Rajasthan High Court - Jodhpur
Ashok Kumar vs State on 23 September, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:41913-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1190/2016
Ashok Kumar S/o Shri Budhram, B/c Valmiki, R/o Village
Fatehpur, PS Sangariya, Tehsil & District Hanumangarh.
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Anees Bhurat, amicus curiae
For Respondent(s) : Mr. Shrawan Singh Rathore, PP
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE RAVI CHIRANIA
Judgment
Order reserved on 18/09/2025
Date of Pronouncement : 23/09/2025
BY THE COURT : (PER HON'BLE MR. MANOJ KUMAR GARG,J)
Instant criminal jail appeal has been received by post on
behalf of the appellant through Jailer, Central Jail, Bikaner
challenging the judgment dated 11.11.2016 passed by learned
Additional Sessions Judge, Sangariya, District Hanumangarh, in
Sessions Case No.09/2016 by which the learned Trial Court
convicted the appellant for offence under Section 302 IPC and
sentenced him to life imprisonment along with fine of
Rs.1,01,000/- and in default of payment of fine to further undergo
one year additional S.I.
Brief facts necessary to be noted for deciding the controversy
are that on 12.01.2016, complainant- Rampratap submitted a
typed report to the SHO, PS Sangariya to the effect that his
younger brothers, Krishna and Ashok Kumar, were residing
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together in the same house. On the previous evening, both
Krishna and Ashok, along with the complainant's niece- Priyanka,
had retired for the night. The following morning, at approximately
07:00 AM, the complainant visited Krishna's room to wake him up.
Upon knocking on the door and receiving no response, the
accused- Ashok, allegedly informed the complainant that he had
murdered Krishna. Upon gaining entry into the room, the
complainant found Krishna lying deceased on the cot.
Furthermore, the complainant's niece, Priyanka, disclosed that her
uncle- Ashok had caused the death of her father- Krishna, by
inflicting injuries upon him with a gandasi (a sharp-edged
weapon) and a knife.
On the said report, Police registered the FIR No.36/2016
against the accused appellant for offence under Section 302 IPC
and started investigation. After thorough investigation, police filed
challan against the accused appellant for offence under Section
302 IPC.
Thereafter, learned Trial Court framed, read over and
explained the charges for the offence under Section 302 IPC to the
accused appellant. He denied the charge and sought trial.
During the course of trial, the prosecution examined as many
as eleven 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, 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
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judgment dated 11.11.2016 convicted and sentenced the accused-
appellant for the offence under Section 302 IPC as aforesaid.
Hence, this criminal appeal.
Learned amicus curiae- Mr. Anees Bhurat, appearing on
behalf of the appellant, has submitted that several prosecution
witnesses have categorically deposed that the accused-appellant
was present inside the room where the deceased, Krishna, was
found lying dead. In view of the same, the appellant was
apprehended by the police on the very date of the incident, i.e.,
12.01.2016. However, it is noteworthy that the alleged weapons of
offence, a gandasi and a knife were recovered only on
14.01.2016, i.e., two days after the incident. Learned counsel has
argued that, considering the appellant was found at the scene of
the crime and arrested on the spot, it is implausible that the police
did not recover the weapons at the time of arrest. It is contended
that it defies logic to assume that the appellant, after allegedly
committing the offence and remaining inside the room, could have
concealed the weapons elsewhere before opening the door for the
complainant. This casts serious doubt on the genuineness and
credibility of the recovery shown on 14.01.2016. Furthermore,
learned amicus curiae has drawn the Court's attention to
Rojnamcha Entry (Ex. P/11A), which records that one gandasi and
one knife had already been recovered and seized on 12.01.2016
itself. Therefore, the purported recovery of the same weapons
from the accused-appellant on 14.01.2016 appears to be highly
doubtful and fabricated. It is also submitted that there are
material contradictions, omissions, and improvements in the
testimony of the alleged eye-witness- Priyanka, which significantly
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weaken the prosecution's case. With respect to the medical
evidence, learned counsel refers to the testimony of Dr. Arvind
Sharma (PW-10), who conducted the post-mortem examination
