Jharkhand High Court
Chunda Murmu vs The State Of Jharkhand on 12 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
- 1 -Cr. Appeal (DB) No. 839 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 839 of 2017
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(Against the judgment of conviction dated 17.03.2017 and order of
sentence dated 18.03.2017, passed by learned District & Additional
Sessions Judge-III, Dumka, in Sessions Trial No. 92 of 2012)
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Chunda Murmu, son of Late Muchiya Murmu, resident of vill-
Chirudih, P.O. & P.S. - Dumka, District-Dumka
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Aditya Raman, Advocate (Amicus Curiae)
For the Respondent : Mr. Tarun Kumar, A.P.P.
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C.A.V. on 01/02/2024 Pronounced on 12/02/2024
Per Sujit Narayan Prasad, J.:
1. This appeal has been filed under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction dated 17.03.2017 and order of sentence dated 18.03.2017, passed by learned District & Additional Sessions Judge-III, Dumka, in Sessions Trial No. 92 of 2012,whereby and whereunder the learned trial court has convicted the appellant under Section 302 of the Indian Penal Code and has sentenced to undergo R.I for life under Section 302 IPC and fine of Rs. 20,000/- and in the event of non-payment of fine convict was further directed to undergo SI for additioinal three months.
2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of
- 2 -Cr. Appeal (DB) No. 839 of 2017 institution of prosecution case, which as per the written report of the informant Safid Choukidar is that on 29.10.2011, when the informant was going to his house from his duty from State Bank of India, Gando Branch then the villager of Chirudih village informed him that Chunda Murmu has committed murder of his wife. To verifiy this information, he reached near the Chunda Murmu's house where he saw that many persons were gathered there and dead body of Joba Marandi, wife of Chunda Murmu, was lying on the ground and the blood was oozing out from her head. It is further alleged that on inquiry villagers stated that today at about 2:00 p.m. a quarrel was going on between Chunda Murmu and his wife and Chunda Murmu, who remains in drunken state in whole day and did not do any work and his wife maintained her four children anyhow and she being annoyed from her husband wanted to go her father's house Kolha, Police Station Kathikund then Chunda Murmu has prohibited him and when she did not do so and rigid to go to her father's house then Chunda Murmu picked up a ‗wooden pirha‟ and given blow forcibly on the head of his wife due to which his wife sustained grievous injury and she fell down in injured condition and died.
3. On the basis of the fardbeyan of the informant dated 29.10.2011 Dumka (M) P.S. Case No. 156/2011 was registered for the offence under Section 302 of the Indian
- 3 -Cr. Appeal (DB) No. 839 of 2017 Penal Code against the accused Chunda Murmu and after completion of investigation the Investigating Officer ha submitted charge-sheet under Section 302 of the Indian Penal Code against accused Chunda Murmu. Accordingly, the cognizance for the offence under Section 302 of the Indian Penal Code was taken against accused Chunda Murmu and the case stands committed to the Court of Sessions vide order dated 29.05.2012 by the Court of C.J.M., Dumka.
4. The charge was framed under Section 302 of the Indian Penal Code against named accused person on 27.09.2012 to which he pleaded not guilty and claimed to be tried.
5. During trial, in order to prove its case, the prosecution has examined altogether eleven witnesses, they are PW 1 Md. Safid, (informant of this case), PW 2 Mallick Marandi, PW 3 Mangal Murmu, PW 4 Bateshwar Marandi (hostile), PW 5 Jitu Murmu (hostile), PW 6 Raska Murmu, PW 7 Md. Nijamuddin, PW 8 Md. Mukhtar Ali, PW 9 Parmeshwar Liyangi, (Investigating Officer of this case), PW 10 Dr. Ramesh Prasad Verma (who conducted the postmortem) and PW 11 Manoj Kumar Sharma (formal witness).
6. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused and found the charges levelled against the appellant proved beyond all reasonable
- 4 -Cr. Appeal (DB) No. 839 of 2017 doubts. Accordingly, the appellant had been found guilty and convicted for the offence punishable under Sections 302 of the Indian Penal Code and sentenced to undergo life imprisonment for the said offence, which is subject matter of instant appeal.
7. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court, while convicting the accused person, has committed any illegality or not.
8. Mr. Aditya Raman, learned Amicus Curaie, appearing for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds:
I. That the prosecution has miserably failed to establish the charge said to be proved beyond all reasonable doubt.
II. That the prosecution has also failed to appreciate that it is not a case where any ingredient of Section 302 I.P.C. is attracted.
III. That admittedly, in the case at hand, there is no eye witness to the occurrence and only on the circumstantial evidence the appellant has been convicted in the case.
IV. Further, the investigation in the case at hand has been done in a haphazedly manner and there are many discrepancies and inconsistency in the
- 5 -Cr. Appeal (DB) No. 839 of 2017 testimony of the witnesses but the the learned trial Court did not take into consideration these facts into consdiration while passing the impugned judgment of conviction.
