JUDGMENT
R.K.Abichandani, J.
1. The appellant – Amrutben has challenged thejudgement and order of the learned Additional SessionsJudge, Gondal in Sessions Case No. 52 of 1989 convictingher for the offence under section 302 of the Indian PenalCode and sentencing her to imprisonment for life and alsoconvicting her for the offence under section 201 of theIndian Penal Code and sentencing her to suffer rigorousimprisonment for a period of one year, on a finding that,during the night between 5th September 1989 and 6thSeptember 1989 at 2.00 a.m., she had after a quarrel withher husband (Bhaya Ebhabhai) who was insisting on her tohave illicit relations with unknown persons, caused hisdeath by giving him a blow with a `dhoka’ andstrangulating him and thereby committed an offence ofmurder and since she had hidden the dead body of herhusband below the cot in her house, she had committed theoffence of causing disappearance of evidence of offencepunishable under section 201 of the Indian Penal Code.
2. As per the Charge exh.1, it was alleged that, on6-9-1989, the accused quarrelled with her husband overhis asking her to have illicit relations with two unknownpersons, and at about 2.00 a.m., gave him a blow with a`dhoka’ on his head and then strangulated him, therebycausing his death and committed an offence punishableunder section 302 of the Indian Penal Code. It was alsoalleged that she had hidden the dead body of her husbandbeneath the cot in her house so that the evidence of thecommission of the offence does not come to light andthereby, committed an offence under section 201 of theIndian Penal Code. It was thus the case of theprosecution itself that the husband of the accused wastrying to force her to have illicit relations with twostrangers and that there was a quarrel over it since shewas not agreeable to such a suggestion. In fact, theprosecution version goes beyond this suggestion byalleging that over a period of time before theoccurrence, the husband of the accused had made earningsby inviting strangers to have illicit relations with hiswife against her will, and that there used to be quarrelsbetween them over such compulsion, and the accused hadabout four years prior to the incident, tried to commitsuicide by consuming poison, but was saved. According tothe prosecution, after the incident occurred, she hadhidden the dead body of her husband beneath the cotthroughout the day on 6-9-1989. However, in the eveningat about 8.30 p.m., she felt uneasy and went to the houseof her father-in-law and informed her father-in-law andmother-in-law that her husband was killed. Theprosecution version is that thereafter, her FIR mark `A’was lodged and she was forwarded under a `yadi’ to thehospital for medical examination as she was havinginjuries. As per the medical evidence, she was havingexternal marks of injury over both her legs. Accordingto the prosecution, in her FIR, the accused had allegedthat she had married Bhaya Ebha, who was of a differentcaste, but after their marriage, Bhaya used to bringstrangers to the house and force her to have physicalrelations with them. Bhaya’s hands were burnt abouteight years prior to the incident when the stove hadburst.
3. As per the complaint of the accused, because ofsuch insistence by her husband who forced her to haveillicit relations with strangers, she was fed up andabout four years prior to the incident, she had consumedpoison as a result of such harassment and was removed tothe civil hospital. About a month before the incidentalso, she had again consumed poison and was removed tothe civil hospital. Five months prior to the incident,her husband had beaten her and she had borrowed medicinaltube from a neighbour for applying on the injury.According to the prosecution, the accused alleged in herFIR that, since about a month prior to the incident, shewas not keeping good health and was having pain in herchest and feeling breathless, and therefore, she hadbluntly refused to have any such relations. However, on5-9-1989, her husband, after having meals at night, toldher that she should entertain two strangers on the nextnight and be with them during the night. She refused tohave such relations and there ensued a quarrel betweenthem which lasted till late night. At about 2.00 a.m.,her husband started giving her kick blows and beating herwith his hands, causing injuries to her on her legs.Therefore, she got exasperated and picked up a `dhoka'(used for washing clothes) and hit him on his head, as aresult of which he fell down on the cot. She then tookthe nylon string which was lying on the sewing machineand tied it around his neck and strangulated him. Hebecame unconscious. She then inserted a piece of clothin his mouth and covered his face with a cloth bag andtied over it a cloth piece so that he may not breathe.When her elder son who was about 8 years of age woke up,she just told him that her father was not well. When onhearing commotion the watchman of the society asked heras to what had happened, she told him that her husbandhad beaten her and gone away. She had then put thecorpse below the cot after tying it. During the day, shewashed her clothes and remained in the house. However,in the evening at about 8.00 p.m., she felt restless andwent to her father-in-law Ebha Kana’s house where shedisclosed to the family members about the incident andthereafter, when asked to file the complaint, she hadlodged this complaint.
