Mohd. Azhar Husain Idrisi, J.

1. Heard Sri Gopal Swaroop Chaturvedi, Senior Advocate assisted by Sri Alok Ranjan Mishra, learned counsel for the appellants, Sri Jitendra Kumar Jaiswal, learned AGA for the State and perused the record.

2. The present criminal appeal has been filed against the judgment and order dated 10.2.1983 passed by 4th Addl. Sessions Judge, Bulandshahr in S.T. No. 412 of 1982 (State Vs. Manvir Singh and others) and S.T. No. 1 of 1983 (State vs. Smt. Brijesh) arising out of Case Crime No. 21 of 1982, P.S. Jahangirpur Khurja, District- Bulandshahr, by which the appellant Nos. 1, 2 and 3 have been convicted for the offence under Section 302/34 IPC and awarded the sentence of life imprisonment and also under Section 307/34 IPC and awarded the sentence of 5 years' rigorous imprisonment and further appellant No. 4 has been convicted under Section 323 IPC and directed to pay a fine of Rs. 500/- and in default to undergo two months' rigorous imprisonment.

3. Shorn of unnecessary details, the prosecution case is unraveled in an oral report lodged by one Naresh, which was registered vide Case Crime No. 21 of 1982, under Sections 302, 307 IPC, P.S. Jahangirpur Khurja, DistrictBulandshahr registered vide G.D. No. 22. The chik FIR has been marked as Ex. Ka-1 prepared by Om Prakash Tyagi (P.W.-7) at the relevant date and time.

4. The allegations made in the first information report are that Manvir Singh, Omvir Singh and Mahesh son of Amolak Singh, his own cousins, were on inimical terms, on account of dispute over boundary marks. At about 4 p.m. on the day of incident, he alongwith his brother Yashpal Singh and mother Risalo were sowing Maize crops in the field of his uncle Mahipal Singh on batai, Manvir Singh, Omvir and Mahesh were demolishing his boundary marks with their spades. On raising resistance not to demolish their boundary marks, Manvir Singh stated that they will continue to do so, as he, behind his back has been harassing his brothers and this time he has come after taking leave to settle scores. Manvir Singh then exhorted to assault them, consequent to which, all three armed with spades ran to assault them, however they with an intention to rescue them ran towards the village, however, all the three assailants waylaid them near the enbankment of the canal distributory near the culvert and attacked them. On account of their assault, his brother Yashpal Singh fell down but they continued to assault him and when he tried to rescue his brother, he was also assaulted by spade. His mother and niece-Poonam and other villagers Suraj Bhan and Ashok Kumar rushed to rescue them and saved him, however his brother, on receiving injuries died instantaneously on the spot.

5. It is further stated that when his mother tried to rescue his brother then Brijesh wife of Manvir Singh also reached there, who pulled her by her hair and pushed her. Leaving his mother and other villagers near the dead body of his brother, he reached the police station and lodged an oral report, which was reduced in writing by Head-Moharrir Om Prakash Tyagi (P.W.-7) in presence of Investigating Officer (P.W.-6), who took over the investigation and recorded the statement of first informant Naresh and thereafter sent the victim Naresh to Khurja for medical examination.

6. The Investigating Officer thereafter alongwith other police personnel reached the place of incident where dead body of Yashpal was found lying near the culvert. The inquest was thereafter conducted on the person of the deceased by S.I. R.S. Chattori, who also prepared the inquest (Ex.Ka-7), challan-nash (Ex. Ka-8), photo-nash (Ex. Ka-9), letter to the C.M.O. for post-mortem (Ex. Ka-11) and letter to the R.I. (Ex.Ka-12) and sample seal. The site-plan (Ex.Ka-15) was also prepared by the Investigating Officer. The blood stained shirt and bellbottom taken from the dead body were sealed in a packet and thereafter dead body was sealed and dispatched for autopsy through constable Om Prakash. The blood soaked earth and plain earth was also collected from the spot and sealed in separate containers. The mother of the deceased Smt. Risalo was also sent for medical examination, who was medically examined on 13.6.1982 at 6.45 a.m.

