Vitthal S/O Gyanba Gaikwad vs The State Of Maharashtra, Accused ...
2005 Latest Caselaw 214 Bom

JUDGMENT

P.B. Gaikwad, J.

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1. Accused Vitthal s/o Gyanba Gaikwad being dissatisfied with the order of conviction and sentence for the offence punishable under Section 302 of the Indian Penal Code dated 12.01.2001 by the Additional Sessions Judge, Page 1456 Pusad in Sessions Case No. 67/1998 directing him to suffer imprisonment for life and to pay a fine of Rs. 1000/- in default R.1. for six months filed present appeal.

2. The facts in nutshell leading to the present appeal are as follows :

That, marriage of deceased Panchashila daughter of PW 1 Vitthal Sitaram Shinde and mother of PW2 Kavita, PW 3 Yogendra and PW 4 Savita was performed with the present appellant in the year 1979. PW 1 Vitthal Sitaram Shinde is the resident of Purna District Parbhani. After the marriage of Panchashila with the accused, she started residing with her father-in-law and mother-in-law at village Rathi-Dutka. The accused who is serving in the Irrigation Department used to visit Rathi-Dutka. After two years' of marriage, the accused took Panchashila at his service place at Shiur Camp. PW2 Kavita, PW3 Yogendra and PW 4 Savita are son and daughters of Panchashila from the accused. It is alleged that there was an ill-treatment and harassment to Panchashila at the hands of the accused and he used to suspect about her character, used to insist her for unlawful demand from her parents. Thereafter he took Panchashila along with three children PW2 Kavita, PW3 Yogendra and PW 4 Savita at her parents house at Purna in the year 1991 and deserted her. Thereafter he performed second marriage with one Mahananda and the appellant having one son and daughter from Mahananda.

It is further seen from the record that in the year 1990 the deceased filed Misc. Criminal Application No. 286/90 under Section 125 of Code of Criminal Procedure, claiming maintenance from the accused for herself and three children i.e. PW2 Kavita, PW3 Yogendra and PW 4 Savita. The Judicial Magistrate First Class, Parbhani decided the said application by the order dated 6.6.1992 directing the present appellant to provide maintenance @ Rs. 200/- per month to applicant No. 1 - Panchashila, and Rs. 100/- each to the children i.e. Rs. 500/- per month. It is further seen that the appellant failed to pay the arrears of the maintenance amount, and the recovery proceedings initiated under Section 125(3) of Code of Criminal Procedure, and Criminal Application Nos. 33/1997, 90/1997, 154/1997 were filed by deceased Panchashila to recover the maintenance amount. It is also seen that she has also filed application under Section 127 of Code of Criminal Procedure for enhancement of the maintenance amount i.e. Misc. Cri. Application No. 163/1997. It is further seen that as the present appellant failed to pay maintenance amount as directed, the proceedings were pending before the Judicial Magistrate First Class, for recovery of maintenance amount and enhancement of maintenance amount and he, therefore, at the time of Diwali of 1997 had been to Puma requested PW 1 Vitthal to allow Panchashila along with children to reside with him. Some other persons were with him and as the appellant assured that he will maintain the deceased and children properly and there will be no ill-treatment, PW 1 Vitthal then sent to Panchashila along with children to service place of the present appellant for co-habitation i.e. at village Mulava, District Yavatmal. It is further seen that approximately one month prior to the incident which took place on 13.3.1998 i.e. on 8.2.1998 the appellant took Panchashila to Parbhani to withdraw the proceedings initiated against him for recovery of maintenance amount and enhancement of maintenance amount, before the Lok Nyayalaya the settlement was Page 1457 submitted and Panchashila accordingly withdrawn those proceedings. Accordingly, criminal applications were disposed of on account of settlement between the patties on 8.2.1998.

