Rajasthan High Court - Jodhpur
Devi Singh vs State on 11 September, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:40075-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 163/1997
Devi Singh S/o Khim Singh Rawat R/o Titri, Police Station Bhim,
District Rajsamand.
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Manish Shishodia, Sr. Advocate
assailant by Mr. Harshvardhan Singh
Rathore
For Respondent(s) : Mr. R.S. Bhati, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
Judgment
REPORTABLE
Order reserved on 09/09/2025
Date of Pronouncement: 11/09/2025
BY THE COURT: (PER HON'BLE MR. 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.
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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.
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.
On the said report, Police registered the FIR and started
investigation. During investigation, Police arrested the accused
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persons. On completion of investigation, police filed challan
against the accused persons.
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.
During the course of trial, the prosecution examined as many
as 17 witnesses and also got exhibited relevant documents in
support of its case.
The accused appellant was examined under Section 313
Cr.P.C. In defence, accused Maan Singh got himself examined as
DW/1.
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.
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 of Amar Singh and Mohan Singh by the trial court.
Additionally, the main accused, appellant No. 2 - Maan Singh, has
since passed away. Currently, the appeal is confined solely to the
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case of appellant- Devi Singh. Counsel further contends that the
incident occurred in the year 1994. According to the statement of
the deceased's son, PW/8 - Punam Singh, he explicitly mentioned
that Devi Singh inflicted injuries on the deceased using the
reverse side of an axe. PW/8 also stated that Maan Singh was
armed with an axe, while Devi Singh carried a stick (lathi).
However, the eye-witness PW/5 - Smt. Baby, did not specify the
name of Devi Singh in her statement. She clearly stated that six
individuals, namely Mangal Singh, Gattu, Amar Singh, Maan
Singh, Bhanwari, and Khum Singh came to their residence and
assaulted the deceased, Babu Singh, with lathis. PW/6 - Radha,
wife of the deceased, also testified that six persons assaulted
Babu Singh with lathis. However, during cross-examination, she
clarified that Maan Singh inflicted injuries with an axe, and co-
accused Mohan Singh also caused injuries to the deceased.
Counsel emphasizes that there is specific evidence implicating
Maan Singh, who has already died, and Mohan Singh, who has
been acquitted by the trial court. He argues that if Devi Singh
inflicted injuries with the reverse side of an axe, such an act
suggests a lack of intent to cause fatal injuries. Furthermore,
during the scuffle, Maan Singh sustained three injuries, as
corroborated by the testimony of PW/15 - Dr. Ashok Kumar
Gupta. This indicates that both parties sustained injuries during
the altercation. Therefore, counsel submits that appellant- Devi
Singh did not possess premeditated intent to cause harm to the
deceased. The assault was spontaneous and occurred in a moment
of sudden provocation. He further contends that Devi Singh had
no motive or intention to cause death, and thus, cannot be held
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liable under Section 302 of the Indian Penal Code. Instead, he
urges that Devi Singh be convicted under Section 304 Part II of
the IPC. Additionally, it is pointed out that, since the incident took
place in 1994 and Devi Singh has already served approximately
five years of imprisonment, the court may consider reducing the
sentence to the period already undergone. Counsel has relied
upon the judgment of the Division Bench of this High Court at
Jaipur Bench in the case of Banwari Lal & Ors. Vs. State of
Rajasthan [(2025) 1 CriLR 170].
Per contra, Learned Public Prosecutor has vehemently
opposed the prayer made by the counsel for the accused Devi
Singh and submitted that the deceased received as many as five
injuries and cause of death is head injury. Thus, conviction under
Section 302 IPC made by the trial Court is absolutely justifiable.
Thus craves dismissal of the appeal.
We have considered the submissions of the counsel for the
parties made at bar and perused the impugned judgment as well
as record of the case.
The First Information Report lodged by the complainant-
Radha (PW/6), contains a detailed and specific account of the
incident. According to the statement of eye-witness PW/5 - Smt.
Baby, did not specify the name of Devi Singh in her statement.
