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Judgment
Ravindra Kumar Agrawal, J
The Appellant stands convicted to life imprisonment under Section 302 IPC with fine of Rs.1000/-, in the event of failure to pay which he was required to undergo further one year rigorous imprisonment for the murder of his wife Injoriya Bai, as ordered by the Second Additional Sessions Judge, Manendragarh, in Sessions Trial No. 69 of 2018 on 02.08.2023.
Brief facts of the case is that, on 18.04.2018 at about 10:45 am the complainant Satish Kumar, PW-1 has given a merg intimation Ex.P/1 to the police that on 17.04.2018 at about 10 o’clock in the night his father and mother had gone outside of the house. His two sisters Savitri and Gayatri were inside the house. In the night when he came to his house and found that the house was locked from outside, he broke open the lock and entered into the house asked about his parents then his sister replied that both of them went outside. In the morning his father came back to the house and informed them that his mother has died and asked him to inform to his grandparents. On being asked from him, he disclosed that his deadbody is lying at Dabri. When he went on the spot, he saw the deadbody and thereafter he informed to his grandfather and village Sarpanch and when he asked from his father, he replied that he killed his wife by throwing a stone on her head and also replied that he suspected the fidelity of his wife and therefore he committed his murder. Thereafter, the police reached on the spot and prepared inquest of the deadbody in presence of the witnesses vide Ex.P/6; sent the deadbody for postmortem to Community Health Centre, Janakpur, District Korea where PW-15, Dr. R.K. Raman has conducted postmortem of the body and gave his report Ex.P/20. While conducting postmortem the doctor has observed following injuries over her body-
▪ “A deadbody of female lying on postmortem table on supine position. Rigor mortise mild present B/L UL&LL. Pupil dilated fixed B/L. Tongue inside the mouth. Muds present all over the body.
▪ Lacerated would over right parietal region just above forehead # of parietal bone 2cm triangular with swelling.
▪ 4x2 cm abrasion over forehead. 3X2cm abrasion Lt. Clavicle region. 3X2cm abrasion at the junction shoulder to humerous joint. 3x2cm abrasion on Lt. upper cheek, 2x2 left eye lid. 8X2 cm on lower back, 3x2cm abrasion buttock right, 6x4 cm Lt buttock.
▪ Lacerated would over lower parts of vagina, fresh blood clots present.”
The doctor has noticed haematoma present on right parietal skull and opined that cause of death is shock due to head injury and time elapsed since death is 12-36 hours. Spot map Ex. P/3 was prepared by the police. FIR Ex. P/2 was registered for the offence under Section 302 IPC against the appellant. Patwari has also prepared spot map Ex.P/10. On 19.04.2018 the memorandum statement of the appellant was recorded vide Ex.P/12 and on his instance the stone by which he allegedly killed his wife has been seized vide Ex.P/15. Blood stained soil and plain soil of nearby house of Jaibali, Sari of deceased and bloodstained soil and plain soil of nearby place where the deadbody was found was seized vide Ex.P/13. T-shirt and Lungi of the appellant has also been seized vide Ex.P/14. The appellant was arrested on 19.04.2018. Seized articles were sent for FSL examination to the regional FSL Surguja place Amibkapur vide Ex.P/25 and a report Ex.P/26 was received from there, according to which, the blood was found on the bloodstained soil, Sari of the deceased, Shirt and Lungi of the appellant, stone, and Blouse and Petticoat of the deceased which identified to be the human blood and the bloodstained soil seized from the nearby house of Jaibali, bloodstains soil seized from the place of deadbody, shirt and Lungi of the appellant and stone were found to be blood of AB group.
After recording statements of the witnesses under Section 161 CrPC and after completion of investigation the police has filed charge sheet before the Judicial Magistrate First Class Janakpur under Section 302 IPC against the appellant for commission of offence of murder of his wife Injoriya Bai. The appellant abjured his guilt and claimed trial.
In order to establish the charge against the appellant, the prosecution has examined 22 witnesses. The statement under Section 313 CrPC of the appellant has been recorded in which he denied the material appears against him and plead innocence and submitted that he has been falsely implicated in the case.
After appreciating the evidence available on record, the learned trial Court has convicted the appellant and sentenced him as mentioned in para 1 of this judgment. Hence, this appeal.