7. The eye witnesses Km. Poonam and Tejvir were also interrogated. At about 6 in the morning an information was received from informer that accused persons Manvir Singh and Omvir are trying to escape by boarding a bus. On the said information the police reached the bus-stop and arrested the accused Manvir and Omvir. On interrogation they disclosed that the spades by which they have committed the incident, has been concealed in a heap of fodder and assured to get them recovered. They were accordingly taken to the heap of fodder and in presence of Hosiyar Singh (P.W.-5) and one Dalvir Singh, the appellants Manvir Singh and Omvir got recovered the three spades from the heap of straw. The blood stained kurta of Manvir as well as blood stained bellbottom of Omvir were also taken alongwith blood stained spades. Respective recovery memos were drawn by the Investigating Officer and marked as Ex. Ka-4, Ex. Ka-5, Ex. Ka-6, Ex. Ka-13 and Ex.Ka-14 and thereafter the accused persons were lodged in the police station. Smt. Risalo and other witnesses were also interrogated by the Investigating Officer. On 21.6.1982 Mahesh surrendered before the court and his statement was recorded. The blood stained articles were also sent for chemical examination and chemical examination report was obtained, which is marked as Ex.Ka-17 and Ex. Ka-18.

8. An autopsy was conducted on the person of the deceased Yashpal in District Hospital Bulandshahr on 13.6.1982. In the post-mortem, the doctor has noted the following injuries :-

"1. Incised wound 3/4” x 1/2” X skull cavity deep by the side of lateral end of right eye brow.

2. Lacerated wound 1” x ¾ “ X bone deep on right parietal head 1” above right ear.

3. Incised wound 1½ ” X 3/2” X bone deep on right cheek bone.

4. Incised wound 1/2” x 1” X eye socket deep on right side face, just below medial end of right eye. Right eye ball cut through and through. Also right optic nerve severed off. Nasal bone fracture under-neath. Right optic nerve severed off. Nasal bone fractured under-neath.

5. Lacerated wound 1½” X 1/2” X bone deep on left side face just below lateral end of left eye.

6. Incised wound 1/2” X 1/4” X muscle deep on back of left shoulder.

On opening the body right side skull was found fractured into multiple pieces under-neath injuries Nos.1 & 2. The membranes of brain were lacerated under-neath injury No.2 and cut under injury No.1 and ¼ oz of clotted blood was present in anterior and right cranial fossa. Brain was cut and lacerated under-neath injury No. 1 & 2. Both the chambers of the heart were empty. There was quarter ounce of partially digested food in the stomach. The intestines contained usual gases and faecal matter. The bladder was full. The cause of death was shock and haemorrhage, resulting from injury nos.1 & 2. The post mortem report has been proved as Ext. Ka-24."

9. The injured Naresh was medically examined by Dr. S.C. Pandey, Superintendent of S.S.M.J Hospital, Khurja on 12.6.1982 at 7.50 p.m. who noted an incised wound on the right side of scalp and an abraded contusion on the right temple region. The injury report was accordingly proved and marked as Ex. Ka-2.

10. Similarly, Risalo was examined on 13.6.1982 at 6.45 a.m. The doctor has noted three injuries on her person, which is marked as Ex.Ka-3 :-

(i) Contusion 2 cm x 1 cm on the left side of upper part of nose.

(ii) Abraded contusion 3 cm x 1 cm obliquely on the right forearm upper part.

(iii) Contusion 3 cm X 1 cm oblique on the left upper scapular region.

11. The Investigating Officer thereafter concluded the investigation and submitted charge-sheet against the accused persons, which is marked as Ex.Ka-19. On the basis of said charge sheet, learned Magistrate has taken cognizance and since the case was exclusively triable by the court of Sessions, made over the case to the court of Sessions for trial. The Sessions Court vide orders dated 4th January, 1982 and 16th September, 1982 framed the charges against the accused appellants Manvir, Omvir, Mahesh and Brijesh under Sections 302 read with section 34 IPC and 307 read with section 34 IPC. All the accused appellants abjured the charges and claimed to be tried.

12. During the course of trial, the prosecution has examined as many as three witnesses of fact and five formal witnesses. Their testimony in brief is enumerated hereunder :-

13. Naresh Kumar (P.W.-1) is the brother of the deceased and the first informant. He has stated that Manvir Singh, Omvir Singh and Mahesh appellants are the real sons of his tau whereas appellant No. 4 Brijesh is the wife of Manvir Singh and they were on inimical terms over the dispute of boundary marks. On the date of incident while he alongwith his mother Risalo and brother Yashpal were sowing Maize crops in the field of his uncle Mahipal Singh, Manvir, Mahesh and Omvir came there and started demolishing his boundary marks with their spades. On raising resistance not to demolish their boundary marks, Manvir stated that they will continue to demolish the boundary marks and thereafter on the exhortation of Manvir to assault, all the three appellants ran to assault them, however they in order to escape, ran towards the village, however, all the three assailants waylaid them near the enbankment of the canal distributory near the culvert and attacked them. On account of their assault, his brother Yashpal Singh fell down but they continued to assault him and when he tried to rescue him, he was also assaulted by Manvir and Mahesh with spades.

