[Cites 23, Cited by 0]
Chattisgarh High Court
Sahasram Bharadwaj vs State Of Chhattisgarh on 13 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:12033-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1041 of 2018
1. Sahasram Bharadwaj S/o Cherkaram, Aged About 45 Years R/o
Village Patharri, Police Out Post Hardibazar P.S. Kusmunda,
District Korba Chhattisgarh., District : Korba, Chhattisgarh
2. Smt. Budhwarbai, W/o Sahasram, Aged About 44 Years R/o Village
Patharri, Police Out Post Hardibazar P.S. Kusmunda, District Korba
Chhattisgarh., District : Korba, Chhattisgarh ... Appellant(s)
versus
• State Of Chhattisgarh Through Station House Officer, P.S.
Kusmunda, District Korba Chhattisgarh., District : Korba,
Chhattisgarh ...Respondent(s)
For appellants : Mr. Akhtar Hussain, Advocate.
For Respondent/State : Mr. Ashish Shukla, Addl. A.G.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
13.03.2026
1. Heard Mr. Akhtar Hussain, learned counsel for the appellant. Also
heard Mr. Ashish Shukla, learned Addl. A.G., appearing for the
respondent/State.
2. This criminal appeal filed by the appellants/accused under Section
374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') is
directed against the impugned Judgment of conviction and order of
sentence dated 28.06.2018, passed by the learned Additional Sessions
Judge, Katghora District Korba (C.G.) in Session Trial No. 100/2016,
whereby the appellants have been convicted and sentenced as under:
Conviction under Sentence
Section
Section 302/34 of the Rigorous imprisonment (for
Indian Penal Code (for short, 'R.I.') for life (for all the
short, 'IPC') appellants) and fine of Rs.
5,000/-, in default of payment of
fine, 01 month additional R.I.
3. Case of the prosecution, in brief, is that on 28.09.2016 at about
12:00 noon, the deceased Narayan Prasad Tandon was present in front
of his house. At that time, the accused Sahasram, Smt. Budhwarabai and
the child in conflict with law came there and started abusing him in filthy
language and threatening to kill him. Thereafter, the accused persons
pushed Narayan Prasad Tandon to the ground and started assaulting him
with fists and kicks. When Narayan Prasad fell on the ground, Smt.
Budhwarabai caught hold of him and her husband Sahasram kicked him
on his testicles. Meanwhile, the child in conflict with law assaulted him on
the head with a stone. Hearing the commotion, Smt. Chhannibai came out
of her house and, on hearing her cries, Jankaram, Darsaram Tandon,
Chandramani Patle and Hemant Kumar Miri also reached the spot and
intervened. Due to the assault by the accused persons, blood started
oozing from the head of Narayan Prasad Tandon and he fell on the
ground. Thereafter, the 108 ambulance was called and he was taken to
the Primary Health Centre, Hardibazar, where the doctor, after
examination, declared him dead. Thus, the accused Sahasram, Smt.
Budhwarabai and the child in conflict with law committed the murder of
Narayan Prasad Tandon by assaulting him with fists, kicks and a stone.
On the same day, Smt. Chhannibai lodged a report of the incident at
Police Outpost Hardibazar. Inspector Man Singh Rathia registered the
First Information Report at Police Outpost Hardibazar on the basis of the
report lodged by Smt. Chhannibai under Section 302/34 of the IPC as
Crime No. 0/2016, and on the same day a merg intimation No. 0/2016
was also registered. Thereafter, the said First Information Report and
merg were transmitted to Police Station Kusmunda, where Head
Constable Ishwari Prasad Lahre registered Crime No. 115/2016 under
Section 302/34 of the IPC and also registered Merg No. 52/2016.
4. During the course of investigation, on 02.08.2016, Inspector Man
Singh Rathia visited the Primary Health Centre, Hardibazar and issued
notices to the witnesses for the preparation of the inquest over the dead
body. On the same day, in the presence of the witnesses, the inquest
proceedings over the dead body of the deceased Narayan Prasad
Tandon were conducted and the inquest report was prepared (Ex.P/2).
Thereafter, the post-mortem examination of the deceased Narayan
Prasad Tandon was conducted at the Primary Health Centre, Hardibazar
by Dr. A.N. Kanwar (Ex.P/7). On the same day, Inspector Man Singh
Rathia visited the place of occurrence at village Pathri and prepared the
spot map of the place of incident on the basis of the statements of the
witnesses.
5. During investigation, on 02.08.2016, Inspector Man Singh Rathia
recorded the statements of Smt. Chhannibai, Darsaram Tandon,
Kriparam, Arvind, Binayak Kant and Jankaram as per their versions.
