JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. The instant appeal is directed against the Judgment of conviction dated 30.07.2013 and Order of sentence dated 31.07.2013, passed by learned Additional Sessions Judge-II, Saraikela Kharsawan, in Sessions Trial No. 115 of 2011 arising out of Kharsawan P.S. Case No. 23 of 2010 (G.R. Case No. 595 of 2010) registered under Section 302/34 of the Indian Penal Code for committing murder of Shyam Mundari by which the appellants have been convicted under section 302 of the Indian Penal Code and have been directed to undergo imprisonment for life with fine of Rs. 4,000/- each. In default of payment of fine, both the convicts have been directed to undergo S.I. for one month. 2. The prosecution story in brief as per the allegation made in the First Information Report reads hereunder as: According to the fardbayan of the informant Yasoda Mundari, the case of the prosecution was that on the night of 29.07.2010, she was sleeping at home with her husband Shyam Mundari and children when at around 10:00 pm, a sound was heard from Sega Mundari's house located next to them. When she heard a commotion, her husband Shyam Mundari went to Sega's house and saw that Sega was fighting with his brother-in-law Sarjam Horo and sister Mini, so he started admonishing them and asked them not to fight with the guests. Upon this Sega got angry and hit him with fist. Thereafter, he came back home. Immediately after that, at about 10.15 p.m. Sega Mundari came to her cousin Sita Ram Mundari's door outside her house, pulled her husband out of the house and both of them started beating him with fist and feet. When Boyo Mundari and his brother Suklal Mundari came from the adjacent house to save him then both of them started quarreling with them also and ran away after beating up the informant's husband and leaving him half dead. On 30.07.10, the informant got her husband treated but his condition did not improve and on 30/31.07.2010, at about 3 o'clock in the night, he died in front of the informant at her house, after which Sega and Sita Ram ran away from the village. After sending information about the occurrence through the watchman, when Bada Babu came to the village, the informant gave her statement in front of the villagers. 3. After sending information about the occurrence through the watchman, when Bada Babu came to the village, the informant gave her statement in front of the villagers. 3. The informant alleged that the death of her husband Shyam Mundari was due to the internal injuries caused by her neighbors Sega Mundari and Sita Ram who had beaten her husband with the intention of killing him. 4. On the basis of the statement of the informant, FIR being Kharsawan Police Station Case No. 23/10 dated 31.07.2010 was registered against the accused under Section 302/34 of the Indian Penal Code and after due investigation chargesheet was submitted against the appellants. 5. After cognizance of the offence, the case was committed to the Court of Sessions. Charge under Sections 302/34 of the IPC was framed to which the accused persons pleaded not guilty and claimed to be tried. 6. The prosecution has altogether examined 10 witnesses, namely, PW-1 Puhutu Sinjuri, PW-2 Dibar Hembrom, PW-3 Dr. O.P. Chaudhary, PW-4 Chandmuni Mundarin, PW-5 Boya Mundari, PW-6 Animesh Kumar Gupta, PW-7 Jasoda Mundari, PW-8 Nandi Mundari alias Anandi Mundari, PW-9 Kayari Mundari and PW-10 Sukhlal Mundari. 7. The Defence has not examined any witness in support of their case. The learned trial court, on appreciation of the evidences produced on behalf of the prosecution, has found the allegation proved beyond all reasonable doubt and accordingly, passed the judgment of conviction and order of sentence which is impugned in this appeal. 8. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court cannot be sustained in the eyes of law for the following reasons: (i) The prosecution has failed to appreciate that it is not a case where any ingredient of Section 302 I.P.C. is available. (ii) The appellants have used no weapon to assault on the deceased and as such it may be inferred that the appellant having no intention or knowledge to kill the deceased. (iii) There is nothing on record which suggest that the appellants acted in such a cruel manner which caused death of the deceased. (ii) The appellants have used no weapon to assault on the deceased and as such it may be inferred that the appellant having no intention or knowledge to kill the deceased. (iii) There is nothing on record which suggest that the appellants acted in such a cruel manner which caused death of the deceased. (iv) In alternative, it has been argued that even accepting the case of the prosecution to be true, even then, since the appellants have used no weapon to assault, it indicates that appellants have no intention to kill the deceased and hence, it can be said that at best it is a case under section 304 Part-II of the Indian Penal Code and Section 302 of the