Karnataka High Court
Madaiah vs State By Yelandur Police on 8 April, 1991
Equivalent citations: 1992CRILJ502, 1991(3)KARLJ476
JUDGMENT Shyamsundar, J.
1. Although on the merits of the appeal the sorded facts involved give rise to same conclusion similar to the one arrived at by the Court below on the convincing evidence led for the prosecution in support of the charge levelled against the appellant of having committed the murder of his own wife right inside his house at Honnur village, at board day light at about 9-30 a.m. resulting in the appellant being sentenced to undergo imprisonment for life in S.C. No. 29/88 dated 16-11-88, we find very little reason to depart from the finding of the guilt recorded by the Sessions Judge or with the endeavour made by the prosecution to ram home the charge to the accused. We are nonetheless persuaded by the argument of learned counsel Sri Seshachala who appears herein as Amicus curiae in this matter, who says all said and done accepting the prosecution case at its face value is without any reason to demur whatsoever, even then the offence which the accused could be said to have committed is not one punishable u/S. 302 of the Indian Penal Code but a lesser one i.e., culpable homicide not amounting to murder punishable u/S. 304 Part I of the Indian Penal Code meriting a sentence lesser than that of life imprisonment imposed on him by the learned Sessions Judge.
2. The question raised by Mr. Seshachala depends mainly on the confession made by the accused to the police as also the confession made to P.Ws. 4 and 5 at the police station and in all probability in the presence of the police officers themselves could still be relied upon in favour of the accused to spell out the lesser offence of culpable homicide not amounting to murder, vis-a-vis the one for which he has presently been convicted. The above question is no doubt of considerable nicety but the diligence on either side has resulted in the production of only two authorities in support of the proposition right now under consideration and otherwise we appear to be on virgin ground.
3. We shall, however, briefly refer to a few facts necessary for the disposal of the point under consideration to which we have drawn attention supra. The accused herein a middle aged man of 40 years stands charged with having committed the murder of his wife a lady by name Sakamma from whom he had three children. At the time of the incident the youngest one Nangammanni, P.W. 12 hardly 5 or 6 years was living with the parents at the village of Honnur within the jurisdiction of Yelandur Police Station of Mysore Taluk. Although there is not much of direct evidence explaining the behaviour of the accused in slaughtering his wife on whom he had inflicted 12 injuries, the cause appears to be the wife's illicit intimacy with a neighbour P.W. 11 Boraiah and their conduct is said to have become so notorious the couple had been even surprised by the accused when they were together and it is said despite the warning by the accused the acts of infidelity had continued. It would appear, on the date of incident he had gone out in the morning for a short while. On his return he found Boraiah P.W. 11 stealing out of his house and on going inside he found the wife adjusting the folds of her saree indication that a little before there had been some intrusion. Not unnaturally he suspected the wife had once again committed the indiscretion of carrying on the illegal liaison contacted by her with P.W. 11 Boraiah and therefore feeling greatly annoyed and angry, he had immediately taken a sickle and assaulted his own wife mercilessly to death in the bargain recording 12 injuries on her to which the victim had no option but to succumb to. These are matters of record having later transpired from the post mortem report Ex. P. 13 and the evidence of P.W. 14 Dr. Ramaswamy. The story runs and appears to be overwhelmingly supported by evidence on the aspect, the accused immediately after killing the wife had essayed straight to the Police Station at Yelandur hardly 2 or 3 Kms. from the village and had surrendered before the police with the blood stained "matchu" and all the apparel on him stained with the wife's blood being seized at the police station. A Sub-Inspector who was on duty recorded the statement of the accused later treated as the first information report at Ex. P. 18 which runs as follows :
"I have got written. I am a resident of Honnur and live on the work done as a Coolie. Since two months I have not gone for Coolie work as I am suffering from T.B. My wife Sakamma was going for Silk-Yarn drawing work to my harijan neighbour Boriah's house. I am married 20 years back and have 2 female and 2 male children. The elder girl up the house 2 years back and I do not know as to where she went. One son works at Benakanhalli and the other at Hirur Villages as Coolie. My neighbour Silkreel Boriah had contact (Sambandh) with my wife. I have seen 4-5 times their sleeping together in my house. In spite of my warning my wife on sufficient occasions they were carrying on the business. Today morning I had gone to the Village at about 8 in the morning. At above 9 1/2-10 hours, when I returned, said Bariah ran away from my house on seeing me. I immediately went to house and saw my wife adjusting the folds of her sari. I got angry and took a Machu (Sharp Sikle) that was in the house. Scathed the face and body and killed (her) and came to the Thana with said Machu and produced the same. I will point out the deadbody of my wife if you came with me. The shirt which I wore is also bloodstained and is on my body. When I murdered my wife, she screamed and the persons staying in the surrounding area have seen it. Some people tried to catch me but I came running to the Thana."
