Keshav Nishad @ Dinesh Vs State of Chhattisgarh

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2025:CGHC:17390-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 248 of 2024

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Keshav Nishad @ Dinesh S/o Mukund Nishad Aged About 35 Years R/o Village Tahkapara, Bajaarpara P.S. Charama District Kanker (C.G.), Present R/o Muriyapara Sonpur Road Narayanpur, District Narayanpur (C.G.).

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… Appellant

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versus

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State of Chhattisgarh, through Police Station Narayanpur, District Narayanpur (C.G.).

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--- Respondent

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For Appellant : Mr. Priyank Rathi, Advocate For State-Respondent : Mr. Nitansh Kumar Jaiswal, Panel Lawyer

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(Cause title is taken from the CIS)

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Digitally signed byVASANT VASANT KUMAR KUMAR Date:2025.04.23 11:00:43 +0530

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Hon'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Arvind Kumar Verma, Judge

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Judgment on Board

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Per Ramesh Sinha, Chief Justice

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16.04.2025

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Proceedings of this matter have been taken through video conferencing.

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Heard Mr. Priyank Rathi, learned counsel for the appellant. Also heard Mr. Nitansh Kumar Jaiswal, Panel Lawyer for the State/Respondent.

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The present appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure questioning the judgment of conviction and order of sentence dated 19.12.2023 (Annexure A-1) passed in Sessions Trial No.05/2022 by the learned Additional Sessions Judge, Kondagaon, District Kondagaon (C.G.), whereby the appellant has been convicted and sentenced as under :-

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Conviction		Sentenc	e
Under Section 302 of I.P.C.	Life Impr	isonment	with fine of
	Rs.1,000/-	, in defau	lt of payment
	of fine	amount,	additional
	rigorous months.	imprison	ment for six

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The prosecution story in short is that on 19.06.2021, the appellant/accused entered the house of the deceased with alcohol and drunken state. When the deceased asked him not to drink, the accused went outside the house and again came armed with a wooden stick kept nearby and assaulted the deceased by way of the said stick and abused him, due to which he sustained injuries above his right eye, cheeks, tongue etc. On 20.06.221, deceased-Bodkuram was lodged the

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dehati nalshi at Police Station Narayanpur which has been registered as Crime No.00/2021 under Sections 294, 323, 506 IPC and thereafter on the basis of dehati nalshi, FIR has been registered at Police Station Narayanpur.

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The deceased-Bodkuram was earlier admitted in district hospital, however, later on he was referred to higher centre for treatment and during treatment, he died on 27.06.2021. After death of deceased, the daughter of the deceased informed about the death of deceased to the Police Sahayta Kendra , Dimrapal Jagdalpur and merg No. 00/2021 was registered under Section 174 Cr.P.C.

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In relation to the death of the deceased, witnesses were called through notice and Panchnama/Panchayatnama Ex.P.-07 was prepared in front of the witnesses. Thereafter, the body of the deceased was sent to District Hospital, Narayanpur for conducting postmortem. The postmortem of the body of the deceased was conducted by Dr. Kiran Patil (PW-4) vide Ex.P-16 and found following external and internal injuries :-

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External injuries :

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Sutured wound is present over right eyebrow. After opening sutures. Lacerated wound of size 2 cm X 0.2 cm X muscle deep is present with clear defined, dry margins, partly opposed margins. Wound floor is reddish.

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Abrasion with brown scab of size 1.8 cm X 1 cm is present over right cheek, placed 2 cm from right eye.

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Contusion of size -5 cm X-2.5 cm, linear in shape, is present over right cheek with swelling, pale brown in colour.

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Lacerated wound of size 0.7 cm X 0.2 cm X bone deep is present over right outer angle of upper lip with dry margins, partly opposed.

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Lacerated wound of size 3.3 cm X 0.5 cm X. bone deep is present over right body of mandible, chin region with dry margins. The underlying bone is fractured with extravasation of blood into surrounding tissues.

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Lacerated wound of size 2.7 cm X 1.5 cm X muscle deep is obliquely present over right side of chin, dry margins.

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Contusion of size 4 cm X-1 cm is present over left side of chin, pale brown. The underlying left body of mandible is fractured with swelling of surrounding tissues.

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Contusion of size -9 cm X-5 cm is present over front of upper central chest with swelling of surrounding region, pale brown.

