1 This appeal is filed challenging the final judgment and order dated 9.5.2008, rendered by the Additonal Sessions Judge, Nandurbar in Sessions Case No. 9 of 2002 (Old S.C. No. 111 of 1994), whereby the appellant is convicted vide section 235(2) of Cr.P.C. for the offence punishable under Section 302 of IPC and sentenced to suffer imprisonment for life and to pay fine of rs.5000/- i.d to suffer R.I. For six months.
2 The background facts of the case are as under:- The appellant-accused Hasan Geblya Padvi, is the son of deceased Geblya Rava Padvi. The appellant has two wives namely Babibai (PW 8) and Nirmalabai (PW 4). The accused had been to village Dhanora, Taluka and District Nandurbar, a day before the date of alleged incident alongwith his wife Nirmalabai for attending the local fare. Accused Hasan was having a separate house at Dhanora. He was residing with his two wives whenever he was staying at Dhanora in that house. The appellant used to go to Gujarat State for work. The deceased Geblya, father of the appellant, was residing separately in a house situated near the house of the appellant at Dhanora. The wife of deceased Geblya, at the relevant time was not alive. PW 8 Babibai was providing food to deceased daily. On 4.5.1994, at about 3.00 p.m. there was some altercation between Nirmalabai (PW 4) and deceased on account of taking amount of Rs.41/- kept by her in the house. On suggestion of Babibai (PW 8), Nirmalabai (PW 4) had asked the deceased whether he had taken the amount of Rs.41/-. Deceased Geblya abused PW 4 Nirmalabai and started assaulting her. At that time, accused came there and saw that the deceased was assaulting his wife Nirmalabai. He went inside of his house and brought a wooden log i.e. Dengarya (Article 6) and gave a blow of that Dengarya on the head of deceased. As a result of which, deceased Geblya sat down holding his head by hand. He had sustained bleeding injury to his head. Blood was oozing from his nose. Within a short time his body became motionless. Noting this fact, the accused-appellant ran away. PW 6 Madhubai w/o Jetna Valvi, PW 10 Kosubai Kango Naik and one Menubai, carried the deceased from the spot of incident to his house. The spot of incident was 5' away from the house of accused. PW 2 Goja Reva Padvi, the brother of deceased Geblya, came to know about the incident in a hotel at Dhanora, where he was serving. He went to the spot and he saw the dead body of his brother Geblya. He came to know that accused was caught by some persons when he was running away. He came to know that the accused was tied and confined by the villagers near the office of Gram Panchayat.
The complainant, first went in outpost, Dhanora to lodge a complaint but the police were not present there. He tried to contact Sarpanch of village but he had been to Nandurbar. At 5.30 to 6.00 p.m. Sarpanch Tanaji Golaji Valvi came in the village and the matter was informed to him. He communicated the incident to the police Nandurbar Taluka police station. That information was received in the police station. PW 13, Prabhakar Karbhari Jadhav, P.S.I. Nandurbar Taluka Police station, was present in the police station. He along with police staff went to village Dhanora in a police jeep. He saw the accused near the office of Gram Panchayat. He recorded the complaint narrated by complainant Golaji and arrested the appellant in presence of panchas. At that time blood stained shirt (Article 7) on the person of the accused was seized. As it was night time, he returned to the police station along with police staff and the appellant. Offence came to be registered vide C.R. No. 34 of 1994 at 22.15 p.m. Accused was referred to medical examination alongwith letter vide Exh.42 with a request to take his blood sample. Seized shirt of the accused was deposited with the muddemal clerk vide muddemal receipt Exh.44.
On 5.5.1994, the investigating officer prepared inquest panchnama vide Exh.11 of the spot at Dhanora where the incident occurred. Thereafter, dead body was sent to Medical Officer, Nandurbar for post mortem vide letter Exh.45 forwarding report vide Exh.46. At that time shirt (article 3), blood mixed earth (Article 1) and simple earth (Article 2) were collected from the spot. Spot panchnama was prepared vide Exh.36 in presence of two panchas. Statement of witnesses were recorded. On the same day, blood stained pyjama and blood stained under pant (Articles 4 and 5) respectively) were seized under panchnama Exh.37 in police station by the investigating Officer. On 6.5.1994, during interrogation in police custody, the accused gave information and expressed willingness to show the spot and the weapon used in commission of offence. The memorandum panchnama was reduced in writing in presence of panchas vide Exh.31. The accused took the panchas and police to the place of incident and took out a Dengarya (Article 7) from his house, which was having blood stains at a point. The investigating Officer seized that Dengarya in presence of panchas under panchnama Exh.32. It was handed over to the muddemal clerk in police station who prepared the receipt of muddemal vide Exh.48 abut handing over the seized articles i.e. Simple soil, blood mixed soil, shirt etc.