14. On account of assault, his brother fell down, then Mahesh caught hold of him, however Omvir and Manvir continued to assault his brother, then his mother Risalo rushed and tried to rescue him, however, she was also assaulted by Brijesh by pulling her by her hair and pushed her. Her niece Poonam also tried to rescue them but the assailants did not yield. On raising alarm, Tejvir and Ashok Kumar also reached the place of incident and saved him, however Manvir further assaulted Yashpal on his face, consequent to which he died. The FIR is said to be lodged on his oral information, which was reduced in writing by the Moharrir, who read out the same and thereafter affixed his thumb impression.

15. During cross examination, he has supported the prosecution story and nothing adverse could be elicited to doubt the credibility of the said witness. During cross examination, he has further stated that western side of his boundary marks was being demolished by the appellants. He has further clarified in his cross examination that after being struck by the spade, his brother fell down. Thereafter Mahesh caught hold of him, however Omvir and Manvir continued to assault his brother and on account of assault made by Manvir, his brother died. He has categorically denied the suggestion that no assault was made by the appellants and on account of enmity he is falsely deposing against the appellants. He has further denied the suggestion that his injuries were self inflicted and manipulated.

16. Tejvir (P.W.-2) is another eye witness, who is said to have reached the place of incident on the alarm raised by P.W.-1- Naresh Kumar and his mother Risalo. He has further stated that on the exhortation of Manvir, the appellants have assaulted Yashpal and Naresh by their spades and on account of assault made by spades, Yashpal fell down and died after receiving injuries. Thereafter the assailants left the place of incident alongwith their spades. It is further stated that when Risalo tried to rescue her son, Brijesh had caught hold of her by her hair and pushed her, consequent to which she suffered injuries. During his cross examination, he has reiterated the prosecution story and has further stated at the time of assault, he had heard their alarm and had seen the assailants assaulting Naresh and Yashpal. He has further clarified that Yashpal was assaulted by the assailants for two minutes. It is further stated that when Naresh was being assaulted, her mother came to his rescue but she was also assaulted by Brijesh. He has further denied the suggestion that no incident had taken place in his presence and because of enmity, he has falsely implicated the assailants.

17. Poonam (P.W.-3) is a child witness and has stated that while she was grazing her buffalo, she had heard the alarm raised by the Yashpal and Naresh, who are her maternal uncle. She has further categorically stated that Omvir, Manvir and Mahesh appellants assaulted Yashpal and when Naresh tried to rescue him, Manvir and Mahesh assaulted him by the spades and when her grand maternal aunt (Nani) tried to save him then she was also assaulted by Brijesh. On account of assault made by the assailants, Yashpal died instantaneously. The said witness has also been subjected to lengthy cross examination, however, she has corroborated the prosecution story in all material particulars and nothing adverse could be elicited from her testimony. She has further denied the suggestion that nothing has taken place in her presence and on account of being the niece of the deceased, she is falsely deposing in the court.

18. Dr. S.C. Pandey (P.W.-4) had medically examined the injured Naresh on 12.6.1982 at 7.50 p.m. and has proved the said injury report. He has further proved the injuries of Risalo, which has been marked as Ex. Ka-3. He has denied the suggestion that injury No. 2 of Naresh could not be caused by wooden part of the spade and further all the three injuries of Risalo could be caused by fall and the said injuries could not be self-inflicted.

19. Hosiyar Singh (P.W.-5) is the witness of the recovery memo of the blood stained spades, which were recovered from the heap of fodder and marked as Ex.Ka-4. The other recoveries of pant, shirt and kurta were also prepared by the Investigating Officer, which were signed by him and marked as Ex.Ka-6 and 7. During course of his cross examination, he has denied the suggestion that recoveries were not made in his presence and on account of inimical terms, he is falsely deposing in the court.

