JUDGMENT
M. Karpagavinayagam
1. In S.C. No. 60 of 1988, on the file of Principal Sessions Court, Salem, the appellant Mohan was tried and convicted and sentenced to life for the offence under Section 302 I.P.C., on the allegation that on 19-9-1987, at 6.00 a.m. in Babu Nagar, Ammapet, Salem, the appellant stabbed his wife the deceased Prema with the pen-knife (M.O. 3) and caused her death.
2. To substantiate the above charge, the prosecution examined P.Ws. 1 to 11, filed Exs. P1 to P16 and marked M.Os 1 to 7.
3. The prosecution case in brief is as follows :-
The appellant Mohan is the husband of the deceased Prema. They were residing at Door No. 66, in Nadhimullahkhan Street, Baby Nagar, Ammapet, Salem along with their children. P.W. 1 Thulasiraman, P.W. 2 Dhanam wife of Ramamurthi, P.W. 3 Dhanam wife of Gopal, were all neighbours. One Gopi, the brother-in-law of the appellant, who was the resident of the same area used to come often to the house of the appellant and took the deceased to cinema theatres. There was a rumour spread over in the area that the deceased had illicit intimacy with the said Gopi. Due to this, there were frequent quarrels between the husband and wife, the appellant and the deceased. P.Ws. 1 to 3 used to intervene and pacify, whenever quarrel arose between them.
4. Four to five days prior to the date of occurrence, the appellant went to Salem town and purchased a knife M.O. 3 on payment of Rs. 6/- from P.W. 9 who is a vendor of knifes, locks and mirrors, having his shop in platform opposite to Oriental Cinema theatre, at Salem.
5. On 19-9-1987, at about 5.45 a.m. P.W. 1 Thulasirnman heard a sound from the house of the appellant as “vernacular matter is omitted.” P.Ws. 2 and 3 were also came out of their respective houses and went inside the house of the appellant to see what happened. At that point of time, P.Ws. 1 to 3 saw the deceased pleading with the appellant/accused as “vernacular matter is omitted.” But the appellant by catching hold of the hands of the deceased with his left hand stabbed with M.O. 3 knife which he carried in his right hand and inflicted injury on the stomach of the deceased. When P.Ws. 1 to 3 tried to prevent him from making further attack, the accused ran away from the place with M.O. 3 knife.
6. Within a few minutes, the said Gopi came over there. P.W. 1 and Gopi arranged to take the victim, who was alive then, gasping for life to a private nursing home situated nearby in a Autoricksha. In the clinic, Dr. Chidambaram after examining her pronounced her death. Thereafter, the body of the deceased was taken to the house of the father of the accused. After giving information to the relations, P.W. 1 at 11.00 a.m., came to Ammapet police station and gave Ex. P1 complaint to P.W. 10, Sub-Inspector of Police, who in turn registered the case in Cr. No. 649 of 1987, for the offence under Section 302 I.P.C., and prepared Ex. P13 printed F.I.R., and sent these documents to the senior officials and the Court.
7. P.W. 11, the Inspector of Police, Ammapet, on receipt of information at 11.30 a.m., on 19-9-1987 took up investigation. He came to the spot at 11.45 a.m. He prepared Ex. P14 rough sketch. At 12 noon he prepared observation mahaazar Ex. P. 2 in the presence of P.W. 4 and another. At about 12.30 p.m., he seized M.O. 1 bloodstained saree, M.O. 2 bloodstained cement plaster under Ex. P3 mahazar. Thereafter he went to the house of the father of the accused, where the body of the deceased was lying in D. No. 29, Poochankottai lane. At about 1.15 a.m., he prepared Ex. 15 rough sketch and at about 1.30 p.m., he prepared Ex. P. 4 observation Mahazar attested by P.W. 4 and another.
8. Between 2.15 p.m. and 5.15 p.m., he conducted inquest on the body of the deceased and prepared Ex. P16 inquest report, examined P.Ws. 1 to 3. Thereafter at about 5.15 p.m., he sent the body of the deceased through P.W. 6 Police Constable to the Hospital for post-mortem along with Ex. P5 requisition.
9. On 20-9-1987 at about 8.45 a.m., P.W. 11, Inspector of Police arrested the accused near Autorickshaw stand, Pattapattaa koil, II Agraharam, Salem, in the presence of P.W. 8. He gave the confession, the admissible portion of which is Ex. P11, in pursuance of which, P.W. 11 and others were escorted by the accused to Ammapet Main Road and there on his being pointed out M.O. 3 knife was recovered from a dustbin, kept near kitchipalayam road, opposite to the house of Anbukkarasi. This was recovered at about 10.30 a.m. under Ex. P12 mahazar attested by P.W. 8. Thereafter, he pointed out P.W. 9 at Salem town, from whom, M.O. 3 was purchased by him four days prior to the date of occurrence. He was sent for judicial custody on 21-9-1987.
