Deo Narayan Thanvi, J.
1. Convict Nayab Singh has filed this appeal from jail through Superintendent, Central Jail, Bikaner against the judgment dated 4.9.2002 passed by the learned Additional Sessions Judge (Fast Track), Anupgarh, District Sri Ganganagar, whereby, he was convicted of offence under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo three months' rigorous imprisonment for killing his mother in the morning of 26th July, 1999.
2. The Station House Officer, Police Station Suratgarh, District Sri Ganganagar registered a First Information Report Ex. P. 2, which was lodged before him by Prithvi Singh son of Inder Singh, by Caste Majhabi Sikh, resident of Gurusar Moidya on 26.7.99 at about 8.15 pm, in which, he alleged that for the last several days, mental condition of his son Nayab Singh was not good. It is further alleged that a day before the incident, he went to village Hindo to take his daughter. His wife Smt. Kulwant Kaur, son Nayab Singh and Younger daughter Kiran Kaur were at the house. On 26.7.99 at about 2 pm, Nazar Singh by Caste Jat Sikh came to him and told that his son Nayab Singh has killed his wife Smt. Kulwant Kaur by inflicting Axe blow on her head in the morning at about 7 am and the same has been witnessed by his relative Tahal Singh. On hearing this, he went to his village from Village Hindo along with Nazar Singh. At that time, Tara Singh Upsarpanch, Roop Singh and Tahal Singh were also reached on the spot, where the dead body of Smt. Kulwant Kaur was lying. There was a fatal injury on the head of the deceased Smt. Kulwant Kaur. He also came to know that his neighbours Kaku Singh, Jagtar Singh etc. came to his house and took her wife to the hospital but on the way she died. According to this report, his son appellant Nayab Singh has killed his wife on account of domestic quarrel by inflicting Axe blow on her head. The reason for delayed FIR was that he was out of the village.
3. On this report, police registered a case of offence under Section 302 IPC and investigation was commenced. During the course of investigation, site was inspected and Axe was recovered at the instance of the accused. The Axe and clothes of the accused were sent for examination. The post mortem of the dead body was also conducted. After investigation, accused Nayab Singh, who was arrested on the next day of the incident was challenged under Section 302 IPC before the learned Additional Chief Judicial Magistrate, Suratgarh, who committed the case to the Court of Sessions, where accused was charged for offence under Section 302 IPC, to which he denied and claimed trial. During the course of trial, the prosecution examined 14 witnesses namely PW-1 Tahal Singh, PW-2 Kiranpal, PW-3 Prithvi Singh, PW-4 Tahal Singh son of Bugga Singh, PW-5 Dr. Ratan Lal Agarwal, RW-6 Mangtu Singh, PW-7 Roop Singh, PW-8 Kaku Singh, PW-9 Lekhraj, PW-10 Jagtar Singh, PW-11 Sarvar Ali, PW-12 Mohan lal Swami, PW- 13 Om Prakash and PW-14 Satpal Dudi. The statement of accused under Section 313 of the Code of Criminal Procedure was recorded, in which he denied the allegations levelled against him. No witness was produced in defence. The learned trial Court having found the prosecution case proved against the appellant, convicted and sentenced him in the manner stated above.
4. Mr. Rakesh Sinha, Advocate was appointed as Amicus Curiae by the order of this Court dated 1.11.2002 to assist the Court on behalf of the unrepresented accused-appellant.
5. We have heard learned Amicus Curiae, learned Public Prosecutor and also gone through the record of the learned trial court carefully. While assailing the judgment of the learned trial court, Mr. Rakesh Sinha, learned Amicus Curaie has submitted that the judgment of the learned trial Court is based on conjectures as there is no direct evidence against the accused appellant to link him with the alleged crime. According to learned Counsel, the only eye witness of the case is PW-1 Tahal Singh, whose statement is contradictory and infirmly. Most of the important witnesses have turned hostile. It is submitted by the learned Counsel that there was no motive on the part of the accused-appellant to kill his own mother. In the alternative, he has submitted that in the absence of any motive or intention to kill the deceased being the mother of the accused and except sudden provocation of tape noise and entry of PW.1 Tahal Singh in the house, the charge can at the most be converted into Section 304 Part-II IPC, which deals with culpable homicide not amounting to murder or Section 326 IPC. In support of his contention, learned Counsel has placed reliance on several judgments i.e. Dharam and Ors. v. State of Haryana reported in : 2007CriLJ791 ; Rakesh @ Rakesh Kumar v. State of Rajasthan reported in 2005(9) RDD (Raj.) 3925; Mahipal @ Pappu v. State of Rajasthan reported in 2005(3) RDD (Raj.) 205; Nahar Singh and Anr. v. State of Rajasthan reported in 2006(5) RDD (Raj.) 2897; State of Orissa v. Mr. Brahmandanda Nanda reported in : 1976CriLJ1985 .
