Jayant Patel, J.
1. The present appeal is directed against the judgment and order passed by the learned Sessions Judge, in Session Case No. 39 of 2001, whereby the appellant-accused has been convicted for the offence under Section 302 of the Indian Penal Code read with Section 135 of the Bombay Police Act and the sentence has been imposed for life imprisonment with the fine of Rs. 1,000/- for the offence under Section 302 of Indian Penal Code and imprisonment for 4 months with the fine of Rs. 100/- for the offence under Section 135 of the Bombay Police Act.
2. The facts of the case appears to be that as per the prosecution case, the appellant-accused himself declared before the police that his wife Madhu (hereinafter referred to as 'the deceased') had married since last 18 years and there are two children, son Nilesh aged 16 years and daughter Daksha aged 12 years. The deceased was doing labour work in the field of one Amarsinh Dalaji Darbar and some money was taken by the deceased for construction of the house and the same was to be recovered by instalment from the salary of the deceased by the said Amarsinh Darbar. Since, she was not coming home during night time and sometimes she was also staying overnight, the appellant-accused scolded her many a time, but she was not behaving properly. The appellant-accused had a doubt that his wife had some illicit relation with the said Amarsinh Darbar. Since, last one month, the deceased had gone to the house of Amarsinh Darbar with her clothes and she was staying there. On 3-10-2000, the accused-appellant had gone to call his wife at the place of Amarsinh Darbar with his daughter Daksha, but she declined and at that time, as per the appellant-accused, Bhulabhai Rathod was also present. Thereafter, once again, he went to the said place for requesting his wife to come back, but she declined. At that time, there was pulling and as per the accused, since he was pushed down, he had fallen on the iron grill, and as a result thereof, he sustained injuries on the forehead. Thereafter, the deceased started abusing him. Therefore, the accused lost his temper and gave various stone blows to the deceased, and consequently, thereafter, she expired. The accused-appellant thereafter, came to the Palsana Police Station and made the aforesaid declaration which was registered as complaint on 5-10-2000. At the initial stage, after making inquest by the police officer of Palsana Police Station, as it was learnt that the place falls within the jurisdiction of Limbayat Police Station, the investigation was thereafter transferred. The police further investigated into the matter and filed charge-sheet against the appellant-accused.
3. The prosecution in support of its case, examined 9 witnesses and had also produced 13 documentary evidences in support of its case. After the evidence was over, the learned Sessions Judge also recorded the statement of the accused under Section 313 of the Cr.P.C. and in the further statement, the accused denied the evidence against him and he only stated that Amarsinh Darbar has concocted the case against him and he has been wrongly involved.
4. The learned Sessions Judge thereafter heard the matter and found that the prosecution has been able to prove the case against the accused for the offence under Section 302 of the I.P.C. and Section 135 of the Bombay Police Act, and ultimately, imposed the sentence as referred to hereinabove. It is under these circumstances, the present appeal before this Court.
5. We have heard Mr. D. N. Vakil for Mr. Adhvaryu for the appellant-accused and Mr. Raval, learned A.G.P. for the State. We have gone through the entire evidence led by the prosecution in support of its case, and we have also gone through the judgment and order passed by the learned Sessions Judge.
6. The prosecution has been able to prove the case against the accused as far as the incident in question as well as the death caused of the deceased. The same is apparent from the deposition of the eye-witness Bhulabhai, P.W. 4 and the injury on the body of the deceased is also corroborated by the medical evidence of the doctor at Exh. 11 and also the post mortem report. The pertinent aspect is that in the cross-examination of the said doctor, he has stated that the injury could be caused by one person or more than one person and he has described the injury as could be caused with the stone as well as with the knife. The case of the prosecution is further corroborated by the inquest panchnama, the recovery of the tile which is described as stone used for giving blow by the accused to the deceased as well as the knife which is found in a broken condition. The panchnama of the scene of offence as well as the F.S.L. report at Exh. 32 fully supports the case of the prosecution inasmuch as the blood on the clothes of the accused and the blood as found on the clothes of the deceased is of the same group. Further, the blood found on the tile which is used for giving blow as well as the broken knife is also having the same group. Therefore, to that extent, the case of the prosecution is proved and Mr. Vakil, learned Counsel appearing for the appellant-accused has also not seriously disputed the proof as led by the prosecution for the death caused by the appellant-accused of his wife.
7. However, the learned Counsel for the appellant-accused contended that even as per the evidence led by the prosecution, there was ample material available on record for the sudden provocation since there was inter se pulling and abusing by the wife-deceased to the husband-accused. He also submitted that when the husband had a doubt about the character of the wife and the behaviour, his psychological condition also deserves to be appreciated. He submitted that as such, the appellant-accused had gone to call her back for requesting her to stay with her, and therefore, there could not be any intention to kill her, as he was physically hurt since he was pushed down by the deceased and the injury received by him and the abuses given by the deceased to the appellant-accused, has resulted into the provocation and the incident ultimately has resulted into the death of the deceased. It was therefore submitted that the learned Sessions Judge has committed error for convicting the accused for the offence under Section 302 of the I.P.C., though it was a case falling under Section 304, Part II of the I.P.C. and the conviction could have been on that basis and not under Section 302 of the I.P.C.
