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Paul vs The State Of Kerala on 21 January, 2020

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.38 of 2020
PAUL … APPELLANT

VERSUS

STATE OF KERALA … RESPONDENT

J U D G M E N T

K.M. JOSEPH, J.

1. By the impugned judgment the High court has

affirmed the Judgment of the learned Principal Sessions

Judge, Ernakulam convicting the appellant under section

302 of the Indian Penal Code (for short “IPC”) and

sentencing him to rigorous imprisonment for life and a

fine of Rs.10,000/-.

2. The deceased was the wife of the appellant.

3. The appellant and his mother were charge-sheeted

under Sections 498-A and 302 read with Section 34 of
Signature Not Verified

Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2020.01.21

the IPC alleging cruelty and for causing the death of
16:40:55 IST
Reason:

the appellant’s wife. By order dated 18.2.2005, the
1
accused were acquitted. Thereafter, the mother of the

appellant expired. A Division Bench of the Kerala

High Court vide judgment dated 29/03/2012 however,

allowed the criminal appeal filed by the State against

acquittal and set aside the acquittal insofar as it

related to the appellant and the matter was remanded

back with a direction to dispose of the case by

continuing proceedings from the stage of examination

under Section 313 Cr.PC. It is after the remand that

the Principal Sessions Judge, Ernakulam, convicted the

appellant under Section 302 of the IPC as we have

already noted. The High Court by the impugned judgment

has concurred with the view taken by the trial Court.

4. We heard Mr. Renjith B. Marar, learned counsel for

the appellant and learned counsel appearing on behalf

of the respondent. Notice was issued in the SLP

noticing that the counsel for the appellant has

confined the submission to the plea of alteration of

the conviction under Section 302 of the IPC to under

Section 304 Part-II of the IPC. Learned counsel for

the appellant would point out that this is a case where

the deceased though conceived a child there was an

2
abortion. She had depression. The appellant was given

to drink on the fateful night. According to the

prosecution case there was a quarrel. He would point

out that though it is true that the appellant may have

set up a case that his wife has committed suicide that

should not detract the court from considering the case

as per law. Expatiating he contended that appellant

must be extended the benefit of exception 4 to Section

300 of the IPC which declares that culpable homicide

is not murder if it is committed in a sudden fight

without their being pre-meditation and in the heat of

passion upon a sudden quarrel without the offender

taking undue advantage and acting in a cruel and

unusual manner. The explanation to Exception 4 to

Section 300 undoubtedly provides that it is immaterial

in such a case which party offers the provocation or

commits the first assault. Learned counsel would point

out that according to the prosecution version,

appellant in fact, on that evening went to the house

of PW 7 to PW9 with whom he had drinks. The deceased

went there on account of his drinks. He had to be

3
supported back home by the wife. He relied on the

following judgments:

(1) 1976(2) SCC 798 Par tap v. State of Uttar Pradesh

(2) 1996 (6) SCC 457 Periasami and Another v. State
of Tamil Nadu

(3) 1998(4) SCC 336 State of U.P. v. Lakhmi

He would also submit that the Court has found that the

appellant has suffered injuries. This strengthened the

appellant’s case based on their being a quarrel and

therefore this is a fit case where the conviction must

be altered from Section 302 of the IPC to Section 304

Part II of the IPC. He points out that the court has

acquitted him of the charge under Section 498A which

means there was no matrimonial cruelty practised by the

appellant on his late wife.

5. Per contra, the learned counsel for the

respondent-State strenuously supported the order of the

High Court. He would point out that this is a clear

case of murder by throttling.

4
PROSECUTION CASE

6. The appellant married Jessy on 31.8.1997. Ever

since marriage, it is the case of the prosecution that

Jessy was being subjected to physical and mental

cruelty in the hands of appellant and his mother. On

11.10.1998, the fateful day, the mother of the

appellant created scene at their home. Being

depressed, the deceased due to unbearable harassment,

left the home in search of her husband and found him

consuming liquor with his friends. The appellant

assaulted his wife in front of them. Thereafter, on

the same night at about 11.00 p.m., the appellant

throttled her to death.

21 witnesses were examined on the side of the

prosecution. P-1 to P-18 were the documents which were

marked. C-1 is the chemical analysis report. In the

judgment rendered by the High Court in the first round

of litigation where the trial court had acquitted the

appellant and his mother, the Division Bench of the

High Court noticed that all the occupants of the

matrimonial home of the deceased turned hostile. PW2

to PW6, PW12 and PW14 are the brothers and sisters-in-

5
law of the appellant. PW7 to PW9 were the neighbours.

