Sarwan Singh Chattar Singh vs The State

Gurnam Singh, J.—Sarwan Singh Appellant has been convicted for the murder of his wife Mst. Sito and sentenced to transportation for life. He has also been convicted u/s 324, I. P. C. for causing simple hurts to Banta Singh and Bachan Singh P. Ws. and sentenced to 3 months R. I. and one month''s JR. I. on each count respectively. He has appealed against his conviction and sentence.

The prosecution case is that Mst. Sito was jarred to the Appellant about 10 years before the incident. The Appellant and his wife were living in the same compound in which were living his cousins. Bachan Singh P. W. along with his brother and other members of the family. Bachan Singh P. W. and the Appellant were also partners in cultivation. Previous to this the Appellant along with his mother and other brother were living at Bassi Arq Their house was at that time occupied by Bachan Singh. The Appellant along with his mother then came to live in village Moharsingh wala where Bachan Singh P. W. was residing.

AS the house belonging to the Appellant was used by Bachan for storing his goods, he put two rooms at the disposal of the Appellant in the same compound in which he was living. Oh 3-2-1952 the Appellant, his wife Mst. sito along with Banta and Mohinder Singh P. Ws. were sleeping in the same room. At about mid night Banta and Mohinder Singh P. W. were awakened by the shrieks of the murdered woman Mst. Sito. They saw the Appellant causing injuries with a spear to his wife ''Banta raised an alarm. The Appellant inflicted an injury on his person also. According to the story given by Banta Singh the Appellant after finishing with his job changed his dress and then removed ''Saggi (piece of gold jeweler) from her head. After this he left the room.

On hearing hue and cry of Banta, Bachan Singh P.W. also came towards the spot and attempted to capture the Appellant when, he was emerging out of the room. Bachan Singh at that time saw that the Appellant was armed with a blood stained spear When Bachan Singh was attempting to catch the Appellant the latter inflicted an injury on his person also. The Appellant then got on to the roof and made good his escape. After this Bachan Singh went inside the room and found Mst. Sito lying unconscious on the cot and in an injured condition. The shutters of the room in which Mst. Raj Kaur mother of the Appellant was lying'' were found chained from outside by Bachan Singh. The other members of the family also later gathered there on hearing hue and cry. Bachan Singh P. W. then sent his cousin Bansi to bring the Lamberdars to the spot. Mst. Siton had by this time succumbed to the injuries.

Next morning Bachan Singh accompanied by Chaukidar of the village went to Police station Bhiki situate, at a distance of two Kos from the spot and made a report of the occurrence at 9 A.M. The station house officer was already investigating a case in Anr. village to which place the copy of the report was sent to him.

Sarup Singh who was A. S. I. of this police station on getting the report from the police station at about 10 A.M. proceeded to the spot reaching there at about 10-30 A.M. He prepared inquest report, and injury statement of the deceased and dispatched the dead body to civil hospital Mansa for post mortem examination. He also prepared an injury statement of Banta P. W. and sent him for his medical examination. He took into possession some blood stained straw from the spot and put it into a sealed parcel. He recorded the statements of Banta Mohindar Singh, Mst. Raj Kaur Bhag Singh and Nahar Singh P. Ws. and almost completed the investigation, by 2-30 P.M.

On search for the Appellant he A.S.I.M. Sarup Singh learnt that the accused had gone to Bhiki. He loilowed nun to that place and actually met him in the vicinity of the police station, Bhiki In fact the police officer deposed that the Appellant was proceeding to the police station. He was arrested by the Police officer in. presence of Kaur Singh P. W. On search of his person the investigating officer found ''Saggi'' P 8 and blade of spear P 6 along with its handle P7. All these articles were taken into possession by him. The next day the investigating officer again went to the spot where he got the site plan prepared.

Dr. Bhag want Singh Medical Officer Mansa conducted the post mortem examination on the dead body of the deceased on 4-2-52 at 6 P.M. He found the following injuries on her person:

Stab cut wound1 1/4" x 1" underlying rib cut and" lung perforated on front of right chest upper part.

Stab cut would 1 1/14" x 1"intestines protruding, through it and perforated on left hypochondriac region;

Cut would 4" x 1 1/2" into bone deep on anteroom medial aspect of right lower leg in middle.

Injuries Nos. 1 and 2 were caused by sharp edged pointed weapon and No. 3 by a sharp edged weapon. The cause of death was hemorrhage and shock resulting from injuries to lung and intestines. In the opinion of the Doctor the death took place about 2 hours after the infliction of the injuries. . Injuries Nos. 1 and 2 were individually sufficient in the ordinary course of nature to cause death. The Doctor found that the stomach was empty.

Dr. Hari Kishan, Medical Officer, Bhiki examined Bachana P. W. on 4-2-52 at 12 noon and found the following injury on his person:

Punctured wound3/4" x 1/3" skin on the right forearm back lunar aspect middle part.

The injury was of 12 hours duration and was the

The Doctor also examined Banta Singh P. W age 12 years on the, same day and found an incised wound 4" x 2" x l" on the right thigh and outer part The injury was the result of a sharp edged and its duration was about 14 hours at the time of. examination.

As a result of the investigation the appall and was sent-by the police to stand his trial for the offences mentioned above. He was examined by the Committing court as well as during the trial by the Additional Sessions Judge. His statement before the C. M. was transferred to the Session file during the trial. Before the Magistrate the Appellant denied his offence and stated that o the night occurrence he had gone to irrigate his fields leaving his wile behind in the house.

He fur ther that his wife was of bad character and was living in adultery with Bachan P.W and that he gone out to irrigate his field He was again examined during the trial. He again denied his offence. He stated therein that he had left his house at about 10 P, M. for'' irrigating his fields showed ignorance about the murder of his as he was in the fields at the time he denied having caused injuries either to banta or Bachan.

The case of the Appellant as put by his counsel time of cross-examination was that he found Mst. Sito in a compromising position with bachan P. W. on his return from his fields at night time and he killed her as a result of grave and; sudden provocation thus offered to him.

To establish the guilt of the Appellant the prosecution relies on the testimony of B anta Singh PW. 4 and Mohindar Singh P. W. 5 who are said be the eye-witnesses of the occurrence. The prosecution also relies on the testimony of Bachan Singh P. W.3 who arrived at the scene of occurrence almost immediately after the assault and received the, injury at the hands of the Appellant.

All the three witnesses named above are closely related. Bhajan Singh is the brother of Bachan Singh P., W. 3. Banta Singh P. W. 4 is the son of Bhajan Singh. Mohindar Singh P. W. 5 is the brother of Bhajan Singh''s wife. The other evidence produced by the prosecution consists of Nahar singh P. W, 13 and Bhag Singh C. W. 1, who came to the spot after the occurrence.

it as urged before us that there was a delay in making the report of the incident, and this delay according to the defence was not satisfactorily explained. It is no doubt true that the report was made about 9 hours after the incident in a police station situate at a distance of only two . ''kos'' from the spot. Bachan Singh P. W. is the maker of the report and explains that he did not go to the police station at night time on account of the fear of the Appellant. This explanation, however, was not given at the time of making the report.

Apart from this the lambardars and the Chauki-dar could have gone to the police station. Even if The Iexplanation is true there was ample time at the disposal of Bachan Singh to cook a story of the occurrence Moreover there is no other corroborative evidence produced by the prosecution to, support the testimony of Bachan Singh and the other eye-witnesses. The two eye-witnesses as: already mentioned are close relations of Bachan Singh. In view of the fact that the eye-witnesses are his relations and that Bachan Singh himself had illicit Intimacy with the deceased the evidence of the prosecution regarding the actual incident has to be carefully scrutinised.

The motive for the murder was given by Bacnan Singn P. W. in the P.I. B It was mentioned there that, Mst. Sito the deceased woman was not sent to her husband, the Appellant, by her -parents after the marriage ajad that a dispute was. going on between the Appellant and Mst. Site''s parents. It was on account of this grievance that the Appellant murdered his wife. - This motive was denied by Bachan Singh P. w. during the trial. It was not supported by any other evidence. Bachan Singh P. W. is not .married. There is ample evidence on the record and it was not denied before us by the learned Counsel for the State, that Bachan Singh P.W. was living in adultery with the deceased.

