JUDGMENT : Gopal Krishan Vyas, J. Instant appeal has been filed by the accused appellant Naresh @ Narendra Singh against the judgment dated 19.09.2011 passed by learned Additional Sessions Judge (FT) No.2, Hanumangarh in Sessions Case No. 57/2008 [54/2008] whereby the learned trial court convicted the accused appellant for committing offence under Section 302 IPC and passed sentence of life imprisonment along with fine of Rs. 3000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. 2. As per brief facts of the case, on 10.09.2008 at about 9:30 AM, Head Constable No. 130 Ashok Kumar of Pallu Police Station, Hanumangarh submitted a written report before the S.H.O, P.S. Pallu stating therein that today at about 5.55 AM upon receiving telephonic information, I along with Ami Lal, FC, Bhanwar lal FC, Rakesh Kumar, Ram Kumar reached on a public road near Government Hospital, where in the road side one white Pickup trolly No. RJ 21 GA 1933 was standing. In the said vehicle, one person in injured condition was lying, upon inspection, it is found that there were injuries upon his neck and blood was coming out due to said injury. The injured person was in position to speak, therefore, upon inquiry he said that his name is Mangi lal Bishnoi R/o Village Nokha and my was hired by Naresh R/o Rajyasar, Pallu in the last night, in the morning at about 5:30 AM, Naresh inflicted injury upon his neck with knife and while saying so he became unconscious. 3. As per the written report submitted by complainant Ashok Kumar, head constable on spot, the shopkeeper of medical store Indrapal and Tea shopkeeper Gajju and one sweeper of hospital Ramchando informed him that one person wearing read colour shirt and black pant caused injury to the injured person by knife and ran away towards bus stand. The complainant and other persons present on spot immediately admitted the injured Mangi lal in the Government hospital Pallu where after providing primary treatment injured was referred for further treatment at Government hospital, Rawatsar where he was declared dead by the doctors and his body is lying in the mortuary of hospital. 4. Upon aforesaid report Ex.P/1 submitted by Ashok Kumar, Head Constable of P.S. Pallu, FIR No. 99/2008 Ex.P/2 was registered at 9:30 AM on 10.09.2008 by the S.H.O. P.S. Pallu 5. 4. Upon aforesaid report Ex.P/1 submitted by Ashok Kumar, Head Constable of P.S. Pallu, FIR No. 99/2008 Ex.P/2 was registered at 9:30 AM on 10.09.2008 by the S.H.O. P.S. Pallu 5. After registration of FIR, usual investigation was conducted and upon evidence collected in the investigation, the accused appellant was arrested vide arrest memo Ex.P/15 at 7:15 PM on 10.09.2008 and upon his information under Section 27 of Evidence Act, vide Ex.P/17, blood stained knife was recovered in presence of two witnesses Pula Ram and Ami lal. After postmortem of the body of deceased Mangi lal Bishoi, report Ex.P/19 was prepared by Medical Jurist, Rawatsar PW/6 Dr. Hanuman Singh Mehra. Upon completion of investigation, the police filed challan against the accused appellant in the court of Judicial Magistrate, First Class, Rawatsar under Section 302 IPC from where the case was committed to the court of Additional Sessions Judge Nohar but transferred to the court of Additional Sessions Judge (FT) No.2, Hanumangarh for trial. 6. In the trial following charge under Section 302 IPC was framed against the accused appellant on 10.02.2009 which reads as under:- ^^;g fd vki ij vkjksi gS fd vkius fnukad 10-09-2008 dks lqcg yxHkx 5-30 cts ljdkjh vLirky iYyw ds ikl ekaxhyky dh e`R;q dkfjr djus ds vk'k; ls ml ij pkdw ls izgkj dj mldh e`R;q dkfjr dhA bl izdkj vkius ekaxhyky dh gR;k dkfjr dhA vkidk ;g d`R; Hkk0n0la0 dh /kkjk 302 ds v/khu n.Muh; vijk/k gS] tks fd esjs izalKku esa gSaA** 7. In the trial, to prove the aforesaid charge, the prosecution was granted an opportunity to lead evidence. The statement of eleven witnesses were recorded by the court in the trial for the allegation levelled against the accused appellant. 8. After recording the evidence of prosecution, statement of accused appellant under Section 313 Cr.P.C were recorded in which he denied all the allegations levelled against him by the prosecution witnesses and stated that he has been falsely implicated in this case. 9. In defence, statement of DW/1 Jagdish were recorded by the trial court. 10. After recording evidence of both the parties, the final arguments were heard and accused appellant was held guilty under Section 302 IPC vide judgment dated 19.09.2011. 11. In this appeal the judgment dated 19.09.2011 passed by the learned Additional Sessions Judge (FT) No.2, Hanumangarh is under challenge. 12. 10. After recording evidence of both the parties, the final arguments were heard and accused appellant was held guilty under Section 302 IPC vide judgment dated 19.09.2011. 11. In this appeal the judgment dated 19.09.2011 passed by the learned Additional Sessions Judge (FT) No.2, Hanumangarh is under challenge. 