Judgment:
M.F. Saldanha, J.
1. This appeal is directed against the conviction on the charge of murder recorded by the learned Sessions Judge, Kodagu in Sessions Case No. 7/1991. The appellant, a carpenter and a resident of Kunjila village was married to deceased Janaki a few years prior to the incident. His brother Chengappa was married to Janaki's sister and these two brothers along with their wives originally resided together at Kunjila in the house of their father. However, after some time, the brothers decided to stay separately and Chengappa and his wife were residing in another house at a short distance therefrom. Deceased Janaki was supposed to have been unduly close to the brother Chengappa which was one of the possible reasons for the brothers falling out and the record indicates that there was a lot of resentment which ended up in quarrels and hostility between the accused and Janaki as the husband had strongly disapproved of the wife's conduct. Not only this, the husband had left the house on more than one occasion which appeared to be principal because of this situation and we find that at the point of time immediately preceding the incident which took place on 1.9.1990, that the accused had been away from the house for quite some time. Janaki used to take her young son and go to Chengappa's house and sleep there at night and come back to her own house in the morning. About eight days prior to the incident there was a violent quarrel between Janaki and her mother-in-law which resulted in Janaki sustaining an injury on her nose pursuant to which a police complaint was lodged and some efforts were made to placate the parties. On the morning of 1.9.1990, Janaki left the house of Chengappa where she had spent the night at about 7.30 A.M. and went back to her own house in order to attend to the cattle. Since she did not return for a long time, Chengappa sent her son Satisha who came back and told Chengappa that the house was locked. Shortly thereafter, PW, 10-Thimmaiah was returning after watering his fields and he saw the accused coming from the opposite direction with blood stained clothes. On an enquiry being made by Thimmaiah, the accused disclosed that he had killed his wife after which he went and boarded a bus which took him to the police station. The accused surrendered at the police station and made a statement which came to be recorded in which he inter alia stated that he had killed his wife with an axe. The police recorded the statement in question which is Exhibit P.1 and which document is the subject matter of lot of debate in this appeal because it is regarded as a confession made to a police officer. The police officer who found that the clothes of the accused were blood stained took charge of the same under a panchanama and it is his case that the accused led the panchas to the house and opened the lock with the key that is produced by him. Inside the police found the body of Janaki lying in a pool of blood with severe head injuries and the axe in question which was also blood stained lying close by. An inquest panchanama was held and the clothes of the deceased were taken charge of and the axe was also taken charge of under a panchanama. On completion of the investigation, the accused was charge sheeted and after committal to the Court of Sessions he was put on trial. The defence of the accused was of total denial and the learned trial Judge after assessing the evidence convicted the accused for the offence punishable under Section 302 IPC. The accused preferred an appeal against his conviction and sentence through the Jail and since he was unrepresented this Court appointed Mr. Ramadorei Swamy to appear on his behalf as Amicus Curiae. Before proceeding further with the Judgment, we would like to record our appreciation for the fine handling of the case by the learned Advocate who has done an excellent job by researching each of the points of law that are involved in this appeal in an admirable manner. We do hope that many of the other Advocates who have witnessed this hearing would do an equally good job on future occasions.
2. The main ground of attack that has been projected by the appellant's learned Advocate is that this is a case in which the learned trial Judge has sought to place indirect reliance on the confession of the accused Exhibit P.1. Appellant's learned Advocate pointed out to the Court that the accused is alleged to have made a statement to the police officer when he went to the police station and the police officer immediately reduced the statement to writing and obtained the signature of the accused on it. The learned trial Judge has carefully verified the signature with the admitted ones and has come to the conclusion that regardless of the accused having retracted from that statement at the time of the trial that the signature is in fact genuine and therefore the statement must be attributed to him. The appellant's learned Advocate was very strong with regard to the legal error committed by the leaned trial Judge in having referred to the statement and in having placed even indirect reliance on it in different parts of the Judgment, because a perusal of the Judgment indicates that this is really the bed-rock of the conviction that has been recorded.