3.1 Since this was a First Information Report lodgedby the accused herself, it was rightly held to beinadmissible in evidence in view of the settled legalposition that a confession made to a police officer underno circumstances is admissible in evidence against theaccused and only the fact of the accused giving theinformation would be admissible against the accused asevidence of his conduct under section 8 of the EvidenceAct (See Aghnoo Nagesia v. State of Bihar, AIR 1966 SC119 and Bheru Singh s/o Kalyan Singh v. State ofRajasthan, 1994 SCC (Cri.) 555). The prosecution has,therefore, relied upon the FIR only for a limited extentthat it was the accused who had gone and lodged the FIRabout the murder of her husband whose dead body was lyingin their house. The investigation had started on thebasis of this FIR.
4. The trial Court, on the basis of the evidence onrecord, found that the accused had committed murder ofher husband by giving him a `dhoka’ blow on his head andstrangulating him during the night between 5-9-1989 and6-9-1969 around 2.30 a.m. and that she had tried tosecret the dead body of her husband by hiding it underthe cot and committed an offence under section 201 of theIndian Penal Code.
5. The learned counsel appearing for the appellantcontended that since the FIR was not admissible inevidence, as rightly held by the trial Court, there wasno basis on which the accused could have been convicted,because, the very substratum of the prosecution story waslost. It was further contended that there was noeye-witness to the incident and the circumstantialevidence was not sufficient to hold the accused guilty ofthese offences. It was finally contended that the trialCourt had not taken into account the background in whichthe incident had occurred and it did not consider thepossible defence that was available to the accused. Itwas argued that even as per the prosecution case, theaccused was being forced to have illicit relations withstrangers and therefore, her husband was committing anoffence by forcing her to have illicit relations withstrangers which would amount to offence of rape and insuch circumstances, she had a right of private defence ofher body, which extended to even causing death of theassailant. It was submitted that, in any event, even ifshe is held to have exceeded her right of privatedefence, there was no justification for convicting herfor the offence under section 302 of the Indian PenalCode and that her act would fall within the ambit ofsection 304 of the Indian Penal Code.
6. The learned Additional Public Prosecutor stronglysupported the reasoning adopted by the trial Court andcontended that the accused had no reasonable apprehensionwhich could have given her a right to defend herself andcause death of her husband. He submitted that thecircumstantial evidence, namely, that the accused andBhaya were the only members residing in the house besidestheir two young children, and that during the said night,Bhaya was murdered and this fact was not disclosed by theaccused till the next day evening, clearly suggested thatit was she alone who had committed the offence. It wassubmitted that the fact that she had gone and lodged theFIR mark `A’ was an important fact about her conduct andadmissible under section 8 of the Evidence Act and it ison the basis of this FIR that the investigation hadstarted and it has been duly established from theevidence that she had killed her husband by giving him a`dhoka’ blow on his head and strangulating him. It issubmitted that the accused had in fact acted in a cruelmanner by making sure that her husband dies, because,even after giving `dhoka’ blow on his head, when he hadfallen on the cot, she strangulated him and then sheplaced a cloth bag on his face and wrapped his face witha cloth to ensure that he does not breathe. It wassubmitted that, in this background, the intention of theaccused was clearly evident and the prosecution hadestablished that she had intentionally caused his deathand was, therefore, rightly convicted under section 302 of the Indian Penal Code. It was also submitted that thedead body of her husband was found tied, hidden beneaththe cot in the house and there was no one else except theaccused who could have done this and therefore, theoffence under section 201 of the Indian Penal Code wasalso established.
