G.N. Sabhahit, J.
1. This appeal instituted by original Accused-1 and Accused-2, is directed against the judgment and order of conviction and sentence passed against them for the offence punishable under Section 302, I. P. C. by the Sessions Judge, Mysore, on 23-11-1977, in Sessions Case No. 28 of 1977 on his file.
2. The appeal arises this way: Deceased Madaiah alias Kambliah was residing with his son P. W. 9. Mahadevaiah and his daughter-in-law P. W. 13 Maniyamma in a portion of the house in Tayur village. In the other portion of the house, his elder brother P. W. 10 Rangaiah alias Meddiah was residing along with the members of his family. Accused 1 Gurubasavaiah alias Suntaiah and his son Rangaiah alias Rangappa Accused 2 along with Chikkamaramma Accused-3, wife of Accused-1, were residing in the neighbourhood, about 30 feet away to the west of the house of the deceased. As evidence discloses, deceased Madaiah was an ex-convict who was sentenced for life for murdering a woman. He had returned from jail after undergoing the imprisonment. It is the case of the prosecution that the deceased developed illicit intimacy with Accused-3, wife of Accused-1 for about 3 years prior to the date of incident on 23-5-1977. In that connection, Accused-l had filed a complaint Exhibit P-l on 26-4-1977 before P. W. 2 T. N. Devaiah, Head Constable of Biligere Police Out Post, alleging that deceased Madaiah had come to his house in the afternoon of 26-4-1977 and was talking to his wife at about 3 p.m. and that when Accused-l took objection, a quarrel ensued and Accused-1' was assaulted by deceased Madaiah. On the basis of the complaint, Madaiah, the deceased, was called to the Police Station and he was admonished to behave himself as per Exhibit P-2, by the P.S.I.
3. It is further the case of the prosecution that there was a betrothal ceremony in the house of deceased Madaiah on 23-5-1977. The betrothal was of the sister of P. W. 9 Mahadevaiah. After the ceremony was over, they finished their meals and the members of the house retired to the bed. Deceased Madaiah was sleeping according to P. W. 9 and P. W. 13, on the pail of their house and his son and daughter-in-law P. Ws. 10 and 13 were sleeping inside the house. At about 11 p.m., however, P. W. 10, who was sleeping in his house, which is adjoining the house of the deceased, heard a cry of his brother, the deceased. He was crying loudly 'Mahadevaiah, Mahadevaiah.' Thereafter, P. W. 10 woke up P. W. 9 and told him about the cry. p. W. 9 also heard it and P. W. 9, P. W. 10 and P. W. 13 came out and found that the deceased was no longer found sleeping in the pail of the house and they proceeded in the direction from which the cry emanated and when they went to the house of the accused, they found that the deceased was being dragged from out of the house of the accused, he being held by Accused-1 and Accused-2 and Accused-3 also following them. They further heard Accused-1' telling A-3, his wife, to bring a. rope from inside the house and they saw the Accused 1 and Accused-2 dragged the deceased to a pole in the cow shed. Accused-3 brought a rope and-also a chimney lamp. Thereafter, the deceased was made to sit against the. pole and he was tied to the pole. Then Accused-1 started beating the deceased with a club and when he was so beaten, two or three times, the club broke. Accused-2, son of Accused-1, beat the deceased with granite stone which was nearby. He assaulted him on the chest, on the back and other parts of the body. According to P. Ws. 9, 10 and 13, they requested the accused-not to assault the deceased and kill him. But, they did not listen. On the other hand, Accused-2 came and threatened them with a stone. The deceased, out of despair, asked for some water. Accused-1 urinated in the mouth of the deceased. Seeing the ghastly scene, P. W. 13 went to her house. After some time when Accused-2 assaulted the deceased with the stone, the deceased stopped' crying. Thereafter, P. W. 9 and P. W. 10 also returned to the house and sat on-the pail of their house.
4. The second stage in the story opens at the day-break on 24th May, 1977. According to P. W. 13, she opened the door of the house and came out and found the dead body of her father-in-law Madaiah in a naked form near the cocoanut tree. She got frightened and cried. P. Ws. 9 and 10, who were all the while sitting on the pail itself, came there and saw the dead body of Madaiah lying there with many injuries without any clothes on it. Thereafter, P. W. 10 sent P. W. 9 to the house of Patel P. W. 7 Somanna. P. W. 7 Patel, on being told about the incident, came to the scene of occurrence, saw for himself that Madaiah was lying dead with injuries on his person and he prepared complaint as per Exhibit P-3 and sent it through P. W. 8 Chakra Madavevaiah to the Police Out Post at Biligere. P. W. 2 Devaiah, Head Constable of Biligere Police Out Post, carried it to the P. S. I. P. W. 16 Shivaramaiah of Kavalande Police Station and reached there at about 11-45 a.m., on 24-5-1977. On the basis of Exhibit P-3, the P.S.I, registered a case at Crime No. 45/1977 under Section 302, I. P. C. against the accused. He issued F.I.R. Exhibit P-10 and sent the F. I, R. and the original complaint to the .jurisdictional Magistrate. He informed his superiors about the crime. Thereafter, he left for the scene of occurrence. 'On receipt of the copy of the F.I.R. P. W. 17 Nanaiah, Circle Inspector of Police, Nanjangud reached the scene at about 3 p.m. and took up further investigation. He arrested Accused-1 at about 6-30 p.m. held the spot mahazar Exhibit P-5, scene of occurrence mahazar Exhibit P-6. After inquest over the dead body he sent the dead body for postmortem examination. He seized the bloodstained pole, bloodstained rope, articles of dress of the deceased kept concealed under a heap of green grass inside the cattle shed of the accused and recorded the statements of P. Ws. 9, 10 13 and Ors. Thereafter he sent the bloodstained articles to the Chemical Examiner, received the post-mortem report Exhibit P-8, got the sketch of the scene of occurrence prepared by the Junior Engineer as per Exhibit P-9 and on completing the investigation, submitted the charge-sheet before the Jurisdictional Magistrate on 27-7-1977 against Accused-1 and 2 for the offence punishable under Section 302 read with Section 34, I. P. C. and against Accused-3 for the offence punishable under Section 302 read with Section 109, I.P.C.
