Criminal Appeal No.350 of 2000

9th February, 2005

Petitioner Counsel: Mr. M. R. DAGA
Respondent Counsel: Mr. S. J. JICHKAR

Cases Cited:
State of Andhra Pradesh Vs. Rayavarapu Punnayya, AIR 1977 SC 45 [Para 15]
Virsa Singh Vs. State of Punjab, AIR 1958 SC 465 [Para 16]
Hardeo Singh Vs. State of Punjab, AIR 1975 SC 179 [Para 17]
Harjinder Singh Vs. Delhi Administration, AIR 1968 SC 867 [Para 18]

JUDGMENT

P. B. GAIKWAD, J. :- Accused Baburao Baliram Janjal being dissatisfied with the order of conviction and sentence dated 09-11-2000 by IInd Additional Sessions Judge, Akola in Sessions Case No.192/1999 convicting him for the offence punishable under section 302 of the Indian Penal Code and directing him to suffer imprisonment for life and to pay a fine of Rs.1,000/- in default R.I. for one year filed present appeal.

2. The facts, in brief, leading to the present appeal, are as follows:

That the appellant-accused and deceased Sheikh Mushtaq is resident of Wadegaon, District Akola. Bhaurao Karale - P.W.2 is also resident of Wadegaon having his photo studio in Gujari lane Wadegaon. The alleged incident took place on 28-06-1999 in front of the photo studio belonging to P.W.2 - Bhaurao Karale at Wadegaon known as "Rajkamal Photo Studio" and the scuffle took place between deceased Sheikh Mushtaq and Baburao - the present appellant. Some exchange of words also took place between Mushtaq and the appellant. The accused assaulted Mushtaq with a wooden log (yoke), due to which he became unconscious. Bhaurao (P.W.2) gave information to the police on phone in respect of the said incident. There is out-post at Wadegaon. Police Head Constable on duty at Wadegaon out-post immediately visited the place of the incident. The statement of Bhaurao (P.W.2) is accordingly recorded and on the basis of same, Crime was accordingly registered initially under section 324 of the Indian Penal Code. Sheikh Mushtaq was referred to the Primary Health Centre, Balapur, for treatment and thereafter he was referred to the Civil Hospital, Akola. However, at about 4.30 a.m. on 29-06-1999 he succumbed to the injuries. Section 302 of the Indian Penal Code is accordingly added. Inquest was held on the dead body and the same was sent to the post-mortem. Police after completing the investigation submitted charge-sheet against the present appellant before the Judicial Magistrate First Class, Balapur, for the offence punishable under section 302 of the Indian Penal Code.