3. Relying on the provisions of Section 25 of the Evidence Act (for short 'the Act') as also Section 26, the appellant's learned Advocate submitted that for good reason, the law places a total bar on a Court relying on statements made to a police officer by an accused and the learned Advocate in the course of the decisions relied on by him pointed out to us that it makes no difference where the statement was made prior to the point of time when the accused was arrested as long as it was a statement to a police officer by a person who was subsequently arrested by the police in relation to that very offence. More importantly, learned Advocate submitted that where the law prescribes a total bar to the admissibility in evidence of such a statement that a Court must disregard it in, its totality which means that a Court will have to proceed on the basis that such a statement is absolutely non-existent and the error committed by the learned trial Judge in this case is that whereas he accepts legal bar under Section 25 of the Act, he has still sought to place reliance on the statement at times directly and mainly indirectly for purposes of recording findings.
4. The appellant's learned Advocate in this context drew our attention to one of the earlier decisions of the Supreme Court reported in A. NAGESIA vs BIHAR STATE, : 1966CriLJ100 wherein the Supreme Court laid down that no part of such a statement can be utilised for any purposes whatsoever. In a later decision of the Supreme Court reported in M. YELLAPPA vs STATE OF KARNATAKA, 1993 Crl.L.J. 388 the question arose as to whether the doctrine of severability could be pressed into operation in the case of such a statement having regard to the provisions of Section 27 of the Act. The Supreme Court clarified that the statement has to be treated in its totality that it was inseparable and that therefore, it would have to be rejected altogether. It is in this background that the learned Advocate submitted that the statement will have to be totally discarded/disregarded and if this is done, that there is virtually no other credible evidence to sustain the charge against the accused.
5. The learned Additional State Public Prosecutor has disputed this position. He firstly relied on the decision of the Supreme Court reported in H.P. ADMINISTRATION vs OM PRAKASH, : 1972CriLJ606 wherein the Supreme Court has reiterated the position that the statement which constitutes evidence leading to recovery is admissible under Section 27 of the Act. He has also drawn our attention to another decision of the Supreme. Court reported in PRAKASH CHAND vs STATE (DELHI ADMINISTRATION), : 1979CriLJ329 which deals with a slightly different aspect of the matter but which is inter-related namely the evidence of conduct in so far as pointing out the place where the weapon is by the accused as evidence is admissible under Section 8 of the Act and he submits that reading Sections 25, 26 and 27 together, the correct view would be to disregard the confession in so far as it deals with the commission of the offence and to save that part of the statement which comes within the ambit of Section 27. Learned Advocate pointed out to us that in the last of the decisions namely A. Nagesia vs State of Bihar, : 1966CriLJ100 that the Supreme Court has clearly laid down this proposition and that the appellant's learned Advocate is not right when he submits that the doctrine of severability does not apply to confession statements. As far as this last aspect of the matter is concerned, we do not need to debate it, for the reason that the confession statement was recorded early in the morning when the accused first went to the police station and it was much later in the day, after the investigation had commenced that he made a certain statement pursuant to which he led the police and the panchas to the house, opened it with the key that was produced by him where the police found the body of the deceased and the attached the blood stained axe. At this stage, we need to record that the appellant's learned Advocate pointed out to us that the production of the house key which is a very incriminating circumstance against the accused in this case is something which has not been put to him when his statement under Section 313 Cr.P.C. was recorded and that therefore the Court ought not to have relied on this circumstance. This objection is justified and will have to be upheld because it is a requirement of law that all material parts of the evidence has to be put to the accused and if this omission has taken place, the only corrective step for an Appellate Court is by way of disregarding that circumstance.
6. Coming back to the question of admissibility and evidential value of the document Exhibit P.1, we need to record here that the submissions made by the appellant's learned Advocate with regard to the inadmissibility of this document will have to be completely upheld. The Evidence Act prohibits the admission of a statement made to a police officer except in the limited circumstance provided under Section 27 of that Act and this bar applies irrespective of whether the statement was made shortly before the investigation commenced or whether it was in the course of the investigation. The bar is complete and that therefore means that the Court would have to proceed on the basis that the document was not part of the record and cannot either refer to it or draw any inference even indirectly on the basis of anything in that document with regard to this incident. Therefore the references in the impugned Judgment to the statement or the contents thereof are unjustified.
