Md. Mumtaz Khan, J.
This appeal has been preferred by the appellant assailing the judgment and order of conviction dated May 7,2002 and sentence dated May 8, 2002
passed by the learned Additional District & Sessions Judge, 4th Court, Howrah in Sessions Trial case No. IX (I)/2002 convicting him for the offence
punishable under Section 302 of the Indian Penal Code (hereinafter referred to as IPC) and sentenced him to suffer imprisonment for life and to pay a
fine of Rs. 10,000/- in default to suffer rigorous imprisonment for 1 year.
The prosecution case, in brief, is that on March 10, 2001 at about 11.00 in the morning Joydeb Malik, the appellant, suspecting his wife Bimala Malik,
the victim, to be involved in extramarital affairs gave a blow on her head of with a battam (wooden bar) when she was bathing on the bank of the
pond in front of her house as a result she sustained bleeding injury on her head and fell down on the court-yard and died instantly.
The incident was then reported to the Panchla P.S. by P.W.1, a Panchayat member, in writing and accordingly on receipt of the said complaint
(Ext.1), P.W.13 started Panchla P.S. case no.11/2000 under section 302 IPC against the appellant. P.W.14 took up the investigation of this case and
during investigation he visited the place of occurrence, prepared rough sketch map with index (Ext.6), made inquest over the dead body of the
victim(Ext.2/3) in presence of witnesses, sent the dead body for postmortem examination, seized the battam, blood stained earth, controlled earth,
wearing apparels of the deceased, examined the available witnesses, arrested the appellant and forwarded him to court, collected postmortem
examination report (Ext.4)and after completion of investigation submitted charge sheet against the appellant under section 302 IPC.
On March 1, 2002 charge under section 302 IPC was framed against the appellant and on his pleading not guilty to the charge trial commenced.
Prosecution in order to prove the case examined 14 witnesses and also produced and proved the FIR, inquest report, postmortem report, rough sketch
map with index, seizure list, wearing apparels of the victim, the weapon of offence etc. and thereafter on conclusion of trial and after examining the
appellant under section 313 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) learned trial judge passed the impugned judgment.
It was submitted by Mr. Narayan Prasad Agarwal, learned Advocate appointed by this court from the State defence panel to defend the appellant,
that the learned Court below did not consider the facts and circumstances of this case and the evidence on record in its proper perspectives and made
wrong approach to the whole case and passed the impugned judgment. According to Mr. Agarwal the offence under section 302 IPC was not proved
against the appellant as there was no premeditation in the commission of crime and the act was done in the spur of the moment and at best the
appellant could have been convicted for the offence of culpable homicidal not amounting to murder punishable under Section 304, Part-II IPC and not
under section 302 IPC.
Mr. Abhik Ghatak, learned Advocate appearing for the State submitted that the offence under section 302 IPC was proved against the appellant
beyond doubt by the lone eye witness to the occurrence which was corroborated by the son of the appellant who came to the place of occurrence
immediate after the occurrence and saw the dead body of his mother lying on the ground having head injury and bleeding and the appellant standing
there with blood stained battam and the medical report which the appellant also admitted during his examination under 313 Cr.P.C. According to Mr.
Ghatak there was no impropriety in the impugned judgment passed by the learned trial judge which requires any interference.
Mr. Ghatak relied upon the decisions in the matter of State of U.P. vs. Lakhmi reported in (1998)4 Supreme Court Cases 336 and in the matter of
Moorthy vs. State of Tamilnadu reported in (2009) 16 Supreme Court Cases 443 in support of his submissions. We have considered the submissions
advanced by learned advocates for both sides and have also given our thoughtful consideration to the evidence of the prosecution witnesses and the
materials on record for examining the propriety of the impugned judgment, order of conviction and sentence passed by the learned court below.
 Learned court below took into consideration mainly the evidences of P.W.2, a witness to the occurrence, P.W.9, the son of the victim, who came to
the P.O. immediate after the occurrence, P.W.12, the doctor who conducted post-mortem examination over the dead body of the victim, the
statements of the appellant recorded under section 313 Cr.P.C. besides the evidence of other post occurrence witnesses including the panchayat
member (P.W.1) who lodged the complaint and the investigating officer to arrive at the conclusion that the prosecution has been able to bring home
the charge under section 302 IPC against the appellant and accordingly convicted and sentenced him to suffer imprisonment for life and to pay a fine
of Rs. 10,000/- in default to suffer rigorous imprisonment for 1 year for the offence punishable under Section 302 IPC.
It was not in dispute that the victim Bimala Malik, wife of the appellant, died on March 10, 2001 and her death was unnatural. It was evident from the
evidence of the doctor (P.W.12) and the PM report (Ext.4) that during post mortem examination over the dead body of the victim, P.W.12 found
fracture on right parietal frontal and temporal bone with haematoma and clotting of blood in the brain matter and in his opinion death was caused due
to severe haemorrhage and head injury which was ante mortem in nature and that such type of injury can cause instant death of a person. The above
evidence of P.W.12, the doctor, went on challenged and as such there was no reason to disbelieve him.
