CRA No. 1162 of 2022
Yogesh Bhagat S/o Late Sukhnath Ram Aged About 30 Years R/o
Village- Bankitoli, P.S.- Jashpur, District- Jashpur, Chhattisgarh
---Appellant(s)
The State of Chhattisgarh Through P.S.- Jashpur, District- Jashpur,
Chhattisgarh
---Respondent(s)
(Cause-title taken from Case Information System)
Digitally
signed by
For Appellant : Mr. Pradeep Kumar Singh, Advocate in
BRIJMOHAN
BRIJMOHAN MORLE
MORLE Date:
For Respondent/State : Mr. Priyank Rathi, Government Advocate
2026.03.23
17:41:03
+0530
in CRA 1162 of 2022 & ACQA No. 66 of
2023.
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
16.03.2026
1. Since both the Criminal Appeal filed on behalf of the
accused/appellant as well as Acquittal Appeal filed on behalf of the
State arise out of same judgment, they are clubbed and heard together
and are being disposed off by this common order.
2. Heard Mr. Pradeep Kumar Singh, learned counsel for the
accused/appellant in CRA No. 1162 of 2022 as well as Mr. Priyank
Rathi, learned Government Advocate, appearing for the State/appellant
in ACQA No. 66 of 2023 and for State/respondent in CRA No. 1162 of
2022.
3. ACQA No. 66 of 2023 has been filed on behalf of the State,
challenging the legality, validity and propriety of judgment dated
29.06.2022 passed by the learned Sessions Judge, Jashpur, District
Jashpur (C.G.) (for short, 'learned trial Court') in Sessions Trial No. 58
of 2019, whereby the learned trial Court has acquitted the
accused/respondent - Rajnit Bhagat from the offence punishable under
Section 201 of the Indian Penal Code (for short 'the IPC'), holding that
the prosecution has failed to prove its case beyond reasonable doubt
against the accused/respondent.
4. CRA No. 1162 of 2022 has been filed by the appellant - Yogesh
Bhagat challenging the legality, validity and propriety of very same
judgment dated 29.06.2022 passed by the learned trial Court in
Sessions Trial No. 58 of 2019, whereby the appellant has been
convicted and sentenced as under:
Conviction under Section Sentence
Section 302 of the IPC Rigorous imprisonment (for short,
'R.I.') for life and fine of Rs. 100/-, in
default of payment of fine, 02
months R.I. more.
5. The case of the prosecution, in brief, is that the complainant,
Ganesh Ram Barik (PW-1), is a resident of Village Kharijharia, Police
Station Kunkuri. His elder brother, Umesh Barik, resided at Gamharia,
Jashpur, along with his wife and children and was employed as a driver.
On 05.09.2019, at about 11:00 p.m., the complainant received a
telephone call from his sister, Draupadi Barik (PW-8), informing him that
at around 9:00 p.m. on the same day, Umesh Barik had been assaulted
at the house of Ranjit Ram Bhagat, situated at Bankitoli, Jashpur. It
was alleged that the accused, Yogesh Bhagat, attacked him with a
sharp-edged weapon, namely an axe, with the intention to kill, thereby
inflicting a grievous head injury. The injured was thereafter admitted to
the District Hospital, Jashpur, for treatment.
6. Upon receiving the said information, the complainant immediately
proceeded to the District Hospital, Jashpur, along with his sister
Draupadi. On reaching the hospital, he found that his elder brother,
Umesh Barik, had succumbed to his injuries and his body was lying on
a stretcher in the mortuary. He noticed a deep injury on the middle of
the head of the deceased, apparently caused by a sharp-edged
weapon. His sister Draupadi further informed him that the incident had
been witnessed by Ranjit Ram Bhagat (PW-9), the elder brother of the
accused, as well as by Smt. Chameli Bhagat and Smt. Parvati (PW-14).
