JUDGMENT : Sujit Narayan Prasad, J. 1. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the Judgment of conviction dated 16.02.2017 and order of sentence dated 21.02.2017 passed by learned Additional Sessions Judge-VI, Garhwa in Sessions Trial No. 131 of 2016, arising out of Kharaundhi P.S. Case No.04 of 2016 corresponding to G.R. Case No.80 of 2016, whereby and whereunder, the appellant has been sentenced to undergo rigorous imprisonment for life alongwith fine of Rs.20,000/- for the offence committed under Section 302 of IPC and compensation of Rs.20,000/- and in default of payment of fine, the same has been directed to be recovered from the movable and immovable property of the convict. Facts: 2. The prosecution story in brief as per the allegation made by the informant, read as under: On 07.01.2016 at about 9:00 pm, the accused Satya Narayan Singh and deceased Dinanath Singh has altercation after they have taken liquor. Dinanath Singh was scolding his child for not studying and on this Satya Narayan Singh did not feel happy / comfortable / amused. He got angry and brought a tangi (axe) from his house and assaulted Dinanath Singh with Tangi incessantly. He was seriously injured, fell down and became unconscious. His wife Lila Devi started raising alarm. The neighbours assembled there and a tempo was arranged and Dinanath Singh was taken to Bhawanathpur Hospital from where he was referred to Garhwa Hospital. While on the way to the Hospital, he died near Meral. Thereafter, they returned to the village. On the basis of this written report, an FIR was registered as Kharaundhi P.S. Case No.04 of 2016 dated 08.01.2016 u/s 302 of IPC. Accordingly, the trial proceeded and the appellant was found guilty for the offence under Section 302 of IPC and in view thereof, sentenced to undergo rigorous imprisonment for life alongwith fine of Rs.20,000/-. Grounds taken on behalf of the Appellant: 3. Accordingly, the trial proceeded and the appellant was found guilty for the offence under Section 302 of IPC and in view thereof, sentenced to undergo rigorous imprisonment for life alongwith fine of Rs.20,000/-. Grounds taken on behalf of the Appellant: 3. Learned counsel for the appellant has taken the following grounds for interfering with the finding recorded by the learned trial court in the impugned judgment : (i) The ground has been taken that even accepting the prosecution version to be correct then the ingredient of Section 300 of IPC to commit murder with intention is not available; (ii) It would be evident from the testimony of P.W.-8, the investigation officer and the P.W.-6 that the appellant has assaulted deceased Dinanath Singh with tangi at the time when he was scolding his child for not studying and on this, the appellant got angry and assaulted him. This fact itself clarifies that there was no pre-meditation of mind in committing murder of the deceased; Therefore, at best, it can be said to be a case of exception to Section 300 of IPC and hence, the appellant can be convicted under Section 304 Part (II) of IPC. (iii) Learned counsel for the appellant has submitted that the appellant since has already remained in custody for almost eight years, as such, the judgment of conviction may be modified by modifying it to that of Section 304 Part (I) or 304 Part (II) of IPC. Grounds taken on behalf of the Respondent: 4. While, on the other hand, Mr. Bhola Nath Ojha, learned Additional Public Prosecutor has taken the following grounds : (i) It has been submitted that it is a case of commission of murder with intention to kill which would be evident from the testimony of witnesses if taken together; (ii) The informant as also the investigating officer have supported the prosecution version; (iii) The appellant has killed with intention to commit murder of the deceased, otherwise there was no occasion for the appellant to come with tangi and give tangi blow; 5. Learned Additional Public Prosecution, based upon the aforesaid grounds, has submitted that the judgment of conviction therefore is based upon the testimony of the witnesses and if on that consideration, the learned trial court has come to the conclusion that the present case is of commission of murder with intention to kill, the same cannot be said to suffer from error. Analysis: 6. This Court has heard the learned counsel for the parties, appreciated the rival submissions/grounds of the parties as referred hereinabove and the finding recorded by the learned trial court in the impugned order. 7. This Court, before coming to the legality and propriety of the impugned order, is of the view that the testimony of the witnesses needs to be referred herein as follows : (I) P.W.