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Judgment
N. Dhinakar, J.—The accused in Sessions case No. 39 of 1988 on the file of the District Judge, Dharmapuri District at Krishnagiri is the
appellant. He was tried before the learned Sessions Judge for a charge of murder on the allegation that at about 3.30 a.m. on 9.12.1987 he caused
the death of his wife Vanitha by stabbing her repeatedly with crow bar M.O.3 as a result of which she died. A charge u/s 307 of the Indian Penal
Code was also framed against the accused on an allegation that in the course of the same transaction he stabbed P.W.2 repeatedly with the same
crow bar and thereby attempted to cause the death of P.W.2. The learned Sessions Judge, on the evidence adduced, both oral and documentary,
held that the charges have been proved and accordingly convicted the appellant/accused and sentenced him to undergo imprisonment for life for
the charge u/s 302 of the Indian Penal Code and also directed the accused to suffer rigorous imprisonment for a period of four years for the other
charge u/s 307 of the Indian Penal Code. Aggrieved by the said order of conviction and sentence the present appeal is preferred by the appellant,
who hereinafter will be referred to as the ''accused'' in this judgment.
The case of the prosecution is this: The deceased is the second wife of the accused. P.W. 13 is the mother of the accused. The deceased and
the accused were residing in a thatched house at Ponnathur village. P.W.2 was residing-100 feet away from the house of the deceased and
according to the prosecution the deceased and P.W.2 were having illicit relationship and that the accused warned his wife not to have any
relationship with P.W.2.
On 9.12.1987 at about 3.30 or 4.00 a.m. P.W.1 a neighbour of the accused heard the deceased and the accused quarrelling among
themselves. It is the case of the prosecution that the deceased was stabbed by the accused with M.0.3 crow bar and went to the cattle shed of
P.W.2 which was situated by the side of his house and also stabbed P.W.2 with the same crow bar which was witnessed by P.W.3. It is to be
stated at this stage that both P.Ws. 1 and 3 have turned hostile. After stabbing the deceased and P.W.2, the accused went away.
At about 7.00 a.m. on 9.12.1987 P.W. 12 the Village Administrative Officer was duly informed about the death of Vanitha by P.W. 1. The
statement given by P.W. 1 was reduced into writing and the same stands marked as Ex.P.l. P.W. 12 thereafter prepared Ex.P.9 and took both
Exs.P. 1 and P. 12 to Bargur Police Station and handed over the same to P.W. 16 the Sub Inspector of Police at 4.30 p.m. who on the basis of
which registered a case in crime number 385/87 for the offence punishable under sections 302 and 307 of the Indian Penal code against the
accused. The express report was then despatched to the higher officials. In the meantime P.W.2 who sustained injuries at the hands of the accused
was removed to the Government hospital, Krishnagiri and was examined by P.W.9 at 7.15 a.m. On examination P.W.9 found the following
injuries on P.W.2:
Lacerated wound right side of chest midaxillary line 4"" below the right nipple surgical comphygessa present. Air came out during breathing size
about 7 cm � 4 cm � going deep into thoracic cavity.
Lacerated would left hypochondrium 4 cm � 2 cm � 2 cm bleeding present.
Lacerated wound left side inner aspect of thigh 5 cm � 4 cm � 5 cm bleeding present.
Lacerated wound below left knee 7 cm � 6 cm � 5 cm bleeding present.
Lacerated wound medial aspect of left knee 10 cm � 5 cm � 10 cm.
Lacerated wound right side elbow joint 6 cm � 4 cm � 3 cm clotted blood present.
Lacerated wound left side of chest 5 cm � 3 cm � 3 cm
Abrasion left side shoulder anterior aspect 8 cm
x 0.5 cm.
Lacerated wound between scapula 6 cm � 3 cm � 4 cm clotted blood.
Ex.P. 17 is the Wound certificate issued by P.W.9 in respect of the injuries found on P.W.2. As the condition of P.W.2 was serious he was
referred to the Government Hospital, Dharmapuri. On being referred from Government Hospital, Krishnagiri, P.W.2 was sent to Government
Hospital, Dharmapuri, where he was admitted by P.W.23 at 9.15 a.m. The x-rays for the injuries on P.W.2 were caused to be taken and P.W.24
radiologist took � rays and gave his report Ex.P.33. The injured P.W.2 was treated at Government Hospital, Dharmapuri and later discharged.
Ex.P.31 is the case sheet issued by the Government hospital authorities at Dharmapuri.
