JUDGMENT - DESHPANDE D.G., J.: - Heard Mr. Amol Mardikar, Adv. for the appellant accused and Mr. Mirza, A.P.P. for the respondent-State. 2. The appellant accused, who is the husband of deceased Chandrakala, has been convicted under section 302 of the India Penal Code and sentenced of suffer life imprisonment for committing murder of his wife Chandrakala by the 2nd Additional Sessions Judge, Yavatmal by his judgment dt. 27-10-1999. Hence, this appeal. 3. According to the prosecution, the first husband of deceased Chandrakala was dead. She has two children; one of them is Ankush (P.W. 3) who was a minor boy at the time of incident and the other one is Khushal (P.W. 5) who was living away from Chandrakala. Both the children were from the first husband of Chandrakala. Chandrakala was dealing in illicit liquor. There were illicit relations between her and the appellant-accused. The appellant used to visit her house, beat her and occasionally demand money. A couple of days before death of Chandrakala, her son Khushal (P.W. 5) had given her Rs. 2,000/- which Chandrakala utilized for releasing mortagaged silver ornaments. The appellant when come to her house, questioned her and beat her. He used a wooden log to assault her and also used a stone by which he assaulted on the stomach of Chandrakala, as a result of which Chandrakala had several pain and was weeping. The assault was seen by Ankush (P.W. 3). Throughout the night, Chandrakala was weeping due to pain. In the morning, she was removed to the hospital in an autorickshaw. In the autorickshaw, Chandrakala told Vimalabai (P.W. 2) as to how she was beaten by the appellant-accused. Chandrakala died soon after she was admitted in the hospital and thereafter, her father lodged report against the appellant, on the basis of which offences came to be registered. The offences was investigated into. The appellant was tired and came to be convicted as stated above. 4. Mr. Amol Mardikar, the learned Counsel for the appellant-accused, contended that the conviction of appellant was entirely based on the solitary testimony of Ankush (P.W. 3) who was the eye-witness and considering the fact that the witness Ankush was a child witness, possibility of he being tutored could not be ruled out and therefore, it is unsafe to rely upon the evidence of Ankush (P.W. 3). Secondly and alternatively, it is contended that the so-called oral dying declaration made by Chandrakala to other witnesses was of no consequence because even though the police had ample time and opportunity record the dying declaration of Chandrakala through the Magistrate, no attempt in that regard in made. Thirdly and alternatively, it is contended that looking to the nature of injuries on the person of Chandrakala, it could not be said that there was intention on the part of the appellant accused to kill Chandrakala and therefore, according to him, the offence under section 302 of the Indian Penal Code is not all made out against the appellant accused Code, but at the most the offence under section 304-II of the Indian Penal Code can be said to have been proved against the appellant. He relied upon the judgment of the Supreme Court in the case of (Masumsha Hasanasha Musalman v. State of Maharashtra)1, reported in 2000 S.C.C. (Cri.)722 and the judgement in the case of (Bhera v. State of Rajasthan)2, reported in 2000 S.C.C. (Cri.)1230. 5. On the other hand, Mr. Mirza, the learned A.P.P. contended that, so far as Ankush (P.W. 3) a minor child witness is concerned, there was nothing brought out in his evidence to disregard his testimony. Merely because he was the son of deceased Chandrakala, he could not be said to be an interested witness. The learned A.P.P. also submitted that there is nothing on the record to show that Anjush is a tutored witness. According to the learned A.P.P., presence of Ankush in the house was most natural; firstly because he was a minor child and secondly, first husband of Chandrakala was dead and second son Khushal was living away from his mother. Therefore, evidence of Ankush (P.W. 3) was most natural and it was strongly corroborated by the medical evidence because medical evidence fully supports the oral version of Ankush about assault and the instrument used for assault. 6. The learned A.P.P. contended that the oral dying declaration of Chandrakala to other witnesses was also natural and no fault could be found with the same. 6. The learned A.P.P. contended that the oral dying declaration of Chandrakala to other witnesses was also natural and no fault could be found with the same. Regarding motive the learned A.P.P. contended that the appellant can be said to have motive to assault deceased Chandrakala because; firstly, the appellant-accused was having illicit relations with the deceased, secondly, he was always extracting money from her, thirdly, on the day of incident he questioned Chandrakala about use of Rs. 2,000/- for releasing mortgaged silver ornaments. 