JUDGMENT 1. Appellants have filed this appeal challenging the judgment of conviction and sentence dated 18.1.2000 delivered by the Court of Third Additional Sessions Judge, Shivpuri in Sessions Trial No134/1999 whereby the appellants stand convicted for the offence punishable under section 302 read with 34 IPC and sentenced to undergo life imprisonment and fine of Rs.500/- each and under section 323 IPC sentenced to undergo R.I. for one year respectively with default stipulations. Both the sentences were directed to run concurrently. 2. The bare facts giving rise to the present case are that at about 9.00 p.m. on 4.5.1999, complainant Devilal (PW1) lodged the FIR (ExP-1) to the effect that he along with his brother deceased Mathura and others had come to attend the marriage of the son of his uncle at village Sunaj. Between 9-10 p.m., complainant along with his brother deceased Mathura, Ramprasad , Veer Singh and others went to the potter to fetch some earthen utensils. When they were returning from the potter's place, Hari, Baijnath, Kamala and Srikrishna came and started assaulting his brother Mathura and Ram Prasad. His brother Mathura died on the spot and Ram Prasad sustained injury on the head. Thereafter, the appellants ran away. The complainant and others took the dead body to the marriage place and on the next day morning FIR was lodged. In the FIR past animosity between the appellants Vachanlal, Hari and others with the deceased on the issue of daughter-inlaw of the complainant was shown as the motive. Investigation was set into motion and the necessary formalities were completed. The deceased and injured persons were sent for autopsy/medical examination. Charge sheet was filed before the Court of competent criminal jurisdiction. After committal of the case charge was framed against the appellants for offence punishable under section 302 in the alternative under section 302 read with 34 and section 323 IPC. The appellants abjured their guilt and sought trial. 3. The prosecution produced (PW1), Devilal (PW2), Ram Prasad and (PW3) Mulla in support of their story whereas the defence did not produce any oral or documentary evidence. All the appellants/accused under section 313 CrPC denied the charges and raised the plea of false implication owing to past animosity. 4. The appellants abjured their guilt and sought trial. 3. The prosecution produced (PW1), Devilal (PW2), Ram Prasad and (PW3) Mulla in support of their story whereas the defence did not produce any oral or documentary evidence. All the appellants/accused under section 313 CrPC denied the charges and raised the plea of false implication owing to past animosity. 4. Learned counsel for the appellants while assailing the impugned conviction and sentence submits that present is a case where conviction in the attending facts and circumstances can at best be uunder section 304-II of IPC but not under section 302 IPC for the reason that single fatal injury in the upper part of abdomen was caused to deceased Mathura which is corroborated by medical and ocular evidence. It is further submitted that (PW2) and (PW3) namely Ramprasad and Mulla who are eye witnesses tried to improve the prosecution story by deposing that they were carrying lantern with the help of which they could recognize the assailants/appellants in the darkness. This fact of the witnesses carrying lantern is missing in their earlier statements. It is submitted by the appellants that trial Court has discarded this improvement on the ground that it was natural on the part of the complainant and the witnesses who are part of marriage procession and were travelling during night to carry some source of light and, therefore, even if the said witnesses did not disclose in their earlier statements about carrying of lantern, the said fact does not render the prosecution story untrustworthy. 5. Reliance is placed on the decision of the apex Court in the case of Karan Singh v. State of Punjab [(1994 SCC (Cri.) 64 para 3) and Meer Dhana Sidha v. State of Gujarat (CAR 1986 page 22 para 8). It is also submitted that despite (PW1) Devilal an eye witness stating in para 4 of his testimony that during the assault blood had spilled on the ground, the prosecution did not recover any blood stained soil. It is lastly submitted that the appellants No. 1,2,3 and 4 have suffered incarceration of five years three months, five years, four years eight months and four years eight months respectively and, therefore, prayed for converting the conviction under section 302 IPC into that of section 304 Pt.II IPC. 6. On the other hand, learned counsel for the State submits that by perusing of the testimony of Dr. 6. On the other hand, learned counsel for the State submits that by perusing of the testimony of Dr. S.K. Dwivedi (PW8), the cause of death has been shown as rupture of spleen leading to haemorrhagic shock which is primarily due to the assault made to lower chest and upper part of the abdomen of deceased Mathura. It is submitted that all the eye witnesses have supported the prosecution case and, therefore, there is no occasion for interfering with the judgment of conviction which has been rightly passed by the Court below. 7. After having thoughtfully considered the arguments of learned counsel for the rival parties and having perused the record of the Court below and the findings recorded by the trial Judge, this Court is of the considered view that this is a fit case where conviction under section 302 IPC deserves to be converted into that under section 304 Pt. II of IPC for the reasons assigned below: (i) A bare perusal of the prosecution story which has been found proved by the testimony of Devilal (PW1), Ramprasad (PW2) and Mulla (PW3) who all are eye witnesses and out of which PW2 and PW3 are injured eye witnesses, it is revealed that there was some animosity between Pappu (who was accompanying the marriage party) and the appellant No. 1 Vachanlal. Argument and altercation took place between these two when the complainant PW1 and the eye witnesses which turned into an assault when the appellants assaulted the injured Ram Prasad (PW2) Mulla (PW3) and also deceased Mathura. Thus the assault does not appear to be premeditated but was preceded by abuse, argument and altercation which obviously must have whipped up passions. (ii) Omnibus allegation of assault is made