These witnesses turned hostile. PW1, the brother of

the deceased and PW 10, the mother of the deceased

undoubtedly abided by the prosecution version. The

appellate Court noted that the appellant did not deny

the fact that he and his wife were available in the bed

room in the night. He did not take up any definite

stand as to how the injuries were sustained by the

deceased. At this point of time, it is apposite to

refer to the injuries. The following are the ante-

mortem injuries which are noted in Exh.P9 post-mortem

certificate which stood proved by PW16, Dr. Siva Sudan:

“1. Contusion 3x3x0.5 cm on the forehead
in midline, 4 cm above the root of nose.

2. Abrasion 1×0.2cm vertical on left
side of face, 3cm on front of lobule of
left ear.

3. Abrasion 0.8 cm x 0.3 cm almost
horizontal on right side of neck, 2.5
cm to right of midline and 2.5 cm below
the jaw bone. Underneath the sterno
thyroid muscle was found bruised over
on area 2×1.5 cm. The right superior
horn of thyroid cartilage was found
fractured with infiltration of blood
around.

4. Abrasion 1.5×0.2 cm almost vertical
on front of right lower chest, 24 cm

6
below the right collar bone and 8 cm to
right of midline.

5. Contusion 2.5x2x0.5 cm on outer
aspect of left arm, 8cm below the tip
of shoulder.

6. Abrasion 1×0.2 cm on the back of
inner aspect of left elbow.

7. Contusion 1.5×1.5x2cm on the back of
right forearm 15 cm above the elbow.

8. Arc like healing abrasion 3×0.1 cm
on front of chest with its convexity
towards right side, 10 cm below the
right collar bone and 1 cm to right of
midline (coveted with easily removable
black scab)”

7. Resuming the narrative, the High Court in the

earlier round found that appellant toed the line taken

in the convenient statements of PW2 and PW 3 which were

contrary to their case diary statements that the

deceased has committed suicide by hanging. It was

noted further by the High court that when the evidence

of the PW2 and PW3 was put to him he agreed with the

statement that the deceased has committed suicide. The

judgment further reveals that the High Court found that

a proper examination under Section 313 Cr.PC had not

been conducted by the Sessions Judge. It is

accordingly that the judgment setting aside the
7
acquittal was made. The High Court also directed that

the trial Judge must pointedly consider the play of

Section 106 of the Evidence Act. The Sessions Judge

was directed to dispose of the matter by continuing

proceeding afresh from the stage of 313 Cr.PC.

examination of the accused.

8. We may further notice that when the Principal

Sessions Judge took up the matter after remand, he has

entered the following findings inter alia. It was found

that the death was an immediate result of the blunt

force applied on the neck of the deceased. The learned

Judge went on to find that a case under Section 498A

was not made out. The appellant and the deceased-wife

were living in a separate bed room. PW1 noted marks

of physical violence on the body of the deceased. PW1,

in his chief examination deposed that the brother of

the appellant and two others informed that his sister

was hospitalised due to sore throat. Later he was

informed that she died due to hanging. He has testified

that he saw swelling on the forehead, contused abrasion

on the left cheek of his sister apart from marks of

8
throttling on the neck and nail marks on those regions.

It was found by the learned Judge that there was no

cross examination of these aspects by PW1. The court

proceeded to question the appellant under Section 313

Cr.PC. He made a written statement. He maintained

that he was innocent. He and his wife were living a

happy marital life. His wife had dejection and

objection about his drinking habit. She was desperate

for not having a child. The Court finds an admission

by the appellant that on 11.10.1998 PW7 to PW9 and

himself consumed liquor at the house of PW7. At about

7.00 pm his wife came there in search of him and he

went with her. His version that he was heavily drunk

and it was his wife who fully supported him and he was

finding it difficult to walk under the influence of

alcohol. He admitted to having a separate bed room.

