PAUL versus STATE OF KERALA on 21 January 2020

PAUL

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v.

STATE OF KERALA

(Criminal Appeal No. 38 of 2020)

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JANUARY 21, 2020

[SANJAY KISHAN KAUL AND K.M. JOSEPH, JJ.]

Penal Code, 1860:

s. 302 – Prosecution under – Initially acquittal by trial court– On appeal, case remanded to trial court – On remand convictionCby Trial Court – Conviction affirmed by High Court – Appeal toSupreme Court – Plea of accused confined to alteration of convictionunder Section 302 to one under Section 304 (Part II) giving benefitof exception 4 to s. 300 – Held: The present case is an unambiguouscase of homicide and not a case of suicide as projected by theDaccused – In the facts of the case, none of the exceptions in Section300 IPC are attracted – Section 86 IPC also not applicable in thefacts of the case – Conviction under Section 302 is confirmed.

ss. 299 and 300 – ‘Culpable Homicide’ and ‘Murder’ –Discussed. s. 304 (Part I) and (Part II) – Applicability of – Discussed.

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s. 86 – When applicable – Discussed.

Code of Criminal Procedure, 1973:

s. 313 – Statement under – Evidentiary value of – Held: Suchstatement even if contains inculpatory admissions cannot be ignored– The Court may enter verdict of guilt where there is evidence.

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Evidence:

Burden to prove – Held: The burden to prove the case is onthe prosecution, unless the law declares otherwise – The burden toprove that the case falls under any of the exceptions in s. 300 IPCis on the accused – Accused can discharge the said burden by virtueof prosecution evidence, even without adducing any defenceevidence.

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ADismissing the appeal, the Court

HELD: 1.1 It can safely be concluded on the basis of thematerial and findings which has been rendered by the courtsconcurrently that the case of suicide set up by the appellant wasa completely false plea. It is clear that the appellant caused theBdeath of his wife by throttling. The injuries clearly has beenappreciated as indicating death by throttling.[PARA 9][1101-H; 1102-A-B]

1.2 A statement made by the accused under Section 313Cr.PC even it contains inculpatory admissions cannot be ignoredCand the Court may where there is evidence available proceed toenter a verdict of guilt.[PARA 14][1107-B]

State of U.P. v. Lakhmi (1998) 4 SCC 336 : [1998] 1SCR 850 – relied on 1.3. There is a case for the appellant that there were injuriesDon the appellant. When there is throttling, unless the victim isasleep or unconscious, there would be resistance. Injuries onthe aggressor are not uncommon. In the present case there arealso injuries on other parts of body apart from the neck. Theyindicate acts of violence by the aggressor. The Court is not evenEcalled upon to pronounce on whether there is anybody else whowould be the aggressor. It is the appellant and appellant alonewho can be attributed with the acts which resulted in the death ofhis wife. [PARA 21][1109-F-G]

2.1. The fact that a false case is set up, by itself may notFdeprive an accused of the right to establish the fact that the caseagainst him would still be embraced within any of the exceptionsunder Section 300 IPC. The law does not taboo adopting of thealternate pleas. Ultimately, the question would fall to be decided,no doubt, on the basis of appreciation of evidence and therequirements of law flowing from the particular provision of law.GThe accused may also be entitled to the benefit of reasonabledoubt. [PARA 18][1108-F-G]

2.2 There can be no doubt that the burden to prove thatthe case is made out in a particular case, is on the prosecutionunless the law declares otherwise. To be murder within theH

meaning of Section 302 undoubtedly, the offence must be culpablehomicide. In order that it is culpable homicide it must fall underSection 299 of the IPC but all acts which amount to culpablehomicide do not constitute murder. [PARA 16][1108-C-D]

2.3 There can be no doubt that the burden of proving thatthe case fall within the four corners of any of the exceptions underSection 300 of the IPC is on the accused. It is equally true thateven without adducing any defence evidence it may be possiblefor the accused to discharge the said burden with reference tomaterial appearing by virtue of the prosecution evidence whichincludes the cross examination of prosecution witnesses. Thetest is one of preponderance of probability. [PARA 17][1108-E]

2.4 In the present case the prosecution case about therebeing a quarrel is about the mother of the appellant creating ascene compelling the deceased to leave home and search herhusband out. There is also mention about ill treatment given bythe appellant to his wife in front of his friends and it is thereafterin the night the act of the appellant throttling her took place. Insuch case exception I to Section 300 IPC would not apply.Exception I requires deprivation of power of control by theaccused by virtue of grave and sudden provocation. The graveand sudden provocation must be given by the deceased. No doubt,if death is caused of any other person by virtue of the suddenprovocation, by mistake or accident, exception I may apply.Nothing is brought out in the evidence to even faintly establishthe giving of any provocation leave alone a grave and suddenprovocation. Equally, there is no such case undoubtedly set up inthe written statement under 313 Cr.PC even after the remand.[PARA 23][1110-C-E]

2.5 The case of exception 4 is no different in itsinapplicability to the facts. There is no material to come to theconclusion that there occurred a sudden quarrel leading to asudden fight going by the version furnished by the appellant inhis written statement under 313 Cr.PC which statement alsorecites that he fell fast asleep. Till such time there is no hinteven of any sudden fight or sudden quarrel. It must also be A

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Aappreciated that under Section 106 of the Evidence Act factswithin the exclusive knowledge of the appellant as to whattranspired within the privacy of their bed room even must beestablished by the appellant. [PARA 24][1110-F-G]

