Gauhati High Court
Crl.A./439/2023 on 9 June, 2025
Page 1 of 27
GAHC010267232023
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl.A./439/2023
1. Abdul Kalam Sheikh
S/O Adul Nur Vill.- Lalkura Pt- II
P.O.- Sahebganj P.S.- Gauripur
District - Dhubri Assam Pin- 783331.
2. Abdul Hai Sk.
S/O Adul Nur Vill.- Lalkura Pt- II
P.O.- Sahebganj P.S.- Gauripur
District - Dhubri Assam Pin- 783331
.....Appellants
-Versus-
1. The State of Assam
To be represented by the Public Prosecutor,
Assam
2. Motior Rahman
S/O Late Mojibar Rahman
Village- Moterjhar
P.O. And P.S.- Golakganh
District - Dhubri
Assam, Pin- 783334
Crl.A./439/2023 Page 1
Page 2 of 27
......Respondents
For Appellant(s) : Mr. B. D. Das, Sr. Advocate
Mr. H.K. Sharma, Advocate
For Respondent(s) : Ms. S. H. Borah, Additional Public Prosecutor
Mr. J. Islam, Advocate
Date of Judgment 09.06.2025
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. B. D. Das, the learned senior counsel assisted by
Mr. H. K. Sharma, the learned counsel for the appellants. Also heard
Ms. S. H. Borah, the learned Additional Public Prosecutor for the
State as well as Mr. J. Islam, the learned counsel appearing for the
respondent No. 2.
2. This appeal under Section 374(2) of the Code of Criminal
Procedure, 1973, has been filed by the appellants, namely, (1)
Abdul Kalam Sheikh (hereinafter also referred to as A-1) and (2)
Abdul Hai Sk. (hereinafter also referred to as A-2), challenging the
judgment and order dated 29.09.2023 passed by the learned
Additional Sessions Judge, Dhubri, in Sessions Case No. 11/2017.
By the said judgment, the appellants were convicted under Section
304 Part-I of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for seven years and to pay a fine of ₹5,000/-
Crl.A./439/2023 Page 2
each, and in default of payment of fine, to undergo simple
imprisonment for two months. The appellants were also convicted
under Section 325 read with Section 34 of the Indian Penal Code
and sentenced to undergo rigorous imprisonment for one year and
to pay a fine of ₹1,000/- each, and in default of payment of fine, to
undergo rigorous imprisonment for one month. It was directed that
both sentences shall run concurrently.
3. The facts relevant for consideration of the instant appeal, in brief,
are that on 06.07.2011, one Motiur Raman had lodged an FIR
before the Officer-in-Charge of Gauripur Police Station, inter-alia,
alleging that, on 04.07.2011, at about 2.00 pm, one cow belonging
to the appellant No. 1, Abdul Kalam, entered into the paddy field of
Abdul Motleb and started grazing there. When the said Abdul
Motleb took the cow to the pound, both the appellant attacked him
with deadly weapon like stick, dao, spear, etc. and injured him. The
injured Abdul Motleb sustained injuries on his head, and thereafter,
he was taken to Dhubri Civil Hospital and then to Guwahati Medical
College and Hospital for treatment.
4. On receipt of the said FIR, the Gauripur P.S. Case No.321/2011 was
registered under Sections 147/148/149/341/302 of the Indian Penal
Code and the investigation was initiated.
5. Ultimately, after completion of the investigation, a charge sheet was
laid against both the above-named appellants under Sections
302/34 of the Indian Penal Code. Both the appellants faced trial.
When they appeared before the Trial Court, after considering the
Crl.A./439/2023 Page 3
materials available on record as well as after hearing both sides,
charges under Sections 325/302/34 of the Indian Penal Code was
framed against both the appellants. When the said charges were
read over and explained to them, both of them pleaded not guilty
and claimed to be tried.