against the appellants without attributing any particular injury to any particular appellant. (iii) More so, the testimony of Dr. S.K.Dwivedi (PW8) who not only examined the injured Ram Prasad (PW2), Mulla (PW3) but also conducted the autopsy, found simple injuries caused by hard and blunt object on the body of the injured while on the deceased only single injury, i.e., contusion and swelling, measuring 9.4 cm was found on the left side of stomach with fracture of nineth and tenth rib. Besides this injury, there was no other injury found on the body of the deceased. Besides this injury, there was no other injury found on the body of the deceased. It is thus, clear that the present is a case of single injury which turned out to be fatal for the deceased, who died due to rupture of spleen. (iv) The appellants assaulted the deceased and the injured with lathi and luhnagi and not with any sharp cutting object. It is noticeable that there is nothing on record to indicate that the kind of injury, which turned out to be fatal was actually intended by the appellants. It appears that the appellants merely intended to give a beating to the deceased and cause injury with no intention to commit murder. In taking the above said view, the Court below found support in the view of the apex Court in the case of Karan Singh v. State of Punjab (supra). 8. In view of the above, this Court has no hesitation to hold that this is a case where the appellants may be attributed with knowledge that their assault can lead to death of deceased but not with intention to commit murder. Moreso, the fatal injury which was medically opined to be sufficient to cause death was not proved to be intended to be caused by any of the appellants. Once it is found that the circumstances proved do not attribute intention to the appellants to inflict the fatal injury, the appellants cannot be held liable for murder. However, evidence adduced and found proved certainly attribute knowledge to the extent that appellants knew that the assault which caused the fatal injury can result in death of deceased. Our view is bolstered by the ratio laid down in the following extracts of some of the celebrated decisions of the apex Court which are reproduced below. In the case of Virsa Singh v. Sate of Punjab [ AIR 1958 SC 465 ], the apex Court in para 23 observed as under : “23. Our view is bolstered by the ratio laid down in the following extracts of some of the celebrated decisions of the apex Court which are reproduced below. In the case of Virsa Singh v. Sate of Punjab [ AIR 1958 SC 465 ], the apex Court in para 23 observed as under : “23. The learned counsel for the appellant referred us to Emperor v. Sardarkhan Jaridkhan where Beaman, J., says that-- “where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended.” with due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. In the case of Dya Nand v. State of Haryana, [ (2008)15 SCC 717 ], the apex Court observed as under : 14. “15. Whether the wound is serious or otherwise, and if serious, how serious, is totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. In the case of Dya Nand v. State of Haryana, [ (2008)15 SCC 717 ], the apex Court observed as under : 14. “15. The crucial question is as to which was the appropriate provision to be applied. In the scheme of 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, IPC practically recognises three degrees of culpable 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’. 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. 16. 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 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 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 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 death; or (1)  with the intention of causing 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. 17. Clause (b) of section 299 corresponds with clauses (2) and (3) of section 300. The distinguishing feature of the mensrea 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 thekilling within the ambit of this clause. This aspect of clause (2)is borne out byIllustration (b) appended to section 300. 18. 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 thekilling within the ambit of this clause. This aspect of clause (2)is borne out byIllustration (b) appended to section 300. 18. 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, 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. 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 degrees of probability of death resulting from the intended bodily injury. To put it more 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 probability as distinguished from a mere possibility. The words ‘bodily injury … sufficient in the ordinary course of nature to cause death’ mean that death will be the‘most probable’ result of the injury, having regard to the ordinary course of nature. 19. The word ‘likely’ in clause (b) of section 299 conveys the sense of probability as distinguished from a mere possibility. The words ‘bodily injury … sufficient in the ordinary course of nature to cause death’ mean that death will be the‘most probable’ result of the injury, having regard to the ordinary course of nature. 19. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant Singh v. State of Kerala is an apt illustration of this point. 9. Accordingly, the present appeal is allowed to the extent that the conviction under section 302 IPC is converted into that under section 304 Pt. II of IPC. The life sentence accordingly stands converted into R.I. for five years which in the considered opinion of this Court would not only suffice the requirement of penology but also gravity of the offence proved and also the requirement of reformation. However, the conviction and sentence under section 323 IPC imposed by the learned trial Judge is left undisturbed and is confirmed 10. Both the above sentences of five years R.I. under section 304 Pt. II IPC and one year R.I. under section 323 IPC shall run concurrently. If any of the appellants have already suffered custody of five years R.I., they be released forthwith with their bail bonds discharged. However, in case any appellant has suffered less than the sentence imposed herein then their bail bonds stand cancelled to enable hem to surrender and suffer the remaining part of the modified sentence.