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Rajasthan High Court – Jodhpur
Kalu vs State (2025:Rj-Jd:32618-Db) on 24 July, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:32618-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Jail Appeal No. 708/2005
Kalu S/o Shri Lalu, by caste Bheel, R/o Rojada, P.S. Chanderiya,
District Chittorgarh
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. Vikram Singh Rajpurohit
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
HON'BLE MR. JUSTICE SANJEET PUROHIT
Judgment / Order
24/07/2025
BY THE COURT (PER HON'BLE MANOJ KUMAR GARG, J.)
The present criminal appeal has been filed under Section 374
Cr.P.C. against the judgment dated 23.03.2004 passed by learned
Additional Sessions Judge (FT), Chittorgarh in Sessions Case No.
03/2004 whereby the learned trial Court convicted the appellant
for offence under Sections 302 IPC, 341 IPC & 323 IPC and passed
the sentences as under :-
S.No. Offence Punishment 1. 302 IPC Life imprisonment alongwith fine of Rs.2000/-, in default of payment of fine, to undergo three months simple imprisonment. 2. 341 IPC One month SI and a fine of Rs.500/- in default of payment of fine to undergo 15 days SI. (Downloaded on 29/07/2025 at 09:29:13 PM) [2025:RJ-JD:32618-DB] (2 of 8) [CRLA-708/2005] 3. 323 IPC Six months simple imprisonment alongwith fine of Rs. 500/-, in default of fine, to undergo 15 days simple imprisonment.
All the sentences have been ordered to run concurrently.
Brief facts of the case are that on 18.07.2003, an oral report
was lodged by complainant Gheesu lal Kumawat to the effect that
on 17.07.2003 when he was returning to his village alongwith one
Gopi lal towards Rojada village after collecting the stray cattle,
one person came armed with stick and threatened to take away
stray cattle else he will kill them. Suddenly, the said person
assaulted Gopi lal with stick on his head and face and legs. Gopi
lal fell down and became unconscious. The complainant managed
to pick him up and reached the well where, Kachru, Gheesu,
Heera lal, Ramlal came who took him to hospital at Chittorgarh.
The said report was forwarded to Police Station Chanderia
having jurisdiction which registered the FIR No. 254/2003 for
offence under Section 307, 341, 323 IPC and investigation
commenced. The police initially filed chargesheet against the
accused for offence under Section 307, 341, 323, however, after a
period of three and half months, the injured Gopi lal died,
therefore, a supplementary chargesheet was filed for offence
under Section 302, 341, 323 IPC. The case was committed to the
court of Additional Sessions Judge (FT), Chittorgarh whereas,
charges of the case were framed.
During trial, the prosecution examined 21 witnesses and
produced various documentary evidence in support of its case.
Thereafter the statement of the accused-appellant was recorded
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[2025:RJ-JD:32618-DB] (3 of 8) [CRLA-708/2005]
under section 313 Cr.P.C. No witness was examined on the
defence side.
On the basis of evidence on record, the learned trial court
convicted and sentenced the accused appellant as mentioned
above.
Counsel for the appellant submitted that the learned trial
court did not scrutinize the evidence of PW/3 Gheesu lal in the
light of facts available on record and has ignored the inherent
infirmities and improbabilities appearing in his evidence. PW/3
Gheesu lal had not named the present appellant in the FIR and
mentioned that he can identify the person who inflicted injuries to
the deceased. In the FIR, he named as many as four persons but
the police filed challan only against the petitioner. PW/3 Gheesu in
his statement has mentioned that the present appellant inflicted
injury on the head of deceased, however, he failed to mention the
name of assailant in the FIR. It is argued that the complainant
allegedly shouted and at that time, Kachru, Gheesu Teli, Heera lal,
Ram lal came there. However, PW/2 Rana has been declared
hostile and does not support his story. PW/5 Gheesu Teli only
stated that complainant Gheesu lal told him that accused Kalu had
inflicted injuries upon the deceased. PW/6 Kachru also narrate the
same story that it is Gheesu lal who told him that Kalu had
inflicted injuries upon the deceased. PW/8 Heera lal stated that he
heard somewhere that Kalu had assaulted the deceased. Thus,
except complainant PW/3 Gheesu lal, there is no eye witness to
the incident and even complainant Gheesu lal had not named the
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[2025:RJ-JD:32618-DB] (4 of 8) [CRLA-708/2005]
present appellant in the FIR. It is further argued that the injured
had received single injury on his head and he expired on
01.11.2003 i.e. about three and half months after the incident as
a result of Septicemia as a result of bedsores. The appellant never
intended to cause serious injury to cause death, therefore, the
conviction of the appellant for offence under Section 302 IPC is
erroneous. Even if the prosecution story is accepted to be true,
the offence does not travel beyond Section 304 Part II IPC.