7. The appellant's learned Advocate thereafter seriously attacked the evidence of PW.10 - Thimmaiah. This witness is a farmer who knows the accused and who resides close by and he states that on the morning of 1.9.1990 at about 8 A.M. he was returning from his fields after watering them, when he saw the accused coming towards him and he noticed blood stains on the clothes of the accused. He asked the accused about the same when the accused disclosed to him that he had killed his wife and he went towards the bus. The witness further states that he went home and had a cup of coffee and that after sometime he came back to the village and that he found persons had collected near the house of the accused who were stating that the accused had killed his wife and he also deposes to the fact that the police brought the accused to the spot and that the body of deceased Janaki was taken out from the house and kept outside. This witness admitted in cross-examination that he did not speak to or -inform the police about the confession that the accused had made to him. Appellant's learned Advocate has seriously attacked the extra judicial confession made to Thimmaiah on a variety of grounds, the first of them being that Thimmaiah was not particularly close to the accused nor was he a person who could assist or protect the accused, that he had met the accused quite casually on the road and that in this background, it would be quite absurd to expect that the accused would voluntarily disclose to him that he had committed the murder in response to a casual enquiry. More importantly, the learned Advocate submits that the real test would be evident if one were to note the reactions of Thimmaiah who casually goes to his house for his coffee and seems least concerned about the disclosure from the accused that he has killed his wife. Learned Advocate is highly critical of Thimmaiah's credibility because he points but that when he came back and met the villagers near the house of the accused he still remains tightlipped and does not disclose to them that the accused had confessed to him having killed his wife, and worse of all according to the learned Advocate, when the police came with the accused and Thimmaiah saw them and spent considerable time there, still he did not inform the police about the confession made to him in that morning. Learned Advocate submitted that in this background it is absolutely clear and certain that since the police were conscious of the fact that the statement made to the police officer could not be used in evidence that they have used Thimmaiah as a mouth piece to state that the accused made an extra judicial confession to him. In this context, learned Advocate placed reliance on the decision of the. Supreme Court reported in LAKHANPAL vs THE STATE OF MADHYA PRADESH, AIR 1979 SC 1620 where one of the main reasons for the rejection of the extra judicial confession was because of the fact that the witness to whom it was made did not disclose the contents of it to any one else for a considerable period of time. A similar view has been recorded by the Supreme Court in one of the latest decisions reported in KAILASH POTLIA vs STATE OF A.P., : 1995CriLJ4183 where again, non-disclosure was held to be fatal. Appellant's learned Advocate submitted that this evidence should therefore be rejected. The alternate submission canvassed by him was that an extra judicial confession is a weak piece of evidence and for this purpose reliance was placed on a Division Bench decision of this Court reported in SHAH vs COMMISSIONER OF WEALTH TAX, 1978(1) Kar.L.J. 30 wherein this Court took the view that such a confession is not of much evidentiary value and that it requires corroboration. The Supreme Court had occasion to take a similar view in an earlier decision reported in HANUMANT vs STATE OF M.P., 1953 Crl.L.J. 129 and in another decision of the Supreme Court reported in MAKHAN SINGH vs STATE OF PUNJAB, : AIR1988SC1705 the Apex Court took the view that extra judicial confessions are not sacrosanct and that the Court would not normally base a conviction exclusively on such an evidence. Learned Advocate therefore submitted that even if this Court were to rely on Thimmaiah's evidence that this material alone would be insufficient to sustain a conviction. We need to record here that the learned Additional State Public Prosecutor has seriously refuted this position and he points out that Thimmaiah had hardly been cross-examined and that his evidence remained unshaken. He submitted that in this background it is too late in the day to seek to attack it without having presented any factual challenge at the time of the trial. Secondly, what is pointed out is that Thimmaiah met the accused casually, that he put a very prudent question to him as to how his clothes were blood stained and it is not surprising that the accused would indicate what precisely had happened. Learned, Advocate also submitted that by the time Thimmaiah went to the house of the accused, the villagers already knew who had killed Janaki and shortly thereafter the police arrived with the accused in their custody and therefore there was no occasion for Thimmaiah to make any disclosure in respect of the material that was already common knowledge. There is considerable substance in this reply because we have taken note of one very important point namely that this is not a case in which the accused absconded but he voluntarily went straight to the police station and surrendered. While on the way, Thimmaiah met him, and one has to take note of the special fact that it was very clear that the accused had decided to accept the consequence of this act, which was why he was on the way to the police station and this being his mental make up at that Point of time, when he was asked as to how his clothes were blood stained he quite frankly disclosed that it happened when he killed his wife. We do not see anything out of the way or extra-ordinary as far as this disclosure is concerned, having regard to the fact that this was one of those few cases where the accused having committed the act had decided to face the consequences. As far as Thimmaiah's conduct is concerned, we take note of the fact that he is a rustic farmer and that even though the accused made a disclosure of having committed his wife's murder to him that it would be too much to expect that Thimmaiah would leave his normal functions and start running to the police and by the time Thimmaiah went to the house of the accused, the villagers already knew who had killed Janaki and it was therefore totally redundant for Thimmaiah to have made any further disclosure of material that was already common knowledge. Appellant's learned Advocate pointed out that the Investigating Officer had not indicated as to when he recorded Thimmaiah's statement but in our considered view this is only a lapse in so far as the investigation was virtually completed on that very day itself and it is absolutely certain that Thimmaiah's statement was recorded around that time as otherwise he would not have been cited as a witness. It is in this background that we uphold the finding of the learned trial Judge that the extra judicial confession made to Thimmaiah is required to be accepted and relied upon.