12. At the threshold, learned counsel for the appellant submits that accused appellant is not disputing the incident but challenging the finding of learned trial court whereby he was held guilty for offence under Section 302 IPC for the reason that as per evidence on record, the offence cannot travel beyond Section 304 Part I IPC because there is no allegation against the accused appellant for inflicting repeated injuries to the deceased. The occurrence took place on the spur of the moment and there is no evidence of motive on record, therefore, the conviction of accused appellant under Section 302 IPC may be altered to Section 304 Part I IPC. Learned counsel for the appellant while inviting our attention towards postmortem report Ex.P/19 and statement of doctor PW/6 submits that cause of death was loss of blood due to non-availability of proper treatment and only one injury was found upon the body of deceased, therefore, in view of settled principle laid down by the Hon'ble Supreme Court, the trial court ought to have held the accused appellant guilty for offence under Section 304 Part I IPC instead of 302 IPC. Learned counsel for the appellant vehemently argued that in absence of any evidence of motive, it cannot be said that prosecution has proved its case for offence under Section 302 IPC because the motive/intention is important ingredient for offence under Section 302 IPC which is missing. Learned counsel or the appellant relied upon the judgment of Hon'ble Supreme Court in the case of State of H.P. v. Ram Pal reported in (2006) 2 SCC (Cri) 165, Dayanand v. State of Haryana reported in 2008 Cri.L.J 2975, judgment of this Court in D.B. Crl. Appeal NO. Learned counsel or the appellant relied upon the judgment of Hon'ble Supreme Court in the case of State of H.P. v. Ram Pal reported in (2006) 2 SCC (Cri) 165, Dayanand v. State of Haryana reported in 2008 Cri.L.J 2975, judgment of this Court in D.B. Crl. Appeal NO. 291/2010 : Meetha Lal v. State of Rajasthan decided on 09.12.2015 and judgment of this Court in D.B. Criminal Jail Appeal No. 384/2006 Khemla v. State of Rajasthan decided on 21.01.2016 and submits that it is a case in which the conviction of accused appellant is to be converted to offence under Section 304 Part I IPC and sentence of life imprisonment may be reduced to the period already undergone. 13. Per contra, learned Public Prosecutor seriously opposed the prayer and submits that accused appellant is not entitled for any lenient view because he has inflicted injury by knife upon vital part of the body which is neck which resulted into the death. It is also argued that blood stained knife was recovered as per information given by him and he is not disputing the incident, therefore, even if motive which is one of the ingredient for offence of murder is not in existence then also it can be gathered from the entire evidence that trial court has rightly arrived with a finding that accused appellant is guilty for offence under Section 302 IPC. 14. Learned Public Prosecutor further argued that it is a case in which vehicle of innocent person was hired and for no reason, the accused appellant inflicted injury by knife and due to that injury, the deceased died therefore, no interference is called for upon the finding given by the trial court so as to convict the accused appellant for offence under Section 302 IPC, therefore, this appeal may kindly be dismissed. 15. After hearing learned counsel for the parties, first of all it is required to be observed that counsel for the appellant is not disputing the incident. The only argument is that the trial court has wrongly convicted the accused appellant for offence under Section 302 instead of 304 Part I IPC because there is no evidence of motive on record. After hearing learned counsel for the parties, first of all it is required to be observed that counsel for the appellant is not disputing the incident. The only argument is that the trial court has wrongly convicted the accused appellant for offence under Section 302 instead of 304 Part I IPC because there is no evidence of motive on record. After perusing entire evidence, we have no hesitation to say that prosecution has failed to produce any evidence of motive but at the same the Court cannot lose sight of the fact that blood stained knife was recovered as per information given by the accused appellant vide Ex.P/17 on 13.09.2008 in front of two witnesses Pula Ram and Ami lal. The said recovery is proved by the prosecution while producing the witness Ami lal PW/4. The said witness Amit lal PW/4 has categorically stated that knife was recovered by the S.H.O. Police station, Pallu in front of him. PW/5 Man Singh who is conductor of Bus No. RJ 31 18A 0902 of Rathore Travels stated before the court that accused appellant was arrested by the police when he was sitting in the bus. The doctor PW/6 Dr. Hanuman Singh Mehra stated before the Court that the injury found upon the body of deceased was caused by sharp edged weapon but he has specifically stated in the cross-examination that:- ^^;g lgh gS fd e`rd dk vf/kd jDr L=ko gksus ls og lksd esa vk x;k vkSj mldh e`R;q gks xbZA ;fn e`rd dk jDr L=ko ugha gksrk rks og cp ldrk FkkA ;fn e`rd dk mfpr bykt gksrk o mldk jDr L=ko can gks tkrk rks mlds cpus dh lEHkkouk FkhA** 16. Upon consideration of entire evidence and argument of both sides, there is no evidence of motive/intention on record. Upon consideration of entire evidence and argument of both sides, there is no