PW/6 - Radha, wife of the deceased, also testified that six persons
assaulted Babu Singh with lathis. However, during cross-
examination, she clarified that Maan Singh inflicted injuries with
an axe, and co-accused Mohan Singh also caused injuries to the
deceased. Initially, six accused persons were specifically named in
the FIR but Police filed charge-sheet against only four accused
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persons, out of which, on the same set of evidence, the trial Court
acquitted Amar Singh & Mohan Singh and only convicted two
accused. Out of the two convicted accused persons, accused Maan
Singh has already passed away. PW/8-Punam Singh mentioned
that Devi Singh inflicted injury to the deceased with reverse side
of the axe. This shows that if accused Devi Singh used reverse
side of the axe then no intention of the accused to give fatal injury
to the deceased is found. Therefore, the crucial question however
is, whether he had the intention to cause death of deceased- Babu
Singh or had the intention to cause such bodily injury which was
likely to cause death or whether he had the conscious knowledge
that it was imminently dangerous that in all probability, it would
cause death, or such bodily injury as is likely to cause death and
committed the act without any excuse for incurring the risk of
causing death or such injury?
At the outset, it would apposite to deal with the relevant
legal provisions, which reads as under:-
"300. Murder--.Except in the case hereinafter excepted, culpable
homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or--
Secondly--If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or--
Fourthly--If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause death
or such bodily injury as is likely to cause death, and commits such
act without any excuse for incurring the risk of causing death or
such injury as aforesaid.
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Exception 1.--When culpable homicide is not murder.-- Culpable
homicide is not murder if the offender, whilst deprived of the
power of self-control by grave and sudden provocation, causes
the death of the person who gave the provocation or causes the
death of any other person by mistake or accident.
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
Exception 4--Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner.
Explanation--It is immaterial in such cases which party offers the
provocation or commits the first assault.
..........
304, Part II. Punishment for culpable homicide not amounting to
murder - Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment of either description
for a term which may extend to ten years or with fine or with
both, if the act is done with the knowledge that it is likely to
cause death; but without any intention to cause death or to cause
such bodily injury as is likely to cause death."
The ingredients constituting an offence under Section 304
Part II IPC are as follows:
(i) he must commit culpable homicide not amounting to murder;
(ii) the act must be done with the knowledge that it is likely to
cause death;
(iii) but such act is done without any intention to cause death or
to cause such bodily injury as is likely to cause death.
Therefore, under the provisions of Section 304 Part II of the
IPC, an individual may be held liable for culpable homicide not
amounting to murder when the act is committed with the
knowledge that it is likely to result in death, yet without any
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intention to cause death or to inflict such bodily injury as is likely
to cause death. The essential criterion for establishing an offence
under this section is thus twofold: firstly, the presence of
knowledge on the part of the accused that their conduct is likely to
cause death or such bodily injury as could lead to death; and
secondly, the absence of any intention to cause death. Thus, core
element of Section 304 Part II IPC is the mental state of the
accused, specifically, the conscious awareness of the potential
consequences of their act, without the accompanying intent to
bring about death.
The reasoning underlying this legal framework is rooted in
the principle of moral culpability and the recognition that an
individual can be deemed criminally liable even if they did not aim
to kill, but nonetheless engaged in conduct that foreseeably
endangers life. Such an approach ensures that individuals cannot
escape liability merely because they lacked the intent to kill,
especially when their actions, by their very nature, posed a
substantial risk of resulting in death. It emphasizes accountability
for reckless or negligent conduct that, while not intended to cause
death, nonetheless leads to fatal outcomes, thereby upholding the
principles of justice and societal protection.
The thin line difference between the offence punishable
under "Section 302" and "Section 304" of IPC has been succinctly
explained by the Hon'ble Apex Court in State of A.P. v.
Rayavarapu Punnayya reported in (1976) 4 SCC 382 in the
following words:
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"12. In the scheme of the Penal Code, "culpable homicide"
is genus and "murder" its specie. All "murder" is "culpable
homicide" but not vice-versa. Speaking generally, "culpable
homicide" sans "special characteristics of murder", is
"culpable homicide not amounting to murder". For the
purpose of fixing punishment, proportionate to the gravity
of this generic offence, the Code practically recognises three
degrees of culpable homicide. The first is, what may be
called, "culpable homicide of the first degree". This is the
greatest form of culpable homicide, which is defined in
Section 300 as "murder". The second may be termed as
"culpable homicide of the second degree". This is punishable
under the first part of Section 304. Then, there is "culpable
homicide of the third degree". This is the lowest type of
culpable homicide and the punishment provided for it is,
also, the lowest among the punishments provided for the
three grades. Culpable homicide of this degree is punishable
under the second part of Section 304."
