B. SESHASAYANA REDDY, J. ( 1 ) THIS Criminal Appeal is directed against the judgment dated 11-11-2002 passed in sessions Case No. 2 of 2002 on the file of the i Additional District and Sessions Judge, kurnool, whereby and where under sole accused-Aspari Hanumanthu was found guilty for the offences under Sections 302 and 326 IPC and was convicted accordingly and was sentenced to suffer Rigorous imprisonment for life for the offence under section 302 IPC and Rigorous Imprisonment for one year and fine of Rs. 1,000/- in default imprisonment for six months for the offence under Section 326 IPC. ( 2 ) THE appellant is the sole accused in sessions Case No. 2 of 2002 on the file of I additional District and Sessions Judge, kurnool. He was put on trial for the offences under Sections 302 and 326 IPC. ( 3 ) THE prosecution case in nutshell is as follows: accused-Aspari Hanumanthu married p. W. 4-Gowramma the daughter of P. W. 3- v. Hanumakka. They had a male child out of the wedlock. The accused suspected the fidelity of his wife-P. W. 4 and on that score differences arose between them. P. W. 1- sunkappa had a dog bite and therefore p. W. 4-Gowramma along with her son aged about eight months came to his house to see him. On 19-6-2001 at about 11 -00 a. m. P. W. 1 his wife-deceased Narsamma, P. W. 3 H. Hanumakka and the wife of the accused p. W. 4-Gowramma were taking meal. The accused went there and demanded his mother-in-law (P. W. S-Hanumakka) to return his child as well as talibottu which he tied to his wife (P. W. 4-Gouramma) There upon p. W. 1 asked the accused to bring the elders for snapping talibottu and custody of minor child. The accused got enraged and attempted to stab his mother-in-law- (P. W. 3 hanumakka ). P. W. 1 intervened and came in rescue of P. W. 3 and thereupon he received a blow on the left side of ribs and sustained bleeding injuries. On seeing P. W. 1 receiving bleeding injury, his wife the deceased intervened and thereupon the accused stabbed her with M. O. 3 dagger and thereby caused serious injury, resulting instantaneous death. P. W. 3 shifted P. W. 1 to government Hospital for treatment. P. W. 10 dr. On seeing P. W. 1 receiving bleeding injury, his wife the deceased intervened and thereupon the accused stabbed her with M. O. 3 dagger and thereby caused serious injury, resulting instantaneous death. P. W. 3 shifted P. W. 1 to government Hospital for treatment. P. W. 10 dr. C. Sreedevi, Civil Assistant Surgeon examined P. W. 1 and found a stab injury over the left side of chest adjacent to left nipple of size x with pleura deep with fresh bleeding. Ex. P-7 is the wound certificate issued by her. P. W. 12-C. S. Wali Basha, assistant Sub-Inspector of Police, Adoni II town Police Station, received a phone message from Government Hospital, Adoni, regarding admission of P. W. 1 in the Hospital for treatment. He rushed to the Hospital, recorded statement of P. W. 1, returned to police station, registered a case in Crime no. 40 of 2001 under Sections 324,307 and 302 IPC and issued Ex. P-12-FIR. At about 12-40 p. m. on the same day, the accused himself went to the Police station and informed the police that he received injury due to hurling of stones by neighbours of P. W. 1 while he was escaping from Indiranagar of adoni town. P. W. 12 sent the accused to hospital. P. W. 10 examined the accused and found one abrasion of size x below the left eye and swelling of upper lip on the lateral side 1"x1". She issued Ex. P-8 wound certificate. P. W. 11 A. V. Prasad Rao, Sub-Inspector of Police, Adoni II Town Police station, took up the investigation went to government Hospital, Adoni, and examined p. W. 1 and recorded his statement under section 161 Cr. P. C. and seized blood stained clothes- (M. O. 1-white half shirt and M. P. 2- banian) under the cover of Ex. P-3 panchanama in the presence of P. W. 8 and l. W. 13-Nagaraju. He proceeded to scene of offence and conducted inquest on the dead body of deceased Narsamma in the presence of P. W. 7-B. Satyanath and L. W. 10 Srinivasa rao. He examined P. Ws. 2 to4 and recorded their statements. He seized M. O. 6-Blood stained earth and M. O. 7-Controlled earth while observing the scene of offence. After completion of inquest, the dead body was sent for post mortem examination. He examined P. Ws. 2 to4 and recorded their statements. He seized M. O. 6-Blood stained earth and M. O. 7-Controlled earth while observing the scene of offence. After completion of inquest, the dead body was sent for post mortem examination. P. W. 9-C. H. A. Padmavathi conducted post mortem examination on the dead body of the deceased on 20-6-2001 at 10-15 a. m. and found a stab injury on the left side of chest below the axilla 6 cms. x 2 cms. x 9 