With regard to the injury sustained by the victim on her head resulting in her death it was the specific allegation of the prosecution that the appellant
being enraged with the alleged extra marital relation of his wife, the victim, struck her by a battam on her head causing bleeding injuries therefrom as a
result she died on the spot. P.W.2, a co-villager, has specifically stated on oath that on the relevant date of incident she had been to pond in order to
wash the utensils where she found the victim bathing in the pond. She then saw the appellant gave a blow on the victim’s head with a battam as a
result victim sustained bleeding injuries. She then raised alarm for which appellant chased her and as such she fled away therefrom. She was cross-
examined by the defence and during cross-examination also she has specifically stated that she was washing the utensils and then heard cry and then
saw that the victim fell down on the bank of the pond. She was challenged by the defence that she did not see the incident to which she did not agree.
Interestingly, she was not challenged by the defence that no such incident took place and/or that the appellant did not give any blow on the
victim’s head with a battam causing bleeding injuries on her head resulting in her death. Thus, we find that the above eye witness has fully
corroborated the prosecution case. P.W.9, the son of the appellant and the victim, has also categorically stated that on the relevant date and time there
was a shitala puja in their locality and his younger brother Palash rushed there and told him that his father has murdered their mother.
He the went to his house and on reaching there he found the dead body of his mother lying on the bank of the pond having head injury and there was
blood in an around the dead body and his father was standing with a battam (Mat. Ext. 1) which was stained with blood. He was cross-examined by
the defence and during cross-examination he admitted that he did not see the incident of assault and his younger brother, Palash informed him about
the incident. He was challenged by the defence that he has not seen anything and has deposed falsely to which he did not agree. P.W.1 who lodged
the complaint (Ext.1), has deposed that on the relevant date some villagers came to him and reported that Bimala, the victim, was murdered by her
husband. He then rushed to the house of the appellant and found the dead body of the victim lying in the courtyard of the house having bleeding injury
on the head and there he heard that the victim was assaulted on the bank of the pond with a battam. He then lodged the complaint (Ext.1) at the police
station. Admittedly, he did not see the incident of assault but clearly stated during cross-examination that when he reached at the house of the
appellant he found the dead body of the victim having bleeding injury on the head. The above statements of P.W.1 also found corroboration from the
other post occurrence witnesses, P.W.4, P.W.5 and P.W.10,co-villagers. P.W.11, panachayat prodhan, has deposed that P.W.9 informed him that
Bimala, the victim, was murdered by appellant and accordingly he rushed to the house of the appellant and found the dead body of the victim lying in
the courtyard having profused bleeding and the appellant was confined in the room and his hands, legs were tied with rope and there local people
showed him the battam which was used as a weapon. Thereafter police came and seized the battam and the wearing apparels by seizure list on which
he singed. He identified the appellant before court. During cross-examination he admitted that he was not examined by the I.O. and for the first time
he has stated these things before the court.
He denied the defence suggestion that he has deposed falsely. So, from the above we find that the statement of P.W.2, the eye-witness found
corroboration from medical evidence. The evidence of eye-witness as also the post occurrence witnesses on oath appears to be convincing,
trustworthy and believable and no significant contradiction or infirmity has been brought to our notice. Also there appears to be no reason why the
eye-witness falsely implicate the appellant and there is, in fact, nothing on record to suggest that the said eye-witness had any reason to falsely
implicate the appellant. Furthermore, the evidence of the sole eye witness and the post occurrence witnesses including the son of the appellant found
corroboration from the statement of the accused made during his examination under Section 313 of the Code of Criminal Procedure. There is no
denying fact that the statements of an accused made during his examination under Section 313 Cr.P.C. cannot be used as evidence in holding the
accused guilty of the offence but the answers given by the accused to the questions put to him during examination under Section 313 Cr.P.C. can well
be taken into consideration in deciding whether the prosecution evidence can be relied upon and whether the accused is liable to be convicted of the
offence labeled against him. The answers, the accused gave to the following questions put to him in the examination under Section 313 of the code is
said to contain his admission of a very vital circumstance against him.The questions were:
“Q. 6. P.W.2, Kalyani stated that when she was washing utensils in the pond then you hit your wife on the head with a wooden bolt and because
of that she sustained bleeding injuries. What do you want to say about this? â€
The answer of the accused-appellant to the said question was:
“Yes Kalyani stated the truth.â€
“Q.7. It is known from the evidence of P.W.1, P.W.4, P.W.5 and P.W.10 that there was a shitala puja being performed in the month of Chaitra
(the last month of a Bengali year, roughly corresponding the mid of March to mid of April of the English Calendar). What do you want to say about
this ?â€
The answer of the accused-appellant to the said question was “Yes.â€
“Q.8. Those P.W.s furhter stated that there had been a commotion in the village during afternoon and the villagers kept on saying that you
assaulted your wife Bimala with a wooden bolt on her head as a result of which she died. What do you want to say about this ?â€
The answer of the accused-appellant to the said question was “Yesâ€.
