The judgment clarifies the distinction between S.304 Part I and Part II of the IPC based on intent and circumstances of the assault leading to death.

1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 06-02-1998 passed by the Additional Sessions Judge, Surajpur, the then District Surguja, M.P.(now C.G.) in Sessions Trial No.88/97 whereby and whereunder the learned Additional Sessions Judge after holding the appellants guilty for causing homicidal death not amounting to murder of Premsai, convicted the appellants under S.304 - Part I of the Indian Penal Code (in short 'the IPC') along with died appellant Jaylal for whom the appeal stands abated as per order dated 27-9-2004 and sentenced them to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 200/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 month, to each appellant.

2. Conviction is impugned on the ground that without there being any iota of evidence. Court below has convicted and sentenced the appellants aforesaid mentioned and thereby committed illegality.

3. As per case of the prosecution, name of deceased is Premsai. On 01-6-1996, at about 6.30 p.m., Devnarayan (PW - 3) reached to Police Station Ramanujnagar and lodged the First Information Report (FIR) against the appellants including the appellant died during pendency of the appeal that at about 11.00 a.m., on account of previous enmity the appellants and other co - accused Jaylal assaulted the deceased by axe, stick and crowbar. On account of the injuries inflicted by the appellants, deceased Premsai became unconscious at the spot at village Rampur Dehai Para and when he was taken to the hospital, died on the same day. Police registered the First Information Report under crime No. 59/96 under S.302/34 of the IPC. Same time merg was also recorded at about 18.35 hours same day by Devnarayan (PW - 3) which was registered as Ex. - P / IA. Police of Ramanujnagar reached to the place of incident. After giving inquest notice (Ex. - P / 5), inquest was conducted on the dead body of Premsai vide Ex. - P / 2. After the inquest, the dead body was sent for post - mortem vide memo Ex. - P / 6. Doctor R.B.Prajapati (PW - 8) conducted the autopsy on 02-6-1996 and noticed following injuries / symptoms: -
(i) lacerated wound 3 x - x - cms. over left thigh,
(ii) a punctured wound 1 x 1 x 1 cm. over left forearm,
(iii) incised wound 6 x 1 x - cms. over head on occipital part,
(iv) one contusion 8 x 3 cms.over left leg,
(v) lacerated wound 6 x 1 x 1 cms. backside of the head,
Except one injury rest were caused by hard and blunt object, one injury was caused by hard and sharp object. As per opinion cause of death was shock due to haemorrhage caused by the injuries. It was also opined that at the time of autopsy, 36 hours had passed since death. He gave his report vide Ex. - P / 22.
Spot map was prepared vide Ex. - P / 7. Blood stained soil and plain soil were seized from the spot vide Ex. - P / 8. Memorandum of appellant Dhaneshwar (A - 1) was recorded as Ex. - P / 9. An axe was seized at the instance of appellant Dhaneshwar (A - 1) vide Ex. - P / 3. Appellant Mundal @ Kailash gave disclosure statement vide Ex. - P / 11. A crowbar was seized at the instance of appellant Mundal @ Kailash vide Ex. - P / 5. A lungi was seized from appellant Dhaneshwar (A - 1) vide Ex. - P / 12. A lungi was seized from died appellant Jailal vide Ex. - P / 13. A sealed packet containing clothes of the deceased sent by the autopsy surgeon was duly seized vide Ex. - P / 15. During the investigation, query was made whether by the weapons so seized - axe, stick and crowbar, the injuries found