This fact was kept back by Bachan Singh at the time of making the report and instead he supplied a false motive, regarding the murder, to the police. This is a very material fact on account pf the position taken up by the Appellant -hr Cross-examination that the deceased was killed at the time when, she and Bachan Singh P. W. were found in a. compromising position on the night of the incident. The prosecution did not allege any immediate cause for the murder.

It is in the evidence of the prosecution that a Panchayat was held about two months previous to the incident in which the Appellant complained of his wife''s unchastity. and intimacy with Bachan Singh P. W. The woman persisted in continuing her intimacy with her paramour. In spite of this fact both the husband and wife lived together and the Appellant showed an exemplary patience and never mal treated her. Bachan Singh and Banta Singh P. W s. are inmates of the same house. They were in a position to tell so if anything had happened between the husband and the wife pre-ceding the murder. It, therefore, appears to be strange that the Appellant killed the woman suddenly that night without any immediate cause. The accused did not plead in his statement to the court, that he had killed his wife under grave and sudden provocation, but this case of the Appellant was directly put to the eye-witnesses and Bachan Singh. P. W. by the learned Counsel of the Appellant during the trial. It was urged before us that the Appellant had gone out to irrigate his fields and that on his return he found Bachan Singh P. W. with the deceased in the house of the Appellant in a compromising position.

According to the learned Counsel It was-under those circumstances that the Appellant killed his wife and injured Bachan Singh who managed to escape. It was urged by the counsel for the State that the Appellant did not claim any exception at the trial and that at any rate if he claims-an exception he must prove it. Arguments were addressed to us by both sides on this question.

It is no doubt true that the Appellant did not expressly claim the benefit of exception 1 to Section 300, I. P. C. He merely stated that his wife was of loose character and that on the night of occurrence he had gone out to irrigate his fields. He stopped at that and did not plead that he had killed her under grave and sudden provocation. His counsel, however, pointedly cross-examined the eyewitnesses on that point and put his case to them claiming the benefit of the exception.

It is well established that the nature of the offence is not ascertained merely from the statement of an accused person but also from the trend of cross-examination of prosecution witnesses as well as the arguments advanced by the counsel during the trial. The case, of the Appellant as already mentioned before the trial Court was that he had killed his wife under .grave and sudden provocation. The learned Additional Sessions Judge has dealt with this plea of the Appellant.

In rejecting the arguments of the Appellant relating to this exception the learned Judge was mainly influenced by the facts:

(l) That the accused did not expressly claim it;

(2) That there was no material on the record to support it;

(3)That the burden of proving the exception was on the accused and he had failed to discharge the burden.

The learned Judge was also influenced by the fact that there was present more than one fatal injury on the person of the deceased and that Bachan Singh and Banta Singh P. Ws. also bore marks of injuries on their persona. I am clearly of the view that the learned Judge has erred in coming to the conclusions he did. Assuming that the burden of proving the exception is on the accused in my opinion, he can discharge this burden by relying on prosecution evidence, without producing any defence evidence and even without making his own statement claiming the benefit of the exception. If the court comes to a conclusion from the prosecution evidence itself that the accused is entitled to the benefit of an exception it should give the accused that benefit even though he may not plead exception and rely on it.

In our country on account of ignorance, the accused generally deny the commission of an act and of ten fail to set up the defence open to them. In case a benefit of an exception is claimed by an accused person the burden placed on him is comparatively very light than the burden placed on the prosecution to establish the guilt of an accused person. In a criminal trial the burden of establishing the guilt of the accused always lies on the prosecution and it never shifts, but when the accused has claimed the benefit of an exception his duty u/s 105. Evidence Act is to introduce such evidence as will displace the presumption of the absence of the circumstances bringing the case within. the exception claimed and it will be sufficient if the court is satisfied that such circumstances may have existed. However, when such an exception is not pleaded but it appears from the prosecution evidence that there are reasonable grounds for holding that the case of the accused falls within an exception, the presumption enacted in Section 105, Evidence Act does not arise. The burden of proving the guilt of the accused remains on the prosecution. If upon review of the evidence and the circumstances present on the record there is reasonable doubt as to whether the case falls within an exception the prosecution has failed to discharge that burden and the accused is entitled either to acquittal or to benefit of the exception as the case may be.

The question of burden of proof was dealt with in a case before the House of Lords. In -Wilmington v. Director of Public Prosecutions 1935 AC 462 (A) their Lordships observed:

In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation, upon a review of all the evidence are left in reasonable doubt, whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to, be acquitted.

Almost the whole law of England was reviewed by their Lordships Viscount Sankey L. C. who delivered the judgment observed:

Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the- prosecution to prove the prisoners guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception if, at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out a case and the prisoner is entitled to an acquittal.

No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is the part of common law of England and no attempt to whittle it down can be entertained.

When dealing with a murder case the Crown must prove (a) death as the result of a voluntary-act of the accused and (b) malice of the accused. It may prove malice either expressly or by implication. For malice may be implied where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given (this is a question for the jury) the accused is entitled to show, by evidence or by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or upon a review, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted.

Woolmington''s case (A)'' was considered by a Pull Bench of Rangoon and Allahabad High Courts and was followed by them. In - ''Emperor v. U. Damapala AIR 1937 Rang 83 (FB) (B) it was held:

The phrase ''burden of proof is used in two distinct meanings in the law of evidence, namely, the burden of establishing a case, and the burden of introducing evidence. In a criminal trial the burden of proving everything essential to the establishment of the guilt of the accused always lies upon the prosecution and that burden never shifts whatever the evidence may be during the progress of the case. But it would clearly impose an impossible task on the prosecution if the prosecution were required to anticipate every possible defence of the accused and to establish that each such defence could not be made out Of this task the prosecution is relieved by the provisions of Section 105 and its closely allied Section 106 in Section 105 the phrase "burden of proof" is used in the sense of duty of introducing evidence The duty of the accused u/s 105 is to introduce such evidence as will displace the presumption of the absence of circumstances bringing the case within an exception, and will suffice to satisfy the court that such circumstances may have existed. The burden of the issue as to the non-existence of such circumstances is then shifted to the prosecution, which has still to discharge the major burden of proving the guilt of the accused beyond reasonable doubt.

If the Court, on a review of all the: evidence is left in reasonable doubt whether the circumstances bringing the case within the general exceptions do exist or not the accused in the case of a general exception is entitled to be ac-quitted or, in the case of a special exception, can be convicted only of the minor offence.

The decision in - ''1935 AC 462 (A)'', viz., that whilst the prosecution must prove the guilt of the accused there is no such burden laid on the accused to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence, is in no way-inconsistent with the law in British India. The principles there laid down form a valuable guide to the correct interpretation of Section 105.

In - Parbhoo and Others Vs. Emperor, It was hold by a majority of 4 .''S Judges:

In-a case in which any general exception in the Penal Code is pleaded by an accused person and evidence is adduced to support such plea, but such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the general exception pleaded the accused person is entitled to be quitted if upon a consideration of the evidence as a whole including the evidence given in support of the of the said general exception) a: reasonable doubt is created in the mind of the court whether the accused person is or Is not entitled to the benefit of the said exception the Indian Evidence Act is little more than an attempt to'' reduce the English law: to the form of express propositions arranged in their natural order with some modifications rendered necessary by the peculiar circumstances of India. And even though the Evidence Act does in certain respects differ from English law and sup-plies a distinct body of law as to the rules of evidence, it cannot be said that the frarners of the Indian Law could or did intend to depart from the English law on the subject of burden of proof in criminal cases. Therefore English cases can be referred to in order to interpret Sections 102 and 105, Evidence Act.

The learned Judges considered. both the cases namely,- The Woolmington v. Director of Prosecutions.(A) and a Pull Bench of the Rangoon High Court already referred to and followed them.

