JUDGMENT : DEEPAK KUMAR TIWARI, J. 1. This appeal is against the judgment of conviction and order of sentence dated 31st December, 2019 passed by the Additional Sessions Judge, Kondagaon, District Kondagaon in Sessions Case No. 106/2017 whereby the appellant has been convicted under Section 302 of I.P.C. and sentenced to undergo RI for life and to pay a fine amount of Rs.5000/- and in default of payment of fine, to further undergo additional imprisonment for six months. 2. The prosecution case, in brief, is that deceased Negiram and the appellant are the real brothers. On 1st September, 2017, the deceased alongwith his minor son Chamra Ram (PW-8), in the evening at about 5-6 pm, had gone to see his field situated at Kerapadar Para, Fukagirola. When they reached near the house of the appellant, the appellant started raising quarrel with the deceased and also abused him in filthy language. Chamra Ram (PW-8) came to the house and narrated the incident to his mother Manai Bai (PW-7) and uncle Nakinath (PW-5) that the appellant quarreled with his father and also beaten him. Then they reached to the spot and found that in the premises of the house of the appellant, dead body of the deceased was lying and blood was oozing. Then they informed to the village Patel Mahesh Lal Markam (PW-1) and Nakinath (PW-5) had given the merg intimation Ex.P-6. 3. In the merg enquiry Panchnama, upon the notice Ex.P-1, Ex.P-2 was prepared and on the memorandum statement (Ex.P-3) of the appellant, the weapon, the axe, which has been used for causing injury to the deceased, was recovered vide Ex.P-4. The dead body of the deceased was subjected to postmortem and Dr. Aditya Chaturvedi (PW-9) had opined that the cause of death was due to cardio pulmonary shock due to excessive hemorrhage and nature of death is homicidal in nature. The axe has also been examined by him vide Ex.P-8 and opined that from said weapon injury may be caused to the deceased. Blood stained soil has been collected from the spot vide Ex.P-5. Statements of the witnesses were recorded. The FSL report (Ex.P-15) shows presence of human blood on the axe recovered from the appellant marked as article C and clothes of the deceased marked as article D-1 and D-2. 4. After completion of the investigation, the charge sheet was filed. Blood stained soil has been collected from the spot vide Ex.P-5. Statements of the witnesses were recorded. The FSL report (Ex.P-15) shows presence of human blood on the axe recovered from the appellant marked as article C and clothes of the deceased marked as article D-1 and D-2. 4. After completion of the investigation, the charge sheet was filed. The appellant abjured his guilt during the course of trial and claimed to be tried. The trial Court after hearing learned counsel for the parties and on the basis of material available on record, convicted and sentenced the appellant as mentioned in para-1 of this judgment. 5. In order to prove its case, the prosecution has examined as many as 10 witnesses and exhibited 15 documents. Appellant in his statement recorded under Section 313 of Cr.P.C. has stated that he has been falsely implicated and he has not examined any defence witness. 6. Learned counsel for the appellant would submit that the prosecution has failed to establish the motive and there was only one eye witness who is minor son of the deceased and at the time of the incident, he was aged about 7 years only who might be a tutored witness. Alternately he would submit that in the same incident, the appellant has also sustained two injuries and only single injury was caused to the deceased which was opined by doctor as lacerated wound, so during such incident, though axe has been used but there is a possibility that sharp side has not been used. He would further submit that if there was an intention to kill the deceased, then certainly sharp side of the weapon would have been used in the said incident. Learned counsel would submit that considering these facts, the offence under Section 302 of IPC would not be attracted. 7. Per contra, learned counsel for the State would submit that there was an enmity and land dispute between both the brothers and on the date of incident, while the deceased along with his son was on the way to his field, the appellant with an intention to kill the deceased started quarreling and by using axe assaulted the deceased on the vital part of the head and the said incident was witnessed by Chamra Ram, so the conviction recorded by the court below is well merited which does not call for any interference. 8. 8. We have heard learned counsel for the parties at length and minutely perused the entire record. 9. The first question for consideration is whether the death of the deceased Negiram was homicidal in nature. Learned trial court has recorded an affirmative finding in this regard on the basis of medical opinion of Dr. Aditya Chaturvedi (PW-9) as well as postmortem report Ex.P-7 wherein lacerated wound over post occipital region size 5 x 4 x 3 cm was found on the body of the deceased and duration of the injury was within 24 hours of the examination and the postmortem was conducted on 2nd September, 2017 at about 3:45 pm. Doctor had opined that cause of death is due to cardio pulmonary shock due to excessive hemorrhage and nature of death is homicidal. 