The alleged incident took place on 13.3.1998 at about noon time approximately 12.30 p.m. on the next day of "Holi" festival Panchashila, her three children PW2 Kavita, PW3 Yogendra and PW 4 Savita and the present appellant were at the house. Mahananda along with her two children had gone to her parents house. On the day of incident the appellant consumed liquor since 9.00 a.m. At about 12.30 noon it is alleged that the appellant directed to his three children PW2 Kavita, PW3 Yogendra and PW 4 Savita to sit in the kitchen room while the appellant and deceased were in the bed-room. Some exchange of words took place between the accused and Panchashila and it is alleged that the accused assaulted Panchashila by knife on her abdomen. She sustained bleeding injury. The children i.e. PW2 Kavita, PW3 Yogendra and PW 4 Savita raised shouts. Some neighbours came there. Panchashila was taken to the hospital, however, on the way she died. She was thereafter taken back to the house. The appellant then informed in respect of the said incident to the Police Station and on the basis of which AD No. 3/98 was registered under Section 174 of Code of Criminal Procedure. PW 1 Vitthal Sitaram Shinde the father of deceased received message of death of Panchashila. He, therefore, visited the village Mulava and then went to Police Station, Pophali and filed complaint and on the basis of which Crime No. 13/1998 was registered under Section 302 of the Indian Penal Code, which is proved at Ex. 49. During the course of investigation PW 5 Parasram Bhasu Rathod recorded the statement of certain witnesses, attached some articles from the place of incident including Sura which is being used for causing injury to Panchashila, clothes which were on the person of the deceased, held inquest, referred the dead body for post-mortem, record of filing of Misc. Cri. Applications under Sections 125(3) and 127 of Code of Criminal Procedure are also collected. After completing the investigation PW 5 Parasram Bhasu Rathod submitted charge-sheet before the Judicial Magistrate First Class, Umarkhed, district Yavatmal for the offence punishable under Section 302 of the Indian Penal Code on 6.6.1998.

3. The Judicial Magistrate First class committed the case to the Court of the Additional Sessions Judge, Pusad, who accordingly framed the charge against the accused for the offence punishable under Section 302 of the Indian Penal Code on 20.12.1999 at Ex. 4. The charge was read over and explained to the accused, however, he pleaded not guilty to the charge.

4. The prosecution, to connect the accused with the above said Crime, examined near about six witnesses. PW 1 is Vitthal Sitaram Shinde, the father of deceased and father-in-law of the present appellant. His evidence is at Ex. 48. On the basis of the report, the Crime was registered, which is at Ex. 49. PW 2 is Kavita Vitthal Gaikwad the elder daughter of present appellant and deceased. Her evidence is at Ex. 68. PW 3 is Yogendra Vitthal Gaikwad the son of deceased and the present appellant. His evidence is at Page 1458 Ex. 71 while PW 4 is another daughter of deceased namely Savita Vitthal Gaikwad. Her evidence is at Ex. 73. PW 5 is PSI Parasram Bhasu Rathod, who registered Crime and after completing the investigation, submitted charge-sheet. Evidence of this witness is at Ex. 79. Through his evidence, the requisition letter given by him to the Medical Officer along with weapon is at Ex. 81 while the opinion given by Doctor at Ex. 82. The last witness is Dr. Manohar. His evidence is at Ex. 92. Through his evidence the post-mortem report Ex.93 is got proved.

5. Along with the above oral evidence, the prosecution has also placed reliance upon certain documents and correctness of those documents has not been disputed on behalf of the accused i.e. map of place of incident (Ex. 75), arrest panchanama (Ex.13), registration of A.D. and report given by the accused at Ex.14 and Ex.85, spot panchanama (Ex.18), Seizure of Sura (Ex. 19), inquest panchanama (Ex.20), attachment of clothes (Ex.22 and 27) while the proceedings initiated by Panchashila under Section 125(3) of Code of Criminal Procedure and the application for enhancement under Section 127 of Code of Criminal Procedure, the copies of which were also not disputed at Ex. 52 to 67.

6. The Additional Sessions Judge, Pusad, District Yavatmal, after considering the above oral as well as documentary evidence on record, concluded that Panchashila met homicidal death and further concluded that the accused is the author of the injury sustained by Panchashila on 13.3.1998 and accordingly, convicted the accused-appellant for the offence punishable under Section 302 of the Indian Penal Code. The said order of conviction and sentence being challenged by filing the present appeal.