-1 is Marangi Devi. In her examination-in-chief she has stated that Satya Narayan Singh assaulted Dinanath Singh with 'tangi' on his head. He has also given a 'tangi' blow at knee. Dinanath Singh fell down. On 'hulla' people assembled there. Dinanath Singh was taken to Bhawanthpur Hospital for treatment. While Dinanath Singh was being brought from Bhawnathpur Hospital to Garhwa, he died on way. In her cross-examination she has stated that Satya Narayan and Dinanath are brothers. Previously there was no dispute. In para 5 of her cross-examination, she has stated that neither the deceased nor the accused has taken liquor on that day. In para 7 of her cross-examination, she has stated that she has seen assaulting Satya Narayan with 'tangi'. (II) P.W.-2 is Ram Das Singh. In his examination-in-chief he has stated that at about 09.00 P.M. he was at his house. He heard 'hulla'. He went to the place of Dinanath Singh. He saw that Dinanath Singh has fallen. Accused Satya Narayan Singh has killed him with 'tangi'. Dinanath Singh has received one blow on head and another blow at thigh. When he reached there, Dinanath Singh was soaked with blood. It was fastened with a 'gamachha' (towel) and he was taken to Bhawanthpur Hospital from where he was referred to Garhwa. While on way he died. He has further stated that while Dinanath was scolding his child, Satya Narayan assaulted him with tangi. In his cross-examination, he could not say whether both brothers have taken liquor on that day. Before he reached the place, Dinanath Singh has fallen. While on way he died. He has further stated that while Dinanath was scolding his child, Satya Narayan assaulted him with tangi. In his cross-examination, he could not say whether both brothers have taken liquor on that day. Before he reached the place, Dinanath Singh has fallen. In Para 15 of his cross-examination, he has stated that he has come on his own for deposing in the court and family of Dinanath has not brought him. (III) P.W.-3 is Ram Bilas Singh. In his examination-in-chief he has stated that he came to know that Satya Narayan Singh has assaulted Dinanath Singh with 'tangi' leading to death of Dinanath. In his cross-examination he has stated that he has identified accused as he is from his village. (IV) P.W.-4 is Ram Puran Singh. In his examination-in-chief he has stated that the deceased and the accused have returned after paddy cutting. They quarreled in the evening and Dinanath Singh was assaulted with 'tangi' by Satya Narayan Singh. Dinanath Singh became unconscious. While Dinanath was being taken to Hospital for treatment, he died on way. He could not say the reason for quarrel. In his cross-examination he has stated that at the time of occurrence he was at his house. In para 5 of his cross-examination, he could not say whether Satya Narayan Singh and Dinanath Singh have taken liquor in the evening on the day of occurrence. In para 6 of his cross-examination he could not say the name of other persons who have assembled at the house of Dinanath after his assault. He has admitted that he has identified Satya Narayan Singh since he is from his village. (V) P.W.-5 is Tulsi Singh, the father of the deceased Dinanath Singh. In his examination-in-chief, he has stated that Dinanath was his son while Satya Narayan was his nephew. Dinanath was killed by Satya Narayan with 'tangi'. Dinanath was scolding his son Renga regarding study. On that Satya Narayan got angry and assaulted Dinanath with 'tangi' on his head and bleeding started. Dinanath was taken to Bhawanathpur Hospital from where he was referred to Garhwa and while on way he died near Ramuna. In his cross-examination he has stated that both of them did not use to work together. There was no previous dispute. On the day of occurrence, they have not taken liquor together. Dinanath was taken to Bhawanathpur Hospital from where he was referred to Garhwa and while on way he died near Ramuna. In his cross-examination he has stated that both of them did not use to work together. There was no previous dispute. On the day of occurrence, they have not taken liquor together. He has also stated that at the time of occurrence he has not slept. While Satya Narayan was assaulting Dinanath, he was there. In course of altercation itself, he assaulted Dinanath Singh. (VI) P.W.-6 is Lila Devi, the wife of the deceased as also the informant of this case. In her examination-in-chief she has stated that deceased was her husband and occurrence took place in January 2016 at 07.00 PM. At that time, she was at the house. Satya Narayan assaulted her husband with 'tangi' on head and knee. Dinanath Singh fell down. He was taken in tempo to Bhawanathpur Hospital from where he was sent to Nagar and from there he was referred to Garhwa Hospital. While on way Dinanath Singh died. She has further stated that Dinanath Singh was scolding his disabled son Anuj Kumar for study. This was opposed by Satya Narayan as to why he was scolding the child and on this Satya Narayan Singh assaulted with 'tangi' leading to death. She has stated that the matter was reported to the police and she put her thumb impression on information given to the police station. In her cross-examination she has stated that Satya Narayan Singh and Dinanath Singh had good relationship. In para 8 of her cross-examination she has stated that about fifty people have assembled at the house and seven persons have accompanied her in the tempo. All those seven persons accompanied her to police station as well (para 9). (VII) P.W.