Indian Penal Code. (v) The learned counsel for the appellants, based upon the aforesaid ground, has submitted that the trial court has not taken into consideration of the aforesaid facts as such impugned judgment required interference, hence not sustainable in the eyes of law. 9. While defending the judgment of conviction learned counsel appearing for the State raised the following arguments in response to the grounds as referred hereinabove: (i) It is a case where the prosecution has been able to prove the charge beyond all reasonable doubt, since the assault admittedly was inflicted upon the deceased by the appellants. (ii) All the prosecution witnesses have conclusively supported the prosecution version, particularly, independent witnesses who resides in front of the house of the deceased. (iii) Apart from informant, the other witnesses have also conclusively corroborated the prosecution version. (iv) It has come in the testimony of the prosecution witnesses that the deceased had gone to the appellants house for settling down the quarrel and in course thereof the assault was given by the appellants due to which deceased succumbed to injury. (v) The Investigating Officer has corroborated the occurrence by supporting the testimony of the prosecution witnesses as also the occurrence has been corroborated by the medical evidence wherein the Doctor has found the nature of injuries having been caused by hard and blunt substance and the injury has also been found over the dead body of the deceased. (vi) Learned counsel appearing for the State and the informant, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeal is fit to be dismissed. 10. (vi) Learned counsel appearing for the State and the informant, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeal is fit to be dismissed. 10. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment. 11. We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits. 12. Out of the material witnesses examined, PW-1 Puhutu Sinjuri and PW-2 Dibar Hembrom have been declared hostile. 13. PW-3 Dr. O.P. Chaudhary/PW-3 is the Doctor who had conducted the post-mortem examination on the dead body of the deceased Shyam Mundari, on 31.07.2010 and had found the following ante-mortem injuries on the dead-body: (i) Abrasion on lower part of both side of chest size about 2” x 1.” (ii) Fracture of lower four Ribs on both sides. (iii) Internally - Liver lacerated, Spleen Ruptured (iv) Blood and blood clot present in side abdominal cavity. Opinion - Cause of death due to internal hemorrhage and shock due to hard and blunt substance. All wounds are anti-mortem in nature. Time since death - about 12 to 24 hours. 14. PW-3 the Doctor stated in paragraph 1 of his examination-in-chief that on 31.07.2010, he was posted as Medical Officer in Sadar Hospital Seraikella. On the said date, the body of deceased Shyam Mundari was brought. Thereafter, he had carried out autopsy of the dead body of deceased Shyam Mundari and found the above-mentioned injuries. 15. Further this witness has stated that the liver was internally disintegrated, spleen was bruised and blood was present on both sides of the abdominal cavity and this witness has inferred that the cause of death was due to internal bleeding may be caused by hard and blunt object. This witness has stated since the time of death approximately 12 to 24 hours has elapsed. 16. This witness has clearly stated in paragraph 3 of his examination-in-chief that if a person is kicked, punched or hit with fist, the above injury can occur, which is sufficient to cause death. This witness has also admitted in paragraph 6 of his deposition that he did not find any sign of previous treatment of wounds on the dead body. 17. This witness has also admitted in paragraph 6 of his deposition that he did not find any sign of previous treatment of wounds on the dead body. 17. PW-4, Chandmuni Mundarin/PW-4, who is the daughter of the deceased, has said in her examination-in-chief that the incident happened about two years ago in the night. She was eating food in the courtyard and at that time, her mother Yashoda Mundari, brother Sajan Mundari, younger brother Gauni Mundari were also present there. Sega Mundari, his sister and Sega's brother-in-law Sarjam were fighting among themselves. When her father went to stop the fight, Sega Mundari and Sitaram Mundari beat him with their hands and legs. They beat her father and made him unconscious there. Then her father was taken to the doctor for treatment but he died in the night itself. 18. She had further deposed that his father died due to hit with hands and thrown on a stone. Further, this witness has also recognized both the accused standing in the court. 19. This witness has clearly admitted in paragraph 2 of his cross-examination that Sega's sister and brother-in-law did not come to my house. They were fighting in their own home. To resolve the dispute, her father had gone to Sega's sister's house. Sega's sister's house was in front of her house, there was no other house in between. 