Nagarajan vs State

Janarthanam, J.—Accused, aggrieved by his conviction and sentence in S.C. No. 146 of 1985 on the file of the Sessions Judge, Coimbatore, has come forward with these appeals.

The succinct facts are:

(a) Kannammal alias Annakkili (since deceased) hails from the village going by the name Alankombu situate within the jurisdiction limits of Mettupalayam police station. P.W.1 Rengaraj and one Meenakshi are her parents, who are weavers by profession. P.W.2 Subbammal is a neighbor of P.W.1''s family. She had been employed as a cook in the Noon Meal Centre attached to the Union Middle School located in the village. P.W.3 Kandasamy is a teacher in the said school. He is also living in the close vicinity of P.W.l''s house.

(b) Some eight years prior to the occurrence which had happened on 13.3.1985, the deceased was stated to have been given in marriage to one Mani a resident of Vellalar in Coimbatore, profitably employed in Sarada Mills. The spouses lived happily for about seven years and two off springs came into existence as a result of the said lawful wedlock. One year prior to the occurrence, want of cordial atmosphere between the spouses came into existence for some reason or other. The net result was that the deceased was unable to live happily with her husband at Coimbatore, and she frequently departed from the matrimonial abode and took shelter in her parents'' house. Her husband on such occasions, it is said, used to come to her parents'' house, pacify her and take her back. This had happened more than one occasion. However, some six months prior to the occurrence, the difference of opinion between them came to such an ecstatic height as was not possible to bridge the difference of opinion. Consequently, the deceased, it is said, once and for all had departed from the matrimonial abode and took shelter in her parents'' house.

(c) During her stay there, it is said, the accused, namely Nagarajan, who is none else than the brother of her husband Mani, used to visit her house at Alankombu and during the course of such visits, it is said, an illicit relationship came into existence. Such relationship, it is further said, came to the knowledge of P.W.1. Despite that, neither P.W.1 nor his wife Meenakshi, ever raised any sort of an objection for the continuance of such relationship. The deceased and the accused were allowed to have a free life, in the sense of both of them leading a life of husband and wife. Even P.W.1 agreed to conduct their marriage by way of registration and advised them to have it performed on an auspicious day. Some three days prior to the occurrence, the accused, it is said, came to the house of the deceased to Alankombu and was having a happy stay with her. The deceased was stated to have given him a blitheful company and even accompanied him for witnessing a film.

(d) On the morning of the day of the occurrence, P.W.1 as well as his wife Meenakshi, went out of the house in connection with their avocation. P.W.l, it is said, returned to the house at about 4:30 p.m., while his wife did not at all return. Similarly P.W.2 feeling not well was stated to have obtained permission from the Headmistress and returned home even at 4 p.m. and took her bed in her house. P.W.1 obviously feeling the urge of chewing betel and nut, went to the nearby shop of Lakshmanan Chettiar, leaving in the house the deceased and the accused. Sometime thereafter, there was a hue and cry emerging from the house. The immediate neighbour P.W.2 attracted by the hue and cry and daunted by curiosity, came out of her house, entered into the house of P.W.1 and was stated to have seen the accused brutally cutting the deceased by means of M.O.1 aruval on her neck and head. P.W.1, in the meantime, was stated to have made return march from the shop and in such process, he was stated to have seen the accused running out of the house with blood stained M.O.1 aruval. The accused, it is said, ran with M.O.1 aruval. P.W.1 who is in dismay, found his daughter, the deceased, lying dead in a pool of blood inside the house. He then went to Mettupalayam police station.

(e) P.W.7 was the Sub-Inspector of Police, Mettupalayam police station. P.W.1 reached the said police station at 5:30 p.m. and gave Ex.P-1 information to P.W.7, who in turn was stated to have registered a case in Crime No. ,58 of 1985 for an alleged offence u/s 302 I.P.C. Ex.P-13 is the printed First Information Report. He prepared express reports and sent the same to the concerned officials. He immediately went to the scene of occurrence.

