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2013 DIGILAW 948 (RAJ)

Shanker v. State of Raj.

2013-05-08

BANWARI LAL SHARMA, DINESH MAHESHWARI

body2013
Hon'ble SHARMA, J.—The judgment of conviction and order of sentence dated 18.8.2004 passed by the learned Additional Sessions Judge, Fast Track, No. 1, Banswara in Sessions Case No. 35/2004 is under challenge in this appeal. By the impugned judgment of conviction and order of sentence aforesaid, the learned trial court convicted the appellant under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs. 5,000/-, in default of payment of fine, to suffer another period of rigorous imprisonment for one month. Being aggrieved by the said conviction and sentence, the appellant has preferred this appeal from jail. 2. The prosecution case, as unfolded at the trial, brief, may be stated as follows. 3. The present case involves the killing of Smt. Kamla (hereinafter referred to as `deceased'). On 14.5.2004, Ladki (PW.4), maternal aunt of the deceased came to the residential house of appellant to meet her niece Kamla-deceased at village Bichhawada and remained there in night. On 15.5.2004, after taking morning tea, she was returning to her village Ghanolda with Champi. While they moved a little, they heard the cry of the children from the house of the appellant. On hearing cry, they returned to the house of the appellant and saw that appellant Shanker was sitting on otli after murdering his wife. Shanker told them that he had murdered Kamla by sword. The sword was lying there and the garments of Shanker were blood-stained. The people of vicinity gathered there and she (Ladki) returned to her house. 4. The report about the occurrence was lodged by Ladki (PW.4) at P.S. Lohariya (Banswara) on the same day as Ex. P/8 and formal FIR No. 107/2004 was registered as Ex. P/9 under Section 302 IPC and the police launched investigation into the matter. 5. During investigation, the police prepared the inquest report, forwarded the deceased for postmortem examination, arrested the accused, seized the incriminating weapon sword and recorded the statements of the witnesses. At the close of the investigation, the police submitted charge-sheet against the accused for the offence under Section 302 IPC in the court of learned Judicial Magistrate, Ghatole (Banswara). 6. 5. During investigation, the police prepared the inquest report, forwarded the deceased for postmortem examination, arrested the accused, seized the incriminating weapon sword and recorded the statements of the witnesses. At the close of the investigation, the police submitted charge-sheet against the accused for the offence under Section 302 IPC in the court of learned Judicial Magistrate, Ghatole (Banswara). 6. The offence, under Section 302 IPC, being exclusively triable by the court of Sessions, the learned Judicial Magistrate, Ghatole, committed the case to the court of Sessions, Banswara for trial and the learned Sessions Judge, Banswara transferred the case for trial to the court of learned Additional Sessions Judge, Fast Track, No. 1 Banswara (hereinafter referred to as `the learned trial court') vide order dated 16.7.2004. The learned trial court framed the charge under Section 302 IPC against the accused, to which, the later pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution examined as many as 12 witnesses including Medical Officer (PW.1), who conducted the autopsy of the dead body and the investigating police officer (PW.9). At the conclusion of the evidence, the accused person was examined by the learned trial court under Section 313 Cr.P.C. The accused denied the allegation brought against him and even after availing of the opportunity for defence evidence, failed to adduced any evidence in defence. 8. Considering the evidence on record and after hearing the parties, the learned trial court found the appellant guilty of the offence under Section 302 IPC and accordingly convicted and sentenced him as indicated above. 9. Being aggrieved, the accused, who has been suffering the sentence, as appellant, has preferred this appeal, from jail. Vide order dated 22.2.2013, Mr. Devendra Singh Thind, Advocate was appointed as Amicus Curiae by this Court. 10. We have heard Mr. Devendra Singh Thind, learned Advocate, appearing on behalf of the appellant as Amicus Curiae and Mr. K.R. Bishnoi, learned Public Prosecutor, appearing for the State. 