[Cites 25, Cited by 0]
Delhi High Court
Jitan Bora vs The State on 18 March, 2026
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18.02.2026
Pronounced on: 18.03.2026
+ CRL.A. 85/2024
JITAN BORA ..... Appellant
Through: Mr.Himanshu Anand Gupta,
Mr.Sidharth Barua, Ms.Mansi
Yadav, Mr. Shekhar Anand
Gupta, Ms.Navneet Kaur,
Ms.Shivani Rampal and
Mr.Mike Desai, Advs.
versus
THE STATE (GOVT. OF NCT) DELHI .....Respondent
Through: Mr.Aman Usman, APP with
Mr.Manvendra Yadav, Adv.
with Insp. Madan Mohan, P.S.
GK-I, New Delhi.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
NAVIN CHAWLA, J.
1. The appellant has approached this Court, assailing the judgment
dated 15.07.2023 passed by the learned Additional Sessions Judge-05,
South- East District, Saket Courts Complex, New Delhi (hereinafter
referred to as the „Trial Court‟) in Sessions Case No. 490/2019, titled
State v. Jitan @ Jitan Bora, arising out of FIR No. 134/2019,
registered at Police Station Greater Kailash, New Delhi, under
Sections 302 of the Indian Penal Code, 1860 (hereinafter referred to as
the „IPC‟), whereby the appellant has been convicted under Section
302 of the IPC for the offence of murder.
2. The appellant also challenges the order on sentence dated
19.10.2023, whereby the appellant has been sentenced to
undergo rigorous imprisonment for life and to pay a fine of Rs.
10,000/-, and in default of payment of fine, to undergo simple
imprisonment for a further period of six months, for the offence
punishable under Section 302 of the IPC.
CASE OF THE PROSECUTION:
3. Briefly stated, it is the case of the prosecution that on 13th July
2019, at around 04:53 A.M., upon receipt of information vide DD No.
7A at Police Station Greater Kailash, Constable Asif/PW-11 reached
the All India Institute of Medical Sciences (AIIMS), where the victim,
Sanjeev Pandey, S/o Sh. Ramnath Pandey, with an alleged history of
physical assault, was undergoing treatment. During the course of the
treatment, at around 05:48 A.M., the victim was declared dead, and
the said information was recorded vide DD No. 8A. In the
investigation, it was revealed from the statement of PW-1/Ajeet
Pandey, that he, along with the deceased, heard the sounds of a quarrel
emanating from the appellant‟s room. The deceased went to the room
of the appellant and attempted to pacify the appellant and his wife,
however, the same was not received well by the appellant. Thereafter,
when the deceased returned to his room, where PW-1 was also
present, the appellant followed him. After a heated exchange of words,
the deceased assaulted the appellant with a wooden stick, following
which, the appellant attacked the deceased with a kitchen knife. PW-1
attempted to intervene and stop the scuffle, but he was pushed away
by the appellant and he fell down. During the altercation, the deceased
sustained grievous injuries and was taken to AIIMS Trauma Centre,
Delhi, where, approximately 30-40 minutes after his admission, he
was declared dead. Thereafter, on the basis of the complaint of PW-1
(Ex. PW-1/A), the subject FIR was registered, and the appellant was
subsequently arrested.
4. Upon completion of the investigation, the Chargesheet was filed
on 02.10.2019.
5. The learned Trial Court, vide Order dated 30.10.2019, framed
Charges under Section 302 of the IPC against the appellant, to which
he pleaded „not guilty‟ and claimed trial.
6. During the course of the trial, the prosecution examined fifteen
witnesses, including PW-1, PW-4 and PW-5, who are vital for the
purposes of the present appeal, and whose testimony shall be
discussed in detail hereinafter.
7. The statement of the appellant under Section 313 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as the „Cr.P.C.‟) was
recorded on 31.10.2022. The appellant denied the prosecution‟s case
and pleaded false implication. He stated that on the intervening night
of 12/13.07.2019, he had consumed liquor outside his house.
Thereafter, he returned home, where PW-1 and the deceased asked
him to come to their room, stating that they had brought liquor, and
requested him to consume the same with them. As he was already
under the influence of liquor, he agreed and went to their room. He
further stated that PW-1 brought some namkeen from a nearby shop
and that they were about to consume liquor. In the meantime, the
deceased passed obscene and derogatory remarks about the appellant
and his wife, stating: "Tum chinki log bade kamine hote ho, tumhari
aurten dhandha karti hain, teri wife badi sexy lagti hai aur main usse
sex karna chahta hoon". Upon hearing this, the appellant became
enraged and questioned the deceased as to how he could dare to make
such remarks about his wife. Thereafter, the deceased assaulted him
by giving blows to his face and also hit him on the head with a danda.
He further stated that PW-1 also started beating him with fists. The
appellant stated that he attempted to resist, but being under the
influence of liquor and outnumbered, he was unable to do so. He
further stated that due to the danda blow on his head, he felt dizzy,
and after making efforts, he managed to free himself and ran away
from the room of the deceased. He further stated that he sat beside the
road in G.K.-I for some time and, in the morning, after becoming
sober, he went to the house of his brother-in-law in G.K.-I. His
brother-in-law informed him that the police had taken his wife to the
police station for inquiry. Thereafter, at about 6:00 A.M. to 6:30 A.M.,
he went to the police station to inquire about the reason for bringing
his wife there. He stated that the Investigating Officer, Inspector
Pankaj Pandey, informed him that a person named Sanjeev Pandey
had expired and that his brother had blamed the appellant and lodged a
complaint against him. He was further informed that an FIR under
Section 302 of the IPC had been registered, in which he was
implicated as an accused. The appellant stated that he was not aware
of any death, as he was under the influence of liquor, had sustained
injuries, and had left the house during the night. He claimed that when
he ran away from the room of the deceased, the deceased was alive.
He asserted that he had not committed any wrongful act against the
deceased.
8. As noted above, the learned Trial Court, vide Order dated
15.07.2023, convicted the appellant for the offence punishable under
Section 302 of the IPC. The learned Trial Court held that the presence
of PW-1 at the spot at the time of the incident was beyond the pale of
doubt. PW-1 had also explained in detail the manner in which the
incident occurred. The learned Trial Court, placing reliance on the
testimony of PW-4 and PW-5, held that it had been proved that the
injuries suffered by the deceased, which were sufficient in the
ordinary course of nature to cause death, had been inflicted by the
knife produced by the prosecution as the weapon of offence. Further,
placing reliance on the testimonies of PW-8, PW-11, and PW-13, the
learned Trial Court held that the Bermuda worn by the appellant and
the knife had been recovered at the instance of the appellant. The
learned Trial Court further held that the Forensic Report (Ex.
