Delhi High Court
Vinod Kumar @ Raju vs State Nct Of Delhi on 2 July, 2025
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 20.05.2025
Judgment pronounced on: 02.07.2025
+ CRL.A. 164/2024
VINOD KUMAR @ RAJU .....Appellant
Through: Mr. Kanhaiya Singhal,
Mr. Binwant Singh, Mr. Pulkit Jolly,
Mr. Rahul Bhaskar, Ms. Ankita
Makan, Mr. Prasanna, Mr. Ajay,
Advocates.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr. Aashneet Singh, APP
for the State.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGEMENT
HARISH VAIDYANATHAN SHANKAR, J.
1. The present appeal is preferred under Section 374(2) of the
Code of Criminal Procedure, 19731 filed against the Judgment
dated 03.05.20232 convicting the Appellant for the offence punishable
under Section 302 of the Indian Penal Code, 18603 and the Order on
Sentence dated 24.08.20234 sentencing the Appellant to life
imprisonment. In addition, he has been fined an amount of Rs.15,000/-
under Section 302 of the IPC, and in the event of default in payment
1
Cr.P.C.
2
Impugned judgement
3
IPC
4
Impugned sentencing order
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BHATIA
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of the fine, he has been directed to undergo simple imprisonment for a
period of one month.
2. At this juncture, it will be apposite to advert to the salient facts
presented before the Ld. Trial Court, which led to the Appellant‟s
conviction and the subsequent filing of the present Appeal.
3. On 23.04.2018, Constable Ajay Rana (PW-10), who was on
duty at Sanjay Gandhi Memorial Hospital, received information, at
around 10 a.m., from the on-duty doctor that a woman had been
brought in already deceased. He telephonically passed this
information to the Police Post at the hospital, and the incident was
recorded in the Daily Diary5 No. 11PP (Ex.PW-8/A) by Constable
Ishwar (PW-8). The information was then passed on to ASI Jai
Kishan, and a copy of the DD was handed over to SI Praveen Atri
(PW-17) for further investigation.
4. Upon receiving the DD, SI Praveen Atri, accompanied by
Constable Ghanshyam (PW-6) and Constable Somdev (PW-2), went
to the emergency ward of the hospital and collected the Medico-Legal
Case6 Report No. 1300/18 (Ex.PW-12/A) of the deceased woman,
Savita, who had been declared “brought dead”. The deceased’s body
was moved to the hospital mortuary. At the hospital, SI Atri met
Ritika (PW-5), the daughter of the deceased, who gave a detailed
statement (Ex.PW-5/A). She informed the police that her father,
Vinod (the Appellant/ Accused), had a history of domestic abuse
towards her mother. The couple had not been on speaking terms for
the past four to five months, and the Accused had also stopped
5
DD
6
MLC
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BHATIA
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providing any household expenses. As per her statement, the Accused
was residing separately on the first floor with his own mother.
5. On the morning of the incident, Ritika and her brother Piyush
(PW-7) were awakened by a commotion. They rushed out to find their
father violently hitting their mother with a hammer (Ex.P1). Ritika
stated that her father had one hand around her mother’s neck while
repeatedly hitting her with the hammer using the other. She managed
to snatch the hammer away from him, after which he fled the scene.
With the help of a neighbor, namely, Karan, they rushed their mother
to the hospital. Based on Ritika‟s statement, SI Atri prepared a rukka
(Ex.PW-17/A) and handed it to Constable Ghanshyam (PW-6) for
registration of the First Information Report7.
6. The FIR was registered by Head Constable Rakesh, who was
on duty as the DD writer at PS Mangol Puri. He recorded the FIR
(Ex.PW-16/C) and made the necessary endorsement on the rukka. He
also issued a certificate under Section 65B of the Indian Evidence
Act, 18728 (Ex.PW-16/D). Constable Ghanshyam returned to the spot
and handed over the FIR and rukka to Inspector Vijay Kataria (PW-
19), who took charge of the investigation. Inspector Kataria
summoned the crime team.
7. SI Jagdeep (PW-9), who was in-charge of the crime team,
reached the spot with photographer Constable Umed (PW-11). SI
Jagdeep conducted an inspection of the crime scene and prepared a
report (Ex.PW-9/A). Constable Umed took twenty photographs
(Ex.PW-11/A) of the scene and prepared a CD (Ex.PW-11/B), which
7
FIR
8
Evidence Act
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was supported by a certificate under Section 65B of the Evidence Act
(Ex.PW-11/C).
8. Inspector Vijay Kataria collected various pieces of physical
evidence from the crime scene, including bloodstains from a gas
stove, a piece of cloth, the hammer used in the assault, hair strands of
the victim found on the hammer, blood samples, and earth control.
These items were sealed using the seal of PK and were seized via
proper seizure memos (Ex.PW-6/B). The hammer was sketched
(Ex.PW-17/B), placed in a plastic box, sealed, and seized. Inspector
Vijay Kataria was assisted in these actions by SI Praveen Atri and
Constable Ghanshyam, who signed the seizure memos. Ritika also
helped the inspector in preparing the site plan of the incident location
(Ex.PW-19/A).
9. On 24.04.2018, Inspector Vijay Kataria visited the hospital with
a private photographer, Mukesh (PW-1). He recorded the statement
(Ex.PW-3/A) regarding the identification of the deadbody of the
deceased‟s brother, Rajesh Raju (PW-3), and father, Manohar Lal
(PW-4). Subsequently, he applied (Ex.PW-19/B) to the concerned
Chief Medical Officer to conduct the postmortem. Brief facts of the
case (Ex.PW-19/C) and a death report (Ex.PW-19/D) were prepared
for official use.