7. Regarding alternate submission of applicability of section 304-II of the Indian Penal Code, the learned A.P.P. contended that the case do not come at all under Exception 4 of section 300 and therefore, because there was no evidence nor any suggestion nor any circumstance that Chandrakala had given provocation to the accused nor there was any suggestion to show that there was a sudden fight and in a hit of passion, the accused assaulting Chandrakala. The learned A.P.P. also contended that the number of injuries on the person of Chandrakala clearly shows that the appellant-accused has mercilessly beaten her by using wooden leg as well as stone which shows that his only intention was that Chandrakala should suffer injuries and die. 8. In the statement under section 313 of the Code of Criminal Procedure, the appellant-accused has admitted that he was on visiting terms to the house of Chandrakala and they were having illicit relations. Khushal (P.W. 5) in his evidence he stated that, about 8 to 10 days before death of Chandrakala, she had been to his house at Umri and he handed over Rs. 2,000/- to his mother to enable her to release mortgaged silver ornaments. This part of the story is not at all challenged in the cross-examination of witness Khushal nor anything is brought on the record to show that Khushal did not hand over Rs. 2,000/- to Chandrakala. 9. Thereafter, there is evidence of Laxman (P.W. 1) whose house is to the back side of the house of Chandrakala. He has stated that accused was on visiting terms to the house of Chandrakala. The incident took place at 5.00 p.m. He had come out of the house for passing urine. He saw that the accused was beating Chandrakala. He has frankly admitted that he has not seen as to by what means and instrument the appellant-accused was beating Chandrakala. He has stated that accused was on visiting terms to the house of Chandrakala. The incident took place at 5.00 p.m. He had come out of the house for passing urine. He saw that the accused was beating Chandrakala. He has frankly admitted that he has not seen as to by what means and instrument the appellant-accused was beating Chandrakala. He also stated that Chandrakala was shouting and that thereafter, she was taken to the hospital. In the cross-examination, witness Laxman has stated that his house is eight feet away from the house of Chandrakala. Defence has tried to show that there was no electric light and that, in the evening this witness cannot see properly. However, as rightly held by the trial Court, the time when witness Laxman (P.W. 1) saw the assault was 5.00 p.m. and at that time, no electric lights are necessary nor it could affect the capacity of the witness Laxman to see what is going on, particularly when the distance between his house and that of Chandrakala is only eight feet. 10. The next witness of prosecution is Vimalbai (P.W. 2). She has stated that she was coming to Yavatmal in an autorickshaw and Chandrakala was in the autorickshaw with her son Ankush. She has also stated that the accused used to beat Chandrakala always. At that time, Chandrakala was going to the hospital in the autorickshaw and she personally admitted Chandrakala in the Yavatmal Hospital. The witness was declared hostile by prosecution, but in her cross-examination by the learned A.P.P., she has stated that she heard noise of beating and quarrel from the house of Chandrakala and that she has stated to the police that stomach of Chandrakala was having swelling and her teeth fell down and there was injury to her cheek. In the cross-examination, however, the witness has again supported to the accused by stating that Chandrakala told her that she went for collecting fuel and fell down. In view of this conflicting evidence, what remained proved is the fact that this witness has accompanied Chandrakala upto the hospital at Yavatmal and at that time, Chandrakala's son Ankush was present. 11. Most important witness of prosecution is Ankush (P.W. 3), who was 11 years when his evidence was recorded by the Court on 1-9-1999. He was stated that his mother died one year prior to recording of his evidence. 11. Most important witness of prosecution is Ankush (P.W. 3), who was 11 years when his evidence was recorded by the Court on 1-9-1999. He was stated that his mother died one year prior to recording of his evidence. On sunday, the accused severely beat Chandrakala, his mother, who died on Monday. He was present at that time and the accused beat Chandrakala by stone on the chamber of stomach and the accused also gave blow by leg of wooden cot on the teeth of his mother. He also stated that he was threatened by the accused not to disclose the incident to anybody. When the beating to his mother was going on, he ran to the house of sister of his father and when he returned back, the accused had gone away. Mother of this witness (deceased Chandrakala) told him that her teeth had fallen out and that she was severely beaten by the accused. On Monday, in the morning, she was brought to the hospital. He accompanied his mother to the hospital where his grandfather Arjun came and in his presence. Chandrakala told her father Arjun that the accused-appellant had severely beaten her. 12. In the cross-examination of this witness Ankush (P.W. 3). It was suggested to him that he was tutored by his grandfather, but he has completely denied that suggestion. Nothing else is brought on record to show that witness was tutored or he has any interest to falsely implicate the accused. Certain omissions were brought on the record in para 5 of his evidence about beating by stone on the chamber of stomach and by leg of wooden cot on the teeth of Chandrakala and about threats given by the accused. Chandrakala narrated about beating to her by the accused to grandfather Arjun of witness Ankush. However, in para 6, witness Ankush has clearly denied the suggestion that Arjun did not come to the hospital and his mother did not state anything to him. Nothing is there in the