Meanwhile, on receipt of the registration of the crime P.W.26 took up investigation and reached the scene village by 6.00 a.m. We had the
photographer of the scene of occurrence caused to be taken through photograph P.W. 17. P.W.26 also prepared Ex.P.36 Rough sketch and at
6.45 p.m. prepared Ex.P.10 observation mahazar in the presence of witnesses. At about 7.00 p.m. from where the dead body of Vanitha was
lying, he recovered M.Os.6 to 15 under the mahazar Ex.P.11 attested by P.W. 12 and another and at 7.15 p.m. he recovered M.Os 16 and 17
from front of the house of P.W.1 under the same mahazar. From the cattle shed of P.W.2 he recovered M.OS.4, 5, 18 and 19 under mahazar
Ex.P. 13 attested by the same witnesses. P.W.26 thereafter commenced the inquest and between 7.45 p.m. and 10.00 p.m. conducted inquest
over the body of Vanitha in the presence of panchayatdhars during which he examined P.Ws.1, 3, 13 and others and recorded their statements.
Ex.P.37 is the inquest report. He issued Ex.P.4 a requisition to conduct autopsy on the body of the deceased Vanitiia. On receipt of the requisition
P.W. 8 the Civil Assistant Surgeon, Government hospital, Krishnagiri conducted autopsy on the body of Vanitha at 1.00 p.m. on 10.12.1987 and
found the following antemortem injuries:
A diffuse contusion over right breast 6 cms � 4 cms. Skin blackish in colour.
A lacerated wound over upper part of abdomen 1.5 cm � 0.75 cm.
A deep punctured wound over left side of abdomen 12 cms from the ambilicus 3 cms � 2.5. cms � 3 cms.
Two punctured wounds over outer aspect of left elbow, a) 2 cms � 1.5 cms � 3 cms. b) 1 cm � 0.5. cm � 0.5 cm.
A punctured wound over upper part of right diigh 2.5 cm � 1.5 cm � 1.5 cm.
A deep punctured wound over upper part of right buttock 1 cm � Q.75 cm � 0.75 cm.
A deep punctured wound over back of lower 3rd of right thigh 2 cm � 1 cm � 4 cm on opening injury No. 6 the deep wound extends to
the base of right lung through the upper lobe and upper part of liver piercing the lung, a) 8 cm � 1.5 cm. and the rupturing the liver 2.5 cm � 2
cm � 4 cm.
The post mortem doctor was of the opinion that the injuries on the deceased would have been caused with a weapon like M.O.3 and that she
would appear to have died of shock and haemorrhage due to rupture of the right lung and liver. He issued Ex.P.5 post mortem certificate.
P.W.26 continued his investigation and went to the Government Hospital, Dharmapuri where he questioned P.W.2 and recorded a statement.
He seized M.Os. 1 and 2 produced by him under Ex.P.2 attested by P.W.5 and another. P.W.26 thereafter proceeded with the investigation and
he examined P.Ws.4, 6, 14 and others. On 13.12.1987, he questioned P.W. 13 and some other witnesses and at 3.30 p.m. arrested the accused
in a junction in Oppathavadi when he was alighting from a lorry. The accused was questioned and he came up with a statement and the admissible
portion of which is marked as Ex.P.38. In pursuance of the said statement the accused took the police party and witnesses to his house and from
under-neath a pumpkin creeper took M.O.3 and produced it which was then seized under mahazar Ex.P.39 attested by P.Ws 19 and 20.
Thereafter, P.W. 15 was questioned and examined. The accused was brought to the police station and when searched he was having in his bag
Ex.P.3 an O.P. chit issued by the hospital authorities at Vellore; Ex.P.22 the carbon copy of Ex.P.34 a letter addressed to the District
Superintendent of Police, Krishnagiri as well as Ex.P.23 an acknowledgement card. These were recovered under mahazar Ex.P.24 attested by
P.W.21 and as the dhothi worn by the accused contained blood it was also seized under Ex.P.40. The accused was also sent to the hospital for
treatment for obtaining a certificate for the healed wounds found on him. He was then sent to the court for remand. On 15:12.1987 P.W.26 went
to the office of the Deputy Superintendent of Police, Krishnagiri and obtained Ex.P.34 a letter addressed by the accused which is the original of
Ex.P.22 recovered from the bag of the accused immediately after his arrest. A requisition Ex.P.6 was then issued to the Judicial Magistrate P.W.