10. The postmortem was conducted by Dr. Manoj Dhinagra (PW-
14), who opined in his report (Ex.PW-14/A) that the cause of death
was craniocerebral damage due to blunt force trauma. Mukesh
documented the postmortem procedure in a CD, supported by a
certificate under Section 65B of the Evidence Act (Ex.PW-1/A). After
the autopsy, the doctor handed over two sealed exhibits with sample
seals to Constable Ishwar (PW-8), who further delivered them to
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Inspector Vijay Kataria. This exhibit (Ex.PW-8/B) was deposited with
the Malkhana9.
11. On 18.05.2018, Dr. Manoj Dhinagra received a sealed parcel
containing the hammer. Upon examination, he confirmed by his report
(Ex.PW-14/B) that the injuries mentioned in the postmortem could
have been caused by the recovered hammer.
12. On 25.04.2018, based on secret information, the Investigating
Officer10, Inspector Vijay Kataria, located and apprehended, vide
memo (Ex.PW-17/C), the Accused, who was found consuming
alcohol near a wine shop at ITI ground, Delhi. He was arrested and his
personal search was conducted vide memo (Ex.PW-17/D). A
disclosure statement (Ex.PW-17/E) was recorded, and the IO noticed
blood stains on the Accused‟s shirt. The shirt was sealed and seized as
evidence vide seizure memo (Ex.PW-17/F). The Accused then pointed
out the place of incident, which was documented through a pointing-
out memo (Ex.PW-17/G).
13. On 19.05.2018, Constable Dharmender (PW-15) prepared a
scaled site plan (Ex.PW-15/A) of the incident spot.
14. On 24.05.2018, all collected exhibits were sent to the Forensic
Science Laboratory11 through Constable Ghanshyam. Ms. Anita
Chari, Scientific Officer (PW-13), submitted her findings in a report
(Ex.PW-13/A), which was received by the Police Station with a
forwarding letter (Ex.PW-19/E) from the Director of FSL. In the FSL
report, the Scientific Officer concluded that the DNA profiling SDR12
performed on the received Exhibits 1, 2, 4, 9 (all containing blood
9
MHC(M)
10
IO
11
FSL
12
Short-Chain Dehydrogenases/Reductases
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gauze of the deceased), Exhibit 11 (hammer) and Exhibit 13 (shirt of
the Accused) was similar to the blood gauze of the deceased.
15. Upon completion of the investigation, a chargesheet was filed
against the Appellant/ Accused under Section 302 of the IPC for the
alleged murder of his wife Savita.
16. The Ld. Trial Court then framed charges under Section 302 of
the IPC against the Appellant/Accused. The Accused pleaded not
guilty to the charges and thus the case proceeded for the trial.
17. Upon evaluation of the evidence on record and after the
conclusion of the trial, the Ld. Trial Court found the Accused guilty of
the offence under Section 302 of the IPC vide judgment dated
03.05.2023. Accordingly, the Accused was convicted for the murder
of his wife, Savita. Following the conviction, the sentencing order
dated 24.08.2023 was passed, whereby the Appellant was sentenced to
life imprisonment. Additionally, he was fined an amount of
Rs.15,000/- under Section 302 of the IPC, and in the event of default
in payment of the fine, he was directed to undergo simple
imprisonment for a period of one month. The Court also granted him
the benefit under Section 428 of the Cr.P.C. which allows for the set-
off of the period already spent in custody against the term of
imprisonment.
18. The Ld. Trial Court, in its evaluation, held that the Prosecution
successfully established the guilt of the Accused beyond reasonable
doubt. The post-mortem report, which revealed that the injuries
leading to the victim‟s death were caused by a hammer blow to the
head, remained unchallenged during the trial. The defence was given
an opportunity to cross-examine Dr. Manoj Dhinagra (PW-14) but
failed to do so, which left the medical opinion intact and credible. This
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BHATIA
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medical evidence further supported the testimonies of eyewitnesses,
who consistently stated that the deceased was attacked with a hammer.
19. The Ld. Trial Court further opined that the Prosecution also
established a strong motive for the crime. Testimonies from the
deceased’s family members, namely, her brother, father, and two
children, revealed that the relationship between the Accused and the
deceased had deteriorated. They often quarrelled, had started living
separately shortly before the incident, and the Accused had stopped
providing financial support. A complaint had even been filed by the
deceased against the Accused. These facts indicated ongoing discord
and suggested that the Accused‟s anger and frustration might have
triggered the fatal act.
20. The Ld. Trial Court analyzed the defence evidence and held that
the defence presented two witnesses to establish the Accused’s
innocence. DW-2, a neighbour, claimed to have seen the Accused in
the balcony between 9:00 and 10:00 A.M. on the day of the incident,
but his statement lacked precision. DW-1, the Accused‟s mother,
stated he was with her at the time, but her testimony conflicted with
DW2‟s and was undermined by her failure to report any false
implication to authorities. The Court viewed her statement as biased
and uncorroborated.
21. Weighing all evidence, the Court found the testimonies of the
Prosecution credible and supported by medical and police records,
leading to the conviction of the Accused under Section 302 of the IPC.
22. Being aggrieved, the Appellant filed this Appeal challenging
the judgment dated 03.05.2023 and the sentencing order dated
24.08.2023.
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BHATIA
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APPELLANT’S SUBMISSIONS:
23. The Ld. Counsel for the Appellant/ Accused would submit that
the Prosecution failed to establish intent or premeditation, which is
crucial to a conviction under Section 302 of the IPC.
24. The Ld. Counsel for the Appellant/ Accused would further
submit that domestic rifts are common in marriages and that the
presence of long-standing minor disputes cannot be equated with a
motive to kill. The Ld. Counsel for the Appellant/ Accused would rely
upon the statements of PW-3 (brother of the deceased), as he admitted
the couple initially had a good marriage.
25. The Ld. Counsel for the Appellant/ Accused would also submit
that the conflict over dowry signatures, cited by the Prosecution as
part of the motive, was too trivial and outdated, occurring nearly 18
years earlier, to have driven the Accused to murder.
