Jharkhand High Court
Chunda Murmu vs The State Of Jharkhand on 12 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
- 1 -Cr. Appeal (DB) No. 839 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 839 of 2017
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(Against the judgment of conviction dated 17.03.2017 and order of
sentence dated 18.03.2017, passed by learned District & Additional
Sessions Judge-III, Dumka, in Sessions Trial No. 92 of 2012)
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Chunda Murmu, son of Late Muchiya Murmu, resident of vill-
Chirudih, P.O. & P.S. - Dumka, District-Dumka
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Aditya Raman, Advocate (Amicus Curiae)
For the Respondent : Mr. Tarun Kumar, A.P.P.
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C.A.V. on 01/02/2024 Pronounced on 12/02/2024
Per Sujit Narayan Prasad, J.:
1. This appeal has been filed under Section 374 (2) of the
Code of Criminal Procedure against the judgment of
conviction dated 17.03.2017 and order of sentence dated
18.03.2017, passed by learned District & Additional Sessions
Judge-III, Dumka, in Sessions Trial No. 92 of 2012,whereby
and whereunder the learned trial court has convicted the
appellant under Section 302 of the Indian Penal Code and
has sentenced to undergo R.I for life under Section 302 IPC
and fine of Rs. 20,000/- and in the event of non-payment of
fine convict was further directed to undergo SI for additioinal
three months.
2. This Court, before proceeding to examine the legality
and propriety of the judgment of conviction and order of
sentence, deems it fit and proper to refer the background of
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institution of prosecution case, which as per the written
report of the informant Safid Choukidar is that on
29.10.2011, when the informant was going to his house from
his duty from State Bank of India, Gando Branch then the
villager of Chirudih village informed him that Chunda Murmu
has committed murder of his wife. To verifiy this information,
he reached near the Chunda Murmu's house where he saw
that many persons were gathered there and dead body of
Joba Marandi, wife of Chunda Murmu, was lying on the
ground and the blood was oozing out from her head. It is
further alleged that on inquiry villagers stated that today at
about 2:00 p.m. a quarrel was going on between Chunda
Murmu and his wife and Chunda Murmu, who remains in
drunken state in whole day and did not do any work and his
wife maintained her four children anyhow and she being
annoyed from her husband wanted to go her father's house
Kolha, Police Station Kathikund then Chunda Murmu has
prohibited him and when she did not do so and rigid to go to
her father's house then Chunda Murmu picked up a ‗wooden
pirha‟ and given blow forcibly on the head of his wife due to
which his wife sustained grievous injury and she fell down in
injured condition and died.
3. On the basis of the fardbeyan of the informant dated
29.10.2011 Dumka (M) P.S. Case No. 156/2011 was
registered for the offence under Section 302 of the Indian
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Penal Code against the accused Chunda Murmu and after
completion of investigation the Investigating Officer ha
submitted charge-sheet under Section 302 of the Indian
Penal Code against accused Chunda Murmu. Accordingly,
the cognizance for the offence under Section 302 of the
Indian Penal Code was taken against accused Chunda
Murmu and the case stands committed to the Court of
Sessions vide order dated 29.05.2012 by the Court of C.J.M.,
Dumka.
4. The charge was framed under Section 302 of the Indian
Penal Code against named accused person on 27.09.2012 to
which he pleaded not guilty and claimed to be tried.
5. During trial, in order to prove its case, the prosecution
has examined altogether eleven witnesses, they are PW 1 Md.
Safid, (informant of this case), PW 2 Mallick Marandi, PW 3
Mangal Murmu, PW 4 Bateshwar Marandi (hostile), PW 5
Jitu Murmu (hostile), PW 6 Raska Murmu, PW 7 Md.
Nijamuddin, PW 8 Md. Mukhtar Ali, PW 9 Parmeshwar
Liyangi, (Investigating Officer of this case), PW 10 Dr. Ramesh
Prasad Verma (who conducted the postmortem) and PW 11
Manoj Kumar Sharma (formal witness).
6. The trial Court, after recording the evidence of
witnesses, examination-in-chief and cross-examination,
recorded the statement of the accused and found the charges
levelled against the appellant proved beyond all reasonable
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doubts. Accordingly, the appellant had been found guilty and
convicted for the offence punishable under Sections 302 of
the Indian Penal Code and sentenced to undergo life
imprisonment for the said offence, which is subject matter of
instant appeal.
7. The aforesaid judgment of conviction and order of
sentence is under consideration before this Court as to
whether the trial Court, while convicting the accused person,
has committed any illegality or not.
8. Mr. Aditya Raman, learned Amicus Curaie, appearing
for the appellant has assailed the impugned judgment of
conviction and order of sentence on the following grounds:
I. That the prosecution has miserably failed to establish
the charge said to be proved beyond all reasonable
doubt.
II. That the prosecution has also failed to appreciate
that it is not a case where any ingredient of Section
302 I.P.C. is attracted.
III. That admittedly, in the case at hand, there is no eye
witness to the occurrence and only on the
circumstantial evidence the appellant has been
convicted in the case.
IV. Further, the investigation in the case at hand has
been done in a haphazedly manner and there are
many discrepancies and inconsistency in the
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testimony of the witnesses but the the learned trial
Court did not take into consideration these facts into
consdiration while passing the impugned judgment of
conviction.
V. Further, the commission of crime cannot be said to
be conclusively proved in absence of any
corroboration by not sending the ‗wooden pirha'
(wooden plank), said to be used in commission of
crime of assaulting the deceased, to the Forensic
Science Laboratory.
VI. The learned counsel for the appellant, based upon the
aforesaid ground, has submitted that the impugned
judgment suffers from illegality, hence not
sustainable in the eyes of law.
VII. Submission has been made that even the prosecution
story is taken to be true then also the learned trial
court has also failed to appreciate that the
commission of crime of murder is only on the basis of
the heat of passion in a sudden quarrel between
husband and wife over the matter of going to parental
house of the wife.
VIII. Therefore, in alternative, it has been argued that even
accepting the case of the prosecution to be true, even
then, at best this case would fall under Section 304
Part-II of the Indian Penal Code taking into
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consideration the fact that in the manner and mode
in which the murder is alleged to be committed which
is by giving single blow of ‗wooden pirha' on the head,
which facts get corroborated by the testimony of
doctor.
9. Mr. Tarun Kumar, learned A.P.P. has opposed the
grounds agitated on behalf of appellants against the
impugned judgment by defending the same stating inter alia
that there is no infirmity in the impugned judgment on the
following grounds:
I. It is a case where the prosecution has been able to
prove the charge beyond all reasonable doubt,
since the assault admittedly was inflicted upon the
deceased which resulted into death of the
deceased.
II. All the prosecution witnesses have conclusively
supported the prosecution version, and the version
of giving Pirha [wooden plank] blow on the head of
the deceased by the appellant has been
corroborated by the medical evidence and further
the said pirha (wooden plank) was recovered from
the place of occurrence as also the appellant was
caught hold of at the place of occurrence.
III. The Investigating Officer has corroborated the
occurrence by supporting the testimony of the
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prosecution witnesses as also the injury inflicted
upon the deceased has been corroborated by the
medical evidence wherein the Doctor has found the
nature of injuries having been caused by hard and
blunt substance and the injury has also been
found over the dead body of the deceased.
IV. Learned counsel appearing for the State and the
informant, based upon the aforesaid premise, has
submitted that the impugned judgment does not
suffer from any error, hence the instant appeals
are fit to be dismissed.
10. We have heard learned counsel for the parties, perused
the material available on record more particularly the
testimony of the witnesses as also the finding recorded by
learned trial Court.
11. This Court before considering the argument advanced
on behalf of the parties is now proceeding to consider the
deposition of witnesses, as per the testimony as recorded by
learned trial Court.