Thereafter, on 03.08.2016, the accused Sahasram, Smt. Budhwarabai
and the child in conflict with law were arrested and their arrest memos
were prepared. On the same day, the memorandum statement of the child
in conflict with law was recorded in the presence of witnesses and,
pursuant to his disclosure statement, a blood-stained sando baniyan was
seized from him in the presence of witnesses and a seizure memo was
prepared. Further, a muddy stone weighing about 500 grams was also
seized from the said child in conflict with law in the presence of witnesses
and the seizure memo was prepared accordingly.
6. Further during the course of investigation, on 04.08.2016, a blood-
stained towel (gamcha) was seized from Smt. Chhannibai, the wife of the
deceased Narayan Prasad Tandon, in the presence of witnesses.
Thereafter, on 30.08.2016, the statements of Hemant Kumar Giri and
Chandramani Patle were recorded. On 03.09.2016, the statement of
Jagdish Prasad was recorded, and on 15.09.2016, the statements of
Santoshi Kurre and Kirtanbai were recorded as per their versions. The
seized stone was sent to the Primary Health Centre, Hardibazar on
12.09.2016 for medical query, and Dr. A.N. Kanwar furnished the query
report. Further, on 03.09.2016, an application was submitted to the Naib-
Tahsildar, Hardibazar for preparation of the map of the place of
occurrence through the Patwari. Pursuant to the directions of the Naib-
Tahsildar, Patwari Manjulata Kanwar prepared the spot map and
panchnama of the place of occurrence in the presence of witnesses. The
seized articles were also sent for chemical examination to the Regional
Forensic Science Laboratory, Bilaspur through the Superintendent of
Police, Korba.
7. After completion of the entire investigation, the Police filed charge-
sheet against the appellants before the trial Court. The trial Court has
framed charges against the appellants for the offences punishable under
Section 302/34 of the IPC and proceeded on trial. The appellants abjured
the guilt and entered into defence stating that he has not committed any
offence and he has been falsely implicated.
8. In order to bring home the offence, the prosecution examined as
many as 11 witnesses and exhibited 31 documents. The
appellants/accused examined none in his defence and in their defence,
Hemant Kumar Miri and Sarpanch Smt. Kantibai were examined.
9. The trial Court upon appreciation of oral and documentary evidence
available on record, by its judgment dated 28.06.2018, convicted the
accused/appellants for the offence punishable under Section 302/34 of
the IPC and sentenced them as aforementioned, against which, this
criminal appeal has been filed.
10. Learned counsel for the appellants would submit that there are
three accused in this case and one accused child in conflict with law
was separately tried and in CRA No.1039 of 2018 which is filed as
Annexure D-1, wherein by order dated 08.02.2019 his conviction has
been converted from 302 IPC to 304 Part-1 IPC. He would further
submit that the main allegation of assault was on child with conflict in
law that he assaulted on the head of the deceased by way of stone and
cause of death was head injury. He would further submit that since
aspect of the overtact has been considered by the co-ordinate Bench of
this Court, the allegation against the present appellants cannot exceed
such limit. Moreover, learned counsel for the appellants submits that the
learned trial Court is absolutely unjustified in convicting the appellants for
the offence punishable under Section 302/34 of the IPC, as the
prosecution has failed to prove the offence beyond reasonable doubt. He
further submits that if the case of the prosecution is accepted on the face
of it, then also the appellants is said to have caused injuries to deceased
on the spur of the moment. There was no motive or intention on the part of
the appellants to cause death of the deceased and only on account of
sudden quarrel, under heat of passion and in anger, the appellants
caused injuries to the deceased, which caused his death. Therefore, the
case of the present appellants falls within the purview of Exception 4 to
Section 300 of the IPC and the act of the appellants is culpable homicide
not amounting to murder, and therefore, it is a fit case where the
conviction of the appellants for the offence punishable under Section 302
of the IPC can be converted/altered to an offence under Section 304
(Part-I or Part-II) of the IPC. Further, the appellants were in custody from
03.08.2016 to 06.02.2017 and in jail from 28.06.2018 to 09.12.2021 they
have completed near about 03 years, 9 months and 16 days, therefore,
considering the period he had already undergone, they be awarded the
sentence of the period already undergone by them. Hence, the present
appeal deserves to be allowed in full or in part.