On 7.5.1994, the investigating Officer collected the post mortem note vide Exh.13. On 10.5.1994, he sent the blood samples of accused and deceased collecting from Medical Officer by sending a letter vide Exh.49. On 7.6.1994, the entire Muddemal property was sent to C.A. Aurangabad alongwith a letter Exh.12. The reports received from C.A. vide Exh.15 to 17 and 51 are in respect of the muddemal of this crime. Statements of some witnesses were recorded on 11.7.1994. A letter was sent on 15.7.1994 by investigating Officer to Tahsildar, Nandurbar with a request to draw the map of the scene of offence vide Exh.14. The map of the scene of offence prepared by Tahsildar is at Exh.29. On completion of investigation, the charge sheet was prepared and filed in the court of J.M.F.C. 6 Nandurbar, on 26.7.1994. Since the offence was punishable under Section 302 of I.P.C. being exclusively triable by the Court of Sessions, the case came to be committed to the Sessions Court, Nandurbar. The trial Court conducted the trial. The appellant was allowed to examine the defence witness on his behalf and his statement under Section 313 of Cr.P.C. was that Geblya was addicted to liquor. He was under influence of liquor on the date of incident. When he came out of house, he fell on a stone which was kept in the courtyard near the manure pit. Because of that he sustained bleeding injury. Accused went there and saw his injured father Geblya. He was going to call the doctor. There were two political groups in the village, one headed by Sarpanch Tanaji and another by Karma Virji. The accused and his family members were supporting to the party of Karma Virji and the complainant and witnesses were supporting to the party of Tanaji. Due to political rivalry they impleaded the accused in false case. It is further case of the accused that witnesses PW 3 Kango Parsha Naik, PW 5 Udesing Tarjya Naik, PW 6 Madhubai and PW 10 Kasubai are from political party of Tanaji. Their houses are at long distance and facing to the opposing directions of the location where the incident occurred. Therefore they have falsely implicated the accused in the present case.
3. The trial Court after recording the evidence and after full fledged trial has convicted the appellant accused vide Section 235(2) of Cr.P.C. for the offence punishable under Section 302 of I.P.C. and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5000/- in default to suffer R.I. for six months. Hence, this appeal.
4. Learned counsel appearing for the appellant submitted that the complainant PW 2 Goja Padvi is the brother of deceased Geblya. According to learned counsel for the appellant, he has not proved the contents in the F.I.R. marked at Exh.20. PW 2 has admitted that he had narrated the complaint in Adivasi language and the said complaint was not read over to him by the police. It is further submitted that the contents of F.I.R. at Exh.20, is narration of information given to PW 2 by the wife of the appellant. Bebibai, wife of the appellant had informed PW 2 that on the relevant day, there was dispute over taking amount of Rs.41/-, that Nirmalabai wife of appellant had asked Bebibai about Rs.41/- and when she asked Geblya about the same, he abused her, as he was in intoxicated state and he started assaulting Nirmalabai. The appellant came on the spot and requested him not to assault her as she is his daughter-in-law. However, Geblya continued to assault on Nirmalabai and the appellant gave one blow on the head of his father. This narration, finds place in the FIR, goes to the root of the matter and assuming that the appellant has assaulted his father, however, the said act would squarely fall under exception 1 of Section 300 of I.P.C. and hence, conviction of the appellant under section 302 of I.P.C. is unjustified. It is further submitted that PW 2 Kanga appears to be a got up witness. However, he had admitted the prelude to the incident, which again goes to show that the incident has occurred in the course of altercation and that it was on account of taking over amount of Rs.41/-. Similarly, he has admitted that he has given statement to the police in Adivashi language and that there is no evidence that police Officer recording the statement knew Adivasi language. It is further submitted that PW 4 Nirmalabai is wife of the appellant and she was declared hostile. PW 5 Udaysing Naik, claims to be eye witness. However, his conduct does not inspire confidence. He admitted in his cross examination that there was quarrel on account of taking over amount of Rs.41/-. PW 6 is daughter of PW 3. According to her, the appellant gave two blows on the head of deceased Geblya, however, post mortem notes (column No.17) shows