The distinction between murder and culpable homicide depends on the presence of intent; absence of premeditation warrants a lesser charge under Section 304 Part II IPC.

Judgment :

(MANOJ KUMAR GARG, J.)

Instant criminal appeal has been filed under Section 374(2) Cr.P.C. against judgment dated 20.01.1997 passed by learned District & Sessions Judge, Rajsamand, in Sessions Case No.101/1994 by which the learned Trial Court acquitted the accused Devi Singh from offence under Sections 109 & 120-B of IPC and convicted him for offence under Section 302 IPC and sentenced him to undergo life imprisonment along with a fine of Rs.5,000/- and in default of payment of fine to undergo six months’ SI.

2. Vide order dated 01.05.2023 passed by a co-ordinate Bench of this Court, the appeal in respect of appellant No.2- Maan Singh has been dismissed as abated.

3. Brief facts necessary to be noted for deciding the controversy are that on 21.04.1994 at about 01:15 AM, complainant- Smt. Radha (PW/6), orally informed the police at Police Station Bhim that on the same day at around 8:00 PM, her husband- Babu Singh, and his nephew- Narayan Singh, were consuming liquor at their residence. During this time, Punam Singh, son of the deceased, was dancing to music. An altercation ensued between Babu Singh and the accused persons. As a result of this altercation, both accused individuals armed themselves with lathis and assaulted Babu Singh. The complainant, along with her daughter-in-law- Smt. Baby, and Narayan Singh, intervened in an effort to rescue Babu Singh. During this intervention, they also sustained injuries. The accused persons continued their assault on Babu Singh, dragged him to their house, and inflicted further injuries. Following this, the complainant raised an alarm, attracting the attention of Daau Singh, Mohan Lal, Madhu Singh, and Kesar Singh, who arrived at the complainant’s residence. Subsequently, all of them proceeded together to the house of the accused-appellants. Upon arrival, they found that Babu Singh had succumbed to his injuries at the accused’s residence. It is pertinent to note that there was an ongoing land dispute between co-accused Amar Singh and the complainant’s brother-in-law (Dever), Ram Singh.

4. On the said report, Police registered the FIR and started investigation. During investigation, Police arrested the accused persons. On completion of investigation, police filed challan against the accused persons.

5. Thereafter, learned Trial Court framed, read over and explained the charges for the offence under Sections 109 , 120-B & 302 IPC to accused appellants. They denied the charge and sought trial.

6. During the course of trial, the prosecution examined as many as 17 witnesses and also got exhibited relevant documents in support of its case.

7. The accused appellant was examined under Section 313 Cr.P.C. In defence, accused Maan Singh got himself examined as DW/1.

8. Learned trial Court, after hearing the arguments from both the sides, taking into consideration and appreciating the documentary evidence and the statements of witnesses, vide judgment dated 20.01.1997 acquitted the present accused- appellants from offences under Sections 109 & 120-B IPC and co- accused persons, viz., Amar Singh & Mohan Singh from the offences under Sections 109 , 120-B & 302 IPC, however, convicted and sentenced the accused-appellants for the offence under Section 302 IPC. Hence, this criminal appeal.

9. At the outset, learned counsel representing the accused appellant Devi Singh submits that, initially, six persons were named in the FIR. However, following investigation, the police filed a charge sheet against only four individuals, resulting in the acquittal o