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Judgment
Thangamani, J.—Appeals against the conviction and sentence of imprisonment for life passed Under S.302 I.P.C. by the learned Sessions
Judge, Coimbatore in S.C. No. 15 of 1986 on his file.
The case of the prosecution is that on 16.10.1985 at about 1.00 A.M. at Door No. 1/31, Third Street, Vadugapalayam, the appellant
Muthusamy committed the murder or his wife Lakshmi by beating her with a wooden plank on her head and stabbing her with a knife on her chest
and abdomen.
The prosecution examined 13 witnesses, filed 33 Exhibits and marked 22 Material Objects. Of the witnesses examined P.W.4 Chinnasamy
Gounder turned hostile. The following facts emerge from the materials on record. The appellant is the son of P.W.4 Chinnasamy Gounder. Ten
years prior to the occurrence he married one Samboorna and they had a son by tiame Balakumar. P.W.1 Theivathal is the mother of deceased
Lakshmi. While Lakshmi was working in the field of the appellant, intimacy developed between them. Both of them went to Palani and got
married. So the first wife Samboorna left for her parents'' house with her son and began to reside there. Thereafter in the garden shed the appellant
was living with his second wife Lakshmi. Some six months prior to the occurrence without the knowledge of the appellant, Lakshmi underwent a
family planning operation. The appellant found fault with Lakshmi for that. They began to quarrel with each other on this issue. The appellant
complained to P.W.1 Theivathal that there was illicit relationship between Lakshmi and one bus driver. P.W.1 told the appellant that if both of
them would come to her house and live there, everything would be alright. So the appellant and Lakshmi came to reside with P.W.1 Theivathal in
her house.
On 16.10.1985 at about 1.00 A.M. Lakshmi and appellant were sleeping inside the house. P.W.1 Theivathal was sleeping in the pial of the
house. Suddenly she heard the crying noise of her daughter Lakshmi. She opened the door M.O.I, kerosene lamp was burning. She saw the
appellant stabbing Lakshmi on her chest and abdomen with M.O.2 Knife. After stabbing on the abdomen the appellant took the small intestine out
of the stomach. When this witness shouted, the appellant ran away from that place with the knife. On hearing the noise P.W.2 Marimuthu, the
neighbouring house owner came there. He also saw Lakshmi lying dead with small intestine having come out. P.W.1 Theivathal told P.W.2
Marimuthu that after stabbing his wife, the appellant had run away.
At about 2.00 A.M. on the same day P.W.12 Sub Inspector of Palladam Police Station arrested the appellant who was present there. Ex.P1 is
the signature of the appellant in a Statement given by him. The Sub Inspector registered the same in his Station Crime No. 273/85 under S.302
I.P.C. and prepared Ex.P31 printed F.I.R. Meanwhile, on information P.W.5 V.A.O. also had reached the police station. He found the appellant
as well as P.W. 12 Sub Inspector there. The appellant was having M.O.2 blood stained knife in his hand. There were blood stains in M.O.8
Dhoti, M.O.9 Banian and M.O.10 shirt worn by the appellant. P.W.12 Sub Inspector seized the same under Ex.P2 mahazar which was attested
by P.W.5 V.A.O.,
On receipt of Information at about 4.00 A.M. P.W.13 Inspector took up investigation of the case. He visited the scene place and prepared
Ex.P3 observation mahazar and P.32 rough sketch. P.W.5 V.A.O. attested the observation Mahazar. From 6.15 A.M. to 11.15 A.M. in the
presence of Panchayatdars the Inspector held inquest over the dead body of Lakshmi and prepared Ex.P33 Inquest report. At the time of inquest
the Inspector examined P.W.1 Theivathal and P.W.2 Marimuthu. Then he sent the dead body for Post-mortem through P.W.9 Constable with
Ex.P6 Requisition.
At 11.30 A.M. P.W.13 Inspector recovered from the scene of occurrence M.O.11 blood stained earth, M.O.12 sample earth, M.O.13 blood
stained scraps from the southern wall of the house, M.O.6 blood stained mat, M.O.7 blood stained pillow, M.O.14 blood stained bed sheet,
M.0.15 wooden plank, M.O.16 chappals and M.O.17 chappals under Ex.P4 Mahazar. This was also attested by P.W.5 V.A.O. On the same
day the Inspector examined P.Ws.4 and 5.
