Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1091/2010

ATTAR SINGH ..Appellant

Versus

STATE OF MAHARASHTRA ..Respondent

J U D G M E N T

GYAN SUDHA MISRA, J.

This appeal has been preferred against the

judgment and order dated 26.6.2008 passed by the

High Court of Judicature at Bombay, Bench at

Aurangabad in Criminal Appeal No. 7/2007 whereby

the High Court upheld the judgment and order

passed by the Sessions Judge, Dhule in Sessions Case

No. 90/2005 by which the appellant had been

convicted for an offence under Section 302, Indian

Penal Code (I.P.C. for short) and was sentenced to

undergo life imprisonment along with a fine of

Rs.1,000/-. In default of payment of fine, he was

Page 2 ordered to undergo simple imprisonment for three

months.

2. The appellant was initially charged and

tried for an offence under Section 302 and 498-A of

the I.P.C. for killing his wife by hitting her on her head

with a woodenlog as he was suspecting her loyalty

and character.

3. The specific case of the prosecution which

was registered under Section 302 and 498-A of the

I.P.C. is that the appellant-Attarsingh Barakya Pawara

was residing along with his wife and 9 children at

village Majanipada in Shirpur Taluk. On 22.6.2005,

the complainant-Khandu Kalu Ahire who is also the

village Kotwal received an information from one

Ramesh Pawara, resident of Majanipada and Appa

Shahada Pawara, resident of Fattepur village that

the appellant Attarsing has committed murder of his

wife by hitting her with a woodenlog on her head. On

receipt of this information, the village Kotwal along

with the Sarpanch Bhatu Ditya and one Rattan

Lalsing went to the appellant’s house and found the

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Page 3 dead body of Nagibai (deceased wife of the appellant)

lying on the floor of the house which indicated that the

deceased had sustained head injury and had bleeded

profusely. The woodenlog was found near her

dead body and the appellant was also found sitting in

the house. The village Kotwal enquired about the

incident and questioned the appellant as to how his

wife had died. The appellant replied that his wife was

of a loose character and, therefore, he had killed her

by hitting woodenlog on her head. He narrated the

incident to other persons accompanying the village

Kotwal.

4. The village Kotwal thereafter came to the

police station at Shirpur and lodged the report of the

incident (Exh.15) on the basis of which the offence

was registered vide crime No. 161/2005 under Section

302 of the I.P.C. The police thereafter completed

the usual legal formality by reaching on the spot and

as the body was found there, inquest was also

conducted and spot panchnama was also prepared

whereby the clothes of the accused containing blood

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Page 4 stains were seized. Woodenlog (Article No.3) which

was found lying on the spot was also seized at the

time of preparation of spot panchnama. The body of

the deceased was then sent to the Government

Hospital, Shirpur where post-mortem was conducted.

5. The accused-appellant was subsequently

arrested and taken to the police station. Investigation

thereafter followed in course of which it transpired

that it was the appellant who had killed his wife

Nagibai as he was suspecting her character. Charges

were then framed against the appellant under

Section 498-A and 302 of the I.P.C. to which the

appellant pleaded not guilty and claimed to be tried.

6. In course of trial, the prosecution examined

12 witnesses on the question as to whether the

appellant had subjected his wife to cruelty by giving

her beating and abuses from time to time suspecting

her character. The trial court further examined the

question as to whether the accused had committed

the murder of his wife Nagibai in his house at village

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Page 5 Majanipada and thirdly as to what other offence he

has committed.

7. The defence story set up on behalf of the

appellant is that his wife had fallen down on the floor

of the house due to which she sustained severe head

injury which resulted in her death.

8. The trial court on a scrutiny of the

evidence and other materials on record rejected the

defence story on the basis of the post-mortem report

as Dr. Gohil who had conducted post-mortem

categorically expressed that the head injury which the

deceased Nagibai has sustained were not possible

due to fall on the ground.

9. Insofar as the charge under Section 498-A

of Indian Penal Code was concerned, the trial court

held that none of the prosecution witnesses deposed

that the accused-appellant was subjecting his wife

Nagibai to cruelty by giving her beating and abuses

from time to time as alleged by the prosecution. The

learned Sessions Judge recorded that the evidence on

record indicates that it was only a single incident in

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Page 6 which accused-appellant had assaulted his wife

Nagibai suspecting her fidelity and character as the

evidence is missing that the accused-appellant was

subjecting his wife to cruelty by abusing and

assaulting her from time to time. The learned

Sessions Judge thus was pleased to hold that the

prosecution had failed to prove the charge under

Section 498-A of the I.P.C. against the accused-

appellant and hence acquitted him of this charge.