cross-examination to discredit the witness. Chandrakala narrated about beating to her by the accused to grandfather Arjun of witness Ankush. However, in para 6, witness Ankush has clearly denied the suggestion that Arjun did not come to the hospital and his mother did not state anything to him. Nothing is there in the cross-examination to discredit the witness. Even the aforesaid omissions do not support the defence in view of the fact that the story given by the witness is corroborated by other circumstantial evidence namely; in the inquest panchanama two teeth of Chandrakala were found to have fallen and the post mortem report shows that she was having swelling on her stomach (as a result of beating by stone on the chamber of her stomach). No motive is attributed to the witness. Therefore, the trial Court has rightly relied upon the version of witness Ankush after finding that he is honest, trustworthy, sincere and without any grudge against the accused. Merely, because he is a child witness, his testimony is not liable to be disbelieved. It is true that he is related to the deceased but that does not make him an interest witness. This aspect has been properly considered by the trial Court. Arjun, father of Chandrakala, was examined as (P.W. 4) He has stated that his nephew informed him that Chandrakala was admitted in the hospital. He, therefore, went to the Yavatmal Hospital and Chandrakala told him that accused beat her by stone on her abdoment. He also told that she had brought Rs. 2,000/- from her elder son and Chandrakala released her mortgaged silver ornaments and this was the reason for the accused to question her and beat her as he was in need of money. 13. Ankush, in his statement has stated that after his grandfather i.e. Arjun (P.W. 4) came to the hospital, Chandrakala narrated the incident to him by her oral dying declaration. Witness Ankush stated that she asked for water from her father and after drinking water, she died. In the cross-examination also, same sequence of events is stated by witness Ankush. Absolutely, no cross-examination engrossed in the testimony of this witness. No motive is attributed to him. Nothing is brought on record to discredit the witness. 14. Mr. Witness Ankush stated that she asked for water from her father and after drinking water, she died. In the cross-examination also, same sequence of events is stated by witness Ankush. Absolutely, no cross-examination engrossed in the testimony of this witness. No motive is attributed to him. Nothing is brought on record to discredit the witness. 14. Mr. Mardikar, learned Counsel for the appellant-accused relied upon the judgment of the Supreme Court reported in 2003 Bom.C.R.(Cri.) (S.C.)974 : A.I.R. 2003 S.C. 1088 (Bhagwan Singh and others v. State of M.P.)3, about appreciation of evidence of a child witness. In that case, the prosecution story was that Bhagwan Singh-accused hatched a plan to kill Mata Prasad with the help of the other co-accused. To accomplish their plan, in the midnight intervening 28th-29th February, 1984, they entered the house of deceased Mata Prasad and by throttling him by neck, killed him and hanged him with the hook of the door in the house. They also killed his daughter Munni Devi by burning her. There was a child witness in that case and the trial Court did not rely upon the testimony of the child witness. In the appeal, the High Court relied upon the sole testimony of eye-witness i.e. child witness and reversed the verdict of acquittal into that of conviction. 15. In the above case, the Supreme Court, in the matter brought before it, found that the evidence of child witness suffers from serious infimity due to omission of prosecution in not holding test identification parade and in not examining Agyaram to whom, as alleged, the child witness first met after the incident. In para No. 19 of the said judgment, the Supreme Court held that the evidence of child witness is required to be evaluated carefully because he is an easy prey to tutoring. The Supreme Court further observed in para 20 that the trial Court has recorded demeanour of the child. The child was vacillating in the course of his deposition and there was a possibility of he being tutored. Conduct of the child was also not found to be natural. 16. Mr. Mardikar, the learned Counsel for the appellant-accused, therefore, contended that looking to the observation and aspects of the matter, the evidence of child witness Ankush in the present case is required to be rejected. Conduct of the child was also not found to be natural. 16. Mr. Mardikar, the learned Counsel for the appellant-accused, therefore, contended that looking to the observation and aspects of the matter, the evidence of child witness Ankush in the present case is required to be rejected. We do not find that the judgment in the case Bhagwan Singh v. State of M.P. (supra) is of any help to the defence. Nodoubt that the evidence of child witness has to be carefully scrutinised because of possibility of he being tutored. But, in the instant case, there was no question of any confusion in the mind of the child witness Ankush about identity of his own father, who took him and the deceased brother on his bike and dumped them into the well. There were no assailants and the witness has withstood the cross-examination. There is nothing to show that he has been tutored or he had any motive to falsely implicate his father. 