An altercation between his mother and his wife is

noticed. Since he was under intoxication he could not

separate the two. His mother beat him and he sustained

injuries on lips. He fell fast asleep. In the early

morning he got up for urinating and at that time only

he saw the deceased hanging by a shawl tied to the

9
railings in the window and on his crying PW 2 and 3

came to his room. They untied the shawl and the body

of Jessy was laid on the bed. This version was noted

by the learned Principal Sessions Judge to be a new

version and not made at the time of the original

questioning under Section 313 Cr.PC or in the cross

examination of the prosecution witnesses. The learned

Judge went on to notice the swelling on the middle of

the forehead, abrasion on the left cheek given in the

inquest report. Nail clippings and blood samples was

taken from the dead body. Nail clippings was also

collected from the appellant. According to the

appellant blood in nail clippings was on account of an

attempt by the deceased and the appellant to untie the

noose around her neck. However the court noted that

PW14 doctor has mentioned that the once ligature has

fastened firmly around her neck, the victim would

become unconscious and he or she would not be able to

lift his/her upper limbs to loosen the ligature. The

Court further noted that in the written statement under

313 Cr.PC given after remand, it was stated that PW1

and PW3, brothers of appellant, untied the shawl

10
alleged to have been used by the deceased for

committing suicide. PW15 also testifies that if the

victim scratches the assaultor, blood and part of skin

would be present underneath his nail clippings. The

version sought to be introduced in the written

statement after remand by the appellant that there was

a fight between his mother and his wife on the date of

occurrence when he was also assaulted by his mother,

was found to be an embellished version and

unacceptable. The Court also noticed that the incident

happened in the bed room of the appellant and that too

during night and there was no other person in the room.

Therefore, the appellant had a responsibility under

Section 106 of the Evidence Act. The appellant was

found as having committed murder by throttling and the

theory of suicide was found unacceptable. The High

Court also noted the case of the appellant that his

wife committed suicide at 1.30 a.m. by hanging on the

window grill of their room. The High Court agreed that

only hypothesis possible was homicide by the appellant.

11
ANALYSIS

9. We can safely conclude on the basis of the material

and findings which has been rendered by the courts

concurrently that the case of suicide set up by the

appellant was a completely false plea. It is clear as

day light that the appellant caused the death of his

wife by throttling. We have already noticed the

injuries. Apart from injuries to the neck, we noticed

contusion on the forehead in the midline, upon the mid

of the nose, an abrasion on the left side of the face

(the cheek). There is contusion on the outer aspect

of the left arm and there is an abrasion on the back

of the inner aspect of left elbow, contusion on the

back of the right forearm. This is apart from injuries

2 and 3 which clearly has been appreciated as

indicating death by throttling.

10. In Partap v. State of Uttar Pradesh 1976 (2) SCC

798, there was an exchange of hot words between two

persons in regard to water. The dispute escalated and

a state of acrimony was attained. A gun was fired.

The victim of the gun shot injury lost his life. The

plea of the appellant was that deceased was about to

12
strike him with the balla and he fired a shot in self

defence. Justice M.H. Beg wrote a concurring judgment

agreeing with Justice R.S. Sarkaria that the appellant

had established a case that he has acted in his self

defence and held as follows:

“30. The question which arises in this
case is: Even if the defence version is
not held to be fully established by a
balance of probabilities, were there not
sufficient pointers in evidence of what
was probably the truth which leaked out
from some statements of the prosecution
witnesses themselves? They had indicated
the bellicose and threatening attitude of
Ram Nath while he was advancing. Did this
not tend to corroborate the defence
version that he was actually advancing
menacingly armed with a bhala poised for
an attack with it when he was shot at?

31. It was held in the case of Rishi Kesh
Singh by a majority of a Full Bench of
nine Judges of the Allahabad High Court
explaining and relying upon the decisions
of this Court discussed there (at p. 51):

“The accused person who pleads an exception
is entitled to be acquitted if upon a
consideration of the evidence as a whole
(including the evidence given in support of
the plea of the general exception) a
reasonable doubt is created in the mind of
the Court about the guilt of the accused.”

13
In that case, the result of a
consideration of the decision of this
Court in relation to the provisions of
Section 105 of the Evidence Act was summed
up by me as follows (at pages 97-98):

“… an accused’s plea of an exception may
reach one of three not sharply demarcated
stages, one succeeding the other, depending
upon the effect of the whole evidence in the
case judged by the standard of a prudent man
weighing or balancing probabilities
carefully. These stages are: firstly, a
lifting of the initial obligatory
presumption given at the end of Section 105
of the Act; secondly, the creation of a
reasonable doubt about the existence of an
ingredient of the offence; and thirdly a
complete proof of the exception by ‘a
preponderance of probability’, which covers
even a slight tilt of the balance of
probability in favour of the accused’s plea.

The accused is not entitled to an acquittal
if his plea does not get beyond the first
stage. At the second stage, he becomes
entitled to acquittal by obtaining a bare
benefit of doubt. At the third stage, he is
undoubtedly entitled to an acquittal. This,
in my opinion, is the effect of the majority
view in Parbhoo’s case which directly
relates to first two stages only. The Supreme
Court decisions have considered the last two
stages so far, but first stage has not yet
been dealt with directly or separately there
in any case brought to our notice.”

