Bail Slip The appellant herein viz Kutti @Ramalingam accused in S.C.No.77 of 2004 on the file of Additional Sessions Judge, Dharmapuri was directed to be released on bail as per orders of this court dated 25.7.2006 made in CRL.MP.No.3959 of 2006 in Crl.A.No.103 of 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal.No.103 of 2006 Kutti @ Ramalingam ... Appellant vs. State, rep. by Inspector of Police, Krishnapuram. (Cr.No.600/2001). ... Respondent Appeal filed under section 374 of Crpc against the judgment of the learned Additional Sessions Judge, Dharmapuri, dated 8.12.2005 made in S.C.No.77 of 2004. For Appellant : Mr.R.Sankarasubbu For Respondent : Mr.N.R.Elango Additional Public Prosecutor J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The sole accused, who was tried in Sessions Case No.77 of 2004 on the file of learned Additional Sessions Judge, Dharmapuri, for uxoricide, was convicted by the impugned Judgment dated 8.12.2005 under Section 302 I.P.C. and sentenced to imprisonment for life. https://hcservices.ecourts.gov.in/hcservices/ 2.The charge against the appellant is that on 7.12.2001 at 4.00 a.m. while Jaya, his wife, was sleeping in their residence at Kathirnaickenhalli village, within the jurisdiction of Krishnapuram police station, the appellant took an aruval and cut her neck and thus, caused her instantaneous death and thereby, committed an offence of murder punishable under Section 302 I.P.C. 3.The genesis of the prosecution case is the extra judicial confession, Ex.P.1, given by the accused to P.W.4, Village Administrative Officer, who, lodged a complaint, Ex.P.2, before P.W.10, Head Constable of Krishnapuram Police Station, and based on the said complaint, P.W.10 registered a case against the appellant/accused for an offence punishable under Section 302 I.P.C. and prepared Ex.P.15, printed F.I.R. and thereafter, investigation was taken up. 4.The background facts of the case, in a nutshell, as put forth by the prosecution through oral and documentary evidence are that: (a)The accused is a resident of Kathirnaickenhalli village and he is an agriculturist. About ten years prior to the date of occurrence, he married Jaya, the deceased in the case and due to the wedlock three children were born - a girl and two boys, and the children were aged 9, 8 and 2 ½ years respectively at the time of occurrence. The accused was suspecting the fidelity of his wife and he also warned her several times, but to no avail. On account of that, a quarrel ensued between them which ended in the deceased taking heavy sleeping dose and after treatment, she was saved and even thereafter, she continued her illicit relationship with third parties. While so, on the night of 6.12.2001, again a quarrel ensued between them and in spite of the request of the accused not to continue such relationship, the deceased refused to lend ears and alleged that since he did not get any jewels or properties for her, she would continue with such relationship and so saying, went to take her bed. Enraged over her reply, thinking that she would never change herself, accused took an aruval, concealed underneath his pillow and at about 4.00 a.m., when the deceased and the children were in sound sleep, held her head with his left hand and inflicted a wild cut on her neck. He inflicted a second cut and blood oozed out from her head. The children who were sleeping, woke up at the shout of their mother and started crying, on hearing which, neighbours gathered. The accused opened the door and went away taking the aruval with him. (b)P.W.4 is the Village Administrative Officer, Pangunatham village. According to him, on 7.12.2001 at about 9.00 a.m., while he was in his office, the accused came there and confessed that due to his suspicion about the fidelity of his wife, he murdered her by cutting her neck with an aruval. Village Administrative Officer adopted usual procedures and reduced the confession of the accused https://hcservices.ecourts.gov.in/hcservices/ into writing and the signature of the accused was also obtained. Ex.P.1 is the said statement. Thereafter, he took the accused to police station and handed over him, along with Ex.P.1, the statement of the accused and Ex.P.2, his report, to the police. (c) P.W.10, Head Constable of Krishnapuram Police Station, on receipt of Exs.P.1 and P.2, registered a case in Crime No.600 of 2001 under Section 302 IPC and prepared printed F.I.R., Ex.P.15. He arrested the accused and recovered M.Os.5 and 6, the clothings of the accused under Form 95. He sent the F.I.R. to court and copies thereof to superior officers. (d) P.W.13, Inspector of Police, took up investigation on receipt of copy of the F.I.R. and proceeded to the scene of occurrence, where he prepared observation mahazar, Ex.P.3 and rough sketch, Ex.P.19 in the presence of witnesses. He seized M.Os.1 to 3 from the scene