Paragraph numbers below are the court’s original numbering, recovered from the source text.
15. The Court went on to hold on analysing the evidence that the features show that the appellant had seen something lascivious between his wife and PW2. This led the Court to find that the respondent was entitled to benefit of Exception I to Section 300 IPC and the respondent was convicted under Section 304 Part I of IPC.
16. There can be no quarrel with the principleswhich have been laid down. Principles of law however cannot be appreciated or applied irrespective of the facts obtaining in a particular case. There can be no doubt that the burden to prove that the case is made out in a particular case is on the prosecution unless the law declares otherwise. To be murder within the meaning of Section 302 undoubtedly, the offence must be culpable homicide. In order that it is culpable homicide it must fall under Section 299 of the IPC but all acts which amount to culpable homicide do not constitute murder.
17. There can be no doubt that the burden of proving that the case fall within the four corners of any of the exceptions under Section 300 of the IPC is on the accused. It is equally true that even without adducing any defence evidence it may be possible for the accused to discharge the said burden with reference to material appearing by virtue of the prosecution evidence which includes the cross examination of prosecution witnesses. The test is one of preponderance of probability.
18. The fact that a false case is set up by itself may not deprive an accused of the right to establish the fact that the case against him would still be embraced within any of the exceptions under Section 300 IPC. The law does not taboo adopting of the alternate pleas. Ultimately, the question would fall to be decided, no doubt, on the basis of appreciation of evidence and the requirements of law flowing from the particular provision of law. The accused may also be entitled to the benefit of reasonable doubt.
19. Applying the principles, let us examine the facts of this case. It is true, no doubt, evidence was tendered by PW2 and PW3, who it may be noted are the brothers of the appellant, that the wife of the appellant committed suicide. In the original 313 questioning the appellant also took the stand that it is a case of suicide. After the matter was remanded, in the 313 statement the appellant continued to persevere with the stand and set up the case that he was beaten up by his mother following a quarrel between her and his wife and then he fell fast asleep. When he got up for urination in the early morning he saw the deceased hanging. He has categorically stated that PW2 and PW3 came, untied the shawl used by her for committing suicide. It was accepting the plea of the appellant that the High Court in the earlier round had found that he had not been questioned under Section 313 Cr.PC in regard to circumstances which were addressed by the prosecution as evidence of his complicity. The case which is sought to be set up before us revolves around the applicability of exception 4 to Section 300 IPC which involves inter alia a sudden fight following a quarrel. What is conspicuous by its absence is a plea despite the opportunity he had of indicating about any such quarrel between him and his wife. The case sought to be set up was though is that he was heavily drunk: He was at the residence of PW7: The quarrel ensued between his mother and his wife: She- (deceased) came to the residence of PW7: She has escorted him back. He was beaten by his mother when they reached home following a quarrel between the mother-in-law and daughter-in-law;He fell fast asleep.
20. The evidence including the medical evidence is clear and has been correctly appreciated by two courts. It leads to the only irresistible inference that it was not a case of suicide but an unambiguous case of homicide. The death was caused by throttling. Appellant and his wife were occupying a separate bed room. There is reference to the nail clippings containing blood. The attempt at explaining the same has been correctly dispelled by the trial court.
21. There is a case for the appellant that there were injuries on the appellant. It is to be noted that when there is throttling unless the victim is asleep or unconscious there would be resistance. Injuries on the aggressor are not uncommon. In this case we have also noted the injuries on other parts of body apart from the neck. They indicate acts of violence by the aggressor. In this case we are not even called upon to pronounce on whether there is anybody else who would be the aggressor. It is the appellant and appellant alone who can be attributed with the acts which resulted in the death of his wife.