20. In paragraph 3, this witness has also stated that her father settled the quarrel and slept in his house. Half an hour after my father returned to his house and thereafter both the appellants came to her house. At that time her father was sleeping on the ground. The appellants dragged her father out of the house and brought him into the courtyard. The courtyard is surrounded by a boundary wall and it was visible from outside. 21. In cross-examination in Para-4, this witness had said that the night was dark and the courtyard was made of mud. There was blood coming out from her father's body. At that time her father was wearing lungi. There was blood on the scarf and lungi. 22. In paragraph 6, this witness said that she had informed the police about the incident. After her father's death, the police came to her house and her statement was recorded there. There was blood coming out from her father's body. At that time her father was wearing lungi. There was blood on the scarf and lungi. 22. In paragraph 6, this witness said that she had informed the police about the incident. After her father's death, the police came to her house and her statement was recorded there. She had told the police about her father being picked up by the appellants and thrown on a stone. 23. PW-5, Boya Mundari/PW-5 was the neighbor of the deceased. He deposed in his examination-in-chief that the incident took place two years ago at around eight o'clock in the night. He was in his house at that time Sega and his brother-in-law was quarreling among themselves. When Shyam Mundari, also known as Kandu, went to settle the quarrel, Sega punched him. Sita Ram was also with him. When Shyam came home and told them, he was consoled by them and made him sleep. After this, Sega and Sitaram again came and assaulted Shyam. They took him to some distance and then brought him near the house, picked him up, threw him on the ground and hit him with their hands and foot. Sita Ram hit him on his chest with her foot, which broke his chest bone. Sega also hit him with his foot. 24. Further this witness also deposed that later on the appellants left from there and Shyam Mundari remained unconscious there for about half an hour. This witness has further stated that Shyam had gone to bring medicines in the morning and died in the evening. The police had come to the village, inspected the dead body and prepared the inquest report on which he had put his signature. Further this witness identified Exhibit-4 and also identified both the accused standing in the court. 25. This witness in paragraph 3 of cross-examination deposed that Shyam Mundari's house was in front of his house. At the time of incident, he was sitting at home. Shyam Mundari told him that there was a fight. He further deposed that he had seen the incident of assault from his house. The said fight lasted for 15-20 minutes. At that time, both the accused and the deceased were there and no other person was present there. 26. At the time of incident, he was sitting at home. Shyam Mundari told him that there was a fight. He further deposed that he had seen the incident of assault from his house. The said fight lasted for 15-20 minutes. At that time, both the accused and the deceased were there and no other person was present there. 26. At paragraph 4 of the cross-examination, this witness deposed that the beating took place in the courtyard of Shyam Mundari, which was a fenced courtyard and there was no boundary wall. There were small stones in the courtyard. The superficial wound of Shyam Mundari was visible. He did not see the blood on the chest of the deceased. Shyam Mundari was wearing only lungi on his body and was not wearing anything. 27. In paragraph 5 of cross-examination this witness deposed that after the beating Shyam Mundari had fainted. He did not take him to the doctor. In the morning Shyam Mundari himself went to the doctor. The doctor lives about 4-5 kilometers away across the river. 28. The witness also deposed that Shyam Mundari had epilepsy and treatment was going on. He has further deposed that due to epilepsy he used to fall also. 29. PW-6, Animesh Kumar Gupta - PW-6 was the I.O. of this case. This witness has stated in paragraph 3 of his examination-in-chief that the place of incident was the empty space outside the door of the deceased’s house where the accused were said to have beaten the deceased with the intention of killing him, after which he died. 30. In paragraph 7 of cross-examination, this witness deposed that the informant had told that the deceased was treated before his death. 31. In cross-examination in paragraph 8, this witness deposed that there was a wound-like swelling in the mouth of the dead body. The deceased was wearing red half pants, a red checkered gamchha and a yellow colored ganji. There was no blood stain anywhere in these three clothes. He did not find out what clothes the deceased was actually wearing at the time of the incident. 