Manohar Pershad, J.:— These two appeals, Criminal Appeals Nos. 431 and 524 of 1958, the former on behalf of accused 1 to 4 and the latter by the State, are directed against the judgment of the Sessions Judge of Cuddapah holding accused 1 to 4 guilty under Second Part of Section 304 I.P.C read with Section 34 I.P.C for the murder of Kesireddi and sentencing each of them to seven years' rigorous imprisonment, and also holding 1st accused guilty under Sec. 324 I.P.C for voluntarily causing hurt to P.W 1 and sentencing him to two years' rigorous imprisonment, and also holding 4th accused guilty under Sec. 325 I.P.C for voluntarily causing grievous hurt to P.W 1 and sentencing him to three years' rigorous imprisonment, all the sentences to run concurrently.

2. The facts leading to these appeals are: Accused 1 to 4 were charged with the murder of one Vennapusa Kasireddi in the village of Peddapasupula on 18-1-1958 at about 10 A.M near the rastha at Pedda Ankanna's kallam. The prosecution case was that accused 1 and 2 are the sons of sisters, and accused 3 and 4 are the sons of 1st accused's wife's sister. About two months prior to the occurrence, a dispute arose between the 1st accused and the deceased regarding a bund between the field of 1st accused and that of Venkatareddi (P.W 5), the deceased's brother's son-in-law. 1st accused raised a bund digging out the earth from the field of Venkatareddi between their fields. Venkatareddi went and reported the matter to Kasireddi, the deceased. The deceased and P.W 5 proceeded to the 1st accused and questioned him. The 1st accused replied that the matter may be referred to a panchayat. Then a panchayat was held with P.W 3 Sanjeevareddi, one Dibbireddi, and Nagireddi as panchayatdars. P.W 4, Venkata Subbarayudu, was called to make measurements of the fields and on measurements being taken, it was found that 1st accused had removed earth from the field of Venkatareddi, and the panchayatdars felt that it was not useful to give any decision on the spot and said that they would give it later after considering all the aspects.

3. Words were exchanged between them. In the altercation, the deceased said that his anger against him would not be satisfied unless he kicked 1st accused. The 1st accused replied “* * * *?” (Original translated as, “You think, you can kick me and still get on.”) The deceased however kicked 1st accused on his buttock. The 1st accused went away without saying or doing anything and the panchayat stopped. On the day of the occurrence, P.W 1 went to his kallam with his bulls to crush the ears of corn. The deceased, one Mahanandireddi (not 1st accused) Annareddi and Chinna Pullareddi also went with them to his kallam to assist in the work. They worked in the kallam till, after Chinna Amballa Proddu and before Pedda Amballa Proddu, i.e, about 9 or 9-30 a.m When they reached the kallam of Ankanna, accused 1 to 4 came from the opposite doddi of Pedda Subbareddi and attacked the deceased.

4. The 1st accused stabbed him in the stomack with the spear, and the 3rd accused in the right flank. The deceased fell down. Thereafter, the 2nd accused hit him on his head with the hatchet and the 4th accused beat him with a stick on his body. The 1st accused again attempted to stab the deceased, but P.W 1 intervened and held the spear. The 4th accused hit P.W 1 with the stick on Ills hand with which P.W 1 let the spear go. Then all the four accused ran away towards the tank. P.W 1 found the deceased unconscious with the injuries and then he ran to the village to report about the occurrence to the elder brother of the deceased, Pedda Abbireddi. P.W 1 brought Pedda Abbireddi, the wife of the deceased (P.W 7) and others to the scene of occurrence.