20. Kalyan Singh Yadav (P.W.-6) is the Investigating Officer, who has stated that in his presence on the basis of the oral information by Naresh, the first information report was registered. He has further stated that after registration of the first information report, he had sent the injured Naresh for medical examination and thereafter alongwith police personnel and S.I. R.S. Chattori had reached the place of incident and found the dead body of the deceased lying near the culvert and conducted the inquest. The statements of the witnesses were recorded after completion of the inquest and the dead body was sealed and sent for post-mortem. The inquest was proved as Ex.Ka-7 and other related documents were proved and marked as Ex.Ka-8 to Ex.Ka-12. The recovery memo of spades were also proved. The recovered articles were also sent for chemical examination and chemical examination report was also obtained, which is marked as Ex.Ka-17 and Ex. Kha-18 and after completion of the investigation, the charge sheet was submitted on 30.6.1982 and marked as Ex.Ka-19. The Investigating Officer has deposed that he had reached the place of incident at about 6 p.m. and got conducted the inquest and thereafter made the recoveries of plain and blood soaked earth and prepared the site plan. He has further stated that he had sent the victim Risalo for medical examination and on the pointing out of Tejvir, had prepared the site plan. He has denied the recoveries of clothes from the house of assailants and blood stained spades. The suggestion made by the defence that the report was prepared at the police station was also categorically denied.

21. Om Prakash Tyagi (P.W.-7) is the head constable, who had reduced in writing the oral information given by the first informant Naresh Kumar at the police station on 12.6.1982 at 5.30 p.m., on the basis of which, chik FIR marked as Ex.Ka-1 was registered. The G.D. report of which was drawn vide G.D. Report No. 22 and marked as Ex.Ka-20. He has further stated that on 13.6.1982 at about 10.30 a.m., the Investigating Officer returned back to the police station and all the recoveries made, were kept in the malkhana. Necessary entries in respect of recovery of clothes was also made by him in respective G.D. During cross examination, he has categorically denied the suggestion made by the defence that the chik report was prepared anti-time and the entries in respect of sending of the special report to the higher police authorities has been manipulated and the G.D. was withheld.

22. Dr. Chandra Prakash (P.W.-8) is the doctor, who had conducted the post-mortem on the person of the deceased and has proved the entries made in the post-mortem, which is marked as Ex.Ka-24. He has further stated that proximate time of death could be at 4 p.m. on 12.6.1982. He had narrated the cause of death to be shock and haemorrhage as a result of injury Nos 1 and 2.

23. Thereafter, statement of accused under Section 313 Cr.P.C. has been recorded by putting all the incriminating circumstances to the appellants. The appellants denied the incriminating circumstances and stated that they have been falsely implicated. Accused Omvir and Manvir were arrested from their gher on the day of occurrence in the evening and their clothes were sent from their house. Accused Manvir stated that father of the deceased was the real brother of his father and their mothers are also real sisters and on account of inimical terms over partition of holding they have been falsely implicated and denied his presence in the village on the date of occurrence. Appellant Brijesh claimed to have been falsely implicated only on account of being the wife of Manvir. The defence has however not led any evidence to prove its case. The trial court after appreciating the evidence has held that the prosecution has successfully established its case against the appellant Nos. 1, 2 and 3, for the charged offence, however, acquitted the appellant No. 4- Brijesh for the offence under Section, 302/34 and 307/34 IPC and convicted her only under Section 323 IPC. The explanation tendered by the other appellants has been found to be false and inadequate and as such they are liable for conviction.

24. Learned Senior Counsel appearing for the appellants has submitted that on account of sudden altercation between the cousins, over trivial dispute, for demolishing boundary marks, the present incident had taken place. He has further submitted that no regular weapon has admittedly been used by the appellants for assaulting the victims and only an agricultural implement, namely, spade is said to have been used to cause injuries to the victim.

25. Learned counsel for the appellants has next submitted that there was absolutely no intention on the part of the appellants to have caused death of deceased Yashpal nor to cause any injury to the injured Naresh. Learned counsel for the appellants has next submitted that no specific role of assaulting the victims has been assigned to anyone and rather in general and omnibus manner, it has been stated that all the three appellants assaulted Yashpal and Naresh by their spades and caused injuries, which proved fatal and Yashpal succumbed to the said injuries.