6. To bring home the charges, the prosecution side examined as many
as 14 prosecution witnesses. However, the appellants did not
adduce any evidence in their defence. Ultimately, by the judgment
and order which has been impugned in this appeal, both the
appellants were convicted and sentenced in the manner as already
described in paragraph No. 2 of this judgment herein above.
7. Before considering the rival submissions made by the learned
counsel for both sides, let us go through the evidence which is
available on record.
8. The PW-1, Sri Gaus Ali, has deposed that one day, at about 01.30
PM, when he heard noise from the house of Abdul Motleb, he went
there and saw Abdul Motleb sitting with head injuries tied with a
Gamocha (towel). The wife of Abdul Motleb told him that the
appellants had caused the said injuries. Then Abdul Motleb was
shifted to the Dhubri Civil Hospital. The Doctor of the Dhubri Civil
Hospital referred him to Guwahati. After one day Abdul Motleb
succumbed to the injuries. He deposed that the occurrence took
place as cattle of the accused were grazing on the paddy field of
the deceased Abdul Motleb.
Crl.A./439/2023 Page 4
9. During his cross examination, the PW-1 stated that deceased Abdul
Motleb was a relative of the A-2 and they were friends. They used
to do business of betel nuts, jointly. The PW-1 has deposed that he
did not tell the police that the occurrence took place over the cattle
of the accused grazing on the paddy field of the deceased. He did
not tell the police that he saw the deceased Abdul Motleb was
sitting with injuries on his head and he tied the wound by means of
a 'gamosa'. He did not know if the deceased Abdul Motleb was first
taken to the Materjhar PHC from there to the Golakganj Hospital
and from there to the Dhubri Civil Hospital. The PW-1 further
deposed that he did not tell the police that the wife of the deceased
Abdul Motleb told him that the A-1 and A-2 had caused the said
injuries to the deceased Abdul Motleb. He has heard that the A-2
also sustained injuries in the alleged incident and for the same, the
accused have filed a case against the father of the deceased Motleb
and others. PW-1 denied the other suggestions put to him by the
defence side.
10. The PW-2, Sri Moinul Haque, has deposed that on the date of
occurrence, he heard a noise in the house of deceased Motleb. He
went there and heard that the accused had quarreled with the
deceased Abdul Motleb and he was shifted to the Dhubri Civil
Hospital and from there, he was shifted to Guwahati and on the
next day, he succumbed to the his injuries.
11. During his cross-examination by the defence, PW-2 admitted that
he did not see the accused in the place of occurrence. The quarrel
Crl.A./439/2023 Page 5
took place over the grazing of paddy of the deceased. PW-2 denied
the suggestions made by the defence side.
12. The PW-3, Sri Badiuz Zamal, has deposed that on the date of
occurrence, he went to the place of occurrence and saw that A-2
and the deceased Abdul Motleb were lying with head injuries. They
were taken to hospital. As the condition of deceased Abdul Matleb
was serious, he was shifted to Guwahati where he succumbed to his
injuries. During his cross-examination by the defence, PW-3
deposed that he was working in his paddy field. He did not see who
assaulted whom.
13. The PW-4, Nazrul Haque, has deposed that he knows nothing about
the incident. This PW was declared hostile. During his cross-
examination by the prosecution side, he denied all the suggestions.
During his cross-examination by the defence side, the PW-4
admitted that he did not visit the place of occurrence.
14. The PW-5, Nasir Uddin Sk, has deposed that on the date of
occurrence, on a public road, in front of the house of complainant,
the accused persons physically assaulted Abdul Motleb and he was
shifted to GMCH where he died. During his cross-examination by
the defence side, the PW-5 admitted that he had not visited the
place of occurrence and did not visit hospital to see the Injured.
15. The PW-6, Mustt. Jorifa Bibi, has deposed that she is the wife of
deceased Abdul Motleb. Complainant Motiur Rahman is her brother.