PW15/A) proved that the deceased had been murdered with the knife
(Ex. 1L) recovered at the instance of the appellant. The learned Trial
Court, while considering the defence set up by the appellant, held that
the same amounted to an admission of his presence at the spot and of
the altercation between him, PW-1, and the deceased on the fateful
night, however, the appellant did not provide any cogent or reasonable
explanation as to why he ran away from his home merely after having
quarrelled with PW-1 and the deceased. The learned Trial Court held
that the testimony regarding the incident was reliable, cogent, and
trustworthy, and was sufficient to hold the appellant guilty, especially
when corroborated by the medical and forensic evidence, as well as by
the recovery of the knife at his instance.
9. The learned Trial Court, thereafter, vide order on sentence dated
19.10.2023, imposed the sentence as noted hereinabove upon the
appellant.
10. Aggrieved by the Impugned Order of Conviction dated
15.07.2023 and the Order on Sentence dated 19.10.2023 passed by the
learned Trial Court, the appellant has preferred the present appeal
before this Court.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
APPELLANT:
11. Mr. Himanshu Anand Gupta, the learned counsel for the
appellant, submits that the evidence on record establishes that there
was no prior enmity between the appellant and the deceased and,
therefore, there existed no motive for the appellant to commit the
alleged offence of murder. He submits that the appellant has been
falsely implicated in the present case.
12. It is further submitted that, on the night of the incident, the
appellant had consumed liquor outside his house and was later invited
by PW-1 and the deceased to join them for drinks in their room.
During the interaction, the deceased made obscene and derogatory
remarks about the appellant and his wife. When the appellant
objected, the deceased allegedly assaulted him by striking him on the
face and hitting him on the head with a danda, which led to a sudden
altercation, in which PW-1 also allegedly participated. The appellant
claims that, being intoxicated and outnumbered, he was unable to
effectively defend himself. He states that, after sustaining a blow on
his head and feeling dizzy, he managed to leave the room, and at that
time, the deceased was alive. He contends that he had no knowledge
of the subsequent death.
13. He submits that the deceased was wearing only his underwear at
the time of the incident, as borne out by the testimony of eye-witness
PW-1 and the medical evidence indicating intoxication. The
deceased‟s semi-nude condition, coupled with his heavily intoxicated
state and the alleged obscene remarks directed at the appellant‟s wife,
created an extremely offensive and provocative situation, which
materially contributed to the escalation of the quarrel.
14. He submits that no other neighbour heard any quarrel between
the appellant and his wife or between the appellant and the deceased.
He further submits that PW-1 admitted during cross-examination that
there were five rooms between his room and the appellant‟s room, and
that no other neighbour came out of his room. He contends that this
circumstance also falsifies the prosecution‟s case that the appellant
was having verbal altercation with his wife and that later, the appellant
had come to the room of the deceased shouting, as alleged by PW-1.
15. The learned counsel for the appellant further contends that, even
if the prosecution‟s case is accepted in its entirety, the present case
would fall within Exception 4 to Section 300 of the IPC. In support of
this submission, reliance is placed on the judgments of the Supreme
Court in Mangesh v. State of Maharashtra, (2011) 2 SCC 123;
Rampal Singh v. State of U.P., (2012) 8 SCC 289; Ankush Shivaji
Gaikwad v. State of Maharashtra, (2013) 6 SCC 770; Yatendrasingh
Ajabsingh Chauhan v. State of Maharashtra (judgment dated
04.08.2022 passed in Criminal Appeal 822/2018); and Dauvaram
Nirmalkar v. State of Chhattisgarh, (2023) 12 SCC 541. He submits
that the incident occurred during a sudden quarrel and in the heat of
passion, without premeditation or any intention to cause death. It is,
therefore, urged that the act, at best, would amount to culpable
homicide not amounting to murder, punishable under Section 304 Part
II of the IPC, and would not attract Section 302 of the IPC.
SUBMISSIONS OF THE LEARNED APP FOR THE STATE:
16. Mr. Aman Usman, the learned APP, submits that in the present
case, the prosecution has fully proved its case through the testimony
of PW-1, which stands duly corroborated by other evidence on record.
He submits that the presence of the appellant at the time and place of
the incident stands admitted. He further submits that the medical
evidence completely corroborates the ocular version. He submits that
PW-4 duly proved the MLC and opined that the injuries were caused
by a sharp-edged weapon and were dangerous in nature. PW-5, who
conducted the post-mortem examination, found multiple stab wounds,
including a fatal injury to the heart, and opined that the death was
caused due to hemorrhagic shock. He further submits that PW-5
opined that Injury No. (ii) was sufficient to cause death in the ordinary
course of nature and that the injuries were consistent with the
recovered knife. The learned APP submits that, on the basis of the
testimony of PW-1, the corroborative medical evidence, and the
investigation on record, the prosecution has successfully discharged
its burden of proving the offence under Section 302 of the IPC against
the appellant.
17. He submits that once the appellant seeks to bring the case
within any exception to Section 300 of the IPC, particularly by
invoking the plea of grave and sudden provocation, the burden to
prove the same shifts upon him under Section 105 of the Indian
Evidence Act. However, the appellant has led no evidence whatsoever
to substantiate such a plea. Despite having the opportunity to examine
his wife or any other relevant witness, the appellant failed to do so
and, therefore, he cannot now claim the benefit of conversion of his
conviction to one under Section 304 of the IPC.
18. He submits that the contention of the learned counsel for the
appellant that the case falls within the ambit of Section 304 of the IPC,
is wholly devoid of merit. As borne out from the testimony of PW-1,
neither the complainant nor the deceased was the aggressor, nor did
they provoke or instigate the appellant in any manner. There was no
element of sudden provocation. On the contrary, the appellant arrived
at the spot armed with a knife and assaulted the deceased in a
deliberate and premeditated manner.
19. The learned APP further submits that even assuming the
defence argument that the deceased inflicted the first danda blow to be
correct, the aggressive conduct of the appellant is clearly established.
The appellant first pushed PW-1 without any provocation. When the
appellant attempted to assault the deceased, the deceased, in an act of
self-defence, picked up a danda and struck the appellant. In such
circumstances, the deceased cannot be termed to be the aggressor by
any stretch of imagination.