In - Emperor Vs. Shaikh Hasan Abdul Karim and Akbarkhan Attamahomed, the learned Judges observed: Section 105 does not relieve a Judge, even in cases where the accused has not pleaded that his case comes within any particular exception, from pointing out to the jury such facts in the evidence as might justify the jury in taking the view that the accused''s case was covered by one or other exception. Where counsel for the accused has, for whatever reason, refrained from putting forward the argument that the case of the accused falls within one of the exceptions, the Judge is not absolved from the necessity of drawing the attention of the jury to the applicability of the exception, if in his opinion there is any- thing in the evidence which might attract the application of the exception. But the Judge is for bound in his charge to the Jury to explain exceptions which in his opinion are not applicable and for which there is no foundation whatever laid in the cross-examination.

The authorities mentioned above have been followed by various High Courts.

The learned Counsel for the State in support of his contention relied upon - ''Jadeja Danubha Vanubha v. State� AIR 1952 Sau 3 (E). In this case it was held by a Division Bench of that court:

So far as the question of the standard of proof required for the defence and the prosecution is concerned, there is nothing in the Evidence Act to suggest that the numerical values of the two sets of probabilities ought to be the same '' or that they ought not to be the same, though in practice It may well be that the standard of proof required is lower than the standard of proof required of the prosecution to establish its own case. . But that is not so much because the standard itself is lower as requirements of the prudent man, and the prudent man might well consider it his duty to act upon circumstances in the one case which he might not consider to be justification for action in the other case. The test either way is the estimate of probability by the prudent man and the result on the prudent man''s, mind as to what his duty really is in all the circumstances of the particular case.

If I may say so with respect I would prefer to follow the Full Bench cases of Rangoon, Allahabad and Bombay High Courts and the case decided by the House of Lords mentioned above. Apart from, this in the ''Saurashtra case (E) the plea of the accused was not believed. It was found on facts'' that the deceased was not of bad character and no stranger was found in the house as pleaded by the accused.

(14-20) in the light of the observations made in the authorities referred to regarding the burden of proof I will now consider the case of the Appellant on the facts and circumstances proved on this record.

It was conceded before us by the learned Counsel for the State that the deceased in fact was living in adultery with Bachan Singh P. W. It was also conceded that the accused had his turn of water to irrigate his fields that night. It was, however, contended that he did not go out for this purpose. On the other hand the accused stated before the court that he had left the house at 10 P.M. for the purposes of irrigation. This plea was supported by his mother Mst. Raj Kaur who was produced as a witness by the prosecution.

Even eliminating the testimony of Mst. Raj Kaur, in my opinion, there is ample material on the record to substantiate the plea of the Appellant raised in the cross-examination of the prosecution witnesses (His Lordship reviewed the evidence and proceeded). From the review and examination of, the evidence of the prosecution and the circumstances of the case I am clearly of the view that when the Appellant returned from his fields that night he found Bachna p. w. with his wife in the same room. He then inflicted injuries on Bachna as well as his wife. Bachna succeeded in escaping, but he killed his wife under grave and sudden provocation. It appears that Banta P. W was accidentally hit in the struggle when he tried to intervene; otherwise there was no sense in injuring this boy. These facts are even supported by Mst. Raj Kaur but I have eliminated her testimony from consideration on account of the fact that she is the mother of the Appellant and it was natural for her to help him.

The learned Additional Sessions Judge was also influenced by the fact that more than one injury on the person of the deceased were fatal. This fact to my mind is immaterial once I come to the conclusion that the Appellant acted under grave and sudden provocation. In Hussain v. Emperor AIR 1939 Lah 471 (F), the learned Chief Justice Sir John Douglas Young in a similar case observed:

But even accepting that all these wounds were inflicted by the accused the sentence is too great. The essence of Exception 1 is that the accused is deprived of the power of self-control. Obviously in my opinion if a person is deprived of self control the mere amount of beating which he gives to the- person who deprives, turn of that control is not a proper criterion to take into account, in awarding a sentence. The more self-control is lost - and therefore the more Exception I applies to the case - the more likely are numerous injuries to be inflicted.

In the case cited above the trial court had given a sentence'' of three years R. I. which was reduced by the learned Chief Justice to three months R. I.

It is also proper to mention here the conduct of the Appellant. It is established from the prosecution evidence that he was arrested in the vicinity of the police station when he was actually proceeding to that place. It clearly shows that no attempt was made by the Appellant to abscond. It appears that he actually wanted to go to the police station to tell the story of the incident. If he had committed a deliberate and planned murder of his wife in my judgment he would not have gone to the police station.

The. learned Additional Sessions Judge has found that the immediate cause of the murder was shrouded in mystery, but on review of the prosecution evidence and the circumstances present on the record I have come to the conclusion that the Appellant killed his wife on account of grave and sudden provocation when he found the paramour of his wife along with her in his house at about mid-night. I, therefore, set aside his conviction u/s 302, I. P. C. and hold that he is entitled to the benefit of Exception 1 to Section 300, I. P. C. His conviction is, therefore, altered from Section 302, I. P. C. to Section 304, I. P. C. and his sentence is reduced from transportation for life to one year''s rigorous imprisonment. Regarding simple injuries caused, to P. Ws. Banta Singh and Bachan Singh his sentence is reduced to that of already undergone by him.

Passey, J.

I agree with my learned brother that it was Sarwan Appellant who had put to death with a spear his wife Mst. Sito, aged 23 years, on the night of 3-2-1952, and that he had also caused one injury each to Bachan Singh and Bant Singh P. Ws. with that weapon; but as my opinion with regard to the nature of the offence committed by the Appellant, so far as the causing of the death of Mst. Sito goes, is different I must give, my reasons, and before doing so set out the facts, as stated by the prosecution and the stand taken by the accused in his defence.

Sarwan Singh Appellant belongs to village Moharsinghwala, where he owns ancestral land and a house in which his cousins have also their share. His father chatra had two other brOrs. , Atra and Ratna. Atra left one son Bansi and Ratna was survived by his two sons Bhajna and Bachna P. W. 5. Bant P. W. is the son of Bhajna and Mohinder Singh P. W. is the brother of Mst. Chetanno wife of Bhajna. On the death of Chatra, which took place about 20 years ago, his widow Mst. Raj Kaur along with her son Sarwan Singh Appellant who was only a lad then went to reside with her other son at Bassi Arkh and lived there till about six months before the incident.

During that period Sarwan''s land in village Moharsinghwala was cultivated by his cousins including Bachna P. W. as his tenants, and his house, was also in their possession. Mst. Sito had been married to Sarwan when both of them were yet children, and Mst. Sito so long as her husband and: mother-in-law stayed at Bassi Arkh, continued to live with her parents at village Mavi Shahpur. About 0 months before the occurrence, which took place'' on the night of 3-2-1952, Mst. Raj Kaur and Sarwan had returned to their village Moharsinghwala. As in the portion of the house belonging to, them some fodder had been stored by Bachna, a part of his own house was given by him to them for residence. Mst. Sito had also come along with Sarwan and her mother-in-law to Moharsinghwala and was living with Sarwan Singh in the rooms made available by Bachna. Sarwan Singh had made Bachna his partner-in-cultivation also. On the night of 3-2-1952 Sarwan accused, his wife Mst. Sito, his cousin Bhajna''s son Bant and Bant''s maternal uncle Mohindar Singh had slept in the same room.

At about mid-night Mst. Sito was suddenly heard to cry and scream. There was "Diva" light in the room and Sarwan was seen causing injuries with a Barchha to his wife while she was lying on her charpoy by Bant and Mohindar. He gave more than one blow to her and as Bant tried to raise an alarm he was dealt a blow in his buttock with a spear. The accused is then alleged to have removed a Saggi (an ornament for the head) from Mst. Sito''s head and to have moved out of the room with a view to escape; but as he was emerging from the room he was seen with a blood-stained spear by Bachna. An attempt to capture him was made by Bachna but he was given a Bhala blow on his right arm. The accused then went up the stairs of his house and from there jumped down and ran away. Bant P. W. told his uncle Bachna that Sarwan Singh had killed Mst. Sito and had given a Barchha injury to him. Mst. Raj Kaur, mother of Sarwan Singh, was sleeping in the adjacent room with the shutters of its door chained from outside.