She stated that on the date of occurrence, the accused persons
physically assaulted her husband. A-1 gave blows on the shoulder
Crl.A./439/2023 Page 6
of her husband with 'lathi' and A-2 gave blow on the head of her
husband with 'lathi'. She further stated that she saw that her
husband fell down on the ground and then nearby people
immediately took her husband to the Civil Hospital, Dhubri for
treatment. Next day, her husband died in the GMCH, Guwahati. She
has also stated that on the day of occurrence, a goat of the accused
persons damaged their paddy and her husband intended to put the
goat in the pound and that is why the accused persons physically
assaulted her husband.
16. During her cross-examination by the defence side, the PW-6 stated
that as the goat of the accused persons damaged their cultivation,
quarrel took place between her husband and the accused persons.
She has deposed that the dispute was not regarding a cow. On the
day of occurrence, a quarrel also took place between her and Apina,
who is the wife of A-1. She has deposed that before the incident
the relation between accused persons and her husband was cordial.
The PW-6 denied the other suggestion made by the defence side.
17. The PW-7, Maina Bibi, has deposed that she is the mother of the
deceased Abdul Motleb and accused persons are her relatives. She
has deposed that her son Abdul Motleb intended to put the goat
into pound and then accused persons physically assaulted her son
by means of sticks and her son fell down on the ground, thereafter,
nearby people took her son to the Civil Hospital, Dhubri for
treatment and then took GMCH, Guwahati for better treatment but
next day her son died in the GMCH, Guwahati.
Crl.A./439/2023 Page 7
18. During her cross-examination by the defence, PW-7 deposed that
her house is situated about 1 km from the house of her son Abdul
Motleb. After hearing about the incident, she came to the place of
incident. She denied the suggestions made by the defence.
19. The PW-8, Soleman Ali, has deposed that on the date of
occurrence, the accused persons physically assaulted Abdul Motleb.
He did not see the incident. The incident was narrated to him by
Bodior Zaman. He denied the suggestion made by the defence.
20. The PW-9, Motior Rahman, who is the complainant in this case has
deposed that in the evening there was quarrel between deceased
Abdul Motleb and the accused persons in the courtyard of the
deceased due to damage of the cultivation of the deceased by the
goats of the accused persons. He has deposed that the accused
persons gave blows to the Abdul Motleb by means of sticks. After
receiving the blows he sustained injuries and was taken to
Golakganj hospital and then to Dhubri Civil Hospital. Ultimately, he
was referred to Guwahati Medical College and Hospital, where on
the next day Abdul Motleb died. His sister had informed him about
the incident that A-1 and A-2 physically assaulted Abdul Motleb.
Further, he stated that when Abdul Motleb was taken to Hospital he
was with him and Abdul Motleb told him that A-1 and A-2 physically
assaulted him.
21. During his cross examination by the defence side, the PW-9
admitted that in the ejahar it was mentioned that accused A-1 gave
a blow to the deceased by means of a rod. He deposed that he
Crl.A./439/2023 Page 8
cannot recall which 'mohori' (deed writer) wrote the ejahar. He
deposed that accused persons are relatives. He also admitted
ejahar was lodged on the same day of incident. He is not aware if
police seized the weapon of offence or not. PW-9 denied the other
suggestions made by the defence side.
22. The PW-10, Moinul Haque, has deposed that he heard that Motleb
died because of dispute arose with the accused persons called over
a question of eating crops by goat. This PW was declared hostile by
the prosecution. During his cross-examination by the prosecution
side, he denied all the suggestions put to him.
23. The PW-11, Dr. A.J. Patowary, has deposed that on 06.07.2011, he
conducted post-mortem examination on the body of Abdul Motleb
and on examination, he found as follows:
a) Stitched wound on left parietal area 2cm to left of midline
over coronal suture, one laceration of size 4.5 x 1cm skull
cavity deep.
b) Stitched wound of size 14 cm in length over parietal area in
left side in coronal plane intersecting the injury no.1, one
surgical wound of size 14cm x1 cm scalp deep.
c) Abrasion of size 3cm x 2cm in occipital area 9 cm posterior to
right mastoid tip.
d) Abrasion of size 2cm x 1 cm in right face, 1 cm in front of
targus of right ear.