2.6 The appellant cannot be handed down conviction underBSection 304, Part-I. Section 300 of the IPC declares that exceptin those cases which are specifically exceptedculpable homicideis murder in situations which have been specifically laid down.These are commonly referred to as firstly, secondly, thirdly andfourthly under Section 300 of the IPC. If the intention of theLegislature was that culpable homicide would amount to murderCif it did not fall in any of the four exceptions enumerated in Section300 of the IPC, there was no need for the Legislature to ‘wastewords’ as it were by declaring that culpable homicide is murder ifthe 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 culpableDhomicide which is declared to be murder. Murder is homicide ofthe gravest kind. So is the punishment appropriately of the highestorder. Murder requires establishment of the special mens reawhile all cases of culpable homicide may not amount to murder.[PARA 28][1112-H; 1113-A-D]

E2.7 If the act results in culpable homicide which does notamount to murder, then and then alone the question arises ofapplying Section 304 Part-I or Part- II as the case may be.Appellant cannot extricate himself from the consequence of hisact attracting the ingredients of murder by pointing out Section304 Part I which also contains the expression, “the act with theFintention to cause death’. The implications are vastly different.Section 304 of the IPC would apply only in a case where culpablehomicide is not murder. If the act amounting to culpable homicidesatisfies any of the four criteria to bring it under the offence ofmurder, being mutually exclusive, there can be no scope forGapplying Section 304 of the IPC. [Para 29][1114-C-E]

2.8 On the other hand, if the act is culpable homicide asfalling in any of the four exceptional circumstances mentioned inSection 300 and then it would amount to culpable homicide not H

amounting to murder. In cases where the accused is able toestablish he is entitled to the benefit of any of the exceptionsunder Section 300 then his case may be considered under Part-Ior Part-II of Section 304 of the IPC depending on whether theact which caused the culpable homicide was done with theintention of causing death or with knowledge that it is likely tocause death. That apart cases of culpable homicide which do notattract any of the four situations under Section 300 would still beculpable homicide to be dealt with under Section 304 of the IPC.However, if the case falls under any of the four limbs of Section300, there would be no occasion to allow Section 304 to haveplay. If the act which caused the death and which is culpablehomicide is done with the intention of causing death, then it wouldbe murder. This is however subject to the act not being committedin circumstances attracting any of the 5 exceptions. [PARAS 29and 30][1114-E-H]

State of Andhra Pradesh v. Rayavarapu Punnayya andAnother (1976) 4 SCC 382 : [1977] 1 SCR 601 – reliedon Partap v. State of Uttar Pradesh (1976) 2 SCC 798 :[1976] 1 SCR 757; Periasami and Another v. State ofT.N. (1996) 6 SCC 457 : [1996] 6 Suppl. SCR 757 –referred to.

2.9 As far as the present case is concerned, there can beno doubt that the act which led to the death has been committedby the appellant. The Court can safely proceed on the basis alsothat it amounts to culpable homicide. Going by the circumstancesin the present case and in particular injuries suffered, it is quiteclear that the act would fall within the scope of Section 300 of theIPC. Appellant’s contention that it would be culpable homicidenot amounting to murder and reliance placed on the words ‘donewith the intention of causing death’ in Section 304 Part-I is whollymeritless. None of the exceptions in Section 300 are attracted.The act amounts to murder within the meaning of Section 300 ofthe IPC. [Paras 29 and 30][1114-B-C; H; 1115-A]

2.10 Section 86 of the IPC enunciates presumption thatdespite intoxication which is not covered by the last limb of the A

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Aprovision, the accused person cannot ward off the consequencesof his act. A dimension however about intoxication may be noted.Section 86 begins by referring to an act which is not an offenceunless done with a particular knowledge or intent. Thereafter,the law giver refers to a person committing the act in a state ofintoxication. It finally attributes to him knowledge as he wouldBhave if he were not under the state of intoxication exceptundoubtedly, in cases where the intoxicant was administered tohim either against his will or without his knowledge. Section 86does not attribute intention as such to an intoxicated mancommitting an act which amounts to an offence when the act isCdone by a person harbouring a particular intention. In the presentcase, there is no evidence about how drunk the appellant was orwhether the drunkenness in any way stood in the way of theappellant forming the requisite intention. There is also gapbetween the time when he was allegedly found drinking and thetime of the crime. Moreover, in his 313 statement, according toDhim, he has stated that he fell fast asleep and he got up to see hiswife hanging. The principle that would apply therefore is thatappellant can be presumed to have intended the naturalconsequences of his act. [PARAS 26 and 27][1111-C-E; 1112-F-G]

EBasdev v. State of Pepsu AIR 1956 SC 488 : [1956]SCR 363 – relied on.

GCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.38 of 2020.

From the Judgment and Order dated 29.10.2018 of the High Courtof Kerala at Ernakulam in Crl. A. No. 1549 of 2012.

Renjith B. Marar, Ms. Lakshmi N. Kaimal,. Mahendra Kumawat,Advs. for the Appellant.

Nishe Rajen Shonker, Ms. Anu K. Joy, Alim Anvar, Shaji J. KodanKandath, Advs. for the Respondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. By the impugned judgment the High court has affirmed theJudgment of the learned Principal Sessions Judge, Ernakulam convictingthe appellant under section 302 of the Indian Penal Code (for short “IPC”)and sentencing him to rigorous imprisonment for life and a fine ofRs.10,000/-.

2. The deceased was the wife of the appellant.

3. The appellant and his mother were charge-sheeted underSections 498-A and 302 read with Section 34 of the IPC alleging crueltyand for causing the death of the appellant’s wife. By order dated18.2.2005, the accused were acquitted. Thereafter, the mother of theappellant expired. A Division Bench of the Kerala High Court videjudgment dated 29/03/2012 however, allowed the criminal appeal filedby the State against acquittal and set aside the acquittal insofar as itrelated to the appellant and the matter was remanded back with adirection to dispose of the case by continuing proceedings from the stageof examination under Section 313 Cr.PC. It is after the remand that thePrincipal Sessions Judge, Ernakulam, convicted the appellant underSection 302 of the IPC as we have already noted. The High Court bythe impugned judgment has concurred with the view taken by the trialCourt.