(f) P.W.9 was the then Inspector of Police. On receipt of message at 6 p.m. while he was at Coimbatore, he immediately left for Mettupalayam police station, reached there at 7 p.m., obtained copy of the First Information Report from the police constable 1626 and reached the scene village at 7:30 p.m. He found P.W.7 in the scene and he took up further investigation from him. He inspected the scene place between 7:35 and 8:45 p.m. and prepared the observation mahazar Ex. P.19. Between 8:15 and 9 P.M. he prepared a rough sketch of the scene Ex.P-20. Between 9 p.m. and 12:30 a.m. he held inquest over the body of the deceased and Ex.P-21 is the inquest report. During inquest, he examined P. Ws. 1 and 2 recorded their statements. He recovered from the scene M.O.9 blood stained earth, M.O.10 sample earth, M.O.11 blood stained mat, M.O.12 blood stained pillow and M.O.13, scrubbed portion of the mud wall stained with blood under Ex.P-22 mahazar. Exs.P-19 and P-22 were attested by one Manoharan and one Lingaiah.

After inquest, he handed over the body of the deceased to the police constable P.W.5 along with Ex.P-6 requisition for the purpose of autopsy. Thereafter, he got himself engaged in search of the accused.

(g) P.W.3 along with his school teacher by name Subbayan examined as D.W.1, at 8:30 a.m. on 14.3.1985, was stated to have made a march towards the school. On the way, it is said, the accused met P.W.3 and stated to have given an extra-judicial confession to him as to his murdering the deceased. Immediately thereafter, P.W.3 asking the accused to stay by the side of the road, sent Ex.P-2 letter to P.W.9 through D.W.1.

(h) While P.W.9 was in search of the accused, at about 8:30 a.m. on 14.3.1985 at Sirumugai, he received Ex.P-2 letter from P.W.3 sent through D.W.1 P.W.9 alone with D.W.1 went in a van to Alankombu and met P.W.3, who in turn produced the accused before him. The time was then 8:45 a.m. P.W.9 was stated to have arrested the accused, who was said to have given a voluntary confession statement u/s 27 of the Indian Evidence Act in the presence of P.W.3. Ex.P3 is the admissible portion of the above confession statement. Pursuant to the confession, the accused was stated to have taken P.W.3 and P.W.9 to the back side Vinayagar temple at Alankombu and took out M.Os. 1 to 3, aruval, blood stained white banian and blood stained cotton lungi respectively from the bush there and handed over the same to P.W.9 who in turn seized them under Ex.P-4 mahazar. The accused was then stated to have taken them to the scene of occurrence and produced M.O.4 stick which was seized under Ex.P-5 mahazar. The tune was then 10 a.m. Exs.P-3 to P-5 were attested by P.W.3 and another. P.W.9 took the accused and the seized material objects to the police station and thereafter he sent the accused to the court for remanding him to judicial custody on the same day.

(i) P.W.4 Dr. Kalavathy, was the Assistant Surgeon attached to the Government Hospital at Mettupalayam. On receipt of Ex.P-6 requisition, she commenced the autopsy over the body of the deceased at 4:30 p.m. Ex.P-7 is the postmortem certificate. She would opine that the injuries found on the body of the deceased could have been caused with a weapon like M.O.1. She would further opine that the injuries 1 and 2 described in Ex.P-7 are fatal.

(j) After the autopsy was over, the Constable P.W.5 seized from the body of the deceased M.Os. 5 to 8, blood stained rose coloured blouse, blood stained white bra, blood stained green saree and blood stained light blue inskirt respectively and produced the same at the police station, which were seized under Ex.P-8, Form 95.

(k) The accused was in a mood to give a concession statement before Court. P.W.9, therefore, sent Ex.P-14 requisition to Court for the purpose of recording his confession statement. P.W.8 was the Judicial II Class Magistrate, Coimbatore. On receipt of Ex.P-14 requisition from P.W.9, he sents Ex.P-15 to Mettupalayam sub-Jail to cause the production of the accused before him on 19.3.1985 at 3 p.m. The accused was accordingly produced. After observing all the formalities associated with the recording of confession statement and after administering all the usual warnings, he gave him time for reflection and he was caused to be produced on the next day 20.3.1985. Ex.P-16 is the first day's proceedings. On 20.3.1985 at 3:30 p.m. the accused had been produced before him. Even on that day, P.W.8 observed all the formalities inclusive of the administration of warnings and since the accused exhibited voluntariness to make a confession, he started recording the same. Ex.P-17 is the confession statement. He also appended Ex.P-18, certificate to the said confession.