10. The next question for consideration is whether the appellant is a perpetrator of the crime in question. Chamra Ram (PW-8) is son of the deceased and eye witness to the incident. The trial court before examining the said witness put certain question as to his fitness to depose and thereafter examined the said witness and he categorically deposed that the appellant on the date of incident in the evening by using axe assaulted his father and he was present on the spot and in such incident his father died. In his cross-examination, he has completely denied that he has been tutored by his mother Manai Bai (PW-7) and also denied that he has not seen the said incident. 11. Nakinath (PW-5), who is also one of the brothers of the deceased Negiram, deposed that on the date of the incident he was at his house. In his cross-examination, he has completely denied that he has been tutored by his mother Manai Bai (PW-7) and also denied that he has not seen the said incident. 11. Nakinath (PW-5), who is also one of the brothers of the deceased Negiram, deposed that on the date of the incident he was at his house. In the evening at about 6 pm Chamra Ram (PW-8) came to his house and informed about the quarrel between the deceased and the appellant at the house of the appellant, then this witness and the wife of the deceased Manai Bai (PW-7) reached to the spot and they found that the deceased was lying dead and the blood was oozing out from his head, then he informed the said incident to the village Patel Mahesh Lal Markam (PW-1) and lodged merg intimation Ex.P-6 which was recorded by N.K. Suryavanshi (PW-10) and no suggestion has been put to this witness that Chamra Ram (PW-8) has not come to the house and narrated the incident and on the basis of said information they reached to the spot. Though suggestion was made to this witness that prior to the incident the appellant had gone to another village, then this witness has stated that he is not aware of such fact. 12. Though the alleged incident took place on 1st September, 2017 at about 19 hours and the incident was reported in the morning of 2nd September, 2017 at 9.40 hours as the incident place was stated to be 35 km away from the police station and the said fact was mentioned in the merg intimation (Ex.P-6) and the FIR (Ex.P-7) was also lodged on 2nd September, 2017 at about 10 : 10 hours and the delay has been explained as it was night and there was no means of transport from the said village and the offence took place at the tribal area of Bastar, so the explanation given is satisfactory. Mahesh Lal Markam (PW-1) has also deposed at para-1 that at about 8-9 pm on the date of the incident, the wife of the deceased Manai Bai (PW-7) came to his house and informed about the incident that the appellant killed her husband at his house. Ramlal Markam (PW-4) also supported the said fact and stated that the village Patel Mahesh Lal Markam came to his house and disclosed the incident to him. Ramlal Markam (PW-4) also supported the said fact and stated that the village Patel Mahesh Lal Markam came to his house and disclosed the incident to him. Ramlal Markam (PW-4) in his cross-examination admitted the suggestion given by the defence that at the time of the incident, the appellant had gone outside of his house for earning livelihood. In the accused statement, the appellant has not stated any such fact that at the time of the incident he was not present at the village and he has made plain denial of the circumstances and stated that he has been falsely implicated. So considering the nature of evidence adduced by the prosecution and after close scrutiny, we are of the opinion that statement of the child witness Chamra Ram (PW-8) is reliable and immediately after the incident, he informed to his close relative and thereafter the FIR has also been lodged next day. 13. N.K. Suryavanshi (PW-10) Investigating Officer did the investigation, recorded the memorandum statement of the appellant in presence of PW-2 Fukaram Markam and PW-3 Bhagatram Mandavi and vide memorandum statement Ex.P-3, the blood stained axe which has been used for the aforesaid crime has been recovered vide Ex.P-4. Fukaram Markam (PW-2) at his para-4 of the statement categorically deposed that in his presence the appellant from his house had given the blood stained axe and said axe was seized vide Ex.P-4. Similarly, the other witness Bhagatram Mandavi (PW-3) has also supported the case of the prosecution in his statement at Para 4. Though both these witnesses at the time of the cross-examination denied such fact and stated that in their presence, no such recovery was made but both the witnesses have failed to explain as to why they have given different version in examination-in-chief and cross-examination. One of the other witnesses of the village Ramlal Markam (PW-4) has also supported this fact that during investigation, the police reached to the village and categorically deposed at Para 3 of his statement that the police has made interrogation with the appellant and on such interrogation, the axe has been recovered from the house of the appellant. The said fact was not challenged in his cross-examination. It is also well settled proposition that if the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the evidence of the police officer. 