Rajasthan High Court

Ashok Kumar vs State Of Rajasthan Through Pp on 19 September, 2022

Bench: Pankaj Bhandari, Anoop Kumar Dhand

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                     D.B. Criminal Appeal No. 45/2018

   Ashok Kumar S/o Navab Singh, R/o Pala, Police Station Kumher,
   Present    Tenant   House       No.     D-14,       Jawahar      Nagar,   District
   Bharatpur, Raj.
   (At Present Confined In The Sewar Jail, Bharatpur_
                                                             ----Accused-Appellant
                                       Versus
   State Of Rajasthan Through P.P.
                                                                    ----Respondent

  For Appellant(s)            :    Mr. Anil Upman
  For Respondent(s)           :    Mr. Javed Chaudhary, Addl.G.A.



             HON'BLE MR. JUSTICE PANKAJ BHANDARI
             HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

                                    Judgment

  Reserved on                              ::              01.09.2022
  Pronounced on                            ::              19.09.2022
(Per : Anoop Kumar Dhand, J)

The appellant is the accused. He was prosecuted for the

offence under Sections 302, 201, 34 of the Indian Penal Code (for

short "IPC") along with co-accused Smt. Sudesh Kumari, who

expired during pendency of the trial. The learned Additional

Sessions Judge (Women Atrocities Cases) Bharatpur (Raj.) (for

short 'the trial Court') vide judgment dated 12.01.2018 convicted

him for the offence under Sections 302 and 201 IPC and

sentenced him as under:-

   Offence under         Sentence                     Fine           In default of
      Section                                                       payment of fine
      302 IPC               Life                Rs. 20,000/-         One month
                       Imprisonment                                   Rigorous
                                                                    Imprisonment



                                        (2 of 17)                [CRLAD-45/2018]


    201 IPC        Three years'           Rs. 10,000/-          One month
                    Rigorous                                     Rigorous
                  Imprisonment                                 Imprisonment

Sentences were ordered to run concurrently.

Briefly stated, the prosecution case is that on 11.05.2016,

complainant PW-1 Ramdhan submitted a typed report (Ex.P1) at

Police Station Mathura Gate, Bharatpur stating therein that he is

resident of Village Wajna (U.P.). He had two daughters and one

son to whom he could not maintain after death of his wife. Hence,

he sent his two children to his sister's house who resides at House

No. 21/612 Gandhi Nagar Colony, Bharatpur. He sent his daughter

Sapna aged 9 years to his niece who was residing at D-14,

Jawahar Nagar, Bharatpur. On 27.04.2016 at 5:00 PM, his

daughter went to a shop at the distance of 400 meter to recharge

mobile but she did not return back. After inquiry from all the

relatives and known persons everywhere, her whereabouts could

not be known.

Upon this typed report (Ex.P1), Crime No.319/2016 (Ex.P2)

was registered for the offence under Section 363 IPC. After

investigation, charge-sheet was submitted against the appellant

and co-accused Smt. Sudesh Kumari for the offence under

Sections 302, 201 and 34 IPC. The case was committed to the

Court of District & Sessions Judge, Bharatpur, who transferred the

same to the Court of learned Additional Sessions Judge (Women

Atrocities Cases) Bharatpur where charges were framed against

both the accused persons for the offence under Sections 302 IPC

and in the alternative, under Sections 304/34 and 201 IPC. Both

accused denied the charges and claimed trial. The prosecution

examined as many as 22 witnesses in support of its case and

(3 of 17) [CRLAD-45/2018]

exhibited 57 documents. During the course of trial, the co-accused

Smt. Sudesh Kumari expired as a result of which proceedings

against her were dropped. After completion of trial, the statement

of the appellant was recorded under Section 313 Cr.P.C. He was

confronted with the circumstances appearing against him in the

prosecution evidence, which he denied and claimed to have been

falsely implicated and stated that the seized mobile and sim did

not belong to him; Sapna went to recharge the mobile, from

where she did not return back. He made lot of search of her and

when she did not return back, a missing person report was

submitted. The explanation given by the appellant in his

statement under section 313 Cr.P.C. is reproduced as under:-

"tIr'kqnk eksckby o fle u rks eq>ls tIr fd;s vkSj u gh esjs gSaA eq>s >waBk Qalk;k x;k gSA liuk eksckby fjpktZ djokus xbZ FkhA ogka ls ykSVdj ugha vkbZA eSaus dkQh ryk'k fd;kA okfil ugha vkus ij xqe'kqnxh dh fjiksVZ ntZ djkbZA"""

In defence statement of Kaushal was recorded as DW- 1.

