Polbir vs The State

M.H. Beg, C.J.—The Appellant has been convicted u/s 302, Indian Penal Code, and sentenced to imprisonment for life and to pay a fine of Rs. 100/-. He is a youngman aged about 23 years at the time of the occurrence which took place during the night between 22nd and 23rd of June, 1969, in a ''Dera'' situated in the jungle of village Fufni. It is alleged that the Appellant and his wife Smt. Kamla Devi (P.W.2), aged about 17 years, had come from Nepal and had worked for Mewa Lal, deceased, the son of the own sister of the Appellant, on potato fields. Smt. Kamla Devi (P.W. 2) stated that her salary was fixed at Rs. 90/- per month. It is alleged that the Appellant, however, used to work at other places as well. He used to be away from the ''Dera'' during the day and used to return in the evening to the common ''Dera''. The deceased, getting ample opportunity, had developed illicit intimacy with Smt. Kamla Devi. It is alleged that the Appellant, having come to know about it, had given up talking to his wife. Smt. Kamla Devi admitted all this.

The prosecution case was that the Appellant had, during the night in question, come into the ''Dera'', after 10.00 P.M., while Mewa Lal and his wife were sleeping separately, and had attacked Mewa Lal with a large hammer (Ex. P. 1) causing such severe injury to him that the skull of Mewa Lal was completely fractured and he died immediately. The Appellant is then said to have threatened to kill Smt. Kamla Devi, but she fled into the jungle, and she could only give information to the police in the evening of 23rd June, 1969. This was conveyed to Police Station, Rampur, on 24th June, 1969, and, thereafter, investigation started.

The body of the deceased was actually found by Shri Ranjit Singh, Sub-Inspector of Police (P.W. 17) in the forenoon of the 25th of June, 1969, at the spot which was at a distance of about 240 feet from the ''Dera''. The Appellant was alleged to have dragged the body and thrown it there. The blood-stained pyjama and the shirt of the deceased were also recovered on the next day by Shri Roshan Lal (P.W. 21) outside the ''Dera''. The hammer (Ex. P-1) was also recovered from the ''Dera'' by Roshan Lal (P.W. 21). These recoveries and the postmortem report fully corroborate the version which Smt. Kamla Devi (P.W.2) gave in her report to the police. She is the only eye-witness of the occurrence produced by the prosecution. The version given by Smt. Kamla Devi has been accepted completely by the learned Sessions Judge of Mahasu who had the additional advantage of seeing the witness depose in the witness-box. After having been taken through the whole evidence, we find no reason to arrive at a different conclusion on the credibility of her testimony.

The correctness of statements at the trial, made by Smt. Kamla Devi, is also borne out to a large extent by a confession, shown to have been made voluntarily by the accused and recorded by a Magistrate u/s 164, Code of Criminal Procedure, during the course of investigation. The accused had admitted, in the committing Magistrate''s Court, having made this confession, although he came out with a different version of the occurrence there. At the trial, he admitted the statement made by him in the committing Magistrate''s Court. But, in the trial Court, the accused denied having made any confession voluntarily.

learned Counsel for the Appellant has himself mainly relied upon the confession for advancing the plea of grave and sudden provocation so that the Appellant may get the benefit of Exception I of Section 300, Indian Penal Code, although no argument appears to have been advanced on these lines in the trial Court. In the alternative, learned Counsel for the Appellant has also tried to contend that the Appellant was falsely implicated and that the confession itself was inadmissible as it was extracted by third degree methods by the police. After having been taken through the confession, and the subsequent statements of the accused and evidence relating to the making of the confession, we are unable to differ from the view taken by the trial Court that the confession was admissible in evidence, as it was voluntarily made after the accused had been duly warned by a Magistrate of the consequences of making it.

The admissibility of a confession is one thing and its credibility, either wholly or partly, is another matter. learned Counsel, Mr. Inder Singh, appearing for the State, has relied upon Nishi Kant Jha Vs. The State of Bihar, in support of the prosecution that a confession need not be accepted as a whole. In other words, the credible parts of the confession can be separated from those which are not credible absolutely.

In the instant case, it is not necessary to reject any part of the confession in order to determine whether the Appellant is entitled to the benefit of Exception I of Section 300, Indian Penal Code. It is, however, true that the Appellant has given no evidence whatsoever to substantiate the allegations made in his confession to the effect that he had been threatened by Mewa Lal with the help of 25 or 26 Gorkhas so that he had to run away to save his life. The Appellant and the deceased were Gorkhas themselves. We find it very difficult to believe this part of the uncorroborated assertion of the Appellant who has been changing his story from stage to stage. It may be that some amount, alleged to be Rs. 700/-, was due from Mewa Lal deceased to the Appellant towards his wages which had not been paid. But, even if there was any dispute between the Appellant and Mewa Lal deceased about the wages due to him and any Gorkhas had intervened on behalf of Mewa Lal, it would only give the Appellant an added motive to attack Mewa Lal and militate with the plea of a grave and sudden provocation. It would show another prior grievance. These allegations are, however, not corroborated by the evidence of any witness. It may be that these allegations were made against Mewa Lal by the accused only to explain how the Appellant himself was not sleeping in the ''Dera'' during the night between 22nd and 23rd of June, 1969.

