The distinction between intent to kill and knowledge of likely death is critical in determining the degree of culpable homicide.

1. Appellants have filed this appeal challenging the judgment of conviction and sentence dated 18.1.2000 delivered by the Court of Third Additional Sessions Judge, Shivpuri in Sessions Trial No134/1999 whereby the appellants stand convicted for the offence punishable u/S. 302 read with 34, IPC and sentenced to undergo life imprisonment and fine of Rs.500/- each and u/S. 323, IPC sentenced to undergo R.I. for one year respectively with default stipulations. Both the sentences were directed to run concurrently.

2. The bare facts giving rise to the present case are that at about 9-00 p.m. on 4.5.1999, complainant Devilal (PW - 1) lodged the FIR (ExP - 1) to the effect that he along with his brother deceased Mathura and others had come to attend the marriage of the son of his uncle at village Sunaj. Between 9-10 p.m., complainant along with his brother deceased Mathura, Ramprasad, Veer Singh and others went to the potter to fetch some earthen utensils. When they were returning from the potter's place, Hari, Baijnath, Kamala and Srikrishna came and started assaulting his brother Mathura and Ram Prasad. His brother Mathura died on the spot and Ram Prasad sustained injury on the head. Thereafter, the appellants ran away. The complainant and others took the dead body to the marriage place and on the next day morning FIR was lodged. In the FIR past animosity between the appellants Vachanlal, Hari and others with the deceased on the issue of daughter - in - law of the complainant was shown as the motive. Investigation was set into motion and the necessary formalities were completed. The deceased and injured persons were sent for autopsy / medical examination. Charge sheet was filed before the Court of competent criminal jurisdiction. After committal of the case, charge was framed against the appellants for offence punishable u/S. 302 in the alternative u/S. 302 read with 34 and S.323, IPC. The appellants abjured their guilt and sought trial.

3. The prosecution produced PW - 1, Devilal PW - 2, Ram Prasad and PW - 3 Mulla in support of their story whereas the defence did not produce any oral or documentary evidence. All the appellants / accused u/S 313, Cr.P.C. denied the charges and raised the plea of false implication owing to past animosity.

4. Learned counsel for the appellants while assailing the impugned conviction and sentence submits that present is a case where conviction in the attending facts and circumstances can at best be u/S. 304 - II of IPC but not u/S. 302, IPC for the reason that single fatal injury in the upper part of abdomen was caused to deceased Mathura which is corroborated by medical and ocular evidence. It is further submitted that PW - 2 and PW - 3 namely Ramprasad and Mulla who are eye - witnesses tried to improve the prosecution story by deposing that they were carrying lantern with the help of which they could recognize the assailants / appellants in the darkness. This fact of the witnesses carrying lantern is missing in their earlier statements. It is submitted by the appellants that trial Court has discarded this improvement on the ground that it was natural on the part of the complainant and the witnesses who are part of marriage procession and were travelling during night to carry some source of light and, therefore, even if the said witnesses did not disclose in their earlier statements about carrying of lantern, the said fact does not render the prosecution story untrustworthy.

5. Reliance is placed on the decision of the Apex Court in the case of Karan Singh v. State of Punjab , 1994 SCC (Cri) 64 para 3 : 1993 AIR SCW 2870 and Meer Dhana Sidha v. State of Gujarat , CAR 1986 page 22 p