After hearing the arguments advanced by the prosecution

and defence and after appreciating the evidence available against

the appellant, the trial Court proceeded to convict and sentence

him for the offences as stated above.

Learned counsel for the accused appellant submits that this

case is based on circumstantial evidence and there is no evidence

available on the record against the appellant to convict him for the

aforesaid offences. Counsel submits that the dead body was not

identified. The post-mortem of an unidentified dead body was

conducted. He submits that as per Forensic Science Lab Report

(for short 'FSL Report') (Ex.P54), no DNA profile was obtained

from bone and teeth of the deceased, hence no conclusion was

(4 of 17) [CRLAD-45/2018]

drawn regarding its matching with DNA profile/blood sample of

father and brother of deceased Sapna. Counsel submits that there

is no evidence available on the record that the deceased was

residing with the appellant or she was last seen alive in his

company. He submits that no motive was established by the

prosecution to connect the appellant with the crime. Counsel

submits that the recovered mobile did not belong to him and no

certificate under Section 65-B of the Evidence Act was taken.

Counsel submits that the prosecution has failed to prove its case

beyond reasonable doubt against the appellant, hence the

appellant is entitled to get the benefit of doubt.

In support of his contentions, counsel has placed reliance on

the judgments of the Hon'ble Apex Court delivered in the cases of

Navaneethakrishnan Vs. The State By Inspector Of Police,

reported in (2018) 16 SCC 161 and Parubai Vs. State of

Maharashtra, reported in 2021 SCC OnLine SC 566.

Per contra, the learned Public Prosecutor opposed the

submissions raised by the counsel for the appellant and submitted

that this case is based on circumstantial evidence and the

prosecution has proved its case beyond reasonable doubt against

the appellant by producing incriminating evidence against him.

Learned Public Prosecutor submits that the deceased was lastly

residing with the appellant and co-accused Smt. Sudesh Kumari

and this fact was admitted by the appellant himself in cross-

examination with PW-2 Smt. Bhagwani, in response to the

question that "whenever he went to meet Sapna she never said

that Ashok and Sudesh gave beating to her or she was tortured by

them". Learned Public Prosecutor submits that mobile No.

8504035728 was recovered at the instance of the appellant vide

(5 of 17) [CRLAD-45/2018]

recovery memo Ex.P15 which proves the presence of the accused

at the scene of offence as well as at the location from where the

dead body of the deceased Sapna was recovered. Learned Public

Prosecutor submits that even certificate under Section 65-B of the

Evidence Act was produced on the record and the appellant

himself has identified the dead body of the deceased by seeing her

photographs vide Seizure memo (Ex.P22). Learned Public

Prosecutor further argued that the prosecution has proved its case

beyond reasonable doubt. Hence, the trial Court has rightly

convicted and sentenced the appellant. Therefore, no interference

of this Court is warranted in the impugned judgment.

We have considered the rival contentions and perused the

impugned judgment and material available on the record.

The case of prosecution is based on circumstantial evidence.

The case of prosecution is that deceased Sapna was residing with

co-accused Sudesh (since expired) and she was missing since

27.04.2016. On 29.04.2016, her dead body was found at Bichpuri

(Uttar Pradesh) near roadside of the lake and as per the

Postmortem Report (for short 'PMR') (Ex.P27), the cause of death

was head injury.

PW1- Ramdhan is the father of the deceased who in his

statement has stated that his son Deepak and daughter Sapna

were residing with his sister Bhagwani, who sent Sapna to reside

with her daughter Sudesh at Jawahar Nagar Colony. Bhagwani

informed him (complainant) that his daughter had gone missing

and thereafter, he had lodged the report with the Police Station.

He has stated that Ashok and Sudesh misled him that his

daughter had gone missing, whereas later-on he found out that

(6 of 17) [CRLAD-45/2018]

Sudesh and Ashok murdered his daughter and left her near

Bichpuri at Agra side.

PW2- Bhagwani in her statement has stated that after death

of wife of her brother Ramdhan, she brought his children to look

after them. She left Sapna with her daughter Sudesh. Later on she

came to know that Sapna went missing. Thereafter her brother

Ramdhan lodged a report in this regard. When this witness was

cross-examined, a suggestion was made to her and she answered

^^eq>s liuk us dHkh ;g ugha crk;k fd v"kksd us esjs lkFk ekjihV dh gSA iqfyl us v"kksd vkSj

lqns"k dks >wBk Qalk;k gSA eSa tc Hkh liuk ls feyus tokgj uxj xbZ rc eq>s dHkh Hkh liuk us

;g ugha crk;k fd esjs lkFk v"kksd vkSj lqns"k ekjihV djrs gS vkSj rax ijs"kku djrs gSA^^

PW3- Umesh Chand Sharma, PW4- Govind Singh, PW6-

Mukesh Kumar, PW9- Lokendra, PW10- Jaipal Singh did not

support the case of prosecution and have turned hostile.

