ATTAR SINGHversusSTATE OF MAHARASHTRA

                      [2012] 13 S.C.R. 1213

                                                                          '-~
                         ATIAR SINGH                                  A
                               v.
                  STATE OF MAHARASHTRA
              (Criminal Appeal No. 1091 of 2010)
                      DECEMBER 14, 2012
                                                                      B
  [SWATANTER KUMAR AND GYAN SUDHA MISRA, JJ.]

      Penal Code, 1860:

        s. 304 (Part I) - Prosecution u/s. 302 and 49BA - Of the      c
  accused for killing his wife - Conviction u/s. 302 by trial court
  relying an evidence of daughter of the accused - However,
  accused acquitted uls. 498A - Order Confirmed by High
  Court - On appeal, held: The prosecution has proved that
  accused was responsible for causing the death of the
                                                                      D
. deceased - The evidence of the daughter of the accused is
  reliable even though she turned hostile, as the same is
  corroborated by other evidence - But since it is not proved
  that the accused had pre-meditated intention to kill the
  deceased, the case would fall u/s. 304 (Part I) and not uls. 302
                                                                      E
  - Conviction altered u/s. 304 (Part I) and sentence reduced
  to 10 years RI from life Imprisonment.

       Witness - Hostile witness - Evidentiary value - Held:
 Merely because a witness turns hostile, would not result in
 throwing out the prosecution case - Evidence of such witness         F
 is acceptable to the extent, it is co"oborated by that of a
 reliable witness.

    Appellant-accused was prosecuted ulss. 302 and
498A IPC for having killed his wife by hitting her with a
                                                                      G
wooden log on her head. The prosecution case was that
the accused and the deceased, with their nine children,
were living together. The complalnant-village Kotwal
received Information about the Incident. He went to the
                               1213                                   H
     1214     SUPREME COURT REPORTS            [2012] 13 S.C.R.


A    house of the accused alongwith village Sarpanch. On his
     querry, the accused hold him that he killed his wife
     because she was of loose character. Defence case was
     that she sustained the injury as she had fallen down on
     the floor.
 8
        Trial court disbelieved the defence version on the
    basis of medical evidence which categorically stated that
    the injury was not possible due to fall on the ground. It
    convicted the accused u/s. 302 IPC relying on the
    testimony of the daughter of the accused and the
· C deceased. However, the accused was acquitted u/s. 498A
    IPC on the ground that prosecution failed to prove that
    the accused used to subject the deceased to cruelty from
    time to time. In appeal, High Court confirmed the
    judgment of High Court.
 D
        In appeal to this Court, appellant-accused contended
   that his conviction could not have been based on the
   evidence of the daughter of the accused as she was a
   hostile witness and did not support the prosecution
 E version fully. In the alternative, he contended that even if
   the offence is proved, the same should be brought down
   within the ambit of s. 304 (Part II) IPC, as only a single
   blow was inflicted; that the incident took place in a fit of
   anger and that there was no pre-plan or pre-meditation
 F to kill.

            Partly allowing the appeal, the Court
        HELD: 1.1 Merely because a witness becomes
   hostile, it would not result in throwing out the prosecution
 G case, but the Court must see the relative effect of his
   testimony. If the evidence of a hostile witness is
   corroborated by other evidence, there is no legal bar to
   convict the accused. Thus testimony of a hostile
   witness is acceptable to the extent it is corroborated by
 H that of a reliable witness. It is, therefore, open to the Court
    ATTAR SINGH v. STATE OF MAHARASHTRA               1215


to consider the evidence and there is no objection to a       A
part of that evidence being made use of in support of the
prosecution or in support of the accused. [Para 13] [1224-
B-D]

