R.S. Bindra, J.C.
1. By judgment dated 21st of January 1969 the Sessions Judge. Manipur, convicted Tomeiren Maringni wife of Modun Maring (P. W. 1) under Section 302 I. P. C. for the murder of her mother-in-law Tongdar Maringni on the morning of 24-11-1967 in the village Koijam Khunou, and sentenced her to death. He has made a reference to this Court under Section 374 Cr. P. C. for confirmation of death sentence. The convict has also come up in appeal challenging the correctness of her conviction and sentence. This judgment will dispose of both the matters.
2. The case of prosecution rests on confessions, judicial as well extra-judicial, made by the accused and on circumstantial evidence. There was no eyewitness of the occurrence.
3. It was at about 6-00 a.m. on 24-11-1967, according to the prosecution story, that Tongdar left her house with a basket for Koijam Konjin hill in the village for collecting vegetables, and a short while thereafter the accused Tomeiren also went from the house in the same direction. About an hour after his mother had gone to the hill, Modun Maring (P. W. 1) went towards his paddy field in the valley. While he was proceeding to the field, he saw his wife Tomeiren coming from the direction of the aforesaid hill carrying a sickle stained with blood. Tomeiren told Modun that she had killed his mother. Modun instantly snatched the sickle from Tomeiren's hand and simultaneously wailed over the loss of his mother. His distressing cry attracted a number of his relations and co-villagers to the spot. Modun and those people then left for Koijam Konjin hill and found Tongdar lying dead in a pool of blood with a stab injury in the region of her belly. The dead body was carried to the house of Modun. Thereafter, Modun and the village Chief, Moin Maring (P.W. 4), made for the Police station Thoubal where the former lodged the F.I.R. Ext. P/l.
4. Shri B. Sen Sarma (P.W. 9), the Officer-in-charge of the Police station, Thoubal, left for the house of Modun where he prepared the inquest report and the injury statement respecting the deceased Tongdar. Modun Maring produced the sickle M.O. 1 before the Investigating Officer and the latter made the same into a sealed parcel though he saw no stain of blood on the weapon. It is part of the prosecution story that the weapon had been washed clean of blood by the time it was made over to the Investigating Officer. From the house of Modun, the Investigating Officer went to the place of occurrence. That place was also found to have been washed with water. Thereafter, the Investigating Officer returned to the Police station, having brought the dead body with him. On the next morning, the dead body was sent to Imphal for post-mortem examination. Before returning to the Police station, the Investigating Officer happened to arrest the accused from the house of her husband Modun.
.5. The post-mortem examination was done by Doctor A. Jugeswor Singh (P.W. 5) at 11-00 a.m. on 25-11-1967. He noticed 3 incised wounds on the hands, one incised wound in the right lumber region, one irregular wound 11/2 x 1' peritoneum deep in the epigastrium on external examination. Internally., he noticed two peritoneum wounds through the entire thickness of the liver. The portal vein of the liver had also been cut. The witness testified that the cause of death was shock born of puncture of liver and cutting of the portal vein. The abdominal injury puncturing the liver, the witness affirmed, was enough to cause death in a matter of few minutes. All the injuries, he added, had been caused by some sharp edged weapon like the sickle M.O. 1. The injuries other than those in the liver were of minor consequence.
6. The accused was sent to the Judicial Magistrate Shri L.R. Singh on 25-11-1967 for recording her confessional statement. The Magistrate deemed it prudent to give her two full days for reflection and so he sent her to Judicial lock-up. On the 27th, she was again brought before him when he again took the precautionary measure of giving her an hour to think over the advisability of making the confession. The accused exhibited willingness to make the confession, and after the Magistrate felt satisfied that she was out to make confession without any pressure, threat or inducement, he proceeded to record the same. She affirmed that she was putting up with her husband and the latter's mother Tongdar in the same house. There had developed some ill-feeling between her and her mother-in-law a few days before. On Friday (24-11-1967), her mother-in-law went to the hill Koijam Konjin carrying a basket for collecting vegetables. After a while she (accused) armed herself with an old sickle and went near her mother-in-law. The latter was then busy collecting vegetables. She killed her mother-in-law by stabbing her with sickle and then set out homeward. She told her husband on meeting him on the way that she had killed his mother. Her husband then left, in company with some other persons, for the hill from where they brought the dead body of Tongdar.
7. On conclusion of the investigations, Shri Sen Sarma (P.W. 9) submitted the charge-sheet to the Magistrate, who after holding the inquiry committed Tomeiren to stand trial on the charge under Section 302 I.P.C. Tomeiren entered the plea of not guilty. She however did not examine any witness in defence.