“Q.9. The aforesaid P.W.s further stated that they reached their house and found that Bimala was lying on the courtyard with bleeding injuries on
her head and she had expired. What do you want to say about
this ?†Â
The answer of the accused-appellant to the said question was:
“This is a true statement.â€
“Q.11. Do you want to state anything more ?â€
 The answer of the accused-appellant to the said question was:
“My wife had an illicit relationship with a Muslim boy as a result of that I punished her.â€
The above answers given by the accused/appellant thus corroborates the evidence of eyewitness and the post occurrence witnesses and the said
ocular evidence also found corroboration from the medical evidence. No such plea with regard to the general exceptions as provided in chapter IV of
the Indian Penal Code had been taken on behalf of the defence. So, from the above there appears no doubt in arriving at the conclusion that the
deceased had died at the hands of her husband, namely, the accused/appellant.
With regard to the place of occurrence, we find that some confusion has been created from the statement of the witnesses examined by the
prosecution. According to some of the witnesses victim was lying in her courtyard while according to some of the witnesses victim was lying on the
bank of the pond. P.W.2, the eyewitness has clearly stated that the victim was lying on the courtyard near the pond. According to P.W.3, P.W.4,
P.W.5, P.W.6, P.W.10 and P.W.11 they saw the dead body of the victim lying in the courtyard of her house while according to P.W.9, he saw the
dead body of his mother on the bank of the tank. From the rough sketch map (Ext. 6) prepared by the I.O., P.W.14, who also held inquest over the
dead body of the victim, it is evident that the bank of the pond and the courtyard of the appellant is adjacent to each other. The place of occurrence as
is evident from the formal FIR (Ext. 5) is in front of the house of the appellant. So, from the above there appears no room for doubt with regard to the
place of occurrence.
Therefore, our interference with the impugned judgment is not required on the above ground. The next issue which requires our consideration is
whether the case falls under the provisions of Section 302, IPC or under Section 304 Part I or Part II IPC? Once the elements mentioned in
Exceptions to Section 300, IPC are not established, the offence is murder. In the event a case comes within the elements prescribed in Exceptions to
Section 300, IPC, it is culpable homicide not amounting to murder. According to Exception 1 to Section 300 IPC, 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.
 In State of UP Vs. Lakhmi reported in (1998)4 Supreme Court Cases 336, the Hon’ble Supreme Court altered the conviction of the appellant
under Section 302 IPC to one under Section 304 Part I IPC considering the circumstances which indicated that the appellant acted under grave and
sudden provocation on seeing something lascivious between his wife and another person just when he returned to his house from the field. In the case
in our hand we find from the investigation report (Ext.2) prepared by the investigating officer in presence of P.W.1, P.W.3, P.W.9 and P.W.11 that
the appellant suspected his wife to be involved in extramarital relation with another person of the village for which even the villagers also used to tease
him and due to such disgraceful remarks of the villagers and their teasing appellant got agitated and then taking up a bolt of the door of the house he
suddenly struck his wife on her head causing bleeding injury therefrom resulting in her death. This also found corroboration from the statement of the
accused made during his examination under Section 313 Cr.P.C. Furthermore, even after assaulting his wife, the victim, appellant did not flee away
from the place.
Thus, it appears that though the appellant struck the victim with a battam on her head but we do not find any evidence on record that he had
preplanned or had any intention to kill his wife, the victim but seems that it was in a fit of anger on sudden provocation which probably deprived him of
his power of self control. In such circumstances, taking into consideration the evidences and other materials on record, there was no scope for the
learned Court below to convict and sentence the appellant under Section 302 of IPC. The learned Court below failed to consider at the time of passing
the judgment that no evidence was brought on record to prove that there had been an intention to cause death and/or that it was a preplanned cold
blooded murder on the basis of long time conspiracy. Attention of this Court has not been drawn by the learned counsel appearing for the State
towards any material on record to take a different view. Therefore, the impugned judgment and the order of conviction and sentence are liable to be
interfered with.
Accordingly, we allow this appeal to the extent that the conviction of the appellant under Section 302 is altered to one under Section 304, Part-I of the
Indian Penal Code. For the altered conviction, the appellant is sentenced to suffer rigorous imprisonment for a period of ten years. The fine imposed
upon the appellant and the default sentence awarded to him remain unaltered. The period of detention of the appellant undergone during the
investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision
of Section 428 Cr. P. C. This appeal is thus disposed of with partial alteration of the order of conviction and sentence as indicated herein-above. Copy
of this judgement along with the lower court records be sent down to the trial court for information and taking necessary action. Urgent photostat
certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in
this regard.