32. At paragraph 11 of the cross-examination, he deposed that he did not find any blood or mark of scuffle at the place of occurrence since he had inspected the place after two days of occurrence. 33. He did not find out what clothes the deceased was actually wearing at the time of the incident. 32. At paragraph 11 of the cross-examination, he deposed that he did not find any blood or mark of scuffle at the place of occurrence since he had inspected the place after two days of occurrence. 33. PW-7 Jasoda Mundari/PW-7, Yasoda Mundari, who is the informant herself and the wife of the deceased, deposed in her examination-in-chief that the incident took place about two years ago. It was evening time. At that time, she was at home with her child and husband. Then there was a quarrel between Sega and his sister in Sega's house, so her husband went to pacify the fight. Sega hit her husband when he asked not to fight. Her husband was bleeding from the mouth and told that Sega hit him with fist on his face. Sega called Sita Ram and came to her house and asked her husband who was in the house to come out of the house. On this, her husband went out of the house and the informant also came out of the house. Then both the appellants kicked and punched her husband in the stomach, back and chest and made him fall there and ran away. At that time Sita Ram's wife was also there and then she also left with both of them. Her husband died right there in the courtyard. When Bada Babu came from the police station, she had told him the entire story which was written down on which she had made her thumb impression on that written statement. 34. Further, this witness recognized both the accused present in the court and said that both of them were her nephews. This witness deposed in paragraph 2 of her cross-examination that her husband died at around 3:00 a.m. in the morning. 35. At paragraph 4 of the cross-examination this witness deposed that at about 9-10 in the night Sega and Sita Ram came to her house and called my husband by calling him Mama, at that time all my son and daughters were in the house. After the beating, when they went away, her husband came home and slept. She has further deposed that her husband used to drink and he was drunk that evening also. 36. After the beating, when they went away, her husband came home and slept. She has further deposed that her husband used to drink and he was drunk that evening also. 36. At paragraph-5 of the cross-examination, this witness has deposed that there was no blood on her husband's clothes. Her husband was wearing lungi and ganji at the time of the beating. Her husband had become unconscious, he regained consciousness after two hours. After regaining consciousness, he went to Kharsawan market to consult a doctor who had given medicine to her husband and had not bandaged him. 37. At paragraph-6 of the cross-examination this witness has stated that she along with her husband had gone to the doctor. She further deposed that two-hour time is required in the trip to the doctor from her house and her husband took a medicine given by the doctor and died at 3 o'clock in the morning on Friday night. 38. This witness has also said in paragraph 7 of her cross-examination that she had informed the police station only after the death of her husband. The police had visited the place where the fight took place but did not recover anything from there. 39. Further this witness also deposed that before the incident her husband used to be treated by that doctor Ranga. Her husband used to get treatment for epilepsy from him. She has also deposed that her husband used to get into fights after drinking alcohol. 40. PW-8 Nandi Mundari @ Anandi Mundari/PW-8, in her examination -in-chief has deposed that the incident took place about two years ago at 10.30 p.m. She was in her house at that time. On hearing hue and cry of Shyam's children, she, her husband and brother-in-law, Boyo Mundari, went to Shyam's courtyard and saw that Sega and Sita Ram were beating Shyam with their hands and feet. They tried to stop them and asked them to release Shyam. 41. This witness had further deposed that Shyam Mundari had got injury in his chest and even after falling, Sita Ram and Sega were beating him. Sita Ram picked up Shyam and threw him where there were stones and tree roots in the courtyard, then Shyam Mundari became unconscious and when he regained consciousness, he slowly got up and sat down and after sitting for a long time, entered the house. 42. Sita Ram picked up Shyam and threw him where there were stones and tree roots in the courtyard, then Shyam Mundari became unconscious and when he regained consciousness, he slowly got up and sat down and after sitting for a long time, entered the house. 42. She had further deposed that on the next day, Shyam Mundari said that he was having chest pain and was not able to breathe. Shyam Mundari died the same night. Further, this witness has also identified both the accused standing in the court. 