V. Further, the commission of crime cannot be said to
be conclusively proved in absence of any
corroboration by not sending the ‗wooden pirha' (wooden plank), said to be used in commission of crime of assaulting the deceased, to the Forensic Science Laboratory.
VI. The learned counsel for the appellant, based upon the aforesaid ground, has submitted that the impugned judgment suffers from illegality, hence not sustainable in the eyes of law.
VII. Submission has been made that even the prosecution story is taken to be true then also the learned trial court has also failed to appreciate that the commission of crime of murder is only on the basis of the heat of passion in a sudden quarrel between husband and wife over the matter of going to parental house of the wife.
VIII. Therefore, in alternative, it has been argued that even accepting the case of the prosecution to be true, even then, at best this case would fall under Section 304 Part-II of the Indian Penal Code taking into
- 6 -Cr. Appeal (DB) No. 839 of 2017 consideration the fact that in the manner and mode in which the murder is alleged to be committed which is by giving single blow of ‗wooden pirha' on the head, which facts get corroborated by the testimony of doctor.
9. Mr. Tarun Kumar, learned A.P.P. has opposed the grounds agitated on behalf of appellants against the impugned judgment by defending the same stating inter alia that there is no infirmity in the impugned judgment on the following grounds:
I. It is a case where the prosecution has been able to prove the charge beyond all reasonable doubt, since the assault admittedly was inflicted upon the deceased which resulted into death of the deceased.
II. All the prosecution witnesses have conclusively supported the prosecution version, and the version of giving Pirha [wooden plank] blow on the head of the deceased by the appellant has been corroborated by the medical evidence and further the said pirha (wooden plank) was recovered from the place of occurrence as also the appellant was caught hold of at the place of occurrence.
III. The Investigating Officer has corroborated the occurrence by supporting the testimony of the
- 7 -Cr. Appeal (DB) No. 839 of 2017 prosecution witnesses as also the injury inflicted upon the deceased has been corroborated by the medical evidence wherein the Doctor has found the nature of injuries having been caused by hard and blunt substance and the injury has also been found over the dead body of the deceased.
IV. Learned counsel appearing for the State and the informant, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeals are fit to be dismissed.
10. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses as also the finding recorded by learned trial Court.
11. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned trial Court.
12. PW 1 Md. Safid is the informant of this case. He has stated in his examination-in-chief that on 29.10.2011 after completing his duty at S.B.I.,Gando Branch, when he was going to his house on his motorcycle he received an information from village Chirudih on telephone that the wife of Chunda Murmu has been murdered then he went there
- 8 -Cr. Appeal (DB) No. 839 of 2017 and saw the crowd of villagers, where Chunda's wife Joba was laying in injured condition in the courtyard and blood was oozing out from her head. The villagers stated that Chunda has committed her murder by giving 'Pirha' (wooden structure) blows on her head. He has further stated that he informed the police by mobile then Police came and took away the dead body. He has further stated that his statement was recorded by Officer-in-Charge in the village. He has signed on his fardbeyan, which has been marked as Exhibit -
1. He has identified the accused. In his cross-examination, he has stated that many villagers told that Chunda has committed the murder of his wife. This witness has been cross-examined at length.
13. PW 2-Mallick Marandi has stated in his examination-in- chief that the occurrence has taken place 1½ years ago and at that time he was at his home. He has further stated that Mainuddin Ansari has told that Chunda has killed his wife. He has further stated that he was about to go then a child has stated that injured has died. He has further stated that when he reached there he saw that Joba was laying on the ground and blood was oozing out and villagers have tied and kept Chuda and when he asked the Chunda then he stated that he has committed the murder of his wife by giving Pirha blows to her as the deceased was out of her house for two nights for visiting Mela leaving his five children and on query
- 9 -Cr. Appeal (DB) No. 839 of 2017 she started to quarrel and going to Naihar then he prevented her and in anger, he had given 'Pirha' blows to her. He has further stated that Chunda and Joba both were in drunken state then he informed the Choukidar on mobile. He has stated that paper of the dead body was prepared and he has identified his signature on it, which is marked as Exhibit -2. This witness was cross-examined at length.
14. PW 3-Mangal Murmu has stated that the occurrence has taken place in October of the last year. He has further stated that he reached there on hulla and saw that Chunda's wife is lying dead and Pirha is also there and Chunda has been kept tied. He has further stated that the accused had committed murder by giving wooden Pirha blows but he does not know the reason behind it. He has identified the accused. He has stated in his cross-examination that Chunda is his nephew and he has four children who lives with him.
15. PW 4-Bateshwar Marandi has stated in his examination-in-chief that the occurrence has taken place about 3 years ago. He has further stated that the wife of his villager's Chunda Murmu has died but he does not know how and when she died. He has further stated that he was returning from Morbhanga Post Office then police called him and taken his signature on the seizure list. He has identified his signature on the same, which is marked as Exhibit - 3.
- 10 -Cr. Appeal (DB) No. 839 of 2017 This witness has been declared hostile on the prayer of prosecution.