26. The Ld. Counsel for the Appellant/ Accused would point out
several inconsistencies in the testimony of Ritika (PW-5) and submit
that her story was fabricated and unreliable; for instance, she
contradicted herself regarding where the Accused lived in the house –
first claiming it was the first floor and later correcting to the second.
Further, Ld. Counsel for the Appellant/ Accused would point out that
her statements about the time frame during which her father stopped
paying household expenses were also inconsistent. Similarly,
conflicting versions were given about who exactly took the hammer
from the Accused, whether it was Ritika or her brother. The Ld.
Counsel for the Appellant/ Accused would also point out another
contradiction that emerged from her initial claim that all three siblings
were home during the incident, which later changed to saying her
sister was away.
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27. The Ld. Counsel for the Appellant/ Accused would also point
out the lapses by the police during the investigation. Constable
Ghanshyam‟s statement under Section 161 of the Cr.P.C. differed
from his in-court testimony regarding when and how Ritika‟s
statement was recorded and how the initial evidence was gathered.
28. The Ld. Counsel for the Appellant/ Accused would submit that
no independent witnesses were examined, and there was no effort to
verify the origin of the hammer, which the defence claimed was a
common household tool and not a weapon premeditated for murder,
and this lack of inquiry into the weapon’s procurement undermined the
allegation of deliberate intent.
29. The Ld. Counsel for the Appellant/ Accused would argue that
the incident appeared to result from a sudden quarrel rather than a
calculated act. The use of a household hammer, absence of planning,
and lack of any clear provocation or advantage taken by the Accused
suggested the act could fall under Exception 4 of Section 300 IPC.
The Ld. Counsel for the Appellant/ Accused would further argue that
this exception applies when a homicide occurs in the heat of the
moment, without premeditation, and without cruelty or undue
advantage.
30. To support his arguments, the Ld. Counsel for the Appellant
cited numerous case laws including the judgments of the Hon‟ble
Supreme Court in Arjun v. State of Chhattisgarh13, Arumugam v.
State14 and Rambir v. State (NCT of Delhi)15, emphasizing that courts
have repeatedly held that such sudden altercations do not warrant a
murder conviction under Section 302 of the IPC.
13
2017 SCC Online SC 128
14
(2008) 15 SCC 590
15
(2019) 6 SCC 122
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31. The Ld. Counsel for the Appellant/ Accused would emphasize
that the hammer blow, which caused only one or two injuries
according to the post-mortem report, was not excessively cruel, nor
were there signs of repeated or brutal assaults. Furthermore, there was
no evidence of significant benefit gained by the Accused through the
act and, even Ritika (PW-5) admitted she did not know the reason for
the quarrel.
32. The Ld. Counsel for the Appellant/ Accused would highlight
the socio economic status of the Appellant, a poor e-rickshaw driver
with alcohol dependency, suggesting he lacked the means or capacity
for calculated violence.
33. Based on these submissions, the Ld. Counsel for the Appellant/
Accused would urge before this court either to acquit the Appellant
entirely or, alternatively, to convert the conviction from Section 302
of the IPC to Section 304-II of the IPC, which pertains to culpable
homicide not amounting to murder. It was further requested that the
sentence be reduced to the period already undergone by the Appellant,
emphasizing his impoverished background and the lack of cruel intent.
RESPONDENT-STATE’S SUBMISSIONS:
34. The Ld. Additional Public Prosecutor16 for the State would
seek to defend the impugned judgment and sentencing order passed by
the Ld. Trial Court, asserting that the findings and conclusions
reached were both justified.
35. The Ld. APP, relying upon the oral testimonies of the
deceased‟s children, namely, Ritika (PW-5) and Piyush @ Siddhartha
(PW-7) would contend that, since these witnesses were present at the
16
APP
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time of the incident and directly observed the murder, their accounts
convincingly establish that the Accused committed the crime,
particularly given the long-standing quarrels between the Accused and
the deceased, which had escalated to such a degree that the deceased
had chosen to live separately, prompting the Accused, on the day of
the incident, to carry out his premeditated plan to kill his wife using a
hammer.
36. The Ld. APP would further submit that, because the injuries
inflicted on the deceased‟s head by the Accused were not only
consistent but also so grievous that brain matter emerged from the
skull, and this demonstrates the severe and fatal nature of the attack,
which, in the ordinary course of nature, was sufficient to cause death.
37. Moreover, the Ld. APP would argue that, since the medical
evidence not only confirms that the fatal blow was inflicted on the
base of the deceased‟s head using the hammer recovered from the
scene but also establishes that the deceased‟s blood was found on the
Accused‟s shirt, at the crime scene, and on the hammer itself, the
combination of these forensic findings, together with the complete
absence of any plausible or credible explanation from the Accused,
leads to the inescapable conclusion that he was indeed the perpetrator
of his wife‟s murder.
ANALYSIS AND FINDING:
38. This Court has given its careful and deliberate consideration to
the submissions advanced by both parties and has meticulously
scrutinized the documents placed on the record.
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39. In support of their respective cases, the Prosecution examined a
total of 19 witnesses, while the defence presented 2 witnesses before
the Ld. Trial Court.
40. A cumulative reading of the testimonies of Rajesh (PW-3),
Manohar Lal (PW-4), Ritika (PW-5) and Piyush @ Siddhartha (PW-7)
reveals that although the matrimonial relationship between the
Accused and the deceased was initially harmonious, over time it
became increasingly strained, marked by persistent quarrels and
irreconcilable differences. Owing to these escalating disputes, in the
months leading up to the incident, the Accused, along with his mother
(DW-1), began residing separately on the upper floor of the family
home, while the deceased continued to live with the children on the
ground floor.
41. With respect to the events on the day of the incident, i.e.,
23.04.2018 at around 9:30 a.m., the evidence shows that after hearing
the noise of falling utensils and the distressed cries of the deceased,
the children, namely, Ritika (PW-5) and Piyush @ Siddhartha (PW-7),
who were sleeping at the time, rushed out of their room and saw the
Accused striking the deceased on the head with a hammer. It was only
after the children intervened and managed to snatch the hammer from
the Accused‟s hands that the Accused fled from the scene.