PW5- Smt. Abha Kumari, Constable in her statement

deposed that she arrested co-accused Sudesh Kumari, who gave

information to her under Section 27 of the Evidence Act vide Ex.P7

which led to the discovery of the place where the dead body of

deceased Sapna was thrown. Co-accused Sudesh Kumari informed

that she and her lover Ashok (the appellant) gave beating to

Sapna in her rental house, as a result of which she died.

Thereafter, they took her dead body in a car to throw in Bichpuri

Lake Agra. On her information, the papers and the car were

recovered vide Recovery Memos; Ex.P8 and Ex.P11. The toll tax

receipt (Ex.P9) was also recovered at her instance. Before

throwing the dead body of Sapna in the lake, they got it confirmed

from a Doctor that she (Sapna) had died.

PW7- Kishan Singh, Constable in his statement has deposed

that he arrested appellant Ashok Kumar vide Arrest Memo Ex.P14

(7 of 17) [CRLAD-45/2018]

and a mobile was recovered at his instance vide Recovery Memo

Ex.P15 and a mobile was also recovered from co-accused Sudesh

vide recovery memo Ex.P16.

PW8- Shivlal, Head Constable is the witness in whose

presence the clothes of the deceased were seized vide Seizure

Memo Ex.P18 and the car was seized vide Seizure Memo (Ex.P23)

at the instance of accused appellant Ashok Kumar and co-accused

Smt. Sudesh Kumari in which the accused persons took the dead

body to throw in Bichpuri Lake Agra.

PW11- Dr. Pushpendra Sharma has conducted the post-

mortem of an unknown dead body on 03.05.2016 and prepared

her PMR Ex.P27. The brain membrane was decomposed and

hematoma was found in the brain and as per his opinion the cause

of death was 'Coma' as a result of ante mortem head injury and

the deceased had died seven days ago.

PW13- Bhagwan Singh, Assistant Sub-Inspector stated in his

statement that he has conducted investigation in this case. He has

stated that he came to know that accused Ashok Kumar was

residing with co-accused Sudesh Kumari at D-14, Jawahar Nagar

and found both of them there. Sudesh Kumari told that she and

Ashok were residing together as husband and wife and wanted to

marry. When call details of the mobile phones of both accused

persons namely; Sudesh and Ashok were collected, their location

was found between Bichpuri and Fatehpur Sikri in U.P. During

investigation, this came to the notice that on 26.04.2016, the

accused Ashok asked Sapna (deceased) to bring water. When

Sapna caused delay in bringing water, then Ashok kicked into

breast of Sapna due to which she fell down on the ground and

became unconscious. The accused thought that she was

(8 of 17) [CRLAD-45/2018]

pretending to be unconscious, hence he again kicked into her

breast three to four times. But she did not stand up and remained

lying on ground, they called Govind Compounder who told them

that her condition was serious. Then they took her to Vijay

Hospital, where she was declared dead by the Doctor. Ashok

brought the dead body home and the same was covered with the

car cover. Then they took the dead body of Sapna in the car to

Bichpuri and threw the same into the lake. After investigation, this

witness found the allegations proved against the accused

appellant Ashok Kumar and co-accused Smt. Sudesh Kumari

under Sections 302, 201 and 34 IPC.

PW14- Jogendra Singh, Constable stated that he was expert

in the work of the call details. He examined and analyzed the call

details of Mobile Nos. 8104363921 and 8504035728 and locations

of these mobiles were found near Bichpuri and Fatehpur Sikri on

27.04.2016 at about 8 PM.

PW16- Pushpendra Kumar, Sub-Inspector in his statement

has stated that he shown the photographs of the deceased Sapna

to accused; Ashok and Sudesh and both of them identified her

photos and stated that they had thrown her dead body in the

Bichpuri Lake Agra.

PW17- Vijay Kumar, Sub-Inspector in his statement has

stated that he got the call details of the mobiles of both the

accused Ashok and Sudesh and on the basis of their call details,

their presence was found at the scene of offence and he seized

mobiles of both the accused.

PW18- Surendra Bhatia has issued the certificate relating to

the call details of mobile phones under Section 65B of the

Evidence Act. The location of the phone was found at U.P. in

(9 of 17) [CRLAD-45/2018]

between 7:52 PM and 8:28 PM on 27.04.2016. The call details

were exhibited as Ex. P49 and Ex.P50.