(l) P.W.9 sent Ex.P-9 requisition for sending the incriminating articles to the chemical examiner for the purpose of chemical examination.

(m) P W.6 was the Head clerk attached to the Judicial II Class Magistrate, Mettupalayam. On receipt of Ex.P-9 requisition, he sent the incriminating articles to the Chemical Examiner as per the direction of the learned Magistrate and Ex.P-10 is the office copy of the letter. Exs.P-11 and P-12 are the reports of the Chemical Examiner and Serologist.

(n) P.W.9, in the mean time, was transferred. P.W.10 succeeded him and after supervising the earlier investigation, filed the final report before the Judicial II Class Magistrate, Mettupalayam on 19.8.1985 for the offence u/s 302 I.P.C. appeared to have been committed by the accused.

Upon committal, the learned Sessions Judge, Coimbatore, framed a charge against the accused for the offence u/s 302, I.P.C. The accused when questioned as respects to the charge so framed, denied the same and claimed to be tried.

The prosecution in its bid to prove the charge framed against the accused, examined P. Ws. 1 to 10, filed Exs.P-1 to P-22 and market M.Os. 1 to 13.

The accused when examined u/s 313, Code of Criminal Procedure as respects to the incriminating circumstances appearing in evidence against him, denied his complicity in the crime. He would also examine on his side D.W.1 Subbayyan and marked through him Ex.D-1, the attendance register of the said school so as to point out that his extra-judicial confession to P.W.3, his arrest, the confession u/s 27 of the Indian Evidence Act to P.W.9 and the consequential recovery pursuant to the confession so given, could not have been happened in the manner as projected by the prosecution.

The learned Sessions Judge on perusal of the materials available on record and after hearing the arguments of the learned Counsel for the defence as well as the learned Public Prosecutor, found the accused guilty u/s 302 I.P.C., convicted him thereunder and sentenced him imprisonment for life. Hence, the present two appeals.

Learned Counsel appearing on behalf of the Appellant-accused would strenuously contend that the materials available on record, if properly scanned in broad spectrum analysis, would throw considerable doubt as to the involvement of the accused in the crime of murder of the deceased and therefore, he would say, the accused is entitled to acquittal by his having been given the benefit of reasonable doubt in the facts and circumstances of the case.

Learned Government Advocate, while repelling such a submission, would submit that a careful analysis of the evidence available on record would point out that it was the hand of the accused that was responsible for causing injuries on the deceased leading to her the death. He would further fairly submit that such an act of the accused, in the facts and circumstances of the case, by no stretch of imagination, could be stated to have been done with any of the mens rea prescribed in clauses 1 to 4 of S. 300 I.P.C. and if at all, the act of his could come under Explanation 1 of S. 300 I.P.C., punishable u/s 304 Part I I.P.C.

We may make an endeavour to find out the tenability or otherwise of the submissions of either counsel in the light of the facts and circumstances of the case.