Ranjit Bhagat also disclosed that the accused, Yogesh Bhagat,
harboured suspicion that his wife was having an illicit relationship with
the deceased, Umesh Barik, and frequently quarrelled with her, even
alleging that she was a woman of immoral character. It was on account
of such suspicion that the accused assaulted and killed Umesh Barik
with an axe.
7. On the basis of the information furnished by the complainant,
Ganesh Ram Barik (PW-1), a merg intimation (Ex.P/1) was recorded at
Police Outpost Jashpur, and Merg No. 121/2019 was registered under
Section 174 of the Code of Criminal Procedure for the purpose of
inquiring into the cause of death. Subsequently, on the report lodged by
the complainant at Police Station Jashpur, a First Information Report
(Ex.P/2) was registered against the accused under Section 302 of the
Indian Penal Code, bearing Crime No. 242/2019, and investigation was
commenced.
8. During the course of investigation, the Investigating Officer
prepared the spot map (Exs. P/3 and P/4), and a site map (Ex.P/20)
was also prepared by the Patwari. The body of the deceased was
inspected in the presence of witnesses, and an inquest report (Ex.P/6)
was prepared. Considering the suspicious nature of the death, an
application (Ex.P/34) was submitted to the District Hospital, Jashpur, for
conducting the postmortem examination. As per the seizure memo
(Ex.P/9), plain as well as blood-stained soil, cement, gravel, and one
red-coloured TVS Phoenix 125 motorcycle were seized from the spot. A
dog-search panchnama (Ex.P/11) was also prepared. Further, as per
seizure memo (Ex.P/21), the registration certificate and insurance
documents of motorcycle bearing No. CG-14/MC-1401 were seized.
The blood-stained clothes of the deceased, including a shirt, vest, and
full pant, were seized under seizure memo (Ex.P/16). The accused was
taken into custody and interrogated, and his memorandum statement
(Ex.P/7) was recorded. Pursuant to his disclosure, a blood-stained iron
axe, along with his lower garment and T-shirt, were recovered and
seized under seizure memo (Ex.P/8). The accused was formally
arrested vide arrest memo (Ex.P/10), and intimation of his arrest was
duly given to his relatives (Ex.P/33). Upon examination of the seized
axe (Ex.P/18), the medical officer opined that the injuries sustained by
the deceased could have been caused by the said weapon.
9. The seized articles, including blood-stained and plain soil, the
clothes of the deceased, and the iron axe, were sent for chemical
examination to the Regional Forensic Science Laboratory, Ambikapur,
vide application (Ex.P/32). The chemical examination report (Ex.P/36)
was subsequently received, which confirmed the presence of human
blood on all the seized articles, except the plain soil.
10. The statements of witnesses were recorded under Section 161 of
the Cr.P.C. Upon completion of the investigation, a charge-sheet was
filed against the accused before the competent criminal Court. The
case was thereafter committed to the Court of Session and was
ultimately transferred to the Court of the learned Sessions Judge,
Jashpur, District Jashpur (Chhattisgarh), for trial.
11. In their statements recorded under Section 313 of the Cr.P.C., the
accused denied the allegations and claimed that they had been falsely
implicated in the case.
12. In order to substantiate the charges, the prosecution examined a
total of 19 witnesses and exhibited 36 documents. In contrast, the
defence did not examine any witnesses nor produce any documentary
evidence.
13. The learned trial Court, upon hearing the parties and appreciating
the evidence on record, delivered the impugned judgment whereby the
accused/respondent Ranjit Bhagat was acquitted, while the
accused/appellant Yogesh Bhagat was convicted and sentenced as
aforementioned. Aggrieved thereby, the accused/appellant Yogesh
Bhagat preferred a criminal appeal against his conviction, and the State
also filed an acquittal appeal challenging the acquittal of Ranjit Bhagat.
