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2025 DIGILAW 1337 (KER)

Nazeer v. State of Kerala

2025-05-22

K.V.JAYAKUMAR, RAJA VIJAYARAGHAVAN V.

body2025
JUDGMENT : Raja Vijayaraghavan, J. In this appeal filed under Section 374 of the Code of Criminal Procedure, 1973 (“the Cr.P.C ” for the sake of brevity), the appellant calls in question the finding of guilt, conviction and sentence passed by the Additional District & Sessions Judge-VI, Kollam in judgment dated 11.06.2019 in S.C. No. 1251 of 2017. The aforesaid case has arisen from Crime No. 793 of 2017 of the Kadakkal Police Station. The appellant in the above case stood charge-sheeted for having committed the offence punishable under Sections 341, 323, 324 and 302 of the IPC . By the above judgment, he was convicted and sentenced to undergo imprisonment for life for the offence under Section 302 of the IPC . No separate sentence was awarded for the other offences. Prosecution Case 2. The deceased, Madhusudanan Nair @ Maniyan, was the husband of Ambili (PW16). Owing to a strained marital relationship, he began spending most nights at the Kadakkal Market and was employed there as a casual labourer. The accused, Nazeer, is alleged to have been both a friend and a co-worker of the deceased. On the evening of 30.04.2017, at approximately 6:30 p.m., the accused and the deceased arrived at the market, at which point a verbal altercation ensued between them. Both individuals were allegedly under the influence of alcohol and in an inebriated condition. According to the prosecution, the quarrel escalated over the sharing of liquor, culminating in the accused wrongfully restraining the deceased on the veranda of the Triveni Supermarket, Kadakkal. It is further alleged that, in the course of this confrontation, the accused assaulted the deceased using MO1, a piece of firewood, and struck him on various parts of his body. As per the charge against the accused, on 30.04.2017 at about 7:30 p.m., he wrongfully restrained the deceased in front of the Triveni Supermarket and, with the intention of causing his death, delivered a forceful punch below the deceased’s right ear and subsequently assaulted him with MO1 firewood. These acts are alleged to have resulted in injuries that ultimately led to the death of the deceased. Registration of the crime and investigation: 3. These acts are alleged to have resulted in injuries that ultimately led to the death of the deceased. Registration of the crime and investigation: 3. Raveendran Nair (PW1), the elder brother of the deceased, was informed by the President of the local Panchayat at approximately 7:00 a.m. on 01.05.2017 that his younger brother, Madhusudanan Nair @ Maniyan, was found lying dead in the veranda of the Triveni Supermarket, Kadakkal. On receiving this information, PW1 immediately approached the local Police Station, where his statement was recorded at 8:30 a.m. on the same day. Based on his statement, Ext.P12 First Information Report was registered under Section 174 of the Code of Criminal Procedure, 1973 , as a case of unnatural death, by PW17, the Station House Officer of Kadakkal Police Station. At the time of the registration of Ext.P12 FIR, the cause of death of Maniyan was unknown. 4. PW17 conducted the inquest over the body of the deceased and prepared Ext.P2 Inquest Report. 5. Subsequently, PW18, the Inspector of Police, Kadakkal, assumed charge of the investigation on 01.05.2017. He proceeded to the scene of occurrence and took custody of the material objects seized earlier by PW8, the Scientific Officer, under Ext.P8 Mahazar. At around 5:30 p.m. on the same day, the appellant was arrested as per Ext.P14 Arrest Memo. The nail clippings and other biological samples collected during the postmortem examination by the Medical Officer were formally seized by the Investigating Officer under Ext.P9 Mahazar. Ext.P13 Property List was thereafter submitted to the Court. On the strength of the alleged disclosure statement made by the accused, the MO1 piece of firewood was recovered from the northern side of the shopping complex, about 6 meters away from the place where the body of the deceased was found. Ext.P4(a) contains the relevant extract of the accused’s confession statement leading to this recovery. 6. PW18 then submitted Ext.P15 report before the Court seeking permission to retain the weapon in his possession for further investigation. The clothes worn by the accused at the time of the incident were recovered and seized under Ext.P10 Mahazar. 7. On 02.05.2017, the Investigating Officer once visited the scene and prepared a Scene Mahazar. During this exercise, two buttons found at the scene were recovered and documented under Ext.P21 Mahazar. He submitted Ext.P17 report before the Court seeking deletion of Section 174 Cr.P.C . 