and opined that the deceased, Krishna, had sustained a total of
ten injuries. Of these, only Injury No.1 was found to be fatal,
while the remaining injuries were described as simple in nature. It
is contended that the appellant had no premeditated intention to
cause the death of the deceased and that the incident occurred as
a result of sudden provocation. The act of assault, it is submitted,
was spontaneous and not pre-planned. There was no prior motive
or deliberate intention to kill the deceased. In view of the above,
learned amicus curiae prays that the appellant's conviction under
Section 302 of the IPC may be modified to one under Section 304
Part I IPC, which deals with culpable homicide not amounting to
murder. Additionally, learned counsel submits that the incident
occurred in the year 2016, and the appellant has already
undergone a sentence of approximately twelve years and seven
months, including remission. Accordingly, it is most respectfully
prayed that the sentence imposed upon the appellant may be
reduced to the period already undergone. In support of his
contentions, counsel has relied upon the judgments of the Hon'ble
Supreme Court in the case of Prithipal Singh Vs. State of Punjab &
Anr. [2012 (1)WLC (SC) Cri.56] & Sudhakar Vs. State of
Maharashtra [2013(1) WLC (SC) Cri 263] and the judgment of this
Court in the case of Ashok & Anr. Vs. State of Rajasthan [2021 (4)
Cr.L.R. (Raj.) 1113].
Per contra, the learned Public Prosecutor has vehemently
opposed the submissions advanced on behalf of the appellant. It is
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contended that there are specific and unequivocal allegations
against the accused-appellant attributing to him the act of
inflicting injuries upon the deceased- Krishna, by means of a
gandasi and a knife. The prosecution further asserts that Injury
No.1, as established by medical evidence, was fatal in nature and
constituted the direct and immediate cause of death. In light of
the said evidence, it is submitted that the learned Trial Court has
rightly appreciated the material on record and has justifiably held
the accused-appellant guilty of the offence punishable under
Section 302 of the IPC. Accordingly, the learned Public Prosecutor
prays for dismissal of the present appeal, maintaining that the
conviction and sentence imposed by the Trial Court warrant no
interference.
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.
Admittedly, At the time of incident, eye-witness Priyanka
(PW-3) she deposed in her statement that at the time of murder
of her father, she was sleeping. She woke-up at about 04:00 AM
when she got hit with cot and she saw that accused appellant was
inflicted gandasi blow to her father Krishna. Accused appellant
also threatened Priyanka not to raise voice, otherwise face the
consequences.
According to the statement of Dr. Arvind Sharma (PW-10),
he found total eleven injuries on the body of the deceased-
Krishna. He opined that injury No.1 is found to be fatal and all
other injuries are simple in nature.
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The recovery of weapon is also doubtful in this case. The
accused-appellant was arrested by the Police on 12.01.2016.
According to the rojnamcha entry (Ex-P/11A), weapon gandasi
and knife were recovered and seized by the Police on 12.01.2016,
whereas, the Police showed the recovery of both the weapons on
14.01.2016. This also shows that the recovery against the
accused-appellant does not connect him with the alleged crime
and the recovery of the weapons is fabricated one.
Admittedly, on 12.01.2016, at approximately 07:00 AM, the
complainant visited the room of the deceased- Krishna, to awaken
him. Upon knocking and receiving no response, the accused-
Ashok (real brother of the deceased), allegedly made an
admission to the complainant, stating that he had murdered
Krishna. Upon entry into the room, the complainant found Krishna
lying lifeless on the cot. Furthermore, the complainant's niece-
Priyanka (daughter of the deceased), informed him that her uncle-
Ashok, had caused the death of her father by inflicting injuries
with a gandasi (a sharp-edged weapon) and a knife. As per the
medical evidence provided by Dr. Arvind Sharma (PW-10), a total
of eleven injuries were found on the body of the deceased. Out of
these, only Injury No.1 was opined to be fatal, while the
remaining injuries were simple in nature. However, a significant
factor that emerges from the record is that the accused-appellant
and the deceased were real brothers and were residing together
peacefully prior to the unfortunate incident. There is no evidence
on record to suggest any prior enmity, dispute, or motive that
could have prompted the appellant to commit such a heinous act.