24. The PW-11 opined that the death was due to coma as a result of
head injury described. All the injuries were ante mortem, caused by
blunt weapon and homicidal in nature. He deposed that the time
Crl.A./439/2023 Page 9
since death at the time of post-mortem was 12 to 24 hours
(approx.).
25. During his cross-examination by the defence side, the PW-11
deposed that he did not mention as to the colour and age of the
injury. He opined that the weapon used was blunt. He deposed that
at the time of the post mortem examination no videography was
done. He further deposed that the death cannot be other than
homicidal under the present facts and circumstances of the case as
he found. He has deposed that the head injury is sufficient enough
to make a person go to coma in natural course. In the instant case,
there is no finding regarding heart blockage or any coronary
problem surfaced from the conduct of the post-mortem
examination.
26. The PW-12, Aminur Islam, has deposed that he came to know
about the incident that Abdul Motleb was taken to Dhubri Civil
Hospital, thereafter, he went to Dhubri Civil Hospital and saw the
arrangement was made to take Abdul Motleb to GMCH, Guwahati.
He along with Bellal Sk and Monowar Ali accompanied Abdul Motleb
to Guwahati for better treatment but on 05.07.2011 at about 12.00
midnight Abdul Motleb died.
27. During his cross examination, PW-11 stated that he did not go to
the place of occurrence, He did not know as to whether Abdul
Motleb was treated at Moterjhar Model Hospital and Golakganj PHC,
initially. He has deposed that deceased was his uncle in village
relation. He heard that villagers paid Rs. 25,000/- for treatment of
Crl.A./439/2023 Page 10
deceased and the accused person. PW-11 denied the suggestions
made by the defence side.
28. The PW-13, Ajijur Hoque, has deposed that he was not present
when the incident took place. There was some dispute between the
accused person and his brother-in-law. He further deposed that
injured was taken to GMCH, Guwahati for better treatment but he
succumbed due to his injures at GMCH, Guwahati.
29. During his cross examination, the PW-13 deposed that he is not
aware for what reason there was a dispute between the accused
and his brother-in-law. He deposed that when he met his brother-
in-law in GMCH, Guwahati, he was in an unconscious condition in
the ICU.
30. The PW-14, Sri Samir Bhushan Banik, who is the Investigating
Officer of the case, has deposed that during the investigation he
visited the place of occurrence, recorded the statement of the
witnesses, prepared the rough sketch map, prepared the seizure
list, arrested the accused persons and recorded their statement,
collected the MCD from GMCH, Guwahati and thereafter submitted
the charge sheet against the accused persons under Sections
302/34 IPC.
31. During his cross-examination, PW-14 has deposed that during
investigation, he seized two numbers of bamboo stick but not iron
rod or wooden stick. PW-14 admitted that he did not send the
accused persons for recording their confessional statement before
the Magistrate. He also did not send the seized bamboo sticks for
Crl.A./439/2023 Page 11
FSL examination. He stated that incident took place on 04.07.2011
and FIR was lodged on 06.07.2011. He has also deposed that the
PW-9 did not state before him while recording his statement that
the victim told him that the injury was caused by the accused
persons. PW-14 denied the other suggestions made by the
defence.
32. Mr. B. D. Das, the learned senior counsel for the appellants has
submitted that the Trial Court had erred in convicting the appellants
under Section 304 Part 1 of the Indian Penal Code, in as much as
there was no intention on the part of the appellants to commit the
alleged offence. He submits that the incident occurred due to
sudden fight between the appellants and the deceased over a travel
issue relating to grazing of goats in the field. He submits that there
was only one eyewitness to the incident, i.e., PW-6 and though,
she has deposed that more than 100 people gathered at the place
of occurrence, no corroborating eyewitness would be produced by
the prosecution side. He also submits that though PW-7, i.e., the
mother of the deceased was regarded as eyewitness by the Trial
Court, however, the same was erroneous in as much as in the
cross-examination of the PW-7, she has deposed that she lives
about one kilometer away from the house of the deceased and she
came to the place of occurrence on hearing about the incident,
which itself indicates that she had not seen the incident.
