Supreme Court of India
RAJ KUMARversusSTATE OF MAHARASHTRA
- Citation
- 2009 INSC 909
- Decided
- 15 July 2009
- Disposal
- Dismissed
- Bench
- R V RAVEENDRAN
Holding
The Court held that the appellant’s act of striking his wife on the head with a stone‑rolling pad with intent to cause fatal injury constitutes murder under Section 302 IPC and does not fall within any exception of Section 300 or Section 304.
Summary
The husband, Raj Kumar, assaulted his wife with a stone‑rolling pad after she refused to withdraw maintenance proceedings under Section 125 CrPC. The victim died from head injuries; her dying declarations implicated the husband. The trial courts convicted him under Sections 302 and 498A IPC. On appeal, the Supreme Court examined whether the offence amounted to murder or culpable homicide not amounting to murder, considering the applicability of Exception 1 to Section 300 and the burden of proof under Section 105 of the Evidence Act. Relying on the dying declarations, child witness testimony and post‑mortem evidence showing the injuries were sufficient to cause death, the Court held that the act was intentional and fell within the third clause of Section 300, making it murder under Section 302. Consequently, the appeal was dismissed and the conviction upheld.
Issues considered
- The offence committed is murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 IPC
- Whether Exception 1 to Section 300 IPC (grave and sudden provocation) applies
- Whether the burden of proving the exception lies on the accused under Section 105 of the Evidence Act
- Whether a single blow causing death automatically falls under Section 304 IPC
- Whether the dying declarations and medical evidence establish the requisite intention for murder
Legislation cited
- Code of Criminal Procedure, 1973s. 125, s. 313
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 299, s. 300, s. 302, s. 304, s. 498A
Subjects
murderculpable homicideSection 302 IPCSection 304 IPCException 1grave and sudden provocationdying declarationmaintenance proceedingsburden of proofEvidence Act 105dowry harassmentSection 498A
Judgment
[2009] 11 S.C.R. 49
RAJ KUMAR A
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1233 of 2009)
JULY 15, 2009
B
[R.V. RAVEENDRAN AND J.M. PANCHAL, JJ.]
Penal Code, 1860 - s.302 - Husband inflicted blow on
wife with a Stone Rolling Pad (Po/pat) - Wife taken to hospital
where she ultimately died - Motive for the offence stated to C
be refusal of wife to withdraw maintenance proceedings
instituted by her u/s. 125 CrPC - Two dying declarations, one
before Executive Magistrate and other before Head
Constable, in both of which, deceased wife implicated Jhe
husband - Conviction by Courts below uls.302 - Dispute o
raised as to whether the offence committed was murder or
culpable homicide not amounting to murder - Held:
Deceased wife was totally unarmed - Husband inflicted blow
with Po/pat on vital part of deceased's body with such great
force that it resulted in her death - Clearly the intention of E
husband was to cause that vety injuty which ultimately proved
fatal - Medical evidence showed that the injuries were
sufficient in ordinary course of nature to cause death -
Offence committed by husband therefore would be punishable
as murder under s.302 - His case would not fall under the F
first part or the second part of s.304 .
According to the prosecution, the appellant inflicted
a blow on the head of his wife with a Stone Rolling Pad
(Polpat) as she refused to' withdraw the maintenance
proceedings initiated by her against the appellant under G
s.125 CrPC. Consequent to the blow, appellant's wife I
was taken to the hospital in an injured condition where
she ultimately died. At the hospital, two dying
49 H
t
50 SUPREME COU,RT REPORTS [2009] 11 S.C.R.
;t.
A declarations of the deceased were recorded - one by the
Executive Magistrate and another by the Head Constable,
in both of which, she accu.sed the appellant.
Appellant was convicted by the courts below under
ss.302 and 498A IPC and sentenced to life imprisonment.
B
Hence the present appeal.
