JUDGMENT
Ramaswamy, J.
1. The Appellant, sole-accused, has been convicted under S. 302 I.P.C. for committing the murder of his wife Ramanamma on 14-3-1980 and sentenced to undergo imprisonment for life.
2. The case of the prosecution is that the appellant aged about 25 years and the deceased aged about 18 years were married three years prior to the date of occurrence. The appellant is a resident of Singavaram village, but he migrated to G. Kothapalli village the birth place of the deceased. They were living together in the house of one Gangamma, adjacent to the house of P.W. 1, the grand-mother of the deceased. On 14-3-1980, there was Nukalamma Festival in the village. At about 10 p.m., P.W. 1 went to the house of the deceased and found the accused and the deceased in the house. She enquired of the deceased whether she would attend to the ‘Mela’ to be celebrated on that day. The deceased expressed her disinclination on the ground that the accused does not like her to go. P.W. 1 left the place. After attending the ‘Mela’ P.W. 1 came home and slept. At about 5 a.m. on the next morning, when she was going to attend the calls of nature, she saw the door of the deceased open and the light burning, PW-1 peeped in and found the deceased dead with cut injuries and also the knife lying nearby. Immediately she raised hue and cry and went to the Village Munsif (P.W. 4) and reported the occurrence. P.W. 4 came to the place and having seen the deceased dead in a pool of blood, recorded Ex. P-1 statement given by P.W. 1 and sent the statement along with his crime report Ex. P-2 to the Police Station, Annavaram. P.W. 11, the Head Constable, received Exs. P-1 and P-2 and registered the crime and issued the Express F.I.R. Ex. P-9 to all the officers concerned. P.W. 12, the Circle Inspector of Police, having received the message from P.W. 11 proceeded to Annavaram and collected the copy of the F.I.R. and went to the scene of occurrence. He made an observation of the scene of occurrence and seized the knife M.O. 1. Ex. P-4 is the observation report and the seizure memo. He also drew the rough sketch of the scene of offence Ex. P-10. He held inquest over the dead body under Ex. P-3 in the presence of panch witness, P.W. 5. He examined P.Ws. 1, 3, 4 and others at the inquest. He sent the dead body for autopsy. P.W. 6 the doctor conducted the autopsy over the dead body on 16-3-1980 and issued the post-mortem certificate Ex. P-6. He found three lacerated and six incised injuries and opined that the death of the deceased was due to shock and haemorrhage due to fracture of the skull and injury to the brain which was sufficient to cause death in the ordinary course of nature.
3. On 18-4-1980, while P.W. 8, plantain fruit vendor was transacting business, the accused came to his shop and began weeping. On enquiry made by P.W. 8, the accused confessed that about one month prior to that date he killed his wife, having suspected her fidelity and he requested to help him. P.W. 8 advised him to go and surrender before the police. At the request of the accused P.W. 8 took him to the police station at Peddapuram and handed him over to the Sub-Inspector of Police (P.W. 10) who informed the same to the Sub-Inspector, Annavaram (P.W. 13). Thereafter P.W. 13 came to Peddapuram and arrested the accused in the presence of P.W. 9 and another and recorded his statement under Section 27 of the Evidence Act leading to the recovery of blood-stained Dhoti (M.O. 10) concealed in a pit. M.O. 10 was recovered under Ex. P-8 in the presence P.W. 9. Thereafter P.W. 12 after completing investigation, laid the charge-sheet.
4. The prosecution examined as many as 14 witnesses and exhibited 20 documents. The plea of the accused is one of denial.
5. Admittedly there is no direct evidence. But it is a case of circumstantial evidence. The circumstances relied upon by the prosecution are :
(1) The accused and the deceased are the husband and the wife;
(2) They were living together in the house of one Gangamma;
(3) The deceased was last seen alive on that fateful night in the company of the accused by P.W. 1 and P.W. 3;
(4) P.W. 3, neighbour has seen the accused going in a hurry from his house;
(5) The accused was seen absconding from the house for a long time;
(6) The accused has made an extra-judicial confession to P.W. 8.
(7) In pursuance of the statement made by him under S. 27 of the Evidence Act, bloodstained dhoti (M.O. 10) of the accused was recovered under Ex. P-8 in the presence of P.W. 9;
(8) The non-explanation of the accused for his absence from the house. The lower Court has also relied upon the motive viz., the accused has suspected the fidelity of the deceased that she was having illicit intimacy with P.W. 2. But P.W. 2 turned hostile. Therefore, that circumstance cannot be relied upon.
