Shanmugam vs State

V.S. Sirpurkar, J.—The accused who was convicted by the Principal Sessions Judge, Coimbatore questions his conviction for the offence

u/s 302 I.P.C. on the allegation that on 26.3.1994 at about 9.30 a.m., he murdered his wife Sivakami.

The prosecution story was that the accused had married Sivakami about eight years prior to the incident and she was his second wife, as his first

wife had left him only about four months after her marriage with the accused Shanmugam. The prosecution alleges that Shanmugam, the accused

has always suspected the chastity of his wife and there used to be frequent quarrels between them, the account of which was given by P.W.2

Savithri. The latter is the sister of the deceased. On the fateful day, the accused had gone in the morning to the market in search of work, but since

he did not get the work as a coolie, he returned back. When he returned back, he saw that the deceased Sivakami was whitewashing the house.

He asked her as to why she was whitewashing the house, on which she is said to have asked him not to threaten her. On this, being greatly

enraged, the accused pushed his wife inside the kitchen, picked up a billhook (aruval) and cut the neck of the deceased through and through. The

accused did not stop at this. He then carried the severed head of Sivakami in his right hand and rode the bicycle along with the billhook, which he

had used. He went to P.W.2 Savithri to inform what he had actually done and Savithri also saw the ghastly sight. Thereafter, the accused is said to

have gone to Mettupalayam Police Station and narrated the whole story, which was taken down by P.W.10, the Sub Inspector of Police. At that

time, P.W.1 Palaniswamy is also said to have been present as he had come to the police station in connection with some other work. According to

the prosecution, even P.W.3 Banu had seen the accused carrying the head of Sivakami and also the aruval, while he was riding towards the house

of Savithri-P.W.2.

On the basis of their coming to know about the ghastly incident, the police and more particularly P.W.11 began the investigation, went to the

spot, executed the observation mahazar and also seized the incriminating articles lying there. He then sent the dead body for postmortem along with

the head. P.W.8 is the doctor who performed the postmortem and found that the deceased had died due to the ghastly injury that she had suffered

and that her head was severed through and through. The prosecution also relies on the confession statement given by the accused to P.W.10 in the

presence of P.W.1 Palaniswamy that the accused had suspected the fidelity of his wife and that he had cut and severed the head of his wife in his

house at Doraiswamy Iyengar Nagar in Mettupalayam and had brought the same to the police station. After collecting the statements from the

relevant witnesses, the investigating officer proceeded to send the said weapon to the serologist for chemical examination and ultimately registered

a case in Mettupalayam Police Station in Crime No.230 of 1994 and after the completion of the investigation, filed the charge sheet before the

concerned Judicial Magistrate, Mettupalayam and ultimately committed the accused to stand for his trial before the Sessions Court.

The prosecution relied on the evidence of P.W.2, Savithri, the sister of the deceased Sivakami to whom the accused had gone along with the

severed head and blood stained aruval and stated that he had cut her sister. The other witnesses are P.W.3 Banu, who was the neighbour of the

deceased and who had the opportunity to hear their bickerings on account of the suspicion regarding the fidelity on the part of the deceased

Sivakami. P.W.4, Kannaian is another witness who had also seen the accused carrying the severed head and the aruval on bicycle. P.W.5, Sheikh

Mahaboob is the husband of P.W.3 Banu and he was examined merely to establish the strained marital relationship between the accused and his

wife. The prosecution also examined the doctor and the police witnesses as also P.W.1, the Village Administrative Officer.

Before the Sessions Court, the defence of the accused was that of denial. It was his case that in fact he had merely proceeded to the police

station to report the matter of the murder of his wife, whom he had found to be murdered after he came back from his work. The accused also

denied that he had ever made any statement, much less in the nature of a statement on the basis of which the first information report was registered

by the investigating authorities. The defence did not prevail and the accused came to be convicted by the learned Sessions Judge, which conviction

is questioned before us in this appeal.

Mr. Sridharan, learned counsel appearing on behalf of the defence firstly urged that it was not actually proved that it was the accused who had

committed the murder of his wife. He points out that there is no direct evidence available for the ghastly act of the accused though the act is said to

have been committed at 9.30 a.m. in the morning. As regards the alleged extra judicial confession, the learned counsel says that it is an extremely

weak kind of evidence and as it is coming from the sister of the deceased, it could not have been believed at all and the learned Sessions Judge

erred in accepting and acting upon the same. Further, regarding the incriminating statement, the learned counsel said that the statement could not

have been proved at all though some part thereof could have been read in favour of the accused. Alternatively, the learned counsel argues that if it

is proved that it was the accused who has committed the murder of his wife, then the learned Sessions Judge could have considered the possibility

of the said murder taking place on account of the grave and sudden provocation of the wife Sivakami and, therefore, should have committed the

accused only u/s 304(1) I.P.C.

