Monday, 27 January 2020

Whether accused can take alternate plea in criminal trial?

The fact that a false case is set up by itself may
not deprive an accused of the right to establish the
fact that the case against him would still be embraced
within any of the exceptions under Section 300 IPC.
The law does not taboo adopting of the alternate pleas.
Ultimately, the question would fall to be decided, no
doubt, on the basis of appreciation of evidence and the
requirements of law flowing from the particular

provision of law. The accused may also be entitled to
the benefit of reasonable doubt.


Dated:January 21, 2020.

1. By the impugned judgment the High court has
affirmed the Judgment of the learned Principal Sessions
Judge, Ernakulam convicting the appellant under section
302 of the Indian Penal Code (for short “IPC”) and
sentencing him to rigorous imprisonment for life and a
fine of Rs.10,000/-.
2. The deceased was the wife of the appellant.
3. The appellant and his mother were charge-sheeted
under Sections 498-A and 302 read with Section 34 of
the IPC alleging cruelty and for causing the death of
the appellant’s wife. By order dated 18.2.2005, the
accused were acquitted. Thereafter, the mother of the
appellant expired. A Division Bench of the Kerala
High Court vide judgment dated 29/03/2012 however,
allowed the criminal appeal filed by the State against
acquittal and set aside the acquittal insofar as it
related to the appellant and the matter was remanded
back with a direction to dispose of the case by
continuing proceedings from the stage of examination
under Section 313 Cr.PC. It is after the remand that
the Principal Sessions Judge, Ernakulam, convicted the
appellant under Section 302 of the IPC as we have
already noted. The High Court by the impugned judgment
has concurred with the view taken by the trial Court.
4. We heard Mr. Renjith B. Marar, learned counsel for
the appellant and learned counsel appearing on behalf
of the respondent. Notice was issued in the SLP
noticing that the counsel for the appellant has
confined the submission to the plea of alteration of
the conviction under Section 302 of the IPC to under
Section 304 Part-II of the IPC. Learned counsel for
the appellant would point out that this is a case where
the deceased though conceived a child there was an
abortion. She had depression. The appellant was given
to drink on the fateful night. According to the
prosecution case there was a quarrel. He would point
out that though it is true that the appellant may have
set up a case that his wife has committed suicide that
should not detract the court from considering the case
as per law. Expatiating he contended that appellant
must be extended the benefit of exception 4 to Section
300 of the IPC which declares that culpable homicide
is not murder if it is committed in a sudden fight
without their being pre-meditation and in the heat of
passion upon a sudden quarrel without the offender
taking undue advantage and acting in a cruel and
unusual manner. The explanation to Exception 4 to
Section 300 undoubtedly provides that it is immaterial
in such a case which party offers the provocation or
commits the first assault. Learned counsel would point
out that according to the prosecution version,
appellant in fact, on that evening went to the house
of PW 7 to PW9 with whom he had drinks. The deceased
went there on account of his drinks. He had to be
supported back home by the wife. He relied on the
following judgments:
(1) 1976(2) SCC 798 Par tap v. State of Uttar Pradesh
(2) 1996 (6) SCC 457 Periasami and Another v. State
of Tamil Nadu
(3) 1998(4) SCC 336 State of U.P. v. Lakhmi
He would also submit that the Court has found that the
appellant has suffered injuries. This strengthened the
appellant’s case based on their being a quarrel and
therefore this is a fit case where the conviction must
be altered from Section 302 of the IPC to Section 304
Part II of the IPC. He points out that the court has
acquitted him of the charge under Section 498A which
means there was no matrimonial cruelty practised by the
appellant on his late wife.
5. Per contra, the learned counsel for the
respondent-State strenuously supported the order of the
High Court. He would point out that this is a clear
case of murder by throttling.
6. The appellant married Jessy on 31.8.1997. Ever
since marriage, it is the case of the prosecution that
Jessy was being subjected to physical and 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 the home in search of her husband and found him
consuming liquor with his friends. The appellant
assaulted his wife in front of them. Thereafter, on
the 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-1 to P-18 were the documents which were
marked. C-1 is the chemical analysis report. In the
judgment rendered by the High Court in the first round
of litigation where the trial court had acquitted the
appellant and his mother, the Division Bench of the
High Court noticed that all the occupants of the
matrimonial home of the deceased turned hostile. PW2
to PW6, PW12 and PW14 are the brothers and sisters-in6
law of the appellant. PW7 to PW9 were the neighbours.