      1.2 In the instant case, the support rendered by the
daughter approving the incident should be accepted as         B
 reliable part of evidence, in spite of she being a hostile
witness. Evidence of this witness shows that the
accused was the only person in the company of the
deceased soon before the d,eath. The defence of the
accused that injury on the deceased was a result of fall      c.
is ruled out by medical evidence and the details available
of the location in the panchnama of offence. The courts
below thus have rightly drawn some support from the
reports of the chemical analysis since all the articles
of the victims and clothes of the accused are found           D
having blood stains of human blood group A. This was
in view of the fact that the results of the analysis for
determination of the blood group of the victim and
accused were conclusive when blood sent to phial was
analysed. Thus, the evidence of the daughter of the           E
deceased coupled with other material as also evidence
of other witnesses provided a complete chain and the
prosecution successfully proved that the incident
occurred in the manner and the place which was alleged.
[Para 14] [1224-D-H; 1225-A]                                  F
     1.3 The accused, in answer to questions under
Section 313 Cr.P.C., has admitted his presence at the
place of occurrence where his deceased wife was lying
injured and dead on the floor. However, this does not         G
mean that the failure of the defence could be treated as
success of the prosecution since the conviction cannot
be based only on the replies given by the accused, but
these replies may be considered as support to the
special knowledge of the accused and this lends
sufficient weight to the evidence of the daughter of the      H
    1216   SUPREME COURT REPORTS             [2012] 13 S.C.R. .


A deceased and other attending circumstances. The trial
  Judge, has rightly placed reliance upon the evidence of
  the daughter of the victim and the accused. [Para 14)
  [1225-A-D]

       1.4 The retracted statement of the daughter of the
8 accused stands fully supported by the evidence of other
  witnesses. Thus, the material on record along with th'e
  evidence of the prosecution witnesses leads to only one
  inference that the accused-appellant was the author of
  the injury suffered by the victim and the accused alone
C inflicted fatal injuries upon the person of victim. The
  courts below have rightly held that she was killed by her
  husband-appellant in the manner which has been alleged
  by the prosecution. [Para 15) [1225-H; 1226-A-B]

D       Syed Akbar vs. State of Kamataka AIR 1979 SC 1848:
    1980 (1) SCR 95; State of U.P. vs. Chet Ram AIR 1989 SC
    1543; Shatrughan vs.State of M.P. (1993) Crl.L.J. 3120; Sat
    Paul vs. Delhi Administration AIR 1976 SC 294: 1976 (2)
    SCR 11 - relied on.
E        Gulshan Kumar vs. State (1993) Crl.L.J. 1525; Kunwar
    vs. State ofU.P. (1993) Crl.L.J. 3421; Haneefa vs. State
    (1993) Crl.L.J. 2125 - referred to.
       2.1 The appellant although does not appear to have
F killed his wife by planning out the whole incident In a
  methodical manner, yet the evidence disclosed that he
  was nurturing a grudge against the wife over a long
  period of time and on the date of the incident when the
  husband started to abuse his deceased wife alleging her
G of loose moral character, the accused-husband gave
  vent to his deep-seated grudge by hitting her with such
  Intensity that he did not bother about the consequence
  of his action. But it cannot be overlooked or ignored that
  the Intensity with which he hit his wife after abusing her
H Is indicative of the fact that he was not oblivious of the
    ATIAR SINGH v. STATE OF MAHARASHTRA                1217


consequence which would have resulted from his                  A
violent act of beating his wife with a log of wood. Thus,
it will have to be inferred that he had sufficient
knowledge about the consequence of his heinous act
at least to the extent that it was sufficient in the ordinary
course of nature to cause death of his wife. [Para 18)          8
[1228-C-F]

     2.2 When the village Kotwal reached the incident, the
deceased did not even express any remorse for what he
had done to his wife nor he appeared to be repentant
of the incident. This clearly reflects his state of mind        C
that he committed the crime with full knowledge to kill his
wife on account of his deep-seated grudge which he
was carrying since long. Therefore, the charge under
Section 302 l.P.C. cannot be converted into one under
Section 304 (Part-II) l.P.C. [Para 18] [1228-G-H; 1229-A]       D

     State of Punjab vs. Bakhshish Singh and Ors. (2008) 17
SCC 411:2008 (14) SCR 742; Anil Sharma and Ors. vs.
State of Jharkhand(2004) 5 SCC 679: 2004 (1) Suppl.
SCR 907; Harbans Kaur vs.State of Haryana (2005) 9 SCC          E
195: 2005 (2) SCR 450; AmitsinghBhikamsingh Thakur vs.
State of Maharashtra (2007) 2 SCC 310:2007 (1) SCR 191
; Pannayar vs. State of Tamil Nadu by /nspectorof Police
(2009) 9 SCC 152: 2009 (13) SCR 367 - referred to
      3. The appellant was living with his deceased wife        F
day in and day out, but none of the witnesses has
deposed that she was abused and beaten earlier. Thus,
there is lack of evidence that on the fateful day, the
appellant-husband had the pre-meditated intention to kill
the deceased with a log of wood due to which he                 G
inflicted the fatal blow on the deceased. The anger and
frustration, no doubt was acute in the mind of the
appellant on account of his suspicion which aggravated
due to hot exchange of words and abuses resulting into
loss of mental balance as a consequence of which he             H
    1218      SUPREME COURT REPORTS              [2012] 13 S.C.R.