10. Insofar as the second charge is concerned

as to whether the accused-appellant is the author of

the head injury of the deceased, the testimony of the

daughter of accused-appellant Mangibai was held to

be significant for even though Mangibai had turned

hostile, her testimony revealed that on the day of the

incident, her father was running behind her mother

with a woodenlog for beating her. On witnessing this

incident, she started weeping and came out.

Thereafter, her father closed the door and only her

father and mother were inside the house.

Immediately thereafter, her mother Nagibai was found

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Page 7 lying injured in a pool of blood inside the house and

the accused also was there. It was, therefore, held

that this circumstance indicated that it is the accused-

appellant who had assaulted his wife and caused her

death. It was further held, that though the panch

witness Mangibai is a hostile witness, such portion of

the hostile witness which is worth believing and

which is supported by other circumstances can be

used and relied upon by the prosecution in view of

well-settled legal position. The Sessions Court thus

on a scrutiny and analysis of the evidence accepted

the prosecution version based on the evidence on

record that the accused-appellant had committed the

murder of his wife by hitting her with a woodenlog in

his house and recorded a finding in the affirmative to

the effect that it is the accused-appellant who

committed the murder of his wife-Nagibai in his house

at village Majanipada. Thus, the appellant succeeded

in securing an order of acquittal in his favour in so far

as the charge under Section 498-A of the Indian

Penal Code is concerned, but suffered conviction and

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Page 8 sentence of imprisonment for life for offence under

Section 302 of the I.P.C. for the charge of murder of

his wife.

11. The appellant feeling aggrieved with the

conviction and sentence preferred an appeal before

the High Court of Bombay Bench at Aurangabad, but

the High Court confirmed the view taken by the trial

court on all aspects including the charge under

Section 302 of the I.P.C.

12. Assailing the judgment and order passed

by the Sessions Court as also the High Court which

concurrently upheld the conviction of the appellant

under Section 302 I.P.C., the counsel for the appellant

first of all attempted to demolish the case of the

prosecution in its entirety by submitting that the

conviction and sentence imposed on the appellant was

not fit to be sustained on the testimony of the

daughter Mangibai as she had not supported the

prosecution version totally due to which she had

been declared hostile. Hence, it was first of all

contended that the testimony of the hostile witness

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Page 9 could not have been relied upon for recording

conviction of the appellant.

13. We have meticulously considered the

arguments advanced on this vital aspect of the

matter on which the conviction and sentence

imposed on the appellant is based. This compels us

to consider as to whether the conviction and sentence

recorded on the basis of the testimony of the witness

who has been declared hostile could be relied upon for

recording conviction of the accused-appellant. But it

was difficult to overlook the relevance and value of the

evidence of even a hostile witness while considering

as to what extent their evidence could be allowed to

be relied upon and used by the prosecution. It could

not be ignored that when a witness is declared

hostile and when his testimony is not shaken on

material points in the cross-examination, there is no

ground to reject his testimony in toto as it is well-

settled by a catena of decisions that the Court is

not precluded from taking into account the statement

of a hostile witness altogether and it is not necessary

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Page 10 to discard the same in toto and can be relied upon

partly. If some portion of the statement of the hostile

witness inspires confidence, it can be relied upon. He

cannot be thrown out as wholly unreliable. This was

the view expressed by this court in the case of Syed

Akbar vs. State of Karnataka reported in AIR 1979

SC 1848 whereby the learned Judges of the Supreme

Court reversed the judgment of the Karnataka High

Court which had discarded the evidence of a hostile

witness in its entirety. Similarly, other High Courts in

the matter of Gulshan Kumar vs. State (1993) Crl.L.J.

1525 as also Kunwar vs. State of U.P. (1993) Crl.L.J.