3. The Judicial Magistrate First Class, Balapur, committed the case to the Court of Sessions, Akola, as the offence under section 302 of the Indian Penal Code being exclusively triable by the Court of Sessions. Sessions Case No.192/2000 was made over to the IInd Additional Sessions Judge, Akola, who framed charge against the accused on 13-01-2000 as per Ex.3 for the offence punishable under section 302 of the Indian Penal Code, which was read over and explained to the accused. However, he pleaded not guilty to the charge. The prosecution, to connect the accused with the abovesaid crime, examined near about 13 witnesses. P.W.1 - Yunuskha Subhankha Pathan is a panch witness as regards the place of the incident. The evidence of this witness is at Ex.13, while the spot panchanama is at Ex.14. Yoke or wooden log (Article-5) which was at the place of the incident is also attached under the spot panchanama. P.W.2 is Bhaurao Devrao Karale, who made a report to the police station in respect of the incident. The evidence of this witness is at Ex.15. P.W.3 - Abdul Kayyum Ab. Sattar is an eye-witness to the said incident. His evidence is at Ex.16. P.W.4 - Deepak Chandrashekhar Karanjkar and P.W.5 - Suresh Gangaram Raut, though are eye-witnesses to the incident, they turned hostile. P.W.6 - Digambar Totaram Arakrao is the police constable, who took the articles of soil Crime No.109/99 to Chemical Analyser. His evidence is at Ex.21. Through his evidence the requisition letter issued by PSI to the Assistant Director, Forensic Laboratory, Nagpur got proved, which is at Ex.23. P.W.7 - Ifterkhan Ahemad Mohd. Yusuf is also an eye-witness to the incident. His evidence is at Ex.25. P.W.8 - Mohd. Rafiq Mohd. Umar is again an eye-witness. His evidence is at Ex.26. Inquest panchanama is at Ex.27. Seizure panchanama of the clothes, which were on the person of the deceased is at Ex.28. P.W.9 - Dr. Rahemankhan Kalekhan is the medical officer who performed post-mortem. His evidence is at Ex.30 and through his evidence, the post-mortem report is got proved at Ex.31. P.W.10 - Vishwas Gulabrao Dhanokar, a panch witness about attachment of shirt, which was on the person of the accused. The panchanama is proved at Ex.33. P.W.11 - Devidas Head Constable, who was attached to outpost Wadegaon, immediately had been to the place of the incident after receipt of information on phone about the quarrel between deceased Mushtaq and Baburao - present appellant. Entry to that effect which was taken in the station diary is got proved at Ex.35. The evidence of this witness is at Ex.34. As Baburao - the person who has given report, on the basis of which crime was registered, has turned hostile, therefore, report is got proved through the evidence of this witness, which is at Ex.36 and the statement of Bhaurao Karale is at Ex.37. P.W.12 - Arun Lohakpure is medical officer, who was attached to Primary Health Centre, Balapur, who initially examined Sheikh Mushtaq when he was referred by Police Head Constable to the hospital for treatment on 26-06-99. The evidence of this witness is at Ex.45. He had issued certificate in respect of the injuries which were noticed on the person of Mushtaq. The said certificate is at Ex.46. The another requisition letter issued by PSI Balapur for collecting blood sample and the office copy is proved at Ex.47 and the certificate issued by Doctor is at Ex.48. The opinion given by this Doctor after considering the weapon is proved at Ex.50 while requisition letter is at Ex.49. The last witness is Nandkumar Kale, API, who investigated the crime no.109/99 and who submitted charge-sheet against the accused. The evidence of this witness is at Ex.51. Through his evidence occurrence report and extract of station diary is got proved at Ex.54. The Chemical Analyser's report is proved at Ex.55.

4. The IInd Additional Sessions Judge, Akola, after considering the above oral as well as documentary evidence on record, concluded that the prosecution succeeded in proving that Sheikh Mushtaq met homicidal death and further succeeded in proving that the present appellant assaulted the deceased Sheikh Mushtaq with wooden log (yoke) and accordingly, convicted the accused-appellant for the offence punishable under section 302 of the Indian Penal Code directing him to suffer imprisonment for life. The said order of conviction and sentence dated 09-11-2000 in Sessions Case No.192/2000 is challenged by filing the present appeal.

5. In appeal, we heard Shri. Daga, the learned Advocate for the accused and Mr. Jichkar, the learned Additional Public Prosecutor for the State at length. It is submitted by Shri. Daga, Advocate for the appellant that the order of conviction is not proper and according to him, the Court practically failed to scan and analyse the evidence on record and wrongly convicted the appellant for the offence punishable under section 302 of the Indian Penal Code. Secondly, according to him, from the circumstances on record, no requisite intention can be gathered to spell out the offence under section 302 of the Indian Penal Code. As from the evidence, it is apparently clear that the deceased Sheikh Mushtaq was abusing the appellant imputing his mother and there was also beating; even there was free fight between the appellant and Mushtaq and the alleged incident cannot be said to be pre-determined, calculated and it being out-come of sudden quarrel without any pre-meditation. Thirdly, according to him, it is the case of single blow and due to said blow there is lacerated wound. Even there is no evidence that the appellant assaulted Mushtaq by giving another blow in a cruel manner. Lastly, according to him, the deceased abused the appellant by using filthy language and from which it can be gathered that on provocation the appellant assaulted Mushtaq. He, therefore, submitted that the order of conviction for the offence punishable under section 302 of the Indian Penal Code is definitely not justified. Request is accordingly made to allow the appeal and to set aside the order of conviction and sentence.