6. Sri Lakshmana Sarma, learned counsel for the appellant strenuously contended that the prosecution did not establish its case beyond reasonable doubt. P.W. 1 did not say in her statement Ex. P-1 that she saw the accused and the deceased together before her leaving for ‘Mela’ of Nukalamma Festival. The other circumstance, according to him was that the accused was taken into custody on the next day of the occurrence and he was kept in the police custody for more than one month. Repeated vain attempts have been made to record the confession by the Judicial Magistrate. These circumstances would clearly show that the appellant is innocent and he has been falsely implicated in the commission of the crime.
7. We are unable to accept either of the contentions. Indisputable facts on record are these : The accused and the deceased were married three years prior to the date of the occurrence and they came to G. Kothapalli and have been staying in the house of one Gangamma adjacent to the house of P.W. 1 and they alone were living together in the house. We have no reason to doubt the evidence of P.W. 1, the grandmother of the deceased when she stated that she went to the deceased before going to the ‘Mela’ and requested her to attend to the ‘Mela’ and that the deceased declined to attend the ‘Mela’ and at that time the accused also was found in the house. P.W. 3, another neighbour also saw both together in the night. Early in the morning the dead body of the deceased was found lying in a pool of blood in the house and the accused was found absconding for a long time. There is another evidence adduced by the prosecution i.e. that of P.W. 3 who stated that when he returned from ‘Mela’ to lock his house, he found the accused going away in a hurry. The accused did not give any explanation for his absence from the village. Even giving allowance that the alleged retracted extra-judicial confession is shrouded with artificiality and thereby smacks of its credibility, the recovery of M. O.-1 dhothi in pursuance of the statement made under S. 27 of the Evidence Act which is found stained with blood, is an incriminating circumstance. The chain of circumstances are consistent only with the guilt of the accused and furnish ring of truth of the prosecution case. The irresistible conclusion deducible therefrom is that the accused and the accused alone has committed the crime. The medical evidence establishes the homicidal death of his wife.
8. The next question for consideration is what is the offence the accused has committed ? Whether the homicide committed on the deceased would amount to murder. It is now well settled position of law that the prosecution has to establish not only that the accused has committed the crime but the crime committed by him is also culpable homicide amounting to murder. Culpable homicide as defined under S. 299 I.P.C. amounts to murder only if the facts come within one of the four clauses under S. 300 I.P.C. In a criminal trial the general duty and unliftable burden of proving every essential ingredient necessary to establish beyond the pale of doubt of the charge against a person accused of offence, always rests on the prosecution. Therefore, when the charge is that the accused has committed an offence of murder, it is the duty of the prosecution to establish beyond doubt that the accused caused the death and that it is a culpable homicide with a requisite intention or knowledge as defined in S. 299 of the Indian Penal Code. If these two essential tests are established then the complicity of the accused in the crime charged for murder would arise. The offence of murder would arise only if the intention or knowledge defined in one or the other of the four clauses of S. 300 I.P.C. is established beyond reasonable doubt. In that process, the question may arise whether the case would come under any of the general exceptions contained in the Indian Penal Code (XLV of 1860) or any special exceptions or proviso contained in any other part of the same Code or any law defining the offence. In such an eventuality the Legislature has engrafted and carved out an exception putting the burden on the person accused of an offence to bring the case within any of the general exceptions or special exceptions or proviso in the Indian Penal Code or any law defining the offence, as enjoined under S. 105 of the Indian Evidence Act, which reads thus :
“105. Burden of proving that case of accused comes within exceptions :- When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”
Illustration ‘b’ thereof postulates that :
“A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control.”
9. Under Section 105 of the Evidence Act, the absence of existence of such circumstances bringing the case within the general or special exceptions or proviso shall be presumed to be absent. S. 4 of the Evidence Act defines “shall presume” to mean, “whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”
“Proved” has been defined in S. 3 thus :-
“A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does exist.” It also defines “Disproved” thus :
“A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.”
10. A combined reading of S. 105 together with the above definitions discloses that the initial burden rests, on the accused to prove the existence of such circumstance to bring the case within the exceptions. The Court shall start with the initial presumption of the absence of such circumstances proved (sic) (provided ?) after considering the matter before the Court, either it believed it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. In other words, the accused will have to rebut the presumption that such circumstances did not exist by placing before the Court material sufficient to make it consider the existence of such circumstances so probable that a prudent man would act upon them. The standard of proof on the part of the accused as required to establish those circumstances is not so onerous as it would undoubtedly rest on the prosecution, namely, the general burden of proving the charge beyond all reasonable doubt. The accused may discharge this burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances. The onus is, therefore, on the accused to lift the initial burden placed by the Legislature under the latter part of S. 105, Evidence Act, viz., the Court “Shall presume the absence of such circumstances” by placing the necessary material. If he fails to lift that initial burden, the further question would not arise and as a result, it must be held that the exceptions do not apply.
