[2026:RJ-JP:15620-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Criminal Appeal (Db) No. 112/2019 Ramesh Singh S/o Shri Jawahar Singh, Aged About 26 Years, R/o Guddi Kesharpura Ps Sendra Dist. Pali (At Present Appellant Petitioner Confined In Beawar Jail) ----Appellant/Accused Versus State Of Rajasthan, Through PP ----Respondent For Appellant(s) : Ms. Shikha Parnami For Respondent(s) : Mr. Amit Kumar Punia, PP Mr. Jai Prakash Gupta with Mr. Yashovardhan Agarwal HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL HON'BLE MR. JUSTICE BHUWAN GOYAL Judgment 15/04/2026 PER HON’BLE MAHENDAR KUMAR GOYAL, J. This criminal appeal is directed against the judgement dated 31.01.2019 passed by learned Additional Sessions Judge No.3, Beawar, District Ajmer (for short, ‘learned trial Court’) in Sessions Case No.20/2016 (18/2016) CIS No.20/16 whereby, the accused- appellant (for short, ‘appellant’) has been convicted and sentenced as under: Section 302 IPC: Life imprisonment and fine of Rs. 10,000/-; in default whereof, four months’ additional simple imprisonment. The relevant facts in nutshell are that the complainant-Gopal Singh (PW3) lodged a written report dated 25.03.2016 at about [2026:RJ-JP:15620-DB] (2 of 18) [CRLAD-112/2019] 9:25 pm with Police Station Jawaja, District Ajmer wherein, it was alleged that the appellant-his brother-in-law visited his house at about 6:00 pm on that very day armed with a stick and inflicted blows on the person of his father with an intention to kill him whereupon, his father fell unconscious and died later on. It was averred that while fleeing, the appellant fell down and received injuries. Based thereupon, an FIR No.53 dated 26.03.2016 came to be registered under Section 302 IPC. The police after investigation charge-sheeted the appellant under Section 302 IPC whereunder, charge was also framed against him. After trial, he has been convicted and sentenced, as supra. Assailing the impugned judgment, learned counsel for the appellant, inviting attention of this Court towards the prosecution evidence, contended that it was an admitted position that there was no previous enmity between the parties and the appellant had visited his in-laws’ house to see his new born baby. She stated that in his arrest memo (Ex.P18) dated 27.03.2016, a number of injuries are reflected on his body which stand fortified from the injury report (Ex.P28) and the testimony of Dr. Sanjay Sharma (PW22) who has examined him. Learned counsel submitted that as per the injury report, he has received injuries on the occipital part of his head, neck, elbow of left as well as right hand with a complain of pain in left wrist. She argued that although, it was the prosecution case that he suffered these injuries while fleeing from the place of incident but, it did not stand corroborated from the site plan (Ex. P3). She submitted that in view thereof, it is apparent that the incident occurred on spur of the moment [2026:RJ-JP:15620-DB] (3 of 18) [CRLAD-112/2019] without any premeditation and the injuries on the person of Kalyan Singh (for short, ‘deceased’) came to be inflicted by him in exercise of his right of private defence. Further, referring to and relying upon the postmortem report (Ex.P1) of the body of the deceased as also the statement of Dr. Pukhraj Chaudhary (PW1)-a Member of the Medical Board which conducted the autopsy, learned counsel contended that no cause of death was specified creating a doubt that the deceased expired on account of injuries inflicted by him. She contended that even assuming that he exceeded in his right of private defence, the case would fall under Exception 2 of Section 300. She urged that in view thereof, the conviction be altered from Section 302 IPC to Section 304 Part-I IPC and since, the appellant has already remained in custody for a period of 11 years and 2 months, the substantive sentence be reduced to the period already undergone. Per contra, learned Public Prosecutor, opposing the submissions, contended that the learned trial Court has recorded the finding of guilt of the appellant under Section 302 IPC after appreciation of the evidence on record which warrants no interference. He, therefore, prayed for dismissal of the appeal. Learned counsel for the complainant did not oppose the prayer of the learned counsel for the appellant for converting his conviction to Section 304 Part I IPC. Heard. Considered. The Hon’ble Apex Court has, in the case Nandkumar @ Nandu Manilal Mudaliar Vs. State of Gujarat IN Criminal Appeal No. 1266 of 2014, held as under: [2026:RJ-JP:15620-DB] (4 of 18) [CRLAD-112/2019] 5.6 In Kesar Singh & Anr. v. State of Haryana, this Court observed thus, “The distinguishing feature is the mens rea. What is prerequisite in terms of clause (2) of Section 300 is the knowledge possessed by the offender in regard to the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal. Intention to cause death is not an essential ingredient of clause (2). When there is an intention of causing a bodily injury coupled with knowledge of the offender as regards likelihood of such injury being