IMPORTANT POINT
Death due to single blow by wooden object without much force as a result of sudden altercation cannot falls u/s 302 and it falls u/s 304 Part II.

JUDGMENT :

A.K.SIKRI, J.

1. Leave granted.

2. We have heard learned counsel for the parties at this stage.

3. The appellant herein has been convicted by the Trial Court for an offence under Section 302 of the Indian Penal Code, 1860 (IPC) and sentenced to undergo life imprisonment and pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months. This conviction and sentence has been upheld by the High Court vide impugned judgment dated 29.09.2015.

4. In the Special Leave Petition filed by the appellant against the said judgment, notice was issued on the limited aspect as to whether the conviction under Section 302 IPC is justified or it should be converted into one under Section 304 IPC. The matter has been considered focusing on this aspect. We may now recapitulate the facts in brief.

5. According to the prosecution case, original complainant of this case namely, Shantaben @ Dhaniben Somabhai, is the mother of deceased Shakuben. She lodged a complaint before Nabipur Police on 15.03.2008 that her daughter deceased Shakuben was married to accused Lavghanbhai Devjibhai Vasava in Fichwada village about eight years ago. Deceased Shakuben and the accused had been living in Navinagri of Shahpura, the village of the complainant, for about one year and maintaining themselves by doing labour work. In the morning on the day of the incident, deceased Shakuben and her mother Shantaben had gone for labour-work of weeding in the farm of Patel of the village where crop of ladies' finger had been cultivated. They returned home at about 1200 hrs. in noon for having their meal and her daughter went to her house. When the complainant was at her house, Vishnu, aged 6 years, son of deceased Shakuben came to her house and told that his mother has been hit with leg of a cot on her head and she was bleeding. Therefore, she immediately went to the house of the deceased. At that time, deceased Shakuben was lying near hearth in the house in an unconscious state and a blood stained leg of cot was lying there. It was known from the people gathered there that an altercation took place between the deceased and the accused in connection with preparing food. As the accused got instigated, he hit leg of cot on the head of the deceased and ran away. As the deceased was bleeding from her head, Kaliben daughter of the complainant, Lalo Amir Vasava resident of her street and Dinesh Kashibhai Vasava took deceased Shakuben to a hospital at Bharuch in an auto rickshaw of Pravinbhai Gopalbhai, resident of the village. The complainant returned to her house. Pravinbhai returned home with his rickshaw in evening and told that the deceased has been sent to Vadodara from Bharuch for further treatment. Thus, under such circumstances, the original complainant Shantaben lodged a complaint before the police.

6. As aforesaid, on the conclusion of the trial and after appreciating the oral and documentary evidence, the Trial Court returned a finding of guilt against the appellant and convicted and sentenced him under Section 302 IPC. As far as event/occurrence is concerned, that stands proved and to that extent judgments of the courts below are without any infirmity. As mentioned above, the only question is as to whether it was a case for conviction under Section 302 IPC or 304 IPC.

7. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15.03.2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of moment, he picked a wooden object lying near the place of incident and inflicted injury to the deceased. It is also an admitt