17. The next important witness is Dr. Satish Gupta (P.W. 6) who has performed post-mortem. He found the following injuries on the body of Chandrakala: Injuries found on external examination : 1. Abrasion with contusion. Rt. mandibular 1"x1' within 1-2 days. 2. Abrasion with contusion Rt. lower lip-inner surface lacerated ½' * ½'x¼' within 1-2 days upper Rt. mid incs. disclosed socket fresh 1-2 days. 3. Abrasion Rt. arm 2" x ½" within 1-2 days. 4. Contusion left hypochondrium 2"x2" within 1-2 days. 5. Contusion left abdomen unblical and left Iliac reg. 3"x3" within 1-2 days. 6. Venesection Rt. medical malleolus (surgical) Injuries found on internal examination : 1. Haematoma left hypochondrium 3"x3". Left infra umblical and left Ilica reg. clots present. Infection present. Peritorenum congested. Cavity- Hemoperitoneum present about 1 Lit. of blood, and clots and faecal matter present, foul smelling, Stomach and its contents 160 ml. Gastric and biliary juice present. Wall NAD. Omentum clots present, adheral to perforated intestine. Small intertine and its contents-Digested food present. Ilium, 3-4ft. away from Ilio caecal junction, two perforation present. mesyntry torn clots present. Congested. Pancreas and Supraenals-Congested. Left side clots present. Kidneys-left surrounding clots present. congested about 50 ml. 18. The doctor has opined that the injuries shown in para Nos. 17 and 21 of the post-mortem report (reproduced above) are sufficient in the ordinary course of nature to cases death. away from Ilio caecal junction, two perforation present. mesyntry torn clots present. Congested. Pancreas and Supraenals-Congested. Left side clots present. Kidneys-left surrounding clots present. congested about 50 ml. 18. The doctor has opined that the injuries shown in para Nos. 17 and 21 of the post-mortem report (reproduced above) are sufficient in the ordinary course of nature to cases death. There is no serious challenge to the post-mortem report. Therefore, it is to be held that Chandrakala died homicidal death on account of the injuries. The report also proves that the suggestion of the accused or defence of the accused that Chandrakala received these injuries due to fall (which was the statement made by hostile female witness Pramilabai (P.W. 2) is also a false suggestion or defence. The doctor has denied that the multiple injuries are not possible by single fall. The inquest panchanama has been proved by Pandurant Raghoji Dhurve (P.W. 7), who has stated that two teeth of Chandrakala had fallen down. There was injury near her lower lip and colour of abdoment region was green. His version fully proves the medical report as well as oral version given by Ankush about assault on the mouth and stomach of deceased Chandrakala. 19. It is, therefore, clear that this is a fully proved case wherein there is no scope to come to any conclusion other than guilt of the appellant-accused. Ankush, the solitary eye-witness, has withstood the cross-examination successfully and nothing could be brought on record to discredit him or to doubt about his testimony. 20. The only question, therefore, that now remains, as argued by Mr. Mardikar, Adv. for the appellant, is whether this case could come within the ambit of section 304-II of the Indian Penal Code. Culpable homicide is defined in section 299 of the Indian Penal Code and murder is defined in section 300 of the Indian Penal Code. In all, five exceptions have been carved out to section 300 and Exception 4 is as under : "culpable homicide is not murder if it is committed without premeditation in a sudden fight in a heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner." 21. After having carved out aforesaid exception, section 304 is provided for in the statute book for prescribing punishment for culpable homicide not amounting to murder. After having carved out aforesaid exception, section 304 is provided for in the statute book for prescribing punishment for culpable homicide not amounting to murder. There are five exceptions to section 300 and if any of all these exceptions are attracted in the given case then section 304 will apply. However, in the instant case, Exception No. 4 at the most is required to be considered because it is not the case of accused that he was deprived of power of self -control by the grave and sudden provocation and caused death of the person who gave that provocation. Therefore, exception No. 1 is not applicable. Exception No. 2 is also not applicable nor attracted because if is not the case of right of private defence. Exception No. 3 is not applicable because the offender is not a public servant. Exception No. 5 is not attracted. Therefore the case has to be considered only with reference to Exception No. 4 . 