Soniya And Ors vs State (2025:Rj-Jd:41636-Db)
2025 Latest Caselaw 13367 Raj

Rajasthan High Court - Jodhpur

Soniya And Ors vs State (2025:Rj-Jd:41636-Db) on 17 September, 2025

Author: Manoj Kumar Garg

Bench: Manoj Kumar Garg

[2025:RJ-JD:41636-DB]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
                   D.B. Criminal Appeal No. 8/1997

1. Soniya S/o Vajiya Vagari
2. Rama S/o Sada Vagari
3. Bhanwariya S/o Sada Vagari
4. Gangaram S/o Moti Vagari
All R/o Dakatara, District Jalore.
                             (At present lodged in Central Jail, Jodhpur)
                                                                     ----Appellants
                                       Versus
State of Rajasthan
                                                                    ----Respondent


For Appellant(s)             :     Mr. B.S. Rathore, Adv.
For Respondent(s)            :     Mr. Vikram Singh Rajpurohit, PP



          HON'BLE MR. JUSTICE MANOJ KUMAR GARG
             HON'BLE MR. JUSTICE SANDEEP TANEJA

                                    Judgment

17/09/2025

BY THE COURT : (PER HON'BLE MR. MANOJ KUMAR GARG,J)

Instant criminal appeal under Section 374(2) Cr.P.C. has

been filed by the accused-appellants against the judgment dated

30.11.1996 passed by learned District & Sessions Judge, Jalore, in

Sessions Case No.40/1995 by which the learned Trial Court

convicted and sentenced the appellants as under:

Accused-appellant No.1 Soniya

S.No. Offence U/s Sentence Fine Sentence in default of fine

1. 302 IPC Life Rs.5,000/- 2 years RI imprisonment

2. 148 IPC 6 months SI - -

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Accused-appellants No.2 - Rama, No.3 - Bhanwariya & No.4

-Gangaram

S.No. Offence U/s Sentence Fine Sentence in default of fine

1. 302/149 IPC Life Rs.5,000/- 2 years RI imprisonment

2. 148 IPC 6 months SI - -

3. 323 IPC 6 months SI - -

Brief facts necessary to be noted for deciding the controversy

are that on 18.06.1995, deceased- Devaram accompanished by

his wife Ratni & grandson- Ramesh was travelling to Jodhpur to

attend a marriage ceremony. At about 07:00 AM, they arrived at

Bakra road and stopped at a hotel to have a tea. While they were

at the hotel, the accused persons including the appellants,

allegedly arrived at the scene, armed with an axe, a knife and

lathis and in furtherance of their common intention, launched an

assault on deceased- Devaram. It is alleged that accused-

appellant No.1 Soniya inflicted knife injuries in the abdomen, while

accused- Vajiya struck him on the head with an axe. The

remaining accused are said to have delivered blows with lathi to

the deceased Devaram. As a consequence of the injuries

sustained, Devaram collapsed to the ground. When Ramesh and

Ratni tried to intervene and rescue Devaram, accused Bhanwarlal

allegedly assaulted them with a lathi. Subsequently, villagers

came and rescued them from the accused persons. Deceased-

Devaram was thereafter taken to the hospital for medical

treatment.

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Upon receiving the information, Police reached at the

Government Hospital, Jalore and recorded the statement of

injured Devaram (Ex-P/21) and on the basis of his statement,

Police registered the FIR No.69/1995 for offences under Sections

147, 148, 307, 324, 323, 325, 149 IPC against the accused-

persons and started investigation. After four days of FIR i.e. on

22.06.1995, Devaram expired during treatment, and therefore,

offence under Section 302 IPC was also added. On completion of

investigation, police filed challan against the accused persons

including the appellants.

Thereafter, learned Trial Court framed, read over and

explained the charges for the offence under Sections 148, 323, &

302 IPC to accused Vajiya & Soniya and for offences under

Sections 148, 323, 302/149 IPC to accused Valaram, Rama,

Bhanwariya & Gangaram. They denied the charge and sought trial.

During the course of the trial, the prosecution examined as

many as sixteen witnesses and also got exhibited relevant

documents in support of its case.

The accused were examined under Section 313 Cr.P.C. In

defence, no witness was examined.

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 30.11.1996 convicted and sentenced the accused-

appellants for the offences as mentioned above. Hence, this

criminal appeal.

