1. Holia, son of Budhoo Gowara of mauza Gondegaon was tried before the Additional Sessions Judge, Seoni, on a charge of murder of his wife Mt. Yamuni. He has been found guilty under Section 304, Part I, Penal Code and sentenced to 7 years' rigorous imprisonment. He has appealed against this conviction and sentence. There is also a counter-appeal by the Provincial Government that the accused should have been convicted on the charge of murder under Section 302, Penal Code. be to appeals are disposed of by this judgment.
2. Holia lived with his wife, Mt. Yamuni in Gondegaon. On 27th November 1947 the accused assaulted Mt. Yamuni in the house and killed her and threw the spear with which he had assaulted her in a well from where it was later recovered by the police. The parents of Mt. Yamuni had come to stay with Holia about two days before this occurrence and they wanted that Yamuni should be sent with them to their house. The accused was not willing to send his wife to her parents and on the day of oacurrence in the morning Yamuni's father and mother prepared to go away. The father had proceeded ahead and Yamuni'a mother Mt. Naja was alao going out when Yamuni Beems to have insisted that she would also go with her parents. It is in the evidence of Mt. Naja (p. W. 6) that the accused was enraged at her insistence on going and taking up a spear he violently assaulted Mt. Yamuni and killed her. In the committing Magistrate's Court as also in the Sessions Court the accused admitted that he had killed Mt. Yamuni. Before the Sessions Court he even pleaded guilty to the charge but the learned Additional Sessions Judge decided to hold the trial in order to find out if the case was not within one of the exceptions to Section 300, Penal Code, and whether any extenuating circumstan-ces existed in the case.
3. The plea taken on behalf of the accused was that he did not want his wife to go with her parents because their child had been recently vaccinated and was running temperature. Ha says that the wife was very insistent on going and even abused him filthily and gave him a kick also. That he was pat out by this conduct of hers and in a fit of rage he took up the spese and killed her. The Additional Sessions Judge has accepted this statement of his and has found that he committed the murder upon grave and sudden provocation given by the wife and the case was therefore brought within exception l to 8. SCO, Penal Code.
4. There is no doubt that the act of the accused in causing injuries to his wife which resulted in her death amounts to an offence of murder and the only question is whether the accused has been able to show that the case could be brought within exception 1 to Section 800, Penal Code.
5. At the time of the, assault Mt. Naja (p. w. 6) was near the deceased and she says that all that Mt. Yamnni did was that she wept and insisted that she would also go. Nothing has been elicited in her evidence to suggest that Yamuni had used any abusive language or kioked the accused.
6. After committing this assault on his wife the accused went out. It is in the evidence of Mulchand (p. w. 6) that when he saw the accused he found some blood on his clothes and questioned him to which the accused only re-plied that whatever was destined had happened. Subsequently Mulchand, who is the mukaddam of the village went with the kotwar Ugdya (P. W. i) to the house of the accused. There Dadu (p, w. 7) and Dulichand (p. w. 8) were also present and when the accused was question, ed by them he stated that the wife was insisting on going which annoyed him and so he bad billed her. The accused does not deny that he was questioned by these persons and that he had stated to them that he had killed his wife. It is significant, however, that these witnesses were not questioned at all whether the accused had also stated at that time that the wife had abused or kicked him. If the cause of provoca-tion had been such conduct on the part of the wife, we expect the accused to have disclosed to these persona that the wife had behaved in Such a rude manner as to give him provocation. Nothing absolutely has been elicited from the evidence of any of the prosecution witnesses to show that the wife had used any abusive lang. uage or given any kind of provocation except the insistence that she must go. The learned Additional Sessions Judge in paragraph 13 of his judgment thinks that there could be no reason for the accused to commit such deadly assault upon his wife except upon some provocation which be must have received and he thinks that the statement of the accused about the manner in which she gave provocation must be aocepted A3 quite probable. He has referred to the fact that three of the four assessors were also of the opinion that the accused might have received Such provocation. The opinions of the assessors are not based upon any facts elicited in the evidence and therefore they are of no value. The learned Additional Sessions Judge seems to have treated their opinions as evidenee oa which to find that there was grave and sudden provocation, He appears to have overlooked the provision in Section 105 Evidence Act, which laya down that the burden of proving the existence of circumstances which bring the case of the accused within one of the exceptions in the Penal Coda is upon the accused and the Court must presume absence of such circumstances.
7. The question therefore arises how fair it was incumbent upon the accused in view of Section 105, Evidence Act, to lead evidenee to satisfy the Court that the case was brought within Exoep. l to Section 300, Penal Code. In criminal cases the general rule is that the accused person must always be presumed to be innocent and the onus of proving everything essential to the establish. meat of the offence is on the prosecution. Section 105 is, however, an important qualification of this rule. In view of it, the prosecution is not obliged to prove absence of facts which. might bring the case within a special exception which the accused as in the present case might set up in his defence. In Woolmington v. The Director of Public Prosecutions, 1935 A. C. 46 the rule laid down is that in a trial for murder the Grown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner. When evidence of death and malice has been given, the prisoner is entitled to show by evidence or by examination of circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked, and if the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was isainten. tional or provoked, the prisoner is entitled to be acquitted.