6. On the other hand, learned Public Prosecutor has supported the judgment of the learned trial Court and the sentence awarded to the accused appellant.
7. In this case, the sole eye witness is PW-1 Tahal Singh, who deposed that he is the nephew of deceased Smt. Kulwant Kaur wife of Prithvi Singh. He went on the day of occurrence to her house at Gurusar Modiya. His uncle (Phupha) was not at the residence as he went to village Hindo. His cousin sister Kiranpal, daughter of deceased Kulwant Kaur was not in the house as she went out for taking milk. When he reached the house in the morning at about 7- 8 am, his aunt (Bhuwa) was preparing tea and accused Nayab Singh was loudening tape. When his aunt told Nayab Singh to keep the voice slow, Nayab Singh came with an Axe and gave blow on her head, thereby, blood came out and he shouted. Accused Nayab Singh ran towards him. Thereafter, Roop Singh and Kaku Singh came on the spot and took the deceased to the hospital. On the way, she died. In the evening at about 4 pm, his uncle (Phupha) Prithvi Singh lodged a First Information Report at the Police Station. This statement of PW-1 Tahal Singh is supported by the Statements of PW.7 Roop Singh and PW. 8 Kaku Singh, who came later on at the spot and saw accused Nayab Singh running towards PW-1 Tahal Singh with an Axe. When they reached at the house of Prithvi Singh, they saw Smt. Kulwant Kaur and asked her about the incident. She told that Nayab Singh has given Axe blow on her head. They took her to the hospital but on the way she died. Thereafter, they brought her back to the home. According to PW-7 Roop Singh, -Nayab Singh also told to Sarpanch Mangtu Singh that he has killed his mother. He has said that Tahal Singh is his grand son. PW-6 Mangtu Singh- Sarpanch is the witness of recovery memo of the dead body Ex. P.9, but he has denied about the extra judicial confession made by Nayab Singh before him and he has not said anything about the extra judicial confession made by Nayab Singh before him. PW-3 Prithvi Singh- husband of deceased, PW-2 Kiranpal -daughter of deceased, PW.4 Tahal Singh son of Bugga Singh and PW-10 Jagtar Singh are the hostile witnesses. Only PW-3 Prithvi Singh proved the First Information Report Ex. P.2, the site inspection Ex. P-4 and the dead body memo Ex. P-5, but he has denied the name of the person who killed his wife. From the cross-examination, all these three material witnesses namely PW-1 Tahal Singh, who is the eye witness, PW-7 Roop Singh and PW-8 Kaku Singh, who soon came after the incident and saw accused Nayab Singh running towards Tahal Singh, it appears that nothing has come out from their cross examination to disbelieve the act of accused with regard to inflicting the Axe blow on the head of his mother and thereby her death on the way to the hospital. The cause of death as stated by PW-5 Dr. Ratan Lal Agarwal is the head injury as per the Post Mortem Report Ex. P.8, in which, he has specifically stated that the cause of death was comma due to head injury, which is the following nature:
Incised wound with clotted blood 3 x 1 cm x bone deep on center of scalp. On dissection there is subcutomers collection of blood. There is fracture of Right Parietal bone under the wound indenting brain (Parehinglobe of Right Side) causing laceration of Parietal lobe with collection of clotted blood.
8. PW-9 Lekhraj is the Photographer of Photos Ex. P. 15 to P- 20. PW-11 Sarvar Ali, PW-12 Mohan Lal Swami, PW-13 Om Prakash, PW-14 Satpal Dudi are the police officers, participated in the investigation. The recovery memo of the Apex was made by PW-11 Sarvar Ali vide Ex. P. 13 in pursuance of the information furnished by accused Nayab Singh vide Ex. P.23 during police custody. The learned trial Judge while appreciating the above evidence came to the conclusion that there is no delay in the First Information Report on account of deceased's husband being about 30 kms away and also disbelieved the argument about recovery of the Axe and not found human blood on the Axe in the FSL Report Ex. P. 25. He also discarded the argument about arrest of accused on the next day of the incident and came to the conclusion that the case of culpable homicide amounting to murder punishable under Section 302 IPC is made out.
9. Under the Penal Law, every manslaughter or killing of a man or murder is culpable homicide, but every culpable homicide is not so. This distinction has been clearly laid down under Section 299 and 300 IPC, which deals with culpable homicide not amounting to murder and amounting to murder respectively. In both the situations, intention and knowledge are the important features to be taken into consideration by the Court based on the circumstances of each case. In the scheme of Penal Code, culpable homicide is genius and murder is specie. Culpable homicide is murder in the four circumstances as stated in Section 300 IPC. First three clauses deal with intention and the fourth clause is about the knowledge. The intention is gathered firstly, if the act by which the death is caused is done with the intention of causing death, secondly causing such bodily injury as the offender knowns to be likely to cause the death of the person to whom the harm is caused, thirdly 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, whereas, clause four which deals with knowledge in which the act 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.