11. Per contra, learned State counsel, opposing the appeal, submits
that the judgment of conviction and order of sentence passed by the trial
Court is well-founded and based on proper appreciation of the evidence
available on record. It is contended that the prosecution has successfully
established the guilt of the appellants beyond reasonable doubt through
the consistent and reliable testimony of the eyewitnesses, namely
Chhannibai (PW-2), Jagdish Tandon (PW-4) and Jankaram Tandon (PW-
5), who were present at the place of occurrence and have clearly narrated
the manner in which the deceased Narayan Prasad Tandon was
assaulted. It is further submitted that the medical evidence adduced by
the prosecution fully corroborates the ocular testimony of the
eyewitnesses and establishes that the death of the deceased occurred
due to the head injury sustained during the assault. therefore, in view of
the statements of the prosecution witnesses coupled with other material
available on record, the learned trial Court has rightly convicted the
appellants for offence under Section 302/34 of the IPC. It has been
contended that appellants have committed heinous crime of murder and
in such circumstances, it is not the case where conviction of the
appellants for offence under Section 302/34 of IPC requires to be altered
to Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves
to be dismissed.
12. We have heard learned counsel appearing for the parties,
considered their rival submissions made hereinabove and also went
through the records with utmost circumspection.
13. The first question for consideration would be, whether death
of deceased was homicidal in nature ?
14. In this regard, the prosecution has examined Dr. A.N. Kanwar (PW-
9), who conducted the post-mortem examination of the deceased at
Primary Health Centre, Hardibazar on 02.08.2016 and proved the post-
mortem report (Ex.P/7). The said witness has categorically stated that
during the post-mortem examination he found clotted blood above and
below the left eye of the deceased, swelling and redness on the testicles
and also found that there was intracranial hemorrhage and clotting of
blood in the brain. According to the doctor, the death of the deceased
occurred due to head injury resulting in brain hemorrhage. The doctor has
further opined that the injuries sustained by the deceased were sufficient
in the ordinary course of nature to cause death and the death was
homicidal in nature.
15. The medical evidence adduced by the prosecution fully
corroborates the ocular testimony of the eyewitnesses, namely Smt.
Chhannibai (PW-2), Jagdish Tandon (PW-4) and Jankaram Tandon (PW-
5), who have consistently stated that the accused persons assaulted the
deceased with fists, kicks and a stone, and the child in conflict with law
hit the deceased on his head with a stone. Their statements clearly
establish that the deceased sustained injuries during the assault made by
the accused persons.
16. In view of the clear and cogent testimony of Dr. A.N. Kanwar (PW-9)
coupled with the post-mortem report (Ex.P/7), and the corroborating
ocular evidence of the eyewitnesses, this Court has no hesitation in
holding that the death of the deceased Narayan Prasad Tandon was
homicidal in nature and we accordingly affirm it.
17. At this stage, it is pertinent to note that the case of the child in
conflict with law arising out of the same incident has already been decided
by this Court in Criminal Appeal No. 1039 of 2018, wherein the conviction
of the said child in conflict with law was altered from Section 302 of the
IPC to Section 304 Part-II of the IPC. Since the said appeal has already
attained finality, the present appeal is required to be considered only in
respect of the present appellants namely Sahasram Bharadwaj and
Smt. Budhwarabai, on the basis of the evidence available on record and
the role attributed to them in the incident.
18. Now, the next question for consideration would be whether
the accused/appellants herein are the perpetrator of the crime in
question ?
19. In order to ascertain the involvement of the present appellants in the
commission of the offence, it would be appropriate to examine the
testimony of the eyewitnesses relied upon by the prosecution. The
prosecution has examined Smt. Chhannibai (PW-2), Jagdish Tandon
(PW-4) and Jankaram Tandon (PW-5) as eyewitnesses to the incident.
20. Smt. Chhannibai (PW-2), who is the wife of the deceased Narayan
Prasad Tandon, has deposed that on the date of the incident at about
12:00 noon her husband was sitting in front of their house when the
appellants Sahasram Bharadwaj and Smt. Budhwarabai along with the
child in conflict with law came there and started abusing him. She has
further stated that the appellants started assaulting her husband by fists
and kicks. According to her testimony, when the deceased fell down on
the ground, Smt. Budhwarabai caught hold of him while appellant
Sahasram kicked him on his testicles and the child in conflict with law
struck the deceased on the head with a stone. She has further stated that
upon hearing the commotion, Jagdish Tandon and Jankaram Tandon
reached the spot and intervened in the matter. Thereafter, the injured was
taken to the Primary Health Centre, Hardibazar, where he was declared
dead by the doctor.
21. The testimony of Smt. Chhannibai (PW-2) finds due corroboration
from the statements of Jagdish Tandon (PW-4) and Jankaram Tandon
(PW-5). Both these witnesses have categorically stated that they were
present near the place of occurrence and witnessed the incident. They
have supported the version of Smt. Chhannibai (PW-2) and have clearly
deposed that the appellants were assaulting the deceased with fists and
kicks and the child in conflict with law assaulted the deceased with a
stone on his head, as a result of which the deceased sustained serious
injuries and fell unconscious.
