JUDGMENT : Rajnish Kumar, J. (1) Heard Sri Avinash Kumar Srivastava, learned counsel for the appellant No.1, Sri Rajesh Kumar Awasthi, learned counsel for the appellant No.2, Sri Pawan Kumar Mishra, learned A.G.A. for the State and Sri Ravi Kant Pandey, learned counsel for the complainant. (2) The instant Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (here-in-after referred as Cr.P.C.) hasbeen filed against the judgment and order dated 03.08.2004 passed by learned Sessions Judge, Ambedkar Nagar in Sessions Trial No.21/2000; State Vs. Phool Chandra and Others, arsing out of Case Crime No.311/1999, under Sections 302, 504 and 506 of the Indian Penal Code, 1860 (here-in-after referred as I.P.C.), Police Station Baskhari, District Ambedkar Nagar, by means of which, the appellants have been convicted under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced under Section 302 I.P.C. for life imprisonment alongwith fine of Rs.10,000/- each and in default of payment of fine, to undergo additional six months' rigorous imprisonment and under Section 506 I.P.C. to pay fine of Rs.5,000/- each and in default of payment of fine, to undergo three months' rigorous imprisonment and all the appellants have been acquitted from the charge of Section 504 I.P.C. (3) The complainant; Ashok Kumar Mishra R/o Village Hajiyapur, Police Station Baskhari, District Ambedkar Nagar submitted a written report at Police Station Baskhari, District Ambedkar Nagar on 09.12.1999, which is extracted below:- (4) On the basis of aforesaid written report submitted by the complainant, F.I.R. under Section 302, 504 and 506 I.P.C. was registered vide Case Crime No.311/1999 at 14:30 hours on 09.12.1999. The investigation was started by the Investigating Officer immediately after lodging of F.I.R. He recorded statement of complainant in Police Station and thereafter he reached on the spot alongwith the complainant. He prepared inquest report and sent the dead body for post mortem. The Investigating Officer also prepared the site plan, collected blood stained mud and plain mud from the spot and on the recovery memo, he took signatures of the witnesses. The spade (kudal) and the broken wooden handle (beint) of spade, having blood stains on them, was lying near the dead body, which was also taken into possession by the Investigating Officer and the recovery memo was signed by witnesses also. After completing the investigation, charge sheet was filed. The F.S.L. report was also placed on record, when the same was received. After completing the investigation, charge sheet was filed. The F.S.L. report was also placed on record, when the same was received. (5) The learned Magistrate took cognizance on the charge sheet and committed the case to Court of Session. The charges under Section 302 I.P.C. read with Section 34, 504 and 506 I.P.C. were framed against the appellants. The appellants denied the charge and prayed for trial, therefore, the trial proceeded. (6) In order to prove its case, eight witnesses were examined by the prosecution i.e. Ashok Kumar as P.W.-1, Dev Mani Mishra as P.W.-2, Constable Suresh Narayan Tiwari as P.W.-3, Arvind Pratap Singh as P.W.-4, Jiya Lal Yadav as P.W.-5, Jairam as P.W.-6, Dr. Major V.N. Singh as P.W.-7 and Ram Naresh Yadav as P.W.-8. The prosecution also placed on record and proved the documentary evidences, which were exhibited. (7) After conclusion of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. were recorded, wherein they admitted that two and a quarter biswa of land on the eastern side of their house is of Dev Mani. They also admitted that the said land is undivided. It has also been admitted that their chak is in the north of chak of Dev Mani, in which potato was sown in the western half part and eastern half part was vacant and in some parts, sugarcane was planted. It has also been admitted that in the eastern half chak of Dev Mani, there is a tube well and the said chak is in two parts but they denied the remaining evidence and stated that the false evidences have been adduced. Rohini Kumar Pathak, Lekhpal was examined in defence as D.W.-1, who produced the evidence regarding possession of the chak of the complainant and the accused's and their numbers. (8) After considering the arguments advanced by learned counsel for the parties and evidence as well as material on record, the impugned judgment and order of conviction and sentence has been passed by the learned trial Court. Hence the present appeal has been filed. (9) During pendency of the present appeal, the appellant No.3; Ram Badan died, therefore, the appeal abated on his behalf and it was recorded in the order dated 11.01.2019. Hence this appeal survives on behalf of the appellant No.1; Phool Chandra and appellant No.2; Harish Chandra both sons of Ram Badan. Hence the present appeal has been filed. (9) During pendency of the present appeal, the appellant No.3; Ram Badan died, therefore, the appeal abated on his behalf and it