The court clarified that absence of premeditation and intent in a sudden quarrel may shift the charge from murder to culpable homicide.

JUDGMENT :

MANOJ KUMAR GARG, J.

1. The present criminal appeal has been filed under Section 374 Cr.P.C. against the judgment dated 23.03.2004 passed by learned Additional Sessions Judge (FT), Chittorgarh in Sessions Case No. 03/2004 whereby the learned trial Court convicted the appellant for offence under Sections 302 IPC, 341 IPC & 323 IPC and passed the sentences as under :-

2. Brief facts of the case are that on 18.07.2003, an oral report was lodged by complainant Gheesu lal Kumawat to the effect that on 17.07.2003 when he was returning to his village alongwith one Gopi lal towards Rojada village after collecting the stray cattle, one person came armed with stick and threatened to take away stray cattle else he will kill them. Suddenly, the said person assaulted Gopi lal with stick on his head and face and legs. Gopi lal fell down and became unconscious. The complainant managed to pick him up and reached the well where, Kachru, Gheesu, Heera lal, Ramlal came who took him to hospital at Chittorgarh.

3. The said report was forwarded to Police Station Chanderia having jurisdiction which registered the FIR No. 254/2003 for offence under Section 307, 341, 323 IPC and investigation commenced. The police initially filed chargesheet against the accused for offence under Section 307, 341, 323, however, after a period of three and half months, the injured Gopi lal died, therefore, a supplementary chargesheet was filed for offence under Section 302, 341, 323 IPC. The case was committed to the court of Additional Sessions Judge (FT), Chittorgarh whereas, charges of the case were framed.

4. During trial, the prosecution examined 21 witnesses and produced various documentary evidence in support of its case. Thereafter the statement of the accused-appellant was recorded under section 313 Cr.P.C. No witness was examined on the defence side.

5. On the basis of evidence on record, the learned trial court convicted and sentenced the accused appellant as mentioned above.

6. Counsel for the appellant submitted that the learned trial court did not scrutinize the evidence of PW/3 Gheesu lal in the light of facts available on record and has ignored the inherent infirmities and improbabilities appearing in his evidence. PW/3 Gheesu lal had not named the present appellant in the FIR and mentioned that he can identify the person who inflicted injuries to the deceased. In the FIR, he named as many as four persons but the police filed challan only against the petitioner. PW/3 Gheesu in his statement has mentioned that the present appellant inflicted injury on the head of deceased, however, he failed to mention the name of assailant in the FIR. It is argued that the complainant allegedly shouted and at that time, Kachru, Gheesu Teli, Heera lal, Ram lal came there. However, PW/2 Rana has been declared hostile and does not support his story. PW/5 Gheesu Teli only stated that complainant Gheesu lal told him that accused Kalu had inflicted injuries upon the deceased. PW/6 Kachru also narrate the same story that it is Gheesu lal who told him that Kalu had inflicted injuries upon the deceased. PW/8 Heera lal stated that he heard somewhere that Kalu had assaulted the deceased. Thus, except complainant PW/3 Gheesu lal, there is no eye witness to the incident and even complainant Gheesu lal had not named the present appellant in the FIR. It is further argued that the injured had received single injury on his head and he expired on 01.11.2003 i.e. about three and half months after the i