7. On 02.05.2017, the Investigating Officer once visited the scene and prepared a Scene Mahazar. During this exercise, two buttons found at the scene were recovered and documented under Ext.P21 Mahazar. He submitted Ext.P17 report before the Court seeking deletion of Section 174 Cr.P.C . and incorporation of Sections 302 , 341, and 323 of the Indian Penal Code. Subsequently, Ext.P18 report was filed to include Section 324 of the IPC . After completion of the investigation, the final report was filed before the jurisdictional Magistrate, which was duly taken on file. 8. Committal proceedings were initiated in accordance with the law and the case was committed to the Court of Session, Kollam. The case was then made over to the Additional Sessions Court for trial and disposal. After hearing the prosecution and the accused, charges under Section 302 of the IPC were framed, and when the same was read over, he pleaded not guilty and claimed that he be tried in accordance with law. Evidence Tendered: 9. To prove the case of the prosecution, 18 witnesses were examined as PWs 1 to 18, and through them Exts.P1 to P26 were exhibited and marked. MO1 was produced and identified. After the close of prosecution evidence, the incriminating materials arising from the prosecution evidence were put to the accused under Section 313(1)(b) of the Cr.P.C . The accused denied the incriminating circumstances and maintained that he was innocent. On the side of the defence, DW1 was examined. The findings of the learned Sessions Judge: 10. The learned Sessions Judge, after evaluating the entire evidence, came to the conclusion that the prosecution had successfully established through the testimonies of PWs 2 and 3 that it was the appellant who had inflicted the fatal blows on the body of the deceased with the intention to cause his death. Relying on the testimony of the Doctor who conducted the postmortem examination, the Court further found that injuries Nos. 1 to 5 were cumulatively sufficient to cause death and that injury No. 5 taken individually was sufficient in the ordinary course of nature to result in death. The "last seen together" theory was also invoked by the learned Sessions Judge, based on the depositions of PWs 2 and 3, to reinforce the case of the prosecution. 1 to 5 were cumulatively sufficient to cause death and that injury No. 5 taken individually was sufficient in the ordinary course of nature to result in death. The "last seen together" theory was also invoked by the learned Sessions Judge, based on the depositions of PWs 2 and 3, to reinforce the case of the prosecution. The court concluded that the accused had, with clear intent, struck Madhusudanan Nair on the head using MO1 firewood, causing fatal injuries. The court finally concluded that the act of the accused fell squarely within Clause 3 of Section 300 of the IPC and accordingly, found him guilty of the offence under Section 302 of the IPC and was thereafter sentenced to undergo imprisonment for life. Contentions of the appellant: 11. Smt. Lakshmi N. Kaimal, the learned counsel appearing for the appellant, contended that the finding of guilt recorded by the learned Sessions Judge is unsustainable in law. She submitted that the testimonies of PWs 2 and 3 are inconsistent with the medical evidence tendered by the Doctor who conducted the postmortem examination. According to the learned counsel, PW2, upon hearing a commotion, rushed to the scene and allegedly witnessed the appellant assaulting the deceased only on the hand and shoulder, without inflicting any blow to the head. However, even a cursory examination of the postmortem report reveals that injury Nos. 1 to 5 were located on the head and face of the deceased. The learned counsel further highlighted that both the conclusion drawn by the Investigating Officer in Ext.P2 and the testimony of DW1 indicate that the deceased was alive and well at 5:00 a.m. on 01.05.2017. If that be the case, she argued, the application of the "last seen" theory by the learned Sessions Judge was wholly erroneous, and the consequent shifting of the burden of guilt onto the accused was unwarranted. With respect to the recovery of the weapon, it was submitted that MO1 was retrieved from an open area, accessible to the public, approximately six metres north of the Triveni Supermarket, where the deceased was found lying dead. PW3, the star witness of the prosecution, had deposed before the court that the accused had walked towards the Fire Force garage situated on the East, carrying the weapon with him. In such circumstances, the learned counsel contended that the recovery cannot be relied upon to establish guilt. PW3, the star witness of the prosecution, had deposed before the court that the accused had walked towards the Fire Force garage situated on the East, carrying the weapon with him. In such circumstances, the learned counsel contended that the recovery cannot be relied upon to establish guilt. It was only at a much later stage that culpability was attributed to him, which, according to her, raises serious doubts about the case set up by the prosecution. Submissions of the learned Public Prosecutor: 12. In response, Smt. Neema T.V., the learned Public Prosecutor, submitted that the altercation between the deceased and the appellant commenced at about 6:30 p.m., as stated in his testimony by PW11. It was argued that injuries could have been