Now a days we hear lots about circumstantial evidence in television debate especially in #SushantSinghCase. How prosecution can prove case on basis of Circumstantial Evidence.
So let us first see what is legal provisions:
Since we are learning about evidence let us understand provisions of Evidence Act, 1872
Section 32 – Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:–
(1) when it relates to cause of death.-When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) or is made in course of business.-When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duly; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.
(3) or against interest of maker.-When the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
(4) or gives opinion as to public right or custom, or matters of general interests.-When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
(5) or relates to existence of relationship.-When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) or is made in will or deed relating to family affairs.-When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) or is document relating to transaction mentioned in section 13, clause (a).- When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).
(8) or is made by several persons and expresses feelings relevant to matter in question.-When the statement was made by a number of persons, and expressed feelings or impressions on their pan relevant to the matter in question.
Illustrations (a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.
(b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business that on a given day the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchants firm, by which she was chartered to their correspondents in London to whom the cargo was consigned, stating that me ship sailed on a given day from Bombay harbour, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.
(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.
(h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.
(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business is a relevant fact.
(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.
(l) The question is, what was the date of the birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.
(m) The question is, whether, and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.
(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Section 33 – Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated Evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable : Provided— that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Section 39 – What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.
Section 90A – Presumption as to electronic records five years old 1 [90A. Presumption as to electronic records five years old Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the digital signature which purports to be the digital signature of any particular person was so affixed by him or any person authorised by him in this behalf.
Explanation.-Electronic records are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they naturally be; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render such an origin probable. This Explanation applies also to section 81A.
Section 105 – Burden of proving that case of accused comes within exceptions When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. (b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control; The burden of proof is on A. (c) Section 325 of the Indian Penal Code (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances bringing the case under section 335 lies on A.
Section 106 – Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
LEGAL POSITION AS TO THE CASES BASED ON CIRCUMSTANTIAL EVIDENCE
Sunder @ Lala and Ors. Vs. State 2009 VII AD (Delhi) 615 it was held that: “It is settled law that circumstances play very important role in the appreciation of evidence. The conduct of witnesses is a very important facet to determine their creditworthiness. “
As evidence, there is no difference between direct and circumstantial evidence. The only difference is in that as proof, the former directly establishes the commission of the offence whereas the latter does so by placing circumstances which lead to irresistible inference of guilt.
Dukhram Nath Vs. Commercial Credit Corpn Ltd. The evidence has not to be considered merely as a number of bits of evidence, but the whole of it together and the cumulative effect of it has to be weighed.
AIR 1940 Oudh 35, (1939) OWN 1114). No distinction has, therefore, to be made between circumstantial and direct evidence. See Miran Baksh Vs. Emperor AIR 1931 Lah 529, 32 PLR 461; Thimma Vs. State of Mysore (1970) SCC (Cr) 320. The court must satisfy itself that the cumulative effect of the evidence, led by the prosecution, establishes the guilt of the accused beyond reasonable doubt. See Shanker Bhaka Narsale Vs. State of Maharashtra AIR 1972 SC 1171, (1972) UJ 811 (SC); Chanan Singh Vs. State of Haryana AIR 1971 SC 1554.
In Padala Veera Reddy v State of AP, AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. See Shivu & Anr. v R. G., High Court of Karnataka, 2007 Cr LJ 1806 (SC)
Guilt: In case of circumstantial evidence what requires is to prove guilt.
In Raju Vs. The State by Inspector of Police – AIR 2009 SC 2171, as regards circumstantial evidence, the Hon’ble Apex Court observed as under:
“7. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
In C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed that: ” In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence….” .
In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: ” (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
Sir Alfred Wills in his admirable book “Wills” Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled of the right to be acquitted” .
There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952.
In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed that: ” It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defense or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘ must’ or ‘ should’ and not ‘ may be’ established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
whether in a criminal case based on circumstantial evidence would the absence of proof of motive by the prosecution break the chain of incriminating evidence against the accused to entitle him to the acquittal?
In a case founded on circumstantial evidence the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The court must weight the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and sentence would follow.
Undoubtedly, in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offense does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction. When facts are clear it is immaterial that motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
Jurisprudence : Taylor’s Principles and Practice of Medical Jurisprudence,Thirteenth Edition 1984 by Keith Mant,Vol. I pps. 282, 283, 286, 287, 305; Gradwolh’s Legal Medicine, Second Edition Chapter 18, pps. 336, 337; Medical Jurisprudence by Raju & Jhala : Chapter XXI p.226; Medical jurisprudence and Toxicology, 13th Edn. by Modi p. 155, 156,159 and 161 and H.W.V. Cox’s Medical jurisprudence and Toxicology by Dr. Bernard Kinght, 5th Edn. in Chapter 1 p.207 and 213,
A study of medical jurisprudence establishes that the symptoms found at post-mortem are not uniform but variable depending on the compression employed on the neck and duration. It would be an inferential fact since direct evidence would rarely be available.