7. In appeal, we heard Mr. R.B. Gaikwad, the learned Advocate for the accused and Mr. Mirza, the learned Additional Public Prosecutor for the State at length. It is submitted by Mr. Gaikwad, Advocate for the appellant that the order of conviction and sentence is not proper and justified. As firstly, according to him, the finding recorded by the Court below is perverse, illegal and not in conformity with the evidence on record. Secondly, according to him, the Court below practically failed to scan the evidence on record, in fact, the proceedings initiated by deceased Panchashila against the appellant has been wrongly considered. Thirdly, according to him, the Court below failed to consider that there is considerable delay in lodging F.I.R. Even the prosecution failed to explain the delay satisfactorily.

Fourthly, according to him, the conduct of the present appellant has been completely over-looked as after the said incident he immediately went to the Police Station lodged the report informing that Panchashila by stabbing herself made an attempt to commit suicide and due to said injuries, she ultimately succumbed, but the said aspect has been completely over-looked by the Court below. Even the fact that he himself made an attempt to take injured Panchashila to the hospital, however, on the way she died and therefore, taken back to his house. According to him, there is material omissions and contradictions in the evidence of PW 2 Kavita, PW 3 Yogendra and PW 4 Savita and the Court has wrongly relied upon the evidence of these three witnesses though there are minor and possibility of tutoring these witnesses Page 1459 by grandfather cannot be ruled out. According to him, the Court ought to have scanned the evidence of these witnesses inconsistent with each other of material particulars. Even according to him, the Court below wrongly concluded that Panchashila met homicidal death. As a matter of fact, from the evidence on record, it can be safely gathered that she met suicidal death. Lastly, according to him, if the Court comes to the conclusion that the evidence on record adduced by the prosecution is satisfactorily, acceptable and trustworthy in that case, he alternatively submitted that this is a case of one blow and the requisite intention to attract Clause "thirdly" of Section 300 of the Indian Penal Code cannot be covered safely. At the most knowledge on the pan of the accused that the said injury is likely to cause death can be gathered and due to which the offence at the most will be under Section 304 Part II and not Section 302 of the Indian Penal Code. He, therefore, requests to allow the appeal and to set aside the order of conviction and sentence alternatively to convict the accused for the offence punishable under Section 304 Part II of the Indian Penal Code.

8. On the other hand, it is submitted by Mr. Mirza, learned Additional Public Prosecutor for the State that the Court below is justified in relying the evidence of PW2 Kavita, PW3 Yogendra and PW4 Savita. As a matter of fact though they are minor age i.e. PW2 Kavita was approximately 17 years when her evidence was recorded, age of PW 3 was 12 years and age of PW 4 was 14 years having sufficient understanding and, therefore, the reliance placed by the Court below on their evidence is definitely justified as their evidence being consistent, convincing and satisfactorily and there was no reason for them to involve the present appellant who is their father in such a serious crime. Even the presence of these three witnesses at the place of incident and at the house where the incident took place at the relevant time is also natural. Even the accused-appellant has not disputed their presence at the house. Secondly, according to him, from the evidence of PW 6 Dr. Manohar Chinnawar sufficiently clear that the blow which was given on abdomen of deceased was forceful and, therefore, the internal organs i.e. livers and spleen were damaged. Even the Doctor has specifically stated that she met homicidal death so far as regards other aspects. According to him, the accused to save himself has filed false report about committing suicide, however, the circumstances on record, if read together with the medical evidence and evidence of PW 2 Kavita, PW 3 Yogendra to PW 4 Savita, the Court below is justified in discarding the said stand taken by the accused. According to him, the appeal is without merit and the same deserves to be dismissed.

9. Considering the submissions made on behalf of the parties to the appeal, it is necessary to see whether the finding recorded by the Court below holding that Panchashila met homicidal death and that the present appellant being author of said injury is proper and justified and for which it is necessary to scan the evidence on record. Before considering the evidence on record, it is necessary to make it clear that all these witnesses PW 2 Kavita, PW 3 Yogendra to PW 4 Savita are minor at the relevant time when the incident Page 1460 took place on 13.3.1998 and, therefore, a reference to Section 118 of the Evidence Act is necessary, which deals that witnesses. It reads as under :

"Section 118 - All persons shall be competent to testify unless the court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."