inflicted upon the deceased by the appellant using MO1 prior to the arrival of PW2 at the scene. If so, the prosecution witnesses may not have been in a position to narrate the entire sequence of events, and their testimonies cannot be rejected on that basis alone. The learned Public Prosecutor further submitted that soon after the crime was registered, the Scientific Officer arrived at the scene and recovered two buttons, which, on forensic analysis, were found to have originated from the shirt of the accused. Reliance was placed on Exts.P10 and P17 to demonstrate that the blood samples collected from the crime scene matched those found on the dhoti worn by the accused, thereby linking him directly to the offence. It was also pointed out that following the incident, the appellant absconded from the locality and was apprehended only later that evening by PW18. Referring to the postmortem certificate and the evidence of the Medical Officer, the learned Public Prosecutor reiterated that injury No.5 was declared to be fatal, and in the ordinary course of nature sufficient to cause death. She argued that the learned Sessions Judge had correctly applied the legal principles laid down by the Hon’ble Supreme Court in Virsa Singh v. State of Punjab , [ AIR 1958 SC 465 ] , and rightly invoked Clause 3 of Section 300 of the IPC to convict the accused under Section 302 of the IPC . As for the contention that the recovery of the weapon should be excluded from consideration, the learned Public Prosecutor urged that such an argument is untenable, given the surrounding corroborative evidence that connects the accused with the crime. 13. As for the contention that the recovery of the weapon should be excluded from consideration, the learned Public Prosecutor urged that such an argument is untenable, given the surrounding corroborative evidence that connects the accused with the crime. 13. We have considered the submissions advanced and have gone through the entire records. We have also perused the judgment rendered by the learned Sessions Judge. Cause of death 14. There is no serious dispute from the side of the accused that the death of Maniyan was not a case of homicide. PW1, the brother of the deceased, stated that the person lying dead on the veranda of the Triveni Supermarket was his younger brother. On 01.05.2017, at about 12:45 p.m., PW15, the Assistant Professor of Forensic Medicine, Medical College Hospital, conducted the postmortem on the dead body of the deceased and issued Ext.P11 certificate. Various injuries were noted on the body of the deceased. It would be pertinent to note that injury Nos. 1 to 5 were seen inflicted on the face and head of the deceased. The doctor had stated that the injuries found on the body of the deceased could have been caused by inflicting injuries with MO1. He has also stated that injury Nos. 1 to 5 are jointly sufficient in the ordinary course of nature to cause death, and injury No.5 is independently sufficient in the ordinary course of nature to cause death. We note that injury No. 5, which is a contusion 18x16 cm involving the lower part of the left cheek, the back of the head and the adjoining part of the neck, upper back extends just outer to midline at the level of the occiput. It also involved the upper one-third of the right sternocleidomastoid muscle. The doctor has noted that the blood clots were seen in the left lateral ventricle and also in the III and IV ventricles. Gyri were flattened, and Sulci were narrowed. After perusing the evidence of the doctor coupled with the postmortem certificate, we have no doubt in our mind that the death of Madhusudanan Nair was homicidal. Evaluation of the evidence 15. The next question for consideration is whether the prosecution has succeeded in establishing the role of the appellant in the commission of the offence. The prosecution primarily relied on the testimonies of PWs 2 and 3 to prove the guilt of the appellant. 16. Evaluation of the evidence 15. The next question for consideration is whether the prosecution has succeeded in establishing the role of the appellant in the commission of the offence. The prosecution primarily relied on the testimonies of PWs 2 and 3 to prove the guilt of the appellant. 16. PW2 deposed that he was employed at a meat vending shop in the Kadakkal Market. Due to a strained relationship with his family, he used to spend the night at the market. He stated that the deceased was a close friend and associate, and they would often seek employment together. On the day of the incident, both he and the deceased had gone to the house of one Sabu to collect cow dung. They returned around 5:00 p.m. and shared the wages. After freshening up, he went to “Ruchi Hotel” to have coffee. PW3, Muraleedharan Pillai, was also present at the coffee shop. At around 7:30 p.m., PWs 2 and 3 stepped out of the shop and stood near a street light. They then heard a commotion from the veranda of the Triveni Supermarket. PW2 went to investigate and saw the appellant standing with a stick in his hand, while the deceased lay on the veranda. PW2 stated that