Dismissing the appeal, the Court )
~
HELD: 1.1. There is no universal rule that whenever
c a single blow is inflicted resulting into death of the victim,
the case would fall either under Part I or Part II of Section
304 IPC. Each case of single blow has to be decided on
the facts and circumstances obtaining in the case. [Para
11] (61-C-D]
0 1.2. Whenever a Court is confronted with the
. question whether the offence is murder or culpable
homicide not amounting to murder on the facts of a case,
it will be convenient for it to approach the problem in
three stages. The question to be considered at the first
.E stage would be whether the accused has done an act by
I
doing which he has caused the death of another. Proof
of such causal connection between the act of the
accused and the death leads to the second stage for
considering whether that act of the accused amounts to
F culpable· homicide as defined in Section 299. If the
answer to this question is prima, facie found in the
affirmative, the stage for considering the operation of
Section 300 IPC is reached. This is the stage at which the
court should determine whether the facts proved by the
G prosecution bring the case within the ambit of any of the
i four clauses of the definition of murder contained in
_._
Section 300 IPC. If the answer to this question is in the
negative, the offence would be culpable homicide not
amounting to murder punishable under Part I or Part II of
H
RAJ KUMAR v. STATE OF MAHARASHTRA 51
Section 304 IPC, depending, respectively, on whether A
second or third clause of Section 299 IPC is applicable.
If this question is found in the positive, but the case
comes within any of the exceptions enumerated in
Section 300 IPC, the offence would still be culpable
homicide not amounting to murder punishable under the B
First Part of Section 304 IPC. The above are, however,
only broad guidelines and not cast-iron imperatives.
[Para 12] [61-E-H; 62-A-B]
2. In the present case, two dying declarations of the C
deceased were recorded - one by the Executive
Magistrate and another by the Head Constable. In both
the dying declarations, the deceased has given
consistent version of the incident in question. In both the
dying declarations it was stated by her that because she
had refused to withdraw the maintenance proceedings D
initiated by her against the appellant, the appellant had
-+
entered her room and inflicted blow on her head with a
stick. There was no reason for the deceased wife to
falsely implicate her husband in such a serious case and
allow the real culprit to go scot-free. The deceased had E
every opportunity to identify the appellant, who was
_permitted to enter the room by the deceased when the
~oor was knocked by the appellant. The testimony of the
" &JChild witness (minor son of the appellant) recorded
19(lbefore the Sessions Court also makes it more than clear F
~that the appellant was the person who had inflicted injury
0on the head of the deceased. Though this child witness
was subjected to searching cross-examination, nothing
could be brought on record so as to impeach his
credibility. The defence could not even prima facie G
establish that the child witness had given t.utored version
.l of the incident before the Court. No major contradictions
and/or improvements with reference to his earlier police
statement could be brought to light at all. There is no
reason to discredit the evidence of the child witness. On H
52 SUPREME COURT REPORTS [2009] 11 S.G.R.
A re-appreciation of the evidence on record, it is clear that ;..
the finding recorded by the Sessions Court and the High
Court that the appellant was author of the fatal !njury
inflicted on the head of the deceased, is well fot~nded.
[Para 8] [59-F-H; 60-A-E]
B
3. It is proved beyond pale of doubt by the
prosecution that the appellant had done the act of giving
Polpat blow on the head of the deceased and by doing
this act, had caused the death of the deceased. The
positive evidence of the Medical Officer, who conducted
C Post Mortem on the dead body of the deceased,
clinchingly establishes that the injuries sustained by the
deceased were sufficient in the ordinary course of nature
to cause her death, which would bring the instant case
within the purview of Clause 'lhirdly' of Section 300 IPC,
D which defines and explains as to when culpable
homicide is murder. [Para 13] [62-C-E]
4. Section 105 of the Evidence Act, 1872 casts
burden of proof on the accused to show that his case
E comes within one of the exceptions· provided in IPC. It
stipulates that where a person is accused of any offence,
the burden of proving the existence of circumstances
bringing the case within any of the general exceptions
under the Indian Penal Code or within any special
F exception or proviso contained in any other part of the
same Code, or in any law defining the offence, is upon
him, and the court shall presume the absence of such