-7 is Dr. Ram Binod Kumar who has conducted postmortem on the dead body of Dinanath Singh. He has stated that on 08.01.2016 he held postmortem examination of the dead body of the deceased Dina Nath Singh and found the following ante-mortem injuries- (i) Bruise with under lying haematoma 2"x 2" near lateral angle of right eye; (ii) Lacerated wound 1"x 1/8" x muscle deep on right fronto- parietal region of skull; (iii) Bruise with under lying haematoma 3" x 3" on right fronto- parietal region of skull; (iv) Incised wound 2"x 3" on middle side of left knee. Rigor mortis present in all four limbs Time since death -6 to 24 hours. Injuries nos. (i) to (iii) caused by hard blunt substance and injury nos. (iv) caused by sharp cutting weapon. In his opinion-death caused due to shock and haemorrhage due to above mentioned injuries. He proved the postmortem report and it was marked as Exhibit 1. In his cross-examination he has denied that the above mentioned injuries can be caused by falling on the sharp boulders and admitted that he has not specified the weapon of assault (VIII) P.W.-8 is Chandeshwar Prasad Singh, the Investigating Officer of this case. In his examination-in-chief he has stated that on 08.01.16 he was posted as officer in-charge Kharaundhi P.S. and took over the charge of investigation of Kharaundhi P.S. Case No.04/16. He has further deposed that he has received information from Chaukidar Sharda Prasad Joshi on telephone that the dead body of Dinanath Singh was lying in Torelawa village. In order to verify the information, he reached the Torelawa village where Dinanath Singh has been murdered. There he saw the dead body of Dinanath Singh lying in the 'angan' (court yard). The inquest report was prepared. After that the dead body was sent to Garhwa Hospital with Chaukidar Sharda Prasad Joshi for postmortem. Written report was submitted by Lila Devi, the wife of the deceased, giving the information about the occurrence. In the written report it was informed that Satya Narayan Singh has assaulted Dinanath Singh with 'tangi'. Dinanath Singh was scolding his child for not studying and on this Satya Narayan Singh got angry and assaulted him. While Dinanath Singh was being taken for treatment, on way he died. In course of investigation, he tried to seize the 'tangi' but he could not seize it. The villagers have told him that Satya Narayan Singh has fled away with 'tangi' after the occurrence. In para 4 of his examination in chief he has given detailed description of the place of occurrence. On 08.01.2016 at about 08.00 P.M. Satya Narayan Singh was arrested. In course of investigation, he received the postmortem report and he handed over the charge of investigation to Dineshwar Prasad Chaurasiya on 09.04.2016. He proved the endorsement on the written report which is marked Ext.2. He also proved the signature on the formal FIR which is marked Ext.3. On 08.01.2016 at about 08.00 P.M. Satya Narayan Singh was arrested. In course of investigation, he received the postmortem report and he handed over the charge of investigation to Dineshwar Prasad Chaurasiya on 09.04.2016. He proved the endorsement on the written report which is marked Ext.2. He also proved the signature on the formal FIR which is marked Ext.3. He identified the accused Satya Narayan Singh present in the court. In his cross-examination he has stated that he was told that the deceased and accused both have taken liquor on the day of occurrence. He has reached the place of occurrence on the next day of the occurrence at about 08.30-9.00 A.M. At that time wife of the deceased has submitted written report. He has inquired from the witnesses. In para 14 of his cross-examination he has stated that he tried to recover the incriminating 'tangi' but he could not since the accused has fled away with 'tangi' and on being asked accused has told him that while he was fleeing, he has thrown the 'tangi' somewhere on the way and he could not remember it. (IX) P.W.-9 is Dineshwar Prasad Chaurasiya, the Investigating officer of this case who submitted charge-sheet. In his examination-in-chief he has stated that he took over the charge of investigation of this case on 19.04.2016. He went through the case diary and on the basis of materials available and other documents he submitted charge-sheet against Satya Narayan Singh u/s 302 of the I.P.C. bearing charge-sheet no 27/16 dated 20.04.2016. In his cross-examination he has admitted that he has not recorded the statement of any of the witnesses. He also admitted that neither he has arrested the accused nor he has visited the place of occurrence. 8. 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 the legal position and certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II. 9. The Indian Penal Code, 1860 recognizes two kinds of culpable homicide. 