These witnesses turned hostile. PW1, the brother of
the deceased and PW 10, the mother of the deceased
undoubtedly abided by the prosecution version. The
appellate Court noted that the appellant did not deny
the fact that he and his wife were available in the bed
room in the night. He did not take up any definite
stand as to how the injuries were sustained by the
deceased. At this point of time, it is apposite to
refer to the injuries. The following are the antemortem
injuries which are noted in Exh.P9 post-mortem
certificate which stood proved by PW16, Dr. Siva Sudan:
“1. Contusion 3x3x0.5 cm on the forehead
in midline, 4 cm above the root of nose.
2. Abrasion 1x0.2cm vertical on left
side of face, 3cm on front of lobule of
left ear.
3. Abrasion 0.8 cm x 0.3 cm almost
horizontal on right side of neck, 2.5
cm to right of midline and 2.5 cm below
the jaw bone. Underneath the sterno
thyroid muscle was found bruised over
on area 2x1.5 cm. The right superior
horn of thyroid cartilage was found
fractured with infiltration of blood
4. Abrasion 1.5x0.2 cm almost vertical
on front of right lower chest, 24 cm
below the right collar bone and 8 cm to
right of midline.
5. Contusion 2.5x2x0.5 cm on outer
aspect of left arm, 8cm below the 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 cm above the elbow.
8. Arc like healing abrasion 3x0.1 cm
on front of chest with its convexity
towards right side, 10 cm below the
right collar bone and 1 cm to right of
midline (coveted with easily removable
black scab)”
7. Resuming the narrative, the High Court in the
earlier round found that appellant toed the line taken
in the convenient statements of PW2 and PW 3 which were
contrary to their case diary statements that the
deceased has committed suicide by hanging. It was
noted further by the High court that when the evidence
of the PW2 and PW3 was put to him he agreed with the
statement that the deceased has committed suicide. The
judgment further reveals that the High Court found that
a proper examination under Section 313 Cr.PC had not
been conducted by the Sessions Judge. It is
accordingly that the judgment setting aside the
acquittal was made. The High Court also directed that
the trial Judge must pointedly consider the play of
Section 106 of the Evidence Act. The Sessions Judge
was directed to dispose of the matter by continuing
proceeding afresh from the stage of 313 Cr.PC.
examination of the accused.
8. We may further notice that when the Principal
Sessions Judge took up the matter after remand, he has
entered the following findings inter alia. It was found
that the death was an immediate result of the blunt
force applied on the neck of the deceased. The learned
Judge went on to find that a case under Section 498A
was not made out. The appellant 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 appellant and two others informed that his sister
was hospitalised due to sore throat. Later he was
informed that she died due to hanging. He has testified
that he saw swelling on the forehead, contused abrasion
on the left cheek of his sister apart from marks of
throttling on the neck and nail marks on those regions.
It was found by the learned Judge that there was no
cross examination of these aspects by PW1. The court
proceeded to question the appellant under Section 313
Cr.PC. He made a written statement. He maintained
that he was innocent. He and his wife were living a
happy marital life. His wife had dejection and
objection about 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 to PW9 and
himself consumed liquor at the house of PW7. At about
7.00 pm his wife came there in search of him and he
went with her. His version that he was heavily drunk
and it was his wife who fully supported him and he was
finding it difficult to walk under the influence of
alcohol. He admitted to having a separate bed room.
An altercation between his mother and his wife is
noticed. Since he was under intoxication he could not
separate the two. His mother beat him and he sustained
injuries on lips. He fell fast asleep. In the early
morning he got up for urinating and at that time only
he saw the deceased hanging by a shawl tied to the
railings in the window and on his crying PW 2 and 3
came to his room. 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 a new
version and not made at the time of the original
questioning under Section 313 Cr.PC or in the cross
examination of the prosecution witnesses. The learned
Judge went on to notice the swelling on the middle of
the forehead, abrasion on the left cheek given in the
inquest report. Nail clippings and blood samples was
taken from the dead body. Nail clippings was also
collected from the appellant. According to the
appellant blood in nail clippings was on account of an
attempt by the deceased and the appellant to untie the
noose around her neck. However the court noted that
PW14 doctor has mentioned that the once ligature has
fastened firmly around her neck, the victim would
become unconscious and he or she would not be able to
lift his/her upper limbs to loosen the ligature. The
Court further noted that in the written statement under
313 Cr.PC given after remand, it was stated that PW1
and PW3, brothers of appellant, untied the shawl
alleged to have been used by the deceased for
committing suicide. PW15 also testifies that if the
victim scratches the assaultor, blood and part of skin
would be present underneath his nail clippings. The
version sought to be introduced in the written
statement after remand by the appellant that there was
a fight between his mother and his wife on the date of
occurrence when he was also assaulted by his mother,
was found to be an embellished version and
unacceptable. The Court also noticed that the incident
happened in the bed room of the appellant and that too
during night and there was no other person in the room.