Bachna is said to have then sent information of the murder to the lambardars through his cousin Bansi. Bhag Singh, Nahar Singh and Ors. arrived at the house of Sarwan and saw Mst. Sito dead. A report regarding the incident was lodged by Bachna at Police station Bhiki, which was 2 kos distant, at 9 A.M. on 4-2-1952. The report was recorded by Jarnail Singh P. C. who was incharge of the police station that day, as the Sub Inspector was away on some other duty and Sarup Singh A. S. I. was also in Anr. village in connection with the investigation of some case. He sent a copy of the P. I. R. per Karnail Singh to M. Sarup Singh A. S. I. and wrote a ruqqa Ex. P/R to the Doctor I/O of the Bhiki Dispensary requesting him to examine Bachna. Gurdev Singh P. C was sent to the place of occurrence for taking care of the dead body of Mst. Sito.

M. Sarup Singh got the P. I. R. at about 10 A.M. at village Hiron Khurd and by 10-30 A.M. he was able to reach Moharsinghwala. He prepared the inquest report Ex P/B and the injury statement Ex. PC, and despatched the dead body to the Civil Hospital Mansa for post mortem examination. The investigating officer found Bant Singh also injured and sent him for medical examination. Near the dead body some blood-stained straws were found lying. They were collected and sent to the Chemical Examiner and the Seriologist, Government of India, whose reports have proved that the stains were those of human blood. He concluded the examination of Bant Singh, Mohindersingh, Mst. Raj Kaur, Bhag Singh and Nahar Singh P. Ws. by 2-30 P.M. On coming to know that Sarwan accused had gone towards Bhiki, he started in that direction on a bicycle to effect his arrest. Sarwan met him near the Civil Hospital Bhiki when he was going towards the police station. He was arrested in the presence of Kaur Singh and Chiranji Singh P. Ws. The accused had then in his possession la. Bhala blade. (Ex. P. 6), a stick on which the blade'' could be fixed (Ex. P. 7) and the Saggi (Ex. P. 8). All those articles were taken over from him..by M. Sarup Singh.

Mst. Sito''s dead body was examined by Dr. Bhagwant Singh medical officer Mansa on 4-2-1952, and the following injuries were noted by him

Stab cut wound 11/4" x 1" underlying rib cut and lung perforated on front of right chest upper part.

Stab cut wound 11/4" x 1" intestines protruding through it and perforated on left hypochondriac region.

Cut wound 4" x 1" x 1" into bone deep on antero medial aspect of right lower leg in middle.

Injuries Nos. 1 and 2 were individually sufficient in the ordinary course of nature to cause death. The right lung and the small intestines were found perforated. In the opinion of Dr. Bhagwant Singh Mst. Sito had died of haemorrhage and shock .caused by the injury to the lung and the intestines.

Bachna and Bant P. Ws. were examined at noon on 4-2-52 by Dr. Hari Klshan. Bachna was found to have sustained a punctured wound 3/4" x 1/4 " skin on the right forearm back, lunar aspect middle part., Bant had an incised wound 4"x ''2" x 1" on the right thigh upper and outer parts.

The investigating officer was able to put up the challan of the accused in the court of the committing Magistrate by 18-2-1952. On the conclusion of the prosecution evidence the accused when examined by the committing Magistrate u/s 342, Code of Criminal Procedure stated that at the time of the incident he was not present in his house but had some to irrigate his fields. He, however, admitted that Mst. Sito Bant and Mohinder Singh P. Ws. had slept at his house in his absence. e denied the recovery of the Bhala blade (Ex. P. 6) and Stick (Ex. P. 7) and Saggi (Ex. P. 8) in the presence of Kaur Singh and Chiranji Singh P. Ws. In answer to Anr. question while repeating that he was at the time of the incident away to his fields, he added that his wife was of a loose character and was living in adultery with Bachna P. W.In the Sessions Court he made certain alterations in what he had stated before the Committing Magistrate. He stated that Mst. sito alone was sleeping in the room where the occurrence had happened and that he had left for his fields for irrigating them at about 10 P. M.. He expressed ignorance as to how his wife had met her, death.

To the question if he had caused an injury to Bant he did not give any reply, but when a similar question was put to him with regard to Bachna he said that the allegation was wrong and that he (Bachna) had not been hurt by him. On being asked by the court if he was arrested while he was going towards the police station and if Ex. P. 6, P. 7 and P. 8 had been recovered from him, he replied that he had been arrested from shis-field outside. While he owned that Bachna Was his partner-in-cultivation, he alleged that he was not on good terms with Bachna, as he had usurped his land when he was away to Basi Arkh. Bant Singh and Mohindar Singh P. Ws. were alleged by him to have told lies at the instance of Bachna. No evidence was led by him in defence. The arguments of the counsel of both sides are bas-ed upon the prosecution evidence and the statements of the accused referred to above.

In the F. I. R. (Ex. P. A) that was lodged by Bachna P. W. at Police station Bhiki, it was stated that his nephew Bant aged about 12/13 years used to sleep in the house of Sarwan Singh and that on the night of the incident he had, as usual, Slept there. At about 12 midnight Bant raised an alarm upon hearing which he rushed to the house of Sarwan Singh accused to find Sarwan emerging from the room where Mst. Sito had been fatally wounded and Bant injured. He tried to catch hold of Sarwan but was given a Bhala blow on his right wrist. The accused then got up the stairs and from the roof jumped down into the street and disappeared. Bachna also stated in the report that he had seen one bleeding wound on the buttock of Bant P. W. on account of which he (Bant Singh) had become incapable to walk and that Mst. Sito had breathed her last shortly after his arrival in her room. Giving the cause of murder which was perhaps his own impression or belief Bachna stated that there were differences between the accused and his parents-in-law, as the latter had not sent Mst. Sito to her husband after her marriage.

Commenting upon the F. I. R. the learned Counsel of the Appellant urged that it was very much belated and that the delay in lodging it was probably due to the fact that Bachna was collecting false evidence and was manufacturing some plausible accusation against the accused. He drew our attention pointedly to the absence of the name of Mohindar Singh P. W. from the P. I. R. and argued that for that reason Mohindar Singh should be taken to be an after-thought. The learned Counsel further stressed that the motive for the crime as alleged by Bachna was not supported by any other evidence.

The murder had been committed at about midnight. The news about it was not kept a secret. Mst. Raj Kaur, mother of the accused, had arrived at the scene from the adjoining room and other persons including Bhag Singh and Nahar Singh P. Ws. to whom information had been sent by Bachna had also come and seen Mst. Sito dead. It was a winter night and the accused was at large with a spear. An apprehension of an assault at his hands could reasonably be entertained by Bachna if he moved towards the Thana at that hour and perhaps nobody in those circumstances thought it sale to go out of the village immediately. It is in the evidence of Bachna P.W. that he set out for the police station by day-break. Nahar Singh has also stated that Bachna was deputed by them to carry information to the police. There is no evidence to repel the statement of Bachna that he had left for the police station by daybreak. No evidence had to be cooked up, as even according to the accused Mohinder Singh and Banta P. Ws. had slept in the very room, where Mst. Sito had gone to sleep. Those two boys are the only eye witnesses in the case. Bachna, therefore, did not lose any time unnecessarily in informing the police.

We have it in the evidence of A. S. I. Sarup Singh that practically the entire investigation was over by 2-30 P.M. and the accused had been arrested in Bhiki that evening. Mohinder Singh P. W. had been examined before 2-30 P.M. That he was present in the room where Mst. Sito was killed is proved not only by Bant, but also by the statement of the accused himself made before the committing Magistrate. The Appellant''s mother Mst. Raj Kaur has also stated that Mohindar Singh had slept there that night. The omission of his name from the F. I. R. was therefore unintentional and only accidental. Bachna informant was not asked as to why he had not described him as an eye witness in the F. I. R. The argument that Mohindar Singh who is like Bant a lad of 12 years is a got up witness, is therefore, entirely untenable.

It is true that the motive attributed to the accused in the. F. I. R. has not been proved by any evidence not even by Bachna''s statement in court; but there is an indication in support of it in the statement of Mst., Raj Kaur P. W. 7. She has stated that during the penod she and her son Sarwan lived at Basi Arkh Mst. Sito to deceased lived with her parents in Mavi Shahpur. Her statement rakes clear that so long as she and Sarwan singh stayed at Basi Arkh and that was for a very considerable time, the parents of Mst. Sito had not sent her to Sarwan. The absence or inadequacy of motive cannot, however, absolve the accused of the charges against him. 1 will discuss later the argument that the motive mentioned in the F. I. R. had been invented by Bachna with a view to defeat the plea of grave and sudden provocation that the accused could urge; as he knew that he (accused) had- acted under the impulse of fury on finding him and his wife in a compromising position.