9. The Indian Penal Code, 1860 recognizes two kinds of culpable homicide. The first one is culpable homicide not amounting to Murder (Section 299 and 304 of the IPC) and another one is culpable homicide amounting to Murder (Section 300 and 302 of IPC). Section 304 of IPC provides punishment for culpable homicide not amounting to Murder. Under it there are two kinds of punishments applying to two different circumstances:- (i) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description of a term which may extend to ten years and fine. (ii) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to 10 years, or with fine, or with both. The Hon‘ble Apex Court in the case of Jgriti Devi v State of Himachal Pradesh reported in (2009) 14 SCC 771 , it was held that the expression intention and knowledge postulate the existence of positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of Section 304 and if it is only case of knowledge and not intention to cause death by bodily injury, then the same would be a case of second part of Section 304. It further appears from Part-I of Section 304 of the Indian Penal Code that for a case to fall under the first part of Section 304, the element of intention is mandatory. By intention it meant the expectation of the consequences in question and intention does not therefore necessarily involve premeditation or thinking out the killing beforehand. If a person performing some act either (1) expects death to be consequences thereof; or (2) expects a dangerous bodily injury likely to cause death; or (3) knows that death is likely consequence thereof, and in each case death ensues, his intention in the first two cases and knowledge in the third mentioned circumstance. 10. If a person performing some act either (1) expects death to be consequences thereof; or (2) expects a dangerous bodily injury likely to cause death; or (3) knows that death is likely consequence thereof, and in each case death ensues, his intention in the first two cases and knowledge in the third mentioned circumstance. 10. In the case of Surain Singh v. State of Punjab reported in (2017) 5 SCC 796 at paragraph 13 the Hon'ble Apex Court has held which is being referred hereunder as :- “13. Exception 4 to Section 300 IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of 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.” 11. At this juncture it is pertinent to mention here that 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’, ‘intention’ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end. 12. In the case of Nankaunoo v. State of Uttar Pradesh reported in (2016) 3 SCC 317 it has been held that the intention is different from knowledge. 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 case [Virsa Singh v. State of Punjab, AIR 1958 SC 465 , in Jai Prakash v. State (Delhi Admn.), (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 case [Jagrup Singh v. 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 case [Virsa Singh v. 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.’ 13. The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. 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’, ‘intention’ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.” 14. The Hon'ble Apex Court has dealt with the aforesaid position in the case of Surinder Kumar v. Union Territory, Chandigarh reported in (1989) 2 SCC 217 wherein paragraph 6 and 7 are relevant which are being referred hereunder as :- “6. Exception 4 to Section 300 reads as under: “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.” 7. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.” 7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. 15. In Pulicherla Nagaraju v. 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. 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. 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) 16. 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 Represented by the Inspector of Police reported in 2023 SCC OnLine SC 857 which are being quoted as under : “66. 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 Represented by the Inspector of Police reported in 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. --- (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's 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. 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. (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’. 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. 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 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. 17. 17. 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? Or (ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code? Or (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? Or (iv) Whether the appellants are entitled for acquittal in absence of cogent evidences? 18. Since all the aforesaid issues are inextricably interlinked, the same are being decided hereinbelow by considering them together. 19. 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 4 to Section 300 of the Indian Penal Code. 20. 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. 21. “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. 21. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj v. State of Tamil Nadu reported in AIR 1976 SC 1519 has been pleased to held at paragraph 32 & 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, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the act is likely to cause death. 33. As was pointed out by this Court in Anda v. State of Rajasthan [ AIR 1966 SC 148 : 1966 Cri LJ 171] x“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.” 22. 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. 23. 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. 23. 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. 24. 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). 25. 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. 26. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P. reported in (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. 26. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P. reported in (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. ---" 27. ---" 27. 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. 28. 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. Apart from this, Section 300 of the Indian Penal Code mentions certain exceptions for offence of murder which are as follows :- a. If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won’t amount to murder subject to proviso as provided. b. When a person under the right of private defence causes the death of the person against whom he has exercised this right without any premeditation and intention. c. If a public servant, while discharging his duty and having lawful intention, causes the death of a person. d. If it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’ having taken undue advantage or acted in a cruel or unusual manner. e. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 29. e. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 29. All these exceptions mentioned above shall come under purview of Section 304 and will be termed as culpable homicide not amounting to murder. 30. 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. 31. The parameters for judging the case have been dealt with by Hon'ble Apex Court in the case of Sayaji Hanmat Baukar v. State of Maharashtra, AIR 2011 SC 3172 whereunder the circumstances of the case it has been held that if the act is done without premeditation in a sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then exception 4 will be attracted. 32. Law is well settled that in order to attract Exception 4 to Section 300 of IPC, four requirements must be satisfied namely :- (a) It should be sudden fight. (b) There was no premeditation. (c) The act was done in a heat of passion (d) The assailant had not taken any undue advantage or acted in a cruel manner. 33. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offence must have taken place in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. If a person in the heat of a moment on a sudden quarrel picks a weapon which is handy and thereby injuries are caused, one of which proves fatal, he would be entitled to the benefit of this exception 4 to Section 300 of IPC provided he has not acted cruelty. Thus whenever there is a case of sudden fight and conflict, it has to be dealt with under Exception 4 to Section 300 of IPC. 34. Thus whenever there is a case of sudden fight and conflict, it has to be dealt with under Exception 4 to Section 300 of IPC. 34. 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 by appreciating the evidences vis-à-vis the provisions of murder or exception 4. 35. Coming to the facts of the present case, on consideration of the testimony of the witnesses, this Court, has found from the testimony of the P.W.-6, wife of the deceased. She has deposed that the appellant has assaulted her husband with tangi on head and knee. The deceased fell down. He was taken to the hospital where he was referred to Garhwa Hospital and while on the way, he died. 36. She has further deposed that the deceased was scolding his disabled son, namely, Anuj Kumar, for study which was opposed by the appellant as to why he was scolding the child and on this, the deceased was assaulted by tangi leading to death. 37. The aforesaid version has also been supported by the investigating officer, P.W.-8. However the doctor has opined that the death was caused due to the assault given by hard and blunt substance. 38. It is evident from the testimony of PW.8 who conducted postmortem on the deceased body, wherein he has opined that the injury no. (i) to (iii) may have been caused by the hard and blunt substance on the head of the deceased and the injury no.(iv) was caused on the left knee of the deceased by sharp cutting substance. 