Judgment Ashim Kumar Banerjee, J. Backdrop On April 10, 2011 one Mahadev Biswas the appellant above named went to the Havelock police station and informed the police personnel present there, he committed murder of his wife Smti Jhunu Biswas in the intervening night of April, 9 and April 10, 2011. He subsequently pleaded “not guilty”. He was charged with the offence under section 302 of the Indian Penal Code. Hence his trial. EVIDENCE THAT THE PROSECUTION LED BEFORE THE COURT OF SESSION The prosecution examined 16 witnesses that would include the Doctor who conducted the post-mortem and also the police personnel involved in the investigation. PW-1 Shri S. Mohan PW-1 the Sub Inspector of police deposed, he was in his quarter when Head Moharir of the police station M.S. Yadav called him. He found Mahadev Biswas present. He was told, last night he had quarrelled with his wife and out of the rage and instigation he strangulated his wife, possibly she died. He along with the other police personnel went to the place of occurrence. On entering the room he saw the victim lying on the floor and one child being 5 to 6 years old was sleeping beside her. He also found froth coming out of the mouth of the victim. There was imprint of finger on her neck. He informed the Station House officer who directed him to post sentries. After coming back, he lodged FIR in the police station. In cross examination, he admitted not having informed any Doctor. He did not make any arrangement for taking the body of the victim to the hospital. Between the police station and the place of occurrence PHC was situated. He denied the suggestion, no sign of strangulation was present or any blood was oozing out from the nostrils of the victim. PW-2 Smti. Sabita Roy She was the Sarpanch. She accompanied the police to the place of occurrence. She found the dead body lying in the middle of the room. She also found the daughter of the victim sleeping there. She knew Mahadev Biswas. His wife came to Havelock two and half months prior to her death. They were residents of mainland earlier. The couple approached her one month prior to the incident. The victim told her, she wanted to go back to mainland with her husband whereas the husband was not willing. She knew Mahadev Biswas. His wife came to Havelock two and half months prior to her death. They were residents of mainland earlier. The couple approached her one month prior to the incident. The victim told her, she wanted to go back to mainland with her husband whereas the husband was not willing. The relationship between them was not very cordial. She also deposed, some froth was coming out from her mouth. During cross examination, she admitted not having any documentary evidence to the issue of approach by couple mentioned by her earlier. She also admitted, she did not make any complain with local police station with regard thereto. She denied the suggestion, the victim did not disclose that she had insisted her husband to go back to mainland. PW-3 Shri. Ranjan Samadar The witness was the Pradhan. He got the phone call from police station. He visited the spot and found the dead body. He witnessed the inquest and signed the inquest report. He contacted the father of the victim. The dead body was handed over to the brother of the accused on the next date. He put his signature on exhibit 3/1 during handing over. Wearing apparels of victim were seized. He identified the signature on the seizure memo. He admitted, the couple was known to him. Their relationship was not cordial. They visited panchayat number of times. She wanted to take her husband to mainland but the husband refused on the ground that he had not enough money. During cross examination, the witness admitted, he did not have any proof of visit of the couple at the panchayat. He also admitted, he did not make any statement to the police on the victim’s insistence to go back to mainland along with husband. He had police case pending in the court of learned Chief Judicial Magistrate. He was the first private individual to see the dead body. The distance between his house and the place of occurrence was 150 meters. He denied the suggestion, he did not visit the place of occurrence or the victim had any mark of strangulation. PW-4 K. Asaitambi PW-4 was a Sweeper. He assisted the doctor in postmortem. He identified his signature on the seizure list. PW-5 Shri M.Bhupathy Rao:- PW-5 was a business man. He was witness to the seizure conducted by police at the hospital. PW-4 K. Asaitambi PW-4 was a Sweeper. He assisted the doctor in postmortem. He identified his signature on the seizure list. PW-5 Shri M.Bhupathy Rao:- PW-5 was a business man. He was witness to the seizure conducted by police at the hospital. PW-6 Shri. Swapan Majhi:- PW-6 was an agricultural labour. He was neighbour of the couple. On the preceding night the couple had a quarrel on the question of return to mainland. Wife insisted to go back to Kolkata to which the husband refused. He tried to persuade them not to quarrel. After 15 minutes he and his wife came back. He came to know from the police that Mahadev had killed his wife by strangulation. He also saw froth coming out of the mouth of the body. He was also witness to the inquest. He denied the suggestion; he did not visit the house of the couple on the preceding night. PW-7 Smti. Sandhya Majhi PW-7 was tendered for cross examination that was declined. PW-8 Shri. M. Vallab Rao:- PW-8 was a fisherman. While he was returning home he met Mahadev Biswas near police station. On a quarry made by him, Mahadev admitted to have quarrel with his wife that he came to report to the police. Witness was declared hostile. During cross examination, the witness admitted to have made statement before police that Mahadev had told him that he had quarrel with his wife and out of heat of moment he had killed his wife by strangulation. He initially did not believe Mahadev. However, when he went to the house of Mahadev and found the dead body of his wife he believed it. He denied suggestion made by the defence, he did not see Mahadev near police station or that Mahadev did not make any confession before him. PW-9 