4. We heard Mr. Renjith B. Marar, learned counsel for the appellantand learned counsel appearing on behalf of the respondent. Notice wasissued in the SLP noticing that the counsel for the appellant has confinedthe submission to the plea of alteration of the conviction under Section302 of the IPC to under Section 304 Part-II of the IPC. Learned counselfor the appellant would point out that this is a case where the deceasedthough conceived a child there was an abortion. She had depression.The appellant was given to drink on the fateful night. According to theprosecution case there was a quarrel. He would point out that though itis true that the appellant may have set up a case that his wife has A

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Acommitted suicide that should not detract the court from considering thecase as per law. Expatiating he contended that appellant must be extendedthe benefit of exception 4 to Section 300 of the IPC which declares thatculpable homicide is not murder if it is committed in a sudden fight withoutthere being pre-meditation and in the heat of passion upon a suddenquarrel without the offender taking undue advantage and acting in aBcruel and unusual manner. The explanation to Exception 4 to Section300 undoubtedly provides that it is immaterial in such a case which partyoffers the provocation or commits the first assault. Learned counselwould point out that according to the prosecution version, appellantinfact, on that evening went to the house of PW 7 to PW9 with whom heChad drinks. The deceased went there on account of his drinks. He hadto be supported back home by the wife. He relied on the followingjudgments:

(1) 1976 (2) SCC 798 Partap v. State of Uttar Pradesh

(2) 1996 (6) SCC 457 Periasami and Another v. State of TamilDNadu

(3) 1998 (4) SCC 336 State of U.P. v. Lakhmi He would also submit that the Court has found that the appellanthas suffered injuries. This strengthened the appellant’s case based onEthere being a quarrel and therefore this is a fit case where the convictionmust be altered from Section 302 of the IPC to Section 304 Part II ofthe IPC. He points out that the court has acquitted him of the chargeunder Section 498A which means there was no matrimonial crueltypractised by the appellant on his late wife.F5. Per contra, the learned counsel for the respondent-Statestrenuously supported the order of the High Court. He would point outthat this is a clear case of murder by throttling.

PROSECUTION CASE

6. The appellant married Jessy on 31.8.1997. Ever since marriage,Git is the case of the prosecution that Jessy was being subjected to physicaland mental cruelty in the hands of appellant and his mother. On 11.10.1998,the fateful day, the mother of the appellant created scene at their home.Being depressed, the deceased due to unbearable harassment, left thehome in search of her husband and found him consuming liquor with hisfriends. The appellant assaulted his wife in front of them. Thereafter, onHthe same night at about 11.00 p.m., the appellant throttled her to death.

21 witnesses were examined on the side of the prosecution. P-1to P-18 were the documents which were marked. C-1 is the chemicalanalysis report. In the judgment rendered by the High Court in the firstround of litigation where the trial court had acquitted the appellant andhis mother, the Division Bench of the High Court noticed that all theoccupants of the matrimonial home of the deceased turned hostile. PW2to PW6, PW12 and PW14 are the brothers and sisters-in-law of theappellant. PW7 to PW9 were the neighbours. These witnesses turnedhostile. PW1, the brother of the deceased and PW 10, the mother of thedeceased undoubtedly abided by the prosecution version. The appellateCourt noted that the appellant did not deny the fact that he and his wifewere available in the bed room in the night. He did not take up anydefinite stand as to how the injuries were sustained by the deceased. Atthis point of time, it is apposite to refer to the injuries. The following arethe ante-mortem injuries which are noted in Exh.P9 post-mortemcertificate which stood proved by PW16, Dr. Siva Sudan:

“1. Contusion 3x3x0.5 cm on the forehead in midline, 4 cm abovethe root of nose.

2. Abrasion 1x0.2cm vertical on left side of face, 3cm on front oflobule of left ear.

3. Abrasion 0.8 cm x 0.3 cm almost horizontal on right side ofneck, 2.5 cm to right of midline and 2.5 cm below the jaw bone.Underneath the sterno thyroid muscle was found bruised over onarea 2x1.5 cm. The right superior horn of thyroid cartilage wasfound fractured with infiltration of blood around.

4. Abrasion 1.5x0.2 cm almost vertical on front of right lowerchest, 24 cm below the right collar bone and 8 cm to right ofmidline.

5. Contusion 2.5x2x0.5 cm on outer aspect of left arm, 8cm belowthe tip of shoulder.

6. Abrasion 1x0.2 cm on the back of inner aspect of left elbow.

7. Contusion 1.5x1.5x2cm on the back of right forearm 15 cmabove the elbow.

8. Arc like healing abrasion 3x0.1 cm on front of chest with itsconvexity towards right side, 10 cm below the right collar boneand 1 cm to right of midline (coveted with easily removable blackscab)”

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A7. Resuming the narrative, the High Court in the earlier roundfound that appellant toed the line taken in the convenient statements ofPW2 and PW 3 which were contrary to their case diary statements thatthe deceased has committed suicide by hanging. It was noted further bythe High court that when the evidence of the PW2 and PW3 was put tohim he agreed with the statement that the deceased has committedBsuicide. The judgment further reveals that the High Court found that aproper examination under Section 313 Cr.PC had not been conductedby the Sessions Judge. It is accordingly that the judgment setting asidethe acquittal was made. The High Court also directed that the trial Judgemust pointedly consider the play of Section106 of the Evidence Act.TheCSessions Judge was directed to dispose of the matter by continuingproceeding afresh from the stage of 313 Cr.PC. examination of theaccused.