sufficient to cause the death of a particular victim would be sufficient to bring the offence within the ambit of this clause.” (Para 10) 5.6.1 For the above purpose, the exceptions contained in Section 300, IPC are taken into consideration. In the same judgment, the Court further explained the distinction between ‘culpable homicide amounting to murder’ and ‘not amounting to murder’, stating, “Culpable homicide is genus, murder is its specie. The culpable homicide, excluding the special characteristics of murder, would amount to culpable homicide not amounting to murder. The Code recognises three degrees of culpable homicide. When a culpable homicide is of the first degree, it comes within the purview of the definition of Section 300 and it will amount to murder. The second degree which becomes punishable in the first part of Section 304 is culpable homicide of the second degree. Then there is culpable homicide of third degree which is the least side of culpable homicide and [2026:RJ-JP:15620-DB] (5 of 18) [CRLAD-112/2019] the punishment provided for is also the lowest among the punishments for the three grades. It is punishable under the second part of Section 304.” (Para 11) 5.7 In other words, where the two ingredients namely that the infliction of bodily injury on deceased was caused intentionally and secondly that it was sufficient to cause death in the ordinary course of nature, are satisfied, the offence would amount to murder. There may be circumstances which may emerge from the facts and evidence of a given case that the offence becomes ‘culpable homicide not amounting to murder’. 5.8 In Virsa Singh v. State of Punjab and further in Shankar Narayan Bhadolkar v. State of Maharashtra , this Court stated that divided into two Parts, Section 304, IPC deals with the situations where ‘culpable homicide’ would not be a murder. The conceptualisation of the ‘culpable homicide not amounting to murder’ were explained in the following way, as quoted in para 4 of the Kesar Singh , “If an injury is inflicted with the knowledge and intention that it is likely to cause death, but with no intention to cause death the offence would fall within the definition of Section 304 Part I, however, if there is no intention to cause such an injury, but there is knowledge that such an injury can cause death, the offence would fall within the definition of Section 304 Part II. Thus, is intention. If intention to cause such an injury as is likely to cause death, is established, the offence would fall under Part I but where no such intention is established and only knowledge that the injury is likely to cause death, it would fall under Part II.” [2026:RJ-JP:15620-DB] (6 of 18) [CRLAD-112/2019] A co-ordinate Bench of this Court has, in the case of Ajay Ghos Vs State of Rajasthan in D.B. Criminal Appeal No. 731/2017, held as under: 10. Distinction between whether an offence is culpable homicide amounting to murder or culpable homicide not amounting to murder has been dealt by the Hon’ble Supreme Court in the case of Mohd. Rafiq v. State of Madhya Pradesh: (2021) 10 SCC 706 after taking into consideration earlier judgments on the point. The Court held that even though it is difficult to distinguish whether the punishment for offence would fall Under Section 302 or Section 304 of Indian Penal Code, there is a subtle distinction of degree of intention and knowledge involved in both the crimes. Relevant paragraphs of the judgment are reproduced below: “Para 11 - The question of whether in a given case, a homicide is murder, punishable Under Section 302 Indian Penal Code, or culpable homicide, of either description, punishable under Section 304 Indian Penal Code has engaged the attention of courts in this country for over one and a half century, since the enactment of the Indian Penal Code; a welter of case law, on this aspect exists, including perhaps several hundred rulings by this Court. The use of the term "likely" in several places in respect of culpable homicide, highlights the element of uncertainty that the act of the Accused may or may not have killed the person. Section 300 Indian Penal Code which defines murder, however refrains from the use of the term likely, which reveals absence of ambiguity left on behalf of the accused. The [2026:RJ-JP:15620-DB] (7 of 18) [CRLAD-112/2019] Accused is for sure that his act will definitely cause death. It is often difficult to distinguish between culpable homicide and murder as both, involve death. Yet, there is a subtle distinction of intention and knowledge involved in both the crimes. This difference lies in the degree of the act. There is a very wide variance of degree of intention and knowledge among both the crimes. Para 12 - The decision in State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. notes the important distinction between the two provisions, and their differing, but subtle distinction. The court pertinently pointed out that: 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 recognizes 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 Section304. 