JUDGMENT - SINHA D.D., J.:---The appellant has challenged the judgment and order of conviction dated 16-5-1998 passed by the learned Additional Sessions Judge, Akola, in Sessions Trial No. 173 of 1997, whereby the appellant/accused is convicted for the offence punishable under section 302 of Indian Penal code and is sentenced to suffer imprisonment for life and to pay a fine of Rs. 300/-, in default to suffer rigorous imprisonment for one month. 2. The material facts and circumstances which have given rise to the prosecution of the appellant/accused can be summarized as follows: On 30-7-1997 at about 11.30 a.m., the appellant/accused came to the house of his father-in-law at Dahihanda. At the relevant time the complainant Pramila (P.W. 1), mother of deceased Priya and wife of the accused, was staying at the house of her father. It is the prosecution case that no sooner the accused came to the house of his father-in-law on the day of the incident, he started quarrelling with complainant Pramila. The accused was telling his wife Pramila (P.W. 1) that she was not of a good character (the word used in vernacular by the accused was "Badmash") and he is not the father of her daughter Priya. It is alleged by the prosecution that the accused immediately thereafter started assaulting the complainant Pramila by giving slaps and fist blows. The accused picked up an axe which was lying in the house of the father of complainant Pramila and gave a blow by the same on the abdomen of child Priya from its blunt side. At that time the complainant Pramila (P.W. 1) and Jaywantabai (P.W. 2) grand mother-in-law of the accused, were present in the house. Injury was caused to the child Priya due to the axe blow given by the accused. Pramila (P.W. 1) then took the child Priya to the hospital where Priya was declared dead by the doctor. 3. In order to unfold the prosecution case, the prosecution has examined two material witnesses, namely Pramila (P.W. 1) and Jaywantabai (P.W. 2). The evidence of these two witnesses is corroborated by the evidence of Dr. Sadhwani (P.W. 4) who has conducted autopsy on the dead body of deceased Priya. 4. Mr. Daga, learned Counsel, for the appellant does not dispute the incident in question. The evidence of these two witnesses is corroborated by the evidence of Dr. Sadhwani (P.W. 4) who has conducted autopsy on the dead body of deceased Priya. 4. Mr. Daga, learned Counsel, for the appellant does not dispute the incident in question. However, it is contended that the prosecution in the present case did not succeed in bringing home the guilt of the accused for the offence punishable under section 302 of Indian Penal Code, since the act of the accused was without any intention to cause the death. Mr. Daga, learned Counsel, contended that taking into consideration the facts and circumstances of the instant case, particularly the relationship between the parties, the act of the accused would fall within the ambit of section 304 Part II of Indian Penal Code. Mr. Daga contended that there is nothing on record to show that the act is premeditated. There is nothing on record to show that the same is intended to cause the murder of baby child. It is submitted that in the given set of facts the finding of conviction recorded by the trial Court for the offence punishable under section 302 of Indian Penal Code may be set aside and the accused/appellant, at the most, can be convicted for the offence punishable under section 304 Part II of Indian Penal Code. It is further contended that the accused has already undergone substantive sentence of five years and he, therefore, he may be released on the basis of the sentence already undergone. 5. Mrs. Jog, learned Additional Public Prosecutor, on the other hand, contended that the evidence of Pramila (P.W. 1) and Jaywanta (P.W. 2) coupled with the medical evidence succeeded in proving the offence punishable under section 302 of Indian Penal Code against the accused. The evidence of Pramila (P.W. 1) and Jaywanta (P.W. 2) would show that at the relevant time the accused was armed with an axe, the child Priya was sleeping on the cot and there was a quarrel between complainant and the accused. It has also come in their evidence that the accused had a suspicion about the character of his wife Pramila (P.W. 1) and therefore abused her on this count and had gone to the extent of saying that he is not the father of the child. It has also come in their evidence that the accused had a suspicion about the character of his wife Pramila (P.W. 1) and therefore abused her on this count and had gone to the extent of saying that he is not the father of the child. It has further come in the evidence of these two witnesses that the accused gave a blow by axe, though from the blunt side, on the person of the child Priya who received serious injury on her abdomen which has resulted in her death. It is further contended that the version of Pramila (P.W. 1) and Jaywanta (P.W. 2) being corroborated by the medical evidence, the