a single injury. It is further submitted that Bhagatsingh Naik is also a got up witness. PW 8 Bebibai, who is another wife of the appellant, has also been declared hostile. However, in her cross examination she has confronted with the portion marked A in her statement which is at Exh.53. The said narration would establish that the incident falls under exception 1 of 300 of I.P.C. According to the learned counsel, the prosecution failed to prove recovery of weapon i.e. wooden log. The log is recovered from the house of the accused. However, there is no evidence on record to show that the appellant had entered in the house after the incident. PW 10 Kosubai, who claims to be eye witness and who stated that the appellant and his wives ran away after occurrence of incident. This evidence of these witnesses falsified by other witnesses, as according to PW 5 and PW 6 they helped other women to lift the dead body. Recovery of the cloth is not proved by the prosecution. It is further submitted that PW 12 Dr. Thakre has proved that deceased had sustained single injury on his head. It is further submitted that PW 13 Investigating Officer had admitted the information was received at the police station that one person is tied with a rope. The said information was received prior to registration of crime and hence, that was the F.I.R. The Investigating Officer has proved the omissions and contradictions of all the witnesses. The totality of the circumstances would clearly establish that the act of the appellant was not pre-meditated. The appellant has lost his mental balance when he saw that his father assaulting his wife and in order to uphold the honour of his wife, he had to raise the arm. This act of the appellant is covered by exception 1 of Section 300 of I.P.C. Learned counsel for the appellant in support her contentions placed reliance on the following judgments of this court as well as the judgments of the Hon'ble Apex Court;-
i) Omparkash Sharadaprasad Mallah and Anr. v. State of Maharashtra, reported in 2007(2) Mh.L.J. (Cri) 535 ii) Kaka @ Anil Namdeo Magar v. State of Maharashtra, reported in 2009 All MR (Cri) 3597.
iii) Addha v. State of Madhya Pradesh, reported in AIR 2001 SC 3973
iv) Chowa Mandal and another v. State of Bihar (now Jharkhand), reported in 2004 AIR SCW 849
v) Dharam and others v. State of Haryana, reported in 2006 AIR SCW 6298
vi) Muthu v. State, reported in AIR 2008 SC 1 vii) Ramesh Kumar @ Toni v. State of Haryana, reported in 2009 AIR SCW 4565
viii) Pappu @ Hari Om v. State of Madhya Pradesh, reported in 2009 All MR (Cri) 2181 (S.C.) With all these submissions and by placing reliance on the above said citations, learned counsel for the appellant submits that the appeal deserves to be allowed.
5. On the other hand, learned A.P.P. appearing for the State submitted that P.W.10 in her evidence has stated that there was quarrel between accused and the deceased which was going on for about one hour. Since the quarrel was going on for a considerable long time, it cannot be said that there was sudden quarrel and fight and therefore, the case in hand would squarely falls under Section 302 of I.P.C. It is further submitted that weapon is recovered at the instance of the accused. Nature of injury would demonstrate that considerable force was exerted by the accused. It is further submitted that there is one external injury and there are two internal injuries mentioned in column 19 of post mortem report. It is further submitted that Medical Officer has deposed before the court that the said injuries, in ordinary course of nature are sufficient to cause death. It is further submitted that PW 3 in his cross examination, has specifically stated that at the relevant time deceased Geblya was not in drunken condition. Deceased Geblya had not consumed liquor. Learned A.P.P. would submit that the defence taken by the appellant since deceased Geblya had consumed liquor, fell on stone and sustained injury and subsequently died, is required to be rejected. According to learned A.P.P. there are four eye witnesses who support the prosecution story. It is further submitted that as a result of assault by the appellant accused deceased Geblya died on the spot and therefore, the case in hand would fall under Section 300 of I.P.C. Learned A.P.P. further submitted that the assault by the appellant was on the head of his father and this fact cannot be lost at sight. In support of this contention that the case does not fall under exception (1) of Section 300 of I.P.C. As contended by the counsel for the appellant, he placed reliance on the judgment of Supreme court in the case of Arun Raj v. Union of India and others, reported in 2010 (6) SCC 457.