On the same day at 1.00 P.M. P.W.6 Doctor examined the appellant as per the requisition of P. W. 13 Inspector for blood stains over his body
and to preserve it for chemical analysis. The Doctor found blood stains over the left-forearm, forehead, left hand finger nails, left ear, right ear and
over the chest of the appellant P.W.6 Doctor scrapped the blood stains from the body of the appellant and sent them to J.S.C.M., Palladam with
Ex.P5 covering letter for chemical analysis.
At 2.00 P.M. on the same day P.W.7 Doctor commenced the post-mortem over the dead body of Lakshmi in the Government Hospital,
Palladam. Rigor mortis present in all four limbs. The injuries noted were these:
The entire back of the scalp is contused and swollen.
An incised gaping wound of 9 cm � 10 cm. opens into the abdominal cavity just below the xibhisternum horizontally. Another incised gaping
wound of size 20 c. � 5 cm. and opens into the abdomen over the left hypochondrium.
Another incised gaping wound of size 30 cm � 10 cm and open into the abdominal cavity situated over right hypochondrium running
horizontally. Coils of intestines with momentum are thrown out through the wound.
On dissection scalp is contused at the back of head. Skull bones intact. Brain and membranes pale, weight 1200 grams. Hyoid intact No fracture
of ribs. Injuries 2, 3 and 4; Coils of Intestines were thrown out. Multiple punctures were in small intestines.
Stomach punctured. Undigested rice particles 200 grams. Right lobe of liver cut. Pool of blood in the peritoneal cavity. Spleen pale, soft. 18
grams. Large intestines, kidneys, bladder, ovaries, pancreas were normal. Heart: All chambers empty, 280 grams. Lungs: On pressure exudes
forthy blood. Right lung: 400 grams. Left lung 380 grams. Uterus : Empty. Normal size. Blood samples preserved. In the opinion of the Doctor the
deceased would appear to have died of shock and haemorrhage as a result of injuries sustained in the liver and intestines due to external injuries 2,
3 and 4. Death would have been caused 10 to 12 hours prior to autopsy. External injury No. 1 stated above would have been caused by hitting
with wooden plank, External injury Nos. 2 to 4 would have been caused by stabbing with knife like M.O.2. External injury Nos. 2 to 4 and the
corresponding internal injuries are fatal to cause death in the ordinary course of nature. Death would have been instantaneous. Ex.P7 is the Post-
Mortem Certificate issued by the Doctor. After the post-mortem P.W.9 Constable removed M.O.3 saree, M.O.4, jacket, M.O.5 skirt, M.O.18
yellow cord, M.O.19 series studs, M.O.20 nose ring, M.O.21 series bangles and M.O.22 minji and entrusted them in the station where they were
recovered under Ex.P14 Form-95.
On receipt of Ex.P15 Requisition from P.W.13 Inspector, the blood stained articles were sent for chemical examination under Ex.P16
covering letter. Exs.P17 and P18 are the reports of the Chemical Examiner and Exs.P19 and P20 are the reports of the Serologist.
On 17.10.1985 P.W.13 Inspector sent Ex.P8 Requisition to J.S.C.M., Palladam to record the confession statement of the appellant. After
giving the necessary warnings, following the procedure prescribed and on being satisfied that the statement was voluntary, on 18.10.1985 P.W.8,
J.S.C.M. recorded Ex.P.10 statement of the appellant under S.164 Cr.P.C. Exs.P.9 and P.11 are his proceedings and certificate.
When examined under S.313 Cr.P.C. the appellant admitted his marriage with deceased Lakshmi at Palani. The birth of a female child for
them and their living in the garden shed. He also conceded that six months prior to the occurrence, Lakshmi underwent a family planning operation
and thereafter they had frequent quarrels with each other. P.W.1 Theivathal advised the appellant to come and live in her house with Lakshmi, so
that there could be peace between them and accordingly they began to live in the house of P.W.1 Theivathal. He denied the other allegations and
maintained that after returning from work on that night he found his wife lying dead. When he touched the body he got the blood stains. He went to
his father P.W.4 Cninnasamy Gounder and told him that somebody had committed the murder of Lakshmi. His father told him to go to the Police
Station. When he came to the Police Station, the Inspector detained him there and foisted a false case against him. He gave the confession
statement before P.W.8 J.S.C.M. on threat from Police.