32. Provisions of Section 105 of the
Evidence Act, which are applicable in
such cases, contain what are really two
kinds of burden of the accused who sets
up an exception: “firstly, there is the
onus laid down of proving the existence
of circumstances

bringing the case within any of the General
Exceptions in the Penal Code, 1860, or, within
any special exception or proviso contained in

14
any other part of the same Code, or in any law
defining the offence,”

and, secondly, there is the burden of
introducing or showing evidence which
results from the last part of the
provision which says that “the Court
shall presume the absence of such
circumstances”. The effect of this
obligatory presumption at the end of
Section 105 of the Evidence Act is that
the Court must start by assuming that no
facts exist which could be taken into
consideration for considering the plea of
self-defence as an exception to the
criminal liability which would otherwise
be there. But, when both sides have led
evidence of their respective versions,
the accused can show, from any evidence
on the record, whether tendered by the
prosecution or the defence, that the
mandatory presumption is removed. The
last mentioned burden is not really a
burden of establishing the plea fully but
of either introducing or of showing the
existence of some evidence to justify the
taking up of the plea. The burden
resulting from the obligatory presumption
is not difficult to discharge and its
removal may not be enough for an
acquittal.”

11. In Periasami and Another v. State of T.N.; 1996

(6) SCC 457, accused, two in number, were alleged to

have attacked the deceased. Though the Sessions Judge

acquitted the accused, the High Court convicted the two

appellants under Section 302 read with Section 34 IPC

and another accused under Section 324 IPC. This Court
15
found that the injuries were caused by the appellant

with lethal weapons. Dealing with the contention that

offence would not be above 304 Part I, the Court noted

that though the right of private defence was not set

up under Section 313 Cr.PC., absence of such a plea

would not stand in the way of the defence based on the

exception being set up was the contention taken by the

appellant. The Court noted as follows:

“17. While dealing with the said
alternative contention we have to bear in
mind Section 105 of the Evidence Act,
1872. A rule of burden of proof is
prescribed therein that the burden is on
the accused to prove the existence of
circumstances bringing the case within
any of the exceptions “and the Court shall
presume the absence of such
circumstances”. The said rule does not
whittle down the axiomatic rule of burden
(indicated in Section 101) that the
prosecution must prove that the accused
has committed the offence charged
against. The traditional rule that it is
for prosecution to prove the offence
beyond reasonable doubt applies in all
criminal cases except where any
particular statute prescribes otherwise.
The legal presumption created in Section
105 with the words “the Court shall
presume the absence of such
circumstances” is not intended to
displace the aforesaid traditional burden
of the prosecution. It is only where the
prosecution has proved its case with
16
reasonable certainty that the court can
rest on the presumption regarding absence
of circumstances bringing the case within
any of the exceptions. This presumption
helps the court to determine on whom is
the burden to prove facts necessary to
attract the exception and an accused can
discharge the burden by “preponderance of
probabilities” unlike the prosecution.
But there is no presumption that an
accused is the aggressor in every case of
homicide. If there is any reasonable
doubt, even from the prosecution
evidence, that the aggressor in the
occurrence was not the accused but would
have been the deceased party, then
benefit of that reasonable doubt has to
be extended to the accused, no matter he
did not adduce any evidence in that
direction.

18. The above legal position has been
succinctly stated by Subbarao, J. (as he
then was) in a case where an accused
pleaded the exception under Section 84
IPC (Dahyabhai Chhaganbhai
Thakkar v. State of Gujarat [AIR 1964 SC
1563 : (1964) 2 Cri LJ 472]):

“The prosecution, therefore, in a case
of homicide shall prove beyond
reasonable doubt that the accused
caused death with the requisite
intention described in Section 299 of
the Penal Code, 1860. This general
burden never shifts and it always
rests on the prosecution. … If the
material placed before the court, such
as, oral and documentary evidence,
presumptions, admissions or even the
prosecution evidence, satisfies the
test of ‘prudent man’ the accused will
have discharged his burden. The
evidence so placed may not be

17
sufficient to discharge the burden
under Section 105 of the Evidence Act,
but it may raise a reasonable doubt in
the mind of a Judge as regards one or
other of the necessary ingredients of
the offence itself.”

20. Keeping the above legal position in
mind, we scrutinised the evidence to
ascertain whether the deceased could have
been the aggressor. Neither PW 1 nor PW 2
could say how the occurrence started. The
possibility that before they reached the
place, some events would have already
taken place cannot be ruled out. PW 1 and
PW 2 overheard the squeal of a pig. They
also overheard the sound of a quarrel.
When they reached the scene they saw the
carcass of a slain pig lying nearby. The
motive suggested by the prosecution was
sufficient for the deceased as well to
entertain animus towards the second
appellant. Further, both sides would have
confronted with each other on that
morning abruptly without any prior
knowledge or inkling that the deceased
might go to the plantain grove at the
crucial time for answering the call of
nature.”
(emphasis supplied)

12. The Court found that the circumstances were more

than enough to install a reasonable doubt that the

accused would have picked up a quarrel with the second

appellant and other events followed and on this basis

18
they were held liable for culpable homicide not

amounting to murder.