was recorded in the order dated 11.01.2019. Hence this appeal survives on behalf of the appellant No.1; Phool Chandra and appellant No.2; Harish Chandra both sons of Ram Badan. (10) Learned counsel for the appellants submitted that the appellants have been convicted and sentenced by means of the impugned judgment and order without considering the evidence and material on record. He further submitted that the time and place of incident is doubtful and the conviction is based solely on the related and interested witnesses. He further submitted that an independent witness, who was present at the place of incident, has not been examined. He further submitted that the injuries are not corroborated because the Kudal is a sharp edged weapon and no injury of the sharp edged weapon has been found and blood stained mud was not recovered from the spot. The motive is also not proved. The incident has been shown to have happened on a trivial issue, on account of which, the offence under Section 302 I.P.C. cannot be committed. He further submitted that even if the case of the prosecution is taken to be correct and the evidence adduced before the learned trial Court is considered giving due weight to the same, at the most the offence under Section 304 Part II I.P.C. can be said to have been committed as it was not pre-meditated and may be on account of sudden quarrel and provocation and if this Court comes to the conclusion that the offence has been committed by the appellants, then the same is liable to be converted into Section 304 Part II I.P.C. and the sentence is liable to be reduced accordingly. (11) On the basis of above, learned counsel for the appellants submitted that the impugned judgment and order is not sustainable in the eyes of law and the same is liable to be set aside. (12) Learned A.G.A. vehemently opposed the submissions of learned counsel for the appellants. He submitted that the F.I.R. has been lodged promptly and delay, if any, has been explained. (12) Learned A.G.A. vehemently opposed the submissions of learned counsel for the appellants. He submitted that the F.I.R. has been lodged promptly and delay, if any, has been explained. He further submitted that the contention of learned counsel for the appellants, that the time and place of incident is doubtful, is misconceived and not tenable because the F.I.R. was lodged promptly and immediately after lodging of the F.I.R., the Investigating Officer went with the complainant to the place of incident and found the deceased lying in the field and also recovered the weapon of assault etc. He further submitted that presence of the appellants and a tractor has also been shown in the site plan. Tube well and the mound of drainage on the northern side of field of complainant's side, which was being broken, on account of which, the incident had occurred, has also been shown in the site plan. (13) He further submitted that there is no contradiction in the evidences of P.W.-1 and P.W.-2, who are the eye witnesses and their evidences have also been corroborated by the evidence of P.W.-4. He further submitted that P.W.-5 and P.W.-8 have proved the material collected from the spot and also as to how he made the investigation and no cross-examination has been done from him. (14) On the basis of above, learned A.G.A. submitted that the contention of learned counsel for the appellants are liable to be repelled as the impugned judgment and order has rightly been passed in accordance with law and the appellants have been convicted and sentenced. There is no illegality or error in the impugned judgment and order. The appeal has been filed on misconceived and baseless grounds, which is liable to be dismissed. (15) We have heard learned counsel for the parties and perused the records. (16) A written report was submitted by the complainant, Ashok Kumar Mishra on 09.12.1999 at Police Station Baskhari, District Ambedkar Nagar, intimating therein that on the said date, he, his father and his brother, namely, Ajai Kumar were sowing wheat in their fields and a labour of his village, namely, Ram Dular was also present with them. The field of Phool Chandra, Harish Chandra and Ram Badan is adjacent to their field and they were also working on their field at that time. The field of Phool Chandra, Harish Chandra and Ram Badan is adjacent to their field and they were also working on their field at that time. Phool Chandra started cutting their northern mound (????) of drainage, therefore, the brother of complainant, Ajai Kumar forbade him for doing so, on which, Ram Badan exhorted and Phool Chandra and Harish Chandra, hurling abuses shouted to kill him and all the three broke on him. Phool Chandra had beaten him with kudal at 01:00 in the afternoon, on account of which, he fell down and cried. When the complainant etc. rushed, the Harish Chandra, having country made pistol in his hand, threatened them of killing and opened fire and ran behind them. The complainant etc. raising alarm ran towards the house and on hearing the alarm, many villagers ran but all the three accused fled away towards the North. It was also stated in the written complaint that his brother died on the spot. On the basis of aforesaid written complaint, the F.I.R. was lodged at 02:30 PM. (17) It has been stated by P.W.