Pancham alias Pachuwa (In Jail) vs State of U.P.

Vijay Kumar Verma, J.—This appeal u/s 374(2) of the Code of Criminal Procedure (in short ''the Cr.P.C''.), has been preferred against the Judgment and order dated 26.09.1986, passed by the Sessions Judge Jhansi, in S.T. No. 168 of 1985, whereby the appellant-accused Pancham @ Pachuwa has been convicted and sentenced to imprisonment for life u/s 302 of Indian Penal Code (in short ''the IPC) for committing the murder of his wife Smt. Vimla.

The incident resulting in the instantaneous death of the deceased Smt. Vimla, occurred on 17.09.1985 at about 2.3G p.m. in village Behta, situated within the limits of Police Station Sipri Bazar, District Jhansi in the house of her father Sri Binda (P.W.4). The case of the prosecution, as appearing from the first information report Ext. Ka 2, lodged by P.W.4 Binda, in brief, is that Binda had three daughters, out of whom deceased Smt. Vimla was the eldest. She was followed by Kamla and Km. Ram Kumari (P.W.5). Smt. Vimla was married with the accused Pancham @ Pachuwa about 3-4 years prior to her murder. After some time of marriage, the accused Pancham levelled a charge of infidelity against his wife Smt. Vimla and on that account he used to beat her, due to which she often used to come to her Maika, but her father Binda used to make her agreeable to return to her Sasural. About 1 1/2 month prior to the commission of murder of Smt. Vimla, she started residing with her father in his house, situated in village Behta. The accused Pancham also joined her after some days. It is alleged that on 17.09.1985 in the afternoon at about 2.30 p.m., when the complainant was sitting with his youngest daughter Km. Ram Kumari outside his house, he heard the cries of Smt. Vimla coming from inside the house. Binda rushed towards the door of the house and saw that her daughter Vimla was lying on the ground and Pancham was pressing her neck with left hand and was trying to strangulate her. When Binda shouted for help, the accused Pancham struck off two blows from axe on the neck of Smt. Vimla. Thereafter, the accused came outside the house, pushed Binda aside and fled away towards east. On hearing the alarm raised by Binda, the neighbours Shyam Lal and Beni Prashad came on the place of occurrence and they also saw the incident. They tried to chase and capture Pancham, but they could not do so due to fear of the weapon i.e. axe held by the accused. Smt. Vimla died instantaneously inside the house.

The complainant got the written report Ext. Ka 1 scribed from Surendra Singh (P.W.1) and went to P.S. Sipri Bazar, Jhansi. He handed over the written report there. On the basis of this report, the then Head Moharrir Shyam Narain Dubey (P.W.2) prepared chik FIR Ext. Ka 2 on 17.09.1985 at 5.40 p.m. and registered a case u/s 302 IPC at Crime No. 252/85 against the accused Pancham @ Pachuwa and made entry in G.D. No. 28 vide G.D. extract Ext. Ka 3.

The investigation of the case was taken up by Station Officer Sri D.C. Srivastava (P.W.6) himself, in whose presence the case was registered. He commenced the investigation at police station itself, where he recorded the statement of head moharrir Surendra Singh and informant Binda, then he left for the place of occurrence accompanied with other police personnel. After reaching the place of occurrence in village Behta, the investigating officer conducted inquest proceeding on the dead-body of Smt. Vimla and prepared inquest report Ext. Ka 5 along with connected papers Ext. Ka 6 to Ext. Ka 9 and thereafter the dead-body in sealed condition was sent for post mortem examination through the constable Chandra Pal and Mahesh Chandra.

The post mortem examination on the dead-body was conducted by Dr. M.C. Agarwal (P.W.7) on 18.09.1985 at 4.00 p.m. According to the postmortem report Ext. Ka 15, the following ante-mortem injuries were found on the person of deceased:

Incised wound 6.5cm x 1.5cm x trachea deep on front of neck 3cm below from chin transverse muscle, vomb, other soft tissue are ruptured with trachea cut through & through. Blood clots are present.

Abrasion 2.5cm x .5cm on front of neck 5 cm below from Injury No. 1.

In internal examination, the trachea was found cut through & through and blood clots were present in trachea. Stomach contained undigested food matter about 200 grms. The large intestine contained faecal matter. In the small intestine, digested food was found present.