6. With the assistance of learned counsel appearing for the respective parties, we have carefully considered the rival submissions as well the evidence made available for perusal.
7. The incident in question took place on 4.5.1994 at about 3.00 p.m. The F.I.R. was lodged by Goja Reva Padavi at Exh.20. The charge was framed under section 304 of I.P.C. at Exh.6. The name of deceased is Geblya Reva Padvi and the name of accused is Hasan Geblya Padvi. The cause of death, which is mentioned in the post mortem note is, death due to head injury. PW 1 is one Vinayak Katya Valvi, who was interpretor. PW 2 is Goja Reva Padvi, brother of deceased, who lodged FIR Exh. 20. PW 3 is Kango Parsha Naik, is eye witness to the incident. He stated about prelude of incident and also incident took place as a result of quarrel. PW 4 is Nirmalabai Hasan Padvi, who is declared hostile. PW 5 Udesing Tariya Naik, who is eye witness to the incident. PW 6 Madhubai Jema, daughter of PW 3, who is also an eye witness to the incident. PW 7 Bhagatsingh Jahangir, is the neighbour of accused. PW 8 Bebibai Hasan Padvi, is another wife of the appellant, who was also declared hostile. PW 9 Jeindra Vadilal, who is panch for recovery of panchnama, which is proved at Exh.31 and Exh.32. PW 10 is Kosubai Kango and wife of PW 3, an eye witness to the incident. PW 11 Sudam Dasu Padvi are panch, who proved Exh. 35 and 36 and PW 12 is Doctor Rajeshwar Dullabh, is Medical Officer, who proved Exh.13. PW 13 is Prabhakar Jadhav, Investigating Officer, whose evidence is at Exh.41. The defence has also examined witness as DW 1 accused himself and DW 2 Jainu Diwanji padvi, uncle of the accused whose evidence is at Exh. 98.
8. At the outset, it would be appropriate to refer to the evidence of PW 12, Dr. Thakare. The said witness in his examination in chief has stated that at the relevant time he was on duty in the said hospital. On the said date the dead body of Geblya Reva Padvi was brought to the hospital, by police constable. The said dead body was brought at about 14.00 hours. He conducted the autopsy on the dead body, on the same day between 16 hours to 17 hours. On external examination, close lacerated wound over head size 5 cm x 1cm x long bony deep, fracture below the injury No.1 mentioned in column No.17. Accordingly he mentioned injury No.2 in column No.18. The above injuries were ante mortem. On internal examination he found the following injuries on the dead body;-
i) Under the scalp haematoma found below the injury No.1, column No.17.
ii) In the skull, fracture at the site of right frontal parietal junction. Fracture on left parietal bone. Clot of blood found below the injury Nos.1 and 2 mentioned in column No.19, Part II.
iii) Clots and blood below the durameter below the injury Nos. 1 and 2 and surrounding area of the brain. Cause of death which is mentioned is due to head injury. External injuries mentioned in column No.18 is corresponding to the internal injury mentioned in column No.19 of the post mortem note, as referred above, were sufficient to cause death in the ordinary course of nature. This witness was shown Article 6 wooden log (Dengarya) and he opined that the injuries mentioned in post mortem note can be possible because of article No.6. He has specifically denied in his cross examination that injury sustained by Geblya can be sustained even if the person under the influence of liquor fall on the ground where there is stone. He further opined the injury mentioned in column No.18 i.e. fracture, is not possible, even on fall on a stone. The evidence of Medical Officer unequivocally indicate that death of Geblya is of homicidal. Evidence of this witness is also falsified the defence taken by the appellant that deceased Geblya sustained injury due to fall on stone and died subsequently.