26. Learned Senior Counsel appearing for the appellants has further submitted that considering the manner in which the incident had occurred and the role attributed to the appellants, the case does not travel beyond the scope of the offence u/s 304 Part II, causing injuries with the knowledge that it was likely to cause death but without any intention to cause death. He has further submitted that the conviction of the appellants u/s 302 IPC is a result of misappreciation of evidence on record. At the most the appellants can be convicted for the offence u/s 304 Part II of IPC.

27. Learned counsel for the appellants has further submitted that so far as the appellant No. 4- Brijesh is concerned, she has not assaulted either the deceased or the injured Naresh and she is only said to have caused simple injuries to Risalo when she tried to rescue his son and, therefore, she is liable to be acquitted.

28. In order to buttress his argument, learned counsel for the applicants has relied upon a decision reported in Kesar Singh and another Vs. State of Haryana reported in (2009) 3 SCC (Cri.) 1193 [LQ/SC/2008/1022] and Hardev Bhanji Joshi Vs. State of Gujarat reported in 1992 Supp (2) SCC 561.

29. Per contra, learned AGA has submitted that prosecution has proved its case beyond all reasonable doubt against the appellants and from the evidence adduced during the course of trial both intention and knowledge could be attributed to the appellants in causing the death of Yashpal and causing injuries to Naresh and, therefore, the trial court has rightly convicted the appellants under Section 302 read with Section 34 IPC and 307 read with section 34 IPC and supported the impugned judgment and order.

30. Having considered the rival submissions made by the learned counsel for the parties and having gone through the material available on record, the only question that falls for our consideration is that whether the conviction of the appellants would fall within the scope of Section 300 of the Code or it is a case of culpable homicide not amounting to murder punishable u/s under Section 304 Part I or Part II of IPC.

31. We have already gone through the evidence adduced by the prosecution and the genesis of the occurrence and the role attributed to the appellant herein. P.W.-8- Dr. Chandra Prakash was examined by the prosecution being the medical officer who conducted the post-mortem on the person of the deceased. In the post-mortem report, the doctor has noted six injuries, (1) Incised wound 3/4” x 1/2” X skull cavity deep by the side of lateral end of right eye brow, (2) Lacerated wound 1” x ¾ “ X bone deep on right parietal head 1” above right ear, (3) Incised wound 1½ ” X 3/2” X bone deep on right cheek bone, (4) Incised wound 1/2” x 1” X eye socket deep on right side face, just below medial end of right eye. Right eye ball cut through and through. Also right optic nerve severed off. Nasal bone fracture underneath. Right optic nerve severed off. Nasal bone fractured under-neath, (5) Lacerated wound 1½” X 1/2” X bone deep on left side face just below lateral end of left eye and (6) Incised wound 1/2” X 1/4” X muscle deep on back of left shoulder. The cause of death has been noted in the postmortem report appears to be shock and haemorrhage resulting from Injury Nos. 1 and 2.

32. The Hon'ble Supreme Court in its recent decision in Criminal Appeal No. 2043 of 2023 (Anbazhagan Vs. The State Represented by the Inspector of Police) has very lucidly explained distinction between the terms 'intention' and 'knowledge'.

33. The word “intent” is derived from the word archery or aim. The “act” attempted to must be with “intention” of killing a man.

34. Intention, which is a state of mind, can never be precisely proved by direct evidence as a fact; it can only be deduced or inferred from other facts which are proved. The intention may be proved by res gestae, by acts or events previous or subsequent to the incident or occurrence, on admission. Intention of a person cannot be proved by direct evidence but is to be deduced from the facts and circumstances of a case.

35. In the case of Smt. Mathri v. State of Punjab, AIR 1964 SC 986 [LQ/SC/1963/292] , at page 990, Das Gupta J. has explained the concept of the word ‘intent’. The relevant observations are made by referring to the observations made by Batty J. in the decision Bhagwant vs. Kedari, I.L.R. 25 Bombay 202. They are as under:-

“The word “intent” by its etymology, seems to have metaphorical allusion to archery, and implies “aim” and thus connotes not a casual or merely possible result-foreseen perhaps as a not improbable incident, but not desired-but rather connotes the one object for which the effort is made-and thus has reference to what has been called the dominant motive, without which, the action would not have been taken.”

(Emphasis supplied)."

36. In the case of Basdev vs. State of Pepsu, AIR 1956 SC 488 [LQ/SC/1956/34] , at page 490, the following observations have been made by Chadrasekhara Aiyar J.:-

“6. ... Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this had led to a certain amount of confusion.”