42. The statements of these two eye witnesses, Ritika (PW-5) and
Piyush @ Siddhartha (PW-7), are consistent and in complete harmony
with each other regarding the circumstances and sequence of events at
the crime scene. Although the defence, during cross-examination,
sought to highlight minor discrepancies and suggested that a third
person was responsible for the fatal assault, portraying the Accused
merely as a person who had arrived to help, this Court finds no
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credible basis for such a theory. There is no reason to believe that the
children would falsely implicate their own father in the brutal killing
of their mother; at most, one might expect some degree of
exaggeration out of emotional distress, but no such exaggeration is
evident here when viewed in light of the corroborative material
evidence.
43. Notably, two days after the incident, on 25.04.2018, the
Accused was apprehended near a wine shop at ITI Ground, Delhi.
Upon arrest, bloodstains were observed on his shirt, and forensic
analysis subsequently confirmed that the blood was that of the
deceased.
44. In his statement under Section 313 of the Cr.P.C., the Accused
not only denied all allegations but also failed to offer any plausible
explanation regarding the presence of the bloodstains, merely
asserting: “I am innocent. I have not hit my wife. I reached there only
after hearing my wife’s voice as I was present on the second floor with
my mother.” Furthermore, the Accused or his defence provided no
explanation as to why, if he was indeed attempting to help the
deceased, he fled the scene and remained untraceable for two days
before being apprehended.
45. The postmortem conducted by Dr. Manoj Dhinagra (PW-14), as
detailed in his report (Ex. PW-14/A), concluded that the cause of
death was craniocerebral damage resulting from blunt force trauma.
Subsequently, on 18.05.2025, in response to a query from the IO, the
doctor opined, via Ex. PW-14/B, that (a) the injuries are possible with
the recovered weapon of the offence i.e. hammer and (b) injuries
mentioned are sufficient to cause death in ordinary course.
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Significantly, the defence did not challenge or cross-examine the
doctor on these points, leaving the medical opinion unshaken.
46. Forensic examination of the physical evidence collected from
the crime scene, including bloodstains found on a gas stove, a piece of
cloth, the hammer used in the assault, the deceased‟s blood sample
from the mortuary, and the bloodstains on the Accused‟s shirt, was
comprehensively analyzed by Ms. Anita Chari, Scientific Officer
(PW-13), whose report dated 19.06.2018 (Ex. PW-13/A) concluded
that the DNA profiling performed on all these exhibits matched the
blood sample of the deceased. Importantly, no infirmity or
contradiction emerged during her cross-examination.
47. Taken cumulatively, the consistent and corroborative
eyewitness testimony, namely, Ritika (PW-5) and Piyush @
Siddhartha (PW-7), supported by unimpeached medical and forensic
evidence, leads this Court to the firm conclusion that the Prosecution
has proved its case beyond reasonable doubt, namely, that the
Accused/Appellant caused the death of his wife, Savita.
48. The central question that now arises for consideration is
whether the death so caused amounts to murder, punishable under
Section 302 of the IPC, or whether it falls within the category of
culpable homicide not amounting to murder, thereby attracting
liability under Section 304 of the IPC.
49. Before embarking upon this crucial inquiry, it is necessary to
first delineate the legal framework governing such a determination. In
this regard, the landmark judgment of the Hon‟ble Supreme Court in
State of A.P. v. Rayavarapu Punnayya17, laid down the guiding
principles and provided a clear exposition on the interplay between
17
(1976) 4 SCC 382
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Sections 299, 300, 302 and 304 of the IPC. The Court, in that case,
articulated the applicable legal tests and set forth a broad outline for
distinguishing between murder and culpable homicide not amounting
to murder. The relevant paragraphs of the judgement are extracted
below:
“11. The principal question that falls to be considered in this
appeal is, whether the offence disclosed by the facts and
circumstances established by the prosecution against the
respondent, is “murder” or “culpable homicide” not amounting to
murder.
12. In the scheme of the Penal Code, “culpable homicide” is genus
and “murder” its specie. All “murder” is “culpable homicide” but
not vice-versa. Speaking generally, “culpable
homicide” sans “special characteristics of murder”, is “culpable
homicide not amounting to murder”. For the purpose of fixing
punishment, proportionate to the gravity of this generic offence,
the Code practically recognises three degrees of culpable homicide.
The first is, what may be called, “culpable homicide of the first
degree”. This is the greatest form of culpable homicide, which is
defined in Section 300 as “murder”. The second may be termed as
“culpable homicide of the second degree”. This is punishable under
the first part of Section 304. Then, there is “culpable homicide of
the third degree”. This is the lowest type of culpable homicide and
the punishment provided for it is, also, the lowest among the
punishments provided for the three grades. Culpable homicide of
this degree is punishable under the second part of Section 304.
13. The academic distinction between “murder” and “culpable
homicide not amounting to murder” has vexed the courts for more
than a century. The confusion is caused, if courts losing sight of the
true scope and meaning of the terms used by the legislature in these
sections, allow themselves to be drawn into minutae abstractions.
The safest way of approach to the interpretation and application of
these provisions seems to be to keep in focus the keywords used in
the various clauses of Sections 299 and 300. The following
comparative table will be helpful in appreciating the points of
distinction between the two offences.