8. We may further notice that when the Principal Sessions Judgetook up the matter after remand, he has entered the following findingsDinter alia. It was found that the death was an immediate result of theblunt force applied on the neck of the deceased. The learned Judgewent on to find that a case under Section 498A was not made out.Theappellant and the deceased-wife were living in a separate bed room.PW1 noted marks of physical violence on the body of the deceased.PW1, in his chief examination deposed that the brother of the appellantEand two others informed that his sister was hospitalised due to sorethroat. Later he was informed that she died due to hanging. He hastestified that he saw swelling on the forehead, contused abrasion on theleft cheek of his sister apart from marks of throttling on the neck andnail marks on those regions. It was found by the learned Judge thatFthere was no cross examination of these aspects by PW1. The courtproceeded to question the appellant under Section 313 Cr.PC. He madea written statement. He maintained that he was innocent. He and hiswife were living a happy marital life. His wife had dejection and objectionabout his drinking habit. She was desperate for not having a child. The Court finds an admission by the appellant that on 11.10.1998 PW7 toGPW9 and himself consumed liquor at the house of PW7. At about 7.00pm his wife came there in search of him and he went with her. Hisversion that he was heavily drunk and it was his wife who fully supportedhim and he was finding it difficult to walk under the influence of alcohol.He admitted to having a separate bed room. An altercation between hisHmother and his wife is noticed. Since he was under intoxication he could

not separate the two. His mother beat him and he sustained injuries onlips. He fell fast asleep. In the early morning he got up for urinating andat that time only he saw the deceased hanging by a shawl tied totherailings in the window and on his crying PW2 and 3 came to hisroom. They untied the shawl and the body of Jessy was laid on the bed.This version was noted by the learned Principal Sessions Judge to be anew version and not made at the time of the original questioning underSection 313 Cr.PC or in the cross examination of the prosecutionwitnesses. The learned Judge went on to notice the swelling on themiddle of the forehead, abrasion on the left cheek given in the inquestreport. Nail clippings and blood samples was taken from the dead body.Nail clippings was also collected from the appellant. According to theappellant blood in nail clippings was on account of an attempt by thedeceased and the appellant to untie the noose around her neck. Howeverthe court noted that PW14 doctor has mentioned that the once ligaturehas fastened firmly around her neck, the victim would becomeunconscious and he or she would not be able to lift his/her upper limbs toloosen the ligature. The Court further noted that in the written statementunder 313 Cr.PCgiven after remand,it was stated that PW1 and PW3,brothers of appellant, untied the shawl allegedto have been used by thedeceased for committing suicide. PW15 also testifies that if the victimscratches the assaultor, blood and part of skin would be presentunderneath his nail clippings. The version sought to be introduced in thewritten statement after remand by the appellant that there was a fightbetween his mother and his wife on the date of occurrence when hewas also assaulted by his mother, was found to be an embellished versionand unacceptable. The Court also noticed that the incident happened inthe bed room of the appellant and that too during night and there was noother person in the room. Therefore, the appellant had a responsibilityunder Section 106 of the Evidence Act. The appellant was found ashaving committed murder by throttling and the theory of suicide wasfound unacceptable. The High Court also noted the case of the appellantthat his wife committed suicide at 1.30 a.m. by hanging on the windowgrill of their room. The High Court agreed that only hypothesis possiblewas homicide by the appellant.

ANALYSIS

9. We can safely conclude on the basis of the material and findingswhich has been rendered by the courts concurrently that the case of A

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Asuicide set up by the appellant was a completely false plea. It is clear asday light that the appellant caused the death of his wife by throttling.We have already noticed the injuries. Apart from injuries to the neck, wenoticed contusion on the forehead in the midline, upon the mid of thenose, an abrasion on the left side of the face (the cheek). There iscontusion on the outer aspect of the left arm and there is an abrasion onBthe back of the inner aspect of left elbow,contusion on the back of theright forearm. This is apart from injuries 2 and 3 which clearly has beenappreciated as indicating death by throttling.

10. In Partap v. State of Uttar Pradesh1976 (2) SCC 798, therewas an exchange of hot words between two persons in regard to water.CThe dispute escalated and a state of acrimony was attained. A gun wasfired. The victim of the gun shot injury lost his life. The plea of theappellant was that deceased was about to strike him with the balla andhe fired a shot in self defence. Justice M.H. Beg wrote a concurringjudgment agreeing with Justice R.S.Sarkaria that the appellant hadDestablished a case that he has acted in his self defence and held asfollows:

“30. The question which arises in this case is: Even if the defenceversion is not held to be fully established by a balance ofprobabilities, were there not sufficient pointers in evidence of whatEwas probably the truth which leaked out from some statements ofthe prosecution witnesses themselves? They had indicated thebellicose and threatening attitude of Ram Nath while he wasadvancing. Did this not tend to corroborate the defence versionthat he was actually advancing menacingly armed witha bhala poised for an attack with it when he was shot at?F31. It was held in the case of Rishi Kesh Singh by a majority ofa Full Bench of nine Judges of the Allahabad High Court explainingand relying upon the decisions of this Court discussed there (at p.51):

G“The accused person who pleads an exception is entitled to beacquitted if upon a consideration of the evidence as a whole(including the evidence given in support of the plea of thegeneral exception) a reasonable doubt is created in the mindof the Court about the guilt of the accused.”