(Emphasis supplied)."

37. In para 9 of the judgment, at page 490, the observations made by Coleridge J. in Reg. v. Monkhouse, (1849) 4 COX CC 55(C), have been referred to. They can be referred to, with advantage at this stage, as they are very illuminating:-

“The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural consequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol which he knew to be loaded to another's head, and fire it off, without intending to kill him; but even there the state of mind of the party is most material to be considered. For instance, if such an act were done by a born idiot, the intent to kill could not be inferred from the act. So if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely; was he rendered by intoxication entirely incapable of forming the intent charged”

(Emphasis supplied)."

38. Bearing in mind the test suggested in the aforesaid decision and also bearing in mind 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.

39. In another case reported in 2006 (11) SCC 444, [LQ/SC/2006/723] Pulicherla Nagaraju @ Nagaraja Reddy vs State of A.P, the Hon'ble Supreme Court has laid down various relevant circumstances from which the intention could be gathered. Some relevant considerations are the following:-

(i) The 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 the 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, (vi) whether the incident occurred 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 a grave or sudden provocation and if so, the cause for such provocation, (ix) whether it was heat of passion, (x) whether a person inflicting the injury has taken undue advantage or has acted in a cruel manner, (xi) whether the accused persons has dealt a single blow or several blows.

40. 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. 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).

41. The phraseology of Sections 299 and 300 respectively of the IPC leaves no manner of doubt that under these Sections when it is said that a particular act in order to be punishable be done with such intention, the requisite intention must be proved by the prosecution. It must be proved that the accused aimed or desired that his act should lead to such and such consequences. For example, when under Section 299 it is said “whoever causes death by doing an act with the intention of causing death” it must be proved that the accused by doing the act, intended to bring about the particular consequence, that is, causing of death. Similarly, when it is said that “whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death” it must be proved that the accused had the aim of causing such bodily injury as was likely to cause death.

42. Thus, in order that the requirements of law with regard to intention may be satisfied for holding an offence of culpable homicide proved, it is necessary that any of the two specific intentions must be proved. But, even when such intention is not proved, the offence will be culpable homicide if the doer of the act causes the death with the knowledge that he is likely by his such act to cause death, that is, with the knowledge that the result of his doing his act may be such as may result in death.

43. The important question which has engaged our careful attention in this case is, whether on the facts and in the circumstances of the case we should maintain the conviction of the appellant herein for the offence under Section 302 or we should further alter it to Section 304 Part II of the IPC.

44. Sections 299 and 300 of the IPC deal with the definition of ‘culpable homicide’ and ‘murder’, respectively. In terms of Section 299, ‘culpable homicide’ is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it emphasises on the expression ‘intention’ while the latter upon ‘knowledge’. Both these are positive mental attitudes, however, of different degrees. The mental element in ‘culpable homicide’, that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted-above, it would be ‘culpable homicide’. Section 300 of the IPC, however, deals with ‘murder’, although there is no clear definition of ‘murder’ in Section 300 of the IPC. As has been repeatedly held by this Court, ‘culpable homicide’ is the genus and ‘murder’ is its species and all ‘murders’ are ‘culpable homicides’ but all ‘culpable homicides’ are not ‘murders’. (see Rampal Singh vs. State of U.P., (2012) 8 SCC 289) [LQ/SC/2012/600] .

45. The scope of clause thirdly of Section 300 of the IPC has been the subject matter of various decisions of this Court. The decision in Virsa Singh (supra) has throughout been followed in a number of cases by this Court. In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not If such an intention to cause that particular injury is made out and if the injury is found to be sufficient in the ordinary course of nature to cause death, then clause thirdly of Section 300 of the IPC is attracted.

46. The Hon'ble Supreme Court further in its decision in Criminal Appeal No. 2043 of 2023 (supra) has thus held that 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.

47. 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.

48. 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.

49. 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.

50. Now we recapitulate the facts and circumstances of the case. On the fateful day of the incident, the cousin brothers were working in their field and on account of resistance raised over demolishing of the boundary marks an altercation ensued between the first cousin and the victim/deceased and the appellants having spades in their hands started to assault them and thereafter caused injuries to the victim without their being any intention to cause his death and, therefore, we find it difficult to come to the conclusion that when the appellants struck the deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. The weapon of offence admittedly in the present case is a common agricultural tool i.e. spade.