-1 in his evidence that after 20-25 minutes of the incident, his father asked him to lodge a report. In the cross- examination, he stated that it was said by him at the field as they were weeping for 10-15 minutes. He further stated in the cross-examination that he had not written report at the house on account of hurry and anxiety and purchased a paper at a crossing before the Police Station and got written the report at a shop of cycle. Thereafter, he went to the Police Station, to lodge the F.I.R., on foot with cycle. The F.I.R. of incident at 01:00 PM was lodged at 02:30 PM at Police Station, which was at a distance of about 04 Km. Thus, the report has been lodged promptly and the delay, if any, has been explained by the complainant. (18) P.W.-1 stated that after lodging of the F.I.R., his statement was recorded at the Police Station and the Inspector went alongwith him at the spot of incident from the Police Station. Constable Suresh Narayan Tiwari, who appeared as P.W.-3, has stated in his evidence that the dead body for post mortem was received by him from the place of incident alongwith the inquest report etc. Constable Suresh Narayan Tiwari, who appeared as P.W.-3, has stated in his evidence that the dead body for post mortem was received by him from the place of incident alongwith the inquest report etc. In cross-examination, he stated that he went to the spot at 02:30 in the afternoon and when he went, Inspector Sri Ram Naresh Yadav and other constables were with him. Ram Naresh Yadav appeared as P.W.-8, who stated in his evidence that the F.I.R. was written by H.M. Mahadev Chauhan at Chik No.68 at 14:30 hours. He further stated that investigation was received by him on 09.12.1999 and he recorded the statement of complainant; Ashok Kumar in the Police Station, thereafter, he went to the spot in Village Hajiyapur alongwith the complainant, where he found the dead body lying in the field and spade and it's handle having blood on them, was lying near dead body. He, after inspecting the dead body, prepared the inquest report and other relevant documents. The inquest report; Ex. Ka-2 shows the distance of the Police Station from the spot as 04 Km. and the time of lodging of F.I.R. as 14:30 hours, start time of investigation as 15:10 hours. Thus, the inquest report indicates that immediately after lodging of the F.I.R., the Investigating Officer went on the spot and prepared the inquest report. (19) The condition of the dead body has been mentioned in the inquest report, which shows that there was a lot of bleeding from the head. The Investigating Officer, being in agreement with the opinion of the witnesses that the deceased has died on account of injuries suffered by him in the head and the post mortem may be got done, sent the dead body for post mortem. The father of the deceased, Dev Mani Mishra, who appeared as P.W.-2, has proved that he signed the inquest report, which was prepared before him as well as Jiya lal Yadav, the Pradhan, who appeared as P.W.-5 and he has also signed the inquest report and proved the signatures on the same. An independent witness, Arvind Pratap Singh, examined as P.W.-4, has also proved the incident and place of incident. Nothing could be extracted from them in cross- examination, which may create any doubt about their testimony in this regard. Thus, the place of incident has also been proved, which is corroborated by the site plan also. An independent witness, Arvind Pratap Singh, examined as P.W.-4, has also proved the incident and place of incident. Nothing could be extracted from them in cross- examination, which may create any doubt about their testimony in this regard. Thus, the place of incident has also been proved, which is corroborated by the site plan also. (20) After inquest, the dead body was sent for post mortem. The post mortem report is Ex. Ka-5. According to the post mortem report, five injuries were found, which are as follows:- "i) Lacerated wound 11 cm x 3 cm x bone deep on left side of head 10 cm above Lt. ear underlying bone fractured. ii) Traumatic swelling 9 cm x 6 cm on left side of head 2 cm above lt. ear. iii) Contusion 2 cm x 1 cm on Rt. Shoulder. iv) Lacerated wound 1.5 cm x 1 cm x0.5 cm on submandibular region 3 cm below chin. v) Abrasion 5 cm x 0.5 cm on dorsal aspect of lt. forearm 3 cm above Lt. wrist joint." It is further noticed that brain has been shown as 'lacerated in relation to injury' and membranes have been shows as 'lacerated and congested in relation to injury'. Stomach and its contents were shows as 'partially digested food 100 gms'. The cause of death has been shown as shock and hemorrhage as a result of ante mortem injuries. (21) The post mortem report and the injuries have been proved by the P.W.