Manmohan vs State of M.P. (Now C.G.)

Hon''ble Shri Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 16-08-1996 passed by 2nd Additional Sessions Judge, Ambikapur in Sessions Trial No. 124/1992. By the impugned judgment, accused/appellant Manmohan has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 2 months. Case of the prosecution, in brief, is as under:

Deceased Shyamkunwar was wife of the appellant and mother of Kamlesh (PW-2). They were residing together. On 03-01-1992, at about 10:30 p.m., Keshwar Ram (PW-1) heard noise of Kamlesh (PW-2) that his father (the appellant) killed his mother (deceased). Having heard the noise, he, running, went to the house of the appellant and saw that the deceased had sustained injuries on her left temporal region and jaw and blood was oozing out from there. Kamlesh (PW-2) told Keshwar Ram (PW-1) that the appellant assaulted the deceased with Basula. At that time, the deceased was alive. Keshwar Ram (PW-1) narrated the incident to Laxmi Narayan Gupta (PW-4) and Hari Bhajan Ram (DW-3). Laxmi Narayan Gupta (PW-4) and Hari Bhajan Ram (DW-3) went to the place of occurrence. They took the deceased to Police Station Batauli. Keshwar Ram (PW-1) lodged First Information Report (Ex. P-1) in Police Station Batauli and offence u/s 307 IPC was registered there. The deceased was sent to PHC, Batauli for medical examination vide Ex. P-10. Dr. V.K. Mishra (PW-9) examined the deceased and gave his report (Ex. P-10A) in which he found--

(i) incised wound on scalp situated posterior to the pinna of left ear, 5 X 3 X 1 cm., margins sharp cut, fresh blood was present at the wound and dried blood clots were present on scalp and face,

(ii) incised wound on left side of face, 1X 1/4 X 1/4 c.m., margins clean cut,

(iii) lacerated wound on lower lip, 2 X 1 X 1 c.m.,

(iv) upper two teeth - one left second incisor and one canine teeth were lost; lower canine teeth was broken; there was laceration on gums; blood clots were present; there was swelling on left cheek,

The deceased was referred to District Hospital, Ambikapur. The deceased was to be taken to District Hospital, Ambikapur but she died at PHC, Batauli. Constable Dhanuksai (PW-6) gave information to Police Station Batauli. On the basis of that information, Merge Intimation (Ex. P-11) was recorded.

The Investigating Officer reached Primary Health Centre, Batauli, gave notice (Ex. P-4) to Panchas and prepared inquest (Ex. P-5) on the dead body of the deceased. The dead body of the deceased was sent for post mortem to PHC, Batauli vide Ex. P-12, where post mortem examination was conducted by Dr. V.K. Mishra (PVV-9), who gave his report (Ex. P-12A), in which he found (i) incised wound posterior to left ear, 5 X 3 X 1 cm., (ii) incised wound on left side of face, 1X 1/4 X 1/4 cm., there was swelling on the cheek, (iii) lacerated wound on lower lip, 2 x 1 x 1 c.m., upper left second incisor and canine teeth and lower canine teeth were broken, gums were lacerated and blood clot was present on gums at fracture site. There was a big subcutaneous haematoma under scalp on left parietal region, 10 X 6 c.m., there was fracture of skull bone (left parietal bone), there was a subcutaneous haematoma on right parietal region, 6 X 4 c.m. He opined that the cause of death was coma due to head injury caused by heavy sharp cutting object and the death was homicidal in nature.

In further investigation, memorandum statement of the appellant was recorded u/s 27 of the Evidence Act vide Ex. P-7 and at his instance a Basula was seized vide Ex. P-8. Plain soil and blood stained soil were seized from the place of occurrence vide Ex. P-6. The seized articles were sent to Forensic Science Laboratory, Sagar vide Ex. P-20. Site map was prepared by Patwari Parmanand Vishal (PW-7) vide Ex. P-21.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Court of Session, Ambikapur, from where, it was received on transfer by Second Additional Sessions Judge, Ambikapur, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Smt. Savita Tiwari, learned Counsel for the appellant argued that the finding of guilt recorded on the evidence of last seen together and on the basis of extra judicial confession is unreasonable. Some other persons were also present in the house of the appellant. At the time of incident, the appellant was not present in the house. She further argued that according to the prosecution Keshwar Ram (PW-1) and Kamlesh (PW-2) are eye witnesses to the incident but they did not support the case of the prosecution. She further argued that extra judicial confession made by the appellant is not reliable. She further argued that it is well settled law that a strong suspicion is no substitute for a proof. Therefore, the finding recorded by the learned Additional Sessions Judge is not sustainable and the appellant deserves to be acquitted.