43. This witness clearly stated in paragraph 3 of his cross-examination that she had witnessed the entire fight that took place in Shyam Mundari's house. She and the entire family of Shyam had witnessed it. She further stated that both Sega and Sita Ram were beating Shyam Mundari together, they both had no weapons in their hands. 44. In paragraph 4, this witness has stated that Shyam Mundari was beaten by both the appellants for about 10-15 minutes. There was no blood seen on the body of Shyam Mundari. Further, this witness has also said that when Shyam became unconscious after the beating, Sega and Sita Ram left from there. 45. In paragraph-5 of the cross-examination, this witness has stated that after regaining consciousness, Shyam Mundari was not treated anywhere. Further she also said that Shyam Mundari had gone to the government hospital and had brought four tablets of paracetamol from there but had not taken it. 46. PW-9 Kayari Mundari/PW-9 Kayari Mundari was an independent witness. She has stated that the incident happened at night about two years ago. She was in her house at that time. Shyam Mundari came and told her that Sega and Sita Ram had beaten him due to which three bones of his chest were broken. Shyam Mundari died after the fight. Further, this witness has also identified both the accused standing in the court. 47. This witness has admitted in paragraph 2 of the cross-examination that she had not seen the incident of assault on Shyam Mundari with her own eyes. Shyam Mundari had informed about the beating in the morning. Further this witness has also said that Shyam had shown him that the bone was broken. 48. In paragraph 3 of cross-examination, it has been clearly stated that she did not see any bandage on the body of Shyam Mundari. Shyam Mundari had informed about the beating in the morning. Further this witness has also said that Shyam had shown him that the bone was broken. 48. In paragraph 3 of cross-examination, it has been clearly stated that she did not see any bandage on the body of Shyam Mundari. Further, this witness has also stated that Shyam Mundari did not suffer from epilepsy and he had never been treated for epilepsy. He used to drink Hadiya occasionally. Further, this witness also admitted that Shyam Mundari was her brother-in-law from a distant relation. 49. PW-10 Sukhlal Mundari - This witness has deposed in his examination-in-chief that the incident took place about two years ago at 10.30 pm. At that time he was in his house when he heard sound of quarrel from Sega Mundari's house. After some time, Shyam Mundari came to his house, he was bleeding from the mouth. He told them that he was hit by Sega with hand. Then they asked Shyam Mundari to go to his home and he went to his home. After some time, Sega and Sita Ram went to Shyam Mundari's house and started quarreling with Shyam Mundari. This witness went there with his wife and brother Boyo and saw that all three were abusing themselves. 50. This witness also stated that after this, both the appellants started hitting Shyam Mundari with their hands and legs due to which Shyam Mundari got hurt in his mouth and chest and when he fell down, they hit him with their feet. After this Sita Ram and Sega Mundari left from there. Shyam Mundhari was lying unconscious. Then after half an hour Shyam got up and sat down and went to his home and we also went to our home. Next day morning, Shyam had gone to get medicine but did not take the medicine and he died the same night. This witness also identified both the accused present in the court. 51. This witness has stated in paragraph 3 of the cross-examination that at the time of the fight, he had seen blood coming out of Shyam Mundari's mouth. The said blood had fallen on the ground which was rocky and the roots of about 15-20 trees were embedded in the ground which was the courtyard of Shyam Mundari. 52. 51. This witness has stated in paragraph 3 of the cross-examination that at the time of the fight, he had seen blood coming out of Shyam Mundari's mouth. The said blood had fallen on the ground which was rocky and the roots of about 15-20 trees were embedded in the ground which was the courtyard of Shyam Mundari. 52. In his cross-examination in paragraph 4, this witness has deposed that Shyam Mundari was knocked down by the appellant by punching him and when he fell down, they kicked him and did nothing else. This fight continued for about one and a half hour. 53. The statements of the accused persons were recorded under Section 313 of the Cr.P.C. wherein they have denied the evidence against them. No evidence was adduced by the defence. 