JUDGMENT S.K. SAHOO, J. 1. The appellant faced trial in the Court of learned Additional Sessions Judge, Rayagada in Sessions Case No. 8 of 2002 for offences punishable under Ss. 302/307, 506, Indian Penal Code. The learned trial Court vide impugned judgment and order dated 24-5-2004 held the appellant not guilty under S. 506, I.P.C. but found him guilty under Ss. 302/307, I.P.C. and hence convicted him of those offences. The appellant was sentenced to undergo imprisonment for life under S. 302, I.P.C. and R.I. for 7 years for committing the offence under S. 307, I.P.C. and both the sentences were directed to run concurrently. 2. On 20-10-2001 at 6.30 a.m., the Inspector-in-charge of Rayagada Police Station received a phone call message regarding murder in village Tumbiguda and made a station diary entry vide S.D. Entry No. 452 dated 20-10-2001 and directed P.W. 8 Krupasindhu Swain, S.I. of Police, Rayagada Police Station to proceed to the spot. P.W. 8 arrived at the spot at 8.00 a.m. where P.W. 2 Loknath Mandangi orally reported before him about the incident which was reduced into writing and treated as FIR. It is the prosecution case, as per the FIR (Ext. 6) that five days prior to the incident, the deceased Narinju Himirika and his wife Nilama Himirika (P.W. 4) came to the house of the informant (P.W. 2) and stayed there. The deceased and the appellant raised cotton crops in the previous year by the side of a railway line and in that connection there was dispute between them. On 19-10-2001 night P.W. 2 slept inside his house after taking dinner and the deceased and his wife (P.W. 4) were sleeping on a cot in the Verandah of the house of P.W. 2. During midnight, hearing some noise P.W. 2 came out of the house and saw the appellant assaulting the deceased by means of a lathi. The wife of the deceased protested but she was also assaulted by the appellant. The appellant dragged the deceased on the road and assaulted him further on his head. The wife of the deceased was assaulted on the head. When P.W. 2 tried to intervene, the appellant threatened him with dire consequence. Hearing shout, many persons of the neighbourhood assembled at the spot but they were also threatened by the appellant. The appellant dragged the deceased on the road and assaulted him further on his head. The wife of the deceased was assaulted on the head. When P.W. 2 tried to intervene, the appellant threatened him with dire consequence. Hearing shout, many persons of the neighbourhood assembled at the spot but they were also threatened by the appellant. Seeing the gathering of the villagers, the appellant left the lathi near the dead body and decamped from the spot. P.W. 2 noticed bleeding injuries on the head of the deceased who was lying dead. The wife of the deceased also received injuries. P.W. 8 on receipt of such FIR sent it to Rayagada Police Station for registration and took up investigation. During course of investigation, he examined P.W. 2 and other witnesses and sent the wife of the deceased namely Nilama Himirika (P.W. 4) for medical examination. He visited the spot, prepared spot map and conducted inquest over the dead body vide inquest report Ext. 1/1. He sent the dead body for post-mortem examination. He also seized blood stained earth, sample earth and wooden Thenga lying at the spot and prepared seizure list Ext. 2. The accused was arrested and forwarded to Court on 20-10-2001. The wearing Lungi (M.O. II) of the appellant was seized under seizure list Ext. 7. The weapon of offence i.e., lathi (M.O. I) was also seized. The I.O. sent a query to the doctor conducting post-mortem examination regarding possibility of injuries on the deceased by Lathi (M.O. I). The doctor opined that the injuries sustained by the deceased as per post-mortem report were possible by Lathi. The I.O. also received the injury report of P.W. 4 Nilama Himirika. He sent the seized chemical analysis and received the chemical examination report. After completion of investigation, P.W. 8 submitted charge-sheet against the appellant under Ss. 302/307/506, I.P.C. 3. The defence plea is one of denial. 4. In order to prove its case, the prosecution examined eight witnesses. P.W. 1 Perisika Ranga is a witness to the inquest so also seizure of blood stained earth, sample earth and wooden stick as per seizure list Ext. 2. P.W. 2 Loknath Madangi, P.W. 3 China Himirika and P.W. 4 Nilama Himirika are the eye-witnesses to the occurrence. P.W. 5 Dr. B. Laxminarayan Prusty examined P.W. 4 on police requisition and proved the injury report (Ext. 3). P.W. 6 Dr. 2. P.W. 2 Loknath Madangi, P.W. 3 China Himirika and P.W. 4 Nilama Himirika are the eye-witnesses to the occurrence. P.W. 5 Dr. B. Laxminarayan Prusty examined P.W. 4 on police requisition and proved the injury report (Ext. 3). P.W. 6 Dr. M. Suresh Kumar conducted post-mortem examination over the dead body of the deceased and proved his report (Ext. 4). He also replied to the query made by the I.O. vide Ext. 5. P.W. 7 Santosh Kumar Deo was the constable attached to Rayagada Police Station who carried the dead body for post-mortem examination and brought the wearing apparels of the deceased from the doctor after post-mortem examination and produced it before the I.O. P.W. 8 Krupasindhu Swain is the Investigation Officer. No witness was examined on behalf of the defence. 