16. PW 5-Jitu Murmu. He has stated in his examination-in- chief that he does not know about the occurrence. This witness has also been declared hostile.
17. PW 6-Raska Murmu has stated in his examination-in- chief that he does know when the incident was taken place. He has further stated tha at the time of occurrence Police has come. He has further stated that on 29.10.2011 Police has seized Pirha (Wooden structure) be smeared with blood and blood stained soil before him from the house of Chunda Murmu. He has identified his signature on seizure list, which is marked as Exhibit - 3/1.
18. PW 7-Md. Nijamuddin has stated in his examination- inchief that the occurrence has taken place on 29.10.2011 and at that time he was posted in Muffasil Police Station, Dumka. He has further stated that he received information in the night by telephone that the occurrence has taken place in the Chunda's house of village Chirudih then he asked what happened then he told that Chunda has killed his wife. Thereafter he reached there in the night and saw that the dead body of the deceased was lying in the veranda (courtyard) of the house and a blood stained Pirha was also lying nearby the dead body and when he asked to the villagers that how she died then villagers told him that
- 11 -Cr. Appeal (DB) No. 839 of 2017 Chunda Murmu has killed her and villagers have kept tied to him with khuta [piece of wooden plank embedded in soil] then he went near Chunda Murmu and asked him then he told that his wife used to go outside in the night and he has to prepare food and due to this anger he killed her.
19. This witness has further stated that thereafter he informed the village Choukidar and called him and later on he also called the Officer-in-Charge of Police Station. He has further stated that Officer-in-Charge of Police Station came at 2:00 p.m. and he handed over the dead body and Chunda Murmu to the Officer-in-Charge. Later on Officer-in-Charge of Police Station has given Kaman to him for the postmortem of the dead body and sent a choukidar along with him where postmortem has done. He has identified the accused person.
20. PW 8-Md. Mukhtar Ali has stated in his examination-in- chief that the occurrence has taken place on 29.10.2011 at about 1:30 p.m. and at that time he was sitting in his veranda of his house. He has further stated that wife of accused brother's Mainu Kisku cried then he reached there and saw that front door was closed and Manuddin Ansari opened the door from the backside then he entered into the room and saw that the dead body was laying near the door and when he touched her he felt that her breath was going on then he arranged the vehicle, in the meantime she died. He has further stated that Mainu Kisku told that accused has
- 12 -Cr. Appeal (DB) No. 839 of 2017 assaulted to deceased by Pirha and blood was oozing out from the ear and the Pirha was laying there. He has further stated that many villagers were gathered there and Chunda Murmu was sitting on the cot at some distance and he has not inquired anything to him. He has further stated that he made the telephonic call to Sardar Ji then he came and Choukidar and Police have also come.
21. PW 9-Parmeshwar Liyangi, is the Investigating Officer of this case. He has stated in his examination-in-chief that on 29.10.2011 he was posted at Dumka(M) Police Station and at 3 p.m. he received the information that in village Chirudih, the appellant-husband has murdered his wife and on that information he recorded the Sanha No. 643 in Police Diary and proceeded for verification alongwith A.S.I. William George Topno and armed force and reached the house of Chunda Murmu of village Chirudih and recorded the fardbeyan of Choukidar No. 9/2 Md. Safid, which is in his pen and signature and also singed by witness Mallick Marandi, Jitu Murmu and Mangal Murmu. He has identified the same, which has been marked as Exhibit - 4. He has further stated that he inspected the place of occurrence. The place of occurrence of this case is south oriented soil - tiled house and its outside also a place of courtyard type, the house of accused Chunda Murmu. He has further stated that he prepared the map of the place ofoccurrence, which is
- 13 -Cr. Appeal (DB) No. 839 of 2017 mentioned at the page- 04 of case diary, marked as Exhibit-5. He has also prepared the Inquest Report before the two independent witness Mallick Marandi and Mangal Marandi, which is signed by both the witnesses and he himself singed on it, which is marked as Exhibit- 6. He has seized the Pirha be smeared with blood and blood stained soil from the place ofoccurrence in presence of two witnesses namely Raska Murmu and BateshwarMurmu, which is signed by witnesses also and its one copy has also given to the accused, which is marked as Exhibit- 7. He has further stated that after preparing the dead body challan of the deceased, he sent the Choukidar No. 9/2 Md. Safid along with dead body of deceased for postmortem to Sadar Hospital, Dumka. He has proved the memo of arrest, which is in his pen and signature, which is marked as Exhibit- 8. He has further stated that he has recorded the defence evidence of accused in which he confessed his guilt and he kept the seized article in police station Malkhana. He has also proved the endorsement on fardbeyan, which is in his pen and signature, which is marked as Exhibit- 9. He has also identified the formal FIR, which is written by Sidh Nath Singh and signed by him which is marked as Exhibit- 10. He has also proved the forwarding letter, which is in his pen and signature which is marked as Exhibit-11. Thereafter, he recorded the statement of witnesses namely Mainu Kisku, Md.Mukhtar Ali, Md.