After trial, the learned Sessions Judge found the appellant guilty, convicted and sentenced him as indicated above.
The appellant had chosen to file two appeals in C.A. Nos. 748 of 1986 and 836 of 1986. While Thiru N.T. Vanamamalai, senior counsel
appeared for the appellant in C.A. No. 748 of 1986, there was no representation on behalf of the counsel in the other appeal. The later appeal got
merged in the earlier appeal. The grounds mentioned in both the appeal memos besides the arguments of learned senior counsel were considered in
arriving at the conclusion.
Learned senior counsel for the appellant submitted that P.W.1 Theivathal could not have witnessed the occurrence and the evidence of P.W.2
Marimuthu is also artificial. His further argument is that motive is very flimsy. The testimony of P.W.1 is interested and the trial court should have
rejected the Judicial confession given by the appellant.
The estrangement developed between the appellant and the deceased is stated to be the motive for the crime. As per the evidence of P.W.1
Theivathal, six months prior to the occurrence Lakshmi underwent a family planning operation and thereafter there were frequent quarrels between
the couple. So she advised the appellant to come and live in her house which was accepted by the appellant. In his statement under S.313 Cr.P.C.
also he concedes that the evidence of P.W.1 regarding the frequent quarrels between himself and Lakshmi is true. He also did not dispute the fact
that on the advice of his mother in law he began to live in her house with his wife. In Ex.P.10 the confession statement the appellant himself speaks
about his wife undergoing a family planning operation without his knowledge and consent, and her subsequent development of illicit intimacy with
one bus driver. In view of the evidence of P.W.8 J.S.C.M., there is no reason to hold that the confession statement was given by the appellant
under duress as claimed by him. So the presence of motive for the appellant to do away with his wife is obvious.
P.W.1 Theivathal is the eye witness to the occurrence. Her categorical version in the witness box is to the effect that on hearing the noise, she
opened the door and found the appellant stabbing once on the chest and twice on the abdomen of her daughter with M.O.2 Knife, According to
her, on hearing her shouts, P.W.2 Marimuthu the neighbouring house owner came there. P.W.2 Marimuthu also states that when he reached the
house of P.W.1 he found Lakshmi lying dead with small intestine coming out. Both these witnesses were examined during inquest and nothing has
been elicited in their cross-examination as to why their testimonies should not be accepted. Both of them are natural witnesses. While P.W.1
Theivathal is the mother of the deceased, P.W.2 Marimuthu is the neighbouring house owner. His is an independent version. A careful scrutiny of
the testimony of P.W.1 Theivathal reveals that she has spoken only the truth without any embellishment. No doubt as per her evidence, on hearing
the noise she opened the lock and went inside. But in her statement before P.W.14 Investigating Officer she has not mentioned this. Further
admittedly she did not prevent the appellant assaulting her daughter. These factors were pointed out by learned Defence counsel to discredit her
evidence. But we do not think that these are of any vital importance which affect her veracity.
P.W.1 Theivathal further says that immediately after the occurrence she went to the garden, informed her husband and both of them went to
the Police Station. When they reached there, P.W.12 Sub Inspector was examining the appellant. The Sub Inspector asked her what had
happened. She narrated the entire occurrence to the Sub Inspector. He recorded the same and obtained her thumb impression on it. P.W.12 Sub
Inspector also admits in cross examination about P.W.1 Theivathal coming to the Police Station while he was examining the accused and
describing the incident. But he is categorical that he did not record her statement. Learned senior counsel for the appellant argued that the
statement given by P.W.1 Theivathal is the real F.I.R. in this case and this has been deliberately suppressed by the prosecution. According to him,
there is no reason why P.W.1 should have come forward with a false complaint. So her statement alone would have indicated the correct
description of the events. However, we are not impressed with this claim of the appellant. Admittedly P.W.1 had reached the police station only at
4.00 p.m., At that time the appellant and P.W.5 V.A.O. were already there. So it is evident that the investigation had already commenced by the
time P.W.1 went to the Police Station.