22. Valiant attempt is made by Mr. Renjith B. Marar, learned counsel for the appellant to bring the case within the scope of Section PAUL v. STATE OF KERALA [K. M. JOSEPH, J.] 304 Part-I. He emphasised that proceeding that it is culpable homicide and that he had the intention also to cause the death of his wife, it could still be brought under Section 304 Part-I as the Legislature expressly declares that be it a culpable homicide, it is not the inexorable opening of the doors to an offence under Section 302 IPC but it could despite the intention to cause death being present, be culpable homicide not amounting to murder.
23. In this regard, it must be noticed that the prosecution case about there being a quarrel is about the mother of the appellant creating a scene on 11.10.1998 compelling the deceased to leave home and search her husband out. There is also mention about ill treatment given by the appellant to his wife in front of his friends and it is thereafter in the night the act of the appellant throttling her took place. We are unable to see how exception I to Section 300 IPC which is also pressed into service by the learned counsel for the appellant apply. Exception I requires deprivation of power of control by the accused by virtue of grave and sudden provocation. The grave and sudden provocation must be given by the deceased. No doubt, if death is caused of any other person by virtue of the sudden provocation, by mistake or accident, exception I may apply. Nothing is brought out before us in the evidence to even faintly establish the giving of any provocation leave alone a grave and sudden provocation. Equally, there is no such case undoubtedly set up in the written statement under 313 Cr.PC even after the remand.
24. The case of exception 4 is no different in our view in its inapplicability to the facts. There is no material for us to come to the conclusion that there occurred a sudden quarrel leading to a sudden fight going by the version furnished by the appellant in his written statement under 313 Cr.PC which statement also recites that he fell fast asleep. Till such time there is no hint even of any sudden fight or sudden quarrel. It must also be appreciated that under Section 106 of the Evidence Act facts within the exclusive knowledge of the appellant as to what transpired within the privacy of their bed room even must be established by the appellant. The fact that appellant went about setting up of a palpably false case even at the late stage of filing the written statement under 313 after remand trying to attribute death by hanging by his wife falsely.
25. We may no doubt notice Section 86 of the IPC. Section 86 reads as follows: “86. Offence requiring a particular intent or knowledge committed by one who is intoxicated.—In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.”
26. Section 86 of the IPC enunciates presumption that despite intoxication which is not covered by the last limb of the provision, the accused person cannot ward off the consequences of his act. A dimension however about intoxication may be noted. Section 86 begins by referring to an act which is not an offence unless done with a particular knowledge or intent. Thereafter, the law giver refers to a person committing the act in a state of intoxication. It finally attributes to himknowledge as he would have if he were not under the state of intoxication except undoubtedly, in cases where the intoxicant was administered to him either against his will or without his knowledge. What about an act which becomes an offence if it is done with a specific intention by a person who is under the state of intoxication? Section 86 does not attribute intention as such to an intoxicated man committing an act which amounts to an offence when the act is done by a person harbouring a particular intention.
This question has engaged the attention of this Court in the decision in Basdev v. State of Pepsu AIR 1956 SC 488. In the said case the appellant, a retired military official went to attend a wedding. The appellant was very drunk. He asked a young boy to step aside a little so that he could occupy a convenient seat. The boy did not budge. The appellant fired from a pistol, he had with him, in the abdomen of the boy which proved fatal. This Court inter alia held as follows: “4. It is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission. If in voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required. Are we at liberty to place intent on the same footing, and if so, why has the section omitted intent in its latter part? This is not the PAUL v. STATE OF KERALA [K. M. JOSEPH, J.] first time that the question comes up for consideration. It has been discussed at length in many decisions and the result may be briefly summarised as follows:- 5. So far as knowledge is concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree intoxication. Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts. 6. Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.” (emphasis supplied)
27. In this case there is no evidence about how drunk the appellant was or whether the drunkenness in any way stood in the way of the appellant forming the requisite intention. There is also gap between the time when he was allegedly found drinking and the time of the crime. Moreover, in his 313 statement, according to him, he has stated that he fell fast asleep and he got up to see his wife hanging. The principle that would apply therefore is that appellant can be presumed to have intended the natural consequences of his act.