-7; Dr. Major V. N. Singh, Medical Officer, who conducted the post mortem. He has stated in his cross-examination that the deceased had died in the winter season. He has also stated that ante mortem injuries may have been caused by two different thick head ( blunt ) weapons and the abrasion could have been caused on account of rubbing with rough surface. He has also stated that the death may have been caused at about 01:00 PM on 09.12.1999. However, in the cross-examination, he has stated that there may be difference of three hours' time on both the sides in the time of death. (22) P.W-1 and P.W.-2 have stated that they went to the field alongwith others at about 08:00 in the morning and around 10:00 AM to 11:00 AM, they had taken breakfast, which had come from the house. Partially digested food of 100 gms. (22) P.W-1 and P.W.-2 have stated that they went to the field alongwith others at about 08:00 in the morning and around 10:00 AM to 11:00 AM, they had taken breakfast, which had come from the house. Partially digested food of 100 gms. has been found in the stomach of the deceased, therefore, the contention of learned counsel for the appellants that since digested food was found in the stomach and the doctor has stated that there may be three hours difference on either side, the death may have been caused earlier and at some other place is wrong and misconceived and not tenable as it is in consonance with the time of death shown by the witnesses, inquest report, post mortem report and the evidence of Doctor. Merely because the doctor has stated in cross-examination that there may be three hours difference on either side, it cannot be said that the time of death was earlier, when it is proved by all other evidence including post mortem. (23) One of the arguments of learned counsel for the appellants was that P.W.-1 has stated that when the accuseds persons ran away from the spot and they went near the dead body and touched, it was not warm, therefore, the death must have occurred much prior to that time, whereas the death had occurred in the winters and in open field, therefore, it cannot be said that the death may have been caused earlier. Even otherwise, as per inquest, there was bleeding from the head when the inquest was made and P.W.-8; Investigating Officer has proved the same and no cross-examination has been made from him by the defence. The Investigating Officer has also proved the recovery of the blood stained mud and plain mud from the spot and the blood stained kudal of iron lying near the dead body and also wooden beint, which have been exhibited as Exhibit Ka-3 and Ka-4. The Investigating Officer has also proved the recovery of the blood stained mud and plain mud from the spot and the blood stained kudal of iron lying near the dead body and also wooden beint, which have been exhibited as Exhibit Ka-3 and Ka-4. (24) An argument was advanced on behalf of the appellants that they had not shown in the F.I.R. that Phool Chandra has assaulted from the back (pasa) of kudal but in the evidence of P.W.-1 and P.W.-2, they have stated that the Phool Chandra had assaulted with the back of kudal, which is used to be an hard object and the injury No.1 was not possible from the same, whereas the Doctor, who appeared as P.W.-7, has stated that the injuries may have been caused by thick head ( blunt ) weapon. No contrary evidence has been adduced and it is settled law that F.I.R. is not an encyclopedia of events, therefore, contention of learned counsel for the appellants in this regard is also misconceived and not tenable. (25) The F.S.L. report i.e. Ex. Ka-16 indicates that human blood was found on all the articles i.e. kurta, baniyan and lungi. However, disintegrated blood was found on the blood stained mud, plain mud, underwear and janeu, therefore, the origin could not be determined. Thus, contention of learned counsel for the appellants that the blood stained mud was not recovered from the spot is not tenable. (26) The F.I.R. was lodged alleging therein that while the complainant and his family members were sowing wheat in their field, the accused persons were working in their field adjacent to the field of the complaint's side. The appellant, Phool Chandra started breaking the northern mound of drainage of their field on the northern side, which was aside the field and the vacant field of the appellants. When the brother of the complainant; Ajai Kumar asked him not to do the same, Ram Badan exhorted and Harish Chandra and Phool Chandra hurling abuses, stated that kill him and all the three attacked on him and Phool Chandra assaulted in his head by the kudal. It has come in the evidence that the Phool Chandra was assaulting from the back side and remaining two were on the front side. The site plan i.e. Ex. It has come in the evidence that the Phool Chandra was assaulting from the back side and remaining two were on the front side. The site plan i.e. Ex. Ka-14 indicates the drainage aside the field of the complainant and the deceased's side and the vacant field of the accuseds in northern side. A tube well has also been shown in the site plan in the center of the field of the complainant's side in the eastern side. The places of the deceased, accuseds, witnesses and the weapon of assault and tractor have also been shown in the site plan. It has also been stated by the P.W.