Sukka vs State of M.P.

S.P. Khare, J.—Appellant Sukka has been convicted u/s 302 Indian Penal Code for committing murder of his wife '' Bhagwathibai.

On 3-6-1985 at about 9 a.m. deceased Bhagwatibai was beheaded with axe Article ''A'' near the public tap in Kisani Mohalla,Gairatganj. This are belonged to Jhirilal (PW-3). According to his evidence his son-in-law accused Sukka took this axe from his house at about 8 a.m. Prcmbai (P.W. 2) is mother of the deceased. She has deposed that she saw the accused using this axe near the mango tree. Shortly, thereafter, deceased Bhagwatibai was found with bleeding injuries at a short distance from that tree and the blood stained axe Article ''A'' was lying beside her. On the basis of this strong piece of circumstantial evidence the accused was convicted and sentenced as aforesaid.

After hearing the learned counsel for both the sides and after going through the entire material on record we are of the opinion that the FIR made by the accused on 3-6 985 at 9.25 a.m. could not be completely discarded. The motive for the commission of this offence is clearly discernible from this F.I.R. The confessional part of the F.I.R. is not admissible. But non-confessional part of the F.I.R. can be used against the accused as evidence of conduct u/s 8 Evidence Act. The motive for commission of the crime and the relationship of the accused with the deceased do not amount to confession and can be used. Bheru Singh Vs. State of Rajasthan, . An admission in favour of the accusscd can be taken into account to examine whether the,case falls under Exception I to Section 300 particularly when there is no direct evidence disclosing as to how the attack took place. It has been so held by the Supreme Court in Shri Murli alias Denny Vs. State of Rajasthan, .

In the present case the accused lodged the F.I.R. immediately after the incident. It is stated in the F.I.R. by him that in the evening of the previous day he saw his wife cutting jokes with Ganesh. He asked Ganesh that he should not talk to her in this manner. He was keeping an eye upon his wife. He saw that at about 2 o'' clock in the night when the other women were busy in the marriage function his wife quietly went inside the room and he was followed by Ganesh. After sometime he saw Ganesh committing sexual intercourse with his wife. On seeing him Ganesh ran away. This incident enraged him. Next morning he again saw the accused smoking while lying near his wife. He saw that she was dressing herself at that time. They were laughing and merry making On seeing him Ganesh left that place. He tried to persuade his wife to withdraw herself from the wrong path,but she did not respond giving an impresion that she was justifying what she was doing.

It must be reasonably presumed that the statement made by the accused shortly after the commisson of the crime in his F.I.R. are true. This would bring the case under Exception I to Section 300 I.P.C. It is always a question of fact whether the provocation in a particular case was grave and sudden enough to prevent the offence from amounting to murder The accused saw his wife having sexual relation with Ganesh in the night. He must have lost the power of self control. Again in the morning he saw his wife cutting jockes with Ganesh. She gave a very cold response when she was disuaded to do so by the accused. In such a situation the provocation caused to the accused belonging to an aboriginal tribe must be held to be both grave and sudden. Recently, in Bonda Devasu v. State of A. P., (1996) 7 SCC 115 the Supreme Court has held that the Court must look into the socio-economic back ground of the accused to ascertain whether the case is covered by the plea of grave and sudden provocation. That was also a case of an accused belonging to aboriginal tribe. In our opinion that present case is covered by Exception I to Section 300 I.P.C.

In the result the appeal is partly allowed. The conviction of the appellant u/s 302, I.P.C. and sentence of life imprisonment are set aside. Instead he is convicted under first part of Section 304, I.P.C. and sentenced to imprisonment for ten years. He has already remained in jail for this period and he should be set at liberty forthwith if not required in any other case.