Anbazhagan v. the State Represented by the Inspector of Police

J. B. PARDIWALA, J. : 1. Leave granted. 1099 2. This appeal is at the instance of a convict accused and is directed against the judgment and order passed by the High Court of Judicature at Madras dated 04.04.2019 in Criminal Appeal No. 193 of 2019 by which the High Court dismissed the appeal filed by the appellant herein thereby affirming the judgment and order of conviction and sent ence passed by the Additional Sessions Judge, Namakkal in Sessions Case No. 41 of 2017. 3. It appears from the materials on record that the appellant herein and his father were put on trial in the Court of the Additional Sessions Judge, Namakkal in Sessions Case No. 41 of 2017 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short, ‘IPC’). The Trial Court held the appellant herein guilty for the offence of culpable homicide not amounting to murder punishable under Section 304 Part I of the IPC and sentenced him to undergo rigorous imprisonment for a period of 10 years with a fine of Rs. 10,000/- and in default of payment of the amount of fine, further rigorous imprisonment of one year. The co-accused i.e. father of the appellant herein cam e to be acquitted by the Trial Court. 4. The appellant herein being dissatisfied with the judgment and order of conviction and sentence passed by the Trial Court went in appeal before the High Court. The High Court dismissed the appeal affirming the conviction of the appellant herein for the offence punishable under Section 304 Part I of the IPC. 5. At the outset, Mr. S. Nagamuthu, the learned senior counsel appearing for the appellant herein, submitted that he is not pressing this appeal on merits. He submitted that his only endeavour is to persuade this Court to alter the conviction of the appellant from the offence punishable under Section 304 Part I of the IPC to Section 304 Part II of the IPC and reduce the sentence accordingly. FACTUAL MATRIX 6. It appears from the evidence on record that the appellant is an agriculturist. He owns agriculture land in a villag e by name Sirukinathupalayam situated in Tamil Nadu. The decease d namely Balasubramaniam was also an agriculturist and had his own agriculture land adjacent to the agriculture land of the appellant herein. There was a pathway leading to the agriculture land of the appellant over which the deceased had some issues. At the time of the incident, the appellant had ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] cultivated Cassava plants (Tapoica) which was ready for harvesting. On 25.10.2015 at around 7 am, the appellant and his father were harvesting the crop and had also arranged for a lorry for transporting t he same from their field. At around 11 am, the deceased came at the place of the incident and threatened the driver of the lorry saying he should not drive his lorry through the pathway leading to the agriculture fiel d of the appellant. At that point of time, the appellant and his father were in their field. The appellant is said to have asked the driver of the lorry to move the lorry to his field to load the crop. This was questioned by the deceased which resulted in a quarrel. It is the case of the prosec ution that after verbal altercation between the appellant and the deceased for quite some time, the appellant is alleged to have picked up a “Hoe” (Kalaikottu – in Tamil, a gardening tool with a small metal blade attached with a wooden handle used mainly for weeding) & inflicted a single blow on the head of the deceased as a result of which the deceased fell unconsc ious and later died in the hospital. 7. The FIR was lodged on 25.10.2015 at 19.30 Hrs. On completion of the investigation, police filed charge sheet for the offence of murder. The case was committed to the Court of Sessions as the off ence was exclusively triable by the Sessions Court. The Additional Sessions Judge, Namakkal vide order dated 06.09.2017 framed the following charge:- “Whereas the deceased Balasubramaniam has been liv ing with his wife Baby and family members at Sevalkattu Moolai near Government High School in Pandamangalam; that the Al is the son of A2; that both the accused were liv ing in Poosaripalayam; in Sirukinatrypalayan: both the accused and the deceased Balasubramaniarn had their agricultural la nds adjacent to each other’s lands; that there was a pa thway between both these lands and that there has been a prior enmity for a longtime regarding the ownership of that pathwa y between both parties. On 25.10.2015 at 07.30 hrs Al and A2 were loading tapioca cultivated and harvested in their lands on to a lorry owned by one Mr. Palanival, having th e registration number TN 33 AF 3114 by parking that lorry on the disputed pathway. At that time the deceased Balasubramaniam came there and told them that the l orry could not be led in and blocked it. Then A2 yelled at the deceased Balasubramaniam saying “You do not have a 1101 pathway here. You may bring anyone you want” and then Al and A2 pushed the deceased Balasubramaniam down and with an intention to murder him Al had hit the head of the deceased Balasubramaniam with a “weed removing axe” (Kalaikothi) while A2 was pelting stones at him whereby the deceased Balasubramaniam sustained grievous injurie s on his head. Balasubramaniam was immediately carried to the Government Hospital in Velur, then taken to Governm ent Hospital in Namakkal where he did not respond to treatment and was declared dead at 05.20 pm. Therefore you the accused have committed an offense punishable under 302 IPC and which can be tried by this court. I hereby issue an order that both of you Al and A2 should be tried by this court for the commission of the above offense. ” 8. The appellant and the co-accused (father of the appell ant) pleaded not guilty to the aforesaid charge and claimed to b e tried. It appears that the prosecution examined many witnesses. However, PW 8 – Chidambaram and PW 9 – Jeeva are the main witnesses b eing the eye witnesses to the occurrence. Both the eye witnesses have deposed that on the date of the incident the appellant herein and the deceased picked up verbal altercation in regard to the pathway and the appellant is said to have inflicted one blow with the weapon of offence as enumerated above on the head of the deceased leading to his death. ORAL EVIDENCE 9. PW-8 namely Chidambaram in his examination in chief h as deposed as under:- “I am now residing in Indira Nagar, Thaathaiyangar Patti. I am working as Lorry Driver. I know the present accu sed. About 3 years back I took my lorry to Anbazhagan’s field i n Poosari Palayam for transporting harvest of tapioca . Subramani, Veerasamy, Raja Manikkam and Jeeva accompanied me. While Subramani, Veerasamy, Raja Manikkam and Jeeva were harvesting the tubers of tap ioca the person belonging to the adjacent field told us that the lorry should not move any further since he the accused have a dispute regarding the pathway in which the lorry was on. I climbed into my lorry. At that time the accused Anbaz hagan ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] was plucking tapioca in his field. He then asked me to br ing the lorry near his field. I told him about what the n eighbor told me. But as I took my lorry ahead a verbal fight broke out between Anbazhagan and the neighbor. Then A2 came to that place. She was yelling too. With the axe M.O.1 in h is right hand, A1 Anbazhagan hit the neighbor on his head. T he neighbor suffered injuries on his mouth.” 