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 [2026:RJ-JP:15620-DB] (8 of 18) [CRLAD-112/2019] under the second part of Section 304. 13. The academic distinction between "murder" and"culpable homicide not amounting to murder" has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300; Para 13 - The considerations that should weigh with courts, in discerning whether an act is punishable as murder, or culpable homicide, not amounting to murder, were outlined in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh. This Court observed that: 29. 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 304Part I or 304 Part II. Many petty or insignificant matters-plucking of a fruit, straying of 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 premeditation. 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 [2026:RJ-JP:15620-DB] (9 of 18) [CRLAD-112/2019] 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 premeditation; (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.” [2026:RJ-JP:15620-DB] (10 of 18) [CRLAD-112/2019] Another co-ordinate Bench of this Court has, in the case of Hari Ram & Ors. Vs. State of Rajasthan IN D.B. Criminal Appeal No. 341/2007, held as under: The Hon'ble Supreme Court in the case of Dayanand Vs. State of Haryana reported in 2008 Cri.L.J. 2975 considering the identical issue that in absence of motive or intention and upon the fact that there was no repeated blow upon the vital part of the body, made following adjudication which reads as under:- “10. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC 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 the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest 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. [2026:RJ-JP:15620-DB] (11 of 18) [CRLAD-112/2019] 11. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done - INTENTION (a) with the intention of causing (1) with the intention of death; or causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) 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 (3) 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 KNOWLEDGE (c) with the knowledge that the act is likely to cause (4) with the knowledge that the act is so imminently dangerous that it must in all [2026:RJ-JP:15620-DB] (12 of 18) [CRLAD-112/2019] death. probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 13. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case [2026:RJ-JP:15620-DB] (13 of 18) [CRLAD-112/2019] may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature to cause death" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.......sufficie ufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.” [2026:RJ-JP:15620-DB] (14 of 18) [CRLAD-112/2019] From the aforesaid authoritative pronouncements, it is apparent that whether an offence would fall under Section 302 IPC or, under Section 304 Part-I or, Part-II IPC, would depend on multiple factors including intention/knowledge of the accused, whether it was premeditated or the incident occurred on spur of the moment, the nature of weapon used, the intensity and gravity of the blow, the body part which received the injury, repetition of blows, his criminal antecedents etc. If the facts of the instant case are examined in the light of aforesaid principles, we find that as per the prosecution case, the appellant came armed with a lathi to the house of the deceased- his father-in-law and inflicted multiple blows on his person. However, his postmortem report reflects a contused lacerated wound of 2x1x1 cm over right temporal region with underlying undisplaced fracture of right temporal bone as also scalp hematoma in right temporal region with a bruise on right side of neck and a wound on right foot with slopping edge and healing margin. Looking to the very short time gap in between the incident and the postmortem of the body of the deceased, the injury no.3 does not appear to be on account of blow by the appellant looking to its healing margin. The injury no.2 also appears to be simple as it is a bruise with no corresponding internal injury. Thus, we are left with only one injury which was grievous in nature. No cause of death was furnished in the postmortem report which was reserved to be given after FSL report. The FSL report (Ex.P34) remained negative. Thus, there is no medical opinion available as to definitive cause of death. [2026:RJ-JP:15620-DB] (15 of 18) [CRLAD-112/2019] However, from the testimony of Dr. Pukhraj Chaudhary (PW1), it was reflected that the death was not natural and Kalyan Singh died on account of the head injury. Thus, it is found to be a case of homicidal death. In the arrest memo (Ex.P18), a number of injuries are mentioned on the body of the appellant which stand corroborated from his injury report (Ex.P28) as also from deposition of Dr. Sanjay Sharma (PW22) who has medically examined him. Thus, it is established that the appellant has received multiple injuries including a stitched wound on occipital part of his head. Although, the prosecution has tried to explain the injuries to the appellant by stating that he received the same when he fell down