In Re: Thangavelu

Swamikkannu, J.—This is an appeal by the accused Thangavelu against the judgment, dated 13th August, 1979 in S.C. No. 49 of 1979, on the file of the court of the learned Sessions Judge, North Arcot, at Vellore, finding him guilty under S. 302, I.P.C. convicting him thereunder and sentencing him to undergo imprisonment for life.

The case against the accused before the trial court is that on or about the 12th December, 1978 at about 5 p.m. in Iyer's rice mill at Arcot, the accused caused the death of his wife Annabooshanam by stabbing her with a pen knife on her chest, abdomen and other places of her body and thus caused her fatal injuries and thereby committed an offence punishable under S. 302, I.P.C.

When this charge was read over to the accused and explained in Tamil, he pleaded not guilty.

The prosecution had let in oral evidence through P.Ws. 1 to 18, documentary evidence Ex. PI to P32 and also produced M.O.s 1 to 9 to substantiate the case put forward by it against the accused in the trial court.

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[After setting out the facts, the evidence of the prosecution witnesses, the injuries found by the doctor and the evidence relating thereto, His Lordship proceeded as follows:]

Even at this stage itself, it will not be out of place to mention that a faint attempt that had been made by the accused in order to get the benefits under S. 100, I.P.C. is that during the time of the occurrence his testicles were squeezed and that had made him to resort to violence on the deceased. This case put forward on behalf of the accused had been turned into one of suggestion and actually put to P.W. l, 2, when she was in the box and in her cross-examination P.W.12 has stated that these injuries that were on found on the deceased could have been caused with sharp weapon. She has further deposed that squeezing of a testicle will endanger the life of a man. P.W.I2 has also stated in her cross-examination that the injury to the vital organs had caused shock and haemorrhage resulting in death. When she was further re-examined by the learned Public Prosecutor, P.W.I2 has stated that if the testicle was squeezed to the extent of endangering the life, it could have suffered swelling and there would have been haemotoma. The swelling and haemotoma will depend upon the force used. We shall deal with this defence that had been put forward by way of suggestion to P.W.I 2, at the appropriate stage and place in this judgment.

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[The discussion relating to evidence omitted -Ed.]

When questioned under S. 313, Crl. P.C. relating to the incriminating circumstances available on the evidence let in by the prosecution, the accused appellant had stated inter alia that there was illicit intimacy between his wife, the deceased Annabhushanam and P.W.4, Chittibabu and that he did not quarrel on that account with the deceased, yet, he had advised her to lead a life of chastity. The accused has also slated in his S. 313, Crl. P.C. statement that on behalf of the deceased, he had been paying the chit amount to P.W.10. He has also stated that the occurrence took place in the manner he had described in his confessional statement before P.W.13, the learned Magistrate. The accused has denied the prosecution evidence as false relating to his arrest as well as regarding the seizure of bloodstained clothes and the knife which according to the prosecution, were taken by him in pursuance of the statement given by him to the police, the admissible portion of which is Ex. P13. No witness was examined on behalf of the accused.

On the point whether the prosecution has proved its case beyond all reasonable doubt against the accused, the trial court had held on the evidence available on record, both oral and documentary, that the prosecution has established its case that it was the accused who had stabbed his wife with a knife with the intention to do away with her and that it has also held that the offence committed by the accused is punishable under S. 302, I.P.C. and while finding the accused guilty under S. 302, I.P.C. and convicting him thereunder, the trial court had imposed a sentence of imprisonment for life on the accused-appellant herein under S. 302, I.P.C,

Aggrieved by the above decision of the trial court, the accused has come forward with this appeal from jail inter ate stating therein that he never suspected his wife and that P.Ws 1 and 2 are deposing falsely. Even in his memorandum of grounds of appeal, the accused has stated that he demanded money from the deceased for his expenses; but she refused, that at once he gave a blow on her cheek and that she at once caught hold of the genital region of his body and squeezed, that he could not bear the pains, that he took out the tin blade kept there for cutting jute coir etc., and stabbed her with it. In other words, the defence that is put forward at this stage on behalf of the accused is that the occurrence had taken place due to grave and sudden provocation at the instance of the deceased by herself refusing to -give money to the accused when the accused- had demanded from her only a sum of Rs. 10, but instead, the deceased had given Rs. 10 to her paramour, P.W.4 soon after his demand for the same.