8. In Robert Stuart Wauehope y. Emperor : AIR1933Cal800 Lort-Williams J. has expressed the view that even when the legislature has put upon the acensed the burden of proving certain matters he is in a much more favourable position than the prosecution because he is not in general called upon to prove them beyond a reasonable doubt, but it is sufficient if 'he succeeds in pro. ving a prima facie case.
9. In Bapurao v- King Emperor I.L R. (1937) Nag. 88 : A.I.R. 1936 Nag. 160: SS Gr. L. j. 349) be se J., accepts the position that all that may be necessary for the accused is to offer a reasonable explanation which may be true, then, even though the Judge or the jury, as the case may be, is not convinced that it fe true, he is entitled to as acquittal.
10. In King-Emperor v. U. Damapala, U Bang. 666 : A.I.R. 1937 Bang. 83 ; 38 Or, Xi. J. 624 a Full Bench of the Rangoon High Court has accepted the rule in Woolming-ton v. The Director of Public Prosecutions, 1935 A. G. 462 : 104 L. J, K. E. 433 as laying down the law which is in no way inconsistent with the law in India and with reference to B. 105, Evidence Act, has held that the test is not whether the accused has proved beyond all rea-sonable doubt that he comes within any exception to the Penal Code, but whether in setting up his defence he has established a reasonable doubt in the case for the prosecution and has thereby earned his right to an acquittal.
11. In Emperor v. Basangouda Yamanappa, i. l. e. (1941) bom. 815 : a. i. r. 19 bom. 139: 42 Or. L. j. 697 the Bombay High Court expresses a similar view that if the accused can offer an explanation of the evidence which is consistent with the innocence of the accused, the Court will not be justified in convicting him.
12. According to all these cases all that may be necessary for the accused is to offer some explanation of the prosecution evidence, and if this appears to the Court to be reasonable, even though not beyond doubt and to be consiatent with the innocence of the accused, he should be given the benefit of it.
13. The question has been considered at length by a Pull Bench of the Allahabad High Court in Emperor v. Parbhoo, : AIR1941All402 Here also the majority of the Judges constituting the Full Bench accept the decision of the House of Lords in Woolmington v. The Director of Public Prosecutions, 1945 A. o. 462 : 104 L. J. K. B. 433 as laying down the law which is not inconsistent with the law of British India as enacted in Section 105, Evidence Act.
14. The accused in this case made a statement before the Committing Magistrate about grave and sudden provocation received by him from the wife by her abusing and kicking him. This according to Section 287, Criminal P. C., is tendered by the prosecution and read as evidence. ' In Sessions Court also he made a similar statement in answer to the questions put to him and Sub-section (3) of B. 842, Criminal P. C, lays down that the answers given by the accused may be taken into consideration by the Court. These provisions do not however make the mere statements of the accused an affirmative evidence in the case. What they mean is that the Court should not ahut out the statements of the accused from its view when considering the effect of the evidence adduced on behalf of the prosecution but such statements must be taken into consideration along with the evidence of the prosecution to see if in conjunction with them there can be any reasonable explanation of the prosecution evidence which may be consistent with the innocence of the accused.
15. The definition of 'proved', 'disproved' and 'not proved' in 8. 3, Evidence Act, shows that the question has to be decided after consider-ing the matter before the Court which will necessarily include the examination of the accused before the Committing Magistrate and the Sessions Court. The point for consideration therefore is whether in view of these statements it would be reasonable to infer from the prosecution evidence itself that the accused could not have acted in the manner he did without receiving the provocation to the extent he has alleged. We think it not unlikely that the accused was provoked into assaulting his wife simply because she was insisting on going away with her parents and there is no need to go further and assume that he should have received graver provocation. The evidence produced on behalf of the prosecution read in conjunction with the statements of the accused can only establish a case falling under els. 1 to 3 of Section 300, Penal Code. They do not even raise a reasonable doubt that the special circumstances of grave and sudden provocation as he has alleged may have been present. It was therefore necessary for the accused to prove their existence by producing other evidence than the matters which are here before the Court. In the absence of any such evidence, it is not proper to find that the case is brought within Ex. 1 to 8.300, Penal Code.
16. In our view the accused has entirely failed to bricks his case within Exception 1 to S, 300 Penal Code. His conviction should therefore have been under Section 302, Penal Code, and should not have been under Section 804-Part I. We accord-ingly dismiss the appeal of the accused and on the appeal of the Provincial Government alter the conviction of the accused to one under Section 802, Penal Code. In view of the fact that the accused had received some provocation, though it was not sufficient to bring the case within Exception 1 to 8. 300, we think that he should receive the lesser penalty of transportation for life. We accordingly sentence him to transportation for life.