- 14 -Cr. Appeal (DB) No. 839 of 2017 Nijamuddin Ansari and Raska, who have supported the occurrence and he received the postmortem report of the deceased from the Sadar Hospital, Dumka, which is mentioned in case diary and after receiving the supervision report from the senior officer, he has submitted the charge- sheet No.158/2011 dated 30.11.2011 against the accused Chunda Murmu U/s 302 I.P.C. He has identified the accused present in the Court. In his cross-examination, at paragraph 15 he has testified that no witness has stated to him about witnessing the occurrence.
22. PW 10 is Dr. Ramesh Prasad Verma, who has conducted the postmortem of the dead body of Joba Marandi. He has stated in his examination-in-chief that on 30.10.2011, he was posted as Medical Officer, Sadar Hospital, Dumka and on the same day at 1:50 a.m., he performed the postmortem of the dead body of Joba Marandi, W/o Chunda Murmu, resident ofvillage Chirudih, P.S. Dumka(M), District Dumka, female, aged about 36 years, body was identified by Choukidar 9/02 Md. Safir and he found the following antemortem injuries fond on the body of deceased :-
(I) Lacerated wound right side upper lip.
(II) Diffuse swelling left fronto parietal region.He has further stated that on dissection, there was subcutaneouscollection of blood.
- 15 -Cr. Appeal (DB) No. 839 of 2017 On further dissection, left parietal bone was found fractured.On opening of skull, there was collection of blood in cranial cavity with brainand menages found lacerated. He has further stated that he found the rigormortise present in all four limbs. In his opinion, the death was caused as result of shock and haemorrhage as a result of injury No. (ii). Weapon used by hard and blunt substance and time elapsed since death within 24 hours. He has identified the postmortem report which is in his pen and signature, which ismarked as Exhibit- 12.
23. PW 11-Manoj Kumar Sharma has stated in his examination-in-chief that he produced the seized article of Muffasil P.S. Case No. 156/2011 on the direction of Additional P.P. and in the light of Memo No. 760/16 of the Superintendent of Police, covered in paper which was opened in the Court which is kept in the plastic bag in which there is a wooden Pirha on which M.R. No.18/2011 is mentioned, which is marked as Material Exhibit- I. He has further stated that in the same plastic bag there is blood stain soil kept in the plastic which is marked as Material Exhibit- II. He has brought a letter which is written to Court by Police Inspector Birendra Pd. Singh, which is related for sending the material Exhibit in the Court, which is in the pen and signature of Police Inspector Birendra Pd. Singh, which is identified by
- 16 -Cr. Appeal (DB) No. 839 of 2017 him, marked as Exhibit 13. In his cross-examination, he has stated that he does not know that when Material Exhibit came in Police Station Malkhana. He has further stated that he has no knowledge whether the blood stained soil and Pirha be smeared with blood have been sent for forensic examination or not and he has no knowledge from which place the blood stained soil was collected. He has further stated that blood stained soil is not sealed. He has further stated that the Pirha which he has brought was not kept in box in the Police Station Malkhana rather it was kept covered with paper and on that paper there was no seal and he has no knowledge from where the said Pirha was recovered. He has further stated that he has no personal knowledge about the occurrence.
24. Learned trial court, based upon the testimonies of eye witnesses, referred hereinabove, has passed the judgment of conviction convicting the appellants under Section 302 and 302/34 of Indian Penal Code and directed to undergo R.I. for life.
25. This Court, in order to appreciate the submissions advanced on behalf of appellant with respect to the culpability of the appellant of commission of offence under Section 302 or under Section 304 Part-I or Part-II of the Indian Penal Code vis-à-vis the evidences adduced on behalf of the parties, deems it fit and proper to refer certain judicial
- 17 -Cr. Appeal (DB) No. 839 of 2017 pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II of the Indian Penal Code.
26. The Hon'ble Apex Court has dealt with the aforesaid position of law in the case of Surinder Kumar v. Union Territory, Chandigarh reported in (1989) 2 SCC 217 wherein at paragraph 6 and 7 it has been held as under :
"6. Exception 4 to Section 300 reads as under:
"Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."
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.
In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they
- 18 -Cr. Appeal (DB) No. 839 of 2017 found that the appellant was disinclined to hand over possession of the kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411 IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the fifth rib about 2" below the nipple. It may incidentally be mentioned that the trial court came to the conclusion that the injury found on the neck of PW 2 was a self-inflicted wound and had therefore acquitted the appellant of the charge under Section 307 IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple
- 19 -Cr. Appeal (DB) No. 839 of 2017 injury on his neck. It would be reasonable to infer that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I IPC and direct him to suffer rigorous imprisonment for 7 years.
