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- 27 - Cr. Appeal (DB) No. 2092 of 2017 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‟. (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.

(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 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.

(iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof? Or

(iv) Whether the appellants are entitled for acquittal in absence of cogent evidences?

39. Since, all the aforesaid issues are inextricably inter- linked, the same are being discussed and decided hereinbelow together.

40. Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that 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. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act - (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death, ―intent‖ and ―knowledge‖ as

- 31 - Cr. Appeal (DB) No. 2092 of 2017 the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mens rea necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person.

41. If the offence which is covered by one the clauses enumerated above, would be liable to be convicted under Section 304 IPC. If the offence is such that which is covered by clause (a) or (b) mentioned above i.e. Section 299 IPC, the offender would be liable to be convicted under part I IPC as it uses the expression that death is caused with the intention of causing death or of causing such bodily injury as is likely to cause death, where intention is dominant factor. However, if the offence is such which is covered by clause (c) mentioned above, the offender would be liable to be convicted under Section 304 part II IPC because of the use of the expression ―if the act is done with the knowledge that is likely to cause death but without any intention to cause death or to cause bodily injury as is likely to cause death‖ where knowledge is a dominant factor.