-1 and the P.W.-2 that the accused persons ran away towards the northern side from their field, which has also been shown in the site plan. The site plan was prepared on pointing of the complainant and it has also been proved by the Investigating Officer. The inquest report also shows the condition of the dead body and the place of weapon of assault, where it was found, which is in consonance with the site plan and evidence. (27) In view of above, the incident, time and place of incident, weapon of assault, which has also been recovered, have been proved. The ante- mortem injuries and time of injuries have been proved, which have corroborated the prosecution case. Thus, the prosecution has proved it's case, therefore, merely because a witness, who was present at the spot, has not been produced, it can not be said that there is any dent in the prosecution case. Even otherwise, an independent witness has been examined, who supported the case of prosecution and his testimony could not be doubted. Thus, Yudhishtir Vs. The State of Madhya Pradesh; 1971 (3) SCC 436 , relied by learned counsel for the appellant No.2 is not applicable on the facts and circumstances of the case. (28) Lastly, learned counsel for the appellants had argued that even if the prosecution case is found proved by this Court, it was a case of sudden quarrel and provocation and would fall under Section 304 Part-II I.P.C. and not under Section 302 I.P.C. as it was not premeditated murder, therefore, the conviction and sentence under Section 302 I.P.C. is not sustainable and the same is liable to be converted under Section 304 Part-II I.P.C. with lesser sentence. (29) The F.I.R. discloses that while the complainant and his family members were working in their field, the accused persons and their family members were also working in their field, which was adjacent to the field of the complainant's side. In the meantime, Phool Chandra started cutting northern mound of drainage aside the complainant's field to merge in his field, which was in between their field, therefore, the brother of the complainant Ajai Kumar, asked him not to do the same, on which, Ram Badan exhorted and Harish Chandra and Phool Chandra hurling abuses, said to kill him today, on which, all the three broke on him and Phool Chandra hit kudal on the head of the deceased; Ajai Kumar, on account of which, he fell down and raised voice, on which, the complainant's side rushed to save him but Harish Chandra, threatening them, opened fire from the country made pistol and on the noise, certain people of the village came but the the accused persons ran away. P.W.-1 and P.W.-2 have stated the same in their evidence. They have also stated that they had heard ^^ckrk dgh** i.e. quarrel on this issue between them. Thereafter, the assault was made. Thus, the assault was made on account of sudden quarrel by the kudal, which is an agricultural instrument. Admittedly, both the sides were working in the field, therefore, they must have the same, therefore, it is apparent that the incident occurred on account of sudden quarrel due to breaking of mound of drainage by the accused persons in heat of passion, therefore, it cannot be said that it was pre-meditated. Even if there was any enmity between the parties, though it could not be proved. (30) In view of above, it is a case of an incident occurred in broad day light, in which, the deceased had suffered serious injuries, on account of which he succumbed to death. Since the motive could not be proved and it was on account of sudden quarrel in the heat of passion, therefore, it may be a case in which the intention to kill may not be there even if the accuseds knew that the deceased may die. Since the motive could not be proved and it was on account of sudden quarrel in the heat of passion, therefore, it may be a case in which the intention to kill may not be there even if the accuseds knew that the deceased may die. If the motive and intention to kill is not proved and apparently the case was on account of a quarrel on spot, then it is required to be considered as to whether the offence would fall under the category of murder or not otherwise it may be a case of culpable homicide not amounting to murder. Sections 299, 300 and 304 I.P.C., which are relevant for the purpose, are extracted below:- "299. Culpable homicide.- 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. 300. Murder.- 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. Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First. Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly .- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation. - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2. - Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3. - Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Exception 5. - 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. 304. Punishment for culpable homicide not amounting to murder. Exception 5. - 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. 304. Punishment for culpable homicide not amounting to murder. - Whoever commits culpable homicide not amounting to murder, shall be punished with 1 [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act 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. (31) In view of above, to bring a case under Section 300 I.P.C., firstly it must be established that a bodily injury is present; secondly the nature of the injury must be proved and thirdly it must be proved that there was an intention to inflict that particular bodily injury and it was not accidental or unintentional or that some other kind of injury was intended and fourthly it must be proved that injury inflicted on the deceased is sufficient to cause death in the ordinary course of nature. If all these elements are established by the prosecution, the offence would be murder under Section 300 I.P.C. and case would fall under Section 302 I.P.C., which is extracted below:- " 302. Punishment for murder. —Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine." (32) Exception 4 to Section 300 I.P.C. provides that culpable homicide is not murder, if it is committed without pre-meditation in a sudden fight in the heat of passion upon a sudden quarrel and without undue advantage by offender and acting in a cruel and unusual manner. The Hon'ble Supreme Court, in the case of Mahesh Balmiki alias Munna Vs. State of M.P.; (2000) 1 SCC 319 , relied by learned A.G.A., has explained it in paragraph 7, which is extracted below:- " 7. The Hon'ble Supreme Court, in the case of Mahesh Balmiki alias Munna Vs. State of M.P.; (2000) 1 SCC 319 , relied by learned A.G.A., has explained it in paragraph 7, which is extracted below:- " 7. Now Exception 4 to Section 300 I.P.C, is in the following terms : "Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault." The requirements of this exception are : (a) without premeditation in a sudden fight; (b) in the heat of passion upon a sudden quarrel; (c) the offender has not taken undue advantage; and (d) the offender has not acted in a cruel or unusual manner. Where these requirements are satisfied, culpable homicide would not be murder." (33) In the aforesaid case of Mahesh Balmiki alias Munna (Supra), the Hon'ble Supreme Court further held that there is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The paragraph 9 is extracted below:- " 9 . Adverting to the contention of a single blow, it may be pointed out that there is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death." (34) The Hon'ble Supreme Court, in the case of Litta Singh and Another Vs. State of Rajasthan; (2015) 15 SCC 327 , has held that the intention to cause death with the knowledge that the death will probably be caused, is an important consideration for coming to conclusion that death is a murder or culpable homicide not amounting to murder. The relevant paragraph 24 is extracted below:- " 24. It is well settled proposition of law that the intention to cause death with the knowledge that the death will probably be caused, is very important consideration for coming to the conclusion that death is indeed a murder with intention to cause death or the knowledge that death will probably be caused. From the testimonies of the witnesses, it does not reveal that the accused persons intended to cause death and with that intention they started inflicting injuries on the body of the deceased. Even more important aspect is that while they were beating the deceased the witnesses reached the place and shouted whereupon the accused persons immediately ran away instead of inflicting more injuries with intent to kill the deceased. " (35) The Hon'ble Supreme Court, in the case of Ajmal Vs. Even more important aspect is that while they were beating the deceased the witnesses reached the place and shouted whereupon the accused persons immediately ran away instead of inflicting more injuries with intent to kill the deceased. " (35) The Hon'ble Supreme Court, in the case of Ajmal Vs. State of Kerala; (2022) 9 SCC 766 , considered distinctive features and consideration relevant for determining a culpable homicide amounting to murder and distinguishing it from the culpable homicide not amounting to murder and relevant consideration by the Hon'ble Supreme Court in different cases. The relevant paragraph 17 is extracted below:- "17. The distinctive features and the considerations relevant for determining a