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REPORTABLE    

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.38 of 2020  

PAUL            ... APPELLANT  

VERSUS  

STATE OF KERALA            ... RESPONDENT  

J U D G M E N T  

K.M. JOSEPH, J.  

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

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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

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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

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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.  

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PROSECUTION CASE  

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-in-

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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 ante-

mortem 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  

around.  

4. Abrasion 1.5x0.2 cm almost vertical  

on front of right lower chest, 24 cm

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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

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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

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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

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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

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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.  

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ANALYSIS  

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

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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.”  

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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

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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  

acquittal.”  

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

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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

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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  

direction.  

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

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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  

nature.”  

    (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

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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

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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:   

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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 well-

disposed 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

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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  

IPC.  

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

23    

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  

probability.  

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

24    

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

25    

case which is sought to be set up before us revolves  

around the applicability of exception 4 to Section 3000  

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

26    

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 Part-

27    

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,

28    

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

29    

remand trying to attribute death by hanging by his wife  

falsely.  

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  

will.”  

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

30    

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

31    

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

32    

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  

confusion.”  

        (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

33    

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:

34    

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)

35    

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

36    

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.  

37    

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.  

.......................J.  

  (SANJAY KISHAN KAUL)  

   ......................J.  

                       (K.M. JOSEPH)  

New Delhi,  

January 21, 2020.