14. Learned counsel for the appellant submits that the learned trial
Court has erred in convicting the appellant under Section 302 of the
IPC, as the prosecution has failed to prove the charge beyond
reasonable doubt. It is contended that the conviction is based primarily
on circumstantial evidence; however, the prosecution has failed to
establish a complete and unbroken chain of circumstances that points
conclusively to the guilt of the appellant and rules out every hypothesis
consistent with his innocence. In the alternative, it is submitted that
even if the prosecution case is accepted in its entirety, the incident in
question occurred on the spur of the moment, without any
premeditation, in the heat of passion arising out of a sudden quarrel
between the appellant and the deceased. It is argued that there was
neither intention nor pre-existing motive on the part of the appellant to
cause the death of the deceased. Therefore, the act would fall within
the ambit of Exception 4 to Section 300 of the Indian Penal Code, and
would amount to culpable homicide not amounting to murder.
Consequently, it is prayed that the conviction under Section 302 of the
IPC be altered to one under Section 304 Part I or Part II of the IPC.
15. It is further submitted that the appellant has been enlarged on bail
by this Court vide order dated 05.04.2023 and has already undergone
incarceration for a period of 03 years, 06 months, and 30 days. Hence,
in the event of alteration of conviction, the sentence may be restricted
to the period already undergone. Accordingly, it is prayed that the
appeal be allowed, either wholly or in part.
16. Per contra, learned State counsel has supported the impugned
judgment and order of sentence. It is submitted that the prosecution
has successfully proved the charge under Section 302 of the IPC
beyond reasonable doubt. It is further contended that the medical
evidence on record fully corroborates the ocular testimony of the
prosecution witnesses and clearly establishes that the death of the
deceased was homicidal in nature. In view of the consistent and cogent
evidence led by the prosecution, coupled with the material available on
record, it is submitted that the learned trial Court has rightly convicted
the appellant for the offence punishable under Section 302 of the IPC. It
is further argued that the appellant has committed a grave and heinous
offence of murder, and the facts and circumstances of the case do not
warrant any alteration of conviction to Section 304 Part I or Part II of the
IPC. Therefore, the present criminal appeal deserves to be dismissed.
17. In the acquittal appeal, learned State counsel submits that the
learned trial Court has erred in acquitting the accused/respondent,
Ranjit Bhagat, of the charges framed against him. It is contended that
the learned trial Court failed to properly appreciate the evidence of the
complainant and other prosecution witnesses in its correct perspective
and instead based its findings on conjectures and surmises. It is further
submitted that the learned trial Court was not justified in discarding the
testimonies of the complainant and prosecution witnesses (PW-1 to
PW-9) without assigning cogent and convincing reasons. The approach
adopted by the trial Court in evaluating the evidence is alleged to be
perverse and contrary to settled principles of law. Accordingly, it is
argued that the finding of acquittal recorded by the learned trial Court is
unjust, improper, and unsustainable in law, and therefore liable to be
set aside.
18. We have heard learned counsel appearing for the parties,
considered their rival submissions made hereinabove and also went
through the records with utmost circumspection.
19. The first question for consideration would be, whether death
of deceased was homicidal in nature ?
20. In this regard, Dr. Ajeet Kumar Bande (PW-11), who conducted
the postmortem examination on the body of the deceased at the District
Hospital, Jashpur (C.G.), deposed that the deceased had a sutured
wound over the upper part of the head in the mid-parietal region,
measuring approximately 9 × 1 × 12 cm. No other external injuries were
found on the body of the deceased. He further opined that the cause of
death was excessive hemorrhage resulting from the head injury,
leading to hypovolemic shock and intracranial hemorrhage. The time
since death was estimated to be within 24 hours prior to the
postmortem examination. According to his opinion, the nature of death
was homicidal. The postmortem report was duly proved and exhibited
as Ex.P/17.
21. Dr. Bande further deposed that on 18.10.2019, Constable Kishun
Sai (No. 291) (PW-15) from Police Station Jashpur produced an axe for
examination. Upon examination, he found that the axe, fitted with a
handle, had a total length of 74.5 cm. The circumference at one end of
the handle was approximately 8 to 9 cm, and at the front end it was
about 9.5 cm. The iron blade fixed to the handle measured 13 cm in
length, with a sharp edge width of 8 cm and a back width of 5 cm.