5. The deceased was still unconscious. He was carried to the house of Pedda Abbireddi on hands. A little later, the deceased died. P.W 1 thereafter went to the village Munsif (P.W 10) and gave him a report which he reduced to writing (Exhibit P-1). The Village Munsif along with P.W 1 came to the house of Pedda Abbireddi and found the corpse of Kesireddi there. He prepared the printed reports Exhibits P-5 and P-6 and forwarded them to the Police Station and Judicial II Class Magistrate, Jammalamadugu respectively. P.W 12 the Sub-Inspector of Police, after receiving information on 18-1-1958 at about 10-45 a.m that there was a murder, immediately went and reported to the Circle Inspector (P.W 13), and both of them went in a special bus to Peddapasupula reaching there by 11-30 a.m There, the Talari handed over to him the printed report Exhibit P-5 which he gave it to the Circle Inspector who perused it and returned to him for being sent back to the Police Station. P.W 9, the Head Constable, received the printed report with Exhibit P-1 at 2 p.m and registered the case as crime No. 72/58 under Section 302 I.P.C.P.W 13 started investigation and conducted the inquest over the corpse. After inquest, the body was sent to the hospital for post-mortem.

6. Blood-stained clothes of P.W 1 were seized under Exhibit P-9. Blood-stained earth was seized from the place of occurrence under Exhibit P-8. After this, the accused were charge-sheeted. On behalf of the prosecution, in all, 13 witnesses were examined. The accused denied the charge but did not produce defence. On the evidence on record the learned Sessions Judge found the accused guilty and sentenced them as aforesaid. Hence these two different appeals.

7. Of the prosecution witnesses, P.Ws 1 and 2, are the eye-witnesses. P.Ws 3, 4 and 5 speak about the motive. P.W 6 is the Doctor. P.W 7 is the wife of the deceased who speaks to the fact that on the day of the occurrence when she was in the house of Pedda Abbireddi, P.W 1 came and told them that her husband had been murdered near Ankanna's kallam. Hearing this, she says, she, Abbireddi and P.W 1 proceeded to the place. P.Ws 8 and 9 are formal witnesses. P.W 10 is the Village Munsif who deposed that P.W 1 came at about 10-30 a.m and made a report that Kasireddi was attacked. He reduced it to writing and read it out to him. He identifies Exhibit P-1. P.W 11 is another formal witness. P.W 12 is the Sub Inspector of Police and P.W 13 is the Circle Inspector. From the statement of the Doctor (P.W 6), it is clear that the deceased died of shock due to multiple injuries. Now, we have to see whether the prosecution evidence sufficiently establishes that the accused are the persons responsible for those injuries.

8. (After summarising the evidence of the eye-witnesses the karnam of the village and the Doctor who examined the deceased, his Lordship proceeded:) On behalf of the accused, it is contended that P.W 2 could not have witnessed the incident and his presence on the spot is not spoken to by P.W 1 which is sufficient to show that he could not be an eye-witness. It is true that P.W 1 does not speak to the presence of P.W 2, but P.W 2 clearly states that he saw P.W 1 watching the incident. It is further urged that P.Ws 1 and 2 in their earlier statements to the police had stated that the incident took place opposite the kallam of Ankanna, and if those statements are taken into account, it could not have been possible for P.W 2 to have witnessed the incident as he himself has admitted that if the incident had occurred to the east of the kallam of Ankanna, it would not be possible for him to see from the place where he was.

9. There is no force in this argument. First of all, those statements recorded by the police have not been marked. The learned counsel says those admissions have been proved by the statement of the Circle Inspector. That, in our opinion, is not sufficient compliance with the provision. If the object of the accused was to use it for the purpose of contradiction, it was their duty to draw the attention of the witnesses to those statements and get them marked. It has not been done so. P.Ws 1 and 2 have clearly stated that the occurrence took place in the rastha in front of Ankanna's kallam.

10. It is next argued that if the evidence of P.Ws 1 and 2 is to be believed, it would appear that according to them, there could be only 5 injuries, but from the evidence of the Doctor (P.W 6) it is clear that there were about 12 injuries on the person of the deceased. This, it is urged, is sufficient to show that the incident did not take place as spoken to by these witnesses. This argument is equally devoid of force. It is no doubt true that according to P.W 1, there were only four blows, but P.W 2 speaks of further more. The reason why P.W 1 could not speak to more injuries is obvious.