12. PW 1 Md. Safid is the informant of this case. He has
stated in his examination-in-chief that on 29.10.2011 after
completing his duty at S.B.I.,Gando Branch, when he was
going to his house on his motorcycle he received an
information from village Chirudih on telephone that the wife
of Chunda Murmu has been murdered then he went there
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and saw the crowd of villagers, where Chunda's wife Joba
was laying in injured condition in the courtyard and blood
was oozing out from her head. The villagers stated that
Chunda has committed her murder by giving 'Pirha' (wooden
structure) blows on her head. He has further stated that he
informed the police by mobile then Police came and took
away the dead body. He has further stated that his statement
was recorded by Officer-in-Charge in the village. He has
signed on his fardbeyan, which has been marked as Exhibit -
1. He has identified the accused. In his cross-examination, he
has stated that many villagers told that Chunda has
committed the murder of his wife. This witness has been
cross-examined at length.
13. PW 2-Mallick Marandi has stated in his examination-in-
chief that the occurrence has taken place 1½ years ago and
at that time he was at his home. He has further stated that
Mainuddin Ansari has told that Chunda has killed his wife.
He has further stated that he was about to go then a child
has stated that injured has died. He has further stated that
when he reached there he saw that Joba was laying on the
ground and blood was oozing out and villagers have tied and
kept Chuda and when he asked the Chunda then he stated
that he has committed the murder of his wife by giving Pirha
blows to her as the deceased was out of her house for two
nights for visiting Mela leaving his five children and on query
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she started to quarrel and going to Naihar then he prevented
her and in anger, he had given 'Pirha' blows to her. He has
further stated that Chunda and Joba both were in drunken
state then he informed the Choukidar on mobile. He has
stated that paper of the dead body was prepared and he has
identified his signature on it, which is marked as Exhibit -2.
This witness was cross-examined at length.
14. PW 3-Mangal Murmu has stated that the occurrence
has taken place in October of the last year. He has further
stated that he reached there on hulla and saw that Chunda's
wife is lying dead and Pirha is also there and Chunda has
been kept tied. He has further stated that the accused had
committed murder by giving wooden Pirha blows but he does
not know the reason behind it. He has identified the accused.
He has stated in his cross-examination that Chunda is his
nephew and he has four children who lives with him.
15. PW 4-Bateshwar Marandi has stated in his
examination-in-chief that the occurrence has taken place
about 3 years ago. He has further stated that the wife of his
villager's Chunda Murmu has died but he does not know how
and when she died. He has further stated that he was
returning from Morbhanga Post Office then police called him
and taken his signature on the seizure list. He has identified
his signature on the same, which is marked as Exhibit - 3.
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This witness has been declared hostile on the prayer of
prosecution.
16. PW 5-Jitu Murmu. He has stated in his examination-in-
chief that he does not know about the occurrence. This
witness has also been declared hostile.
17. PW 6-Raska Murmu has stated in his examination-in-
chief that he does know when the incident was taken place.
He has further stated tha at the time of occurrence Police has
come. He has further stated that on 29.10.2011 Police has
seized Pirha (Wooden structure) be smeared with blood and
blood stained soil before him from the house of Chunda
Murmu. He has identified his signature on seizure list, which
is marked as Exhibit - 3/1.
18. PW 7-Md. Nijamuddin has stated in his examination-
inchief that the occurrence has taken place on 29.10.2011
and at that time he was posted in Muffasil Police Station,
Dumka. He has further stated that he received information in
the night by telephone that the occurrence has taken place in
the Chunda's house of village Chirudih then he asked what
happened then he told that Chunda has killed his wife.
Thereafter he reached there in the night and saw that the
dead body of the deceased was lying in the veranda
(courtyard) of the house and a blood stained Pirha was also
lying nearby the dead body and when he asked to the
villagers that how she died then villagers told him that
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Chunda Murmu has killed her and villagers have kept tied to
him with khuta [piece of wooden plank embedded in soil]
then he went near Chunda Murmu and asked him then he
told that his wife used to go outside in the night and he has
to prepare food and due to this anger he killed her.
19. This witness has further stated that thereafter he
informed the village Choukidar and called him and later on
he also called the Officer-in-Charge of Police Station. He has
further stated that Officer-in-Charge of Police Station came at
2:00 p.m. and he handed over the dead body and Chunda
Murmu to the Officer-in-Charge. Later on Officer-in-Charge of
Police Station has given Kaman to him for the postmortem of
the dead body and sent a choukidar along with him where
postmortem has done. He has identified the accused person.
20. PW 8-Md. Mukhtar Ali has stated in his examination-in-
chief that the occurrence has taken place on 29.10.2011 at
about 1:30 p.m. and at that time he was sitting in his
veranda of his house. He has further stated that wife of
accused brother's Mainu Kisku cried then he reached there
and saw that front door was closed and Manuddin Ansari
opened the door from the backside then he entered into the
room and saw that the dead body was laying near the door
and when he touched her he felt that her breath was going on
then he arranged the vehicle, in the meantime she died. He
has further stated that Mainu Kisku told that accused has
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assaulted to deceased by Pirha and blood was oozing out
from the ear and the Pirha was laying there. He has further
stated that many villagers were gathered there and Chunda
Murmu was sitting on the cot at some distance and he has
not inquired anything to him. He has further stated that he
made the telephonic call to Sardar Ji then he came and
Choukidar and Police have also come.
21. PW 9-Parmeshwar Liyangi, is the Investigating Officer of
this case. He has stated in his examination-in-chief that on
29.10.2011 he was posted at Dumka(M) Police Station and at
3 p.m. he received the information that in village Chirudih,
the appellant-husband has murdered his wife and on that
information he recorded the Sanha No. 643 in Police Diary
and proceeded for verification alongwith A.S.I. William George
Topno and armed force and reached the house of Chunda
Murmu of village Chirudih and recorded the fardbeyan of
Choukidar No. 9/2 Md. Safid, which is in his pen and
signature and also singed by witness Mallick Marandi, Jitu
Murmu and Mangal Murmu. He has identified the same,
which has been marked as Exhibit - 4. He has further stated
that he inspected the place of occurrence. The place of
occurrence of this case is south oriented soil - tiled house
and its outside also a place of courtyard type, the house of
accused Chunda Murmu. He has further stated that he
prepared the map of the place ofoccurrence, which is
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mentioned at the page- 04 of case diary, marked as Exhibit-5.
He has also prepared the Inquest Report before the two
independent witness Mallick Marandi and Mangal Marandi,
which is signed by both the witnesses and he himself singed
on it, which is marked as Exhibit- 6. He has seized the Pirha
be smeared with blood and blood stained soil from the place
ofoccurrence in presence of two witnesses namely Raska
Murmu and BateshwarMurmu, which is signed by witnesses
also and its one copy has also given to the accused, which is
marked as Exhibit- 7. He has further stated that after
preparing the dead body challan of the deceased, he sent the
Choukidar No. 9/2 Md. Safid along with dead body of
deceased for postmortem to Sadar Hospital, Dumka. He has
proved the memo of arrest, which is in his pen and signature,
which is marked as Exhibit- 8. He has further stated that he
has recorded the defence evidence of accused in which he
confessed his guilt and he kept the seized article in police
station Malkhana. He has also proved the endorsement on
fardbeyan, which is in his pen and signature, which is
marked as Exhibit- 9. He has also identified the formal FIR,
which is written by Sidh Nath Singh and signed by him which
is marked as Exhibit- 10. He has also proved the forwarding
letter, which is in his pen and signature which is marked as
Exhibit-11. Thereafter, he recorded the statement of
witnesses namely Mainu Kisku, Md.Mukhtar Ali, Md.
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Nijamuddin Ansari and Raska, who have supported the
occurrence and he received the postmortem report of the
deceased from the Sadar Hospital, Dumka, which is
mentioned in case diary and after receiving the supervision
report from the senior officer, he has submitted the charge-
sheet No.158/2011 dated 30.11.2011 against the accused
Chunda Murmu U/s 302 I.P.C. He has identified the accused
present in the Court. In his cross-examination, at paragraph
15 he has testified that no witness has stated to him about
witnessing the occurrence.