the appellant struck the deceased with MO1 on the shoulder and chest. When the appellant attempted to strike the deceased on the head, PW3 intervened, cautioning the appellant not to beat the deceased in his presence. Upon this, the appellant left the scene and walked towards the market. He stated that the deceased remained lying there in an intoxicated state. PW2 then went to the nearby shopping complex and slept under the stairs. The next morning, at about 6:00 a.m., he went to the tea shop of one Paramu, where he again saw the appellant. At that time, PW3 arrived and told the appellant that the person he had beaten the previous day was still lying on the veranda. They all proceeded to the spot, where they discovered that the deceased had died. The police were informed and arrived at the location within 15 minutes. PW2 further confirmed that he could identify both the appellant and MO1 as the weapon used in the assault. Despite being subjected to cross-examination, the defence was unable to elicit any omissions or material contradictions in his evidence. The police were informed and arrived at the location within 15 minutes. PW2 further confirmed that he could identify both the appellant and MO1 as the weapon used in the assault. Despite being subjected to cross-examination, the defence was unable to elicit any omissions or material contradictions in his evidence. PW2 also clarified that there had been no prior disputes between the appellant and the deceased. However, he admitted that after he had left the scene, he had no occasion to verify whether Maniyan was in a normal condition or not. 17. PW3, Muraleedharan Pillai, a loading worker, corroborated the incident as having occurred on 30.04.2017. He testified that after completing his work at a godown, he proceeded to Ruchi Hotel in the Kadakkal Market to have snacks. While he was there, he heard the appellant shouting abuses. PW2 went ahead to investigate, and PW3 followed. Upon reaching the northern side of the market, PW3 saw the appellant holding a piece of firewood, and the deceased was found lying on the veranda. When the appellant attempted to strike the deceased again, PW3 restrained him and told him not to assault Maniyan in his presence. The appellant acceded to his request and left the spot and walked towards the Fire Force Office with MO1 weapon in hand. PW3 stated that the deceased was in an inebriated condition. He identified the appellant in court and also identified MO1 as the weapon used. During cross-examination, PW3 admitted that he was not present when the police arrived at the scene. He also stated that he had not consumed alcohol on the previous day. 18. PW4 is a Panchayat Member who attested to Ext.P2 Inquest Report. 19. PW5 is a Fireman who was present when the Scene Mahazar was prepared by PW18. PW6, also a Fireman, was a witness to Ext.P4 Recovery Mahazar. 20. PW7, the Secretary of the Panchayat, issued Ext.P5 certifying that the shopping complex in question was owned by the Panchayat. 21. PW8 is the Scientific Assistant who arrived at the scene immediately after the registration of the FIR and collected samples of blood, as well as two buttons found at the scene. 22. PW9, the Village Officer, Kadakkal, prepared the Site Sketch. 23. PW10, the Assistant Engineer of KSEB Ltd., testified to Ext.P7 and confirmed that there was no electrical failure in the area on the date of the incident. 24. 22. PW9, the Village Officer, Kadakkal, prepared the Site Sketch. 23. PW10, the Assistant Engineer of KSEB Ltd., testified to Ext.P7 and confirmed that there was no electrical failure in the area on the date of the incident. 24. PW13, a Civil Police Officer at Kadakkal Police Station, was examined to prove Ext.P8 Seizure Mahazar. 25. In the case at hand, the prosecution has examined two witnesses to prove the manner in which the incident took place. PW2 is a close friend and co-worker of the deceased. He is also having close acquaintance with the appellant. In his evidence, he has stated that he had occasion to witness the appellant attacking the deceased with a firewood. According to him, at about 7:30 p.m., while he was having snacks with PW3 at “Ruchi Hotel”, he heard a hue and cry, and he rushed to the place. He stated that the appellant was standing with a stick in his hand and was beating the deceased. However, he emphatically stated that the appellant had beaten Maniyan only on his shoulder and chest. He added that when the appellant attempted to hit the deceased on the head, PW3 intervened and restrained him from doing so. He stated that the appellant walked away while the deceased was found lying in the same place. PW3 also supported the version of PW2. However, he stated that he had come to the place of occurrence only after PW2, and he had no occasion to see the appellant assaulting the deceased with the stick. However, he stated that when the appellant attempted to inflict a blow on the head of the deceased, he intervened and dissuaded him. He added that the appellant walked away towards the Fireforce Office with a stick in his hand. 26. Smt. Lakshmi N. Kaimal, the