Therefore, the appellant had a responsibility under
Section 106 of the Evidence Act. The appellant was
found as having committed murder by throttling and the
theory of suicide was found unacceptable. The High
Court also noted the case of the appellant that his
wife committed suicide at 1.30 a.m. by hanging on the
window grill of their room. The High Court agreed that
only hypothesis possible was homicide by the appellant.
9. We can safely conclude on the basis of the material
and findings which has been rendered by the courts
concurrently that the case of suicide set up by the
appellant was a completely false plea. It is clear as
day light that the appellant caused the death of his
wife by throttling. We have already noticed the
injuries. Apart from injuries to the neck, we noticed
contusion on the forehead in the midline, upon the mid
of the nose, an abrasion on the left side of the face
(the cheek). There is contusion on the outer aspect
of the left arm and there is an abrasion on the back
of the inner aspect of left elbow, contusion on the
back of the right forearm. This is apart from injuries
2 and 3 which clearly has been appreciated as
indicating death by throttling.
10. In Partap v. State of Uttar Pradesh 1976 (2) SCC
798, there was an exchange of hot words between two
persons in regard to water. The dispute escalated and
a state of acrimony was attained. A gun was fired.
The victim of the gun shot injury lost his life. The
plea of the appellant was that deceased was about to
strike him with the balla and he fired a shot in self
defence. Justice M.H. Beg wrote a concurring judgment
agreeing with Justice R.S. Sarkaria that the appellant
had established a case that he has acted in his self
defence and held as follows:
“30. The question which arises in this
case is: Even if the defence version is
not held to be fully established by a
balance of probabilities, were there not
sufficient pointers in evidence of what
was probably the truth which leaked out
from some statements of the prosecution
witnesses themselves? They had indicated
the bellicose and threatening attitude of
Ram Nath while he was advancing. Did this
not tend to corroborate the defence
version that he was actually advancing
menacingly armed with a bhala poised for
an attack with it when he was shot at?
31. It was held in the case of Rishi Kesh
Singh by a majority of a Full Bench of
nine Judges of the Allahabad High Court
explaining and relying upon the decisions
of this Court discussed there (at p. 51):
“The accused person who pleads an exception
is entitled to be acquitted if upon a
consideration of the evidence as a whole
(including the evidence given in support of
the plea of the general exception) a
reasonable doubt is created in the mind of
the Court about the guilt of the accused.”
In that case, the result of a
consideration of the decision of this
Court in relation to the provisions of
Section 105 of the Evidence Act was summed
up by me as follows (at pages 97-98):
“... an accused's plea of an exception may
reach one of three not sharply demarcated
stages, one succeeding the other, depending
upon the effect of the whole evidence in the
case judged by the standard of a prudent man
weighing or balancing probabilities
carefully. These stages are: firstly, a
lifting of the initial obligatory
presumption given at the end of Section 105
of the Act; secondly, the creation of a
reasonable doubt about the existence of an
ingredient of the offence; and thirdly a
complete proof of the exception by ‘a
preponderance of probability’, which covers
even a slight tilt of the balance of
probability in favour of the accused's plea.
The accused is not entitled to an acquittal
if his plea does not get beyond the first
stage. At the second stage, he becomes
entitled to acquittal by obtaining a bare
benefit of doubt. At the third stage, he is
undoubtedly entitled to an acquittal. This,
in my opinion, is the effect of the majority
view in Parbhoo’s case which directly
relates to first two stages only. The Supreme
Court decisions have considered the last two
stages so far, but first stage has not yet
been dealt with directly or separately there
in any case brought to our notice.”