22. Upon being queried whether the injury found on the head of the
deceased could have been caused by the said axe, the doctor opined
that such injury could have been caused by the seized weapon, as the
dimensions of the iron blade corresponded with the injury observed on
the deceased. He further opined that the injury caused by such a
weapon was sufficient in the ordinary course of nature to cause death.
23. After hearing learned counsel for the parties and upon due
consideration of the evidence, we are of the considered opinion that the
finding of the learned trial Court that the death of the deceased was
homicidal in nature is fully borne out from the medical evidence on
record. Such finding is neither perverse nor contrary to record, and we
accordingly affirm it.
24. Now, the next question for consideration would be whether
the accused herein is the perpetrator of the crime in question ?
25. Ganesh Ram Barik (PW-1) stated that on the night of 05.09.2019
at about 11:00 p.m., his sister, Draupadi Barik (PW-8), informed him
over the phone that Yogesh Bhagat had killed Umesh Barik and that he
had been taken to the hospital. Upon receiving this information, he
immediately proceeded from Village Kharijharia to the District Hospital,
Jashpur, where he found the dead body of his brother lying in the
mortuary. He thereafter informed Police Station Jashpur regarding the
death of his brother, upon which merg intimation (Ex.P/1) was
recorded, followed by registration of FIR (Ex.P/2). The police also
prepared a spot map of the mortuary (Ex.P/3). The witness further
stated that he was acquainted with the accused and that the deceased,
Umesh Barik, was his elder brother residing at Bankitoli, Jashpur. On
the following morning, he went to Police Station Jashpur, where he met
Ranjit (PW-9), the elder brother of the accused, and his wife Chameli.
They informed him that on the night of the incident, both the accused
and the deceased had come to their house. Umesh declined food but
accepted tobacco (khaini) and sat in the room, while the accused was
moving about. Suddenly, the accused assaulted Umesh with an axe,
causing a head injury. Thereafter, the police prepared the site map of
the place of occurrence (Ex.P/4) in his presence. The witness further
contended that Ranjit informed him that when he attempted to report
the incident, the accused prevented him from entering the house and
threatened him. However, in cross-examination (Para 10), the witness
admitted that at the time of the incident he was present in his village
Kharijharia and had no direct knowledge of the occurrence, having
learned about it from his sister Draupadi. He also stated that he met the
accused and his relatives only on the following day at the police station.
Thus, his testimony regarding the occurrence is based on information
received from Ranjit and Draupadi.
26. The Investigating Officer, Lakshman Singh Dhurve (PW-19),
deposed that on 06.09.2019 at about 5:30 a.m., on the information
given by the complainant, he registered merg intimation (Ex.P/1)
regarding the death of Umesh Barik, which bears the signatures of both
the complainant and himself. Upon receiving information that the death
was homicidal and caused by the accused Yogesh Bhagat, he
registered the FIR (Ex.P/2). He also prepared the spot map of the
government hospital (Ex.P/3). He further stated that notices under
Section 175 CrPC (Ex.P/5) were issued to witnesses to be present
during the inquest proceedings, and the inquest panchnama (Ex.P/6)
was prepared. Raju Ram Bhagat (PW-10), Constable, corroborated that
he took the dead body for postmortem examination and, after
completion, submitted the return memo (Ex.P/14). Thereafter, the dead
body was handed over to the relatives of the deceased, namely Thunu
Ram, against receipt (Ex.P/15).
27. Draupadi Barik (PW-8) stated that she knew the accused, also
known as "Tote," and that the deceased was her brother. On
05.09.2019 at about 10:30 p.m., she received information that the
accused had assaulted Umesh with an axe at the house of Ranjit Ram,
causing a head injury, and that he had been taken to the hospital. She
immediately informed her family members and, along with them, went
to the District Hospital, Jashpur, where she saw the dead body of her
brother in the mortuary with an injury on the middle of his head. She
further stated that at Police Station Jashpur, she met Ranjit Ram and
his sister Parvati, who informed her that they had witnessed the
incident. According to them, at about 9:00 p.m., the accused and the
deceased came to their house; while Umesh was sitting in the room,
the accused was moving about. When Ranjit got up after dinner, he
heard a sound and saw the accused striking Umesh on the head with
an axe, as a result of which Umesh collapsed. The accused thereafter
threatened them. She also stated that prior to the incident, the accused
had threatened the deceased. On the next day, she visited the place of
occurrence and noticed blood stains in the room and courtyard.