[Emphasis supplied]
27. In the case of Nankaunoo v. State of Uttar Pradesh reported in (2016) 3 SCC 317 it has been held that the 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, for ready reference paragraph 11 is being quoted and referred hereunder as :-
"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 clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32] , para 12, this Court held as under: (SCC p. 41)
- 20 -Cr. Appeal (DB) No. 839 of 2017 "12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh v. State of Haryana, (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 [Virsa Singh v. State of Punjab, 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.‟ The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. State of Punjab, 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 under 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
- 21 -Cr. Appeal (DB) No. 839 of 2017 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."
28. In the case of Murlidhar Shivram Patekar and Another v. State of Maharashtra reported in (2015) 1 SCC 694 it has been held be Hon'ble Apex Court at paragraph 28 and 29 which reads hereunder as :-
"28. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 to Section 300 IPC. In Surinder Kumar [Surinder Kumar v. UT, Chandigarh, (1989) 2 SCC 217] , this Court has held as under: (SCC p. 220, para 7) ―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
- 22 -Cr. Appeal (DB) No. 839 of 2017 would be entitled to the benefit of this Exception provided he has not acted cruelly.‖ (emphasis supplied)
29. Further, in Arumugam v. State [(2008) 15 SCC 590 at p. 595 : (2009) 3 SCC (Cri) 1130] , 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: (SCC p. 596, para 9) "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"."
[Emphasis supplied]
29. In the case of Surain Singh v. State of Punjab reported in (2017) 5 SCC 796 at paragraph 13 the Hon'ble Apex Court has held which is being referred hereunder as :-
- 23 -Cr. Appeal (DB) No. 839 of 2017
13. Exception 4 to Section 300 IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation 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 reason 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 an 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 could in such cases 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."
30. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382, the Hon'ble Apex Court, while clarifying the distinction between section 299 and 300 of the Indian Penal Code and their consequences, held as under: --
- 24 -Cr. Appeal (DB) No. 839 of 2017 "12. In the scheme of the Penal Code, „culpable homicide‟ is genus and „murder‟ is species. All „murder‟ is „culpable homicide‟ but not vice-versa. Speaking generally, „culpable homicide not amounting to murder‟. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is what may be called „culpable homicide of the first degree‟. This is the greatest form of culpable homicide, which is defined in Section 300 as „murder‟. The second may be termed as „culpable homicide of the second degree‟. This is punishable under the first part of Section 304. Then, there is „culpable homicide of the third degree‟. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.‖ [Emphasis supplied]
31. In Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444, the Hon'ble Apex Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. The Court observed as under :-
―29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the
- 25 -Cr. Appeal (DB) No. 839 of 2017 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 premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."
[Emphasis supplied]
32. Recently the Hon'ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan Vs. State Represented by the Inspector of Police reported in 2023 SCC OnLine SC 857 which are being quoted as under:
"66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:--
- 26 -Cr. Appeal (DB) No. 839 of 2017 (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. ---
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC.
It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is „guilty intention,‟ whereas the second part would apply when there is no such intention, but there is „guilty knowledge‟.
- 27 -Cr. Appeal (DB) No. 839 of 2017 (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression „sufficient in the ordinary course of nature to cause death‟ but is of a lower degree of likelihood which is generally spoken of as an injury „likely to cause death‟ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word „likely‟ means probably and it is distinguished from more „possibly‟. When chances of happening are even or greater than its not happening, we may say that the thing will „probably happen‟. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful
- 28 -Cr. Appeal (DB) No. 839 of 2017 homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
- 29 -Cr. Appeal (DB) No. 839 of 2017 (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.
33. In the backdrop of the aforesaid discussion of proposition of law, this Court in the instant case is to consider following issues :-
(i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code? or
(ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code?
or
(iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof? Or
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(iv) Whether the appellants are entitled for acquittal in absence of cogent evidences?
34. Since all the aforesaid issues are inextricably inter- linked, the same are being decided hereinbelow by considering them together.
35. The law is well settled that for proving the charge under Section 302 of the Indian Penal Code, it is the bounden duty of the Court to consider the ingredients of culpable homicide as provided under Section 299 of the Indian Penal Code amounting to murder as provided under Section 300 IPC and not amounting to murder as provided under Exception 4 to Section 300 of the Indian Penal Code.
36. Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that 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. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act - (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death, ―intent‖ and ―knowledge‖ as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the
- 31 -Cr. Appeal (DB) No. 839 of 2017 special mens rea necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person.
37. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj v. State of Tamil Nadu reported in AIR 1976 SC 1519 has been pleased to held at paragraph 32 & 33 which is being quoted hereunder as :-
"32. For this purpose we have to go to Section 299 which defines "culpable homicide". This offence consists in the doing of an act
(a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is likely to cause death, or
(c) with the knowledge that the act is likely to cause death.
33. As was pointed out by this Court in Anda v. State of Rajasthan [AIR 1966 SC 148 : 1966 Cri LJ 171] x"intent"
and "knowledge" in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person."
38. It is, thus, evident that our legislature has used two different terminologies ‗intent' and ‗knowledge' and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily
- 32 -Cr. Appeal (DB) No. 839 of 2017 injury as is likely to cause death, it would be proper to hold that ‗intent' and ‗knowledge' cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that ‗intent' and ‗knowledge' are the same. ‗Knowledge' will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent.