14. The said fact was not challenged in his cross-examination. It is also well settled proposition that if the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the evidence of the police officer. 14. In the matter of Pramod Kumar vs. State (Govt. of NCT of Delhi), (2013) 6 SCC 588 at Para 13 the following observation is made which reads as under: “13. This Court, after referring to State of U.P. vs. Anil Singh, 1988 Supp. SCC 686 : 1989 SCC (Cri) 48, State (Govt. of NCT of Delhi) vs. Sunil, (2001) 1 SCC 652 : 2001 SCC (Cri) 248 and Ramjee Rai vs. State of Bihar, (2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626 has laid down recently in Kashmiri Lal vs. State of Haryana, (2013) 6 SCC 595 : 2013 AIR SCW 3102 that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.” 15. In the cross-examination of the Investigating Officer, N.K. Suryavanshi (PW-10) we do not find any dent or any ill motive or prejudice to rope the appellant falsely in the present case. The manner in which the axe has been recovered and blood stains found on the axe was confirmed in the FSL, so this fact has also been proved by the prosecution. 16. In view of the aforesaid discussion, the prosecution has successfully established that the appellant is the author of the said crime and he has assaulted the deceased by using axe and the injury which has been inflicted to the deceased, could cause his death. 17. 16. In view of the aforesaid discussion, the prosecution has successfully established that the appellant is the author of the said crime and he has assaulted the deceased by using axe and the injury which has been inflicted to the deceased, could cause his death. 17. Now the only question arises whether his act attracts Section 302 of IPC or any lesser offence in the proved facts and circumstances of the case. 18. In the matter of Stalin vs. State Represented by the Inspector of Police, (2020) 9 SCC 524 it was observed that when single injury was caused by the accused, offence under Section 302 IPC would be attracted or not, depends on facts and circumstances of each case and there is no principle that in all cases of a single blow Section 302 IPC is not attracted. Legal position was summarised and the relevant paras read as under: “7.1.1. In Mahesh Balmiki vs. State of M.P. (2000) 1 SCC 319 : 2000 SCC (Cri) 178, this Court while deciding the question of whether a single blow with a knife on the chest of the deceased would attract Section 302 IPC, held thus: (SCC pp. 322-323, Para 9) “9.........there is no principle that in all cases of a single blow Section 302 IPC is not attracted. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife-blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.” 7.1.2. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809, this Court while discussing the ingredients of Exception 4 of Section 300 IPC, held thus: (SCC pp. 327-328, Para 11) “11. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage.” 7.1.3. In Pulicherla Nagaraju vs. State of A.P. (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, this Court while deciding whether a case falls under Section 302 or 304 Part I or 304 Part II IPC, held thus: (SCC pp. 457-458, Para 29) “29. The expression “undue advantage” as used in the provision means “unfair advantage.” 7.1.3. In Pulicherla Nagaraju vs. State of A.P. (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, this Court while deciding whether a case falls under Section 302 or 304 Part I or 304 Part II IPC, held thus: (SCC pp. 457-458, Para 29) “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. Be that as it may.” “7.1.4. In Singapagu Anjaiah vs. State of A.P. (2010) 9 SCC 799 : (2010) 3 SCC (Cri) 1498, this Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus: (SCC p. 803, Para 16) “16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased.” 7.1.5. In State of Rajasthan vs. Kanhaiya Lal, (2019) 5 SCC 639 : (2019) 2 SCC (Cri) 674 this Court in Paras 7.3, 7.4 and 7.5 held as follows: (SCC pp. 643-644) “7.3. In Arun Raj vs. Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155 this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows. 7.4. In Ashokkumar Magabhai Vankar vs. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397, the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death. 7.5. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such injury on such a vital part of the body, with such a weapon, would cause death. 