9. Another aspect which required to be considered is the evidence of eye witnesses who have supported the prosecution story. PW 3 Kango Parsha Naik in his examination in chief has stated that incident took place at about 3.00 p.m. On the relevant date. At that time he was at the house of his elder wife Kosubai. While talking with her, he saw one wooden log (Dengarya) in the hand of the accused, and with that accused dealt two blows on the head of his father Geblya. Because of blow given on head, Geblya fell down there and died on the spot. He further stated that he witnessed the incident, from a distance of about 30 to 40 feet. This witness has also stated other material particulars. This witness identified Article 6 Dengarya when it was shown to him before the Court. He has denied the suggestion that he is forced to depose against the accused due to political rivalry. He has specifically stated that he has witnessed the incident and deceased Geblya was not in drunken condition. Therefore, evidence of this witness has not shaken in the cross examination.
10. The evidence of another eye witness PW 5 Udesing Naik is at Exh.23. In his examination in chief, he stated that he resides with his wife and children in Indira Slum area. Kango resides in his neighbourhood. Deceased Geblya was residing in his house, which was at a distance of about 40 feet away form his house, He knew the accused who was present before the Court. In his evidence, he further stated that accused gave a blow to Geblya on his head with Dengarya (wooden log), due to that Geblya fell down on the ground. He died on the spot itself. He went running towards Geblya. At that time, accused Hasan raised Dengarya upon them and therefore, he went running inside of his house. In his cross examination he has not stated that he has not witnessed the incident. He has denied that he deposed falsely due to some political rivalry. Evidence of this witness has not shaken in the cross examination.
11. Another eye witness PW 6 Madhubai, her evidence is at Exh.24. This witness in her evidence stated that Kango Parsha Naik (PW 3) is her father. At the relevant time she had come to village Dhanora i.e. to the house of father, as there was fare in the village Dhanora. Kosubai is her mother. She was at the house of her mother Kosubai. From the house of her mother Kosubai, the house of deceased Geblya was at the distance of about 20 feet. She has identified the accused, who was present in the Court. She has further stated that accused is son of deceased Geblya. She further deposed at the relevant time she was standing on the Ota of the house of her mother. She saw the accused giving two Dengarya blows upon the head of his father Geblya. Due to that Geblya sat down on the ground and thereafter he died on the spot. She has further deposed that her mother has also witnessed the incident. She further deposed that she herself, her mother Kosubai and Menubai lifted Geblya from the spot, took him to his house. By that time he was already dead. When they left the spot, at that time, accused Hasan was standing nearby. She identified the wooden log (Dengarya) which was used by him. In her cross examination she has denied all suggestions she has specifically stated that accused Geblya has not consumed liquor. Her evidence has not shaken in the cross examination.
12. Another eye witness PW 10 Kosubai, she has also deposed that at Dhanora, the house of deceased Geblya is in front of her house. She is the wife of Kango Parsha Naik. The house of accused Hasan is also in front of her house. Accused Hasan is having two wives. The accused used to go to Gujarat for work. As there was fare at Dhanora, therefore, accused Hasan had come to village from Gujarat. Geblya died 7 to 8 months prior to giving of her statement before the Court. On the date of incident, she saw from her house that accused Hasan assaulted his father Geblya with wooden log. He assaulted on the head of Geblya. Her daughter Madhubai was also present at that time and she also witnessed the incident. This witness went inside her house when she came to know that Geblya is no more. She has denied that due to political rivalry she has deposed against the accused appellant. She has also denied other suggestions given by the defence. Evidence of this witness has not shaken in the cross examination.
13. Evidence of PW 3, PW 5, PW 6 and PW 10 clearly support the prosecution case. They are eye witnesses to the incident. Their evidence has remained intact. Medical evidence corroborate the version of these witnesses. The prosecution has proved beyond reasonable doubt that deceased Geblya died due to assault by the appellant accused, on the head of Geblya. There is no manner of doubt that accused appellant had assaulted on his father Geblya and as a result of the said assault by weapons like Dengarya on his head, deceased died on the spot. The trial court has recorded finding that death was homicidal and prosecution has proved it through eye witnesses, medical evidence and other evidence of recovery that the appellant accused alone was responsible for the death of deceased Geblya.