39. Thus, while defining the offence of culpable homicide and murder, the framers of the Indian Penal laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be
40. The framers of the Indian Penal Code designedly used the two words ‗intention' and ‗knowledge', and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he ―must have been aware that certain specified harmful consequences would or could follow.‖ (Russell on Crime, Twelfth Edition, Volume 1 at page 40).
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41. In view of Section 299 of the Indian Penal Code, the material relied upon by the prosecution for framing of charge under Section 304 Part-II must be at least prima facie indicate that the accused has done an act which has caused death with at least such a knowledge that such act was likely to cause death.
42. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P. reported in (1996) 6 SCC 129 has been pleased to hold as under paragraph 20 which reads hereunder as :-
"20. --- We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that:
"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
- 34 -Cr. Appeal (DB) No. 839 of 2017 he is likely by such act to cause death, commits the offence of culpable homicide."
Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. ---"
43. Section 300 of Indian Penal Code speaks about murder under which it has been stipulated that 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, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 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, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid
44. It is, thus, evident that the punishment under Section 302 of the Indian Penal Code shall not apply if any of the conditions mentioned above, are not fulfilled. This means
- 35 -Cr. Appeal (DB) No. 839 of 2017 that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the Indian Penal Code mentions certain exceptions for offence of murder which are as follows :-
(a) If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won't amount to murder subject to proviso as provided.
(b) When a person under the right of private defence causes the death of the person against whom he has exercised this right without any premeditation and intention.
(c) If a public servant, while discharging his duty and having lawful intention, causes the death of a person.
(d) If it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender' having taken undue advantage or acted in a cruel or unusual manner.
(e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
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45. All these exceptions mentioned above shall come under the purview of Section 304 IPC and will be termed as culpable homicide not amounting to murder.
46. It is, thus, evident the parameters which are to be followed while convicting a person of commission of crime of murder will be different if the murder comes under fold of culpable homicide amounting to murder and it will be different if with the intent to commit murder as per the outside the purview of exception carved out under Section 300 of the Indian Penal Code.
47. In the present case the pleas, inter alia, have been taken on behalf of appellant as also it is the case of the prosecution that it was a sudden quarrel between husband and wife over the matter of going to parental house of the wife. As such first requirement is fulfilled due to heat of passion the husband gave a signle blow of Pirha (wooden plank made for sitting) due to which the deceased-wife died on the spot.
48. The parameters for judging the case have been dealt with by Hon'ble Apex Court in the case of Sayaji Hanmat Baukar v. State of Maharashtra, AIR 2011 SC 3172 whereunder the circumstances of the case has been held that if the act is done without premeditation in a sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then exception 4 will be attracted.
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49. Law is well settled that in order to attract Exception 4 to Section 300 of IPC, four requirements must be satisfied namely :-
(a) It should be sudden fight.
(b) There was no premeditation.
(c) The act was done in a heat of passion
(d) The assailant had not taken any undue advantage or acted in a cruel manner.
50. 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 offence must have taken place in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. If a person in the heat of a moment on a sudden quarrel picks a weapon or any thing which is handy and thereby injuries are caused, one of which proves fatal, he would be entitled to the benefit of this exception 4 to Section 300 of IPC provided he has not acted cruelty. Thus whenever there is a case of sudden fight and conflict, it has to be dealt with under Exception 4 to Section 300 of IPC.
51. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether it is a case under Section 302 or Section 304 Part-I or II by
- 38 -Cr. Appeal (DB) No. 839 of 2017 appreciating the evidences vis-à-vis the provisions of murder or exception 4.
52. PW 1 Md. Safid who is the informant of this case is a hearsay witness. He has deposed that while he was returning from his office [SBI, Gando Branch] by his motorcycle then he received an information from village Chirudih on telephone that the wife of Chunda Murmu has been murdered. Thereafter he went there and saw the crowd of villagers, where Chunda's wife Joba was lying in injured condition in the courtyard and blood was oozing out from her head. They stated that Chunda has committed her murder by giving 'Pirha' (wooden structure) blows on her head. He has further stated that he informed the police by mobile then Police has come and taken away the dead body. In his cross- examination, he has stated that many villagers told that Chunda has committed the murder of his wife.
53. PW 2 is Mallick Marandi. He has stated in his examination-in-chief that Mainuddin Ansari has told that Chunda has assaulted his wife and he is alive. He has further stated that he was about to go then a child has stated that injured has died. He has further stated that when he reached there he saw that Joba was laying on the ground and blood was oozing and villagershave tied and kept Chuda and when he asked the Chunda then he stated that he has committed the murder of his wife by giving Pirha blows to her as the
- 39 -Cr. Appeal (DB) No. 839 of 2017 deceased was out of her house for two nights for visiting Mela leaving his five children and on query she started to quarrel and going to Naihar then he prevented her and in anger, he had given 'Pirha' blows to her. He has further stated that Chunda and Joba both were in drunken state then he informed the Choukidar on mobile.