Crl.A./439/2023 Page 12
33. The learned senior counsel for the appellants has also submitted
that though in the FIR, it has been stated that the incident occurred
relating to grazing of cow in the field of the deceased, however,
the witnesses have stated that it was due to the grazing of goats
that the incident occurred. He also submits that in the FIR, it has
been stated that the deceased was assaulted with an iron rod.
However, none of the witnesses had stated so in their testimony.
He further submits that the PW-6 had deposed that the deceased
was assaulted with bamboo.
34. The learned senior counsel for the appellants has also submitted
that the PW-3, who is an independent witness, has deposed that
he saw both the appellant No.2 as well as the deceased were lying
at the place of occurrence with head injuries which itself indicates
that there was a fight between both the parties. It was not
intentional but the fight was sudden.
35. The learned senior counsel for the appellant has submitted that
though knowledge may be attributed to the appellants that the
assault might lead to death of Abdul Motleb, however, no intention
can be attributed as there is no material on record to attribute that
the attack was intentional. He therefore, submits that the
conviction of the appellants may be converted to 304 Part II, and
the sentence may be modified to the period of detention already
undergone by the appellants. In support of his submission, he has
cited following rulings.
Crl.A./439/2023 Page 13
i. Hussainbhai Asgarali Lokhandwala Vs. The State of
Gujarat, reported in 2024, SCC Online SC 1975.
ii. Ram Singh Vs. State of Uttar Pradesh reported in
(2024) 4 SCC 208.
iii. Gadadhar Chandra Vs. State of West Bengal,
reported in (2022)6 SCC 576.
36. On the other hand, the learned Additional Public Prosecutor has
submitted that the Trial Court has rightly convicted the appellants
under Section 304 Part 1 of the Indian Penal Code. He submits that
there are eyewitnesses to the incident, as PW-6 and PW-7 have
categorically stated that they had seen the appellants assaulting the
deceased with lathi. He submits that the testimony of PW-7 and
PW-6 could not be contradicted during their cross-examination.
He also submits that the evidence of PW-11 as well as the injury
report which has been exhibited as well as the post-mortem
examination report, which has been exhibited, corroborates the
testimony of PW-6 and PW-7.
37. Similarly, Mr. J. Islam, the learned counsel for the informant has
submitted that the appellants were rightly convicted and sentenced
by the Trial Court on the basis of the testimony of the
eyewitnesses, namely, PW-6 and PW-7. He further submits that
though, the PW-9 is not an eyewitness, before him dying
declaration was made by the deceased, as deceased told him that
Crl.A./439/2023 Page 14
he was assaulted by the appellants. He submits that minor
discrepancy in the FIR regarding the weapon used in the assault as
well as the fact as to whether the incident occurred due to grazing
of cow or grazing of goats is not a material discrepancy and same
may not have any impact on the prosecution's case. In support of
his submission, he has cited the ruling of the Apex Court in the case
of the State of Uttar Pradesh Vs. Krishna Master and Others
reported in (2010) 12 SCC 324.
38. I have considered the submissions made by the learned counsel for
both sides and have gone through the materials available on record
including the case record of the Sessions Case No. 11/2017, which
was requisitioned in connection with the instant appeal. I have also
gone through the rulings cited by the learned counsel for both sides
in support of their case.
39. On perusal of the post-mortem examination report of the deceased,
as well as after going through the testimony of the doctor who
conducted the post-mortem examination, namely PW-11, it appears
that the death of the deceased, Abdul Motleb, was caused due to
the injuries sustained by him on his head. The injuries were caused
by a blunt weapon and were found to be homicidal in nature.