learned counsel appearing for the appellant, argued that the version of PW2 is at variance with the medical records. PW15, the Doctor, who conducted the postmortem, had noted as many as 8 injuries, of which injury Nos. 6 to 8 are contusions on the outer aspects of the right and left arm, and on the left wrist. At the same time, the Doctor has also noted injury Nos. 1 to 5, which are contusions on the face and on the back of the head. 6 to 8 are contusions on the outer aspects of the right and left arm, and on the left wrist. At the same time, the Doctor has also noted injury Nos. 1 to 5, which are contusions on the face and on the back of the head. It was persuasively argued that the injuries found on the body of Maniyan would have been caused by someone else at a different place and time. 27. We are of the considered view that the said contention deserves only to be noted for the purpose of being rejected. PW11, a close friend and associate of both the accused and the deceased, clearly deposed that all of them had consumed alcohol on 30.04.2017 and had assembled at the market around 6:30 p.m. He specifically spoke of an altercation between Maniyan and the accused, during which both were seen hurling abuses at each other. It was only at approximately 7:30 p.m. that PW2 and PW3 decided to intervene and proceeded to the scene. It was at that juncture that PW2 witnessed the appellant striking the deceased with a stick on his body. PW2 could have testified only to what he personally observed. The possibility that injuries, particularly those on the head, were inflicted prior to the arrival of PWs 2 and 3 cannot be ruled out. Given that the incident occurred after sunset, it would be unreasonable to expect the eyewitnesses to identify with exactitude the precise part of the body where each injury was inflicted. It has also come out that the accused was found lying on the ground when PW2 arrived at the scene. Moreover, PW15, the doctor who conducted the post-mortem examination, categorically opined that the injuries observed on the body of the deceased were consistent with having been caused by a wooden log resembling MO1. This medical evidence lends further corroboration to the ocular version of the prosecution witnesses. 28. The presence of the appellant at the scene of the occurrence is further established beyond doubt through scientific evidence. PW8, the Scientific Assistant who arrived at the location shortly after the incident, collected two buttons and bloodstains found at the scene of the crime. The forensic report, marked as Ext.P25, disclosed that the buttons recovered from the scene were compared with the buttons on the shirt of the accused, which had been seized under Ext.P21 Mahazar. PW8, the Scientific Assistant who arrived at the location shortly after the incident, collected two buttons and bloodstains found at the scene of the crime. The forensic report, marked as Ext.P25, disclosed that the buttons recovered from the scene were compared with the buttons on the shirt of the accused, which had been seized under Ext.P21 Mahazar. The comparison was made in terms of colour, shape, style, and other physical characteristics. On examination, the buttons collected from the crime scene were found to be similar to those on the accused's shirt. It was also specifically noted that the buttons recovered from the scene could have been the ones missing from the shirt of the accused. Further, Ext.P25 reveals that a saffron-colored single dhoti, stated to have been worn by the appellant at the time of the incident, was subjected to DNA analysis. The bloodstains on the dhoti were compared with the reference blood sample of the deceased, and the report confirmed that the blood originated from the same male individual. Thus, the scientific evidence not only substantiates the presence of the appellant at the scene but also corroborates the testimonies of PWs 2 and 3 regarding the appellant’s role in inflicting the fatal blows on the deceased. 29. At this juncture, it would be profitable to advert to the evidence of the defence witness, who was examined as DW1. He was examined to prove that no incident of the nature alleged by the prosecution had taken place. DW1 deposed that he is a farmer by occupation and, on the date of the death of Madhusudanan Nair, at approximately 5:00 a.m., he had gone to the Kadakkal Market to sell betel leaves. While having tea at the tea shop of one Paramu, he claimed to have seen the deceased also consuming tea at the same location. Subsequently, around 6:30 a.m., he came to know about the death of the deceased, whose body, according to him, was found lying near the road adjacent to the Fire Force office. However, during cross-examination, DW1 admitted that he did not know the exact date of the occurrence. He further acknowledged that he is the de facto complainant in a separate case, wherein one Nazeer had allegedly attempted to murder him by striking his head. He was unable to specify the date on which he purportedly saw the deceased at Paramu’s tea shop. He further acknowledged that he is the de facto