54. PW 3 -Mangal Murmu has stated that he reached on the place of occurence on hulla and saw that Chunda's wife is laying dead and Pirha is also there and Chunda has kept tied. He has further stated that the accused had committed murder by giving wooden Pirha blows but he does not know the reason behind it.
55. PW 4-Bateshwar Marandi has stated in his examination-in-chief that the wife of his villager's Chunda Murmu has died but he does not know how and when she died. This witness has been declared hostile on the prayer of prosecution.
56. PW 5-Jitu Murmu has stated in his examination-in- chief that the does not know about the occurrence. This witness has been declared hostile.
57. PW 6-Raska Murmu has stated in his examination-in- chief that on 29.10.2011 Police has seized Pirha (Wooden structure) besmeared with blood and blood stained soil before him from the house of Chunda Murmu
- 40 -Cr. Appeal (DB) No. 839 of 2017
58. PW 7-Md. Nijamuddin has stated in his examination-in- chief that the occurrence has taken place on 29.10.2011 and at that time he was posted in Muffasil Police Station, Dumka. He has further stated that he received information in the night by telephone that the occurrence has taken place in the Chunda's house of village Chirudih then he asked what happened then he told that Chunda has killed his wife. Thereafter, he reached there in the night and saw tha the dead body of the deceased was lying in the veranda of the house and a blood stained Pirha was also lying nearby the dead body and when he asked to the villagers that how she died then villagers told him that Chunda Murmu has killed her and villagers have kept tied to him with khuta then he went near Chunda Murmu and asked him then he told that his wife used to go outside in the night and he has to prepare food and due to this anger he killed her. This witness has further stated that thereafter he informed the village Choukidar and called him and later on he also called the Officer-in-Charge of Police Station.
59. PW 8-Md. Mukhtar Ali has stated in his examination-in- chief that the occurrence has taken place on 29.10.2011 and at that time he was sitting in his veranda of his house. He has further stated that wife of accused brother's Mainu Kisku cried then he reached there and saw that front door was closed and Manuddin Ansari opened the door from the back
- 41 -Cr. Appeal (DB) No. 839 of 2017 side then he entered into the room and saw that the dead body was laying near the door and when he touched her and felt that her breath was going on then he arranged the vehicle, in the meantime she died. He has further stated that Mainu Kisku told that accused has assaulted to deceased by Pirha and blood was oozing out from the ear and the Pirha was laying there. He has further stated that many villagers were gathered there and Chunda Murmu was sitting on the cot at some distance and he has not inquired anything to him. He has further stated tha he made the telephonic call to Sardar Ji then he came and Choukidar and Police has also come.
60. PW 9 -Parmeshwar Liyangi, is the Investigating Officer of this case. He has stated in his examination-in-chief that on 29.10.2011 he was posted atDumka (M) Police Station and at 3 p.m. he received the information that in village Chirudih, accused-husband has murdered his wife and on that information he reached the house of Chunda Murmu of village Chirudih and recorded the fardbeyan of Choukidar - Md. Safid. He has further stated that he inspected the place of occurrence. He has further stated that he prepared the map of the place of occurrence, which is mentioned at the page- 04 of case diary, marked as Exhibit-5. He has seized the Pirha besmeared with blood and blood stained soil from the place of occurrence.
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61. PW 10 is Dr. Ramesh Prasad Verma, who has conducted the postmortem of the dead body of Joba Marandi whereupon he found the following ante morteminjuries found on the body of deceased :-(I) Lacerated wound right side upper lip.(II) Diffuse swelling left fronto parietal region.He has further stated that on dissection, there was subcutaneous collection of blood. In his opinion, the death was caused as result of shock and haemorrhage as a result of injury No. (ii). Weapon used by hardand blunt substance.
62. PW 11 is Manoj Kumar Sharma, who is a formal witness.
63. This Court, on the basis of the discussion made hereinabove of the prosecution witnesses, has found that the learned trial court has considered the testimony of PW-1, PW- 2, PW-7 and P.W. 8 wherein the prosecution version has been supported by them. P.W. 9, the investigating officer has deposed that he received the information that the appellant has murdered his wife and on that information he reached the place of occurrence and recorded the fardbeyan of Choukidar -Md. Safid and also seized the Pirha besmeared with blood and blood stained soil from the place of occurrence. He has further stated that he has recorded the defence evidence of accused in which he confessed his guilt. Likewise, P.W. 2 has also stated that when he asked the appellant-Chunda then he stated that he has committed the
- 43 -Cr. Appeal (DB) No. 839 of 2017 murder of his wife by giving Pirha blows to her as the deceased was out of her house for two nights for visiting Mela leaving his five children and on query she started to quarrel and going to Naihar then he prevented her and in anger, he had given 'Pirha' blows to her. P.W. 2 has further stated that both the appellant-husband and deceased-wife was in drunken state. P.W. 7 has deposed in the same manner and has deposed that went near Chunda Murmu and asked him then he told that his wife used to go outside in the night and he has to prepare food and due to this anger he killed her. But in the statement recorded under Section 313 Cr.P.C, the appellant has denied to have commited the commission of crime. P.W. 10, the doctor, has supported the prosecution version has opined that death was caused as result of shock and haemorrhage as a result of injury No. (ii) and the weapon used by hardand blunt substance.
