The distinction between murder under Section 302 IPC and culpable homicide not amounting to murder under Section 304 Part I IPC and the factors to be considered in determining the appropriate offense.

JUDGMENT

Goverdhan Bardhar, J. - This criminal appeal under section 374 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC') has been filed by the accused appellant assailing judgment and order dated 21.05.2005 passed by the Court of learned Special Judge, Scheduled Castes/ Scheduled Tribes (Prevention of Atrocities) Cases, Jaipur (Rajasthan) in Sessions Case No.63/2003, whereby learned trial court convicted and sentenced the accused-appellant for the offence under section 302 IPC to undergo Life Imprisonment with fine of Rs. 1000/-; in default, to further undergo six months simple imprisonment.

2. Briefly stated facts of the case are that on 13.05.2003 complainant Shrawan Kumar Bunkar s/o Late Shri Ram Swaroop, by caste Balai, resident of Village Nangal, Bharda, District Jaipur (Raj.) submitted a written report to the Incharge of Police Station Samod to the effect that today in the evening at about 6:00 P.M., his neighbour Tarachand s/o Babulal Bunkar who is of the same caste and residents of same Mohalla, was digging soil from the 'Tilla' situated in front of new building (Naveen Bhawan) of Government Secondary School. At that time, one unknown person came there. He took 'Fawda' from the hands of Tarachand and started to gave blow on the head from 'Fawda'. On this Sita Devi, sister of Tarachand, who was standing near him (Tarachand) raised hue and cry. After hearing the hue and cry, the people who were passing by and the villagers gathered there and caught hold of that person but Tarachand died on the spot due to injury received from 'Fawda'. After hearing about the incident, he (Shrawan Kumar Bunkar) reached on the spot. Thus, report be registered.

3. On the basis of aforesaid written report (Ex.P3), an F.I.R. No.99/2003 (Ex.P4) was registered at Police Station Samod, District Jaipur (Rural) for the offence under Section 302 IPC. Investigation commenced. The police arrested the accused-appellant and after investigation submitted challan against him for the offence under section 302 IPC. The learned trial court framed charges for the said offence. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined 21 witnesses and also exhibited 14 documents. The defence, in support of its case, did not produce any evidence but exhibited seven documents.

4. Learned trial court, after hearing both the parties, vide impugned judgment and order convicted and sentenced the accused-appellant in the manner indicated above. Hence, this appeal.

5. Learned counsel for the accused appellant argued that the learned trial court has failed to appreciate the facts and circumstances of the case and evidence available on record as testimony of witnesses is self contradictory, unreliable and untrustworthy but the learned trial court only on surmises and conjectures convicted the appellant. The learned trial court has failed to appreciate the fact that the above incident was taken place on 13.05.2003 at 6:00 P.M. and FIR was registered with unnecessary delay at 11:00 P.M. The prosecution has failed to explain the delay. Thus, the case of the prosecution becomes suspicious. Virendra Singh (PW21), Investigating Officer, in his testimony deposed that on 13.05.2003 at 8:00 P.M. the accused was brought from the hospital for the medical examination and further treatment but he was incapable to tell his name and accused also could not understand the questions which were put to him. Hence, it is clearly proved that the accused is of unsound mind and when accused appellant committed such an act, he was incapable of knowing the nature of the act. Seeta Devi (PW8) deposed that she did not see any person who hit the deceased. Thus, there is no eye witness of the occurrence. The learned trial court has failed to appreciate the fact that no blood was found on the 'Fawda'. Learned counsel argued that the motive of murder is not well found from the facts despite that the learned trial court arbitrarily convicte