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Abrasion with brown scab of size 3.2 cm X -1.4 cm is present over outer tip of left shoulder.

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Multiple contusions are present over an area of size -2.5

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cm X-1.5 cm over front of left shoulder, brown.

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Multiple contusions are present over an area of size -14.5 cm X -5.5 cm over back of left mid-arm, pale brown.

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Contusion of size-5 cm X-4.5 cm is present over front of right upper thigh, pale brown.

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Contusion of size -9 cm X-4 cm is present over front of right lower thigh, pale.

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Abrasion without scab of size -3 cm X-1.2 cm is present over back of right lower leg, pale.

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Internal Injury :

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The sub-dural haemorrhage is present adherent over inner surface over right parieto-occipital region, reddish. Right parieto-occipital lobe is compressed, corresponding to the sub-dural haemorrhage.

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In the postmortem report Ex.P.-16, the doctor opined that the deceased died due to ‘head injury’. The nature of death was “homicidal”. On this basis, Police registered original Crime No.70/2021 under Sections 294, 506, 326, 302 IPC as Ex.P.-11.

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During investigation, memorandum Ex.P.-19 was sent to Superintendent, Shri Baliram Kashyap Smriti Government Medical College, Dimrapal, Jagdalpur for providing bedhead ticket in connection with the treatment of the deceased and bedhead ticket was received. Memorandum Ex.P.-26 was sent to Tehsildar, Narayanpur for providing the spot map of the incident and the spot map Ex.P.-09 and Panchnama-08 were received from the concerned Patwari.

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Statement of applicant/complainant and other witnesses was recorded. Accused was called to the police station and on interrogation and on the basis of memorandum statement in front of witnesses, the stick used in the incident was recovered and seized under seizure memo Ex.P.-05. The seized exhibits were sent to the Forensic Science Laboratory, Raipur and Jagdalpur for testing and test reports are Ex.P.-27 and Ex.P.-28.

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After completion of investigation, charge-sheet has been submitted by the Investigating Officer before the jurisdictional Court. The accusedappellant was tried for the offence under Sections 294, 506 and 302 of IPC of which he was acquitted of the offence under Sections 294, 506 of IPC and was convicted for the offence punishable under Section 302 of IPC and sentenced him as mentioned in paragraph three of this appeal.

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In order to prove the charges against the appellant-accused, prosecution examined as many as 12 witnesses and 35 documents were exhibited. Statement of appellant was also recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. After completion of trial, trial Court convicted and sentenced the appellant in the manner as described above. Hence, this appeal.

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Learned counsel appearing for the appellant would submit that trial Court has wrongly convicted the appellant without there being any sufficient evidence available on record against him. He would further submit that it is not evident from the deposition of the witnesses that soon after the incident, the deceased had not told the name of the person who had caused him injuries. On the contrary, deceased's daughter (PW-1) and Bir Singh Potai (PW-2) on receiving the information that someone had caused injuries to the deceased reached the house of the deceased. Initially, no one has disclosed the name of the appellant for causing injuries to the deceased. Thus, there is no evidence available as against the present appellant as regards the alleged incident. The case is based on circumstantial evidence and the same has not been proved as per the parameters laid down by the Hon'ble Supreme Court, Even the stick (weapon) used in the alleged offence has not been proved to be on the memorandum statement of

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the present appellant which is evident from the deposition including those of seizure witnesses. He would further submit that the alleged dehati nalsi registered by ASI- Narayan Singh Poya (PW-3) is extremely doubtful since the deceased was not in a position to talk as per the deposition of other witnesses and also the material available on record. Therefore, the said statement could not have been relied on as dying declaration and therefore, the trial Court committed an error while convicting the appellant on the basis of the said statement. It is further submit that in cases based on circumstantial evidence, proving motive is essential and in the present case, motive has not been proved by the prosecution. It is also submit that it is evident from the statement of Yakhileshwari Thakur (PW-10) that the deceased could have been saved if he was given proper treatment at relevant point of time. Even Smt. Sakun Marka (PW- 12) has stated that in District Hospital, Narayanpur there was dearth of doctors and facilities. Due to lack of facilities in Narayanpur District Hospital, the deceased was referred to medical college after 3 days. Therefore, it was evident that if proper treatment and facilities were there in District Hospital Narayanpur, he could have been saved. However, since he was referred to Jagdalpur after a period of 3 days, the complications rose. Therefore it is humbly submitted that the offence under section 302 was not proved in the instant case and the impugned judgment of conviction and sentence is liable to be set aside and acquit the appellant/accused from the charge levelled against him.

