Gangaram vs State

Shivdayal, J.—The Appellant Gangaram has been convicted of the offence u/s 302 of the Penal Code and sentenced to imprisonment for life for killing his own wife Mst. Dewantin.

The case for the prosecution was that a couple of days prior to the night of occurrence, the accused happened to see his wife and some unknown man together, in a field. That man ran away on seeing the accused. The accused introgated his wife but she did not give out the name of that man. On the night between the 30th and the 31st December, 1960, when Gangaram and Dewantin were the only persons in a room of their house, the accused again asked his wife the name of that man, but she did not give out the name even on this occasion. Thereupon, the Appellant killed her by strangulation. He also tred a cloth tightly round his own neck. In the meantime Bania (P. W. 8), father of the accused, woke up when Agindas Choukidar who was on the usual rounds called out people by their names. Bania happened to hear some unusual sound coming from the room. He called out the accused and also Dewantin but neither of them responded. He then raised an alaram when villagers collected. The door of the room was chained from inside. Jhumuk (P. W. 3) was then asked to break open that door which he did. On the floor Dewantin was lying dead and the accused was also iying(sic) unconscious. On an effort being made for about two hours, the accused regained consciousness and then he confessed to the people that he had killed his wife, because he had seen her in a compromising position and inspite of his repeated interrogation she would not give out the name of that man.

That the accused and the deceased were the only two persons in the room at the time of the occurrence and the room was chained from inside is itself a very strong circumstance against the Appellant. The accused admits in his statement u/s 342, Criminal Procedure Code, that he and his wife were sleeping in the room all alone, but he denies that it was chained from inside. That the room was not chained from inside is amply falsified by the statements of Jhumuk and other prosecution witnesses, including Bania (P. W. 8). Jhumuk says that on an alarm having been raised by Bania, when he and other persons reached his house and there was no response from the inmates of the room, Bania requested Jhumuk to break open the door. He, therefore, used his Sabbal and the door was broken open. Jhumuk is corro-barated by other witnesses. There is no reason to disbelieve him.

The accused does not explain in his statement u/s 342, Criminal Procedure Code, how his wife was killed.

The presence of the accused and the only other person beside the deceased and his own conduct in tying a cloth round his own neck are incompatible with his innocence and they point only to one conclusion that it was the accused who killed his wife.

When the accused regained consciousness, he immediately confessed his guilt to the villagers who were around him and he also gave the reason for the gruesome murder. Agindas Kotwar (P. W. 1) says that after the accused was brought back to senses he was asked what had happened. He told the people that he had killed his wife because she was unfaithful and that he had been asking her for the previous three or four days, but she was not giving out the name of the man. He, therefore, strangulated her and he also wanted to commit suicide. On being pointedly asked in cross-examination, the witness says that the accused told them to have seen his wife in a compromising position with an unknown boy. Jhumuk (P. W. 3) corroborates him. Chandulal (P W 6) also corroborates him. Sukiram (V. W. 7) is a Vaidya of the village. He supports the prosecution case in so far as it was he who was summoned soon after the door had been opened. He found Dewantin dead but Gangaram was alive. When Gangaram was brought back to consciousness and was interrogated, he replied that he had killed his wile by strangulation. There is absolutely no ground for not relying on any of these witnesses. There was no suggestion in the cross-examination nor before us that any of them bore any grudge against Gangaram or his father.

It is, however, urged by Shri Dharm-adhikari that the prosecution witnesses were unable to give out the exact words used by the accused and for that reason the extra-judicial confession cannot be relied on. In our opinion that is no more good law. It is a matter of common experience that a person would not always be able to reproduce exactly the words which he heard, even a few hours before he is asked to do so. No doubt, as far as possible, the Court will require the witness to recollect the very words in which the confession was made and that requirement is based on the rule of prudence so that in case of a fabricated confession the truth may come to light. But if there were an invariable rule that the evidence as to such confession has to be excluded, unless a witness repeats the exact words spoken by the accused, it will result in exclusion of an important piece of evidence. The rule that the Court should insist upon the exact words used by the accused being repeated by witnesses is not inflexible. Indeed, the Court may, having regard to all the circumstances of the case, rely upon the substance of the words the witnesses heard. Therefore, it cannot be said that an extrajudicial confession is not true merely because the persons to whom it was made are not able to reproduce the exact words spoken by the accused. See Mulk Raj v. State of U. P. AIR 1959 S. C. 902. From the evidence on record we are satisfied that the extra judicial confession was voluntary and true, and along with the circumstantial evidence pointed out above, the guilt has conclusively been brought home to the accused.