22. In the present case, the Investigating Officer Man Singh Rathia
(PW-11) has stated that during the course of investigation he recorded the
statements of the witnesses under Section 161 of the Cr.P.C., prepared
the inquest over the dead body of the deceased, got the post-mortem
examination conducted and also prepared the spot map of the place of
occurrence. He has further deposed that the accused persons were
arrested during the investigation and on the basis of the memorandum
statement of the child in conflict with law, a stone alleged to have been
used in the commission of the offence and a blood-stained sando baniyan
were seized in the presence of witnesses. The seized articles were
thereafter sent for medical query and forensic examination. Nothing
material has been elicited in the cross-examination of this witness so as to
discredit the investigation conducted by him.
23. In the present case, the Constable Ishwari Prasad Lahre (PW-8)
has deposed that the First Information Report which was initially
registered at Police Outpost Hardibazar in zero number was thereafter
transmitted to Police Station Kusmunda, where it was registered as Crime
No.115/2016 under Section 302/34 of the IPC. He has further stated that
the merg intimation registered at the outpost was also transmitted to the
concerned police station and was duly recorded. The testimony of this
witness establishes the procedural steps taken in registration of the
offence and transmission of the case to the competent police station for
investigation. Nothing material has been brought in his cross-examination
to disbelieve his testimony.
24. On the basis of the seizure memo (Ex.P-16) prepared during the
course of investigation, the Investigating Officer seized the stone alleged
to have been used in the commission of the offence along with other
articles from the place of occurrence in the presence of independent
witnesses. The seizure witnesses have supported the prosecution case
regarding preparation of the seizure memo and recovery of the said
articles. The seized articles were duly sealed and taken into possession
and thereafter sent for further examination.
25. In the present case, the evidence of the witnesses, who were
naturally present at the place of occurrence, supports the prosecution
version that the accused persons assaulted the deceased Narayan
Prasad Tandon during the course of a sudden quarrel and the child in
conflict with law inflicted a blow on the head of the deceased with a stone.
Chhannibai (PW-2) is the wife of the deceased, while Jagdish Tandon
(PW-4) and Jankaram Tandon (PW-5) are residents of the same locality
and were present at the spot at the time of the incident. The record
establishes that the incident occurred in front of the house of the
deceased and these witnesses reached the spot immediately and
witnessed the occurrence. There is no reason to disbelieve the testimony
of Chhannibai (PW-2), Jagdish Tandon (PW-4) and Jankaram Tandon
(PW-5) that the appellants along with the child in conflict with law
assaulted the deceased and that the child in conflict with law struck the
deceased on the head with a stone, which ultimately resulted in his death.
26. The aforesaid finding brings us to the next question for
consideration, whether the case of the appellants is covered within
Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not
amounting to murder and their conviction can be converted to Section 304
Part-I or Part-II of the IPC, as contended by learned counsel for the
appellants ?
27. The distinction between intention and knowledge in the context of
Section 299 and Section 300 IPC is crucial in determining the culpability
of the appellant. Intention denotes a conscious desire to bring about a
particular result, whereas knowledge implies awareness that a particular
consequence is likely to ensue.
28. In the present case, while the appellants' actions were undoubtedly
culpable, the circumstances suggest that the incident occurred all of a
sudden in the course of a quarrel between the parties and without any
premeditation. The evidence on record indicates that the appellants
assaulted the deceased with fists and kicks during the altercation,
whereas the fatal blow on the head of the deceased was inflicted by the
child in conflict with law by means of a stone picked up from the spot.
There is nothing to show that the appellants had the intention to cause the
death of the deceased; however, it can reasonably be inferred that they
had the knowledge that such acts were likely to cause death.
29. Reverting to the facts of the present case, the following facts are
salient:
• The incident occurred all of a sudden in front of the house of
the deceased Narayan Prasad Tandon when a quarrel erupted
between the parties and there is nothing on record to indicate
that the appellants had any prior intention or premeditation to
cause the death of the deceased.
• The evidence of the eyewitnesses, namely Chhannibai (PW-2),
Jagdish Tandon (PW-4) and Jankaram Tandon (PW-5), clearly
establishes that the appellants assaulted the deceased with
fists and kicks during the altercation, whereas the fatal injury
on the head of the deceased was inflicted by the child in
conflict with law with a stone picked up from the spot.
• The material on record does not indicate that the appellants
were armed with any deadly weapon or that they acted in a
cruel or unusual manner during the incident.
• The entire occurrence appears to have taken place in the heat
of passion upon a sudden quarrel without the appellants taking
undue advantage of the situation.
