JUDGMENT Manoj Kumar Garg, J. - The instant criminal appeal has been filed by the accused appellant under Section 374(2) Cr.P.C. against the judgment dated 19.11.2019 passed by the learned Additional Sessions Judge, Bali, District Pali in Session Case No. 23/2016 by which learned Judge convicted the accused-appellant for offence under Section 302 IPC and sentenced him to life imprisonment and also imposed a fine of Rs.10,000/- and in default of payment of fine, to further undergo a sentence of six month s simple imprisonment. 2. Brief facts of the case are that a written report was filed by one Darga Ram before the Police Station, Rani, District Pali stating therein that his brothers viz. Pokar Ram and Hasta Ram both reside in a nearby Dhani and they used to often quarrel with each other for liquor. The day before, Hasta Ram came on a motorcycle after consuming liquor and in the night, Pokar Ram inflicted lathi blows on the head and body of Hasta Ram who succumbed to the injuries. The informant came to know about the incident only on next morning. When he reached the house of Hasta Ram, he was lying with only an underwear on his body. 3. On the basis of the said report, the Police registered the FIR for offences under Sections 302, 201 IPC and started investigation. After usual investigation, the police filed charge sheet against the accused-appellant for offence punishable under Sections 302 & 201 IPC. 4. The case was committed for trial before the court of Addl. District & Sessions Judge, Bali, Distt. Pali where the charges were framed against the accused-appellant. The accused-appellant pleaded not guilty and claimed trial. 5. At the trial, the prosecution examined as many as 18 witnesses in all. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. No witness was examined on the defence side. 6. At conclusion of the trial, the learned Addl. Sessions Judge, Bali, Distt. Pali vide judgment dated 19.11.2019 convicted the appellant for offence under Section 302 IPC and passed sentence mentioned above. 7. Learned counsel for the appellant submits that the learned trial court has not appreciated the evidence led by the prosecution in proper perspective. It is argued that there is no evidence on record that the appellant/accused had any motive or intention to kill the deceased. 7. Learned counsel for the appellant submits that the learned trial court has not appreciated the evidence led by the prosecution in proper perspective. It is argued that there is no evidence on record that the appellant/accused had any motive or intention to kill the deceased. They used to quarrel for liquor every other day and on the day of incident also, some hot discussion took place in between appellant and deceased and at the spur of moment, the injuries were caused to the deceased. According to the statement of PW/11 Dr. Ramesh Chandra, the injury on head of deceased was found to be simple in nature. There was fracture of ribs and cause of death was due to rupture of spleen. It is further argued that after arrest of appellant, his Banyan, Dhoti and lathi was recovered. On all these articles, human blood was found but the blood group comparison failed, therefore, it can be said that finding of learned trial court for convicting the accused appellant for offence under Section 302 IPC is not sustainable in law. The crux of argument of learned counsel for the appellant is that prosecution has failed to prove its case for offence under Section 302 IPC and offence cannot travel beyond offence under Section 304 Part II IPC because there is no evidence of motive/ intention on record so as to hold the accused appellant guilty for offence under Section 302 IPC. Learned counsel prayed that this appeal may kindly be allowed in part and conviction of accused appellant may be altered from offence under Section 302 IPC to 304 Part II IPC with suitable reduction in sentence. 8. Per contra, learned Public Prosecutor vehemently argued that the learned trial court has convicted the accused appellant while considering statement of eye witnesses who have levelled specific allegations against the appellant. 8. Per contra, learned Public Prosecutor vehemently argued that the learned trial court has convicted the accused appellant while considering statement of eye witnesses who have levelled specific allegations against the appellant. It is also argued that blood stained clothes and lathi was recovered as per information given by the accused who is not disputing the incident, therefore, even if motive which is one of the ingredients for offence of murder, is not in existence then also it can be gathered from the entire evidence that trial court has rightly arrived at a finding that accused appellant is guilty for offence under Section 302 IPC, therefore, there is no question to accept the argument of learned counsel for the appellant that offence under Section 302 IPC is not made out in absence of motive. Thus, there is no question to accept the prayer of accused appellant to alter the offence from Section 302 IPC to Section 304 Part II IPC and it is prayed that the appeal may kindly be dismissed. 9. We have heard the learned counsel for the appellant as well as learned public prosecutor, perused the impugned judgment passed by the learned trial court and also gone through the record of the case. 10. In order to re-appreciate the entire material on record, it is relevant to consider the evidence of prosecution witnesses and the documents relied upon. 11. The eye witness PW/2 Samratha Ram has stated that he saw accused Pokar Ram inflicting blow with lathi upon Hasta Ram from the backside of house of Dhala Ram. However, in crossexamination he mentioned that he did not enter the house of deceased but he only saw the incident from outside the gate. He further stated that deceased used to consume liquor due to which his wife also abandoned him. He has specifically stated that accused and deceased who are brothers, often used to quarrel. 