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2012 DIGILAW 1306 (GAU)

Munindra Hazarika @ Kolia v. State of Assam

2012-12-03

I.A.ANSARI, P.K.MUSAHARY

body2012
JUDGMENT P.K. Musahary, J. 1. This appeal is preferred by a convict from jail against the judgment dated 16.10.2006 rendered by the learned Addl. Sessions Judge (FTC), Lakhimpur, North Lakhimpur in Sessions Case No. 23(NL)/2001 convicting under Sections 325/ 326/ 302 IPC and sentencing him to suffer rigorous imprisonment for 7 (seven) years under Section 325 IPC; rigorous imprisonment for 10 (ten) years under Section 326 IPC and imprisonment for life under Section 302 IPC and also to pay fine of Rs. 1,000/- under Section 325 IPC and in default, to undergo rigorous imprisonment for 3 (three) months; Rs. 2,000/- under Section 326 IPC and in default rigorous imprisonment for 6 (six) months and Rs. 3,000/- under Section 302 IPC; in default, rigorous imprisonment for 6 (six) months, further to pay a fine of Rs. 6,000/-, in total and in default of payment of fine to undergo rigorous imprisonment for a period of another 15 (fifteen) months, in total. By the same judgment, another accused, Shri Prabin Hazarika alias Akanman was convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/- and in default of payment of fine, to further undergo rigorous imprisonment for 3 (three) months acquitting him of other charges. The said convict Prabin Hazarika @ Akanman is not before this Court. 2. The story projected by the prosecution, in brief, is that on 27.9.2000 at around 8.30 P.M., the appellant, along with co-accused Prabin Hazarika, attacked the informant's two sons namely, Shri Brojen Rajkhowa @ Babul and Shri Prasanta Rajkhowa @ Dudul with dao and inflicted injuries on their persons. Babul received injury on his hand and his two fingers were severed and Dudul received serious head injury. They were shifted to North Lakhimpur Civil Hospital for treatment where Dudul succumbed to his head injury during treatment on 28.9.2000 at 5 A.M. 3. Shri Hem Chandra Rajkhowa, father of the victims lodged a written F.I.R. with the police, which was registered as N.L.P.S. Case No. 769/2000 under Section 326/ 302/ 34 IPC. The I/O of the case visited the place of occurrence, held inquest over the dead body and sent it for postmortem. Shri Hem Chandra Rajkhowa, father of the victims lodged a written F.I.R. with the police, which was registered as N.L.P.S. Case No. 769/2000 under Section 326/ 302/ 34 IPC. The I/O of the case visited the place of occurrence, held inquest over the dead body and sent it for postmortem. The I/O also examined the witnesses and recorded their statements and after collecting the postmortem report and on completion of the investigation, submitted the charge sheet against both the accused persons under Section 325/ 326/ 302/ 34 IPC. 4. The committal Magistrate committed the case to the Court of Sessions concerned. The learned Sessions Judge made over the case to the learned Addl. Sessions Judge (FTC), Lakhimpur, North Lakhimpur for disposal and on consideration of the materials on record framed the charge under Section 325/ 326/ 302/ 34 IPC against both the accused persons. The charge was read over and explained to the accused persons. Pleading not guilty, they claimed to be tried. 5. The learned trial Court examined the prosecution witnesses, 16 in number, including the I/O and the Medical Officer. The accused persons in their statement under Section 313 CrPC denied the case of the prosecution and stated to have been implicated falsely. But they declined to lead any evidence in support of their defence. The learned trial Court on the basis of the evidence on record found the accused persons guilty and convicted and sentenced them as stated earlier. The present appellant is serving the sentence. 6. We have heard Ms. B. Sarma, learned counsel appearing for the appellant as Amicus Curiae and also Mr. K.A. Mazumdar, learned Addl. Public Prosecutor for the respondent State. 7. Among the prosecution witnesses, P.W. 5 Shri Brojen Rajkhowa alias Babul received injury on his person. The learned trial Court has given utmost importance and weight to his evidence being an eye-witness of the said incident. What he has deposed is to be put on record and appreciated for disposal of this appeal. He deposed that he knew both the accused persons. The occurrence took place on 27.9.2000 at about 8.30 P.M. He has a shop and he closed it at 8 P.M. on the date of occurrence and thereafter, he came to his residence. What he has deposed is to be put on record and appreciated for disposal of this appeal. He deposed that he knew both the accused persons. The occurrence took place on 27.9.2000 at about 8.30 P.M. He has a shop and he closed it at 8 P.M. on the date of occurrence and thereafter, he came to his residence. While he was taking meal along with the younger brother Prasanta @ Dudul and father, Hem Chandra Rajkhowa, he heard the sound of beating his shop house by somebody. Hearing the sound, he immediately came out from his dwelling house and saw the accused Prabin Hazarika @ Kolia along with his wife and another boy standing in front of the shop house. He asked the accused Prabin not to shout or quarrel and asked them to go away. Then, the accused Prabin told him that the shop house should be removed from the site/land where it was