JUDGMENT : A.S. SUPEHIA, J. 1. The instant appeal is directed against the judgment and order dated 10.12.2015 passed by 3rd Additional Sessions Judge Panchmahal at Godhra in Sessions Case No. 42 of 2013, wherein and whereby the appellant accused has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short “the IPC”) and sentenced to undergo life imprisonment and fine of Rs. 5,000/- is also imposed, in default, simple imprisonment of one year. He is also sentenced to undergo for six months imprisonment for the offence punishable under Section 323 of the IPC and fine of Rs. 500/- is also imposed, in default, simple imprisonment of one year. BRIEF FACTS 2. The case of the prosecution as per the charge at Exh.2 is that on 10.01.2013 at 13.00 hours, when the first informant, PW-1 was returning from his farm, he saw PW-11, Somabhai Andarsinh Parmar, who was going with the tractor filled with concrete and at that time, the accused was walking in the middle of the road and the said witness asked him to walk on the side of the road, due to which he got irritated and started abusing. At that time, the first informant was going from his field towards his home on his cycle with a spade affixed on its back side. It is further alleged that the complainant asked the accused not to quarrel with the witness and the accused pulled the spade from his cycle and then the first informant asked to return the spade, at that time he inflicted blow of spade on his hand and when the deceased-Hasmukhbhai Patel, who was going on his motorcycle from his field, warned not to quarrel, at that time the accused inflicted blow of spade on his head as well as on the face below left eye, which resulted into serious injuries and ultimately he succumbed to such injuries. The accused was charged for the offence punishable under Sections 302, 323 and 504 of the IPC as well as under Section 135 of the Gujarat Police Act. 3. The trial Court examined various witnesses and also after placing reliance on the documentary evidence has convicted the appellant as mentioned hereinabove for the offences for which he was charged. SUBMISSIONS ON BEHALF OF APPELLANT (CONVICT) 4. Learned advocate Mr. 3. The trial Court examined various witnesses and also after placing reliance on the documentary evidence has convicted the appellant as mentioned hereinabove for the offences for which he was charged. SUBMISSIONS ON BEHALF OF APPELLANT (CONVICT) 4. Learned advocate Mr. Majmudar appearing for the appellant has submitted that the appellant has already undergone more than 10 years of sentence and if the evidence is perused closely, it reveals that the offence would not fall under the provisions of Section 302 of the IPC, but it will fall under section 304 of the IPC, since the evidence reveals that the accused is entitled to the benefit of Exception 4 enumerated under Section 300 of the IPC. In support of his submissions he has referred to the decision of the Hon’ble Supreme Court in case of Anbazhagan vs. State, AIR 2023 SC 3660 and also the judgment in the case of N. Ramkumar vs. State, AIR 2023 SC 4246 . Thus, it is submitted that even if the evidence is accepted as it is, the accused can be convicted for maximum 10 years and since he has already undergone more than 10 years of sentence, his conviction may be set aside and he may be released. 5. Learned advocate Mr. Majmudar, while referring to the evidence of PW-1 (Exh.50) has submitted that he is the first informant and is a Government employee. It is submitted that his deposition does not reveal the involvement of the present appellant in the offence, since as per his deposition the incident has happened when the accused was quarreling with the tractor driver, whereas in the cross-examination, it is elicited that the quarrel was going on between one Kaushikbhai and the accused at Harijan Vas, when he had arrived. However, Kaushikbhai is not examined as a witness. It is further submitted that in the cross-examination he has admitted that the deceased - Hasmukhbhai was taken in the car of Kaushikbhai Patel to the dispensary. It is submitted that though his evidence would have been vital, he has not been examined. 6. Learned advocate Mr. Majmudar has submitted that his evidence would reveal that there is no pre-meditation on the part of the appellant to commit the murder. It is submitted that though his evidence would have been vital, he has not been examined. 6. Learned advocate Mr. Majmudar has submitted that his evidence would reveal that there is no pre-meditation on the part of the appellant to commit the murder. It is submitted that even if the case of the prosecution is accepted, the accused had pulled away the spade from the cycle of the first informant and in a heat of passion and the quarrel, which was already going on, he has inflicted injuries on the deceased. Further, he has referred to the evidence of PW-6, Vinodbhai Chhaganbhai Patel, at Exh.35, who has deposed that when he was passing, he saw the incident, whereby the present appellant had inflicted blow of spade on the deceased. He has denied the suggestion with regard to any prior enmity between the deceased and the accused due to some love affair with the daughter of the deceased. Similarly, he has referred to the deposition of PW-7, Harshadkumar Manharbhai Patel, at Exh.36 and submitted that he has stated that he saw the accused inflicting blow on the head of the deceased. 