Section 299 Section 300
A person commits Subject to certain
culpable homicide if the exceptions culpable homicide
act by which the death is is murder if the act by which
caused is done — the death is caused is done —
INTENTION
(a) With the (1) With the intention of
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intention of causing death; or
causing death; or
(b) With the (2) With the intention of
intention of causing such bodily
causing such injury as the offender
bodily injury as knows to be likely to
is likely to cause cause the death of the
death; or person to whom the
harm is caused; or
(3) With the intention of
causing bodily injury
to any person and the
bodily injury intended
to be inflicted
is sufficient in the
ordinary course of
nature to cause death;
or
KNOWLEDGE
(c) With the (4) With the knowledge
knowledge that that the act is
the act so imminently
is likely to cause dangerous that it must
death in all probability
cause death or such
bodily injury as is
likely to cause death,
and without any
excuse for incurring
the risk of causing
death or such injury as
is mentioned above.
14. Clause (b) of Section 299 corresponds with clauses (2) and (3)
of Section 300. The distinguishing feature of the mens rea requisite
under clause (2) is the knowledge possessed by the offender
regarding the particular victim being in such a peculiar condition or
state of health that the internal harm caused to him is likely to be
fatal, notwithstanding the fact that such harm would not in the
ordinary way of nature be sufficient to cause death of a person in
normal health or condition. It is noteworthy that the “intention to
cause death” is not an essential requirement of clause (2). Only the
intention of causing the bodily injury coupled with the
offender’s knowledge of the likelihood of such injury causing the
death of the particular victim, is sufficient to bring the killing
within the ambit of this clause. This aspect of clause (2) is borne
out by Illustration (b) appended to Section 300.
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15. Clause (b) of Section 299 does not postulate any such
knowledge on the part of the offender. Instances of cases falling
under clause (2) of Section 300 can be where the assailant causes
death by a fist blow intentionally given knowing that the victim is
suffering from an enlarged liver, or enlarged spleen or diseased
heart and such blow is likely to cause death of
that particular person as a result of the rupture of the liver, or
spleen or the failure of the heart, as the case may be. If the assailant
had no such knowledge about the disease or special frailty of the
victim, nor an intention to cause death or bodily injury sufficient in
the ordinary course of nature to cause death, the offence will not be
murder, even if the injury which caused the death, was
intentionally given.
16. In clause (3) of Section 300, instead of the words “likely to
cause death” occurring in the corresponding clause (b) of Section
299, the words “sufficient in the ordinary course of nature” have
been used. Obviously, the distinction lies between a bodily
injury likely to cause death and a bodily injury sufficient in the
ordinary course of nature to cause death. The distinction is fine but
real, and, if overlooked, may result in miscarriage of justice. The
difference between clause (b) of Section 299 and clause (3) of
Section 300 is one of the degree of probability of death resulting
from the intended bodily injury. To put it more broadly, it is the
degree of probability of death which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The word
“likely” in clause (b) of Section 299 conveys the sense of
“probable” as distinguished from a mere possibility. The words
“bodily injury … sufficient in the ordinary course of nature to
cause death” mean that death will be the “most probable” result of
the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the
offender intended to cause death, so long as the death ensues from
the intentional bodily injury or injuries sufficient to cause death in
the ordinary course of nature. Rajwant v. State of Kerala [AIR
1966 SC 1874] is an apt illustration of this point.
18. In Virsa Singh v. State of Punjab [AIR 1958 SC 465] Vivian
Bose, J. speaking for this Court, explained the meaning and scope
of clause (3), thus (at p. 1500):
“The prosecution must prove the following facts
before it can bring a case under Section 300,
„thirdly‟. First, it must establish quite objectively,
that a bodily injury is present; secondly the nature of
the injury must be proved. These are purely
objective investigations. It must be proved that there
was an intention to inflict that particular injury, that
is to say, that it was not accidental or unintentional
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enquiry proceeds further, and fourthly it must be
proved that the injury of the type just described
made up of the three elements set out above was
sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective
and inferential and has nothing to do with the
intention of the offender.”
19. Thus according to the rule laid down in Virsa Singh case of
even if the intention of accused was limited to the infliction of a
bodily injury sufficient to cause death in the ordinary course of
nature, and did not extend to the intention of causing death, the
offence would be “murder”. Illustration (c) appended to Section
300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both
require knowledge of the probability of the act causing death. It is
not necessary for the purpose of this case to dilate much on the
distinction between these corresponding clauses. It will be
sufficient to say that clause (4) of Section 300 would be applicable
where the knowledge of the offender as to the probability of death
of a person or persons in general — as distinguished from a
particular person or persons — being caused from his imminently
dangerous act, approximates to a practical certainty. Such
knowledge on the part of the offender must be of the highest
degree of probability, the act having been committed by the
offender without any excuse for incurring the risk of causing death
or such injury as aforesaid.
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
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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.
22. The above are only broad guidelines and not cast-iron
imperatives. In most cases, their observance will facilitate the task
of the court. But sometimes the facts are so intertwined and the
second and the third stages so telescoped into each other, that it
may not be convenient to give a separate treatment to the matters
involved in the second and third stages.
23. Now let us consider the problem before us in the light of the
above enunciation.”
(Emphasis supplied)
50. The above paragraph No. 21 of State of A.P. v. Rayavarapu
Punnayya (supra) lays down a threefold test to determine whether an
offence qualifies as “murder” or “culpable homicide not amounting to
murder”. Upon applying the first test in light of the discussion in the
preceding paragraphs, this Court finds the answer in the affirmative.
51. The next step is to apply the second test, namely, whether the
act of the Accused falls within the definition of culpable homicide as
defined under Section 299 of the IPC.
52. To assess the applicability of Section 299, the two core
elements to examine are intention or knowledge. The Hon‟ble
Supreme Court, in Jai Prakash v. State (Delhi Admn.)18, has
elaborated on the distinction between these two mental states. The
relevant paragraphs read as under:
“12. Referring to these observations, Division Bench of this Court
in Jagrup Singh case [(1981) 3 SCC 616] observed thus: (SCC p.
620, para 7)
“These observations of Vivian Bose, J. have become
locus classicus. The test laid down in Virsa Singh
case [1958 SCR 1495] for the applicability of
Clause Thirdly is now ingrained in our legal system
and has become part of the rule of law.”