28. As far as the contention that appellant should be handed down conviction under Section 304, Part-I, we are not impressed by the said argument. As to what constitutes murder under Section 300 of the IPC and what constitutes culpable homicide amounting to murder has been a vexed issue and the subject matter of a large body of case law. Section 300 of the IPC declares that except in those cases which are specifically excepted culpable homicide is murder in situations which have been specifically laid down. These are commonly referred to as firstly, secondly, thirdly and fourthly under Section 300 of the IPC. If the intention of the Legislature was that culpable homicide would amount to murder if it did not fall in any of the five exceptions enumerated in Section 300 of the IPC. What was the need for the Legislature to ‘waste words’ as it were by declaring that culpable homicide is murder if the act fell within any of the 4 clauses in Section 300 of the IPC?
In order that an act is to be punished as murder, it must be culpable homicide which is declared to be murder. Murder is homicide of the gravest kind. So is the punishment appropriately of the highest order. Murder requires establishment of the special mens rea while all cases of culpable homicide may not amount to murder. This Court in the judgment in State of Andhra Pradesh v. Rayavarapu Punnayya and Another 1976(4) SCC 382 inter alia held as follows: 21. From the above conspectus, it emerges 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, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299.
If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, 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 “murder” contained in Section 300. If the answer to this question is in the negative the offence would be “culpable homicide not amounting to murder”, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the PAUL v. STATE OF KERALA [K. M. JOSEPH, J.] positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be “culpable homicide not amounting to murder”, punishable under the first part of Section 304, of the Penal Code. (emphasis supplied)
29. As far as this case is concerned, there can be no doubt that the act which led to the death has been committed by the appellant. We can safely proceed on the basis also that it amounts to culpable homicide. Going by the circumstances present in this case and in particular injuries suffered, it is quite clear that the act would fall within the scope of Section 300 of the IPC. If the act results in culpable homicide which does not amount to murder, then and then alone the question arises of applying Section 304 Part-I or Part- II as the case may be. Appellant cannot extricate himself from the consequence of his act attracting the ingredients of murder by pointing out Section 304 Part I which also contains the expression, “the act with the intention to cause death’. The implications are vastly different. Section 304 of the IPC would apply only in a case where culpable homicide is not murder. If the act amounting to culpable homicide satisfies any of the four criteria to bring it under the offence of murder, being mutually exclusive, there can be no scope for applying Section 304 of the IPC. On the other hand, if the act is culpable homicide as falling in any of the five exceptional circumstances mentioned in Section 300 and then it would amount to culpable homicide not amounting to murder. In cases where the accused is able to establish he is entitled to the benefit of any of the exceptions under Section 300 then his case may be considered under Part-I or Part-II of Section 304 of the IPC depending on whether the act which caused the culpable homicide was done with the intention of causing death or with knowledge that it is likely to cause death. That apart cases of culpable homicide which do not attract any of the four situations under Section 300 would still be culpable homicide to be dealt with under Section 304 of the IPC. However, if the case falls under any of the four limbs of Section 300, there would be no occasion to allow Section 304 to have play. If the act which caused the death and which is culpable homicide is done with the intention of causing death, then it would be murder. This is however subject to the act not being committed in circumstances attracting any of the 5 exceptions. Appellant’s contention that it would be culpable homicide not amounting to murder and reliance placed on the words ‘done with the intention of causing death’ in Section 304 Part-I is wholly meritless.
30. The act of the appellant in the facts of this case clearly show that he has throttled his wife. None of the exceptions in Section 300 are attracted. The act amounts to murder within the meaning of Section 300 of the IPC. The upshot of the above discussion is, we see no reason to interfere with the impugned judgment. The appeal stands dismissed. Kalpana K. Tripathy Appeal dismissed. PAUL v. STATE OF KERALA [K. M. JOSEPH, J.]