of occurrence and conducted inquest over the dead body in the presence of panchayatdars and witnesses. Ex.P.20 is the inquest report. The body was sent to hospital with a request to conduct autopsy. (e) P.W.11 is the medical officer who conducted autopsy on the dead body on 7.12.2001 at 4.15 p.m. and issued Ex.P.18, post-mortem certificate, opining that the deceased would appear to have died of shock and hemorrhage due to injury to major vessels about 10 to 16 hours prior to autopsy. (f) P.W.13, continuing with his investigation, examined witnesses and recorded their statements. He enquired the accused and recorded his statement and pursuant to the admissible portion, Ex.P.5, M.O.4, aruval was recovered under a mahazar, Ex.P.6. He sent the material objects to the Court with a request to send them for chemical analysis and received Exs.P.13 and 14, biology report and serologist report, to the effect that the material objects were found to contain human blood of 'B' group. He issued a requisition to the learned Magistrate, P.W.8, to record the statements of P.Ws.1 and 3 under Section 164 Cr.P.C. Exs.P.9 and 10 are the said statements. P.W.17, after examining the post-mortem doctor and other witnesses, completed his investigation and filed the final report against the accused on 4.2.2002. (g) As the accused denied the charges, he was tried in S.C.No.77 of 2004 on the file of learned Additional Sessions Judge, Dharmapuri. In order to substantiate the charge against the accused, the prosecution examined P.Ws.1 to 13 and marked Exs.P1 to P20 and M.Os.1 to 14, as already referred to above. (h) When the accused was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him in the evidence of prosecution witnesses, he denied the same as false. He neither https://hcservices.ecourts.gov.in/hcservices/ examined any witness, nor marked any document. (i) The trial Court, appreciating the evidence on record, both oral and documentary, convicted and sentenced the accused as stated earlier. Exasperated by the judgment of conviction and sentence, the accused has preferred this appeal. 5.1. Mr.R.Sankarasubbu, learned counsel appearing for the appellant, assailing the impugned judgment, contends that there is no eye witness to the occurrence and that P.W.3, the daughter of the accused and the deceased, who was alleged to have seen the accused with the blood-stained aruval near the dead body of the deceased, and P.W.1, a neighbour to whom P.W.3 informed about the commission of offence by the accused, having turned hostile, the conviction of the accused cannot be based solely on the extra judicial confession, Ex.P.1, given by the accused to P.W.4, Village Administrative Officer, as it is a weak piece of evidence and hence, the appellant/accused is entitled for acquittal. 5.2. Alternatively, he submits that even if the extra judicial confession, Ex.P.1, is accepted, as it is the case of the prosecution that the deceased was of lose-character having illicit relationship with several persons in the village and that there was a provocation given by the deceased to the accused prior to the occurrence and due to which, the accused committed the offence, the offence of murder is not made out and at best, the accused could only be convicted either under 304 Part-I or Part-II I.P.C. The learned counsel producing the affidavits of the parents-in-law of the appellant submits that the appellant/accused has already settled all his properties in the name of his children and hence, some leniency can be shown in the sentence. 6.1. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor submits that the extra judicial confession cannot be termed as a tainted evidence inasmuch as it has been given by the accused voluntarily within a short span of time to the Village Administrative Officer, who has no axe to grind against the accused and in fact, there are other circumstances by way of corroboration to the said confession and hence, it can be safely relied upon to convict the accused. 6.2. To the alternative submission, the learned Additional Public Prosecutor submits that it cannot be said that the accused had no premeditation at all nor it is in the heat of passion or in a sudden fight to attract Exception 4 to Section 300 I.P.C., because even as per Ex.P.1, after a wordy altercation between the accused and the deceased centering the lose-character of the deceased, the quarrel got intensified and the accused waited for the deceased to fall into deep slumber and in the early hours, he took out the aruval, which he kept concealed underneath his pillow and caused her https://hcservices.ecourts.gov.in/hcservices/ instantaneous death. Therefore, there was sufficient time for the heat of passion to cool down and hence, the ingredients of Exception 4 to Section 300 I.P.C. are not satisfied and therefore, the accused would not be entitled to this relief. 