JUDGMENT : B.K. Misra, J. - The present appellant having been convicted for commission of an offence u/s 302 of the Indian Penal Code ( in short 'IPC') and sentenced to imprisonment for life by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.20/81 of 2000, has preferred this appeal. 2. Case of the prosecution, bereft of unnecessary details, is as follows:- It is alleged that on 18.12.1999 around 4 P.M., the appellant, who happens to be the brother-in-law of the informant-Champai Soren (P.W. 1), asked the deceased-Duli Majhi to cook and feed Ghandacha Majhi, the elder brother-in-law of P.W. 1 and his son-in-law. But the deceased, who was highly intoxicated then, refused to cook and told the appellant that he himself should prepare the food. It is alleged that Ghandacha Majhi and his son-in-law when left for their village, the appellant being enraged, assaulted the deceased to her abdomen and chest with a wooden 'Pidhha' for which the deceased breathed her last. On hearing the cry of the mother of P.W. 1, Chhita, Dulari, Gouri, Gogan and others arrived at the spot. On getting the information, P.W. 1 the informant proceeded to the house of Lalmohan Lohar (P.W. 6), Gramarakhi of the village and reported the incident and as per his advice and other villagers, P.W. 1 proceeded to Gorumahisani Police Station and orally reported about the incident, which was reduced into writing. Police on receipt of the said information, registered a case u/s 302 of IPC against the appellant and proceeded with the investigation. On completion of investigation getting prima facie materials, charge-sheet was placed against the appellant to stand his trial. The plea of appellant was complete denial of the occurrence and it was his further plea that he has been falsely implicated. 3. The prosecution in order to establish its case against the appellant examined eight witnesses in all wherein P.W. 1 is the informant, P.Ws.2, 3, 4 and 6 are the other independent witnesses to the occurrence. P.Ws.5 and 7 are the two seizure witnesses. P.W. 8 is the I.O. The appellant declined to examine any witness in his defence. 3. The prosecution in order to establish its case against the appellant examined eight witnesses in all wherein P.W. 1 is the informant, P.Ws.2, 3, 4 and 6 are the other independent witnesses to the occurrence. P.Ws.5 and 7 are the two seizure witnesses. P.W. 8 is the I.O. The appellant declined to examine any witness in his defence. The learned Additional Sessions Judge after discussing the evidence on record arrived at the conclusion that the prosecution has been able to establish its case against the appellant, who was the perpetrator of the crime and, accordingly, recorded the order of conviction and passed the impugned sentence. 4. The Learned Counsel appearing for the appellant while taking us through the evidence on record argued with vehemence that the learned Additional Sessions Judge should not have relied upon the uncorroborated testimony of P.Ws.2 and 4 and besides that the materials on record do not make out a case u/s 302 of IPC and at best there could have been a conviction under Part-II of Section 304 of IPC and urged that the order of conviction u/s 302 of IPC should be set aside. On the other hand, the Learned Counsel for the State supported the order of conviction and urged that the order of conviction needs no interference. 5. We have made an in-depth study of the facts and evidence on record. The postmortem report, which has been marked as Ext.7, shows that the doctor, who conducted postmortem examination over the body of the deceased on 19.12.1999 at 2 P.M., found two external injuries i.e. two bruises of the size 1 cm. x 1 cm. and 2 cm. x 1 cm. respectively on the left forearm, which were ante-mortem in nature and could have been caused by a hard and blunt object. On internal examination, one large haemotoma was found in the peritoneal cavity. The spleen was found enlarged with a lacerated wound and the doctor opined that the death of the deceased was because of intra abdominal hemorrhage due to rupture of the spleen. Thus, the postmortem report shows that the deceased died because of a homicidal injury i.e. on a vital part of the body like spleen. The spleen was found enlarged with a lacerated wound and the doctor opined that the death of the deceased was because of intra abdominal hemorrhage due to rupture of the spleen. Thus, the postmortem report shows that the deceased died because of a homicidal injury i.e. on a vital part of the body like spleen. P.Ws.2 and 4, who are the two direct eyewitnesses to the occurrence, have categorically stated that it was the appellant, who requested the deceased, to cook and when the deceased did not agree to that, the appellant gave blows with a wooden 'Pidhha' repeatedly for which the deceased died. It is the specific evidence of P.W. 2 that the deceased dealt blows to the belly of the deceased with the wooden 'Pidhha'. Similarly, P.W. 4 also has categorically stated that the deceased was assaulted by the appellant with M.O.I-'Pidhha'. The evidence of P.Ws.2 and 4 not only corroborate each other on the point of assault by the appellant but also their evidence has gone totally unchallenged from the side of defence, even though they were subjected to cross-examination. P.W. 1, the informant, is admittedly a post occurrence witness and was not present when the occurrence took place. Similarly, P.W. 3 simply deposed that on return to his house from the field, he found the deceased dead. P.W. 3 when did not support the case of the prosecution he was declared hostile by the prosecution. But that was a vain attempt. P.W. 5 is only a seizure witness. P.W. 6 simply deposed that he arrived at the spot when he was called by the brother of the deceased, P.W. 7. He only speaks about the seizure of the wearing apparel of the deceased by the I.O. and has proved the seizure list, Ext.2. P.W. 8 is the I.O and admittedly he is also a post-occurrence witness. There is nothing on record to disbelieve the evidence of P.Ws.2 and 4 on the point of occurrence even though there is no other corroboration to their evidence. The learned Additional Sessions Judge in our considered view has elaborately discussed the evidence on record and there is hardly anything on record to take a different view in the matter. 