32. Provisions of Section 105 of the
Evidence Act, which are applicable in
such cases, contain what are really two
kinds of burden of the accused who sets
up an exception: “firstly, there is the
onus laid down of proving the existence
of circumstances
bringing the case within any of the General
Exceptions in the Penal Code, 1860, or, within
any special exception or proviso contained in
any other part of the same Code, or in any law
defining the offence,”
and, secondly, there is the burden of
introducing or showing evidence which
results from the last part of the
provision which says that “the Court
shall presume the absence of such
circumstances”. The effect of this
obligatory presumption at the end of
Section 105 of the Evidence Act is that
the Court must start by assuming that no
facts exist which could be taken into
consideration for considering the plea of
self-defence as an exception 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, whether tendered by the
prosecution or the defence, that the
mandatory presumption is removed. The
last mentioned burden is not really a
burden of establishing the plea fully but
of either introducing or of showing the
existence of some evidence to justify the
taking up of the plea. The burden
resulting from the obligatory presumption
is not difficult to discharge and its
removal may not be enough for an
11. In Periasami and Another v. State of T.N.; 1996
(6) SCC 457, accused, two in number, were alleged to
have attacked the deceased. Though the Sessions Judge
acquitted the accused, the High Court convicted the two
appellants under Section 302 read with Section 34 IPC
and another accused under Section 324 IPC. This Court
found that the injuries were caused by the appellant
with lethal weapons. Dealing with the contention that
offence would not be above 304 Part I, the Court noted
that though the right of private defence was not set
up under Section 313 Cr.PC., absence of such a plea
would not stand in the way of the defence based on the
exception being set up was the contention taken by the
appellant. The Court noted as follows:
“17. While dealing with the said
alternative contention we have to bear in
mind Section 105 of the Evidence Act,
1872. A rule of burden of proof is
prescribed therein that the burden is on
the accused to prove the existence of
circumstances bringing the case within
any of the exceptions “and the Court shall
presume the absence of such
circumstances”. The said rule does not
whittle down the axiomatic rule of burden
(indicated in Section 101) that the
prosecution must prove that the accused
has committed the offence charged
against. The traditional rule that it is
for prosecution to prove the offence
beyond reasonable doubt applies in all
criminal cases except where any
particular statute prescribes otherwise.
The legal presumption created in Section
105 with the words “the Court shall
presume the absence of such
circumstances” is not intended to
displace the aforesaid traditional burden
of the prosecution. It is only where the
prosecution has proved its case with
reasonable certainty that the court can
rest on the presumption regarding absence
of circumstances bringing the case within
any of the exceptions. This presumption
helps the court to determine on whom is
the burden to prove facts necessary to
attract the exception and an accused can
discharge the burden by “preponderance of
probabilities” unlike the prosecution.
But there is no presumption that an
accused is the aggressor in every case of
homicide. If there is any reasonable
doubt, even from the prosecution
evidence, that the aggressor in the
occurrence was not the accused but would
have been the deceased party, then
benefit of that reasonable doubt has to
be extended to the accused, no matter he
did not adduce any evidence in that
18. The above legal position has been
succinctly stated by Subbarao, J. (as he
then was) in a case where an accused
pleaded the exception under Section 84
IPC (Dahyabhai Chhaganbhai
Thakkar v. State of Gujarat [AIR 1964 SC
1563 : (1964) 2 Cri LJ 472]):
“The prosecution, therefore, in a case
of homicide shall prove beyond
reasonable doubt that the accused
caused death with the requisite
intention described in Section 299 of
the Penal Code, 1860. This general
burden never shifts and it always
rests on the prosecution. … If the
material placed before the court, such
as, oral and documentary evidence,
presumptions, admissions or even the
prosecution evidence, satisfies the
test of ‘prudent man’ the accused will
have discharged his burden. The
evidence so placed may not be
sufficient to discharge the burden
under Section 105 of the Evidence Act,
but it may raise a reasonable doubt in
the mind of a Judge as regards one or
other of the necessary ingredients of
the offence itself.”
20. Keeping the above legal position in
mind, we scrutinised the evidence to
ascertain whether the deceased could have
been the aggressor. Neither PW 1 nor PW 2
could say how the occurrence started. The
possibility that before they reached the
place, some events would have already
taken place cannot be ruled out. PW 1 and
PW 2 overheard the squeal of a pig. They
also overheard the sound of a quarrel.
