C.S. Nayudu, J.
1. This is an appeal from jail against the appellant's conviction by the Additional Sessions Judge, Upper Assam Districts at Dibrugarh under Section 302 Indian Penal Code and sentence of life imprisonment.
2. The prosecution case briefly is that the appellant when he returned home from the tea garden after drawing his wages found his wife having illicit intercourse with one Malbirsa Mura and also found another person Bara Orang sitting by the side. Having become enraged at this, he dealt dao blows on his wife at her neck and head on which she fell down and apparently died instantaneously. The accused himself proceeded to the Barbarooah Police Out-Post and lodged an ejahar in which he stated the above facts.
3. The evidence for the prosecution consists of P. W. 1 to whom the accused made an extra judicial confession about his having struck his wife with a dao and killed her and whom he requested to prepare a petition to the Police. The witness accordingly wrote Ext. 1 which was signed by the accused and it is this that has been lodged as the first information report in the case. The evidence of P. W. 1 receives corroboration from that of P. W. 2 who deposes that when he was near the Police Out-Post, he saw the accused appearing with a dao and a written paper, telling the Police that he had cut his wife and lodging the paper with them. He also stated that the dao was seized from the accused. The evidence of other witnesses is not of much consequence.
4. In his examination before the Additional Sessions Judge under Section 342, Criminal Procedure Code, the accused denied having assaulted his wife and also having lodged the ejahar in question; but, earlier before the Committing Magistrate he had admitted to having assaulted his wife with a dao as a result of which she died and he stated that he was guilty. The medical evidence in the case revealed that the deceased sustained as many as 17 incised wounds. Four of these wounds were on the front of the neck, four on the parietal and temporal bone which was cut partially, two on the left parietal region bone deep, three on the forehead bone deep, one on the right thumb anteriorly bone deep and three on the right forearm. The medical officer expressed the opinion that the injuries were ante-mortem and that the death was due to shock and haemorrhage caused by the injuries. It is clear from the medical evidence that whoever inflicted the injuries on the deceased must necessarily have intended to cause her death.
5. The only evidence in the case, as already pointed out, is that of the extra judicial confession made by the accused person almost immediately after he had assaulted his wife, to P. W. 1 before whom he appeared with a dao bearing marks resembling blood and to whom he admitted having cut and killed his wife, as he found her having illicit intercourse with another person. This is corroborated by the ejahar Ext. 1 lodged by the accused himself wherein he stuck to the same story which he gave to P. W. 1 a few minutes earlier. The accused proceeded to the Thana and lodged the ejahar and the dao was seized from the hands of the accused by the Police. On these facts and circumstances, the learned Additional Sessions Judge convicted the accused accepting the evidence for the prosecution in this regard.
6. The first point that falls to be considered in this appeal is whether the evidence on record is sufficient to support the conviction. The extra judicial confession of the accused to P. W. 1 almost immediately after the occurrence, which is more or less in the nature of res gestae and even admissible on that ground, is proved by P. W. 1 and the truth of it is probabilised by the evidence of P.W. 1 who deposed that he saw the dao in the hands of the accused and that the dao had marks resembling blood. This is further corroborated by the conduct of the accused person in having the ejahar written by P. W 1 and taking the same to the Police Station and lodging the ejahar himself together with the dao with which he claimed to have killed his wife. We consider that this evidence and these circumstances justify the learned Additional Sessions Judge acting upon the admission of the accused of the commission of the crime. It is true that the accused had denied having assaulted his wife before the Sessions Court, although he admitted to having committed the crime before the Committing Magistrate. However, as the confession had been retracted during the trial of the case, under law it would not be safe to act upon the confession of the accused unless corroborated by other circumstances in material particulars. In this case, as already pointed out, we consider that the extra judicial confession made by the accused person to P. W. 1 is in the nature of res gestae and is admissible in evidence as such, apart from the fact that it is also a confession and, as already pointed out, the truth of the confessional statement which was made almost immediately after the commission of the crime is corroborated by the conduct of the accused himself in preparing the ejahar, proceeding to the Police Station and depositing the dao along with the ejahar with the Police to take necessary action. We, therefore, consider it safe to act upon the confession of the accused person in this case, although it has been retracted by him before the Sessions Court.
7. Under law, where an accused person's confession is the only evidence available, it is obligatory both on the part of the prosecution as well as on the Court to accept it as a whole there being no other evidence in the light of which any part of the confession could be verified or checked. Hence, we are clearly of the opinion that in this case the confession of the accused person must be taken as a whole, that is, including the exculpatory circumstances indicated in the confession. When the confession in the instant case is taken as a whole it follows that the accused cut his wife when he discovered that she was having illicit intercourse with another person. This situation under Jaw is regarded as causing grave and sudden provocation to the accused, and anything he does in consequence must be judged and weighed in that light. That the accused person acted under grave and sudden provocation is also supported by the large number of severe cut injuries found on the person of the deceased which shows that the deceased was subjected to quick, intensive and severe cuts by the dao which caused the injuries. We are, therefore, clearly of opinion that the offence committed by the accused in the instant case must be regarded as having been taken out of the category of murder, but would amount, therefore, only to culpable homicide not amounting to murder, the murder having been committed under grave and sudden provocation to which the exception 1 of Section 300 Indian Penal Code directly applies.
8. We would accordingly set aside the conviction of the appellant under Section 302, Indian Penal Code and the sentence of life imprisonment passed against him, but instead convict him under Section 304, Indian Penal Code for committing culpable homicide not amounting to murder and sentence him, having regard to the nature and the circumstances in which the crime has been committed, to rigorous imprisonment for one year. Normally having regard to the severity of the injuries inflicted we would have given a more severe sentence, but the extenuating circumstance in favour of the accused is so strong that we feel that interests of justice would be served by imposing a lenient sentence which we have done in this case. Ordered accordingly.