13. In State of U.P. v. Lakhmi; 1998(4) SCC 336 the

case involved death of the respondent’s wife.

Respondent and the deceased had two children. The

prosecution case was that there were intermittent

skirmishes between the couple. The wife accused the

appellant of dissipating his money on account of having

drinks. During the early hours of the fateful day, it

is further alleged that the respondent inflicted blows

on the head of the deceased, smashed her skull leading

to instant death. The trial Court convicted the

respondent but High Court acquitted him. We may notice

paragraph 8. It reads as under:

“8. As a legal proposition we cannot agree
with the High Court that statement of an
accused recorded under Section 313 of the
Code does not deserve any value or utility
if it contains inculpatory admissions.

The need of law for examining the accused
with reference to incriminating
circumstances appearing against him in
prosecution evidence is not for
observance of a ritual in a trial, nor is
it a mere formality. It has a salutary
purpose. It enables the court to be
apprised of what the indicted person has
to say about the circumstances pitted
against him by the prosecution. Answers
to the questions may sometimes be flat
19
denial or outright repudiation of those
circumstances. In certain cases the
accused would offer some explanations to
incriminative circumstances. In very rare
instances the accused may even admit or
own incriminating circumstances adduced
against him, perhaps for the purpose of
adopting legally recognised defences. In
all such cases the court gets the
advantage of knowing his version about
those aspects and it helps the court to
effectively appreciate and evaluate the
evidence in the case. If an accused admits
any incriminating circumstance appearing
in evidence against him there is no
warrant that those admissions should
altogether be ignored merely on the
ground that such admissions were advanced
as a defence strategy.”

(emphasis supplied)

14. We, therefore, have no hesitation in holding that

a statement made by the accused under Section 313 Cr.PC

even it contains inculpatory admissions cannot be

ignored and the Court may where there is evidence

available proceed to enter a verdict of guilt. In the

aforesaid case he specifically stated that he murdered

his wife with a Kunda and not with Phali. The Court

noted further that there was no merit in the defence

sought to be set up under Section 84 of the penal code.

However, the Court noted as follows:

20

16. …..However, we have noticed that the
accused had adopted another alternative
defence which has been suggested during
cross-examination of prosecution
witnesses i.e. his wife and PW 2 (Ramey)
were together on the bed during the early
hours of the date of occurrence. If that
suggestion deserves consideration we have
to turn to the question whether the
benefit of Exception I to Section 300 of
the IPC should be extended to him?

17. The law is that burden of proving such
an exception is on the accused. But the
mere fact that the accused adopted
another alternative defence during his
examination under Section 313 of the IPC
without referring to Exception I of
Section 300 of IPC is not enough to deny
him of the benefit of the exception, if
the Court can cull out materials from
evidence pointing to the existence of
circumstances leading to that exception.
It is not the law that failure to set up
such a defence would foreclose the right
to rely on the exception once and for all.
It is axiomatic that burden on the accused
to prove any fact can be discharged either
through defence evidence or even through
prosecution evidence by showing a
preponderance of probability.

18. In the above context, we deem it
useful to ascertain what possibly would
have prompted the accused to kill his
wife. The prosecution case as noted
above, is that the accused was not well-
disposed to his wife as she was always
speaking against his drinking habits. We
are inclined to think that, while
considering the manner in which he had

21
suddenly pounced upon his young wife who
bore two children to him and smashed her
head during the early hours, he would have
had some other strong cause which
probably would have taken place within a
short time prior to the murder. Certain
broad features looming large in evidence
help us in that line of thinking.”

15. The Court went on to hold on analysing the evidence

that the features show that the appellant had seen

something lascivious between his wife and PW2. This

led the Court to find that the respondent was entitled

to benefit of Exception I to Section 300 IPC and the

respondent was convicted under Section 304 Part I of

IPC.

16. There can be no quarrel with the principles which

have been laid down. Principles of law however cannot

be appreciated or applied irrespective of the facts

obtaining in a particular case. There can be no doubt

that the burden to prove that the case is made out in

a particular case is on the prosecution unless the law

declares otherwise. To be murder within the meaning

of Section 302 undoubtedly, the offence must be

culpable homicide. In order that it is culpable

22
homicide it must fall under Section 299 of the IPC but

all acts which amount to culpable homicide do not

constitute murder.