6. There is nothing on record to disbelieve the evidence of P.Ws.2 and 4 on the point of occurrence even though there is no other corroboration to their evidence. The learned Additional Sessions Judge in our considered view has elaborately discussed the evidence on record and there is hardly anything on record to take a different view in the matter. 6. But now coming to the point as to whether the action of the appellant could be covered under Part-II of Section 304 of IPC or u/s 302 of IPC, it is seen that in the instant case, the evidence shows that the appellant dealt blows with the wooden 'Pidhha' to the abdomen of deceased. Under clause 'fourthly' of Section 300 of IPC, culpable homicide, unless attracted by any of the exceptions given therein, is murder if the person committing the act knows that it is imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits the act without any excuse for incurring the risk of causing death or such bodily injury as aforesaid. Thereunder, therefore, the essential requisite necessary to be established is that the degree of knowledge as to the dangerous character of the act should be such as to necessarily lead to the presumption that the assailant had full consciousness of the probable consequences; for if the dangerous character of the act committed by the accused person is so imminent that it must in all probability cause death or such bodily injury as is likely to cause death, the conclusion is irresistible that the act was done with full consciousness of its probable consequences; and it is this degree of knowledge which is spoken of in clause "fourthly" of section 300 of IPC. But it is not so in the case of the third and last part of section 299 of IPC. Therein knowledge required is not of this higher degree but of a degree which creates consciousness only to this extent that by his act he is likely to cause death, or in other words a consciousness which is not definite of this probable consequence. Therein knowledge required is not of this higher degree but of a degree which creates consciousness only to this extent that by his act he is likely to cause death, or in other words a consciousness which is not definite of this probable consequence. Therefore, it follows that so long as the circumstances are not so coercive and clear as to irresistibly lead to a presumption of full consciousness of its probable consequence, the offence cannot be said to be covered by clause "fourthly" of section 300 of IPC but by the third and last part of section 299 of IPC. The third and last of section 299 of IPC lays down that Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 7. Therefore, in all cases of culpable homicide where its commission depends on the degree of knowledge as to its probable consequences, what has to be carefully looked into in order to decide whether it is a case of murder or culpable homicide not amounting to murder, is the degree of knowledge which the assailant had about the probable consequences of his act. Therefore, in the ultimate analysis, it will be a question of fact, depending on the circumstances of each case, as to whether the knowledge on the part of the assailant was of a degree which must necessarily lend to a presumption that he was fully conscious of the probable consequences of his act. 8. In the instance case, overwhelming evidence is available on record to show that the deceased as well as the appellant at the time of occurrence were in a drunken state. Thus, when in a fit of anger the appellant assaulted to the abdomen of the deceased with a wooden 'Pidhha', it cannot be conclusively held that the appellant in inflicting the injuries on the deceased was fully conscious of the probable consequences of his act or of the fact that the act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Therefore, full consciousness of the probable consequences of his act cannot be attributed to the appellant. Therefore, full consciousness of the probable consequences of his act cannot be attributed to the appellant. Therefore, the knowledge that can be held to have been proved in the present case is not what is required under clause 'fourthly' of Section 300 of the Indian Penal Code. Therefore, from the available evidence on record, we find that the offence u/s 302 of the Indian Penal Code has not been proved by the prosecution beyond reasonable doubt against the present appellant. 9. In the result, we set aside the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.20/81 of 2000 against the appellant Budhan Majhi u/s 302 of I.P.C. and find the appellant guilty for commission of offence u/s 304 (Part-II) of IPC and convict him thereunder and sentence to imprisonment for a period of seven years. As it appears from the record, the appellant is in custody. If that be so, the appellant be set at liberty forthwith, unless his detention is required in any other case. 10. The appeal is allowed in part. Final Result : Allowed