Upon perusal of the impugned judgment and the material
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available on record, this Court finds that the prosecution has failed
to conclusively establish the element of mens rea, the intention to
cause death or such bodily injury as was likely to cause death. The
alleged act appears to have occurred in a sudden and
unanticipated manner, and in the absence of any premeditation,
the requisite ingredients to sustain a conviction under Section 302
of the IPC are not fully satisfied.
It is well-settled that where the evidence raises a reasonable
doubt regarding the intention of the accused, the benefit of such
doubt must necessarily benefit to the accused. In the present
case, the existence of a familial relationship, lack of prior motive,
and the absence of credible evidence demonstrating pre-planned
intention together create sufficient doubt regarding the culpability
of the appellant under Section 302 IPC.
Additionally, irrespective of the intention, a cumulative
reading of the entire evidence makes it clear that death of
deceased- Krishna was caused due to the injuries inflicted by the
appellant. Nonetheless, the question arise for consideration is
whether the case of the appellant falls within the ambit of Section
304 Part I of IPC, as argued by counsel for the appellant.
At this stage, it is relevant to refer to Section 300 of IPC
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--
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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.
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.
.........."
The thin line difference between the offence punishable
under Section 302 IPC or Section 304 Part I, IPC has been
explained by the Hon'ble Apex Court in various authoritative
pronouncements:-
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
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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 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."
In the case of Ajit Singh vs. State of Punjab reported in
(2011) 9 SCC 462, while altering the conviction of the accused
from Section 302 IPC to Section 304 Part I, IPC, Hon'ble Apex
Court has held as under:-
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"20. In order to hold whether an offence would fall under Section
302. or Section 304 Part 1 IPC, the courts have to be extremely
cautious in examining whether the same falls under Section 300
IPC which states whether a culpable homicide is murder, or would
it fall under its five Exceptions which lay down when culpable
homicide is not murder and in this category further b lays down
that culpable homicide is not murder if the offender whilst
deprived of the power of self-control by giving sudden
provocation causes the death of the person who gave the
provocation, or causes the death of any other person by mistake
or accident.
21. While examining the case of the appellant in the light of the
settled legal position that culpable homicide would not amount to
murder if the c offender was deprived of the power of self-control
on account of grave and sudden provocation, I am of the view
that the appellant's case will have to be treated to be a case
falling under the Fourth Exception of Section 300 and hence
would be a case under Section 304 Part I of the Penal Code for
more than one reason deduced from the evidence on record.
22. In the first place, the deceased Laxmi Devi had been cutting
grass for d fodder in the field of the appellant Ajit Singh and when
Ajit Singh reprimanded the deceased and her companion not to
spoil his kinnu crop, the deceased started an altercation with the
appellant and abused him which provoked the appellant Ajit Singh
to order his companion Anil Kumar (since acquitted) to bring kassi
(spade) which instruction was carried out by Anil Kumar and
thereafter Ajit Singh inflicted two blows on the deceased Laxmi
Devi. However, she did not die instantly and was taken to the
hospital where she underwent treatment for four days and finally
succumbed to the injuries. From this it can be safely inferred that
although the appellant Ajit Singh had the intention and knowledge
to cause grievous injury on the deceased which could have
resulted into the death of the deceased, yet it cannot be inferred
without doubt that the intention of the appellant Ajit Singh was
necessarily to cause death and not merely to cause grievous hurt
as he did not inflict repeated blows on the deceased and the
deceased in fact had survived for four days after the assault. In
addition to this, it has also come in evidence that PW 6 informant
had chased the appellant but the appellant did not pursue by
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entering into further scuffle with the prosecution party. Besides
this, the case of the prosecution regarding common intention to
commit murder already g stands negatived by the High Court vide
the impugned judgment and order as the plea of common
intention to commit murder is no longer existing since the co-
accused Anil Kumar was acquitted of the charge under Sections
302/34 IPC by the High Court. Thus, the common intention to kill
the deceased will have to be treated as missing in the prosecution
case and only individual liability of the appellant giving fatal blows
will determine whether the charge would be sustained under
Section 302 IPC or would it fall under Section 304 Part I IPC.