6. On the other hand, it is submitted by the learned Additional Public Prosecutor for the State that the order of conviction and sentence under section 302 is proper; requisite intention can safely be gathered as initially there was scuffle and quarrel between deceased and the present appellant. However, thereafter the appellant had gone to the place from where he took wooden log (yoke) and assaulted Sheikh Mushtaq on his head. Considering the part of the body on which blow was given, the wooden log used for the assault and the nature of inquiry as disclosed in the post-mortem report, the requisite intention can safely be gathered and according to him, the appeal is without merit and the same deserves to be dismissed.

7. Considering the submissions made on behalf of the parties to the appeal, it is now necessary to see whether the order of conviction and sentence is proper and justified.

8. Firstly, it is necessary to consider whether the prosecution succeeded in proving that deceased Sheikh Mushtaq met homicidal death and in this respect, reference to the evidence of P.W.11 - Devidas Ingle, Head Constable attached to out post Wadegaon, P.W.12 - Arun Lohakpure who is Medical Officer attached to Primary Health Centre, Balapur who issued injuries certificate at Ex.46 and the evidence of P.W.9 Medical Officer Dr. Rahemankhan, who performed post-mortem over the dead body of Sheikh Mushtaq on 29-06-99 is necessary. From the evidence of P.W.11 - Devidas Ingle, Police Head Constable attached to Police out-post Wadegaon, it is clear that on 28-06-99 he was on duty at the Police outpost at Wadegaon as a Head Constable and at noon time he received telephonic message from one photographer. Entry in the station diary of the said message has been taken, which is proved at Ex.35, about quarrel between Sheikh Mushtaq deceased and the present appellant Baburao and about the scuffle between these two and after receiving phone message, he along with police constable Shivdas immediately proceeded to the place of incident, which is in front of "Rajkamal Photo Studio", Gujari Lane, Wadegaon and found that Sheikh Mushtaq was lying on the road. This witness P.W.11 along with Shivdas took Sheikh Mushtaq in injured condition to the Police outpost and referred to the hospital at Wadegaon. The evidence of P.W.12 - Arun Lohakpure Medical Officer attached to Primary Health Centre, Balapur, further makes it clear that on 28-06-99 he received requisition letter from Police outpost Wadegaon with a request to examine Sheikh Mushtaq and he accordingly examined him at about 3.30 on 28-06-99 and noticed the following injuries:-

(1) a lacerated wound on left temporal region of the size 3" x 1¼" x ¼" probably caused due to hard and blunt object.

(2) abrasive wound on the right elbow joint 1¼" x ¼" x skin deep probably caused due to hard and blunt object.

The age of injury is given within six hours. The said person Sheikh Mushtaq was found in semi-conscious condition and was accordingly referred for further treatment to Government Hospital at Akola. He accordingly issued certificate (Ex.46) which is consistent with the evidence of Doctor.

9. On perusal of the evidence of P.W.11 - Devidas Ingle it is clear that on the basis of complaint given by Bhaurao (P.W.2), he registered crime for the offence punishable under section 324 of the Indian Penal Code. PSI Kale attached to Police Station, Balapur registered the crime No.109/99 on the basis of occurrence report (Ex.38). As Sheikh Mushtaq, who was admitted in the General Hospital, Akola succumbed to the injuries on 29-06-99, therefore, he added section 302 of the Indian Penal Code, held inquest over the dead body and referred the same to the post-mortem. P.W.9 - Dr. Rahemankhan attached to Civil Hospital, Akola, performed post-mortem over the dead body of Sheikh Mushtaq on 29-06-99 at about 5.00 p.m. The dead body was identified by the brother of the deceased Sheikh Mushtaq namely Sheikh Channu. Dr. Rahemankhan (P.W.9) on external examination noticed lacerated wound over the scalp four inch long in length longitudinally over the left parieto region, the wound was sutured and same was ante mortem in nature. On internal examination, he also noticed heamatoma under the scalp extending in the parieto frontal region and the temporal region on the left side. He also noticed fracture depressed at temporal area under dura towards right parietal area. Other organs found congested and accordingly he gave opinion as regards the cause of death as the head injury. Considering the above evidence on record, we find that the conclusion arrived at by the Court below holding that the prosecution succeeded in proving that Sheikh Mushtaq met homicidal death is definitely proper and justified and the same is in conformity with the evidence on record.