3421 as also Haneefa vs. State (1993) Crl.L.J. 2125

have held that it is not necessary to discard the

evidence of the hostile witness in toto and can be

relied upon partly. So also, in the matter of State of

U.P. vs. Chet Ram reported in AIR 1989 SC 1543 =

(1989) Crl.L.J. 1785; it was held that if some portion

of the statement of the hostile witness inspires

confidence it can be relied upon and the witness

cannot be termed as wholly unreliable. It was

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Page 11 further categorically held in the case of Shatrughan

vs. State of M.P. (1993) Crl.L.J. 3120 that hostile

witness is not necessarily a false witness. Granting of

a permission by the Court to cross-examine his own

witness does not amount to adjudication by the Court

as to the veracity of a witness. It only means a

declaration that the witness is adverse or unfriendly to

the party calling him and not that the witness is

untruthful. This was the view expressed by this Court

in the matter of Sat Paul vs. Delhi Administration

AIR 1976 SC 294. Thus, merely because a witness

becomes hostile it would not result in throwing out the

prosecution case, but the Court must see the relative

effect of his testimony. If the evidence of a hostile

witness is corroborated by other evidence, there is no

legal bar to convict the accused. Thus testimony of a

hostile witness is acceptable to the extent it is

corroborated by that of a reliable witness. It is,

therefore, open to the Court to consider the evidence

and there is no objection to a part of that evidence

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Page 12 being made use of in support of the prosecution or in

support of the accused.

14. While examining the instant matter on the

anvil of the aforesaid legal position laid down by this

Court in several pronouncements, we have noticed

that the support rendered by the daughter Mangibai

approving the incident should be accepted as reliable

part of evidence in spite of she being a hostile witness.

The witness Mangibai’s evidence pushes the accused

with his bag to the wall and the accused is obliged to

explain because her evidence shows that the accused

was the only person in the company of the deceased

soon before the death. The defence of the accused

that Nagibai’s injury was a result of fall is ruled out by

medical evidence and the details available of the

location in the panchnama of offence. The courts

below thus have rightly drawn some support from the

reports of the chemical analysis since all the articles

of the victims and clothes of the accused are found

having blood stains of human blood group A. This was

in view of the fact that the results of the analysis for

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Page 13 determination of the blood group of the victim and

accused were conclusive when blood sent to phial

was analysed. Thus, the evidence of the daughter of

the deceased coupled with other material as also

evidence of other witnesses i.e. Ramesh, Khandu,

Bhatu and Makhan, provided a complete chain and

the prosecution successfully proved that the incident

occurred in the manner and the place which was

alleged. In fact, the accused in answer to questions

under Section 313 Cr.P.C. has admitted his presence

at the place of occurrence where his wife Nagibai was

lying injured and dead on the floor. However, we do

not wish to be understood that the failure of the

defence could be treated as success of the

prosecution since the conviction cannot be based only

on the replies given by the accused, but these replies

may be considered as support to the special

knowledge of the accused and this lends sufficient

weight to the evidence of the daughter of the

deceased and other attending circumstances. The

trial Judge, in our view, has rightly placed reliance

1

Page 14 upon the evidence of Mangibai, the daughter of the

victim and the accused when she candidly supported

the prosecution story when she stated as follows:-

“When my mother had sustained head

injury, my father was there only i.e. near

my mother. He was near the oven. He

was talking loudly.

It is true that my father hit her with a

wooden log and therefore she ran to the

kitchen. It is true that my father

immediately ran after her. I started

weeping. It is true that thereafter my

father closed the door from

inside.”…………………

15. Thus, we are of the view that the

evidence of Mangibai who was declared hostile

supported the prosecution case in her cross-

examination and, therefore, the courts below do

not appear to have fallen into any error in

accepting part of the evidence of Mangibai and the

retracted confession of the witness Mangibai cannot

be accepted to the extent that her evidence in

support of the prosecution version was fit to be ruled

out. The retracted statement of Mangibai stands fully

supported by the evidence of other witnesses. Thus,

1

Page 15 the material on record along with the evidence of the

prosecution witnesses leads to only one inference

that the accused-appellant was the author of the

injury suffered by the victim and we have rightly been

convinced that the accused and the accused alone

inflicted fatal injuries upon the person of victim

Nagibai. We are, therefore, clearly of the view that

in so far as the incident of killing of the deceased

Nagibai is concerned, the courts below have rightly

held that she was killed by her husband-appellant in

the manner which has been alleged by the

prosecution.