Contemporaneously a mahazar was drawn to record the seizure of 'matchu' M.O. 6 and blood stained clothes of accused M. Os. 7 and 8 under panchanama Ex. P. 8, the latter supported by panchas P. Ws. 4 and 5. Investigation into the occurrence being very much curtailed because the accused himself having given up to the police station later resulted in the filing of the charge-sheet supported as it was by the evidence of the daughter of the accused P.W. 12 and two neighbours P.Ws. 8 and 9 who had come to the scene of occurrence attracted by the cries of agony uttered by the wife while she was being literally sliced to pieces by the husband. In the usual course the inquest, spot mahazar etc., all followed. Recording of the statements of the witnesses was almost on the heels of the visit of the police to the scene following the lodging of the information by the accused himself as per Ex. P. 18, and in no time the investigation closed after it was taken over by the Circle Inspector of Police.
4. At the trial a few witnesses were examined for the prosecution and several documents marked. But the accused when examined by the Court u/S. 313, Cr.P.C. denied everything. He even denied surrendering police and the fact of giving information of the incident to the police. The learned judge on a consideration of the evidence held that the death of Sakamma, wife of the accused, was due to homicidal injuries sustained by her and the accused was responsible for the same. Some endeavour had been made before him by the learned counsel appearing for the accused, that the offence committed by the accused was not one punishable u/S. 302, IPC but culpable homicide not amounting to murder. But the learned judge did not accede to that submission and ruled it out holding that the offence committed by the accused was one u/S. 302, IPC justifying imposition of the life imprisonment. While we have no hesitation in up-holding the learned Judge's view that it was the accused who had done to death his wife and that the said charge had been affirmatively established without more if not anything else at least on the evidence of his own daughter P.W. 12 little more than 5 or 6 years old with the Court recording her evidence without administering any oath. Of course she was indeed too young to understand the implication of being under an oath. But that is not very material. Suffice it to notice that the evidence of P.W. 12 is supported by the evidence of other witnesses viz., P.Ws. 8, 9 and 10 and further supported by the factum of surrender of the accused directly to the Police at the Station. All this appears to be well established on unimpeachable evidence leaving no room to doubt that he and he alone killed his wife.
5. Before the trial judge, learned counsel for the accused had submitted that the accused acted under grave and sudden provocation and hence the offence committed by him was at best one of culpable homicide not amounting to murder. This argument was not accepted by the learned trial judge. In this Court Mr. Seshachala pointed out that apart from Ex. P. 18 which is treated as a confession statement there is nothing on record which is excluded from consideration, although we find from the records, the learned judge did not make an accurate distinction between exculpatory and inculpatory parts of the statement made by the accused. Notwithstanding the same, the argument led before us is even if Ex. P. 18 is treated as a total confession, that u/Ss. 25 and 26 of the Evidence Act the ban enacted is one of using such a statement against the accused. It is argued the ban did not extend to using the same in favour of the accused and by the accused. In support of this proposition two decisions, one of the Lahore High Court in Lal Khan v. Emperor, AIR 1948 Lahore 43 : (1949 (48) Cri LJ 977) and a bench decision of the Madras High Court in In Re Mottai Thevar are relied upon. Per contra, the learned Public Prosecutor invited our attention to a decision of the Supreme Court in Nishi Kant Jha v. State of Bihar . Before we advert to the decisions themselves and the provisions of the Evidence Act, we may briefly refer to the fact situation that has led to this argument.
6. In the first information report Ex. P. 18 there is reference to the wife's paramour Boraiah running out of his house after seeing him and on going inside the house be found his wife adjusting the folds of her saree. The relevant recitals are as follows :
"Today morning I had gone to the village at about 8 in the morning. At about 9 1/2-10 hours, when I returned, said Boriah ran away from my house on seeing me. I immediately went to the house and saw my wife adjusting the folds of her sari."
The above statement is found repeated in the panchanama Ex. P. 8. Following are the relevant recitals therein :
"As per the say of the Sub-Inspector to record a mahajar (Panchanama) as to what said Madiah says and would produce, we agreed and enquired with said Madiah. He stated that at about 9 1/2-10 hours in the morning. Harijan Boriah of the very village was seen with his wife Sakamma in his house, and he ran away, and later he scathed her face and head with Machu and killed her and that he came to the Thane with the very Machu."
