or omission in question, for the presumption is that a man knows the probable result of his conduct. The fact that such knowledge is accompanied by indifference whether death or serious injury is caused or not, or even by a wish that it may not be caused, makes no difference." 10. In the instant case, no doubt, one dagger blow was given from behind. This by itself does not prove the intention of the appellant to cause death of the deceased. The appellant was a boy at the time of occurrence. He had grievance against the deceased. He had altercation with the deceased. From the evidence on record, it cannot be conclusively determined that he intended to cause death of Sheo Shankar Ram. 11. In Virsa Singhs case (supra), Bose, J. said that intention is there or not is one of fact and not one of law and whether the wound is serious or otherwise, and if serious, how serious, is totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. 12. Under the circumstances, the conviction of the appellant under Sec. 302, IPC is not warranted. He is liable under Sec. 304, Part-It IPC. He is acquitted of the charges under Sec. 302, IPC. The appellant has remained in custody for more than 13 years. His sentence is reduced to the period already undergone by him. The appellant shall be released from custody forthwith if not required in any other case. 13. With the above modification, this appeal is dismissed.