6.3. With regard to the plea to bring the offence under Exception 1 to Section 300 I.P.C., he submits that even Exception 1 does not deserve any consideration because even though there was a cause of provocation centering on the immoral character of the deceased, looking at the conduct of the accused that he having kept concealed the weapon of offence underneath his pillow and having waited for the deceased and the children to fall into sound sleep, there was sufficient time for the accused to calm down and plan and it cannot be contended that the accused while deprived of his power of self-control due to such provocation, caused the death of the deceased. The learned Additional Public Prosecutor therefore, emphasized that the conviction of the appellant/accused is well based and no interference is called for. 7. We have given our anxious consideration to the rival submissions of both sides and also perused the entire materials available on record. 8. There can be no dispute that the deceased Jaya died on account of homicidal violence. The said fact stands established through the evidence of the doctor, P.W.12, who did post-mortem on the dead body and the post-mortem certificate, Ex.P.18, to the effect that the deceased died due to shock and hemorrhage on account of the injury to major vessels. 9. The main points for consideration are: (i) Whether Ex.P.1, the extra judicial confession given by the accused to P.W.4, the Village Administrative Officer, can be relied upon for convicting the accused ?; (ii) Whether the prosecution has proved its case beyond all reasonable doubts ?; and (iii) Whether the nature of offence committed by the accused attracts lesser punishment? 10. To prove the case against the accused, the prosecution relied upon Ex.P.1, the extra judicial confession given by the accused as well as the evidence of P.Ws.1 to 6, of whom, except P.Ws.2, junior paternal uncle of the deceased and P.W.4, Village Adminstrative Officer, to whom the accused confessed to his guilt, others have turned hostile. Before considering the evidence of the witnesses, let us first take up the contention that since Ex.P.1, the https://hcservices.ecourts.gov.in/hcservices/ extra judicial confession is a weak piece of evidence, conviction for the offence under Section 302 I.P.C. cannot be based upon such confession. 11.1. The law on the point is well settled that on the basis of the extra judicial confession, conviction can be sustained, but on satisfaction of three tests, viz., "1. To whom the said extra judicial confession is made?; 2. Whether the evidence of the person to whom the extra judicial confession is made inspires the confidence of the Court?; and 3. Whether the extra judicial confession is consistent with the prosecution case? 11.2.That apart, the Apex Court in GURA SINGH -vs- STATE OF RAJASTHAN (2001 Supreme Court Cases (Crl.) 323), held thus:- ".. the extra judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. The Supreme Court further held that the evidence in the form of extra-judicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence and corroboration of such evidence is required only by way of abundant caution. The Supreme Court further observed that if the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone and it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence and it would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The Supreme Court further held that retraction of extra judicial confession which is a usual phenomenon in criminal cases by itself will not weaken the case of the prosecution based upon such a confession and an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity." https://hcservices.ecourts.gov.in/hcservices/ The Supreme Court has further held that " .., before relying on the alleged confession, the Court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicion circumstances to circumvent Sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised." 11.3. The ratio laid down in the above decision has been reiterated by the Apex Court in its subsequent decisions, viz. in State of Rajasthan v. Raja Ram (2003 SCC Crl. 1965) and in Sivakumar v. State [(2006) 1 SCC Crl. 470] and thus, the law is well settled on the point. 