Per Virender Singh, J. 1. Appellant Mulkh Raj alias Manohar Lal (aged 21 years) son of Hans Raj resident of Village Nagrota Gujroo, Mohra Kandharnoo, Tehsil Billawar, District Kathua (hereinafter to be referred to as `accused') stands convicted under section 302 RPC and sentenced to undergo imprisonment for life vide judgment/order dated 30/31.08.2012 of learned Sessions Judge Kathua. Aggrieved thereof, he has preferred Criminal Appeal No. 67/2012. However, the sentence awarded to him is subject to confirmation by this Court in terms of section 374 CrPC (State Code), as such, Criminal Reference No. 21/2012. 2. Deceased in this case is one Vipan Kumar son of Albelu Ram resident of village Paswar (Dhaggar) block Duggar Tehsil Bani (hereinafter to be referred to as `deceased'). He was of the age of 16 years at the time of alleged occurrence. 3. The episode as alleged took place when the deceased, accused and certain other boys were playing cricket in a field situated at village Dhaggar, the village of the deceased. 4. In brief, the case of the prosecution is that on 9.03.2008 while playing cricket where the accused was batting and the deceased was keeping the wickets, few minutes before the end of the game, there was an exchange of hot words between accused and the deceased. After the match came to an end, all the boys left for their respective houses and the deceased started tying the laces of his shoes when the accused picked up bat of the deceased lying by his side and gave a single blow on his head, consequently he fell on the ground. The accused ran away from the spot. Vipan Kumar succumbed to the injury. A case FIR No. 5/2008 came to be registered in Police Station Bani initially under section 304 RPC and investigation ensued. 5. During the autopsy of the deceased, following injuries were noticed on his head: 1. Lacerated wound obliquely placed present on left frontal temporal region of the scalp measuring 2"x 1". 2. Edges of wound are irregular, bruised, swollen and bluish black, in colour, Clotted blood, is present on and around the wounds. 6. During the investigation, prosecution recorded the statements of eye witnesses to the occurrence and certain other relevant witnesses. The investigation ended up in filing the challan against the accused for the offence punishable under section 302 RPC for which he was duly charged and now convicted. 6. During the investigation, prosecution recorded the statements of eye witnesses to the occurrence and certain other relevant witnesses. The investigation ended up in filing the challan against the accused for the offence punishable under section 302 RPC for which he was duly charged and now convicted. 7. In order to substantiate the charge against the accused, prosecution has examined the following PWs: 1. Albelu Ram 2. Puran Chand 3. Sardari Lal 4. Badhur Chand 5.Bansi Lal 6. Pawan Kumar 7. Kartar Singh, 8. Jeep Raj 9. Smt. Salma 10. Rakesh Seotra 11. Vinod Kumar 12. Rakesh Odian, 13. Kewal Krishan 14. Kamaljit 15. Ravi Kumar 16. Bishan Dass 17. Subash Chander 18. Bhuri Singh 19. Raj Kumar 20. Dev Raj 21. Dr. Radha Krishan 22. Ranjeet Singh 23. Chain Singh. 8. The defence put forth by the accused before the trial Court was that the deceased, in fact, had received the injury on his head by falling on a stone and that he had not inflicted any injury as alleged. An attempt was also made by the accused to dislodge the eye version account on certain other grounds including non-examination of some of the eye witnesses. Learned trial Court, however, did not find favour with any of the pleas taken by the accused in demolishing the case of the prosecution and ultimately convicted him for the charge. 9. Heard Mr. Arora learned counsel for the accused and Mrs. Shekhar learned AAG on behalf of State. Trial Court record has also been perused by us. 10. Mr. Arora, learned counsel for the accused, at the very outset, submitted that he assails the impugned judgment only with regard to alteration of the offence from section 302 to 304-II RPC. He submitted that even if the entire prosecution case is believed as it is, the present case would, at the most, fall within the mischief of section 304-II RPC as the ingredients of culpable homicide amounting to murder are not made out. 11. In order to strengthen his submission, Mr. Arora submitted that, no doubt, prosecution during the investigation or even during the trial made an attempt to bring the present case within the mischief of section 302 RPC by bringing a fact that something had happened between accused and the deceased on occasion of Shivratri also, but what exactly had happened on that day is not known to anybody. Arora submitted that, no doubt, prosecution during the investigation or even during the trial made an attempt to bring the present case within the mischief of section 302 RPC by bringing a fact that something had happened between accused and the deceased on occasion of Shivratri also, but what exactly had happened on that day is not known to anybody. Learned counsel submitted that it has also come on record that the deceased and the accused were the members of two rival teams, but that fact by itself would not be enough to bring the prosecution case within the four corners of section 302 RPC as both of them, undoubtedly, were from two different villages, therefore, they belong to two different teams of cricket players. He submitted that if the present case is appreciated in totality of facts and circumstances and the manner in which the episode occurred, that too between two young boys of a very tender age which incidentally ended up into death of the deceased, it can be very comfortably said that the accused never intended to cause a particular injury on the vital part of the body of the deceased with an intention to cause death. Therefore, according to learned counsel, the present case calls for altering the offence to section 304-II RPC, consequently the impugned judgment deserves to be disturbed to that extent. 12. Mr. Arora further submitted that the accused has already undergone more than five years as he was arrested within few days of the occurrence and since then he is in custody which turns out to be more than 5 years. He submitted that at the time of occurrence, the accused was of the age of hardly 20/21 years as is evident from the record; he is unmarried; his entire career is at stake, as such, the sentence already slapped upon the him may be reduced to period already undergone by him. 13. Mrs. Shekhar refuted the submissions advanced by Mr. Arora and supports the impugned judgment, stating that may be it is a case of single blow, but looking at the seat of the injury which has resulted fracture of bone of deceased, the accused has no escape from the charge of section 302 RPC. 13. Mrs. Shekhar refuted the submissions advanced by Mr. Arora and supports the impugned judgment, stating that may be it is a case of single blow, but looking at the seat of the injury which has resulted fracture of bone of deceased, the accused has no escape from the charge of section 302 RPC. She, however, fairly stated that so far as motive is concerned, may be it has come on record that some altercation took place between accused and the deceased on the day of Shivratri but the prosecution has not been able to prove the fact by cogent evidence. She, however, submitted that the accused took the undue advantage of the situation when the deceased was tying laces of his shoes and picked up cricket bat and gave a blow on his head which ultimately proved to be fatal. According to learned State counsel, the present case, if taken in its entirety, falls within the mischief of section 302 RPC only. She, thus, prayed for upholding the conviction and sentence already slapped upon the accused vide impugned judgment. 