16. However, learned counsel for the appellant

next submitted that the offence alleged to have been

committed by the accused-appellant ought to be

brought down within the ambit of Section 304 Part II of

the I.P.C. as there was only a single blow inflicted by

the accused-appellant which is clear from the

narration of incident by the daughter of the accused

and deceased-Nagibai which shows that the accused

was alone with the victim within the house and the

1

Page 16 accused did not kill his wife with a pre-meditated

mind but the incident took place in a fit of anger due

to the fact that he was suspecting his wife. It was,

therefore, submitted that the accused in fact had no

intention to kill his wife as the death had occurred

on account of a single blow which was not the result

of a pre-plan or pre-meditation. In support of the

submission, he relied upon the judgment and order

of this Court in the case of State of Punjab vs.

Bakhshish Singh & Ors. (2008) 17 SCC 411 which

also had relied on the judgment in the case of Anil

Sharma & Ors . vs. State of Jharkhand, (2004) 5

SCC 679, Harbans Kaur vs. State of Haryana ,

(2005) 9 SCC 195, Amitsingh Bhikamsingh Thakur

vs. State of Maharashtra , (2007) 2 SCC 310 and this

Court had been pleased to hold that :

“In all cases, it cannot be stated that

when only a single blow is given, Section

302, IPC is made out, yet it would depend

upon the factual scenario of each case,

more particularly the nature of the

offence, the background facts, the part of

the body where injuries were inflicted and

the circumstances in which the assault is

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Page 17 made” that the offence under Section

302 IPC is not made out.”

In view of the aforesaid observation, learned counsel

submitted that offence under Section 302 I.P.C. in the

instant matter also cannot be held to have been

made out as the deceased had sustained a single

blow alleged to have been inflicted by the appellant.

Learned counsel for the appellant taking further

assistance from the observation of the Supreme Court

in the matter of State of Punjab vs. Bakhshish

Singh (supra) submitted further that the past

history about the relations between the appellant and

the deceased goes to prove that they did not have

any strained relations. In fact, they had absolutely

normal relations and had nine children out of the

wedlock and it was only on the spur of the moment

when the appellant abused suspecting the character

of deceased Nagibai and beat her with a stick

unintentionally that the incident happened. In support

of his argument, he relied on the case of Pannayar

vs. State of Tamil Nadu by Inspector of Police

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Page 18 (2009) 9 SCC 152 wherein this Hon’ble Court held that

absence of motive in case of circumstantial evidence

is more favourable to defence.

17. The arguments advanced by learned

counsel for the appellant-accused when tested in the

light of the evidence led by the prosecution while

considering whether the charge under Section 302

could be scaled down to Section 304 Part-II, we have

already examined the circumstances in which the

deceased had been killed and hence it could be

noticed that the deceased Nagibai and accused-

appellant although had been leading a so-called

normal family life along with their nine children, the

fact remains that the appellant-husband had been

suspecting his wife’s character and nurturing deep

rooted grudge over a period of time. However, the

evidence does further indicate that on the date and

time of incident, the appellant had not indulged in

pre-planning the incident in any manner so as to

eliminate his wife by killing her. The evidence of

other witnesses also indicated that the incident of

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Page 19 beating had not happened in the past and the

daughter of the accused and deceased-Mangibai

also deposed that there were heated exchange of

words between the couple on the date of incident

and the appellant-accused heaped abuses on his wife

and then picked up a woodenlog in a fit of anger by

which he hit the deceased as a result of which she

sustained head injury and bleeded profusely which

lead to her death.

18. Thus the appellant although do not appear

to have killed his wife by planning out the whole

incident in a methodical manner, yet the evidence

disclosed that he was nurturing a grudge against the

wife over a long period of time and on the date of the

incident when the husband started to abuse his

deceased wife alleging her of loose moral and

character, the accused-husband gave vent to his

deep seated grudge by hitting her with such

intensity that he did not bother about the

consequence of his action. But it cannot be

overlooked or ignored that the intensity with which

1

Page 20 he hit his wife after abusing her is indicative of the

fact that he was not oblivious of the consequence

which would have resulted from his violent act of

beating his wife with a log of wood. Thus, it will have

to be inferred that he had sufficient knowledge

about the consequence of his heinous act at least to

the extent that it was sufficient in the ordinary

course of nature to cause death of his wife. He was

thus fully aware of the consequence that this would

result in a serious consequence and in fact it did

result in the said manner since the wife died as a

result of the injury inflicted on her. In fact, when the

village Kotwal reached the incident, the deceased did

not even expressed any remorse for what he had

done to his wife nor he appeared to be repentant of

the incident. This clearly reflects his state of mind

that he committed the crime with full knowledge to kill

his wife Nagibai on account of his deep seated grudge

which he was carrying since long. Therefore, the

submission of the counsel for the appellant that the

charge under Section 302 I.P.C. should be converted

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Page 21 into one under Section 304 Part-II I.P.C. is fit to be

rejected and accordingly we do so.