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Per contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature, hence, there is no illegality or infirmity in the finding of learned trial Court and the impugned judgment passed by the Court below needs no interference.

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13.We have heard learned counsel appearing for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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14.The question for consideration is, whether the death of deceased was homicidal in nature?

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Learned trial Court has recorded an affirmative finding in this regard relying upon the postmortem report Ex.P-16 proved by Dr. Kiran Patil (PW-04) that the death of the deceased was due to the head injury and the injury was antemortem and nature of death is homicidal.

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16.In view of the evidence and the post mortem report (Ex.P-16), the finding given by the trial Court that the nature of death was homicidal in nature is correct.

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Now the question for consideration is that whether the appellant has committed the murder of the deceased?

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Perusal of the record would show that in this case, after the incident on 20.06.2021, deceased- Bodkuram has lodged the dehati nalshi (Ex.P-10) at Police Station Narayanpur, District Narayanpur in which he has mentioned that on the date of incident while he was alone in his house, the appellant/accused entered in his house in drunken state and along with liquor. When he asked him not to drink, the accused went outside the house and again came armed with a wooden stick kept nearby and assaulted the deceased by way of the said stick and abused him. On account of the assault made by the appellant, the deceased sustained injuries above his right eye, cheeks, tongue etc. MLC of Bodkuram was conducted and thereafter he was referred to higher centre for treatment. On the basis of the complaint of the deceased, a dehati nalshi 0/2021 (Ex.P-10) for the offence under Sections 294, 506, 323 IPC was registered. Thereafter, during the treatment, the deceased died. Since, a statement was made by the deceased wherein the deceased has mentioned the circumstances of the transaction which resulted in his death, therefore, dehati nalshi (Ex.P-10) is a statement of relevant fact of a person, i.e., deceased under Section 32(1) of the Indian Evidence Act, 1872. On the basis of memorandum statement given by the appellant, Investigating Officer has seized the stick in front of the witnesses (Ex.P-5)

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FSL Report (Ex.P-27 & 28) shows that human blood was found on the stick which has been seized from the accused.

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Mahandi Potai (PW-1) daughter of the deceased has stated that on the day of the incident, the accused came to her father's house and an argument and fight broke out between the two over some issue, which the people living in the neighborhood saw and came to her father’s house to tell her and they told her that someone has killed her father in the house and fled, there is a hole in his cheek and blood was coming out, then she went to her father's house with them. After going home, she saw that her father was covered in blood, then she called her son and took her father to Narayanpur District Hospital with him. The next day, her son caught the accused Keshav Nishad and brought him to the hospital, where her father told the police in her presence that the accused Keshav Nishad had killed him, then the accused said that “he will get him treated, take back the case.” Therefore, it is crystal clear from the evidence laid by the prosecution that the appellant/accused has committed crime in question.

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The next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ?

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Section 304 Part-II reads as under :

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“304. Punishment for culpable homicide not amounting to murder.— Whoever commits culpable

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homicide not amounting to murder shall be punished with 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,

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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.”

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The cause of death assigned in the postmortem report of the deceased as already noticed is ‘head injury’. It is a trite law that “culpable homicide” is a genus and “murder” is its species and all “murders” are “culpable homicides, but all “culpable homicides are not “murders” as held by the Hon’ble Supreme Court in the matter of Rampal Singh v. State of Uttar Pradesh reported in (2012) 8 SCC 289 . The intention of the accused must be judged not in the light of actual circumstances, but in the light of what is supposed to be the circumstances.

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The Hon’ble Supreme Court in the case of Basdev v. State of Pepsu reported in AIR 1956 SC 488 has made the following observations :

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“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 has led to a certain amount of confusion.”

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It requires to be borne in mind that the test suggested in the aforesaid decision and the fact that the 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 unsafe to treat ‘intent’ and ‘knowledge’ in equal terms. They are not different

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things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 of the IPC. It is in this background that the expression used in Indian Penal Code namely “intention” and “knowledge” has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part 3 of Section 300 of the IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted.