11. According to him, when he saw the deceased being given blows he intervened and when he intervened, he was attacked by the 4th accused. Therefore his attention at that moment could only be directed towards his assailant and not towards the others who were taking part in beating the deceased. P.W 2, who was witnessing the incident from behind P.W 1, could easily see and know how many blows were given by the other accused. Though apparently there appears to be discrepancy with regard to the number of the wounds, their statements tally with the medical evidence in this respect that according to them, the deceased was given a blow on the abdomen, on the head, on the ear and on the right flank.

12. The medical evidence also is to the same effect. It cannot therefore be said that the medical evidence does not tally with the statements of these two witnesses. As against the prosecution evidence, the accused have not produced any defence evidence, and in their statements both before the Committing Magistrate's Court and in the Sessions Court, they have only denied the fact. The evidence discussed above, in our opinion, sufficiently proves the guilt of the accused. The trial Court has also held them guilty, and we do not see any reason why we-should differ.

13. In the result, Criminal Appeal No. 431 of 1958 will stand dismissed.

14. We next turn to Criminal Appeal No. 524 of 1958. This appeal is on behalf of the State against the acquittal of accused 1 to 4 under Section 302 I.P.C Sri Mohammad Mirza, the learned Public Prosecutor, contended that from the prosecution evidence, it is clear that all the four accused were not only armed with weapons but were hiding in a place in Subba Reddi's doddi waiting for the deceased to come, and when the deceased reached the spot, they came out from their hiding place and attacked him with spears, hatchet and stick. In view of this, he urged that it could not be said that it was not a case of murder, but one of culpable homicide not amounting to murder. It is further urged that the Court below has erred in bringing the case under Section 304, Second part, I.P.C when it does not fall within any of the exceptions to Section 300 I.P.C

15. In order to appreciate the contention of the learned counsel, a reference to Sections 299, 300 and 304, Indian Penal Code is necessary. Section 299 defines culpable homicide, and it runs thus:

“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.”

Section 300 I.P.C defines the circumstances in which the offence of culpable homicide will, in the-absence of certain exceptions, amount to murder. It reads:

“Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing, death, or

Secondly: 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

Thirdly: 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

Fourthly: 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.”

In other words, it defines what must be proved to establish a prima facie case of murder. The first class of culpable homicide is causing death by doing an act with the intention of causing death. Such an offence is also prima facie murder within the express-words of Section 300 I.P.C The second class of culpable homicide is causing death with the intention of causing such bodily injury as is likely to cause-death, and Section 299 in defining this class of culpable homicide does not deal with knowledge at all, and knowledge and intention must not be confused.

16. The third class of culpable homicide is causing; death by an act with knowledge (on the part of the, offender) that he is likely by such act to cause death. It becomes murder under the fourth head of Section 300 I.P.C if it is done with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. This means if the offender's knowledge is such that in all the circumstances there must be inferred from it an intention that death should be the probable consequence of his act.

17. When questions of intention have to be considered, it must be borne in mind that every persons 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. Of course, it would be open to him to show that the injuries were accidental and therefore unintentional. 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 guilt depends upon intention and the intention to be inferred must be gathered from the facts proved. Sometimes an act is committed which would not in an ordinary case inflict injury sufficient in the 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. Whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death commits culpable homicide. These are the plain words of Section 299 and 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 oruinary course of nature to cause death, the higher degree of guilt is presumed. And, in the second part of Section 300, regard is paid to those cases in which proof of the offender's special knowledge in relation to his victim must be held to impute the intention that death should be the natural and probable consequence of his act.

20. In considering the scope of Sec. 304, care must be taken to avoid confusion of thought. First, culpable homicide is defined in Sec. 299 and then certain clauses of culpable homicide are said to be prima facie murder, that is, unless any of the mitigating circumstances set out in the exceptions to Sec. 300 I.P.C apply. If they do apply the prima facie presumption that the offence is murder is removed and the offence becomes culpable homicide not amounting to murder. But there is another class of offences which amounts to culpable homicide, namely those in which the presumption of murder is never raised at all because the intention ascribed to the offender in Section 300 I.P.C, is not apparent.