Learned counsel elaborates this contention by saying that it was the prosecution case itself that the deceased was of a bad character, which was

quite evident from the evidence of P.W.3-Banu, P.W.5-Sheikh Mahaboob and P.W.2-Savithri, who all had stated about the bickerings between

the accused and his wife on account of the suspicion on the part of the accused regarding the chastity of Sivakami. Learned counsel also pointed

out that even the investigating officer had gone to the extent of saying that the deceased Sivakami was not of good character. So also, P.W.3 Banu

had asserted in her evidence that there were number of persons who used to visit the house of the accused and more particularly for visiting

Sivakami. From all this, the learned counsel argues that the accused was constantly under the pressure of suspicion and, the idea that his wife was

not having a good character was constantly rankling in his mind. It is also pointed out by the learned counsel that the accused had proposed to

leave the house, which move was being opposed by Sivakami, who wanted to stay in the same house. The learned counsel, therefore, argues that

seeing that Sivakami was whitewashing the house so that making her intentions clear that she was not prepared to leave the house, Sivakami''s

utterances resulted into the explosion of the accused''s suppressed anger and suspicion against his wife and, therefore, the accused lost his power

of reasoning because of that grave and sudden provocation and hence the accused could not have been convicted for an offence u/s 302 I.P.C.

We will consider the first contention first, regarding the culpability of the accused. It cannot be denied that on the fateful day, the accused and

the deceased were residing in the same house. There is enough evidence in the shape of the evidence of P.W.2 Savithri, P.W.3 Banu and P.W.5

Sheikh Mahaboob for that purpose. There cannot also be any difficulty in accepting that all was not well between the accused and his wife, which

has come in the evidence of P.W.2 Savithri, P.W.3 Banu and also P.W.5 Sheikh Mahaboob. P.W.3 Banu''s evidence is very natural, so is the

evidence of P.W.5 Sheikh Mahaboob, as they were living barely 40 feet away from the house of the accused. That situation is not contradicted by

any of the witnesses. So also, P.W.2 Savithri has been complaining that the accused and the deceased Sivakami quarrel among themselves on

account of the suspicion entertained by the accused against her chastity. The strained relationship would provide another factor against the

accused. On the day, it was in the morning at 9.30 a.m. that P.W.3 Banu claims to have seen the accused carrying the severed head of his wife as

also an aruval on the bicycle. This vital fact has not been shaken in cross examination of P.W.3. Banu has no reason to falsely implicate the

accused. There is no enmity between her and the deceased. So also, she had all the opportunity in the world at 9.30 a.m. in the morning not only

to see, but also to recognise the accused. There is nothing by way of challenge in her cross examination that she was only imagining the things. Her

evidence is then supported and corroborated by the independent evidence of P.W.4 Kannian, who had also seen the accused along with the

severed head of Sivakami as also the aruval. Even kannaian''s evidence has gone unchallenged.

Last but the most important, is the evidence of P.W.2 Savithri, to whom the accused had actually gone parading the severed head of her sister

and telling her that he had cut her sister on account of her promiscuous behaviour. True it is that P.W.2 Savithri is an interested witness. But, there

would be no reason for her to state falsely that the accused had come to her along with the severed head. Ordinarily, the story of the husband

carrying the severed head of his wife appears to be fanciful, but in this case that circumstance is fully established by the two independent witnesses

viz., P.W.3 Banu and P.W.4 Kannian. Therefore, there is nothing wrong if the inference is drawn by the learned Sessions Judge that the accused

was actually parading the severed head of the deceased along with the aruval. Not only this, P.W.2 also says that the accused bragged before her

that he has severed the head of her sister. This evidence is supported by the independent evidence of P.W.1 Palaniswamy, who was the Village

Administrative Officer of Sikkadasampalayam and was present in the police station at the time when the accused came. Even his evidence that he

saw the accused walking into the police station with the head of Sivakami in his right hand and the billhook in his left hand, has not been challenged

and shaken in the cross examination. Similar is the story of the evidence of P.W.10, Jayakumar who was also present in the police station at the

relevant time and has supported that version.

Therefore, one thing is certain that the accused had carried the severed head and the billhook to the police station. Ordinarily, there was no

reason for him to do so. Even if we take it that the accused only found his wife to have been murdered in his house when he came back from the

market, the accused could have simply gone to the police station and reported the matter. There was no necessity for him to take the severed head

of his wife so as to exhibit it all through to the world. This circumstance, in our opinion, is clinching against the accused. The said aruval has also

been connected with the crime, in the sense that, the blood is found present on that billhook which the accused had taken out from his own house.