7. Learned advocate Mr. Majmudar has also referred to the evidence of PW-11, Somabhai Andarsinh Parmart, at Exh.40, who is the tractor driver and has submitted that if his deposition is perused, he has deposed that when he was passing near the Bhathiji Temple with his tractor, he saw the accused quarreling with the deceased and the accused inflicted blow of spade on the head of the deceased. 8. Learned advocate Mr. Majmudar has submitted that the evidence of the tractor driver does not reconcile with the evidence of the first informant PW-1 and hence, it is urged that the conviction of the appellant may be set aside. 9. Learned advocate Mr. Majmudar has further referred to the injury certificate of the appellant mark as 6/4 (Exh.69 in the cross case) and submitted that in fact he has also sustained serious injuries in the incident. He has also referred to the F.I.R. registered by the accused mark 8/3 dated 12.01.2013 (Exh.31 in the cross case), which has been registered by the present accused and submitted that in fact the appellant was also mercilessly assaulted by the deceased as mentioned in the F.I.R. and he was also treated in two hospitals. He has also referred to the F.I.R. registered by the accused mark 8/3 dated 12.01.2013 (Exh.31 in the cross case), which has been registered by the present accused and submitted that in fact the appellant was also mercilessly assaulted by the deceased as mentioned in the F.I.R. and he was also treated in two hospitals. Thus, it is submitted that though such vital aspect was required to be investigated, however, the Investigating Officer (PW-20) in his evidence at Exh.63 has not disclosed such vital aspect of the accused having been injured by the assault committed by the deceased. Thus, it is requested that the conviction of the appellant may be set aside and he may be acquitted from the charge of Section 302 of the IPC, and the same may be altered to the conviction under Section 304 Part-II of the IPC. SUBMISSIONS ON BEHALF OF STATE 10. Vehemently opposing the present Criminal Appeal and the submission advanced by the learned advocate Mr. Majmudar, learned APP Mr. Tirthraj Pandya has submitted that the appeal is not required to be entertained, as the trial Court, after appreciation of both oral and documentary evidence, has precisely convicted the appellant for a serious offence like murder. He has referred to depositions of PW-1, PW-6, PW-7 and PW-11 and submitted that these are the eye-witnesses, who have seen the incident and no contradiction or major omissions are established in their evidence, which would brand them unreliable witnesses. 11. Learned APP has submitted that in fact the ocular evidence corroborates with the medical evidence and the post mortem report at Exh.46 would reveal that the deceased was inflicted various blows of spade and the evidence reveals that there was both knowledge and intention on the part of the accused to commit the murder of the deceased. Thus, it is urged that the appeal may be dismissed. In support of his submissions, he has relied on the judgment passed by this Court in Criminal Appeal No. 527 of 1996. ANALYSIS OF EVIDENCE 12. We have heard the learned advocates appearing for the respective parties and perused the evidence threadbare as mentioned hereinabove. 13. Thus, it is urged that the appeal may be dismissed. In support of his submissions, he has relied on the judgment passed by this Court in Criminal Appeal No. 527 of 1996. ANALYSIS OF EVIDENCE 12. We have heard the learned advocates appearing for the respective parties and perused the evidence threadbare as mentioned hereinabove. 13. The case of the prosecution is that the incident occurred on 10.01.2013 at 13.00 hours, when the first informant, PW-1 was returning from his farm, he saw PW-11, Somabhai Andarsinh Parmar, who was going with the tractor filled with concrete and at that time, the accused was walking in the middle of the road and the said witness asked him to walk on the side of the road, due to which he got irritated and started abusing. At that time, the first informant, who was going on his cycle with a spade stopped and asked the accused not to quarrel, and the accused pulled the spade from his cycle and inflicted blow of spade on his hand and when the deceased - Hasmukhbhai Patel, who was passing on his motorcycle warned not to quarrel, at that time the accused inflicted blow of spade on his head as well as on the fact below the left eye, which resulted into serious injuries and he succumbed to such injuries. 