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In that case, the result of a consideration of the decision of thisCourt in relation to the provisions of Section 105 of the EvidenceAct was summed up by me as follows (at pages 97-98):

“... an accused’s plea of an exception may reach one of threenot sharply demarcated stages, one succeeding the other,depending upon the effect of the whole evidence in the casejudged by the standard of a prudent man weighing or balancingprobabilities carefully. These stages are: firstly, a lifting of theinitial obligatory presumption given at the end of Section 105of the Act; secondly, the creation of a reasonable doubt aboutthe existence of an ingredient of the offence; and thirdly acomplete proof of the exception by ‘a preponderance ofprobability’, which covers even a slight tilt of the balance ofprobability in favour of the accused’s plea. The accused is notentitled to an acquittal if his plea does not get beyond the firststage. At the second stage, he becomes entitled to acquittal byobtaining a bare benefit of doubt. At the third stage, he isundoubtedly entitled to an acquittal. This, in my opinion, is theeffect of the majority view in Parbhoo’s case which directlyrelates to first two stages only. The Supreme Court decisionshave considered the last two stages so far, but first stage hasnot yet been dealt with directly or separately there in any casebrought to our notice.”

32. Provisions of Section 105 of the Evidence Act, which areapplicable in such cases, contain what are really two kinds ofburden of the accused who sets up an exception: “firstly, there isthe onus laid down of proving the existence of circumstances bringing the case within any of the General Exceptions in thePenal Code, 1860, or, within any special exception or provisocontained in any other part of the same Code, or in any law definingthe offence,”

and, secondly, there is the burden of introducing or showingevidence which results from the last part of the provision whichsays that “the Court shall presume the absence of suchcircumstances”. The effect of this obligatory presumption at theend of Section 105 of the Evidence Act is that the Court muststart by assuming that no facts exist which could be taken into AB

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Aconsideration for considering the plea of self-defence as anexception to the criminal liability which would otherwise be there.But, when both sides have led evidence of their respective versions,the accused can show, from any evidence on the record, whethertendered by the prosecution or the defence, that the mandatorypresumption is removed. The last mentioned burden is not really aBburden of establishing the plea fully but of either introducing or ofshowing the existence of some evidence to justify the taking upof the plea. The burden resulting from the obligatory presumptionis not difficult to discharge and its removal may not be enough foran acquittal.”

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11. In Periasami and Another v. State of T.N.; 1996 (6) SCC457, accused, two in number, were alleged to have attacked the deceased.Though the Sessions Judge acquitted the accused,the High Courtconvicted the two appellants under Section 302 read with Section 34IPC and another accused under Section 324 IPC. This Court found thatDthe injuries were caused by the appellant with lethal weapons. Dealingwith the contention that offence would not be above 304 Part I, theCourt noted that though the right of private defence was not set upunder Section 313 Cr.PC.,absence of such a plea would not stand in theway of the defence based on the exception being set up was the contentiontaken by the appellant. The Court noted as follows:E

“17. While dealing with the said alternative contention we have tobear in mind Section 105 of the Evidence Act, 1872. A rule ofburden of proof is prescribed therein that the burden is on theaccused to prove the existence of circumstances bringing the casewithin any of the exceptions “and the Court shall presume theFabsence of such circumstances”. The said rule does not whittledown the axiomatic rule of burden (indicated in Section 101) thatthe prosecution must prove that the accused has committed theoffence charged against. The traditional rule that it is forprosecution to prove the offence beyond reasonable doubt appliesGin all criminal cases except where any particular statute prescribesotherwise. The legal presumption created in Section 105 with thewords “the Court shall presume the absence of suchcircumstances” is not intended to displace the aforesaid traditionalburden of the prosecution. It is only where the prosecution hasproved its case with reasonable certainty that the court can rest H

on the presumption regarding absence of circumstances bringingthe case within any of the exceptions. This presumption helps thecourt to determine on whom is the burden to prove facts necessaryto attract the exception and an accused can discharge the burdenby “preponderance of probabilities” unlike the prosecution. Butthere is no presumption that an accused is the aggressor in everycase of homicide. If there is any reasonable doubt, even from theprosecution evidence, that the aggressor in the occurrence wasnot the accused but would have been the deceased party, thenbenefit of that reasonable doubt has to be extended to the accused,no matter he did not adduce any evidence in that direction.

18. The above legal position has been succinctly stated bySubbarao, J. (as he then was) in a case where an accused pleadedthe exception under Section 84 IPC (Dahyabhai ChhaganbhaiThakkar v. State of Gujarat [AIR 1964 SC 1563 : (1964) 2 CriLJ 472]):

“The prosecution, therefore, in a case of homicide shall provebeyond reasonable doubt that the accused caused death withthe requisite intention described in Section 299 of the PenalCode, 1860. This general burden never shifts and it alwaysrests on the prosecution. … If the material placed before thecourt, such as, oral and documentary evidence, presumptions,admissions or even the prosecution evidence, satisfies the testof ‘prudent man’ the accused will have discharged his burden.The evidence so placed may not be sufficient to discharge theburden under Section 105 of the Evidence Act, but it may raisea reasonable doubt in the mind of a Judge as regards one orother of the necessary ingredients of the offence itself.”

20. Keeping the above legal position in mind, we scrutinised theevidence to ascertain whether the deceased could have been theaggressor. Neither PW 1 nor PW 2 could say how the occurrencestarted. The possibility that before they reached the place, someevents would have already taken place cannot be ruled out. PW 1and PW 2 overheard the squeal of a pig. They also overheard thesound of a quarrel. When they reached the scene they saw thecarcass of a slain pig lying nearby. The motive suggested by theprosecution was sufficient for the deceased as well to entertainanimus towards the second appellant. Further, both sides would A

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Ahave confronted with each other on that morning abruptly withoutany prior knowledge or inkling that the deceased might go to theplantain grove at the crucial time for answering the call of nature.”