The Appellant''s version, as we find it in the confession, was that, after having run away from the ''Dera'' at about 5.00 A.M. on the morning of Sunday, although, apparently, the Gorkhas had threatened him some days earlier, he had returned in the evening at about 5.00 P.M. to see why people had assembled at the ''Dera'' to kill him. This assertion makes no sense as, according to the version of the Appellant, the Gorkhas had assembled at 11.00 P.M. several days earlier so that there was no reason for him to suddenly take fright at 5.00 A.M. on Sunday and then to return at 5.00 p.M. This part of the story, therefore, seems intended only to explain why Mewa Lal and Smt. Kamla Devi would not expect him to return during the night.

According to the Appellant, he saw Mewa Lal and his wife actually indulging in illicit intimacy at about 8.00 P.M. All the time from 5.00 P.M. to 8.00 P.M., according to him, he was concealed under a tree near the ''Dera'' from where he could see what was happening. He alleged that he saw Smt. Kamla Devi cooking food and then going to bed together. He even stated that there was a conversation between his wife and Mewa Lal showing that Smt. Kamla Devi had apprehended that the Appellant may return to the ''Dera'', but Mewa Lal had told her, according to the Appellant, that he had 25 or 26 Gorkhas with him who would kill the Appellant and conceal his body in the jungle. The Appellant also stated that Mewa Lal told his wife that he owned the Appellant Rs. 700/- on account of wages which he will not pay him and that he will also take away the Appellant''s wife from him. According to the Appellant, Mewa Lal again committed an act of illicit intercourse with his wife, at about 10.00 P.M. He stated that he began to think that in Nepal they used to promise the safe return home of their wives. He then began to ponder over the prospect that he was going to return without his wife and without the money of which Mewa Lal was going to deprive him. Thereupon, he became enraged, and went to a place known as "Bagain ki Khali Dogri" about furlong way to fetch a hammer which was lying there (presumably Ex. P. 1) in order to kill Mewa Lal. This happened according to the Appellant, at about 10.00 P.M., when he got enraged. He disclosed how he argued with himself that it was possible that either he would kill Mewa Lal or Mewa Lal would kill him. He concluded that, in either event, the result would be right. It is apparent from this statement, if accepted, that the Appellant had; after considerable deliberation and cogitation, reached a decision that either he or Mewa should live.

The Appellant also stated that his wife got up after he had struck Mewa Lal. This indicates that his wife was sleeping when Mewa Lai was struck and that she woke up as a result of the attack. This exactly what she herself had stated in her evidence. If, as the Appellant stated, his wife and Mewa Lal had talked about the possibility of the return of the Appellant during the night, it is hardly likely that they would be asleep together as the Appellant''s counsel had tried to make out. Moreover, if Smt. Kamla Devi had been lying in the arms of Mewa Lal, the clothes of Smt. Kamla Devi would have been smeared with blood which had oozed from the body of Mewa Lal after he being struck.

The question, on which considerable argument has taken place, was whether the Appellant was entitled to the benefit of Exception 1 of Section 300, Indian Penal Code, in the circumstances disclosed by his own statement. There is no other material on which any claim for the mitigation of the offence of murder could be made out. The statement of the Appellant, however, discloses that he took considerable time to work himself up into a state in which he could go and fetch a hammer with which he struck Mewa Lal and killed him.

learned Counsel for the Appellant contended that, during the whole period from 5.00 P.M. to about 11.00 P.M., when the Appellant actually struck Mewa Lal, the feelings of the Appellant, which had been worked, up by the memory past wrongs and the sight of illicit connections witnessed by the Appellant, were moving towards a boiling point or point at which self control was lost. Learned Counsel submitted that, when the Appellant found his wife and Mewa Lal sleeping as he entered the ''Dera'', the spectacle was the last straw on the camel''s back with the result that the Appellant completely lost control over himself. The allegation that the Appellant had been according to himself, watching from 5.00 P.M. to past 10.00 P.M. shows that he must have been waiting for an opportunity to take revenge when Mewa Lal had gone to sleep.

The law, as laid down by the Supreme Court in K.M. Nanavati Vs. State of Maharashtra, is explicit. It is pointed out there that, if there is time for the accused to think over and to regain self-control, after a provocation given by the victim and before the actual attack, the accused will not be entitled to the benefit of Exception I of Section 300, Indian Penal Code. In that case, the period which had elapsed between the confession of the wife of the accused Nanavati and the actual attack upon the deceased Ahuja, was about three hours. In the case before us the period which elapsed was, according to the Appellant himself, six hours, from 5.00 P.M. to about 11.00 P.M.