When they reached the scene they saw the
carcass of a slain pig lying nearby. The
motive suggested by the prosecution was
sufficient for the deceased as well to
entertain animus towards the second
appellant. Further, both sides would have
confronted with each other on that
morning abruptly without any prior
knowledge or inkling that the deceased
might go to the plantain grove at the
crucial time for answering the call of
(emphasis supplied)
12. The Court found that the circumstances were more
than enough to install a reasonable doubt that the
accused would have picked up a quarrel with the second
appellant and other events followed and on this basis
they were held liable for culpable homicide not
amounting to murder.
13. In State of U.P. v. Lakhmi; 1998(4) SCC 336 the
case involved death of the respondent’s wife.
Respondent and the deceased had two children. The
prosecution case was that there were intermittent
skirmishes between the couple. The wife accused the
appellant of dissipating his money on account of having
drinks. During the early hours of the fateful day, it
is further alleged that the respondent inflicted blows
on the head of the deceased, smashed her skull leading
to instant death. The trial Court convicted the
respondent but High Court acquitted him. We may notice
paragraph 8. It reads as under:
“8. As a legal proposition we cannot agree
with the High Court that statement of an
accused recorded under Section 313 of the
Code does not deserve any value or utility
if it contains inculpatory admissions.
The need of law for examining the accused
with reference to incriminating
circumstances appearing against him in
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 the court to be
apprised of what the indicted person has
to say about the circumstances pitted
against him by the prosecution. Answers
to the questions may sometimes be flat
denial or outright repudiation of those
circumstances. In certain cases the
accused would offer some explanations to
incriminative circumstances. In very rare
instances the accused may even admit or
own incriminating circumstances adduced
against him, perhaps for the purpose of
adopting legally recognised defences. In
all such cases the court gets the
advantage of knowing his version about
those aspects and it helps the court to
effectively appreciate and evaluate the
evidence in the case. If an accused admits
any incriminating circumstance appearing
in evidence against him there is no
warrant that those admissions should
altogether be ignored merely on the
ground that such admissions were advanced
as a defence strategy.”
(emphasis supplied)
14. We, therefore, have no hesitation in holding that
a statement made by the accused under Section 313 Cr.PC
even it contains inculpatory admissions cannot be
ignored and the Court may where there is evidence
available proceed to enter a verdict of guilt. In the
aforesaid case he specifically stated that he murdered
his wife with a Kunda and not with Phali. The Court
noted further that there was no merit in the defence
sought to be set up under Section 84 of the penal code.
However, the Court noted as follows:
16. …..However, we have noticed that the
accused had adopted another alternative
defence which has been suggested during
cross-examination of prosecution
witnesses i.e. his wife and PW 2 (Ramey)
were together on the bed during the early
hours of the date of occurrence. If that
suggestion deserves consideration we have
to turn to the question whether the
benefit of Exception I to Section 300 of
the IPC should be extended to him?
17. The law is that burden of proving such
an exception is on the accused. But the
mere fact that the accused adopted
another alternative defence during his
examination under Section 313 of the IPC
without referring to Exception I of
Section 300 of IPC is not enough to deny
him of the benefit of the exception, if
the Court can cull out materials from
evidence pointing to the existence of
circumstances leading to that exception.
It is not the law that failure to set up
such a defence would foreclose the right
to rely on the exception once and for all.
It is axiomatic that burden on the accused
to prove any fact can be discharged either
through defence evidence or even through
prosecution evidence by showing a
preponderance of probability.
18. In the above context, we deem it
useful to ascertain what possibly would
have prompted the accused to kill his
wife. The prosecution case as noted
above, is that the accused was not welldisposed
to his wife as she was always
speaking against his drinking habits. We
are inclined to think that, while
considering the manner in which he had
suddenly pounced upon his young wife who
bore two children to him and smashed her
head during the early hours, he would have
had some other strong cause which
probably would have taken place within a
short time prior to the murder. Certain
broad features looming large in evidence
help us in that line of thinking.”