22. PW 10 is Dr. Ramesh Prasad Verma, who has
conducted the postmortem of the dead body of Joba Marandi.
He has stated in his examination-in-chief that on 30.10.2011,
he was posted as Medical Officer, Sadar Hospital, Dumka and
on the same day at 1:50 a.m., he performed the postmortem
of the dead body of Joba Marandi, W/o Chunda Murmu,
resident ofvillage Chirudih, P.S. Dumka(M), District Dumka,
female, aged about 36 years, body was identified by
Choukidar 9/02 Md. Safir and he found the following
antemortem injuries fond on the body of deceased :-
(I) Lacerated wound right side upper lip.
(II) Diffuse swelling left fronto parietal region.He has
further stated that on dissection, there was
subcutaneouscollection of blood.
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On further dissection, left parietal bone was
found fractured.On opening of skull, there was
collection of blood in cranial cavity with brainand
menages found lacerated. He has further stated that
he found the rigormortise present in all four limbs.
In his opinion, the death was caused as result of shock
and haemorrhage as a result of injury No. (ii). Weapon used
by hard and blunt substance and time elapsed since death
within 24 hours. He has identified the postmortem report
which is in his pen and signature, which ismarked as
Exhibit- 12.
23. PW 11-Manoj Kumar Sharma has stated in his
examination-in-chief that he produced the seized article of
Muffasil P.S. Case No. 156/2011 on the direction of
Additional P.P. and in the light of Memo No. 760/16 of the
Superintendent of Police, covered in paper which was opened
in the Court which is kept in the plastic bag in which there is
a wooden Pirha on which M.R. No.18/2011 is mentioned,
which is marked as Material Exhibit- I. He has further stated
that in the same plastic bag there is blood stain soil kept in
the plastic which is marked as Material Exhibit- II. He has
brought a letter which is written to Court by Police Inspector
Birendra Pd. Singh, which is related for sending the material
Exhibit in the Court, which is in the pen and signature of
Police Inspector Birendra Pd. Singh, which is identified by
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him, marked as Exhibit 13. In his cross-examination, he has
stated that he does not know that when Material Exhibit
came in Police Station Malkhana. He has further stated that
he has no knowledge whether the blood stained soil and
Pirha be smeared with blood have been sent for forensic
examination or not and he has no knowledge from which
place the blood stained soil was collected. He has further
stated that blood stained soil is not sealed. He has further
stated that the Pirha which he has brought was not kept in
box in the Police Station Malkhana rather it was kept covered
with paper and on that paper there was no seal and he has
no knowledge from where the said Pirha was recovered. He
has further stated that he has no personal knowledge about
the occurrence.
24. Learned trial court, based upon the testimonies of eye
witnesses, referred hereinabove, has passed the judgment of
conviction convicting the appellants under Section 302 and
302/34 of Indian Penal Code and directed to undergo R.I. for
life.
25. This Court, in order to appreciate the submissions
advanced on behalf of appellant with respect to the
culpability of the appellant of commission of offence under
Section 302 or under Section 304 Part-I or Part-II of the
Indian Penal Code vis-à-vis the evidences adduced on behalf
of the parties, deems it fit and proper to refer certain judicial
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pronouncements regarding applicability of the offence said to
be committed under Section 302 or 304 Part-I or Part-II of
the Indian Penal Code.
26. The Hon'ble Apex Court has dealt with the aforesaid
position of law in the case of Surinder Kumar v. Union
Territory, Chandigarh reported in (1989) 2 SCC 217
wherein at paragraph 6 and 7 it has been held as under :
"6. Exception 4 to Section 300 reads as under:
"Exception 4.--Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and
without the offender having taken undue advantage or
acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party
offers the provocation or commits the first assault."
7. To invoke this exception four requirements must be
satisfied, namely, (i) it was a sudden fight; (ii) there
was no premeditation; (iii) the act was done in a heat
of passion; and (iv) the assailant had not taken any
undue advantage or acted in a cruel manner. The cause
of the quarrel is not relevant nor is it relevant who offered the
provocation or started the assault. The number of wounds
caused during the occurrence is not a decisive factor but
what is important is that the occurrence must have
been sudden and unpremeditated and the offender
must have acted in a fit of anger. Of course, the offender
must not have taken any undue advantage or acted in a
cruel manner. Where, on a sudden quarrel, a person in
the heat of the moment picks up a weapon which is
handy and causes injuries, one of which proves fatal,
he would be entitled to the benefit of this exception
provided he has not acted cruelly.
In the present case, the deceased and PW 2 had entered the
room occupied by Sikander Lal and his family members and
had demanded vacant possession of the kitchen. When they
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found that the appellant was disinclined to hand over
possession of the kitchen, PW 2 quarrelled and uttered filthy
abuses in the presence of the appellant's sister. On the
appellant asking him to desist he threatened to lock up the
kitchen by removing the utensils, etc., and that led to a
heated argument between the appellant on the one side and
PW 2 and his deceased brother on the other. In the course of
this heated argument it is the appellant's case that PW 2
took out a knife from his pant pocket. This part of the
appellant's case seems to be probable having regard to the
antecedents of PW 2. It is on record that PW 2 was convicted
at Narnaul on two occasions under Section 411 IPC and his
name was registered as a bad character at the local police
station. It was presumably because of this reason that he
had shifted from Narnaul to Chandigarh a couple of years
back and had started to live in the premises rented by PW 4.
When the appellant found that PW 2 had taken out a pen
knife from his pocket he went into the adjoining kitchen and
returned with a knife. From the simple injury caused to PW 2
it would appear that PW 2 was not an easy target. That is
why the learned Sessions Judge rejected the case that Amrit
Lal had held PW 2 to facilitate an attack on him by the
appellant. It further seems that thereafter a scuffle must
have ensued on Nitya Nand intervening to help his brother
PW 2 in which two minor injuries were suffered by the
deceased on the left arm before the fatal blow was inflicted
on the left flank at the level of the fifth rib about 2" below the
nipple. It may incidentally be mentioned that the trial court
came to the conclusion that the injury found on the neck of
PW 2 was a self-inflicted wound and had therefore acquitted
the appellant of the charge under Section 307 IPC, against
which no appeal was carried. We have, however, proceeded
to examine this matter on the premise that PW 2 sustained
the injury in the course of the incident. From the above facts,
it clearly emerges that after PW 2 and his deceased brother
entered the room of the appellant and uttered filthy abuses
in the presence of the latter's sister, tempers ran high and on
PW 2 taking out a pen knife the appellant picked up the knife
from the kitchen, ran towards PW 2 and inflicted a simple
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injury on his neck. It would be reasonable to infer that the
deceased must have intervened on the side of his brother PW
2 and in the course of the scuffle he received injuries, one of
which proved fatal. Taking an overall view of the incident we
are inclined to think that the appellant was entitled to the
benefit of the exception relied upon. The High Court refused
to grant him that benefit on the ground that he had acted in
a cruel manner but we do not think that merely because
three injuries were caused to the deceased it could be said
that he had acted in a cruel and unusual manner. Under
these circumstances, we think it proper to convict the
accused under Section 304, Part I IPC and direct him to
suffer rigorous imprisonment for 7 years.