8. The third head of criticism was with regard to the evidence of the four witnesses who deposed to the effect that there was some sort of a relationship between deceased Janaki and her brother-in-law Chengappa. Appellant's learned Advocate submitted that this evidence, even if strictly construed, could only show that Janaki was close to Chengappa and he submitted that there is nothing exceptional about this, because the accused was behaving badly with his wife and therefore she would lean for support to Chengappa who was her own sister's husband. He submitted that howsoever one construdes the totality of this evidence that it indicates a sort of a liaison between Janaki and her brother-in-law and he submits therefore that the entire evidence against the accused with regard to motive is not only weak but is unreliable. The learned Additional State Public Prosecutor has pointed out to us that the statements are very clear to the effect that over a period of time Janaki was virtually carrying on with Chengappa, who had even been advised about this and further more that this was the main friction point between the accused and her and that it was obvious that irrespective of all the quarrels and fights that had taken place that Janaki was still persisting in her liaison and that is why the accused had left his house more than once. Learned Advocate submitted that this was precisely not only the motive but the provocation because even on the day when the accused had come back to his house, he found that Janaki had spent the night in Chengappa's house. We have carefully considered this evidence and in our considered view it leaves no doubt in our mind that irrespective of the fact that Janaki's own sister was married to Chengappa, that the relationship between her and Chengappa was much more than a mere casual relationship or a friendship and that it was quite obvious that the accused had noticed this, that as the husband he had seriously objected to it and despite this, finding that it was impossible to stop the affair, that he had even gone away from the village. This evidence does indicate a very strong motive for the commission of the offence and the prosecution is justified in placing heavy reliance on it.
9. Apart from the extra judicial confession, which in the circumstances of this case is fully established, and which undoubtedly cannot be regarded as a sufficiently strong or solid piece of evidence to exclusively form the basis of conviction, there are other circumstances which strongly link the accused with the murder of Janaki. The first of these is the time factor namely the fact that very shortly after the incident took place on that very morning, that the accused went to the police station and virtually surrendered. This is not only a guilty but an incriminating circumstance against the accused because there was no other reason why he would have gone to the police station immediately after the murder on that very morning and that too voluntarily. We need to record here that appellant's learned Advocate submitted that one cannot rule out the possibility that because of Janaki's involvement etc., that she might have met with a violent end at the hands of some other person and that the accused must have returned to the house at that time and found his wife in a pool of blood and while he was trying to lift her body the blood might have fallen on his clothes and that when he went to the police station in that condition in order to lodge a complaint with the police, the police would have virtually pounced on him on the ground that he must have been the accused person. This hypothesis in our considered view is too far fetched, in so far as it totally disregards the motive which we have held to have been established. One has to view the incident and the accused proceeding to the police station immediately thereafter in the light of the earlier background which provided him with the provocation and the motive to kill Janaki. We also find it impossible to accept that the clothes of the accused would have got blood stained in any way other than through his involvement in the offence. Appellant's learned Advocate vehemently submitted that the prosecution has failed to produce evidence on two material points, the first being, some persons from the bus in which the accused travelled would have certainly spoken about the incident and secondly the material evidence to establish that the blood in question was that of the deceased. As far as these two heads are concerned, we need to point out that such evidence certainly would have been useful but the absence of this evidence will not seriously effect the prosecution case. One needs to take into account a material fact namely that the accused appeared in the police station with his clothes blood stained which is conclusively established from the evidence of the police officer and the fact that these clothes were taken charge of under a panchanama. This is a strong circumstance having regard to the fact that the accused was found with blood stirred clothes almost immediately after the commission of the offence. We need to deal in passing with the submission canvassed by the appellant's learned Advocate that the clothes of the accused were sent to the chemical analysis six days later and he submitted that the possibility of either smearing them with blood or these clothes getting bloodstained when they were mixed up with the clothes of the deceased cannot be ruled out. There is no challenge in this regard and we cannot consider such a hypothetical objection particularly when the record clearly indicates that the clothes of the deceased and the clothes of the accused were separately taken charge of and that they were separately sealed. The constable who carried these clothes for analysis also deposed that he had carried them separately packed. Under these circumstances the objections raised under these heads are over-ruled.