23. On an analysis of the case of the prosecution in the light of
the evidence on record, I am clearly of the view that the
appellant's conviction and sentence under Section 302 IPC cannot
be sustained but considering the intensity and gravity of the
assault which led finally to the death of the victim Laxmi Devi he
would certainly be held guilty under Section 304 Part 1 IPC and
hence I deem it just and appropriate to set aside the conviction
and sentence of the appellant under Section 302 IPC and the
same is altered to his conviction under Section 304 Part I IPC.
Accordingly, the sentence of life imprisonment shall be reduced to
a period of ten years under Section 304 Part I IPC. Thus, the
appeal stands partly allowed to this extent."
The Hon'ble Apex Court in a recent judgment in the case of
Goverdhan vs State of Chhatisgarh reported in (2025) 3 SCC
378, has observed as under:-
"116. It is also noticeable that the circumstances under which the
assault took place and the reason for causing the injuries by the
appellants and the motive behind their assault has not come out
clearly. Even the sole eyewitness, Lata Bai (PW 10), the mother
of the deceased testified that her son was having visiting terms
with the accused persons as they were residing in the same
locality and she cannot tell why the quarrel occurred suddenly. It
has not been established clearly that it was premeditated and the
assault was pre-planned with the intention to kill the deceased.
Any prior enmity between the appellants and the deceased has
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not been established. Thus, the motive for committing the crime
has not been clearly established and proved.
117. However, it is established beyond reasonable doubt that the
appellants had caused the death of the deceased fully knowing
that the bodily injuries caused by the appellants were likely to
cause death as the appellants were armed with deadly weapons,
we are inclined to convert the conviction of the appellants from
Section 302IPC to Part I of Section 304IPC. Accordingly, we
convict the appellants under Part I of Section 304 IPC."
Upon examination of the injuries sustained by the deceased
and the postmortem report Ex.P/16 indicates that the injury No.1
was identified as the fatal and the primary cause of death.
Furthermore, the circumstances under which the assault
occurred, including the motivations behind causing the injuries,
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, as
well as the fact that the assault was the result of a sudden
altercation between the parties, the act can be characterized as
culpable homicide not amounting to murder, aligning with the
provisions of Section 304 Part I 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 it is improbable to
believe that the accused appellant intentionally and with deliberate
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motive caused the death of the deceased. Furthermore, the
circumstances and the nature of the incident do not substantiate
the claim of deliberate homicide. The evidence suggests that the
act may have been unintentional or a result of unforeseen
circumstances, rather than a calculated efforts to cause death.
Therefore, based on these considerations this Court finds it
difficult to ascribe full culpability to the accused appellant for
causing the death intentionally and 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- Krishna and it is a case of culpable
homicide not amounting to murder. Therefore, we are inclined to
accept the prayer of accused appellant to alter the conviction from
Section 302 IPC to Section 304 Part I, IPC.
Resultantly, the conviction and sentences passed against the
accused appellant for the offence under Section 302 IPC is
quashed and set aside and hereby altered to the offence
punishable under Section 304 Part I, IPC. To that extent, the
impugned judgment dated 11.11.2016, passed by the learned
Additional Sessions Judge, Sangariya, District Hanumangarh in
Sessions Case No.09/2016 is hereby modified.
However, considering the fact that the appellant has already
undergone the incarceration for more than twelve years and seven
months including the remission and the appellant is still in judicial
custody since his arrest. Thus, while maintaining conviction of the
appellant for offence under Section 304 Part I IPC, his sentence
for the said offence is hereby reduced to the period already
undergone by him. The fine amount is hereby waived, if not
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deposited. The appellant is in jail. He be released forthwith, if not
required in any other case.
Resultantly, the criminal jail appeal is partly allowed.
The record of the trial court be sent back forthwith.
A copy of this order be communicated to the accused-
appellant.
(RAVI CHIRANIA),J (MANOJ KUMAR GARG),J
MS/-
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