IMPORTANT POINT
In absence of any premeditation or intention to kill, accused cannot be convicted u/s 302 IPC.

JUDGMENT

A.M. Khanwilkar, J.

1. These appeals have been filed against the judgment and order dated 1st April, 2016 passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal Nos.75 & 227 of 2015, modifying the order of conviction and sentence passed by the Sessions Judge (Forests), Shimla, dated 31st December, 2014 in Sessions Trial No.39-S/7 of 2012 thereby convicting the appellant under Section 302 of the Indian Penal Code (IPC) and sentencing him to imprisonment for life along with fine.

2. Shorn of details, the appellant along with three others were tried for offence punishable under Sections 302, 201 read with Section 34 of IPC by the Sessions Judge (Forests), Shimla. The case of the prosecution is that a telephone message was received at Police Station, West Shimla at around 4.45 A.M. on 28.07.2011, informing that a quarrel had taken place near Tunnel 103, from where one Hunny was brought to IGMC Hospital (Shimla) in seriously injured condition. On reaching the hospital, the SHO Shakuntala Sharma was informed that the injured had succumbed to the injuries. She then recorded the statement of Rajinder Singh under Section 154 of the Code of Criminal Procedure. In his statement, Rajinder Singh disclosed that he had two children. His daughter Pooja was doing computer course and his younger son Hitesh Thakur, 22 years of age, was also doing computer course from Lakhar Bazar. He stated that Hitesh had left home on 27.07.2011 after taking meal, on his motorcycle bearing registration No.HP-63-3235, for attending computer course. He had then informed his sister Pooja on her mobile that he was going with his friend Akhilesh and would not be returning during the night. He requested his sister to inform their mother. At about 3 a.m. on 28.07.2011 one Atul Thakur (appellant herein) telephonically informed him that his son Hitesh was brought to IGMC Hospital, Shimla as he was not feeling well and asked him to come to the hospital. On receiving that telephonic information he rushed to the hospital and found that his son was lying dead in wounded condition. At that time, the appellant was also present there.

3. After recording the statement, investigation proceeded and four accused, who had visited the house of Mukesh Thakur (Accused No.2) where a drink party was arranged during the night of 27.07.2011 and 28.07.2011, were sent for trial for the stated offence. The Trial Court after analysing the evidence acquitted the other three accused but found the appellant guilty of the offence punishable under Section 304, Part-II and sentenced him to rigorous imprisonment for five years and to pay fine of Rs.10,000/-, in default to undergo further imprisonment for one year vide judgment dated 31st December, 2014.

4. Against the said decision, the appellant filed an appeal before the High Court, being criminal Appeal No.75 of 2015. The complainant also filed an appeal before the High Court, being Criminal Appeal No.227 of 2015 against the acquittal of three accused as well as for enhancement of sentence of the appellant. Both the appeals came to be disposed of by common judgment dated 1st April, 2016. The High Court upheld the finding of fact regarding the involvement of the appellant in the commission of crime. However, it reversed the finding and conclusion recorded by the Trial Court regarding the nature of offence. It concluded that taking an overall view of the matter, the appellant was guilty of offence punishable under Section 302 of IPC for the murder of Hitesh Thakur and not under Section 304 Part-II, as held by the Trial Court. At the same time, the High Court affirmed the order of acquittal in favour of the other accused who were tried along with the appellant. In the present appeals, the aforementioned decision of the High Court has been assailed only by the original accused No.1.

5. Mr. Aditya Dhawan, learned counsel appearing for the appellant, made a fervent effort to persuade this Court that there is an obvious contrad