8. The learned Sessions Judge found, on the basis of the material on record, that it was the accused who had stabbed Tongdar to death with the sickle M.O. 1. He believed Modun on the point that his wife had confessed the guilt before him. The Sessions Judge was also of the opinion that the confession recorded in Ex. P/7 had been voluntarily made by the accused and that what she had stated therein represented a truthful picture of how Tongdar had been murdered. He, therefore, convicted Tomeiren under Section 302, I.P.C. and sentenced her to death on holding that the murder was deliberate as well as brutal,
9. The outstanding piece of evidence against the accused is her own confessional statement Ext. P/7. It is correct that she retracted that confession at the trial. This retraction came so belatedly that no importance can be attached to that circumstance. It has to be emphasised that during inquiry before the Committing Magistrate the accused admitted unequivocally that she has made the confessional statement. She also happened to admit before that Magistrate that her mother-in-law had gone to the hill at 6-00 a. m. for collecting vegetables, that an hour thereafter when her husband went to his paddy field she met him on the way armed with a blood stained sickle, that she told her husband that she had killed his mother, that her husband snatched the sickle from her hand and raised hue and cry, that some persons collected at the spot, and that they all went to the place of occurrence and from there brought the dead body of Tongdar. The statement made by the accused before the Committing Magistrate was tendered by the prosecutor at the trial, and according to Section 287 it has to be read as evidence.
The Supreme Court held in the case of Hate Singh v. State of Madhya Bharat : AIR1953SC468 , while interpreting that section, that the statement made by the accused before the Committing Magistrate must be treated like any other piece of evidence coming from the mouth of a witness, and matters in favour of the accused must be viewed with as much deference and given as much weight as matters which tell against him. : AIR1955Pat428 , Andu Mushar v. The State, is an authority for the proposition that Section 287 does not impose any qualification with regard to the word 'evidence', and it is difficult to interpret the section to mean that such statement should only be weighed to find if it is consistent with the innocence of the accused. There appears to be no scope, it was observed further, for putting a restricted meaning on the word 'evidence' used in Section 287, and so it is open to the Court to make use of such statement as it does with any other evidence either for or against the accused.
In view of such interpretation of Section 287, the statement made by the accused before the Committing Magistrate affirming not only the correctness of the confessional statement Ext. P/7 but also of the rest of the prosecution evidence, her stand at the trial that she had not made the confession recorded in Ext, P/7 does not carry any weight. The testimony of Shri L.R. Singh (P.W. 6), who recorded the confession, shows that he was extra-cautious in warning the accused about the consequences flowing from the confessional statement, that he took all conceivable steps to find out if the accused were out to make a voluntary confession, and that he proceeded to record her confession only after he felt satisfied that it was voluntary. That confessional statement coupled with the admissions made by the accused before the Committing Magistrate leaves no scope for doubt that it was she and none else who was the murderer of Tongdar.
10. Modun Maring (P.W. 1), the husband of the accused, deposed at the trial that when he was proceeding to his field he saw his wife coming from the side of Konjam Konjin hill, that she carried a blood-stained sickle in her hand, and that she told him on her own that she had killed his mother with that sickle at Koi-jam Konjin hill. The examination-in-chief of Modun was done on 28th October 1968 and it having gone late in the evening the case was adjourned to the next day for cross-examination. On the latter day, he went back on his statement made in examination-in-chief by deposing that what he had stated on the 28th was false. At that stage he was declared hostile at the instance of the Prosecutor and the latter happened to cross-examine him. During the course of that cross-examination he re-affirmed all that he had mentioned in his examination-in-chief. Significantly enough, no cross-examination was done on him thereafter by the defence counsel.
The Sessions Judge also brought on his record the statement made by Modun before the Committing Magistrate. This was done in terms of Section 288 Cr. P. C. which provides that the evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the Presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act. The statement made before the Committing Magistrate by the witness corresponds with what he deposed at the trial during examination-in-chief and during cross-examination by the Prosecutor. Therefore, I have no doubt that what he affirmed before the Committing Magistrate was a truthful version of the occurrence. He put the matter beyond controversy by affirming at the trial during cross-examination by the Prosecutor that he had wavered during cross-examination by the defence counsel because he 'wanted to save the life of his wife if he could'. He admitted that after the accused had been released on bail she had been living with him. In such circumstances, it was not abnormal for him to yield to the entreaties of his wife who was clearly apprehended that she may have to mount the gallows for the heinous offence committed by her. The statement of Modun that when he snatched the sickle M.O. 1 from the hand of the accused it was stained with blood, constitute enough of corroboration of the confessional statement made by the accused. The extra-judicial confession made by Tomeiren to her husband is another corroborative piece of evidence. Taking all the circumstances into consideration, I feel no doubt in my mind that it was accused who had murdered Tong-dar. I would, therefore, confirm her conviction under Section 302 I.P.C.