10. PW-9 namely Jeeva in his examination in chief has deposed as under:- “I am now residing in Indira Nagar, Thaathaiyangar Patti. I I am a coolie. I know the accused present here. I w ent to pluck tapioca tubers in the garden of the accused Anbazhagan along with Chidambaram, Subramani, Veerasamy, Raja Manikkam between 07.30 & 08.00 am on 25.10.2015 at Poosari Palayam. We went inside the field with Anbaz hagan to gather the tubers. When we were clearing the plants a fter gathering the tubers Chidambaram drove the lorry inside the field. Immediately the deceased Balasubramaniam cam e inside. He was shouting at the driver and asked him as to who gave him the authority to enter inside. He told this to Anbazhagan. The deceased Balasubramaniam was standi ng on the road. Both the accused present there were gathe ring tapioca. Incidentally the accused and the deceased started getting into a verbal quarrel. We are securing the plucked tubers. The fight became bigger. Hearing the louder sound we all came over to the road where the verbal fight was going on. At that time the accused hit the deceased at his head w ith the wedding axe causing injury. He fell down immediat ely.” 11. PW-18 Dr. Anbumalar in her examination in chief has state as under:- “I am currently working as a Senior Doctor in Namak kal Government District Head Hospital. On 26.10.2015, while I was on duty then the body of one Balasubramaniam (57 years old) was brought by one Arunagiri, Head constable for post- mortem examination with permission letter and accord ingly on 26.10.2015 at 2.15 PM, the post- mortem was performed. The details of the post- mortem examination are as follows – 1103 External injuries respectively, There was bleeding from the ear and nose, above the left eye brow 3×2 cm cut injury. A cut injury measuring 4 × 2 cm wa s found on the left forehead. The front skull bone was fractured on both sides (Both parietal bone). Internal Inspection Details- The skull bone was broken and the inner lining was torn. Left Side Temporal Bone 7.5 cm. was broken. There w as a blood clot at the base of the skull. The inside of t he sprout was red. Navicular bone was correct. Left ribs 3 and 4 were fractured.” 12. The Trial Court, upon appreciation of the oral and documentary evidence on record and more particularly having regard to the ge nesis of the occurrence; the manner of assault and the nature of the weapon, took the view that the case was not one of murder punishable unde r Section 302 of the IPC but could be said one of culpable homicide not amounting to murder punishable under Section 304 Part I of the IPC and accordingly sentenced the appellant herein. 13. The High Court also came to the conclusion that the Tria l Court was right in holding the appellant herein guilty of the o ffence punishable under Section 304 Part I of the IPC. 14. In such circumstances referred to above, the appellant is here before this Court with the present appeal. SUBMISSIONS ON BEHALF OF THE APPELLANT 15. Mr. S. Nagamuthu, the learned senior counsel appearing for the appellant herein submitted that considering the manner in which the incident had occurred and the role attributed to the appellant, the conviction deserves to be altered from Section 304 Part I of the IPC to one under Section 304 Part II of the IPC. According to the learned senior counsel, the case does not fall within clause thirdly of Section 300 of the IPC. All that can be attributed to the appellant is ‘knowledge’ and ‘not intention’. SUBMISSIONS ON BEHALF OF THE RESPONDENT STATE 16. Dr. Joseph Aristotle S., the learned counsel appearing for the respondent State on the other hand, submitted that the Trial Cour t as ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] well as the High Court rightly held the appellant herein g uilty of the offence punishable under Section 304 Part I of the IPC. Accord ing to the learned counsel, the case is not one falling within the ambit of Section 304 Part II of the IPC. He would submit that the case falls within clause thirdly of Section 300 of the IPC. He submitted that exception 4 to Section 300 of the IPC is attracted and therefore, the co urts rightly convicted the appellant for the offence punishable under Section 304 Part I of the IPC. ANALYSIS 17. Having heard the learned counsel appearing for the partie s and having gone through the materials on record, the only question that falls for our consideration is whether the conviction of the a ppellant herein for the offence punishable under Section 304 Part I o f the IPC should be further altered to Section 304 Part II of the IPC. 18. We have given more than a fair idea as regards the genesis of the occurrence and the role attributed to the appel lant herein. Dr. Karthikeyan (PW-15) was examined by the prosecution in his capacity as the Medical Officer who performed the post mortem of the deceased. In the post mortem report, the doctor has noted three injur ies, (i) cut injury over 4 x 2 cm on the left eye, (ii) cut injury 4 x 3 cm on the left forehead, and (iii) 4 x 2 cm contusion around the left eye. The cause of death assigned in the post mortem report appears to be shock and haemorrhage due to head injury. 19. As the only argument canvassed before us is that the c ase does not travel beyond culpable homicide as the same falls within the third part of Section 299 of the IPC, the accused could only be said to have knowledge that he is likely by his act to cause death a nd not the intention to kill the deceased, we must explain the fine distinction between the terms ‘intent’ and ‘knowledge’. INTENT AND KNOWLEDGE :- 20. The word “intent” is derived from the word archery or aim . The “act” attempted to must be with “intention” of killing a man. 21. Intention, which is a state of mind, can never be precise ly proved by direct evidence as a fact; it can only be deduced or i nferred 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 1105 occurrence, on admission. Intention of a person cannot be pr oved by direct evidence but is to be deduced from the facts and circums tances of a case. There are various relevant circumstances from which the intention can be gathered. Some relevant considerations are the following:- 1. The nature of the weapon used. 2. The place where the injuries were inflicted. 