10. In the mean time on 20-9-1987 at about 11.15 a.m., P.W. 5 Doctor Mahalakshmi, received Ex. P5 requisition sent by P.W. 11 through P.W. 6 Police Constable and she commenced the post-mortem at about 1.30 p.m., on the same day, and found the following injuries :-
“1. An incised wound 2 cm x 1 cm longitudinally placed over the anterior abdominal wall in the midline 5 cm above the umbilicus .
2. An incised wound 2 cm x 1 cm. 4 cm lateral to wound No. 1, 4 cm below the rib cage.
On probing the wound, it goes beyond 10 cm depth. Peritoneal cavity contained 2 litre of fluid and clotted blood. Stomach oval tear 2 cm x 1 cm present over both the anterior and posterior wall with 1 cm above the greater curvature 5 cm from the gastro duoderal junction intestines : One oval 1 cm x 1 cm fear seen over the ileum 15 cm away from the deoderum transverse colon 1 cm x 1 cm tear in the transverse colon in the middle third with faecal mass coming out of wound meso-colon 2 tears 1 cm x 1 cm each places 2 cm a part over the meso-colon with diffused haematoma surrounding the tear diffused haematoma present beneath the posterior peritoneum weight about 1 litre. On exploring the inferior vena-cava had a tear of 1 cm x 1 cm through and through at T. 12 body vertebra level.
Utcrus 4 cm x 2 cm x 1 cm section cavity empty”
She opined in her post-mortem certificate Ex. P6, that the deceased would appear to have died of shock and haemorrhage due to injury to vital organs like inferior vena cava, stomach meso-colon and intestine, 30 to 36 hours prior to post-mortem.
11. After post-mortem, P.W. 6 Police Constable recovered M.O. 4 saree, M.O. 5 pettycoat, M.O. 6 bra and M.O. 7 jacket from the body of the deceased and produced the same in the police station. He also handed over the body of the deceased to her relations.
12. P.W. 11, after receipt of all the MOs. sent them to the Judicial Magistrate’s Court along with Ex. P7 requistion for sending the same to forensic laboratory. P.W. 7, the Head Clerk of the Judicial Magistrate’s Court, on receipt of MOs. 1 to 6 along with Ex. P7 requisition, sent those MOs. to Forensic Laboratory with the covering letter of the Judicial Magistrate, Ex. P8. Ex. P9 is the chemical analyet’s report and Ex. P10 is the serologist’s report. After finishing the investigation and after examining all the witnesses, P.W. 11 filed the charge sheet on 20-10-1987 in the committal Court, against the appellant for the offence under Section 302 I.P.C.
13. On committal, the trial Court framed the charge against the appellant and questioned the accused, to which he pleaded not guilty and claimed to be tried. On conclusion of trial, the appellant was questioned under Section 313 Cr.P.C., with reference to the incriminating circumstances, appearing against him in evidence brought on record, the appellant chose to deny the complicity in the crime. He further stated that since there was illicit intimacy between his wife and his brother-in-law Gopi, he used to warm and reprimand her. However, he denied having committed any crime as alleged by the prosecution. Finally, for the last question he stated that a false case had been foisted against him.
14. The trial Court on appraisal of the evidence, oral and documentary found the appellant guilty under Section 302 I.P.C., and convicted and sentenced him as referred to earlier. Aggrieved over this verdict, the appellant has preferred this appeal before this Court.
15. Mr. Jegannathan, learned counsel for the appellant took us through the entire evidence and contended that there is no other evidence to connect the appellant with the crime, except the evidence of P.W. 1 and that the reading of Ex. P11, the confession given by the accused before P.W. 11, the investigating officer, would reveal that there was a sustained provocation, due to which the sudden occurrence had taken place. He also contended that the arrest of the accused and the consequent recovery of M.O. 3 knife alleged to have been made on 20-9-1987, at about 8,45 a.m., could not be believed, because P.W. 1 admits that the appellant was brought to the police station even on 19-9-1987 itself. It is also his submission, that P.W. 9 who speaks about the selling of M.O. 3 knife, four days prior to the occurrence also could not be believed, in view of the infirmity in the evidence relating to the arrest of the accused and the consequent recovery of the weapon of the crime, and therefore, the evidence of P.W. 9 cannot be acted upon. In short, the submission made by the learned counsel for the appellant is that though there are materials through P.W. 1, which was corroborated by the medical evidence, to show that the appellant alone caused the death of the deceased, the offence cannot be said to be a one which falls under Section 302 I.P.C., as there are no materials to show that he committed this crime with intention to cause death and as such, the materials available on record would reflect that if at all, any offence is made out that would fall under Section 304 Part I I.P.C.
