R.S. Sodhi, J.
1. Crl. A. No. 477/2000 seeks to challenge the judgment of Additional Sessions Judge, Delhi in Sessions Case No. 73/97 whereby the learned judge vide judgment and order dated 18.07.2000 has held the appellant guilty under Section 302 IPC and further vide his order dated 21.07.2000, sentenced the appellant to undergo life imprisonment and also to pay a fine of Rs. 1,000/- and in default to further undergo rigorous imprisonment for three months under Section 302 IPC.
2. Brief facts of the case as have been noted by the learned Additional Sessions Judge in his judgment are as follows:
Prosecution case, as set up in charge-sheet, is that on 17-8-88, on receipt of information that a woman, who slept at night, was found dead in a house No. 9-A/17, W.E.A. Karol Bagh, DD No. 16-A was recorded. Thereupon, SI Ashok Kumar along with Ct. Jagdish reached the place of incident. Insp.. Rajinder Prasad Gautam also reached there in his official vehicle. They found the dead-body of Shama Uppal, w/o Prabhat Uppal @ Sunny lying on double-bed in a room. The inner bolt (chitkani) of the door was found broken. Prabhat Uppal had already been removed to hospital; The place was got photographed. On searching the room one brief-case lying near the bed was found from which a hand written note of Prabhat Uppal in Hindi was recovered wherein it was mentioned, 'Dr. Mamma and Papa, pairi pauna. After giving you trouble I am killing myself with Shama of my own. Actually, initially I tried to kill myself alone but do not know how I escape. Then I realise as to what would happen to Shama. I did not want that Shama should suffer like Deepa. So, I am killing Shama and then killing myself. I am really sorry that your life and that of your daughter's has been spoiled by me. Believe me, I did not spoil the life of you people intentionally. I have always respect for both of you from the core of my heart. I do not know as to why I am so frustrated from my life and now while not troubling you again and again would trouble you only once. You try to forget me. Excuse me for my this mistake. Your son-(Initials of Sunny)
Along with this note two more notes in English language were found. Some froth was noticed from the nose of Smt. Shama, the deceased. Some marks of abrasion were found on her neck. Two empty Tik-20 bottles andtheir covers were also found there. From the inspection of the place and the contents of the notes it was revealed that Smt. Shama was murdered. And as such offence under Section 302/309 IPC was made out. Accordingly, case was got registered and the investigation was taken up by the Inspector.
During investigation the place was got photographed; rough site plan was prepared; from the brief-case of Prabhat Uppal @ Sunny, lying in the room towards the head side of the bed, a letter-head pad of Dunlop India Ltd. was found, in which one note in Hindi and two notes in English, written by Prabhat Uppal, were found. In the notes, Prabhat Uppal has written about killing his wife Smt. Shama Uppal and from the same brief-case a personal diary of Prabhat Uppal was recovered. From the spot, two empty bottles and covers of Tik-20 along with one pillow was seized. Inquest proceedings were conducted by Shri D.P. Dwivedi, the Executive Magistrate. The post-mortem on the dead-body of Smt. Shama Uppal was conducted. The doctor, who conducted the post-mortem, opined that injuries were ante-mortem caused by strangulation (manual), pressure on the neck structure was sufficient to cause death in the ordinary course of nature. Accused Prabhat Uppal @ Sunny since tried to commit suicide by consuming some poisonous substance was get treated from RML Hospital and on 22-8-88 he was arrested. The specimen hand-writing and the admitted hand-writing of accused Prabhat Uppal @ Sunny was obtained and sent to CFSL along with questioned documents and the expert opinion was obtained. Statement of witnesses were recorded; scaled site plan /was got prepared from the draughtsman. Prabhat Uppal Sunny gave statement to Shri D.P. Dwivedi, Executive Magistrate on 18-8-88 admitting that he strangulated his wife Shama to death. From the investigation it was revealed that accused Prabhat Uppal wanted to commit suicide but did not want that his wife Shama to live a life of a widow and as such on the night intervening 16/17-8-88; he strangulated her to death in the bed-room of his house and then tried to commit suicide. After the completion of the investigation challan was filed for the offence under Section 302 IPC.