circumstances. The statutory illustration (b) appended to
the said Section explains that A, accused of murder,
G alleges that, by grave and sudden provocation, he was
deprived o( the power of self-control; the burden of proof
is on A. When the statement of the appellant was
recorded under Section 313 CrPC, he did not mention
existence of circumstances bringing his case within
'Exception 1' to Section 300 IPC. Therefore, the court
H
- RAJ KUMAR v. STATE OF MAHARASHTRA 53
would be justified in presuming absence of such A
circumstances. [Para 13] [62-F-H; 63-A-B]
5. The deceased in her two dying declarations has
clearly-mentioned that when she refused to accede to
the demand of the appellant to withdraw the maintenance 8
proceedings, the appellant had inflicted blow with Stone
,_ Rolling Pad on her head. Exception 1 to Section 300 has
certain provisos. The first proviso states that the
provocation is not sought or voluntarily provoked by the
offender as an excuse for killing any person. Here in this C
case the wife, who was neglected by the appellant and
was not able to maintain herself and her son, was
justified in initiating maintenance proceedings against the
appellant. The appellant could not have insisted that the
proceedings against him for maintenance should be
i withdrawn by the deceased. Further when a lady, entitled D
to initiate maintenance proceedings against her husband,
refuses to accede to unreasonable demand made by her
husband to withdraw the maintenance proceedings, it
can hardly be said that her denial to accede to such
unreasonable demand would amount to grave and E
sudden provocation within the meaning of 'Exception 1'
of Section 300 IPC. In any view of the matter, the facts of
1
the case clearly indicate that the so called provocation
was sought by the appellant hims~lf as an excuse for
killin~ his wife1and, therefore, the appellant is not entitled F
to the benefit of the provisions of 'Exception 1' to Section
300 IPC. [Para 13] [63-C-H]
6. The evidence on record shows that the deceased
was totally unarmed. The appellant had inflicted blow with G
Polpat on the vital part of the body of the deceased,
.l namely, head and inflicted the blow with such a great
force that it resulted into her death. It is not the case of
the appellant that the injury on the head of the deceased
was accidental nor it is the case of the appellant that the
H
54 SUPREME COURT REPORTS [2009] 11 S.C.R.
,,
;l-
A blow was aimed on some other part of the body and
because of supervening cause like sudden intervention
or movement of the deceased the blow struck on the
head. On the facts and in the circumstances of the case,
it will have to be held that it was the intention of the t
B appellant to cause that very injury which ultimately ...
proved fatal. The medical evidence shows that the
injuries were sufficient in the ordinary course of nature
:-:
to- cause death and, therefore, the offence committed by
the appellant would be punishable as murder under t
c Section 302 IPC and his case would not fall under the first
part or the second part of Section 304 IPC. [Para 13] [64-
A-0]
,,
CRIMINAL APPELLATE JURISDICTION: Criminal Aepeal
No. 1233 of 2009.
D
From the Judgment & Order dated 25.09.2006 of the High :r-
Court of Judicature at Bombay Nagpur Bench at Nagpur in
Criminal Appeal No. 230 of 2002.
Kumud Lata Das for the Appellants.
E
Ravindra Keshavrao Adsure for the Respondents.
The Judgment of the Court was delivered by
F. J.M. PANCHAL, J. 1. Leave granted.
2. The appellant has ch?llenged judgment dated
September 25, 2006, rendered by the High Court of Judicature
at Bombay, Nagpur Bench, Nagpur in Criminal Appeal No. 230
of 2002 by which decision dated February 21, 2002, passed
G by the learned 2nd Additional Sessions Judge, Yavatmal in
Sessions Trial No. 108 of 1995 convicting him for the offences
punishable under Sections 302 and 498A IPC and sentencing J.
him to suffer R.I. for life and fine of Rs.500/- in default
imprisonment for one month for commission of offence
H punishable under Section 302 as well as R.I. for one year and
RAJ KUMAR v. STATE OF MAHARASHTRA 55
[J.M. PANCHAL, J.]
~· fine of Rs.500/- in default imprisonment for one month for A
commission of offence punishable under Section 498A, is
-=11 confirmed.
3. From the record of the case following facts emerge. The
appellant was married to deceased Pramila. The incident in
B
question took place on November 12, 1994. During the
subsistence of marriage the deceased gave birth to a boy
named Sangam. The appellant used to ill-treat the deceased.
Therefore, her brother lshwar Sambhaji Kahire brought her to
Village Belora. A compromise took place and, therefore, the
deceased was sent to her matrimonial home. However,
c
thereafter also the appellant continued to ill-treat the deceased.
Therefore, her brother again brought her back to Village Belora.
