The main legal point established is that for a conviction under Section 302 of the Indian Penal Code, there must be evidence of intention or knowledge of likely death, and in the absence of such evidence, the offense may fall under a different section such as Section 325.

JUDGMENT :

Ananda Sen, J.

1. This criminal appeal is directed against the Judgment of Conviction dated 19.03.1997 passed in Sessions Trial No.714 of 1991/20 of 1992 arising out of Bhandra Police Station Case No.19 of 1990 (G.R. No.190 of 1990), whereby the learned Additional Judicial Commissioner, Lohardaga found the sole appellant guilty for committing an offence punishable under Section 302 of the Indian Penal Code and convicted him for the said offence and by order dated 20.03.1997, sentenced him to undergo rigorous imprisonment for life.

2. Learned counsel appearing on behalf of the appellant submits that on the facts of the case and the evidence led by the prosecution witnesses, the case does not come within the purview of Section 302 of the Indian Penal Code. The basic ingredients of Section 300 of the Indian Penal Code, i.e., intention of causing death is absent in the instant case. In absence of any intention, the conviction of the appellant under Section 302 of the Indian Penal Code is bad and is liable to be set aside. He argues that admittedly, there was land dispute between the appellant and the deceased, which is apparent from the evidence and in fact, it is the deceased, who encroached and tried to grab the land of the appellant, resulting in hot exchange of words, followed by a sudden blow on the head of the deceased by lathi (stick). The case will also not come within the purview of Section 299 of the Indian Penal Code, as there is nothing in the evidence to suggest that the death was caused with an act with an intention of causing death nor the prosecution could prove that the appellant had knowledge that the act and the injury inflicted by him would cause death. Learned counsel for the appellant further submits that the Investigating Officer of this case was not examined in this case, which caused great prejudice to the appellant. He lastly submits that in view of the aforesaid position, the conviction of the appellant is bad and the same should be set aside. Learned counsel for the appellant also cited a judgment of this Court in the case of Naresh Singh @ Ram Naresh Singh & another versus State of Bihar reported in 1996(1) East CrC 198(RB)(Pat) and stated that the facts of the said case are similar to that of the case of the prosecution involved in this appeal. He submits that as in the facts involved in the said case, the appellant in this case also had no intention of causing murder of the deceased.

3. Learned A.P.P. appearing on behalf of the State submits, the fact that the appellant had given a lathi blow on the head of the deceased, is proved beyond all reasonable doubt. Mens rea is also present, as admittedly, there was dispute between the parties involving land. The weapon used is a lathi, which can be used as a weapon of offence. Learned A.P.P. submits that non-examination of the Investigating Officer is of no relevance as the appellant has failed to prove that he has suffered any prejudice due to non-examination of the Investigating Officer. He contends that the Postmortem Report corroborates the injury and the prosecution version, thus, the appellant has been rightly convicted.

4. We have heard the learned counsel for the parties and have gone through the Lower Court Records.

5. Prosecution case is based on a Fardbeyan of Maheshwar Singh (P.W.4). On the basis of the said Fardbeyan, Bhandra Police Station Case No.19 of 1990 was registered on 15.05.1990, initially under Section 307 of the Indian Penal Code, which was later on converted to one under Section 302 of the Indian Penal Code on 17.05.1990. After investigation, the police submitted chargesheet against the appellant under Section 302 of the Indian Penal Code and the sole appellant was put on trial. Charge was framed against the appellant for committing offence punishable under Section 302 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. The appellant was put on trial.

6. To prove its case, prosecution ha