20. He submits that the argument regarding the alleged lack of force
in the knife blows, based on the depth of the injuries mentioned in the
MLC and the post-mortem report, is untenable and irrelevant to the
determination of intention. This is not a case of a single blow, as the
deceased sustained multiple stab injuries. One of the injuries was
inflicted on a vital part of the body and was sufficient to cause death
in the ordinary course of nature, leading to the almost immediate
demise of the deceased. Having inflicted such grievous injuries with a
deadly weapon, the appellant cannot claim the benefit of Exception 4
to Section 300 of the IPC. He submits that the present case squarely
falls under Clause Thirdly and/or Fourthly of Section 300 of the IPC.
In support of his plea, he places reliance on the judgments of
the Supreme Court of India in State of Rajasthan through the
Secretary v. Kanhaiya Lal, (2019) 5 SCC 639, and Bavisetti
Kameswara Rao Alias Babai v. State of A.P. Represented by its
Public Prosecutor, High Court of Andhra Pradesh, Hyderabad,
(2008) 15 SCC 725.
21. He further submits that the conviction recorded by the learned
Trial Court is well-founded, based on a sound appreciation of the
evidence and settled principles of law, and therefore calls for no
interference by this Court.
ANALYSIS AND FINDINGS:
22. We have considered the submissions made on behalf of the
appellant and the learned APP for the State, and have perused the
material available on record.
23. As noted above, the case of the prosecution is based on the
testimony of the PW-1, Ajit Pandey, who is the cousin of the deceased
and was residing with the deceased. He deposed that he was present at
the spot along with the deceased, Sanjeev Pandey, at the time of the
incident. He described the incident in detail and stated that, on the
intervening night of 12th /13th July 2019, at about 2:00 A.M., he and
the deceased heard a noise coming from the appellant‟s room, where
the appellant was quarrelling with his wife. Upon hearing the noise,
the deceased went to the appellant‟s room. Upon returning, the
deceased informed PW-1 that he had settled the matter between the
appellant and his wife. In the meantime, the appellant followed the
deceased from his room to their room, holding a knife in his hand.
PW-1 deposed that he tried to stop the appellant, however, the
deceased struck the appellant on the head with a danda, as the
appellant had come to their room armed with a knife and was saying,
"tera roz-roz ka hamare kamre mein aana khatam kar doonga".
24. PW-1 further stated that the appellant pushed him, due to
which he fell on the floor. Thereafter, the appellant attacked the
deceased with the knife and caused injuries to his chest and thigh. He
deposed that the appellant inflicted several knife blows on the
deceased with the intention to kill him, while shouting, "tera aaj kissa
khatam kar doonga".
25. PW-1 stated that he lifted the deceased, wrapped him in a
bedsheet, and rushed him to the AIIMS Trauma Centre in a TSR with
the help of a neighbour. PW-1 also stated that he had called the police
at number 100 before taking the injured to the hospital. PW-1
identified the clothes worn by himself, the appellant, and the deceased
at the time of the incident. He also identified the knife used by the
appellant to stab the deceased.
26. The presence of PW-1 at the spot is not only natural, as he was
residing with the deceased, but is also supported by the testimony of
PW-7, HC Basant Kumar, who was posted in the PCR stationed at the
Emergency Gate of AIIMS Hospital. He deposed that, on the date of
the incident, upon receiving a call from the Command Centre at about
02:58 A.M., he found PW-1 at the hospital, who informed him that it
was the appellant who had stabbed the deceased. PW-8, HC Kailash
Singh, deposed that, on the fateful night, he was on emergency duty,
and at about 02:16 A.M., he, along with PW-11, Ct. Asif reached the
house of the deceased, and upon inquiry, came to know that the
deceased had been taken to AIIMS. He later met PW-1, who informed
him that the deceased was in a serious condition and was in the
operation theatre. Thereafter, the IO interrogated PW-1. From the
testimony of these witnesses, the presence of PW-1 at the spot and his
consistent description of the events, stand further corroborated.
27. PW-8, HC Kailash Singh, and PW-13, Inspector Pankaj
Pandey, the Investigating Officer, deposed regarding the arrest of the
appellant and the recovery of the clothes worn by the appellant and the
weapon of offence, namely the knife, pursuant to the disclosure
statements made by the appellant.
28. PW-4, Dr. Subhankar Paul, deposed that on 13.07.2019, he was
on duty in the Emergency Department at JPNA Trauma Centre,
AIIMS, New Delhi. On that day, at about 2:47 A.M., the deceased was
brought by PW-1 with an alleged history of assault and was medically
examined by him. He recorded the general condition of the injured
and noticed three injuries on his person, which were described in
detail in the MLC (Ex. PW-4/A). After providing first aid, he referred
the injured to the Departments of Radiology, Neurosurgery,
Orthopaedics, Trauma Surgery, and Medicine for further treatment
and management. He further recorded that the injuries sustained by the
patient were caused by a sharp object, and the nature of the injuries
was opined to be dangerous.
29. PW-5, Dr. Shinto Devassy, deposed that he was posted as a
Senior Resident in the Department of Forensic Medicine, AIIMS,
New Delhi. He further deposed that he conducted the post-mortem
examination on the body of the deceased. As per the post-mortem
report (Ex. PW-5/B), the body of the deceased had the following
injuries:
" (i) Sutured wound was present over the
right side of the upper abdomen, obliquely
placed, measuring 1.5 cm × 0.6 cm. The
upper end was 38 cm below the right
shoulder tip, the lower end was 110 cm
from the right heel, and 11.5 cm from the
midline. One suture was present in situ,
and on opening, the upper end was blunt
and the lower end was sharp. On
dissection, the track of the wound was
found to be directed upward, medially, and
backward, penetrating the skin,
subcutaneous tissue, muscle, and the
parietal fold of the peritoneum, entering
the peritoneal cavity. The track of the
wound measured 7 cm, and blood was
extravasated throughout the track.
(ii) Sutured wound was present over the
left side of the lower chest, obliquely
placed, measuring 2 cm × 0.6 cm. The
upper end was 27 cm below the left
shoulder tip, the lower end was 122 cm
from the left heel, and 17 cm from the
midline. One suture was present in situ,
and on opening, the upper end was blunt
and the lower end was sharp. On
dissection, a thoracotomy or surgically
incised wound was present over the sixth
intercostal space. The muscles of the sixth
intercostal space were excised and
retracted. The sixth rib was fractured and
displaced at the level of the mid-clavicular
line. The wound had penetrated the skin,
subcutaneous tissue, and muscles;
however, the track of the wound could not
be traced due to surgical intervention. The
pericardium was incised and kept open.