It was next urged by S. Tirath Singh that no reliance should be placed on the evidence of Bant, Mohindar Singh and Bachna; as the former two are relations of the third who is interested in involving the accused in some seriqus crime. The allegation is that it was notoriously known in the village that Bachna and Mst. Sito had illicit connections. Despite the advice of the local Panchayat given to her on more than one occasion Mst. Sito had insisted in carrying on the liaison with him. The complainant to the Panchayat each time was Sarwan.

The learned Counsel contends that as Sarwan had been moving the Panchayat against Bachna from time to time, Bachna had grown inimical to him. Bachna being definitely hostile ana the other two witnesses being under his influence, their evidence, S. Tirath Singh says, should be thrown over board. As has been proved by the evidence of Mst. Raj Kaur and the statement of the accused himself, Bant and Mohindar Singh had slept in the same room where Mst. Sito had slept. Bant had received a bhala blow at the hands of Sarwan and that injury had been found to be present on his buttock by Dr. Hari Kishan. Bachna also had a sharp pointed weapon injury on his wrist. It cannot, therefore, be said that Bant or Mohindar had not seen the incident or that Bachna had not come across Sarwan. These three wit-nesses had seen Sarwan Singh with a spear in his hand and two of them had actually received injuries with that weapon. I cannot, therefore, have any hesitation in holding that Bant and Mohindar were present in the room when the inCident happened and that they had seen it.

Bachna has also received an injury at the hands of the accused. It is true that Bant is Bachan''s nephew & Mohindar is Bachna''s brother''s wife''s brother; but Sarwan had allowed Bant and Mohindar to sleep at his house; because he had nothing in his mind against those boys and they in their turn had no axe to grind against Sarwan. There is no reason to support that they have given false or inspired evidence against him. They are undoubtedly more closely related to Bachna than to Sarwan, but that circumstance can only call for a careful scrutiny of their evidence as a measure of circumspection. The version of the incident given by Bant and Mohindar is on all essential points� uniform. The discrepancies in their statements are slight and immaterial. Nothing could toe urged by the Appellants'' counsel to show that these witnesses had given evidence in a spirit of partisanship or that what they stated had been taugnt to them by Bachna.

S. Tirath Singh has tried to build up the defence of grave and sudden provocation, which, according to him is inferable from certain circumstances. His story Is that on the evening of the incident Sarwan Singh had gone to his fields to irrigate them and taking advantage of his absence Bacnna went to Mst. Sito at about mid-night. Bachna was actually having sexual intercourse with her when quite suddenly and unexpectedly Sarwan returned to his house to find the two together. This naturally deprived him of the power of selfcontrol, it was under the impulse of that intense provocation that he gave some blows to his wife with a Bhala that happened to be with him and killed her. He also gave a blow to Bachna because he found him in that compromising position with his wife. Bant''s injury on the buttock was described to have been received by him when perhaps he tried to intercede and save either Bachna or Mst. Sito.

Neither before the committing Magistrate nor before the learned Sessions Judge did the accused take shelter behind any Exception, taking his act out of the definition of murder. He had no doubt stated that his wife was not chaste and he definitely accused her of living in adultery with Bachna who was an unmarried young man. That illicit intimacy of Mst. Sito and Bachna has been referred to by the learned State counsel as the cause of the murder it has transpired from the evidence of Bhag Singh who was examined as a prcsecution witness before the committing Magistrate but was given up at the trial, that at some meeting of the Panchayat Mst. Sito had been advised to give up her connections with Bachna but that she had not cared to do so. It may be that Sarwan was fed up with the infidelity of his Wife but that can be no proof that on the night in question she had been found by him with Bachna.

It was next urged that Bachna had purposely slept in the verandah in front of his house, so that he could visit Mst. Sito easily. It is only in the statement of Bachna that we find evidence of his having slept in his verandah. There is nothing, however, to indicate that he had slept there with the object of walking into her room unobserved by any other member of his family. The site plan of the house which belongs to the accused and his father''s brother''s issue, would show that the accommodation at their disposal was scanty. Bachna was not asked as to why he had slept in the verandah and if so asked he would have perhaps given a proper and satisfactory explanation.

It is in evidence, however, that the rooms occupied by Sarwan and his mother had been placed at their disposal by him, because their own house had been used by him for storing fodder. With those two rooms spared for Sarwan and his mother the accommodation in his own house naturally became meagre, and this was so particularly because his brother was a married person. Bhajna and his wife Mst. Chetanno were living in the only room left to them, as is shown in the plan. It wag perhaps for that reason that Bant had ever since Sarwan and Mst. Raj Kaur had come to Moharsinghwala, been sleeping in Mst. Sito''s room. I am, therefore, unable to agree that Bachna had slept in the verandah to have an unobserved access to Mst. Sito.

It was next urged that Mst. Sito was not wearing a Salwar when she was killed. That does not mean that she was naked. Bachna P. W. has proved that she was wearing underwear. The evidence of Gurdev Singh F. C. P. W. 10 shows that after the post mortem examination he had brought to the police station the four clothes that were present on Mst. Sito''s person and had been given to him by the Doctor Bhagwant Singh.

Those four clothes include the under-wear (Ex. P. 2) and were deposited with the Madad at the Bhiki police station. A. S. I. Sarup Singh has also given evidence to the effect that Gurdev Singh had brought those four clothes which he had taken possession of and prepared the necessary memo. It cannot, therefore, be correct to infer that Mst. Sito was lying naked when sarwan speared her in the chest. This also repels the argument that Sarwan had found Bachna co-habiting with her and that it was, therefore, that the accused had got into a fit of wrath and taken the life of his wife.

To show that Sarwan Singh was not pre-sent in his house when the incident happened, our attention was drawn to the fact that only three cots were found lying, in the room and that those cots must have been occupied by Mst. Sito, Bant and Mohindar. In support of this argument there is no evidence again. On the contrary, we have it in the statements of Bant and Mohindar that both of them had slept on one cot and that the second cot was occupied by Sarwan and the third by Mst. Sito. The absence of a fourth cot does not in the presence of that direct evidence prove the alleged alibi of the accused.

The learned Counsel has not stressed so much upon alibi as upon grave and sudden provocation. The two pleas are apparently inconsistent. Bachna P.W. was alleged to have attributed a false motive to the accused for the murder. In the presence of the statement of Mst. Raj Kaur who is no other but the mother of the accused, it is difficult to hold that what was stated by Bachna in the F.I.R. was not correct. Her evidence shows that during the period-she and her son stayed at Basi Arkh, the parents of Mst. Sito had not sent her to Sarwan. Sarwan has given his age to be 26 years, but the note of the learned trial Judge shows that he is about 38 years of age. He was, there-fore not, a child to whom his young wife should not have been sent. Some differences must have existed between him and his parents-in-law on ac-court of which the latter did not send their-daughter to him. That cleavage may not have the cause of murder but it would equally be not correct to say that what was stated by Bachna in the F. I. R. was wrong. It would be too much to infer that Bachna had made mention of the differences of Sarwan with his parents-in-law with, a view to frustrate the likely plea of the accused he had found,him in a compromising position with his wife.

S. Tirath Singh next argued that the accused had not absconded and that he was arrested when Tie was on his way to the police station to make a clean breast of the affair and tell the police that he had killed his wife, because her had seen her with Bachna on the same bed. The accused did not state so himself. According to him he was arrested in his field and not in Bhiki need the civil dispensary which lies on the way to the police station. He even denied that the Bhala, the stick and the Saggi had been recovered from his possession. If actually his object in going to Bhiki was to disclose to the police the circumstances in which he had perpetrated the crime, he would, have made mention of it at least in his own statement, or the investigating officer would have been asked some questions pertaining: to his conduct mitigating the charge.