11. The learned Amicus Curiae has submitted that at the time of incident, the appellant-accused was of unsound mind and this fact was there in the prosecution evidence and even after this fact coming to the notice, the learned trial court did not comply with the provisions of Section 329 Cr.P.C. He further argued that non-compliance of provisions of Section 329 Cr.P.C., vitiates the trial. It was further submitted that no eye-witness supported the prosecution case and as per the prosecution witnesses, the sword was lying at the spot while the Investigating Officer testified that he recovered it at the instance of accused. Hence, it seems to be planted one and as per the prosecution witnesses, when Ladki and Champi left the house, accused Shanker was not there. In absence of Shanker, they left the house and as per their statements, they heard the cry of children; that shows that they were not far away from the house of the accused. When they returned, they saw Shanker, which does not connect the accused with the alleged crime. The learned trial court, without considering these facts, convicted and sentenced the appellant-accused, which is not proper and the appeal deserves to be accepted and the appellant deserves to be acquitted. 12. Learned counsel for the appellant further submitted that, considering the circumstances, in which the alleged offence was committed, the same did not amount to murder, rather it was a culpable homicide not amounting to murder and as such the appellant is entitled to the benefit under Sec. 304, IPC. 13. He further submitted that he has preferred an application under Section 329 Cr.P.C., which may also be considered and since the provisions of Section 329 Cr.P.C. have not been complied with, therefore, in the alternative, the matter may be remanded back with direction that the appellant may be examined regarding unsoundness of mind. 14. Refuting the said arguments, the learned Public Prosecutor, supporting the impugned judgment of conviction and order of sentence, has submitted that, there is sufficient evidence of intentionally causing the injuries with sword on vital parts of the body and as such, the learned trial court committed no error in recording conviction and sentence under Section 302 IPC. He further submitted that there is nothing on record, which shows that the accused is of unsound mind. Mere saying that he is of unsound mind, does not attract the provisions of Section 329 Cr.P.C. He also submitted that the accused was represented through an advocate during trial before the trial court and no such prayer was made before the learned trial court during whole of the trial. Mere saying that he is of unsound mind, does not attract the provisions of Section 329 Cr.P.C. He also submitted that the accused was represented through an advocate during trial before the trial court and no such prayer was made before the learned trial court during whole of the trial. Now at the appellate stage, this kind of prayer cannot be accepted and the application filed under Section 329 Cr.P.C. by the learned Amicus Curiae, deserves to be rejected. It was also submitted that the application is not supported by any material. 15. So far as the argument regarding unsoundness of mind is concerned, Section 329(1) Cr.P.C. reads as under:- "329. Procedure in case of person of unsound mind tried before Court.-(1) If at the trial of any person before a Magistrate or Court of Sessions, it appears to the Magistrate or Court that such person is of unsound mind and consequently incapable of making his defence, the Magistrate or Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Magistrate or Court, after considering such medical and other evidence, as may be produced before him or it, is satisfied of the fact, he or it shall record a finding to that effect and shall postpone further proceedings in the case." 16. The Legislature has used the word "appears" which surely imports a lesser degree of probability than proof. This would not mean that the Magistrate or court must proceed to try the question of unsoundness on mere asking. There must be something either in the form of medical record or other material to raise a reasonable doubt in the mind of the Magistrate or Court that the accused is of unsound mind. Even the demenour of the accused may lead to such a doubt. It is only on the crossing of this hurdle that it becomes obligatory on the Magistrate or the court to try the fact of such unsoundness of mind and legal disability of the accused. Further, as per statement of Dr. Rajiv Gautam (PW.12), the condition of the accused was normal during his examination. 17. During whole trial, even while examination of the accused under Section 313 Cr.P.C., it has never been noticed that accused is of unsound mind. Further, as per statement of Dr. Rajiv Gautam (PW.12), the condition of the accused was normal during his examination. 17. During whole trial, even while examination of the accused under Section 313 Cr.P.C., it has never been noticed that accused is of unsound mind. Further, no such documentary evidence was produced even at the time of filing of application under Section 329 Cr.P.C. before this court, which would show that the accused was treated for unsoundness of mind. The accused was represented by the counsel throughout the trial. For mere saying by the illiterate witnesses that the accused is of unsound mind and that too who are relatives of the deceased or mother and daughter, do not pressurize the court is not obliged to conduct inquiry regarding the unsoundness of the mind. Secondly, this question was not raised during trial. It has been raised, after a lapse of more than 8 years. For the first time and after 8 years, examination of the accused under Section 329 Cr.P.C. is of no consequence because the fact of unsoundness of mind is relevant for the period of time of crime and in this case, even trial has already been concluded. Now, at the appellate stage, after such a long time, it is futile to examine the appellant under Section 329 Cr.P.C. As such, this argument is of no consequence. 