(iii) The heart had a sutured wound over
its lateral aspect measuring 4 cm, and a
rent measuring 1.5 cm × 1.5 cm, extending
into the left ventricular cavity, was noted.
On dissection, a clean cut was present over
the middle of the papillary muscle,
extending for 3.5 cm. The wound was
directed upward, medially, and backward.
The track of the wound could not be
measured due to surgical intervention, and
blood was extravasated throughout and
over the fracture site.
(iv) A stab wound was present over the left
thigh, obliquely placed, measuring 1.2 cm
× 0.6 cm. The upper end was 21.5 cm
below the anterior superior iliac spine, and
the lower end was 68 cm from the left heel.
The upper end was sharp and the lower
end was blunt. On dissection, the tract of
the wound was directed upward, medially,
and backward, penetrating the skin and
subcutaneous tissue. The tract of the
wound measured 3 cm, and blood was
extravasated throughout the track."
30. PW-5 further stated that the cause of death was haemorrhagic
shock due to the injuries sustained to the heart. Injury No. (ii) was
fatal and was sufficient to cause death in the ordinary course of nature.
Upon examining the knife (Ex. PW-1/P9), PW-5 stated that injuries
Nos. (i), (ii), and (iii), as mentioned in the post-mortem report, could
possibly have been inflicted with the said weapon.
31. As far as the defence version of the appellant is concerned, he
admits his presence along with the PW-1 and the deceased in the
house of the deceased on the fateful night. However, he states that he
was heavily intoxicated and had gotten into a fight with the deceased
and PW-1, whereafter the deceased hit him with a danda. The factum
of the fight with the deceased is, therefore, also admitted by the
appellant. The appellant further states that he went away upon
regaining consciousness. Interestingly, he did not return to his own
house. This renders his version of simply walking away, unacceptable.
32. We, therefore, find that it was the appellant who had stabbed
the deceased, resulting in the death of the deceased.
33. Now coming to the alternate submission of the learned counsel
for the appellant that, even if the prosecution‟s version is accepted, the
appellant is, at best, guilty of culpable homicide not amounting to
murder, punishable under Section 304 Part II of the IPC. At the outset,
we would reproduce Section 299 of the IPC, which reads as under:
" 299. Culpable homicide.--Whoever causes
death by doing an act with the intention of
causing death, or with the intention of causing
such bodily injury as is likely to cause death,
or with the knowledge that he is likely by such
act to cause death, commits the offence of
culpable homicide."
34. A reading of the above provision would show that whoever
causes death by doing an act,
(a) With the intention of causing death, or
(b) With the intention of causing such bodily injury as is likely
to cause death, or
(c) With the knowledge that he is likely by such act to cause
death,
Commits the offence of culpable homicide.
35. Section 300 of the IPC lays down the circumstances in which
culpable homicide amounts to murder. Section 300, insofar as it is
relevant to the present appeal, reads as follows:
"300. Murder.--Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused
is done with the intention of causing death,
or--
Secondly.--If it is done with the intention of
causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused, or--
Thirdly.--If it is done with the intention of
causing bodily injury to any person and the
bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to
cause death, or--
Fourthly.--If the person committing the act
knows that it is so imminently dangerous that
it must, in all probability, cause death, or such
bodily injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid.
xxxxxx
Exception 1.--When culpable homicide is not
murder.--Culpable homicide is not murder if
the offender, whilst deprived of the power of
self-control by grave and sudden provocation,
causes the death of the person who gave the
provocation or causes the death of any other
person by mistake or accident.
The above exception is subject to the following
provisos:--
First.--That the provocation is not sought or
voluntarily provoked by the offender as an
excuse for killing or doing harm to any
person.
Secondly.--That the provocation is not given
by anything done in obedience to the law, or
by a public servant in the lawful exercise of
the powers of such public servant.
Thirdly.--That the provocation is not given by
anything done in the lawful exercise of the
right of private defence.
Explanation.--Whether the provocation was
grave and sudden enough to prevent the
offence from amounting to murder is a
question of fact.
Exception 2.--Culpable homicide is not
murder if the offender, in the exercise in good
faith of the right of private defence of person
or property, exceeds the power given to him by
law and causes the death of the person against
whom he is exercising such right of defence
without premeditation, and without any
intention of doing more harm than is
necessary for the purpose of such defence.
xxxxx
Exception 4.--Culpable homicide is not
murder if it is committed without
premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the
offender's having taken undue advantage or
acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases
which party offers the provocation or commits
the first assault.
xxxxxx"
36. From the above, and insofar as it is relevant to the present
appeal, the essential ingredients of Exception 1 to Section 300 of the
IPC are as follows:
A. The provocation must be grave and sudden;
B. The offender must have been deprived of the power of
self-control;
C. The act must have been committed in the heat of
passion;
D. The provocation must not have been sought or
voluntarily provoked by the accused;
E. The provocation is not given by anything done in the
lawful exercise of the right of private defence.
37. Section 302 of the IPC prescribes the punishment for murder,
while Section 304 of the IPC prescribes the punishment for culpable
homicide not amounting to murder. Section 304 of the IPC is
subdivided into two parts and is reproduced hereunder:
"304. Punishment for culpable homicide not
amounting to murder.--Whoever commits
culpable homicide not amounting to murder
shall be punished with 1 [imprisonment for
life], or imprisonment of either description for
a term which may extend to ten years, and
shall also be liable to fine, if the act by which
the death is caused is done with the intention
of causing death, or of causing such bodily
injury as is likely to cause death;
or with imprisonment of either
description for a term which may extend to ten
years, or with fine, or with both, if the act is
done with the knowledge that it is likely to
cause death, but without any intention to cause
death, or to cause such bodily injury as is
likely to cause death."
38. The interplay between Sections 299, 300, and 304 of the IPC
has been explained in detail by the Supreme Court in Rampal Singh
(supra), as under:
"11. Sections 299 and 300 of the Code
deal with the definition of "culpable
homicide" and "murder", respectively. In
terms of Section 299, "culpable homicide" is
described as an act of causing death: (i) with
the intention of causing death, or (ii) with the
intention of causing such bodily injury as is
likely to cause death, or (iii) with the
knowledge that such an act is likely to cause
death. As is clear from a reading of this
provision, the former part of it, emphasises on
the expression "intention" while the latter
upon "knowledge". Both these are positive
mental attitudes, however, of different degrees.
The mental element in "culpable homicide",
that is, the mental attitude towards the
consequences of conduct is one of intention
and knowledge. Once an offence is caused in
any of the three stated manners noted above, it
would be "culpable homicide". Section 300,
however, deals with "murder" although there
is no clear definition of "murder" in Section
300 of the Code. As has been repeatedly held
by this Court, "culpable homicide" is the
genus and "murder" is its species and all
"murders" are "culpable homicides" but all
"culpable homicides" are not "murders".