On the contrary he had left his house and village at mid-night on 3-2-1952, He did not proceed straight to the police station to give his own account to the police and it was in the afternoon that he was found by A. S. I. Sarup Singh near the Civil Hospital at Bhiki. There is no evidence that he was going to the police station although the statement of A, S. I. Sarup Singh and Kaur Singh would show that he was arrested near the civil Hospital while he was going towards the police station. Assuming that he was going to the police station there is no evidence as to what was under his contemplation and as to what he would have told the police regarding the occurrence. The inference can hardly be justified; that he was going, to tell the police that he had killed Mst. Sito and injured Bachna, because he had found them on the same bed that night. There is, thus, nothing that can amount to an exculpatory or extenuating conduct of the accused. The mere circumstance that he was found going towards the police station can hardly be any proof that he had killed Mst. Sito under the influence of provocation which was-grave and sudden.

It was next urged by S. Tirath Singh that a direct question which indicated the line that the accused was going to adopt for his defence was put by his counsel to Bachna P. W. He enquired from him if it was not a fact that at the time of the occurrence he was actually cohabiting, with Mst. Sito and that the accused had per chance returned from his field and had caught him in that position. The question was undoubtedly put but it was replied in the negative. The defence that was intended to be proved by this witness (Bachna) was in fact disproved by him. In the face of that, it cannot be urged with any force that the plea of grave and sudden provocation, should prevail.

A similar question was put to Mt. Raj Kaur, mother of the accused, and although her answer was in the affirmative her statement in that behalf has to be discarded on the ground that not only was she naturally intensely partial to her son but she admitted that if she were asked testate the truth she had seen nothing. The note of the learned .trial Judge on Mst. Raj Kaur''s statement before commencing to record it shows that even before taking the oath she had voluntarily said that at the time of occurrence her son had gone out to his fields for irrigating them. The defence that the accused wanted to make out by putting questions to Bachna and Mst. Raj Kaur is thus destroyed by the answer that Bachna gave and by that statement of Mst. Raj Kaur that she did. not know anything about the incident.

Our attention was drawn by the Appellants learned Counsel to the fact that Bachna had stated that the door of the room in which Mst. Raj Kaur was lying was found chained. He means to contend that Bachna had put on that chain in order to make it impossible for Mst. Raj Kaur to come out and find him in the company of Mst. Sito. It was, Bachna alone who had stated at the trial that he had found Mst. Raj Kaur''s door chained from outside. If he had done so himself, with a view to shut Mst. Raj Kaur in he would; never have stated so.

It was next argued by S. Tirath Singh that the presence of Banta and Mohindar with Mst. Sito in the same room should show that they were there; because Sarwan Singh had gone out to his fields. This argument can be refuted easily; it is in the evidence of Banta that he had been sleeping in the house of Sarwan Singh ever since he and his mother had come back to village Mohar-singhwala. Mohindar Singh had reached Mohar singhwala that very evening and had slept with Banta, because they were not only uncle and nephew, but boys almost of the same age. These boys were sleeping there not so much because Mst. Sito might not feel herself lonely, but because, I think, there was not sufficient accommodation in the house of Bant''s father. The plan Ex. PM shows that Bant''s father Bhajna and Sarwan have only one room to live in. with a verandah in front, in that room were naturally living Bhajna and his wife Mst. Chetanno. Bachna must have felt awkward to sleep in the room in which his own brother and his wife were sleeping. It was, perhaps, therefore, that he was sleeping in those days in the verandah. The presence of Mohindar Singh and Bachna does not prove that Sarwan was away from his house at the time of the incident.

The evidence of Banta and Mohindar Singh is directly to the effect that Sarwan Singh had slept in, that room that night and Mst. Sito was also sleeping close by. It is true that Bant has stated that the accused was to go out that night for irrigating his field, but he has also said that he had not gone out. The mere fact that the accused was contemplating to go to his fields that night does not prove that he was actually in his fields at the time of the occurrence.

An argument that Bachna had not reached the place of incident immediately on hearing the cries of Bant has been tried to be made out from the fact that Bant stated at the trial that after murdering his wife Sarwan Singh had removed her Saggi and changed his clothes. That according to the Appellants'' counsel would show that Bachna had run away from the room on the arrival of the accused and not that he had come when the accused was slipping out.

On the point that the accused has changed his clothes Bant is not corroborated by Mohindar Singh who has stated that he did not see the accused changing his dress before getting out of the room. Bant''s statement in that behalf may not, therefore, be exactly true. We have, on the other hand, the statement of both Bant and Mohindar that Bachna had come immediately after the alarm was raised by Bant and that he was given a spear blow by Sarwan Singh when he tried to capture him. No question was put to Banta or Mohindar if Bachna and Mst. Sito had been seen by them together on the same cot that night. I am, therefore, not inclined to agree with the learned Counsel that Bachna was either present with Mst. Sito when Sarwan entered the room or that he came to the place some time after the incident had happened. The eye-witnesses have proved that he had been dealt abhala blow when he tried to hold up the accused when the latter after perpetration of the crime was getting away.

The Appellants counsel next referred to a note in the inquest report stating that Mst. Sito had, been killed on account of her bad character. The inquest report has, no doubt, been proved; but no elucidating question was put to the investigating officer who prepared that document to enquire as to whether by the use of the words ''bad character'' he had meant that Mst. Sito and Bachna had been found together. The words as they exist in the inquest report convey nothing more than that her husband had killed her on account of her infidelity.

The learned Counsel then read out to us the statements of Nahar Singh P. W. and Bhag Singh C.W. to show that even the, persuasions of the Panchayat had failed to have any effect upon her and that she had continued to live an unchaste life. Nahar Singh stated that Mst. Sito was of immoral character. He also stated that prior to the occurrence the accused had called .some meetings or the village Panchayat, but that he (witness) had not attended any of those meetings himself He went on to say that when he and Bnag Singh had visited the house of the accused after the occurrence they had scolded Bachan Singh for paying surreptitious visit to the deceased that led. to her murder. In re-examination he was asked, to explain as to how he came to know that it was-Bachna''s surreptitious visit to Mst. Sito that had led to her murder and the reply that he gave was that he did not know. Nahar Singh and Bhag Singh were together at the house of Mst. Sito after the incident. Bhag Singh was examined as a court witness. He stated that neither Nahar Singri nor he had any talk with Bachan Singh P. W. at that time. He repeated in cross-examination that he had no talk with Bachan Singh P. W. nor did he ever" scold him for his surreptitious visit to the deceased leading to her murder. There is, thus no credible evidence that Bachan Singh had paid any visit to Mst. Sito surreptitiously that night. Nahar Singh had failed to give the source of his information and he had not himself seen Bachar Singh with Mst. Sito. The argument that Mst. Sito and Bachan Singh were seen together by the accused in his house at night has, therefore, no force.

I have said above that the accused did not take the plea of grave and sudden provocation either in-the committing court or at the trial. He led no evidence in defence. What is, therefore, left to-be considered is whether from the prosecution evidence or from any other circumstances the accused has been able to make out a case of the applicability of Exception (1) to Section 300, I. P. C. They, burden of proving the charge leveled against an accused person lies upon the prosecution and it is the prosecution who has to prove every element that goes; to make up the offence the commission whereof is attributed to the accused, That onus never shifts on to the accused. But the prosecution cannot be expected to foresee or anticipate the defence which the accused would take up and it cannot, therefore, be the duty of the prosecution to lead evidence so extensively and so comprehensively as to repel all possible defenses by the accused. If the accused depends for his defence upon an Exception he has to prove it. He may not lead positive evidence to establish the Exception or he may not even say that he is protected by a particular Exception. It may be enough if he can, upon a consideration of the evidence as a whole, show that he is helped in invoking the Exception, and if a reference to that evidence can create doubt in the mind of the court whether the Exception would come into play or not, the accused may be entitled to the benefit of that doubt.

But in the present case there is nothing in the prosecution evidence nor is there any circumstance that can support the plea of grave and sudden provocation. There is force in the argument of the learned State counsel that Sarwan had killed his wife because he was tired of her faithlessness and his efforts to corrector had failed. In the, absence of any evidence, direct or circumstantial, leading to the necessary inference that the accused had acted under grave and sudden provocation the benefit of Exception (1) to Section 300, I. P. C cannot be extended to him. He has, in my opinion been appropriately convicted u/s 302, I. P. C The bad character of his wife has been taken into account by the learned trial Judge when he imposed the lesser penalty of transportation for life. The charges about his having given one Bhala blow each to Banta and Bachna has also been amply proved. I would, therefore, dismiss his appeal.

