STATE OF U.P.

LAKHMI

FEBRUARY 12, 1998

[M.M. PUNCHHI CJI., K.T. THOMAS AND M. SRINIVASAN, JJ.]

Criminal Procedure Code, 1973-S. 313-Examination of Accused:.._ Incu/patory admissions-Sub-section (4)-Words "may be taken into C consideration in such enquiry or trai/"--Scope of

Indian Penal Code, 1860--S.300-Accused adopting alternative defence during , examination under Section 313, Criminal Procedure Code of unsoundness of mind-Exception I to S.300 not pleaded-When could the accused be denied benefit of the exception.

S.300-Exception I-Burden of proof-On accused-Accused entitled to discharge burden either through defence evidence or through prosecution evidence showing preponderance of probability.

S.300-A1urder Trial-Post mortem-Non-examination of doctor-Effect E of-Held,, not fatal in the instant case on account of accused admitting case was one of homicide.

S.300-Exception /-Benefit of-Entitlement of accused-When.

The deceased was the young wife of the respondent-Accused. With F their two little children, they were living in the house of the accused.

Intermittent skirmishes used to erupt between them as the deceased used to accuse the respondent-Accused for dissipating money on alcoholic' drinks.

During the wee hours of 8.2.1970 accused 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 Hearing the screams of the deceaseli--' G Wife, P.W. 2 who was working in the adjacent field, rushed up and peeped through the window and witnessed the accused thrashing his wife with the said weapon.

In the trial, the doctor who conducted the post-mortem was not examined H by the prosecution. The accused did not dispute the fact that bis wife (deceased)

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STATE OF U.P. v. LAKHMI 851

was murdered by inflicting blows on her head. The accused gave an answer A

_,...1._ to a question put to him in examination under Section 313 of the Criminal "' Procedure Code which contained his admission of killing his wife with Kunda. The Sessions Judge repelled the defence under Section 84 of the Indian Penal Code that the accused was a person of unsound mind and by reason of such impairment did not know the nature of the act committed by him, and convicted the accused under Section 302, I.P.C. and sentenced him B to imprisonment for life.

The accused preferred appeal in the High Court which was allowed.

Hence this appeal by the State, contending that the High Court had gone wrong in not attaching any importance to the statement of the accused made C under S. 313 Cr. P.C .. The contention of the respondent was that-I the doctor who conducted the post-mortem examination was not examined and in the absence of legally proved medical evidence there could be no finding that the deceased died due to blows inflicted with "Phali", 2 that the accused was a person of unsound mind and should be afforded the benefit under Section 84

I.P.C.

Allowing the appeal, this Court

HELD : l. The High Court has gone wrong in holding that the prosecution has failed to prove that the deceased was murdered by the accused. It has not given due regard to the cogent circumstances leading to E the only conclusion that the deceased was slashed to death by the accused.

[854-D)

2. 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 F 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. 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 G were advanced as a defence strategy. [854-F-Hf

3. Sub-Section (4) of Section 313 of the Code contains necessary support to 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 H

A amount to a legislative guideline for the Court to give due weight to such

answers; though it does not mean that such answers, though it does not mean that such answers could be made the sole basis of any finding. 1855-A-BI

Sampath Singh v. The State of Rajasthan, 1196911 SCC 367; Jethamal Pithajiv. The Assistant Collector of Customs, Bombay and Another, 119741 B 3 SCC393 and Rattan Singh v. State of Himachal Pradesh, 119971 4 SCC 161, relied on.

4. lt 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. But the instant C case was not allowed to be visited with fatal consequences on account of this lapse because the accused has admitted that death of the deceased was a case of homicide. 1856-D I

5. The law is that burden of proving an exception to section 300 I.P.C.

D is on the accused. But the mere fact that accused adopted another alternative defence during his examination under Section 313 of the Code without referring to Exception No. 1 of Section 300 I.P.C. 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 E to rely ?n 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 proseution evidence by showing a preponderance of probability. 1856-H; 857-AI

6.' In the instant case the evidence positively suggests that the accused would have seen something lascivious between his wife and P.W. 2 just when he entered the house from the field. If the accused had witnessed any such scene, his mind would have become suddenly deranged. It is notnecessary that a husband should have been hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes. Any ordinary man with normal senses G or evensang-froid would be outraged at such a scene. The accused is therefore afforded the benefit of Exception I to Section 300 l.P.C. and is found guilty only under S:-304 (Part-I), I.P.C. and is sentenced to undergo rigorous imprisonment for a period of six years.1857-D-GI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 234 H ofl993.

From the Judgment and Order dated 25.9.91 of the Allahabad High Court A in Cr!. A. No. 3363of1978.