PW19- Rambhool Singh was the Malkhana Incharge in whose

presence the accused Ashok and Sudesh had identified the clothes

of the deceased Sapna. These clothes were seized by the

Investigating Officer vide Ex.P18 and deposited in Malkhana

PW21- Dr. Vijay Pal Singh has stated that the girl Sapna was

brought in the hospital in serious condition whose nerve and

breath were not running. When CPR was done, no response was

received from the patient. Hence, she was declared dead and this

fact was recorded in the Emergency Admission Register Ex.P12

and on the letter pad Ex. P46.

PW22- Ramesh Singh is a Nodal Officer posted in Idea

Company, who provided the call details of mobile No. 8504035728

for the period pertaining to 20.04.2016 to 30.04.2016 vide Ex.P50

and the certificate of the same was provided by him in view of

Section 65-B of Evidence Act vide Ex.P52. The call details indicate

the location at Bichpuri Tehsil District Agra at 8:02 PM on

27.04.2016. This witness was thoroughly cross-examined by the

counsel for the appellant and he remained firm on his ground that

the location of mobile No. 8504035728 was shown to be at

Bichpuri District Agra.

In a case based on circumstantial evidence, settled law is

that the circumstances from which the conclusion of guilt is drawn

should be fully proved and such circumstances must be conclusive

in nature. Moreover, all the circumstances should be complete,

forming a chain and there should be no gap left in the chain of

(10 of 17) [CRLAD-45/2018]

evidence. Further, the proved circumstances must be consistent

only with the hypothesis of the guilt of the accused.

The principle of circumstantial evidence has been reiterated

by the Hon'ble Apex Court in a plethora of cases. In Bodhraj @

Bodha And Ors. vs. State of Jammu & Kashmir, reported in

(2002) 8 SCC 45, wherein the Hon'ble Apex Court quoted

number of judgments and held as under:-

"It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram vs. State of Punjab, reported in AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt."

From the perusal of the testimonies of PW2- Smt. Bhagwani,

PW5- Smt. Abha Kumari, PW8- Shivlal and PW13- Bhagwan Singh,

it is clear that deceased Sapna was residing with co-accused

Sudesh. In the evidence of these witnesses, the fact has come on

the record that the accused Ashok was also residing with Sudesh

in her house at Jawahar Nagar.

This fact is established on the record that the accused asked

the deceased on 26.04.2016 to bring a glass of water. When delay

(11 of 17) [CRLAD-45/2018]

occurred in bringing water, the accused kicked her due to which

she fell down and became unconscious. Then the accused took her

to Vijay Hospital to verify whether she is alive or dead. When

PW21-Dr. Vijay Pal Singh examined her and declared her dead on

27.04.2016, the appellant and co-accused brought the dead body

of the deceased in the car and threw the same in Bichpuri Lake

Agra (U.P.). Their presence near Bichpuri Lake in U.P. has been

established by showing the locations of their mobile phones there.

The counsel for the appellant has tried to establish the fact

that there is no evidence on the record that the dead body

belonged to the deceased Sapna. It is true that when the PMR of

the deceased was conducted, the name of the deceased was

mentioned as unknown. It is also true that the bone and teeth of

the deceased were sent to Forensic Science Lab for matching them

with the blood of her father (Ramdhan) and brother (Deepak). FSL

Report (Ex.P54) indicates that DNA could not be obtained from the

bone and teeth of the deceased, hence no conclusion could be

drawn regarding its matching with DNA profile obtaining blood

samples of Ramdhan and Deepak. But it cannot be said or held

that the DNA profile of the deceased was not matched with the

blood samples of the father and brother of the deceased. Since no

DNA could be obtained from the bone and teeth, hence no

conclusion was drawn.

It is pertinent to mention here that when the photographs

and clothes of the deceased were shown to accused Ashok, he

identified the same. Hence, the identity of the deceased has been

established on the record.

There is no substance in the argument of the counsel for the

appellant that there was no motive of the accused appellant to

(12 of 17) [CRLAD-45/2018]

commit the offence. It is well settled position of law that for

committing an offence motive is not sine qua non.

Counsel for the accused appellant has raised an argument

that though mobiles were recovered at the instance of the accused

appellant and co-accused Sudesh but no evidence was produced

on the record that the sims of their mobiles were issued in their

names. There is no force in this argument of the counsel because

this fact is not in dispute that the mobile was not recovered from

the possession of the accused.