cms. He issued Ex. P-6 the Post Mortem report opining that the deceased appeared to have died of shock and hemorrhage due to injury on the vital structural lung 18 to 24 hours prior to post mortem examination. ( 4 ) P. W. 13-P. Adinarayana, Inspector of police, Adoni town took up investigation and effected arrest of the accused and recovered m. O. 3-Dagger in the presence of P. W. 8- m. Lakshmana Rao. He forwarded the material objects to the JMFC Adoni along with letter of advice and requisition for onwards transmission to RFSL, Anantapur. Ex. P-13 is the requisition and Ex. P-14 is the letter of advice. On receipt of RFSL Report-Ex. P. 15, P. W. 14 Syed Jaffar, Inspector of police, II Town P. S. , Adoni, laid chargesheet in the Court of the Juddl. Magistrate of first Class, Adoni. ( 5 ) THE learned Magistrate took the charge sheet on file as P. R. C. No. 31 of 2001 and committed the case to the Court of Sessions as the offence under Section 302 IPC is exclusively triable by a Court of Session. On committal, the learned Sessions Judge took the case on file as S. C. No. 2 of 2002 and made over the same to I Additional District and Sessions Judge Kurnool for disposal in accordance with law. ( 6 ) ON appearance of the accused and on hearing the prosecution and accused, the learned Sessions Judge framed the charges. Firstly, for the offence under Section 302 IPC for causing death of Harijana Narasamma and Secondly, for the offence under section 326 IPC causing grievous hurt to p. W. 1 Talari Sunkappa. The charges were read over and explained to the accused, for which the accused pleaded not guilty and claimed to be tried. Firstly, for the offence under Section 302 IPC for causing death of Harijana Narasamma and Secondly, for the offence under section 326 IPC causing grievous hurt to p. W. 1 Talari Sunkappa. The charges were read over and explained to the accused, for which the accused pleaded not guilty and claimed to be tried. ( 7 ) TO bring home the guilt of the accused for the offences with which he stood charged, prosecution examined 14 witnesses and marked 15 documents and exhibited seven material objects. On behalf of the defence neither ocular nor documentary evidence was adduced. ( 8 ) P. W. 1 is the complainant and he is injured in the incident. P. W. 2 is son, P. Ws. 3 and 4 are the daughters of P. W. 1. P. Ws. 5 and 6 are neighbours to P. W. 1. P. W. 7 is the panch witness for the inquest. P. W. 8 is the panch witness for seizure of blood stained clothes (M. Os. 1 and 2) of P. W. 1 under the cover of Ex. P-3 panchanama. P. W. 9 is the doctor who conducted post mortem examination and issued Ex. P-6-Post Mortem report. P. W. 10 is the doctor who medically examined P. W. 1 as well as the accused and issued Ex. P-7 and P-8 wound certificates. P. Ws. 11 to 14 are the Investigating Officers. ( 9 ) AFTER the closure of the prosecution evidence, the learned Sessions Judge examined the accused under Section 313 cr. P. C. , putting the substance of the incriminating circumstances appearing against him from the evidence of prosecution witnesses. The accused denied the incriminating circumstances. He did not choose to adduce any evidence either oral or documentary. It is the defence of the accused that P. W. 1 attempted to kill him with a dagger and the dagger missed the aim and pierced into the stomach of the deceased. ( 10 ) LEARNED Sessions Judge, on considering the evidence on brought on record and on hearing the prosecution and the accused found the accused guilty for the offences under Sections 302 and 326 IPC and convicted him accordingly and sentenced him as stated supra. ( 11 ) HEARD Ms. Ammaji Nettem learned legal aid counsel appearing for the appellant and learned Public Prosecutor appearing on behalf of the State. ( 11 ) HEARD Ms. Ammaji Nettem learned legal aid counsel appearing for the appellant and learned Public Prosecutor appearing on behalf of the State. ( 12 ) LEARNED Legal Aid Counsel appearing for the appellant-accused submits that P. W. 1 suppressed the real version of the incident and foisted a false case against the accused. She would further contend that the police in spite of receiving oral complaint of the accused and referring him to the hospital did not choose to register a crime and thereby suppressed true version of the incident. Lastly she submits that even if the entire version of the prosecution is believed, the offence made out against the accused would be under section 304 Part-ll IPC. In elaborating her arguments, it is submitted that the accused has no intention to do away the life of the deceased who is the grand mother of his wife and the blow fell on the deceased when the deceased came in rescue of P. W. 1 and thus the ingredients of