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24. The distinction between culpable homicide (Section 299 RPC) and murder (Section 300 RPC) has always to be carefully borne in mind while dealing with the charge under Section 302 RPC. It is true that the difference between an act of causing such bodily injury as is likely to cause death and the act with the intention of causing such bodily injury as is sufficient in ordinary course of nature to cause death is one of degree. For the application of Clause (3) of Section 300 RPC, all that is required is that the injury intended must be such as would in the ordinary course of nature be sufficient to cause death: There may be a case in which even though the injury was sufficient in the ordinary course of nature to cause death the injured may escape death, but if he dies as a result of such an injury, offence would be covered by Clause (3) of Section. 300 RPC and be murder. If, however, the injury is of such a nature as is only likely to cause death and would not in the ordinary course of nature be sufficient to cause death, it would be culpable homicide not amounting to murder. In other words, the question of offence depends upon the degree of criminality and that again depends upon the offender's knowledge and intention.

25. In deciding the question whether the act of the accused amounts to the offence of murder or culpable homicide simpliciter, the Court has to see if the killing comes within any one of the four clauses of Section 300 RPC, it is, exceptions apart, murder. While Clause (3) to Section 300 RPC refers to a bodily injury sufficient in the ordinary course of nature to cause death. Section 299 RPC refers to bodily injury likely to cause death and it is the use of the word "sufficient" in Clause (3) of Section 300 RPC and the word "likely" where it occurs in Section 299 RPC. If on referring to Section 300 RPC, the Court finds that the killing does not come within one of the four clauses, then it can refer to Section 299 RPC. If the killing comes within the second part of Section 299 RPC, that which relates to the intention or causing a bodily injury likely to cause death, it comes under Section 304, Part I, RPC and if there is no intention, but only knowledge, that is to say, if there is no intention to cause death or bodily injury likely to cause death, but only knowledge that death is likely to be caused, the offence is under Section 304, Part II, RPC.

31. Taking into consideration the facts of the case in totality and the manner in which the violence has been used and injuries caused in furtherance of a common intention, the case of the accused would not be covered by Section 300 RPC but, however, it is proved that they cannot escape conviction for offence punishable under Section 304, part II, read with Section 34 RPC. In our opinion, by applying Section 34, RPC, the offence of the appellants-accused for conviction under Section 304, part II, RPC read with Section 34 RPC, instead of Section 300 RPC, is proved.

32. We are, therefore, of the opinion that the trial Court has weighed the evidence produced by the prosecution fairly, and decided the character of the witnesses correctly and reached the result rightly. We are also of the opinion that the trial Court has rightly rejected the evidence produced by the second set of witnesses because these witnesses do not inspire any confidence.

33. After taking conspectus of the entire concatenation of the facts and circumstances of the case discussed above, we allow the appeal in part, set aside the conviction and sentence of the appellants under Section 302 RPC read with Section 34. RPC, and convict and sentence them under Section 304 Part II RPC read with Section 34 RPC to suffer five years' rigorous imprisonment and a fine of Rs. 25,000/- each. In case of default in making the payment of fine, the appellants shall further undergo one year's imprisonment.