According to Dr. Agarwal, the death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem injury on the neck, which was found sufficient in the ordinary course of nature to cause death.

After sending the dead-body for post-mortem examination, P.W.6 S.I. D.C. Srivastava conducted further investigation, during which site plan Ext.Ka 13 was prepared. Blood was found lying on the place of incident. Blood stained and simple earth were collected from the place of occurrence and after filling the same in tin containers, fard Ext. Ka 10 was prepared in this regard. Statements of the witnesses were recorded and after completing other formalities with regard to the investigation, charge-sheet Ext. Ka. 14 was submitted against the appellant-accused u/s 302 IPC.

On the case being committed to the court of session for trial, charge u/s 302 IPC was framed against the accused, to which he pleaded not guilty and claimed to be tried.

The prosecution in order to prove its case examined seven witnesses in all. P.W.1 Surendra Singh is the scribe of written report Ext. Ka. 1, which has been proved by him in his statement recorded on 08.07.1986. P.W.2 head constable Shyam Narain Dubey was posted as head moharrir at P.S. Sipri Bazar, Jahansi on 17.09.1985. On the basis of written report Ext. Ka 1, he had scribed the chik FIR Ext. Ka 2, which has been proved by him along with G.D. extract Ext. Ka 3. Extract of G.D. No. 14 dated 18.09.1985 Ext. Ka 4 has also been proved by him. P.W.3 Shyam Lal and P.W. 5 Km. Ram Kumari are the eye witnesses of the incident of murder of deceased Smt. Vimla. P.W. 4 Binda, is the father of deceased, who had lodged the FIR regarding her murder at P.S. Sipri Bazar, Jhansi. Written report Ext. Ka 1 was prepared by P.W. 1 Surendra Singh on his dictation. P.W. 6 D.C. Srivastava is the investigating officer, who has proved some papers as mentioned herein-above. P.W.7 Dr. M.C. Agarwal had conducted post-mortem examination on the dead body of the deceased. He has proved post-mortem report Ext. Ka 15.

In his statement recorded u/s 313 Cr.P.C., the appellant Pancham has denied his complicity in the incident of murder of his wife and he has stated that due to enmity he has falsely been implicated in this case. It is further stated by the accused that village people were saying to his father-in-law Binda that you call your son-in-law and employ him on some job, but he was not ready to live with his father-in-law, due to which his father-in-law was having enmity with him.

After examination of the accused u/s 313 Cr.P.C, opportunity was given to him to produce evidence in defence, but he neither examined any witnesses nor filed any documentary evidence.

Learned trial court having taken entire evidence into consideration, convicted and sentenced the appellant-accused as mentioned in para one above. Hence this appeal.

We have heard Sri Shashi Prakash Sharma, learned Counsel for the appellant, Sri R.K. Singh learned AGA for the State and perused the impugned judgment and entire evidence on record carefully.

Regarding the happening of the incident of committing murder of his wife by the accused Pancham, the prosecution has examined three witnesses namely P.W. 3 Shyam Lal, P.W. 4, Binda and P.W. 5 Km. Ram Kumari as eyewitnesses. Out of these witnesses, P.W. 4 Binda, who is complainant of this case, has not supported F.I.R. version, as he has stated that at the time of incident, he was in the jungle (haar), whereas according to the F.I.R. lodged by him, he also had witnessed the incident of murder of his daughter Smt. Vimla.

The main witness is Km. Ram-Kumari, who has been examined as P.W. 5. She is the real younger sister of deceased Smt. Vimla. Since P.W. 5 was child witness, hence after making preliminary examination by Trial Court, oath was not administered to her, due to her incapability to understand the meaning of oath. Her statement in Trial Court was recorded on 20.08.1986. In her statement, Km. Ram Kumari has stated that the accused Pancham present in the Court, is her brother-in-law (jija). Regarding the incident, she has stated that many days ago at about 2.00-2.30 p.m., her sister Vimla was killed by the accused Pancham by giving two blows by Kulhari(axe). It is further stated by P.W.5 that at that time she was also at her house and when she raised cry, no person from the mohalla came there. She has been cross-examined on behalf of the accused by his counsel, but nothing material could be elicited from her during cross-examination. Although in cross-examination, she has ruled out the presence of witnesses Shyam Lal and Beni at the time of incident, but on this ground her reliable testimony cannot be discarded, because she has given rational answers to the questions put to her at the time of her examination and on the basis of her testimony, it is fully proved beyond reasonable doubt that murder of her sister Smt. Vimla was committed by the accused Pancham by causing injuries to her by axe. She has told her age at the time of recording statement as twelve years. The learned Trial Judge after making preliminary examination of Km. Ram Kumari, has appended a note in her statement, in which it is stated that she appears to be a child aged below twelve years and since she was not understanding the meaning of oath, hence oath was not administered to her, but on this ground her testimony cannot be discarded, as contended by learned Counsel for the appellant-accused. Km. Ram Kumari does not appear to be a tutored witness and whatever incident was witnessed by her, she has narrated in simple language in her statement. There is no reason to disbelieve the testimony of this witness and her testimony cannot be brushed aside merely on the ground that oath was not administered to her before recording her statement.

