Paul vs State of Kerala

1.3. There is a case for the appellant that there were injuries on the appellant. When there is throttling, unless the victim is asleep or unconscious, there would be resistance. Injuries on the aggressor are not uncommon. In the present case there are also injuries on other parts of body apart from the neck. They indicate acts of violence by the aggressor. The Court is not even called upon to pronounce on whether 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. [PARA 21][1109-F-G]

2.1. 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. [PARA 18][1108-F-G]

2.2 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. [PARA 16][1108-C-D]

2.3 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. [PARA 17][1108-E]

2.4 In the present case the prosecution case about there being a quarrel is about the mother of the appellant creating a scene 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. In such case exception I to Section 300 IPC would not 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 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. [PARA 23][1110-C-E]

2.5 The case of exception 4 is no different in its inapplicability to the facts. There is no material 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. [PARA 24][1110-F-G]

2.6 The appellant cannot be handed down conviction under Section 304, Part-I. 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. These 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 four exceptions enumerated in Section

300 of the IPC, there was no 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. [PARA 28][1112-H; 1113-A-D]

2.7 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. [Para 29][1114-C-E]

2.8 On the other hand, if the act is culpable homicide as falling in any of the four 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. [PARAS 29 and 30][1114-E-H]

State of Andhra Pradesh v. Rayavarapu Punnayya and Another (1976) 4 SCC 382 : [1977] 1 SCR 601 – relied on

Partap v. State of Uttar Pradesh (1976) 2 SCC 798 : [1976] 1 SCR 757; Periasami and Another v. State of T.N. (1996) 6 SCC 457 : [1996] 6 Suppl. SCR 757 – referred to.

2.9 As far as the present case is concerned, there can be no doubt that the act which led to the death has been committed by the appellant. The Court can safely proceed on the basis also that it amounts to culpable homicide. Going by the circumstances in the present case and in particular injuries suffered, it is quite clear that the act would fall within the scope of Section 300 of the IPC. 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. None of the exceptions in Section 300 are attracted. The act amounts to murder within the meaning of Section 300 of the IPC. [Paras 29 and 30][1114-B-C; H; 1115-A]

2.10 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. 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. In the present 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. [PARAS 26 and 27][1111-C-E; 1112-FG] Basdev v. State of Pepsu AIR 1956 SC 488 : [1956] SCR 363 – relied on.