The point for consideration in this appeal is whether the prosecution has proved beyond all reasonable doubt that it was the accused who had stabbed his wife, the deceased Annabhushanam at 5 p.m. on 12th December, 1V78, at the rice mill when she was engaged in her cooly work and caused her injuries, as a result of which the deceased died at the Government hospital at Vellore at about 6-30 p.m. on 15th December, 1978?

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[The discussion relating to evidence, omitted Ed:]

It is relearning this connection to note that P.W.3 states in his evidence that suspecting illicit intimacy between his wife and P.W.4, the accused used to quarrel frequently with his wife. It is also relevant in this connection to note that though the accused had denied the same, yet, under S. 313, Crl. P.C. he had admitted that there was illicit intimacy between the deceased and P.W.4. It is further to be noted that the accused in his confessional statement, Ex. P22, recorded under S. 164, Crl. P.C. by the learned Judicial Second Class Magistrate, Arkonam, has stated about the illicit intimacy of P.W.4 with the deceased. We are not here concerned very much about the allegation that there was illicit intimacy between P.W.4 and the deceased. But, the real question that confronts us is whether there was suspicion entertained by the accused that there was illicit intimacy between the deceased and P.W.4 or not. P.W.4 has stated in his evidence that about a few days prior to the occurrence, twice, the accused had asked him about the illicit intimacy. Therefore, from the evidence available on record, in this case, it is clear that the accused had been firmly believing that there was illicit intimacy between his wife and the deceased herein and PW.4. This has motivated him to resort to violence. Yet, another factor which has to be taken into consideration for having come to the above conclusion is regarding the plea that had been put forward by the accused at a belated stage, namely, that his testicles were squeezed and that had made him to resort to violence in order to have his life saved. In other words, the theory that is put forward on behalf of the accused is that out of necessity the deceased had been dealt with violently by the accused.

The right of private defence must be distinguished from the doctrine of necessity. Though the right of self-defence arises out of the necessity for self preservation, still the latter is wider, and there cannot be a right of self-defence in all cases of necessity. In the instant case, there is absolutely no evidence on record to uphold the case of the accused that he was manhandled, in that, his testicles were squeezed by the deceased. This imagination that had emanated from the accused at a belated stage deserves to be rejected and is hereby rejected. But yet, in order to appreciate the defence that had been put forward by the accused appellant herein, this Court is duty bound to observe the above principle regarding the necessity and self-defence as could be gathered from the ratio decide of the decisions so far rendered by the Supreme Court of India.

The proverb "necessity has no law" does not find a place in modern jurisprudence. Motive of self-preservation is inherent in every man but in order to achieve that end when it militates against the right of another person it is considered as criminal unless such act is declared to be justified by law. Society places a check on the struggle for existence where the motive of self-preservation would dictate a definite aggression on an innocent person. Lord Bacon in his maxim necessities induct privilequim quaod jura privata says that necessity induces or gives a privilege as to private rights. The privileges given to one acting in the exercise of private right are said to arise out of the necessity for self-preservation; for obedience; and the necessity resulting from the act of God. Of the necessity for self-preservation, justifiable homicide, or the killing of another in self defence, or in defence of master or servant, parent or child, husband or wife, is an example; and this applies to property as well as to the person; as to defend the person or property against thieves. (vide Wharton's Legal Maxims, 49). And in this connection he asserts that a man who steals to satisfy his hunger is not guilty of larceny, and if two ship-wrecked persons get on the same plank but finding it not able to save them both, one of them pushes him down from it whereby he is drowned, this is described by Lord Bacon and others to be justified, but such is not the law of England (vide: Wharton Law Lexicon 482, 4th edn.). This was the subject-matter dealt with in the famous English case Reg v. Dudley, 14 Q.B.D. 273 and the Judges who decided that the former illustration was good law and said that although there were many conceivable state of things in which the latter may possibly be true, it could not support the broad proposition, that a man could save his own life by killing an innocent person and an unoffending neighbor. The facts of the case were these: The prisoners D and S, seaman, and the deceased, a boy between 17 and 18, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1000 miles from land: that on the 18th day, when they had been 17 days without food and 5 days without water, D proposed to S, that lots should be cast as to who should be put to death to save the rest, and they afterwards thought that it would be better to kill the boy that their lives should be saved; that on 20th day, D, with the assent of S, killed the boy and both D and S fed on his flesh four days; that at the time of the act there was no sail in sight nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy, or one of themselves, they would die of starvation, that if the man had not have fed upon the body of the boy, they would probably not have survived to be picked up and rescued but would within the four days have died of famine and that the boy, being in a much weaker condition, was likely to have died before them. Upon these facts, the jury found a special verdict and the Court found the offence to be technically murder.