3. The nature of the injuries caused. 4. The opportunity available which the accused gets. 22. In the case of Smt. Mathri v. State of Punjab, AIR 1964 SC 986, at page 990, Das Gupta J. has explained the concept of the word ‘intent’. The relevant observations are made by ref erring to the observations made by Batty J. in the decision Bhagwant v. 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-for eseen perhaps as a not improbable incident, but not desir ed-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) 23. In the case of Basdev v. State of Pepsu, AIR 1956 SC 488, at page 490, the following observations have been m ade by Chadrasekhara Aiyar J.:- “6. ...Of course, we have to distinguish between mot ive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an aware ness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thi ng 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 c onnote different things. Even in some English decisions, t he three ideas are used interchangeably and this had led to a certai n amount of confusion.” (Emphasis supplied) ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] 24. 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 st age, as they are very illuminating:- “The inquiry as to intent is far less simple than t hat 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 giv en 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 ac t. 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, wi thout 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 subtl e one; but it is of the same kind, namely; was he rendered by intoxication entirely incapable of forming the inte nt charged ?” (Emphasis supplied) 25. 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 punishmen ts 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 ‘in tent’ 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 de termining or inferring the requisite intent. 1107 26. In the case In re Kudumula Mahanandi Reddi , AIR 1960 AP 141, also the distinction between ‘knowledge’ and ‘intention’ is aptly explained. It is as under:- “Knowledge and intention must not be confused. 17. … Every person is presumed to intend the natural and probable consequences of his act until the contrary is proved. It is therefore necessary in order to arriv e at a decision, as to an offender’s intention to inquire what the - natural and probable consequences of his acts wou ld be. Once there is evidence that a deceased person, sustained injuries which were sufficient in the ord inary course of nature to cause death, the person who inflic ted them could be presumed to have intended those natur al and probable consequences. His offence would fall under the third head of sec. 300, I.P.C. 18. … A man’s intention has to be inferred from what he does. But there are cases in which death is caused and the intention which can safely be imputed to the offend er is less grave. The degree of guilt depends upon intention and the intention to be inferred must be gathered from the facts proved. Sometimes an act is committed which would not in an ordinary case inflict injury sufficient in the o rdinary course of nature to cause death, but which the - offe nder knows is likely to cause the death. Proof of such knowled ge throws light upon his intention. 19. …Under sec. 299 there need be no proof of knowledge, that the bodily injury intended was likely to cause deat h. Before deciding that a case of culpable homicide amounts to murder, there must be proof of intention suffici ent to bring it under Sec.300. Where the injury deliberate ly inflicted is more than merely ‘likely to cause deat h’ but sufficient in the ordinary course of nature to cause death, the higher degree of guilt is presumed.” (Emphasis supplied) It has been further observed therein as under:- “26. …Where the evidence does not disclose that there was any intention, to cause death of the deceased but it was clear that the accused had the knowledge that their act s ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] were likely to cause death the accused can be held guilty under the second part of sec. 304, I.P.C. The conten tion that in order to bring the case under the second part of sec. 304, I.P.C. it must be brought within one of t he exceptions to sec 300, I.P.C. is not acceptable .” (Emphasis supplied) 27. 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 o f culpable homicide or murder as the case may be. The fram ers of the IPC designedly used the two words ‘intention’ and ‘knowledge’, and it must be taken that the framers intended to draw a distinct ion 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 intent ion 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 conseq uences would or could follow.” (Russell on Crime, Twelfth Edition, Volume 1 at page 40 ). 28. This awareness is termed as knowledge. But the knowled ge that specified consequences would result or could result by doing an act is not the same thing as the intention that such consequences shou ld ensue. If an act is done by a man with the knowledge that certain consequences may follow or will follow, it does not necessarily m ean that he intended such consequences and acted with such intention. Intention requires something more than a mere fores ight of the consequences. It requires a purposeful doing of a thing to achie ve a particular end. This we may make it clear by referring to two passages from leading text-books on the subject. Kenny in his Outlines of Criminal Law, Seventeenth Edition at page 31 has observed:- “To intend is to have in mind a fixed purpose to reach a desired objective; the noun ‘intention’ in the present conn exion is used to denote the state of mind of a man who not only foresees but also desires the possible consequences of his conduct…….. It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfacti on, and accordingly must foresee, that to which his exp ress 1109 purpose is directed……… Again, a man cannot intend to do a thing unless he desires to do it .” (Emphasis supplied) 29. Russell on Crime , Twelfth Edition, 1st Volume at page 41 has observed:- “In the present analysis of the mental element in cri me the word “intention” is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct s o as to achieve a particular end at which he aims………… Differing from intention, yet closely resembling it, there are two other attitudes of mind, either of which is sufficient to attr act legal sanctions for harm resulting from action taken in ob edience to its stimulus, but both of which can be denoted by the word “recklessness”. In each of these the man adopts a l ine of conduct with the intention of thereby attaining an end whic h he does desire, but at the same time realises that this condu ct may also produce another result which he does not desire. In this case he acts with full knowledge that he is ta king the chance that this secondary result will follow. Here, a gain, if this secondary result is one forbidden by law, then he will be criminally responsible for it if it occurs. His prec ise mental attitude will be one of two kinds-(a) he would prefer that t he harmful result should not occur, or (b) he is indifferent as to whether it does or does not occur .” (Emphasis supplied) 30. 