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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: LAKHMI

DATE OF JUDGMENT:       12/02/1998

BENCH: CJI, K.T. THOMAS, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas, J.      In this  case of uxoricide the husband was found guilty by the  Sessions Court  but the  High Court  found  him  not guilty and acquitted him. That judgment of the High Court is in challenge in this appeal by special leave.      Prosecution case  can be compendiously stated thus. The deceased "Omwati"  was the  young wife  of  the  respondent- accused. They  with their  two little  children were  living together  in  the  house  of  the  respondent.  Intermittent skirmishes used  to erupt  between  them  as  the  wife  was accusing the  husband for dissipating his money on alcoholic drinks.  During  the  wee  hours    of  8.2.1970  respondent inflicted blows  with a  Phali (a  spade  like  agricultural implement) on  the head  of  the  deceased.  Her  skull  was smashed and  she died  on the  spot.  PW2  (Ramey)  who  was working in the adjacent field, on hearing the screams of the deceased, rushed  up  and  peeped  through  the  window  and witnessed  respondent  thrashing  his  wife  with  the  said weapon. PW2  made a  hue and  cry and some of the neighbours who heard  the noise, ran to the place or occurrence. As the door of  the room was bolted from inside they broke it open, over-powered the  berserk assailant  and trussed him up on a pole with a rope.      FIR was  lodged by  PW1 Baljeet  who  was  one  of  the persons rushed  to the  place of  occurrence on  hearing the noise of  PW2 (Ramey).  Police after  registering the  case, reached the  place  of  occurrence  and  took  the  tethered assailant  into   custody  and   proceeded      to   conduct investigation.      As the respondent too did not dispute the fact that his wife (deceased) was murdered by inflicting blows on her head it is  unnecessary to  further consider the question whether death of the deceased was a case of homicide.      Learned  Sessions   Judge,   on   evaluation   of   the prosecution evidence,  found that the accused had killed the deceased and  then considered whether he did the act without knowing the  nature of  it by  reason of  any unsoundness of mind. Though the trial Judge felt that accused was not quite a normal  person it  was not  possible to  conclude that his

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cognitive faculties  were as  impaired as  to deprive him of the capacity  to know  the nature  of his acts. Accordingly, learned Sessions  Judge convicted him under Section 302, IPC and sentenced him to imprisonment for life.      But a  Division Bench of the Allahabad High Court which heard his  appeal felt  that the  evidence of  PW2  (Ramey), which is of crucial importance in this case, was not credit- worthy and  at any  rate  it  was  not  supported  by  other reliable evidence.  The Division  Bench did  not attach  any importance to  the statement of the respondent which he made while being  examined under  Section  313  of  the  Code  of Criminal  Procedure     (‘Code’   for  short)   wherein   he practically admitted  that he  murdered  his  wife.  Learned Judges took  the view that the prosecution cannot succeed on the strength  of what  the accused  said during  examination under Section  313 of  the code. Accordingly, the High Court sent the verdict of acquittal.      This being an appeal against acquittal we heard learned counsel  for  both  sides  in  detail  and  scrutinised  the evidence. In  our considered opinion the High Court has gone wrong in  holding that  prosecution has failed to prove that the deceased was murdered by the accused. High Court has not given due  regard to the cogent circumstances leading to the only conclusion  that deceased  was slashed  to death by the accused.      As a  legal proposition  we cannot  agree with the High Court that  statement of  an accused  recorded under Section 313 of  the code does not deserve any value or utility if it contains  inculpatory   admission.  The   need  of  law  for examining  the   accused  with  reference  to  incriminating circumstances appearing  against him in prosecution evidence is not  for observance  of a  ritual in  a trial nor is it a mere formality.  It has  a salutary  purpose. It enables the Court to  be apprised of what the indicted person has to say about  the   circumstances  pitted   against  him   by   the prosecution. Answers  to the questions may sometimes be flat denial or  outright repudiation  of those  circumstances. In certain cases  accused  would  offer  some  explanations  to incriminating circumstances.  In very rare instances accused may even  admit or  own incriminating  circumstances adduced against him,  perhaps for  the purpose  of adopting  legally recognised defences.  In all  such cases  the Court gets the advantage of  knowing his version about those aspects and it helps the  Court to  effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance appearing  in evidence  against him there is no warrant that  those admissions  should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.      Sub-Section (4)  of Section  313 of  the Code  contains necessary support o the legal position that answers given by the accused  during such  examination  are  intended  to  be considered by  the Court.  The  words  "may  be  taken  into consideration in  such enquiry  or trial" in sub-Section (4) would amount  to a  legislative guideline  for the  Court to give due  weight to  such answers,  though it  does not mean that such  answers could  be made  the  sole  basis  of  any finding.      Time and  again, this  Court has  pointed out that such answer of  the accused  can well be taken into consideration in deciding  whether the  prosecution evidence can be relied on, and whether the accused is liable to be convicted of the offences charged  against him;  vide: Sampath  Singh V.  The State of  Rajasthan (1969  (1) SCC  367) Jethamal Pithaji V. The Assistant  Collector  of  Customs.  Bombay  and  another