18. In order to appreciate the other arguments, advanced on behalf of the parties, we feel it appropriate to briefly scan the evidence available on record. 19. The Medical Officer, who performed the autopsy of the dead body of the deceased, Dr. Chetna, deposed as PW-1 that upon postmortem examination of the said dead body, she found the following injuries:- (1) Abrasion 2" linear on right side of the forehead with clotted blood. (2) Cut wound 1 1/2" x 1/2" x bone deep on right side of the neck with clotted blood. (3) Cut wound 6 1/2" x 1" x bone deep with fracture of right mandible from right corner or the mouth to back side of the ear. 20. She opined that the period of death was within 4-6 hours and further opined that the cause of death was hemorrhage shock due to heavy bleeding and the injuries of the deceased were sufficient to cause death in the ordinary course of nature. All the injuries were of antemortem in nature. 20. She opined that the period of death was within 4-6 hours and further opined that the cause of death was hemorrhage shock due to heavy bleeding and the injuries of the deceased were sufficient to cause death in the ordinary course of nature. All the injuries were of antemortem in nature. She proved the postmortem report as Ex.P/1. 21. Jitendra (PW.2), testified that he took the photographs of the spot at village Bichhawada. He proved the photographs as Ex. P/2 to Ex.P/6. 22. Rajendra Singh (PW.3), Malkhana Incharge, deposed that on 15.5.2004, Om Prakash deposited 5 articles in malkhana relating to FIR No. 107/2004 under Section 302 IPC. Out of those, four were in sealed condition. He further deposed that on 16.5.2004, one more article was deposited in the malkhana in sealed condition relating to this case and all the articles were handed over to Champalal, Constable for being deposited in FSL, Udaipur on 26.5.2004, after removing the objections. He further stated that after depositing the articles at FSL, Udaipur, Champalal brought receipt No. 94 on 26.5.2004. 23. Ladki (PW.4), maternal aunt of deceased testified that she went to the residential house of appellant to meet her niece Kamla-deceased at village Bichhawada and remained stayed there in night. On 15.5.2004, after taking morning tea, she was returning to her village Ghanolda with Champi. While they moved a little, they heard the cry of the children from the house of the appellant. On hearing cry, they returned to the house of the appellant and saw that appellant Shanker was sitting on otli after murdering his wife. Shanker told them that he has murdered Kamla by sword. The sword was lying there and the garments of Shanker were blood-stained. The people of vicinity gathered there and she returned to her house after lodging report Ex. P/8 at police station. 24. Champi (PW.5), mother of appellant-accused, stated that she was living with the accused in the same house. She corroborated the statements of PW.4 Ladki and stated that when she left the house with Ladki and was on a short distance from the house, they heard cry ^^deyk dks ekj Mkyk**. On hearing it, they returned and saw that Kamla was lying dead. There was injury near her ear and Shanker was having sword. Shanker murdered Kamla. He did not tell them that he inflicted sword blows. On hearing it, they returned and saw that Kamla was lying dead. There was injury near her ear and Shanker was having sword. Shanker murdered Kamla. He did not tell them that he inflicted sword blows. Shanker was tied with the rope. 25. Ms. Laxmi @ Laxi (PW.6) daughter of the appellant, stated that her father committed murder of her mother. She did not know by which weapon he committed murder. She sustained injury near the ear but she did not see committing murder. She further deposed that Ladki is her maternal grand-mother. She came one day before and left the home at 7.00 a.m. for Ghanoda with her grandmother Champi. 26. Dev Shanker (PW.7) turned hostile but stated that at about 7.00 a.m., when he was sleeping in his house, he heard the cry of children of Shanker. When he went there, Kamla was lying there but he did not go inside the house. 27. Champalal (PW.8) Constable, stated that he received 5 articles from Rajendra Singh and deposited the same in sealed condition on 26.5.2004 at FSL, Udaipur after procuring the following letter from the Office of the Superintendent of Police. 