evidence of motive/intention on record. The allegation against the appellant is for inflicting one injury upon the neck and there is dying declaration of deceased upon which the learned trial court held the accused appellant guilty for offence under Section 302 IPC but in our opinion, if main ingredient for offence of murder "motive" is absent and as per statement of doctor, the deceased died due to loss of excessive blood then obviously it is a case of culpable homicide not amount to murder, therefore, in totality of circumstances, we are of the opinion that conviction of accused appellant for offence under Section 302 IPC is not sustainable in the eye of law because as per evidence, it is a case in which accused appellant can be held guilty for committing offence under Section 304 Part I I.P.C. 17. In the case of State of HP v. Ram Pal (supra), the Hon'ble Supreme Court, gave following finding upon the identical facts. The paras nos. 5 to 8 of the said judgment are as follows: "5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarrelling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back. 6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. 6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW-3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased. 7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice. 8. For the reasons stated, this appeal fails hence dismissed." 18. Hon'ble Supreme Court in the case of Dayanand (Supra) considering the identical issue that in absence of motive or intention and upon the fact that there was no repeated blow upon the vital part of the body, made following adjudication which reads as under :- "10. The crucial question is 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 recognises three degrees of culpable homicide. homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest 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'. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest 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. 11. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. 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 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 (1) with the intention of death; or causing de sing 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 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 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. 12. (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. 12. Clause (b) of Section 299 corresponds responds 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 or condition. It is noteworthy that the 'intention to cause death' is not an 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. 13. 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 or the 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, 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 to cause death" have been used. 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 to cause death" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury 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, 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 "bodily injury.......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" probable" result of the injury, having regard to the ordinary course of nature." 19. In the case of Arjun v. State of Maharashtra (supra) the following adjudication is made by the Hon'ble Supreme Court. The paras nos.17 and 18 of the said judgment is as under: "17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so. 18. We are informed that the appellant is in custody since 30.07.2003. 30.07.2003. In our view, custodial sentence of 10 years to the accused-appellant would meet the ends of justice and it is ordered accordingly accordingly. The appeal is accordingly disposed of, altering the sentence awarded." awarded." 20. 18. We are informed that the appellant is in custody since 30.07.2003. 30.07.2003. In our view, custodial sentence of 10 years to the accused-appellant would meet the ends of justice and it is ordered accordingly accordingly. The appeal is accordingly disposed of, altering the sentence awarded." awarded." 20. We have considered the entire evidence in the light of aforesaid judgments and find that conviction of accused appellant for offence under Section 302 IPC is not sustainable in law because as per evidence, offence cannot travel beyond Section 304 Part I IPC as there is no allegation for repeated blow and main ingredient of murder which is 'motive' is absent in this case. 21. On the basis of above discussion, we hold that learned trial court has committed an error of law while recording finding for offence under Section 302 IPC against the accused appeal instead of culpable homicide not amounting to murder under Section 304 Part I I.P.C. 22. Consequently, the instant appeal is hereby partly allowed. The impugned judgment dated 19.9.2011 by the learned Addl. Sessions Judge (Fast Track) No.2, Hanumangarh in Sessions Case No. 57/2008 [54/2008] is hereby modified and the conviction and sentence of the accused appellant under Section 302 IPC is set aside and he is held guilty for offence under Section 304 Part I IPC and punished with the sentence of 10 years RI with fine of Rs. 3,000/-.