17. There can be no doubt that the burden of proving

that the case fall within the four corners of any of

the exceptions under Section 300 of the IPC is on the

accused. It is equally true that even without adducing

any defence evidence it may be possible for the accused

to discharge the said burden with reference to material

appearing by virtue of the prosecution evidence which

includes the cross examination of prosecution

witnesses. The test is one of preponderance of

probability.

18. The fact that a false case is set up by itself may

not deprive an accused of the right to establish the

fact that the case against him would still be embraced

within any of the exceptions under Section 300 IPC.

The law does not taboo adopting of the alternate pleas.

Ultimately, the question would fall to be decided, no

doubt, on the basis of appreciation of evidence and the

requirements of law flowing from the particular

23
provision of law. The accused may also be entitled to

the benefit of reasonable doubt.

19. Applying the principles, let us examine the facts

of this case. It is true, no doubt, evidence was

tendered by PW2 and PW3, who it may be noted are the

brothers of the appellant, that the wife of the

appellant committed suicide. In the original 313

questioning the appellant also took the stand that it

is a case of suicide. After the matter was remanded,

in the 313 statement the appellant continued to

persevere with the stand and set up the case that he

was beaten up by his mother following a quarrel between

her and his wife and then he fell fast asleep. When

he got up for urination in the early morning he saw the

deceased hanging. He has categorically stated that PW2

and PW3 came, untied the shawl used by her for

committing suicide. It was accepting the plea of the

appellant that the High Court in the earlier round had

found that he had not been questioned under Section 313

Cr.PC in regard to circumstances which were addressed

by the prosecution as evidence of his complicity. The

24
case which is sought to be set up before us revolves

around the applicability of exception 4 to Section 3000

IPC which involves inter alia a sudden fight following

a quarrel. What is conspicuous by its absence is a

plea despite the opportunity he had of indicating about

any such quarrel between him and his wife. The case

sought to be set up was though is that he was heavily

drunk: He was at the residence of PW7: The quarrel

ensued between his mother and his wife: She-(deceased)

came to the residence of PW7: She has escorted him

back. He was beaten by his mother when they reached

home following a quarrel between the mother-in-law and

daughter-in-law; He fell fast asleep.

20. The evidence including the medical evidence is

clear and has been correctly appreciated by two courts.

It leads to the only irresistible inference that it was

not a case of suicide but an unambiguous case of

homicide. The death was caused by throttling.

Appellant and his wife were occupying a separate bed

room. There is reference to the nail clippings

25
containing blood. The attempt at explaining the same

has been correctly dispelled by the trial court.

21. There is a case for the appellant that there were

injuries on the appellant. It is to be noted that when

there is throttling unless the victim is asleep or

unconscious there would be resistance. Injuries on the

aggressor are not uncommon. In this case we have also

noted the injuries on other parts of body apart from

the neck. They indicate acts of violence by the

aggressor. In this case we are not even called upon

to pronounce on where there is anybody else who would

be the aggressor. It is the appellant and appellant

alone who can be attributed with the acts which

resulted in the death of his wife.

22. Valiant attempt is made by Mr. Renjith B. Marar,

learned counsel for the appellant to bring the case

within the scope of Section 304 Part-I. He emphasised

that proceeding that it is culpable homicide and that

he had the intention also to cause the death of his

wife, it could still be brought under Section 304 Part-

26
I as the Legislature expressly declares that be it a

culpable homicide, it is not the inexorable opening of

the doors to an offence under Section 302 IPC but it

could despite the intention to cause death being

present, be culpable homicide not amounting to murder.

23. In this regard, it must be noticed that the

prosecution case about there being a quarrel is about

the mother of the appellant creating a scene on

11.10.1998 compelling the deceased to leave home and

search her husband out. There is also mention about

ill treatment given by the appellant to his wife in

front of his friends and it is thereafter in the night

the act of the appellant throttling her took place. We

are unable to see how exception I to Section 300 IPC

which is also pressed into service by the learned

counsel for the appellant apply. Exception I requires

deprivation of power of control by the accused by

virtue of grave and sudden provocation. The grave and

sudden provocation must be given by the deceased. No

doubt, if death is caused of any other person by virtue

of the sudden provocation, by mistake or accident,

27
exception I may apply. Nothing is brought out before

us in the evidence to even faintly establish the giving

of any provocation leave alone a grave and sudden

provocation. Equally, there is no such case

undoubtedly set up in the written statement under 313

Cr.PC even after the remand.