28. Om Prakash (PW.9), Incharge, PS, Lohariya stated that on 15.5.2004, Ladki submitted a written report Ex.P.8 to him on which he registered FIR Ex.P/9 and inspected the place of occurrence and prepared rough site plan Ex.P/10 and inquest report Ex.P/13. Blood stained soil and controlled soil were taken in possession vide memo Ex.P/11. Blood stained garments of deceased were seized vide memo Ex.P/12. The postmortem was conducted by the Medical Officer and the dead body was handed over vide memo Ex.P/14.The statements of witnesses were recorded and the seized articles were deposited in malkhana. Accused Shanker was arrested vide arrest memo Ex.P/23. The accused furnished information under Section 27 of the Evidence Act, which was reduced in writing as Ex.P/24 and in pursuance of information submitted by accused, sword was recovered vide memo Ex.P/25. At the time of arrest, accused was wearing blood-stained garments, which were seized vide Ex.P/26. The seized articles were sent to FSL, Udaipur with Constable Champalal. He also proved FSL Report as Ex.P/22. 29. Dhulji (PW.10) stated that a sword was recovered from accused Shanker by police vide Ex. P/25 and a rough site plan of place of incident Ex. P/10 was prepared in his presence. The seized articles were sent to FSL, Udaipur with Constable Champalal. He also proved FSL Report as Ex.P/22. 29. Dhulji (PW.10) stated that a sword was recovered from accused Shanker by police vide Ex. P/25 and a rough site plan of place of incident Ex. P/10 was prepared in his presence. The blood stained and controlled soil were also seized vide Ex.P/11 in his presence. The garments of deceased Kamla were seized vide memo Ex.P/12, inquest report Ex. P/13 was prepared in his presence and the dead body of deceased was handed over vide Ex.P.14. 30. Lalji (PW.11), stated that garments of Shanker were seized in his presence vide Ex.P/26. 31. Dr. Rajiv Gautam, (PW12), who examined the injuries of the accused, deposed that he found the following injuries on the body of accused:- (1) Abrasion reddish in colour 1.6 cm x 0.5 cm on upper side of the right chick. (2) Abrasions three in numbers reddish in colour, each measuring 1 1/2 cm x 1/2 cm on wrist of the right hand on upper side on the lateral part. (3) Abrasion reddish in colour 1 1/2 cm x 1/2 cm on lateral aspect of the wrist of left hand. It was further opined that all the injuries were simple in nature and were caused by blunt weapon and the period of injuries were 24-48 hours and the patient was in normal condition. 32. All the said witnesses (PW.4, PW. 5, PW.6 and PW.7), who assembled immediately after the occurrence, were cross-examined by the defence and no contradictory evidence could be brought out to demolish the prosecution version, more particularly, the evidence of PW.4 and PW.5 aforesaid. The exhibited inquest report i.e. Ex.P/13, indicates that the police, at the time of conducting inquest, found one injury on the right chick from right ear to mouth crossing the mandible, 6" in length, 1 1/2" in width and 1" in depth and blood was oozing and blood cloth was also there. The wheat particles lying on the spot due to falling of the deceased were soaked in the blood. The seizure list reveals that the police seized a sword, blood stained garments of deceased and blood stained garments of the accused. Dhulji (PW.10), Lalji (PW.11) and Om Prakash (PW.9) Investigating Officer, supported the prosecution version regarding the inquest report and seizure of the sword and blood stained garments of accused. The seizure list reveals that the police seized a sword, blood stained garments of deceased and blood stained garments of the accused. Dhulji (PW.10), Lalji (PW.11) and Om Prakash (PW.9) Investigating Officer, supported the prosecution version regarding the inquest report and seizure of the sword and blood stained garments of accused. The evidence of PW.4, PW.5 and PW.6 shows that on their return, Kamla was lying dead on the floor and accused was standing there and his clothes were having blood stains and sword was lying there. Further on asking, he admitted that he murdered Kamla which remained unimpeached and Om Prakash (PW.9), who recovered sword at the instance of accused and Dhulji (PW.10) supported the recovery of sword, corroborated the evidence PW.4, PW.5 and PW.6 on material point and even the mother of accused Champa (PW.5) clearly stated that Shanker committed murder of Kamla, which corroborates the statements of PW.1 Dr. Chetna. From the medical evidence, it is clear that the deceased sustained homicidal antemortem injuries, caused by sharp edged weapon like sword etc. and that the death was caused due to the injuries aforesaid. The inquest report Ex.P/13, supports the evidence of PW.1 regarding location of the injuries. The injuries were found on the right side of the face and PW.4, PW.5 and PW.6 stated that the deceased inflicted the injury by the sword and he admitted it before them. Hence, there is sufficient corroboration in the medical evidence and ocular evidence. 