15. The Court went on to hold on analysing the evidence
that the features show that the appellant had seen
something lascivious between his wife and PW2. This
led the Court to find that the respondent was entitled
to benefit of Exception I to Section 300 IPC and the
respondent was convicted under Section 304 Part I of
16. There can be no quarrel with the principles which
have been laid down. Principles of law however cannot
be appreciated or applied irrespective of the facts
obtaining in a particular case. There can be no doubt
that the burden to prove that the case is made out in
a particular case is on the prosecution unless the law
declares otherwise. To be murder within the meaning
of Section 302 undoubtedly, the offence must be
culpable homicide. In order that it is culpable
homicide it must fall under Section 299 of the IPC but
all acts which amount to culpable homicide do not
constitute murder.
17. There can be no doubt that the burden of proving
that the case fall within the four corners of any of
the exceptions under Section 300 of the IPC is on the
accused. It is equally true that even without adducing
any defence evidence it may be possible for the accused
to discharge the said burden with reference to material
appearing by virtue of the prosecution evidence which
includes the cross examination of prosecution
witnesses. The test is one of preponderance of
18. The fact that a false case is set up by itself may
not deprive an accused of the right to establish the
fact that the case against him would still be embraced
within any of the exceptions under Section 300 IPC.
The law does not taboo adopting of the alternate pleas.
Ultimately, the question would fall to be decided, no
doubt, on the basis of appreciation of evidence and the
requirements of law flowing from the particular

provision of law. The accused may also be entitled to
the benefit of reasonable 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 it may be noted are the
brothers of the appellant, that the wife of the
appellant committed suicide. In the original 313
questioning the appellant also took the stand that it
is a case of suicide. After the matter was remanded,
in the 313 statement the appellant continued to
persevere with the stand and set up the case that he
was beaten up by his mother following 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
deceased hanging. He has categorically stated that PW2
and PW3 came, untied the shawl used by her for
committing suicide. It was accepting the plea of the
appellant that the High Court in the earlier round had
found that he had not been questioned under Section 313
Cr.PC in regard to circumstances which were addressed
by the prosecution as evidence of his complicity. The

case which is sought to be set up before us revolves
around the applicability of exception 4 to Section 300
IPC which involves inter alia a sudden fight following
a quarrel. What is conspicuous by its absence is a
plea despite the opportunity he had of indicating about
any such quarrel between him and his wife. The case
sought to be set up was though is that he was heavily
drunk: He was at the residence of PW7: 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 a quarrel between the mother-in-law and
daughter-in-law; He fell fast asleep.
20. The evidence including the medical evidence is
clear and has been correctly appreciated by two courts.
It leads to the only irresistible inference that it was
not a case of suicide but an unambiguous case of
homicide. The death was caused by throttling.
Appellant and his wife were occupying a separate bed
room. There is reference to the nail clippings

containing blood. The attempt at explaining the same
has been correctly dispelled by the trial court.
21. There is a case for the appellant that there were
injuries on the appellant. It is to be noted that when
there is throttling unless the victim is asleep or
unconscious there would be resistance. Injuries on the
aggressor are not uncommon. In this case we have also
noted the injuries on other parts of body apart from
the neck. They indicate acts of violence by the
aggressor. In this case we are not even called upon
to pronounce on where there is anybody else who would
be the aggressor. It is the appellant and appellant
alone who can be attributed with the acts which
resulted in the death of his wife.
22. Valiant attempt is made by Mr. Renjith B. Marar,
learned counsel for the appellant to bring the case
within the scope of Section 304 Part-I. He emphasised
that proceeding that it is culpable homicide and that
he had the intention also to cause the death of his
wife, it could still be brought under Section 304 Part27
I as the Legislature expressly declares that be it a
culpable homicide, it is not the inexorable opening of
the doors to an offence under Section 302 IPC but it
could despite the intention to cause death being
present, be culpable homicide not amounting to murder.
23. In this regard, it must be noticed that the
prosecution case about there being a quarrel is about
the mother of the appellant creating a scene on
11.10.1998 compelling the deceased to leave home and
search her husband out. There is also mention about
ill treatment given by the appellant to his wife in
front of his friends and it is thereafter in the night
the act of the appellant throttling her took place. We
are unable to see how exception I to Section 300 IPC
which is also pressed into service by the learned
counsel for the appellant apply. Exception I requires
deprivation of power of control by the accused by
virtue of grave and sudden provocation. The grave and
sudden provocation must be given by the deceased. No
doubt, if death is caused of any other person by virtue
of the sudden provocation, by mistake or accident,
exception I may apply. Nothing is brought out before
us in the evidence to even faintly establish the giving
of any provocation leave alone a grave and sudden
provocation. Equally, there is no such case
undoubtedly set up in the written statement under 313
Cr.PC even after the remand.