standing. The shop house situates adjacent to his dwelling house. At the time when he came out of the dwelling house, his younger brother Dudul accompanied him and as he advised the accused persons to go away from the place, the accused Munindra gave a blow on the head of his younger brother Dudul with a mechi dao. He came forward to save/rescue Dudul but the dao blows of the accused Munindra aimed at his neck missed but fell on and severed his little finger. His severed little finger could not be found. Due to this he cannot work properly with the said hand. He shouted for help and hearing his shouting, another inmate of his house came out from the house. Due to the injuries he received on his hand and due to bleeding, he fell down on the ground near the shop. Then, his wife came out and shouted/alarmed. Some co-villagers/neighbours came to the place of occurrence. They took him and Dudul to North Lakhimpur Police Station and then, to the civil hospital for treatment. On the next day, at about 5 A.M., his younger brother Dudul succumbed to his injuries. After 3 days of treatment at North Lakhimpur Civil Hospital, he was referred to Guwahati Medical College & Hospital for further treatment. In cross examination, he has denied having any dispute with the accused persons over the shop. On the next day, at about 5 A.M., his younger brother Dudul succumbed to his injuries. After 3 days of treatment at North Lakhimpur Civil Hospital, he was referred to Guwahati Medical College & Hospital for further treatment. In cross examination, he has denied having any dispute with the accused persons over the shop. He denied the suggestion that he did not state before the I/O that accused Prabin Hazarika did not ask him to remove the shop from the existing place. He also denied the suggestion that he and his deceased brother Dudul obstructed/restrained the accused Kolia alias Munindra when he was proceeding on the road and that the deceased Dudul tried to cause injury to said accused Kolia with lathi and dao. 8. One Smti. Bulu Dutta, wife of P.W. 5 was examined as P.W. 6. She deposed that hearing the shouting etc. on the date of occurrence, she came out of her dwelling house. She heard the sound of beating on their shop house. Her husband Brojen Rajkhowa, P.W. 5 went out to save the shop house. Her brother-in-law (deor) Dudul also followed her husband. She saw both the accused persons, wife of accused Akanman and his elder son standing in front of the shop house, which was already closed. There was electric light at the verandah of the shop house. At that time, both the accused persons were uttering filthy language and her husband asked the accused persons to go away. Accused Akanman attacked Dudul, younger brother of her husband, by a piece of split bamboo and on being injured, he fell down in a ditch/drain by the side of the road. Accused Munindra, alias Kolia then gave dao blow on his head whereupon her husband Brajen proceeded to rescue him but the said accused Kolia gave dao blow aiming at the neck of her husband and when he obstructed the dao blow, he received injury on his left hand severing away his little finger. Having sighted the said incident, she fell down on the ground and began to shout. Hearing her shouting, the villagers came to the place of occurrence. Her injured husband and brother-in-law were taken to the police station and then to North Lakhimpur Civil Hospital for treatment. Having sighted the said incident, she fell down on the ground and began to shout. Hearing her shouting, the villagers came to the place of occurrence. Her injured husband and brother-in-law were taken to the police station and then to North Lakhimpur Civil Hospital for treatment. But her brother-in-law Prasanta succumbed to his injuries in the hospital at 5 A.M. In cross examination, she denied the suggestion that she was not present at the place of occurrence and that she did not see the occurrence personally. She also denied the suggestion that she deposed falsely to the effect that the accused Prabin assaulted deceased Dudul with a piece of split bamboo. 9. The prosecution examined Shri Hem Chandra Rajkhowa as P.W. 4. He is the lather of injured Brojen alias Babul. As per his evidence, he was taking meal with his sons injured Babul and deceased Dudul. At that time, the accused persons were rebuking and shouting outside his compound. The accused persons were beating their shop with lathi etc. His son Brojen went out and asked them to stop beating on the shop house. He heard the cry of his son Brojen alias Babul that the accused Kolia has cut his left hand. Hearing this, he rushed out and saw Brojen shaking his hand with bleeding injuries. At the same time, he also saw son Dudul lying on the ground inside the compound by the side of their courtyard in the shop house. He further saw the accused Kolia alias Munindra and Prabin running away from the place of occurrence towards their respective home. This witness also stated that his son Brojen Rajkhowa sustained injury with bleedings. His another son Dudul sustained injury on his head with profuse bleeding. His neighbours took his injured son to North Lakhimpur police station first and then, shifted to Civil Hospital for their treatment. On the next morning, Dudul died in the hospital. He then lodged the FIR with the Officer-in-charge of North Lakhimpur police station, Ext. 3. In cross examination, he stated that he was not present at the time of giving blows by the accused persons to his injured sons as he was inside the house at that time. He, however, denied that there was no electric light in and around the place of occurrence. 