40. Though, the Trial Court had considered the PW-6 as well as PW-7,
as eyewitnesses, however, it appears from the cross-examination
of the PW-7, wherein she had stated that she stays about one
kilometer away from the house of her deceased son, Abdul Motleb,
Crl.A./439/2023 Page 15
and she came to the place of incident after hearing about the
incident, which is indicative of the fact that the incident occurred
prior to her arrival to the place of occurrence. Hence, there is a
doubt as to whether she had witnessed the incident herself or not.
41. However, even if we take into consideration the testimony of the
sole eyewitness, namely, PW-6, who is the wife of the deceased,
wherein, she has stated that the appellant No.1 gave blow with a
lathi on the shoulder of her husband and appellant No.2 gave blow
on the head of her husband with a lathi, would show that the
weapon of offence used in this case was a lathi and not the iron rod
as stated in the FIR.
42. Further, if we take into consideration the testimony of PW-3, who
had deposed that when he reached the place of occurrence, he saw
the deceased Abdul Motleb, as well as appellant No.2 lying there
with head injuries, which indicates that there was a fight between
both of them.
43. The evidence on record also suggests that prior to the incident, the
relationship between the appellants and the deceased was cordial
and the incident occurred only due to the dispute which arose
regarding grazing of the paddy by the goats of the appellant.
44. The Trial Court has also observed in Paragraph No. 64 of the
impugned judgment that there was no prior deliberation or
determination to fight. The sudden quarrel arose between the
Crl.A./439/2023 Page 16
parties due to tribal issue of grazing of cattle of the accused, for
which the deceased raised objection.
45. As the fight was sudden and there was no premeditation to commit
the offense, hence intention cannot be attributed to the appellants
for what they have done. As PW-3 had also seen the appellant
No.2 in an injured condition, it can be concluded that the deceased
also took part in the fight, and during such a sudden fight, it is
difficult to say without any clear evidence on record to that regard
that the appellants assaulted the deceased with an intention of
causing such bodily injury which is likely to cause death. However,
as the injury was on the head, the knowledge can be attributed to
the appellants. The appellants knew that as they had assaulted the
deceased on head, he might die due to such an assault. Hence,
the case of appellants in the considered opinion on this Court falls
under third category of the Section 299 of the IPC, and therefore, it
would be an offense under Part-II of the Section 304 of the IPC and
not under Part-I of the Section 304 of the IPC as held by the Trial
Court.
46. In this regard, the Apex Court has clarified as to under what
circumstances an accused may be convicted under Section 304
Part-I of the IPC, and when he can be convicted under Section 304
Part-II of the IPC in the case of Anbazhagan Vs. The State,
represented by the Inspector of Police, reported in 2023 SCC
Online SC 857. The Apex Court has observed as follows:
Crl.A./439/2023 Page 17
"66. Few important principles of law discernible
from the aforesaid discussion may be summed up
thus:--
1) When the court is confronted with the
question, what offence the accused could be
said to have committed, the true test is to find
out the intention or knowledge of the accused
in doing the act. If the intention or knowledge
was such as is described in Clauses (1) to (4)
of Section 300 of the IPC, the act will be
murder even though only a single injury was
caused. To illustrate: 'A' is bound hand and
foot. 'B' comes and placing his revolver
against the head of 'A', shoots 'A' in his head
killing him instantaneously. Here, there will be
no difficulty in holding that the intention of 'B'
in shooting 'A' was to kill him, though only
single injury was caused. The case would,
therefore, be of murder falling within Clause
(1) of Section 300 of the IPC. Taking another
instance, 'B' sneaks into the bed room of his
enemy 'A' while the latter is asleep on his bed.
Taking aim at the left chest of 'A', 'B' forcibly
plunges a sword in the left chest of 'A' and
runs away. 'A' dies shortly thereafter. The
Crl.A./439/2023 Page 18
injury to 'A' was found to be sufficient in
ordinary course of nature to cause death.
There may be no difficulty in holding that 'B'
intentionally inflicted the particular injury
found to be caused and that the said injury
was objectively sufficient in the ordinary
course of nature to cause death. This would
bring the act of 'B' within Clause (3) of
Section 300 of the IPC and render him guilty
of the offence of murder although only single
injury was caused.