while fleeing but, the same does not inspire confidence of this Court as the testimony of the eye witnesses is not uniform in this regard. Moreover, the site plan (Ex.P3) also did not mention the place where he allegedly fell down. Furthermore, from the testimony of Smt. Laxmi (PW2)- mother-in-law of the appellant, Gopal (PW3)-brother-in-law, Panchu Singh (PW6)-elder brother of the deceased, Vimla (PW7)- daughter-in-law of the deceased and Sushila (PW8)-wife of the appellant, it was apparent that the appellant had no enmity either with the deceased or, with any of the members of in-laws family and no motive was offered by the prosecution for commission of the offence. Rather, it has come on record that he had a new born baby of about 10-15 days and used to visit his in-laws house to meet him. His wife namely Sushila (PW8) had admitted during her cross-examination that she was staying with her father for last [2026:RJ-JP:15620-DB] (16 of 18) [CRLAD-112/2019] about 5 months for delivery and the appellant had no enmity or dispute either with her or with her father rather, even in two days holidays, he used to reside at her parental home. In these circumstances, we find substantial force in the submissions of the learned counsel for the appellant that the incident occurred on spur of the moment without any premeditation, there was a scuffle in which the accused has also received multiple injuries including a head injury and the head injury on the body of the deceased came to be inflicted by the appellant exceeding the bona fide exercise of his right of private defence. It is also worthy to mention here that there was only a single blow on the head of the deceased with a blunt object, i.e., a lathi. Therefore, we find that the case is covered under Exception 2 of Section 300 IPC and his conviction is liable to be converted from Section 302 IPC to Section 304 Part I IPC. So far as the sentence part is concerned, the appellant has already served the sentence for a period of 10 years and 19 days without remission and including remission, for a period of 11 years and 02 months.. His jail conduct is also reported to be satisfactory and he has been transferred to open air camp. Their Lordships have, in the case of Nawabuddin Vs. State of Uttarakhand: MANU/SC/0165/2022, held as under: “10.1.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxx However, the punishment provided for the offence under Section 6, as it stood prior to its amendment and at the time of commission of the offence in the instant case [2026:RJ-JP:15620-DB] (17 of 18) [CRLAD-112/2019] for aggravated penetrative sexual assault was rigours imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. Now as per the amended Section 6 with effect from 16.08.2019, the minimum punishment provided is twenty years and which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death. Therefore, at the relevant time the minimum punishment provided for the offence Under Section 6 of the POCSO Act,2012 was ten years RI and which may extend to imprisonment for life. It is reported that today the Accused is aged 70-75 years of age and it is also reported that he is suffering from Tuberculosis (TB). Therefore, considering such mitigating circumstances we are of the opinion that if the life sentence is converted to fifteen years RI and the fine imposed by the Trial Court confirmed by the High Court to be maintained, it can be said to be an adequate punishment commensurate with the offence committed by the a ccused .” (emphasis supplied) In the conspectus of the aforesaid evidence and in the backdrop of precedential law, we think that ends of justice would be served if the substantive sentence is reduced to the period already undergone. Resultantly, this criminal appeal is disposed of in following terms: 1. The conviction of the appellant, recorded by the learned Additional Sessions Judge No.3, Beawar, District Ajmer vide judgement dated 31.01.2019 in Sessions Case No.20/2016 (18/2016) CIS No.20/16 under Section 302 IPC is altered to the conviction under Section 304 Part I IPC. 2. The substantive sentence awarded to him is reduced to the period already undergone. Since, the appellant is in jail, he shall be set at liberty forthwith if not required to be detained in any other case. [2026:RJ-JP:15620-DB] (18 of 18) [CRLAD-112/2019] 3. The appellant is granted three months’ time to deposit the fine, if not already deposited. In case of default, learned trial Court shall ensure that he serves the default sentence imposed vide impugned judgment dated 31.01.2019. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Ramesh Singh S/o Shri Jawahar Singh is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount within four weeks before the Registrar (Judl.) of this Court which shall be effective for a period of six months with the stipulation that in the event of Special Leave Petition being filed against the judgement or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. Pending application(s), if any, also stands disposed of accordingly. (BHUWAN GOYAL),J (MAHENDAR KUMAR GOYAL),J DIKSHA /129