7. Witness Tansukhbhai Sarvaiya, in his depositionexh.21, has stated that, during the night of theincident, at about 2.00 to 2.30 a.m., while he wasreturning from his work place and was near the house ofthe accused, he heard shouts of Bhayabhai. He alongwiththe watchman and two other persons Kolibhai and Bhanabhai(none of whom are examined) stood near the house ofBhayabhai and had asked the accused about Bhaya and shetold them that he had gone away after fighting with her.He has stated that he did not see Bhayabhai at that timeand that they had heard the shouts while the door of thehouse was closed and the lights were off.
7.1 Witness Bhikha Jamanbhai, a neighbour of theaccused, in his deposition at exh.18, has stated that heknew Bhayabhai since about 10 to 12 years. During thenight of the incident, he had heard shouts from the houseof the accused. He and Tansukh stood near that house onthe road. The watchman of the society was also there.They felt that Bhaya was being beaten by somebody. Theywere about fifteen feet away from the house of theaccused. The watchman shouted, “Bhaya, what happened?”At that time, the accused said that her husband hadquarrelled with her and gone away. According to thiswitness, since it appeared that it was a domesticquarrel, they did not pursue or intervene. This part ofthe evidence that they had asked “Bhaya what happened?”,upon which the accused told them that he had quarreledwith her and gone away, does not seem to be a correctversion, because, if Bhaya’s shouts were heard by themand the witnesses were told by the accused that Bhaya hadquarrelled with her and gone away, they would haveimmediately suspected and would have confronted theaccused by telling her that they had not seen Bhaya goingaway and how is it that she was stating that he had goneaway. Therefore, this part of evidence on which reliancewas placed to show that the accused was having guiltymind and she had falsely stated that her husband hadquarrelled and gone away while he was lying dead in thehouse, does not appear to be acceptable. In paragraph 4of his deposition, this witness has in terms stated thatBhaya was forcing the accused to have illicit relationswith others and that she was not liking it.
7.2 The prosecution witness Ebha Kana, father of thedeceased, has stated in his deposition exh.13 that hisson Bhaya was indulging in black marketing of cinematickets and was not doing any other business. He hasstated that, on the day of the incident, hisdaughter-in-law had come to his house in the evening andtold him that his son was killed. This witness did notgo to the house of his son Bhaya and had seen the deadbody only in the hospital. After giving telephonicmessage, he had gone to the police station. Hisdaughter-in-law was also with him at the police station.His deposition shows that his son Bhaya was ablackmarketeer and did not do any other work and that hisdaughter-in-law had come and informed him about the deathof Bhaya.
7.3 Ujiben, mother-in-law of the accused, in herdeposition exh.22, has also stated that the accused had,at about 8.30 p.m., come to their house on the day of theincident and informed her that Bhaya was killed. In hercross-examination, Ujiben has in terms stated that herson Bhaya used to torture the accused and she was awareof it. She has also stated that they did not keep anyrelations with Bhaya, because, he had gone wayward. Fromthe deposition of Ujiben, it is clear that the deceasedwas not accepted even by his own parents because of hiswaywardness and that he was torturing the accused.
7.4 Hansaben Girishbhai, a neighbour who has deposedat exh.23, has stated that, about 8 to 10 months prior tothe incident, the accused and her husband had quarrelledand on that day in the evening, between 5.00 and 6.00p.m., the accused was passing from the lane near herhouse and was weeping. She asked this witness toaccompany her to the hospital, but as she was busy, shecould not go with her and had given her a medicinal tube.She has stated that, because the accused was injured, shehad given the tube to her. This also reflects on theconduct of the husband of the accused and shows that hewas ill-treating her.