10. Appellant's learned Advocate placed reliance on the decision of the Bombay High Court reported in ASHRAF HUSSAIN SHAH vs STATE OF MAHARASHTRA, 1996 Crl.LJ. 3147 wherein the Court upheld the defence plea that if there was a strong possibility of the clothes of the accused getting blood stained after they were taken charge of from him, this circumstance will have to be eliminated. A Division Bench of the Bombay High Court in the decision reported in D.D.SUVARNA vs STATE OF MAHARASHTRA had emphasized the importance of very specific evidence to the satisfaction of the Court that the clothes of the accused were taken charge of, sealed and kept separately without the possibility of contamination after the stage of seizure. On the basis of these decisions, learned Advocate submitted that the very incriminating circumstance of the clothes of the accused being blood stained should be discarded. We need to emphasize here that before such a plea can be upheld that it will be necessary that the prosecution evidence be properly challenged during the trial particularly when the Investigating Officer is cross-examined and the defence will have to bring on record sufficient material on the basis of which the Court can conclude that the possibility of the clothes having been mixed up or blood being smeared on the clothes from any outside source at a later point of time was likely and probable. In these circumstances there is no material brought on record whereas on the other hand we have the positive evidence of the police officer, the panchanama drawn up at the time of the seizure, the evidence of the panchas and the evidence of PW.10 who states he had seen the accused some time earlier with blood stained clothes, and in our considered view this positive evidence conclusively establishes the circumstance and rules out any possibility of the clothes having got smeared with blood at a later point of time. Moreover, the constable PW.20 who carried the articles very clearly states that he had six separately sealed packets and it is therefore clear to us that the investigating authorities have not committed any error even in mixing up the clothes.
11. Apart from the supportive evidence in this case to which we have referred, it is essentially one where the prosecution rests heavily on circumstantial evidence. The law with regard to circumstantial evidence is well crystallised and the appellant's learned Advocate submitted that in the light of the settled law it will be necessary that a whole series of circumstances each of which is conclusively established, must point to only one conclusion which is compatible with the guilt of the accused. He submits that in such a situation even one or two circumstances would not be sufficient to make out the chain of circumstances that must be established particularly in a murder case. We are conscious of the fact that the law on the point lays down that there must be a chain of circumstances which presupposes that merely one link or two for that matter would not really constitute a chain and that similarly, where the Court refers to a web of circumstances that it presupposes several of them which collectively leave no doubt whatsoever. Reliance was placed on a decision of the Supreme Court reported in Hanumanth vs State of Madhya Pradesh wherein the Court had the occasion to lay down several guiding principles, the most important of which was that the totality of such circumstances totally and completely rule out any other hypothesis which may be compatible with the innocence of the accused. Appellant's learned Advocate submitted that the incident had taken place at about 7.30 A.M. in the morning and that admittedly, there are no eye witnesses to the incident nor has the prosecution brought forward any evidence with regard to what transpired from the previous night until the time at about 8 A.M. when PW.10 is supposed to have seen the accused walking away with blood stained clothes. The submission is that the deceased left Chengappa's house at about 7.30 A.M. and came to her own house and there is nothing to indicate as to whether the accused had come on the previous night and was in the house or he was waiting near the house or whether he arrived after the deceased had opened the door. What the learned Advocate submits is that there is positive evidence of the fact that the accused had left the village sometime earlier and was not residing in the house and since there is no evidence with regard to the point of time when he returned, that it would be extremely dangerous to presume that it was he who committed the murder. The theory put forward is that having regard to the life style of the deceased and her extra marital involvement that there was every possibility of her meeting a violent death at the hands of some other person and if the accused had returned at