5. So far as the conviction of the appellant under S. 307, I.P.C. is concerned, the learned trial Court held the appellant to have assaulted P.W. 4 by means of a lathi on her head. The evidence of the eye-witness P.W. 2 indicates that when P.W. 4 intervened, the appellant also assaulted her by means of stick on her head. P.W. 3 also corroborates the evidence of P.W. 2. The injured P.W. 4 has stated that the appellant dealt stick blow on her head above her right ear as she protested the appellant during the assault on the deceased. The ocular testimonies of P.Ws. 2, 3 and 4 are corroborated by the medical evidence. P.W. 5 Dr. B. Laxminarayan Prusty who was the Medical Officer in the District Head Quarters Hospital, Rayagada examined P.W.4 on police requisition and noticed one lacerated wound of size 10 cm. x 5 cm. x 2 cm. on the right parietal region of the scalp and according to him the injury was possible by hard and blunt object. P.W. 5 did not express any opinion with regard to the nature of injury and suggested to take such opinion from the treating doctor. The injury report of P.W. 4 is marked as Ext. 3. The final opinion regarding the nature of injury sustained by P.W. 4 has not been proved by the prosecution. According to P.W. 4, she remained in the Hospital for one day for her treatment. The injury report of P.W. 4 is marked as Ext. 3. The final opinion regarding the nature of injury sustained by P.W. 4 has not been proved by the prosecution. According to P.W. 4, she remained in the Hospital for one day for her treatment. Now the question is that when the opinion regarding the nature of injury sustained by the injured (P.W. 4) has not been proved and when the injured was discharged from the Hospital in a day, whether it can be said that from the attending circumstances and the injury sustained by P.W. 4 that it is sufficient to attract the ingredients of offence under S. 307, I.P.C. In case of State of Maharashtra vs. Balaram Bama Patil, AIR 1983 SC 305 , it is held as follows :- 9. To justify a conviction under S. 307, I.P.C., it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to the actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under the section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. In case of Rekha Mandal vs. State of Bihar, 1968 (8) Supreme Court Decisions 208 wherein 17 injuries consisting of incised and punctured wounds were caused by different weapons such as farsa, spear and lathi and none of the injuries was grievous and only two of them were located on the head and neck, it was held as follows :- 2. Medical evidence did not disclose that any of the injuries was cumulatively dangerous to life and the question therefore is whether in these circumstances it could be held that the offence disclosed was one under S. 307 of the Indian Penal Code. That section requires that the act must be done with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge. The Hon'ble Court in the case of Rekha Mandal (supra) altered the conviction from Ss. 307 to 324 of the Indian Penal Code. In the present case, the injured P.W. 4 has received a lacerated wound on the right parietal region of the scalp. Though the doctor P.W. 5 examined her on police requisition but he did not express any opinion with regard to the nature of the injury and suggested to seek the opinion of the treating doctor in that respect. According to P.W. 5, Dr. P.C. Paikray was the doctor who attended P.W. 4 in the female surgical ward. The prosecution has not examined the doctor who attended P.W. 4. The I.O. has not obtained the opinion in respect of the injury sustained by P.W. 4. P.W. 5 has stated in the cross-examination that he is acquainted with the handwriting and signature of Dr. Paikray and the writing in Ext. 3 is in the handwriting of Dr. Paikray and signature of Dr. Paikray has been marked as Ext. A. It is mentioned in Ext. 3 by Dr. P.C. Paikray as follows :- The patient left the hospital within two days of admission without being discharged. Paikray and the writing in Ext. 3 is in the handwriting of Dr. Paikray and signature of Dr. Paikray has been marked as Ext. A. It is mentioned in Ext. 3 by Dr. P.C. Paikray as follows :- The patient left the hospital within two days of admission without being discharged. Hence the case cannot be grievous as regards her hospital stay. P.W. 4 herself has stated that she remained in the Rayagada Hospital for one day for her treatment. In view of such evidence on record, even though P.W. 4 has sustained a lacerated wound on the head but the nature of injury sustained by her and from the attending circumstances, it cannot be said that the appellant assaulted her with such intention or knowledge or under such circumstances that if death be caused by that act, the offence of murder will emerge and, therefore, we are inclined to hold that the offence did not go beyond the preview of S. 324 of Indian Penal Code. Accordingly we alter the conviction of the appellant from S. 307, I.P.C. to S. 324 of I.P.C. and sentence him to imprisonment for two years. 