The statement of Km. Ram Kumari finds corroboration from medical evidence. The post-mortem examination on the dead body of deceased Smt. Vimla was conducted on 18.09.1985 at 4.00 p.m. by Dr. M.C. Agarwal P.W. 7, who had prepared post-mortem report Ext. Ka-15, which has been proved by him in his statement recorded in Trial Court on 02.09.1986. According to this postmortem report, two ante-mortem injuries were found on the person of deceased. Injury No. 1 was incised wound measuring 6.5 cm x 1.5 cm x trachea deep on front of neck 3 cm below from chin transverse muscle. The trachea was cut through and through. Dr. Agarwal has stated in his statement that injury No. 1 is possible to be caused by the blow of axe and injury No. 2 also can be caused by friction of axe. It is also opined by Dr. Agarwal that ante-mortem injuries were possible to be caused on 17.09.1985 at about 2.30 p.m. and death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem wound on neck. It is further stated by Dr. Agarwal that ante-mortem injury No. 1 was sufficient in the ordinary course of nature to cause death. As such, the medical report on record is fully corroborating the statement of Km. Ram Kumari(P.W. 5).

The prosecution has examined P.W. 3, Shyam Lal also as eyewitness. His statement was recorded in Trial Court on 20.08.1986. He has fully supported F.I.R. version in his statement. Regarding the incident of murder of smt. Vimla, it is stated by P.W. 3 that about eleven months ago at about 2.30 p.m., on hearing the noise of Vimla, daughter of Binda, from her house, he, Binda, Ram Kumari and Beni Prasad rushed towards the house and saw that Vimla was lying on earth and accused Pancham gave one blow in their presence to her and when they asked Pancham what he is doing, he fled away showing axe to them. It is further stated by this witness that they did not chase Pancham due to fear and when they saw Vimla, she had died. Nothing material has been elicited from this witness also in his cross-examination and his testimony also inspires confidence. As such, the testimony of child witness Km. Ram Kumari finds corroboration from the statement of P.W. 3 Shyam Lal also. Although Km. Ram Kumari has ruled out the presence of Shyam Lal at the time of incident and if placing reliance on her statement, the testimony of P.W. 3 Shyam Lal is ignored, even then the complicity of the appellant Pancham in the incident of murder of his wife is fully established beyond reasonable doubt on the basis of the testimony of his sister-in-law Km. Ram Kumari (P.W. 5), whose testimony finds corroboration from medical evidence and other circumstances.

P.W. 4 Binda is the father of the deceased. According to the F.I.R. lodged by P.W. 4, Binda, murder of his daughter Smt. Vimla was committed by her husband Pancham and the incident of murder was witnessed by P.W. 4 also in addition to other witnesses. Although, in the Trial Court, P.W. 4 has not fully supported this version of the F.I.R., but on the basis of his testimony also, presence of Km. Ram Kumari in the house at the time of incident is established, as it is specifically stated by Sri Binda that at the time of murder of his daughter Vimla, his other daughter Ram Kumari was present at the house and when murder of Vimla was committed by her husband Pancham, information was given to him by his daughter Ram Kumari in the haar (jungle), on which he came to his house and thereafter he got the written report scribed by Pradhan Surendra Singh. Therefore, the presence of the witness Ram Kumari at the time of incident is not doubtful and this fact finds corroboration from the statement of the complainant Binda also.

