IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     864       OF 2010 (Arising out of S.L.P.(Crl.) No.6094 of 2009)

Pundalik — Appellant

VERSUS

State of Maharashtra —    Respondent

O R D E R

Leave granted.

Challenge in this appeal is to the final judgment and order dated 23rd  

October, 2008, delivered by the High Court of the Judicature at Bombay in  

Criminal Appeal No.431 of 2003.  By the impugned judgment, the High  

Court has upheld the conviction of the appellant for an offence punishable  

under Section 302 of the Indian Penal Code, 1860 (for short “the IPC”).  

The prosecution version in nutshell is as follows:

The appellant, an agricultural labourer was residing in a one room  

tenement near the fields of his employer with his family, comprising his  

wife  Rukhmabai  –  the  deceased;  two  daughters  Jyoti  and  Deepa;  son  

Santosh and mother.  According to the prosecution the appellant was in the

habit of beating his wife over petty matters after consuming liquor.  On the  

fateful  day  i.e.  2nd June,  2002,  the  appellant  and his  wife  visited  town  

Yaolkhed  in  district  Akola.   They  returned  to  the  house  in  a  drunken  

condition.  The appellant questioned his wife as to why she had consumed  

liquor, which led to a verbal duel between them.  The appellant got angry,  

picked up an axe and assaulted her with the handle of the axe.  The incident  

happened in presence of the two daughters, who were present in the room.  

The  daughters  went  to  inform  their  maternal  grandparents  about  the  

occurrence.  Rukhmabai succumbed to her injuries on the same day at 5.00  

p.m.  The appellant went to the police station and lodged a report that his  

wife  had  died  due  to  intoxication  on  account  of  excessive  drinking  of  

liquor.  However, another report was lodged with the police station by a  

neighbour of the parents of the deceased against the appellant for having  

committed the murder of his wife.

During the course of investigation, the handle of the axe was got  

recovered by the appellant along with his bloodstained shirt and a piece of  

sari.   On completion of investigation, charge-sheet was filed against the  

appellant.  The case was committed to the Sessions Court.  Charge for an  

offence  punishable  under  Section  302  IPC was  framed.   The  appellant  

pleaded not guilty and claimed trial.

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The  prosecution,  in  order  to  establish  the  guilt  of  the  appellant,  

examined as many as 13 witnesses.  One of the daughters of the appellant  

was also examined as eye-witness but she did not support the case of the  

prosecution.  The Trial Court on the basis of circumstantial evidence, came  

to the conclusion that the appellant had committed the murder of his wife  

and thus, convicted him for an offence punishable under Section 302 IPC.  

The appellant was sentenced to undergo rigorous imprisonment for life and  

to  pay  a  fine  of  Rs.500/-  with  default  stipulation.   Appellant’s  appeal  

having been dismissed by the High Court, he is before us in this appeal.

We have heard learned counsel for the parties.

Learned counsel for the appellant submits that both the courts below  

were in error in holding the appellant guilty of an offence punishable under  

Section 302 IPC.  It is urged that the sole eye-witness, namely, Deepa, the  

daughter of the appellant, has not supported the case of the prosecution and  

there  is  no  other  evidence  on  record  to  bring  home  an  offence  under  

Section 302 IPC against the appellant.  Learned counsel has pleaded that  

even if  the  prosecution version  is  accepted  in  its  entirety,  a  case  under  

Section  302  IPC  is  not  made  out  against  the  appellant  because  the  

occurrence  took place  in  the  course  of  a  sudden quarrel  in  the  heat  of  

passion  and,  therefore,  Exception  4  to  Section  300  is  clearly  attracted.  

According to the learned counsel, at best, the case would fall either under  

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Section 302 Part II or Part I of the IPC and, therefore, the appeal deserves  

to be allowed to that extent.

Learned  counsel  for  the  State,  on  the  other  hand,  supported  the  

decisions of the court below.  It was submitted that both the courts have  

rightly found the appellant guilty of murdering his wife and no interference  

in the case is called for.

Having  heard  the  learned  counsel  and  perused  the  material  on  

record, in our opinion, the appeal deserves to be partly allowed.  As noted  

above, even according to the prosecution, there used to be frequent quarrels  

between the appellant and his deceased wife.  On the date of occurrence,  

finding his wife to be in an inebriated condition, he got infuriated and in the  

heat of passion, assaulted her with wooden handle of the axe.  According to  

the medical evidence of Dr. Rehman Khan (PW-11), who had conducted  

autopsy over the body of the deceased, the cause of the death was due to  

haemorrhagic shock caused by haemorrhage due to fracture of left shaft  

femur.  In his opinion, the injury which proved to be fatal, was possible by  

the  handle  of  an axe.   He admitted that  other  injuries  sustained by the  

deceased were not sufficient in the ordinary course of nature to cause death  

but clarified that haemorrhagic shock was caused because of collection of  

blood in thorarid cavity and fracture of shaft femur.   

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Taking into account all these factors and in view of the totality of  

facts  and  circumstances  of  the  case,  in  our  opinion,  the  appellant  has  

committed an offence punishable under Section 304 Part I of the IPC and  

not the offence punishable under Section 302 IPC.

For  the  afore-going  reasons,  the  appeal  is  partly  allowed;  the  

conviction of the appellant for an offence punishable under Section 302  

IPC as  recorded  by the  Trial  Court  and affirmed  by the  High Court  is  

converted to an offence punishable under Section 304 Part I of the IPC.  In  

our view, custodial sentence of rigorous imprisonment for a period of 8  

years would meet the ends of justice.  The appeal is allowed to the extent  

indicated above.

........................................J. [D.K. JAIN]

........................................J. [DEEPAK VERMA]

NEW DELHI; APRIL 23, 2010.

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