10. The another material aspect is whether the present appellant is the author of injuries sustained by Sheikh Mushtaq, for which the evidence on record needs to be scanned. In the present case, there is direct evidence and certain circumstances on record on which reliance is placed by the prosecution. P.W.3 - Abdul Kayyum Ab. Sattar, P.W.7 - Ifterkhan and P.W.8 - Mohd. Rafiq Mohd. Umar are the eye-witnesses to the said incident. P.W.2 - Bhaurao Karale who made report to the police station in respect of the incident is also an eye-witness. However, he has not supported the prosecution and, therefore, the report given by this witness, on the basis of which crime is registered being got proved through the evidence of P.W.11 - Devidas only because P.W.2 - Bhaurao turned hostile, his evidence cannot be discarded as a whole, however, the evidence of this witness which is consistent with the prosecution case can safely be accepted and the material part of his evidence, that when he came to his Photo Studio, at noon time he found Sheikh Mushtaq lying near his photo studio and he was in unconscious condition and further that he gave information to the police outpost Wadegaon and that the police came to the spot can be accepted. Even he also admits that his report got recorded by the police. Evidence of P.W.11 - Devidas states that he along with police constable Shivdas were on duty on 28-06-99, at outpost Wadegaon which is under police station Balapur, phone message was received from Gujari lane from one Photo Studio about quarrel between present appellant and Sheikh Mushtaq. Entry has been taken by station diary to the effect about the information received on telephone and that entry is at Sr. No.11 (Ex.35). The material portion from the particulars of the entry is that the scuffle is going on between Sheikh Mushtaq and the present appellant and therefore, he along with police constable Shivdas proceeded to place of incident as informed on phone. The another entry at Sr. No.12 further makes it clear that Sheikh Mushtaq was found lying in the injured condition. He sustained injuries to the head and the Police Head Constable P.W.11 along with police constable Shivdas took injured Sheikh to outpost at Wadegaon and referred him to Medical Officer, Wadegaon for necessary treatment and his evidence further makes it clear that Bhaurao (P.W.2) then made written report to the police station immediately, which is proved at Ex.36 and his statement is being recorded by P.W.11 - Devidas. He has also issued an occurrence report Ex.38 on the basis of which crime No.109/99 was registered. On perusal of the evidence of P.W.11, if it is read together with the reference to Ex.36, Exs.37 and 38, the same are consistent so far as regards the alleged incident which took place at about 2.30 on 28-06-99 about the scuffle between deceased Sheikh Mushtaq and present appellant and about the injuries sustained by Sheikh Mushtaq. A reference in this respect is also necessary to the evidence of P.W.3 - Abdul Kayyum Ab. Sattar, P.W.7 - Ifterkhan and P.W.8 - Mohd. Rafiq Mohd. Umar as the eye-witnesses to the incident and on close scrutiny of their evidence, it is made clear by these three witnesses consistently that the scuffle and quarrel was going on between Sheikh Mushtaq and Baburao present appellant at about noon time at Gujari lane Wadegaon. The present appellant got rescued from the clutches of Sheikh Mushtaq and had gone to the cattle shed of Ganesh Rathod which is adjacent place of incident took one wooden log (yoke) and gave blow by the said wooden log on the head of Sheikh Mushtaq and thereafter he left the place. Sheikh Mushtaq was found lying in the injured condition and thereafter P.W.11 - Devidas and Police Constable Shivdas took him to the outpost at Wadegaon and thereafter referred to the Medical Officer. The evidence of these three witnesses P.W.3 - Abdul Kayyum Ab. Sattar, P.W.7 - Ifterkhan and P.W.8 - Mohd. Rafiq Mohd. Umar are consistent with material particulars and there is no mistaken identity of the accused, as all these witnesses reside in the same village. Even they had given details about the incident and the manner in which the incident took place. If the evidence of these witnesses P.W.3 - Abdul Kayyum Ab. Sattar, P.W.7 - Ifterkhan and P.W.8 - Mohd. Rafiq Mohd. Umar is read together with the evidence of P.W.11 - Devidas, we find that their evidence has been rightly scanned and accepted by the Court below being reliable and trustworthy.