Passey and Guranam Singh, JJ.

As there is difference of opinion between list the case may be placed before Anr. Judge.

Chopra, J.

Sarwan Singh was committed to the court of Additional Sessions Judge, Faridkot on the charge of the murder of his wife Mst. Sito and for causing simple injuries to Bant Singh and Bachan Singh prosecution witnesses. The learned Judge found him guilty u/s 302, I. P. C. and sentenced him to transportation for life. He was further convicted u/s 324, I. P. C. on two counts for the injuries to Bant Singh and Bachan Singh and sentenced to three months and one month''s R. I. respectively. The sentences were directed to run concurrently. The convict''s appeal was heard by a Division Bench consisting of Kesho Ram Passey and Gurnam Singh JJ. The former upheld the Appellant''s convictions and sentences and ordered that the appeal be dismissed; the latter, however, took a different view and being of the opinion that the case was covered by Exception (1) to Section 300 and therefore the Appellant was only guilty of culpable homicide not amounting to murder ordered that the appeal be allowed to the extent that the Appellant''s conviction u/s 302 be altered to one u/s 304(1) and sentence reduced to one year''s R.I. Maintaining the conviction of the Appellant on two counts u/s 324, I. P. C. Gurnam Singh J. further ordered that the sentences awarded be reduced to that already undergone.

Because of the difference between the learned Judges the case has now come up before me u/s 56, Patiala and East Punjab States Union Judi-cature Ordinance No. 10 of 2005.

46-49. Sarwan Singh Appellant is aged 26 and a resident of Moharsmghwaia in Police Station Bhiki. Mst. Sito deceased was aged 23. Sarwan Singh''s father Chattar Singh had a brother Rattan Singh. Bachan Singh (P. W. 3) and Bhajan Singh are the sons of Rattan Singh and Bant Singh (P. W. 4) is the son of Bhajan Singh. Mst. Raj Kaur (P.W. 7) is the mother of Sarwan Singh Appellant. All of them resided in different portions of the same house having a common compound and the same exit. (His Lordship narrated the prosecution case and the Post Mortem report and then proceeded.

Both, of my learned brOrs. are agreed that Sarwan Singh Appellant was responsible for causing the death of his wife Mst. Sito and the only question that falls for decision and has been urged by the defence before me is as regards the application of Exception 1 of Section 300 to the facts.

On behalf of the defence it is contended that Mst. Sito was of loose character and was carrying on a liaison with Bachan Singh, that on the fate full might Bachan Singh took advantage of Sarwan Singh''s absence from the house as the latter had gone out to irrigate his field, that he (Bachan Singh) lay on the same cot with Mst. Sito in a compromising position when Sarwan Singh re- turned and that Sarwan Singh losing control of himself and under grave and sudden provocation paused Injuries both to his wife and her paramour.

At the outset-it may be observed that the accused in his statement before the Committing Magistrate or at the trial did not take-up any such plea. He, on the ther hand, denied to have committed the offence and alleged that he was in his fields at the time and did not know anything about the murder of his wife. He did not examine any witness. Before the Committing Magistrate he had no doubt stated that his wife was of loose character and that she was carrying on with Bachan Singh (P. W.) but this does not amount to raising a plea of grave and sudden provocation.

It is correct that the accused is not bound to state the truth, nor is it necessary that the exception should be specifically pleaded; but at the same time I must say that it is not a circumstance which is wholly irrelevant or one which should be altogether ignored while deciding the question. Section 105, Evidence Act places the burden of proving the existence of circumstances bringing his case within any of the exceptions upon the accused. For purposes of clarification illustration (b) of the section is to the effect that where a person accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self control, the burden of proving it lies on him.

The plea in support of which no evidence is led by the accused loses some of its force however slight, if it is not raised by him even in his statement at the trial. By this I should not be taken to mean that it is always necessary for the accused to take up the plea and lead evidence before he can be given the benefit of the exception. The Jaw docs not prevent an accused person from setting up an alternative or even inconsistent defence e.g., plea of alibi and a plea of self defence.

It is not necessary that the exception should be specifically pleaded, nor is it necessary that the accused should produce evidence to establish it. The burden that lies on the accused can be discharged if it is apparent from the evidence produced by the prosecution that an exception is applicable and the court must give the benefit of the exception to the accused, even though the accused denies the commission of the alleged act in toto.

I am further in agreement with the learned defence counsel that there is a difference of degree of certainty required in cases where the burden of proving a fact is on the prosecution and those where the burden of proof is on the accused. The prosecution has to prove its case beyond reasonable doubt but when the burden of proof of a fact lies on the accused he is said to have discharged it by creating reasonable doubt regarding its existence. In other words, if the court upon a consideration of the evidence is left in reasonable doubt whether the circumstances bringing the case within the exception pleaded by the accused do exist or not the accused can be given the benefit of the exception.

In the present case, though the plea regarding application of Exception 1 to Section 300 was not raised by the accused in his statement yet from the trend of cross examination of the prosecution witnesses and the argument of the defence counsel at the close of the trial it can be ascertained that the nature of the defence was that the accused by grave and sudden provocation, was deprived of the power, of self control. In the light of what has been said above, I have how to find out if the accused has succeeded in proving that he, on his arrival from the fields on the fateful night,, found his wife making love with Bachan Singh, lost control of himself and killed her and injured the intruder there and then.

S. Tirath Singh, learned Counsel for-the Appellant, urges that it is apparent from the prosecution evidence; that Mst. Sito had illicit connections with Bachan Singh and that Sarwan Singh Appellant had complained about it to the Panchayat of the village.

Bachan Singh is a young man of 31, is unmarried and lives in the same compound. ''Reliance in this connection is placed on the statement of Nahar Singh Lambardar (P. W. 13) and that of Bnag Singh Lambardar examined as a court-wit ness; They admit that prior to the occurrence a Panchayat was held in the village, to whom Sarwan Singh complained of the intimacy of his wife with Bachan Singh, and that Mst. Sito, when called by the Panchayat, refused to cut off her connections with her paramour.

Counsel further contends that Bachan Singh did not disclose this as motive for the murder in the F. I. R., but on the other hand stated that Mst. Sito was killed because her parents had not sent her to her husband after the marriage and that a dispute on that account was going on between Sarwan Singh on the one hand and his wife and her parents on the other. This, however, was not alleged to be the motive even by Bachan Singh at the trial and was not supported by any other evidence.

It has also been urged that no sane person would kill his own wife unless something extraordinary has happened and the absence of any evidence as regards the immediate cause in this case is said to go a long way to support the defence version. Motive for the murder or why it was committed that night may possibly be known to the accused alone. Mst. Sito, who too could have possibly known it, is no more in the world to disclose it and the accused has thought it better to keep it to himself. May be that something happened on the preceding day that enraged the accused and made him decide to take her life that night. The accused might have scolded Mst. Sito for her infidelity sometime before the occurrence and her defiant attitude might have been the cause of the fateful event. These are matters left to conjectures alone, but absence of any evidence on the point does not by itself lead to the inference that she was killed because she was found with Bachan Singh at the particular time.

The crucial point in the defence story is that the Appellant had gone out to irrigate his fields that night and that afforded opportunity to Bachan Singh to pay a visit to Mst. Sito. If this does not stand proved or is not indicated by the evidence on record, the whole fabric of the defence falls down. Bant Singh and Mohindar Singh whose presence in the room that night is admitted even by the accused, negative that assertion. While admitting that the accused was to go out for irrigation that night, they affirmatively depose that he was sleeping in the room and had not gone till the time of the occurrence. Reliance in this connection is placed on the deposition of Mst. Raj Kaur, mother of the Appellant.

The entire case of the defence was put to her in, the following single question in cross-examination:

I put it to you that in fact your son Sarwan Singh accused came back from the field at about mid-night and found Bachna P. W. cohabiting with Sito deceased and thereupon the accused lost his self control and caused injuries to Sito deceased and Bachan Singh P. W. in the heat of the moment and that Bant Singh P. W. was also accidentally injured.