The two witnesses who supported the panchanama before Court are, Sri Nagaiah, P.W. 4 and Sri Maraiah, P.W. 5. Both unequivocally repeated before Court what the accused had told them at the time of the mahazar Ex. P. 8. The evidence of P.W. 4 in that behalf is as follows :
"I enquired the accused as to what the matter was. The accused told me that his wife was in the company of one Boraiah of his village and seeing that, he had killed his wife with that Matchu and that Boraiah had ran away and that he came to the P.S."
P.W. 5 more or less endorses the foregoing statement of P.W. 4. In his evidence has states :
"I and P.W. 4 Nagaiah enquired the accused as to what the matter was and the accused told us that he had seen his wife in the company of one Boraiah and that he had killed his wife."
It is however clear the whole of the statement at Ex. P. 18 is undoubtedly a confession statement. Now the relevant provisions of the Evidence Act being Ss. 25 and 26 thereof which need to be considered, read :
"Section 25 : No confession made to a Police Officer, shall be proved as against a person accused of any offence."
"Section 26 : No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
(Explanation :- In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882)."
7. Whereas u/S. 25 of the Evidence Act no part of the confession made by the accused to a Police Officer is held admissible u/S. 26 of the Evidence Act, the confession made in the presence of a Police Officer becomes admissible although it is made by an accused who is in custody of the police, provided it is made in the presence of the Magistrate. We are not really concerned with S. 27 of the Evidence Act because it is an enabling provision which deals with the right of the police to prove that portion of a confession made by the accused while in custody that had ultimately led to the discovery of some material consequent upon the information furnished by the accused in custody. We are not on that point right now.
8. Reverting now to the argument of learned counsel it is pointed out that neither u/S. 25 nor u/S. 26 of the Evidence Act there is any prohibition for the accused to make use of his own confession or to rely upon the said confession for his benefit although the sections make it very evident that a confession made to a Police Officer by the accused in detention if it is u/S. 25, it is totally inadmissible, whereas u/S. 26, it is admissible provided it is made before a Magistrate. In either event it is pointed out and in our opinion rightly too, the controversy herein is not covered either by S. 25 or 26 of the Act and there is no other provision occurring on this point. In reality we think, there is no bar in law precluding the accused from relying upon his own confession for his purposes. That such is certainly the position as the provisions of the Evidence Act stand is not disputed by the learned Public Prosecutor.
9. It is relevant at this stage to point out that u/S. 8 of the Evidence Act, the conduct of the accused subsequent to the occurrence is very relevant. Taking that aspect of the matter into consideration, the fact of the accused going straight to the Police Station and making a statement explaining his conduct in that behalf would be clearly admissible but for the fact that his conduct is demonstrated by the statement of the accused admitting the commission of a crime.
10. Be that as it may there is nothing in the Evidence Act that precluded an accused from relying upon his confession for his own purpose. This advantage, no doubt, the prosecution does not have because of the total ban enacted u/S. 25 in making use of the confession in any manner barring the limited user, the prosecution can make of it u/S. 26 provided the confession is made in the presence of a Magistrate. The accused is not untrammelled by either of these sections in case he desires to rely on the confession. This appears to be the considered view of the Lahore and the Madras High Courts in Lal Khan's case (1949 (48) Cri LJ 977) and in In Re Mottai Thevar's case (1952 Cri LJ 1210). The dictum of the Lahore High Court in Lal Khan's case (1949 (48) Cri LJ 977) is as follows :
"Where an accused person himself makes a statement which is taken down as a first information report, the statement is inadmissible against the accused as it amounts to a confession to a Police Officer. But there is no bar to using such a confession in favour of the accused."
11. Although this decision was not referred to by the later decision of the Madras High Court in Mottai Thevar's case , the ratio therein is no different. The Bench consisting of their Lordships Mack and Somasundaram JJ. indeed a very eminent one laid down that :
"Where the accused immediately after killing the deceased goes to the police station and makes a clean breast of the offence, and the statement forms the first information of the offence, though the statement cannot be used against the accused, S. 25, Evidence Act does not bar its use in his favour."
Of course there was some difference between the two learned judges touching the need to retain or abrogate Ss. 25, 26 and 27 of the Evidence Act. The brief highlights of the stand taken by Mack J. in that behalf is in para 8 of the decision whereas the contrary stand taken by Somasundaram, J. is at para 9. Notwithstanding the idealogical difference in the stands taken by the two judges, touching the amendment and repeal of Ss. 25, 26 and 27 of the Evidence Act, both fully agreed that the confession made to a Police Officer in custody while it could be used against the accused u/S. 27 of the Act, the ban aforesaid, however, did not preclude the accused from making use of the confession itself. Para 11 of the judgment which features the brief reasoning of Somasundaram, J. makes that aspect of the matter very clear. His Lordship observes :
"If it is to be used against the accused, then S. 25 is a bar and it cannot be admitted but it is to be used in favour of the accused, I do not think that S. 25 is a bar and the confession can well be admitted."