22. The learned Counsel for the appellant accused relied upon, as stated by us above, the judgment of the Supreme Court reported in 2000 S.C.C. (Cri.)722 (supra). In that case, the Supreme Court considered the evidence of Deubai (P.W. 4) and also the medical evidence which was brushed aside by the High Court to come to the conclusion that there was intention on the part of the appellant to cause the injuries. The Supreme Court found that the Injury Nos. 4 to 10 which were mere abrasion or skin deep could not have been caused by the appellant accused, but could have been caused due to falling on the ground and coming in contact with rough surface. The Supreme Court found that the probability that while Injury No. 1 could have been inflicted by the appellant, Injuries Nos. 2 and 3 could have been caused in the course of scuffle cannot be ruled out. In this background, the judgment of the High Court was reversed. Conviction of the appellant under section 302 of the Indian Penal Code was set aside and the conviction given by the trial Court under section 304 II of the Indian Penal Code was restored. In this background, the judgment of the High Court was reversed. Conviction of the appellant under section 302 of the Indian Penal Code was set aside and the conviction given by the trial Court under section 304 II of the Indian Penal Code was restored. It is clear from the aforesaid judgment of the Supreme Court that the possibility of other injuries being caused due to scuffle could not be ruled out and the witness Deubai could be relied only to the extent of first injury. Therefore, the Supreme Court accepted the judgment of the trial Court and confirmed the conviction under section 304-II of the I.P.C. The facts of the present case are totally different and the aforesaid case law is not at all applicable to the case in hand. 23. Mr. Mardikar, the learned Counsel for the appellant accused, also relied upon the judgment of the Supreme Court reported in 2000 S.C.C. (Cri.)1230 (supra). In that case, the appellant accused was acquitted by the trial Court. The High Court set aside acquittal and convicted the appellant under section 302 of the Indian Penal Code. There was gathering in the house of one Bhana on 27-2-1976 which was attended by both, accused and the deceased repayment of loan. The deceased refused to comply. Thereafter, the accused and the deceased left the place. Then, on the road, there was quarrel between accused and the deceased and then, accused suddenly brought knife and gave blow on the chest of the deceased. Converting conviction of the accused from 302 of I.P.C. to 304-II of I.P.C. the Supreme Court opined that there was quarrel between accused and the deceased in the house of Bhana; on the road also they quarrelled with each other and suddenly, the accused brought knife and gave a blow and therefore, it was difficult to hold that the accused gave a blow with requisite intention to cause murder of the accused. The facts of that case are totally difficult from the facts of the present case. 24. No attempt is made by the appellant accused or defence to bring the case under Exception No. 4 of section 300. It is not the case of appellant accused that there was a sudden fight between him and Chandrakala and that, in a hit of passion, upon a sudden quarrel, the accused assaulted Chandrakala. 24. No attempt is made by the appellant accused or defence to bring the case under Exception No. 4 of section 300. It is not the case of appellant accused that there was a sudden fight between him and Chandrakala and that, in a hit of passion, upon a sudden quarrel, the accused assaulted Chandrakala. It is also not the case of the accused that he did not take undue advantage of the situation nor that he did not act in a cruel manner. 25. What has come on record is that Khushal gave Rs. 2,000/- to Chandrakala from his own earning; meaning thereby, to which the accused has no concern. This amount was utilized by Chandrakala for releasing silver utensils which were mortgaged. There also accused had no concern. But, even then, the accused raised quarrel with Chandrakala questioning her authority to spend the amount because the accused wanted that money. Therefore, in that quarrel, accused firstly assaulted her with a wooden leg of cot on her cheek resulting in falling of two teeth and then went on assaulting her mercilessly and cruelly and also using stone, hit on the chamber of her stomach. Considering the number of injuries Chandrakala sustained and the manner in which Chandrakala was assaulted and the fact that Chandrakala was a woman with nobody to support her or to protect her from the assault and was mercilessly beaten resulting in her death, none of the circumstances enumerated by Exception 4 of section 300 are attracted in this case. It is true that, as per Exception 4, it is immaterial which party offers provocation or commit assault first. It cannot be said and nothing has been brought on record that Chandrakala gave any provocation to the accused. It appears that the accused was habituated to extract money from Chandrakala because of illicit relations between them and because she was dealing in liquor and when his demand of Rs. 2,000/- or whatever the demand was, could not be fulfilled, he started assaulting Chandrakala in a cruel manner. Use of wooden leg causing so many injuries on her person and use of stone thereafter, clearly shows that the appellant-accused has taken undue advantage of his masculine superiority and acted in a cruel and unusual manner in beating to death a woman who was fragile and delicate as compared to him. Use of wooden leg causing so many injuries on her person and use of stone thereafter, clearly shows that the appellant-accused has taken undue advantage of his masculine superiority and acted in a cruel and unusual manner in beating to death a woman who was fragile and delicate as compared to him. The case cannot be covered under Exception 4 of section 300 and therefore, section 304, either Part I or II is not attracted. The contention of Mr. Mardikar, Adv. for the appellant in this regard are required to be rejected. In the circumstances, no case is made out by the appellant accused. Hence, the appeal is dismissed. Appeal dismissed. -----