3. Prosecution in order to establish its case, examined as many as 32 witnesses. Of these, PW 1HC Kali Ram is the photographer who photographed the spot where the dead body of a female was lying. PW 2 HC Naresh Pal was a Duty Officer at P.S. Karol Bagh, who received the information from PCR that a women was found dead in the morning in H. No. 9A/17, WEA Karol Bagh. PW 3 ASI Prem Pal, Duty Officer deposed that he had received rukka sent by SHO, Karol Bagh through Constable Subhash, on the basis of which he recorded FIR Ex. PW3/A. He also proved DD No. 9A Ex. PW3/B which was the information received from RML Hospital regarding the admission of Prabhat Uppal. PW 4 Surjit Kumar Chaddha is the father of Shama (deceased) and deposes to the effect that on 20.04.1988, Prabhat Uppal along with Shama came to Delhi and stayed at Karol Bagh. Thereafter, Prabhat left for Muzzafarpur and his daughter Shama continued to stay at his house. This witness deposes as to the movements of Prabhat Uppal and states that on 30.06.1988, Prabhat Uppal went to Karol Bagh and thereafter left for Haridwar. After two or three days, he came back and on 05.08.1988, this witness received a phone call from Pramod Uppal that Prabhat was lying unconscious. The witness along with his wife and family doctor went to the house of Pramod Uppal in Karol Bagh from where it was revealed that Prabhat Uppal had consumed some drug and became unconscious. On 16.08.1988, Prabhat Uppal took Shama to Karol Bagh on the pretext that they were going to Muzzafarpur on the next day. On 17.08.1988 at about 7 a.m., Pramod Uppal informed this witness on telephone that his daughter had been killed and Prabhat Upal was lying unconscious. The witness along with his wife, son and family doctor went to the house of Pramod Uppal in Karol Bagh and found that Prabhat Uppal was lying unconscious and his daughter was dead. The doctor examined both of them. Prabhat Uppal was removed to the hospital. The witness deposed that from briefcase P-15 in the room, three letters were found written by Prabhat Uppal. He proved these letters P-16,17 and 18. One diary belonging to Prabhat was also recovered as P-19. The briefcase was seized vide memo Ex. PW 4/A. One pillow cover P-21, Tik-20 cover P-22 & 23, their empty bottles P-24 & 25 were also seized vide memo Ex. PW 4/B. He also stated that on 21.08.1988, he handed over the letter P-26, written and signed by Prabhat to him to the police and the same was seized vide memo Ex. PW 4/C, PW 5 Smt. Janak Chaddha is the mother of the deceased Shama and has deposed on the lines of her husband, PW 4. PW 6 Ashok Chaddha, uncle of the deceased deposed that on 17.08.1988 he received information and reached H. No. 9-A/17, WEA, Karol Bagh and found Shama lying dead. He identified the dead body of Shama after the postmortem and received the dead body vide Ex. PW 6/A. PW 8 Dr. Pramod Kumar Sharma corroborates PW 4 that when they reached house of the accused Shama was found lying dead while the accused was lying unconcious. PW 16 Sh. D.P. Dwivedi was the Executive Magistrate who reached RML Hospital for recording the statement of Prabhat Uppal. He recorded the statement Ex. PW 16/A. PW 18 Dr. L.T. Ramani conducted the postmortem on the body of Shama and found the following external injuries:
1. Small reddish bruise 1 cm x 1 cm on the left, side of thyroid cartilage.
2. Bruising on the left side front of neck upper part over 2 cm x 2 cm area.
3. An abrasion .2 cm x lcm on the left side middle of neck.
4. Bruising on right side of upper part of neck along with the neck crease. Size 4 cm x 2 cm.
5. Bruise on the right side lower part of neck over 3 can x 2 cm area.
6. Bruise 1 cm x 1 cm on the under surface of chin in the midline.
4. On internal examination he found the following injuries:
Scalp tissues were normal. Skull bones were, intact. Brain was congested. On dissecting neck structures, excavation of blood was found in sub-cutaneous neck tissues under the bruises. Blood clot was present in the deeper neck layers around left cornea of hyoid bone which was however intact. Thyroid cartilage was intact. Trachea contained froth. Ribs were intact. Lungs showed sub-pleural potechieal haemorrhagic spots. Heart was normal. Stomach mucosa was normal. No typical smell was detected in the stomach and body fluids. Other abdominal organs were normal. Uterus was enlarged almost full term and contained a male foetus 45 cm long. Bladder and rectum were b/alf filled.
5. He also proved postmortem report Ex. PW 18/A. According to him pressure on the neck was sufficient to cause death in the ordinary course of nature and that the death was due to asphyxia resulting from strangulation.