12. Another classification that emerges from
this discussion is "culpable homicide not
amounting to murder", punishable under
Section 304 of the Code. There is again a very
fine line of distinction between the cases
falling under Section 304 Part I and Part II,
which we shall shortly discuss.
13. In State of A.P. v. Rayavarapu
Punnayya [(1976) 4 SCC 382 : 1976 SCC
(Cri) 659]this Court while clarifying the
distinction between these two terms and their
consequences, held as under: (SCC p. 386,
para 12)
"12. In the scheme of the Penal Code,
„culpable homicide‟ is genus and „murder‟ its
species. All „murder‟ is „culpable homicide‟
but not vice versa. Speaking generally, ...
„culpable homicide not amounting to murder‟.
For the purpose of fixing punishment,
proportionate to the gravity of this generic
offence, the Code practically recognises three
degrees of culpable homicide. The first is,
what may be called, „culpable homicide of the
first degree‟. This is the greatest form of
culpable homicide, which is defined in Section
300 as „murder‟. The second may be termed as
„culpable homicide of the second degree‟. This
is punishable under the first part of Section
304. Then, there is „culpable homicide of the
third degree‟. This is the lowest type of
culpable homicide and the punishment
provided for it is, also, the lowest among the
punishments provided for the three grades.
Culpable homicide of this degree is punishable
under the second part of Section 304."
14. Section 300 of the Code proceeds with
reference to Section 299 of the Code.
"Culpable homicide" may or may not amount
to "murder", in terms of Section 300 of the
Code. When a "culpable homicide is murder",
the punitive consequences shall follow in terms
of Section 302 of the Code while in other
cases, that is, where an offence is "culpable
homicide not amounting to murder",
punishment would be dealt with under Section
304 of the Code. Various judgments of this
Court have dealt with the cases which fall in
various classes of Firstly, Secondly, Thirdly
and Fourthly, respectively, stated under
Section 300 of the Code. It would not be
necessary for us to deal with that aspect of the
case in any further detail. Of course, the
principles that have been stated in various
judgments like Abdul Waheed Khan v. State of
A.P.[(2002) 7 SCC 175 : 2005 SCC (Cri)
1301], Virsa Singh v. State of Punjab [AIR
1958 SC 465 : 1958 Cri LJ 818] and Rajwant
Singh v. State of Kerala [AIR 1966 SC 1874 :
1966 Cri LJ 1509] are the broad guidelines
and not cast-iron imperatives. These are the
cases which would provide precepts for the
courts to exercise their judicial discretion
while considering the cases to determine as to
which particular clause of Section 300 of the
Code they fall in.
15. This Court has time and again deliberated
upon the crucial question of distinction
between Sections 299 and 300 of the Code i.e.
"culpable homicide" and "murder"
respectively. In Phulia Tudu v. State of Bihar
[(2007) 14 SCC 588 : (2009) 3 SCC (Cri) 221
: AIR 2007 SC 3215] the Court noticed that
confusion is caused if courts, losing sight of
the true scope and meaning of the terms used
by the legislature in these sections, allow
themselves to be drawn into minute
abstractions. The safest way of approach to
the interpretation and application of these
provisions seems to be to keep in focus the
keywords used in the various clauses of these
sections.
16. The Court in Phulia Tudu [(2007) 14 SCC
588 : (2009) 3 SCC (Cri) 221 : AIR 2007 SC
3215]provided the following comparative
table to help in appreciating the points of
discussion between these two offences: (SCC
p. 591, para 7)
" 7. ....‟12. * * * *
Section 299 Section 300
A person commits culpable homicide if Subject to certain exceptions, culpable
the act by which the death is caused is homicide is murder if the act by which
done - the death is caused is done -
Intention
a) With the intention of causing death; 1) with the intention of causing death;
or or
b) With the intention of causing such 2) with the intention of causing such
bodily injuries as is likely to cause bodily injury as the offender knows to
death; or be likely to cause the death of the
person to whom the harm is caused; or
3) With the intention of causing bodily
injury to any person and the bodily
injury intended to be inflicted is
sufficient in the ordinary course of
nature to cause death; or
Knowledge
c) With the knowledge that the act is 4) with the knowledge that the act is so
likely to cause death. imminently dangerous that it must in all
probability cause death or such bodily
injury as is likely to cause death, and
without any excuse for incurring the
risk of causing death of such injury as
is mentioned above.‟ (Abdul Waheed
case3, SCC p. 184, para 12).
17. Section 300 of the Code states what kind of
acts, when done with the intention of causing
death or bodily injury as the offender knows to
be likely to cause death or causing bodily
injury to any person, which is sufficient in the
ordinary course of nature to cause death or
the person causing injury knows that it is so
imminently dangerous that it must in all
probability cause death, would amount to
"murder". It is also "murder" when such an
act is committed, without any excuse for
incurring the risk of causing death or such
bodily injury. The section also prescribes the
Exceptions to "culpable homicide amounting
to murder". The Explanations spell out the
elements which need to be satisfied for
application of such Exceptions, like an act
done in the heat of passion and without
premeditation. Where the offender whilst being
deprived of the power of self-control by grave
and sudden provocation causes the death of
the person who has caused the provocation or
causes the death of any other person by
mistake or accident, provided such
provocation was not at the behest of the
offender himself, "culpable homicide would
not amount to murder". This Exception itself
has three limitations. All these are questions of
facts and would have to be determined in the
facts and circumstances of a given case.
18. This Court in Vineet Kumar
Chauhan v. State of U.P.[(2007) 14 SCC 660 :
(2009) 1 SCC (Cri) 915] noticed that
academic distinction between "murder" and
"culpable homicide not amounting to murder"
had vividly been brought out by this Court
in State of A.P. v. Rayavarapu
Punnayya [(1976) 4 SCC 382 : 1976 SCC
(Cri) 659]where it was observed as under:
(Vineet Kumar case[(2007) 14 SCC 660 :
(2009) 1 SCC (Cri) 915], SCC pp. 665-66,
para 16)
"16. ... that the safest way of approach to the
interpretation and application of Sections 299
and 300 IPC is to keep in focus the key words
used in various clauses of the said sections.