culpable homicide amounting to murder and distinguishing it from the culpable homicide not amounting to murder has been a matter of debate in large number of cases. Instead of referring to several decisions on the point reference is being made to a recent decision in Mohd. Rafiq v. State of M.P. [Mohd. Rafiq v. State of M.P., (2021) 10 SCC 706 : (2022) 1 SCC (Cri) 116] , wherein Ravindra Bhatt, J. speaking for the Bench, relied upon two previous judgments [Ed. : The reference appears to be to State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382 : 1976 SCC (Cri) 659; Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] dealing with the issue as narrated in paras 11, 12 and 13 of the Report which are reproduced below : (SCC pp. 711-15) “11. The question of whether in a given case, a homicide is murder punishable under Section 302IPC, or culpable homicide, of either description, punishable under Section 304IPC has engaged the attention of courts in this country for over one-and-a-half century, since the enactment of IPC; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this Court. The use of the term “likely” in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the accused may or may not have killed the person. Section 300IPC which defines “murder”, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. Section 300IPC which defines “murder”, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes. 12. The decision in State of A.P. v. Rayavarapu Punnayya [State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382 : 1976 SCC (Cri) 659] notes the important distinction between the two provisions, and their differing, but subtle distinction. The Court pertinently pointed out that : (SCC p. 386, paras 12-13) ‘12. In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 13. The academic distinction between “murder” and “culpable homicide not amounting to murder” has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300.’ 13. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300.’ 13. The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju v. State of A.P. [Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] This Court observed that : (SCC pp. 457-58, para 29) ‘29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters — plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.’ ”" (36) The Hon'ble Supreme Court, in the case of Pulicherla Nagarjun Vs. State of Andhra Pradesh; (2006) 11 SCC 444 , considered in the aforesaid case by the Hon'ble Supreme Court, has observed as to what is to be considered for deciding a case as to whether it falls under Section 302 or 304 Part-I or 304 Part-II and also the intention to cause death can be gathered from a combination of circumstances. (37) The Hon'ble Supreme Court, in the case of Suresh Chandra Bahri Vs. State of Bihar and Others; 1995 Supp(1) SCC 80 , has held that sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence may be adduced. (37) The Hon'ble Supreme Court, in the case of Suresh Chandra Bahri Vs. State of Bihar and Others; 1995 Supp(1) SCC 80 , has held that sometimes motive plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence may be adduced. However, it further noticed that in a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty of the offence charged with. But the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. Therefore, motive may only be a relevant factor to form an opinion as to whether in a given circumstances there was an intention to kill on account of which the case may fall under Section 302 I.P.C. (38) The Hon'ble Supreme Court, in the case of Shahid Ali Vs. State of Uttar Pradesh; (2024) 14 SCC 243 , has set aside the conviction and sentence in Section 302 I.P.C. and convicted and sentenced in Section 304 Part-II I.P.C., in which death has occurred in celebratory firing in marriage. The relevant paragraph 20 is extracted below:- " 20. In this context, keeping in view the totality of circumstances of the case i.e. especially the fact that: (i) there was no previous enmity between the deceased; (ii) no intention may be attributed to the appellant as may be culled out from the record to cause death of the deceased; and (iii) position of law enunciated by this Court in Kunwar Pal [Kunwar Pal v. State of Uttarakhand, (2014) 12 SCC 434 : (2014) 6 SCC (Cri) 778] and subsequently, followed in Bhagwan Singh [Bhagwan Singh v. State of Uttarakhand, (2020) 14 SCC 184 : (2020) 4 SCC (Cri) 730] , we find that the appellant is guilty of commission of “culpable homicide” within the meaning of Section 299IPC i.e. punishable under Section 304 Part II IPC." (39) The Hon'ble Supreme Court, in the case of Jagriti Devi Vs. State of Himachal Pradesh; (2009) 14 SCC 771 , considering that there was an altercation preceding the incident of murder in which accused-appellant was insulted by the deceased and by doing so the deceased provoked the accused-appellant, therefore, the deceased also took out the 'Khukri', which was under the pillow, with the intention of assaulting the appellant-accused, which was used in the commission of offence and was being kept by the deceased under her pillow while she was sleeping in the veranda outside the house, therefore, there was no intention on the part of the appellant-accused to kill the deceased and held that the case cannot be said to be falling under Section 302 I.P.C. but under Section 304 Part-II I.P.C. The Hon'ble Supreme Court further observed that Section 304 Part-II I.P.C. 