2) Even when the intention or knowledge of the
accused may fall within Clauses (1) to (4) of
Section 300 of the IPC, the act of the accused
which would otherwise be murder, will be
taken out of the purview of murder, if the
accused's case attracts any one of the five
exceptions enumerated in that section. In the
event of the case falling within any of those
exceptions, the offence would be culpable
homicide not amounting to murder, falling
within Part 1 of Section 304 of the IPC, if the
case of the accused is such as to fall within
Clauses (1) to (3) of Section 300 of the IPC. It
would be offence under Part II of Section 304
Crl.A./439/2023 Page 19
if the case is such as to fall within Clause (4)
of Section 300 of the IPC. Again, the intention
or knowledge of the accused may be such that
only 2nd or 3rd part of Section 299 of the IPC,
may be attracted but not any of the clauses of
Section 300 of the IPC. In that situation also,
the offence would be culpable homicide not
amounting to murder under Section 304 of
the IPC. It would be an offence under Part I of
that section, if the case fall within 2nd part of
Section 299, while it would be an offence
under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC.
3) To put it in other words, if the act of an
accused person falls within the first two
clauses of cases of culpable homicide as
described in Section 299 of the IPC it is
punishable under the first part of Section 304.
If, however, it falls within the third clause, it is
punishable under the second part of Section
304. In effect, therefore, the first part of this
section would apply when there is 'guilty
intention,' whereas the second part would
apply when there is no such intention, but
there is 'guilty knowledge'.
Crl.A./439/2023 Page 20
4) Even if single injury is inflicted, if that
particular injury was intended, and objectively
that injury was sufficient in the ordinary
course of nature to cause death, the
requirements of Clause 3rdly to Section 300 of
the IPC, are fulfilled and the offence would be
murder.
5) Section 304 of the IPC will apply to the
following classes of cases : (i) when the case
falls under one or the other of the clauses of
Section 300, but it is covered by one of the
exceptions to that Section, (ii) when the injury
caused is not of the higher degree of
likelihood which is covered by the expression
'sufficient in the ordinary course of nature to
cause death' but is of a lower degree of
likelihood which is generally spoken of as an
injury 'likely to cause death' and the case does
not fall under Clause (2) of Section 300 of
the IPC, (iii) when the act is done with the
knowledge that death is likely to ensue but
without intention to cause death or an injury
likely to cause death.
To put it more succinctly, the difference
between the two parts of Section 304 of
Crl.A./439/2023 Page 21
the IPC is that under the first part, the crime
of murder is first established and the accused
is then given the benefit of one of the
exceptions to Section 300 of the IPC, while
under the second part, the crime of murder is
never established at all. Therefore, for the
purpose of holding an accused guilty of the
offence punishable under the second part of
Section 304 of the IPC, the accused need not
bring his case within one of the exceptions to
Section 300 of the IPC.
6) The word 'likely' means probably and it is
distinguished from more 'possibly'. When
chances of happening are even or greater
than its not happening, we may say that the
thing will 'probably happen'. In reaching the
conclusion, the court has to place itself in the
situation of the accused and then judge
whether the accused had the knowledge that
by the act he was likely to cause death.
7) The distinction between culpable homicide
(Section 299 of the IPC) and murder (Section
300 of the IPC) has always to be carefully
borne in mind while dealing with a charge
under Section 302 of the IPC. Under the
Crl.A./439/2023 Page 22
category of unlawful homicides, both, the
cases of culpable homicide amounting to
murder and those not amounting to murder
would fall. Culpable homicide is not murder
when the case is brought within the five
exceptions to Section 300 of the IPC. But,
even though none of the said five exceptions
are pleaded or prima facie established on the
evidence on record, the prosecution must still
be required under the law to bring the case
under any of the four clauses of
Section 300 of the IPC to sustain the charge of
murder. If the prosecution fails to discharge
this onus in establishing any one of the four
clauses of Section 300 of the IPC, namely,
1stly to 4thly, the charge of murder would not
be made out and the case may be one of
culpable homicide not amounting to murder as
described under Section 299 of the IPC.