verdict of conviction awarded by the trial Court is sustainable in law. 6. We have given our anxious thought to the rival contentions canvassed by the respective learned Counsel. Mr. Daga, learned Counsel, more or less, admitted the incident in question and, therefore, we are mainly required to consider whether the act of the accused, in the present case, would amount to murder as per section 300 of Indian Penal Code or it would fall within the ambit of section 304 Part II of Indian Penal Code. 7. Before we adjudicate upon this aspect of the matter, it would be relevant to mention few material facts in this regard. Accused is the husband of Pramila (P.W. 1) and father of deceased Priya. At the relevant time the deceased Priya was about two months old. The accused was suspecting the character of his wife Pramila and probably was under the impression that he is not the father of child Priya. On the relevant day, the accused went to the house of his father-in-law where Pramila (P.W. 1) was staying. There a quarrel ensued between the accused and Pramila. While the exchange of hot words were going on between the accused and Pramila, the accused all of a sudden picked up an axe, which was lying in the house, and delivered a blow from the blunt side of the axe on the abdomen of the child Priya. 8. It must be borne in mind that to render culpable homicide murder, the case must come within the provisions of Clauses 1stly, 2ndly, 3rdly or 4thly of section 300 of Indian Penal Code and must not fall within any of the five exceptions attached thereto. 8. It must be borne in mind that to render culpable homicide murder, the case must come within the provisions of Clauses 1stly, 2ndly, 3rdly or 4thly of section 300 of Indian Penal Code and must not fall within any of the five exceptions attached thereto. Offence under section 302 of Indian Penal Code presupposes an offence under section 299 of Indian Penal Code. However, offence under section 299 becomes an offence under section 302 of Indian Penal Code if it is committed with the intention or knowledge described in the four Clauses or either of the four Clauses of section 300 of Indian Penal Code. When the act of the accused results in death then one has to consider at the first instance itself as to whether the act of the accused falls under any of the clauses of section 300 of Indian Penal Code and if it is possible to hold that the culpable homicide falls under any of the four clauses of section 300 and the prosecution has succeeded in proving this aspect of the matter then the Court is required to find out whether the offence proved falls under one of the exceptions. On the other hand, if the requirements of section 300 of Indian Penal Code are not fulfilled and the offence does not fall under any of its four clauses, the Court should proceed to see whether it was committed with one of the intentions mentioned in Part I or only with the knowledge described in Part II of section 304 of Indian Penal Code. 9. The 1st Clause of section 300 of Indian Penal Code contemplates that culpable homicide is murder if by the act by which the death is caused is committed with the intention of causing death. The 2nd Clause deals with the act of intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. The mental attitude inbuilt in these clauses is two fold. Firstly, there is an intention to harm cause, and secondly there has to be knowledge that death will be the likely consequence of intended injury. The mental attitude inbuilt in these clauses is two fold. Firstly, there is an intention to harm cause, and secondly there has to be knowledge that death will be the likely consequence of intended injury. The 3rd Clause deals with the act done with the intention of causing bodily injury to a person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In this clause, the result of the intentionally caused injury must be seen objectively to the injury that the offender intends to cause and does cause, is sufficient to cause death in the ordinary course of nature, the offence is murder. The 4th Clause comprehends generally the commission of imminently dangerous act which must, in all probability, cause death and the injury is sufficient in the ordinary course of nature to cause death. At the same time, the factors which would reduce the murder to culpable homicide also needs to be kept in mind while adjudicating upon this aspect of the matter. Those are: (i) It should have been committed without premeditation or; (ii) It should have been committed upon a sudden quarrel; (iii) It should have been committed in a heat of passion; and (iv) It should be committed without the offender taking undue advantage or acted in a cruel or unusual manner. 