JUDGMENT : SREENIVAS HARISH KUMAR, J. 1. This appeal is filed by the accused in Sessions Case No. 132/2010 on the file of Principal Sessions Judge, Bijapur. He has stood convicted for the offence punishable under Section 302 of IPC and been sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- with a default clause of simple imprisonment for six months. 2. The prosecution case in brief is as follows: The deceased is the wife of the accused. They lived together for a few years and as the accused entertained suspicion with regard to her fidelity, there used to be frequent quarrel between them. The accused sent the wife to her parents’ house. On 11.02.2010, the deceased, her mother, PW-6 and PW-8 and CW-9 Gopal went to the village of the accused to meet him for bringing a conciliation between the accused and the deceased. When they all reached his village, the accused was not in the house and they were informed that he had gone to the land of one Babulal Kamate for cutting the Bellary Jali trees. Therefore, the deceased, her mother and others went to that land. At that time, accused got agitated seeing them, and suddenly lobbed the axe at his wife and it fell on her left palm. As she bent forward, the accused again gave a blow on her back, which resulted in her death. 3. The police registered FIR, held investigation and chargesheeted the accused. The trial court, after appreciating the evidence of the witnesses, came to conclusion that the prosecution was able to prove the case beyond reasonable doubt and consequently held the accused guilty of the offence and sentenced him as aforesaid. 4. Assailing the findings of the trial Court, the learned counsel for the appellant-accused argues that the trial court has committed an error in holding the accused guilty of the offence punishable under Section 302 of IPC. He argued that having regard to the circumstances, the trial court at the best, could have punished the accused for an offence punishable under Section 304 Part-II of IPC. Elaborating the arguments it was submitted that, the deceased and the accused were living separately for more than a year before the incident. He argued that having regard to the circumstances, the trial court at the best, could have punished the accused for an offence punishable under Section 304 Part-II of IPC. Elaborating the arguments it was submitted that, the deceased and the accused were living separately for more than a year before the incident. The deceased, her mother and some others went to the place where the accused was working as a coolie, for pacification of dispute between the husband and wife. At that time some scuffle might have taken place and provoked by the same the accused might have assaulted his wife with the axe he had for cutting the jali trees. There was no premeditation on the part of the accused to say that he did intend to cause death of the wife and therefore exception (4) to Section 300 of IPC ought to have been applied. Learned counsel for the appellant argues that when the accused gave statement under Section 313 Cr.P.C. he stated that the persons who had gone to that place along with deceased tried to assault him with jali sticks. This circumstance shows that probably he was under great threat and the said mitigating factor should have been taken into consideration while appreciating the evidence, but the trial court has ignored it. The injury on the back was not likely to cause death and there are no circumstances to hold that the accused intended to cause such type of injury and for this reason the accused should not have been convicted for the offence punishable under Section 302 of IPC. In support of the argument, he placed reliance on two judgments of the Supreme Court namely: Pularu vs. State of M.P. 1993 SCC (Cri) 1023 and Sukhdev Singh vs. Government NCT of Delhi, 2003 Cri. L.J. 4315. 5. He further argues that the accused has already spent 9 years 6 months in the jail. He has got four children and they are under his mother’s care. Therefore, by scaling down the offence from Section 302 to Section 304 Part-II IPC, the punishment of imprisonment may be reduced to the extent of period of sentence he has already served. 6. Learned High Court Government Pleader argues that the evidence of the eyewitnesses clearly establishes the overt act of the accused. Therefore, by scaling down the offence from Section 302 to Section 304 Part-II IPC, the punishment of imprisonment may be reduced to the extent of period of sentence he has already served. 6. Learned High Court Government Pleader argues that the evidence of the eyewitnesses clearly establishes the overt act of the accused. The nexus between the injury and death can be clearly seen and it is a clear case of murder. There are no mitigating circumstances to scale down the offence from Section 302 to Section 304 Part-II of IPC and therefore he argued for sustaining the judgment of the trial Court. 