10. On perusal of Section 118 of the Evidence Act, it is sufficiently clear that the same has been worded negatively. If the Court would consider that a particular witness does not understand the question put to him and fails to give rational answers to those questions, the Court would not proceed to take evidence of that witness. The only test of competency is that the witness should not be prevented from understanding the questions put to him or from giving rational answers to those questions by tender years or other cause. Thus the competency of the witness giving evidence has no bearing upon the admissibility of the evidence given by him. In other words, the admissibility of evidence is not solely dependent on the competency of the witness. There is no precise age to decide the age of competency and thus the question in each case which the Court has to decide is whether the particular child, who has appeared in the witness box is only enough to be other to understand as to what evidence he or she is giving and to be able to understand the questions and to be able to give rational answers.

11. It is true that evidence of a child witness is to be accepted with great caution, as children are most untrustworthy class of witnesses. It cannot be laid down as an infallible rule that in no case the evidence of child below a particular age should be accepted or acted upon. However, each case must depend on its own facts. It is true that the evidence of children is notoriously dangerous and, therefore, there is closer scrutiny of evidence of child witness than the evidence of other witnesses, before the same is accepted. The general principle is that a person should only be convicted of a crime if the Court is sure that the guilt has been established. If the Court is satisfied that child witness is a person of maturity and understanding nor his evidence is the result of tutoring and evidence is consistent, cogent and truthful, the same can safely be accepted. Thus, considering the above aspect in the present case, the evidence on record needs to be scanned.

12. So far as regards the appreciation of evidence is concerned, over much importance cannot be given to the minor discrepancies as :

(i) a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen;

(ii) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise;

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(iii) The powers of observation differ from person to person. What one may notice, another may not;

(iv) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder;

(v) As regards to exact time of an incident, or the time duration of an occurrence, witnesses make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect that to make very precise or reliable estimates in such matter. Even time sense of individuals which varies from person to person;

(vi) Ordinarily a witness cannot be expected to recall accurately the sequence of events which taken place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on;

(vi) A witness, though wholly truthful, is liable to overawed by the Court atmosphere and the piercing cross-examination therefore, discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" in favour of the version narrated by the witnesses.

13. As referred above, the prosecution has examined near about six witnesses and firstly, it is necessary to see whether the conclusion arrived at by the Court below that Panchashila met homicidal death on 13.3.1998 is proper and justified, for which the evidence on record, more particularly, PW 6 Dr. Manohar, which is at Ex. 92 and postmortem report (Ex.93) is necessary.

14. On perusal of evidence of PW 6 Dr. Manohar, according to him, he was attached to Uttarwar hospital, Umarkhed on 14.3.1998. He received requisition letter from P.S.O. Pophali for performance of post-mortem over the dead body of Panchashila. Said requisition letter is proved at Ex.21. He accordingly performed post-mortem on 14.3.1998 and on external examination, he noticed one injury i.e. incised wound epxigastreum region about 1 1/2" x 1/2" deep inside, oblique place and the same was anti-mortem in nature. On internal examination, he found rupture of portal veins as well as rupture of lever and spleen and huge quantity of blood in cavity. He accordingly gave his opinion as regards the cause of death is haemorrhage due to rupture of spleen and porter veins. He accordingly prepared post mortem report which is at Ex. 93. His evidence further makes it clear that he received letter from PS.O. Pophali at Ex.81 in which certain queries were made. Letter was along with weapon requesting him to examine the weapon and whether the injuries sustained by Panchashila is possible by the said weapon i.e. Sura. His evidence further makes it clear that the injury mentioned in the post-mortem requires full force as internal organs were damaged and he made this aspect clear in cross-examination on behalf of the accused. If the evidence of PW 6 Dr. Manohar if read together with the post-mortem report Ex.93 and Ex. 94, we find that the conclusion of the Court below that Page 1462 she met homicidal death is definitely proper and justified. Even the suggestion given on behalf of the accused that Panchashila met suicidal death has been specifically denied. Considering the nature of injury, weapon used and the force used for causing injury sufficiently makes it clear that Panchashila met homicidal death and further that the stand as taken by the accused that the said injury is on account of stab by deceased herself while committing suicide is definitely is not acceptable.