Shri Arvind Dubey, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the leaned Additional Sessions Judge do not warrant any interference by this Court.

We have heard learned Counsel for the parties at length and have perused the record of Sessions Trial No. 124/1992. Admittedly, there is no eyewitness to the incident and the case of the prosecution is based on the circumstantial evidence. Main circumstances, which the learned Additional Sessions Judge appears to have taken note of, are thus:

(i) This is a house-murder where the deceased and the appellant were residing together,

(ii) Extra-judicial confession of the appellant regarding commission of murder of the deceased,

(iii) Memorandum statement of the appellant and at his instance recovery of the Basula.

It is well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt is to be drawn should be fully established. It is also well settled that suspicion, howsoever grave it may be, cannot be substitute for a proof and the Court should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.

In State of U.P. Vs. Ram Balak and Another, , the Hon''ble Supreme Court has held thus:

9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh Vs. State of Rajasthan, , Eradu and Others Vs. State of Hyderabad, Earabhadrappa Vs. State of Karnataka, State of U.P. Vs. Sukhbasi and Others, , Balwinder Singh alias Dalbir Singh Vs. State of Punjab, and Ashok Kumar Chatterjee Vs. State of M.P., The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram Vs. State of Punjab, , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

We may also make a reference to a decision of this Court in C. Chenga Reddy and Others Vs. State of Andhra Pradesh, wherein it has been observed thus: (SCC pp. 206-07, para 21)

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, , the Hon''ble Supreme Court has held thus:--

...This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:--

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence....

In Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, the Hon''ble Supreme Court has held thus :

The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration.

(See also Inspector of Police, Tamil Nadu Vs. John David, and State of U.P. Vs. Satish,

Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and to see whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles.

So far as the question regarding circumstance that this is a house-murder and that too where the appellant and the deceased were residing together is concerned, it is not disputed that the appellant and his wife Shyamkunwar (the deceased) were residing together in the house of the appellant. It is not disputed that the death of the deceased was homicidal in nature.

Keshwar Ram (PW-1) deposed that on the date of incident, at about 10 p.m. he heard the sound of weeping of children of the appellant. Having heard the noise, he went to the house of the appellant. He saw that the blood was oozing out from the head of the deceased. Then, he went to the house of Laxmi Narayan Gupta (PW-4) and Hari Bhajan Ram (DW-3). They came to the place of occurrence. Kamlesh (PW-2) is son of the appellant and the deceased. He turned hostile. He did not support the case of the prosecution.

Keshwar Ram (PW-1) and Kamlesh (PW-2) deposed that at the time of the incident, the appellant was not present at his house. When the appellant was examined u/s 313 of the Cr.P.C. and questions No. 5 to 11 were put to him, he simply answered that he was not aware and against question No. 10, he answered that this is false and when question was put to him as to whether he wished to say anything, he simply replied, I am innocent and falsely implicated. The appellant did not state in his statement u/s 313 Cr.P.C. that he was not present in the house at the time of incident.

Bhagat Ram (PW-8) deposed that the appellant said him for bringing liquor. He brought liquor from his landlady and came to the house of the appellant, He further deposed that the appellant and the deceased and he himself drunk liquor. He further deposed that the appellant brought two bottles of liquor and chicken was cooked. Thereafter, they further consumed liquor. When the deceased became intoxicated, she slept in cot and he went from there. He further deposed that at that time the appellant, deceased and their two children were present in the house.

ASI Sudesh Tiwari (PW-5) deposed that Keshwar Ram (PW-1) lodged the FIR (Ex. P-1) in Police Station, Batauli. He registered the offence u/s 307 of the IPC. He further deposed that he prepared site map of the place of occurrence vide Ex. P-13. Patwari Parmanand Vishal (PW-7) deposed that he prepared site map vide Ex. P-21.

From perusal of Ex. P-21, it appears that the place of occurrence is the house of the appellant and the incident took place inside the room.

In Trimukh Maroti Kirkan Vs. State of Maharashtra, the Hon''ble Supreme Court observed thus :

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions --quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.....