16. Per contra, Mr. Venkatasubramaniam, representing the State Public Prosecutor, countered his submissions. He stated that the evidence adduced by P.W. 1 and other materials adduced through the other witnesses would certainly show that there was no provocation whatever, just prior to the occurrence, and there was no quarrel also prior to the incident. P.W. 1 would say that he heard the cry “(Vernacular matter omitted), and immediately after hearing the cry he went inside the house of the appellant and saw the stabbing incident and as such, there is no material to show that there was a sustained provocation to bring the offence under Section 304 Part I I.P.C.
17. We have carefully considered the divergent contentions made on either side P.W. 1 Thulasiraman is a neighbour, residing at D.No. 64, the house in which both the accused and the deceased were living being Door No. 66. P.W. 1 would say that there were frequent quarrels between the accused and the deceased, since the accused had a suspicion on the fidelity of the deceased. Even the accused in his statement under Section 313 Cr.P.C., admitted having warned the deceased over her illicit intimacy with his brother-in-law Gopi. It is also clear from the evidence of P.W. 1 and the statement of the accused, that there was a rumour spread over all over the village, that there was an illicit intimacy between the deceased and Gopi. P.W. 1 would further say, that the deceased Prema frequently used to go along with the said Gopi to the cinema theatres in a bi-cycle. So, these materials would clearly show that the appellant did not relish the wife’s conduct of having illegal intimacy with Gopi.
18. Regarding the occurrence, we have got only the evidence of P.W. 1 P.Ws. 2 and 3, the other neighbours turned hostile. However, the first portion of the occurrence as being spoken to by P.W. 1 is corroborated by P.W. 2 Pws. 1 and 2 would clearly say that they heard the sound from the house of the appellant (Vernacular matter omitted), in Saurashtra language. Only thereafter, P.W. 1 and others went inside the house of the appellant and saw the occurrence. Relating to this aspect of evidence, there is corroboration in the form of complaint. Ex. P1, which has been given by P.W. 1 immediately after the occurrence. According to P.W. 1, the victim was brought to the hospital, where she was pronounced dead. Thereafter she was taken to the house of the father of the appellant and after giving intimation to the relations, P.W. 1 rushed to the police station. As such, there is no delay in giving the F.I.R., and the materials relating to the occurrence are clearly mentioned in Ex. P1. The presence of P.W. 2 also mentioned in Ex. P1 complaint. To corroborate this ocular testimony, we have got the evidence of P.W. 5, the Doctor.
19. P.W. 5 Doctor Mahalakshmi would say, that injury Nos. 1 and 2 found on the stomach of the deceased were necessarily fatal. She would also assert that the death would have been caused by means of M.O. 3 knife. According to her, the death would have occurred between 30 to 36 hours prior to the post-mortem. So, these materials would clearly prove, as admitted by learned counsel for the appellant, that the appellant and the appellant alone had perpetrated this crime of causing the death of the deceased.
20. Before adverting to the nature of the offence, let us consider about the evidence of P.W. 9 and the evidence relating to the arrest of the accused and the recovery of the knife M.O. 3. According to P.W. 11, on 20-9-1987, at about 8.45 a.m., the accused was arrested and in pursuance of his confession, M.O. 3 knife was recovered. The appellant then, pointed out P.W. 9, a platform vendor, form whom M.O. 3 knife was purchased by the appellant. Thereafter, P.W. 9 was examined by P.W. 11. Tough the date and time were not mentioned as to when the appellant indentified P.W. 9, the fact remains that the knife was purchased from P.W. 9 by the appellant, four or five days prior to the occurrence. P.W. 9 in his cross-examination would admit that even in the morning of 19-9-1987, a few minutes after the registration of the complaint, the police brought the accused in a van to the police station. This would show that the accused must have been apprehended even on 19-9-1987. So, the evidence relating to the arrest as spoken to by P.W. 11, the Inspector of Police and P.W. 8, the mahazar witness cannot be acted upon. As such, the recovery of M.O. 3 knife, in pursuance of the confession said to have been given by the appellant Ex. P11, also has no value. However, the contention of Mr. Jagannathan, learned counsel for the appellant is that once the evidence relating to the arrest of the accused and recovery of M.O. 3 knife is disbelieved, the evidence of P.W. 9 also should be disbelieved. This submission cannot have any substance, in view of the decision in Himachal Pradesh Administration v. Shri Om Prakash 1972 Mad. L.J. (Crl.) 404 : (1972 Cri LJ 606), wherein the Supreme Court, has held as follows :- (Para 13).
“Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the information is the accused. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden or sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and information which disclosed the identity of the witness will not be admissible. But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panches that the accused had taken them to P.W. 11 and pointed him out and as corroborated by P.W. 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused.”