11. The only serious question debated in this Court related to the appropriate sentence that should be awarded to Tomeiren. It was urged by Shri Benoy Singh that since there is no motive assigned to Tomeiren for committing the murder, it is conceivable that some conflict between the two women arose at the spot and Tomeiren committed the murder of her mother-in-law on spur of the moment having been provoked by some act on the part of the latter. Shri Munindra-kumar Singh submitted, on the other hand, that motive for the murder is plainly deducible from the confessional statement Ext. P/7 wherein it is mentioned that some ill-feeling had developed between Tomeiren and her mother-in-law a few days before the fateful occurrence, and that in consequence it is a case where capital sentence is clearly called for. It is correct that in the confessional statement Tomeiren happened to affirm that ill-feeling had been created between her and her mother-in-law since a few days before 24-11-1967. However, corroboration of that fact is not available from any other evidence on the record. Modun, the husband of the appellant, specifically denied that there was any ill-feeling between his wife and his mother. None of the other witnesses examined by the prosecution referred to this aspect of the case. Therefore, it is not possible to record a firm conclusion that what weighed with Tomeiren in murdering her mother-in-law was ill-feeling that had cropped up, according to the recitals in Ext. P/7, between her and the deceased.
It was held in the case of Mi She Yi v. Emperor AIR 1924 Rang 179, that an accused person is entitled to the benefit of doubt in the matter of sentence as in the matter of conviction, AIR 1936 Rang 71, Nga Kan v. Emperor, is an authority for the proposition that where there is considerable doubt about the cause of the quarrel which resulted in the murder, the extreme penalty of the law is not called for. In this Rangoon case, the High Court was unable to make up its mind as to what had led to the fight between the appellant and the deceased and for that reason, coupled with the fact that the appellant was a young person of 17 or 18 years, the sentence of death was reduced to one of transportation for life.
In the case of Ouseph v. State AIR 1953 Trav Co 561, the proposition enunciated was that in the absence of evidence as to the exact circumstances under which the assault commenced, it would not be safe to impose the extreme penalty of law. What was proved in this case was that the culprit had developed intimacy with a woman although his wife was alive and he had three children. On the night of occurrence the convict came to the house of his wife and after he had shared the bed with her for sometime he took her out in the compound and there opened the assault on her with a penknife. The victim yelled for help and two of her children rushed to the place. They found that their mother was lying on her back while the father was sitting on her chest and cutting her throat. The children raised an outcry and that made the culprit take to heels. The Sessions Judge imposed on the convict the lesser penalty for the reason that there was lack of evidence to establish the exact circumstances under which the assault had started. The High Court agreed with that view of the Sessions Judge and happened to observe.
No doubt the nature of the injuries speaks volumes about the intention of the culprit but an accused person is entitled to the benefit of doubt even in the matter of sentence.
Two clear propositions appear to emerge from this case, they being that if the exact circumstances under which the life of the victim was taken are not clear then the lesser sentence of life imprisonment should be imposed, and that the principle of benefit of doubt is available to the accused not only in the matter of conviction but also in the matter of sentence. In the case of Gurdev Singh v. Emperor AIR 1948 Lah 58, it was observed that there are well recognized grounds on proof of which the Judge would be justified in withholding the capital sentence. It was stated further that it is impossible to lay down any general rule defining the classes of cases in which the lesser sentence may be imposed though from time to time certain circumstances have been recognized by the Judges who had to consider this question as valid grounds for imposing such sentence. I think the rule laid down in the two Rangoon cases and in the Travan-core Cochin case cited above furnishes-sufficient guidance for the purpose of the case in hand. As held above, it cannot be stated with definiteness what led to the murder of Tongdar. Hence, giving, the accused the benefit of doubt I have decided to reduce her sentence to one of life imprisonment. Reference made by the learned Sessions Judge for confirmation of sentence of death is consequently rejected. I confirm the conviction of Tomeiren under Section 302 I.P.C. but on accepting her appeal partly, reduce the sentence to that of life imprisonment.