A hit his wife with such intensity that she died on the spot
  itself. The appellant is fit to be convicted and sentenced
  under Section 304 (Part-I) l.P.C. in view of the evidence
  on record, the surrounding ci'rcumstance and the factual
  scenario in which the incident occurred. Therefore, the
8 conviction and sentence of the appellant recorded under
  Section 302 l.P.C. is set aside and the same is converted
  under Section 304 (Part-I) l.P.C. The sentence of life
  imprisonment is substituted with a sentence of 10 years
  imprisonment. (Paras 20 and 23] [1229-F-H; 1230-A; 1231-
C A-CJ
                          Case Law Reference:
         1980 (1) SCR 95             Relied on           Para 13
         (1993) Crl.L.J. 1525        Referred to         Para 13
D        (1993) Crl.L.J. 2125        Referred to         Para 13
         AIR 1989 SC 1543            Relied on           Para 13
           (1993) Crl.L.J. 3120      Relied on           Para 13

E          1976 (2) SCR 11           Relied on           Para 13
           2008 (14) SCR 742         Referred to         Para 16
           2004 (1) Suppl. SCR 907 Referred to           Para 16
           2005 (2) SCR 450           Referred to        Para 16
F
           2007 (1) SCR 191           Referred to        Para 16
           2009 (13) SCR 367          Referred to        Para 16
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 1091 of 2010.

         From the Judgment and Order dated 26.06.2008 of the
    High Court of Bombay at Aurangabad in Criminal Appeal No.
    7 of 2007.

H          Manjeet Chawla for the Appellant.
     ATTAR SINGH v. STATE OF MAHARASHTRA                 1219


     Shankar Chillarge, AAG, Asha Gopalan Nair for the A
 Respondent.

     The Judgment of the Court was delivered by

     GYAN SUDHA MISRA, J. 1. This appeal has been
preferred against the judgment and order dated 26.6.2008 B
passed by the High Court of Judicature at Bombay, Bench
at Aurangabad in Criminal Appeal No. 7/2007 whereby the
High Court upheld the judgment and order passed by the
Sessions Judge, Dhule in Sessions Case No. 90/2005 by which
the appellant had been convicted for an offence under Section C
302, Indian Penal Code (l.P.C. for short) and was sentenced
to undergo life imprisonment along with a fine of Rs.1,000/-. In
default of payment of fine, he was ordered to undergo simple
imprisonment for three months.
                                                                 D
     2. The appellant was initially charged and tried for an
offence under Section 302 and 498-A of the l.P.C. for killing
his wife by hitting her on her head with a woodenlog as he
was suspecting her loyalty and character.

       3. The specific case of the prosecution which was E
 registered under Section 302 and 498-A of the 1.P.C. is that
 the appellant-Attarsingh Barakya Pawara was residing along
 with his wife and 9 children at village Majanipada in Shirpur
 Taluk. On 22.6.2005, the complainant-Khandu Kalu Ahire who
·is also the village Kotwal received an information from one F
 Ramesh Pawara, resident of Majanipada and Appa Shahada
 Pawara, resident of Fattepur village that the appellant
 Attarsing has committed murder of his wife by hitting her with
 a woodenlog on her head. On receipt of this information, the
 village Kotwal along with the Sarpanch Bhatu Ditya and one G
 Rattan Lalsing went to the appellant's house and found the
 dead body of Nagibai {deceased wife of the appellant) lying
 on the floor of the house which indicated that the deceased had
 sustained head injury and hatf bleeded profusely. The
woodeJ1log was found near her dead body and the appellant H
    1220      SUPREME COURT REPORTS              [2012] 13 S.C.R.


A   was also found sitting in the house. The village Kotwal enquired
    about the incident and questioned the appellant as to how his
    wife had died. The appellant replied that his wife was of a
    loose character and, therefore, he had killed her by hitting
    woodenlog on her head. He narrated the incident to other
B   persons accompanying the village Kotwal.