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 wi th 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. ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] 31. Thus, in order that the requirements of law with regard t o intention may be satisfied for holding an offence of culpable homicide proved, it is necessary that any of the two specific int entions 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 dea th 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. 32. 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 304 Part I or we should further alter it to Section 304 Part II of the IPC? SECTIONS 299 AND 300 OF THE IPC:- 33. 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’. S ection 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 v. State of U.P., (2012) 8 SCC 289) 34. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382, this Court, while clarifying the distinction between these two terms and their consequences, held as under: - “12. In the scheme of the Penal Code, ‘culpable homici de’ is genus and ‘murder’ is species. All ‘murder’ is ‘ culpable 1111 homicide’ but not vice-versa. Speaking generally, ‘c ulpable homicide not amounting to murder’. For the purpose of fix ing punishment, proportionate to the gravity of this ge neric offence, the Code practically recognises three degr ees of culpable homicide. The first is what may be called ‘c ulpable 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 homic ide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homic ide of the third degree’. This is the lowest type of culpabl e homicide and the punishment provided for it is, also, the lowest a mong the punishments provided for the three grades. Culp able homicide of this degree is punishable under the second part of Section 304. ” (Emphasis supplied) 35. Section 300 of the IPC proceeds with reference to Secti on 299 of the IPC. ‘Culpable homicide’ may or may not amount to ‘murder’, in terms of Section 300 of the IPC. When a ‘culpable homicide is murder’, the punitive consequences shall follow in terms of Section 302 of the IPC, while in other cases, that is, where an offence is ‘culpable homicide not amounting to murder’, punishment would be dealt with under Section 304 of the IPC. Various judgments of this Court have dealt with the cases which fall in various classes of firstly, secondly, thirdly and fourthly, respectively, stated under Section 300 of the IPC. It would not be necessary for us to deal with that aspect of the case in a ny further detail. 36. The principles stated in the case of Virsa Singh v. State of Punjab, AIR 1958 SC 465, are the broad guidelines for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the IPC they fall in. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the IPC, i.e. ‘culpa ble homicide’ and ‘murder’ respectively. In Phulia Tudu v. State of Bihar, (2007) 14 SCC 588, this Court noticed that confusion may arise if the courts would lose sight of the true scope and meaning of the terms used by the legislature in these sections. This Court ob served that the ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] 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 these sections. 37. This Court in Phulia Tudu (supra) has observed that the academic distinction between ‘murder’ and ‘culpable hom icide not amounting to murder’ has always vexed the courts. The confusion i s 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 i n focus the keywords used in the various clauses of Sections 299 and 300 of the IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences:- Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done- INTENTION (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (1) with the intention of causing death; or (2) 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 (3) 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 KNOWLEDGE (c) with the knowledge that the act is likely to cause death (4) with the knowledge that the act 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 is mentioned above. 1113 38. Clause (b) of Section 299 of the IPC corresponds with clauses (2) and (3) of Section 300 of the IPC. The distinguishing feat ure of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm woul d not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This clause (2) is borne out by illustration (b) appended to Section 300 of the IPC. 39. Clause (b) of Section 299 of the IPC does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 of the IPC can be where the a ssailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or dis eased heart and such blow is likely to cause death of that particular pe rson as a result; of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300 of the IPC, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299 of the IPC, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies betwee n a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The diffe rence between clause (b) of Section 299 of the IPC and clause (3) of Section 300 of the IPC is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ‘likely’ in clause (b) of Section 299 of the IPC conveys the sense of probable as distinguished from a mere possibility. The words “b odily ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] injury…..sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. 40. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. The decision in the case of Rajwant Singh v. State of Kerala, AIR 1966 SC 1874, is an apt illustration of this point. 41. 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. Analysing clause thirdly and as to what the prosecution must prove, it was held in Virsa Singh (supra) as under:- “15. First, it must establish, quite objectively, that a bodily injury is present; 16. Secondly, the nature of the injury must be proved; These are purely objective investigations. 