[Emphasis supplied]
27. In the case of Nankaunoo v. State of Uttar Pradesh
reported in (2016) 3 SCC 317 it has been held that the
intention is different from motive. It is the intention with
which the act is done that makes a difference in arriving at a
conclusion whether the offence is culpable homicide or
murder, for ready reference paragraph 11 is being quoted and
referred hereunder as :-
"11. Intention is different from motive. It is the intention with
which the act is done that makes a difference in arriving at a
conclusion whether the offence is culpable homicide or
murder. The third clause of Section 300 IPC consists of two
parts. Under the first part it must be proved that there was
an intention to inflict the injury that is present and under the
second part it must be proved that the injury was sufficient
in the ordinary course of nature to cause death. Considering
clause Thirdly of Section 300 IPC and reiterating the
principles stated in Virsa Singh case [Virsa Singh v. State of
Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi
Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32]
, para 12, this Court held as under: (SCC p. 41)
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"12. Referring to these observations, Division Bench of this
Court in Jagrup Singh case [Jagrup Singh v. State of
Haryana, (1981) 3 SCC 616], observed thus: (SCC p. 620,
para 7)
„7. ... These observations of Vivian Bose, J. have become
locus classicus. The test laid down in Virsa Singh case [Virsa
Singh v. State of Punjab, AIR 1958 SC 465], for the
applicability of clause Thirdly is now ingrained in our legal
system and has become part of the rule of law.‟
The Division Bench also further held that the decision in
Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958
SC 465] has throughout been followed as laying down the
guiding principles. In both these cases it is clearly laid down
that the prosecution must prove (1) that the body injury is
present, (2) that the injury is sufficient in the ordinary course
of nature to cause death, (3) that the accused intended to
inflict that particular injury, that is to say it was not
accidental or unintentional or that some other kind of injury
was intended. In other words clause Thirdly consists of two
parts. The first part is that there was an intention to inflict
the injury that is found to be present and the second part
that the said injury is sufficient to cause death in the
ordinary course of nature. Under the first part the
prosecution has to prove from the given facts and
circumstances that the intention of the accused was to cause
that particular injury. Whereas under the second part
whether it was sufficient to cause death, is an objective
enquiry and it is a matter of inference or deduction from the
particulars of the injury. The language of clause Thirdly of
Section 300 speaks of intention at two places and in each
the sequence is to be established by the prosecution before
the case can fall in that clause. The „intention‟ and
„knowledge‟ of the accused are subjective and invisible
states of mind and their existence has to be gathered from
the circumstances, such as the weapon used, the ferocity of
attack, multiplicity of injuries and all other surrounding
circumstances. The framers of the Code designedly used the
words „intention‟ and „knowledge‟ and it is accepted that the
knowledge of the consequences which may result in doing an
- 21 -Cr. Appeal (DB) No. 839 of 2017
act is not the same thing as the intention that such
consequences should ensue. Firstly, when an act is done by
a person, it is presumed that he must have been aware that
certain specified harmful consequences would or could
follow. But that knowledge is bare awareness and not the
same thing as intention that such consequences should
ensue. As compared to „knowledge‟, „intention‟ requires
something more than the mere foresight of the consequences,
namely, the purposeful doing of a thing to achieve a
particular end."
28. In the case of Murlidhar Shivram Patekar and
Another v. State of Maharashtra reported in (2015) 1 SCC
694 it has been held be Hon'ble Apex Court at paragraph 28
and 29 which reads hereunder as :-
"28. The question however still remains as to the nature of
the offence committed by the accused and whether it
falls under Exception 4 to Section 300 IPC. In Surinder
Kumar [Surinder Kumar v. UT, Chandigarh, (1989) 2 SCC
217] , this Court has held as under: (SCC p. 220, para 7)
―7. To invoke this Exception four requirements must
be satisfied, namely, (i) it was a sudden fight; (ii)
there was no premeditation; (iii) the act was done in a
heat of passion; and (iv) the assailant had not taken
any undue advantage or acted in a cruel manner. The
cause of the quarrel is not relevant nor is it relevant
who offered the provocation or started the assault.
The number of wounds caused during the occurrence
is not a decisive factor but what is important is that
the occurrence must have been sudden and
unpremeditated and the offender must have acted in a
fit of anger. Of course, the offender must not have
taken any undue advantage or acted in a cruel
manner. Where, on a sudden quarrel, a person in the
heat of the moment picks up a weapon which is handy
and causes injuries, one of which proves fatal, he
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would be entitled to the benefit of this Exception
provided he has not acted cruelly.‖
(emphasis supplied)
29. Further, in Arumugam v. State [(2008) 15 SCC 590 at p.
595 : (2009) 3 SCC (Cri) 1130] , in support of the proposition
of law that under what circumstances Exception 4 to Section
300 IPC can be invoked if death is caused, it has been
explained as under: (SCC p. 596, para 9)
"9. ... „18. The help of Exception 4 can be invoked if
death is caused (a) without premeditation; (b) in a
sudden fight; (c) without the offender's having taken
undue advantage or acted in a cruel or unusual
manner; and (d) the fight must have been with the
person killed. To bring a case within Exception 4 all
the ingredients mentioned in it must be found. It is to be
noted that the "fight" occurring in Exception 4 to
Section 300 IPC is not defined in the Penal Code, 1860.
It takes two to make a fight. Heat of passion requires that
there must be no time for the passions to cool down
and in this case, the parties had worked themselves
into a fury on account of the verbal altercation in the
beginning. A fight is a combat between two and more
persons whether with or without weapons. It is not possible
to enunciate any general rule as to what shall be deemed to
be a sudden quarrel. It is a question of fact and whether
a quarrel is sudden or not must necessarily depend
upon the proved facts of each case. For the application of
Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must
further be shown that the offender has not taken undue
advantage or acted in cruel or unusual manner. The
expression "undue advantage" as used in the provision
means "unfair advantage"."
[Emphasis supplied]
29. In the case of Surain Singh v. State of Punjab
reported in (2017) 5 SCC 796 at paragraph 13 the Hon'ble
Apex Court has held which is being referred hereunder as :-
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13. Exception 4 to Section 300 IPC applies in the absence of
any premeditation. This is very clear from the wordings of
the Exception itself. The Exception contemplates that the
sudden fight shall start upon the heat of passion on a
sudden quarrel. The Fourth Exception to Section 300 IPC
covers acts done in a sudden fight. The said Exception deals
with a case of provocation not covered by the First Exception,
after which its place would have been more appropriate. The
Exception is founded upon the same principle, for in both
there is absence of premeditation. But, while in the case of
Exception 1 there is total deprivation of self-control, in case of
Exception 4, there is only that heat of passion which clouds
men's sober reason and urges them to deeds which they
would not otherwise do. There is provocation in Exception 4
as in Exception 1, but the injury done is not the direct
consequence of that provocation. In fact, Exception 4 deals
with cases in which notwithstanding that a blow may have
been struck, or some provocation given in the origin of the
dispute or in whatever way the quarrel may have originated,
yet the subsequent conduct of both parties puts them in
respect of guilt upon an equal footing. A "sudden fight"
implies mutual provocation and blows on each side. The
homicide committed is then clearly not traceable to unilateral
provocation, nor could in such cases the whole blame be
placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1. There is no
previous deliberation or determination to fight. A fight
suddenly takes place, for which both parties are more or less
to be blamed. It may be that one of them starts it, but if the
other had not aggravated it by his own conduct it would not
have taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to apportion
the share of blame which attaches to each fighter."
30. In the case of State of Andhra Pradesh v. Rayavarapu
Punnayya, (1976) 4 SCC 382, the Hon'ble Apex Court, while
clarifying the distinction between section 299 and 300 of the
Indian Penal Code and their consequences, held as under: --
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"12. In the scheme of the Penal Code, „culpable homicide‟ is
genus and „murder‟ is species. All „murder‟ is „culpable
homicide‟ but not vice-versa. Speaking generally, „culpable
homicide not amounting to murder‟. For the purpose of
fixing punishment, proportionate to the gravity of this
generic offence, the Code practically recognises three
degrees of culpable homicide. The first is what may be
called „culpable homicide of the first degree‟. This is
the greatest form of culpable homicide, which is
defined in Section 300 as „murder‟. The second may be
termed as „culpable homicide of the second degree‟.
This is punishable under the first part of Section 304.
Then, there is „culpable homicide of the third degree‟.
This is the lowest type of culpable homicide and the
punishment provided for it is, also, the lowest among
the punishments provided for the three grades.