54. Learned trial court, based upon the testimonies of witnesses, referred hereinabove, has passed the judgment of conviction convicting the appellants under Section 302 of Indian Penal Code and sentenced them to undergo imprisonment for life. 55. This Court, in order to appreciate the submissions advanced on behalf of all the appellants with respect to the culpability of the appellant, of commission of offence under Section 302 or under Section 304 Part-I or Part-II of the Indian Penal Code vis-à-vis the evidences adduced on behalf of the parties, deems it fit and proper to refer certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II. 56. The Hon'ble Apex Court has dealt with the aforesaid position in the case of Nankaunoo vs. State of Uttar Pradesh, (2016) 3 SCC 317 wherein it has been held that the intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder, for ready reference paragraph 11 is being quoted and referred hereunder as: “11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh vs. State of Punjab, AIR 1958 SC 465 , Prakash vs. State (Delhi Administration), (1991) 2 SCC 32 , Para-12, this Court held as under: (SCC p. 41) “12. Referring to these observations, Division Bench of this Court in Jagrup Singh vs. State of Haryana, (1981) 3 SCC 616 , observed thus: (SCC p. 620, Para 7) “7......These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh vs. State of Punjab, AIR 1958 SC 465 , for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.” The Division Bench also further held that the decision in Virsa Singh vs. State of Punjab, AIR 1958 SC 465 , has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words, clause thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. 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 that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’ or ‘intention’ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.” 57. In the case of State of Andhra Pradesh vs. Rayavarapu Punnayya, (1976) 4 SCC 382 , the Hon’ble Apex Court, while clarifying the distinction between section 299 and 300 of the IPC and their consequences, held as under: “12. In the scheme of the Penal Code, ‘culpable homicide’ is genus and ‘murder’ is species. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is what may be called ‘culpable homicide of the first degree’. This is the greatest 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. The first is what may be called ‘culpable homicide of the first degree’. This is the greatest 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.” (Emphasis supplied) 58. In Pulicherla Nagaraju vs. State of A.P. (2006) 11 SCC 444 , wherein the Hon’ble Apex Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. The Court observed as under: “29. 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 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 premeditation. 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 premeditation; (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.” (Emphasis supplied) 59. Recently the Hon’ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan vs. State Rep. by the Inspector of Police, 2023 SCC Online SC 857 which are being quoted as under: “66. Few important principles of law discernible from the aforesaid discussion may be summed up thus: (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 60. In the backdrop of the aforesaid discussion of proposition of law, this Court in the instant case is to consider following issues: (i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code? (ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code? (iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof? (iv) Whether the appellants are entitled for acquittal in absence of cogent evidences? 61. Since all the aforesaid issues are interlinked, the same are being decided simultaneously herein-below. 62. The law is well settled that for proving the charge under Section 302 of the Indian Penal Code, it is the bounden duty of the Court to consider the ingredients of culpable homicide as provided under Section 299 of the Indian Penal Code amounting to murder as provided under Section 300 IPC and not amounting to murder as provided under Exception to Section 300 of the Indian Penal Code. 63. Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act: (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death. “intent” and “knowledge” as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mens rea necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person. 64. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj vs. State of Tamil Nadu, AIR 1976 SC 1519 has been pleased to held at paragraph 32 and 33 which is being quoted hereunder as: “32. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person. 64. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj vs. State of Tamil Nadu, AIR 1976 SC 1519 has been pleased to held at paragraph 32 and 33 which is being quoted hereunder as: “32. For this purpose we have to go to Section 299 which defines “culpable homicide.” This offence consists in the doing of an act: (a) with the intention of causing death. (b) with the intention of causing such bodily injury as is likely to cause death. (c) with the knowledge that the act is likely to cause death. 