8. From the depositions of the aforesaid witnesses,it clearly transpires that, during the night of theincident, there was some quarrel between the accused andher husband Bhaya who was in the habit of making hisearnings by forcing her to have illicit relations withstrangers whom he invited to their house, and that at theend of the quarrel, Bhaya was killed and his dead bodywas found hidden beneath the cot on the next day duringthe investigation which had started on the basis of theFIR lodged by the accused herself. The medical evidenceestablishes that death of Bhaya was caused due tostrangulation.
9. Dr. Harsha, in her deposition exh.25, has statedthat she had examined the dead body of Bhaya on 7-9-1989and had noted down the injuries which are mentioned atitem 17 of the post mortem notes exh.26. She had alsonoted at item 17 of the post mortem notes that the nailof the right ring finger of Bhaya was absent and bloodwas oozing at that place. She had noted a swelling of 5cm x 5 cm over right frontal region which supportsprosecution version that `dhoka’ blow was given on thehead of the deceased. Ligature mark was found betweenchin and larynx below thyroid cartilage. In thepost-mortem notes, the cause of death is shown as,”asphyxia due to strangulation”. The medical version,therefore, clearly supports prosecution version thatBhaya was strangulated. The evidence thus discloses thatthe accused who alone was present in the house with herhusband during the night, caused his death by giving hima `dhoka’ blow on his head and strangulating him with astring and that thereafter, she had tied his body and putit beneath the cot. The evidence also discloses that,after feeling restless, the accused had, in the evening,gone to her father-in-law’s house and disclosed about thedeath of her husband and thereafter, the FIR was lodgedby her.
10. One important aspect that emerges from themedical evidence is that the accused who was sent to themedical officer under a police `yadi’ was examined by Dr.Harshaben, who in her deposition exh.25 has proved themedical certificate exh.27 issued by her. In thedeposition, the medical expert has stated that when shehad examined the accused, she had disclosed to her thatshe was assaulted by her husband. She was havinginjuries on both her legs, as noted in the medicalcertificate exh.27. This part of medical evidencecoupled with the fact that Bhaya who made his earnings byforcing his wife to give company to strangers whom heinvited at his house at night for over a period of time,shows that there must have taken place some altercationduring the night when Bhaya was wanting the accused toentertain, against her will, two strangers who were tovisit next night and when she resented she was assaultedby him to bring her into submission and agree to suchillegal demand of Bhaya.
11. The worst of all the heinous things that a mancan do to his wife is to ask her to entertain other menagainst her wish. Husband is required to protect hiswife from others. She would want to feel secure with himon the strength of the sacred vows. Instead, if a manuses his wife to earn his livelihood by calling strangersat night to exploit her at his instance, then each nightthat he insists on her to succumb to the lust ofoutsiders, she would have a right to defend her own bodyagainst any offence affecting human body which rightwould commence as soon as a reasonable apprehension ordanger to her body arises from an attempt or threat tocommit such offence, though the offence may not have beencommitted, and such right would continue as long as suchapprehension of danger to her body continues. Such rightof private defence of the body, subject to restrictionsmentioned in section 99 of the Indian Penal Code, wouldextend even to the voluntarily causing of death or of anyother harm to the assailant, if the offence whichoccasioned the exercise of a right of private defence beof an assault with the intention of committing rape, asprovided by clause `thirdly’ to section 100 of the IndianPenal Code. In that context, any gesture or anypreparation intending or knowing it to be likely thatsuch gesture or preparation will cause her to apprehendthat he who makes that gesture or preparation is about touse criminal force on her, would be an assault as definedby section 351 of the Indian Penal Code. Thus, it wasnot necessary for the accused to undergo the torture ofbeing forced to sleep with other men at night at thebehest of her husband and whenever there was anyreasonable apprehension of such assault with theintention of committing rape on her, or causing rape tobe committed on her, she would have been perfectly withinher rights to defend her body to ward off such assault,and such right of private defence extended to evencausing death of such assailant even if such offence maynot have been committed. Nothing is an offence which isdone in the exercise of the right of private defence, aslaid down in section 96 of the Penal Code.