24. The case of exception 4 is no different in our view

in its inapplicability to the facts. There is no

material for us to come to the conclusion that there

occurred a sudden quarrel leading to a sudden fight

going by the version furnished by the appellant in his

written statement under 313 Cr.PC which statement also

recites that he fell fast asleep. Till such time there

is no hint even of any sudden fight or sudden quarrel.

It must also be appreciated that under Section 106 of

the Evidence Act facts within the exclusive knowledge

of the appellant as to what transpired within the

privacy of their bed room even must be established by

the appellant. The fact that appellant went about

setting up of a palpably false case even at the late

stage of filing the written statement under 313 after

28
remand trying to attribute death by hanging by his wife

falsely.

25. We may no doubt notice Section 86 of the IPC.

Section 86 reads as follows:

“86. Offence requiring a particular
intent or knowledge committed by one who
is intoxicated.—In cases where an act
done is not an offence unless done with a
particular knowledge or intent, a person
who does the act in a state of
intoxication shall be liable to be dealt
with as if he had the same knowledge as
he would have had if he had not been
intoxicated, unless the thing which
intoxicated him was administered to him
without his knowledge or against his
will.”

26. Section 86 of the IPC enunciates presumption that

despite intoxication which is not covered by the last

limb of the provision, the accused person cannot ward

off the consequences of his act. A dimension however

about intoxication may be noted. Section 86 begins by

referring to an act which is not an offence unless done

with a particular knowledge or intent. Thereafter, the

law giver refers to a person committing the act in a

state of intoxication. It finally attributes to him

knowledge as he would have if he were not under the

29
state of intoxication except undoubtedly, in cases

where the intoxicant was administered to him either

against his will or without his knowledge. What about

an act which becomes an offence if it is done with a

specific intention by a person who is under the state

of intoxication? Section 86 does not attribute

intention as such to an intoxicated man committing an

act which amounts to an offence when the act is done

by a person harbouring a particular intention. This

question has engaged the attention of this Court in the

decision in Basdev v. State of Pepsu AIR 1956 SC 488.

In the said case the appellant, a retired military

official went to attend a wedding. The appellant was

very drunk. He asked a young boy to step aside a little

so that he could occupy a convenient seat. The boy

did not budge. The appellant fired from a pistol, he

had with him, in the abdomen of the boy which proved

fatal. This Court inter alia held as follows:

“4. It is no doubt true that while the
first part of the section speaks of intent
or knowledge, the latter part deals only
with knowledge and a certain element of
doubt in interpretation may possibly be
felt by reason of this omission. If in
voluntary drunkenness knowledge is to be

30
presumed in the same manner as if there
was no drunkenness, what about those
cases where mens rea is required.

Are we at liberty to place intent on the
same footing, and if so, why has the
section omitted intent in its latter
part? This is not the first time that the
question comes up for consideration. It
has been discussed at length in many
decisions and the result may be briefly
summarised as follows:-

5. So far as knowledge is concerned, we
must attribute to the intoxicated man the
same knowledge as if he was quite sober.
But so far as intent or intention is
concerned, we must gather it from the
attending general circumstances of the
case paying due regard to the degree
intoxication. Was the man beside his mind
altogether for the time being?

If so it would not be possible to fix him
with the requisite intention. But if he
had not gone so deep in drinking, and from
the facts it could be found that he knew
what he was about, we can apply the rule
that a man is presumed to intend the
natural consequences of his act or acts.

6. Of course, we have to distinguish
between motive, intention and knowledge.
Motive is something which prompts a man
to form an intention and knowledge is an
awareness of the consequences of the act.
In many cases intention and knowledge
merge into each other and mean the same
thing more or less and intention can be
presumed from knowledge. The demarcating
line between knowledge and intention is
no doubt thin but it is not difficult to

31
perceive that they connote different
things. Even in some English decisions,
the three ideas are used interchangeably
and this has led to a certain amount of
confusion.”
(emphasis supplied)

27. In this case there is no evidence about how drunk

the appellant was or whether the drunkenness in any way

stood in the way of the appellant forming the requisite

intention. There is also gap between the time when he

was allegedly found drinking and the time of the crime.

Moreover, in his 313 statement, according to him, he

has stated that he fell fast asleep and he got up to

see his wife hanging. The principle that would apply

therefore is that appellant can be presumed to have

intended the natural consequences of his act.