14. As stated earlier, the defence of the accused appellant is falsified by the evidence of Medical Officer and also by the evidence of PW 3 and PW 6, who have stated that at the relevant time deceased Geblya had not consumed liquor. Therefore, false defence was taken by the accused appellant. Therefore, the trial court was perfectly justified in holding that the accused had assaulted his father by wooden log, which has caused fracture to the skull.
15. The prosecution has proved beyond reasonable doubt that the accused appellant has committed offence. However, the question is as to which offence is committed by the appellant accused. The perusal of the column 17 of the post mortem report shows that there is one external injury and there are two internal injuries. According to prosecution story, on 4.5.1994, at about 3.00 p.m. there were altercations between PW 4 Nirmalabai and deceased on account of taking an amount of Rs.41/- kept by her in her house. On suggestion of PW 8 Bebibai, PW 4 Nirmalabai had asked deceased whether he had taken her amount of Rs.41/- Deceased Geblya abused PW 4 Nirmalabai and started assaulting her. At that time accused came there and when he saw that deceased was assaulting on his wife Nirmalabai, he went inside his house and brought wooden log i.e. Dengarya (Article 6) and gave a blow on the head of deceased Geblya. Even if this version of the prosecution is accepted, there was no premeditation or pre-plan on the part of the appellant to cause death of the deceased. Though PW 4 Nirmalabai was declared hostile, however, she was cross examined by the prosecution. If her cross examination is taken into consideration coupled with the prosecution story as it is, it clearly emerges that there were altercations between deceased Geblya and Nirmalabai and during that period, accused arrived at the place of incident. It also appears that entire incident arose only on account of some trifle reason. PW 4 Nirmalabai asked deceased whether he had taken amount of Rs.41/- being annoyed by that deceased Geblya had picked up quarrel with Nirmalabai. Therefore, viewed from any angle, it can convincingly be said that there was no premeditation or pre-plan on the part of the appellant accused to cause death of deceased Geblya. In cross examination of PW 3 Kango Parsha Naik, he stated prelude of the incident. He stated that at the time of incident, he was at the house of his wife Kosubai. He came outside the house. He saw that there was quarrel going on between Geblya and PW 4 Nirmabalai on taking amount of Rs.41/- (emphasis supplied).
16. Therefore, taking into consideration the prosecution case as it is and prelude to incident stated by PW 3, it clearly emerges that there was no premeditation or pre-plan on the part of the appellant accused to kill deceased Geblya. Though PW 4 Nirmalabai declared hostile, however, in her cross examination by learned A.P.P., she has minutely stated how the incident took place. On careful perusal of the prosecution case, it is not the case of the prosecution that the appellant had acted cruelly, in the sense he had delivered successive blows to the deceased. There was sufficient time and opportunity to the appellant accused to give repeated blows. It is also not the case of the prosecution that the appellant wanted to deliver other blows and that he was prevented from doing so, by any person. So there is reasonable ground to believe that after giving a blow, the appellant had stopped and not acted cruelly. It is not disputed that in column No.17 of the post mortem report it is mentioned that only one external injury is caused. However, in other column, it is mentioned that there are two corresponding internal injuries caused to the deceased. In the aforestated circumstances, in our opinion, the case of the appellant would fall under exception 1 of Section 300 of I.P.C. Exception 1 of Section 300 reads as under:-
300. Murder; ---
Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
17. In the instant case, there was altercations between Geblya since deceased and PW 4 Nirmalabai, on account of taking amount of Rs. 41/-. Deceased was quarreling with Nirmalabai and using such words which would lower down the image of womanhood. It is also relevant that Nirmalabai is daughter-in-law of deceased Geblya. The appellant accused, who is husband of Nirmalabai tried to convince the deceased Geblya not to abuse in such language to his own daughter-in-law. However deceased was not in a mood to stop the quarrel. The appellant accused was provoked, he brought a wooden log (Dengarya) from his house and assaulted deceased on his head. In our opinion, there was no premeditation or pre-plan on the part of the appellant accused to kill deceased.