Culpable homicide of this degree is punishable under
the second part of Section 304.‖
[Emphasis supplied]
31. In Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC
444, the Hon'ble Apex Court enumerated some of the
circumstances relevant to finding out whether there was any
intention to cause death on the part of the accused. The
Court observed as under :-
―29. Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will
decide whether the case falls under Section 302 or 304 Part I
or 304 Part II. Many petty or insignificant matters -- plucking
of a fruit, straying of cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may lead to
altercations and group clashes culminating in deaths. Usual
motives like revenge, greed, jealousy or suspicion may be
totally absent in such cases. There may be no intention.
There may be no premeditation. In fact, there may not even
be criminality. At the other end of the spectrum, there may be
cases of murder where the accused attempts to avoid the
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penalty for murder by attempting to put forth a case that
there was no intention to cause death. It is for the courts to
ensure that the cases of murder punishable under Section
302, are not converted into offences punishable under
Section 304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder punishable
under Section 302. The intention to cause death can be
gathered generally from a combination of a few or
several of the following, among other, circumstances :
(i) nature of the weapon used; (ii) whether the weapon
was carried by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a vital part of
the body; (iv) the amount of force employed in causing
injury; (v) whether the act was in the course of sudden
quarrel or sudden fight or free for all fight; (vi)
whether the incident occurs by chance or whether
there was any premeditation; (vii) whether there was
any prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave and
sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and unusual
manner; (xi) whether the accused dealt a single blow or
several blows. The above list of circumstances is, of course,
not exhaustive and there may be several other special
circumstances with reference to individual cases which may
throw light on the question of intention."
[Emphasis supplied]
32. Recently the Hon'ble Apex Court while considering the
various decisions on the aforesaid issue has laid down the
guidelines in the case of Anbazhagan Vs. State Represented
by the Inspector of Police reported in 2023 SCC OnLine
SC 857 which are being quoted as under:
"66. Few important principles of law discernible from the
aforesaid discussion may be summed up thus:--
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(1) When the court is confronted with the question, what
offence the accused could be said to have committed, the
true test is to find out the intention or knowledge of the
accused in doing the act. If the intention or knowledge was
such as is described in Clauses (1) to (4) of Section 300 of the
IPC, the act will be murder even though only a single injury
was caused. ---
(2) Even when the intention or knowledge of the
accused may fall within Clauses (1) to (4) of Section
300 of the IPC, the act of the accused which would
otherwise be murder, will be taken out of the purview
of murder, if the accused's case attracts any one of the
five exceptions enumerated in that section. In the
event of the case falling within any of those
exceptions, the offence would be culpable homicide not
amounting to murder, falling within Part 1 of Section
304 of the IPC, if the case of the accused is such as to
fall within Clauses (1) to (3) of Section 300 of the IPC.
It would be offence under Part II of Section 304 if the
case is such as to fall within Clause (4) of Section 300
of the IPC. Again, the intention or knowledge of the
accused may be such that only 2nd or 3rd part of
Section 299 of the IPC, may be attracted but not any of
the clauses of Section 300 of the IPC. In that situation
also, the offence would be culpable homicide not
amounting to murder under Section 304 of the IPC. It
would be an offence under Part I of that section, if the
case fall within 2nd part of Section 299, while it
would be an offence under Part II of Section 304 if the
case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person
falls within the first two clauses of cases of culpable
homicide as described in Section 299 of the IPC it is
punishable under the first part of Section 304. If, however, it
falls within the third clause, it is punishable under the
second part of Section 304. In effect, therefore, the first part
of this section would apply when there is „guilty intention,‟
whereas the second part would apply when there is no such
intention, but there is „guilty knowledge‟.
- 27 -Cr. Appeal (DB) No. 839 of 2017
(4) Even if single injury is inflicted, if that particular injury
was intended, and objectively that injury was sufficient in
the ordinary course of nature to cause death, the
requirements of Clause 3rdly to Section 300 of the IPC, are
fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes
of cases : (i) when the case falls under one or the other of the
clauses of Section 300, but it is covered by one of the
exceptions to that Section, (ii) when the injury caused is not
of the higher degree of likelihood which is covered by the
expression „sufficient in the ordinary course of nature to
cause death‟ but is of a lower degree of likelihood which is
generally spoken of as an injury „likely to cause death‟ and
the case does not fall under Clause (2) of Section 300 of the
IPC, (iii) when the act is done with the knowledge that death
is likely to ensue but without intention to cause death or an
injury likely to cause death.
To put it more succinctly, the difference between the
two parts of Section 304 of the IPC is that under the
first part, the crime of murder is first established and
the accused is then given the benefit of one of the
exceptions to Section 300 of the IPC, while under the
second part, the crime of murder is never established
at all. Therefore, for the purpose of holding an
accused guilty of the offence punishable under the
second part of Section 304 of the IPC, the accused
need not bring his case within one of the exceptions to
Section 300 of the IPC.
(6) The word „likely‟ means probably and it is distinguished
from more „possibly‟. When chances of happening are even or
greater than its not happening, we may say that the thing
will „probably happen‟. In reaching the conclusion, the court
has to place itself in the situation of the accused and then
judge whether the accused had the knowledge that by the
act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of
the IPC) and murder (Section 300 of the IPC) has always to
be carefully borne in mind while dealing with a charge under
Section 302 of the IPC. Under the category of unlawful
- 28 -Cr. Appeal (DB) No. 839 of 2017
homicides, both, the cases of culpable homicide amounting to
murder and those not amounting to murder would fall.
Culpable homicide is not murder when the case is brought
within the five exceptions to Section 300 of the IPC. But, even
though none of the said five exceptions are pleaded or prima
facie established on the evidence on record, the prosecution
must still be required under the law to bring the case under
any of the four clauses of Section 300 of the IPC to sustain
the charge of murder. If the prosecution fails to discharge
this onus in establishing any one of the four clauses of
Section 300 of the IPC, namely, 1stly to 4thly, the charge of
murder would not be made out and the case may be one of
culpable homicide not amounting to murder as described
under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea.
If Clause thirdly of Section 300 is to be applied, the assailant
must intend the particular injury inflicted on the deceased.
This ingredient could rarely be proved by direct evidence.
Inevitably, it is a matter of inference to be drawn from the
proved circumstances of the case. The court must necessarily
have regard to the nature of the weapon used, part of the
body injured, extent of the injury, degree of force used in
causing the injury, the manner of attack, the circumstances
preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a
culpable homicide a murder. The intention to cause injury or
injuries sufficient in the ordinary cause of nature to cause
death also makes a culpable homicide a murder if death has
actually been caused and intention to cause such injury or
injuries is to be inferred from the act or acts resulting in the
injury or injuries.
(10) When single injury inflicted by the accused results in the
death of the victim, no inference, as a general principle, can
be drawn that the accused did not have the intention to
cause the death or that particular injury which resulted in
the death of the victim. Whether an accused had the required
guilty intention or not, is a question of fact which has to be
determined on the facts of each case.
- 29 -Cr. Appeal (DB) No. 839 of 2017
(11) Where the prosecution proves that the accused had the
intention to cause death of any person or to cause bodily
injury to him and the intended injury is sufficient in the
ordinary course of nature to cause death, then, even if he
inflicts a single injury which results in the death of the
victim, the offence squarely falls under Clause thirdly of
Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused
had guilty intention or guilty knowledge in a case
where only a single injury is inflicted by him and that
injury is sufficient in the ordinary course of nature to
cause death, the fact that the act is done without
premeditation in a sudden fight or quarrel, or that the
circumstances justify that the injury was accidental or
unintentional, or that he only intended a simple
injury, would lead to the inference of guilty
knowledge, and the offence would be one under
Section 304 Part II of the IPC.