Learned counsel for the appellant submits that conviction of the
appellant for offence under Section 302 IPC may be altered to
Section 304 Part II and the sentence awarded to the appellant
may kindly be reduced to already undergone as the petitioner has
already undergone incarceration of four years and nine months
and also undergone mental and physical agony from last 22 years.
Per contra, learned Public Prosecutor vehemently opposed
the prayer and submits that it is a case in which prosecution has
proved its case beyond reasonable doubt. The trial court has
rightly relied upon the evidence of PW/5 Gheesu lal, therefore, the
finding given by the learned trial court to hold accused appellant
guilty for offence under Section 302 IPC does not require any
interference.
We have considered the submissions on behalf of parties and
carefully scanned the material on record, exhibits and the
deposition of witnesses.
PW/3 Gheesu lal is the complainant and sole eye witness of
the incident. This witness had not named the assailant in the FIR
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but later on, he mentioned the name of present appellant. All the
other four witnesses namely Kachru, Gheesu Teli, Heera lal, Ram
lal have only stated that they were told by complainant Gheesu lal
that the present appellant had caused injuries to deceased. One of
these witnesses PW/2 Rana has been declared hostile. Thus,
PW/3 Gheesu lal is the only witness who has stated about the
participation of appellant in the assault.
As per injury report of deceased Gopi lal, the deceased had
sustained single injury on his head and as per postmortem report
and the cause of death was septicemia due to bedsores after three
and half months of the incident. Thus, it is clear that the injured
died due to medical negligence and not necessarily due to injury
on his head.
A cumulative reading of entire evidence makes it clear that
the statement of complainant PW/3 Gheesu lal is truthful
disclosure of fact that the incident took place and injuries were
inflicted in a sudden fight. There was no pre-meditation on the
part of accused appellant or pre-planning to his action to commit
murder.
Considering the background facts as well as the fact that the
appellant had neither taken any undue advantage nor acted in a
cruel manner and that there was sudden fight between the
parties, in the opinion of this Court, the instant case falls under
Exception 4 to Section 300 IPC and not 302 IPC.
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[2025:RJ-JD:32618-DB] (6 of 8) [CRLA-708/2005]
Hon’ble Apex Court in (2006) 11 SCC 444 ‘Pulicherla
Nagaraju @ Nagaraja vs State Of A.P‘ while discussing the said
aspect 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 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(Downloaded on 29/07/2025 at 09:29:13 PM)
[2025:RJ-JD:32618-DB] (7 of 8) [CRLA-708/2005]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 instant case, as per evidence, the appellant is said to
have assaulted Gopi lal with stick on the head but there was no
premeditation to commit murder. During the sudden quarrel and
altercation, the head injury was given and an intention to kill may
not be inferred. We may safely hold that from the facts and
circumstances, it is not a case of murder but the commission of
offence attributed to the appellant would come under Section 304
Part II of the IPC. However, no interference is called for in the
conviction and sentence awarded for offence under Section 341 &
323 IPC.
Accordingly, the appeal is partly allowed and conviction of
appellant is altered from Section 302 I.P.C. to that under second
Part of Section 304 IPC. However, taking note of the fact that the
incident had occurred in the year 2003 and that the accused had
remained behind the bars for four years and nine months, ends of
justice would be met if the appellant is awarded with sentence of
imprisonment of period already undergone by him, while waiving
off the fine amount. The appellant has already undergone the
sentence awarded for offence under Section 341 & 323 IPC.
The appellant is on bail. His bail bonds stand cancelled.
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Record of the trial court be sent back forthwith.
(SANJEET PUROHIT),J (MANOJ KUMAR GARG),J
86-BJSH/-
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