       4. The village Kotwal thereafter came to the police station
  at Shirpur and lodged the report of the incident (Exh .15) on the
  basis of which the offence was registered vide crime No. 161 /
  2005 under Section 302 of the l.P.C The police thereafter
C completed the usual legal formality by reaching on the spot and
  as the body was found there, inquest was also conducted and
  spot panchnama was also prepared whereby the clothes of
  the accused containing blood stains were seized. Woodenlog
  (Article No.3) which was found lying on the spot was also
D seized at the time of preparation of spot panchnama. The
  body of the deceased was then sent to the Government
  Hospital, Shirpur where post-mortem was conducted.

         5. The accused-appellant was subsequently arrested and
E   taken to the police station. Investigation thereafter followed
    in course of which it transpired that it was the appellant who
    had killed his wife Nagibai as he was suspecting her character.
    Charges were then framed against the appellant under
    Section 498-A and 302 of the l.P.C. to which the appellant
F   pleaded not guilty and claimed to be tried.

       6. In course of trial, the prosecution examined 12
  witnesses on the question as to whether the appellant had
  subjected his wife to cruelty by giving her beating and abuses
  from time to time suspecting her character. The trial court
G further examined the question as to whether the accused had
  committed the murder of his wife Nagibai in his house at village
  Majanipada and thirdly as to what other offence he has
  committed.

H          7. The defence story set up on behalf of the appellant is
     ATTAR SINGH v. STATE OF MAHARASHTRA                     1221
             [GYAN SUDHA MISRA, J.]

that his wife had fallen down on the floor of the house due to       A
which she sustained severe head injury which resulted in her
death.

     8. The trial court on a scrutiny of the evidence and other
materials on record rejected the defence story on the basis of
                                                                     8
the post-mortem report as Dr. Gohil who had conducted post-
mortem categorically expressed that the head injury which the
deceased Nagibai has sustained were not possible due to fall
on the ground.

     9. Insofar as the charge under Section 498-A of Indian C
Penal Code was concerned, the trial court held that none of .
the prosecution witnesses deposed that the accused-appellant
was subjecting his wife Nagibai to cruelty by giving her beating
and abuses from time to time as alleged by the prosecution.
The learned Sessions Judge recorded that the evidence on o
record indicates that it was only a single incident in which
accused-appellant had assaulted his wife Nagibai suspecting
her fidelity and character as the evidence is missing that the
accused-appellant was subjecting his wife to cruelty by
abusing and assaulting her from time to time. The learned E
Sessions Judge thus was pleased to hold that the prosecution
had failed to prove the charge under Section 498-A of the l.P.C.
against the accused-appellant and hence acquitted him of this
charge.

      10. Insofar as the second charge is concerned as to            F
whether the accused-appellant is the author of the head injury
of the deceased, the testimony of the daughter of accused-
appellant Mangibai was held to be significant for even though
 Mangibai had turned hostile, her testimony revealed that on
the day of the incident, her father was running behind her mother    G
with a woodenlog for beating her. On witnessing this incident,
she started weeping and came out. Thereafter, her father
closed the door and only her father and mother were inside the
house. Immediately thereafter, her mother Nagibai was found
lying injured in a pool of blood inside the house a!'d the accused   H
    1222      SUPREME COURT REPORTS              [2012] 13 S.C.R.


A also was there. It was, therefore, held that this circumstance
  indicated that it is the accused-appellant who had assaulted his
  wife and caused her death. It was further held, that though the
  panch witness Mangibai is a hostile witness, such portion of
  the hostile witness which is worth believing and which is
B supported by other circumstances can be used and relied upon
  by the prosecution in view of well-settled legal position. The
  Sessions Court thus on a scrutiny and analysis of the evidence
  accepted the prosecution version based on the evidence on
  record that the accused-appellant had committed the murder
C of his wife by hitting her with a woodenlog in his house and
   recorded a finding in the affirmative to the effect that it is the
   accused-appellant who committed the murder of his wife-
   Nagibai in his bouse at village Majanipada. Thus, the appellant
   succeeded in securing an order of acquittal in his favour in
   so far as the charge under Section 498-A of the Indian Penal
0 Code is concerned, but suffered conviction and sentence of
   imprisonment for life for offence under Section 302 of the l.P.C.
   for the charge of mur.der of his wife.