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. (40) The Hon'ble Supreme Court has taken similar view in Kariman Vs. State of Chhatisgarh; (2024) 13 SCC 136 . The relevant paragraph 19 is extracted below:- " 19 . The accused can at best be attributed with the knowledge that the injury of the nature which he inflicted upon Dasmet Bai (deceased) was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. Thus, the act of the accused is covered under Part II of Section 304 IPC which is extracted hereinbelow for ready reference:— “304. Thus, the act of the accused is covered under Part II of Section 304 IPC which is extracted hereinbelow for ready reference:— “304. Punishment for culpable homicide not amounting to murder.— …..or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act 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 .” (41) Coming back to the facts of the case in hand, it is proved that there was a sudden quarrel on account of breaking of northern mound of drainage of the complainant's side between the fields of complainant's side and the appellants' side and incident occurred in heat of passion, wherein the appellant; Phool Chandra hit the deceased by spade and, thereafter, from the broken handle of the spade, which was in the field as both the sides were working in the fields and the deceased suffered ante mortem injuries, on account of which, he died on the spot. The blood stained spade (kudal) and it's handle (beint) alongwith blood stained mud was recovered from the spot. Thus, this Court is of the view that it cannot be said to be a case falling under Section 302 I.P.C. but under Section 304 Part-II I.P.C., therefore, the conviction of the appellants under Section 302 I.P.C. read with Section 34 I.P.C. and sentence under Section 302 I.P.C. is not sustainable and it is liable to be converted under Section 304 Part-II I.P.C. read with Section 34 I.P.C. and sentence under Section 304 Part-II I.P.C. (42) The appellants were enlarged on bail in the year 2004 and they were also on bail during trial. The incident had taken place about 26 years back and both the appellants are alive. They must be of about 55 years of age and nothing has been brought before this Court to show that they have misused the liberty granted by this Court. Section 304 Part-II I.P.C. provides imprisonment for either description, which may extend to ten years, or with fine, or with both. This Court is of the view that the conviction is to be made under Section 304 Part-II I.P.C., therefore, no purpose would be served by sending the appellants in jail again. Section 304 Part-II I.P.C. provides imprisonment for either description, which may extend to ten years, or with fine, or with both. This Court is of the view that the conviction is to be made under Section 304 Part-II I.P.C., therefore, no purpose would be served by sending the appellants in jail again. The Hon'ble Supreme Court, in the case of State of Madhya Pradesh Vs. Shyamlal and Others; (2025) 4 SCC 616 , declined to interfere in the judgment of High Court and the sentence of undergone under Section 304 I.P.C. read with Section 149 I.P.C., as the substantial amount of Rs.16,000/- each was imposed by the High Court by way of fine and the incident had taken place about 28 years back, when the High Court had passed the said order. (43) In view of above and considering the over all facts and circumstances of the case, the conviction and sentence of the appellant No.1-Phool Chandra and appellant No.2-Harish Chandra under Section 302 I.P.C. is set-aside. The appellant No.1-Phool Chandra and appellant No.2- Harish Chandra are convicted for an offence under Section 304 Part-II I.P.C. read with Section 34 of I.P.C. and they are sentenced equivalent to the period already undergone alongwith fine of Rs.50,000/- each. In case of default of payment of fine, appellant Nos.1 and 2 shall have to undergo one year’s rigorous imprisonment. The conviction and sentence awarded to the appellants No. 1 and 2 under Section 506 I.P.C. remains unaltered and are confirmed. (44) Out of the aforesaid fine as well as the fine under Section 506 I.P.C. awarded by the learned trial Court, Rs.1,00,000/- (Rupees One Lakh) shall be paid to the legal heirs of the deceased. (45) With the aforesaid, the appeal is partly allowed (46) Let the original record of trial Court and a copy of this judgment be transmitted to the Court concerned for information and compliance forthwith.