complainant in a separate case, wherein one Nazeer had allegedly attempted to murder him by striking his head. He was unable to specify the date on which he purportedly saw the deceased at Paramu’s tea shop. He also confirmed that the accused was not present at the tea stall at the relevant time. Significantly, he admitted having no knowledge about the incident that had occurred on the previous day of the deceased’s death. Having carefully evaluated the evidence of DW1, we are of the view that the same is unsafe to be acted upon. 30. Having considered the evidence in its entirety, we are of the view that there is no reason to doubt their version. They are close friends and associates of the accused as well as the deceased, and their explanation as to their presence in and around the scene of the crime appears to be reliable and trustworthy. They are persons who have no axe to grind against the accused. Even the defence has no case that they had any reason to falsely implicate the appellant. They were present on 30.4.2017 from 6:30 p.m. in and around the scene of the crime. Probably because they were also in an inebriated state, they were not in a position to assess whether the deceased required prompt medical attention. As the deceased used to spend the night in the veranda of the Triveni Supermarket, they did not deem it necessary to shift him to any other place. We have no reason to doubt the credibility of the evidence given by PWs 2 and 3. 31. Insofar as the recovery of MO1 effected under Section 27 of the Indian Evidence Act, 1872, at the instance of the accused is concerned, we have serious reservations about the same. Both PWs 2 and 3 in their evidence had stated that after the infliction of the injury, the appellant had walked away with the stick towards the Fire House Garage on the east. However, the recovery of the weapon in terms of Ext.P4(a) disclosure statement has been effected from a place about 6 meters to the northeast of the north eastern corner of the shed. Furthermore, as rightly pointed out by the learned counsel, there is no case for the prosecution that the appellant made any attempt to conceal the weapon. However, the recovery of the weapon in terms of Ext.P4(a) disclosure statement has been effected from a place about 6 meters to the northeast of the north eastern corner of the shed. Furthermore, as rightly pointed out by the learned counsel, there is no case for the prosecution that the appellant made any attempt to conceal the weapon. The weapon was recovered from an open place accessible to all. When the Investigating Officer was examined, he merely stated that the accused, while in custody, furnished a statement and nothing more. None of the prosecution witnesses deposed the exact statement said to have been made by the appellant herein, which ultimately led to the discovery of a fact relevant under Section 27 of the Indian Evidence Act, 1872. In his evidence, he has not proved the contents of the recovery mahazar. He has also not mentioned that he had procured the presence of independent witnesses from the locality to witness the search. The principles of law laid down by the Hon’ble Supreme Court in Ramanand @ Nandlal Bharti v. State of Uttar Pradesh , [2022 SCC OnLine SC 2248] , pertaining to the preconditions that must be satisfied for a recovery to be admissible under Section 27 of the Indian Evidence Act, have not been scrupulously followed in the present case. 32. Having found that the infliction of injuries by the appellant has been proved by the prosecution, we shall now come to the contention advanced by the learned counsel that if it is taken that the occurrence stands established, the offence, if any, proved against the appellant would not fall within the purview of Section 302 of the IPC . According to her, only an offence under Section 324 of the IPC was made out. PW15, the Doctor who conducted the autopsy, stated that the fatal injury was Injury No. 5, and it is independently sufficient in the ordinary course of nature to cause death and that the injuries on the arms could be caused while warding off the blows. PW2, in his testimony, stated that he saw the accused beating the deceased on the chest and shoulder. He further stated that when the accused attempted to strike the deceased on the head, PW3 intervened and told him not to do so. 33. PW2, in his testimony, stated that he saw the accused beating the deceased on the chest and shoulder. He further stated that when the accused attempted to strike the deceased on the head, PW3 intervened and told him not to do so. 33. Going by the definition of ‘Culpable Homicide’ as defined under Section 299 of the IPC and ‘Murder’ as defined under Section 300 of the IPC , one may note that there is no radical difference between them. The cause of death is common to both offences. There must necessarily be criminal intention or knowledge in both cases. The act which caused the murder is the act of the offender in each case. The true difference lies in the degree. In the case of murder, there will be the presence of a greater intention or knowledge of the fatal result than in the case of culpable homicide. This difference is attempted to be emphasised by the four clauses describing the offence under Section 300 of the IPC . 