7.5. A similar view is taken by this Court in the recent decision in State of Rajasthan vs. Leela Ram, (2019) 13 SCC 131 : (2019) 4 SCC (Cri) 528 and after considering a catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether a case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment [Leela Ram vs. State of Rajasthan, 2008 SCC Online Raj. 945] and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in Para 19 as under: [State of Rajasthan vs. Leela Ram, (2019) 13 SCC 131 : (2019) 4 SCC (Cri) 528, SCC pp. 140-141] “19.........Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner.’” 7.1.6. In Bavisetti Kameswara Rao vs. State of A.P. (2008) 15 SCC 725 : (2009) 3 SCC (Cri) 175, this Court has observed in Paras 13 and 14 as under: (SCC pp. 729-731) “13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous. 14. In State of Karnataka vs. Vedanayagam, (1995) 1 SCC 326 : 1995 SCC (Cri) 231 this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab, AIR 1958 SC 465 : 1958 Cri. L.J. 818, the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court State of Karnataka vs. Vedanayagam, (1995) 1 SCC 326 : 1995 SCC (Cri) 231, relied on the observation by Bose, J. in [Virsa Singh vs. State of Punjab, AIR 1958 SC 465 : 1958 Cri. L.J. 818, the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court State of Karnataka vs. Vedanayagam, (1995) 1 SCC 326 : 1995 SCC (Cri) 231, relied on the observation by Bose, J. in [Virsa Singh vs. State of Punjab, AIR 1958 SC 465 : 1958 Cri. L.J. 818] to suggest that: [Virsa Singh vs. State of Punjab, AIR 1958 SC 465 : 1958 Cri. L.J. 818, AIR p. 468, Para 16] “16........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 further observations in the above case were: [Virsa Singh vs. State of Punjab, AIR 1958 SC 465 : 1958 Cri. L.J. 818, AIR p. 468, Paras 16-17] “16........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 a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. 17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. 17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact......” (Emphasis in original) 7.2. From the above stated decisions, it emerges that there is no hard-and-fast rule that in a case of single injury Section 302 IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated herein above, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence.” 19. Now reverting back to the facts of the present case. It is the totality of the circumstances which will decide the nature of offence.” 19. Now reverting back to the facts of the present case. On the date of the incident, deceased and his son Chamra Ram (PW-8) at the time of evening hours were going to their field and on the way near the house of the appellant, suddenly the appellant, who is the real brother of the deceased, started raising quarrel with the deceased and in the said quarrel, the appellant himself has also sustained injury and the said fact was fortified by statement of Dr. Pratik Choudhary (PW-6), who has found two injuries on the body of the appellant which is as under: (i) Lacerated wound measuring 1 x 1 x 0.5 cm in front of his head. (ii) Lacerated wound 1 x 0.5 x 0.5 cm in front of the head. Both the injuries were caused by hard and blunt object and he has proved his report as Ex.P-6 and the said injury was caused during the incident as the appellant was also examined on 2nd September, 2017 and the incident happened on 1st September, 2017 at about 19 hours. Wife of the deceased PW-7 in her statement at Para 2 stated that there was some land dispute. So considering the nature of the evidence, it is not revealed that the appellant acted the aforesaid incident in any pre-planned manner, instead it appears that it might have happened in a sudden quarrel and in a heat of passion, the appellant had also caused only a single injury and the injury was also in the nature of lacerated wound on the body of the deceased. So the axe which has been used in the aforesaid crime, sharp side of the axe has not been used, therefore we are of the view that Section 302 of the IPC would not be attracted. 20. In view of the aforesaid principles laid down by the Supreme Court, it is explicit that as per Exception IV to Section 300 of IPC, culpable homicide is not murder if it is committed without premeditation or in a sudden fight or in a heat of passion or upon a sudden quarrel and without the offender having taken undue advantage and not acted in a cruel or unusual manner. So the nature of the injury which has been caused by the appellant on the vital part of the body it can be presumed that by causing such bodily injury the accused was likely to cause death of the deceased. Therefore, the case would fall under Section 304 Part I of the IPC. 21. In view of the above stated reasons, this appeal is partly allowed and conviction and sentence imposed upon the appellant under Section 302 of IPC are set aside instead thereof he is convicted under Section 304 Part I of IPC and sentenced to undergo RI for 10 years and the fine imposed by the trial court shall remain intact. 22. With the aforesaid modification, the appeal is allowed to the extent, indicated above. 23. Let a copy of this order be sent to the concerned Legal Aid Secretary of the District and the trial court for necessary compliance.