21. When in Section 304, the punishment for culpable homicide not amounting to murder is prescribed this offence is divided into two degrees of guilt. But these degrees of guilt do not depend upon whether the offence of culpable homicide amounted prima facie to murder or not; they depend on totally different considerations. Confusion is reached, if Section 300 is looked to when deciding under which part of Sec. 304 the offence of culpable homicide falls. The Section to be regarded in this connection is Sec. 299 which alone defines the separate offence of culpable homicide not amounting to murder.

22. The graver kind of culpable homicide (punishable under Part I of Sec. 304) includes cases where the act by which the death is caused is done with the intention of causing such bodily injury as is likely to cause death. The less grave kind of culpable homicide exists where there was a criminal recklessness resulting from the knowledge that an act was likely to have fatal results without proof of intention to cause injury to any person, or where there is no proof of intention to cause such bodily injury as was in fact likely to cause death.

23. Section 304, in our opinion, divides the offence of culpable homicide into two degrees of guilt, the graver of which depends on the intention proved or to be inferred from all the circumstances and the less serious of which does not depend on intention at all. But though the absence or presence of intention is the criterion to be adopted in deciding on which side of the line an offence under Sec. 304 falls, that is, whether on the graver or on the less serious side there are cases in which there is an intention which makes the offence the graver offence of culpable homicide but which would yet fall short of the intention requisite to satisfy Sec. 300.

24. Where no higher intention can be imputed than to inflict an injury which is in fact likely to cause death, there is the graver degree of guilt in culpable homicide, but there are no elements which bring the case under Sec. 300. Sec. 300 would only apply if it were possible to go a step further and say that the offender intended the injury to be sufficient in the ordinary course of nature to cause death, or knew that in the special circumstances of the case not death merely but the death of the particular person to whom the injury was caused was likely. If he knew that, he had knowledge from which the intention to cause the death of such a person could be inferred.

25. It follows therefore that cases coming under the last part of Sec. 299 are either cases under Sec. 304, Part II or else they fall prima facie under Sec. 300. In that class of cases recourse cannot be had directly to the first part of Sec. 304 unless it is a prime facie case of murder to which some exception applies. The Code nowhere says that an act one with the intention to inilict bodily injury likely to cause death is prima facie murder. On the contrary, sec. 299 expressly describes it as culpable homicide and Section 300 does not deal with it at all.

26. As a result of the above discussion, it may be stated that section 304 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 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;

(iii) when the act is done with the knowledge that death is likely to ensue but there is no intention to cause death or an injury likely to cause death. Ill such cases there may be either no intention to cause any injury at all, or there may be an intention to cause simple or grievous hurt but not an injury likely to cause death”.

The learned Sessions Judge, on the evidence has come to the conclusion that the accused had no intention to cause the death of the deceased Kasireddi, I but they cannot be said to have no knowledge that, the injuries they inflicted on him with such weapons' as spears and hatchet are likely to result in his death. In our view also, this conclusion by the learned Sessions Judge appears to be correct. The evidence does not disclose that there was any intention, but it is clear that the accused had the knowledge that their acts were likely to cause death. In these, circumstances the learned Sessions Judge has rightly held the accused guilty under the second part of Sec. 304 I.P.C

27. We do not agree with the contention of the learned Public Prosecutor 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 We may in this connection refer to the following cases: Dadi Abdul Gaffor, In re, 1955 Andh W.R 130 : (AIR 1955 Andhra 24), The King v. Aung Nyun, AIR 1940 Rang 259 (FB), Pasupat Gope v. Ram Rhajan Ojha, 1 Cal WN 545, Reg. v. Covinda, ILR 1 Bom 342. Hanumnnprasad v. The Crown, AIR 1949 Nag 254 and Behari v. State, AIR 1953 All 203.

28. In the result, we do not find any force in this appeal. It is therefore dismissed.

KC/H.G.P

29. Appeal dismissed.