14. There are four star witnesses of the prosecution, PW-1, who is the first informant, he is examined at Exh.15. His evidence clearly established that the accused had inflicted blow of spade on the head of the deceased. His evidence also reveals that when he arrived at the scene of offence, the quarrel was already ensuing between the accused and one person driving the tractor i.e. PW -11. Though, he has not named the person who was driving the tractor PW-11, Somabhai Andarsinh Parmar, is examined by the prosecution as a driver of the tractor. His evidence clearly established that the accused had snatched the spade which was affixed by PW-1 in his cycle, when the altercation or the quarrel was going on and in a fit rage he has inflicted blows on the deceased who also tried to intervene in the quarrel. This witness has referred to the quarrel between one Kaushikbhai and the accused in his cross-examination. This witness has referred to the quarrel between one Kaushikbhai and the accused in his cross-examination. He has deposed that the quarrel was going on between Kaushikbhai and the accused, and the deceased was taken in his car, however Kaushikbhai Patel has not been examined as a witness by the prosecution. Similarly, PW-6 at Exh.35 has deposed that he has seen the accused inflicting the blow of spade on the head of the deceased. He has denied the suggestion put to him whether he was knowing about any dispute of love affair with regard to quarrel of daughter of the deceased-Priyanka. 15. PW-7, Harshadkumar Patel, at Exh.36 has also maintained his stand of seeing the accused inflicting the blows of spade on the deceased. 16. PW-11 at Exh.40, is the tractor driver with whom the accused has started the quarrel. However, his evidence reveals that he had seen the accused already quarreling with the deceased, when he arrived at the scene of offence, while going towards the Bhathiji Mandir. It is pertinent to note that in the cross-examination the said witness has admitted that he has not seen the accused giving blows on Hasmukhbhai. Thus, even if the evidence of PW-11 is discarded the evidence of the other witnesses would reveal that the incident has occurred and the accused had given blow of spade on the head of the deceased. 17. The medical evidence comprising of deposition of PW-13, Dr.Shankutla Parmar and the post mortem report, Exh.46 confirm that the deceased had suffered three injuries on his face. The same are as under: (1) CLW present on (Rt) tempo parietal region on scalp 3 inches above. 3” x ½ x 1. (2) Sharp cut wound over left cheek. 3” x 1/2 x 1 one deep with offacil bone (left sided). (3) Contusion present on tempo parietal region just above ear 4” x 3” x 1/4. (4) CLW on chin 1/4” x 1/4” margin bluish red irregual. (5) Bruise present on (Rt) shoulder 1½” x 1/2” and 1” x 1” size bluish red in colour. (6) Bruise present on (Rt) shoulder 1” x 1” and 1½” x 1” size bluish red in colour. (7) Subconjunctival h’ age present in (Lt) eye and intra orbital bleeding present. 18. At this stage, it would be apposite to refer to the facet of the accused-appellant having being injured in the incident. (6) Bruise present on (Rt) shoulder 1” x 1” and 1½” x 1” size bluish red in colour. (7) Subconjunctival h’ age present in (Lt) eye and intra orbital bleeding present. 18. At this stage, it would be apposite to refer to the facet of the accused-appellant having being injured in the incident. The injury certificate mark 6/4 (Exh.69 in the cross case) would suggest that the appellant has also received serious injuries on the same date i.e. 10.01.2013 and the certificate shows that he was brought at 3:30 p.m. for examination of the injuries. There are various injuries found on the deceased which are cut, wounds and CLW on his head as well as below neck and cut wounds on the head as well as on his finger. The certificate also reveals that he has suffered from fractures also. The accused had also registered cross F.I.R. on 12.1.2013, mark as 8/3, in which he has referred to the incident that the quarrel has ensued in view of altercation with one tractor driver. It is stated that the altercation has occurred with the deceased when the deceased had confronted him as to why he was harassing his daughter and thereafter the deceased started abusing and assaulting him. The F.I.R. further narrates that at the time other persons have also arrived and they assaulted him with the iron road and hence, the accused-appellant pulled the spade from the cycle and inflicted blow on the head of the deceased-Hasmukhbhai Patel. Thus, the contents of the cross-FIR, disclose that the appellant had inflicted a blow of spade on the head of the deceased due to the circumstances narrated therein. 19. The Investigating Officer PW-20 at Exh.63 has not referred to such cross incident. It is also not denied by the prosecution that the accused has also suffered injuries in the same incident which are also serious in nature. The overall appreciation of both the ocular and documentary evidence would in fact reveal that the incident has occurred in the spur of moment. There was no pre-medidation on behalf of the accused to commit the murder of the deceased. The overall appreciation of both the ocular and documentary evidence would in fact reveal that the incident has occurred in the spur of moment. There was no pre-medidation on behalf of the accused to commit the murder of the deceased. The weapon used for the offence is spade - a common agricultural tool, which was being carried by the complainant on his cycle, who was present at the scene of offence by chance and when he stopped there due to the quarrel and at that time when the fight was going on the accused pulled up the spade from the cycle of the first informant and inflicted blows on the hand of the first informant as well as on the deceased, who tried to intervene. Thus, the