Shri. Ranjit Mallick PW-9 was brother of Mahadev. He was fisherman. Mahadev was living in Havelock for last eight years. Initially he was alone, then he started living with his wife and daughter. He was also a fisherman. He did not know about the ‘accident’. He found Mahadev sitting in the police station. He took custody of the dead body and signed the receipt. He was also declared hostile by the prosecution. During cross examination he admitted, the couple had quarrel almost every day. He advised the couple to leave apart from his neighbourhood. He did not know about the ‘accident’. He found Mahadev sitting in the police station. He took custody of the dead body and signed the receipt. He was also declared hostile by the prosecution. During cross examination he admitted, the couple had quarrel almost every day. He advised the couple to leave apart from his neighbourhood. Mahadev was not living with him in the same premises. He did not make any statement before the police, Mahadev had killed his wife. PW-10 Shri. Kamal Sikdar PW-10 was a member of Gram Panchayat. He also saw the dead body. In his presence the dead body was handed over to Ranjit. The victim was known to him. The couple had quarrel among themselves. The couple also approached the panchayat with their dispute to effect, the wife wanted to go back to Kolkata. Panchayat tried to resolve the issue however, that yielded no result. Mahadev used to spend money for Ranjeet as stated by the victim. PW-11 Shri. Samar Chand Bachar PW-11 was a constable. He was posted at the place of occurrence. He saw the dead body lying at the place of occurrence. PW-12 Shri. Abhijit Roy PW-12 another constable was tendered for cross examination that was declined. PW-13 Dr. B.Ajit Kumar PW-13 the Medical Officer at G.B. Pant Hospital examined the accused. He found no injury on his body. The accused also did not complain of any injury. PW-14 Dr. Ashok Pal Govind PW-14 was the Autopsy Surgeon. He found, the cause of death was asphyxia as a result of pressing the neck with both the hands and was homicidal in nature. PW-15 Shri. Joydev Mitra PW-15 was a Photographer. He proved the photograph of the dead body that he had taken during the inquest. PW-16 Abita Bachan PW-16 was the Enquiry officer. He narrated in detail the process of investigation that supported the prosecution story. ACCUSED Accused was examined under section 313 of the Code of Criminal Procedure. He denied the charge. He stated, while he was returning after catching fish the police arrested him and the allegations against him were not true. Defence did not adduce any evidence. JUDGMENT AND ORDER IMPUGNED The learned session judge considered the evidence. Learned judge also considered the contention of the defence to the effect, the extra judicial confession sought to have been made by the accused should not be taken into consideration. Defence did not adduce any evidence. JUDGMENT AND ORDER IMPUGNED The learned session judge considered the evidence. Learned judge also considered the contention of the defence to the effect, the extra judicial confession sought to have been made by the accused should not be taken into consideration. The learned Judge rejected such contention distinguishing the decisions of the Apex Court in the case Balwinder Singh vs. State of Punjab reported in 1995 (Sup) (4) SCC page 259 and decision in the case of D. Vankata Reddy vs. R. Sultan reported in AIR 1976 SC 1620. The learned Judge rather relied on the decision in the case of Narayan Singh and others vs. State of M.P. reported in 1985 Vol. 4 SCC page 26 and observed, it was not open to the court to start with a presumption that extra-judicial confession was always a weak type of evidence and it would depend on the nature of circumstances, the time when the confession was made and the credibility of witnesses who speak for such a confession. He also relied upon the decision in the case of Gura Singh vs. State of Rajasthan reported in AIR 2001 SC page 330 and in the case of Kalpana Mazumdar vs. State of Orissa reported in AIR 2002 SC page 2826. The learned Judge considered each and every piece of evidence including the evidence of the police officer and held, there was no major inconsistency or contradiction that transpired from the cross examination of the prosecution witnesses. He also rejected the contention of the defence, child witness was not examined. The learned Judge observed, the child was found sleeping hence; she could not be an eye witness. On a sum total of the evidence the learned Judge found the chain so complete without any brake it would lead to one conclusion of the guilt of accused. The learned Judge held the accused guilty of the offence committed under section 302 to the IPC and sentenced him for life. Hence, this appeal by the accused. CONTENTIONS Mr. Krishna Rao learned counsel appearing on behalf of the appellant would rely upon pages 51 and 71 of the paper book. Page 51 was the inquest report where the police recorded the fact, couple had quarrel in the preceding night on some family issue and in anger he strangled his wife. Hence, this appeal by the accused. CONTENTIONS Mr. Krishna Rao learned counsel appearing on behalf of the appellant would rely upon pages 51 and 71 of the paper book. Page 51 was the inquest report where the police recorded the fact, couple had quarrel in the preceding night on some family issue and in anger he strangled his wife. Page 71 was a part of the judgment of the learned Session Judge where the learned Judge considered the evidence of PW-6 the neighbour to the extent, wife had been pestering the husband to go back to Kolkata that husband had been refusing. PW-6 tried to persuade them not to quarrel. PW-8 even after being declared hostile stated in cross examination, the accused told him that he had a quarrel with his wife and out of heat of the moment he killed his wife by strangulation. Initially he did not believe the statement however, after finding the dead body he believed it. From the above facts, even if the learned Session Judge held the accused guilty of the offence, such offence could at best be considered as an offence under section 