51. It is true that in the post mortem report, right side skull was found fractured into multiple pieces underneath injuries Nos. 1 and 2 and membranes of brain were lacerated underneath injury No. 2. The deceased died on account of cerebral haemorrhage i.e. internal head injury, however the important question is whether that by itself is sufficient to draw an inference that the appellants intended to cause such bodily injuries as was sufficient to cause death. Therefore, we are of the view that the appellants could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death.

52. Thus, from the aforesaid discussion, we are of the view that none of the clauses of Section 300 of the Code are attracted as intention of the appellants to cause death or such bodily injury which he knew would cause the death of the other person or sufficient in the ordinary course of nature to cause death, is not proved.

53. Thus, we are of the opinion that the appellants had not committed an offence within the meaning of Section 300 IPC, i.e., "culpable homicide amounting to murder", which is punishable under Section 302 of the Code. The incident had occurred without any premeditation and on trivial matter of demolishing of boundary marks, which was resisted by the victim and the deceased resulting in an assault by the assailants by a spade which they were carrying at the time of incident for agricultural purposes. Thus, the offence committed by the appellants would fall within the meaning of "culpable homicide not amounting to murder" under Section 304 of the Code.

54. Now the next question would be as to whether the appellants would be guilty in Part-I or Part-II of Section 304 IPC as is evident from the record. On resistance being raised by the victims' party for demolishing their boundary marks, the appellants with an intention to assault the victims/deceased ran and assaulted the deceased/victim, it, therefore, cannot be said that the death was caused by mistake or accident. The spades which the appellants were carried, were having sharp edges and the the appellants were aware of the fact that the use of such spade could cause death. It, thus, proved that there was knowledge on the part of the appellants that if by assaulting the deceased by spades that too on the head, the possibility of the deceased being killed could not be ruled out. But this itself is not necessarily conclusive of the fact that there was an intention on the part of the appellants to kill the deceased. The intention probably was merely to cause bodily injury. Considering the weapon used and the place and nature of the injuries, the act of the appellants was clearly with the intent to cause bodily injury which could result in the death of the deceased. In the instant case, there may be an absence of the intention to cause death but it is not where there is also an absence of intention to cause such bodily injury as is likely to cause death, which in the ordinary course of things is likely to cause death.

55. In view of the foregoing discussion, we are of the opinion that the appellants are not guilty of murder punishable under Section 302 of the Code but they are guilty of committing an offence which is punishable under Section 304 Part I of the Code "Culpable homicide not amounting to murder", punishable under Section 304 Part I of the Code. We, therefore, do not agree with the contentions of the learned counsel for the appellant that the offence committed by the appellant would fall in the Second part of Section 304 IPC. Having held that the appellant Nos. 1, 2 and 3 are guilty of the offence under Section 304 Part I IPC, we partially accept this appeal and alter the offence from that of Section 302 of the Code to one under Section 304 Part I of the Indian Penal Code.

56. Further, having regard to the facts and circumstances of the instant case, we find that the sentence of 10 years' rigorous imprisonment would be adequate for the offence of which the appellants have been held guilty.

57. We, therefore, award a sentence of 10 years' rigorous imprisonment to the appellant Nos. 1, 2 and 3. The judgment under appeal is modified accordingly.

58. So far as appellant No. 4 Brijesh is concerned, she is said to have assaulted the victim Risalo mother of the deceased by pulling her by her hair and pushing her when she tried to rescue her son, consequent to which she suffered simple injuries, however she has not participated in the main incident of assault to the deceased Yashpal and injured Naresh, as such she has rightly been convicted u/s 323 IPC for causing injury only to Risalo and sentenced to fine of Rs. 500/- with default stipulation. Accordingly, conviction and sentence, in her behalf, is affirmed. She would deposit the fine within one month, if already not deposited.

59. The Chief Judicial Magistrate, Bulandshahr is directed to take appellant Nos. 1, 2 and 3 in custody in the aforesaid case and send them to jail to serve out the sentences awarded to them by the trial court. Appellant No. 4 need not to surrender.

60. The appeal is allowed in part.

61. Let a copy of this judgment and order be sent to the court concerned alongwith the lower court record within a week for compliance. The compliance report shall be sent by the court concerned to this Court within a further period of fifteen days.