During the pendency of the criminal appeal, accused

appellant No.4- Gangaram had also passed away and vide order

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dated 13.08.2025, this Court dismissed the present criminal

appeal as abated qua accused appellant No.4 Gangaram.

Mr. B.S. Rathore, counsel appearing for the accused-

appellants, has contended that specific allegations have been

made against accused-appellant No.1 Soniya, attributing to his the

infliction of two knife injuries (i.e., Injury Nos. 1 and 2) to the

abdomen of the deceased- Devaram. The axe injuries to the head

of the deceased have been attributed to accused Vajiya, who has

since passed away. The remaining accused persons are alleged to

have inflicted injuries using lathis and fists. It is submitted that

the cause of death was the cumulative effect of the injuries

sustained, and the medical expert has not opined that any

particular injury, in isolation, was sufficient in the ordinary course

of nature to cause death. Further, reference is made to the injury

report prepared by Dr. Dilip Jain (PW-8), which records only six

injuries on the body of the deceased. Of these, two were

abdominal injuries caused by accused- Soniya with a knife;

Injuries Nos. 3 to 5 were attributed to a sharp-edged weapon

allegedly used by accused- Vajiya, and Injury No. 6 was noted as

an abrasion. Counsel further submits that following the demise of

Devaram, Dr. Kapoor Choudhary (PW-14) conducted the post-

mortem examination, wherein thirteen injuries were recorded. It is

argued that, as the deceased succumbed to his injuries four days

after the incident, the possibility of medical negligence

contributing to the death cannot be ruled out. It is further

contended that there was neither premeditation nor any clear

motive or intention on the part of the accused-appellants to cause

the death of Devaram. In these circumstances, it is submitted that

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the offence, if any, would not attract the stringent provisions of

Sections 302 or 302/149 IPC. Rather, the facts and circumstances

of the case would appropriately fall within the purview of Section

304 Part II IPC, as the act was done without the intention to cause

death, but with the knowledge that such act was likely to result in

death. Additionally, the learned counsel draws attention to the fact

that appellant No.1- Soniya, has already undergone incarceration

for a period exceeding three years and six months, while

appellants No.2 and No.3 have also served a substantial portion of

their sentences. Considering the period already undergone and the

fact that the incident occurred in the year 1995, nearly three

decades ago, it is respectfully prayed that the sentence awarded

to the accused-appellants be reduced to the period already

undergone.

Per contra, the learned Public Prosecutor has vehemently

opposed the submissions advanced on behalf of the accused-

appellants. It is contended that specific and categorical allegations

have been made against the accused-appellant No.1 Soniya,

regarding the infliction of two abdominal injuries with a knife on

the deceased, Devaram. Furthermore, accused- Vajiya is alleged

to have caused grievous injuries with an axe, while the remaining

accused inflicted injuries using lathis and fists. As a result of the

cumulative injuries sustained in the assault, the deceased

succumbed. It is thus submitted that the learned Trial Court has

rightly appreciated the evidence on record and correctly held the

accused-appellants guilty for the offence under Sections 302 and

302/149 of the IPC. Accordingly, the learned Public Prosecutor

prays for the dismissal of the appeal.

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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 incident in question occurred in the year 1995. Prior to

his death, the deceased- Devaram, made a specific and

unequivocal dying declaration to the police while undergoing

treatment at the hospital. In his statement, he categorically

alleged that accused-appellant No.1 Soniya, inflicted two stab

wounds to his abdomen using a knife; that accused- Vajiya caused

injuries with an axe; and that the remaining co-accused assaulted

him using fists and lathis (wooden sticks). This dying declaration

is corroborated by the medico-legal evidence on record. The injury

report confirms that deceased- Devaram sustained a total of six

injuries, out of which injuries No.1 to 5 were caused by sharp-

edged weapons, consistent with knife or axe injuries, and injury

No.6 was noted as a mere abrasion. Following his death, the post-

mortem examination conducted by Dr. Kapoor Choudhary (PW-14)

concluded that the cause of death was excessive blood loss and

the cumulative effect of multiple injuries. Furthermore,

eyewitnesses Ramesh (PW-1) and Smt. Ratni (PW-11) fully

corroborated the version narrated by the deceased, thereby

lending further credibility to the prosecution's case.