33. As per FSL Report, Ex. P/22, blood stained soil, blouse, petikot, saree, sword, pent and shirt were found to be stained with human blood of B-group. As such it is also proved that the injuries inflicted to the deceased were from the sword, which was recovered from the conscious possession of the accused and the same blood group was found on the garments of the accused as well as on the recovered sword, which also corroborates the statements of PW.4, PW. 5 and PW.6. 34. Considering the above discussed evidence, we find sufficient corroboration in the evidence of the prosecution witnesses, who supported the version of the prosecution witnesses, who supported the version of the prosecution case. 5 and PW.6. 34. Considering the above discussed evidence, we find sufficient corroboration in the evidence of the prosecution witnesses, who supported the version of the prosecution witnesses, who supported the version of the prosecution case. In view of the above, we have no hesitation in holding that the prosecution could prove, by adducing cogent and reliable evidence, beyond all reasonable doubt, that the appellant-accused caused the death of deceased by inflicting blows with the sword and thus, he was guilty of committing culpable homicide. 35. Now, the question is whether the appellant was guilty of murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 IPC. 36. Except in the cases mentioned in Section 300 IPC, culpable homicide is murder, if the act by which the death is caused is one with the intention of causing death, or secondly- if it is done with the intention of causing such bodily injury as the offender known to be likely to cause the death of a person to whom the harm is caused or, thirdly-if it is done 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 fourthly-if the person committing the act knows that it is so eminently dangerous that it must, in all probability cause death or such a bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Section 300 IPC provides the following exceptions. "Exception 1. - When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisions:- First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondary.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Secondary.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception.2.-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. Exception.3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. 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 having taken undue advantage or acted in a cruel or unusual manner. Explanation.-It immaterial in such cases which party offers the provocation or commits the first assault. Exception 5. - Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 37. Under the first exception, culpable homicide is not murder if the offender, whilst deprived of the power of the self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Similarly, under the fourth exception, if the death is caused without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner, the death does not amount to murder. Similarly, under the fourth exception, if the death is caused without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner, the death does not amount to murder. Culpable homicide and murder involves the killing of a person. What distinguishes these two offences is the presence of a special mens rea, which consists of four mental attitudes in the presence of any of mental attitudes are stated in Section 300 IPC distinguishing murder from culpable homicide. 38. The punishment for culpable homicide, not amounted to murder, has been prescribed in Section 304 IPC. Section 304 IPC reads as follows:- "304. Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 39. Under Section 304 IPC, depending upon different circumstances, two kinds of punishments have been prescribed. Firstly, under Part -1 of Section 304 IPC, if the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life or imprisonment of other description for a term which may exceed to 10 years and fine. Secondly, if the act is done with knowledge that it is likely to cause death but without any intention to cause death, for such bodily injury, as is likely to cause death, the punishment is imprisonment of either description for a term, which may extend to 10 years or with fine or with both. Secondly, if the act is done with knowledge that it is likely to cause death but without any intention to cause death, for such bodily injury, as is likely to cause death, the punishment is imprisonment of either description for a term, which may extend to 10 years or with fine or with both. Therefore, if the act is done with intention of causing death, for such bodily injury, as is likely to cause death, then the offender is liable for Part I of Section 304 IPC. Whereas, if the act is done with knowledge that it is likely to cause death but without any intention to cause death, then the offence committed by the person would fall under Part II of Section 304 IPC. 40. In view of the above, in a murder case, the court is required to make proper appreciation of the evidence and of law before reaching the conclusion that the case proved is culpable homicide, because all "murder" is "culpable homicide" but not vice-versa. "Culpable homicide" sans "special characteristics of murder" as defined in Section 300 IPC is culpable homicide not amounting to murder. 