IMPORTANT POINTS
To prove applicability of exceptions under section 300 IPC, the Test is one of preponderance of probability.
In case of no provocation Section 304 Part I IPC would not be attracted.

JUDGMENT

K. M. Joseph, J.

By the impugned judgment the High court has affirmed the Judgment of the learned Principal Sessions Judge, Ernakulam convicting the appellant under section 302 of the Indian Penal Code (for short "IPC") and sentencing him to rigorous imprisonment for life and a fine of Rs. 10,000/-.

2 . The deceased was the wife of the appellant.

3. The appellant and his mother were charge-sheeted under Sections 498-A and 302 read with Section 34 of the IPC alleging cruelty and for causing the death of the appellant's wife. By order dated 18.2.2005, the accused were acquitted. Thereafter, the mother of the appellant expired. A Division Bench of the Kerala High Court vide judgment dated 29/03/2012 however, allowed the criminal appeal filed by the State against acquittal and set aside the acquittal insofar as it related to the appellant and the matter was remanded back with a direction to dispose of the case by continuing proceedings from the stage of examination under Section 313 Cr.PC. It is after the remand that the Principal Sessions Judge, Ernakulam, convicted the appellant under Section 302 of the IPC as we have already noted. The High Court by the impugned judgment has concurred with the view taken by the trial Court.

4. We heard Mr. Renjith B. Marar, learned counsel for the appellant and learned counsel appearing on behalf of the respondent. Notice was issued in the SLP noticing that the counsel for the appellant has confined the submission to the plea of alteration of the conviction under Section 302 of the IPC to under Section 304 Part-II of the IPC. Learned counsel for the appellant would point out that this is a case where the deceased though conceived a child there was an abortion. She had depression. The appellant was given to drink on the fateful night. According to the prosecution case there was a quarrel. He would point out that though it is true that the appellant may have set up a case that his wife has committed suicide that should not detract the court from considering the case as per law. Expatiating he contended that appellant must be extended the benefit of exception 4 to Section 300 of the IPC which declares that culpable homicide is not murder if it is committed in a sudden fight without their being pre-meditation and in the heat of passion upon a sudden quarrel without the offender taking undue advantage and acting in a cruel and unusual manner. The explanation to Exception 4 to Section 300 undoubtedly provides that it is immaterial in such a case which party offers the provocation or commits the first assault. Learned counsel would point out that according to the prosecution version, appellant in fact, on that evening went to the house of PW 7 to PW9 with whom he had drinks. The deceased went there on account of his drinks. He had to be supported back home by the wife. He relied on the following judgments:

(1) (1976) 2 SCC 798 Partap vs. State of Uttar Pradesh.

(2) (1996) 6 SCC 457 Periasami and Another vs. State of Tamil Nadu.

(3) (1998) 4 SCC 336 State of U.P. vs. Lakhmi.

He would also submit that the Court has found that the appellant has suffered injuries. This strengthened the appellant's case based on their being a quarrel and therefore this is a fit case where the conviction must be altered from Section 302 of the IPC to Section 304 Part II of the IPC. He points out that the court has acquitted him of the charge under Section 498A which means there was no matrimonial cruelty practised by the appellant on his late wife.

5. Per contra, the learned counsel for the respondent-State strenuously supported the order of the High Court. He would point out that this is a clear case of murder by throttling.

PROSECUTION CASE

6. The appellant married Jessy on 31.8.1997. Ever since marriage, it is the case of the prosecution that Jessy was being subjected to physical and mental cruelty in the hands of appellant and his mother. On 11.10.1998, the fateful day, the mother of the appellant created scene at their