33. As was pointed out by this Court in Anda vs. State of Rajasthan, AIR 1966 SC 148 : 1966 Cri. L.J. 171 “intent” and “knowledge” in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person.” 65. It is, thus, evident that our legislature has used two different terminologies ‘intent’ and ‘knowledge’ and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be proper to hold that ‘intent’ and ‘knowledge’ cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that ‘intent’ and ‘knowledge’ are the same. ‘Knowledge’ will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent. 66. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that ‘intent’ and ‘knowledge’ are the same. ‘Knowledge’ will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent. 66. Thus, while defining the offence of culpable homicide and murder, the framers of the IPC laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be. 67. The framers of the IPC designedly used the two words ‘intention’ and ‘knowledge’ and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he “must have been aware that certain specified harmful consequences would or could follow.” [Russell on Crime, Twelfth Edition, Volume 1 at Page 40] 68. In view of Section 299 of the Indian Penal Code, the material relied upon by the prosecution for framing of charge under Section 304 Part-II must be at least prima facie indicate that the accused has done an act which has caused death with at least such a knowledge that such act was likely to cause death. 69. The Hon'ble Apex Court, in Keshub Mahindra vs. State of M.P. (1996) 6 SCC 129 has been pleased to hold as under paragraph 20 which reads hereunder as: “20........We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. 69. The Hon'ble Apex Court, in Keshub Mahindra vs. State of M.P. (1996) 6 SCC 129 has been pleased to hold as under paragraph 20 which reads hereunder as: “20........We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death.......” 70. Section 300 of Indian Penal Code speaks about murder under which it has been stipulated that 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, secondly, if it is done 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 thirdly, if it is done 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 fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 71. It is, thus, evident that the punishment under Section 302 of the Indian Penal Code shall not apply if any of the conditions mentioned above, are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. 72. It is, thus, evident the parameters which are to be followed while convicting a person of commission of crime of murder will be different if the murder comes under fold of culpable homicide amounting to murder and it will be different if with the intent to commit murder as per the outside the purview of exception carved out under Section 300 of the Indian Penal Code. 73. In the present case the foremost plea, inter-alia, have been taken on behalf of appellants that the appellants have used no weapon while making assault on the deceased and hence it has been contended that it is a case not of murder rather it comes within the purview of exception to Section 300 of IPC. 74. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether it is a case under Section 302 or Section 304 Part-I or II. 75. 74. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether it is a case under Section 302 or Section 304 Part-I or II. 75. This Court, on the basis of the factual aspect as discussed hereinabove as also after taking into consideration the law laid down by Hon'ble Apex Court in the aforesaid judicial pronouncements wherein the difference has been carved out in between the culpable homicide amounting to murder and culpable homicide not amounting to murder, rebutting back to the facts of the given case. 76. In the instant case from perusal of the testimonies of the witnesses it is noticed that the witnesses examined by the prosecution have deposed that the deceased was beaten by the appellants with fists and feet no any fatal weapon was used in the alleged commission of crime. 77. It is evident from the testimonies of the witnesses that the occurrence took place when the deceased went to pacify the sprawl-brawl which was going on at the house of appellant between the appellant’s sister and appellant. 78. In the paragraph-5 of the cross-examination, informant has deposed that there was no blood on her husband's clothes and after the occurrence her husband had become unconscious and after regaining consciousness, he went to Kharsawan market to consult a doctor who had given medicine to her husband and had not bandaged him. 79. Further at paragraph -6 of the cross-examination she has stated that she along with her husband had gone to the doctor and two-hour time was consumed in the trip to the doctor from her house and her husband took a medicine given by the doctor and died at 3 o'clock in the morning on Friday night. 