12. In fact, the charge itself alleges that there wasa quarrel between the accused and her husband when he wasforcing her to agree to entertain two strangers, and thatshe resented her husband and caused his death by givinghim a `dhoka’ blow on his head and strangulating him. Weare somewhat surprised that despite this being theprosecution case, the trial Court did not direct itselfto consider the question whether the accused could havebeen said to have exercised her right of private defence.There cannot be a more glaring set of facts than thepresent one, which could have directed the attention ofall concerned to consider whether the accused who hadhelplessly surrendered to her husband’s torturous wishesand pervert demands of entertaining strangers, wasjustified or not in showing resentment by exercising herright to defend herself when she was assaulted by herhusband, as is evident from her medical examination andher disclosure to the medical expert that her husband hadassaulted her during the night in question. We howevernotice from the nature of injuries caused to her thatthey were simple injuries.Moreover, from thenon-confessional part of the FIR and to the extent thatit reflects the conduct of the accused, we note that shehad complained that her husband had told her that sheshould entertain two strangers who will be coming on thenext day. If the strangers were to come on that verynight and she had resented the assault with intention torape her and had in defence of her body killed herhusband, we would have readily accepted her right ofprivate defence of her body, because, she need not havewaited till the strangers invited by her husband enteredthe house for wanting her to be molested in this manner.However, since on her own say the strangers were to comeon the next night, she could not be having `reasonableapprehension’ during the night of the incident andtherefore, we are unable to give her the benefit of suchright of private defence as would have entitled her tokill the assailant. However, since the evidence clearlydiscloses that she was physically assaulted by herhusband over her refusing to agree to his demand ofsleeping with strangers on the next day, she wasjustified in using appropriate force against him intrying to defend herself. There is nothing on record toshow that Bhaya had used any weapon to assault her, and,having regard to the nature of her injuries which aresimple hurt, while upholding her right to defend herbody, it appears to us that she had exceeded her right ofprivate defence by causing death of her husband by givinghim a `dhoka’ blow on his head, strangulating him andthen muffling him into perpetual inaction. It is obviousthat, with a view to prevent more harm being caused toherself and possibly to her children by her perverthusband, she had to act in self-defence which she did ingood faith, but in the process, exceeded the right bycausing more harm than was necessary for the purpose ofsuch defence. In our opinion, therefore, the offencewhich has been committed by her falls within the ambit ofException 2 to Section 300 of the Indian Penal Code whichprovides that, culpable homicide is not murder if theoffender, in the exercise, in good faith, of the right ofprivate defence of person or property, exceeds the powergiven to him by law and causes the death of the personagainst whom he is exercising such right of defencewithout premeditation and without any intention of doingmore harm than is necessary for the purpose of suchdefence. We, therefore, would set aside the convictionof the accused under section 302 of the Indian Penal Codeand convict her for the offence under section 304 Part Iof the Indian Penal Code.
12. Since it is established that the accused hadhidden the dead body of her husband by tying by hidingand putting it below the cot, her conviction for theoffence under section 201 of the Indian Penal Codewarrants no interference. We are told that the accusedhas already undergone five years and seven months ofincarceration.
13. In the above view of the matter, the appeal ispartly allowed, and the conviction of the accused -Amrutben Bhaya Ebha under section 302 of the Indian PenalCode and her sentence of life imprisonment are hereby setaside, and instead, she is convicted for the offenceunder section 304 Part I of the Indian Penal Code andsentenced to suffer rigorous imprisonment for a term offive years. Her conviction and sentence under section 201 of the Indian Penal Code are maintained. Both thesubstantive sentences of imprisonment shall runconcurrently. The bail bonds of the accused standcancelled.