Learned counsel for the appellant would submit that the appellant is innocence and has been falsely implicated in the case. There is no eyewitness in the case. The deadbody was found outside of his house and therefore burden cannot be shifted upon him to explain as to how his wife has been found dead in an unnatural circumstance. Merely on the basis of evidence that bloodstain has been found on the clothes of the appellant he cannot be convicted because there is every possibility that while taking the deadbody of the deceased, the blood may have came in contact of the clothes of the appellant. The deceased was also in a state of heavy drunken condition and she fell down on the stone and thereby she received injuries on her head and died. In alternative, he would submit that there was no intention to kill his wife and on the grave and sudden provocation when he was taking his wife to his house, she received injuries and died, which does not travel beyond the offence of Section 304 IPC and he may be sentenced for the period already undergone by him alter altering his conviction from the offence under Section 302 IPC to one under Section 304 Part-II IPC.
On the other hand, the counsel for the State vehemently opposes the arguments advanced by the counsel for the appellant and would submit that the appellant was with the deceased at the relevant point of time which were seen by the witnesses that they were quarreling in the night and in the morning the deadbody of the deceased was found. Therefore it is for the appellant to explain how she received the injuries over her head in which he failed to explain and therefore he has been rightly convicted by the trial court. Consuming liquor does not absolve the appellant from the offence. Although there is no eye-witness to the incident, yet there are sufficient evidence on record to hold the appellant guilty for commission of murder of his wife. Including the FSL report in which AB blood group is found on the bloodstained soil seized near the place where deadbody was found, as also in the shirt and Lungi of the appellant and the stone by which the injuries over the body of the deceased is said to have been caused, which unerringly pointed towards the guilt of the appellant and therefore the impugned judgment needs no interference.
We have heard learned counsel for the parties and perused the records.
So far as homicidal death of the deceased is concerned, in the inquest Ex.P/6 it was found that deadbody of the deceased was lying near Dabri situated about a distance of 100 meter from the Panchayat building at village Kamarji and the witnesses have noticed the injuries over the body, particularly the head injury and blood was oozing out from her body. PW-15, Dr. RK Raman has conducted postmortem of the deadbody and found the injuries over her body particularly in her head and found fracture of her parietal bone and haematoma was also present on the right parietal region of skull of the deceased. The doctor has opined that cause of death is shock due to head injury. Although the doctor could not specifically stated that the nature of death is homicidal in nature, but in view of the injuries found on the body of the deceased as noticed by the doctor at the time of postmortem would clearly spells that the deceased died due to the injuries which is homicidal in nature.
There is no challenge from the appellant side by giving suggestions to the doctor that the deceased died naturally or her death is not due to the injuries, and therefore, this court is of the opinion that death of the deceased is homicidal.
So far as involvement of the appellant in crime in question is concerned, we have carefully examined the evidence available on record. PW1, Satish Kumar, who is son of the deceased as well as appellant, has stated in his deposition that on 18.04.2018 he was in the house along with his sisters. In the morning his father informed him that his mother has died and her deadbody is lying at Dabri. When he went to Dabri, he saw the deadbody of his mother and various persons were gathered there where his father has informed him that he was taking his mother by dragging. He has lodged a merg intimation Ex.P/1 and FIR Ex.P/2. Spot map Ex.P/3 was prepared in his presence. After declaring him hostile, he has stated that on 17.04.2018, his mother Injoriya Bai, father (appellant) and two sisters Savitri and Gayatri were in the house and he along with his younger brother Shiv Kumar had gone to village Paahi and returned from there in the night at about 10 o’clock. When he returned back, he found the door was locked from outside. When he broke open the lock and entered inside the house, he found that his sisters were sleeping and his parents were not in the house. Since her sisters were sleeping, after taking dinner they also went to sleep. In the morning his father informed him about death of his mother and he went to Dabri where he saw her deadbody. He denied the fact of informing the village Sarpanch about the incident by him and also denied by giving any information by his father to him regarding the incident. He denied giving his 161 CrPC statement to the police. In cross examination, he has stated that his father has not given any information to Shankar Lal and there is no conversation in between them before him. The merg intimation and FIR has not been read over to him and he does not know what has been written in those documents and at the instance of the police he has signed those documents.