The Division Bench also further held that the decision in Virsa
Singh case [1958 SCR 1495] has throughout been followed as
18
(1991) 2 SCC 32
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laying down the guiding principles. In both these cases it is clearly
laid down that the prosecution must prove (1) that the body injury
is present, (2) that the injury is sufficient in the ordinary course of
nature to cause death, (3) that the accused intended to inflict that
particular injury that is to say it was not accidental or unintentional
or that some other kind of injury was intended. In other words
Clause Thirdly consists of two parts. The first part is that there was
an intention to inflict the injury that is found to be present and the
second part that the said injury is sufficient to cause death in the
ordinary course of nature. Under the first part the prosecution has
to prove from the given facts and circumstances that the intention
of the accused was to cause that particular injury. Whereas the
second part whether it was sufficient to cause death is an objective
enquiry and it is a matter of inference or deduction from the
particulars of the injury. The language of Clause Thirdly of Section
300 speaks of intention at two places and in each the sequence is to
be established by the prosecution before the case can fall in that
clause. The „intention‟ and „knowledge‟ of the accused are
subjective and invisible states of mind and their existence has to be
gathered from the circumstances, such as the weapon used, the
ferocity of attack, multiplicity of injuries and all other surrounding
circumstances. The framers of the Code designedly used the words
„intention‟ and „knowledge‟ and it is accepted that the knowledge
of the consequences which may result in doing an act is not the
same thing as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he
must have been aware that certain specified harmful consequences
would or could follow. But that knowledge is bare awareness and
not the same thing as intention that such consequences should
ensue. As compared to „knowledge‟, „intention‟ requires something
more than the mere foresight of the consequences, namely the
purposeful doing of a thing to achieve a particular end.”
(Emphasis supplied)
53. In the present case, the Prosecution has strived upon to establish
the intention of the Accused to kill the deceased, relying on the
testimonies of Rajesh (PW-3), Manohar Lal (PW-4), Ritika (PW-5),
and Piyush @ Siddhartha (PW-7), who all confirmed longstanding
matrimonial discord and quarrels between the Accused and the
deceased. However, in this Court‟s opinion, this alone is insufficient,
as mere domestic discord does not, by itself, lead to the conclusion
that the husband intended to kill his wife.
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54. Furthermore, the Prosecution has failed to present any evidence
of an immediate or recent provocation or cause that might have
triggered the Accused to kill the deceased at the relevant time. The
overall facts show that the couple‟s relationship was strained, resulting
in the Accused residing with his mother on the second floor, while the
deceased lived with the children on the ground floor. However, neither
the testimonies of PW-3, PW-4, PW-5, nor PW-7 point to any recent
quarrel or provocation preceding the fatal assault. Therefore, the
applicability of clauses (a) and (b) of Section 299 of the IPC stands
ruled out.
55. The focus then shifts to clause (c) of Section 299, which hinges
on knowledge, specifically, whether the Accused acted “with the
knowledge that the act is likely to cause death.” Here, the act of
striking the deceased on the head with a hammer, in the presence of
eyewitnesses, Ritika (PW-5) and Piyush @ Siddhartha (PW-7), clearly
indicates that the Accused must have been fully aware that such a
blow by a hammer (Ex. PW-17/B) was probable to cause death. There
is no evidence suggesting otherwise, nor has the defence provided any
contrary explanation regarding the Accused‟s mental state. Thus, the
case would squarely fall under clause (c) of Section 299 IPC.
56. Moving to the third test, the key question is whether this
culpable homicide, falling under clause (c) of Section 299, qualifies as
murder under clause (4) of Section 300 of the IPC. The law on this
point has been succinctly summarized in the celebrated case of
Emperor v. Mt. Dhirajia19. The relevant paragraph reads as follows:
“10. That is the fourth case in which culpable homicide is murder.
We have already found that Mt. Dhirajia must be taken to have19
1940 SCC OnLine All 91
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known that what she did must in all probability cause the death of
her baby. But this is qualified by the further requirement that “such
act” must be “without any excuse for incurring the risk of causing
death…..” The construction of this particular passage of S. 300 is
well settled. It is well settled that it is not murder merely to cause
death by doing an act with the knowledge that it is so imminently
dangerous that it must in all probability cause death. In order that
an act done with such knowledge should constitute murder it is
necessary that it should be committed without any excuse for
incurring the risk of causing the death or bodily injury. An act done
with the knowledge of its consequences is not prima facie murder.
It becomes murder only if it can be positively affirmed that there
was no excuse. The requirements of the section are not satisfied by
the act of homicide being one of extreme recklessness. It must in
addition be wholly inexcusable. When a risk is incurred–even a
risk of the gravest possible character which must normally result in
death–the taking of that risk is not murder unless it was
inexcusable to take it. That, as we understand it, in terms of this
case, is the meaning of this passage of S. 300, I.P.C. Now looking
at the facts of this case which we need not repeat again, we think
that it is not possible to say that Mt. Dhirajia in jumping into this
well did so without excuse. We must consider in assessing what is
excuse or is not excuse the state of mind she was in. She feared her
husband and she had reason to fear her husband. She, was
endeavouring to escape from him at dawn and in the panic into
which she was thrown when she saw him behind her she jumped
into the well. We think she had excuse and that excuse was panic
or fright or whatever you like to call it. For these reasons we do not
think that Mt. Dhirajia is guilty of murder.”
(Emphasis supplied)
57. In the present case, it has been established that the Accused
caused the death of the deceased by striking her with a hammer. The
postmortem report (Ex. PW-14/A) concluded that the cause of death
was craniocerebral damage resulting from blunt force trauma. The
postmortem report (Ex. PW-14/A) regarding internal injuries on the
body opined “No Abnormality Detected”20, however, with respect to
external injuries, opined as under:
20
NOD
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“EXTERNAL EXAMINATION (Injuries etc.):
1. Laceration, reddish, measuring 5×3 cm, present on the left
occipital aspect of the head. Brain matter coming out from
fracture site.