Her simple reply to the question was "Yes it is true.

In examination-in-chief she had stated that she slept in a separate room adjoining the one where Mst. Sito and Satwan Singh were sleeping. Bant Singh and Mohindar Singh were also sleeping in the latter room. She was awakened by Bachan Singh at about mid-night and informed of the murder. The contradictions in her statement were brought to her notice in re-examination and then she stated that ''in fact the truth was that she did not know anything: about the occurrence.

This type of evidence of the Appellant''s own, mother has to be discarded and no reliance can be placed upon it., That Sarwan Singh had his turn of'' water that night before the occurrence and that he had gone out and irrigated his fields could easily be proved'' by the accused, if it were a fact. The fact could have been established by examining the Mirab and production of the War bandi. Persons whose turn preceded or followed that of the accused could have testified his presence in the fields. Persons who might have seen the freshly irrigated field of the accused could have been produced as well. But nothing of the kind was done, nor was any question regarding the time when the Appellant''s turn of water was to commence was put to any of the prosecution witnesses. The direct evidence of Bant Singh and Mohinder Singh to the effect that the accused was sleeping in the room and had not gone out has, therefore, to be accepted.

It is next contended that presence of the two boys-Bant Singh and Mohinder Singh-in the room that night shows that Sarwan Singh had himself gone out and made the boys sleep by the side of Mst. Sito in his absence. The argument is that the young couple would not have liked the presence of the boys if Sarwan Singh was not to go out for irrigation, and that the boys must have been brought, in because Sarwan Singh did not want to leave his wife alone in the room.

Counsel further urges that the boys would not have been allowed to sleep there if murder was pre-meditated and pre-planned. It is also stressed that Bachan Singh himself slept in a verandah on that wintry night with'' a view to facilitate his clandestine visit to Sito''s room.

To me the contention appears to be without any force. There is no evidence that it was on that particular night that Bant Singh slept in the room. No question on the point was put to him or any other witness. Because of a dearth of accommodation he might have been usually sleeping in that room or this might be on account of his special affection for its occupants. Bachan Singh also might have always been sleeping in the verandah for lack of better accommodation. No question on the point was put to him as well or to any one else. Unless it could be shown that they slept at their respective places only for that night, no inference in favour of the defence version is possible. What sort of verandah it is where Bachan Singh slept, we do not know. It may be a closed one or some contrivance to guard against the cold breeze might have been made. On a perusal of the site plan also it cannot be said that some better accommodation was available for the witnesses. Mohinder Singh was on a short visit to Mohar Singhwala and he obviously must have liked to sleep with a boy of his own age.

Delay in lodging the F. I. R. is relied upon as a factor supporting the defence version. The murder took place at mid-night. It is not surprising that no one left for the police Station before day break and the report was made by Bachan Singh on the following morning at 9 A.M. It is evidence that Bachan Singh at once sent for, the Lambardas and on their arrival informed them of the occurrence.

The accused Is the first cousin of Bachan Singh and the persons who had collected were more interested in the accused than the deceased. Probably no one was anxious. or fert interested to run to the Police Station during the night. The conduct of Bachan Singh in informing the Lambardars and thereafter lodging the report rather goes, to show that no action of his at the particular time was responsible for bringing about the tragedy. Had it been so he would not have sent for the Lambardars and himself lodged the report.

The nature of injuries on the dead body of Mst. Sito and the one on the person of Bachan Singh are regarded as favorable to the defence theory it is argued that the injuries to Mst. Sito, which were on the front part of the body could only be possible if she lay flat on the cot with her face upwards. Even if that be accepted, I fall to understand how she could be in that position only if she had some one else with her on the bed. Rather it goes to show that she lay asleep when the injuries were given in quick succession; otherwise she could have offered resistance and moved, so as to make the injuries fall on her sides or back as well.

I do not see any substance in the argument that the injury on Bachan Singh''s fore-arm could more probably be caused when he was on the bed and in the course of cohabitation. If it were so, he would not have been spared with a mere scratch on his arm. He must have been the first to be attacked and seriously injured, if not killed at the spot. The single minor injury on the back of Bachan Singh''s forearm appears to be in line with prosecution story that he got it when he tried to catch hold of the Appellant and had his arms -raised for the purpose. And then again, why Bant Singh should have been attacked if the defence were true his raising alarm should not have invited an attack on him.

In that case the accused himself would have called and collected Ors. to see that the infidelity of his wife had brought about the misfortune and that she had been paid for it. His conduct, on the other hand, in running away from the spot, jumping over the wall and disappearing rather goes to show that he had a guilty conscience and had little or no excuse for the murder. Mst. Sito was wearing an under wear. This is clear from the Inquest report (Ex. PB). That too negatives the suggestion that she was killed because she was found cohabiting with Bachan Singh.

Some capital is tried to be made out of the fact that shutters of Mst. Raj Kaur''s room were found chained from outside. It is suggested that this must have been done by Bachan Singh by way of precaution while proceeding to the deceased''s room No question on the point was, however, put Bachan Singh.

I do not think Bachan Singh was afraid of or expected any interference from Mst. Raj Kaur an old woman sleeping in a separate room, when he could dare do the mischief in the presence of two boys in the same room. He would rather have chained the shutters of Mst. Sito''s room from inside. But the door of that room is not said to have been closed from inside;, otherwise the Appellant as alleged by the defence,'' would not have been able to catch the pair, red-handed, St is more probable that the chains of Mst. Raj Kaur''s room were fixed by the Appellant himself to avoid interference on her part if and when aroused by shrieks, of the victim.

According to Bant Singh the Appellant changed his clothes before going, out, of the room. Mohindar Singh, however, deposes that he did not see SarwaaSingh changing his clothes at the time. Counsel contends that the accused exhibit- . ed no hurry to leave the place; he did everything in the leisure; put off his blood-smeared clothes, wore new ones, in, their place removed a Saggi from Mst. Sito''s head and then quietly moved Out.

In the first instance, it cannot be said with any amount of certainty that the Appellant did change his clothes. The clothes which, he is said to have left behind because they got stained with blood, were not found at the spot, they would have been collected, and taken possession of by the police. Bant Singh probably made a mistake in his observation; from some movements of the accused he might have got the impression that he (the accused) was changing his clothes, it has been categorically denied by Mohinder Singh, the other eye-witness in the case. Bant Singh does, not tell us which of the clothes were changed. Even if it be believed that the accused did change one or more of his clothes it would not have taken much time. He might have snatched one or more of them while leaving the room. In my view this does not advance the case for the defence in any manner.

Lastly it is urged that even if the defence of the homicide having been committed when Mst. Sito was found on the same bed with Bachan Singh be not believed, something very extraordinary must have happened which deprived the Appellant of the power of self control and excited him to attack /and kill his own wife.

Counsel argues that Mst. Sito, to the knowledge and disappointment of her husband, was carrying, on with Bachan Singh, she must have been scolded for it by the Appellant that night and something said or done by her deprived him of the power of self control. It is, therefore, contended that the accused is entitled to the benefit of Exception 1 to Section 300.

The entire argument is based merely on conjectures. There is nothing on the record to indicate that the incident was immediately preceded by some sort of altercation or dispute. Even if it did take place we do not know what was actually said or done by Mst. Sito. The accused alone could have told us about it, but he has kept mum. To bring a case under the exception it has to be proved that the provocation was both grave and sudden and that the provocation, by its gravity and suddenness, deprived the accused of the power of self control the provocation should be such as would deprive a normal and reasonable man of the control of himself. In the absence of any such proof, the atrocity of the offence cannot be mitigated and the offender must, suffer the legal consequences of his act.

For all these reasons I do not think the Appellant is entitled to the benefit of Exception 1 of Section 300, I. P. C. He has already been given the lighter penalty for the murder and I do not see any ground to interfere in the sentences awarded u/s 324, I. P. C. In my opinion the appeal of Sarwan Singh should be dismissed. The case shall now be placed before the Division Bench for pronouncement of orders., .

Passey and Gurnam Singh, JJ.

The appeal of Sarwan Singh is dismissed.