33. In the backdrop of the aforesaid discussion of
proposition of law, this Court in the instant case is to
consider following issues :-
(i) Whether the material as has come in course of trial
is sufficient to attract the ingredients of offence
committed under Section 302 of the Indian Penal
Code? or
(ii) Whether the case is said to be covered under the
exception to Section 300 of the Indian Penal Code?
or
(iii) Whether on the basis of factual aspect, the case will
come under the purview of Part-I of Section 304 or
Part-II thereof? Or
- 30 -Cr. Appeal (DB) No. 839 of 2017
(iv) Whether the appellants are entitled for acquittal in
absence of cogent evidences?
34. Since all the aforesaid issues are inextricably inter-
linked, the same are being decided hereinbelow by
considering them together.
35. The law is well settled that for proving the charge under
Section 302 of the Indian Penal Code, it is the bounden duty
of the Court to consider the ingredients of culpable homicide
as provided under Section 299 of the Indian Penal Code
amounting to murder as provided under Section 300 IPC and
not amounting to murder as provided under Exception 4 to
Section 300 of the Indian Penal Code.
36. Section 299 I.P.C. speaks about culpable homicide
wherein it has been stipulated that whoever causes death by
doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide. Thus,
Section 299 defines the offence of culpable homicide which
consists in the doing of an act - (a) with the intention of
causing death; (b) with the intention of causing such bodily
injury as is likely to cause death; (c) with the knowledge that
the act is likely to cause death, ―intent‖ and ―knowledge‖ as
the ingredients of Section 299 postulates existence of the
positive mental attitude and this mental condition is the
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special mens rea necessary for the offence. The knowledge of
3rd condition contemplates knowledge or the likelihood of the
death of the person.
37. The Hon'ble Apex Court while considering the aforesaid
fact, in the case of Jairaj v. State of Tamil Nadu reported
in AIR 1976 SC 1519 has been pleased to held at paragraph
32 & 33 which is being quoted hereunder as :-
"32. For this purpose we have to go to Section 299 which
defines "culpable homicide". This offence consists in the
doing of an act
(a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is
likely to cause death, or
(c) with the knowledge that the act is likely to cause death.
33. As was pointed out by this Court in Anda v. State of
Rajasthan [AIR 1966 SC 148 : 1966 Cri LJ 171] x"intent"
and "knowledge" in the ingredients of Section 299 postulate
the existence of positive mental attitude and this mental
condition is the special mens rea necessary for the offence.
The guilty intention in the first two conditions contemplates
the intended death of the person harmed or the intentional
causing of an injury likely to cause his death. The knowledge
in the third condition contemplates knowledge of the
likelihood of the death of the person."
38. It is, thus, evident that our legislature has used two
different terminologies ‗intent' and ‗knowledge' and separate
punishments are provided for an act committed with an
intent to cause bodily injury which is likely to cause death
and for an act committed with a knowledge that his act is
likely to cause death without intent to cause such bodily
- 32 -Cr. Appeal (DB) No. 839 of 2017
injury as is likely to cause death, it would be proper to hold
that ‗intent' and ‗knowledge' cannot be equated with each
other. They connote different things. Sometimes, if the
consequence is so apparent, it may happen that from the
knowledge, intent may be presumed. But it will not mean
that ‗intent' and ‗knowledge' are the same. ‗Knowledge' will be
only one of the circumstances to be taken into consideration
while determining or inferring the requisite intent.
39. Thus, while defining the offence of culpable homicide
and murder, the framers of the Indian Penal laid down that
the requisite intention or knowledge must be imputed to the
accused when he committed the act which caused the death
in order to hold him guilty for the offence of culpable
homicide or murder as the case may be
40. The framers of the Indian Penal Code designedly used
the two words ‗intention' and ‗knowledge', and it must be
taken that the framers intended to draw a distinction
between these two expressions. The knowledge of the
consequences which may result in the doing of an act is not
the same thing as the intention that such consequences
should ensue. Except in cases where mens rea is not required
in order to prove that a person had certain knowledge, he
―must have been aware that certain specified harmful
consequences would or could follow.‖ (Russell on Crime,
Twelfth Edition, Volume 1 at page 40).
- 33 -Cr. Appeal (DB) No. 839 of 2017
41. In view of Section 299 of the Indian Penal Code, the
material relied upon by the prosecution for framing of charge
under Section 304 Part-II must be at least prima facie
indicate that the accused has done an act which has caused
death with at least such a knowledge that such act was likely
to cause death.
42. The Hon'ble Apex Court, in Keshub Mahindra v. State
of M.P. reported in (1996) 6 SCC 129 has been pleased to
hold as under paragraph 20 which reads hereunder as :-
"20. --- We shall first deal with the charges framed against
the accused concerned under the main provisions of Section
304 Part II IPC. A look at Section 304 Part II shows that the
accused concerned can be charged under that provision for
an offence of culpable homicide not amounting to murder and
when being so charged if it is alleged that the act of the
accused concerned is done with the knowledge that it is
likely to cause death but without any intention to cause
death or to cause such bodily injury as is likely to cause
death the charged offences would fall under Section 304 Part
II. However before any charge under Section 304 Part II can
be framed, the material on record must at least prima facie
show that the accused is guilty of culpable homicide and the
act allegedly committed by him must amount to culpable
homicide. However, if the material relied upon for framing
such a charge against the accused concerned falls short of
even prima facie indicating that the accused appeared to be
guilty of an offence of culpable homicide Section 304 Part I or
Part II would get out of the picture. In this connection we
have to keep in view Section 299 of the Penal Code, 1860
which defines culpable homicide. It lays down that:
"Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that
- 34 -Cr. Appeal (DB) No. 839 of 2017
he is likely by such act to cause death, commits the offence
of culpable homicide."
Consequently the material relied upon by the
prosecution for framing a charge under Section 304 Part II
must at least prima facie indicate that the accused had done
an act which had caused death with at least such a
knowledge that he was by such act likely to cause death. ---"
43. Section 300 of Indian Penal Code speaks about murder
under which it has been stipulated that Except in the cases
hereinafter excepted, culpable homicide is murder, if the act
by which the death is caused is done with the intention of
causing death, or, secondly, if it is done with the intention of
causing such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm is caused,
or thirdly, if it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause
death, or fourthly, if the person committing the act knows
that it is so imminently dangerous that it must, in all
probability, cause death, or such bodily injury as is likely to
cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid
44. It is, thus, evident that the punishment under Section
302 of the Indian Penal Code shall not apply if any of the
conditions mentioned above, are not fulfilled. This means
- 35 -Cr. Appeal (DB) No. 839 of 2017
that if the accused has not intentionally killed someone then
murder cannot be proved. Apart from this, Section 300 of the
Indian Penal Code mentions certain exceptions for offence of
murder which are as follows :-
(a) If a person is suddenly provoked by a third
party and loses his self-control, and as a result of
which causes the death of another person or the
person who provoked him, it won't amount to
murder subject to proviso as provided.
(b) When a person under the right of private
defence causes the death of the person against
whom he has exercised this right without any
premeditation and intention.
(c) If a public servant, while discharging his duty
and having lawful intention, causes the death of a
person.
(d) If it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden
quarrel and without the offender' having taken
undue advantage or acted in a cruel or unusual
manner.
(e) Culpable homicide is not murder when the
person whose death is caused, being above the age
of eighteen years, suffers death or takes the risk of
death with his own consent.
- 36 -Cr. Appeal (DB) No. 839 of 2017
45. All these exceptions mentioned above shall come under
the purview of Section 304 IPC and will be termed as culpable
homicide not amounting to murder.
46. It is, thus, evident the parameters which are to be
followed while convicting a person of commission of crime of
murder will be different if the murder comes under fold of
culpable homicide amounting to murder and it will be
different if with the intent to commit murder as per the
outside the purview of exception carved out under Section
300 of the Indian Penal Code.
47. In the present case the pleas, inter alia, have been taken
on behalf of appellant as also it is the case of the prosecution
that it was a sudden quarrel between husband and wife over
the matter of going to parental house of the wife. As such first
requirement is fulfilled due to heat of passion the husband
gave a signle blow of Pirha (wooden plank made for sitting)
due to which the deceased-wife died on the spot.