11. The initial burden would be lifted by placing necessary material before the Court, namely, in a given case by adduction of evidence oral or documentary by the accused himself, or from the evidence oral or documentary adduced by the prosecution or elicited from the prosecution witnesses either in the chief-examination or in the cross-examination or presumptions under law or even the statement of the accused recorded under S. 313 of the Code of Criminal Procedure. It is the duty of the Court to consider the totality of the facts and circumstances in each case to find whether the accused has discharged this burden. Even though the accused may fail to establish the existence of the circumstances to prove his case falling within the exception or exceptions or proviso, yet the circumstances or the evidence on record may create a slight slant of the balance of probabilities in favour of the plea set up by the accused applying the test of preponderance of probabilities in a trial of a civil case and raise a reasonable doubt with regard to one or more of the essential ingredients of the offence itself for which the accused has been charged for. Upon consideration of the above evidence, if it creates a reasonable doubt about the existence of the ingredients of an offence then the accused is entitled to the benefit and shall be presumed to have discharged his burden. If the evidence thus induces in the mind of the Court a reasonable doubt with regard to the intention or knowledge or mens rea requisite for an offence under S. 300 of the Indian Penal Code then the accused is entitled to the benefit of doubt. It is not necessary that the accused should specifically take up the plea. But if the evidence on record brings out a case of any one of the general or special exceptions or proviso under the Penal Code or any offence defined under any law, then it casts an obligation on the Court to consider the evidence and if found acceptable, should extend the benefit to the accused.
12. In this case, the appellant is an indigenous (indigent ?) person defended by the counsel provided by the State. No doubt from the evidence on record the counsel could have taken up the plea of grave and sudden provocation. But unfortunately, such a plea was not raised. Yet, when we consider the evidence on record we have to see whether it would come under Exception-1 to S. 300, I.P.C.
13. As stated earlier, prosecution itself wanted to establish through P.W. 2 as part of its case of motive that the deceased had illicit intimacy with P. W.-2 and her fidelity was suspected by the accused, but P.W. 2 turned hostile. In the cross-examination of P.W. 2, the prosecution itself has suggested thus :
“On the night of occurrence I did not talk to the deceased at her house. The accused did not come to his house when I was talking to the deceased.”
The following facts would emerge from the above suggestion. The accused was absent in the house after 10 p.m. P.W. 2 went to the house of the accused. The deceased alone was in the house. The accused returned to the house and found the deceased and P.W. 2 together. The above facts give rise to draw an inference that the accused on his returning home, having found the deceased and P.W. 2 alone in his house at about 11 p.m. in the night and who must have been in a compromising position and seeing of which would have caused grave and sudden provocation to the accused and that would have momentarily caused mental jolt and deprived him of self-control. In such a situation he might have inflicted the injuries on the deceased with a knife lying nearby. This fact gets reinforcement when we look at the nature of the six incised and three lacerated injuries found on the person of the deceased and the location and direction of those injuries would point towards this region of grave and sudden provocation, loss of the (self control of the) accused.
14. Exception to S. 300 I.P.C. reads thus :
“Culpable homicide is not murder it 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 above exception is subject to the following provisos :
“First, that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. (Second and third provisos are not necessary for the purpose of this case).
Explanation : Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.”
15. In K. M. Nanavati v. State of Maharashtra their Lordships of the Supreme Court considered the scope of the above exception and speaking through Subba Rao, J. (as he then was) held thus :
“(1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused placed in the situation in which the accused was placed would be so provoked as to lose his self-control (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code; (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation”.
16. When we consider the facts and circumstances of the case, referred to earlier, in the light of the above law we have to consider whether the accused has committed the crime with an intention to kill the accused or whether he committed it under grave and sudden provocation. It is not a provocation sought after voluntarily as an excuse to kill the deceased. Therefore the first proviso is not attracted. On a deep and and anxious consideration of the facts and circumstances, we are inclined to come to the conclusion that a reasonable doubt is created in our mind that the accused committed the crime only under grave and sudden provocation due to the deceased and P.W. 2 being in a compromising position. Thus, the accused discharged the burden cast on him and the prosecution failed to prove its case beyond the shadow of doubt that the accused committed the offence of murder punishable under S. 302 I.P.C.
17. We hold, therefore, that the accused committed an offence of culpable homicide not amounting to murder, as defined under S. 299 I.P.C. and therefore the offence would fall only under S. 304 Part I I.P.C. Accordingly, we set aside the conviction under Section 302 I.P.C. and the sentence of imprisonment for life awarded by the lower court. Instead, we convict the accused for an offence punishable under S. 304 Part I I.P.C. and sentence him to undergo rigorous imprisonment for a period of seven years.
18. With this modification, the appeal is allowed in part and the conviction and sentence are modified accordingly.
19. Appeal partly allowed.