After recovery of both the mobiles, the call details were

collected which show the location of the accused was at the place

of occurrence as well as the place where the dead body was

thrown by them in the State of Uttar Pradesh. The call details of

the mobiles phones recovered at the instance of the accused

persons have been marked as Ex.P37 and Ex.P49 and the same

has been proved by PW22- Ramesh Singh, Nodal Officer of Idea

Company. We find that there was conversation of both the accused

with each other on the date of the incident. It also appears from

these documents that tower locations of their cell phones were

showing at the same place i.e. at Jawahar Nagar Colony,

Bharatpur and Uttar Pradesh. It has thus been established from

the above evidence available on the record that both the accused

persons were present at the place of occurrence at the relevant

point of time.

The whole defence of the appellant is that he has no concern

with Sapna and he was not residing with the co-accused Sudesh.

If it was so, then why the appellant suggested PW2-Bhagwani that

Sapna was never beaten by the appellant. In suggestion given by

the appellant, PW2 Bhagwani has stated that Sapna never told her

(13 of 17) [CRLAD-45/2018]

that Ashok gave beating to her ever. Whenever she went to meet

Sapna, she never told her that Ashok and Sudesh tortured,

harmed or beaten her. It is the settled principle of law that the

cross-examination is a double edged weapon. Here in this case,

the appellant himself has admitted his company with the

deceased.

Even in his statement under section 313 Cr.P.C., the

appellant has given his explanation that Sapna went to recharge

her mobile and did not return back, then he made efforts to

search her and lodged the missing person report. Such statement

of the accused is also significant to draw the conclusion that

Sapna was there in his association and company.

The judgments cited by the learned counsel for the appellant

in the cases of Navaneethakrishnan (supra) and Parubai (supra)

are not applicable in this case looking to the peculiar facts and

evidence of this case.

Section 106 of the Evidence Act lays down the rule that when

the accused does not throw any light upon facts which are

specially within his knowledge and which could not support any

theory or hypothesis compatible with his innocence, the court can

consider his failure to adduce any explanation as an additional link

which completes the chain. Here in this case the appellant has

failed to furnish an explanation as to how and when he parted

company of the deceased. He has failed to discharge the burden

casted upon him by Section 106 of the Evidence Act.

In the present case there is clinching evidence available on

the record that the accused appellant was present on the spot. He

took her to Vijay Hospital where Sapna was declared dead.

(14 of 17) [CRLAD-45/2018]

Thereafter, the accused and Sudesh threw the dead body of Sapna

in Bichpuri Lake.

Now the question which remains to be considered by this

Court is the intention of the appellant to cause injury which the

deceased suffered. The evidence indicates that the appellant

asked the deceased to bring water and when delay occurred in

bringing water, the appellant pushed the deceased due to which

she fell down on the ground and became unconscious. Both

accused took her to Vijay Hospital, where she was declared as

dead. Thereafter, they threw her dead body in Bichpuri Lake Agra

(UP). The PMR (Ex.P27) indicates that there was hematoma in the

brain of the deceased and there was no other injury found on any

other vital part of the body of the deceased. It appears that due to

the anger, suddenly the appellant pushed the deceased and she

fell down on the ground and sustained injury and became

unconscious. Hence, the accused was not having any intention to

cause her death but he might have the knowledge that his such

act may cause death of the deceased. Under the facts and

circumstances of the case, Exception 4 to Section 300 IPC would

come to the rescue of the appellant as the act of the appellant,

even though it tantamounts to the commission of culpable

homicide, will not amount to murder as the same was committed

without any pre-meditation and in sudden heat of passion.

A reference to the judgment of the Supreme Court in Daya

Nand v. State of Haryana, reported in AIR 2008 SC 1823

would be most appropriate. In Para 20, it was held as under:-

"20. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the

(15 of 17) [CRLAD-45/2018]

purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid".

In State of Andhra Pradesh vs. Rayavarapu Punnayya

& Anr., reported in 1976 (4) SCC 382, the distinction between

culpable homicide and murder was vividly drawn in Paras 20 and

21 of the judgment which are extracted here-under:-

"20. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons-being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

21. From the above conspectus, it emerges that whenever a court is confronted with the question

(16 of 17) [CRLAD-45/2018]

whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section

299. If the answer to this question is prima jade found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code".

Learned trial Court has not considered this aspect of the

case, that the accused had no intention to cause death, that the

incident took place on the spur of the moment, the accused took

the deceased to the hospital, where she was declared dead.

In view of the above stated proposition of law and evidence

available on the record, the act of the appellant would be sufficient

(17 of 17) [CRLAD-45/2018]

to clothe him with the knowledge that his act was likely to cause

death of the deceased Sapna. In these circumstances, we are of

the view that accused appellant - Ashok Kumar could not have

been held guilty of offence of committing murder of Sapna, but

rather he was guilty of the offence punishable under Section 304