7. We have considered the points of arguments and perused the records. The argument of appellant’s counsel very clearly shows that the appellant does not dispute the incident. When the accused was examined under Section 313 Cr.P.C. he admitted that the deceased, her mother and a few others had come to the place where he was working and he tried to explain further that they tried to assault him with jali sticks. Therefore, happening of the incident is not disputed. All that we are required to examine is whether the death of the deceased is a murder or culpable homicide not amounting to murder? 8. PWs. 1, 6 and 8 who are the eyewitnesses, have given full account of the incident. Of course an attempt is made in the cross-examination by suggesting to each of them that PWs. 6 and 8 and CW-9 Gopal tried to assault the accused with jali wood sticks, but the same has been consistently denied by all of them. Probably this suggestion might have been made with a view to establish that there was provocation from the side of the deceased, but we do not find probability in the defence version. Even the explanation given by the accused at the stage of his examination under Section 313 Cr.P.C. that he was about to be assaulted is difficult to be accepted. Therefore, we rule out the possibility of any provocation from the deceased’s side. We, however, find that this case falls under exception (4) to Section 300 of IPC. 9. Ex.P-19 is the postmortem report and it speaks about the presence of two ante-mortem injuries - (1) cut wound on the left palm measuring 13 x 4 cms and (2) cut wound on the back measuring 15 x 9 x 10 cms. We, however, find that this case falls under exception (4) to Section 300 of IPC. 9. Ex.P-19 is the postmortem report and it speaks about the presence of two ante-mortem injuries - (1) cut wound on the left palm measuring 13 x 4 cms and (2) cut wound on the back measuring 15 x 9 x 10 cms. PW-14 the doctor who conducted the postmortem says in his evidence that corresponding to injury No. 2 there were three internal fractures - to walls, T-4 to T-12 ribs and cartilages; cause of death was hemorrhage and shock as a result of multiple fractures. This is also not disputed. 10. The trial court has recorded reasons that the accused abused the deceased and assaulted her with an axe resulting in a cut wound on the left hand palm measuring 13 cm x 14 cm and a cut wound on the back side of the body measuring 15 x 9 x 4 cms. The axe got stuck into the back causing fracture of T-4 to T-12 ribs and these injuries were sufficient to cause death as deposed by PW-14. Hence, the trial court concluded that the accused had intention to commit the murder of the deceased within the meaning of Section 300 of IPC and at any rate he knew that it was so imminently dangerous that it must in all probability cause death and that he committed that act without any excuse for incurring the risk of causing death or such injuries within the meaning of fourthly of Section 300 of IPC. 11. Before examining the correctness of these findings, we express our opinion that one judgment of the Supreme Court in the case of Sukhdev Singh (2003 Cri. L.J. 4315) is not applicable because, it is a case where the accused sought to defend him under Section 80 of IPC. This is not a case to which one of the general exceptions can be applied. 12. If it is seen as to how the incident occurred, the accused and the deceased were living apart for about more than a year prior to date of incident as the accused suspected her fidelity. That the accused had been to the land of one Babulal Kamate for cutting the jali trees. 12. If it is seen as to how the incident occurred, the accused and the deceased were living apart for about more than a year prior to date of incident as the accused suspected her fidelity. That the accused had been to the land of one Babulal Kamate for cutting the jali trees. The deceased, her mother and the eyewitnesses went to the place where the deceased was working and the accused got agitated seeing them and flung the axe in his hand, at the wife. 13. If it is held that the accused had intention to cause death, the offence falls within the ambit of clause firstly of Section 300 of IPC. To apply this clause, essential requirement is existence of nexus between the act complained of and its result culminating in death. At times, death may not take place immediately, but if the intention to cause death is made out, the act fits into firstly of Section 300 of IPC. Direct evidence to prove intention is difficult to be obtained and many a time it is inferential. 