15. The another aspect whether the accused is the author of the said injury caused to Panchashila and in this respect firstly to my mind a reference to spot panchanama (Ex.13) and map (Ex.75) is necessary from which the location where the incident took place and whether there is an opportunity for PW 2 Kavita, PW 3 Yogendra to PW 4 Savita to witness the incident is possible. On perusal of Ex. 75 i.e. map of place of incident, it will be seen that the main door facing towards North. Towards Eastern side there is bed room that in front of the said room i.e. towards Western side there is another room and behind these rooms, there is a kitchen room and on one side there is bath-room and latrine. On Western side, there is quarter of V.K. Waghmare while on the Eastern side there is open space and quarter belonging to another employer working in irrigation Department. It is further seen that the main door is facing towards North and to the bed-room, there is door opening towards western side and to the kitchen there is entrance facing towards North. The material portion from the spot panchanama (Ex.18) is to the following effect:

???(I)

16. This aspect from the map Ex.75 and spot panchanama Ex.18 sufficiently make it clear that there are internal doors and therefore, there is scope to witness the incident which took place in the bed-room. It is not in dispute that PW 2 Kavita, PW 3 Yogendra to PW 4 Savita at the relevant time when the incident took place were at the house, however, it is alleged that they were in the kitchen room prior to the incident.

17. On perusal of evidence of PW 2 Kavita, according to her, the alleged incident took place on 13.3.1998 i.e. on the next day of "Holi" festival i.e. "Dhulivandan". According to her, she herself, her sister, her brother, her mother and her father were at the house. She also made clear that her father consumed liquor on that day. She along with her sister and brother were directed to sit in the kitchen-room while father and mother were in the bed-room and she also made clear in her evidence that her father was saying to her mother that she is not good. Further asked her as to how she lived for considerable long time at the house of her father and at that time she heard commotion of her mother as "Meli" and, therefore, all of them went towards bed-room. She further made clear that the knife was in the stomach of her mother. The upper part was in the hand of her father. Even the mother caught hold the hand of her father. She became unconscious. Police then came there.

18. Evidence of PW 3 Yogendra Vitthal Gaikwad also sufficiently makes it clear that he himself, two sisters and mother were in the T.V. room, however, his father told them to go to the Kitchen room. He also made clear that his father consumed liquor on that day and started giving abuses to his mother. The quarrel took place between his mother and father. He sufficiently makes Page 1463 it clear that his father took knife from the table and assaulted mother on his stomach. He also made clear that he along with two children were in T.V. room at the relevant time they raised shouts and she proceeded towards their mother. His father then removed knife from the stomach of his mother and threw below the cot. Savita then took water. Some persons on account of raising shouts gathered there and then mother was taken to the hospital in a jeep and within a short time she was taken back to the house as she found dead.

19. The evidence of PW 4 Savita another daughter of deceased makes it clear that the incident took place at noon time at village Mulava in their house. She also made clear that she along with brother, sister were in the kitchen room and mother and father in the T.V. room. My father consumed liquor on that day and he started abusing to her mother. The father that is the present appellant directed to children to study in the kitchen room, however they heard noise, they went in the T.V. room and saw that the accused assaulted with knife. The neighbours came there and mother was taken to the hospital.