culpable homicide amounting to murder are not attracted to sustain the conviction of the appellant/ accused for the offence under Section 302 ipc. ( 13 ) ON the other hand, learned Public prosecutor supported the judgment of the trial Court. According to him, the trial Court relied on the testimony of injured who has been examined as P. W. 1 and the eye witnesses who have been examined as p. Ws. 2 to 4, apart from circumstantial witnesses examined as P. Ws. 5 and 6 in recording the conviction of the appellant- accused for the offence under Section 302 ipc and therefore, the conviction of the accused for the offence under Section 302 ipc is legal and proper and the same is not liable to be interfered in the appeal. ( 14 ) UNDISPUTEDLY accused and P. W. 4 are husband and wife. Some dispute arose between them and therefore P. W. 4 was staying with her mother who was examined as P. W. 3. On the date of incident, P. Ws. 3 and 4 came to the house of P. W. 1 to see him as he had a dog bite. According to the prosecution, the accused came to the house of P. W. 1 and asked his mother-in-law P. W. 3 to give custody of the child and return the talibottu of his wife-P. W. 4. 3 and 4 came to the house of P. W. 1 to see him as he had a dog bite. According to the prosecution, the accused came to the house of P. W. 1 and asked his mother-in-law P. W. 3 to give custody of the child and return the talibottu of his wife-P. W. 4. Then P. W. 1 asked the accused to bring the elders for handing over the custody of the child and return the talibottu of his wife-P. W. 4. Then P. W. 1 asked the accused to bring the elders for handing over the custody of the child and for returning the talibottu from P. W. 1-Gouramma. P. W. 1 testifies that the accused picked up a dagger and attempted to stab P. W. 3 and when he intervened, the accused stabbed him on left side rib and caused bleeding injury. He further testifies that when his wife-deceased narsamma came in rescue of him, the accused stabbed her and thereby caused serious injury for which she met with instantaneous death. The incident occurred on 19-6-2001 at 11. 00 a. m. The injured- p. W. 1 was shifted to the hospital on the same day at 12-00 noon. P. W. 10 medically examined P. W. 1 and issued Ex. P-7 wound certificate. P. W. 12 S. H. O. II Town P. S. Assistant Sub-Inspector of Police received the intimation with regard to admission of p. W. 1 in the hospital, reached there and recorded his statement which formed basis for registration a case in Crime No. 40 of 2001 under Sections 324, 307 and 302 IPC. The names of P. Ws. 3 and 4 find place in the First information Report. The version of P. W. 1 is consistent in the first Information Report, police statement and evidence before the court. His testimony is fully corroborated by the evidence of P. Ws. 3 and 4 in all material aspects. P. W. 2 is the son of P. W. 1. He resides next to the house of P:w. 1. It is his evidence that the accused pointed dagger towards P. W. 3 and when P. W. 1 intervened, the accused stabbed P. W. 1 on the left side below chest. He further testifies that when his motherdeceased Narsamma intervened, the accused stabbed P. W. 1 on the left side below chest. It is his evidence that the accused pointed dagger towards P. W. 3 and when P. W. 1 intervened, the accused stabbed P. W. 1 on the left side below chest. He further testifies that when his motherdeceased Narsamma intervened, the accused stabbed P. W. 1 on the left side below chest. He further testifies that when his mother deceased Narsamma intervened, the accused stabbed her with a dagger on the left side nearthe waist and thereby caused serious injury for which she met with instantaneous death. P. Ws. 5 and 6 are neighbours to P. W. 1 and they stated that the accused demanded P. W. 1 for return of talibottu and handing over the child. On hearing the cries of the woman, they rushed to the scene of offence and found the deceased lying dead and the accused fleeing away from the scene. ( 15 ) THE evidence of P. Ws. 1 to4 is cogent and convincing and nothing is made out in the cross-examination to discredit their testimony. The trial Court is justified in placing reliance of the testimony of P. Ws. 1 to 4. ( 16 ) P. W. 8 is the Panch witness for recovery of M. O. 3-dagger in pursuance of the disclosure of the accused. It is stated by p. W. 8 that on 21-6-2001 at about 6. 