The evidence of P.W.1 Theivathal regarding the incident also gets support from the testimony of P.W.7 Doctor and her post-mortem
certificate Ex.P7. This certificate reveals that there were on the whole three incised gaping wounds in the abdomen of the deceased which is in
consonance of the version of P.W.1 that the appellant inflicted three stab injuries with his knife. And above all as per Ex.P.10 the appellant has
stated before the J.S.C.M., that he inflicted three injuries with knife on the stomach of the deceased. We have already seen that this statement is a
voluntary one.
And Ex.P.20 the serologist''s report also indicates that M.Os.2 and 4 the saree and jacket of the deceased as well as M.Os.9 and 10 the
banian and shirt recovered from the appellant and M.O.s 11 and 13 earth, M.O.6 mat and M.O.7 pillow recovered from the scene place bear the
same ''0'' group of human blood. Besides, in his statement under S.313 Cr.P.C, the appellant admits his presence near the dead body lying with
bleeding injuries. And we find from Ex.P19 that the blood stains recovered from the body of the appellant by P.W.6 Doctor also belong to group
of human blood. The explanation of the appellant that on returning from work he found his wife murdered, he wept over the dead body and in that
process his clothes and body became blood stained is far from convincing. This factor also goes in support of the prosecution version regarding the
involvement of the appellant in the crime. So there are overwhelming materials, which establish beyond the possibility of any doubt, the complicity
of the appellant in the murder of his wife.
Holding that the appellant had inflicted the injuries with intention to cause death, the trial court found him guilty under S.302 I.P.C., convicted
and sentenced him to imprisonment for life. Learned senior counsel for the appellant submitted that if the background in which the crime has taken
place is considered in its proper perspective, no offence under S.302 I.P.C., is made out and the appellant could be held, liable only for lesser
offence. In this connection it is seen that the appellant has stated in Ex.P10 his judicial confession under what circumstances he had to inflict the
injuries on his wife. A confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the
preparation, the opportunity, the provocation, the weapon used, the concealment of the weapon and the subsequent conduct of the accused.
When the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a
non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself along with other admitted or proved facts
suggests inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being
part of a confessional statement partakes of the character of a confession. When a statement contains an admission of an offence, not only that
admission but also every other admission of an incriminating fact contained in the statement is part of the confession. So Ex.P10 taken in entirety as
well as the other materials on record disclose that the appellant married the deceased as his second wife, when the latter was coming to his garden
for farm work. They lived happily for about three years and a daughter was born to them. Some time prior to the occurrence deceased Lakshmi
underwent a family planning operation without the knowledge and consent of the appellant. When the appellant chose to question her why she did
like that, she replied that it was her convenience that mattered. Often she used to go out telling her husband that she had to visit the hospital. Slowly
the appellant came to know that Lakshmi was having illicit intimacy with one Marimuthu, driver of a Town Bus. Without the knowledge of the
appellant, Lakshmi and her paramour had been to cinema theatres in Tirupur. Lakshmi began to pick up quarrel with appellant and send him to his
first wife. The appellant saw Lakshmi and Marimuthu talking with each other in Bus stand, Tirupur twice or thrice. When he told her that she
should not behave like that and she should faithfully live with him, she replied that she would not return to the path of virtue and she would have
connection only with that driver. Thereupon the appellant said that it did not matter. But he wanted her to have marital relations with him also, to
which Lakshmi replied that she would never thereafter have marital relations with him. She also told him that she had promised to Driver
Marimuthu that she would never touch her husband and go to bed with him. Often she used to tell her husband that she would have marital
relationship only with that driver and the appellant had no right to question her about the same. She further told him that if he could not control his
desire, either he could go to his first wife or to any prostitute by paying Rs. 5 or Rs. 10/-. So the appellant reported the matter to his mother-in-law
P.W.1, Theivathal and made Lakshmi to stay with her mother for about 10 days. Even during those 10 days his attempt to have intercourse with
her proved to be an exercise in futility. So on that Tuesday night he purchased a knife and kept it in the house of P.W.1 Theivathal. The appellant
also stayed with Lakshmi in his mother-in-law''s house on that night. He tried to her with all his resources to have intercourse with her. She bluntly
refused and proclaimed that she would not allow him to have connection with her. She would have marital relationship only with the Driver. She
also told him that next morning he could go to his first wife and he should not remain with her. Thereupon the appellant cringed before her slating
To which the deceased curtly told him that he could take the vegetable cutter and cut his organ if he was so much desirous of her. The appellant
twice prostrated before her and pleaded her to have intercourse with him. She was obstinate. Ten minutes later he took a wooden plank nearby
and hit on her head. Then he took the knife kept beneath the pillow and inflicted three injuries on her stomach. He came out of the house and went
straight to his father. He told him that he was going to commit suicide. His father advised him not to commit suicide but to go to Police Station
straight. So he reached the Police Station at 2.30 A.M. and narrated the incident. His signature was obtained in the paper containing his narration
and P.W.5 V.A.O. was also there.