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character, In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

In State of Rajasthan Vs. Kashi Ram, the Hon''ble Supreme Court observed thus :

...whether an inference ought to be drawn u/s 106 Evidence Act is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts.

...The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his epical knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain....

These principles have been further reiterated in the matter of State of Rajasthan Vs. Parthu,

In the instant case, the appellant has not thrown any light as to how the deceased received injuries and in what circumstances the incident took place in which the deceased died a homicidal death. In absence of any explanation by the appellant, the defence of the appellant that he was not present in the house was not acceptable.

From the evidence of Bhagat Ram (PW-8) it is evident that the appellant and the deceased were living together at the house of the appellant on the fateful day. It is evident that the incident took place in the house of the appellant and the deceased sustained injuries and due to the injuries she died a homicidal death.

Prosecution adduced the evidence of extra-judicial confession made by the appellant before Laxmi Narayan Gupta (PW-4) as circumstantial evidence.

Laxmi Narayan Gupta (PW-4) deposed that on the date of incident, at about 7-7:30 hours, Hari Bhajan Ram (DW-3) and the appellant came to his home. The appellant told him that he had killed his wife with the Basula and due to fear he fled from there and came to his (Laxmi Narayan Gupta {PW-4}) house. He further deposed that he went to the house of the appellant along with Hari Bhajan Ram (DW-3) and saw that the deceased had sustained injury on her temporal region. She was lying smeared with blood. In cross-examination, he further deposed that Hari Bhajan Ram (DW-3) told him firstly that the appellant killed his wife then he asked to the appellant. The appellant told him that he killed his wife (the deceased).

In Gura Singh Vs. The State of Rajasthan, , the Hon''ble Supreme Court observed as follows:

It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, this Court again in Maghar Singh Vs. State of Punjab, held that the evidence in the form of extrajudicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh and Others Vs. State of M.P., , this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand Vs. State of Himachal Pradesh, , this Court held that an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged u/s 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj v. State of Haryana, 1991 Supp (1) SCC 14. After referring to the judgment in Piara Singh and Others Vs. State of Punjab, , this Court in Madan Gopal Kakkad Vs. Naval Dubey and Another, , held that the extrajudicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.

In Aftab Ahmad Anasari Vs. State of Uttaranchal, the Hon''ble Supreme Court observed as follows :

Though extra-judicial confession is considered to be a weak piece of evidence by the courts, this Court finds that there is neither any rule of law nor of prudence that the evidence furnishing extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The evidence relating to extra-judicial confession can be acted upon if the evidence about extra-judicial confession comes from the mouth of a witness who appears to be unbiased and in respect of whom even remotely nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused.

In State of U.P. Vs. M.K. Anthony, this Court, while explaining the law relating to extra-judicial confession, ruled that if the words spoken by the witness are clear, unambiguous and unmistakable, one showing that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction. According to this Court, in such a situation, to go in search of corroboration itself tends to cause a shadow of doubt over the evidence and if the evidence of extra-judicial confession is reliable, trustworthy and beyond reproaching, the same can be relied upon and a conviction can be founded thereon.

The evidence of Laxmi Narayan Gupta (PW-4) is cogent and trustworthy. It was not proved that Laxmi Narayan Gupta (PW-4) was inimical to the appellant. The evidence of Laxmi Narayan Gupta (PW-4) is corroborated by medical evidence. Dr. V.K. Mishra (PW-9) examined the deceased during her lifetime and after her death he conducted post mortem of the deceased and gave his report (Ex. P-12A) and he opined that the death was homicidal.

ASI Sudesh Tiwari (PW-5) deposed that on 05-01-1992, he recorded the memorandum statement of the appellant vide Ex. P-7 and at his instance the Basula was seized from the appellant vide Ex. P-8. Toukal Ram (PW-3) also supported the evidence of ASI Sudesh Tiwari (PW-5). ASI Sudesh Tiwari (PW-5) deposed that he sent seized articles to Forensic Science Laboratory, Sagar vide Ex. P-20.

In the instant case, FSL report and serologist''s report was not proved by the prosecution but they are admissible in evidence u/s 293 Cr.P.C. Both are annexed with record of session Court. Article D is Basula. and article C is saree of the deceased. In FSL report, it is reported that article C-saree and article D-Bosnia both were stained with blood. In serologist''s report, it is reported that saree was stained with human blood of A-group, and the blood stains on the Bosnia were disintegrated and their origin cannot be determined.