6. PW 26 SI Bhure Lai deposed that on 22.08.1988, accused was discharged from hospital and was arrested and his personal search was conducted. During the interrogation, accused made disclosure statement Ex. PW 26/C and pointed out the chemist shop from where he had purchased Tik-20 bottles seized vide memo Ex. PW 26/D. PW 26 SI Bhure Lai and PW 30 SI Laxmi Chand also stated that accused gave his specimen signatures on his consent on nine papers, i.e., Ex. PW 26/E1 to E9. PW 30 further deposed that on 02.09.1988, he had gone to the office of the accused in Patna where he was employed and took into possession an application made by the accused, one letter, five itinerary memos vide Ex. P-13/1 to 4 and P-13/5a to 5d. All these were taken into possession vide memo Ex. PW 13/A. PW 30 further states that he collected the CFSL reports Ex. PW 30/A to D and the report of the handwriting expert. PW 32 Sh. M.K. Jain, the handwriting expert, deposed that all documents were examined by him with scientific aids and he came to the opinion that the handwriting evidence pointed out to the writer of the specimen handwriting and signature marked S-l to S-9 and admitted writing A-1 to A-14, being the person responsible for having written the questioned Hindi and English writings Q-l to Q-23 which included three letters of the appellant recovered from his room. PW-32 then went on to give detailed reasoning for his said opinion.
7. The accused was examined under Section 313 Cr.P. C. He admitted his marriage with the deceased. The accused showed his ignorance and denied having killed his wife. He examined DW1 Dr. Devinder Mohan who stated that the accused was under medical treatment suffering from miniac depressing psychosis and has been prescribed anti-depressant medicines. He also deposed that the accused remained under treatment at All-India Institute of Medical Sciences till 02.12.1995. The record sheet of his treatment was proved as Ex. DW 1/A.
8. It is argued before us by learned Sr.Counsel Shri Arun Bhardwaj that the accused cannot be held guilty of having committed murder of his wife since the accused did not have any mensrea to do so. He submits that taking the prosecution's case at the highest to the effect that circumstantial evidence pieced together, points a finger of guilt towards the accused yet, the vital ingredient to hold the appellant guilty of murder is missing, namely, his intent to cause death by strangulation or otherwise of the deceased. Learned Counsel submits that the letters written by the accused and his statement made before the Magistrate must be read as a whole and not in isolation. He also submits that snippets here and there cannot be used to the detriment of the accused.
9. Learned Counsel for the State, however, contends that from the evidence adduced, it can safely be said that the accused has committed the murder of his wife by strangulating her to death after forcing her to partake in a suicidal bid.
10. We have heard learned Counsel for the parties and carefully examined material available on record. We find that the Prosecution has been able to bring on record the statement of the accused-appellant before the Executive Magistrate which we have no reason to discard as also the letters Ex. P-16 to P-18 written by the accused-appellant in which he admits having put an end to the life of his wife. These letters of the appellant and his statement before the Magistrate together with the statement of the father of the deceased, PW-4, Mr. Sudhir Kumar Chadha, to the effect that the accused and his daughter had cordial relations and that the deceased-Shama was pregnant with the child of the family, as also that the accused-appellant made an unsuccessful attempt to commit suicide earlier which fact was suppressed by the family, do not, in any manner, implicate the appellant with any family discord. Similar is the statement of PW-5 Smt. Janaki Chadha, the mother of the deceased and of PW-12 Hanoot Kumar, brother of the deceased. They too do not complain of any discord between the deceased and the accused-appellant. PW-12 has categorically deposed that the accused was normal to him and his sister (the deceased) and also that the accused used to respect his parents.
11. With this evidence on record supported by the medical evidence and the circumstance that as per the prosecution itself the door of the room in which the appellant and the deceased had slept was in the morning found bolted from inside and had to be broken open, there is little or no doubt of the appellant having put an end to the life of his wife, Shama. The question that arises for consideration is as to what is the offence that has been committed by the appellant?