10. In other words, section 300 of Indian Penal Code takes into ambit the four serious types of culpable homicide basing on mens rea. They are an act with the intention of causing death, an act with the intention of causing such bodily injury as the vendor knows to be likely to cause death, an act with the intention of causing such bodily injury which is sufficient in the ordinary course of nature to cause death to any person and an act which the offenders knows to be so imminently dangerous that it must in all probability cause death. In these four types of culpable homicide amounting to murder, the mens rea in the first three types is constituted by different types of intention and in the last knowledge and if the offence does not fall within one of the four types mentioned in section 300, the question of application of exception does not arise. 11. In these four types of culpable homicide amounting to murder, the mens rea in the first three types is constituted by different types of intention and in the last knowledge and if the offence does not fall within one of the four types mentioned in section 300, the question of application of exception does not arise. 11. In the instant case, the accused at the relevant time was having heated arguments with his wife and during the course of such argument he happened to see an axe lying nearby which was suddenly picked up by him and delivered a blow from the blunt side of the axe on the person of Priya. The entire sequence does not show that the act of the accused is either premeditated or preplanned. Similarly, the evidence on record would further show that the accused upon a quarrel with his wife all of a sudden without any design in the mind delivered a blow from the blunt side of the axe on the person of child Priya and the same has been done by the accused in a heat of passion. The evidence on record would show that the act committed by the accused totally rules out the respect of intention either to cause death or cause such bodily injury as the accused knew to be likely to cause death. Similarly, the evidence on record would further show that there was no intention on the part of the accused of causing bodily injury to child Priya which he intended to be inflicted was sufficient in the ordinary course of nature to cause death. Looking to the facts and circumstances brought on record, it is difficult for us to hold that the accused either had the intention to cause death of Priya or had intention of causing such bodily injury as he knew to be likely to cause death. On the other hand, the circumstances in which the accused had picked up the axe from the place of incident and all of a sudden delivered the blow from the blunt side of the axe on the person of Priya, cannot be said to be a premeditated act and is done in a heat of passion during the course of the quarrel which was going on between the accused and his wife. Similarly, we cannot lose sight of the fact that the blow given by the accused was from the blunt side of the axe and if the accused really intended to cause death of Priya then in all probability he would have given the blow from the sharp side of the axe. The very fact that he did not do so is consistent with the fact of absence of intention required and contemplated under the first three clauses of section 300 of Indian Penal Code. Similarly, in the facts and circumstances of the present case, this would also not fall within the ambit of Clause fourthly of section 300 of Indian Penal Code. 12. Now it is necessary for us to consider whether the act of the accused would fall within the ambit of section 304 Part II of Indian Penal Code. In the instant case, the factum of intention to cause death is absent and, therefore, we have already observed that the offence would not fall under section 300 of Indian Penal Code. The provisions of section 304 Part II of Indian Penal Code contemplates that if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the evidence adduced by the prosecution is short of making out a case that the accused had the intention to cause such bodily injury as he knew to be likely to cause death. In absence of proof that the accused had the intention of inflicting such bodily injury as is sufficient in the ordinary course of nature to cause death and on the basis of the facts and circumstances brought on record by the prosecution, we are of the considered view that though the accused had knowledge that the injury is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death and, therefore, in the given set of facts, in our opinion, the act of the accused would come within the purview of section 304 Part II of Indian Penal Code. 13. 13. For the reasons stated hereinabove, we are of the view that the offence committed by the accused would come within the ambit of section 304 Part II of Indian Penal Code and, therefore, the sentence awarded by the trial Court to the appellant under section 302 of Indian Penal Code is hereby modified and the accused is now hereby convicted for the offence punishable under section 304 Part II of Indian Penal Code and is sentenced to suffer rigorous imprisonment for a period of eight years. The sentence of fine awarded by the trial Court is hereby maintained. The appeal is partly allowed. Appeal partly allowed. -----