           11. The appellant feeling aggrieved with the conviction
E   and sentence preferred an appeal before the High Court of
    Bombay Bench at Aurangabad, but the High Court confirmed
    the view taken by the trial court on all aspects including the
    charge under Section 302 of the 1.P.C.

F      12. Assailing the judgment and order passed by the
  Sessions Court as also the High Court which concurrently
  upheld the conviction of the appellant under Section 302 l.P.C.,
  the counsel for the appellant first of all attempted to demolish
  the case of the prosecution in its entirety by submitting that the
  conviction and sentence imposed on the appellant was not fit
G to be sustained on the testimony of the daughter Mangibai as
  she had not supported the prosecution version totally due to
  which she had been declared hostile. Hence, it was first of
  all contended that the testimony of the hostile witness could
  not have been relied upon for recording conviction of the
H appellant.
     ATTAR SINGH v. STATE OF MAHARASHTRA                    1223
             [GYAN SUDHA MISRA, J.]

       13. We have meticulously considered the arguments             A
 advanced on this vital aspect of the matter on which the
 conviction and sentence imposed on the appellant is based.
 This compels us to consider as to whether the conviction and
 sentence recorded on the basis of the testimony of the witness
 who has been declared hostile could be relied upon for
                                                                     8
 recording conviction of the accused-appellant. But it was
 difficult to overlook the relevance and value of the evidence of
 even a hostile witness while considering as to what extent their
 evidence could be allowed to be relied upon and used by the
 prosecution. It could not be ignored that when a witness is         C
 declared hostile and when .his testimony is not shaken on
 material points in the cross-examination, there is no ground
 to reject his testimony in toto as it is well-settled by a catena
 of decisions that the Court is not precluded from taking into
 account the statement of a hostile witness altogether and it is
 not necessary· to discard the same in toto and can be relied        D
 upon partly. If some portion of the statement of the hostile
witness inspires confidence, it can be relied upon. He cannot
 be thrown out as wholly unreliable. This was the view
expressed by this court in the case of Syed Akbar vs. State
of Karnataka reported in AIR 1979 SC 1848 whereby the                E
learned Judges of the Supreme Court reversed the judgment
of the Karnataka High Court which had discarded the evidence
of a hostile witness in its entirety. Similarly, other High Courts
in the matter of Gulshan Kumar vs. State (1993) Crl.L.J. 1525
as also Kunwar vs. State of UP. (1993) Crl.L.J. 3421 as also         F
Haneefa vs. State (1993) Crl.L.J. 2125 have held that it is
not necessary to discard the evidence of the hostile witness
in toto and can be relied upon partly. So also, in the matter
of State of UP. vs. Chet Ram reported in AIR 1989 SC 1543
=  (1989) Crl.L.J. 1785; it was held that if some portion of the     G
statement of the hostile witness inspires confidence it can be
relied upon and the witness cannot be termed as wholly
unreliable. It was further categorically held in the case of
Shatrughan vs. State of M.P. (1993) Crl.L.J. 3120 that hostile
                                                                     H
    1224    SUPREME COURT REPORTS                [2012) 13 S.C.R.


A witness is not necessarily a false witness. Granting of a
  permission by the Court to cross-examine his own witness
  does not amount to adjudication by the Court as to the veracity
  of a witness. It only means a declaration that the witness is
  adverse or unfriendly to the party calling him and not that the
  witness is untruthful. This was the view expressed by this
8
  Court in the matter of Sat Paul vs. Delhi Administration AIR
  1976 SC 294. Thus, merely because a witness becomes
  hostile it would not result in throwing out the prosecution case,
  but the Court must see the relative effect of his testimony. If
C the evidence of a hostile witness is corroborated by other
  evidence, there is no legal bar to convict the accused. Thus
  testimony of a hostile witness is acceptable to the extent it is
  corroborated by that of a reliable witness. It is, therefore, open
  to the Court to consider the evidence and there is no objection
  to a part of that evidence being made use of in support of the
D prosecution or in support of the accused.