On the basis of the testimony of P.W. 4 Binda, P.W. 3 Shyam Lal and P.W. 5 Ram Kumari, this fact is established beyond reasonable doubt that murder of Smt. Vimla was committed in the house of her father Binda in village Behta, where she was residing since prior to the incident and her husband accused Pancham also had come to live with her. On the basis of reliable testimony of P.W. 5 Ram Kumari, this fact is also established beyond reasonable doubt that murder of Smt. Vimla was committed by her husband accused Pancham by giving axe blow to her. According to the postmortem report and statement of Dr. M.C. Agarwal, the death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem injury No. 1, which was possible to be caused by axe blow and was sufficient in the ordinary course of nature to cause death. Having regard to the entire evidence on record, in our considered opinion, the learned Trial Court has not committed any illegality in convicting the appellant-accused Pancham @ Pachuwa u/s 302 I.P.C. for committing the murder of his wife Smt. Vimla.

Regarding the testimony of Km. Ram Kumari, it was vehemently contended by learned Counsel for the appellant that being the real sister of the deceased, she is interested witness and hence her testimony could not be relied upon to convict the accused. We are not impressed with this contention. It is well settled principle of law that if the testimony of any witness is found worthy of credence, then his/her testimony cannot be discarded on the ground that he/she is related to the deceased or victim.

In the case of Dalip Singh and Others Vs. State of Punjab, , it has been laid down as under by Hon''ble Apex Court:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts.

The above decision has been followed in Guli Chand and Others Vs. State of Rajasthan, , in which Vadivelu Thevar Vs. The State of Madras, was also relied upon.

Again in Masalti Vs. State of U.P., the Hon''ble Apex Court observed thus:

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

The following observations made by Hon''ble Apex Court in Israr v. State of U.P. 2005 (51) ACC 113 in para 12 of the judgement are also worth mentioning:

...Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

The above position has been highlighted again in Galivenkataiah v. State of A.P. LX 2008 ACC 376. in which reference has been made to some other cases also.

Km. Ram Kumari being the inmate of the house where murder of her sister was committed is the natural witness. Her presence at the time of incident is asserted by the complainant Binda also, although for the reasons best known to him, he has resiled from his earlier statement given to the investigating officer during investigation. The testimony of P.W. 5 Ram Kumari inspires confidence. Therefore, her testimony cannot be brushed aside on the ground that she is the real sister of deceased. Had the murder of deceased been committed by some other person, then being the sister-in-law of accused Pancham, she would not have falsely deposed against him, because as held by Hon''ble Apex Court in the case of Israr v. State of U.P. (supra), relatives would not conceal the actual culprit and make allegations against an innocent person. In his statement recorded u/s 313 Cr.P.C., the accused Pancham has not given any sound reason for his false implication. It is only stated by him in answer to question No. 11 of his examination u/s 313 Cr.P.C. that village people were saying to his father-in-law Binda that you provide some job to your son-in-law, but he was not ready to live with his father-in-law and this was the only enmity, due to which he has been falsely implicated in this case. This explanation furnished by the accused regarding enmity is not at all satisfactory. First Information Report regarding murder of his daughter was lodged promptly by the complainant Binda. Had the murder of the daughter of the complainant been committed by some other person, then why he would have falsely implicated his own son-in-law.

The testimony of P.W. 5 Km. Ram Kumari was assailed on the ground of her being the child witness also. It was contended by the learned Counsel for the appellant that the testimony of Km. Ram Kumari could not be made the basis of conviction of the appellant, as she is child witness and oath also was not administered to her before her examination in Trial Court. This contention of the learned Counsel has got no force. In our considered view, there is no legal bar to rely on the unsworn testimony of child witness. Reference in this regard may be made to the case of Paras Ram v. State of Himachal Pradesh XLI 2000 ACC 878 , in which the Hon''ble Apex Court has held that there is no legal bar against relying on the testimony of a child to whom oath could not be administered due to her incapability to understand the meaning of oath, if the Court is satisfied that her evidence is reliable. Even in the case of Dattu Ramrao Sakhare and Others Vs. State of Maharashtra, , on which reliance has been placed by learned Counsel for the appellant also, it has been held by the Hon''ble Apex Court that even in the absence of the oath, the evidence of child witness can be considered u/s 118 of the Evidence Act, provided that such witness is able to understand the questions and able to give rational answers thereof. It is further held by the Hon''ble Apex Court in the case of Dattu Ramrao Sakhare v. State of Maharashtra (supra), that:

...The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record.