There is no pale of controversy that the deceased after her blissful married life with her husband Mani for a period of seven years, once and for all left the matrimonial abode and started taking shelter in her parents'' house at Alankombu some six months prior to the occurrence. It is also not disputed that during such stay of the deceased in her parents'' house, the accused developed illicit intimacy with her and the illicit intimacy so developed got nurtured to such an extent of both deciding to marry. The parents of the deceased appeared to have given their blessings for such a marriage and this we are able to see from the averments made in the earliest information Ex.P-1. No doubt, P.W.1 the author of Ex.P-1 changed his version in Court that he did not at all accede to both the deceased and the accused getting married. Such an evidence of his was not only contrary to the earlier version as projected in Ex.P-1 as well as contrary to his earliest statement made before the police during the course of investigation. This aspect had been clearly proved in the manner allowed by law utilising the provisions of S. 145 of the Indian Evidence Act by the defence. In such state of affairs, it cannot be stated that there were no blessings emerging from the parents of the deceased for their marriage. It is also available on record that three days prior to the occurrence, the accused came to the house of the deceased and had a happy time with her. Both of them were stated to be freely living without any objection from any quarter therefor and the deceased was also stated to have given a blithe company to the accused in her accompanying him to a cinema house. The occurrence was stated to have happened at about 4:30 p.m. on the day of the occurrence. The evidence available on record pointed out that the mother of the deceased namely Meenakshi who went for work early in the morning did not at all return upto the time of the occurrence. The father of the diseased P.W.1 alone was stated to have returned at about 4 or 4:30 p.m. At that time the deceased and the accused were available in the house. P.W.1 feeling thirst of chewing betel and nut was stated to have gone to a nearby shop of one Lakshmanan Chettiar. At that juncture, a hue and cry emerged from the house of the deceased and attracted by such cries, P.W.2 a neighbour was stated to have rushed out of her house and had the tortuitous opportunity of witnessing the occurrence by standing in the very threshold of the house of the deceased. She would depose as to the conversations that were going on between the accused and the deceased. It transpires from her evidence that the accused appeared to have asked the deceased to prepare coffee as "(sic)". On hearing the same, the deceased virtually refused to prepare coffee and appeared to have stated as "(sic)". Thereafter, the accused was stated to have proclaimed "(sic)". Immediately the deceased appeared to have remonstrated as "(sic)". Thereafter the wordy quarrel came to an ecstatic height and during such quarrel, P.W.2 would say, that the accused wielding M.O.1 aruval inflicted certain cuts on the neck and head of the deceased. As a result of such cuts, the deceased was stated to have breathed her last within a few minutes thereafter.

Learned Counsel for the accused would attack the evidence of P.W.2 by stating that she could not have had any opportunity to have witnessed the occurrence. The reason he would advert for such a theory was that her house though situate near the house of the deceased, was facing west while the house of the deceased was facing north. This apart, he would say that from her evidence it is clear that if she had remained in her house and had seen the occurrence, it was not possible for her to witness anything transpiring within the house of the deceased. Further, he would say, as revealed by the observation mahazar Ex.P-19, there is a parapet wall to a height of 4 feet in front of the house of the deceased. It is not as if P.W.2 had witnessed the occurrence by being in her house. Her consistent version was that she aroused by curiosity, went out of her house and saw the occurrence by standing at the threshold of the house of the deceased. No doubt true it is, this aspect of the matter had not been stated in miticulous details while she was examined during the course of examination. The non-advertence of such minute details is of no consequence, in the facts and circumstance of the case. It is but natural for a witness like P.W.2 residing in the close vicinity of the deceased hearing shrieks of cries from the house of a neighbour having rushed out of the house and seen the occurrence by going into the house of the deceased. If such an occurrence had happened in a posh atmosphere, things would have been different. The admitted fact is that the deceased and P.W.2 are hailing from lower middle class and the behaviour of such class of people is quite exceptionally different from the people emerging from the so called places having posh atmosphere. We rather feel that if a person like P.W.2 had stated that on hearing the hue and cry that emerged from the house of the deceased, she rushed out of her house and had seen the incident, it is nothing but a natural course of conduct expected of from such a lady, and there is nothing unusual or unnatural in her behaviour.