evidence does not even remotely suggested that there was pre-meditation on behalf of the accused. However, the issue which remains to be examined is whether the accused had both intention as well as knowledge to commit the murder of the deceased and the incident would attract the provisions of Section 302 of the IPC or the offence is culpable homicide not amounting to murder or the accused is entitled for benefit of Exception-4 under Section 300 of the IPC. 20. At this stage, it would be apposite to refer to the decisions of the Supreme Court in the case of Anbazhagan vs. State, (supra), wherein the case of the prosecution is that the murder was committed by the accused by using the agricultural tool (HOE) and a single blow on the head of the deceased. The Supreme Court, while examining the facts of the case and well as threadbare examination of the provisions of Sections 299 and 300 of the IPC has formulated the principles of law, after survey of different judgments in paragraph No. 60, which are as under: “60. 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. To illustrate: ‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’ shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’ or ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only 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. 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 50 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’. (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. (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 51 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’. 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. (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 53 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 intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if 54 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. 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 54 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 55 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.” 21. We may also incorporate paragraph Nos. 37, 38 and 39 of the said judgment, which are as under: “37. This Court in Phulia Tudu (supra) has observed that the academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the courts. The confusion is caused if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. This Court in Phulia Tudu (supra) has observed that the academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the courts. The confusion is caused if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 of the IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences: Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done. Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done. INTENTION INTENTION (a) with the intention of causing death. (1) with the intention of causing death. (b) with the intention of causing such bodily injury as is likely to cause death. (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. KNOWLEDGE KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as is mentioned above. 38. Clause (b) of Section 299 of the IPC corresponds with clauses (2) and (3) of Section 300 of the IPC. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This clause (2) is borne out by illustration (b) appended to Section 300 of the IPC. 39. Clause (b) of Section 299 of the IPC does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 of the IPC can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result; of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300 of the IPC, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299 of the IPC, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 of the IPC and clause (3) of Section 300 of the IPC is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 of the IPC conveys the 27 sense of probable as distinguished from a mere possibility. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 of the IPC conveys the 27 sense of probable as distinguished from a mere possibility. The words “bodily injury......sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.” 22. The relevant Exceptions to Section 300 of the IPC of which the benefit is being sought by the accused are as under: “Exception 1 - When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: First - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly - That the provocation is not given by anything done in the lawful exercise of the right of private defence. Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. Explanation - It is immaterial in such cases which party offers the provocation or commits the first assault.” 