1. The appellant was tried for the offence of murder of his wife committed at Takali, district Buldana, on or about the 20th of August, 1957. The learned Additional Sessions Judge who tried the appellant convicted him under Section 302 of the Indian Penal Code but instead of awarding the maximum sentence awarded the lesser penalty under the law.
2. It was not in dispute before the learned Additional Sessions Judge nor is it is dispute before us that the appellant and his deceased wife Tulsabai used to quarrel quite often. The appellant is a resident of Telhara. Two or three days prior to the Akshaya Tritiya of the year 1957, the appellant along with Tulsabai and their children went go Takali where his mother-in-law Muktabai lived. He stayed there for two or three days and returned alone to Telhara. Tulsabai continued to stay on in Takali till her death on the 20th of August, 1957. It may be mentioned that the appellant visited Takali a few days before Nag Panchami and again visited Takali two weeks before the Pola of that year. His object in visiting Takali was to induce his wife to return with him to Telhara.
3. The incident out of which this appeal arises occurred during the third visit of the appellant to Takali. On the morning of the 20th of August, 1957 the appellant went to a field at Takali where Tulsabai was carrying on weeding operations along with her month Muktabai, (P.W. 4), her aunt Janabai (P.W. 7), her sister-in-law Renuka (P.W. 8) and Bhikabai (P.W. 9) and a number of other women and men including Pandurang (P.W. 11) and Wasudeo (P.W. 10). When the appellant saw Tulsabai he talked with her. In the course of that talk he struck Tulsabai five or seven times with a knife causing serious injuries to her person as a result of which she expired on that very day.
4. The appellant's defence is that Tulsabai was a woman of loose character as she was carrying an intrigue at that time with one Pundya, who though a resident of a different village, had gone to Takali after Tulsabai went to stay there, that on the night of the 19th of August, he saw Tulsabai entering the house of one Purnya, a relation of Pundya, who was staying at Takali at that time, that he also saw Tulsabai coming out of that house at about 1 a.m. and thereafter returned home that next morning he went to the field where Tulsabai was working and asked her whether she had gone to Purnya's house on the previous night, that Tulsabai thereupon said 'Yes, I will go; it is my sweet will. If you feel it so much, then I will begin residing with Pundya' (sic). The appellant added that though he tried to persuade Tulsabai to improve her ways she declined to do anything. On the contrary she said: 'If you are so much ashamed, then get away from here. Why have you come here?', and also used foul language. This enraged the appellant and that he thereafter caught her hand. Tulsabai retaliated by kicking him, whereupon he lost his self-control, took out a small penknife which was with him and dealt five or seven blows with it on Tulsabai's person.
5. As already stated the appellant does not dispute the essential facts that Tulsabai met her death as a result of several knife injuries received by her and that these injuries were caused by the appellant alone. The question which remains to be decided therefore is what offence was committed by the appellant.
6. If the defence of the appellant is accepted then the case would fall under the First Exception to Section 300 of the Indian Penal Code and the offence would amount to culpable homicide not amounting to murder punishable under Section 304 of the Code. The First Exception to Section 300 of the Indian Penal Code reads thus:
'Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.'
The question is whether the facts alleged by the appellant can be deemed sufficient to bring the case under the aforesaid Exception, assuming for the moment that the facts were as stated by the appellant. Had the appellant attacked the deceased in the way he did at 1 a.m. on the morning between 19th-20th of August while she was coming out or after she had come out of Purnya's house, the First Exception may have been available to him. But can it be said that Exception was available to him later on the morning of 20th August and that too after the appellant had slept over the provocation alleged to have been given to him by Tulsabai by misconducting herself? It must be remembered that even according to the appellant, he was quote calm and collected when he talked with Tulsabai while she was working in the field that morning along with other women folk. According to him, tulsabai talked to him impertinently and also threatened to go and even live in the house of Pundya whom he regarded as per paramour.