64. In the light of the aforesaid fact, now it is to be apprreciated as to whether the case is coming under Exception 4 to Section 300 of the Indian Penal Code.
65. Admittedly, in order to invoke this exception, four ingredients must be satisfied, i.e., - (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.
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66. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat [(2003) 9 SCC 322, it has been observed by the Hon'ble Apex Court as under :-
"The Fourth Exception of 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 reason 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'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
- 45 -Cr. Appeal (DB) No. 839 of 2017 found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the 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 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'.
67. This Court, on the basis of the factual aspect as discussed hereinabove as also after taking into consideration the law laid down by Hon'ble Apex Court in the case of Surinder Kumar v. Union Territory, Chandigarh (Supra), Nankaunoo v. State of Uttar Pradesh (Supra), Murlidhar Shivram Patekar and Another v. State of Maharashtra (Supra) and Surain Singh v. State of Punjab (Supra) and other aforesaid judicial pronouncement wherein the difference has been carved out in between the culpable homicide amounting to murder and culpable homicide not amounting to murder, rebutting back to the facts of the given case, is proceeding to examine the fact of the given case.
68. In the instant case from perusal of the testimonies of the witnesses it is noticed that though none of the witnesses
- 46 -Cr. Appeal (DB) No. 839 of 2017 examined by the prosecution are eye-witnesses but they have deposed that on the fateful day, a quarrel was going on between Chunda Murmu and his wife and Chunda Murmu, who alleged to have remained in drunken state in whole day and did not do any work and his wife maintained her four children anyhow and she being annoyed from her husband, she wanted to go her father's house then Chunda Murmu prohibited him and when she did not do so and rigid to go to her father's house then Chunda Murmu picked up a wooden pirha and given blow forcibly on the head of his wife due to which her wifes ustained grievous injury and she fell down in injured condition and died.
69. At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused assume importance in respect of genesis and manner of occurrence.
70. Thus considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that due to quarrel between the husband and wife on the issue of going to parental house of wife, the appellant-husband, who was in drunken condition picked up a wooden pirha and given blow on the head of his wife due to which her wife sustained grievous injury and she fell down in injured condition and died. Admittedly the act of
- 47 -Cr. Appeal (DB) No. 839 of 2017 giving blow upon the head by wodden pirha was not premeditation, it was happed, in a sudden fight, in the heat of passion because of sudden quarrel and further it has come in the testimony of witnesses supported by medical evidence that only one blow was given on fatal part of head, which shows no cruelty was committed upon the deceased.
71. In the backdrop the aforesaid discussion and the judicial pronouncement and the evidence of prosecution witnesses and also taking into consideration the facts and circumstances of the instant case we are of the view that since the assault made by the appellant was not a premeditated and also there was no intention and further the appellant had not taken any undue advantage or acted in a cruel manner, which fact is proved by the oral evidence adduced by the witnesses as also by the doctor, this Court is of the view that the case of present appellant comes under Exception 4 to Section 300 IPC but the learned trial court has come to the finding by considering the case to be a case of commission of murder and hence has convicted the appellants under Section 302 of the Indian Penal Code but, while doing so, learned trial court has not appreciated the fact about the applicability of the exception as under
exception 4 of Section 300 of I.P.C.
72. This Court, therefore, is of the view that the learned trial court while convicting the appellants for commission of
- 48 -Cr. Appeal (DB) No. 839 of 2017 offence under Section 302 of the Indian Penal Code, has committed error by ignoring all these facts as recorded in the preceding paragraphs.
73. Accordingly, we are of the view that the judgment impugned convicting the appellantsunder Section 302 I.P.C. needs to be interfered with by modifying it to that of conviction of the appellant under Section 304 Part-II of the Indian Penal Code.
74. Consequently, the judgment passed by the learned trial court is modified and appellant - Chunda Murmu is held guilty under Section 304 Part II I.P.C. and sentenced him to undergo rigorous imprisonment for nine years.
75. It transpires from the record that appellant has remained in jail since 29.10.2011 i.e, for more than twelve years and, as such, the appellant has already served the sentence and therefore, is directed to be released forthwith from the jail custody, if not wanted in any other case.
76. In view of the discussions made, hereinabove, judgment of conviction dated 17.03.2017 and order of sentence dated 18.03.2017 passed by learned District & Additional Sessions Judge-III, Dumka, in Sessions Trial No. 92 of 2012 is, modified to the aforesaid extent.
77. Accordingly, the instant appeal stands disposed of with the aforesaid modification in the judgment of conviction and order of sentence.
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78. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
I Agree (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, Ranchi Dated: Ranchi 12/02/2024 Alankar / A.F.R.