28. As far as the contention that appellant should be

handed down conviction under Section 304, Part-I, we

are not impressed by the said argument. As to what

constitutes murder under Section 300 of the IPC and

what constitutes culpable homicide amounting to murder

has been a vexed issue and the subject matter of a

large body of case law. Section 300 of the IPC declares
32
that except in those cases which are specifically

excepted culpable homicide is murder in situations

which have been specifically laid down. There are

commonly referred to as firstly, secondly, thirdly and

fourthly under Section 300 of the IPC. If the intention

of the Legislature was that culpable homicide would

amount to murder if it did not fall in any of the five

exceptions enumerated in Section 300 of the IPC. What

was the need for the Legislature to ‘waste words’ as

it were by declaring that culpable homicide is murder

if the act fell within any of the 4 clauses in Section

300 of the IPC? In order that an act is to be punished

as murder, it must be culpable homicide which is

declared to be murder. Murder is homicide of the

gravest kind. So is the punishment appropriately of

the highest order. Murder requires establishment of

the special mens rea while all cases of culpable

homicide may not amount to murder. This Court in the

judgment in State of Andhra Pradesh v. Rayavarapu

Punnayya and Another 1976(4) SCC 382 inter alia held

as follows:

33

21. From the above conspectus, it emerges
that whenever a court is confronted with
the question whether the offence is
‘murder’ or ‘culpable homicide not
amounting to murder’, on the facts of a
case, it will be convenient for it to
approach the problem in three stages. The
question to be considered at the first
stage would be, whether the accused has
done an act by doing which he has caused
the death of another. Proof of such causal
connection between the act of the accused
and the death, leads to the second stage
for considering whether that act of the
accused amounts to “culpable homicide” as
defined in Section 299. If the answer to
this question is prima facie found in the
affirmative, the stage for considering
the operation of Section 300 of the Penal
Code, is reached. This is the stage at
which the court should determine whether
the facts proved by the prosecution bring
the case within the ambit of any of the
four clauses of the definition of
“murder” contained in Section 300. If the
answer to this question is in the negative
the offence would be “culpable homicide
not amounting to murder”, punishable
under the first or the second part of
Section 304, depending, respectively, on
whether the second or the third clause of
Section 299 is applicable. If this
question is found in the positive, but
the case comes within any of the
exceptions enumerated in Section 300, the
offence would still be “culpable homicide
not amounting to murder”, punishable
under the first part of Section 304, of
the Penal Code.

(emphasis supplied)

34

29. As far as this case is concerned, there can be no

doubt that the act which led to the death has been

committed by the appellant. We can safely proceed on

the basis also that it amounts to culpable homicide.

Going by the circumstances present in this case and in

particular injuries suffered, it is quite clear that

the act would fall within the scope of Section 300 of

the IPC. If the act results in culpable homicide which

does not amount to murder, then and then alone the

question arises of applying Section 304 Part-I or Part-

II as the case may be. Appellant cannot extricate

himself from the consequence of his act attracting the

ingredients of murder by pointing out Section 304 Part

I which also contains the expression, “the act with the

intention to cause death’. The implications are vastly

different. Section 304 of the IPC would apply only in

a case where culpable homicide is not murder. If the

act amounting to culpable homicide satisfies any of the

four criteria to bring it under the offence of murder,

being mutually exclusive, there can be no scope for

35
applying Section 304 of the IPC. On the other hand,

if the act is culpable homicide as falling in any of

the five exceptional circumstances mentioned in Section

300 and then it would amount to culpable homicide not

amounting to murder. In cases where the accused is

able to establish he is entitled to the benefit of any

of the exceptions under Section 300 then his case may

be considered under Part-I or Part-II of Section 304

of the IPC depending on whether the act which caused

the culpable homicide was done with the intention of

causing death or with knowledge that it is likely to

cause death. That apart cases of culpable homicide

which do not attract any of the four situations under

Section 300 would still be culpable homicide to be

dealt with under Section 304 of the IPC. However, if

the case falls under any of the four limbs of Section

300, there would be no occasion to allow Section 304

to have play. If the act which caused the death and

which is culpable homicide is done with the intention

of causing death, then it would be murder. This is

however subject to the act not being committed in

circumstances attracting any of the 5 exceptions.

36
Appellant’s contention that it would be culpable

homicide not amounting to murder and reliance placed

on the words ‘done with the intention of causing death’

in Section 304 Part-I is wholly meritless.

30. The act of the appellant in the facts of this case

clearly show that he has throttled his wife. None of

the exceptions in Section 300 are attracted. The act

amounts to murder within the meaning of Section 300 of

the IPC. The upshot of the above discussion is, we see

no reason to interfere with the impugned judgment. The

appeal stands dismissed.

…………………..J.

(SANJAY KISHAN KAUL)

………………….J.

(K.M. JOSEPH)
New Delhi,
January 21, 2020.

37

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