48. The parameters for judging the case have been dealt
with by Hon'ble Apex Court in the case of Sayaji Hanmat
Baukar v. State of Maharashtra, AIR 2011 SC 3172
whereunder the circumstances of the case has been held that
if the act is done without premeditation in a sudden quarrel
and if the offender does not take any undue advantage or act
in a cruel or unusual manner, then exception 4 will be
attracted.
- 37 -Cr. Appeal (DB) No. 839 of 2017
49. Law is well settled that in order to attract Exception 4 to
Section 300 of IPC, four requirements must be satisfied
namely :-
(a) It should be sudden fight.
(b) There was no premeditation.
(c) The act was done in a heat of passion
(d) The assailant had not taken any undue advantage or
acted in a cruel manner.
50. The number of wounds caused during the occurrence is
not a decisive factor but what is important is that the
occurrence must have been sudden and unpremeditated and
the offence must have taken place in a fit of anger. Of course,
the offender must not have taken any undue advantage or
acted in a cruel manner. If a person in the heat of a moment
on a sudden quarrel picks a weapon or any thing which is
handy and thereby injuries are caused, one of which proves
fatal, he would be entitled to the benefit of this exception 4 to
Section 300 of IPC provided he has not acted cruelty. Thus
whenever there is a case of sudden fight and conflict, it has to
be dealt with under Exception 4 to Section 300 of IPC.
51. In the aforesaid backdrop, this Court is now proceeding
to examine the evidence adduced by the prosecution in
course of trial in order to answer the issue as to whether it is
a case under Section 302 or Section 304 Part-I or II by
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appreciating the evidences vis-à-vis the provisions of murder
or exception 4.
52. PW 1 Md. Safid who is the informant of this case is a
hearsay witness. He has deposed that while he was returning
from his office [SBI, Gando Branch] by his motorcycle then he
received an information from village Chirudih on telephone
that the wife of Chunda Murmu has been murdered.
Thereafter he went there and saw the crowd of villagers,
where Chunda's wife Joba was lying in injured condition in
the courtyard and blood was oozing out from her head. They
stated that Chunda has committed her murder by giving
'Pirha' (wooden structure) blows on her head. He has further
stated that he informed the police by mobile then Police has
come and taken away the dead body. In his cross-
examination, he has stated that many villagers told that
Chunda has committed the murder of his wife.
53. PW 2 is Mallick Marandi. He has stated in his
examination-in-chief that Mainuddin Ansari has told that
Chunda has assaulted his wife and he is alive. He has further
stated that he was about to go then a child has stated that
injured has died. He has further stated that when he reached
there he saw that Joba was laying on the ground and blood
was oozing and villagershave tied and kept Chuda and when
he asked the Chunda then he stated that he has committed
the murder of his wife by giving Pirha blows to her as the
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deceased was out of her house for two nights for visiting Mela
leaving his five children and on query she started to quarrel
and going to Naihar then he prevented her and in anger, he
had given 'Pirha' blows to her. He has further stated that
Chunda and Joba both were in drunken state then he
informed the Choukidar on mobile.
54. PW 3 -Mangal Murmu has stated that he reached on the
place of occurence on hulla and saw that Chunda's wife is
laying dead and Pirha is also there and Chunda has kept
tied. He has further stated that the accused had committed
murder by giving wooden Pirha blows but he does not know
the reason behind it.
55. PW 4-Bateshwar Marandi has stated in his
examination-in-chief that the wife of his villager's Chunda
Murmu has died but he does not know how and when she
died. This witness has been declared hostile on the prayer of
prosecution.
56. PW 5-Jitu Murmu has stated in his examination-in-
chief that the does not know about the occurrence. This
witness has been declared hostile.
57. PW 6-Raska Murmu has stated in his examination-in-
chief that on 29.10.2011 Police has seized Pirha (Wooden
structure) besmeared with blood and blood stained soil before
him from the house of Chunda Murmu
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58. PW 7-Md. Nijamuddin has stated in his examination-in-
chief that the occurrence has taken place on 29.10.2011 and
at that time he was posted in Muffasil Police Station, Dumka.
He has further stated that he received information in the
night by telephone that the occurrence has taken place in the
Chunda's house of village Chirudih then he asked what
happened then he told that Chunda has killed his wife.
Thereafter, he reached there in the night and saw tha the
dead body of the deceased was lying in the veranda of the
house and a blood stained Pirha was also lying nearby the
dead body and when he asked to the villagers that how she
died then villagers told him that Chunda Murmu has killed
her and villagers have kept tied to him with khuta then he
went near Chunda Murmu and asked him then he told that
his wife used to go outside in the night and he has to prepare
food and due to this anger he killed her. This witness has
further stated that thereafter he informed the village
Choukidar and called him and later on he also called the
Officer-in-Charge of Police Station.
59. PW 8-Md. Mukhtar Ali has stated in his examination-in-
chief that the occurrence has taken place on 29.10.2011 and
at that time he was sitting in his veranda of his house. He
has further stated that wife of accused brother's Mainu Kisku
cried then he reached there and saw that front door was
closed and Manuddin Ansari opened the door from the back
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side then he entered into the room and saw that the dead
body was laying near the door and when he touched her and
felt that her breath was going on then he arranged the
vehicle, in the meantime she died. He has further stated that
Mainu Kisku told that accused has assaulted to deceased by
Pirha and blood was oozing out from the ear and the Pirha
was laying there. He has further stated that many villagers
were gathered there and Chunda Murmu was sitting on the
cot at some distance and he has not inquired anything to
him. He has further stated tha he made the telephonic call to
Sardar Ji then he came and Choukidar and Police has also
come.
60. PW 9 -Parmeshwar Liyangi, is the Investigating Officer
of this case. He has stated in his examination-in-chief that on
29.10.2011 he was posted atDumka (M) Police Station and at
3 p.m. he received the information that in village Chirudih,
accused-husband has murdered his wife and on that
information he reached the house of Chunda Murmu of
village Chirudih and recorded the fardbeyan of Choukidar -
Md. Safid. He has further stated that he inspected the place
of occurrence. He has further stated that he prepared the
map of the place of occurrence, which is mentioned at the
page- 04 of case diary, marked as Exhibit-5. He has seized
the Pirha besmeared with blood and blood stained soil from
the place of occurrence.
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61. PW 10 is Dr. Ramesh Prasad Verma, who has
conducted the postmortem of the dead body of Joba Marandi
whereupon he found the following ante morteminjuries found
on the body of deceased :-(I) Lacerated wound right side
upper lip.(II) Diffuse swelling left fronto parietal region.He has
further stated that on dissection, there was subcutaneous
collection of blood. In his opinion, the death was caused as
result of shock and haemorrhage as a result of injury No. (ii).
Weapon used by hardand blunt substance.
62. PW 11 is Manoj Kumar Sharma, who is a formal
witness.
63. This Court, on the basis of the discussion made
hereinabove of the prosecution witnesses, has found that the
learned trial court has considered the testimony of PW-1, PW-
2, PW-7 and P.W. 8 wherein the prosecution version has been
supported by them. P.W. 9, the investigating officer has
deposed that he received the information that the appellant
has murdered his wife and on that information he reached
the place of occurrence and recorded the fardbeyan of
Choukidar -Md. Safid and also seized the Pirha besmeared
with blood and blood stained soil from the place of
occurrence. He has further stated that he has recorded the
defence evidence of accused in which he confessed his guilt.
Likewise, P.W. 2 has also stated that when he asked the
appellant-Chunda then he stated that he has committed the
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murder of his wife by giving Pirha blows to her as the
deceased was out of her house for two nights for visiting Mela
leaving his five children and on query she started to quarrel
and going to Naihar then he prevented her and in anger, he
had given 'Pirha' blows to her. P.W. 2 has further stated that
both the appellant-husband and deceased-wife was in
drunken state. P.W. 7 has deposed in the same manner and
has deposed that went near Chunda Murmu and asked him
then he told that his wife used to go outside in the night and
he has to prepare food and due to this anger he killed her.