As the deceased had no means to sustain herself and her son,
she had filed· proceedings under Section 125 of the Code of
Criminal Procedure, 1973 for obtaining maintenance from the D
appellant. The brother of the deceased took a room on ren(for
the deceased and her son at Wani belonging to one Dadaji
Shankar Ganfade. The deceased and her son aged four years
were residing in the said rented room and the boy was taking
education. After about one and a half months the appellant E
started visiting the deceased and pressurizing her to withdraw
the proceedings initiated for getting maintenance.
1
On November 11, 1994, the appellant went to the room of
the deceased in the evening time fro,m his village Lalguda and F
asked the deceased to withdraw ttie maintenance proceedings.
However, as the deceased had no means to maintain herself
and her son, she refused to withdraw the proceedings. Again
on November 12, 1994 at about 4.00 A.M. in the morning the
appellant went to the room of the deceased. At that time the
G
deceased and her son Sangam were sleeping. The appellant
came there under the influence of liquor. On door being knocked
t
by the appellant, the deceased opened the door and,that is how
the appellant entered the room occupied by the deceased. On
entering the room the appella,nt pressed the neck of the
H
56 SUPREME COURT REPORTS [2009) 11 S.C,R.
~;
A deceased but the deceased got herself released from the
.,.
clutches of the appellant. Thereafter, the appellant took up an
iron Polpat, i.e., Stone Rolling Pad and inflicted a blow on the .-:-
head of the deceased. Because of the injury sustained by her,
the deceased started bleeding. The appellant took some
B amount lying in the room and ran away. The son of the
deceased started weeping loudly. His cries attracted the
attention of the landlord Dadaji Shankar Ganfade. Dadaji in turn
woke up his wife and other tenants and rushed to the room
occupied by the deceased. On entering the room, he found that
c the deceased was lying injured seriously. On enquiry being
made,.the deceased told him and other tenants that as she had
refused to withdraw the maintenance proceedings, her husband
had inflicted blow on her head with a stick. The landlord of the
house and other tenants immediately shifted the deceased to
Wani Hospital.
D
The Medical Officer, who was in-charge of Rural Hospital,
r-
Wani, sent an intimation to the Police Station, Wani at about I
5.00 AM. that one woman named Pramila was admitted in the ;..
hospital in an injured condition. The P.S.O., Wani Police
E Station, sent a requisition to the Executive Magistrate for
recording dying declaration of the deceased in the very morning
itself. On receipt of the requisition, the Executive Magistrate
went to the Rural Hospital, Wani and recorded the dying
declaration of the deceased at about 6.30 AM. The P.S.O.,
F Wani Police Station also directed Head Constable Ashok
Dudhane to go to Rural Hospital, Wani, and record the dying
declaration of the deceased. Accordingly the Head Constable
went to the hospital and recorded the dying declaration of the
deceased. After going through the contents of the dying
G declaration the Head Constable himself became the first
informant and filed his complaint. On the basis of the First
Information Report lodged by the Head Constable Ashok .l
· Dudhane the P.S.O., Wani Police Station registered crime No.
195of1994 for the offence punishable under Section 324 IPC
against the appellant. Head Constable Ashok Dudhane issued
H
RAJ KUMAR v. STATE OF MAHARASHTRA 57
[J.M. PANCHAL, J.]
a letter to the Medical Officer, in-charge of Rural HospitaJIWani A
for medical examination of the deceased and accordingly the
deceased was examined by the Medical Officer. However, the
condition of the deceased started deteriorating. Therefore, she
was referred to Chandrapur Hospital from where she was
referred to Government Medical College and Hospital at B
Nagpur. On learning that her sister was admitted to·· Nagpur
Hospital with serious injuries, her brother lshwar Sambhaji'
Kahire went to the said hospital where the deceased made oral.
dying declaration before him that the appellant had beaten her
by means of stick as she had refused to accede to his pressure c
tactics to withdraw the maintenance proceedings.
The Investigating Officer prepared spot panchnama and·
seized iron Polpat used in the commission .of crime. It may be.
mentioned that the deceased had referred-to assault on her with·
stick because she was lying· on bed and·cpuld not have seen·, D
or identified the weapon when assaulted. Blood stained chadar
from the spot was also a'tached. The Investigating Officer
recorded statements of those persons, who were found to be
conversant with the facts of the case. In spite of treatment given
to the deceased at the Government Medical College and E
Hospital, Nagpur, she succumbed to her injuries at 10.30 AM.
on November 19, 1994. The Medical Officer, in-charge of the
Hospital, conducted Post Mortem. The Investigating Officer was
searching for the appellant but the appellant was found .
absconding. Ultimately he was arrested on November 28, 1994. F
The incr!minating articles seized were sent to Forensic Science
Laboratory for analysis. On completion of investigation, the
appellant was charge-sheeted in the court of learned Judicial .