The difference was further elucidated in Rampal Singh v.
State of U.P., reported in (2012) 8 SCC 289 in the following
words:
"18. This Court in Vineet Kumar Chauhan v. State of U.P.
[(2007) 14 SCC 660 : (2009) 1 SCC (Cri) 915] noticed that
academic distinction between "murder" and "culpable
homicide not amounting to murder" had vividly been
brought out by this Court in State of A.P. v. Rayavarapu
Punnayya [(1976) 4 SCC 382 : 1976 SCC (Cri) 659] where
it was observed as under: (Vineet Kumar case [(2007) 14
SCC 660 : (2009) 1 SCC (Cri) 915], SCC pp. 665-66, para
16) "16. ... that the safest way of approach to the
interpretation and application of Sections 299 and 300 IPC
is to keep in focus the key words used in various clauses of
the said sections. Minutely comparing each of the clauses
of Sections 299 and 300 IPC and drawing support from the
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decisions of this Court in Virsa Singh v. State of Punjab
[AIR 1958 SC 465 : 1958 Cri LJ 818] and Rajwant Singh v.
State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509] ,
speaking for the Court, R.S. Sarkaria, J. neatly brought out
the points of distinction between the two offences, which
have been time and again reiterated. Having done so, the
Court said that wherever the court is confronted with the
question whether the offence is 'murder' or 'culpable
homicide not amounting to murder', on the facts of a case,
it [would] 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 in the negative the offence would be 'culpable
homicide not amounting to murder', punishable under the
First or the Second Part of Section Page 8 of 29 304,
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 IPC. It was,
however, clarified that these were only broad guidelines to
facilitate the task of the court and not cast-iron imperative.
21. Sections 302 and 304 of the Code are primarily the
punitive provisions. They declare what punishment a
person would be liable to be awarded, if he commits either
of the offences. An analysis of these two sections must be
done having regard to what is common to the offences and
what is special to each one of them. The offence of culpable
homicide is thus an offence which may or may not be
murder. If it is murder, then it is culpable homicide
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amounting to murder, for which punishment is prescribed in
Section 302 of the Code. Section 304 deals with cases not
covered by Section 302 and it divides the offence into two
distinct classes, that is, (a) those in which the death is
intentionally caused; and (b) those in which the death is
caused unintentionally but knowingly. In the former case
the sentence of imprisonment is compulsory and the
maximum sentence admissible is imprisonment for life. In
the latter case, imprisonment is only optional, and the
maximum sentence only extends to imprisonment for 10
years. The first clause of Section 304 includes only those
cases in which offence is really "murder", but mitigated by
the presence of circumstances recognised in the Exceptions
to Section 300 of the Code, the second clause deals only
with the cases in which the accused has no intention of
injuring anyone in particular. In this regard, we may also
refer to the judgment of this Court in Fatta v. Emperor [AIR
1931 Lah 63] , 1151. C. 476 (Refer: Penal Law of India by
Dr Hari Singh Gour, Vol. 3, 2009.) "
In Pulicherla Nagaraju @ Nagaraja vs State Of A.P.
reported in (2006) 11 SCC 444, Hon'ble Apex Court has
observed as under :-
"Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will decide
whether the case falls under Section 302 or 304 Part I or 304
Part II. Many petty or insignificant matters - plucking of a fruit,
straying of a cattle, quarrel of children, utterance of a rude word
or even an objectionable glance, may lead to altercations and
group clashes culminating in deaths. Usual motives like
revenge, greed, jealousy or suspicion may be totally absent in
such cases. There may be no intention. There may be no pre-
meditation. In fact, there may not even be criminality. At the
other end of the spectrum, there may be cases of murder where
the accused attempts to avoid the penalty for murder by
attempting to put forth a case that there was no intention to
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cause death. It is for the courts to ensure that the cases of
murder punishable under Section 302, are not converted into
offences punishable under Section 304 Part I/II, or cases of
culpable homicide not amounting to murder, are treated as
murder punishable under Section 302. The intention to cause
death can be gathered generally from a combination of a few or
several of the following, among other, circumstances : (i) nature
of the weapon used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii) whether the blow
is aimed at a vital part of the body; (iv) the amount of force
employed in causing injury; (v) whether the act was in the
course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there
was any pre-meditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger; (viii) whether
there was any grave and sudden provocation, and if so, the
cause for such provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows.
