The intention to cause death is a crucial element in determining whether an act falls under Section 302 IPC (murder) or a lesser offense such as Section 304-II IPC (culpable homicide not amounting to murder).

1. 1. Accused appellant Kesar Dev has been convicted by the learned Sessions Judge, Sikar, under a judgment dated 29-8-1989, for the offence punishable under Section 302 IPC and he has been sentenced to undergo Life Imprisonment and to pay a fine of Rs. 100/- in default, further to undergo simple imprisonment for a period of three months). The imprisonment undergone by the accused appellant has been ordered to be set off out of the sentence awarded to him.

2. Brief facts giving rise to this appeal are that one Kishna Ram, resident of Swami-ki-dhani, had seven sons including Bhagwana Ram (PW 1), Banwari (PW 2), Phoola Ram (PW 4) and Sohan Lal (PW 10). It appears from the perusal of the site plan (Ex. P/5) that the houses of the accused appellant and deceased Kishna Ram, are in the same 'guwadi' (kaccha house). There are some common portions including a common court-yard and there is also a 'khejra' tree being common. Nandlal, who is son of Kesar Dev (accused appellant), on the day of incident i.e. 18th March, 1988, at about 3.30 p.m., had climbed up the 'khejra' tree and was cutting some of its branches The deceased (Kishna Ram) alongwith his two sons, namely, Banwarilal (PW 2) and Phoola Ram (PW 4) was sitting there. The deceased asked Nandlal that the branches had not fully grown up and he should not cut them and so, he asked him to come down the tree. When Nand Lal came down the tree, it is said that the accused appellant who was inside the house came out and asked to the deceased as to how had he asked Nand Lal to come down the tree. There was some exchange of words and the accused appellant went inside his house, returned with a knife and caused injury on the chest of Kishna Ram, as a result of which he died at the spot. Bhagwana Ram (PW 1), son of deceased Kishna Ram, also arrived there and Banwari (PW 2) and Phoola Ram (PW 4) narrated the incident to him. He saw that bis father Kishna Ram was lying dead in the court-yard. He went to the police station Rughnathgarh and lodged the report the (Ex P/1). The police station is six kms. away from the place of incident, and the report Ex. P/1 was lodged at 7.30 p.m. The case was registered and the investigation was set in motion.

3. Dr. J P. Verma (PW 9) conducted autopsy of the dead body of Kishna Ram vide his post-mortem report Ex. P/10 which is an admitted document by the defence. We found that the deceased has incised wound 5 cm" x 1 cm", 2.4" cm, 5" cm lateral to xyphistrum. Direction was towards medial side i.e. left side, and opening the thorax it was found by the doctor that there was 3" cm long cut in right side of chest and Pericardium, and 21/2 cm" cut on left side of heart; and piercing interventiculor septum. He also found that clotted and semi-diluted fluid was also present in thoracic cavity. In the opinion of the doctor, and as per the post-mortem report the deceased died due to heart injury and Haemorrhage leading to syncope.

4. The accused was arrested and on his information a knife (Art. 1) was recovered. From the investigation, the police seized and sealed the blood smeared soil of the spot. The dhoti and bushirt duly stained with human blood were also taken in possession. The knife was recovered from the possession of the accused from a 'aala' inside of his house. They were sent to the Forensic Science Laboratory and it was found that the blood smeared soil, dhoti, bushirt as well as the knife were found to be stained with human blood.

5. We have perused the file so also the judgment of the learned trial Court.

6. The accused was charged under Section 302 IPC and after the close of the evidence of prosecution witnesses, he was examined under Section 313 Cr. PC to explain the circumstances appearing against him in the evidence of the prosecution witnesses but the plea of the accused was a bare denial. He did not examine any witness in defence. The accused said that there was an old enmity and that is why he has been falsely implicated. As said earlier, th