3. In cross examination, he stated that he was not present at the time of giving blows by the accused persons to his injured sons as he was inside the house at that time. He, however, denied that there was no electric light in and around the place of occurrence. He assuredly stated that he saw the accused persons running away from the place of occurrence from a distance of about 10 feet. He also saw the wife of the accused Prabin Hazarika standing at a distance of 100 metres from the place of occurrence. He denied the suggestion that his son Brojen Rajkhowa caught hold of accused Prabin Hazarika and assaulted him and his wife then tried to rescue him (Prabin) and she raised hue and cry. He also denied that his injured two sons caught hold of accused Kolia @ Munindra and attacked him with a dao and lathi. He flatly denied the suggestion that the injury sustained by accused Prasanta is not due to force applied by the accused to snatch away the dao from his hand. 10. The prosecution examined one Smti Surya Prova Dutta Baruah as P.W. 7. She was a tenant of the first informant at the relevant point of time. Her evidence is that she did not see the actual occurrence and quarrel between the parties. She deposed that after the occurrence, Dudul came and reported her that he was assaulted/injured by the accused Kolia. Then she dressed up/covered the bleeding injury/injured part with a 'gamocha'. When she came out from the dwelling house, she saw Brojen Rajkhowa who had already sustained injury. She along with another person escorted and taken the injured persons to police station and then, proceeded to North Lakhimpur Civil Hospital for their treatment. According to her deposition, at the police station Prasanta Rajkhowa gave his statement to police and police recorded his statement. On the next day, she got information that Prasanta succumbed to his injuries in the hospital. 11. The Medical Officer, Dr. Hemanta Kumar Dutta, who held autopsy on the dead body of Prasanta Rajkhowa, was examined as PW 13. According to him, the deceased was 19 years old. He proved the postmortem examination report which was marked as Ext. 5 and his signature thereon marked as Ext. 5(1). 11. The Medical Officer, Dr. Hemanta Kumar Dutta, who held autopsy on the dead body of Prasanta Rajkhowa, was examined as PW 13. According to him, the deceased was 19 years old. He proved the postmortem examination report which was marked as Ext. 5 and his signature thereon marked as Ext. 5(1). He also proved the signature of the Joint Director of Health Services, North Lakhimpur, who countersigned the postmortem report. He deposed that he found and recorded therein the following injuries :- .....sharp injury over the tendo acalis with signs of clotted blood. Conditions of the subject - healthy and rigor mortis present. Stitch wound over the left temporal region. Sharp injuries over both the post part of shoulder (both) oblique (2 cm x 3 cm x 1 cm size) with clotted blood deep into the bone. Mark of ligature on neck dissection is absent. Bruise present over the left pelvic region (post), scalp, skull, vertebra - Left temporal bone fractured deep into the subdurael region with exposed brain matter. Clotted blood present inside the cranial cavity. Membrane - Torn in left temporal region. Brain matter comes with old clotted blood. Spinal cord intact. Liver, spleen, kidneys, organs of generation etc. normal. Apparently healthy male with rigor mortis with multiple cut injuries mentioned above which were ante mortem in nature. OPINION In my opinion, the patient expired due to multiple cut injuries with severe hemorrhage inside the cranial cavity leading to shock. 12. Another Medical Officer Dr. Giasuddin Ahmed was examined as P.W. 9. On 27.9.2000 at 8 P.M., he was at the North Lakhimpur Civil Hospital. He examined injured Brojen Rajkhowa alias Babul. He found the following injuries :- 1) One amputated left little finger at mid-inter phalangal joint margins are sharp. 2) Dislocation of left ring finger and middle finger at metacarpo phalangeal joint. In his opinion, the Injury No. 1 was caused by sharp object and grievous in nature. The Injury No. 2 was caused by blunt object and grievous in nature. He proved the medical report, Ext. 4 and his signature thereon marked as Ext. 4(1). In cross examination, he clarified that the injuries sustained by the injured cannot be caused by scuffle between the two persons drawing a dao forcibly. He denied the suggestion that such injury might be caused by scuffle between the two persons. He proved the medical report, Ext. 4 and his signature thereon marked as Ext. 4(1). In cross examination, he clarified that the injuries sustained by the injured cannot be caused by scuffle between the two persons drawing a dao forcibly. He denied the suggestion that such injury might be caused by scuffle between the two persons. He stated that by clinical examination, it can be asserted whether an injury is grievous or simple without going through any report of Radiologist. He also denied the suggestion that without going through the radiological report, a doctor cannot give opinion as to the nature of injury i.e. whether it is grievous or simple in nature. 