The only instance in which the right is declared to exist against unoffending persons is given in S. 106 of the I.P.C, which reads as follows-

Right of private defence against a deadly assault when there is risk of harm to innocent person:-If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the ruining of that risk.

In the instant case, there was no extreme necessity at all arising under the circumstances which can be said as justifying the action of the accused. We have already seen that there was no injury or swelling in the testicles of the accused due to the alleged squeezing of the testicles by the deceased. Under these circumstances, the plea of self-defence put forth by him cannot be upheld in view of the total absence of evidence to support the said contention. Let us once again come back to the plea that had been put forward regarding the alleged illicit intimacy said to have been developed in between P.W.4, Chittibabu and the deceased, Annabhushanam. It is on that alleged relationship, it is averred that the accused had flung out many advises to the deceased and that in spite of the same, she did not turn a new leaf in her life and that is the reason why the occurrence had taken place. Another occurrence said to have taken place is on that evening at about 5 p.m. when the accused had been to the mill and demanded RS. 10 from the deceased and that at that time, the deceased refused to give the said amount that was required by the accused. But, within a short time when P.W.4,Chittibabu came there and asked her she obliged him by giving immediately the said RS. 10, and therefore, this had provoked the accused to give a violent slap on the cheek of the deceased and as such this in turn can be considered as a circumstance which would give the benefit under Exception 1 to S. 3C0. I P.C. In other words, it is submitted that the above occurrence had been responsible for grave and sudden provocation sparking out at the instance of the deceased and the accused acting in a violent manner. Even with respect to these aspects of the case, we have to observe that there is no material available on record by way of evidence to uphold this contention so as to confer the benefits of Exception I to S. 300, I.P.C. on the accused. There is no provocation at all emanating from the deceased so as to make the accused to lose his self-control and much less resort to violence on the person of the deceased to the extent of taking away her life by inflicting fatal injuries with a sharp edged M.O. 1 knife, even if it be admitted that M.O.I was at his reach and that it came handy for him to use the same as a weapon of offence.

Exception 1 to S. 3C0, I.P.C. reads that culpable homicide is not murder if the offender, while deprived of the power of self-control by grave and sudden provocation and causes death of the person who gave the provocation or causes the death of any other person by mistake or accident. This Exception is subject to the following ;

that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

That the provocation is not given by anything done in the lawful exercise of the right of private defense.

S. 300, I.P.C. reads that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

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[Discussion relating to evidence omitted.

It is relevant in this connection to note that the evidence of a single eye witness cannot be rejected as unreliable especially when it has got corroboration of evidence emanating from the medical officer who had conducted autopsy in this case as well as from the evidence that had emanated from the person who had actually come to the place of occurrence soon after the infliction of stab injuries on the deceased.