23. We may also refer to the recent decision of the Supreme Court in the case of N. Ramkumar vs. State (supra), paragraph Nos. 20 and 21 which are relevant read as under: “20. Thus, it emerges from the case law analysed herein above for converting the sentence imposed Under Section 302 to Section 304 Part II the facts unravelled during trial will have to be seen. 20 and 21 which are relevant read as under: “20. Thus, it emerges from the case law analysed herein above for converting the sentence imposed Under Section 302 to Section 304 Part II the facts unravelled during trial will have to be seen. In the facts of the case on hand, it is discernible that there was no premeditation to cause death or the genesis of occurrence and the single assault by the Accused and duration of entire episode, were factors to adjudge the intention. The offence can be brought clearly within the ambit of Section 304 Part-II Indian Penal Code. In the instant case it can be noticed that Appellant and the deceased were in love with each other. The fact that deceased had stopped talking to the Appellant and she was talking to her neighbour Mr. Sudhakar had ignited the mind of the Appellant to be furious about the conduct of the deceased and he was upset about this change of attitude of the deceased. Even according to the testimony of PW-1, who is none other than mother of the deceased there was altercation between the Appellant and the deceased and exchange of words between Appellant and deceased with regard to their love affair. On being confronted by the Appellant as to why the Accused had stopped talking to him and as to why she was trying to develop friendship with Sudhakar and the answer given by the deceased had resulted in Appellant’s getting infuriated and in that spur of the moment he caught hold of her hair and banged her head to the wall which resulted in blood oozing out and on seeing this he ran away from the scene of the incident. Thus, the single assault by the Appellant coupled with the duration of the entire period having occurred for about 2-3 minutes would not be sufficient to infer that he had the intention to kill the deceased. Had there been any intention to do away with the life of the deceased, obviously the Appellant would have come prepared and would have assaulted the deceased with premeditation. Yet another factor which cannot go unnoticed, the Appellant had obviously approached the deceased and intended to confront her as to why she was not talking to him though they were in love and also to clear the doubts about she being friendly with Mr. Yet another factor which cannot go unnoticed, the Appellant had obviously approached the deceased and intended to confront her as to why she was not talking to him though they were in love and also to clear the doubts about she being friendly with Mr. Sudhakar (neighbour) and in this factual scenario, heated exchange of words have taken place and enraged by her reply the Appellant has banged her head on the wall in a fit of fury, which cannot be inferred that he had any intention to take away her life, particularly when he was in love with her. 21. In the aforesaid analysis of law and facts, we are of the considered view that the present appeal deserves to be allowed in part. The conviction of the Appellant under 302 is altered/converted to one Under Section 304 Part II of the Indian Penal Code for the altered conviction, the Appellant is sentenced to the imprisonment to the period already undergone and shall be released forthwith if not required in any other case.” 24. Thus, the evidence unquestionably reveals that the incident has occurred due to heat of exchange of words and the sudden quarrel happened on the road and the weapon used for the offence as per the case of the prosecution and as per evidence is common agricultural tool which is spade, which was being carried by the PW-1, who happens to be at the scene of offence by chance. Hence, in our considered opinion, we find that the offence, does not fall within thirdly or secondly of Section 300 of the IPC. The offence would be one where it can be said that the accused would have knowledge, if he inflicts the blow on the vital part of the deceased, the same would likely result into death. No intention can be attributed to the appellant of committing murder of the deceased. 25. Thus, the offence would fall under third part of the Section 299 of the IPC, which would attract Part-II of Section 304 of the IPC. No intention can be attributed to the appellant of committing murder of the deceased. 25. Thus, the offence would fall under third part of the Section 299 of the IPC, which would attract Part-II of Section 304 of the IPC. The observations of the Supreme Court in the aforesaid cases are that if an act of accused person falls within first two clauses of cases culpable homicide as described under Section 299 of the IPC, it is punishable under Part-I of Section 304 of the IPC and if offence falls within third clause, it is punishable under Part-II of Section 304 of the IPC. The provisions of Section 304 of the IPC classify two parts. Part-I which prescribes “act done with intention” and Part-II specifies “act done with knowledge.” The imprisonment stipulated in the section is upto of 10 years or fine or both. On the substratum of the aforementioned analysis of evidence, the conviction recorded by trial Court under the provision of Section 302 of the IPC is altered to that of Part-II of Section 304 of the IPC. The appellant has undergone sentence for 10 years and 6 months and 4 days, as per the jail remarks as on 24.01.2024. 26. The present Criminal Appeal is partly allowed. The judgment and order dated 10.12.2015 is quashed and set aside. The Appellant is sentenced to the imprisonment to the period already undergone and shall be released forthwith if not required in any other case. 27. R&P be sent back to the concerned trial court.