11 to record the statement of P.Ws. 1, 3 and another. He also showed MO.3 to the doctor and questioned him. On 29.12.1987 he questioned
other witnesses on various dates. The material objects were sent to the court by P.W.26 on 30.12.1987. Exs.P.27 and 28 are the reports of the
Chemical Analyst and Ex.P.29 is the report of the Serologist and on completing the investigation, final report was filed against the accused on
3.2.1988.
When questioned on the incriminating circumstances against him u/s 313 of the Code of Criminal Procedure the accused denied his complicity.
It is the case of prosecution that the deceased Vanitha was done to death by the accused on the early hours of 9.12.1987 since she was having
illicit relationship with P.W.2 the neighbour. To speak about the occurrence proper, prosecution produced P.W. 1 as an eye witness, but he turned
hostile. It is the further case of the prosecution that during the course of the same transaction he attempted to cause the murder of P.W.2 by
stabbing him with M.O.3 crow bar. Though P.W.1 turned hostile, as regards the incident, relating to the attack on P.W.2, we have the evidence of
P.W.2 as regards the attack mounted on him by the accused. We will now analyse the evidence of P.W.2 to find out whether the accused was
rightly convicted for the offence punishable u/s 307 of the Indian Penal Code. P.W.2 has, in his evidence stated that at about 3.30 a.m. or 4.00
a.m. on 9.12.1997 the accused came to the cattle shed which was adjacent to the house of the accused and asked him for a match stick. When
P.W.2 told him that he has no match stick he asked P.W.2 to get one from P.W.3 and P.W.2 also obliged him by taking a match stick from
P.W.3 and handed it over to the accused. According to P.W.2 the accused immediately stabbed him with a crow bar M.O.3 on his left leg, right
hand, right flank, left shoulder, back of his chest, buttocks and stomach and that during the course of the incident a kerosene chimney lamp was
burning. According to him he raised an alarm which brought P.Ws.4, 5 as well as others and that he told P.Ws.4 and 5 that he was stabbed by the
accused and requested them to take him to the hospital. This evidence of P.W.2 that the accused attacked him with M.O.3 crow bar is supported
by medical evidence in the case. P.W.9 the duty doctor at Government hospital. Krishnagiri examined P.W.2 at 7.15 p.m. and noted the injuries
found on him in Ex.P. 17 the wound certificate which we have already extracted in the earlier part of the judgment. P.W.2 was referred to the
Government Hospital, Dharmapuri since his condition was serious wherein he was treated and ultimately discharged. The case sheet Ex.P.3 1 is
also marked in this case as Ex.P.31. Apart from the medical evidence which corroborates the evidence of P.W.2 we have the evidence of P.W.3
who though turned hostile as tainted, that at about 4.00 a.m. on 9.12.1987 he heard the shouts of P.W.2 shouting that he was being stabbed by
the accused. He has also stated that when he saw a chimney lamp was burning at the scene of occurrence when P.W.2 sustained injuries. We have
no reservation in accepting the evidence of P.W.2, the injured eye witness, whose evidence is not only supported by medical evidence, but also by
the evidence of P.W.3. On these facts we are of the view that the accused was rightly convicted by the learned Sessions Judge for the charge u/s
307 of the Indian Penal Code. The sentence of four years imposed upon him is not excessive and it needs no interference.
As regards the incident relating to the deceased Vanitha it is the case of the prosecution that the accused stabbed her to death with M.O.3 crow
bar and the incident was witnessed by P.W.1. P.W.1 has turned hostile. Though P.W.1 did not support the prosecution case and was treated
hostile, he in his evidence, has stated that on the early hours of 9.12.1987 he heard the accused and the deceased quarrelling with each other.