24. The case of exception 4 is no different in our view
in its inapplicability to the facts. There is no
material for us to come to the conclusion that there
occurred a sudden quarrel leading to a sudden fight
going by the version furnished by the appellant in his
written statement under 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 Act facts within the exclusive knowledge
of the appellant as to what transpired within the
privacy of their bed room even must be established by
the appellant. The fact that appellant went about
setting up of a palpably false case even at the late
stage of filing the written statement under 313 after
remand trying to attribute death by hanging by his wife
25. We may no doubt notice Section 86 of the IPC.
Section 86 reads as follows:
“86. Offence requiring a particular
intent or knowledge committed by one who
is intoxicated.—In cases where an act
done is not an offence unless done with a
particular knowledge or intent, a person
who does the act in a state of
intoxication shall be liable to be dealt
with as if he had the same knowledge as
he would have had if he had not been
intoxicated, unless the thing which
intoxicated him was administered to him
without his knowledge or against his
26. Section 86 of the IPC enunciates presumption that
despite intoxication which is not covered by the last
limb of the provision, the accused person cannot ward
off the consequences of his act. A dimension however
about intoxication may be noted. Section 86 begins by
referring to an act which is not an offence unless done
with a particular knowledge or intent. Thereafter, the
law giver refers to a person committing the act in a
state of intoxication. It finally attributes to him
knowledge as he would have if he were not under the
state of intoxication except undoubtedly, in cases
where the intoxicant was administered to him either
against his will or without his knowledge. What about
an act which becomes an offence if it is done with a
specific intention by a person who is under the state
of intoxication? Section 86 does not attribute
intention as such to an intoxicated man committing an
act which amounts to an offence when the act is done
by a person harbouring a particular intention. This
question has engaged the attention of this Court in the
decision in Basdev v. State of Pepsu AIR 1956 SC 488.
In the said case the appellant, a retired military
official went to attend a wedding. The appellant was
very drunk. He asked a young boy to step aside a little
so that he could occupy a convenient seat. The boy
did not budge. The appellant fired from a pistol, he
had with him, in the abdomen of the boy which proved
fatal. This Court inter alia held as follows:
“4. It is no doubt true that while the
first part of the section speaks of intent
or knowledge, the latter part deals only
with knowledge and a certain element of
doubt in interpretation may possibly be
felt by reason of this omission. If in
voluntary drunkenness knowledge is to be
presumed in the same manner as if there
was no drunkenness, what about those
cases where mens rea is required.
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 first time that the
question comes up for consideration. It
has been discussed at length in many
decisions and the result may be briefly
summarised as follows:-
5. So far as knowledge is concerned, we
must attribute to the intoxicated man the
same knowledge as if he was quite sober.
But so far as intent or intention is
concerned, we must gather it from the
attending general circumstances of the
case paying due regard to the degree
intoxication. Was the man beside his mind
altogether for the time being?
If so it would not be possible to fix him
with the requisite intention. But if he
had not gone so deep in drinking, and from
the facts it could be found that he knew
what he was about, we can apply the rule
that a man is presumed to intend the
natural consequences of his act or acts.
6. Of course, we have to distinguish
between motive, intention and knowledge.
Motive is something which prompts a man
to form an intention and knowledge is an
awareness of the consequences of the act.
In many cases intention and knowledge
merge into each other and mean the same
thing more or less and intention can be
presumed from knowledge. The demarcating
line between knowledge and intention is
no doubt thin but it is not difficult to
perceive that they connote different
things. Even in some English decisions,
the three ideas are used interchangeably
and this has led to a certain amount of
(emphasis supplied)
27. In this case there is no evidence about how drunk
the appellant was or whether the drunkenness in any way
stood in the way of the appellant forming the requisite
intention. There is also gap between the time when he
was allegedly found drinking and the time of the crime.
Moreover, in his 313 statement, according to him, he
has stated that he fell fast asleep and he got up to
see his wife hanging. The principle that would apply
therefore is that appellant can be presumed to have
intended the natural consequences of his act.