13. The Investigating Officer was examined as P.W. 16. As per his evidence, in the night of 27.9.2000, both the injured persons came to the North Lakhimpur Police Station where he was serving as attached officer. They appeared at the injured state and they were forwarded for treatment at North Lakhimpur Civil Hospital. He visited the place of occurrence. He could not record the statement of any witness as they were in a tragic situation as one of the injured persons expired in the hospital. He conducted inquest over the dead body and got the postmortem examination conducted. In the morning of 29.9.2000, he was informed from the police station that the accused Munindra Hazarika @ Kolia appeared before the police station along with a 'mechi dao' and stated that he hit Prasanta Rajkhowa by the said dao. On being so informed by constable Hem Kanta Sonowal, he came to the police station. He seized the 'mechi dao' at the police station in presence of the witnesses. 14. The prosecution, apart from the above witnesses, examined two other independent witnesses namely, Shri Raj Konwar as P.W. 1 and Shri Sanjib Konwar as P.W. 2. Their evidence is that they knew both injured Brojen Rajkhowa alias Babul and deceased Prasanta Rajkhowa alias Dudul. P.W. 1 deposed that he along with P.W. 2 came to the house of his paternal aunt in his scooter and they returned at around 10 P.M. but there was something wrong with his scooter. They have to stop on the way and could not start it. It was about 12 in the night, the police brought them to North Lakhimpur police station. They have to stop on the way and could not start it. It was about 12 in the night, the police brought them to North Lakhimpur police station. In the early morning, when he was in the police station along with Sanjib (P.W. 2), accused Munindra Hazarika alias Kolia appeared in the police station with a mechi dao telling them that he had hacked a man. The said dao was seized by the police vide Mat. Ext. 1. He signed as a witness on the seizure list. He proved his signature marked Ext. 1(1). P.W. 2 also deposed similarly in respect of appearance of the accused Kolia with a mechi dao and seizure of the same in the police station. P.W. 2 also signed the said seizure list, Ext. 1 and proved his signature which was marked as Ext. 1(2). 15. P.W. 3 Biren Rajkhowa and P.W. 8 Binod Baruah are the neighbours of the victims. They were present at their respective houses and taking dinner. Their evidence is that they have not seen the act of giving blows on the deceased and the injured, but they have seen them in the injured state. They were told that accused Kolia hacked Dudul on his head. They saw both the deceased and injured in the civil hospital along with the police. 16. The Medical Officer, P.W. 9, who attended the injured Brojen Rajkhowa in the civil hospital, proved that Brojen Rajkhowa was admitted in the civil hospital with his amputated little finger. 17. P.W. 5 is not only an eye witness, but also a person who sustained injuries in the said incident. He deposed against the appellant His evidence could not be demolished by the appellant in any manner in the cross examination. No evidence has been led by the appellant to prove that P.W. 5 along with his deceased brother had a quarrel with the accused persons at the place of occurrence and they physically assaulted or prevented them in any manner. The prosecution evidence is that the appellant along with co-accused was beating the shop house which belongs to them and asking them to shift the shop from the place where it stood. The appellant was armed with a dao and he gave the dao blow on him (PW 5) and the deceased brother without any provocation. 18. The prosecution evidence is that the appellant along with co-accused was beating the shop house which belongs to them and asking them to shift the shop from the place where it stood. The appellant was armed with a dao and he gave the dao blow on him (PW 5) and the deceased brother without any provocation. 18. As against the above evidence of the prosecution, the accused had put up no defence inasmuch as they have taken a stand of complete denial of charge. The co-accused Prabin Hazarika alias Akanman on being examined under Section 313 CrPC denied his presence in his residence on the date and time of occurrence and claimed to have implicated falsely. His statement was not accepted by the learned trial Court and held him guilty of assaulting the deceased with a piece of split bamboo and inflicting simple injury. Based on evidence of Medical Officer, P.W. 13, who found bruise over the left pelvic region of the deceased convicted him under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo rigorous imprisonment for three months and acquitted of other charges. We are not concerned with this conviction and sentence of the co-accused as he has preferred no appeal. 