Magistrate, First Class, Wani tor commission of offences
punishable under Section 302 and 498A IPC...___ G
As the offence punishable under Section 302 IPC is
exclusively tried by a court of sessions, the case was committed
to Sessions Court, Yavatmal for trial. The learned Sessions
Judge framed charge against the appellant at Exh.-18 for H
58 SUPREME COURT REPORTS [2009] 11 S.C.R.
A commission of offences punishable under Section 302 and
Section 498A of the IPC. The charge was read over and
explained to the appellant. However, the appellant did not plead
guilty to the charge and claimed to be tried. Therefore, the
prosecution examined 11 witnesses and produced
s documentary evidence to prove charge against the appellant.
After examination of the witnesses was over, the learned Judge
explained to the appellant the incriminating circumstances
appearihg against him in the evidence of prosecution
witnesses and recorded his statement under Section 313 of the
c Code of Criminal Procedure. In the further statement, the case
of the appellant was that of total denial. However, he did not
examine any witness in support of his defence.
4. On appreciation of evidence adduced by the
prosecution the learned Judge held that commission of offence
D punishable under Sections 302 and 498A IPC by the appellant
were proved by the prosecution beyond reasonable doubt.
Thereafter, the appellant and the learned Public Prosecutor
were heard on the question of sentence. After hearing the
appellant and the learned Public Prosecutor the learned Judge
E by judgment dated February 21, 2002 imposed sentence of life
imprisonment and fine of Rs.500/- in default imprisonment for
one month for commission of offence punishable under Section
302 IPC as we11 as R.I. for one year and fine of Rs.500/- in
default imprisonment for one month for commission of offence
F punishable under Section 498A IPC.
5. Feeling aggrieved, the appellant preferred Criminal
Appeal No. 230 of 2002 in the High Court of Judicature at
Bombay,· Nagpur Bench, Nagpur. The Division Bench has
G ·dismissed the appeal by judgment dated September 25, 2006
giving rise to the instant appeal.
6. This Court has heard the learned counsel for the parties J., ~
at length and in great detail. This Court has also perused the
evidence on record. It may be mentioned that the Special Leave
H Petition was placed for admission hearing before this Court on
RAJ KUMAR v. STATE OF MAHARASHTRA 59
[J.M. PANCHAL, J.]
September 5, 2007. It was found that there was delay of about A
199 days in filing the special leave petition. After hearing the
learned counsel for the appellant, the delay war; condoned and
notice was issued confining to the nature of offence.
7. Though the notice is issued confining to the nature of
8
offence committed by the appellant, this Court has considered
evidence on record to assure that the conviction of the appellant
is well founded. The testimony of Dr. Vined Agrawal, who \,\'.as
Lecturer in Forensic Medicine, Government Medical College,
Nagpur, shows that he had conducted Post Mortem on the dead
body of the deceased Pramila Patil. In his substantive evidence C
the doctor has mentioned the external as well as internal injuries
sustained by the deceased. The Medical Officer iri his
deposition has stated that all the injuries found on the body of
the deceased were ante mortem and were sufficient in the
ordinary course of nature to cause death. The doctor had also D
produced corroborative evidence in the nature of post-mortem
notes prepared by him wherein external and internal injuries
sustained by the deceased are mentioned. It is not the case of
the appellant that the deceased had died because of self-
inflicted injuries or that the injuries sustained by her were E
accidental or suicidal. Under the circumstances the finding
recorded by the S.essions Court and the High Court that the .
deceased had died a homicidal death is eminently just and is
hereby confirmed.