30. The Hon'ble Apex Court in the matter of Anbazhagan v. The State
Rep. By The Inspector of Police, reported in 2023 INSC 632, readily
held when a case would fall under Section 304 Part II of the IPC rather
than Section 302 of the IPC, emphasizing that Part II applies where
"murder is never established" and only knowledge (not intention) is
attributable; it also surveys classic "single blow" cases altering Section
302 to Section 304 Part II (e.g., Jawahar Lal, Camilo Vaz, Jai Prakash,
Kulwant Rai, Hem Raj, Pulicherla Nagaraju) and ultimately converts the
conviction to Section 304 Part II. Relevant paras of the judgment are
reproduced hereinbelow:-
"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
precisely proved by direct evidence as a fact; it can
only be deduced or inferred from other facts which are
proved. The intention may be proved by res gestae, by
acts or events previous or subsequent to the incident
or occurrence, on admission. Intention of a person
cannot be proved by direct evidence but is to be
deduced from the facts and circumstances of a case.
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 referring 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-foreseen perhaps
as a not improbable incident, but not desired-
but rather connotes the one object for which
the effort is made-and thus has reference to
what has been called the dominant motive,
without which, the action would not have
been taken."
23. In the case of Basdev v. State of Pepsu, AIR 1956
SC 488, at page 490, the following observations have
been made by Chadrasekhara Aiyar J.:-
"6. Of course, we have to distinguish
between motive, intention and knowledge.
Motive is something which prompts a man to
form an intention and knowledge is an
awareness of the consequences of the act. In
many cases intention and knowledge merge
into each other and mean the same thing
more or less and intention can be presumed
from knowledge. The demarcating line
between knowledge and intention is no doubt
thin but it is not difficult to perceive that they
connote different things. Even in some
English decisions, the three ideas are used
interchangeably and this had led to a certain
amount of confusion."
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 stage, as they are very illuminating:-
"The inquiry as to intent is far less simple than
that as to whether an act has been committed,
because you cannot look into a man's mind to
see what was passing there at any given time.
What he intends can only be judged of by what
he does or says, and if he says nothing, then his
act alone must guide you to your decision. It is a
general rule in criminal law, and one founded on
common sense, that juries are to presume a
man to do what is the natural consequence of
his act. The consequence is sometimes so
apparent as to leave no doubt of the intention. A
man could not put a pistol which he knew to be
loaded to another's head, and fire it off. without
intending to kill him; but even there the state of
mind of the party is most material to be
considered. For instance, if such an act were
done by a born idiot, the intent to kill could not
be inferred from the act. So if the defendant is
proved to have been intoxicated, the question
becomes a more subtle one; but it is of the
same kind, namely; was he rendered by
intoxication entirely incapable of forming the
intent charged?"
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 punishments are provided
for an act committed with an intent to cause bodily
injury which is likely to cause death and for an act
committed with a knowledge that his act is likely to
cause death without intent to cause such bodily injury
as is likely to cause death, it would be proper to hold
that 'intent' and 'knowledge' cannot be equated with
each other. They connote different things. Sometimes,
if the consequence is so apparent, it may happen that
from the knowledge, intent may be presumed. But it
will not mean that 'intent' and 'knowledge' are the
same. 'Knowledge' will be only one of the
circumstances to be taken into consideration while
determining or inferring the requisite intent.
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 arrive at a decision, as to
an offender's intention to inquire what the -
natural and probable consequences of his acts
would be. Once there is evidence that a
deceased person, sustained injuries which were
sufficient in the ordinary course of nature to
cause death, the person who inflicted them
could be presumed to have intended those
natural 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 offender is less grave.
The degree of quilt 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 ordinary course of
nature to cause death, but which the offender
knows is likely to cause the death. Proof of such
knowledge 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 death. Before deciding that a
case of culpable homicide amounts to murder,
there must be proof of intention sufficient to
bring it under Sec.300. Where the injury
deliberately inflicted is more than merely likely
to cause death' but sufficient in the ordinary
course of nature to cause death, the higher
degree of quilt is presumed."
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 acts were likely to
cause death the accused can be held guilty
under the second part of sec. 304, I.P.C. The
contention that in order to bring the case under
the second part of sec. 304. I.P.C. it must be
brought within one of the exceptions to sec 300,
I.P.C. is not acceptable."
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 of culpable homicide or murder as the
case may be. The framers of the IPC designedly used
the two words 'intention' and 'knowledge', and it must
be taken that the framers intended to draw a
distinction between these two expressions. The
knowledge of the consequences which may result in
the doing of an act is not the same thing as the
intention that such consequences should ensue.
Except in cases where mens rea is not required in
order to prove that a person had certain knowledge,
he "must have been aware that certain specified
harmful consequences would or could follow." (Russell
on Crime, Twelfth Edition, Volume 1 at page 40).
