The main legal point established in the judgment is the distinction between culpable homicide not amounting to murder and the absence of intention to kill, leading to the alteration of the conviction and reduction of the sentence.

JUDGMENT :

VIJAY BISHNOI, J.

The instant criminal appeal has been filed by the appellant under Section 374 Cr.P.C. challenging the judgment dated 30.03.1992 passed by the Sessions Judge, Bikaner (hereinafter to be referred as ‘the trial court’) in Sessions Case No.121/1990, whereby the appellant has been convicted for the offences punishable under Sections 302 and 447 IPC and sentenced as under :-

2. Both the sentences were ordered to run concurrently.

3. Brief facts, necessary for adjudication of the present criminal appeal, are that on 10.08.1990 at about 09:40 PM, one Kishnaram (PW-6) lodged FIR No.63/1990 (Exhibit-P/13) at Police Station Chhattargarh, District Bikaner alleging that around one month ago, one Devilal S/o Magaram had cut a Khejari tree in the agriculture field of Dullesingh, and son of Kishnaram viz. Madhuram had seen him cutting the Khejari tree. It was further alleged that later on, upon being inquired by Dullesingh, Madhuram had informed him that Devilal cut the Khejari tree and on account of that Devilal and his brother used to keep enmity with them. It was also alleged by Kishnaram that today i.e. 10.08.1990, at about 03:00 – 03:30 PM when he was working in his agriculture field, Omiya @ Omprakash and Jagiya @ Jagdish S/o Magharam Jat came there and threatened him; at that time his son Madhuram was watching his she-camels who were grazing in the field. The above named two persons asked Kishnaram to accompany them to the camp situated in their agriculture field upon which he went there. It was alleged that upon reaching there, both the above named two persons tied Kishnaram’s hand with a string of rubber strip and while leaving him there, they went towards his agriculture field. It was alleged that after about an hour, appellant-Ram Pratap S/o Magha Ram came there and untied Kishnaram’s hands and thereafter they proceeded towards Kishnaram’s hamlet. It was further alleged that after reaching hamlet of Kishnaram, appellant-Ram Pratap, Omiya @ Omprakash and Jagiya @ Jagdish caught hold of the hair of his son Madhuram and started beating him; they dragged him towards their hamlet while threatening that they would kill Madhuram today. It was alleged that Jagiya @ Jagdish had a Kassi in his hand; appellant-Ram Pratap picked up a Lathi from his hamlet; Omiya @ Omprakash had no weapon in his hand and all these persons dragged Madhuram towards their hamlet while assaulting him. It was alleged by Kishnaram (PW-6) in the FIR (Exhibit-P/13) that he immediately ran towards the field of Pannaram; told him about the incident and when he, along with Pannaram reached the field of appellant-Ram Pratap, he found that his son Madhuram was lying injured. On seeing them, Madhuram asked for some water; Pannaram and Jagiya @ Jagdish brought some water and poured it in his mouth thereafter he immediately died on the spot.

4. On receiving the said report, the police registered the FIR (Exhibit-P/13) against appellant-Ram Pratap, Jagiya @ Jagdish and Omiya @ Omprakash for the offences punishable under Sections 447, 342, 365 and 302 IPC and after investigation, filed charge-sheet against them for the offences punishable under Sections 302, 342, 447 and 364/34 IPC.

5. The matter was committed to the trial court, which framed charges against appellant-Ram Pratap for the offences punishable under Sections 364, 302 and 447 IPC and against Omiya @ Omprakash and Jagiya @ Jagdish for the offences punishable under Sections 447, 364, 302 and 342 IPC.

6. All the above named persons denied the charges and claimed trial.

7. The prosecution produced as many as seven prosecution witnesses and exhibited as many as t