Minutely comparing each of the clauses of
Sections 299 and 300 IPC and drawing
support from the decisions of this Court
in Virsa Singh v. State of Punjab [AIR 1958
SC 465 : 1958 Cri LJ 818] and Rajwant
Singh v. State of Kerala[AIR 1966 SC 1874 :
1966 Cri LJ 1509], speaking for the Court,
R.S. Sarkaria, J. neatly brought out the points
of distinction between the two offences, which
have been time and again reiterated. Having
done so, the Court said that wherever the
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 [would] 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 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
IPC. It was, however, clarified that these were
only broad guidelines to facilitate the task of
the court and not cast-iron imperative."
19. Having noticed the distinction between
"murder" and "culpable homicide not
amounting to murder", now we are required to
explain the distinction between the application
of Section 302 of the Code on the one hand
and Section 304 of the Code on the other.
20. In Ajit Singh v. State of Punjab [(2011) 9
SCC 462 : (2011) 3 SCC (Cri) 712]the Court
held that: (SCC p. 468, para 20)
"20. In order to hold whether an offence
would fall under Section 302, or Section 304
Part I IPC, the courts have to be extremely
cautious in examining whether the same falls
under Section 300 IPC which states whether a
culpable homicide is murder, or would it fall
under its five Exceptions which lay down when
culpable homicide is not murder...."
In other words, Section 300 states both, what
is murder and what is not. First finds place in
Section 300 in its four stated categories, while
the second finds detailed mention in the stated
five Exceptions to Section 300. The legislature
in its wisdom, thus, covered the entire gamut
of culpable homicide that "amounting to
murder" as well as that "not amounting to
murder" in a composite manner in Section 300
of the Code.
21. [Ed.: Para 21 corrected vide Official
Corrigendum No. F.3/Ed.B.J./54/2012 dated
6-9-2012.] Sections 302 and 304 of the Code
are primarily the punitive provisions. They
declare what punishment a person would be
liable to be awarded, if he commits either of
the offences. An analysis of these two sections
must be done having regard to what is
common to the offences and what is special to
each one of them. The offence of culpable
homicide is thus an offence which may or may
not be murder. If it is murder, then it is
culpable homicide amounting to murder, for
which punishment is prescribed in Section 302
of the Code. Section 304 deals with cases not
covered by Section 302 and it divides the
offence into two distinct classes, that is, (a)
those in which the death
is intentionally caused; and (b) those in which
the death is caused unintentionally but
knowingly. In the former case the sentence of
imprisonment is compulsory and the maximum
sentence admissible is imprisonment for life.
In the latter case, imprisonment is only
optional, and the maximum sentence only
extends to imprisonment for 10 years. The first
clause of Section 304 includes only those cases
in which offence is really "murder", but
mitigated by the presence of circumstances
recognised in the Exceptions to Section 300 of
the Code, the second clause deals only with
the cases in which the accused has no
intention of injuring anyone in particular. In
this regard, we may also refer to the judgment
of this Court in Fatta v. Emperor[AIR 1931
Lah 63] , 1151. C. 476 (Refer: Penal Law of
India by Dr Hari Singh Gour, Vol. 3, 2009.)
22. Thus, where the act committed is done with
the clear intention to kill the other person, it
will be a murder within the meaning of Section
300 of the Code and punishable under Section
302 of the Code but where the act is done on
grave and sudden provocation which is not
sought or voluntarily provoked by the offender
himself, the offence would fall under the
Exceptions to Section 300 of the Code and is
punishable under Section 304 of the Code.
Another fine tool which would help in
determining such matters is the extent of
brutality or cruelty with which such an offence
is committed.
23. An important corollary to this discussion is
the marked distinction between the provisions
of Section 304 Part I and Part II of the Code.
Linguistic distinction between the two parts of
Section 304 is evident from the very language
of this section. There are two apparent
distinctions, one in relation to the punishment
while other is founded on the intention of
causing that act, without any intention but with
the knowledge that the act is likely to cause
death. It is neither advisable nor possible to
state any straitjacket formula that would be
universally applicable to all cases for such
determination. Every case essentially must be
decided on its own merits. The Court has to
perform the very delicate function of applying
the provisions of the Code to the facts of the
case with a clear demarcation as to under
what category of cases, the case at hand falls
and accordingly punish the accused.
24. A Bench of this Court in Mohinder Pal
Jolly v. State of Punjab [(1979) 3 SCC 30 :
1979 SCC (Cri) 635 : AIR 1979 SC
577]stating this distinction with some clarity,
held as under: (SCC pp. 36-37, para 11)
"11. A question now arises whether the
appellant was guilty under Part I of Section
304 or Part II. If the accused commits an act
while exceeding the right of private defence by
which the death is caused either with the
intention of causing death or with the intention
of causing such bodily injury as was likely to
cause death then he would be guilty under
Part I. On the other hand if before the
application of any of the Exceptions of Section
300 it is found that he was guilty of murder
within the meaning of clause „Fourthly‟, then
no question of such intention arises and only
the knowledge is to be fastened on him that he
did indulge in an act with the knowledge that it
was likely to cause death but without any
intention to cause it or without any intention to
cause such bodily injuries as was likely to
cause death. There does not seem to be any
escape from the position, therefore, that the
appellant could be convicted only under Part
II of Section 304 and not Part I."
25. As we have already discussed,
classification of an offence into either part of
Section 304 is primarily a matter of fact. This
would have to be decided with reference to the
nature of the offence, intention of the offender,
weapon used, the place and nature of the
injuries, existence of premeditated mind, the
persons participating in the commission of the
crime and to some extent the motive for
commission of the crime. The evidence led by
the parties with reference to all these
circumstances greatly helps the court in
coming to a final conclusion as to under which
penal provision of the Code the accused is
liable to be punished. This can also be decided
from another point of view i.e. by applying the
"principle of exclusion". This principle could
be applied while taking recourse to a two-
stage process of determination. Firstly, the
Court may record a preliminary finding if the
accused had committed an offence punishable
under the substantive provisions of Section
302 of the Code, that is, "culpable homicide
amounting to murder". Then secondly, it may
proceed to examine if the case fell in any of the
Exceptions detailed in Section 300 of the
Code. This would doubly ensure that the
conclusion arrived at by the court is correct on
facts and sustainable in law. We are stating
such a proposition to indicate that such a
determination would better serve the ends of
criminal justice delivery. This is more so
because presumption of innocence and right to
fair trial are the essence of our criminal
jurisprudence and are accepted as rights of
the accused. "
39. In Dauvaram Nirmalkar (supra), the Supreme Court explained
the essentials for invoking Exception 1 and Exception 4 to Section
300 of the IPC, by observing as under:
" 9. Exception 1 differs from Exception 4 of
Section 300 IPC. Exception 1 applies when
due to grave and sudden provocation, the
offender, deprived of the power of self-control,
causes the death of the person who gave the
provocation. Exception 1 also applies when
the offender, on account of loss of self-control
due to grave and sudden provocation, causes
the death of any other person by mistake or
accident. Exception 4 applies when an offence
is committed without premeditation, in a
sudden fight in the heat of passion upon a
sudden quarrel and the offender commits
culpable homicide without having taken undue
advantage of acting in a cruel and unusual
manner. The Explanation to Exception 4 states
that in such cases it is immaterial which party
gives the provocation or commits the first
assault.