Therefore, the crucial legal issue that arises, however, is the

mental element (mens rea) attributable to each of the accused

persons, specifically, whether accused-appellants had the intention

to cause death of deceased- Devaram or had the intention to

cause such bodily injury which was likely to cause death or

whether they had the conscious intention or knowledge that it was

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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?

In the case of Gafoor Vs. The State of Rajasthan in D.B.

Criminal Appeal No. 671 of 1973 decided on 14.09.1983, the co-

ordinate Bench of this Court has observed that:-

"16. Mr. Maheshwari, learned Public Prosecutor, referred to Mahadeo Ganpat Badavane v. State of Maharashtra (AIR 1977 SC 2040). In that case also the question was as to what was the common object of the unlawful assembly? There were more than one injury, which were sufficient in the ordinary course of nature to cause death in that case. Besides that, the facts of that case show that there were two major fractions in the village and the relations between them were inimical. In the background of the relations between the parties and having regard to the nature of injuries, it was held that the appellants committed the offence in prosecution of the common object of their unlawful assembly or, at any rate, they knew that that offence was likely to be committed in prosecution of their common object, for there can be no doubt that they knew that in the prosecution of their common object it was likely that the victim might be so injured as to die as a result of the injuries which had been inflicted on him.

17. The other case cited by Shri Maheshwari is Inder Singh v. State of Madhya Pradesh (10). In that case the Supreme Court did not interfere in the convictions of the appellants for the offence under Sec. 302/149, I.P.C., in view of the fact that no less than 12 injuries were caused to the deceased and atleast one of them was on a vital part of the body, namely, the parietal region. The

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weapons used were lohangis, iron shod sties, which are clearly lethal weapons. It may be stated that it is not known as to what was the nature of relations between the parties and for what reason or motive the occurrence took place.

18. In the light of the circumstances considered above we are of the opinion that the common object of the appellants was only to cause grievous hurts and not to kill any one and it also cannot be found that the appellants knew that the offence of murder is likely to be committed. In view of this finding, in our opinion, the convictions of the appellants, other than Rujdar, for the offence under Sec. 302/149, I.P.C., deserve to be set aside. So far as the convictions and sentences of Rujdar are concerned for the various offences, they also deserve to be set aside in entirety, as it has been found that he was a member of the unlawful assembly, is not proved beyond all reasonable doubt."

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 the case of 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

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accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to 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

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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

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.

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Upon examination of the injuries sustained by the deceased

and the postmortem report indicates that deceased- Devaram died

due to shock occurred from the injuries and excessive blood loss

or due to cumulative effects of the all the injuries.

Furthermore, from the overall facts and circumstances it

appears that 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

appellants, 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, we are of the considered opinion that the finding of guilt

recorded by learned trial Court under Section 302 & 302/149 IPC

is not sustainable in the eyes of law because there is a clear

absence of pre-meditation or motive to kill deceased- Devaram

and it is a case of culpable homicide not amounting to murder.

Therefore, we are inclined to alter the conviction of the accused-

appellants from Section 302 & 302/149 IPC to Section 304 Part II,

IPC.

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Resultantly, the conviction and sentences passed against the

accused appellants for the offence under Section 302 & 302/149

IPC is quashed and set aside and the same is hereby altered to

the offence punishable under Section 304 Part II, IPC. To that

extent, the impugned judgment dated 30.11.1996, passed by the

learned District & Sessions Judge, Jalore in Session Case

No.40/1995 is hereby modified.

The sentence awarded to the accused-appellants No.2 & 3

for the offences under Sections 148, 323, IPC have already been

served by them.

However, considering the facts that the accused-appellant

No.1- Soniya has served more than three years & six months of

incarceration and accused-appellants No.2 & 3 have also served

some part of their sentence and the fact that the incident is

related to the year 1995 and till date, about 30 years have

passed, we think it proper to reduce the sentence of the accused-

appellants to the period already undergone by them.

Thus, while maintaining conviction of the appellants offence

under Section 304 Part II IPC, their sentence for the said offence

is hereby reduced to the period already undergone by them. The

fine amount, if not deposited, is hereby waived. The accused-

appellants are on bail. They need not surrender. Their bail bonds

are cancelled.

Accordingly, the criminal appeal is partly allowed.

The record of the trial court be sent back forthwith.

                                   (SANDEEP TANEJA),J                                  (MANOJ KUMAR GARG),J

                                   1-Ms/-




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