PW-2, Sukhan Sai, who is the father of the appellant, has stated in his deposition that his grandson Satish has informed him about the incident and also informed that the deadbody of his mother is lying at Dabri and thereafter he went to the spot, he saw the deadbody of Injoriya Bai. This witness also declared hostile and denied all the incident which has been informed to him either by his grandson Satish or by his son Rupral (appellant). He also denied giving statement to the police under Section 161 CrPC.
PW-3, Shankar Lal, who is a villager, has stated in his statement that at the time of incident when he was in the house, the Panchayat chowkidar Managu Ram have informed him that the appellant has committed murder of his wife Injoriya Bai and asked to inform the Sarpanch. This witness is the Husband of Sarpanch Indravati. Thereafter, he went to the spot along with Managu Ram where the appellant was also present and he confessed before him that he committed murder of his wife. When he saw the deadbody of the deceased, he went to the vicinity to inform other persons and also informed the police station by telephone and thereafter had taken the son of deceased to the police station for lodging a report. In cross examination, this witness has admitted that he is not an eyewitness to the incident and stated that on information being given by Managu Ram he came to spot. He admitted that he has not inquired anything from the family members of Jirjodhan, PW-7. He has further stated that the appellant has confessed before him that he has committed murder of his wife and then he went to the house of Jirjodhan. The appellant met him nearby the house of Jirjodhan and going to the place of incident from the house of Jirjodhan, it would take 25 minutes. He has voluntarily stated that when he asked from the appellant as to why he committed murder of his wife, he informed him that he was in drunken condition and quarrel ensued between them and therefore he hit her by stone.
PW-4, Managu, Kotwar of village, is also not an eye-witness to the incident. He has stated that the appellant came to him and informed that his wife has died near pond and then he went to the Sarpanch, informed him the incident whatever informed by the appellant before him and then all of them came to the place where deadbody of deceased was lying. The police already reached there and started investigation. After declaring him hostile, this witness has also denied giving his 161 CrPC statement before the police.
PW-5, Ramprasad, is also declared hostile and have not disclosed any material against the appellant. PW-6, Jaibali is also a villager and have stated that he was being informed by the villagers that the appellant has committed murder of his wife. He is witness of inquest Ex.P/5 & P/6 and also spot map Ex.P/11. He too was declared hostile. After declaring him hostile, he had denied that his wife Premkali has informed him that in the night at about 11 o’clock the appellant and the deceased had came to their house. Further denied that they were asking for liquor and drinking liquor in his courtyard. He also denied that the appellant has beaten the deceased by hand and fist and his brother Tejbali and Rambali had intervened and send them to their house. No any incriminating material has been brought by the prosecution from the evidence of this witness.
PW-7, Jirjodhan also turned hostile and have not supported the case of the prosecution. PW-8, Narmadiya, have stated in her deposition that on the date of incident, on being heard noise of quarrel when she came out from her house, she saw that the appellant was assaulting his wife. When she tried to intervene, the appellant told her not to advise him and thereafter she called her sons Rambali and Tejbali to intervene in the quarrel between them and then her sons send the appellant and deceased towards their house. In the morning she came to know that the appellant has committed murder of his wife near Dabri. In cross examination, this witness has admitted that there was no electricity either in her house or in front of her house on the road at the time of incident. She further admits that there was no visibility in the night after sun set on the road. She further admits that when she came out from her house after hearing the noise of quarrel, she could not identify the persons who was making the noise. She further admits that thereafter she went inside her house to call her sons and after sometime the persons who were quarreling had went away. She admits that there was rumor in the village that the appellant has committed murder of his wife and therefore she came into knowledge about the incident.
PW-9, Mahipal Singh, is the witness of memorandum, Ex.P/12 seizure Ex.P/13, Ex.P/14 and Ex.P/15. He too has been declared hostile and has not supported the case of the prosecution.
PW-10, Harilal, is also witness of memorandum Ex.P/12, Seizure Ex.P/13&P/14. This witness has submitted that the police has inquired from the appellant and then he disclosed that he has committed murder of his wife and on the basis of his disclosure statement the stone has been seized from the appellant vide Ex.P/15. In cross examination he has stated that he has not given any statement to the police. When he got information about death of the deceased, he proceeded towards the place of occurrence and on the way the appellant met with him and the appellant has informed to him about the incident. When they reach on the spot, after sometime the police came there. In paragraph 9 of his deposition he admits that the appellant has not stated anything before the police in his presence. He further admits that at the time of signing the documents Ex.P/13, P/14 and P/15 it was not filled up and was blank.