12. The Court found that the circumstances were more thanBenough to install a reasonable doubt that the accused would have pickedup a quarrel with the second appellant and other events followed and onthis basis they were held liable for culpable homicide not amounting tomurder.

13. InState of U.P. v. Lakhmi;1998(4) SCC 336 the case involvedCdeath of the respondent’s wife. Respondent and the deceased had twochildren. The prosecution case was that there wereintermittent skirmishesbetween the couple. The wife accused the appellant of dissipating hismoney on account of having drinks. During the early hours of the fatefulday, it is further alleged that the respondent inflicted blows on the headDof the deceased, smashed her skull leading to instant death. The trialCourt convicted the respondent but High Court acquitted him. We maynotice paragraph 8. It reads as under:

“8. As a legal proposition we cannot agree with the High Courtthat statement of an accused recorded under Section 313 of theECode does not deserve any value or utility if it contains inculpatoryadmissions. The need of law for examining the accused withreference to incriminating circumstances appearing against himin prosecution evidence is not for observance of a ritual in a trial,nor is it a mere formality. It has a salutary purpose. It enables thecourt to be apprised of what the indicted person has to say aboutFthe circumstances pitted against him by the prosecution. Answersto the questions may sometimes be flat denial or outright repudiationof those circumstances. In certain cases the accused would offersome explanations to incriminative circumstances. In very rareinstances the accused may even admit or own incriminatingGcircumstances adduced against him, perhaps for the purpose ofadopting legally recognised defences. In all such cases the courtgets the advantage of knowing his version about those aspectsand it helps the court to effectively appreciate and evaluate theevidence in the case. If an accused admits any incriminatingcircumstance appearing in evidence against him there is no H

PAUL v. STATE OF KERALA[K. M. JOSEPH, J.]

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PAUL v. STATE OF KERALA[K. M. JOSEPH, J.]

warrant that those admissions should altogether be ignored merelyon the ground that such admissions were advanced as a defence”strategy.

14. We, therefore, have no hesitation in holding that a statementmade by the accused under Section 313 Cr.PC even it contains inculpatoryadmissions cannot be ignored and the Court may where there is evidenceavailable proceed to enter a verdict of guilt. In the aforesaid case hespecifically stated that he murdered his wife with a Kunda and not withPhali. The Court noted further that there was no merit in the defencesought to be set up under Section 84 of the penal code. However, theCourt noted as follows:

16. …..However, we have noticed that the accused had adoptedanother alternative defence which has been suggested duringcross-examination of prosecution witnesses i.e. his wife and PW2 (Ramey) were together on the bed during the early hours of thedate of occurrence. If that suggestion deserves consideration wehave to turn to the question whether the benefit of Exception I toSection 300 of the IPC should be extended to him?

17. The law is that burden of proving such an exception is on theaccused. But the mere fact that the accused adopted anotheralternative defence during his examination under Section 313 ofthe IPC without referring to Exception I of Section 300 of IPC isnot enough to deny him of the benefit of the exception, if theCourt can cull out materials from evidence pointing to the existenceof circumstances leading to that exception. It is not the law thatfailure to set up such a defence would foreclose the right to relyon the exception once and for all. It is axiomatic that burden onthe accused to prove any fact can be discharged either throughdefence evidence or even through prosecution evidence byshowing a preponderance of probability.

18. In the above context, we deem it useful to ascertain whatpossibly would have prompted the accused to kill his wife. Theprosecution case as noted above, is that the accused was notwell-disposed to his wife as she was always speaking against hisdrinking habits. We are inclined to think that, while consideringthe manner in which he had suddenly pounced upon his young A

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Awife who bore two children to him and smashed her head duringthe early hours, he would have had some other strong cause whichprobably would have taken place within a short time prior to themurder. Certain broad features looming large in evidence help usin that line of thinking.”

B15. The Court went on to hold on analysing the evidence that thefeatures show that the appellant had seen something lascivious betweenhis wife and PW2. This led the Court to find that the respondent wasentitled to benefit of Exception I to Section 300 IPC and the respondentwas convicted under Section 304 Part I of IPC.

C16. There can be no quarrel with the principleswhich have beenlaid down. Principles of law however cannot be appreciated or appliedirrespective of the facts obtaining in a particular case. There can be nodoubt that the burden to prove that the case is made out in a particularcase is on the prosecution unless the law declares otherwise. To bemurder within the meaning of Section 302 undoubtedly, the offence mustDbe culpable homicide. In order that it is culpable homicide it must fallunder Section 299 of the IPC but all acts which amount to culpablehomicide do not constitute murder.

17. There can be no doubt that the burden of proving that thecase fall within the four corners of any of the exceptions under SectionE300 of the IPC is on the accused. It is equally true that even withoutadducing any defence evidence it may be possible for the accused todischarge the said burden with reference to material appearing by virtueof the prosecution evidence which includes the cross examination ofprosecution witnesses. The test is one of preponderance of probability.F

18. The fact that a false case is set up by itself may not deprivean accused of the right to establish the fact that the case against himwould still be embraced within any of the exceptions under Section 300IPC. The law does not taboo adopting of the alternate pleas. Ultimately,the question would fall to be decided, no doubt, on the basis of appreciationGof evidence and the requirements of law flowing from the particularprovision of law. The accused may also be entitled to the benefit ofreasonable 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 itmay be noted are the brothers of the appellant, that the wife of theHappellant committed suicide. In the original 313 questioning the appellant also took the stand that it is a case of suicide. After the matter wasremanded, in the 313 statement the appellant continued to perseverewith the stand and set up the case that he was beaten up by his motherfollowing 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 deceasedhanging. He has categorically stated that PW2 and PW3 came, untiedthe shawl used by her for committing suicide. It was accepting the pleaof the appellant that the High Court in the earlier round had found thathe had not been questioned under Section 313 Cr.PC in regard tocircumstances which were addressed by the prosecution as evidence ofhis complicity. The case which is sought to be set up before us revolvesaround the applicability of exception 4 to Section 300 IPC which involvesinter alia a sudden fight following a quarrel. What is conspicuous by itsabsence is a plea despite the opportunity he had of indicating about anysuch quarrel between him and his wife. The case sought to be set upwas though is that he was heavily drunk: He was at the residence ofPW7: 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 aquarrel between the mother-in-law and daughter-in-law;He fell fastasleep.