F
8. As noticed earlier two dying declarations of th~
deceased were recorded - one by the Executive Magistrate
and another by the Head Constable. In both .. the dying
declarations the deceased has given consistent version of the
incident in question. In both the dying declarations it was stated G
by her that because she had refused to withdraw the
maintenance proceedings initiated by her against the appellant,.
the appellant ha_d entered her room in the morning of November'
12, 1994 and inflicted blow on her head with a stick. This is
not a case of misidentification of the appellant as person who
H
60 SUPREME COURT REPORTS [2009] 11 S.C.R.
A had mounted attack on his wife because the wife knew the
appellant very well. There was no reason for the deceased wife
to falsely implicate her husband in such a serious case and
allow the real culprit to go scot-free. The deceased had every
opportunity to identify the appellant, who was permitted to enter
B the room by the deceased when the door was knocked by the
appellant. Incidentally, it may. be mentioned that the testimony
of child witness Sangam recorded before the Sessions Court ~
also makes it more than clear thaHhe appellant was the person
who had inflicted injury on the head of the deceased. Though
c this child witness was subjected to searching cross-
examination, nothing could b.e brought on record so as to
impeach his credibility. The defence could not even prima facie
establish that the child witness had given tutored version of the
incident .before the 9ourt.No major contradictions and/or
improvements with reference to his earlier police statement
D
could be brought to light at all.This Court finds no reason to -r
discredit the evidence of the child witness. On re-appreciation
of the evidence on record, this Court finds that the finding
recorded by the Sessions Court and the High Court that the
appellant was author of the fatal injury inflicted on the head of ""'"
E the deceased, is well founded and no case is made out by the
learned <2?unsel for the appellant to interfere with the same.
9. The learned counsel for the appellant maintained that
the appellant was deprived of the power of self control by grave
F and sudden provocation offered by the deceased when the
deceased refused to withdraw the maintenance proceedings
and had inflicted only one blow which ultimately resulted into
her death and as the appellant had not taken undue advantage
of the situation by inflicting another blow, the offence committed
G by the appellant would fall within 'Exception 1' of Section 300
IPC and, therefore, the appellant at the best would be liable to
be con\(icted for commission of offence punishable either under }.,
Part I or Part II of Section 304 IPC.
10. The learned Public Prosecutor, however, contended
H /
,_
f
'
RAJ KUMAR v. STATE OF MAHARASHTRA 61
[J.M. PANCHAL, J.]
-t that no grave and sudden provocation was offered by the A
deceased at all and, therefore, it is wrong to suggest that the
appellant was deprived of the power of self control at all and
as the appellant had inflicted one blow with Stone Rolling Pad
known as Polpat on vital part of the body, namely, head with
great force which resulted into death of the deceased, both the B
Courts were justified in convicting the appellant under Section
302 IPC.
11. Though the learned counsel for the appellant has relied
on certain reported decisions to buttress the argument that the
offence committed by the appellant would fall either under Part
c
I or Part II of Section 304 IPC, this Court is of the opinion that
decided cases on the basis of evidence adduced therein can
hardly constitute binding precedents in criminal matter. Further
there is no universal rule that whenever a single blow is inflicted
resulting into death of the victim, the case would fall either under D
i
Part I or Part II of Section 304 IPC. Each case of single blow
has to be decided on the facts and circumstances obtaining in
the case. Therefore, detailed reference to the decisions cited
at the Bar, is avoided.
E
12. It is well settled that whenever a Court is confronted
with the question whether the offence is murder or culpable
homicide not amounting to murder on the facts of a case, it will
, be convenient for it to approach the problem in three stages.
The question to be considered at the first stage would be F
whether the accused has done an act by doing which he has
caused the death of another. Proof of such causal connection
between the act of the accused and the death leads to the
second stage for considering, whether that act of the accused
amounts to culpable homicide as defined in Section 299. If the
G
answer to this question is prima facie found in the affirmative,
the stage for considering the operation of Section 300 IPC is
..\
reached. This is the stage at which the court should determine
whether the facts proved by the prosecution bring the case
within the ambit of any of the four clauses of the definition of
H
62 SUPREME COURT REPORTS [2009] 11 S.C.R.
A murder contained in Section 300 IPC. If the answer to this
question is in the negative, the offence would be culpable
homicide not amounting to murder punishable under Part I or
Part II of Section 304 IPC, depending, respectively, on whether
second or third clause of Section 299 IPC is applicable. If this
s question is found in the positive, but the case comes within any
of the exceptions enumerated in Section 300 IPC, the offence
would still be culpable homicide not amounting to murder
punishable under the First Part Section 304 IPC. The above
are only broad guidelines and not cast-iron imperatives .