19. The concern being obviously only with the conviction and sentence of the present appellant, we would now devote some time to find out if the conviction and sentence as recorded by the learned trial Court is sustainable under the law warranting no interference. The evidence on record must be reviewed for this. The deceased left behind his brother, P.W. 5, to tell the Court the true account of the incident which he witnessed in his own eyes, more particularly, how he and his deceased brother, Prasanta alias Dudul was hacked by the appellant by a dao. What he deposed before the learned trial Court has been discussed earlier in appreciating the evidence of the prosecution witnesses. The appellant came to the place of occurrence along with his wife and the co-accused in the evening when the villagers were taking their meal. The members of the victims' family too were taking meal. The accused persons shouted and beat the shop house of the victims making them to rush and ask them to stop beating the shop house. The appellant came to the place of occurrence along with his wife and the co-accused in the evening when the villagers were taking their meal. The members of the victims' family too were taking meal. The accused persons shouted and beat the shop house of the victims making them to rush and ask them to stop beating the shop house. Their request to stop hitting at the shop house was turned down by the appellant aggressively. The appellant went and gave dao blows on the deceased sustaining several injuries by a sharp dao on vital part of the body as mentioned earlier based on P.M. report and the medical evidence. As per the P.M. report (Ext. 5) due to head injury the brain matters came out with clotted blood. Such injury, even in absence of a specific opinion of the M.O., could be termed and accepted as grievous one. 20. The clinching question that arose is whether the evidence on record has amply proved that the appellant inflicted the said injuries. First of all, P.W. 5, who himself sustained injury, has testified that it was the appellant, who assaulted the deceased by a dao on the head. His evidence has been corroborated by P.W. 6 who was present at the place of occurrence and witnessed the whole incident. Both P.W. 5 and PW 6 are eye witnesses. The defence wants the court to discard the evidence of P.W. 5 and PW 6 as they are husband and wife and related to the deceased. How far this demand is justified or acceptable, is to be considered taking into consideration the attending facts and circumstances of the case. The veracity and reliability of evidence of PW-5 and PW 6 is to be considered in the light of the following indisputable facts :- 1) The shop in question belonging to the victims is situated at a place adjacent to their house. They had already closed the shop for the day and they were taking dinner at the time when the appellant with the co-accused came and started shouting and hitting at the shop house. 2) The victims and the accused persons are co-villagers and as such they know each other. There was no difficulty in recognizing them in the evening time. 3) Some co-villagers arrived at the place of occurrence after the incident. 2) The victims and the accused persons are co-villagers and as such they know each other. There was no difficulty in recognizing them in the evening time. 3) Some co-villagers arrived at the place of occurrence after the incident. They are not witnesses to the actual act of dealing blows by a piece of split bamboo or dao on the victims but they saw the appellant and the co-accused leaving the place of occurrence. 4) P.W. 3 and 8 are co-villagers, who are not related to the victims. They are independent witnesses and testified the fact that they came to the place of occurrence and found PW 5 and his victim brother in the injured state. 21. The presence of the appellant, co-accused along with his wife and eldest son at the place of occurrence has been proved by P.W. 4, 5 and 6 and corroborated by the evidence of independent witnesses, P.W. 3 and P.W. 8, who came to the place of occurrence immediately as neighbours of the victims. The defence cross examined P.W. 3 and PW 8, but their evidence could not be demolished and their evidence must be read with the evidence of eye-witnesses. 22. The victims rushed to the place of occurrence without any arm in their hands. The aforesaid independent witnesses (P.W. 3 and 8), did not give any evidence that the victims were carrying any arms when they came to the place of occurrence. There is no evidence that the victims, not to speak of a dangerous weapon, were armed with any lathi while they came to the place of occurrence and requested the accused persons to stop hitting at the shop house. 23. Unlike the victims, as per the evidence available on record, the accused persons/appellants came to the place of occurrence with a dao and a piece of split bamboo. They assaulted the victims by the said weapons inflicting injuries on them. P.W. 5, being an injured person, testified this fact and the same has been corroborated by eye witness, P.W. 6. The split piece of bamboo was not seized by the I/O, but the dao was seized at the police station when the appellant voluntarily surrendered in the police station along with the dao. P.W. 5, being an injured person, testified this fact and the same has been corroborated by eye witness, P.W. 6. The split piece of bamboo was not seized by the I/O, but the dao was seized at the police station when the appellant voluntarily surrendered in the police station along with the dao. This fact has been testified by P.W. 1 and PW 2, who were in the police station on the relevant date and time, being picked up by police. Moreover, in his statement under Section 313 CrPC, the appellant admitted that he appeared in the police station with a dao, but he gave an explanation to the effect that he appeared at the police station as the police was searching for him. But he did not state before the police that he appeared before the police after striking blows by the said dao on a person. He also admitted that the dao was seized by the police. 