IMPORTANT POINT
In absence of motive and intention to kill, accused cannot be convicted u/s 302 IPC.

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J. –

The appellant has assailed the judgment dated 18th October, 2004 passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal No.259 of 2002. By the impugned judgment the High Court dismissed the appeal and affirmed the judgment passed by the Trial Court dated 27th March, 2002 in Sessions Trial No.17-S/7 of 2001 wherein the Trial Court convicted the appellant and sentenced him to imprisonment for life and also to pay fine of Rs.5,000/- for the offence under Section 302 IPC and in default, further imprisonment for one year. The appellant was also sentenced by the Trial Court for the offence under Section 324 IPC to undergo imprisonment for six months and to pay fine of Rs.500/-, in default, further simple imprisonment for one month. The appellant was also sentenced for the offence under Section 27 of Arms Act to undergo imprisonment for three months and to pay fine of Rs.1000/-, in default, further simple imprisonment for one month. The Trial Court ordered that all the aforesaid sentences shall run concurrently.

2. The facts of the prosecution case as stated by Jai Pal (PW.5) are that he was carrying business of taxi in Shimla. On 31st December, 2000 at about 9 p.m. he had gone to Hotel Apsara at Cart Road, Shimla to inquire from Budhi Singh (PW.8), Manager of the Hotel Apsara regarding the booking of his taxi by some passenger staying in the Hotel. Budhi Singh (PW.8) asked Jai Pal (PW.5) to come after some time. Both of them then went together to Hotel Basant for celebrating New Year. They took wine and dinner together and remained in the said Hotel till 12 o’clock. Thereafter, Budhi Singh(PW.8) returned to Hotel Apsara while Jai Pal (PW.5) came towards Cart Road where he met Romi Kapoor (PW.6), Pawan Kumar (PW.7), Deep Chand and Rajnish alias Rintu who inquired about the booking of a room in the Hotel as earlier agreed upon. Jai Pal (PW.5) went to the Hotel Apsara where he did not find Budhi Singh (PW.8), Therefore, he went upstairs in the Hall of the Hotel where he found accused Manjeet Singh along with Balraj and Surender Kumar were taking liquor. Jai Pal (PW.5) inquired from the appellant-accused, Manjeet Singh about the Manager of the Hotel to which the accused was alleged to have retorted that he was not the Chowkidar of the Hotel so as to know and tell about the Manager. Accused- Manjeet Singh was further alleged to have started abusing Jai Pal (PW.5) by proclaiming that he was serving in Punjab Police. The accused was further alleged to have started beating Jai Pal (PW.5) by giving him a fist blow on his mouth. Jai Pal (PW.5) ran outside. He met the above-named Romi Kapoor (PW.6), Deep Chand, Pawan Kumar (PW.7) and Rajnish. He narrated the incident to them. Romi Kapoor (PW.6), Rajnish alias Rintu and Pawan Kumar (PW.7) went inside the Hall while Jai Pal (PW.5) and one Roshan remained standing at the entrance of the Hotel. Rajnish alias Rintu inquired from the accused-Manjeet Singh as to the cause of his having given beatings to Jai Pal (PW.5). The accused was alleged to have told his companions, Balraj and Surender Kumar to tell Rajnish and his friends about the cause of the beatings to Jai Pal (PW.5). Balraj and Surender Kumar were then alleged to have abetted and instigated the accused by saying “Carbine Ka Kamal Dekhao”. Whereupon accused was alleged to have fired shots from his Carbine which hit Rajnish alias Rintu, Romi Kapoor (PW.6), Jai Pal (PW.5) and Pawan Kumar (PW.7). Rajnish alias Rintu sustained two shots on his chest and he fell down on the ground. The accused and Balraj were alleged to have run away after the gun shots. Jai Pal (PW.5) lifted Rajnish alias Rintu and carried him to I.G.M.C. Hospital, Shimla, where he was declared dead.

3. On the telephonic message of one Pradeep Kumar, Jagdish Ram (PW.25), Station House Officer, Police Station Sadar reached the spot. Surender Kumar, a companion of the accused, was apprehended from the toilet of the Hotel. Si