34. In a case under Section 302 of the IPC , what Courts have to see is whether the injury was caused with the intention of causing death or whether the injuries were sufficient in the ordinary course of nature to cause death or to cause such bodily injuries as the accused know to be likely to cause death although death was ultimately due to supervention or some other cause. It is not necessary for the application of Clause (3) of Section 300 of the IPC that the injury must be such as would make it impossible for the injured to escape death. All that is required is that the injury intended must be such as would, in the ordinary course of nature, be sufficient to cause death. Obviously, there is a fine distinction between "a bodily injury likely to cause death" and "a bodily injury sufficient in the ordinary course of nature to cause death". 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. It is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. 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. 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 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. (See also Thangaiya v. State of Tamil Nadu , [ (2005) 9 SCC 650 )] ). 35. There may be a case in which even though the injury was sufficient in the ordinary course of nature to cause death, the injured may escape death, but if he dies as a result of such an injury, the offence would be covered by Clause (3) of Section 300 of the IPC and be murder. If, however, the injury inflicted is of such a nature that it is only likely to cause death and would not in the ordinary course of nature be sufficient to cause death, they can only be attributed with the knowledge that the infliction of bodily injury was likely to cause death. 36. In Jagriti Devi v. State Of Himachal Pradesh , [2009 AIR SC 2869] , it was held by the Apex Court that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. 37. On a careful evaluation of the facts of the instant case in the light of the principles above, it can be seen that the accused and the deceased were friends and co-workers, and had gone to work together on the date of the incident. After completing their work, they consumed alcohol together. It was thereafter that an altercation broke out between them regarding the sharing of liquor. After completing their work, they consumed alcohol together. It was thereafter that an altercation broke out between them regarding the sharing of liquor. The weapon used by the appellant was a piece of firewood, which could only have been picked up from the market premises. This indicates that the altercation turned into violence at the spur of the moment rather than premeditation. Moreover, even as per the prosecution version, when PW3 intervened during the assault, the appellant immediately stopped beating him and left the scene with the stick. There is no material to suggest that the assault was preplanned or that the appellant had any prior intent to cause grievous harm or to murder the deceased. The quarrel appears to have arisen from a relatively trivial issue, and the assault itself lacks the indications of calculated violence. The injuries, apart from injury No. 5, which ultimately proved fatal, were limited to contusions on the hands and face. Having carefully considered the nature of the weapon, the circumstances of the altercation, and the sequence of events, we are of the considered view that injury No. 5 was not intended to be fatal and was likely inflicted in the heat of the moment, possibly even accidentally. There is no evidence to indicate that the appellant specifically aimed to cause a fatal injury to the skull, nor that the other injuries were sufficient, in the ordinary course of nature, to cause death. At the most, it can be said that the appellant had the knowledge that his act was likely to cause an injury that could result in death. Therefore, in view of the facts and circumstances of the case, and the role attributed to the appellant, we are of the opinion that the offence committed does not fall under Section 302 r/w. Section 300 “thirdly” of the Indian Penal Code, but rather under Section 304 Part II of the IPC . Therefore, in view of the facts and circumstances of the case, and the role attributed to the appellant, we are of the opinion that the offence committed does not fall under Section 302 r/w. Section 300 “thirdly” of the Indian Penal Code, but rather under Section 304 Part II of the IPC . Conclusion: In the result, we allow this appeal but only to the extent that instead of Section 302 of the IPC , the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part - II of the IPC and sentenced to undergo Rigorous Imprisonment for seven (7) years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, to undergo Rigorous Imprisonment for three months. The appeal is disposed of in the above terms in modification of the judgment passed by the learned Sessions Judge.