304 and not under section 302 in absence of any criminal intention or predetermination. Per contra, Mr. S.K. Mandal learned Public Prosecutor would contend, the witnesses were consistent on the long standing dispute between couple on the issue of their return to main land. The accused could not take shelter under section 304 in absence of any evidence of provocation from the side of the victim. The accused was perhaps frustrated with his wife because of her consistent plea of return to mainland that the accused refused. To get rid of his wife he committed the murder that would attract section 302. The learned Judge held so, rightly. OUR VIEW We have considered the evidence. On careful examination of the entire evidence we draw the picture as under: Mahadev was a fisherman. He was living alone at Havelock. He went to mainland and married the victim. A child was born out of the wedlock. It is not clear whether the couple had been residing in the mainland for some time after marriage. However the evidence would suggest, wife was determined to go back to mainland with the husband and the husband did not agree in absence of resource. He went to mainland and married the victim. A child was born out of the wedlock. It is not clear whether the couple had been residing in the mainland for some time after marriage. However the evidence would suggest, wife was determined to go back to mainland with the husband and the husband did not agree in absence of resource. Such difference of opinion between the couple always resulted consistent quarrel between them. It is thus not unlikely, on one such incidence of quarrel one party would lose his / her temper and attack the other one that might result in casualty. We are rather unable to find any predetermined approach of the accused or any mens rea that would have nexus with section 302. The evidence of PW-6 would definitely inspire confidence on us that the witness on the preceding night accompanied with his wife went to the house of the couple and tried to pacify them that yielded no result. They came back after 15 minutes. On a sum total of the evidence, we fully agree with the learned Session Judge that the chain was complete to hold the accused guilty of offence however, we join issue when the learned Session Judge would hold his guilt under section 302. According to us, it was a fit case where the accused should have been held guilty under section 304 as the death was caused due to strangulation on the spar of the moment. We thus intend to reduce the punishment. We are not oblivion of the fact, the couple had a child out of the wedlock who was 5 to 6 years old during the incident. We do not know how she is being brought up. The child was already deprived of her mother’s love and affection. Let the child get the father’s affection after he would complete his sentence. We are not oblivion of the fact, the couple had a child out of the wedlock who was 5 to 6 years old during the incident. We do not know how she is being brought up. The child was already deprived of her mother’s love and affection. Let the child get the father’s affection after he would complete his sentence. Section 304 would suggest, 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 without the intention of causing death, or 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. In our view, whereas result of provocation caused in a heat of passion upon a sudden quarrel, the accused caused injury to the victim such incident was a continuous sequence and conviction should be under section 304 and not section 302. In the case of R.C. Atodaria Vs. State of Gujarat reported in All India Reporter 1994 Supreme Court 1060 whole incident took place because of the quarrel that preceded. The Doctor found only one stab injury that caused the death of the victim. The Apex court observed, it would be difficult to hold that the accused had intended to cause such particular injury which had been found to be sufficient in the ordinary course of nature, to cause death. The Apex Court set aside the conviction under section 302 and sentenced the accused under section 304. We follow the same path. In the present case the wife was constantly insisting on returning to mainland whereas the husband was unable to accede to such request in absence of financial resource. Such insistence from the victim would certainly provoke the husband to attack the wife on the spar of moment and it is not unlikely, out of anger, as rightly recorded in the inquest report, he committed the crime. Such insistence from the victim would certainly provoke the husband to attack the wife on the spar of moment and it is not unlikely, out of anger, as rightly recorded in the inquest report, he committed the crime. RESULT We thus hold the accused guilty of offence under section 304 instead of 302 of the IPC and sentence him for five years rigorous imprisonment coupled with fine of Rs.2000 and in default to suffer simple imprisonment of two months. DIRECTION The judgment and order of learned Session Judge stands modified. The appeal is disposed of. The copy of the judgment and order be communicated to the accused in jail. We are told, the accused is in jail since April 10, 2011, the period under gone, be taken into consideration as part of his sufferance of sentence and be set off. The lower court records be sent down at once. I have the pleasure of going through the judgment and order of my learned brother. I fully endorse the same however, I wish to add few lines. Sentencing is an important task in the matters of crime. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The court has to take into consideration all aspects including social interest for award of appropriate punishment. To that effect, principles of penology had been laid down by this court from time to time. In the instant case, the imposition of the punishment of life imprisonment would deprive a daughter of companionship of her father during the formative years of her life and in our opinion the imprisonment of the petitioner for a period of five years would adequately serve the twin objectives of sentencing policy being deterrence and correction.