       14. While examining the instant matter on the anvil of the
  aforesaid legal position laid down by this Court in several
  pronouncements, we have noticed that the support rendered
E by the daughter Mangibai approving the incident should be
  accepted as reliable part of evidence in spite of she being a
  hostile witness. The witness Mangibai's evidence pushes the
  accused with his bag to the wall and the accused is obliged
  to explain because her evidence shows that the accused was
F the only person in the company of the deceased soon before
  the death. Tl)e defence of the accused that Nagibai's injury
  was a result of fall is ruled out by medical evidence and the
  details available of the location in the panchnama of offence.
  The courts below thus have rightly drawn some support from
G the reports of the chemical analysis since all the articles of
  the victims and clothes of the accused are found having blood
  stains of human blood group A. This was in view of the fact
  that the results of the analysis for determination of the blood
  group of the victim and accused were conclusive when blood
  sent to phial was analysed. Thus, the evidence of the daughter
H
    ATTAR SINGH v. STATE OF MAHARASHTRA                    1225
            [GYAN SUDHA MISRA, J.]

of the deceased coupled with other material as also evidence        A
of other witnesses i.e. Ramesh, Khandu, Bhatu and Makhan,
provided a complete chain and the prosecution successfully
proved that the incident occurred in the manner and the place
which was alleged. In fact, the accused in answer to questions
under Section 313 Cr.P.C. has admitted his presence at the          B
place of occurrence where his wife Nagibai was lying injured
and dead on the floor. However, we do ne,,t wish to be
understood that the failure of the defence could be treated as
success of the prosecution since the conviction cannot be
based only on the replies given by the accused, but these           c
replies may be considered as support to the special
knowledge of the accused and this lends sufficient weight to
the evidence of the daughter of the deceased and other
attending circumstances. The trial Judge, in our view, has
rightly placed reliance upon the evidence of Mangibai, the
                                                                    0
daughter of the victim and the accused when she candidly
supported the prosecution story when she stated as follows:-

    'When my mother had sustained head injury, my father was
    there only i.e. near my mother. He was near the oven. He
    was talking loudly.                              ·              E

    It is true that my father hit her with a wood.en log and
    therefore she ran to the kitchen. It is true that my father
    immediately ran after her. I started weeping. It is true that
    thereafter my father closed the door from                       F
    inside." .................... .

     15. Thus, we are of the view that the eviden~ of Mangibai
who was declared hostile supported the prosecution case in
her cross-examination and, therefore, the courts below do
not appear to have fallen into any error in accepting part G
of the evidence of Mangibai and th.e retracted confession of
the witness Mangibai cannot be accepted to the extent that her
evidence in support of the prosecution version was fit to be
ruled out. The retracted statement of Mangibai stands fully
supported by the evidence of other witnesses. Thus, the H
    1226    SUPREME COURT REPORTS               [2012] 13 S.C.R.


A material on record along with the evidence of the prosecution
  witnesses leads to only one inference that the accused-
  appellant was the author of the injury suffered by the victim
  and we have rightly been convinced that the accused and the
  accused alone inflicted fatal injuries upon the person of victim
B Nagibai. We are, therefore, clearly of the view that in so far
  as the incident of killing of the deceased Nagibai is
  concerned, the courts below have rightly held that she was killed
  by her husband-appellant in the manner which has been alleged
  by the prosecution.
c        16. However, learned counsel for the appellant next
    submitted that the offence alleged to have been committed by
    the accused-appellant ought to be brought down within the
    ambit of Section 304 Part II of the l.P.C. as there was only a
    single blow inflicted by the accused-appellant which is clear
D   from the narration of incident by the daughter of the accused
    and deceased-Nagibai which shows that the accused was
    alone with the victim within the house and the accused did
    not kill his wife with a pre-meditated mind but the incident
    took place in a fit of anger due to the fact that he was
E   suspecting his wife. It was, therefore, submitted that the
    accused in fact had no intention to kill his wife as the death
    had occurred on account of a single blow which was not the
    result of a pre-plan or pre-meditation. In support of the
    submission, he relied upon the judgment and order of this
F   Court in the case of State of Punjab vs. Bakhshish Singh &
    Ors. (2008) 17 SCC 411 which also had relied on the judgment
    in the case of Anil Sharma & Ors. vs. State of Jharkhand,
    (2004) 5 SCC 679, Harbans Kaur vs. State of Haryana,
    (2005) 9 SCC 195, Amitsingh Bhikamsingh Thakur vs. State
G   of Maharashtra, (2007) 2 SCC 310 and this Court had been
    pleased to hold that :
         "In all cases, it cannot be stated that when only a single
         blow is given, Section 302, IPC is made out, yet it would
         depend upon the factual scenario of each case, more
H
    ATIAR SINGH v. STATE OF MAHARASHTRA                    1227
            [GYAN SUDHA MISRA, J.]

    particularly the nature of the offence, the background facts,   A
    the part of the body where injuries were inflicted and the
    circumstances in which the assault is made" that the
    offence under Section 302 IPC is not made out."