20. On close scrutiny of evidence of these witnesses PW 2 Kavita, PW 3 Yogendra to PW 4 Savita, firstly, their presence at the relevant time is not disputed and it is also natural; secondly, when the alleged incident took place the age of PW 2 was approximately 14 years; PW 3 was approximately 10-11 years and PW 4 Savita was approximately 12 years. It is also seen from the record that they were taking education. Even from their evidence it appears that they are having sufficient understanding and they are in a position to rational answers. Thirdly, there is no scope for them to speak falsely against their own father the present appellant and involved him in such a serious crime. It is further seen that the neighbours and some other persons though had come have not made any attempt to inform the police in respect of the said incident immediately. Even it is further seen that considering the age of these three witnesses PW 2 Kavita, PW 3 Yogendra to PW 4 Savita, it was not possible for them to approach the police for filing the report. As from the evidence of PW 2 Kavita she became unconscious after seeing the injuries sustained by her mother. So far as PW 3 Yogendra and PW 4 Savita, it is possible that they got confused as to what is to be done and, therefore, when a message was given to PW1 Vitthal, the father of deceased at Purna and when he came at village Mulava, he thereafter made a report after ascertaining the correctness of the incident and mariner in which the incident took place from PW 2 Kavita, PW 3 Yogendra to PW 4 Savita. On the basis of report, Crime was registered on 14.3.1998 though it is contended that there is delay in filing report to the Police Station, however, the circumstances on record sufficiently makes it clear that, in fact, there is no delay. As a matter of fact, the accused to save himself has made false report to the Police and on the basis of which A.D. No. 3/98 is registered i.e. Ex.14 and Ex.85.

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21. On perusal of Ex. 85 i.e. report given by the present accused as regards the injuries sustained by Panchashila, according to him, the quarrel took place between the present appellant and deceased on the day of incident and deceased herself took the knife or Sura and stabbed herself on abdomen so as to commit suicide and due to which she sustained injury. This stand has taken by the accused is definitely not acceptable. On perusal of Ex. 85, according to him, his wife is hot tempered and on account of exchange of words between the present appellant and deceased, she took knife from the kitchen and stabbed on her abdomen and accordingly committed suicide. He also made clear in the report that two daughters and one son i.e. PW 2 Kavita, PW 3 Yogendra to PW 4 Savita were at the house. As against this, on perusal of map Ex. 75, it will be seen that to enter the kitchen room one has to go either from the door to the bath-room or from the door which is to the living room. Evidence of PW 2 Kavita, PW 3 Yogendra to PW 4 Savita goes to show that the knife or Sura was on T.V. table with which the assault took place while in the cross-examination to the witnesses on behalf of the accused, it is suggested that Sura was taken from wooden cup-board which was in the bedroom. Thus, there is material inconsistency in the stand taken by the accused. Even the evidence of PW 6 Dr. Manohar who performed postmortem also sufficiently makes it clear that the blow was given with sufficient force and due to which internal organs such as liver, spleen being ruptured. On close scrutiny of the evidence on record, we find that the stand taken by the accused Panchashila committed suicide has been rightly discarded by the Court below. It is further seen that the evidence of PW 2 Kavita, PW 3 Yogendra to PW 4 Savita as regards the incident, manner in which took place being satisfactorily, convincing, more particularly, the evidence of PW 3 Yogendra the son of present appellant sufficiently makes it clear that accused is the author of the injury caused to Panchashila and we do not find that the said suffers from any infirmity. It is true that there is some discrepancies of minor in nature and the considering the same, the said discrepancies bound to occur. However, the evidence of these witnesses is consistent with material particulars and there is no reason to discard their evidence and there is no reason for these three witnesses to depose against their father.

22. There is another circumstance on record as it will be seen that Panchashila was deserted since 1990 along with these three children, they were residing along with PW 1 Vitthal at Purna. The documents at Ex. 58 to Ex. 67 sufficiently make it clear that she filed an application for maintenance and the same was allowed in 1992 and thereafter recovery proceedings were filed and those were pending. Even the application for enhancement of maintenance was also filed. As the present appellant could not pay the maintenance amount, he then made attempt at the time of Diwali 1997 by giving assurance that he will treat his wife Panchashila properly and took her along with these children to village Purna for cohabitation and on 8.2.1998 all those proceedings were settled in the Lok Nyayalaya and Page 1465 after the said settlement, present incident took place hardly within one month approximately. On close scrutiny of evidence adduced on record, we find that the Court below has rightly relied upon the evidence of PW 2 Kavita, PW 3 Yogendra to PW 4 Savita as their evidence do not suffer from any infirmity and there is no question of tutoring. On the other hand, we find that their evidence is reliable, trustworthy and acceptable.