28. This awareness is termed as knowledge. But the
knowledge that specified consequences would result
or could result by doing an act is not the same thing as
the intention that such consequences should ensue. If
an act is done by a man with the knowledge that
certain consequences may follow or will follow, it does
not necessarily mean that he intended such
consequences and acted with such intention. Intention
requires something more than a mere foresight of the
consequences. It requires a purposeful doing of a
thing to achieve 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 connexion 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 satisfaction, and
accordingly must foresee, that to which his
express purpose is directed......... Again, a man
cannot intend to do a thing unless he desires to
do it."
29. Russell on Crime, Twelfth Edition, 1st Volume at
page 41 has observed:-
"In the present analysis of the mental element in
crime 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 so 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 attract legal sanctions for
harm resulting from action taken in obedience to
its stimulus, but both of which can be denoted by
the word "recklessness". In each of these the
man adopts a line of conduct with the intention of
thereby attaining an end which he does desire,
but at the same time realises that this conduct
may also produce another result which he does
not desire. In this case he acts with full
knowledge that he is taking the chance that this
secondary result will follow. Here, again, if this
secondary result is one forbidden by law, then he
will be criminally responsible for it if it occurs. His
precise mental attitude will be one of two kinds-
(a) he would prefer that the harmful result should
not occur, or (b) he is indifferent as to whether it
does or does not occur."
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 with the intention of causing such
bodily injury as is likely to cause death" it must be
proved that the accused had the aim of causing such
bodily injury as was likely to cause death.
31. Thus, in order that the requirements of law with
regard to intention may be satisfied for holding an
offence of culpable homicide proved, it is necessary
that any of the two specific intentions must be proved.
But, even when such intention is not proved, the
offence will be culpable homicide if the doer of the act
causes the death with the knowledge that he is likely
by his such act to cause death, that is, with the
knowledge that the result of his doing his act may be
such as may result in death.
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'. Section 300 of the IPC, however,
deals with 'murder', although there is no clear
definition of 'murder' in Section 300 of the IPC. As has
been repeatedly held by this Court, 'culpable
homicide' is the genus and 'murder' is its species and
all 'murders' are 'culpable homicides' but all 'culpable
homicides' are not 'murders'. (see Rampal Singh 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
homicide' is genus and 'murder' is species. All
'murder' is 'culpable homicide' but not vice-versa.
Speaking generally, 'culpable homicide not
amounting to murder'. For the purpose of fixing
punishment. proportionate to the gravity of this
generic offence, the Code practically recognises
three degrees of culpable homicide. The first is
what may be called 'culpable homicide of the first
degree'. This is the greatest form of culpable
homicide, which is defined in Section 300 as
'murder'. The second may be termed as 'culpable
homicide of the second degree'. This is
punishable under the first part of Section 304.
Then, there is 'culpable homicide of the third
degree'. This is the lowest type of culpable
homicide and the punishment provided for it is,
also, the lowest among the punishments provided
for the three grades. Culpable homicide of this
degree is punishable under the second part of
Section 304."
35. Section 300 of the IPC proceeds with reference to
Section 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 any 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. 'culpable
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 observed
that the safest way of approach to the interpretation
and application of these provisions seems to be to
keep in focus the keywords used in the various
clauses of these sections.
37. This Court in Phulia Tudu (supra) has observed
that the academic distinction between 'murder' and
'culpable homicide not amounting to murder' has
always vexed the courts. The confusion is caused if
courts losing sight of the true scope and meaning of
the terms used by the legislature in these sections,
allow themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation and
application of these provisions seems to be to keep in
focus the keywords used in the various clauses of
Sections 299 and 300 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 Subject to certain culpable
culpable homicide if the homicide is murder if the
act by which the death is exceptions act by which the
caused is done- death is caused is done-
INTENTION
(a) with the intention of (1) with the intention of causing
causing death; or death; or
(b) with the intention of (2) with the intention of causing
such causing bodily such bodily injury as the
injury as is likely to offender knows to be likely to
cause death; or 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 (4) with the knowledge that the
that the act is likely to act is so imminently dangerous
cause death 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.
31. Recently, in Velthepu Srinivas v. State of A.P., reported in 2024
SCC OnLine SC 107, the Supreme Court converted a Section 302 of the
IPC conviction to Section 304 Part II for one accused, sentencing him to
10 years, where the role and circumstances evidenced lack of intention
but knowledge that the act was likely to cause death. Relevant paras of
the judgment are reproduced hereinbelow:-
"28. Even though, A-3 might not have had the common
intention to commit the murder, nevertheless, his
participation in the assault and the wielding of the stone
certainly makes him culpable for the offence that he has
committed. While we acquit A-3 of the offence under
Section 302 read with Section 34 of the IPC, he is liable
for the offence under 304 Part II IPC. The law on Section
304 Part II has been succinctly laid down in Camilo Vaz
v. State of Goa, (2000) 9 SCC 1, where it was held that:
14. This section is in two parts. If analysed, the
section provides for two kinds of punishment to
two different situations: (1) if the act by which
death is caused is done with the intention of
causing death or causing such bodily injury as
is likely to cause death. Here the important
ingredient is the "intention"; (2) if the act is done
with the knowledge that it is likely to cause
death but without any intention to cause death or
such bodily injury as is likely to cause death.