20. The evidence including the medical evidence is clear and hasbeen correctly appreciated by two courts. It leads to the only irresistibleinference that it was not a case of suicide but an unambiguous case ofhomicide. The death was caused by throttling. Appellant and his wifewere occupying a separate bed room. There is reference to the nailclippings containing blood. The attempt at explaining the same has beencorrectly dispelled by the trial court.

21. There is a case for the appellant that there were injuries onthe appellant. It is to be noted that when there is throttling unless thevictim is asleep or unconscious there would be resistance. Injuries onthe aggressor are not uncommon. In this case we have also noted theinjuries on other parts of body apart from the neck. They indicate acts ofviolence by the aggressor. In this case we are not even called upon topronounce on whether there is anybody else who would be the aggressor.It is the appellant and appellant alone who can be attributed with theacts which resulted in the death of his wife.

22. Valiant attempt is made by Mr. Renjith B. Marar, learnedcounsel for the appellant to bring the case within the scope of Section AB

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A304 Part-I. He emphasised that proceeding that it is culpable homicideand that he had the intention also to cause the death of his wife, it couldstill be brought under Section 304 Part-I as the Legislature expresslydeclares that be it a culpable homicide, it is not the inexorable opening ofthe doors to an offence under Section 302 IPC but it could despite theintention to cause death being present, be culpable homicide not amountingBto murder.

23. In this regard, it must be noticed that the prosecution caseabout there being a quarrel is about the mother of the appellant creatinga scene on 11.10.1998 compelling the deceased to leave home and searchher husband out. There is also mention about ill treatment given by theCappellant to his wife in front of his friends and it is thereafter in the nightthe act of the appellant throttling her took place. We are unable to seehow exception I to Section 300 IPC which is also pressed into serviceby the learned counsel for the appellant apply. Exception I requiresdeprivation of power of control by the accused by virtue of grave andDsudden provocation. The grave and sudden provocation must be givenby the deceased. No doubt, if death is caused of any other person byvirtue of the sudden provocation, by mistake or accident, exception Imay apply. Nothing is brought out before us in the evidence to evenfaintly establish the giving of any provocation leave alone a grave andsudden provocation. Equally, there is no such case undoubtedly set up in Ethe written statement under 313 Cr.PC even after the remand.

24. The case of exception 4 is no different in our view in itsinapplicability to the facts. There is no material for us to come to theconclusion that there occurred a sudden quarrel leading to a suddenfight going by the version furnished by the appellant in his written statementFunder 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 Actfacts within the exclusive knowledge of the appellant as to what transpiredwithin the privacy of their bed room even must be established by theGappellant. The fact that appellant went about setting up of a palpablyfalse case even at the late stage of filing the written statement under313 after remand trying to attribute death by hanging by his wife falsely.

25. We may no doubt notice Section 86 of the IPC. Section 86reads as follows:

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“86. Offence requiring a particular intent or knowledge committedby one who is intoxicated.—In cases where an act done is not anoffence unless done with a particular knowledge or intent, a personwho does the act in a state of intoxication shall be liable to bedealt with as if he had the same knowledge as he would have hadif he had not been intoxicated, unless the thing which intoxicatedhim was administered to him without his knowledge or against hiswill.”

26. Section 86 of the IPC enunciates presumption that despiteintoxication which is not covered by the last limb of the provision, theaccused person cannot ward off the consequences of his act. A dimensionhowever about intoxication may be noted. Section 86 begins by referringto an act which is not an offence unless done with a particular knowledgeor intent. Thereafter, the law giver refers to a person committing the actin a state of intoxication. It finally attributes to himknowledge as hewould have if he were not under the state of intoxication exceptundoubtedly, in cases where the intoxicant was administered to him eitheragainst his will or without his knowledge. What about an act whichbecomes an offence if it is done with a specific intention by a personwho is under the state of intoxication? Section 86 does not attributeintention as such to an intoxicated man committing an act which amountsto an offence when the act is done by a person harbouring a particularintention. This question has engaged the attention of this Court in thedecision inBasdev v. State of PepsuAIR 1956 SC 488. In the said casethe appellant, a retired military official went to attend a wedding. Theappellant was very drunk. He asked a young boy to step aside a little sothat he could occupy a convenient seat. The boy did not budge. Theappellant fired from a pistol, he had with him, in the abdomen of the boywhich proved fatal. This Court inter alia held as follows:

“4. It is no doubt true that while the first part of the section speaksof intent or knowledge, the latter part deals only with knowledgeand a certain element of doubt in interpretation may possibly befelt by reason of this omission. If in voluntary drunkennessknowledge is to be presumed in the same manner as if there wasno drunkenness, what about those cases where mens rea isrequired.

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 A

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Afirst time that the question comes up for consideration. It hasbeen discussed at length in many decisions and the result may bebriefly summarised as follows:-

5. So far as knowledge is concerned, we must attribute to theintoxicated man the same knowledge as if he was quite sober.BBut so far as intent or intention is concerned, we must gather itfrom the attending general circumstances of the case paying dueregard to the degree intoxication. Was the man beside his mindaltogether for the time being?