that point of time and found that the deceased had already been assaulted that it would explain the blood on his clothes, as he would have most certainly tried to find out as to whether she was alive etc., and he would have gone to the police station in that condition only in order to lodge a complaint and the learned Advocate submits that when the accused reached the police station with blood stained clothes having regard to the earlier background which the police were aware of, that they straight-away concluded that he was the assailant. The contention raised is that irrespective of the circumstances being established, that if there is one serious lacuna in a case of circumstantial evidence it would cast a serious doubt on all the important aspects of whether it was the accused who must have committed the offence and that the benefit will still has to go to the accused. As far as the proposition of taw is concerned, the learned Advocate is still right but we have already had occasion to deal with this aspect of the factual position and having regard to the important fact that apart from the circumstances which do conclusively establish the guilt of the accused, we have on record the extra judicial confession made by him to Thimmaiah-PW.10 which in our opinion virtually concludes the matter against him. There is no manner of doubt that all the circumstances which are corroborated by oral evidence point to only one conclusion namely the guilt of the accused. In this regard, we need to reiterate that the liaison between the deceased and Chengappa, the disapproval from the accused who was the husband, the hostility, the fights and the accused leaving the house more than once, the fact that on the night before the incident for whatever reason, the deceased had left her own house and spent the night in Chengappa's house are all factors which strongly indicate that a situation had arisen whereunder the deceased virtually made herself most vulnerable to what ultimately happened. Next we have the two most important circumstances namely the accused leaving the scene of offence, seen immediately thereafter by PW.10, the clothes of the accused being blood stained, he stating before PW.10 that he had killed his wife and he going straight to the police station where again he reported with blood stained clothes and lastly, the accused leading the police and the panchas back to the scene of offence where the dead body was found and the murder weapon was also recovered. These circumstances coupled with the rest of the oral evidence conclusively establish the charge framed against the accused.
12. There was considerable debate, that on the peculiar facts and circumstances of the case the conviction under Section 302 IPC was unsustainable. In this regard, the appellant's learned Advocate drew out attention to the Division Bench decision of the Madras High Court reported in in RE MURUGIAN (B.A. SAYEED J, : AIR1957Mad541 wherein the Court had the occasion to consider a case more or less on identical facts where a husband had stabbed the errant wife to death and the Court took the view that the facts must be assessed by the Court in a liberal manner in the psychological setting which arose as constituting sudden and grave provocation; the Court upheld the plea that the case was covered by exemption (1) to Section 300 IPC, which reduce the offence of murder to one of culpable homicide not amounting to murder and would be punishable under Section 304 IPC. The Court on that occasion had considered a host of cases in particular, several English decisions which ultimately laid down the aforesaid dictum. The decisions in question are :
A. : AIR1925All676 (v 12) : 26 Crl.LJ. 1228, Sukhai vs Kind Emperor
B. ('31) 1931 Mad. WN Cr.105 : 1931 Mad. WN 553, The Public Prosecutor vs Pocha Sanjeeva Reddy
C. A 1932 Mad. 25 (1) (v 19) : 1931 Mad. WN Cr.233 : 33 Cr.L.J. 273, Kota Potharaju vs Emperor
D. (1942) 1942 AC 1 : 111 LJ KB 84, Manconi vs Director of Public Prosecutor
E. (1914) 1914-3 KB 1116 : 84 LJ KB 1102, The king vs Lesbimi
F. (1915) 1915-2 KB 431 : 84 LJ KB 1371, The King vs Hopper
G. (1935) 1935 AC 462 : 104 LJ KB 433, Woolmingtom vs Director of Public Prosecutions
H. (1948) 1946-2 All ER 124 : 1946 AC 588, Holmes vs Director of Public Prosecutions
I. : AIR1954Mad538 , Inremathappa Goundan
J. AIR 1934 Mad. 176 (v 21) : 35 Crl.LJ. 694 : 1933 Mad. WN Cr.91, Imbichi Koya vs Emperor