In the matter of State of Rajasthan Vs. Teja Ram and Others, , in para 27 the Apex Court held that "it cannot be said that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility". Similarly, in the matter of Sanjay @ Kaka Vs. The State (NCC.T. of Delhi), , the Apex Court held that "prosecution''s failure to prove origin of blood found on the pant and shirt of the accused who was alleged to have killed the deceased by inflicting dagger injuries - Held on facts, not sufficient to hold that the accused was not guilty of offence of murder".

In Gura Singh Vs. The State of Rajasthan, the Hon''ble Supreme Court observed thus :

The Serologist and Chemical Examiner has found that the chadar (sheet) seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with the lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant.

From the evidence of witnesses and memo of recovery, it is clear that the Basula was recovered from the appellant and was stained with blood.

In the light of the above discussion, we are of the view that the appellant has made extra-judicial confession before Laxmi Narayan Gupta (PW-4) and the appellant has not thrown any light as to how the deceased sustained injuries and in what circumstances the incident took place. The evidence of Laxmi Narayan Gupta (PW-4) is duly corroborated by medical evidence. We find that the cause of death of deceased was coma due to head injury by heavy sharp cutting object and the death was homicidal in nature. Therefore, we do not find any infirmity in the finding recorded by the Additional Sessions Judge that it was the appellant who caused the injuries on the body of the deceased with Basula and the deceased died on account of injuries caused by the appellant.

Now, we shall examine the matter in the light of the provision of Section 302 vis-a-vis Section 304 of the Indian Penal Code.

Smt. Savita Tiwari, learned Counsel for the appellant has argued that the appellant, the deceased and Bhagat Ram (PW-8) consumed liquor. The deceased became intoxicated and she slept. Thereafter, Bhagat Ram (PW-8) also slept in the bed of the deceased, on which a quarrel began and the appellant was provoked by the deceased and they abused each other. Therefore, the act of the appellant would not be punishable u/s 302 of the Indian Penal Code and he would be guilty for the offence punishable u/s 304 of the Indian Penal Code.

Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300 of the Indian Penal Code, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The first part of Section 304 of the Indian Penal Code applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304 of the Indian Penal Code, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300 of the Indian Penal Code, which include death caused while deprived of power of self-control under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304 of the Indian Penal Code, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing.

In Satish Narayan Sawant Vs. State of Goa, , the Hon''ble Supreme Court held as follows:

That being the well-settled legal position, when we test the factual background of the present case on the principles laid down by this Court in the aforesaid decisions, we are unable to agree with the views taken by the High Court. As already noted, it is quite clear from the record that there was an altercation preceding the incident. The place of occurrence is a residence inhabited by both the parties and there is no evidence on record that the deceased was armed with any weapon. Initially the appellant-accused also did not have any weapon with him but during the course of the incident he went inside and got a knife with the help of which he stabbed the deceased. PW 7 in his cross-examination has categorically stated that death due to stab injury was in consequence of injury 1 and all other injuries were superficial in nature. So, it was only 1 injury which was fatal in nature. Factually therefore, there was only one main injury caused due to stabbing and that also was given on the back side of the deceased and therefore, it cannot be said that there was any intention to kill or to inflict an injury of a particular degree of seriousness.

In the instant case, according to the prosecution, the appellant, the deceased and Bhagat Ram (PW-8) consumed liquor. The deceased became intoxicated and she slept. Thereafter, Bhagat Ram (PW-8) also slept in the bed of the deceased. This gave rise to a quarrel in which the appellant was provoked by the deceased and they abused each other. It appears that on account of abused by the deceased, the appellant became angry and enraged, and thereafter, the appellant brought the Basula and assaulted the deceased.

In the above facts and circumstances of the case, we are of the view that the act of the appellant would fall within the exception of Section 300 of the Indian Penal Code and he would be liable for punishment under part II of Section 304 of the IPC. For the foregoing reasons, the appeal is allowed in part. The conviction and sentence awarded to the appellant u/s 302 of the Indian Penal Code are set-aside. Instead thereof, the appellant is convicted u/s 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years. The appellant was in jail from 06-01-1992 to 13-05-1992 and thereafter from 16-08-1996 to 22-04-2003, i.e., near about 7 years and 3 months. Therefore, he has already undergone for more than 7 years. Presently he is on bail. His bail bonds are cancelled and sureties stand discharged.