8. Whereas, on behalf of the State, learned A.G.P. Mr. Raval while supporting the judgment of the learned Sessions Judge contended that there was evidence available on record that the knife was used by the appellant-accused for giving blow and he submitted that as per the prosecution case, the knife was also given on the head, which has resulted into the fracture and brain haemorrhage and the death of the deceased was caused, and therefore, the case would not fall under Section 304, Part II, as contended by the defence, but the learned Sessions Judge has rightly considered the case as falling under Section 302 of the I.P.C. and the conviction by the learned Sessions Judge is proper.
9. The examination of the said contention shows that as per the evidence of doctor Swapnashil, P.W. 1, who has performed the p.m., the injury on the head is of the scar having size of 10 x 8 cm., but is not a deep incise wound. It is true that on account of the said injury, the fracture is caused in the skull and such has resulted into the internal injury on the brain, but therefore, it is difficult to accept the case of the prosecution that the knife was used for giving blow on the head of the deceased. If the other evidence is taken into consideration of the witnesses with the evidence of the doctor, it appears that the stone of the tile was used for the purpose of giving blow upon the head or the deceased which has resulted into fracture, and consequently, the fatal injury on the brain.
10. Further, the pertinent aspect is that even as per the complaint which is proved by the prosecution, the incident has happened on account of the accused having gone to the deceased for calling her with a request to come together and stay with him. The accused even as per the prosecution case had gone with his daughter at the first instance, and thereafter, had also gone for requesting again. It has further come on record that when the accused had caught the deceased, there was pulling and the deceased pushed him down, as a result of which, the accused had fallen on the iron grill and sustained injury on the head. Thereafter, as the accused pulled the deceased, the deceased started abusing the accused, as a result of which, the accused lost his temper and the tile which was lying in the nearby area was picked up and the blows were given on the head and the other parts of the body, which has resulted into the death of the deceased.
11. Therefore, if the totality of the circumstances are considered, keeping in view the background that the accused had doubt that the deceased had illicit relation with Amarsinh Darbar with whom she was staying by leaving the house of the accused, and in spite of the same, the accused having made repeated requests to the deceased to come back and to stay with him which was resisted by the deceased, it is at that stage, there was altercation which at the first instance resulted into injury being sustained by the appellant-accused and in turn thereafter, the appellant-accused has picked up the tile and has given the blow on the head and other parts of the body of the deceased. Therefore, two aspects are apparent; one is that the accused having gone at the first instance with the daughter to request the deceased to come back and stay with him and on the second time, having gone with the same request, suggest that there could not be any intention on the part of the appellant-accused to cause death of the deceased. It is on account of the altercation between the appellant and the deceased, the tile which was lying was picked up and the blows were given. Therefore, it was apparent that the provocation at that stage was caused for the incident and the accused had no premeditation to cause death of the deceased.
12. At this stage, we may refer to the decision of the Calcutta High Court in the case of Sadre Alam Mullick v. State reported at 1997 CLJ 2441, wherein the case of causing the death of the wife by the husband on account of the doubtful character of the wife came up for consideration before the Calcutta High Court. At Para 27, it was inter alia observed as under:
It appears from the evidence on record and the admission made by the convict appellant during his examination under Section 313 of the Cr.P.C. against question Nos. 4 and 8, i.e. first wife had love affair with the victim and that the neighbours used to discuss that affair and he was ashamed of such relation between his first wife and the victim. Justice is not an ineffectual angel neither it is a wandering ghost. It has its root in the society at large. So, at the time of administering justice the social, psychological and the human aspect should not be given a goodbye. In the instant case, the judicial body cannot keep its eye shut on the psychological aspect of a husband, whose wife living in his house indulged in adulterous life with another man and which fact gave rise to bitter criticism in the society around, and ultimately, caused so much undignified embarassment and irritation in the mind of the unfortunate husband of an unchaste wife, that it was not unlikely for him to lose control over his self and to commit the offence. Thus, this aspect of the particular case compels us to hold that justice will not only be done but it will also be felt to have been done, if the conviction of the convict-appellant is brought down from Section 302, I.P.C. to Section 304. Part II of the I.P.C.
13. We may also refer to the decision of the Apex Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh reported at : AIR 2006 SC 3010, and more particularly, the observations made by the Apex Court at Para 18, which reads as under:
18. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304, Part I or 304, Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the Courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304, Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.
14. Applying the aforesaid, in the facts of the present case, it appears to us that it was on account of provocation, the incident has happened and there is absence of pre-meditation on the part of the appellant-accused of causing death of his wife. Hence, the conviction could only be sustained under Section 304, Part-II of I.P.C. and not under Section 302 of the I.P.C. as recorded by the learned Sessions Judge.
15. In the result, while upholding the conviction of the appellant-accused, the judgment and the Order of the learned Sessions Judge deserves to be modified to the effect that the conviction shall be under Section 304, Part-II of I.P.C. and not under Section 302 of I.P.C. Consequently, the sentence upon the appellant-accused shall be of 10 years imprisonment.
16. The appeal is partly allowed to the aforesaid extent.