80. This fact has also been fortified by the testimonies other witnesses especially the PW-6 the investigating officer who categorically stated that informant had told him that her husband had gone to the doctor for treatment. 81. PW-5 who happens to the neighbour of the appellants has categorically stated in his deposition that the appellant Sita Ram hit the deceased on his chest with his foot, which broke his chest bone. Sega also hit him with his foot. 81. PW-5 who happens to the neighbour of the appellants has categorically stated in his deposition that the appellant Sita Ram hit the deceased on his chest with his foot, which broke his chest bone. Sega also hit him with his foot. In paragraph 5 of cross-examination this witness has deposed that after the beating, Shyam Mundari had fainted and in the morning Shyam Mundari(deceased) himself went to the doctor who lives about 4-5 kilometers away across the river. 82. Further PW-8 deposed that on hearing hue and cry of Shyam's children, she, her husband and brother-in-law, Boyo Mundari, went to Shyam's courtyard and saw that Sega and Sita Ram were beating Shyam with their hands and feet. 83. PW-10 In his cross-examination at paragraph 4, has deposed that Shyam Mundari was knocked down by the appellants by punching him and when he fell down, they kicked him and did nothing else. 84. From the testimonies of the prosecution witnesses, it is evident that the assault which was made by the appellants by the hand and feet and without any aid of any weapon as such the intention to kill the deceased was not in the mind of the appellants. 85. This fact is further fortified by the deposition of the informant that the deceased had consulted the doctor and for this he had gone to the doctor on his own after covering the distance in Miles. As such it can be said that injuries as caused by the appellants were not vital in nature. 86. Thus, from the analytical deduction of the testimonies of the witnesses it is evident that the learned trial court has failed to appreciate the factum of the manner in which the incident took place. 87. At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused assume importance in respect of genesis and manner of occurrence. 88. Thus, considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that intention was not available to appellants when they were beating the deceased by the fist and feet. 89. 88. Thus, considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that intention was not available to appellants when they were beating the deceased by the fist and feet. 89. Consequently, on the basis of the ocular and medical evidence the inference and presumption can be drawn that accused persons did not have the intention to commit murder. 90. Accordingly, we are of the view that the judgment impugned convicting the appellants under Section 302 of I.P.C. needs to be interfered with by modifying it to that of conviction of the appellants under Section 304 Part-II. 91. Thus, on evaluation of the testimony of the witnesses and the evidence we hold the appellants are guilty for the offence under Section 304 Part II of the IPC. 92. For the foregoing reasons, the impugned Judgment of conviction dated 30.07.2013, passed by the learned Additional Sessions Judge-II, Saraikella Kharsawan in Sessions Trial No. 115 of 2011, convicting the appellants, for the offence under Sections 302 of the Indian Penal Code, is hereby, modified to the extent that the appellants, are hereby, convicted for the offence under Section 304 Part II of the Indian Penal Code. The Order of sentence dated 31.07.2013, passed by the Trial Court against this appellants, is accordingly, set aside, and the appellants are sentenced to undergo R.I. for nine years for the offence under Section 304 Part II of the Indian Penal Code. Since the appellants have already served this sentence, they are directed to be released and set at liberty forthwith, if their detention is not required in any other case. 93. The Criminal Appeal is hereby dismissed with the modification of the judgment of conviction and order of sentence to the extent as indicated above. 94. We find from the record that the Yasoda Mundari, is the victim of the crime, being the wife of the deceased, who has lost her husband. We are of the considered view that she should be adequately compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. 95. 94. We find from the record that the Yasoda Mundari, is the victim of the crime, being the wife of the deceased, who has lost her husband. We are of the considered view that she should be adequately compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. 95. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard, in consultation with the Secretary of the concerned DLSA, so that adequate compensation is paid to this victim at an early date as per the rules and regulations in this regard. 96. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 97. The criminal appeal is hereby disposed of as above. 98. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. I agree - Navneet Kumar, J.