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(1974) 3  SCC 393);  Rattan  singh  Vs.  State  of  Himachal Pradesh (1997) 4 SCC 161.      We make it clear that answers of the accused, when they contain admission  of circumstances  against him  are not by themselves, delinked  from the evidence be used for arriving at a finding that the accused had committed the offence.      In this  case, PW2  (Ramey)  said  that  while  he  was working in  the field  he heard  a loud  cry from inside the house of  the deceased and when he peeped through the window he witnessed  accused thrashing  his wife  with  Phali.  PW3 (Bhudia) and  PW4 (Raje)  have stated in their evidence that they too  heard the sound of cry and rushed to the scene and then they saw the accused standing with Phali and Kunda near the deceased  who was  lying on  her bed  with bleeding head injury and that the room was bolted from inside.      One answer  which the  accused gave  to  the  following question put  to him in the examination under Section 313 of the Code  is said  to contain  his admission of a very vital circumstance against him.      The question was this:      "What have  you to  say  about  the      evidence of  Ramey  (PW2)  that  he      peeped through  the window  and saw      you standing  near her  bed and you      killed her  with Phali (Ex.Ka1) and      Kunda (Ex.Ka2)?"      The answer  of the  accused to  the      said question was this:      "It was  not like  that. I murdered      her with kunda and not with Phali."      The above  answer would  certainly help in appreciating the statement  of the  prosecution  witnesses  who  saw  the accused standing  near the  bed of the deceased with a Phali and Kunda  and that  the deceased was bleeding with injuries then. We  are not  disposed to  by-pass the  impact  of  the aforesaid answer  of the  accused in  determining as  to who would have caused the death of the deceased.      Learned counsel for the respondent however, pointed out that as  the doctor who conducted post-mortem examination on the dead  body was  not put  in the witness box in this case and it  was argued  on its  strength that  in the absence of legally proved  medical evidence  no finding  can be reached that the  deceased died due to blows inflicted with "Phali." No reason is seen noted by the trial court or the High Court for the  non-examination of  the doctor  who  conducted  the autopsy No  doubt it is the duty of the prosecution to prove post-mortem findings in murder cases, if they are available. Absence of  such proof  in the  prosecution  evidence  in  a murder case  is a  drawback for prosecution. However, we are not disposed  to allow  this case  to be  visited with fatal consequences on  account of such a lapse because the accused has admitted  that death  of the  deceased  was  a  case  of homicide.      From the  above circumstances,  there is no escape from the conclusion  that deceased  had died  at the hands of the accused. Still,  that finding  is not  enough to  dispose of this appeal.  Accused attempted  for  a  defence  presumably under Section 84 of the Indian Penal Code by examining  DW2, his mother  to show  that he  was of  unsound mind.  But the trial judge  had, according to us rightly, repelled the said defence since  he did  not succeed in making out that he had such a  mental case  when he  committed the  act and further that he did not know the nature of the acts committed by him by reason  of  such  mental  impairment.  However,  we  have noticed that accused had adopted another alternative defence