In Modi’s Medical Jurisprudence (Twenty-Second Edition) in the Chapter “Deaths From Asphyxia” while dealing with the topic of “Post-mortem Appearance” especially regarding “Ligature Mark”, the learned author-has stated as under on page 263: “Ligature mark is a well-defined and slightly depressed mark corresponding roughly to the breadth of the ligature, usually situated low down in the neck below the thyroid cartilage, and encircling the neck horizontally and completely. The pattern of the ligature may also be seen. Very often, there are abrasions and ecchymoses in the skin adjacent to the marks. In some cases, the mark in the neck may not be present at all, or may be very slight, if the ligature used is soft and yielding like a stocking or scarf, and if it is removed soon after death.. ” AIR 2003 SC 3975 Thaman Kumar Versus State of Union Territory of Chandigarh
ADDITIONAL/MISSING LINK IN THE CHAIN OF CIRCUMSTANCES
a duty is cast on the accused to explain the circumstances in which they parted company. The failure of the accused to explain the circumstances in which he parted company with the deceased may well serve as additional link in the chain of circumstances thereby fortifying the prosecution case. See Yogesh Karki v. State of Sikkim 2006 Cr LJ 509 (Sikkim) (DB).
Silence of inmates of the house about cause of the death of the victim, would become additional link in chain of circumstances. See Trimukh Maroti Kirkan v State of Maharashtra, 2007 Cr LJ 20 (SC). It is a well settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. See Swepan Patra v State of West Bengal (1999) 9 SCC 242; Anthony D’Souza & ors v State of Karnataka 2002 (10) AD 37 (SC) A false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. In such a situation a false answer can also be counted as providing ‘a missing link’ for completing the chain. See State of Maharashtra v Suresh 2000 (1) SCC 471, 2000 SCC (Cr) 263; Kuldeep Singh & ors v State of Rajasthan 2001 Cr LJ 479 (SC), (2000) 5 SCC 7; Joseph v State of Kerala AIR 2000 SC 1608, (2000) 5 Sec 197; Jalasab Shaikh v State of Goa AIR 2000 SC 571, 2000 AIR SCW 111.
Where the accused on being asked, offers no explanation or explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. See Chandrasekhar Kao v Ponna Satyanarayana AIR 2000 SC 2138, JT 2000 (6) 465 SC; State of Tamil Nadu v Rajendran AIR 1999 SC 3535, 1999 Cr LJ 4552; Hari Lal v State 2001 Cr LJ 695 (All) (DB); Madho Singh & etc v State of Rajasthan 2001 Cr LJ 2159 (Raj) (DB); Sonatan Mahalo v State of West Bengal 2001 Cr LJ 3470 (Cal) (DB).
Intoxication of victim:
Section 85 of IPC
Act of a person incapable of judgment by reason of intoxication caused against his will.—Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law; provided that the thing which intoxicated him was administered to him without his knowledge or against his will.
As the heading of the provision itself shows, intoxication must have been against his will and/or the thing which he intoxicated was administered to him without his knowledge. The expression ‘without his knowledge’ simply means an ignorance of the fact that what is being administered to him is or contains or is mixed with an intoxicant See Bablu alias Mubarik Hussain Vs State of Rajasthan (2007) Cr.L.J. 1160 (SC).
MURDER OR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER The question now arises whether in the given facts and circumstances of the case the accused has committed murder defined in section 300 IPC and made punishable under section 302 IPC or he has committed the offence of culpable homicide not amounting to murder as defined under section 299 IPC and made punishable under section 304 IPC. In Sunder Lal v. State of Rajasthan, 2007 Cri.L.J. 3281 : 2007(10) S.C.C. 371 it was held by the Hon’ble Apex Court as follows: “In the scheme of the IPC culpable homicide is genus and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide’ sans ‘special characteristics of murder is culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ‘culpable homicide of the first degree’. This is the gravest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offenses Section 299 Section 300″
In Lakhan alias Raju Baban Yedave’s case following observations were made: ” The evidence on record shows that the appellant did his best for pacifying that child but the said child did not keep coolness of mind. It continued crying. Therefore, it is possible that in the mood of annoyance on account of lack of maturity, the appellant might have tried to pacify that child in a rude way and that must have resulted in its suffocation. The evidence which is on record show that it was an act committed by the appellant without taking sufficient care or might have been also done in haste. But on account of absence of sufficient material on record, the learned Trial Judge was left with no alternative but to conclude that the act of the appellant was an act amounting to culpable homicide not amounting to murder. The learned trial Judge has given the reasons justifying the said conclusion. There was no reason for the appellant to commit the murder of his own child. It seems to be the rude action of ignorant, immature father. Therefore, this Court does not find any ground for setting aside the conclusions of the trial Judge holding that the appellant committed an offense punishable under Section 304(II) of IPC.”
In Lakhan alias Raju Baban Yedave ‘s case the Sessions Court convicted the accused under section 304 (Part II) for committing homicide of the child and also under section 506 IPC Part II for threatening and criminally intimidating his wife. The conviction was upheld by the Bombay High Court with the above observations. Likewise in the present case the accused has committed homicide by causing death of his daughter in a similar fashion. He was also intoxicated at the time of commission of offense though he himself is to be blamed for his intoxication. No motive to kill the child is attributed to the accused. Therefore, the facts and circumstances of the case show that accused has committed culpable homicide not amounting to murder punishable under section 304 (Part II) and not murder punishable under section 302 IPC. There cannot be any dispute to the legal proposition that accused charged with for the offense under section 302 IPC can be convicted for its minor offense under section 304 (Part II) IPC.