In this regard, the decision in Ananda Tangala v. State 1977 Cri. L.J. 1170, is worth mentioning. In that decision, it was held that when a case is dependent on the testimony of a single witness proving by circumstantial evidence, it is very much necessary to scan and scrutinise the testimony. But in the instant case, it is the eye witness account, namely, that of P.W. 1 regarding the actual occurrence of stabbing that is being tested as the touch stone. Although it is not the principle of law that a conviction cannot be sustained on the testimony of a single witness, yet it is a well known principle of criminal jurisprudence that, before convicting a person on the sole testimony of witness, the Court must have implicit faith and reliance on its testimony. Where the single witness who was not an eye witness was interested, hostile to the accused, unreliable, not firm and discrepant, the benefit of doubt should be given to the accused and he should be acquitted. But in the instant case before us, we have got a very clear picture of the actual occurrence, described in a succinct and clear manner by the eye-witness, P.W. 1, nothing has been elicited to suspect or discredit the evidence of the eye-witness. Who were all (sic) present at the time of the occurrence cannot also be disputed. The evidence of the witness to the occurrence who actually was present at the time of the occurrence which is available on record also discloses that the occurrence ought to have taken place in the manner described by P.W. 1. In this regard, two other decisions may also be usefully referred to ; Sipurn Papadi v. State of Maharashtra 1975 M.L.J. Cri. 417, as well as the decision in Poorchand v. State of Rajasthan 1977 Cri. L.J. 207. These decisions as well as the other decisions on the point, namely, the reliability or otherwise of a single witness who spoke about the main event in an occurrence, can be usefully be summarized as follows-Even if the case against the accused hangs on the evidence of a single eye-witness, it may be enough to sustain the conviction given on the sterling testimony of a competent honest man, although as a rule of prudence the court call, for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.

Whenever a case against an accused person hinges to a very large extent on the testimony of a single witness, the question arises whether his evidence can be considered as wholly unacceptable as the trial Court denounced it, or was it so flawless that it can be safely accepted as the last word as to the identity and connection of the appellant with the commission of the murder in question? We are of the opinion that the evidence of a single witness can neither be considered as wholly unacceptable nor wholly impeachable ; but has to be considered in the light of certain features in that particular case which should put the Court in its guard not to rely on his bare word, without some assurance from independent sources and then come to a conclusion whether the testimony of that single eye-witness can be accepted or rejected. If there are some features noticed in the evidence available on record, both oral and documentary, which project their shadow on a part of the evidence unfurled through a single witness, it is not prudent to accept his bare word of mouth, without independent confirmation as to the identity and connection of the accused with the crime in question.

In the instant case before us, though (sic) it is the only eye-witness that speaks about the occurrence, it is seen that when her evidence is viewed with the above principles of law, we have to find that the evidence of P.W. 1 is acceptable especially in the light of the presence of other witnesses to corroborate her testimony and who were also actually present immediately after the occurrence had taken place. Above all, as already stated, the pedicel evidence available in the case is certainly a corroborative factor which contributes much for upholding the credence of the evidence of P.W.I.

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P.W.7, the Medical Officer who was present there at the time of the recording of the dying declaration has also certified to the effect that the deceased was conscious at the time when the dying declaration was recorded by P.W. 6. The said dying declaration is Ex. P7. In that dying declaration P.W. 7 has appended her certificate to the effect that the injured was conscious at the time the dying declaration was recorded from her by P.W. 6. The said certificate a pended by P.W. 7 in Ex. P7 is Ex. P8. In the said dying declaration it is written, as the version given by the deceased, that it was the accused who had stabbed her on the ground that the accused had suspected her fidelity towards him and also had entertained a feeling in his mind, and that she was having illicit intimacy with some other person. The deceased had also stated in her judicial dying declaration that in the quarrel that had ensued on the said basis between herself and the accused, the accused had resorted to violence and stabbed her.

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[Discussion relating to facts omitted-Ed.]