8) The court must address itself to the question
of mens rea. If Clause thirdly of Section 300 is
to be applied, the assailant must intend the
particular injury inflicted on the deceased. This
ingredient could rarely be proved by direct
evidence. Inevitably, it is a matter of inference
Crl.A./439/2023 Page 23
to be drawn from the proved circumstances of
the case. The court must necessarily have
regard to the nature of the weapon used, part
of the body injured, extent of the injury,
degree of force used in causing the injury, the
manner of attack, the circumstances preceding
and attendant on the attack.
9) Intention to kill is not the only intention that
makes a culpable homicide a murder. The
intention to cause injury or injuries sufficient
in the ordinary cause of nature to cause death
also makes a culpable homicide a murder if
death has actually been caused and intention
to cause such injury or injuries is to be
inferred from the act or acts resulting in the
injury or injuries.
10) When single injury inflicted by the accused
results in the death of the victim, no
inference, as a general principle, can be drawn
that the accused did not have the intention to
cause the death or that particular injury which
resulted in the death of the victim. Whether
an accused had the required guilty intention or
not, is a question of fact which has to be
determined on the facts of each case.
Crl.A./439/2023 Page 24
11) Where the prosecution proves that the
accused had the intention to cause death of
any person or to cause bodily injury to him
and the intended injury is sufficient in the
ordinary course of nature to cause death,
then, even if he inflicts a single injury which
results in the death of the victim, the offence
squarely falls under Clause thirdly of
Section 300 of the IPC unless one of the
exceptions applies.
12) In determining the question, whether an
accused had guilty intention or guilty
knowledge in a case where only a single injury
is inflicted by him and that injury is sufficient
in the ordinary course of nature to cause
death, the fact that the act is done without
premeditation in a sudden fight or quarrel, or
that the circumstances justify that the injury
was accidental or unintentional, or that he
only intended a simple injury, would lead to
the inference of guilty knowledge, and the
offence would be one under Section 304 Part
II of the IPC.
Crl.A./439/2023 Page 25
47. In the instant case, there was an altercation between the appellants
and the deceased over grazing of fields by the goats of the
appellants, and such altercation escalated into mutual fight between
them, wherein the deceased as well as the appellant No.2 both
sustained injuries which shows that there was no intention to cause
death.
48. During mutual fight, it cannot be ascertained as to the appellants
intended to cause specific bodily injury to the deceased, which is
sufficient in ordinary course of nature to cause death. As the injury
assault was on head of the deceased also, the knowledge that such
an assault may result into death of the deceased might be
attributed to the appellants, therefore, in the considered opinion of
this Court, the offence in the instant case falls within third category
of Section 299 of the Indian Penal Code, and therefore, it is an
offence under Section 304 Part-II of the Indian Penal Code and not
under Part-I of the Section 304 IPC as held by the Trial Court.
49. The conviction of the appellants is, therefore, converted under
Section 304 Part-II of the Indian Penal Code, as well as under
Section 325 of the Indian Penal Code.
50. It is pertinent to mention herein that in this case that one of the
appellant has already undergone incarceration of 1 year 7 months,
and another one has undergone incarceration more than 5 months.
It appears that the entire incident occurred in the heat of the
Crl.A./439/2023 Page 26
moment, and neither party could control their anger, which
ultimately resulted into the fateful incident.
51. After considering the circumstances under which the alleged
offences were committed by the appellant, the sentence imposed
on them by the Trial Court is also modified to the period of
incarceration already undergone by them.
52. In view of above, all the appellants are directed to be released
forthwith, if their detention is not required in connection with any
other case.
53. This Criminal Appeal is accordingly, disposed of.
JUDGE
Comparing Assistant
Crl.A./439/2023 Page 27