17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say , that it was not accidental or unintentional, or that some o ther kind of injury was intended… 18. Once these three elements are proved to be present, the enquiry proceeds further and, 19. Fourthly, it must be proved that the injury of the ty pe just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. ” (Emphasis supplied) 1115 It was further observed as under:- “20. … If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional .” (Emphasis supplied) 42. Thus, it is clear that the ingredient of clause thirdly is not the intention to cause death but on the other hand the ingredient to be proved is the intention to cause the particular injury that was p resent. It is fallacious to contend that wherever there is a single injury only a case of culpable homicide is made out irrespective of other cir cumstances. In Emperor v. Sardarkhan Jaridkhan , AIR 1916 Bom 191, it was observed as under:- “Where death is caused by a single blow, it is always m uch more difficult to be absolutely certain what degree of bodily injury the offender intended .” (Emphasis supplied) 43. Commenting upon the aforesaid observation of the Bombay High Court, Justice Bose, in Virsa Singh (supra), held thus:- “23. … With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, th ough the evidence about them may sometimes overlap.” 44. As to how the intention is to be inferred even in a case of single injury, Justice Bose further held as under:- “23. … The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whethe r he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of c ourse, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact tha t the appellant inflicted it, the only possible inference is t hat he intended to inflict it. Whether he knew of its seriousn ess, ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] or intended serious consequences is neither here nor there. The question, so far as the intention is concerned, i s not whether he intended to kill, or to inflict an injur y of a particular degree of seriousness, but whether he inte nded to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how seriou s, is a totally separate and distinct question and has nothin g to do with the question whether the prisoner intended to inflict the injury in question. 24. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justi fy an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be a s serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different inju ry. The difference is not one of law but one of fact . …” (Emphasis supplied) 45. This question was again considered in Jagrup Singh v. State of Haryana, (1981) 3 SCC 616, by a Bench of this Court consisting of Justice D.A. Desai and Justice A.P. Sen and following the rat io laid down in Virsa Singh (supra) it was held as under:- “6. There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resu lting the death must always necessarily reduce the offence to culpabl e homicide not amounting to murder punishable under Section 304 Part II of the Code. If a man deliberately strikes anot her on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption , be 1117 deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. Th e whole thing depends upon the intention to cause death, and the case may be covered by either clause Istly or clause 3rd ly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force emp loyed and the circumstances attendant upon the death.” The aforesaid decision of this Court in Jagrup Singh (supra) has been strongly relied upon by the learned senior counsel appea ring for the appellant. 46. However, the learned senior counsel did not seek to rely on the observations made in para 6 referred to above in the case of Jagrup Singh (supra). The learned senior counsel relied on the observatio ns which we shall refer to hereinafter, but after givin g some factual background in the case of Jagrup Singh (supra). On the fateful evening, the marriage of one Tej Kaur was performed. Shortly ther eafter, the appellant Jagrup Singh armed with a gandhala, his brothers Billaur Singh armed with a gandasa and Jarmail Singh and Waryam Singh armed with lathies emerged suddenly and made a joint assault on the deceased Chanan Singh and the three eyewitnesses, Gurdev Singh, PW 10, Sukhdev Singh, PW 11 and Makhan Singh, PW 12. The deceased along with the three eyewitnesses was rushed to the Rural Dispensa ry, Rori where they were examined at 6 pm by Dr. Bishnoi, PW 3, who found that the deceased had a lacerated wound 9 cm × 11/2 cm bone deep on the right parietal region, 9 cm away from the tip of right pinna; margins of wound were red, irregular and were bleeding on touch; direction of wound was anterior-posterior. The deceased succumbed to the injuries. The Doctor who performed an autopsy on the dead body of the deceased deposed before the Trial Court that the death of the decease d was due to cerebral compression as a result of the head injury which was sufficient in the ordinary course of nature to cause death. In the background of this case, this Court held:- “14. … In our judgment, the High Court having held that it was more probable that the appellant Jagrup Singh had also attended the marriage as the collateral, but someth ing happened on the spur of the moment which resulted i n the infliction of the injury by Jagrup Singh on the person of the deceased Chanan Singh which resulted in his death, manifestly ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] erred in applying Clause Thirdly of Section 300 of the Code. On the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without pre-meditation and in a sudden fight, the cas e was covered by Exception 4 to Section 300. It is not su ggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. Thus, al l the requirements of Exception 4 are clearly met. That be ing so, the conviction of the appellant Jagrup Singh, under Section 302 of the Code cannot be sustained. 15. The result, therefore, is that the conviction of the ap pellant under Section 302 is altered to one under Section 304, P art II of the Indian Penal Code. For the altered convictio n, the appellant is sentenced to suffer rigorous imprisonment for a period of seven years .” (Emphasis supplied) We have noticed something in the aforesaid observations made by this Court which, in our opinion, creates some confusion. We have come across such observations in many other decisions of this Court over and above the case of Jagrup Singh (supra). What we are trying to highlight is that in Jagrup Singh (supra), although this Court altered the conviction from Section 302 to Section 304 Part II, it took shelter of Exception 4 to Section 300 of the IPC. The question is, was there any need for the Court to take recourse to Exception 4 to Section 300 of the IPC for the purpose of altering the conviction from Section 302 to Section 304 Part II of the IPC. We say so because there is fi ne difference between the two parts of Section 304 of the IPC. Under the fir st 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 nee d not bring his case within one of the exceptions to Section 300 of the IPC. 47. In Jawahar Lal v. State of Punjab, (1983) 4 SCC 159, also the accused hit the deceased with a knife blow in front of left side of his chest and as per the autopsy report the injuries were found sufficient in an