12. Similarly, PW/1 Narayan lal who is also an eye witness has mentioned that he saw the incident when accused inflicted lathi blows on the deceased. In his cross-examination, he mentioned that he saw the incident from about 20 ft away and he never entered into the house. He further stated that he informed the police at about 9:15-9:30 in the night but this fact was not mentioned in the police statement (Ex.D/1). 13. In his cross-examination, he mentioned that he saw the incident from about 20 ft away and he never entered into the house. He further stated that he informed the police at about 9:15-9:30 in the night but this fact was not mentioned in the police statement (Ex.D/1). 13. Another witness PW/12 Raju who is the son of deceased stated that when his father was preparing meals, at that time the accused came there and questioned him as to why he drinks daily and then the accused gave a lathi blow on the head of the deceased. In his cross-examination, the witness admitted that his father used to drink daily. He also admitted that when his father was returning home, accused Pokar Ram met him, however, he denied that his father hurled abuses at the appellant but in his police statement Ex.D/4 he mentioned that his father had abused the appellant. He also admitted that when accused appellant came to their house, he questioned the deceased as to why he drinks daily and that his mother also left father due to this habit. 14. As per postmortem report and statement of PW/11 Dr. Ramesh Chandra, the cause of death of deceased was due to rupture of spleen. Multiple bruises were found on the body of deceased which were on his chest, abdomen and back. After arrest of the present appellant, Banyan, Dhoti and lathi were recovered from the accused, however, as per FSL report, although human blood was found but no blood group could be ascertained on these articles. 15. Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. Upon perusal of the statements, it is obvious that the deceased and accused were brothers and they used to quarrel over the question of liquor. The appellant had neither taken any undue advantage nor acted in a cruel manner, thus, there was no intention on the part of the appellant to kill the deceased and therefore, the instant case falls under Exception 4 to Section 300 IPC. which reads as follows: "300. The appellant had neither taken any undue advantage nor acted in a cruel manner, thus, there was no intention on the part of the appellant to kill the deceased and therefore, the instant case falls under Exception 4 to Section 300 IPC. which reads as follows: "300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault." 16. Whether culpable homicide is committed with intention or knowledge is paramount for the purpose of determining the nature of the offence as well as for determining the measure of sentence to be passed on the accused. 17. Hon Ble Apex Court in Pulicherla Nagaraju @ Nagaraja vs State Of A.P, (2006) 11 SCC 444 while discussing the said aspect has observed as under :- Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. 18. In the case of Jai Prakash vs. State (Delhi Administration), (1991) 2 SCC 32 , held as under : "The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified harmful consequences would or could follow. But the knowledge is bare awareness and not the same thing as 'intention' that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified harmful consequences would or could follow. But the knowledge is bare awareness and not the same thing as 'intention' that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposely doing of a thing to achieve a particular end." 19. Once, it is established by the extenuating circumstances that the ingredient of intention cannot be established or that having regard to the facts of the case, it cannot be said that the accused had an intention to cause the said fatal injury. As per the postmortem report (Ex.P/27), the injury on the head of the deceased was found to be simple and the cause of death was found to be rupture of spleen caused by fracture of ribs. By inference, only knowledge can be attributed to the accused of the consequences that may follow and hence, it would be culpable homicide punishable under section 304 II of the Indian Penal Code. 20. In the instant case, as per evidence, the appellant is said to have assaulted his brother Pokar Ram with a lathi while expostulating on his drinking habit, which indicates that there was no premeditation to commit murder and intention to kill the deceased is also missing. Having regard to the nature of weapon used and the parts of the body on which blows were dealt, it is difficult to hold that the appellant intended to cause death, therefore, we may safely hold from the facts and circumstances that accused had no intention to kill the deceased and the commission of offence attributed to the appellant would come under Section 304 Part II IPC. 21. Accordingly, the conviction of appellant is altered from Section 302 I.P.C. to that under Section 304 Part-II I.P.C and he is sentenced to eight years rigorous imprisonment alongwith fine of Rs. 10,000/- and in default of payment of fine, to undergo six months simple imprisonment. 22. The appeal is partly allowed in these terms. 23. Record of the trial court be sent back forthwith.