In the light of this well settled principle, we find no infirmity or illegality in the impugned judgement, whereby the appellant-accused Pancham has been convicted on the basis of un-sworn testimony of P.W. 5 Km. Ram Kumari, as her testimony finds corroboration from other oral and medical evidence and there is no doubt about her presence in the house where murder of her elder sister was committed.

It was further vehemently contended by the learned Counsel for the appellant that the offence punishable u/s 302 I.P.C. is not made out in this case and even if the prosecution version and the evidence produced in support thereof is accepted to be true on its face value, the case would not travel beyond Section 304 Part (I) or (II) I.P.C, as there was no intention on the part of the accused to cause the death of deceased and since only one blow was given to the deceased, hence second Clause of Section 299 I.P.C. will be applicable in this case. It was also submitted by the learned Counsel that the appellant is entitled to get benefit of Exception 4 to Section 300 I.P.C, as he had caused injury to the deceased without premeditation in sudden fight in heat of passion without taking undue advantage or acting in a cruel or unusual manner. For these submissions, the learned Counsel has placed reliance on the following cases:

(1) Kulesh Mondal v. State of West Bengal 2007(3) JIC 697 SC).

(2) Ramu @ Prabhunath v. State of U.P. 2007(3) JIC 374 .

(3) Shaikh Majid and Anr. v. State of Maharashtra and Ors. JT 2008 (1) (SC) 477. (4) Gali Venkataiah v. State of Andhra Pradesh 2008(1) JIC 276 (SC).

(5) Ramesh Krishna Madhusudan Nayar v. State of Maharashtra 2008 (1) JIC 269(SC).

The learned A.G.A. on the other hand contended that the injury caused to the deceased by the appellant-accused was sufficient in the ordinary course of nature to cause death and hence, the case is squarely covered by third Clause of Section 300 I.P.C. It was further submitted by the learned AGA that the accused is not entitled to get benefit of Exception 4 to Section 300 IPC, as there was no fight in this case and the accused taking undue advantage and without any justification caused instantaneous death of deceased and hence the offence of murder punishable u/s 302 I.P.C. is clearly made out in this case.

Having given our thoughtful consideration to the rival submissions, we are not impressed with the aforesaid contention of the learned Counsel for the appellant. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. A fight suddenly takes place, to which both parties are more or less to be blamed. A fight is a combat between two or more persons with or without weapons. In instant case, there was no fight at all, what to say of sudden fight. The appellant-accused Pancham has nowhere said in his statement recorded u/s 313 Cr.P.C. that any altercation took place between him and his wife and in that sudden fight in the heat of passion, he gave axe blow to the deceased. No such case has been taken-up by the appellant in his defence. From the evidence on record also, it is not revealed that there was any altercation between the appellant-accused and his wife over some matter and in that sudden fight, the accused had given axe blow to the deceased in the heat of passion. The evidence led by the prosecution shows that the appellant-accused taking undue advantage and acting in unusual manner without any justification gave axe blow in the neck of his wife Smt. Vimla with great force thereby causing her instantaneous death. Therefore, Exception 4 to Section 300 IPC is not attracted in this case.

The question of applicability of Exception 4 to Section 300 IPC has been considered recently by the Hon''ble Apex Court in the case of Galivenkataiah v. State of A.P. LX 2008 ACC 370. The following observations made in pare 16 of the judgment are worth mentioning:

The fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men''s sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 306 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".

Keeping in view the aforesaid observations made by the Hon''ble Apex Court and having regard to the facts of this case, we are of the considered opinion, that the appellant-accused Pancham is not entitled to get benefit of Exception 4 to Section 300 IPC, as all the ingredients mentioned in Exception 4 are not found in this case.

Now the question arises as to what offence is made out in this case. Section 299 I.P.C. defines culpable homicide as under:

299 Culpable Homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Murder is defined u/s 300 I.P.C. which reads thus:

300 Murder- Except in the cases 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-....

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-....

Illustration ''C'' to Section 300 IPC is also relevant in this regard, which is as under:

(c) A intentionally gives Z a sword-cut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z''s death.

