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Judgment
S.K. Gangele, J.
Appellant has filed this appeal against the judgment dated 16/12/2008 passed in Sessions Trial No. 28/2008. Appellant was prosecuted for
commission of offence of murder of his wife. Trial court held appellant guilty for the aforesaid offence and awarded sentence of life and three years
and fine of Rs. 500/-in default another three months imprisonment.
Prosecution story in brief is that the appellant used to smoke cannabis (ganja). Deceased wife was not happy with the habit of appellant. She
advised him not to smoke cannabis (ganja). On the date of incident i.e. on 29/11/2007 at around 1 O’clock in the night, deceased told the appellant
not to smoke cannabis (ganja). On the aforesaid act, appellant got annoyed with the deceased. He had taken out a wooden stick which was burning in
fireplace and inflicted a blow on the head of the deceased, due to which the deceased was died. PW/6 lodged FIR at the police station, police
registered offence and conducted investigation. After investigation charge-sheet was filed against the appellant. Appellant abjured his guilt during trial
and pleaded innocence. The trial court held the appellant guilty and awarded the sentence as mentioned above.
Learned counsel appearing on behalf of the appellant has submitted that even if the prosecution evidence be accepted, the act of the appellant
would be covered under Section 304 Part-I of IPC. The trial court has committed an error in convicting the appellant for commission of offence
punishable under Section 302 of IPC. In support of her contention learned counsel relied on the judgments of Hon’ble Supreme Court in the case
of Nankaunoo Vs. State of Uttar Pradesh (2016) 3 SCC 317 and Arjun and another Vs. State of Chhattisgarh (2017) 3 SCC 247.
Learned counsel for the State has submitted that the appellant had inflicted sufficient blow on the head of the deceased. She was wife of the
appellant. Deceased died on the spot, hence, the trial court has rightly convicted the appellant for offence of murder and awarded proper sentence.
There are two eye witnesses in the case PW/5 and PW/7.
PW/5 Phuljhariya Bai is the mother of the deceased. She deposed that the appellant used to smoke cannabis (ganja) and drink liquor. Wife-
deceased was working as a labourer. Deceased came to my house five to six months before because the appellant was not doing any job, thereafter,
appellant also came to live with us. On the date of incident the appellant his children and deceased had taken food. There was a fireplace because it
was time of winter. Appellant had inflicted a blow of burning wooden stick on the head of the deceased, she was crying. I wake up after hearing cry.
Appellant had also hit Rinku, thereafter he ran away from the spot. Other persons came on the spot and Sarpanch also came on the spot, thereafter
deceased died.
PW/7 Rinku, is son of the deceased. He deposed that appellant used to smoke cannabis (ganja). My mother-deceased used to work. She advised
appellant not to smoke cannabis (ganja). There happened to be quarrel on this ground between my mother and the appellant. On the date of incident
all the family members had taken meal and they were sleeping near fireplace. At around 1 O’clock my mother told the appellant not to smoke
cannabis (ganja). On this ground appellant had taken out a burning stick from fireplace and inflicted a blow at temporal side of the deceased. He had
inflicted another blow which had hit my head. Thereafter he ran away from the spot. I went to the house of my Mama and told the incident. My
mama (maternal uncle) called Sarpanch and lodged report in the morning.
PW/6 Amir Sai. Who lodged report, deposed that Rinku came to my house and thereafter, I went to the house of the deceased, I noticed that
deceased was unconscious. There was injury on her head. Family members told me that appellant had inflicted injury at the deceased. Thereafter, I
called Sarpanch and on the next day in the morning I informed the police. Merg was registered which is Ex. P/10 I signed the same. Spot map was
also prepared which is Ex. P/11. A wooden stick was seized from the spot. There are other witnesses who deposed that son and mother of the
deceased told that appellant had inflicted a blow on the head of the deceased.