13. In the light of this situation, the appellant's learned Advocate advanced a strong plea that the conviction under Section 302 IPC is unsustainable and towards this end what he submitted was that the Court would have to take into account the fact that this is a case in which an extra marital relationship has been established through the prosecution evidence itself and that the affair between deceased Janaki and Chengappa was going on for a long time, the accused-husband was an aggrieved party in the triangle and it is obvious that despite his resistance and protestations, that he could do nothing to remedy the situation except to leave the place in desperation. Learned Advocate submits that the Court ought to take note of the fact that even on the day when the accused decided to come back to the village and go to his house that he was confronted with an even more provocative situation of finding that his wife had spent the night with Chengappa and in this background he submitted that the accused reacted very violently and took out his anger on the errant wife, and in these circumstances he would certainly be entitled to the benefit of claiming the defence of grave and sudden provocation. Learned Additional SPP vehemently contended that this can never be so because he pointed out that the affair between deceased Janaki and Chengappa had been going on for a long time, that is was not something which suddenly came to the knowledge of the accused, that the accused himself had protested to whatever extent possible on several occasions earlier and that he had resigned himself to a situation of leaving the place. Even on the day when the accused returned to his house, he found that his wife had once again gone to spend the night at Chengappa's house, he submits that the Court must take note of the fact that the provocation if any when the deceased returned was neither grave nor sudden. He submits that in cases where there is long standing hostility, the irresistible conclusion would be that the accused had as a result of that resentment and hostility decided to settle scores and in this background it was a plain clear cut pre-mediated murder.
14. Situations of marital discord do give rise to very strong feelings and both Psychiatrists and Social Scientists who have done deep research in this field have now clearly laid down that particularly in situations of extra marital lessons very strong emotional reactions are quite natural particularly from the aggrieved spouse. The appellant's learned advocate is right when he points out that in the present triangle the accused was definitely the aggrieved party and in spite of his persistent fights and hostility he could not rectify the situation which continued unabated. His leaving the village only indicates how intolerable the whole state of affairs was to him and his returning there equally indicates to us the fact that like any normal family man his attachment to the wife and to the son were strong enough to make him come back with the hope of resuming the family relationship. In this background, Psychiatrists have very clearly expounded the theory that sexual jealously which is the root cause of hostility in such a situation is sufficient to disturb the aggrieved human being to the extent of even creating a situation of temporary loss of control. It is precisely this emotion or this state of mind that the law takes into account while considering exemption (1) to Section 300 IPC. Applying the principle to the facts of the present case, we find that irrespective of whether the accused came back the previous night which would have been worse, or the following morning, the mere fact that Janaki had spent the night at Chengappa's house very obviously triggered off a situation of uncontrollable frenzy coupled with fury on the part of the accused. This is clear to us from the injuries on the person of the deceased and the fact that even the mangalasutra was detached and thrown down on the floor is the surest indication that the accused who had been driven out of the house by the conduct of the wife and the manner in which he assaulted her with the axe causing grievous injuries directed more towards the facial area other than the head, conclusively establish that the act took place in a fit of uncontrollable anger. We have carefully borne in mind the principles that a Court would have to apply in cases of this type and we have no hesitation in holding that the plea put forward by the appellant's learned Advocate that the conviction could be one of culpable homicide not amounting to murder under Section 304 IPC is justified.
15. In the light of the aforesaid situation the appeal partly succeeds. The conviction and sentence recorded by the learned trial Judge are set aside. The respondent-accused is convicted of the offence punishable under Section 304 Part fi IPC and he is awarded a sentence of seven years Rigorous Imprisonment. The record indicates that the accused has been in custody for a considerable period of time and the accused shall be entitled to the normal set off that the law and the rules provide for.
16. The appeal is partly allowed and stands disposed of.
We quantify the fee payable to the appellant's learned Advocate who has appeared. Amicus Curaie at Rs. 2,000/-.