12. In the case on hand, the occurrence had taken place at about 4.00 a.m. and the alleged extra judicial confession, Ex.P.1, was given by the accused around 7.00 a.m. to P.W.4, Village Administrative Officer. In Ex.P.1, the accused has stated that his wife was having illicit relationship with several persons in the village and in spite of his repeated requests and warning, the deceased did not heed to such requests and retorted that since he did not get any jewels or properties for her, she would continue with such relationships. Piqued at her reply, the accused thinking that she would never turn a good leaf, took an aruval, concealed underneath his pillow and after the deceased and the children fell into deep sleep, in the early hours, caused her instantaneous death by cutting her neck twice. The accused has further stated in Ex.P.1 that after committing the murder of his wife, he came out of the house and though initially thought to escape from the clutches of law, later decided to surrender before the Village Administrative Officer instead of the police out of fear. On a careful scrutiny of Ex.P.1, we find that it is true and voluntarily given by the accused and hence, cannot be termed as tainted evidence. That apart, the substance of Ex.P.1 stands corroborated by the evidence of P.W.4, Village Administrative Officer. According to P.W.4, around 7.00 a.m., when he was in his office, the accused appeared before him and confessed to him that due to his suspicion on the fidelity of his wife, he murdered her by cutting her neck twice with an aruval. The said statement of the accused was reduced into writing and P.W.4 handed over the same to the police along with his report, on the basis of which, the law was set in motion. On going through the evidence of P.W.4, we find no reason to disbelieve the same, as it comes from the mouth of a witness who is totally unbiased and not https://hcservices.ecourts.gov.in/hcservices/ even remotely inimical to the accused. Moreover, no favourable answer was elicited from the witness on the side of defence that he has any axe to grind against the accused. The evidence of P.W.4 is clear, unambiguous and unmistakably convey that it was the appellant/accused who committed murder of his wife. 13. As laid down by the Apex Court, as an abundant caution, let us see whether there is any other material available to corroborate the extra judicial confession, Ex.P.1 and the evidence of P.W.4. Though the prosecution examined P.W.1, a neighbour and P.W.3, daughter of accused and deceased, to establish that it was the accused who committed murder of his wife, they did not support the prosecution version and hence, they were treated hostile. However, on perusal of materials, we could see that the prosecution has established the motive part of the occurrence through the evidence of P.W.2, junior paternal uncle of the deceased. It is his evidence that there was no love-lost between the accused and the deceased due to the illicit relationship developed by the deceased with several persons in the village. He has further stated that some time prior to the occurrence, a quarrel ensued leading to the deceased attempting to commit suicide by consuming sleeping pills and it was he and the accused, who took her to the hospital and saved her. This piece of evidence stands corroborated with Ex.P.1, the extra judicial confession. As already stated and with the risk of repetition, the extra judicial confession was given by the accused voluntarily within a short span of time and the evidence of P.W.4, Village Administrative Officer, to whom it was given is also clear and reliable. Thus, we are very much convinced that the prosecution has established its case against the accused that it was he, who murdered his wife. 14. The question that is to be decided is whether the offence committed by the accused can be brought under Exceptions 1 or 4 to Section 300 I.P.C. The Apex Court, in Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653 noticed the distinction between Section 300 Exception 1 and Section 300 Exception 4 and came to the conclusion that the Court is bound to consider a large number of factors for arriving at an opinion as to whether the fight was sudden or not and/or whether the deceased has taken undue advantage of the situation in the following words: “9. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reasons and urges them to deeds https://hcservices.ecourts.gov.in/hcservices/ which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.” 15.1. It is clear from the principle laid down by the Apex Court in the decision cited supra that to invoke Exception 4 to Section 300 I.P.C., four ingredients must be satisfied and they are: https://hcservices.ecourts.gov.in/hcservices/ (a) no premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. 15.2. In the case on hand, as per Ex.P.1, though there was a quarrel on the previous night between the accused and the deceased, the accused, after deciding himself that she should not be left alive because of her immoral character, took an aruval and concealed it underneath his pillow and after having waited for the deceased and the children to fall in deep slumber, in the early hours, woke up; held the head of the deceased with his left hand and inflicted two wild cuts on her neck. This shows the conduct of the accused that after having decided to finish her off, he pre-planned himself to commit murder by using deadly weapon, viz., aruval and