There is an extra-judicial confession stated to have been given by the accused to P.W.3 on the next day of the occurrence. Learned Counsel for the defence has submitted that the so-called extra-judicial confession is rather stage managed and in the facts and circumstances of the case, no weight and credibility could be attached to such testimony. He would further say that P.W.3 is quite a stranger to the accused and in such circumstances, it could not be expected that the accused could go to the extent of unburdening himself in revealing the incident that had happened, in the sense of his murdering the deceased the previous day. He would further point out that since P.W.3 has signed the attendance register Ex.D-1 along with D.W.1 as if both of them attended the school at 9:30 a.m., the time at which the school commenced, it goes without saying that the extra-judicial confession of the accused, his arrest, his confession u/s 27 of the Indian Evidence Act leading to the recovery of material objects could not have happened in the manner as projected by the prosecution, in as much as all those operations went beyond the school hours. No doubt, the argument of the learned Counsel on this aspect of the matter looks credible at first sight in the circumstances of the case. If we delve deep into the matter, we rather feel the utter untenability taking shelter under it and we are unable to affix our seal of approval to this sort of argument. It was elicited during the course of cross examination of D.W.1 that on the date of the occurrence, the Headmistress of the school by name Vasanth Parijatham was on (sic)ave and P.W.3 was in charge Headmaster of the School. He would further state that if any teacher was engaged indirectly some work connected with the common cause of the public, it is but usual for such a teacher to sign the attendance register though he was not physically present at the school. Taking the fact that P.W.3 was engaged in the common cause of bringing the offender within the clutches of law and also the fact that he was the in-charge Headmaster on the day in question, it is but natural for a person like him as well as D.W.1 Subbayyan to have signed the attendance register as if they had attended the school in time, though they were not so physically present. These things apart, the school is situate in the close vicinity of the place where the accused was apprehended. It is also argued that P.W.3 is a stranger to the accused. The evidence available on record does point out in a clinching fashion that P.W.3 is living in the vicinity of the house of the deceased. It is not as if the accused was quite a stranger to the vicinity or the locality where the deceased, P. Ws.2 and 3 admittedly reside. In the sequence of frequent visits by the accused to the house of the deceased, there is every possibility for him to have come into contact with P.W.3. It is only in such a situation, perhaps the accused could have felt to unburden himself when he happened to meet P.W.3 on the next day of the occurrence, obviously feeling that P.W.3 would come to his rescue in the sense of avoiding any torture at the hands of the police. In the rustic atmosphere, it is but natural that the teachers employed in the village school are taking part in the activities of the villagers and coming into contact with them in the concourse of dealings with each other. Therefore, there is nothing unnatural or inherently improbable in giving extra-judicial confession by the accused to a person like P.W.3. Further, M.O.1 aruval discovered pursuant to the confession statement of the accused also contained the same blood as that of the group of the deceased as revealed by the report of the serologist. Thus, we feel the insignia of the truth in making not only the extra-judicial confession, but also a confession u/s 27 of the Indian Evidence Act.

These things apart, there is also judicial confession Ex.P-17 said to have been given by the accused to the Judicial II Class Magistrate P.W.8. The Magistrate, as revealed by the first day's proceedings in Ex.P-16, had taken all the precautions necessary besides administering all the warnings to the accused. Despite all these things, the accused exhibited voluntariness in giving a confession statement on the first day itself. The Magistrate did not at all record the confession on the first day itself. In fact, he gave him sufficient time for refection and directed the accused to be produced on the next day. Even on the next day after his production, he took all the necessary precautions and also repeated the warnings as it had been done by him on the previous day. He got satisfied that the accused was in a free mood to give a confession. Then only he recorded the confession statement. As already pointed out, he has also appended his certificate under Ex.P-18 to the effect that the confession recorded by him is the resultant product of voluntariness. No doubt true it is that the confession the accused had made had been retracted during the course of trial and he would say during his statement u/s 313, Code of Criminal Procedure that he had given the confession statement to P.W.8 as tutored by the police. We have to bear in mind at this juncture that his retraction emerged from the accused on 29.1.1986, the day of his having been questioned u/s 313 Code of Criminal Procedure a long lapse of nearly 10 months from 20.3.1985, the day on which the confession had been recorded. In such a situation, we are of the view that no importance can be attached to such retraction, when especially there are no other circumstances available on record to show that there could have been possibilities of the confession statement having been procured at the instance of the investigating agency.

Once we are satisfied that the confession had been voluntarily made, the next question that calls for consideration is as to whether it is true. The confession statement of the accused consists of two facts. First fact is relatable to circumstances which impelled him to resort to violence directed towards the deceased. The other fact is relatable to the circumstances causing concern and peril to his free life which made him to resort to cut the deceased obviously as a measure of self defence, pure and simple. The first fact is more or less is in tune with the versions as projected by P.W.2. The only difference is that P.W.2 did not state that during the course of the wordy altercation that ensued between the deceased and the accused, hurling him an accusation "(sic)". The sequence of the second fact bristles thus: During the course of wordy altercation, the accused was stated to have hit the deceased on her head by his hand. The deceased on her part was stated to have snatched a fuel stick and beaten the accused on his legs twice. The accused was stated to have disarmed the deceased, in the sense of seizing the stick she was having in her hand and throwing it away. The deceased immediately was stated to have wielded an aruval by taking up the same which was lying nearby and gave a cut on the neck of the accused. The accused was stated to have snatched a fuel stick from there and gave a hit on the person of the deceased. The deceased, after the receipt of such a hit, was stated to have fallen down unconscious. The accused thereupon was stated to have seized the aruval, which the deceased was having in her hand and inflicted four or five cuts on her neck and this act was stated to have been done as a measure of self-defence.