ordinary course of nature to cause death. This Court took a view that 1119 the accused could be attributed the knowledge that he was l ikely to cause an injury which was likely to cause death. The relevant paras of the said judgment is reproduced as under: “17…….we should also not further dilate on this point in view of the decision of this Court in Jagrup Singh v. St ate of Haryana : 1981 Cri LJ 1136. In that case after refe rring to the evidence, this Court held that the appellant gave one blow on the head of the deceased with the blunt side of the gandhala and this injury proved fatal. The Court th en proceeded to examine as to the nature of the offence because the appellant in the case was convicted for an offence under Section 302. Undoubtedly, this Court said that ther e is no justification for the assertion that the giving of a solitar y blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Par t II of the Code. The Court then proceeded to lay down t he criteria for judging the nature of the offence. It may be extracted; The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered f rom the kind of weapon used, the part of the body hit, the amount of force employed and the circumstance attendant upon the death. 18. We may point out that decision in Jagrup Singh’ s Case 1981 Cri LJ 1136 was subsequently followed in Randhir Singh @ Dhire v. State of Punjab Decided on September 18, 1981 and in Kulwant Rai v. State of Punjab Decided on August 7, 1981 (Criminal Appeal No. 630 of 1981). 19. Having kept this criteria under view, we are of the opi nion that the offence committed by the 1st appellant would not b e covered by clause Thirdly of Para 3 of Section 300 and therefore, the conviction under Section 302, I.P.C. canno t be sustained. 20. What then is the offence committed by the 1st appellant? Looking to the age of the 1st appellant at the time of the ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] occurrence, the nature of the weapon used, the circumstances in which one blow was inflicted, the time of the day when the occurrence took place and the totality of other circumstance s, namely, the previous trivial disputes between the part ies, we are of the opinion that the 1st appellant could be at tributed the knowledge that he was likely to cause an injury which was likely to cause death. Accordingly, the 1st app ellant is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and he must be convicted for the same and sentenced to suffer rigorous imprisonment for five years maintaining the sentence of fine.” 48. In Camilo Vaz v. State of Goa [(2000) 9 SCC 1 : 2000 SCC (Cri) 1128] the accused had hit the deceased with a danda dur ing a premeditated gang-fight, resulting in the death of the vict im. Both the trial court and the Bombay High Court convicted the appellant unde r Section 302 IPC. This Court, however, converted the conviction to one under Section 304 Part II IPC and observed:- (SCC p. 9, para 14) “14. … When a person hits another with a danda on a vita l part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accus ed. In that situation case will fall in Part II of Section 304 IPC as in the present case.” (Emphasis supplied) 49. In Jai Prakash v. State (Delhi Admin.) , (1991) 2 SCC 32, this Court, after an exhaustive review of various d ecisions, more particularly, the principles laid down in Virsa Singh’s case (supra), concluded as under:- “18. In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death. The Supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc. as mentioned above only to assess the state of mind namely whether the accus ed had the necessary intention to cause that particula r injury i.e. to say that he desired expressly that such inj ury only should be the result. It is held in all these cases that there w as no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e. 1121 only had knowledge of the consequences. These circumstances under which the appellant happened to inflict the injury it is felt or at least a doubt arose that all his mental faculties c ould not have been roused as to form an intention to achieve t he particular result. We may point out that we are not concer ned with the intention to cause death in which case it w ill be a murder simplicitor unless exception is attracted. W e are concerned under clause 3rdly with the intention to cause that particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course o f nature to cause death, clause 3rdly is attracted and it wo uld be murder, unless one of the exceptions to Section 300 is attracted. If on the other hand this ingredient of ‘intention’ is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that clause 3rdly is not attracted and that the accused must be attribut ed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishabl e under Section 304 Part II IPC .” (Emphasis supplied) 50. In the case of Rajwant Singh (supra), after referring to the relevant clauses of Section 300 of the IPC, the following observations have been made:- “10. … The mental attitude is thus made of two elements (a) causing an intentional injury and (b) which injury the offender has the foresight to know would cause death …. 11. … For the application of clause three it must f irst be established that the injury is caused, next it must be established objectively what the nature of that injury in the o rdinary course of nature is. If the injury is found to be su fficient to cause death, one test is satisfied. Then it must be proved that there was an intention to inflict that very Injury and not so me other injury and that it was not accidental or unintent ional. If this is also held against the offender the offence o f murder is established. ” (Emphasis supplied) ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] 51. In the case of Anda v. State of Rajasthan , AIR 1966 SC 148, the two relevant Sections 299 and 300 respectively are brilliantly analysed and the relevant observations are made at page 151 in para 7. Before we refer to those observations, we would ref er to certain observations made earlier. They are as under:- “The offence of culpable homicide involves the doin g of an act (which term includes illegal omissions) (a) wit h the intention of causing death, or (b) with the intention of causi ng such bodily injury as is likely to cause death or (c) wit h the knowledge that the act is likely to cause death. If the death is caused in any of these three circumstances, the off ence of culpable homicide is said to be committed……. Intention and knowledge in the ingredients of the section postula te the existence of a positive mental attitude and this mental condition is the special mens rea necessary for the offence. Th e guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the death of the person. Sec. 