39. Thus, from the aforesaid fact it can be safely inferred that the assault which was made upon the head of deceased by the appellant may be caused through the backside of Axe because injuries as found by the P.W.8 on the head of the deceased were not sharp cut injuries rather lacerated in nature. Only injury no (iv) which was caused on the left knee of deceased was having sharp cut. 40. Only injury no (iv) which was caused on the left knee of deceased was having sharp cut. 40. Thus from the aforesaid facts it is evident that if appellant having any intention to kill the deceased then in such circumstances he may use sharp side of the Axe but it is not case here as per the testimony of PW.8. Thus, from the aforesaid circumstances it may be stated that the appellant has no intention the kill the deceased. 41. This Court, in the pretext of the testimony of P.W.-6 and P.W.-8, is now coming to examine that the present case can be categorised under the category of Section 302 of IPC or Section 304 Part (I) or 304 Part (II) of IPC and on the basis of the aforesaid parameter, the Court is now proceeding to consider the aforesaid aspect of the matter. 42. Admittedly herein, the ingredient for attracting the ingredients off Section 302 of IPC as per the definition of murder as under Section 300 of IPC if the murder is being committed with pre-meditation of mind, then certainty it will come under the fold of Section 302 of IPC. But if there is no pre-meditation of mind and at the spear of the moment the death was caused due to the blow given by the person concerned then certainly it will come under the fold of Section 304 of IPC. 43. Herein, the informant has deposed that Dinanath Singh was scolding his disabled son Anuj Kumar for study which was opposed by Satya Narayan as to why he was scolding the child and on this Satya Narayan Singh assaulted with 'tangi' leading to death of the deceased Dinanath Singh. 44. It is, thus, evident that it cannot be inferred that there was pre-meditation of mind having with the appellant to commit murder of the deceased rather it is the version of these witnesses, particularly the informant, that at the time when her disabled son was being scolded for study then it was objected by the appellant, thereafter, the assault was given through tangi at the head and knee. 45. 45. This conduct of the appellant suggests that there was no pre-meditation of mind to commit murder of the deceased rather at the time when the deceased was scolding his disabled son which led the appellant to make an objection and when it was protested by the deceased then at the same moment the deceased was assaulted with tangi which is in the same transaction and hence, it cannot be arrived at a conclusion that the occurrence which was committed is of different transection since nothing has come in this regard rather it has come in the testimony of the informant that at the time of scolding only when it was opposed by the deceased, he was assaulted by the appellant. 46. Therefore, this Court is of the view that this case cannot come under the category of the intention to kill in absence of any pre-meditation of mind rather it will come under the category of Section 304 Part (II) of IPC. 47. This Court, after having discussed the facts has gone through the impugned judgment and found there from that the learned trial court has failed to appreciate these aspects of the matter rather the learned trial court has considered the testimony of the informant and without examining the issue of non-availability of pre-meditation of mind, has passed the judgment of conviction treating the case under Section 302 of IPC. Summation: 48. In the backdrop the aforesaid discussion and the judicial pronouncement and the evidence of prosecution witnesses and also taken into consideration the facts and circumstances of the instant case we are of the view that the assault was not a premeditated. It further appears that for the purpose of attracting the requirement to invoke Exception 4 to Section 300 I.P.C., the number of wounds caused during the occurrence is not decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in the heat of passion. 49. Therefore, this Court is of the view based upon the aforesaid reason as referred hereinabove that the conclusion which has been arrived at by the learned trial court regarding the applicability of the ingredients of Section 302 of IPC needs to be interfered with. 50. 49. Therefore, this Court is of the view based upon the aforesaid reason as referred hereinabove that the conclusion which has been arrived at by the learned trial court regarding the applicability of the ingredients of Section 302 of IPC needs to be interfered with. 50. Accordingly, the impugned judgment needs to be modified to the extent that the appellant is to be convicted under Section 304 Part (II) of IPC and accordingly, is sentenced for the period already undergone by him and is directed to be released forthwith from the jail custody if not wanted in any other case. 51. The instant Criminal Appeal is hereby dismissed with the modification of the judgment of conviction and order of sentence to the extent as indicated above. 52. Pending interlocutory application(s), if any, also stands disposed of. 53. Let this order/judgment be communicated forthwith to the court concerned along with the Lower Court Records. I agree.- Pradeep Kumar Srivastava, J.