The sequence of events attributable to the second fact in our view is rather inherently improbable, in the circumstances of the case. There is no material on record pointing out the factum of any sort of an injury either on the leg or on the neck of the accused. If really the deceased had beaten on his legs by means of a fuel stick, besides cutting him on his neck with aruval, there is every possibility of the accused sustaining definitely a cut injury on his neck. Though the possibility of his sustaining a bleeding injury on the legs could not have been there, inasmuch as the attack on his legs was stated to have been made by means of a fuel stick, atleast some sort of contusion or abrasion could have been traceable on the portion of the leg of the accused where beating was stated to have been given by the deceased. If the deceased had fallen on the ground unconscious, as claimed by the accused subsequent to the receipt of beating he had given, there is no question any imminent apprehension of any danger to his life at the hands of the deceased and in such a situation, there was no impelling need for the accused to resort to violence being directed towards the deceased. Further the moment he seized the weapon, namely aruval, from the hand of the deceased, the eminence of any threat to his life ceased and therefore, from then on words ,there was no need for him to resort to violence in the sense of giving cuts to the deceased which resulted in her death. This sort of narration or sequence of events relatable to the second fact is, in the circumstances of the case, we feel, the embellishment resorted to have been made by the accused, obviously in a bid to go scot-free.

The two facts which form part of the confession statement, we feel, are distinct and separate from the other. The question in such a situation would be as to whether it is legitimately possible to place reliance upon one fact which is inculpatory and exclude the other fact which is exculpatory. The position of law on this aspect of the matter is rather well settled by the decision the Vijendrajit Ayodhya Prasad Goel Vs. State of Bombay, The short facts of that case may be referred to in an incisive manner for grasping the principles laid down therein. The accused therein was charged u/s 66(b) read with Section 81 of the Bombay Prohibition Act, for possessing in his godown rectified spirit without permit. The accused did not challenge the prosecution case that he was in charge of the godown and admitted that fact in his statement. He, however, denied that the spirit was found from the godown and asserted that it was found from outside the godown. The trial Magistrate accepted the statement of the accused in so far as it admitted that the godown was in his possession, but in view of the fact that it had been clearly established that the spirit had been recovered from that godown, he rejected that part of the statement in which he denied that it had been so recovered. He held that it had been proved that the accused had in his possession rectified spirit without a permit and convicted the accused as charged. On appeal, the High Court confirmed the conviction and the matter had been agitated further before the Apex Court. The Apex Court maintained the order of conviction by holding that the use of the statement of the accused made by the Courts below was correct and according to law. What was expressed in such context may be referred to here, which is in the following terms:

The Magistrate was in this situation fully justified in referring to the statement of the accused u/s 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accused's statement and excluded the exculpatory part does not seem to be correct. The statement u/s 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no intimate connection with the statement concerning the possession of the godown.

The facts of this case, we are of the view, cover two different and independent facts and thus, it is legitimately open to accept the statement so far as it relates to one fact which is proved by other evidence available on record beyond any shadow of doubt by the prosecution and reject it as to another fact, which is inherently improbable, in the circumstances of the case. For the reasons as given above, we are not placing any reliance on the second fact relatable to the confession statement of the accused given before the Magistrate.