The post-mortem report(Ext. Ka 15) shows that ante mortem injury No. 1, which was found on the person of deceased Smt. Vimla at the time of post-mortem examination, was incised wound 6.5 cm x 1.5 cm x trachea deep on the neck. The trachea of the deceased was cut through and through. In the post-mortem report itself, it is mentioned that death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem wound on neck, which is sufficient to cause death. In his statement, Dr. M.C. Agarwal (P.W. 7) has stated that the ante-mortem injury No. 1 was sufficient in the ordinary course of nature to cause death. No cross-examination has been made from Dr. Agarwal on this point. Assuming for the sake of argument that the accused had not intended to cause the death of his wife, but he certainly had intended to cause bodily injury to her and since the bodily injury caused by the accused to the deceased was sufficient in the ordinary course of nature to cause death, hence in our considered view, the case is squarely covered by third Clause of Section 300 I.P.C. The blow of axe was given by the accused to the deceased with great force, thereby causing her instantaneous death. Hence, Section 299 I.P.C. will not apply in this case. In this regard, we would like to refer the case of Jai Prakash Vs. State (Delhi Administration), . In that case also, only one blow by axe was given by the accused, which caused instantaneous death of the deceased. The doctor had opined that the injury was sufficient to cause death in the ordinary course of nature. Applying third clause of Section 300 I.P.C., the conviction of the accused u/s 302 I.P.C. was upheld by the Hon''ble Apex Court. It is held in para 10 of the judgement that it is fallacious to contend that when death is caused by a single blow, clause thirdly of Section 300 I.P.C. is not attracted. Reference has been made to the case of Virsa Singh Vs. The State of Punjab, , which has been followed in many other cases. There is no dispute regarding the law laid down in the rulings, on which reliance has been placed by the learned Counsel for the appellant-accused and which we have cited above, but having regard to the aforesaid discussion and keeping in view the nature of the injury caused to the deceased Smt. Vimla by the accused Pancham, in our opinion, the learned Trial Court has rightly convicted him for the offence punishable u/s 302 I.P.C.

Lastly, it was submitted by the learned Counsel for the appellant that direction be issued to the Govt. for premature release of the appellant Panham @ Pachuwa, who has continuously spent more than twenty two years in jail in this case. In our opinion, this Court cannot issue any direction for premature release of any convict. u/s 433 Cr.P.C, the appropriate Government in its discretion in proper cases is empowered to commute the sentence. Since, the appellant-accused Pancham @ Pachuwa has already served more than twenty two years of imprisonment, hence the U.P. Govt. in its discretion may commute his sentence under its power conferred by Section 433, read with Section 433(a) Cr.P.C. The appellant-accused Pancham @ Pachuwa may apply to the U.P. Govt. for his pre-mature release annexing a copy of this judgement, but this Court cannot issue any direction in this regard to the Government.

Before parting with this judgement, we must point out that the learned Trial Court has committed patent illegality in passing the sentence. No fine has been imposed, whereas it is mandatory to impose fine in addition to the substantive sentence of imprisonment for the offence punishable u/s 302 I.P.C., as the language used in Section 302 I.P.C. is, "and shall also be liable to fine". Where the expression used by the legislature in any Section is "and shall also be liable to fine", the Court is under obligation to impose fine also in addition to the substantive sentence of imprisonment. No discretion is left to the Court to levy or not to levy fine and imposition of both imprisonment and fine is imperative in such case, as held by the Hon''ble Apex Court in the case of Zunjarrao Bhikaji Nagarkar Vs. U.O.I. and Others, in which reference has been made to the case of Rajasthan Pharmaceutical Laboratory, Bangalore and Others Vs. State of Karnataka,

In view of the foregoing discussion we come to the conclusion that the prosecution has successfully brought home the guilt against the appellant-accused Pancham @ Pachuwa. Hence, there is no scope to make any interference in Trial Court''s judgement. Since the State of U.P. has not preferred any appeal for enhancement of sentence, hence we are not inclined to enhance the sentence by imposing the fine.

Consequently, the appeal is dismissed. The appellant-accused Pancham @ Pachuwa is undergoing sentence in jail. He shall be kept there to serve out the remaining sentence till his pre-mature release by the U.P. Govt. is allowed.

The office is directed to return the Trial court record expeditiously along with two copies of this judgement for necessary action. One copy of the judgement will be sent by the Trial Court to the appellant-accused Pancham @ Pachuwa in jail.