The abovesaid narration of the incidents which culminated in the appellant doing away with his wife is tell-tale. Evidently the appellant was
subject to continuous mental torture ever since his wife developed illicit intimacy with Driver Marimuthu. The flat refusal by the wife to keep herself
to the path of rectitude, as behaves a legally wedded wife and an open swearing that she would never permit the appellant to have intercourse with
her and instead she would have marital relationship only with her paramour M would definitely constitute a sufficiently grave and sudden
provocation so as to make the appellant lose his power of self-control, driving him to resort to the use of the knife, which he had by his side at the
time against the recalcitrant wife. It is not all provocation that will reduce the crime of murder to mere culpable homicide. Provocation, to have that
result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act
which causes death. In deciding the question whether this was or was not the case, the test to be applied is that of the effect of the provocation on
a reasonable man. The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of
self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm is negatived. In a society like ours where
adultery is made punishable, where a lawfully wedded wife of an accused not only resorts to illicit intimacy with another but also swears openly in
the face of her husband that she would persist in such conduct and she would never allow him to share her bed with him and goes to the extent of
telling him that if he could not control his desire, either he could cut his organ with a vegetable cutter or go to a prostitute by paying some money, it
is reasonable to presume that the husband lost his self-control as a result of grave and sudden provocation. The gravity of the provocation is a
psychological phenomenon and each case has to e considered in the circumstances that prevail at the given situation.
In Sankaral alias Sankarayee v. State (1989 L.W. (Cri.) 468) a Division Bench of this Court has held that the term ''self-control'' in S.300,
I.P.C. is a subjective phenomenon and it can be inferred from the surrounding circumstances of a given case. In order to find out whether the last
act of provocation upon which the offender caused the death was sufficiently grave as to deprive him of the power of self-control, we have to take
into consideration the previous act of provocation caused by the deceased person. This principle of sustained provocation has been considered by
this Court in a number of decisions following the observations of the Supreme Court in K.M. Nanavati Vs. State of Maharashtra, , wherein the
Supreme Court laid down the following principles:
The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the
situation in which the accused was placed would be provoked as to lose his self-control.
In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act
with the first Exception of S.300, I.P.C.
The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act
caused grave and sudden provocation for committing the offence.
The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by
lapse of time, or otherwise giving room and scope for premeditation and calculation.
In Chandran, In re (1988 L.W. Cri 113) the accused stated in his judicial confession that he had sustained provocation in his mind as against
the deceased since the deceased in whom he had reposed confidence, had betrayed him and also developed intimacy with his wife. A Division
Bench of this Court had no reservation in accepting the case of the accused that he cut the deceased on account of the sudden and grave
provocation caused by the deceased and also on account of the sustained provocation the accused had been nurturing for a long period because of
the conduct of the deceased in having illicit intimacy with his wife. So, we are of the view that the conviction recorded by the learned Sessions
Judge under S.302 I.P.C. and the sentence of imprisonment for life imposed therefor, cannot be sustained and instead the present appellant has to
be convicted only under S.304 (Part-I) I.P.C. We accordingly hold that the appellant is entitled to Exception 1 to S.300, I.P.C.
In the result, we set aside the conviction under S.302 I.P.C. and the sentence of imprisonment for life, and instead we find the appellant guilty
under S.304 (Part-I) I.P.C., convict him thereunder and sentence him to suffer R.I. for five years. Subject to the above modification, the appeals
are dismissed.