So far as the first fact as relatable to the confession of the accused is concerned as already indicated, it is not in any way different from the versions as projected by the prosecution through the medium of P.W.2 except with the little difference of the deceased hurling an unparliamentary language directed towards him as "(sic)". The question is whether hurling of such an accusation by the deceased in the circumstances of the case could have happened. P.W.2 as stated earlier, referred to the wordy altercation that ensued between the deceased and the accused and only during the course of such altercations, the accused was stated to have resorted to violence directed towards the deceased. At this juncture, pertinent it is to note that till upto the time of occurrence, both the deceased and the accused were stated to be in cordial terms without in the least any sort of bickerings between them. At the risk of repetition, we may point out to bring home the point that for the last three days till upto the time of occurrence, both the deceased and the accused were stated to be deriving an ecstatic pleasure by living in such a way as husband and wife even going to cinema. In such a situation, something sudden and quite unexpected, kindling the sinews and nerves of the accused could have happened, which resulted in the occurrence leading to the death of the accused. The evidence of P.W.2 is in a clinching fashion shows that the deceased openly remonstrated the accused by calling him as "(sic)", which is not having any sort of an equivalent in English language. The words "(sic)" are peculiar to the Tamil language which are used in direct distinction to the words "(sic)". The words (sic) are used to denote utmost courtesy and respect, to the person to whom those words are addressed. On the other hand, the words "(sic)" are used in a most despising and disrespectful fashion to the person to whom those words are addressed. In the instant case, the accused had been addressed by the deceased as "(sic)". It is not as if the accused, on the date of occurrence was placed in the position of a stranger to the deceased and the admitted fact was, as already referred to the deceased and the accused had been allowed to live as husband and wife and their marriage was to be shortly celebrated on an auspicious day. This apart, the deceased was stated to have proclaimed that in case in due difference to the words of the accused, she accompanied him to his place, there is every likelihood of her being driven out, just like herself having been driven out by his brother or her erstwhile husband and at that stage, she was stated to have used the expression "(sic)". The matter did not stop there as transpired from the evidence of P.W.2 and the quarrel continued further and only during the course of such quarrel, the deceased was stated to have received certain cuts on her neck and head at the hands of the accused. Though P.W.2 had not stated as to the deceased calling the accused as the son of a prostitute, yet, in the circumstances of the case, it cannot be ruled out that such hurling of an abuse towards the accused could not have emanated from the deceased at the relevant time. Placed in such a situation, we are of the view that the accused could have been spurred and in such process, he could have been deprived of the power of self-control by sudden provocation, which impelled him to resort to brutally cut the deceased which resulted in her death.

Section 299 of the Indian Penal Code, defines "culpable homicide". "Culpable homicide" becomes murder u/s 300 I.P.C. "Culpable homicide" becomes murder if the act by which the death is caused is done with any of the mens rea prescribed in the four clauses and while stating so, the section starts with the phraseology "Except in the cases hereinafter excepted". The case of the accused in the instant case, we are of the view, squarely comes under Exception 3 of S. 300 I.P.C.

The further question that arises for consideration is as to whether the act of the accused is liable to punishment under Part I or Part II of Section 304 I.P.C. According to the said section, if the act by which the death or of causing such bodily injury as is likely to cause death, it attracts the liability under Part I and if the act is done with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injury as is likely to cause death, it attracts the liability under Part II. In the case on hand, the weapon stated to have been wielded by the accused is aruval M.O.1, a lethal weapon. The accused resorted to inflict as many cuts as possible on the neck and head of the deceased, the most vulnerable portions of the human anatomy resulting in death within a few minutes as a consequence of the injuries sustained, as revealed by the medical testimony available on record. In such a situation, can we state that the act of the accused is one as not done with the intention of causing death or of causing such bodily injuries as is likely to cause death? The answer is rather obvious. The act of the accused is one done with the intention of causing death of the accused or of causing such bodily injuries as is likely to cause death, thereby taking the act of the accused to Part I of Section 304 I.P.C.

In view of the discussions as above, the conviction and sentence as had been imposed on the accused by the Court below for the offence under S. 302 I.P.C. are not sustainable and therefore, the same are set aside. We, however, find the accused guilty u/s 304 Part I, I.P.C., convict him thereunder and sentence him to rigorous imprisonment for seven (7) years.

The accused filed C.A. No. 334 of 1986 through Legal Aid Board, apart from filing C.A. No. 432 of 1986 by engaging a counsel of his choice. The Legal Aid Board appointed Mr. V. Sairam, advocate, to be in charge of the proceedings before this Court in C.A. No. 334 of 1986. The said counsel came to be aware of the factum of filing of the appeal in C.A. No. 432 of 1986 by the accused only when the matters were listed before this Bench and therefore, he made an endorsement on the bundle to the following effect:

The Appellant has filed this appeal through me pursuant to his getting assistance from legal aid. However, since subsequently he has engaged a private counsel and filed C.A. No. 432 of 1986, it is submitted that this appeal may be merged with C.A. No. 432 of 1986 and comprehensive orders passed.

Both the appeals are disposed of as above.