6. That so far as the conviction of the appellant under S. 302, I.P.C. is concerned, it is first to be seen as to how far the prosecution has established that it is a case of homicidal death. The prosecution apart from relying upon the inquest report (Ext. 1) has examined P.W. 6 Dr. M. Suresh Kumar who conducted post-mortem examination over the dead body of the deceased on 20-10-2001 at District Head Quarters Hospital, Rayagada and noticed the following external injuries :- (i) Laceration of right side of the forehead above right eye of size 2" x 1" x bone deep. (ii) Laceration of size 1½" x ½" x bone deep on the middle of the forehead (iii) Laceration of size 1½" x 1" x bone deep on the left side of the forehead above the eye-brow. The doctor opined the cause of death due to haemorrhage from the three injuries so also neurogenic shock caused by injury No. 3 and all the injuries were opined to be homicidal in nature. The doctor opined the cause of death due to haemorrhage from the three injuries so also neurogenic shock caused by injury No. 3 and all the injuries were opined to be homicidal in nature. In cross-examination the doctor has stated that if someone falls on a heap of stones and the frontal portion of the head comes in contact with the stones, the injuries can be possible but there would be other associated injuries. He further states that in case of all, if no other portion of the body except the forehead comes in contact with the stones, no other injury can be caused. The post-mortem report has been marked as Ext. 4. In view of the evidence on record, we are of the view that the prosecution has proved the death of the deceased to be homicidal in nature. 7. So far as the eye-witnesses are concerned, the prosecution has relied upon the testimonies of three eye-witnesses i.e. P.W. 2, P.W. 3 and P.W. 4 to establish the charge under S. 302, I.P.C. It is the prosecution case that during the midnight while the deceased and his wife (P.W. 4) were sleeping in the verandah of the house of P.W. 2, the appellant reached there and assaulted the deceased by means of a stick on the head while he was in the lying position. The deceased was then dragged to the road and again he was assaulted by means of stick on the head as a result of which he died at the spot. The prosecution has come out with a case that the deceased was assaulted at two places i.e., first in the verandah of P.W. 2 where he was sleeping and then on the road after being dragged. P.W. 4 has stated that hearing shouts she woke up from her sleep and found the appellant dealing a stick blow on the deceased on the head while the deceased was in lying position and at that time P.W. 2 also came out from inside his house. In the cross-examination however, P.W. 4 has stated that by the time she woke up from the sleep, assault had been made on her husband in the verandah. In the cross-examination however, P.W. 4 has stated that by the time she woke up from the sleep, assault had been made on her husband in the verandah. P.W. 3 has stated that during midnight, hearing shout when he came outside of his house, he found the appellant was dragging the deceased and his wife and then dealt two stick blows on the head of the deceased. 8. Thus so far as the assault on the deceased in the verandah is concerned, it cannot be said that any of these three eye-witnesses had seen the assault inasmuch as, as per the version of P.W. 4, the assault on the deceased has already been made when she woke up from her sleep and at that time P.W. 2 came out of his house. P.W. 3 has not stated to have seen any assault on the deceased on the Verandah. 9. In the FIR, it is stated that the deceased and his wife (P.W. 4) were sleeping on a cot in the Verandah. The I.O. (P.W. 8) has stated that there was a cot on the Verandah but he did not notice any blood stain on the cot. Therefore a doubt is created as to whether any assault was at all made on the deceased while he was sleeping in the Verandah on the cot. 10. Though in the FIR it is mentioned that there was some dispute between the deceased and the appellant in the previous year of the occurrence relating to cultivation of cotton crops but during trial the witnesses have not whispered anything regarding the previous dispute between the appellant and the deceased rather P.W. 4 has stated prior to the incident there was no trouble between her husband (deceased) and the appellant. Though the witnesses have stated that they woke up hearing shouts and then saw the assault but it appears that the witnesses have suppressed a part of the occurrence as to why there were shouts and what exactly transpired between the deceased and the appellant prior to the actual assault. Though it is stated that the deceased was dragged by the appellant from the Verandah to the road but there is no such injury on the person of the deceased which can be possible by dragging. Though it is stated that the deceased was dragged by the appellant from the Verandah to the road but there is no such injury on the person of the deceased which can be possible by dragging. The I.O. has also not stated about any dragging mark or blood trailing from the Verandah to the road which is usually expected in view of the testimonies of the eye-witnesses. The possibility of quarrel between the appellant the deceased prior to the assault cannot be ruled out and the assault having taken place on account of such quarrel after the appellant losing his power of self-control can also not be brushed aside. 