6a. Shri Ranade who appears for the appellant points out that apart from talking in this manner the deceased kicked the appellant and that therefore this circumstance entitled the appellant to the benefit of the First Exception to Section 300. It must be remembered that what the deceased did in the night was something far more serious than what, according to the appellant, she said and did in the field that morning. If the appellant was sufficiently strong-willed not to lose his self-control even though he saw his wife coming in the early hours of the morning out of the house of her paramour, it is difficult to accept the statement that the appellant lost that power by reason of something less grave which happened in the field later in the morning. Apart from that, it seems to us that what occurred in the field in the morning case not ordinarily be regarded as grave and sudden provocation on justify the killing of a person. We may cite the following observations from the decision in Holmes v. Director of Public Prosecutions, (1946) 2 All ELR 124:
'The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm is negatived. Consequently, where the provocation inspires an actual intention to kill or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognised, viz., the actual finding of a spouse in the act of adultery. This has always been treated as an exception to the general rule, but it has been rightly laid down that the exception cannot be extended.
A sudden confession of adultery by either spouse without more can never constitute provocation of a sort which might reduce murder to manslaughter.'
This passage has been cited by Basheer Ahmed Sayeed J., in his judgment in Murugian. In re, : AIR1957Mad541 . In the course of his judgment the learned Judge has observed:
'But it should be noted that these decisions apply to the society in England and countries of western culture and civilization. It is well known that in western societies, marital laws and violations thereof are looked upon with such (sic) greater latitude and the award of damages in Civil Courts would constitute sufficient redress. Adultery is not made punishable as it is in our country where a more serious view is taken of offences against marital rights.'
7. In our opinion, it would be extremely hazardous to apply the First Exception to Section 300 to a case of the kind we have here merely on the ground that offences against marital rights are made punishable by the law in India. What was to be considered in a case of this kind is whether provocation which was offered was of a kind which would cause a reasonable man belonging to the same social stratum as the accused person to lose his power of self-control. Bearing in mind the fact that adultery though frowned upon in our country is not uncommon in the village community and bearing also in mind the fact that even before the law made a provision for obtaining a divorce, a customary form of divorce has prevailed in the village communities, it would not be right to hold that the reaction of an Indian spouse from such a community would be different from that of one in the western countries. We are therefore of the view that the incident which the appellant alleged occurred in the field on the morning of 20th August was not sufficient in law to constitute grave and sudden provocation within the meaning of that expression used in the First Exception to Section 300.
8. Apart from that, we have only the word of the appellant to the effect that the conversation of the kind stated by him took place between him and Tulsabai and that in the course of the incident she kicked him after filthily abusing him. How, if there was any truth in this he would have made a statement about it before the Committing Magistrate. On the other hand, when he was asked by the Committing Magistrate 'When the females doing the weeding had gone two or three fields ahead did you deal three blows on her head with a dagger?' His answer was: 'I did not strike her. I tried to catch hold of her hand and she fell down on the sickle in her hand.' Then he was asked: 'After you beat her, did she shout and did her mother Muktabai come her running?' His answer was: 'Yes she came running.' To the question. 'When Muktabai intervened did you push her aside and deal three blows with the dagger on her stomach?' His answer was, 'I do not state anything here. I will tell everything in Sessions Court.'
9. Now, we would have expected the appellant to make a clean breast of the whole thing before the Committing Magistrate if in point of fact whatever he did was done under grave and sudden provocation. Again, in that case, he would have never thought it necessary to invent a false defence to the effect that the injuries were caused by the sickle which Tulsabai herself was holding in her hand. We may further mention the fact that not one of the several eye-witnesses examined in the case has been questioned about the conversation which is said to have taken place and particularly about the kicks which Tulsabai is said to have administered to the appellant. It is therefore clear that the defence which was set up before the Sessions Court was only an after-thought. Now, the law requires that where an accused person pleads an exception he has to prove it. In the instant case, there is no proof. There is only the word of the appellant. According to Shri Ranade the word of the appellant should be accepted as was done in the Madras case, : AIR1957Mad541 (cit sup). We cannot accept the principle that in every case the bare word of an accused person is sufficient to discharge the burden of proof of an exception. There must be some corroboration, direct or indirect, of the statement of the accused person. Apart from that, in the instant case, as we have already shown, the statements made by the appellant in his examination are patently untrue and cannot be accepted. Upon this view, we negative the contention of Shri Ranade that the offence is anything less then murder. We therefore affirm the appellant's conviction under Section 302 of the Indian Penal Code.
10. He had already been awarded the lesser sentence and therefore there is nothing more that can be done.
11. The appeal is dismissed.
12. Appeal dismissed.