PW-11, Premkali, is also a villager. She has stated in her deposition that on the date of incident the appellant and the deceased came to her house in the night and asked about her Husband Jaibali. Thereafter, the appellant asked her for liquor, but she denied to give them liquor. She stated that both of them were already in drunken condition and after staying for sometime, they went towards the road and she went for asleep. In the morning she came to know that the appellant has committed murder of his wife. She denied in cross-examination that she could not identify the persons who came there in the night and states that they were the appellant and the deceased.
PW-12, Rambali, is also a villager who has stated in his deposition that on the date of incident when he was in his house, in the night, his mother woke him up and asked to intervene in the quarrel which was going on between the appellant and the deceased and then he intervened and send them towards their house. In the morning he came to know that the appellant has committed murder of his wife. PW-13, Tejbali is also the witness as PW-12 Rambali is and he has stated whatever PW-12 has stated.
PW-14, Umesh Kumar Shrivastava is the Patwari who has prepared the spot map Ex.P/10.
PW-16, Ku. Gayatri is the daughter of deceased as well as the appellant. She has stated in her deposition that on the date of incident she, her elder sister Savitri and her brother Satish were in the house and went to sleep in the night. Her parents had gone towards the house of Jaibali after locking the house from outside. In the next morning her sister Savitri woke up and then she saw that the house was locked from outside and thereafter her brother Satish came inside the house from the door of back side to the front door and broke up the lock. After sometime her father came alone and informed to his elder daughter that her mother has died and taken them towards the house of Jaibali and when they reached on the spot they saw the deadbody of her mother. On the way when she asked from her father as to how her mother died, then her father informed her that he committed murder. Thereafter, the police has taken her deadbody. This witness has also stated that her mother and father had gone to the house of Tejbali for drinking liquor, but what happened there, she could not know. Although this witness has been cross-examined elaborately, but she remains firmed in saying that on the date of incident her parents had gone outside of house after locking the door from outside and what happened in between them, she could not know.
PW-17, Sukhlal, who is the father of the deceased is also a hearsay witness and he deposed whatever he came into knowledge by the son and daughter of the deceased or by the villagers. He has stated that he saw the deadbody and found injuries over her body. PW-18, Indraso Bai, the mother of the deceased, have also stated like PW-17, her husband says. She is also not a witness of any incriminating material against the appellant.
PW-21, Savitri, is another daughter of the appellant and deceased. She has stated that on the date of incident she was sleeping in her house, her brother was not in the house in the night, her parents used to drink liquor. On the date of incident her parents asked her to remain asleep and they are going to the house of Jaibali and went outside the house. For the whole night they did not return back. In the next morning when she was going to collect Mahua seeds to Jungle, on the way, her father met her and they returned to their house where her father informed her that he committed murder of her mother and her deadbody is lying at Dabri. When they came to Dabri, she saw the deadbody of her mother. After declaring her hostile, she has stated that after drinking liquor at home her father has taken her mother also for drinking liquor. Her mother was not willing to go with him, but on the instance of her father that he will provide fresh liquor in the house of Tejbali he had taken her with him. In cross examination this witness has admitted that she was being informed about death of her mother by her brother Satish. She has further admitted that her father has not disclosed anything to her.
PW-22, RS Paikra, is the investigating officer who has stated whatever he conducted investigation.
From the evidence of prosecution witnesses it appears that in the night the appellant and the deceased came out from her house when their children were sleeping; went to the house of Jaibali for drinking liquor; quarrel ensued between the appellant and his deceased wife near the house of Jaibali and the sons of Jaibali have intervened in their quarrel and send them back and thereafter in the morning the appellant alone returned back to his house and informed the incident to his son and daughters and also the villagers that he committed murder of his wife near Dabri. On the instance of the appellant, his bloodstained clothes and stone were seized in which AB blood group was found that has been matched with the blood found on the soil on the place where the deadbody was lying that too was stained with blood of AB group. Thus, the involvement of the appellant in crime in question was proved by the prosecution. The appellant has failed to give explanation as to how the deceased died in the condition on which her deadbody was found that too by head injury including fracture of head bone. Although the doctor who has conducted the postmortem of the body of the deceased had admitted in paragraph 10 of his deposition that the injuries received by the deceased on her head could have been received by her by falling on the stone in a drunken state. He further admits that the other injuries found on the body of the deceased could also have been received by her when she falls twice and thrice on the drunken state, but no liquor was noticed on the intestine/stomach of the deceased at the time of conducting postmortem by the doctor. Therefore, the admission made by the doctor that the injuries could have been received by the deceased by falling in the drunken state is insignificant.