18. We have also perused the judgments of this Court as well as the Hon'ble Supreme Court, as relied upon by the learned counsel appearing for the appellant. We have also considered the judgment of Hon'ble Supreme Court in the case of Pappu @ Hari Om v. State of Madhya Pradesh, reported in 2009 All M.R. (Cri.) 2181 (S.C.). In para 7, the Hon'ble Supreme Court has observed that IPC practically recognized three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
In the instant case, taking into consideration the evidence of prosecution witnesses,, we are of the opinion that the case of the appellant falls under third category i.e. culpable homicide of the third degree'.
In the facts and circumstances of this case, we are of the considered opinion that the case of the present appellant-accused falls under exception 1 of Section 300 of I.P.C.
Therefore, having perused the entire evidence on record, we are inclined to accept the arguments advanced on behalf of the appellant. The incident in question took place in the spur of moment. Learned A.P.P. appearing for the State has placed reliance on the reported judgment of the Hon'ble Supreme Court in the case of Arun Raj v. Union of India and others reported in (2010) 6 SCC 457 to contend that the provocation must be such as will upset not merely hasty, hot tempered and hypersensitive person but also a person with calm nature and ordinary sense. According to learned A.P.P. it is stated by PW 10 Kosubai Kango that quarrel was going on about one hour and therefore, in the instant case, it cannot be said that there was sudden quarrel and the appellant accused was provoked by the deceased Geblya. We are not impressed by the submission of the learned A.P.P. for the reason that the Trial Court itself has recorded the finding that PW 10 is a tribal lady and the time which she has stated is from her own memories and there is no basis for her statement that the quarrel was going on for about an hour. Thus, the facts in the case of Arun Raj (supra) were totally different than the case in hand. In the said case, the appellant therein joined the Indian Army in the year 1983 and in the year 1998 he was working as Ex-Singnalman (Lance Naik) of 787 (Independent), Air Defence Brigade Signal Company. On 22.3.1998, one Mr. S. S. B.Rao (PW.4) was the Section in-charge of Operator Section. At about 1.00 p.m. Mr. Rao returned from lunch and the appellant reported to him that Havildar R.C. Tiwari (deceased) and Havildar Inderpal (PW 3) abused him by using the word "gandu". On Mr. Rao making an inquiry into the same, they replied in the negative, despite the appellant making repeated assertion that they insulted him using the said word. The appellant also brought to the information of Mr. Rao that in the previous night there was a heated discussion between the appellant and the deceased and Inderpal, and the matter was reported to the superior officer.
Paulose (PW 1), in that case, after having his lunch, returned to the barrack from the Rank Mess and he was relaxing in the cot. At this point of time, he saw the appellant coming towards the door. He was wearing a half T-shirt and lungi. The cot of the deceased was near the door and he was sleeping on it. The appellant took out a knife which was hidden in the lungi and stabbed the deceased on the right side of the chest. (emphasis supplied).
Therefore, on careful perusal of the facts in the case of Arun Raj (Supra) it is clear that the accused therein had come prepared and was carrying knife which was hidden in Lungi and stabbed the deceased on the right side of the chest. In that incident also reference to altercations of earlier night is also made. Therefore, the facts of that case cited by learned A.P.P. are totally different than the case in hand. In the case in hand, PW 3 in his examination has stated that the quarrel was going on, on account of taking of amount of Rs.41/- by deceased. On careful perusal of the prosecution case, the cross examination of PW 3 and cross examination of PW 4 prelude to the incident is stated in so many words.
20. In the facts and circumstances of this case, we are of the opinion that the case of the appellant is covered by exception 1 of Section 300 of I.P.C. We are accordingly inclined to partly allow this appeal and convert the conviction of the appellant from one under Section 302 of I.P.C. to Section 304, part-II of I.P.C. and reduce the the sentence from life imprisonment to R.I. for seven years. 21 In the result, Criminal Appeal is partly allowed. The conviction of the appellant is converted from one under Section 302 of I.P.C. to Section 304, part-II of I.P.C. and the sentence of life imprisonment is reduced to R.I. for seven years and fine amount of Rs.5000/- to Rs. 4000/- i/d R.I. for four months instead of six months.
22. Needless to mention that the period undergone by the appellant- accused, as under trial prisoner or as a result of conviction by the Trial Court, should be given set off while calculating the period of sentence at the time of releasing the appellant-accused on completion of sentence of R.I. for seven years .
23. The appeal is partly allowed and disposed of accordingly.