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The Hon’ble Supreme Court in the matter of Sukhbir Singh v. State of Haryana reported in (2002) 3 SCC 327 has observed as under :-

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“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the

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offence of culpable homicide without

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premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.”

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The Hon’ble Supreme Court in the matter of Gurmukh Singh v. State of Haryana reported in (2009) 15 SCC 635 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :-

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“23. These are some factors which are required to

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be taken into consideration before awarding

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appropriate sentence to the accused. These factors

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are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under :

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(a) Motive or previous enmity;

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(b) Whether the incident had taken place on the spur of the moment;

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(c) The intention/knowledge of the accused while inflicting the blow or injury;

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(d) Whether the death ensued instantaneously or

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the victim died after several days;

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(e) The gravity, dimension and nature of injury;

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(f) The age and general health condition of the accused;

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(g) Whether the injury was caused without premeditation in a sudden fight;

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(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflictd;

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(I) The criminal background and adverse history

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of the accused;

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(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

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(k) Number of other criminal cases pending against the accused;

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(l) Incident occurred within the family members or close relations;

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(m) The conduct and behaviour of the accused after the incident.

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Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?

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These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

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24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty

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of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused. ”

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Likewise, in the matter of State v. Sanjeev Nanda, (2012) 8 SCC 450 , their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.

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Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh reported in (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-

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“ 20. To invoke this Exception 4, the requirements

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that are to be fulfilled have been laid down by this

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Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7)

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“7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.”

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21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9)

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“9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To

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bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.

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In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC.

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Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi) reported in (2019) 6 SCC 122 has laid down four ingredients which

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should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under:

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“ 16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required:

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(i) There must be a sudden fight;

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(ii) There was no premeditation;

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(iii) The act was committed in a heat of passion; and

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(iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.”

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The Hon’ble Supreme Court in a recent judgment in the case of Anbazhagan v. The State represented by the Inspector of Police in Criminal Appeal No. 2043 of 2023 disposed off on 20.07.2023 has defined the context of the true test to be adopted to find out the intention or knowledge of the accused in doing the act as under:

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“60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:

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(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300

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of the IPC, the act will be murder even though only a single injury was caused. To illustrate: ‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury

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was caused.

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(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated

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in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case

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fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’.

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(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

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(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section

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300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

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To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to

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Section 300 of the IPC.

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(6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

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(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be

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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.

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(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

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(9) Intention to kill is not the only intention that

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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.

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(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

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(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause

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thirdly of Section 300 of the IPC unless one of the exceptions applies.

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(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.”

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Further Dr. Kiran Patil (PW-04), who has conducted the postmortem of the deceased on 28.06.2021. After the postmortem, he found the injuries as stated in paragraph 06 of this appeal and he opined that the death of the deceased was caused due to head injury and homicidal in nature.

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Applying the aforesaid principles of law laid down by their Lordships of the Hon’ble Supreme Court in the above-stated judgments (supra) in the facts of this case, it is quite vivid that on the date of incident,

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i.e., 19.06.2021, the appellant/accused entered the house of the deceased with alcohol and in drunken state. When the deceased asked him to not drink, the accused went outside the house, abused the deceased and hit him with a wooden stick kept nearby, due to which he sustained injuries above his right eye, cheeks, tongue etc. and during treatment, the deceased died on 27.06.2021. Therefore, there was no premeditation on the part of the appellant to cause death of deceased. The appellant did not had any intention to cause death of deceased, but by causing such accident, he must had the knowledge that such injuries inflicted by him would likely to cause death of deceased and only head injury was sustained by the deceased, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner.

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Considering the above-stated facts, also considering the evidence of witnesses and taking into consideration that at present appellant- Keshav Nishad @ Dinesh is in jail since 03.09.2021, the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-II of the IPC.

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Accordingly, conviction and sentence of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo rigorous imprisonment for 10 years.

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The appellant is in jail and he shall served out the sentence as modified above.

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In the result, the instant criminal appeal is allowed in part to the extent indicated herein-above.

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Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services

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Committee.

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Sd/- Sd/(Arvind Kumar Verma) (Ramesh Sinha) Judge Chief Justice

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Vasant

Keshav Nishad @ Dinesh v. State of Chhattisgarh

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Keshav Nishad @ Dinesh v. State of Chhattisgarh

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