23. The last aspect will be about order of conviction and sentence for the offence punishable under Section 302 of the Indian Penal Code. As it is submitted by Mr. Gaikwad Advocate that this is a case of one blow. The offence at the most will be under Section 304 Part 11 of the Indian Penal Code. Even other circumstances on record sufficiently makes it clear that at the relevant time, he consumed liquor; secondly after the said incident, he covers injury with lungi and also made an attempt to take her to the hospital. These aspects sufficiently made it clear that there is requisite intention on the part of the accused to commit murder of Panchashila. In this respect, it is necessary to refer Sections 299 and Section 300 of the Indian Penal Code. It is seen on perusal of these two sections that the murder is merely a particular form of culpable homicide and distinguishing factor of murder from culpable homicide is the presence of special mens rea which consists of four mental attitudes as stated in Section 300 of the Indian Penal Code. The difference between Section 299 and Clause "thirdly" of Section 300 is one of degree of probability of death resulting from the intended bodily injury. The word 'likely' used in Section 299 conveys the sense of 'probable' while the words 'sufficient in the ordinary course of nature to cause death' in Clause "thirdly" of Section 300 conveys the death will be most probable. The correct approach is to determine first whether the facts proved bring the case under any of the four clauses of Section 300 of the Indian Penal Code and if they do not come under the definition of murder then the offence would be culpable homicide not amounting to murder under Section 299 and punishable under Section 304 of the Indian Penal Code. If the facts come within the definition of the murder then the Court must determine whether facts come under any of the exceptions under Section 300 of the Indian Penal Code. If they do the offence would still be culpable homicide not amounting to murder under Section 299 of the Indian Penal Code. In other words, if the acts on the part of the accused falls under any of the four clauses of Section 300, the offence will be under Section 302 of the Indian Penal Code and if the acts on the part of the accused falls under any of the clauses of Section 299 or any of the exceptions to Section 300 the offence will be culpable homicide not amounting to murder either under Section 304 Part I or Part II of the Indian Penal Code.

24. So far as regards the questions of applicability of Section 302 of the Indian Penal Code is concerned, it cannot be laid down as the rule of universal application that whenever the single blow is given that would rule out application of Section 302 of the Indian Penal Code. As a matter of fact it would all depend upon the size of weapon, place where injuries were inflicted, and the background or the circumstances in which the incident took place. Thus, in view of above position, it is now necessary to see whether the act on the part of the accused falls either under Section 299 or any of the exceptional to Section 300 of the Indian Penal Code or whether it falls any of the clauses Page 1466 of Section 300 of the Indian Penal Code. On close scrutiny of the evidence on record, we find that the accused at the relevant day consumed liquor since morning and at about noon time there was quarrel between deceased and accused on some trifle matter. The act on the part of the accused also cannot be said to be calculated, predetermined and the alleged incident took place at the spur of moment after quarrel between the appellant and deceased. The other circumstances on record and conduct of the accused after the incident also goes to show that after the incident he made an attempt to take Panchashila for medical treatment, he bandaged the said injury with lungi and from these aspects on record, we find considering the weapon used, nature of injury, part of body that there was intention on the part of the accused comes under Clause (b) of Section 299 punishable under Section 304 Part 1 of the Indian Penal Code. Thus, we find that the order of conviction needs to be modified and the accused needs to be convicted for the offence punishable under Section 304 Part 1 instead of under Section 302 of the Indian Penal Code. In the result, appeal is partly allowed. The order of conviction and sentence for the offence punishable under Section 302 of the Indian Penal Code is set aside. The accused-appellant is convicted for the offence punishable under Section 304 Part 1 of the Indian Penal Code and directed him to suffer R.1. for 10 years and to pay fine of Rs. 1000/- in default R. 1. for three months. He is entitled to get set off under Section 428 of the Code of Criminal Procedure.

With the above modification in the order of conviction and sentence, appeal is accordingly disposed of.