When a person hits another with a danda on a
vital part of the body with such force that the
person hit meets his death, knowledge has to be
imputed to the accused....
29. In the past, this Court has considered factors such
as lack of medical evidence to prove whether the
act/injury was individually sufficient to cause death 1, a
single blow on head with a hammer2 and lack of cogent
evidence of the eye-witnesses that the accused shared a
common intention to commit murder 3 as some factors to
commute a sentence from Section 302 to Section 304
Part II IPC.
30. Returning back to the facts of the case, there is
certainly no escape from coming to the conclusion that
A-3 should have had the knowledge that the use of a
stone to hit the head of the deceased is likely to cause
death. However, as demonstrated 1 Bawa Singh v. State
of Punjab, 1993 Supp (2) SCC 754. 2 Sarup Singh v.
State of Haryana, (2009) 16 SCC 479. 3 Ghana Pradhan
& Ors. v. State of Orissa, 1991 Supp (2) SCC 451.
before, the evidence is insufficient to deduce a
conclusion that he shared a common intention with the
other accused to commit the murder of the deceased.
Considering the role that A-3 has played, we hold him
guilty of the offence under Section 304 Part II IPC.
31. The perusal of the evidence would reveal that it is
not the case of the prosecution that A-3 was along with
the other accused while the deceased was dragged to
the house. The deposition would reveal that after the
other accused assaulted the deceased with sword, A-3
came thereafter and assaulted the deceased with stone
lying there. We, therefore, find that the prosecution has
not been in a position to establish that A-3 shared the
common intention with the other accused to cause the
murder of the deceased.
32. For the reasons stated above, we uphold the
conviction and sentence of A-1, A-2 and A-4 under
Section 302 read with Section 34 IPC and dismiss their
Criminal Appeal No. 2852 of 2023 against the judgment
of the High Court of Telangana in Criminal Appeal No.
308 of 2005 dated 26.04.2022. We acquit A-3 of the
conviction and sentence under Section 302 read with
Section 34 and convict him under Section 304 Part II
and sentence him to undergo imprisonment for 10 years.
To this extent, the appeal of A-3 is allowed by altering
the conviction under Section 302 to Section 304 Part II
IPC."
32. A grievous injury on a vital part i.e. the head is undoubtedly sufficient
in the ordinary course of nature to cause death. But the question is not
merely the capacity of the injury; rather, it is whether, in the circumstances
of the present case, it can safely be inferred that the appellants intended
to cause the death of the deceased or intended to inflict that very
particular injury. In the present case, the evidence on record indicates that
the incident occurred all of a sudden in front of the house of the deceased
Narayan Prasad Tandon during the course of a quarrel. The appellants
assaulted the deceased with fists and kicks, whereas the fatal blow on the
head of the deceased was inflicted by the child in conflict with law with a
stone picked up from the spot. Considering the sudden quarrel, lack of
pre-planning and the manner in which the incident occurred, we are not
persuaded that the prosecution has crossed the threshold to prove
intention to cause death beyond reasonable doubt.
33. At the very least, it can safely be attributed that the accused
persons had the knowledge that such assault was likely to cause death.
The act of the child in conflict with law in striking the head of the deceased
with a stone during the course of the altercation, coupled with the
participation of the present appellants in the assault, would therefore
attract the provisions of Section 304 Part-II read with Section 34 of
the IPC.
34. The record also satisfies the four-fold test necessary for attracting
Exception 4 to Section 300 of the IPC, namely: (i) the incident arose
out of a sudden quarrel; (ii) there was no premeditation on the part of the
accused persons; (iii) the act was committed in the heat of passion; and
(iv) there is no evidence to suggest that the accused persons took any
undue advantage or acted in a cruel or unusual manner. The assault
appears to have been momentary and the stone used in the incident was
picked up from the spot itself. Thus, the case squarely falls within
Exception 4 to Section 300 IPC, and consequently the offence
committed by the appellants cannot be termed as murder.
35. So far as the recovery and medical consistency are concerned, the
recovery of the stone on the disclosure statement of the child in conflict
with law and the medical opinion (Ex.P/7) that the said stone could have
caused the injuries sustained by the deceased undoubtedly fortify the
prosecution case and connect the accused persons with the assault.