It also seems to us that, as pointed out in R. v. Duffy (1949 AELR 932), the past relations between the deceased and the accused would not furnish a sufficient ground for holding that a provocation becomes grave and sudden if the accused had the time to think over the matter. It was observed there, in considering the case of a young wife, who had attacked and murdered her husband:

Circumstances which merely predispose to a violent act are not enough. Severe nervous exasperation or a long course of conduct causing suffering and anxiety are not by themselves sufficient to constitute provocation in law. Indeed, the further removed an incident is from the crime, the less it counts. A long course of cruel conduct may be mere blameworthy than a sudden act provoking retaliation, but you are not concerned with blame here--the blame attaching to the dead man. You are not standing in judgment on him. He has not been heard in this Court. He cannot now ever be heard. He has no defender here to argue for him. It does not matter how cruel he was, how much or how little he was to blame, except in so far as it resulted in the final act of the Appellant. What matters is whether this girl had the time to say: ''Whatever I have suffered, whatever I have endured, I know that Thou shalt not kill.'' That is what matters ...... Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation.

Learned Counsel for the Appellant also relied upon a decision of the Allahabad High Court in Akhtar v. State (A.I.R. 1964 All 264) where, on the fact of that particular case, I had held that the back-ground of the quarrels between the accused and the deceased, together with the highly abusive language used by the deceased, and, finally, the physical attack on the accused by the deceased, were sufficient to drive the Appellant, in the ordinary course of nature, to the point at which he lost self-possession so that he was entitled to the benefit of Exception I of Section 300, Indian Penal Code. Each case depends on its own facts. The question, whether provocation, in a particular case, was both grave and sudden, is one of fact.

Two facts are emphasised in order to submit that the provocation to the Appellant must have been that he saw Mewa Lal and Kamla Devi lying together when he entered the ''Dera''. Firstly, it was pointed out that a second bedding was not recovered by the police from the ''Dera''. It may be that Smt. Kamla Devi was no longer living at the ''Dera'' when the police visited it. She must have removed the bedding. If the Appellant and his wife were living in that ''Dera'' there must have been at least another bedding. She was not asked what happened to her own bedding. Secondly, it was pointed out that the body of the deceased was found naked. This is true. But, the offence was committed in the month of June when it could be hot. Even if the deceased had gone to bed without his clothes on, it would not affect the result. Indeed, even if the Appellant''s wife and Mewa Lal could be believed to be lying together, the result would not be different. The Appellant, on his own version, knew what to expect, and, if that version had any truth in it, he had decided either to kill or be killed before he entered the ''Dera''. Although there was said to be some moonlight during the night it was very doubtful what light could trickle into the ''Dera'' so as to enable to Appellant to make out anything beyond human forms. In this context, the provocation could not, even if it was grave, be said to be sudden. The Appellant had considerable time to reflect. Exception I to Section 300, Indian Penal Code, protects acts done in the course of a sudden overpowering gust of passion caused by the speech or action of the deceased. If the proverbial "cooling time" is used by the accused for deliberation on wrong lines so that it is converted into heating time, the accused cannot claim the benefit of Exception I to Section 300, Indian Penal Code. It was the Appellant''s own thoughts and mind and not any act or speech of the victim which could be said here to have mainly provided the fuel for what is described as the last provocation. It is not the mere existence of the provocation but its sudden character which had to be shown by the Appellant.

After taking into account all the facts and circumstances of the case, it appears to us that the Sessions Judge has rightly awarded the lesser sentence of life imprisonment to the Appellant after convicting him u/s 302, Indian Penal Code. But, we find no justification for the imposition of a sentence of fine of Rs. 100/- as well on the Appellant, when he has been sentenced to life imprisonment. After having found the Appellant guilty u/s 302, Indian Penal Code, we cannot impose a sentence less than one of life imprisonment.

The provocation, in this case, certainly could be grave. But, it was, apparently, spread out over such a length of time that it could not be held to be sudden. The fact that the provocation was there and that the Appellant is a yongman could certainly be taken into account for purposes of remission of a part of the Appellant''s sentence by the State. But, the Appellant has to turn elsewhere for mercy. We have no power to remit or reduce any part of the sentence. The minimum sentence which can be imposed for an offence u/s 302, Indian Penal Code, is imprisonment for life.

We, therefore, partly allow this appeal to the extent that we set aside the sentence of fine. But, we uphold the conviction of the Appellant for an offence punishable u/s 302, Indian Penal Code, and the sentence of imprisonment for life. Subject to the modification made, this appeal is dismissed.