11. Section 299, I.P.C. defines culpable homicide. In order to constitute an offence of culpable homicide, the prosecution has to prove the following aspects :- (i) The death was caused by doing an act with the intention of causing death. (ii) With the intention of causing such bodily injury as is likely to cause death. (iii) With the knowledge that the act is likely to cause death. 12. Culpable homicide is murder only when it falls within any of the four clauses that are mentioned under S. 300, I.P.C. Culpable homicide is not murder if it falls within any of the five exceptions mentioned under S. 300, I.P.C. 13. Section 304, I.P.C. has two parts i.e., S. 304, Part I and S. 304, Part II. If the culpable homicide is not murder as it falls within any of the five exceptions mentioned under S. 300, I.P.C. but it is proved that the accused had the intention to cause such bodily injury as is likely to cause death then the offence will come within the purview of S. 304, Part I, I.P.C. If the accused has no intention to cause the bodily injury likely to cause death but has the requisite knowledge that the injury was likely to cause death then the offence under S. 304, Part II, I.P.C. will be attracted. The intention is the state of mind which is to be inferred from the facts and circumstances of each case and it would depend upon various factors like nature of weapon used, nature of injuries inflicted, conduct of the accused prior to the assault and after the assault etc. The intention is the state of mind which is to be inferred from the facts and circumstances of each case and it would depend upon various factors like nature of weapon used, nature of injuries inflicted, conduct of the accused prior to the assault and after the assault etc. An act is said to be intentional when it is done with a desire that certain consequences shall follow from a person- s acts or omissions. Intention thus is a subjective consideration. 14. The learned trial Court while discussing about the offence has observed as follows :- Had there been a single blow by means of a wooden stick, I would have concluded that the action of the accused amounted to culpable homicide not amounting to murder. In case of single stick blow, in some cases it may be inferred that there might not be any intention to cause death or such bodily injury as is likely to cause death. 15. According to us, single blow theory for deciding a case to be either unde S. 304, Part I or Part II, I.P.C. is not proper. Sometimes even a single blow would be sufficient to hold a person guilty of offence under S. 302, I.P.C. whereas in some cases in spite of a number of blows given to the deceased, it cannot be said that the ingredients of the offence under S. 302, I.P.C. are attracted. In other words, the number of wounds caused during the occurrence is not always a decisive factor to hold a person guilty either under S. 302 or 304, Part I or S. 304, Part II, I.P.C. 16. In this case, though three injuries were caused to the deceased but since the prosecution is suppressing the genesis of the incident and the possibility of quarrel between the deceased and the appellant cannot be ruled out, it cannot be said that the accused had acted in a cruel and unusual manner. It is pertinent to note that the doctor has opined that the neurogenic shock is due to injury No. 3 only. Under these circumstances, we think it proper to convict the appellant under S. 304, Part I, I.P.C. and direct him to suffer imprisonment for 10 years. 17. In the result, the appeal partly succeeds. It is pertinent to note that the doctor has opined that the neurogenic shock is due to injury No. 3 only. Under these circumstances, we think it proper to convict the appellant under S. 304, Part I, I.P.C. and direct him to suffer imprisonment for 10 years. 17. In the result, the appeal partly succeeds. The order of conviction and sentence passed under S. 302, I.P.C. is set aside and the appellant is convicted under S. 304, Part I, I.P.C. and directed to suffer imprisonment for 10 years. The order of conviction and sentence passed under S. 307, I.P.C. is also set aside and the appellant instead is convicted under S. 324, I.P.C. and is directed to suffer imprisonment for two years. Both the sentences are directed to run consecutively. 18. It appears that the appellant is in jail custody in connection with this case since 20-10-2001 and thus he has already served the sentence imposed by us and, therefore, he should be set at liberty forthwith if he is not required to be detained in any other case. 19. I agree : Vinod Prasad, J. Appeal partly allowed.