If so it would not be possible to fix him with the requisite intention.CBut if he had not gone so deep in drinking, and from the facts itcould be found that he knew what he was about, we can applythe rule that a man is presumed to intend the natural consequencesof his act or acts.

6. Of course, we have to distinguish between motive, intentionDand knowledge. Motive is something which prompts a man toform an intention and knowledge is an awareness of theconsequences of the act. In many cases intention and knowledgemerge into each other and mean the same thing more or less andintention can be presumed from knowledge. The demarcating linebetween knowledge and intention is no doubt thin but it is notEdifficult to perceive that they connote different things. Even insome English decisions, the three ideas are used interchangeablyand this has led to a certain amount of confusion.”

F27. In this case there is no evidence about how drunk the appellantwas or whether the drunkenness in any way stood in the way of theappellant forming the requisite intention. There is also gap between thetime when he was allegedly found drinking and the time of the crime.Moreover, in his 313 statement, according to him, he has stated that hefell fast asleep and he got up to see his wife hanging. The principle thatGwould apply therefore is that appellant can be presumed to have intendedthe natural consequences of his act.

28. As far as the contention that appellant should be handed downconviction under Section 304, Part-I, we are not impressed by the saidargument. As to what constitutes murder under Section 300 of the IPCH

and what constitutes culpable homicide amounting to murder has been avexed issue and the subject matter of a large body of case law. Section300 of the IPC declares that except in those cases which are specificallyexceptedculpable homicide is murder in situations which have beenspecifically laid down. These are commonly referred to as firstly,secondly, thirdly and fourthly under Section 300 of the IPC. If the intentionof the Legislature was that culpable homicide would amount to murderif it did not fall in any of the five exceptions enumerated in Section 300of the IPC. What was the need for the Legislature to ‘waste words’ asit were by declaring that culpable homicide is murder if the act fell withinany of the 4 clauses in Section 300 of the IPC? In order that an act is tobe punished as murder, it must be culpable homicide which is declared tobe murder. Murder is homicide of the gravest kind. So is the punishmentappropriately of the highest order. Murder requires establishment of thespecial mens rea while all cases of culpable homicide may not amount tomurder. This Court in the judgment in State of Andhra Pradesh v.Rayavarapu Punnayyaand Another 1976(4) SCC 382 inter alia heldas follows:

21. From the above conspectus, it emerges that whenever a courtis confronted with the question whether the offence is ‘murder’or ‘culpable homicide not amounting to murder’, on the facts of acase, it will be convenient for it to approach the problem in threestages. The question to be considered at the first stage would be,whether the accused has done an act by doing which he has causedthe death of another. Proof of such causal connection betweenthe act of the accused and the death, leads to the second stagefor considering whether that act of the accused amounts to“culpable homicide” as defined in Section 299. If the answer tothis question is prima facie found in the affirmative, the stage forconsidering the operation of Section 300 of the Penal Code, isreached. This is the stage at which the court should determinewhether the facts proved by the prosecution bring the case withinthe ambit of any of the four clauses of the definition of “murder”contained in Section 300. If the answer to this question is in thenegative the offence would be “culpable homicide not amountingto murder”, punishable under the first or the second part of Section304, depending, respectively, on whether the second or the thirdclause of Section 299 is applicable. If this question is found in the A

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Apositive, but the case comes within any of the exceptionsenumerated in Section 300, the offence would still be “culpablehomicide not amounting to murder”, punishable under the firstpart of Section 304, of the Penal Code.

B29. As far as this case is concerned, there can be no doubt thatthe act which led to the death has been committed by the appellant. Wecan safely proceed on the basis also that it amounts to culpable homicide.Going by the circumstances present in this case and in particular injuriessuffered, it is quite clear that the act would fall within the scope ofCSection 300 of the IPC. If the act results in culpable homicide whichdoes not amount to murder, then and then alone the question arises ofapplying Section 304 Part-I or Part- II as the case may be. Appellantcannot extricate himself from the consequence of his act attracting theingredients of murder by pointing out Section 304 Part I which alsocontains the expression, “the act with the intention to cause death’. TheDimplications are vastly different. Section 304 of the IPC would applyonly in a case where culpable homicide is not murder. If the act amountingto culpable homicide satisfies any of the four criteria to bring it under theoffence of murder, being mutually exclusive, there can be no scope forapplying Section 304 of the IPC. On the other hand, if the act is culpablehomicide as falling in any of the five exceptional circumstances mentionedEin Section 300 and then it would amount to culpable homicide notamounting to murder. In cases where the accused is able to establish heis entitled to the benefit of any of the exceptions under Section 300 thenhis case may be considered under Part-I or Part-II of Section 304 of theIPC depending on whether the act which caused the culpable homicideFwas done with the intention of causing death or with knowledge that it islikely to cause death. That apart cases of culpable homicide which donot attract any of the four situations under Section 300 would still beculpable 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 actGwhich caused the death and which is culpable homicide is done with theintention of causing death, then it would be murder. This is howeversubject to the act not being committed in circumstances attracting anyof the 5 exceptions. Appellant’s contention that it would be culpablehomicide not amounting to murder and reliance placed on the words‘done with the intention of causing death’ in Section 304 Part-I is whollyHmeritless.

PAUL v. STATE OF KERALA

30. The act of the appellant in the facts of this case clearly showthat he has throttled his wife. None of the exceptions in Section 300 areattracted. The act amounts to murder within the meaning of Section 300of the IPC. The upshot of the above discussion is, we see no reason tointerfere with the impugned judgment. The appeal stands dismissed.

Kalpana K. Tripathy

Appeal dismissed.

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