B.K. Behera, J.
1. Hare is an unfortunate case of a husband killing his wife by dealing fist blows and kicks on her stomach and other parts and the death was owing to rupture of the liver as a result of the assault by the appellant on October 22, 1980, at Bhubneswar. Equally unfortunate, however, is the order of conviction recorded against the appellant under Section 302 of the Indian Penal Code (for short, 'the Code') sentencing him to undergo imprisonment for life in a case of this nature by wrongly applying the fourth clause of Section 300 of the Code.
2. As regards the assault by the appellant on the person of his wife (to be described hereinafter as the 'deceased'), there was the clear and cogent evidence of three close neigbours of the appellant (P. Ws. 1 to 3) who had testified that after a sudden quarrel, the appellant had dealt kicks and fist blows on person of his wife who fell down and ultimately died. We are, however, not prepared to place any reliance on the testimony of P. W. 5 in this regard as he had made no statement either under Section 161 or 164 of the Code of Criminal Procedure that he had witnessed the assault on the person of the deceased by the appellant. P. Ws. 4 and 6, the mother and brother respectively of the appellant, understandably did not support the case of the prosecution and were put leading questions by it. Two witnesses for the defence including the father-in-law of the appellant had been examined to say that no such occurrence had taken place. In our view, the evidence of P. Ws. 1 to 3 far outweighed the testimony of the two witness examined for the defence and the ocular testimony did get ample support from the medical evidence.
3. Having considered the evidence of P. Ws. 1 to 3 coupled with the medical evidence which would show that the death of the deceased was homicidal in nature, we are not prepared to accept the contention raised by Mr. Das for the appellant that the evidence of P. Ws. 1 to 3 was not worthy of credence.
4. The learned Sessions Judge has convicted the appellant under Section 302 of the Code by applying the fourth clause of Section 300 of the Code. Under this provision, except in the cases excepted in Section 300 of the Code, Culpable homicide is murder if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excise for incurring the risk of causing death or such injury as aforesaid.
5. The fourth clause of Section 300 of the Code deals with cases where an act which is dangerous is done, without any intention to till a particular person, but with knowledge that death is very likely and that such act is done without any excuse. It contemplates imminently dangerous acts which must in all probability cause death. Under this clause, there is no intention to cause the death of any one in particular and it is applied to cases where there is no intention to cause harm to any particular individual, but which results in general disregard to human life and safety. This clause enshrines the doctrine of universal malice. As has been laid down in AIR 1966 S. C 1874 : Rajwant Singh v. State of Kerala and AIR 1968 S. C. 881 : State of Madhya Pradesh v. Ram Prasad, this clause is usually invoked in cases where there is no intention to cause death of any particular person. It is to be applied to these cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to came death.
6. In the instant case, all that the appellant did was that he dealt some fist blows and kicks on the person of his wife after a sudden quarrel. In the circumstances in which the appellant had been placed and regard being had to the acts committed by him, the application of the fourth clause of Section 300 was grossly misconceived. The appellant could not be attributed with the intention to cause the death of the deceased. It could not also be said that he had the knowledge that by his act, he was likely to cause the death of the deceased. In the absence of proof of intention or knowledge, the offence committed by a person would be voluntarily causing grievous hurt or hurts, as the cause may be. As there had been rupture of the liver which resulted in the death of the deceased, it would be legal, reasonable and appropriate to hold that the appellant had voluntarily caused grievous hurt to the deceased punishable under Section 325 of the Code.
7. After his conviction, the appellant has been undergoing imprisonment for about three and a half years. In our view, the sentence already undergone by him would meet the ends of justice.
8. In the result, the appeal is allowed in part. The order of conviction and sentence passed against the appellant under Section 302 of the Indian Penal Code is set aside and in lieu there of, he is convicted under Section 325 of the Indian Penal Code and sentenced there under to undergo imprisonment which he has already undergone. The appellant be set at liberty forthwith.
9. Before we part with this appeal, we would like to keep on record a very disquieting feature at the trial. In flagrant violation of the provisions made under Section 162 of the Code of Criminal Procedure, the trial Court allowed the prosecution to draw the attention of P. W. 1 to some statements said to have been made in the course of investigation. A statement made by a person in the course of investigation can only be used to contradict a witness examined by the prosecution and not a defence witness or a Court witness.
G.B. Pattnaik, J.
10. I agree.