28. Meena Yadav (PW-7), wife of the deceased, stated that she came
to know at about 10:45 p.m. from Anuj Mishra that the accused had
assaulted her husband with an axe and that he had been admitted to
the hospital. Upon reaching the District Hospital, she found that her
husband had died and noticed a head injury. She also stated that about
a week prior to the incident, the accused had threatened her husband;
however, this fact was not recorded in her police statement. Her
testimony regarding the injury and death of the deceased remains
unshaken.
29. Ranjit Ram Bhagat (PW-9), an alleged eyewitness who was later
arrayed as an accused, turned hostile. He denied witnessing the
incident and stated that he was not present at home at the relevant
time. He admitted that he did not want his younger brother, the
accused, to be implicated. His testimony, therefore, does not inspire
confidence and is unreliable.
30. Sanjeev Kispotta (PW-2) and Amrit Minj (PW-3) deposed that the
accused, in their presence, made a memorandum statement (Ex.P/7)
stating that he had concealed the axe and blood-stained clothes behind
his house in a construction site. Pursuant thereto, the police recovered
the axe, lower garment, and T-shirt (Ex.P/8), all stained with blood. The
witnesses supported the recovery and denied any fabrication.
31. The Investigating Officer further deposed that a dog squad was
requisitioned and a dog search panchnama (Ex.P/11) was prepared.
The dog handler stated that after smelling the blood-stained axe, the
tracker dog led the police towards bushes behind the house, where the
accused was found hiding and was apprehended. The panchnama was
prepared in the presence of witnesses, whose testimony remained
unchallenged.
32. On perusal of the FSL report (Ex.P/36), it is found that no human
blood was detected on Article A (plain soil). However, human blood was
detected on Article B (blood-stained soil), Article C (axe), Article D
(lower garment of the accused), Article E (T-shirt of the accused), and
Article F (clothes of the deceased marked F1 to F3). Blood group "B"
was detected on Articles C, D, and F3.
33. In the present case, the accused did not sustain any injuries;
therefore, the presence of blood on his clothes and the weapon cannot
be attributed to him. The presence of human blood on the axe and the
clothes of the accused is attributable to the deceased, who sustained a
head injury caused by the axe. The FSL report also establishes that the
blood group of the deceased was "B."
34. The aforesaid finding brings us to the next question for
consideration, whether the case of the appellant is covered within
Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not
amounting to murder and his conviction can be converted to Section
304 Part-I or Part-II of the IPC, as contended by learned counsel for the
appellant ?
35. 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. In the present case,
while the appellant's actions were undoubtedly culpable, the
circumstances suggest that he did not intend to cause the death of
deceased. However, it is evident that he knew that his actions were
likely to cause harm.
36. Reverting to the facts of the present case, the following facts are
salient:
• No premeditation or prior motive has been
proved by the prosecution.
• The incident occurred inside the home
following a sudden quarrel late at night.
• There was one fatal blow with a axe; there is
no evidence of repeated assault or pursuit.
37. 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.
38. 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."
39. A grievous injury on a vital part of the body, such as the head, is
undoubtedly sufficient in the ordinary course of nature to cause death.
However, the determinative question is not merely the capacity of the
injury, but whether, in the facts and circumstances of the case, it can be
safely inferred that the appellant intended to cause death or to inflict
such particular injury. In the present case, considering the heat-of-
passion arising out of a sudden domestic quarrel, absence of
premeditation, the appellant being in an intoxicated state, and the fact
that only a single blow was inflicted, we are not persuaded that the
prosecution has proved the requisite intention beyond reasonable
doubt.