These circumstances lend assurance to the prosecution version regarding
the manner in which the deceased Narayan Prasad Tandon was
assaulted. However, such factors by themselves cannot automatically
elevate the offence to murder punishable under Section 302 of the IPC,
particularly when the surrounding circumstances clearly indicate that the
incident occurred during a sudden quarrel between the parties.
36. On careful consideration of the ocular and medical evidence, it
becomes evident that the occurrence was not a premeditated or pre-
planned act. From the evidence of the eyewitnesses, namely Smt.
Chhannibai (PW-2), Jagdish Tandon (PW-4) and Jankaram Tandon (PW-
5), it stands established that the appellants assaulted the deceased with
fists and kicks during the altercation, whereas the fatal blow on the head
of the deceased was inflicted by the child in conflict with law with a stone
picked up from the spot. The prosecution evidence does not reveal any
prior enmity or pre-arranged plan to commit the offence. The incident
appears to have taken place in the heat of passion upon a sudden quarrel.
Although the injury was caused on a vital part of the body, namely the
head, the material on record indicates that the assault was momentary.
Therefore, while intention to cause death is not proved beyond reasonable
doubt, knowledge that such an act was likely to cause death can
reasonably be attributed. The case thus falls within the ambit of Section
304 Part-II read with Section 34 of the IPC.
37. It is also pertinent to note that the role of the child in conflict with law
arising out of the same incident has already been considered by this Court
in CRA No.1039 of 2018, wherein the coordinate Bench of this Court,
after appreciation of the ocular as well as medical evidence on record,
came to the conclusion that the fatal blow on the head of the deceased
Narayan Prasad Tandon was inflicted by the said child in conflict with law
by means of a stone and, considering the circumstances of the case,
altered his conviction from Section 302 of the IPC to Section 304 Part-II of
the IPC and sentenced him to undergo three years' simple imprisonment.
The present appeal arises out of the same occurrence and the evidence
against the present appellants Sahasram Bharadwaj and Smt.
Budhwarabai forms part of the same prosecution case.
38. In view of the foregoing discussion, this Court holds that the
appellants are guilty of culpable homicide not amounting to murder
punishable under Section 304 Part-II read with Section 34 of the IPC.
Their culpability is evident from the fact that during the course of the
altercation they participated in the assault upon the deceased Narayan
Prasad Tandon; however, the appellants herein had used only hands and
fists in the assault, whereas the child in conflict with law inflicted the fatal
blow on the head of the deceased with a stone, which ultimately resulted
in his death. Nonetheless, the surrounding circumstances--namely the
absence of premeditation, the occurrence having taken place during the
course of a sudden quarrel in front of the house of the deceased, and the
assault having been made in the heat of passion--justify alteration of the
conviction of the appellants from Section 302/34 of the IPC to Section
304 Part-II read with Section 34 of the IPC.
39. As regards the sentence, this Court is mindful of the principle that
the punishment must be proportionate to the nature of the offence and the
role attributed to the accused persons. In the present case, the appellants
have already remained in custody from 03.08.2016 to 06.02.2017 and
thereafter from 28.06.2018 to 09.12.2021, and thus have undergone
incarceration for a period of about 03 years, 09 months and 16 days. It is
also to be noted that the appellants were not armed with any deadly
weapon and had only assaulted the deceased with fists and kicks during
the sudden quarrel, whereas the fatal injury was caused by the child in
conflict with law by means of a stone. Considering the totality of the
circumstances of the case, the nature of the incident, the role attributed to
the present appellants and the period of incarceration already undergone
by them, we are of the considered opinion that the ends of justice would
be met if the appellants are sentenced to the period already undergone by
them, while maintaining the fine amount imposed by the learned trial
Court.
40. Consequently, the conviction of the appellants under Section
302/34 of the IPC is altered to one under Section 304 Part-II read with
Section 34 of the IPC. The appellants are sentenced to the period
already undergone by them. The fine amount imposed by the trial Court
shall remain intact. The appellants are on bail.
41. Keeping in view the provisions of Section 437-A of the CrPC (now
Section 481 of the Bhartiya Nagarik Suraksha Sanhita, 2023), the
appellants are directed to forthwith furnish a personal bond in terms of
Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.
25,000/- with one surety in the like amount before the Court concerned
which shall be effective for a period of six months along with an
undertaking that in the event of filing of Special Leave Petition against the
instant judgment or for grant of leave, the aforesaid appellants on receipt
of notice thereof shall appear before the Hon'ble Supreme Court.
42. The criminal appeal is allowed in part to the extent indicated
herein-above.
43. Let a copy of this judgment along with the original record be
transmitted forthwith to the concerned trial Court for information and
necessary compliance.cessary compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Jyoti