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. Sec. 300 begin s by setting out the circumstances when culpable homicide turns out into murder which is punishable under sec. 302 and t he exceptions in the same section tell us when offence is not murder but culpable homicide not amounting to murde r punishable under sec. 304. Murder is an aggravated form of culpable homicide. The existence of one of four con ditions turns culpable homicide into murder while the speci al exceptions reduce the offence of murder again to cu lpable homicide not amounting to murder. ” (Emphasis supplied) 52. We will now refer to the relevant observations made in para 10 at page 151. They are as under:- “The third clause views the matter from a general stand-p oint. It speaks of an intention to cause bodily injury wh ich is sufficient in the ordinary course of nature to caus e death. The emphasis here is on the sufficiency of the inju ry in the 1123 ordinary course of nature to cause death. The sufficienc y is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causi ng of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the b ody on which the injury is caused, and sometimes both are relevant . The determinant factor is the intentional injury wh ich must be sufficient to cause death, that is to say, the probabil ity of death is not so high, the offence does not fall within murder but within culpable homicide not amounting to murde r or something less. The illustration appended to the clause 3 rdly reads: ‘(c) A intentionally gives Z a sword-cut or club-wo und sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z’s deat h.’ The sufficiency of an intentional injury to cause de ath in the ordinary way of nature is the gist of the claus e irrespective of an intention to cause death. Here a gain, the exceptions may bring down the offence to culpab le homicide not amounting to murder .” (Emphasis supplied) 53. This Court in Vineet Kumar Chauhan v. State of U.P., (2007) 14 SCC 660, noticed that the academic distinction between ‘murde r’ and ‘culpable homicide not amounting to murder’ had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, where it was observed as under:- “…that the safest way of approach to the interpretation a nd application of Sections 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of s ections 299 and 300 of the Code and the drawing support from the decisions of the court in Virsa Singh v. State of Punjab , (AIR 1958 SC 465 : 1958 Cri LJ 818) and Rajwant Singh v. S tate of Kerala, (AIR 1966 SC 1874 : 1966 Cri LJ 1509) speak ing for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, whi ch have been time and again reiterated. Having done so, the court said that wherever the Court is confronted with the que stion ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it wou ld be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be tha t the accused has done an act by doing which he has ca used the death of another. Two, if such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in section 299. If the answer to this question is in the negative, the offence wo uld be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third c lause of Section 299 is applicable. If this question is foun d in the positive but the cases come within any of the excep tions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. It was, however, c larified that these were only broad guidelines to facilitate the task o f the court and not cast-iron imperative .” (Emphasis supplied) 54. In the case of Tholan v. State of Tamil Nadu, AIR 1984 SC 759,the accused stood in front of the house of the deceased and used filthy language against some persons who were unconnected with the deceased. The deceased came out of his house and told the accused that he should not use vulgar and filthy language in front of ladies and asked him to go away. The accused questioned the authority of t he deceased to ask him to leave the place. In the ensuing al tercation, the accused gave one blow with a knife which landed on the (right) chest of the deceased which proved to be fatal. This Court came to the conclusion that the accused could not be convicted under Section 302, but w as guilty under Section 304 Part II. The circumstances which weighed with this Court were : (i) there was no connection between the accused and the deceased and the presence of the deceased at the time of the incident, was wholly accidental; (ii) altercation with the deceased w as on the spur of the moment and the accused gave a single blow being enraged by the deceased asking him to leave the place; (iii) the requisite intention could not be attributed to the accused as there was nothing to in dicate that the accused intended the blow to land on the right side of the chest which proved to be fatal. 1125 55. In Chamru, Son of Budhwa v. State of Madhya Pradesh , AIR 1954 SC 652, in somewhat similar circumstances, where there was exchange of abuses between the two parties both of whom were armed with lathis, they came to blows and in the course of the fight that ensued, the accused struck a lathi blow on the head of the deceased which caused a fracture of the skull resulting in the death. In view of the fact that the accused had given only one blow in the heat of the moment, it was held that all that can be said was that he had given the blow with the knowledge that it was likely to cause death and, therefore, the offe nce fell under Section 304, Part II of the IPC. In Willie (William) Slaney v. The State of Madhya Pradesh, AIR 1956 SC 116, there was, as here, a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey-stick had been given on the head. T he Court held that the offence amounted to culpable homicide not amounting to murder punishable under Section 304, Part II. 56. In Kulwant Rai v. State of Punjab , (1981) 4 SCC 245, the accused, without any prior enmity or premeditation, on a short quarrel gave a single blow with a dagger which later proved to b e fatal. This Court observed that since there was no premeditation, Part 3 of Section 300 of the IPC could not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ul timately found to have been inflicted. In the facts and circumstanc es of that case, the conviction of the accused was altered from Section 302 to that under Section 304 Part II IPC and the accused was sentenced to suffer rigorous imprisonment for five years. 57. In Jagtar Singh v. State of Punjab, (1983) 2 SCC 342, the accused on the spur of the moment inflicted a knife-blow on the chest of the deceased. The injury proved to be fatal. The doctor opined that the injury was sufficient in the ordinary course of nature to ca use death. This Court observed that: (SCC p. 344, para 8):- “8. … The quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least c ould be imputed with a knowledge that he was likely to cause an inj ury which was likely to cause death . …” (Emphasis supplied) ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] This Court altered the conviction of the appellant from Secti on 302 IPC to Section 304 Part II IPC and sentenced the accused to suffer rigorous imprisonment for five years. 