In the light of the above principle laid down by the Supreme Court, the fact of the accused pointing out P.W. 9 as the person from whom he purchased M.O. 3 knife, cannot come under Section 27 of the Evidence Act and nothing has been recovered form that witness, who was pointed out by the accused, but the conduct of the accused could be considered under Section 8 of the Evidence Act. Moreover, P.W. 9 being an important witness, was traced out only at the instance of the accused, during the course of the investigation. So, since it does not come under Section 27 of the Evidence Act, there is no bar for this Court to consider and act upon the evidence of P.W. 9. In the light of the above discussion, we have to consider, regarding the nature of offence committed by the accused.
21. According to P.W. 1, as soon as he heard the sound of cry, he along with others went inside the house of the appellant and saw the appellant stabbing the deceased twice. The only sound, he heard was (original in vernacular language omitted.) As such there is no material to show that there was any quarrel ensued between the accused and the deceased. The evidence of P.W. 9 would make it clear that prior to the occurrence, the accused purchased the M.O. 3 knife from him. This would show that the accused should have purchased the M.O. 3 knife, only for the purpose of doing away with the deceased, who continued her illegal affairs with the said Gopi. Mr. Jegannathan, learned counsel for the appellant, on the strength of Ex. P11 confession, submitted that the accused got provoked and stabbed the deceased on losing his self control in a sudden occurrence. He pointed out the relevant portion in Ex. P11, which reads thus :-
(Vernacular matter omitted)
So, on the strength of this, learned counsel for the appellant contended that since he has caused the death of the deceased due to the grave and sudden provocation, while depriving of his power of self control, this act would come under Section 300(1) I.P.C., attracting the penal Section Part 304 part I IPC., This submission does not impress us, since the materials produced before us would not show that there was a sufficient cause for grave and sudden provocation. Exception 1 to Section 300 I.P.C. reads thus :-
“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 or cause the death of any other person by mistake or accident.
The above exception is subject to the following provisions :-
First :- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly :- That the provocation is not given by anything done in a obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly :- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation :- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.”
22. Even as per Ex. P11, the appellant said (Vernacular matter omitted)”
Then the deceased said “(vernacular matter omitted)”
The appellant getting aggrieved and angered due to those words, stabbed the deceased. These words would not certainly be sufficient to constitute “grave and sudden provocation” as contemplated in Exception-1 to Section 300 I.P.C., so as to make the appellant lose his power of self-control. It is not, as if, she provoked him by using abusive language, she did not say that she would go along with Gopi and live with him, as she likes. She merely stated that she would go and stay in the house of her sister. So, this cannot be the factor to provoke the accused to deprive of his power of self control. Moreover, the evidence of P.W. 9 would make it clear that the appellant had the pre-meditation to kill the deceased.
23. So, the evidence of P.W. 9 coupled with the materials adduced by P.W. 1 would clearly reveal that the design of the appellant to do away with the deceased, his wife, had been neatly planned and craftly executed.
24. Mr. Jegannathan, learned counsel for the appellant cited the decisions in Govindarajan v. State of Inspector of Police, Seerkazhi P.S. (C.A. No. 430 of 1990, dated 6-2-1991), Doraiswamy Nadar In Re. 1964 Mad. L.J. (Crl.) 121, Pasadi Veerabbay v. State of Andhra Pradesh 1984 Cri. L.J. 440 (Andh. Pra). But these decisions are distinguishable on facts, since the facts of those cases would indicate that there were quarrels in which abusive languages were used by the deceased, due to which the accused got provoked and resorted to killing of the deceased. It is not all provocation that will reduce the crime of murder into mere culpable homicide. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power or self-control, as the result of which he commits the unlawful act which causes death. In deciding the question, whether this was or was not the case, the test to be applied is that of the effect of the provocation on a reasonable man. So, the said analogy arrived at in the above decisions will not be applicable to the facts of the present case.
25. It is also contended by the learned counsel for the appellant that he put a suggestion to P.W. 1, that at about 4.00 a.m. on 19-9-1987, Gopi dropped the deceased at her house on their return from the lodge, where the deceased was taken by the said Gopi on the previous night at the pretext of going for cinema. As regards this suggestion, P.W. 1 said that he had no knowledge. On the basis of this suggestion, larned counsel for the appellant submitted that the offence could be only under Section 304 Part I IPC. We are not in agreement with the said submission made by learned counsel for the appellant, because there is no material whatever available in the evidence brought on record. As such, we are of the opinion that the offence under Section 302 I.P.C., committed by the appellant has been proved beyond reasonable doubt.
26. Accordingly, the conviction and sentence imposed by the trial Court for the offence under Section 302 I.P.C., to undergo life imprisonment is confirmed. The appeal which has no merits, is dismissed.
27. Appeal dismissed.