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which  has   been  suggested   during  cross-examination  of prosecution witnesses  i.e. his  wife and  PW2 (Ramey)  were together on  the bed  during the  early hours of the date of occurrence. If  that suggestion  reserves  consideration  we have  to  turn  to  the  question  whether  the  benefit  of Exception I  to Section 300 of the IPC should be extended to him?      The law  is that burden of proving such an exception is on the  accused. But  the mere  fact  that  accused  adopted another alternative  defence during  his  examination  under Section 313  of the IPC without referring to Exception No. 1 of Section  300 of  IPC is  not enough  to deny  him of  the benefit  of  the  Exception,  if  the  Court  can  cull  out materials  from   evidence  pointing  to  the  Existence  of circumstances leading  to that  exception. It is not the law that failure  to set  up such  a defence would foreclose the right to  rely on  the exception  once and  for all.  It  is axiomatic that  burden on  the accused to prove any fact can be discharged  either through  defence    evidence  or  even through prosecution  evidence by  showing a preponderance of probability.      In the  above context,  we deem  it useful to ascertain what possibly  would have  prompted the  accused to kill his wife. The  prosecution case  as noted  above,  is  that  the accused was  not well-disposed to his wife as she was always speaking against  his drinking  habits. we  are inclined  to think that,  while considering  the manner  in which  he had suddenly pounced  upon his  young wife who bore two children to him and smashed her head during the early hours, he would have had  some other  strong cause which probably would have taken place within a short time prior to the murder. Certain broad features  looming large  in evidence  help us  in that line of thinking.      The defence  counsel put  a definite suggestion to PW-2 (Ramey), during  cross-examination, that  the  incident  was preceded by  a liaison  between Omvati,  the  deceased,  and Ramey (PW-2). The suggestion was, of course, rebuffed by the witness. One of the defence witnesses (DW-1) was examined to say that the accused was working in his field till 4 A.M. on the night  in question. As that version was not inconsistent with the  prosecution story,  the aforesaid evidence of DW-1 was not  rejected by  the trial  court. If  that version  is correct, he  would have  gone back  to his bedroom some time thereafter, In  this connection, we refer to the evidence of PW-3 who said even during chief examination itself that when he saw  the accused  standing near the bed side of his wife, the witness  asked him  what did  he do, to which he snorted out that he would not spare Ramey (PW-2) also. That evidence of PW-3 (Bhondia) was binding on the prosecution which has a very significant  impact on  the plea  based  on  the  First Exception to  Section 300.  It indicates that the motive for the accused  to murder  his wife  had some  nexus with Ramey (PW-2). According  to PW-4 (Raje), he rushed to the house of the accused  and saw  PW-2 scampering  away and then saw the accused inside  the bedroom  muttering that  Ramey had  done foul acts with his wife and that he would murder him. Though the Public  Prosecutor challenged that part of the witness’s testimony, he  did not  treat the witness as hostile for the prosecution.      The above  features positively suggest that the accused would have  seen something  lascivious between  his wife and PW2 just when he entered the house from the field.      There can  be little  doubt that  if  the  accused  had witnessed  any  such  scene,  his  mind  would  have  become suddenly deranged. It is not necessary that a husband should

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have  been   hot-tempered  or  hypersensitive  to  lose  his equanimity by  witnessing such scenes. Any ordinary man with normal senses  or even sangfroid would be outraged at such a scene.      We are  therefore, inclined to afford to the respondent accused benefit  of Exception  I to  Section 300 IPC. As the corollary, we  find the respondent guilty only under Section 304 (Part I), IPC.      In the result, we allow this appeal and set aside the judgment of  the  High  Court,  but  in  alteration  of  the conviction passed  by the  Sessions Court,  we  convict  him under Section  304 (Part I), IPC. We sentence him to undergo rigorous imprisonment  for a  period of six years. We direct the Sessions  Judge, Meerut to take steps to put the accused in  jail   for  undergoing  the  remaining  portion  of  the imprisonment term in accordance with the sentence imposed on him now.