Viswajit Singh for A.S. Pundir for the Appellant

Ms. S Janani, (A.C.) for the Respondent.

The Judgment cf the Court was delivered by

THOMAS, J. Iu 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. C

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 tl1e house of the respondent. Intermittent skirmishes used to erupt betw, een them as the wife was accusing the husband for dissipating his money on alcoholic drinks. DUting the wee hours of D 8.2.1970 n:spondent inflicted blows witl1 a Phali (a spade like agricultural implement) on tl1e head of the deceased. Her skull was smashed and she die~ on the spot. PW2 (Ramey) who was working in the adjacent field, on hearing the screams of the deceased, rushed up and peeped through t11e window and witnessed respondent thrashing his wife with tile said weapon. PW2 made a E hue and cry and some of tile neighbours who heard the noise, ran to tile place or occurrence. As tile door of the room was bolted from inside tiley broke it open, over-powered tile berserk assailant and trussed him up on a pole witl1 a rope.

FIR was lodged by PWl Baljeet who was one of the persons rushed p to tile place of occurrence on hearing the noise of PW2 (Ramey). Police after registering tile case, reached the place of occurrence and took the tetilcred assailant into custody and proceeded to conduct investigation.

As tile respondent too did not dispute tile fact that his wife (deceased) was murdered by inflicting blows on her head it is unnecessary to further G consider tile question whether deatil of the deceased was a case of hQmicide.

Learned Se-ssions Judge, on evaluation of t11e prosecution evidence, found tilat the accused had killed tile deceased and then considered whether he did the act without knowing tile nature of it by reason of any unsoundness of mind. Though the trial Judge felt tilat accused was not quite a normal H

A person it was not possible to conclude that his 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 B 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 C that the prosecution cannot succeed on the strength of what the accused said during exan1ination 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 D 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.

E 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 fom1ality. It has a salutary pmpose. It enables F the Court t6 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

circumstanes. In very rare instances accused may even admit or own G . 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 H on the ground that such admissions were advanced as a defence strategy.

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STATE OFU.P. v. LAKHMI [THOMAS, J.] 855

Sub-Section (4) of Section 313 of the Code contains necessary support A to 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 B basis of any finding.

Time and again, this Court has pointed out that such answers 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. c The State of Rajasthan, [1969] l SCC 367; Jethamal Pithaji v. The Assistant Collector of Customs. Bo111bay and another [1974] 3 SCC 393 and Rattan Singh v. State of Hi111achal 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 D ,

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 E

Phali. PW3 (Bhudia) and PW4 (Raje) have stated in their evidence that they too heard the sound of cry and rushed to the s.cene 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 .

r One answer which the accused gave to the following question put to F .... '

him in the examination under Section 31J 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 cPW2) that he G

~ peeped through the window and saw you standing near her bed and you killed her with Phali (Ex. Kal) 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." H

A 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 \Vith a Phali and Kunda and that the deceased was bleeding wit11 injuries then. We are not disposed to by-pass t11e impact of the aforesaid answer of the accused in detem1ining as to who would have caused t11e deat11 of tl1e deceased.

Learned counsel for the respondent however, pointed out that as t11e doctor who conducted post-mortem examination on t11e dead body was not put in the witness box in this case and it was argued on its strengfu that in the absence of legally proved medical evidence no finding can be reached C t11at 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 t11ey 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 D with fatal c.onsequences on account of such a lapse because t11e accused has admitted that death of the deceased was a case of homicide.

From t11e 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 E under Section 84 of tlle Indian Penal Code by examining DW2, his mother to show tllat he was of unsolU!d mind. But the trial judge had, according to us rightly, repelled the said defence since he did not succeed in making out. tllat 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 impaim1ent. However, we have noticed tllat accused had adopted another F alternative defence which has been suggested during cross-examination of

prosecutirin 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 tum to the question whetller the benefit of Exception I to Section 300 of the IPC should be extended to him?

G The law is that burden of proving such an exception is on the accused.

But t11e mere fact that accused adopted another alternative defence during his examination under Section 313 of the IPC without referring to Exception No.

I of Section 300 of IPC is not enough to deny him of the benefit of the Exception, if tlle Court can cull out materials from evidence pointing to the H existence of circumstances leading to that exception. It is not the law that

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failure to set up such a defence would foreclose the right to rely on the A 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 thr?ugh 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 B 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 vhich 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 C 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 D

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 ofDW-1 was not rejected by the trial court. lfthat 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 E 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 l1e 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 F 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, G 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 an'd PW2 just when he entered the house froin the field.

There can be little doubt that if the accused had witnessed any such H

A scene, his mind would have become suddenly deranged. It is not necessary that a husband should 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 B 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, C 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.

D A.K.T. Appeal allowed.