24. P.W. 1 and PW 2 deposed that they were picked up by police when they were found with their scooter which went out of order on the road in the midnight of the date of occurrence. They also deposed before the Court that they knew the appellant and they saw him appearing before the thana with a dao, which was seized by the police. This evidence is enough to prove that the appellant came to the place of occurrence with a dao. They saw and heard him confessing his guilt. He denied subsequently having made such confession before the police but he has not denied the fact of his appearance at the police station with the dao. We are quite conscious that confessional statement made by the accused before the police can not be used as a piece of valid evidence against the accused. In view of this, excluding the confessional statement made before the police, the appearance of the appellant in the police station with a dao and seizure of the said dao have stood as admitted facts. 25. The prosecution in our view has been able to prove that the appellant came to the place of occurrence in the late evening when the victims had already closed the shop and they shouted and rebuked at the victims in filthy language and hit at the shop house. 25. The prosecution in our view has been able to prove that the appellant came to the place of occurrence in the late evening when the victims had already closed the shop and they shouted and rebuked at the victims in filthy language and hit at the shop house. Further evidence is that the accused behaved extremely aggressively with the victims when they arrived at the shop. They, refusing to respond to the request to maintain calm, started assaulting the victims by a piece of split bamboo and sharp dao they carried to the place of occurrence. The prosecution has been able to prove that the provocation came from the appellant and co-accused person. The victims could have also come with some arms but they have come bare handed although there was a grave provocation from appellant's side. The evidence shows that the victims did not come to the place of occurrence with intention to challenge the accused persons whereas the accused persons came to the shop house with intention to assault the victims and they really did so. Now, it is to find out as to whether the accused persons came with intention to kill the victims or they had any premeditation to cause injury to the person of the victims to cause death to them. The manner in which the accused persons inflicted the injuries on the persons of the victims appears to be with intention to kill the victims. But, is it really so? We take into consideration the fact that the appellant and the victims are co-villagers and no evidence has been led to the effect that they had any animosity prior to the incident. For some reason, which is not disclosed or found in the evidence, it appears that the appellant wanted shifting of the shop house from the place where it situated. We could not find from the evidence that the appellant ever made any request to the victim for shifting the shop house before the incident took place. The parties have not brought any material that they had any quarrel or dispute over the shop house. We could not find from the evidence that the appellant ever made any request to the victim for shifting the shop house before the incident took place. The parties have not brought any material that they had any quarrel or dispute over the shop house. There is no doubt that the appellant took the law at his hand in his endeavour to remove the shop house from the place where it existed inasmuch as nothing has been brought in the evidence that he ever made a complaint before the police or before a Court or a local body for resolving the dispute, if any, between them. There is also nothing on record that the victims ever picked up any quarrel or dispute over any matter making the appellant so aggressive and postering intention to kill them. 26. What is clearly established from the evidence on record is that the victims did not indulge in any physical clash with the appellant. The victims being unarmed, there was no occasion for the appellant to do something in his private defence and in fact, they had not taken the plea of private defence for inflicting the injuries on the victims. The accused persons having come with dao and a piece of split bamboo to the place of occurrence, by their conduct, demonstrated their clear intention and premeditation to cause death or to cause bodily injury which they knew to be likely to cause death or knew that the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It could be well understood or accepted that they had no intention to cause death had they dealt the dao blows at the heat of the moment on sudden provocation clash and aggressive action from the victim's side. In the instant case no such situation arose, and therefore, no other view is possible, except the view that the accused/appellant came to the place of occurrence with premeditation and intention to kill the victims by using dangerous weapons like sharp dao. 27. The statutory provisions under Sections 299 and 300 IPC provide distinction between culpable homicide and murder. It is universally accepted that "culpable homicide" is genus, and "murder" is specie and all "murder" are culpable homicide but not vice-versa. As per Section 300 IPC there are four classes of murder. 