58. In Hem Raj v. State (Delhi Admn.), 1990 Supp SCC 291, the accused inflicted single stab injury landing on the chest of the deceased. The occurrence admittedly had taken place on the spur of the moment and in heat of passion upon a sudden quarrel. According to the doc tor the injury was sufficient in the ordinary course of nature to cause death. This Court observed as under: (SCC p. 295, para 14)”- “14. The question is whether the appellant could be said to have caused that particular injury with the intention of causi ng death of the deceased. As the totality of the established f acts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without premeditation during the course of which the appellant caus ed a solitary injury, he could not be imputed with the i ntention to cause death of the deceased or with the intention to cau se that particular fatal injury; but he could be imputed with t he knowledge that he was likely to cause an injury whic h was likely to cause death. Because in the absence of any pos itive proof that the appellant caused the death of the de ceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither clause I nor cl ause III of Section 300 IPC will be attracted .” (Emphasis supplied) This Court while setting aside the conviction under Section 302 convicted the accused under Section 304 Part II and sentenced him to undergo rigorous imprisonment for seven years. 59. We may lastly refer to the decision of this Court in Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500, wherein this Court enumerated some of the circumstances rel evant to finding out whether there was any intention to cause death on the part of the accused. This Court observed : (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 dec ide whether the case falls under Section 302 or 304 Par t I or 1127 304 Part II. Many petty or insignificant matters — pluck ing of a fruit, straying of cattle, quarrel of children, utt erance of a rude word or even an objectionable glance, may le ad 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. The re may be no premeditation. In fact, there may not eve n 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 t here 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 Sectio n 304 Part I/II, or cases of culpable homicide not amount ing to murder, are treated as murder punishable under Sect ion 302. The intention to cause death can be gathered genera lly from a combination of a few or several of the following, amo ng other, circumstances : (i) nature of the weapon use d; (ii) whether the weapon was carried by the accused or was picke d up from the spot; (iii) whether the blow is aimed at a vita l part of the body; (iv) the amount of force employed in c ausing injury; (v) whether the act was in the course of sudden quarre l or sudden fight or free for all fight; (vi) whether the i ncident occurs by chance or whether there was any premeditat ion; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any gr ave and sudden provocation, and if so, the cause for su ch provocation; (ix) whether it was in the heat of pass ion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (x i) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaus tive and there may be several other special circumstance s with reference to individual cases which may throw light o n the question of intention.” (Emphasis supplied) 60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:- (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. 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’ snea ks 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 p lunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortl y 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 injur y was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused’s case attracts a ny one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situati on also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd pa rt of 1129 Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty o f the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Secti on 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or i njuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caus ed and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle , can be 1131 drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death o f the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done witho ut 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. 61. We once again recapitulate the facts of this case. On the fateful day of the incident, the father and son were working in their agricultural field early in the morning. They wanted to transport the crop, they had harvested and for that purpose they had called for a lorry. The lorry arrived, however, the deceased did not allow the driver of the lorry to use the disputed pathway. This led to a verbal altercation between the appellant and the deceased. After quite some time o f the verbal altercation, the appellant hit a blow on the head of the deceased with the weapon of offence (weed axe) resulting in his death in the hospital. 62. Looking at the overall evidence on record, we find it difficult to come to the conclusion that when the appellant struck t he deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause d eath. The weapon of offence in the present case is a common agriculture tool. If a man is hit with a weed axe on the head with sufficient force, it is bound to cause, as here, death. It is true that the injuries shown in the post mortem report are fracture of the parietal bone as well as the temporal ANBAZHAGAN v. THE STATE REPRESENTED BY THE INSPECTOR OF POLICE [J. B. PARDIWALA, J.] bone. The deceased died on account of the cerebral compression i .e. internal head injuries. However, the moot question is – whether that by itself is sufficient to draw an inference that the appella nt intended to cause such bodily injury as was sufficient to cause death. We are of the view that the appellant could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. It is in such circumstances that we are inclined to take the view that the case on hand does not fall within clause thirdly of Section 300 of the IPC. 63. In the aforesaid view of the matter and more particularly bearing the principles of law explained aforesaid, the present appe al is partly allowed. The conviction of the appellant under Section 304 Part I of the IPC is altered to one under Section 304 Part II of the IPC. For the altered conviction, the appellant is sentenced to unde rgo rigorous imprisonment for a period of five years. Ankit Gyan Appeal partly allowed.