IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   1233          OF 2009 (Arising out of S.L.P. (Criminal) No. 5482 of 2007)

Raj Kumar ... Appellant

Versus

State of Maharashtra ... Respondent

J U D G M E N T

J.M. PANCHAL, J.

Leave granted.

2. The  appellant  has  challenged  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 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 him to suffer  R.I.  for life  and  

fine  of  Rs.500/-  in  default  imprisonment  for  one  

month for commission of offence punishable under  

Section 302 as well as R.I. for one year and fine of  

Rs.500/- in default imprisonment for one month for  

commission  of  offence  punishable  under  Section  

498A, is confirmed.

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3. From  the  record  of  the  case  following  facts  

emerge.  The appellant was married to deceased Pramila.  

The  incident  in  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 Ishwar  

Sambhaji  Kahire  brought  her  to  Village  Belora.   A  

compromise took place and, therefore, the deceased was  

sent to her matrimonial home.  However, 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 appellant.  The brother  

of the deceased took a room on rent 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  

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taking education.  After about one and a half months the  

appellant started visiting the deceased and pressurizing  

her  to  withdraw  the  proceedings  initiated  for  getting  

maintenance.

On November 11, 1994, the appellant went to the  

room of the deceased in the evening time from his village  

Lalguda  and  asked  the  deceased  to  withdraw  the  

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 deceased and  

her  son  Sangam  were  sleeping.   The  appellant  came  

there  under  the  influence  of  liquor.   On  door  being  

knocked 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 appellant  

pressed the neck of the deceased but the deceased got  

herself  released  from  the  clutches  of  the  appellant.  

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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  

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 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.

The  Medical  Officer,  who  was  in-charge  of  Rural  

Hospital, Wani, sent an intimation to the Police Station,  

Wani at about 5.00 A.M. that one woman named Pramila  

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was  admitted  in  the  hospital  in  an  injured  condition.  

The P.S.O., Wani Police 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  A.M.   The  P.S.O.,  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  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  Dudhane  the  

P.S.O., Wani Police Station registered  crime No. 195 of  

1994 for the offence punishable under Section 324 IPC  

against the appellant.  Head Constable Ashok Dudhane  

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issued a letter to the Medical Officer, in-charge of Rural  

Hospital, Wani 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 Nagpur.  On  

learning that her sister was admitted to Nagpur Hospital  

with  serious  injuries,  her  brother  Ishwar  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 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 could not have seen or identified the weapon when  

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assaulted.  Blood stained chadar from the spot was also  

attached.  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  

Hospital,  Nagpur,  she  succumbed  to  her  injuries  at  

10.30 A.M. 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.   The  incriminating  

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 for commission of  

offences punishable under Section 302 and 498A IPC.

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  

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learned  Sessions  Judge  framed  charge  against  the  

appellant  at  Exh.-18  for  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  

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  appearing  against  him  in  

the evidence of prosecution witnesses and recorded his  

statement  under  Section  313  of  the  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.

2. On  appreciation  of  evidence  adduced  by  the  

prosecution  the  learned  Judge  held  that  

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commission  of  offence  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  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 well  

as R.I. for one year and fine of Rs.500/- in default  

imprisonment  for  one  month  for  commission  of  

offence punishable under Section 498A IPC.

3. 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  dismissed  the  appeal  by  

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judgment dated September 25, 2006 giving rise to  

the instant appeal.

4. This Court has heard the learned counsel for the  

parties at length and in great detail.  This Court has  

also  perused  the  evidence  on  record.   It  may  be  

mentioned  that  the  Special  Leave  Petition  was  

placed for admission hearing before  this Court on  

September  5,  2007.   It  was found that there  was  

delay of about 199 days in filing the special  leave  

petition.  After hearing the learned counsel for the  

appellant, the delay was condoned and notice was  

issued confining to the nature of offence.

5. Though  the  notice  is  issued  confining  to  the  

nature of 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.  Vinod  Agrawal,  who  was  

Lecturer in Forensic Medicine, Government Medical  

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College, Nagpur, shows that he had conducted Post  

Mortem on the dead body of the deceased Pramila  

Patil.   In his substantive  evidence  the doctor has  

mentioned the external as well as internal injuries  

sustained by the deceased.  The Medical Officer in  

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  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  

accidental or suicidal.  Under the circumstances the  

finding  recorded  by  the  Sessions  Court  and  the  

High Court that the deceased had died a homicidal  

death is eminently just and is hereby confirmed.

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6. As  noticed  earlier  two dying declarations  of  the  

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  initiated  by  her  against  

the appellant, the appellant had 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  

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 the room by the deceased when  

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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  

that the appellant was the person who had inflicted  

injury on 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  establish  that  the  child  witness  

had given tutored version 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.   This  

Court finds no reason to 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  

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inflicted  on  the  head  of  the  deceased,  is  well  

founded  and no case  is  made  out  by the learned  

counsel for the appellant to interfere with the same.

7. The learned counsel for the appellant maintained  

that the appellant was deprived of the power of self  

control by grave 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  by  the  

appellant would fall within ‘Exception 1’ of Section  

300 IPC and,  therefore,  the  appellant  at  the  best  

would be liable  to be convicted for commission of  

offence punishable either under Part I or Part II of  

Section 304 IPC.   

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8. The  learned  Public  Prosecutor,  however,  

contended  that  no  grave  and  sudden  provocation  

was offered by the 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  Courts  were  

justified  in convicting the appellant under Section  

302 IPC.

9. 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 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  

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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 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.

10. 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  

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  

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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 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 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 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  

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Part  Section 304 IPC.   The  above  are  only  broad  

guidelines and not cast-iron imperatives.

11. 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 deceased.  The positive 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 in 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 Evidence Act, 1872 casts burden of proof on the  

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accused to show that his case comes within one of the  

exceptions provided in IPC.  Section 105 of the Evidence  

Act  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 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, by grave and sudden provocation,  

he was deprived of the 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 presuming absence of such circumstances.   

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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  Evidence  Act  stands  

discharged  by  the  appellant  by  preponderance  of  

probabilities.  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  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 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  

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maintenance  should  be  withdrawn  by  the  deceased.  

Further  when  a  lady,  entitled  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 sudden provocation within  

the meaning of ‘Exception 1’ of Section 300 IPC.  In any  

view of the matter the facts of the case clearly indicate  

that  the  so  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.   

The  evidence  on  record  shows  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  

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the appellant that the injury on the 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  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 would not  

fall under the first part or the second part of Section 304  

IPC.

2. The  net  result  of  the  above  discussion  is  that  

there is no substance in the appeal and the same  

will have to be dismissed.

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3. Accordingly the appeal fails and is dismissed.

…………………………J. [R.V. Raveendran]

 …………………………J. [J.M. Panchal]

New Delhi; July 15, 2009.

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