- (1.) THIS appeal has come before me Under Section 429, Criminal P. C. as the Judges composing the Bench who heard the appeal, differed on the question whether the offence committed by the accused-appellant is Under Section 302 or one Under Section 304, Part I, Indian Penal Code.
(2.) THE accused-appellant Chand Singh was tried by the Sessions Judge, Ganganagar, for an offence Under Section 302. Indian Penal Code, for the murder of his wife Mst. Jaswant Kaur. The prosecution case was that on 16th May, 1967 the accused-appellant assaulted his wife Mst. Jaswant Kaur at his house in village Morjand Sikhan at about 8/30 p. m. , inflicted injuries with a sword and brought about her death. The accused admitted having inflicted sword-blows upon his wife. He, however, came forward with a version either claiming right of private defence or the right to an exception based on grave and sudden provocation. His case was that on the night of the occurrence when he was sleeping inside his house he awoke and saw his wife coming near him with a sword in her hand. She inflicted sword blows on his arm and right shoulder and when he ran inside the kotha she followed him with the sword. It was further stated by the accused that he thereupon moving behind a pillar snatched the sword from his wife and inflicted blows therewith to her. She fell down and he inflicted one more sword blow over her. The prosecution examined nine witnesses in support of the case. Gurjant Singh P. W. 1 and Sukhdeosingh P. W, 2 are the sons of the accused. While they supported the prosecution case at the committal stage to some extent, they turned hostile and did not support the prosecution case at the trial stage. From the evidence of Sarwan Singh P. W. 4 and Nidhan Singh P. W. 6 it appears that after the incident the accused went first to Sarwan Singh peon of the Gram Panchayat, Morjandsikha and informed him that he was assaulted with the sword by his wife and was injured. On being assaulted he snatched the sword from his wife and inflicted blows upon her. Sarwan Singh took him to Nidhan Singh P. W. 6 Sarpaneh of the Gram Panchayat. Nidhan Singh scribed a report on his behalf stating the above facts and sent him with Sarwan Singh P. W. 4 to the Police Station. The remaining witnesses refer to what the accused told them after the incident and what they saw on reaching the house of the accused. After reviewing the entire evidence, the trial court recorded the following finding's 1, The prosecution has not explained these injuries and so there is no reason to disbelieve the statement of the accused to the extent that the deceased had inflicted sword blow on his person while he was sleeping and that she had followed her in the kotha or Turi and that the accused had after snatching the very sword from the hand of the deceased inflicted fatal injury to the deceased. 2. That the accused had after making the deceased fall on the ground sat on her chest and then had applied the sword causing a wound 8" long and dividing all soft parts including both carotids. This shows that he had not inflicted this injury to the deceased in a heat of. passion soon after snatching the sword from her. He must have taken time to belabour the deceased on the ground and then to sit on her chest and bring her in a condition that he could apply the sword on her throat causing such a severe injury. In such a case it cannot be said that the accused had caused the death of Mst. Jaswantkaur while deprived of the power of self control by grave and sudden provocation and so he cannot claim the benefit of exception to Section 300, IPC The trial court consequently convicted the accused Under Section 302, Indian Penal Code.
(3.) THE accused appealed against his conviction and the case came before a Bench of this Court. The learned Judges who heard the case, differed both in reaching conclusions of facts as also on the principles of law applicable to the case. Kansingh, J. agreed with the trial Judge that the accused inflicted injuries upon the deceased after having been assaulted by the deceased with a sword. In doing so, he relied upon the facts (i) that the accused gave his version at the earliest opportunity and (ii) the injuries on the person of the accused could not have been self inflicted as deposed by Dr. Kamalnayan P. W. 9. The learned Judge reached a conclusion that the plea of the accused could not be treated as an improbable one. Considering the applicability of Exception I to Section 300, IPC the learned Judge observed, "in the case like the present where the husband was attacked with a sword by his wife, the husband was likely to lose his self control. " He, therefore, held that the case of the accused fell under the first Exception to Section 300, IPC;