40. At the same time, it cannot be ignored that the appellant, by
striking the deceased on the head with a tangi (axe), must be attributed
with the knowledge that such an act was likely to cause death. This
element of knowledge squarely attracts the provisions of Section 304
Part II of the IPC.
41. The material on record satisfies the well-established fourfold test
for invoking Exception 4 to Section 300 IPC, namely: (i) the incident
occurred upon a sudden quarrel; (ii) there was no premeditation; (iii)
the act was committed in the heat of passion; and (iv) there is no
evidence of the appellant having taken undue advantage or having
acted in a cruel or unusual manner, as is evident from the fact that only
a single blow was inflicted and there was no repetition of assault. Thus,
Exception 4 is clearly attracted, and the offence cannot be classified as
murder.
42. Insofar as the recovery and medical evidence are concerned, the
recovery of the tangi (axe) at the instance of the appellant and the
medical opinion confirming that the said weapon could have caused the
injuries sustained by the deceased, lend strong assurance to the
prosecution case and establish the authorship of the crime. However,
these circumstances, by themselves, are insufficient to elevate the
offence to one punishable under Section 302 of the IPC, particularly
when the surrounding circumstances unmistakably indicate that the
occurrence took place during a sudden quarrel.
43. Upon a comprehensive appreciation of the oral and documentary
evidence on record, this Court finds no infirmity in the finding of the
learned trial Court that the death was homicidal in nature and that the
appellant was the author of the fatal injury. The said findings are well-
supported by evidence and warrant no interference. However, on the
question of the nature of the offence, this Court finds merit in the
alternative submission advanced on behalf of the appellant. The
evidence on record clearly establishes that the incident occurred
without premeditation, in the course of a sudden quarrel, and the
assault was limited to a single blow, without any element of cruelty or
undue advantage.
44. In these circumstances, while the injury proved fatal, it cannot be
conclusively held that the appellant intended to cause death or such
bodily injury as was sufficient in the ordinary course of nature to cause
death. Nevertheless, the appellant can safely be attributed with the
knowledge that his act was likely to cause death. Accordingly, the case
falls within the ambit of Exception 4 to Section 300 of the IPC and is
punishable under Section 304 Part II of the IPC.
45. Consequently, the conviction of the appellant under Section 302
of the IPC is liable to be altered to one under Section 304 Part II IPC.
46. Insofar as the acquittal of the co-accused is concerned, this Court
finds that the view taken by the learned trial Court is a plausible one
based on the evidence on record. The alleged eyewitness having
turned hostile and in the absence of any reliable independent evidence,
no perversity or illegality can be attributed to the order of acquittal. It is
well-settled that unless the findings of the trial Court are manifestly
erroneous or wholly unreasonable, interference in an appeal against
acquittal is unwarranted. Accordingly, the appeal preferred by the State
deserves to be dismissed.
47. As regards the sentence, it is not in dispute that the appellant has
already undergone incarceration for a period of 03 years, 06 months,
and 30 days. Considering the nature of the incident, absence of
premeditation, and the fact that the occurrence arose out of a sudden
quarrel, this Court is of the opinion that the ends of justice would be
adequately met if the sentence is restricted to the period already
undergone by the appellant.
48. Accordingly, the criminal appeal filed by the appellant - Yogesh
Bhagat is partly allowed. The conviction under Section 302 of the IPC
is altered to Section 304 Part II of the IPC, and the appellant is
sentenced to the period already undergone. The fine amount imposed
by the learned trial Court shall remain intact.
49. The appeal filed by the State against acquittal is dismissed.
50. The appellant is on bail and is not required to surrender.
However, in compliance with Section 437-A of the Cr.P.C. (now Section
481 of the Bharatiya Nagarik Suraksha Sanhita, 2023), his bail bonds
shall remain in force for a further period of six months.
51. The Registry is directed to forthwith transmit the record of the trial
Court along with a certified copy of this judgment to the Court
concerned for information and necessary compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Brijmohan