The above list of circumstances is, of course, not exhaustive
and there may be several other special circumstances with
reference to individual cases which may throw light on the
question of intention."
From the above extracts, it becomes evident that a key
criterion in distinguishing whether a particular act constitutes
"murder" or "culpable homicide not amounting to murder"
punishable under Sections 302 and 304 IPC, respectively is the
presence or absence of the offender's intent. Specifically, if the
offender possesses the intention to cause death or to inflict such
bodily injury as is likely to cause death, or alternatively, if they are
consciously aware of the perilous nature of their conduct
recognizing that their actions are so inherently dangerous that
they will, in all likelihood, result in death or such injury the act is
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more appropriately classified as "murder" under Section 300 of
the IPC. In such cases, the corresponding penal provision of
Section 302 IPC, which prescribes the punishment for murder,
would be applicable. Conversely, if the intention to cause death or
such grievous bodily injury is not clearly established the act should
be categorized under the lesser offense of "culpable homicide not
amounting to murder," punishable under Section 304 IPC. This
classification recognizes the gravity of the act but acknowledges
the absence of the requisite mens rea (guilty mind) for murder.
The reasoning behind this distinction is rooted in the principles of
criminal law, which aim to attribute liability proportionate to the
mental state and culpability of the offender. Intention and
knowledge are fundamental elements that differentiate between
degrees of criminal liability. When the offender intentionally
commits an act with full awareness of its dangerous potential, it
signifies a higher degree of moral culpability, warranting the
harsher penalty prescribed for murder. Conversely, in cases where
the offender's conduct lacks such deliberate intent or conscious
knowledge, the law considers the act less blameworthy, thereby
justifying a comparatively lenient punishment under Section 304
IPC. This nuanced approach ensures that the legal response is
both fair and proportionate to the offender's mental state and the
circumstances of the act.
Upon examination of the injury sustained by the deceased
and the postmortem report Ex.P/34 indicates that he received only
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single injury on his head, which was identified as the fatal and the
primary cause of death was hemorrhagic stroke in the brain.
Furthermore, the circumstances under which the assault
occurred, including the motivations behind causing the injury,
there is no evidence to suggest that the assault was premeditated
or carried out with a deliberate plan to kill the deceased. The
absence of evidence indicating premeditation is a significant factor.
Considering the absence of proof of premeditation, including
the lack of undue advantage or cruelty on the part of the appellant
Devi Singh as well as the fact that the incident was occurred on
spur of the moment, the act can be characterized as culpable
homicide not amounting to murder, aligning with the provisions of
Section 304 Part II of the IPC. This court is of the opinion that the
actions of the accused demonstrated a reckless disregard for
human life rather than an outright intention to murder. The nature
and extent of the injuries, coupled with the circumstances of the
incident, support this conclusion.
In view of the aforesaid aspects and upon assessment of
evidence as well as the judgments of Hon'ble Supreme Court and
this High Court, we are of the considered opinion that the finding
of guilt recorded by learned trial Court under Section 302 IPC is
not sustainable in the eyes of law because there is a clear absence
of pre-meditation or motive to kill deceased Babu Singh and it is a
case of culpable homicide not amounting to murder. Therefore, we
are inclined to alter the conviction of the accused-appellant No.1
Devi Singh from Section 302 IPC to Section 304 Part II, IPC.
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Resultantly, the conviction and sentence passed against the
accused appellant Devi Singh for the offence under Section 302
IPC is quashed and set aside and the same is hereby altered to
the offence punishable under Section 304 Part II, IPC.
However, considering the facts that the incident is related to
the year 1994 and the accused-appellant Devi Singh has remained
in custody for about five years, we think it proper to reduce the
sentence of the accused-appellant Devi Singh to the period
already undergone by him.
Thus, while maintaining conviction of the appellant- Devi
Singh offence under Section 304 Part II IPC, his sentence for the
said offence is hereby reduced to the period already undergone by
him. The fine amount imposed by the trial Court if not already
deposited, is hereby waived. The appellant Devi Singh is on bail.
He need not surrender. His bail bonds are cancelled.
Accordingly, the criminal appeal is partly allowed.
The record of the trial court be sent back forthwith.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
76-Rashi/-
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