19. The matter, however, do not set at rest at

this stage as the evidence on record and the

surrounding circumstances compels us to consider

further, whether the offence would be made out

under Section 302 I.P.C. or the same would fall under

Section 304 Part-I of the I.P.C. since the appellant-

accused and his wife-Nagibai had been married for a

long time and were having nine children as also the

manner of occurrence and the circumstance under

which the incident happened does indicate that the

incident of hot exchange of words between the

accused-appellant and his deceased-wife got

precipitated and as the appellant was already

aggrieved of his wife suspecting her character, he hit

his wife severely with whatever was available without

caring for the consequence. Thus, the intention to kill

his wife and the knowledge that she would be killed

due to the hard hit blow by the log of wood surely

cannot be ruled out. We take assistance from the

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Page 22 observations of this Court quoted hereinabove that in

all cases it cannot be said that when only a single

blow is given, Section 302 I.P.C. is made out. Yet it

would depend upon the factual scenario of each case

more particularly nature of the offence, background

facts and the part of the body where injury is inflicted

and the circumstances in which the assault is made.

20. Taking assistance from these apt and

relevant considerations when we examined the case of

the appellant, we have noticed that the appellant was

living with his deceased wife day in and day out, but

none of the witness has deposed that she was

abused and beaten earlier. Thus, there is lack of

evidence that on the fateful day the appellant-

husband had the pre-meditated intention to kill the

deceased with a log of wood due to which he inflicted

the fatal blow on the deceased. The anger and

frustration no doubt was acute in the mind of the

appellant on account of his suspicion which

aggravated due to hot exchange of words and

abuses resulting into loss of mental balance as a

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Page 23 consequence of which he hit his wife with such

intensity that she died on the spot itself. In view of

this the appellant will have to be attributed with the

knowledge that his act was sufficient in the ordinary

course of nature to kill the victim-wife.

21. Thus, in our view, the accused-appellant

although might not be attributed with the intention

to kill his wife, sufficient knowledge that his act

would result into killing her was definitely there in

the appellant’s mind and he in fact gave vent to his

feeling by finally killing her when he hit her with a

woodenlog to take revenge for her alleged infidelity

without realising that suspicion of her fidelity was

not proved and even if it did, that gave no right to

him to kill his wife in a brutal manner by hitting her

hard enough with a log of wood with such intensity

which was sufficient in the ordinary course of nature

to kill the victim.

22. There are no dearth of incidents referred in

the case laws where the husband has gone to the

extent of shooting his wife and many a times a

2

Page 24 paramour shoots the husband or the husband shoots

the paramour on account of suspicion founded or

unfounded. But if the evidence discloses that the

accused killed the victim in a pre-meditated manner

as for instance by using a firearm, the same might

be a clear case under Section 302 of the I.P.C. But

the facts and circumstances of the incident in which

the appellant has been convicted, indicate that the

accused-appellant was not armed with any weapon or

a firearm. As already noticed the evidence do not

disclose in any manner that the appellant had come

with a pre-meditated mind to kill his wife, but it was

only in course of hot exchange of words and abuses

which mindlessly drove him to take the extreme step

of beating his wife with a log of wood with such force

and intensity that she sustained head injury,

profusely bled and finally died on the spot.

23. We are, therefore, of the considered view

that although the conviction and sentence of the

appellant might not be sustainable under Section 302

I.P.C., it cannot also be scaled down to Section 304

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Page 25 Part-II I.P.C. But we are surely of the view that the

appellant is fit to be convicted and sentenced under

Section 304 Part-I of the I.P.C. in view of the evidence

on record, the surrounding circumstance and the

factual scenario in which the incident occurred. We,

therefore, set aside the conviction and sentence of the

appellant recorded under Section 302 I.P.C. but

convert the same under Section 304 Part-I I.P.C.

Thus, we deem it fit and appropriate to substitute the

sentence of life imprisonment with a sentence of 10

years imprisonment. The appeal thus, is partly

allowed. We order accordingly.

…………………………… .J

(Swatanter Kumar)

…………………………… .J

(Gyan Sudha Misra)

New Delhi,

December 14, 2012

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