12. It appears that the appellant is suffering from some sort of a mental disorder which leads him to a state where he has made attempts to end his life. The appellant, according to his father-in-law PW-4, Surjit Kumar Chadha, had earlier also made an attempt at his own life but providence saved him. The situation did hot get better and on the fateful night when he shared his desire to kill himself with his wife, she too expressed her desire not to live as a widow. What actually transpired between the couple appears to have been narrated by the accused himself in his statement to the Executive Magistrate (PW-16) , Ex. PW-16/A when he himself, was in a critical stage and was eye ball to death, having consumed substantial quantity of Tik-20 pesticides. The statement of the accused needs to be reproduced for better appreciation:
My marriage was solemnized with Shama Uppal on 17/11/87 according to Hindu rites and customs. After the marriage,we stayed at Muzafarpur for a period of three months. Thereafter, I left my wife Shama with my father. Then my parents brought my wife Shama to Delhi in order to attend the marriage of my aunt's daughter (father's sister's daughter) where I was also present. Subsequently, I again came back to Muzafarpur. As per the advice of doctor and my parents that she should not move much, I left her in Delhi itself Moreover she felt inconvenience in Muzafarpur due to the hectic touring nature of my job. Even then we, the husband and wife were having cordial relations.
I had, with the view of doing side business,purchased some flaps which are used in the tyres -of trucks. I had purchased the said flaps of the tyres through Rana and paid a sum of Rs. 39000/ as a consideration thereof. Later on, these flaps turned to be defective ones. At this Rana asked me to return his flaps; that he would return either my money or replace the flaps. Anyhow, Rana did not pay me anything and he did not even come back. I remained perturbed because of this very reason. I had supplied goods to my some old parties. When I personally contacted the said parties, I found that they did not exist there. Consequently, the company held me responsible for all these transactions. Anyhow, company did not suffer financial any loss because of the above transactions. Even on earlier occasion, I had lost a sum of Rs. 23,000/- which was assigned to me by the company. Consequently, I started remaining more upset. Ultimately, I suffered a loss of goodwill in the company.
So far as the issue of one girl namely Beauty is concerned, she was my girlfriend and we both had passed out graduation from Ranchi University at one time. My wife Shama was well acquainted with her and both used to talk with each other frequently. So much so Beauty used to resume talks with Shama over telephone frequently. I don't have any knowledge of this fact that people were suspicious of our relationship. In fact, none ever suspected our relationship whatsoever.
Even on previous occasion, on 5.8.1988, the Friday, I had attempted to commit suicide by way of consuming as many as 125 tablets of compose. One doctor from G.K.-II attended me and put me under drip of Glucose, etc. My family members did not lodge any report to the police. It means that I had attempted to commit suicide last time because of my non-adjustment with my wife. As a matter of fact, my in-laws wanted me to shift to Delhi and undertake a business over there which I did not like at all.
On the night of 16.8.1988 at about 12:30 AM/1:00 AM, I disclosed to my wife that I did riot want to go back to Muzaffarpur; that I don't know as to why I am fed up with my life and that I want to commit suicide. I am disclosing all this to you because you are my wife. At this, Shama said that she did not want to lead, life like Deepa and that she too would commit suicide. I had been keepingTik-20 in my briefcase for the last one month after purchasing the same from the market. I asked her if she wanted to die, she may also consume Tik-20 and that she consumed a little quantity of it but she said that she would not be able to take more. Then, we both consumed tablets of Compose. She took only 1 or 2 tablets of Compose whereas I Consumed 15 tablets of it. Then I started writing a letter. Thereafter, she started feeling suffocation and tried to scream. I clamped her mouth and placed tiiy hand on her neck. I did not attempt to eliminate her but I don't know as to how I had eliminated her. In fact, after making her sleep, I wanted to put an end to my own life. Thereafter, I got somewhat frightened and completed writing the letters. Then I went to toilet and came back. Thereupon, two bottles of Tik-20 in a glass. Subsequently, I started smoking cigarette. Then I tried to open the bolt of the door but I don't know as to when I became unconscious. I regained consciousness today in the morning. I have become hapless after the demise of my wife.
Signed by Prabhat Uppal Recorded by
alias Sunny Mr. D.P. Diwedi,
(In English) Executive Magistrate
18.08.1988
13. The statement, read as a whole, shows that there was a suicidal pact between the husband and the wife in furtherance whereof the wife-deceased consumed Tik-20. However, when the body felt uncomfortable and, in all likelihood, manifested a choking feeling the deceased panicked. It was at this time, in order to prevent the deceased from creating a commotion and from screaming, did the accused try to gag her and applied pressure on her neck. However, this pressure was more than the deceased could bear which resulted in her dying of asphyxia due to strangulation. The process of strangulation may have aggravated the reaction of the pesticides in the body of the deceased causing her death, but it cannot be said that the. appellant had the intent to cause death. It is a case where there was no premeditation on the part of the accused to kill his wife but was a pact for suicide in which the deceased partook by swallowing a portion of Tik-20. The act of strangulation appears to be done in the heat of passion.