Hence there is circumstantial evidence which connects the accused with the crime and there cannot be any escape from the fact that it was the

accused who must have cut his wife and severed her head. It is bound to be seen that all this has happened in the broad day light and therefore the

possibility of someone coming stealthily and doing the things is practically ruled out. All this goes on to suggest that it was the accused who was the

perpetrator of the crime and had murdered his wife. In our opinion, the learned Sessions Judge was right in coming to the conclusion that it was the

accused who was responsible for the murder. The learned Sessions Judge has also relied on the observation mahazar, in which the head of the

body was not found to be near the trunk. That would also be a very relevant circumstance to suggest that the head of the body was actually carried

by the accused to the police station. We have seen the findings of the learned Sessions Judge, who has considered all the other relevant documents

like the spot mahazar etc., and we are convinced that the findings regarding the culpability of the accused is correct.

This takes us to the next question as to whether the guilt of the accused can be brought u/s 304(1) I.P.C. In support of his submission, the

learned counsel Mr. Sridharan urged that he could read certain portions in the statement of the accused, which otherwise would have been

inadmissible u/s 25 of the Indian Evidence Act. The learned counsel relied on the Supreme Court judgment reported in ""MURLI -vs- STATE OF

RAJASTHAN 1995 S.C.C.(Cri) 57"", where the Apex Court had used the statement made by the accused by way of First Information Report.

The following observations were very heavily relied upon by the learned counsel.

As to what exactly preceded the attack is not borne out by the evidence. However, there is a clear indication in the first statement given by the

accused himself which formed the F.I.R in this case to the effect that the deceased in an aggressive manner, went to the shop of the accused and

showered virulent abuses. It may be mentioned here that we are not using the statement of the accused before the S.H.O for any purpose in favour

of prosecution and against the accused. The only admission which we find in the statement in favour of the accused is being taken into account to

examine whether the case falls under Exception 1 to Section 300 I.P.C., particularly in view of the fact that there is no other evidence disclosing as

to how the quarrel ensued and attack took place.

From this, Mr. Sridharan earnestly argues that the report which was given by the accused and which was reduced to writing by the Sub

Inspector of Police present on duty, can be read at least to suggest that there was a grave and sudden provocation on that day which emanated

from Sivakami and because of which the accused lost his self control and cut her in pursuance of that provocation. Even if we read the whole

statement given by the accused under Ex.P2, we fail to see any such provocation on the part of Sivakami, much less of the nature as described by

the learned counsel or as required by the Section. All that we see in that statement is that the wife Sivakami was whitewashing the house and

accused asked her as to what she was doing. On that, Sivakami is said to have uttered that why should the accused threaten her. On this, the

accused straight away pushed the deceased inside the kitchen and then taking the billhook, he attacked the lady. We do not find as to how a

provocation can be read into the simple words of Sivakami. We further fail to understand as to how those words could amount to a grave and

sudden provocation. True it is that there is no other evidence as to what exactly happened at that time, but that would not give any handle to the

accused to argue that there was a quarrel and the quarrel was such as enough to provoke the accused suddenly and in a grave manner. We do not

find any such material in the whole record. The learned counsel argued that the accused was constantly under a pressure because of the suspicion

that he was entertaining about the character of his wife and was suggesting that the house should be abandoned and, therefore, seeing that

Sivakami was whitewashing the house, the accused might have got the grave and sudden provocation which exploded into the action of criminal

nature on his part. We are unable to accept such argument. In the first place, if the deceased Sivakami was whitewashing the house, it could not be

said to be an act so grave and so sudden as to give any provocation of the nature required under Exception 1 to Section 300 I.P.C.

Therefore, once we come to the conclusion that the accused had deliberately attacked his wife Sivakami, severed her head and paraded the

said head in the village by firstly going to P.W.2 Savithri and thereafter to the police station, it leaves us with no doubt that the accused had

committed an act of murder as would be covered u/s 302 I.P.C. We reject the contention raised by the learned counsel that this could amount to

grzave and sudden provocation. We fail to see anything which could support the accused in the ruling on which the learned counsel has relied upon

because, in that ruling at least there were some materials in the statement given by the accused which was recorded in the nature of F.I.R. We have

scanned the statement and find nothing much less, providing any such plea of the grave and sudden provocation to the accused.

In the result, we hold that the learned Sessions Judge was right in convicting the accused for an offence u/s 302 I.P.C. The appeal has no

merits and the same is dismissed.