.-.
c 13. Applying the abovementioned broad tests to the facts
of the instant case, this Court finds that it is proved beyond pale
of doubt by the prosecution that the appellant had done the act
of giving Polpat blow on the head of the deceased and by doing
this act, had caused the death of the qeceased. The positive
D evidence of the Medical Officer, who conducted Post Mortem
on the dead body of the deceased, clinchingly establishes that
the injuries sustained by the deceased were sufficient fn the
ordinary course of nature to cause her death, which would bring
· the instant case within the purview of Clause 'Thirdly' of Section
300 IPC, which defines and explains as to when culpable
homicide is murder.
The record of the case would show that the defence of the
appellant is that of total denial. Section 105 of the Indian ·
F Evidence Act, 1872 casts burden of proof on the accused to
show that his case comes within one of the exceptions provided
in IPC. Section 105 of the Evidence Ad stipulates that where
a person is accused of any offence, th;e burden of proving the
existence of circumstances bringing the case within any of the
general exceptions under the Indian Penal Code or within any
G special exception or proviso contained in any other part of the
same Code, or in any law defining the offence, is upon him,
and the court shall presume the absence of such
circumstances. The statutory illustration (b) appended to the
said Section explains that A, accused of murder, alleges that,
H I
RAJ KUMAR v. STATE OF MAHARASHTRA 63
[J.M. PANCHAL, J.]
~
by grave and sudden provocation, he was deprived of the A
power of self-control; the burden of proof is on A. When the
. statement of the appellant was recorded under Section 313 of
the Code of Criminal Procedure, he did not mention existence
of circumstances bringing his case within 'Exception 1' to
Section 300 IPC. Therefore, the court would be justified in B
presuming absence of such circumstances.
Though the appellant failed to prove the existence of
circumstances bringing his case within 'Exception 1' to Section
300, the court may look to the evidence of prosecution to find
out whether the burden cast by Section 105 of the Indian
c
Evidence Act stands discharged by the appellant by
preponderance of probabilities. The deceased in her two dying
declarations has clearly mentioned that wh~n she refused to
accede to the demand of the appellant to withdraw the
... maintenance proceedings, the appellant had inflicted blow with . D
Stone Rolling Pad on her head. Exception 1 to Section 300 has
certain provisos. The first proviso states that the provocation
is not sought or voluntarily provoked by the offender as. an
excuse for killing any person. Here in this case the wife, who
was neglected by the appellant and was not able to maintain E
herself and her son, was justified in initiating maintenance
proceedings against the appellant. Jhe appellant could not have
insisted that the proceedings against him for maintenance
'(
should .be withdrawn by the deceased. Further when a lady,
entitled to initiate maintenance proceedings against her F
husband, refuses to accede to unreasonable demand made by
her husband to withdraw the maintenance proceedings, it can
hardly be said that her denial to accede to such unreasonable
demand would amount to grave and sudden provocation within
the meaning of 'Exception 1' of Section 300 IPC. In any view G
of the matter the facts of the case clearly indicate that the so
' ' ...I called provocation was sought by the appellant himself as an ·
excuse for killing his wife and, therefore, the appellant is not
entitled to the benefit of the provisions of 'Exception 1' to
· Section 300 IPC. H
64 SUPREME COURT REPORTS [2009] 11 S.C.R.
A The evidence on record shows I
that the
,
deceased was +
totally unarmed. The appellant had inflicted blow with Polpat on
the vital part of the body of the deceased, namely, head and
inflicted the blow with such a great force that it resulted into her
death. It is not the case of the appellant that the injury on the
B head of the deceased was accidental nor it is the case of the
appellant that the blow was aimed on some other part of the
body and because of supervening cause like sudden
~
intervention or movement of the deceased the blow struck on
the head. On the facts and in the circumstances of the case, it
c will have to be held that it was the intention of the appellant to
cause that very injury which ultimately proved fatal. As noted
earlier, the medical evidence shows that the injuries were
sufficient in the ordinary course of nature to cause death and,
therefore, the offence committed by the appellant would be
punishable as murder under Section 302 IPC and his case
D _,.
. would not fall under the first part or the second part of Section
304 IPC.
14. The net result of the above discussion is that there is
no substance in the appeal and the same will have to be
E dismissed.
15. Accordingly the appeal fails and is dismissed.
B.B.B. Appeal dismissed. )'
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