41. PW.4 Ladki and PW.5 Champi admitted in their cross-examinations that Shanker was mentally disturbed and a sacred string was got prepared from Dhula Bhagat and that was given to be worn by Shanker due to which, he was annoyed. On being pressurised to do so, Shanker lost his cool and self control and consequently, inflicted injuries in a sudden provocation to deceased by the sword, which was already there is the house. It is not that he had collected the said sword from other place for the purpose of assaulting the deceased. So, admittedly, he used whatever was there as a weapon of assault. There is nothing on record to show that he had any pre-meditation to assault or kill his wife. If he had any such pre-meditation to kill the deceased, he could have inflicted several blows. Of course, there were two incised wounds, one on neck and other on right mandible. If he had intention to kill, he could have struck the other blows also on the neck itself. 42. From the evidence on record, as discussed above, it has been found that the deceased (wife of the accused) and mother of accused forced him to wear the string against his will, due to which he became annoyed. If he had intention to kill, he could have struck the other blows also on the neck itself. 42. From the evidence on record, as discussed above, it has been found that the deceased (wife of the accused) and mother of accused forced him to wear the string against his will, due to which he became annoyed. The deceased and mother of accused picked up quarrel with the appellant-accused in connection with the string, which was sufficient to provoke him. On being so provoked, the appellant-accused, in all probability, lost his cool and self control and consequently, retaliated by giving blow with the sword, which was there in the house. It is not that he had collected the said sword from other place for the purpose of assaulting deceased. So, apparently, he used the sword which was easily available in the house as a weapon of assault. There is nothing on record to show that he had any premeditation to assault or kill his wife. If he had any such premeditation to kill the deceased, he could have inflicted several blows in furtherance of such intention. Of course, he gave only two blows, i.e. one on the mandible and the other below the right ear. If he had intention to kill, he could have struck second blow also on the neck itself. The deceased, as revealed from evidence on record, firstly forced the accused with her mother-in-law, to wear the string against his will, which provoked him. Had the deceased not picked up the quarrel and provoked the appellant by forcing him to wear string, as indicated above attending circumstances, the appellant would not have assaulted the deceased. Therefore, as the offence was committed, without any premeditation, in a sudden fight, heat of passion upon said quarrel, on being provoked by the deceased and mother of appellant and without the offender having taken undue advantage or acted in an unusual manner, the same is covered by the First and Fourth exceptions aforesaid. 43. In view of the above, we are inclined to hold that the appellant committed offence of culpable homicide not amounting to murder, i.e., offence under Section 304 IPC. 44. In the present case, the appellant inflicted blow on the right mandible with a sharp object. 43. In view of the above, we are inclined to hold that the appellant committed offence of culpable homicide not amounting to murder, i.e., offence under Section 304 IPC. 44. In the present case, the appellant inflicted blow on the right mandible with a sharp object. It is within the common knowledge of a normal person that any assault on the neck or head with such a heavy and sharp object is likely to cause death. Hence, the injury caused by the appellant was a bodily injury as was likely to cause death, therefore, in our considered opinion, the offence committed by the appellant is covered by Section 304 Part-I IPC, the punishment prescribed for which is imprisonment for life or imprisonment of either description for a term, which may extend to 10 years and fine. 45. The appellant, who was about 30 years at the time of his conviction, has already suffered rigorous imprisonment for more than 8 years, therefore, considering all the aspects of thee matter and the attending facts and circumstances, in which, the offence was committed, we are of the considered opinion that rigorous imprisonment for 10 years with fine will be sufficient to meet the ends of justice. 46. Accordingly the conviction under Section 302 IPC is modified to one Section 304 Part I IPC and the appellant is sentenced to suffer rigorous imprisonment for 10 years, without interfering with the sentence regarding payment of fine. 47. Thus, the appeal is partly allowed with the modification, as indicated above.