The intention to cause death is a crucial factor in determining whether an offense falls under section 300 (murder) or section 304(2) (culpable homicide not amounting to murder) of the Indian Penal Code.

VISHNU SAHAI, J.

( 1 ) THE appellant aggrieved by the Judgment and order dated 16-6-1994, passed by the V Additional Sessions Judge, Solapur, in sessions Case No. 229 of 1991, convicting and sentencing him to undergo RI for life, for an offence under section 302, Indian Penal Code, has come up in appeal before us.

( 2 ) IN short, the prosecution runs as under : On 25-11-1991, the deceased Dhondiba Yellu karve was grazing cattle of Ravsaheb Mahimkar, PW 6, in the land of the latter situated within the limits of village Antroli, Taluka South Solapur, district Solapur. At about 12 noon, the appellant reprimanded Dhondiba for grazing the cattle in his field. On this score, there was a quarrel between the appellant and Dhondiba and during the course of the same, the appellant gave three blows with axe; the first on the hand of Dhondiba, the second on the left leg and the third on the upper side of the left thigh. It is alleged that hearing the cries of Dhondiba, a large number of people, including Jagannath PW 4, collected there. Jagannath questioned Dhondiba as to who had assaulted him and on that Dhondiba told him that it was the appellant who had assaulted him with an axe. Jagannath in his evidence stated that he had seen the appellant giving an axe blow on the left leg of Dhondiba. It is alleged that when Jagannath asked dhondiba the reason for the appellant assaulting him, he replied that since his cattle had grazed in the land of the appellant, he was assaulted by him. Thereafter, Jagannath went and informed ravsaheb Mahimkar. A jeep was arranged for and on the said jeep, Dhondiba who was in a precariously injured condition, was taken to police station mandrup. Evidence of PSO Ramchandra Mohite PW 7, shows that on 25-5-1991, at about 2 p. m. Dhondiba was brought in a jeep at the Mandrup police station. Since Dhondiba was precariously injured, ramchandra Mohite gave a yadi for his medical examination to the Medical Officer of Primary health Centre, Mandrup. However, as Dhondiba was hovering between life and death, it was thought proper, at Primary health Centre Mandrup, to refer him to Civil hospital, Solapur.

( 3 ) INJURIES of Dhondiba were medically examined by Dr. Guruppa Nakamote PW 11, the same day at Civil Hospital, Solapur. Dr. Nakamote found that he had sustained two injuries namely : (1)Cut injuries left ankle region, posterior aspect bleeding plus involving fracture of tibia fibula. (2)Incised wound on left buttock region, lateral aspect 3 x 6 bone deep with pelvic bone fracture bleeding plus.

( 4 ) EVIDENCE of Ramchandra Mohite PW 7 shows that on coming to know that Dhondiba had been sent to Civil Hospital Solapur, he issued a yadi to ASI bhagwan Nimbalkar PW 13 to record his FIR. Evidence of ASI Nimbalkar PW 13 shows that onreceiving the yadi, he proceeded to Dr. Nakamote pw 11 and enquired from him whether Dhondiba was in a position to make a statement and on receiving a reply in the affirmative proceeded to record the same. Statement of Dhondiba is Exhibit 45 and bears endorsement of Dr. Nakamote to the effect that Dhondiba was in a fit condition to make the said statement.

( 5 ) EVIDENCE of Ramchandra Mohite PW 7 further shows that ASI Nimbalkar PW 13 gave him Dhondiba s statement Exhibit 45 and on the basis of the same, he registered C. R. No. 12 of 1991 under section 326/504 of Indian Penal Code and section 135 of the B. P. Act. On Dhondiba s death which took place on the date of incident itself it was converted to section 302, Indian Penal Code.

( 6 ) INVESTIGATION was conducted in the usual manner. On the date of the incident itself i. e. 25- 5-1991, Ramchandra Mohite asked PHC Nabilal Shaikh pw 8 to proceed to the scene of the offence. He went there and attached the blood-stained earth and plain earth under a panchanama. Bulk of the investigation was conducted by PW 14 PSI Tanajirao Bhise. On the night of the incident itself, he recorded statement of jagannath and the next day, the statement of mahi