12. As against these two decisions, learned State Public Prosecutor invited our attention to the decision of the Supreme Court in Nishi Kant Jha v. State of Bihar . The head note sets out the issue arising therein as follows :
"Confessional statement - Acceptance of inculpatory portion alone - Permissibility - Inculpatory Portion can be accepted if the exculpatory portion is found to be inherently improbable - Charge for murder - Confessional Statement to Mukhiya of village - Exculpatory portion found to be not only inherently improbable but contradicted by the statement of accused u/S. 342 Criminal P.C. - Acceptance of inculpatory portion and conviction based thereon, held, was valid."
A reading of the above excerpt makes it evident that the point engaging our attention herein had not arisen before the Court at all and that the Court was of the view that if the confession by the accused was thoroughly improbable and cannot be believed at all in that event that it could be certainly excluded from consideration. But we are not on that point herein.
13. The only question that arises herein now is whether the confession made by the accused to a Police Officer while in custody although it cannot be made use of by the prosecution to trammel the accused whether the latter can make use of it for his own benefit and rely upon it unless such user is barred by law. Besides, in this case, we find that it is not even necessary to appeal to the principles enunciated by the two decisions referred to supra for the simple reason the confession is adumbrated in the evidence of P.W. 4 and P.W. 5. The accused had made the confession before them stating that he had made a statement to them wherein he had mentioned that on arrival at his house he found P.W. 11 skulking away from his house, that he had found the deceased and P.W. 11 together when he entered the house and later Boraiah having run away from his house and this primarily, according to the accused had induced him to commit the crime leading to the murder of his wife on that day. Learned Public Prosecutor, at this juncture points out his counterpart who conducted the prosecution in the Court below had cross-examined Boraiah the paramour of the deceased, and had suggested to him that he had illicit connection with the wife of the accused. P.W. 11 Boraiah was contradicted by his previous statements as per Exs. P. 10 and P. 11. We have also the evidence of P.W. 12, the daughter of the accused, who amongst other things mentions that P.W. 11 ran away from the house seeing her father coming into the house. The relevant portion reads :
"Boraiah had come on that day to our house to call my mother Sakamma for coolie and at that time my father returned home and on seeing my father, Boraiah ran away."
There is no cross-examination on behalf of the accused in relation to the foregoing statement. The position on facts appears to be that the accused herein had actually found P.W. 11 running away from his house and on moving in he had seen the deceased adjusting the folds of her saree indicating her garments had been disturbed a little before and most probably at a time when P.W. 11 was inside the house. The prosecution at a later stage had suggested to P.W. 11 that he has actually the paramour of the deceased. If not anything else, the evidence of the daughter P.W. 12 shows that on noticing the arrival of the accused P.W. 11 had run away from the house. The statement made by the accused to P.W. 4 and 5 is that he had killed his wife as he had actually found his wife and P.W. 11 being together in his house. The confession made by the accused, in the circumstances could have been certainly made use of for his own purpose although the prosecution could not have made use of it since the confession was made to P.Ws. 4 and 5 inside the Police Station and probably when the Police Officers were around and therefore, it would be as much a confession made to them, as it was to P.Ws. 4 and 5. But then, now under Sections 25 and 26 of the Evidence Act, if there was no ban or bar precluding the accused from relying, on it although the investigation was totally barred, we think that the sum total of the confessions made to witnesses P.Ws. 4 and 5 even to the Police Officers could be relied upon by the accused for his own benefit. In this case, the benefit that accrues to him is of placing on record the circumstance that had led to the killing of his wife and that circumstance is of having either found the wife and P.W. 11 together on that morning or of having found P.W. 11 running away from his house and after going inside he had found the deceased adjusting the folds of her saree, giving rise to a suspicion in his mind that the deceased and P.W. 11 being in a clench just before he registered his presence in the house. As a matter of fact he goes even beyond when he told P.Ws. 4 and 5 that he found the deceased and P.W. 11 together and that is why he was driven to commit the ghastly crime. Regard being had to our views that a confession statement even if it cannot be relied against the accused can still be relied by him in his defence, it seems to us without more not merely Ex. P. 18, the confession statement made to the Police Officer at the Police Station but also the statement made to P.Ws. 2, 4 and 5 adumbrated in their deposition can be relied on by the accused at least to spell out a stand that the offence committed by him was not murder but something less than that.