Further, the accused has no case that he and his wife were not residing in that house on the fateful day. The deceased was done to death by
homicidal violence and once it is proved that the accused was with his wife in his house, for there is no contra evidence, it is for the accused to
explain the circumstances under which his wife sustained injuries. The non explanation by the accused for the injuries on the deceased is a
circumstance which has to be put against him as held by the Supreme Court in Deonandan Mishra Vs. The State of Bihar, wherein the Supreme
Court held that if the circumstance point to the accused as the probable assailant, with responsible definite-ness and in proximity to the deceased
as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion
on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes
the chain. As stated earlier, the accused and the deceased were residing in the same house on the fateful night and they were heard quarrelling by
P.W.1 on the early hours of 9.12.1987 and that P.W.1 also informed about that to P.W. 12 the Village Administrative Officer. When P.W. 12
visited the scene he found the deceased lying in the verandah of the house of the accused wearing only under-garments on her person with several
injuries and the accused, as already stated, has no explanation to offer as to how she sustained those injuries. In this connection, we can also make
a reference to Ex.P.34, a letter addressed by the accused to the District Superintendent of Police, Krishnagiri. According to the prosecution,
immediately after the occurrence, the accused went to P.W.25 a petition-writer, and stated that he has murdered his wife and wanted P.W.25 to
help him write a letter to the District Superintendent of Police. Krishnagiri, and that to the dictation of the accused. P.W.25 wrote a letter. Ex.P-
A perusal of the contents of Ex.P-34 indicates that it is the outpowing of a depressed man who has murdered his wife on seeing her in the
company of another person and there is no artificiality attached to it. The evidence of P.W.25 that the accused came and confessed about the
incident is also a piece of evidence that is to be put against the accused. Hence, we cannot, but hold that the accused as alleged by the
prosecution, stabbed the deceased to death.
The only question that is now to be decided is the nature of the offence committed by the accused. It is the case of the prosecution that the
accused was arrested by P.W.26 on 13.12.1987 when he was alighting from a lorry and that he was taken to the police station where a search
was conducted on his body in the police station and during that search the police officer found Exs.P.3, P.22 and P.23 which were then seized in
Form 95 which is marked as Ex.P.24. Ex.P.22 is the carbon copy of Ex.P.34 and Ex.P.34 is a letter addressed by the accused to the District
Superintendent of Police, Krishnagiri immediately after the incident and the same was sent to the District Superintendent of Police by post with an
acknowledgment due. Ex.P.23 is the acknowledgement card showing that the letter Ex.P.34 addressed to the District Superintendent of Police
was received, at the office of the Deputy Superintendent of Police, Krishnagiri, as there was no District Superintendent. It is the case of the
prosecution that the letter Ex.P.34 with a carbon copy Ex.P.22 was written by P.W.25 to the dictation of the accused. Though Ex.P.34 is a letter
addressed to the police officer and a confession made to the police officer is not admissible in evidence except when it leads to recovers'' of fact
and admissible u/s 27 of the Evidence Act, the evidence on record is clear that when it was written, the accused was not in the custody of the
police and that he gave a statement to P.W.25 the petition-writer, telling him that he has murdered his wife and asked him to write the letter
Ex.P.34 on his behalf and accordingly, it was written to the dictation of the accused. A perusal of Ex.P.34 shows that the deceased was in illicit
relationship with P.W.2 though she was warned not to have any such relationship. In Ex.P.34 it is further stated that the deceased and P.W.2 were
continuing their illicit relationship and that on the early hours of 9.12.1987, he saw diem in the cattle shed of P.W.2 and on seeing diem together, he
lost his mental balance and attacked both P.W.2 and the deceased. A perusal of Ex.P.34 shows that it was the statement given by the accused to
P.W.25 and there is no artificiality attached to it and that the accused attacked his wife on seeing her in a compromising position with P.W.2. This
fact is further strengthened by the evidence of P.W. 12, the Village Administrative Officer, who, in his evidence, has stated that when he reached
the scene of occurrence, he found the deceased lying dead with die, injuries and that she was wearing only the under-garments. We are of the view
that on the facts, the appellant/accused is entitled to the benefit of Exception (1) to Section 300 of the Indian Penal Code in that the accused
attacked the deceased and P.W.2 while he was deprived the power of self-control on account of grave and sudden provocation on seeing his wife
in the company of another. In that view of the matter, we feel that the accused has to be acquitted of the charge u/s 302 of the Indian Penal Code
and instead, he has to be now convicted for the offence punishable u/s 304-1 of the Indian Penal Code. Accordingly, the accused is acquitted of
the charge u/s 302 of the Indian Penal Code and is now convicted u/s 304-1 of the Indian Penal Code and for that conviction, he is directed to
suffer rigorous imprisonment for a period of seven years.
In the result, the conviction and the sentence imposed on the accused for the offence punishable u/s 302 of the Indian Penal Code are set aside
and instead, he is now convicted for the offence punishable u/s 304-1 of the Indian Penal Code and is directed to undergo rigorous imprisonment
for a period of seven years for the said charge. The conviction and the sentence imposed on the appellant/accused for the offence punishable u/s
307 of the Indian Penal Code for attempting to cause the death of P.W.2 are confirmed. We also direct that the sentences shall run concurrently.
With the above modification in the conviction, the appeal is disposed of.