15 p. m. the accused led him and police to the bridge from where the accused picked up M. O. 3 dagger and produced the same before the police. The accused did not choose to cross examine this witness. The evidence of this witness remained unchallenged. P. Ws. 1 to 4 consistently stated that M. O. 3 is the crime weapon. This circumstances also clinches participation of the accused in the commission of offence. ( 17 ) LEARNED Legal Aid Counsel appearing for the appellant strenuously contended that the injuries received by appellant/accused are not properly explained by the prosecution and therefore, the version of P. W. 1 is not free from suspicion. We do not see any substance in her contention, since the injury received by the appellant/accused are trivial in nature i. e. an abrasion x below the left eye and a swelling on the lateral side of upper lip. ( 18 ) THE next question is what is the offence committed by the accused. We do not see any substance in her contention, since the injury received by the appellant/accused are trivial in nature i. e. an abrasion x below the left eye and a swelling on the lateral side of upper lip. ( 18 ) THE next question is what is the offence committed by the accused. It has come on record that the accused had grievance against his mother-in-law who is examined as P. W. 3. The accused asked his mother-in-law- P. W. 3 to hand over the custody of the child and the talibottu from his wife- P. W. 4. When the accused attempted to assault P. W. 3, P. W. 1 intervened and thereby blow fell on him and so also a blow fell on the deceased, who came in rescue of her husband- P. W. 1. It can be said without any controversy that the accused had no intention to cause death of the deceased. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the ipc culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans special characteristics of murder is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called culpable homicide of the first degree. This is the greatest form of culpable homicide, which is defined in Section 300 as murder. The second may be termed as culpable homicide of the second degree. This is punishable under the first part of Section 304. Then, there is culpable homicide of the third degree. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. ( 19 ) THE academic distinction between murder and culpable homicide not amounting to murder has always vexed the courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the Legislature in these sections, allow themselves to be drawn into minute abstractions. ( 19 ) THE academic distinction between murder and culpable homicide not amounting to murder has always vexed the courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the Legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done- INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likeely to cause the death of the person to whom the harm is caused; or . (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that The act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death and without any excuse for incurring the risk of causing death or such injury as is mentioned above. ( 20 ) CLAUSE (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. ( 20 ) CLAUSE (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health orcondition lt is noteworthy that the intention to cause death is not an 193 essential requirement of clause (2 ). Only the intention of causing the bodily injury coupled with the offender s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. ( 21 ) CLAUSE (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen orthe failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of section 300, instead of the words likely to cause death occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily INury sufficient In The ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily INury sufficient In The ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word likely in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury. . . . . sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. ( 22 ) UNDISPUTEDLY P. W. 1 received the blow when he went in rescue of P. W. 3 and the deceased received blow when he went in rescue of P. W. 1. The accused asked P. W. 3 who is his mother-in-law to handover the custody of his child and talibottu which he tied to P. W. 4. The facts and circumstances of the case clearly establish that the accused has no intention to inflict a particular injury to do away the life of the deceased or to inflict a particular injury which is likely to cause death. Having regard to the facts and circumstances of the case, we find that the offence committed by the accused comes within the ambit of Section 304-Part (II) of ipc. ( 23 ) IN the result, the appeal is partly allowed setting aside the conviction and sentence of the accused for the offence under Section 302 IPC and instead he is convicted for the offence under Section 304 part II IPC and sentenced to suffer R. I. for five years. The conviction and sentence for the offence under Section 326 IPC is confirmed.