14. We must not lose sight of the fact that the evidence on record shows that the couple were happily married and enjoyed each other's company. There were no strained relations nor was there any motive other than the suicide pact mutually entered into by both the parties without pressure or coercion that the death of the wife occurred, The appellant who too swallowed Tik-20 once again providentially escaped death.
15. In these fact's, to hold that the offence is 'murder' would be doing violence to the definition of 'culpable homicide amounting to murder'. Tb.e case would, at the highest, fall under Section 304 IPC. We are of the view that exception 5 to Section 300 IPC is attracted which reads as follows:
'Exceptiori 5 - Culpable homicide is not murder when the person, whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
16. The deceased was indisputably over the age of 18 years. When the appellant told his wife, the deceased, that he wanted to put an end to his life she also volunteered to do that. Then the deceased consumed Tik-20 and tablets of Calmpose. The appellant consumed 15 tablets of Calmpose. When the deceased felt suffocated the appellant put his hand on her mouth resulted in her death. From this it is clear that Shama suffered death at the hands of the appellant with her own consent. PW-8 Dr. Parmod Kumar Sharma who had accompanied the parents of the deceased to her house on getting the information of the incident and had found her lying dead and accused lying unconscious does not claim to have noticed anything suggesting that the deceased had resisted strangulation. That circumstance also shows that she had consented to the act of her husband.
17. On the applicability of Exception 5 to Section 300 IPC we may usefully refer to a judgment of Madras High Court reported as Re. Naina Muthu Kannappan AIR 1940Madras 138, In this case the accused was held guilty of murder of his concubine. The prosecution had relied upon his confessional statement made before a Magistrate in which he had claimed that he had killed the deceased at her own request and with her consent. The accused was convicted under Section 302 IPC by the Sessions Court and sentenced to death. However, Madras High Court in appeal filed by the convict held that the offence committed by him was of culpable homicide not amounting to murder. The relevant para of the judgment of Madras High Court is as follows:
'The question however remains whether in the circumstances of the case, the offence was one of murder or whether it comes within the fifth exception to Section 300. The learned Public Prosecutor does not support the finding of the learned Sessions Judge that the offence proved against the appellant was murder. The evidence in the case is that the accused and the deceased were on affectionate terms and there was no motive whatever for the accused to encompass the death of the deceased. In his confession to the Joint Magistrate, the appellant stated that he killed . the deceased at her own request and with her glad consent. He started that on the night in question, after some talk, she declared that she would sever her connexion with him and go away and then in the alternative, she suggested that both of them might commit suicide and that in the morning he killed her at the place where her body was found. This version of the crime apparently has been accepted from the beginning by the prosecution and it clearly amounts to this that Palaniammal suffered death at the hands of the appellant with her own consent. There were two contusions on the body besides the fatal wound on the neck which look as if they were caused by blows with a stick. But the accused was not asked about these marks. It was not suggested to him that the said marks were inconsistent with the statement which he had made to the Magistrate that the deceased had consented to be killed. There may be an explanation of these marks consistent with the story given the appellant. In these circumstances we set aside the conviction for murder and convict the appellant of culpable homicide not amounting to murder.'
18. Benefit of Exception 5 to Section 300 IPC was extended to a convicted accused by Patna High Court also in an appeal. That decision is reported as Dasrath Paswan v. State of Bihar : AIR 1958 Patna 190. In that case also the accused was convicted for the murder of his wife primarily on the basis of his judicial confession. In that case the accused had failed successively for three years in his annual school examinations. The accused took his failures to heart. Before the incident he told his wife that he had decided to end his life upon which his wife told him to kill her first and then kill himself. Accordingly in accordance with the pact with his wife he killed her with a bhala giving her three violent blows on her neck. Patna High Court in these facts gave benefit of Exception 5 to Section 300 IPC.
19. In the result, we allow this appeal to the extent that the conviction of the appellant is altered from Section 302 IPC to Section 304 (Part I) IPC. Further, considering the circumstances in which the deceased lost her life and the mental state of the appellant, the sentence of imprisonment for life awarded to the appellant is reduced to the period already undergone. The judgment under challenge is modified accordingly and the appeal partially allowed. The appellant shall be set at liberty forthwith, if not wanted in any other case.