Laceration, measuring 5×2 cm x bone deep, present above left
ear 2 cm above of size 4×2.”
58. These findings confirm two severe injuries: one on the left
occipital area (back-left side of the skull) and another above the left
ear. The nature of injuries is grave as that is leading to brain matter
coming out from the fracture site.
59. Notably, there were no other external injuries or marks
suggesting any prior physical scuffle between the deceased and the
Accused.
60. Ritika (PW-5) and Piyush @ Siddhartha (PW-7) consistently
testified that, on 23.04.2018 around 09:30 AM, while they were
sleeping in a rear room, they were awakened by their mother‟s cries
and the sound of falling utensils. Upon rushing out, they saw their
father striking their mother with a hammer.
61. Significantly, neither child reported hearing any verbal quarrel
between the Accused and the deceased prior to the assault by the
hammer. If there had been a heated exchange that escalated to
violence, it is likely the children would have been awakened earlier.
62. Additionally, the mother of the Accused (DW-1) briefly
testified that the Accused was with her upstairs and only went to the
ground floor after hearing noises. If such noises had been loud or
prolonged, the Accused‟s children, who were in a room immediately
adjacent to the scene of the incident, would likely have been alerted
and present from the very beginning.
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63. Considering the nature and location of the injuries, combined
with the surrounding circumstances, this Court finds that the Accused
acted with the knowledge that his act was so imminently dangerous
that it would, in all probability, cause death or such bodily injury as
was likely to cause death. Neither the Accused nor his defence offered
any valid explanation or justification for causing such injuries.
Therefore, the case squarely falls under clause (4) of Section 300 of
the IPC.
64. In the present appeal, the Ld.Counsel for the Appellant/Accused
sought to invoke „Exception 4‟ to Section 300 of the IPC, which
states:
“Exception 4. –Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the offender’s having
taken undue advantage or acted in a cruel or unusual manner.
Explanation. –It is immaterial in such cases which party offers
the provocation or commits the first assault.”
65. The Hon‟ble Supreme Court, in Ghapoo Yadav v. State of
M.P.21, summarized the essential elements required for an Accused to
claim the benefit of „Exception 4‟. The relevant paragraph reads as
under:
“10. The fourth exception of Section 300 IPC covers acts done in a
sudden fight. The said exception deals with a case of prosecution
not covered by the first exception, after which its place would have
been more appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation. But, while
in the case of Exception 1 there is total deprivation of self-control,
in case of Exception 4, there is only that heat of passion which
clouds men’s sober reason and urges them to deeds which they
would not otherwise do. There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct consequence of
that provocation. In fact, Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or some
provocation given in the origin of the dispute or in whatever way
21
(2003) 3 SCC 528
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the quarrel may have originated, yet the subsequent conduct of
both parties puts them in respect of guilt upon equal footing. A
“sudden fight” implies mutual provocation and blows on each side.
The homicide committed is then clearly not traceable to unilateral
provocation, nor could in such cases the whole blame be placed on
one side. For if it were so, the exception more appropriately
applicable would be Exception 1. There is no previous deliberation
or determination to fight. A fight suddenly takes place, for which
both parties are more or less to be blamed. It may be that one of
them starts it, but if the other had not aggravated it by his own
conduct it would not have taken the serious turn it did. There is
then mutual provocation and aggravation, and it is difficult to
apportion the share of blame which attaches to each fighter. The
help of Exception 4 can be invoked if death is caused: (a)
without premeditation; (b) in a sudden fight; (c) without the
offender’s having taken undue advantage or acted in a cruel or
unusual manner; and (d) the fight must have been with the
person killed. To bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to be noted that
the “fight” occurring in Exception 4 to Section 300 IPC is not
defined in the Penal Code, 1860. It takes two to make a fight.
Heat of passion requires that there must be no time for the
passions to cool down and in this case, the parties have worked
themselves into a fury on account of the verbal altercation in
the beginning. A fight is a combat between two and more
persons whether with or without weapons. It is not possible to
enunciate any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved facts
of each case. For the application of Exception 4, it is not
sufficient to show that there was a sudden quarrel and there
was no premeditation. It must further be shown that the
offender has not taken undue advantage or acted in a cruel or
unusual manner. The expression “undue advantage” as used in
the provision means “unfair advantage”.”
(Emphasis supplied)
66. It is well established that once the Prosecution has discharged
its burden, the Accused bears the responsibility to demonstrate the
probable case that the facts fit within the exception. A three-judge
bench in Vijayee Singh v. State of U.P.22 summarized this principle as
follows:
22
(1990) 3 SCC 190
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“17. We have noticed that Section 105 requires that when a person
is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General
Exceptions or special exception or proviso contained in any part of
the Penal Code is on him and the court shall presume the absence
of such circumstances. This presumption is rebuttable.
In Parbhoo v. Emperor [AIR 1941 All 402 (FB)], a Full Bench of
seven Judges considered the scope of Sections 102 and 105 of the
Evidence Act. The majority agreed with the view taken by the Full
Bench in Damapala case [AIR 1937 Rang 83]. In Parbhoo
case [AIR 1941 All 402 (FB)], Bajpai, J. in his concurring
judgment observed that Section 105 is stated in two forms, that of a
rule as to the burden of proof and that of a presumption and that the
burden of proving the guilt of the accused always rests on the
prosecution and never shifts and the learned Judge further held that
the doubt cast in connection with the right of private defence must
be a reasonable doubt and if there is such a reasonable doubt, it
casts a doubt on the entire case of the prosecution and that the
result is that the accused gets a benefit of doubt. (AIR p. 421) “The
presumption laid down in Section 105, Evidence Act, might come
into play but it does not follow therefrom that the accused must be
convicted even when the reasonable doubt under the plea of the
right of private defence or under any other plea contained in the
general or special exceptions pervades the whole case.”
