JUDGMENT
M.F. Saldanha, J.
1. The short point that arises for determination in this criminal appeal centres around the interesting question as to whether, in the course of a sporadic assault that takes place between two persons obviously under the influence of alcohol and one that is preceded by a vocal altercation involving very offensive abuse, can be categorised as an offence of murder merely because the deceased has died on the spot. The issue arises out of an incident that took place at Kowdoor Village, Karkala on 21-7-1994 at about 8.00 p.m. The accused Appu alias Apoli Maistry and the deceased Appu Harijana had both come out of an arrack shop, the accused was riding a bicycle slowly and the deceased was walking behind him and the evidence indicates that they were abusing each other in very foul language. The accused is alleged to have knocked Appu down with his bicycle after which he lifted the bicycle and threw it on Appu. Thereafter, it is alleged that he lifted a stone M.O. 3 and assaulted Appu twice on the head by means of that stone. M.O. 3 is a relatively large stone measuring 9 1/2″ x 7 1/2″ x 5″ and weighing about 20 K.Gs. and because of the impact from the stone, Appu sustained a fracture of the skull which resulted in his death. A complaint was lodged with the police on the next morning at 9.45 a.m. by P.W. 1 and the police thereafter came to the village and commenced their investigation. The incident had been witnessed by P.W. 1 and some others who clearly indicated the name of the accused as the assailant. The accused was arrested and on completion of the investigation, he was charge-sheeted for an offence punishable under Section 302, Indian Penal Code. The learned Trial Judge at the conclusion of the trial held the accused guilty of the offence of murder and convicted him and sentenced him to suffer R.I. for life. The present appeal is directed against that conviction and sentence.
2. At the hearing of the appeal Smt. Anasuya on behalf of the appellant and Sri Koti, learned Additional State Public Prosecutor have taken us through the entire record and advanced their submissions. The principle challenge to the conviction is on the ground that the only available evidence is that of P.W. 1 who states that he had gone to the grocery shop on that night when he saw the accused and the deceased emerging out of the arrack shop in a drunken condition abusing each other in very foul language. He states that the accused knocked the deceased down with his bicycle, that he threw the bicycle on him and that he also picked up M.O. 3 and assaulted him twice on the head with the stone. Appu, who had fallen on the ground and was bleeding profusely, died as a result of the assault and the accused took the bicycle and went away from that place. This witness has been cross-examined to a considerable extent and what emerges is that his evidence remains unshaken. The defence has not been able to suggest any reason why P.W. 1 should falsely implicate the accused nor has it been able to suggest any hostility between the parties. We find that the evidence is reliable and furthermore that P.W. 1 being a relation of the deceased not only knew him but also knew the identity of the accused as they both hail from the same village. There is no dispute about the fact that he witnessed the incident at close quarters and that there was sufficient light for him to see the incident and identify the persons.
3. Smt. Anasuya has submitted that there is no corroboration to this evidence and furthermore that it would be highly dangerous to rely on a single witness in a serious case of this type. Her submission is that if, as appears, the deceased was drunk and was using bad language that he must have invited an assault from any of the passers-by and her further submission is that having regard to his age and condition, had he sustained a fall as a result of any such beating that such injuries are most likely considering the fact that a large stone was lying at that place.
4. On the other hand, Sri Koti has pointed out to us that none of these theories can be even considered by the Court because we have an eye-witness in this case and where the evidence is reliable and conclusive, that there is no scope for propounding other possible explanations. He has also demonstrated to us that the nature of the injuries sustained by the deceased on the head are so serious that they could not be the result of a fall or of an assault from the passers-by who might have been annoyed with the deceased because of his drunken condition and bad language. His submission is that the Trial Court has carefully assessed the evidence and recorded a finding and that there is virtually no ground to interfere with that verdict.
5. We have carefully considered the evidence of P.W. 1 which inspires confidence in our minds and we have also noted that the version set out by P.W. 1 is completely and fully corroborated by the medical evidence. In this background, no case has been made out for interference with the finding recorded by the Trial Court that it was the accused who assaulted the deceased and inflicted the injuries in question on him.
6. Smt. Anasuya has then advanced another argument whereby she has submitted that the Trial Court was in error in having overlooked the fact that the deceased was admittedly under the influence of alcohol and from the words that have been reproduced by P.W. 1, it is also established that he was using extremely foul and provocative language. From the reaction of the accused as described by P.W. 1 it is clear that his condition was not very different from that of Appu and her submission is that in this background if the accused virtually flew into a rage and assaulted the deceased, that in the absence of any pre-meditation, that the offence could only be one of culpable homicide not amounting to murder. Smt. Anasuya has also sought to contend that the accused had been acting under provocation and she even went to the extent of pointing out that the accused was also under the influence of alcohol and that the Court must also make ah allowance for this last condition of his position.
7. Mr. Koti was quick to react to this last submission and rightly so, when he pointed out to us that in law, if the accused has put himself in that condition by consuming alcohol that he cannot take advantage of his own wrong and plead this as a defence in a case where he is the aggressor. This position is absolutely correct in law and we refuse to take cognizance of the last part of the defence submission on this ground.
8. Smt. Anasuya has relied on a decision of the Supreme Court in the case in Zala Chandubha Hematsingh v State of Gujarat, wherein, under more or less similar circumstances where the accused picked up a stone and hurled it at the deceased resulting in his death, the Supreme Court held that the conviction would come under Section 304-II, Indian Penal Code. What we take note of is, the special position in law whereby the law takes cognizance of the temporary loss of control that results in a situation where there is grave and sudden provocation, The facts indicate that due to the abuses that were being exchanged, that the tempers were obviously rising and it is very clear from the sequence of events before us that a stage was reached when the accused who was the younger of the two virtually exploded into fury. This had very little to do with the alcohol that he had consumed because the eye-witness indicates that the assault was preceded for quite some time by the exchange of abuses between the two. Also, the accused was sober and stable enough to ride his bicycle and it is obvious to the Court from what happened in this case that it is because of the utterance of the highly provocative word that also has a very foul connotation that the accused reacted violently. It was the deceased who had given cause for this and unfortunately, he was at the receiving end. We uphold the submission canvassed by Mr. Koti that even if the accused acted in a sense of fury that in assaulting the deceased with a huge stone on a vital part of the body the accused cannot be absolved from the consequences of such a grave act which was obviously one that was life threatening. Under these circumstances, all that the law permits is that this material which
has been unfortunately overlooked by the Trial Court, be taken note of and the offence be properly categorised having regard to what exactly had happened. As indicated by us earlier the Supreme Court in more or less similar circumstances recorded a conviction under Section 304-II, Indian Penal Code and in our considered view, the accused in the present case would be liable under the same section.
9. The appeal partially succeeds, the conviction and sentence awarded to the appellant under Section 302, Indian Penal Code is set aside and in its place, the appellant is convicted of the offence punishable under Section 304-II, Indian Penal Code and it is directed that he shall undergo R.I. for a period of seven years. The appellant shall be entitled to set off for the period undergone by him in custody.
10. The appeal partially succeeds to this extent and stands disposed off.