10. Interpreting Exception 1 to Section 300
in K.M. Nanavati v. State of Maharashtra this
Court has held that the conditions which have
to be satisfied for the exception to be invoked
are:
(a) the deceased must have given
provocation to the accused;
(b) the provocation must be grave;
(c) the provocation must be sudden;
(d) the offender, by the reason of the
said provocation, should have been
deprived of his power of self-control;
(e) the offender should have killed the
deceased during the continuance of the
deprivation of power of self-control;
and
(f) the offender must have caused the
death of the person who gave the
provocation or the death of any other
person by mistake or accident.
11. For determining whether or not the
provocation had temporarily deprived the
offender from the power of self-control, the
test to be applied is that of a reasonable man
and not that of an unusually excitable and
pugnacious individual. Further, it must be
considered whether there was sufficient
interval and time to allow the passion to
cool. K.M. Nanavati succinctly observes: (SCC
OnLine SC paras 150-51)
"150. Is there any standard of a
reasonable man for the application of the
doctrine of "grave and sudden" provocation?
No abstract standard of reasonableness can be
laid down. What a reasonable man will do in
certain circumstances depends upon the
customs, manners, way of life, traditional
values, etc. ; in short, the cultural, social and
emotional background of the society to which
an accused belongs. In our vast country there
are social groups ranging from the lowest to
the highest state of civilization. It is neither
possible nor desirable to lay down any
standard with precision : it is for the court to
decide in each case, having regard to the
relevant circumstances. It is not necessary in
this case to ascertain whether a reasonable
man placed in the position of the accused
would have lost his self-control momentarily
or even temporarily when his wife confessed to
him of her illicit intimacy with another, for we
are satisfied on the evidence that the accused
regained his self-control and killed Ahuja
deliberately.
151. The Indian law, relevant to the
present enquiry, may be stated thus : (1) The
test of "grave and sudden" provocation is
whether a reasonable man, belonging to the
same class of society as the accused, placed in
the situation in which the accused was placed
would be so provoked as to lose his self-
control. (2) In India, words and gestures may
also, under certain circumstances, cause grave
and sudden provocation to an accused so as to
bring his act within the First Exception to
Section 300 of the Penal Code, 1860. (3) The
mental background created by the previous act
of the victim may be taken into consideration
in ascertaining whether the subsequent act
caused grave and sudden provocation for
committing the offence. (4) The fatal blow
should be clearly traced to the influence of
passion arising from that provocation and not
after the passion had cooled down by lapse of
time, or otherwise giving room and scope for
premeditation and calculation."
12. K.M. Nanavati, has held that the mental
background created by the previous act(s) of
the deceased may be taken into consideration
in ascertaining whether the subsequent act
caused sudden and grave provocation for
committing the offence. There can be sustained
and continuous provocations over a period of
time, albeit in such cases Exception 1 to
Section 300IPC applies when preceding the
offence, there was a last act, word or gesture
in the series of incidents comprising of that
conduct, amounting to sudden provocation
sufficient for reactive loss of self-control.
13.K.M. Nanavati quotes the definition of
"provocation" given by Goddard, C.J.;
in R. v. Duffy as : (Duffy case, All ER p. 932)
"... some act or series of acts, done by
the dead man to the accused which would
cause in any reasonable person, and actually
causes in the accused, a sudden and temporary
loss of self-control, rendering the accused so
subject to passion as to make him or her for
the moment not master of his own mind. ...
[I]ndeed, circumstances which induce a desire
for revenge are inconsistent with provocation,
since the conscious formulation of a desire for
revenge means that the person had time to
think, to reflect, and that would negative a
sudden temporary loss of self-control which is
of the essence of provocation...".
14. The question of loss of self-control by
grave and sudden provocation is a question of
fact. Act of provocation and loss of self-
control, must be actual and reasonable. The
law attaches great importance to two things
when defence of provocation is taken under
Exception 1 to Section 300IPC. First, whether
there was an intervening period for the
passion to cool and for the accused to regain
dominance and control over his mind.
Secondly, the mode of resentment should bear
some relationship to the sort of provocation
that has been given. The retaliation should be
proportionate to the provocation. The first
part lays emphasis on whether the accused
acting as a reasonable man had time to reflect
and cool down. The offender is presumed to
possess the general power of self-control of an
ordinary or reasonable man, belonging to the
same class of society as the accused, placed in
the same situation in which the accused is
placed, to temporarily lose the power of self-
control. The second part emphasises that the
offender's reaction to the provocation is to be
judged on the basis of whether the provocation
was sufficient to bring about a loss of self-
control in the fact situation. Here again, the
court would have to apply the test of a
reasonable person in the circumstances.
15. While examining these questions, we
should not be shortsighted, and must take into
account the whole of the events, including the
events on the day of the fatality, as these are
relevant for deciding whether the accused was
acting under the cumulative and continuing
stress of provocation. Gravity of provocation
turns upon the whole of the victim's abusive
behaviour towards the accused. Gravity does
not hinge upon a single or last act of
provocation deemed sufficient by itself to
trigger the punitive action. Last provocation
has to be considered in light of the previous
provocative acts or words, serious enough to
cause the accused to lose his self-control. The
cumulative or sustained provocation test
would be satisfied when the accused's
retaliation was immediately preceded and
precipitated by some sort of provocative
conduct, which would satisfy the requirement
of sudden or immediate provocation.
16. Thus, the gravity of the provocation can be
assessed by taking into account the history of
the abuse and need not be confined to the
gravity of the final provocative act in the form
of acts, words or gestures. The final
wrongdoing, triggering off the accused's
reaction, should be identified to show that
there was temporary loss of self-control and
the accused had acted without planning and
premeditation. This has been aptly
summarised by Ashworth in the following
words:
"[T]he significance of the deceased's
final act should be considered by reference to
the previous relations between the parties,
taking into account any previous incidents
which add colour to the final act. This is not to
argue that the basic distinction between
sudden provoked killings and revenge killings
should be blurred, for the lapse of time
between the deceased's final act and the
accused's retaliation should continue to tell
against him. The point is that the significance
of the deceased's final act and its effect upon
the accused -- and indeed the relation of the
retaliation to that act -- can be neither
understood nor evaluated without reference to
previous dealings between the parties."