In view of the aforesaid observation, learned counsel submitted
                                                                    B
that offence under Section 302 l.P.C. in the instant matter also
cannot be held to have been made out as the deceased had
sustained a single blow alleged to have been inflicted by the
appellant. Learned counsel for the appellant taking further
assistance from the observation of the Supreme Court in the
matter of State of Punjab vs. Bakhshish Singh (supra)               C
submitted further that the past history about the relations
between the appellant and the deceased goes to prove that
they did not have any strained relations. In fact, they had
absolutely normal relations and had nine children out of the
wedlock and it was only on the spur of the moment when              D
the appellant abused suspecting the character of deceased
Nagibai and beat her with a stick unintentionally that the
incident happened. In support of his argument, he relied on the
case of Pannayar vs. State of Tamil Nadu by Inspector of
Police (2009) 9 SCC 152 wherein this Hon'ble Court held that        E
absence of motive in case of circumstantial evidence is more
favourable to defence.

     17. The arguments advanced by learned counsel for the
appellant-accused when tested in the light of the evidence led      F
by the prosecution while considering whether the charge under
Section 302 could be scaled down to Section 304 Part-II, we
have already examined the circumstances in which the
deceased had been killed and hence it could be noticed that
the deceased Nagibai and accused-appellant although had
been leading a so-called normal family life along with their nine   G
children, the fact remains that the appellant-husband had been
suspecting his wife's character and nurturing deep rooted
grudge over a period of time. However, the evidence does
further indicate that on the date and time of incident, the
                                                                    .H
    1228     SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A appellant had not indulged in pre-planning the incident in
  any manner so as to eliminate his wife by killing her. The
  evidence of other witnesses also indicated that the incident of
  beating had not happened in the past and the daughter of~
  the accused and deceased-Mangibai also deposed that there
B were heated exchange of words between the couple on the
  date of incident and the appellant-accused heaped abuses
  on his wife and then picked up a woodenlog in a fit of anger
  by which he hit the deceased as a result of which she
  sustained head injury and bleeded profusely which lead to her
c death.
           18. Thus the appellant although do not appear to have killed
    his wife by planning out the whole incident in a methodical
    manner, yet the evidence disclosed that he was nurturing a
    grudge against the wife over a long period of time and on the
D   date of the incident when the husband started to abuse his
    deceased wife alleging her of loose moral and character, the
    accused-husband gave vent to his deep seated grudge by
    hitting her with such intensity that he did not bother about the
    consequence of his action. But it cannot be overlooked or
E   ignored that the intensity with which he hit his wife after
    abusing her is indicative of the fact that he was not oblivious
    of the consequence which would have resulted from his
    violent act of beating his wife with a log of wood. Thus, it will
    have to be inferred that he had sufficient knowledge about
F   the consequence of his heinous act at least to the extent that
    it was sufficient in the ordinary course of nature to cause
    death of his wife. He was thus fully aware of the consequence
    that this would result in a serious consequence and in fact it
    did result in the said manner since the wife died as a result
G   of the injury inflicted on her. In fact, when the village Kotwal
    reached the incident, the deceased did not even expressed
    any remorse for what he had done to his wife nor he appeared
    to be repentant of the incident. This clearly reflects his
    state of mind that he committed the crime with full knowledge
H   to kill his wife Nagibai on account of his deep seated grudge
    ATTAR SINGH v. STATE OF MAHARASHTRA                   1229
            [GYAN SUDHA MISRA, J.]

which he was carrying since long. Therefore, the submission        A
of the counsel for the appellant that the charge under Section
302 l.P.C. should be converted into one under Section 304
Part-II 1.P.C. is fit to be rejected and accordingly we do so.