It is also relevant in this connection to note that, as already discussed and pointed out the accused had admitted that he was present at the place of occurrence during the time of the occurrence. What is more, he has also accepted the case of the prosecution that it was he who had stabbed his wife, the deceased herein. The accused would also state that the occurrence had taken place in the manner described by him in his confessional statement before the learned Judicial Second Class Magistrate. In other words, the case of the accused, as put forward by him in his judicial confessional statement is that he demanded money from his wife and that she refused to give money, but she had given within a short time on that day itself money to her paramour, P.W. 4 and that as the accused was enraged due to the same, he had slapped on the cheek of the deceased at that time and that the deceased caught hold of his testicles and squeezed and as he was not able to bear the pain he took a blade available then handy, and with, the same stabbed the deceased. It is relevant in this connection to note that P.W.4 has specifically denied the allegation that he had gone to the deceased and received money from her at the place of occurrence on that day. P.W.I has also denied the case of the accused as false in that the occurrence had not taken place in the manner alleged by the accused in his judicial confessional statement. As already stated, there is absolutely no necessity for P.W. 1 to depose falsely against the accused and implicate him in this case. The investigating officer had taken all precautions, in that he even sent the accused for treatment and report relating to the injury that was found on the person of the accused at the time of arrest. The medical certificate relating to wounds that were present on the person of the accused was also obtained by the investigating officer in this regard. It is also in medical evidence that when the assailant used a knife for stabbing another and did stab, it is quite possible that injuries as found in the hands of the accused could have been sustained by the assailant during the time of the occurrence. P.W.5 has stated in his cross-examination that it is quite possible that the injury on the person of the accused could have been caused with a glass piece. The accused had inflicted more than one stab wound on the deceased. So, it is quite possible that the deceased might have raised her hands in order to protect herself from the wounds that were being inflicted on her at the hands of the assailant and it is quite possible that during the time of the scuffle that might have taken place just prior to the infliction of the successful fatal wounds on the deceased by the accused that the glass bangles worn by the deceased got broken in that transaction and that the said glass pieces of bangles could have been responsible for causing the injuries on the person of the accused. It is not also possible for us to uphold the case of the accused merely on the ground of the presence of the injuries on the accused. We are unable to uphold the case put forward by the accused regarding the occurrence. We have absolutely no hesitation to hold that the case put forward by the accused as a defence, cannot be uphold so as to (sic) entitle him either to the benefits of the right of self-defence or the benefits of Exception 1 to S. 300, I.P.C. If the occurrence had taken place in the manner described by the accused, there was absolutely no necessity for the accused absconding himself. He could have well surrendered soon after the occurrence and made a clean breast of the occurrence as he was the author and architect of the occurrence. The accused had not done so. The occurrence had taken place at about 5 p.m. on 12th December, 1978. The accused had given the confessional statement before the learned Judicial Second Class Magistrate only on 28th December, 1978. It is only in the said confessional statement that was given 15 days subsequent to the date of occurrence, the accused has come out with a case that his testicles were squeezed by the deceased and that due to unbearable nature of pain that had resulted due to the same, he had resorted to violence in order to save himself. We have already streamlined the principles of self defence and its applicability especially when the same is coupled with the doctrine of necessity. If really the testicles of the accused were squeezed, of course, there is the possibility of the accused entertaining a feeling that there was imminent danger for his life. We have no diagonally opposite view to express that if that was the situation, the accused had every right to exercise the right of self-defence or protecting his life by stabbing the person who had thus resorted to squeeze his testicles. There is absolutely no evidence available on record to uphold the contention of the accused that the deceased had squeezed his testicles. We are unable to believe the version of the accused regarding the same at a belated stage. P.W. 1 has specifically stated in her evidence that the deceased did not squeeze the testicles of the accused. Therefore, the occurrence in this case had taken place only in the manner described by P.W.I in this case. The occurrence did not take place in the manner suggested by the accused. We have no hesitation to hold that the offence committed by the accused is murder and murder alone, punishable under S. 302,I.P.C. Therefore, we confirm the conviction of the accused under S. 302, I.P.C. while holding that he was responsible for the infliction of the fatal injuries on the deceased with M.O.4 knife. We also confirm the sentence of imprisonment for life imposed on the accused-appellant herein under S. 302 , I.P.C. by the trial court. There is no merit in the appeal. The appeal is dismissed.

Before parting with this case, we like to place on record, the valuable assistance rendered by Mr. T. Munirathna Naidu, the counsel appearing for the appellant who had not failed to spare his services in taking us through the entire evidence in this case, both oral and documentary and also in adducing interesting arguments on behalf of the accused appellant herein, which we have adequately incorporated in our judgment discussed supra.