28. As far as the contention that appellant should be
handed down conviction under Section 304, Part-I, we
are not impressed by the said argument. As to what
constitutes murder under Section 300 of the IPC and
what constitutes culpable homicide amounting to murder
has been a vexed issue and the subject matter of a
large body of case law. Section 300 of the IPC declares
that except in those cases which are specifically
excepted culpable homicide is murder in situations
which have been specifically laid down. There are
commonly referred to as firstly, secondly, thirdly and
fourthly under Section 300 of the IPC. If the intention
of the Legislature was that culpable homicide would
amount to murder if it did not fall in any of the five
exceptions enumerated in Section 300 of the IPC. What
was the need for the Legislature to ‘waste words’ as
it were by declaring that culpable homicide is murder
if the 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 culpable homicide which is
declared to be murder. Murder is homicide of the
gravest kind. So is the punishment appropriately of
the highest order. Murder requires establishment of
the special mens rea while all cases of culpable
homicide may not amount to murder. This Court in the
judgment in State of Andhra Pradesh v. Rayavarapu
Punnayya and Another 1976(4) SCC 382 inter alia held
as follows:
21. From the above conspectus, it emerges
that whenever a court is confronted with
the question whether the offence is
‘murder’ or ‘culpable homicide not
amounting to murder’, on the facts of a
case, it will be convenient for it to
approach the problem in three stages. The
question to be considered at the first
stage would be, whether the accused has
done an act by doing which he has caused
the death of another. Proof of such causal
connection between the act of the accused
and the death, leads to the second stage
for considering whether that act of the
accused amounts to “culpable homicide” as
defined in Section 299. If the answer to
this question is prima facie found in the
affirmative, the stage for considering
the operation of Section 300 of the Penal
Code, is reached. This is the stage at
which the court should determine whether
the facts proved by the prosecution bring
the case within the ambit of any of the
four clauses of the definition of
“murder” contained in Section 300. If the
answer to this question is in the negative
the offence would be “culpable homicide
not amounting to murder”, punishable
under the first or the second part of
Section 304, depending, respectively, on
whether the second or the third clause of
Section 299 is applicable. If this
question is found in the positive, but
the case comes within any of the
exceptions enumerated in Section 300, the
offence would still be “culpable homicide
not amounting to murder”, punishable
under the first part of Section 304, of
the Penal Code.
(emphasis supplied)
29. As far as this case is concerned, there can be no
doubt that the act which led to the death has been
committed by the appellant. We can safely proceed on
the basis also that it amounts to culpable homicide.
Going by the circumstances present in this case and in
particular injuries suffered, it is quite clear that
the act would fall within the scope of Section 300 of
the IPC. If the act results in culpable homicide which
does not amount to murder, then and then alone the
question arises of applying Section 304 Part-I or Part-
II as the case may be. Appellant cannot extricate
himself from the consequence of his act attracting the
ingredients of murder by pointing out Section 304 Part
I which also contains the expression, “the act with the
intention to cause death’. The implications are vastly
different. Section 304 of the IPC would apply only in
a case where culpable homicide is not murder. If the
act amounting to culpable homicide satisfies any of the
four criteria to bring it under the offence of murder,
being mutually exclusive, there can be no scope for
applying Section 304 of the IPC. On the other hand,
if the act is culpable homicide as falling in any of
the five exceptional circumstances mentioned in Section
300 and then it would amount to culpable homicide not
amounting to murder. In cases where the accused is
able to establish he is entitled to the benefit of any
of the exceptions under Section 300 then his case may
be considered under Part-I or Part-II of Section 304
of the IPC depending on whether the act which caused
the culpable homicide was done with the intention of
causing death or with knowledge that it is likely to
cause death. That apart cases of culpable homicide
which do not attract any of the four situations under
Section 300 would still be culpable 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 act which caused the death and
which is culpable homicide is done with the intention
of causing death, then it would be murder. This is
however subject to the act not being committed in
circumstances attracting any of the 5 exceptions.
Appellant’s contention that it would be culpable
homicide not amounting to murder and reliance placed
on the words ‘done with the intention of causing death’
in Section 304 Part-I is wholly meritless.
30. The act of the appellant in the facts of this case
clearly show that he has throttled his wife. None of
the exceptions in Section 300 are attracted. The act
amounts to murder within the meaning of Section 300 of
the IPC. The upshot of the above discussion is, we see
no reason to interfere with the impugned judgment. The
appeal stands dismissed.
New Delhi,
January 21, 2020.
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