10. If the present case is looked into the light of the above four clauses, the first important part is the evidence of PW-3 Prithvi Singh on whose First Information Report Ex. P.2, the criminal machinery was moved. Though he is a hostile witness being father of the accused and husband of the deceased. His First Information Report Ex. P.2, which has been proved by him clearly shows to be his own version. In the opening lines, he has stated that ^^ dbZ fnuksa is esjs yMds uk;c flag dk fnekx lgh ugha gS!** If this statement is read in the light of the version given by the sole eye witness PW. 1 Tahal Singh, it shows accused Nayab Singh assaulted his mother with Axe. It appears that this blow was given on account of being told by her deceased mother to keep the voice of the tape slow. Thus, immediately on asking by the mother, the act of accused by inflicting Axe blow on the head of the mother itself is strong ground to believe that he is not a man of ordinary mental features. A man of ordinary prudent cannot be expected to give Axe blow on the head of his mother and thereafter to run with the same Axe before a man who has been this occurrence. Apart from this, no other motive has come out in the evidence to prove it to be a case of intentionally causing bodily injury, which can be categorized under clause 2 and 3 of Section 300 IPC, nor from this evidence, it can be gathered that it was a case of knowledge where a single act of Axe blow can be termed as so imminently dangerous which in all probability will cause death so as to bring the case under Clause 1 of Section 300 IPC. In this way, the learned trial Judge has not tried to appreciate the evidence with regard to the charge under Section 300 IPC.
11. When the evidence is not sufficient to prove this charge of murder then the court has to see as to what offence has been committed, specially when the evidence of killing is established as stated above, the only alternative is culpable homicide not amounting to murder, which is defined under Section 299 IPC, in which intention or knowledge are essential. Since it is a case of bodily injury, therefore, if it is coupled with intention then it is punishable under Section 301 Part-I and if it is with the knowledge then it is punishable under Section 301 Part-II IPC Dr. Ratan Lal PW-5 has opined that the injury on the head of the deceased Kulwant Kaur was 3 x 1 cm x bone deep on the center of scalp and there was a fracture of right parietal bone therefore, patient went in comma due to the said injury. This act of the accused can be termed as likelihood for causing death by such bodily injury as stated above.
12. Now the question for determination is as to whether this act was done with the intention or knowledge. Intention is subjective element which reflects from the conduct of the accused and it must be coupled with some idea of killing, whereas knowledge is the awareness of the consequences of act. Obviously degree of knowledge which any particular person can be assumed to possess must vary. This fine distinction of knowledge and intention are essential questions of fact. Normally if the injuries inflicted on the vital part of the body with a deadly weapon, it can be commonly categorized as intentional act of manslaughter or killing but if it is inflicted under the abnormal circumstances, then the act can be fall under the category of knowledge of causing such bodily injury.
13. Here in the present case, as per the version of the First Information Report, accused's mental faculties are not normal. He gave Axe blow on his mother's head on being asked to keep the voice of the tape slow and running away with Axe towards the eye witness on his shouting. Specially in a situation when there is no other apparent motive this act can be termed as an act of knowledge coupled with bodily injury on the head (vital part) of his mother by giving a single Axe blow. Therefore, in our view, this is a case which falls under the category 3 of Section 299 IPC, punishable under Section 304 Part-II IPC.
14. The pronouncements cited by the learned Amicus Curiae are also on the same ratio on culpable homicide amounting to murder and not amounting to murder. In the cases of Dharam and Ors., Rakesh @ Rakesh Kumar, Mahipal @ Pappu and Nahar Singh and Anr. (supra), accused were convicted for offence under Section 304 Part-II IPC instead of Section 302 IPC. However, in the case of State of Orissa v. Mr. Brahmananda Nanda (supra), their Lordships of the Supreme Court held that if the eye witness does not disclose the name of the assailant for a day and half, it causes serious infirmity and distress the credibility of the evidence. In this case, one of the infirmity was about the non disclosure of the name of the assailant from the night of 13th June, 1969 till the morning of 15th June, 1969. Whereas, in the present case, the name of the accused was disclosed by all the three witnesses as referred above namely PW-1 Tahal Singh, PW-7 Roop Singh and PW-8 Kaku Singh and PW-3 Prithvi Singh, father of the accused, who lodged the First Information Report Ex. P-2 on the same day i.e. 26.7.99. Therefore, in our view, this citation is not helpful to the accused. Thus, we are of the view that this case is of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC instead of Section 302 IPC.
15. Consequently, we allow the appeal in part and set aside the conviction and order of sentence for life imprisonment passed by the learned trial Court dated 4.9.2002 by holding the accused Nayab Singh guilty for offence under Section 304 Part-II IPC instead of Section 302 IPC and sentence him to undergo ten years' imprisonment. The payment of fine shall remain in tact. Accused Nayab Singh is in jail. He will serve out remaining part of the sentence.