The learned trial Judge has also relied on the confession (Ex, P. 19) alleged to have been made by the accused and recorded by Mr. R. Y. Rajimwala, Magistrate 2nd Class, Bemetara. There is a serious defect in the recording of this confession. The Magistrate has recorded a memorandum, but it makes no mention of the person who brought the accused for recording his confession. Thus, the identity of the deponent whose confession was recorded cannot be fixed. Surprisingly, the Investigating Officer denies to have taken the accused himself to Bemetara and expresses his complete ignorance as to who took the accused before Mr. Rajimwala.

No constable was produced to identify that the person who made the confession before Mr. Rajimwala was no one other than the Appellant himself.

It is expected that a Magistrate while recording confession of an accused must carefully and consciously observe the necessary formalities required by the law. Rules and Orders (Criminal) direct in paragraph 73 (2) that the Magistrate may take all such precaution as he considers necessary to permit him consciously to sign the memorandum referred to in Section 162 of the Code, and further that the special form prescribed for recording confession should be used carefully and consciously. We would, therefore, exclude this confession from our consideration.

Having already said that it was the accused who killed his wife at the time and place and in the manner stated by the prosecution, we have to consider whether the accused committed the offence u/s 302 of the Penal Code. Agindas (P. W. 1) and Chandulal (P. W. 6) clearly stated that while disclosing the reason for killing his wife, the accused told them that he had seen a boy and his wife in a compromising position and it is also clear from the prosecution evidence itself that the accused again asked her on the fateful night that the name of that boy was, but she would not reveal it. Although Bania (P. W. 8) turned hostile in the Court of Session, he had stated in his deposition u/s 164, Criminal Procedure Code, (Ex. P.-5), that on the previous Tuesday. (27-12-1960) the accused had complained to him that he had seen a boy standing near Dewantin, and that boy ran away on seeing him. Further, when, after the murder of Dewantin, he was asked the reason for this ghastly act, he said that he had been asking Dewantin every day who that boy was and why he was standing but she did not disclose his name to him. Now, the question is whether the accused is entitled to the benefit of the first Exception to Section 300 of the Penal Code. Having regard to the evidence on record we have no doubt that the accused had seen his wife in a compromising position with an unknown boy. The accused is a young man of about 24 years and the deceased was married to him only a year or so before the occurrence. He must naturally have been enraged when he saw his young wife with another man. He insisted on asking his wife the name of that boy. On the fateful night he again asked her but she did not give out the name. Every time that she was asked, she either refused or kept quiet. There was a provocation in the natural course of human conduct. The accused might have thought on the last occasion that there was no more hope of his wife giving out the name and the the provocation which was continuing for all those three or four days, went on aggravating. On the fateful night the pro-vocation was undoubtedly grave and sudden. When the fidelity of the wife is suspected and insult is added to injury by not complying with the natural desire of the husband to know the name of that boy, giving allowance for human frailty it cannot be said that the conduct of the wife would not have created a moral revulsion so as to amount to a grave and sudden provocation.

Nanavati''s case A. I. R. 7962 S. C. 605, is clearly distinguishable. In that case, when Mrs. Nanavati confessed to the accused that she had illicit intimacy with the deceased, although he might have lost momentarily his self-control, yet, there was sufficient time for him to regain his self-control, for he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, drove his car to the office of the deceased and then to his flat, and it was after all this that he went to the bed room of the deceased and shot him dead. Their Lordships have authoritatively laid down the law in the four propositions formulated in paragraph 85 of the report (AIR). In the present case, we find that all the four tests are fulfilled. We have stated the circumstances in which the accused was provoked. The fatal act of strangulation is clearly traced to the influence of passion from that ultimate provocation which developed at the time of the occurrence. There is nothing to show that it was a premeditated and calculated murder. We must make it plain enough that it was the last occasion of the accused asking his wife the name of the boy and her not complying with his wish which resulted in a grave and sudden provocation of which we are giving him benefit.

The case of Mannhu v. State 1960 JLJ 77 is not in point, because there was sufficient (sic) of time between Mst. Gita abusing the accused and his committing murder. In the present case, the enormity of pressure upon the mind of the accused is quite evident from the fact that after killing his wife he made an unsuccessful attempt on his own life, and it was only providential that his father happened to wake up and raised an alarm before it was too late.

For these reasons, the conviction must be altered to one u/s 304, Part I, of the Penal Code, and having regard to all the circumstances before us, we would reduce the sentence to seven years'' rigorous imprisonment.

Before we part with this case, we must observe that the investigation in this case has been unexcusably callous in so far as the accused was not prosecuted for the offence u/s 309 of the Penal Code. It is astonishing that inspite of the investigating agency being fully in. possession of the evidence that the accused had attempted to kill himself by strangulation, he was not sent for medical examination at all, although he was arrested on the 31st December only

The appeal is partly allowed. The conviction is altered to Section 304, Part 1 of the Penal Code, and the sentence is reduced to seven years rigorous imprisonment.