PW/10 Arvind Tiwari, I.O. deposed that Amir Sai lodged oral report at the police station that appellant had killed the deceased. Merg Ex. P/10 was
registered, I signed the same. Thereafter, I went at the place of incident and recorded statements of witnesses and prepared spot map. Plain and red
earth from the spot and a wooden stick were seized vide seizure memo Ex. P/16. Appellant was arrested.
PW/2 Dr. Mohan Singh, performed postmortem of the deceased. He deposed that blood was oozing from both nostrils of the deceased. There
was lacerated wound on left parietal area 8x2.5 cm. I noticed that there was a fracture of left parietal bone. The deceased died due to injury caused
on the head. The injury was caused by hard and blunt object. There is no specific cross examination of the witnesses.
PW/5 and PW/7 are the eye witnesses of the incident. They are natural witnesses because they were present at the place of incident which was
the house of the deceased. Although they are related witnesses but their presence at the place of incident is natural, hence, in our opinion, the trial
court had rightly placed reliance on the evidence of aforesaid witnesses.
The Hon’ble Supreme court in the case of Nankaunoo Vs. State of Uttar Pradesh (2016) 3 SCC 317 has held as under in regard to difference
between motive and intention.
“11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the
offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there
was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of
nature to cause death. Considering the clause thirdly of Section 300 IPC and reiterating the principles in Virsa Singh’s case, in Jai Prakash v.
State (Delhi Administration) (1991) 2 SCC 32, para (12), this Court held as under:-
“12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus: (SCC p. 620, para 7)
“7. These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465 for the
applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law.â€
The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding
principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient
in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or
unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an
intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of
nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that
particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction
from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be
established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and
invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of
injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is
accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences
should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences
would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared
to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing
to achieve a particular end.â€
The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency
is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and
causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the
body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases,
the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact,
taken place. â€
Ocular evidence corroborates from the medical evidence, hence, in our opinion, the trial court has rightly held that due to the injury caused by the
appellant to the deceased she died.
Now the next question is this what offence appellant has committed. Son of the appellant PW/7 has specifically deposed that deceased advised the
appellant not to smoke cannabis (ganja). On that ground appellant had taken out burning wooden stick from fireplace and inflicted a blow on temporal
region of the deceased. Doctor PW/2 who performed postmortem of the deceased also deposed that he noticed one injury on parietal region of the
deceased. There was a fracture. The cause of death of the deceased was of aforesaid injury. The appellant was not armed. In a sudden provocation
he inflicted injury. He did not cause any injury.
The Apex Court in the case of Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247 has further held as under that whether the offence
is murder or it would fall under exception 4 of Section 300 of IPC.
“19. The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the
evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in
altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view,
falls under exception (4) of Section 300 IPC.
To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of
Chandigarh (1989) 2 SCC 217, it has been explained as under:-
“7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was
done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not
relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive
factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of
course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the
moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided
he has not acted cruelly…………..â€
Further in the case of Arumugam vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of the proposition of
law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:-
“9. …….“18.The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the
offender’s 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
300 IPC is not defined in the Penal Code, 1860. 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 had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat
between two and 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’.â€
The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that
have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation.
Injuries as reflected in the post-mortem report also suggest that appellants have not taken “undue advantage†or acted in a cruel manner.
Therefore, in the fact situation, Â exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants
are entitled to the benefit under Section 300 exception (4) IPC. â€
From the evidence of the eye witnesses, it is proved that the incident had happened all of a sudden and there was no premeditation. The act was done
in a heat of passion and appellant had not taken any undue advantage. Hence, in our opinion, the act of the appellant would fall under exception (4) of
Section 300 of IPC and the appellant is liable to be punished under Section 304 Part I of the IPC.
Consequently, the appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial court is hereby set-aside. The
appellant is convicted for commission of offence punishable under Section 304 Part I of IPC and he is awarded sentence of RI ten years and fine of
Rs. 1,000/- in default another six months RI. Appellant is in jail since 30/11/2007, he has already completed jail sentence awarded by this Court, hence,
he be released forthwith if he is not required in any other case.