In Damapala case [AIR 1937 Rang 83] Dunkley, J. while
concurring with the majority view after discussing the law on the
subject observed: (AIR p. 88)
“The conclusion, therefore, is that if the court either
is satisfied from the examination of the accused and
the evidence adduced by him, or from circumstances
appearing from the prosecution evidence, that the
existence of circumstances bringing the case within
the exception or exceptions pleaded has been
proved, or upon a review of all the evidence is left in
reasonable doubt whether such circumstances had
existed or not, the accused in the case of a general
exception, is entitled to be acquitted, or, in the case
of a special exception, can be convicted only of a
minor offence.”
This case has been followed subsequently by a number of High
Courts.
****
23. At this stage it becomes necessary to consider the meaning of
the words “the court shall presume the absence of such
circumstances” occurring in Section 105 of the Evidence Act.
Section 4 of the Act explains the meaning of the term “shall
presume” as to mean that the court shall regard the fact as proved
unless and until it is disproved. From a combined reading of these
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two sections it may be inferred that where the existence of
circumstances bringing the case within the exception is pleaded or
is raised the court shall presume the absence of such circumstances
as proved unless and until it is disproved. In Section 3 of the Act
meaning of the terms “proved”, “disproved” and “not proved” are
given. As per this provision, a fact is said to be “proved” when,
after considering the matters before it, the court either believes it to
exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon
the supposition that it exists. A fact is said to be “disproved” when,
after considering the matters before it, the court either believes that
it does not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it does not exist. A fact is said to be
“not proved” when it is neither “proved” nor “disproved”.
24. The first part of Section 105 as noted above lays down that
when a person is accused of an offence, the burden of proving the
existence of circumstances bringing the case within any of the
exceptions or proviso is on him and the latter part of it lays down
that the court shall presume the absence of such circumstances. In a
given case the accused may discharge the burden by expressly
proving the existence of such circumstances, thereby he is able to
disprove the absence of circumstances also. But where he is unable
to discharge the burden by expressly proving the existence of such
circumstances or he is unable to disprove the absence of such
circumstances, then the case would fall in the category of “not
proved” and the court may presume the absence of such
circumstances. In this background we have to examine the meaning
of the words “the court shall presume the absence of such
circumstances” bearing in mind the general principle of criminal
jurisprudence that the prosecution has to prove its case beyond all
reasonable doubt and the benefit of every reasonable doubt should
go to the accused.
(Emphasis supplied)
67. To invoke Exception 4, the defence has to show the probable
case that the death was caused: (a) without premeditation; (b) in a
sudden fight; (c) without taking undue advantage or acting in a cruel
or unusual manner; and (d) due to the fight with the deceased. In the
present case, the Accused has failed to establish the occurrence of any
sudden fight between himself and the deceased. Indeed, the defence
did not advance such a claim before the Ld. Trial Court, nor was any
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such suggestion made to any of the Prosecution witnesses during the
cross-examination.
68. Notwithstanding, the surrounding facts reveal no additional
injuries or signs of a scuffle, nor any indication of a verbal altercation,
between the Accused and the deceased, leading up to the fatal assault.
As previously noted, even if there had been a verbal exchange, the
children would likely have been awakened earlier.
69. Given the history of discord between the Accused and the
deceased, an altercation escalating to the Accused fatally beating his
wife with a hammer would require evidence of some extraordinary
circumstance, which is absent here. Accordingly, this Court concludes
that the present case does not fall within the scope of Exception 4 to
Section 300 of the IPC.
70. During arguments, the Ld. Counsel for the Appellant/Accused
also raised the issue that no effort was made to verify the origin of the
hammer. However, it is pertinent to note that this case is primarily
built on ocular evidence, i.e., the direct testimony of the Accused‟s
own children; and under the given facts and circumstances, the
absence of proof regarding the weapon‟s origin does not undermine
the credibility of these eyewitness accounts. The Hon‟ble Supreme
Court in Pruthiviraj Jayantibhai Vanol v. Dinesh Dayabhai Vala23
regarding the strength of the ocular evidence made the following
observations:
“17. Ocular evidence is considered the best evidence unless there
are reasons to doubt it. The evidence of PW 2 and PW 10 is
unimpeachable. It is only in a case where there is a gross
contradiction between medical evidence and oral evidence, and the
medical evidence makes the ocular testimony improbable and rules
out all possibility of ocular evidence being true, the ocular23
(2022) 18 SCC 683
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evidence may be disbelieved. In the present case, we find no
inconsistency between the ocular and medical evidence. The High
Court grossly erred in appreciation of evidence by holding that
Muddamal No. 5 was a simple iron rod without noticing the
evidence that it had a sharp turn edge.
18. The aforesaid discussion leads us to the conclusion that the
acquittal by the High Court is based on misappreciation of the
evidence and the overlooking of relevant evidence thereby arriving
at a wrong conclusion. It is not a case where two views are possible
or the credibility of the witnesses is in doubt. Neither is it a case of
a solitary uncorroborated witness. The conclusion of the High
Court is therefore held to be perverse and irrational. The acquittal
is therefore held to be unsustainable and is set aside. In the nature
of the assault, Section 304 Part II IPC has no application. The
conviction of Respondents 1 to 4 by the trial court is restored.”
(Emphasis supplied)
71. In light of the foregoing discussion, this Court finds no merit in
the present appeal, and thus, the impugned judgment dated 03.05.2023
and the Order on Sentence dated 24.08.2023 passed by the Ld. Trial
Court is upheld.
72. Accordingly, the present appeal, along with any pending
application(s), stands disposed of in the above terms.
73. No order to cost.
SUBRAMONIUM PRASAD, J.
HARISH VAIDYANATHAN SHANKAR, J.
JULY 02, 2025/sm
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:03.07.2025 CRL.A. 164/2024 Page 29 of 29
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