11. There are other certain circumstances on record, which give link to connect the accused with the said crime as, from the evidence, the scuffle and quarrel was between deceased and the present appellant and this being witnessed by P.W.3 - Abdul Kayyum Ab. Sattar, P.W.7 - Ifterkhan and P.W.8 - Mohd. Rafiq Mohd. Umar. The another circumstance is that the present appellant, after giving blow with the wooden log to Sheikh Mushtaq, left the place. The wooden log was found on the place of incident, which was attached under spot panchanama. The shirt which was on the person of the accused was attached during the course of investigation. The clothes which were on the person of the deceased were also attached. The blood sample was also collected and the same was sent to C.A. The blood group of deceased was "O" and the Shirt which was on the person of the accused was stained with the blood and the blood detected being human and that of "O" group. The C.A. report is on record and C.A. report again gives link to connect the accused with the said crime. Thus, from the direct evidence coupled with the above circumstances on record, the conclusion of the court below that the present appellant was the author of the injuries sustained by Sheikh Mushtaq is definitely justified.

12. The last aspect is whether the Court below is justified in convicting the accused for the offence punishable under section 302 of the Indian Penal Code. Before considering the correctness of findings recorded by the court below, it is desirable to give reference to Sections 299 and 300 of the Indian Penal Code.

Section 299 culpable homicide which reads as under :-

"299. Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

Exception 1 ....."

Section 300 Murder reads as under:-

"Section 300 Murder-Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -

3rdly - If it is done 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

4thly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1 - When culpable homicide is not murder - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

Exception 2 - ......

Exception 3 - ......

Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.

Exception 5 - ......"

13. On perusal of Sections 299 and 300 of the Indian Penal Code, it is apparently clear that a murder is merely a particular form of culpable homicide. Every murder is culpable homicide but not vice versa. In other words, culpable homicide is genus and murder is its specie. Culpable homicide can be distinguished from murder on account of special mens rea which consists of four mental attitudes as stated in Section 300 of the Indian Penal Code. It is apparently clear that, except in cases covered by five exceptions, culpable homicide is murder if the act by which death is caused is done with the intention of causing death or if the act falls under any of the clauses of Section 300 of the Indian Penal Code. Thus, the correct approach to decide as to whether the offence is culpable homicide not amounting to murder which falls under section 299 of the Indian Penal Code or any of the exceptions under section 300 of the Indian Penal Code or whether the offence is murder which falls in any of the clauses of Section 300 of the Indian Penal Code, it is necessary first to determine and consider whether the facts proved bring the case under any of the four clauses of Section 300 of the Indian Penal Code. If they do not come under the definition of murder then the offence will be culpable homicide not amounting to murder under section 299 punishable under section 304 either Part I or Part II of the Indian Penal Code.

14. The distinguishing factor between culpable homicide from murder is the presence of special mens rea which consists of four mental attitudes stated in Section 300. The difference between clause (b) of Section 299 and Clause "thirdly" of Section 300 is one of degree of probability of death resulting from the intended bodily injury. The word 'likely' in Clause (b) of Section 299 conveys the sense of 'probable' while the words 'sufficient in the ordinary course of nature to cause death' in Clause thirdly of Section 300 conveys the death will be most probable.

15. For the purpose of fixing punishment proportionate to the gravity of the offence, under the Penal Code practically there are cases of three degrees of culpable homicides. The first which is the greatest form of culpable homicide is defined as murder in Section 300 of the Indian Penal Code. The second may be termed as culpable homicide of second degree which is punishable under first part of Section 304 and third degree which is lowest degree of culpable homicide and punishment provided for it is also lowest punishment. Before an accused can be said to have committed culpable homicide, it must be found that he did the act with the intention or knowledge referred to in Section 299 of the Indian Penal Code namely intention to cause death or such bodily injury as was likely to cause death and it must be further found that the death was caused by the injuries inflicted. It is true that section 304 of the Indian Penal Code does not create any offence but merely provides the punishment of culpable homicide not amounting to murder, if the case falls either under section 299 of Indian Penal Code or any of the exceptions. It is also true that merely because only one blow was given by the accused to the deceased, that by itself is not a straight jacket formula or ground which will automatically neutralise the gravity and seriousness of the offence under section 302 of the Indian Penal Code. However, the Court has to consider overall attending facts and circumstances of the given case for the purposes of determination of punishment either under section 302 or section 304 Part I or Part II of the Indian Penal Code. It is also necessary to make it clear that the difference between the intention to cause death and the intention to cause such bodily injury as is likely to cause death is difference of degrees only. A reference in this respect is necessary to an Authority reported in AIR 1977 Supreme Court 45 (State of Andhra Pradesh Vs. Rayavarapu Punnayya and others). Penal Code Ss.299 and 300 - Murder and culpable homicide not amounting to murder and it is observed in the said Authority to the following effect:-

"Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide' not amounting to murder on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Sec.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of Section 304, Penal Code."

16. A reference is also necessary to another Authority reported in AIR 1958 Supreme Court 465 (Virsa Singh Vs. State of Punjab) Penal Code Section 300, thirdly - Applicability - Essentials to be proved - Inference of intention from nature of injury - When can be made. It is observed in the said Authority to the following effect:

"The prosecution must prove the following facts before it can bring a case under Section 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution, the offence is murder under section 300 "thirdly"."

17. A reference is also necessary to one another Authority reported in AIR 1975 Supreme Court 179 (Hardeo Singh and another Vs. State of Punjab) wherein it is observed to the following effect:-

"Penal Code. Section 302 Thirdly - Where an injury which, on objective test, has been found to be sufficient in the ordinary course of nature to cause the death of the victim the question which falls for determination in such a case is whether the causing of the fatal injury was accidental or unintentional or some other kind of injury was intended to be inflicted by the assailant. Ordinarily and generally, once the existance of the injury is proved, the intention to cause it will be presumed unless the evidence of the circumstances warrant an opposite conclusion."

18. A reference is also necessary to another Authority reported in AIR 1968 Supreme Court 867 (Harjinder Singh Vs. Delhi Administration) Penal Code Section 300, "Thirdly" and 304 - Scope and applicability - Intention of accused to inflict the particular injury on the particular place not proved. It is observed to the following effect:-

"As was laid down in 1958 SCR 1495 for the application of this clause it must be first established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is satisfied."

19. Thus, considering the Sections 299 and 300 of the Indian Penal Code and the ratio laid down in the above Authorities, it is now necessary first to see whether the act on the part of present appellant falls under any of the clauses of Section 300 or whether it falls under clause (b) of Section 299 or whether it falls under exception 4 of Section 300 of the Indian Penal Code. On close scrutiny of the evidence on record, it is apparently clear from the evidence that at about 2.30 p.m. on 28-06-99 the quarrel was going on between deceased and present appellant and even a scuffle took place. The evidence further makes it clear that the present appellant got rescued himself from the clutches of deceased and went to the cattle shed owned by Ganesh Rathod, which is hardly 15 feet from the place of incident, took a wooden log (yoke) and gave blow on the head in sudden fight and thereafter ran away from the place. It is from this evidence, it can be gathered that the incident is not out-come of predetermination nor it can be said to be calculated, however, the same is at a spur of moment in sudden quarrel when the scuffle was going between the deceased and present appellant. Even the accused cannot be said to have acted in a cruel or unusual manner. It is true that the blow was given by the accused on the head of the deceased and from the medical evidence, it can be seen that the said injury was the cause of death. But the circumstances on record clearly indicate that the case in hand does not fall under Clause "thirdly" of Section 300, but the same falls under Exception 4 of Section 300 and Clause (b) of Section 299 of the Indian Penal Code. Therefore, we find that the accused can safely be convicted under Part I of section 304 of the Indian Penal Code. Thus, the appeal filed by the accused is partly allowed and the conviction under section 302 of the Indian Penal Code is set aside. The judgment and order of the conviction and sentence passed by the IInd Additional Sessions Judge, Akola dated 09-11-2000 in Sessions Case No.192/1999 is modified and the accused-appellant is convicted for the offence under section 304 Part (I) of the Indian Penal Code and directed to suffer imprisonment for seven years and to pay fine of Rs.5,000/- in default imprisonment for one year. He is entitled to get set off under section 428 of the Code of Criminal Procedure. The order about disposal of the property passed by IInd Additional Sessions Judge, Akola is maintained.

Appeal partly allowed.