14. Under these circumstances the question now arises whether the material referred to supra namely the FIR at Ex. P. 18 and the evidence of P.Ws. 5 and 6 would indicate that the man acted on the spur of the moment being caught in a frenzy on encountering his wife hobnobbing with P.W. 11 on that morning and in those circumstances whether he had enough of justification to act as he did, provoked suddenly by the sordid scenario confronting him in his house. Exception (1) to Section 300, I.P.C. states that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The act done is not murder. But if proved being the offence committed does not fall under the above exception, the offence committed is one of murder punishable under S. 302, I.P.C. It is true that a person doing any particular act is presumed in law to do it with full knowledge of the consequences that are likely to follow subsequently and would therefore be liable for the aftermath of his action. Herein the accused after inflicting on his wife 12 incised injuries with a heavy cutting weapon like M.O. 6 could not be heard to say that he did not have the intention of causing such injuries which are likely to cause the death of his wife. No human being would possibly survive after sustaining 12 incised injuries. Therefore, there is no gainsay in denying that the accused herein had only one thing in mind when he dealt so barbariously with the victim indicating clearly his intention was to cause the victim's death which in any event followed the horrendous act committed by him. Thus clearly, this is a case in which it can be easily deduced the man did have the intention to cause death and he was not reprieved by the exceptions to Section 300 of the I.P.C.
15. The question therefore is whether the case can nonetheless be steered into exception 1 to S. 300, adverted to hereinbefore. It seems to us no man could have possibly resisted the impulse of punishing a faithless woman and that too when he had before him some tangible proof of the indiscretion committed by the woman who happened to be his wife. Although directly the prosecution did not produce any evidence of motive in support of the charge against the accused and the learned Judge in such a situation adopted the right perspective in not lamenting over this omission by the prosecution because the case rested entirely on the account of the eye-witnesses to the occurrence, nonetheless when P.W. 11 was cross-examined by the Public Prosecutor there was reference to the motive behind the commission of the crime for it was suggested to him that he had illegal intimacy with the deceased which indeed is the case of the accused starting from the FIR-Ex. P. 18 and the statements he made to P.Ws. 4 and 5 to which we have referred to. Added to this is the evidence of his daughter P.W. 12 Nanjamani who candidly referred to the events of that day. According to the accused he had caught his wife in the tell-tale stance of being engrossed in correcting the drapes of her saree, as could be gathered from the tale of woe rendered by the accused under Ex. P. 18, indicating that if not sexual intercourse there was at least some kind of lesser indiscretion on the part of his wife and P.W. 11. Given the background of the persistent infidelity displayed by the wife and then continued liaison with P.W. 11 despite the warning given by him, the situation on that morning which caught his attention must have certainly added fuel to fire engulfing him in a terrible and uncontrollable anger he had then thought of putting and end to the misdeeds of a philandering woman who had consistently refused to turn a new leaf in spite of being warned several times. Probably finding the situation to be intolerable the man was probably goaded to turn into a demonical killer. It seems to us this being the fact situation and there appears to be no escaped from such a conclusion even the facts as they are now on record, we must hold that in all probability the accused had acted under grave and sudden provocation furnished by the conduct of his wife and P.W. 11 on that morning and had thereafter been driven to commit the crime in question. Thus the case clearly attracted exception No. 1 to S. 300, I.P.C. reducing the offence committed to one punishable under S. 304, I.P.C. In this view of the matter the conviction of the appellant for the offence of murder under S. 302 cannot be sustained and has got to be annulled.
16. This is the limited success this appeal meets with and in the light of the foregoing we allow the same in part in that we set aside the conviction and sentence imposed on the accused by the Sessions Judge for the offence of murder punishable under S. 302, I.P.C. and in its place we substitute the offence punishable under S. 304, I.P.C.
We have heard Mr. Seshashala, learned amicus curie, on the point of sentence. He cited a few decisions of this court in his endeavour to convince the court that R.I. for three years would meet the ends of justice. On the other hand learned Public Prosecutor drew our attention to the decision in Latumukhi v. State, 1969 Cri LJ 1172 (Orissa) wherein for an offence under S. 304 the Orissa High Court has imposed sentence of 5 years R.I. It seems to us in facts and circumstances of the case ends of justice would be met with by imposing R.I. for 5 years. Accordingly, we convict the accused for the offence punishable under S. 304 Part I, I.P.C. and impose on him the sentence of 5 years R.I. The period of sentence already undergone shall be set off against the period of detention the accused will have to undergo to complete the sentence, now imposed on him.
17. Order accordingly.