From the aforesaid discussion, the involvement of the appellant in crime in question has been established that he was with the deceased at the relevant point of time and has caused injuries on the head of the deceased on account of which she died.
Now the question again arises is as to what offence the appellant has committed. Whether the act of the appellant comes under the definition of murder or one under the culpable homicide not amounting to murder?
The Supreme Court in the matter of Sukhbir Singh v. State of Haryana (2002) 3 SCC 327 has observed as under:-
“21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further rigorous imprisonment for one year.”
The Supreme Court in the matter of Gurmukh Singh v. State of Haryana (2009) 15 SCC 635 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :-
“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under :
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident.
Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.”
Likewise, in the matter of State v. Sanjeev Nanda (2012) 8 SCC 450, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.
The Supreme Court in the matter of Arjun v. State of Chhattisgarh (2017) 3 SCC 247 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :-
“20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained 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 its I 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.”
Further in Arumugam v. State [(2008) 15 SCC 590 : (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 or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”.
In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC.
There is no any eye-witness to the incident. It has been stated by the daughter of the appellant PW-16, Gayatri, that on the date of incident her mother and father had gone to the house of Tejbali for drinking liquor. The another daughter of the appellant and deceased PW-21, Savitri have stated in her deposition that her mother and father were used to drink liquor and on the fateful night they went to the house of Jaibali. She has further admitted that her parents were in drunken condition even thereafter her father has taken her mother for drinking more liquor. When her mother refused to go, the appellant insisted her to go as he will provide fresh liquor in the house of Tejbali and thereafter both of them went to the house of Tejbali.
PW-11, Premkali, has deposed that on the fateful night the appellant as well as the deceased came to her house in the night. They asked for liquor. Both of them were already in drunken condition. They stayed there for sometime and thereafter went away. PW-8, Narmadiya have stated in her deposition that on the date of incident in the night the appellant and the deceased were quarreling outside her house and she sent her sons to intervene between them and thereafter they went away from that place.
All the evidences forced us to draw inference that the appellant was in heavy drunken condition; went to the house of Jaibali for drinking more liquor where the appellant quarreled with his wife and in the morning the deadbody of the deceased was lying at Dabri. Had he been intended to commit murder of his wife, he would have repeatedly assaulted with stone on her head or other parts of the deceased, but the deceased had received head injuries including fracture which is said to have been caused by the stone. The appellant has not assaulted the deceased in a cruel or unusual manner. In a drunken state of mind they were quarreling and thereafter she was being hit by a stone which was lying there.
Considering the entirety of the facts and circumstances of the case, as also the evidence available on record, the manner of assault, the weapon of assault used which is a stone which was lying there, and also the law laid down by Hon’ble Supreme Court in above mentioned judgments, it emerges as plausible and possible story that out of sudden quarrel and sudden fight the appellant without any premeditation, much less intention to cause death, assaulted his wife with the said stone. Therefore, it is difficult to hold that it is a planned murder under these circumstances particularly when there is no motive for any assault, however the intention is said to have been happened all of sudden. Therefore, in our considered opinion, the criminal overt act of the appellant would only amount to culpable homicide, not amounting to murder by application of exception 4 of Section 300 IPC.
Since we find that there was no intention with which it could be attributed that the appellant had any premeditation to kill his wife, the appellant is liable to be convicted only under Section 304 (Part-II) IPC.
In the result, the appeal is partly allowed. The conviction of the appellant under Section 302 IPC is altered to one under Section 304 (Part-II) IPC and he is sentenced to undergo RI for seven years with fine of Rs.1000/-, in default of payment of fine, further RI for one month. The appellant is reported to be in jail since 19.04.2018. He be given benefit of the period for which he has already undergone during trial as well as after his conviction, as provided under Section 428 CrPC and the benefit of set off be given to him.
Keeping in view the provisions of section 437-A of Cr.P.C., the appellant is directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of some of Rs. 25,000/- with two reliable sureties in the like amount before the court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of special leave petition against the instant judgement or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.
The lower court records along with a copy of this judgment be sent back immediately to the trial court, concerned for compliance and necessary action.