14. Clauses secondly and thirdly of Section 300 of IPC also contain the word intention, but the distinction between ‘intention’ found in clause ‘firstly’ and, the ‘intention’ found in clauses ‘secondly’ and ‘thirdly’ lies in degree of criminality. In clause firstly, intention is to cause death; whereas in ‘secondly’ and ‘thirdly’ intention is not to cause death, but to cause injury which is likely to cause death of the person to whom injury is inflicted. Clause ‘thirdly’ contemplates two more requirements to be satisfied, they are (1) intention to inflict a particular injury (injury intended to be inflicted) and (2) that injury must be sufficient in the ordinary course of nature to cause death. 15. Clause ‘fourthly’ does not speak about intention. It rather speaks only about (1) knowledge on the part of the person that the act to be committed by him is so imminently dangerous that death will ensue in all probability or knowledge that the act will result in bodily injury as is likely to cause death and (2) committing the act without any remorse. 16. In the background of above analysis, if the case on hand is examined, we do not find evidence from which an inference can be drawn that the accused had intention either to cause death or bodily injury. 16. In the background of above analysis, if the case on hand is examined, we do not find evidence from which an inference can be drawn that the accused had intention either to cause death or bodily injury. It was not a premeditated act. To say an act to be premeditated, intention coupled with preparedness must be proved. Sometimes a person may develop ‘intention’ instantaneously, but it is matter of drawing inference from the proved facts and we do not find any evidence of that kind to hold that the accused developed an intention to cause the death of his wife or to cause bodily injury that is likely to cause death. 17. From the proved facts, knowledge of consequences of the act can be attributed to the accused. Test of ordinary prudent man’s perception is enough to make out knowledge. Here, the accused had an axe with him for cutting the trees, and when he employed the same for assaulting his wife, it should be within his knowledge that the act he was committing was very imminently dangerous to her life. No other inference is possible to be drawn and probably he could seek no excuse for his act. Therefore, the whole incident squarely falls within the purview of ‘fourthly’ of Section 300 of IPC. 18. But the learned counsel for accused-appellant argued that exception (4) to Section 300 of IPC can be applied. Examined whether this exception can be applied, it is to be stated that as discussed already, we do not find that the accused premeditated his act. Admittedly, the accused and the deceased were living separately for more than a year; that never during that period the accused had made any attempt to kill her. It was only when the wife accompanied by others went to the place where he was working, the accused axed his wife. It is very important to mention here that he did not procure the axe for killing the wife, but it was already with him as he was cutting the trees with it. This makes all the difference to rule out premeditation. The circumstances are somewhat akin to the circumstances in the case of Palaru vs. State of M.P. 1993 SCC (Cri) 1023 cited by appellant’s counsel. 19. This makes all the difference to rule out premeditation. The circumstances are somewhat akin to the circumstances in the case of Palaru vs. State of M.P. 1993 SCC (Cri) 1023 cited by appellant’s counsel. 19. There is no evidence to hold that the accused took undue advantage of the situation or acted cruelly or in an unusual manner. Obviously a question arises, whether act of axing was not cruel? The answer is No, for the reason that cruelty requires demonstration of savagery. We do not find a circumstance of demonstration of savagery and brutality by the accused. There might have taken place some fight or quarrel at that time. It is unrealistic to say that nothing of that sort might have taken place, especially when the accused saw his wife whose fidelity he doubted and for which reason he lived separately from her. Accused seems to have acted at the spur of the moment on account of annoyance and irritation that might have been caused by the very appearance of his wife. Therefore, we find a situation to invoke Exceptions (1) and (4) and resultantly the act complained of answers only the last part of Section 299 of IPC i.e. “causing death by doing an act with the knowledge that he is likely by such act to cause death” which amounts to culpable homicide not amounting to murder punishable according to Section 304 Part-II of IPC. 20. Therefore, appeal stands partly allowed, conviction of appellant for offence punishable under Section 302 of IPC is set aside and the judgment of the trial court is modified holding the accused guilty of offence punishable under Section 304 Part-II of IPC. 21. The accused has already served sentence of 9 years 6 months. Therefore, sentence is reduced to 10 years rigorous imprisonment and fine of Rs. 10,000/- with a default sentence of simple imprisonment for 6 months.