14. Although Mr. Arora has not read over the entire evidence before us and confined his prayer with regard to altering the offence, yet we have once again rescanned the entire evidence minutely as we are dealing with the 1st appeal against conviction. 15. The fact position as emerges from the evidence available on record is that on the fateful day the deceased the accused were playing cricket in which accused was batting and the deceased was keeping wicket in which both exchanged hot-words. One can understand that it was not because of any previous enmity which otherwise is not there. There is nothing unusual in it, that too with villagers who are not disciplined cricket players. The cricket game ended up after some time and certain boys left the place, but the deceased and the accused remained there. The evidence available on record is that after causing one injury to the deceased, the accused left the bat there and ran away. It was certainly not a premeditated attack on the deceased. It is not a case of repetition of injury so as to infer intention. The accused has not taken any undue advantage of the situation. In fact, a pleasant game ended up into an unpleasant scene which incidentally took the life of a young boy. 16. It was certainly not a premeditated attack on the deceased. It is not a case of repetition of injury so as to infer intention. The accused has not taken any undue advantage of the situation. In fact, a pleasant game ended up into an unpleasant scene which incidentally took the life of a young boy. 16. We are conscious of the fact that the injury on the person of the deceased, which is on the left frontal region, has fractured the internal bone, but when the present case is appreciated in totality of facts and circumstances, it can be safely said that the accused never intended to cause injury on the head of the deceased so as to constitute the ingredients of culpable homicide amounting to murder. 17. Ingredients of clause Thirdly of Section 300 of IPC (300 RPC of State Code) were brought out in Virsa Singh v. State of Punjab reported as AIR 1958 SC 465 . The test laid down in Virsa Singh's case (supra) for the applicability of clause Thirdly is now engrained in our legal system and has become part of the rule of law. Under clause Thirdly of section 300 of the Code culpable homicide is murder if both the following conditions are satisfied: (a) that the act which causes death is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. 18. A subtle line of distinction has to be drawn between the intention and the knowledge. Knowledge may be presumed from intent, but intent cannot be inferred from knowledge. There cannot be any hard and fast rule to say that a single blow on a vital part would not fall within the definition of section 302 RPC and it should always fall within the ambit of section 304 Part I or Part II of RPC. However, this depends upon the facts and circumstances of each and every case. Their lordships of Hon'ble Apex Court in a case titled Rajpal and others v. State of Haryana 2003 (3) SCC 209 while drawing the distinction between sections 299 and 300 RPC have given the broad guidelines to appreciate such type of situation. 19. However, this depends upon the facts and circumstances of each and every case. Their lordships of Hon'ble Apex Court in a case titled Rajpal and others v. State of Haryana 2003 (3) SCC 209 while drawing the distinction between sections 299 and 300 RPC have given the broad guidelines to appreciate such type of situation. 19. In the aforesaid judgment, their Lordships have observed that in the scheme of IPC, `culpable homicide' is the genus and `murder' is specie. All `murder' is `culpable homicide' but not vice versa. IPC recognizes three degrees of culpable homicide. The first degree and the gravest form of culpable homicide is defined in section 300 as `murder'. The second degree of culpable homicide is punishable under first part of Section 304 RPC. Culpable homicide of third degree is punishable under the second part of section 304 IPC. It has been further observed by their Lordships that 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 term 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 section 299 and 300. Their Lordships while dealing with said aspect have depicted the following comparative table, which 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 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 (a) With the intention of causing death; or (b) with the intention of (1) with the intention of causing death; or (2) with the 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; 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 cause of nature to cause death; or KNOWLEDGE 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. 20. It is also observed that the above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each, that it may not be convenient to give a separate and clear cut treatment to the maters involved in the second and third stages. Each case has to be seen on its own facts. 21. We have appreciated the case at hand while following the ratio of aforesaid judgment and the test laid down in Virsa Singh's case (supra) while keeping in account the factual scenario and, in our considered view, the offence in the established facts and circumstances of the case would fall within the mischief of section 304-II RPC only and not section 302 RPC. We accordingly set aside the conviction of the accused for the offence under section 302 RPC and instead convict him under section 304 -II RPC. Appeal at hand, thus, succeeds to that extent. 22. Admitted position before us is that the appellant is in custody for the last more than five years. In our considered view, ends of justice would be adequately met if the substantive sentence is reduced to the period already undergone by him. 23. Ordered accordingly. 24. The net result is that Cr. Appeal No. 67/2012 is partly allowed in the aforesaid terms by altering the offence as well as reducing the sentence part as indicated hereinabove. 25. Criminal Reference No. 21/2012 filed in terms of section 374 CrPC is also answered accordingly. 26. The accused shall be released forthwith if not required in any other case. All quarters concerned be informed accordingly. 27. Registrar Judicial of this Wing to inform the trial Court of the outcome of present appeal and criminal reference without any delay. 28. Trial Court record in original be also remitted back to the Court concerned.