      19. The matter, however, do not set at rest at this stage
                                                                   8
as the evidence on record and the surrounding circumstances
compels us to consider further, whether the offence would be
made out under Section 302 1.P.C. or the same would fall
under Section 304 Part-I of the l.P.C. ·since the appellant-
accused and his wife-Nagibai had been married for a long time      C
and were having nine children as also the manner of occurrence
and the circumstance under which the incident happened does
indicate that the incident of hot exchange of words between the
accused-appellant and his deceased-wife got precipitated
and as the appellant was already aggrieved of his wife
suspecting her character, he hit his wife severely with whatever   D
was available without caring for the consequence. Thus, the
intention to kill his wife and the knowledge that she would be
killed due to the hard hit blow by the log of wood surely cannot
be ruled out. We take assistance from the observations of this
Court quoted hereinabove that in all cases it cannot be said       E
that when only a single blow is given, Section 302 l.P.C. is
made out. Yet it would depend upon the factual scenario of
each case more particularly nature of the offence, background
facts and the part of the body where injury is inflicted and the
circumstances in which the assault is made.                        F
     20. Taking assistance from these apt and relevant
considerations when we examined the case of the appellant,
we have noticed that the appellant was living with his
deceased wife day in and day out, but none of the witness has
deposed that she was abused and beaten earlier. Thus, ihere        G
is lack of evidence that on the fateful day the appellant-
husband had the pre-meditated intention to kill the deceased
with a log of wood due to which he inflicted the fatal blow on
the deceased. The anger and frustration no doubt was acute         H
    1230     SUPREME COURT REPORTS                  [2012] 13 S.C.R.

A in the mind of the appellant on account of his suspicion which
  aggravated due to hot exchange of words and abuses
  resulting into loss of mental balance as a consequence of
  which he hit his wife with such intensity that she died on the spot
  itself. In view of this the appellant will have to be attributed
B with the knowledge that his act was sufficient in the ordinary
  course of nature to kill the victim-wife.

       21. Thus, in our view, the accused-appellant although
  might not be attributed with the intention to kill his wife,
C sufficient knowledge that his act would result into killing her
  was definitely there in the appellant's mind and he in fact gave
  vent to his feeling by finally killing her when he hit her with a
  woodenlog to take revenge for her alleged infidelity without
  realising that suspicion of her fidelity was not proved and
  even if it did, that gave no right to him to kill his wife in a brutal
D manner by hitting her hard enough with a log of wood with
  such intensity which was sufficient in the ordinary course of
  nature to kill the victim.                               ·

        22. There are no dearth of incidents referred in the case
E laws where the husband has gone to the extent of shooting his
  wife and many a times a paramour shoots the husband or the
  husband shoots the paramour on account of suspicion founded
  or unfounded. But if the evidence discloses that the accused
  killed the victim in a pre-meditated manner as for instance by
F using a firearm, the same might be a clear case under Section
  302 of the l.P.C. But the facts and circumstances of the
  incident in which the appellant has been convicted, indicate
  that the accused-appellant was not armed with any weapon
  or a firearm. As already noticed the evidence do not disclose
  in any manner that the appellant had come with a pre-meditated
G mind to kill his wife, but it was only in course of hot exchange
  of words and abuses which mindlessly drove him to take the
  extreme step of beating his wife with a log of wood with such
  force and intensity that she sustained head injury, profusely
  bled and finally died on the spot.
H
    ATIAR SINGH v. STATE OF MAHARASHTRA                 1231
            [GYAN SUDHA MISRA, J.]

     23. We are, therefore, of the considered view that although A
the conviction and sentence of the appellant might not be
sustainable under Section 302 l.P.C., it cannot also be scaled
down to Section 304 Part-111.P .C. But we are surely of the view
that the appellant is fit to be convicted and sentenced under
Section 304 Part-I of the l.P.C. in view of the evidence on B
record, the surrounding circumstance and the factual scenario
in which the incident occurred. We, therefore, set aside the
conviction and sentence of the appellant recorded under
Section 302 l.P.C. but convert the same under Section 304
Part-I l.P.C. Thus, we deem it fit and appropriate to substitutec
the sentence of life imprisonment with a sentence of 10 years
imprisonment. The appeal thus, is partly allowed. We order
accordingly.

K.K.T.                                Appeal Partly Allowed.