17. Exception 1 to Section 300 recognises that
when a reasonable person is tormented
continuously, he may, at one point of time,
erupt and reach a break point whereby losing
self-control, going astray and committing the
offence. However, sustained provocation
principle does not do away with the
requirement of immediate or the final
provocative act, words or gesture, which
should be verifiable. Further, this defence
would not be available if there is evidence of
reflection or planning as they mirror exercise
of calculation and premeditation.
18. Following the view expressed in K.M.
Nanavati, this Court in Budhi Singh v. State of
H.P. observed that in the test for application of
Exception 1 to Section 300IPC, the primary
obligation of the court is to examine the
circumstances from the point of view of a
person of reasonable prudence, if there was
such grave and sudden provocation, as to
reasonably conclude that a person placed in
such circumstances can temporarily lose self-
control and commit the offence in the
proximity to the time of provocation. A
significant observation in Budhi Singh is that
the provocation may be an act or series of acts
done by the deceased to the accused resulting
in inflicting of the injury. The idea behind this
exception is to exclude the acts of violence
which are premeditated, and not to deny
consideration of circumstances such as prior
animosity between the deceased and the
accused, arising as a result of incidents in the
past and subsequently resulting in sudden and
grave provocation. In support of the aforesaid
proposition and to convert the conviction from
Section 302 to Section 304 Part I IPC in Budhi
Singh, the Court also relied upon Rampal
Singh v. State of U.P..
19. For clarity, it must be stated that the
prosecution must prove the guilt of the
accused, that is, it must establish all
ingredients of the offence with which the
accused is charged, but this burden should not
be mixed with the burden on the accused of
proving that the case falls within an exception.
However, to discharge this burden the accused
may rely upon the case of the prosecution and
the evidence adduced by the prosecution in the
court. It is in this context we would refer to the
case of the prosecution, which is that the
deceased was addicted to alcohol and used to
constantly torment, abuse and threaten the
appellant. On the night of the occurrence, the
deceased had consumed alcohol and had told
the appellant to leave the house and if not, he
would kill the appellant. There was sudden
loss of self-control on account of a "slow
burn" reaction followed by the final and
immediate provocation. There was temporary
loss of self-control as the appellant had tried
to kill himself by holding live electrical wires.
Therefore, we hold that the acts of provocation
on the basis of which the appellant caused the
death of his brother, Dashrath Nirmalkar,
were both sudden and grave and that there
was loss of self-control."
40. Applying the above principles to the facts of the present case,
we find that it is the prosecution‟s own case that the incident occurred
when the deceased went to the appellant‟s house after hearing the
appellant quarrelling with his wife in the middle of the night. The
deceased thereafter returned to his room and informed PW-1 that he
had been able to stop the quarrel. However, immediately thereafter,
the appellant followed him with a knife, which, in the present case, is
admitted to be a kitchen knife. Though it is the case of PW-1 that,
while following the deceased, the appellant was exhorting and saying
"tera roz-roz ka hamare kamre mein aana khatam kar doonga" and
"tera aaj kissa khatam kar doonga," and pushed PW-1 to the floor,
thereafter inflicting several knife blows on the person of the deceased
with the intention to kill him, PW-1 also admitted that, when he was
trying to stop the appellant, it was the deceased who first struck the
appellant on the head with a danda.
41. The above sequence of events shows that the incident occurred
on the spur of the moment and without any premeditation. It was the
deceased who first went to the appellant‟s house in the middle of the
night, and intervened in a verbal altercation between the appellant and
his wife. Although the appellant followed him with a knife in his hand
and was exhorting that he would kill him, the same, by itself, does not
conclusively establish an intention to kill; at best, it indicates that
passions were running high. Further, while the act of the deceased in
striking the appellant on the head with a danda, in the above facts,
would not amount to sudden and grave provocation, nor justify the
appellant in inflicting knife blows in self-defence, an overall
consideration of the circumstances would show that there was no
intention on the part of the appellant to cause the death of the
deceased.
42. In Mangesh (supra), the fact that the injuries were not deep, is
one of the factor that was taken into consideration by the Supreme
Court also in converting a conviction from Section 302 IPC to Section
304-I IPC, by observing as under:
"12. It is evident from the medical report that
the appellant has not given the knife-blow with
full force. Otherwise, the depth of Injury 1
would have been more than just "cavity-
deep". The fact that the appellant stabbed the
deceased twice in the thigh and only once in
the chest is indicative of a lack of intention to
cause death. Had the appellant intended to kill
the deceased, it is unlikely that he would flee
from the scene without having inflicted more
injuries on the deceased."
43. In the present case, what is also relevant is that the appellant
had been hit on the head by the deceased with a danda. It is in the
consequent fight, the appellant inflicted the knife blows which landed
on chest as also the thigh of the deceased. It can, therefore, not be
concluded that the appellant had inflicted the injuries with the intent of
causing death of the deceased or with the intention to cause such
bodily injury as is likely to cause the death of the deceased. However,
at the same time, having gone to house of the deceased armed with the
kitchen knife and having assaulted him with it, the appellant must be
attributed with the knowledge that his acts were likely to cause the
death of the deceased. In our opinion, therefore, the present case falls
within the ambit of Section 304 Part II of the IPC.
44. Accordingly, the Impugned Order dated 15.07.2023, whereby
the appellant was held guilty of the offence under Section 302 of the
IPC, as well as the Order on Sentence dated 19.10.2023, sentencing
the appellant to life imprisonment, are hereby set aside.
45. Instead, the appellant is held guilty of the offence punishable
under Section 304 Part-II of the IPC. As regards the quantum of
sentence, as on date, the appellant has already undergone
imprisonment for more than seven years, including remissions.
Accordingly, the sentence of the appellant is modified to the period
already undergone by him, and he is directed to be released from jail
forthwith, if not required in any other case.
46. The remaining directions of the learned Trial Court in the Order
on Sentence, insofar as they relate to the fine, are sustained.
47. The present appeal is disposed of in the above terms. All
pending applications, if any, are also disposed of.
48. A copy of this judgment shall be communicated to the learned
Trial Court and the concerned Jail Superintendent for compliance.
NAVIN CHAWLA, J.
RAVINDER DUDEJA, J.
MARCH 18, 2026/RV/DG