27. The statutory provisions under Sections 299 and 300 IPC provide distinction between culpable homicide and murder. It is universally accepted that "culpable homicide" is genus, and "murder" is specie and all "murder" are culpable homicide but not vice-versa. As per Section 300 IPC there are four classes of murder. These classes of murder are found specified in four clauses (a), (b), (c) and (d) of Section 300 IPC. The first is what is known as "culpable homicide of the first degree". This is the greatest form of culpable homicide which is defined as "murder" under Section 300 IPC. The second is known as "culpable homicide of the second degree" which is punishable under Part-I of Section 304 IPC. The third one is known as "culpable homicide of the third degree" which is the lowest form of culpable homicide with lowest amount of punishment under Part-II of Section 304 IPC. Both Sections 299 and 300 IPC speak about intention of causing death or intention of causing bodily injury as is likely to cause death of the person. Both these sections also speak about knowledge of the accused that his act is likely to cause death. Exception 1 to Section 300 IPC provides that "culpable homicide" is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 4 provides that "culpable homicide" is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Our earlier discussion has already yielded that there was no case of sudden provocation or sudden fight or sudden quarrel in causing the injuries to the deceased and PW 5 to attract the provision under Sections 299 and 304 Part-I or Part-II IPC. 28. We have noted that the appellant came to the place of occurrence along with the co-accused and his wife. The intention of causing death to the deceased has not been established by cogent evidence; nor is it inferable in view of the fact that the co-accused came with his wife. 28. We have noted that the appellant came to the place of occurrence along with the co-accused and his wife. The intention of causing death to the deceased has not been established by cogent evidence; nor is it inferable in view of the fact that the co-accused came with his wife. Had the appellant had a pre-plan and intention to cause death, he would not have allowed the co-accused to come along with his wife for the simple reason that a womanfolk, in the normal course, would not allow her husband to be a party to the act of commission of murder which would bring a lot of problems to her husband and the family members. With this view in mind we do not feel convinced to infer that the appellant came to the place of occurrence with a pre-plan or premeditation and intention to kill or cause death by using the dao. Having considered the entire facts and circumstances of the case and the evidence on record, we have found that the appellant had no intention to kill but had intention to cause injury to the person of the victim and the appellant had the knowledge that the injury that would be inflicted would inevitably cause death to the person upon whom such injury was caused. In our considered view, offence committed by the appellant attracts clause "thirdly" of Section 300 IPC, which is quoted below : Section 300 murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly---------------------------------- Thirdly -- if it is done 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 Fourthly---------------------------------- 29. For coming to this conclusion we rest our consideration on a classic decision of the Apex Court in Virsa Singh Vs. State of Punjab ; AIR 1958 SC 465 wherein it has been held that to bring a case under Section 300 IPC 'Thirdly', the prosecution must prove the following facts– First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. State of Punjab ; AIR 1958 SC 465 wherein it has been held that to bring a case under Section 300 IPC 'Thirdly', the prosecution must prove the following facts– First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 30. In the present case, medical evidence has proved the presence of grievous bodily injury on the head of the victim. The ocular evidence has also proved that the injury was caused by dao blow by the appellant intentionally and, in the ordinary course of nature, such blow on the head was sufficient to cause death. All these facts namely bodily injury, nature of injury, intention to inflict the injury, which was not accidental and unintentional, have been proved by sufficient and cogent evidence of the witnesses. The prosecution has succeeded in proving the charges against the appellant beyond all reasonable doubt. We, therefore, find no infirmity or illegality in the conviction and sentence as awarded by the learned trial court under Sections 325/ 326/ 302 IPC. No interference with the same is called for. Appeal fails and stands dismissed. Send down the LCRs forthwith. Appeal dismissed.