But in the statement recorded under Section 313 Cr.P.C, the
appellant has denied to have commited the commission of
crime. P.W. 10, the doctor, has supported the prosecution
version has opined that death was caused as result of shock
and haemorrhage as a result of injury No. (ii) and the weapon
used by hardand blunt substance.
64. In the light of the aforesaid fact, now it is to be
apprreciated as to whether the case is coming under
Exception 4 to Section 300 of the Indian Penal Code.
65. Admittedly, in order to invoke this exception, four
ingredients must be satisfied, i.e., - (i) it was a sudden fight;
(ii) there was no premeditation; (iii) the act was done in a heat
of passion ; and (iv) the assailant had not taken any undue
advantage or acted in a cruel manner.
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66. In Dhirajbhai Gorakhbhai Nayak vs. State of
Gujarat [(2003) 9 SCC 322, it has been observed by the
Hon'ble Apex Court as under :-
"The Fourth Exception of Section 300, IPC covers acts done in
a sudden fight. The said exception deals with a case of
prosecution not covered by the first exception, after which its
place would have been more appropriate. The exception is
founded upon the same principle, for in both there is absence
of premeditation. But, while in the case of Exception 1 there
is total deprivation of self-control, in case of Exception 4,
there is only that heat of passion which clouds men's sober
reason and urges them to deeds which they would not
otherwise do. There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct consequence
of that provocation. In fact Exception 4 deals with cases in
which notwithstanding that a blow may have been struck, or
some provocation given in the origin of the dispute or in
whatever way the quarrel may have originated, yet the
subsequent conduct of both parties puts them in respect of
guilt upon equal footing. A 'sudden fight' implies mutual
provocation and blows on each side. The homicide committed
is then clearly not traceable to unilateral provocation, nor in
such cases could the whole blame be placed on one side. For
if it were so, the Exception more appropriately applicable
would be Exception 1. There is no previous deliberation or
determination to fight. A fight suddenly takes place, for
which both parties are more or less to be blamed. It may be
that one of them starts it, but if the other had not aggravated
it by his own conduct it would not have taken the serious
turn it did. There is then mutual provocation and
aggravation, and it is difficult to apportion the share of blame
which attaches to each fighter. The help of Exception 4 can
be invoked if death is caused (a) without premeditation,(b) in
a sudden fight; (c) without the offender's having taken undue
advantage or acted in a cruel or unusual manner; and (d) the
fight must have been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned in it must be
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found. It is to be noted that the 'fight' occurring in Exception 4
to Section 300, IPC is not defined in the IPC. It takes two to
make a fight. Heat of passion requires that there must be no
time for the passions to cool down and in this case, the
parties have worked themselves into a fury on account of the
verbal altercation in the beginning. A fight is a combat
between two and more persons whether with or without
weapons. It is not possible to enunciate any general rule as
to what shall be deemed to be a sudden quarrel. It is a
question of fact and whether a quarrel is sudden or not must
necessarily depend upon the proved facts of each case. For
the application of Exception 4, it is not sufficient to show that
there was a sudden quarrel and there was no premeditation.
It must further be shown that the offender has not taken
undue advantage or acted in cruel or unusual manner. The
expression 'undue advantage' as used in the provision
means 'unfair advantage'.
67. This Court, on the basis of the factual aspect as
discussed hereinabove as also after taking into consideration
the law laid down by Hon'ble Apex Court in the case of
Surinder Kumar v. Union Territory, Chandigarh (Supra),
Nankaunoo v. State of Uttar Pradesh (Supra), Murlidhar
Shivram Patekar and Another v. State of Maharashtra
(Supra) and Surain Singh v. State of Punjab (Supra) and
other aforesaid judicial pronouncement wherein the
difference has been carved out in between the culpable
homicide amounting to murder and culpable homicide not
amounting to murder, rebutting back to the facts of the given
case, is proceeding to examine the fact of the given case.
68. In the instant case from perusal of the testimonies of
the witnesses it is noticed that though none of the witnesses
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examined by the prosecution are eye-witnesses but they have
deposed that on the fateful day, a quarrel was going on
between Chunda Murmu and his wife and Chunda Murmu,
who alleged to have remained in drunken state in whole day
and did not do any work and his wife maintained her four
children anyhow and she being annoyed from her husband,
she wanted to go her father's house then Chunda Murmu
prohibited him and when she did not do so and rigid to go to
her father's house then Chunda Murmu picked up a wooden
pirha and given blow forcibly on the head of his wife due to
which her wifes ustained grievous injury and she fell down in
injured condition and died.
69. At this stage, it is necessary to reiterate the well settled
principle that guilt of the accused is to be judged on the basis
of the facts and circumstances of the particular case. The
injuries found on the person of the accused assume
importance in respect of genesis and manner of occurrence.
70. Thus considering the entire gamut of the case and on
meticulous examination of the material evidence on record we
have no hesitation in holding that due to quarrel between the
husband and wife on the issue of going to parental house of
wife, the appellant-husband, who was in drunken condition
picked up a wooden pirha and given blow on the head of his
wife due to which her wife sustained grievous injury and she
fell down in injured condition and died. Admittedly the act of
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giving blow upon the head by wodden pirha was not
premeditation, it was happed, in a sudden fight, in the heat
of passion because of sudden quarrel and further it has come
in the testimony of witnesses supported by medical evidence
that only one blow was given on fatal part of head, which
shows no cruelty was committed upon the deceased.
71. In the backdrop the aforesaid discussion and the
judicial pronouncement and the evidence of prosecution
witnesses and also taking into consideration the facts and
circumstances of the instant case we are of the view that
since the assault made by the appellant was not a
premeditated and also there was no intention and further the
appellant had not taken any undue advantage or acted in a
cruel manner, which fact is proved by the oral evidence
adduced by the witnesses as also by the doctor, this Court is
of the view that the case of present appellant comes under
Exception 4 to Section 300 IPC but the learned trial court has
come to the finding by considering the case to be a case of
commission of murder and hence has convicted the
appellants under Section 302 of the Indian Penal Code but,
while doing so, learned trial court has not appreciated the
fact about the applicability of the exception as under
exception 4 of Section 300 of I.P.C.
72. This Court, therefore, is of the view that the learned trial
court while convicting the appellants for commission of
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offence under Section 302 of the Indian Penal Code, has
committed error by ignoring all these facts as recorded in the
preceding paragraphs.
73. Accordingly, we are of the view that the judgment
impugned convicting the appellantsunder Section 302 I.P.C.
needs to be interfered with by modifying it to that of
conviction of the appellant under Section 304 Part-II of the
Indian Penal Code.
74. Consequently, the judgment passed by the learned trial
court is modified and appellant - Chunda Murmu is held
guilty under Section 304 Part II I.P.C. and sentenced him to
undergo rigorous imprisonment for nine years.
75. It transpires from the record that appellant has
remained in jail since 29.10.2011 i.e, for more than twelve
years and, as such, the appellant has already served the
sentence and therefore, is directed to be released forthwith
from the jail custody, if not wanted in any other case.
76. In view of the discussions made, hereinabove, judgment
of conviction dated 17.03.2017 and order of sentence dated
18.03.2017 passed by learned District & Additional Sessions
Judge-III, Dumka, in Sessions Trial No. 92 of 2012 is,
modified to the aforesaid extent.
77. Accordingly, the instant appeal stands disposed of with
the aforesaid modification in the judgment of conviction and
order of sentence.
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78. Let the Lower Court Records be sent back to the Court
concerned forthwith, along with a copy of this Judgment.
I Agree (Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated: Ranchi 12/02/2024
Alankar / A.F.R.
