The intention to kill is a necessary element for a conviction under Section 302, IPC. In the absence of such intent, the offense may be reduced to culpable homicide not amounting to murder under Section 304-II, IPC.

1. - The appellant Mamu alias Mahmood had been charged for an offence under Sec. 302 and Sec. 341, Indian Penal Code for committing the murder of one Shambhu Singh to which he pleaded not guilty. Consequently, he was tried in the Court of Sessions Judge, Jhalawar in Sessions Case No. 52/1987. The learned Sessions Judge, Jhalawar after the trial held the petitioner guilty of the offence under Sec. 302 IPC and accordingly sentenced him to undergo rigorous imprisonment for life along with a fine of Rs. 100/- and in default of payment of fine to further undergo one months rigorous imprisonment. The accused appellant was also convicted and sentenced under Sec. 341, IPC and was sentenced to one months simple imprisonment. Both the sentences were ordered to run concurrently. The appellant feeling aggrieved with his conviction and sentence has preferred this appeal.

2. The case of the prosecution emerges out of the first information report which was registered by the SHO, PW 15 Umaid Singh of Police Station, Kotwali, Jhalawar. Prior to the registration of the FIR a telephonic message was received at the Police Station, Jhalawar on 17.6.1986 at 4.30 a.m. which informed that only some time back at about quarter past four, two rickshaw pullers who were coming from the bus stand towards the jail who had been fighting with each other and in course of this fighting one rickshaw puller inflicted a knife blow on another rickshaw puller who fell down and was lying dead near the jail and the assailant who had inflicted the blow left the rickshaw and fled away. The SHO on this information started for the place of occurrence along with ASI, Bhainrdlal, ASI Rati Ram and four other constables, namely H.C. Shankar Singh, HC Laxminarain, HC Bapulal and HC Ram Narain. On reaching the place of occurrence the parcha bayan vide Ex.P 1 was given by PW 7 Mohan Lal which was recorded at 5.15 a.m. A detailed description of the incident had been given by Mohan Lal (PW 7) in the parcha bayan Ex.P 1 reiterating the aforesaid facts and it has been further stated therein that when the deceased hit the accused Mamu with fists, the deceased took a stone and threw at the accused Mamu due to which Mamu got enraged and took out a knife and inflicted a blow on the deceased who was later identified as Shambhu Singh. On sustaining this knife blow, the deceased walked a few steps ahead and thereafter he fell down. PW 7 while deposing in the court has repeated the entire version, which he had given in his parcha bayan and further stated that on witnessing the incident, he woke up another constable Ram Chandra, who was sleeping at that place where Mohanlal was on duty. He also woke up the duty incharge Havaldar Sohanlal and informed him about the incident, after which a telephonic message was sent to the police station, Kotwali, Jhalawar on which PW 15 SHO Umaid Singh reached at the place of occurrence along with other constables and recorded the parcha bayan of PW 7 Mohan Lal. It was also stated that he could identify the assailant Mehmood in the street light which was on the road. A formal FIR No. 119/86 was accordingly registered under Secs. 302 and 341, IPC. The knife was also seized which has been marked as Ex.P 23. The investigation of the case thereafter started and an inquest report of the dead body, site plan of the place of the occurrence were prepared. The blood stained earth was also collected vide Ex.P 3 and two slippers and a jersey were also seized. The body of the deceased had been identified as that of Shambhu Singh by the crowd which had gathered at the place of the incident. It was later sent for post mortem examination which was conducted by PW-12 Dr. Rameshwar Vijay. According to the post mortem report Ex.P. 22 the deceased Shambhu Singh sustained incised penetrating wound on lower part of mid of sternum measuring 11/4"x 1/2" x bone deep. It found wound explasted and also sub-eternal haematoma tract and a wound piercing the pericardium on right