5. The learned Magistrate committed the accused for trial to the Sessions Court at Mysore as it was exclusively triable by the Court. The learned Sessions Judge framed charges against Ac-cused-1 and Accused-2 on 30-8-1977 on the aforesaid allegations for the offence under Section 302 read with Section 34, I.P.C. and against Accused-3, he framed the charge under Section 302 read with Section 109, I. P. C. and recorded the plea of the accused on the same day. The accused pleaded not guilty and claimed to be tried. Thereupon, the prosecution examined as many as 17 witnesses and got marked Exhibits P-l to P-13 and M. Os. 1 to 13. After the prosecution closed its case, the accused were examined under Section 313, Cr.P.C. to enable them to explain the circumstances appearing against them evidence. All the accused denied the complicity in the crime They did not, however, adduce any evidence on their behalf.
6. The learned Sessions Judge appreciating the evidence on record held that Accused 1 and Accused-2 were guilty of the offence punishable under Section 302 read with Section 34, I. P. C. He, however, acquitted Accused-3 of the charge for which she was tried. Aggrieved by the said order of conviction and sentence, Accused-1 and Accused-2 have instituted the present appeal.
7. The learned Advocate appearing for the appellants-accused vehemently contended that the learned Sessions Judge was not justified in placing reliance on the alleged eye-witnesses, P.Ws. 9, 10 and 13 and according to him, the probability of P. W. 9 son of the deceased, assaulting his father and killing him, could not be considered as a mere figment of imagination. Hence, he submitted that the learned Sessions Judge was not justified in finding the accused guilty of the offence punishable under Section 302 read with Section 34, I.P.C.
8. Alternatively, he submitted that even assuming that the accused were guilty, on the showing of the prosecution itself, the learned Sessions Judge was not justified in holding the accused guilty of the offence punishable under Section 302, I. P. C. According to him, when the deceased entered the house of the accused with the object of having illicit intimacy with Accused-3, wife of Accused-1, it was but natural that Accused-1 and his son Accused-2 got suddenly provoked and in the heat of that provocation, if they assaulted the deceased and the deceased was that way killed, he submitted, that the offence could not fall within the purview of Section 302, I. P. C. but, it fell within Exception 1 to Section 300, I. P. C. and as such, was punishable under Section 304, I. P. C.
9. As against that the learned Government Pleader strenuously argued supporting the reasoning as also the findings of the learned Sessions Judge and his final order of conviction and sentence.
10. The points, therefore, that arise for our consideration are:
(1) Whether the learned Sessions Judge was justified in holding that the accused caused the injuries which resulted in the death of Madaiah, the deceased, and that those injuries were caused with the intention of killing him?
(2) Whether the learned Sessions Judge was justified in holding the accused guilty of the offence punishable under Section 302, I. P. C. read with Section 34, I. P. C, on the facts of the present case as made out by the prosecution in the evidence adduced before the Court?
11. The learned Sessions Judge has relied upon the direct testimony of P.Ws. 9, 10 and 13 which is probabilised by other circumstantial evidence to base conviction against the accused for the offence punishable under Section 302 of the I. P. C.P. W. 9 is the son of the deceased. As stated above, he was sleeping inside the house and at about 11 p.m. that night, he heard the cry of his father calling out his name as Mahadevaiah. P. W. 10 his uncle, who also heard the eiy, woke him up. Accordingly both of them came out and describing what he saw, the witness has stated thus in his evidence.
At that time, my father was not found on the pail of the house. We then saw the deceased being brought out of the house of the accused, with his hands tied behind his back. These 3 accused so brought the deceased from inside the house of the accused. All the 3 accused were giving fist blows to my father, when he was so brought out of that house. We then went near the house of the accused and requested the accused not to beat the deceased. Then the 2nd accused Rangaiah came to assault us with a club in his hand. Then I and my uncle moved to one side of the house. The accused then took the deceased near their cattle shed where a wooden-peg was fixed to the ground. The 1st accused Suntaiah directed his wife, the 3rd accused Chikmaramma to bring a rope. The 3rd accused then went inside the house and brought a rope. She so brought the rope, holding a chemney lamp in her hand. M.O. 3 is the said rope and M.O. 11 is the said chimney lamp. Then the three accused joined together and tied the deceased to the said wooden-peg. Then I and my uncle requested the accused not to tie the deceased or beat him and suggested that the matter could be decided in a panchayat on the next day. Then the 1st accused came towards us with a club in his hand and the 2nd accused came towards us with a stone in his hand. Then both I and my uncle moved some distance away. The 1st accused then beat the deceased with the said club on the right leg below the knee cap. He dealt another blow with the same club on the right side of the forehead of the deceased. He dealt a third blow with the same club on the back of the deceased. When the said 3rd blow was given, the club broke into two, At that time, the deceased cried out for water. The accused then urinated on: the mouth of the deceased. The 2nd accused Rangaiah then lifted a big granite stone and hit the deceased 3 or 4 times on the chest, leg etc. We then raised cries calling out the villagers to come to the assistance of the deceased. But no one responded to our call. The deceased stopped crying when the 2nd accused hit with the said stone on the right side of the abdomen... Then both I and my uncle Rangaiah came and sat on the pail of our house. My wife had gone back much earlier. Thereafter, the accused put out the chimney lamp. The-deceased was lying there without uttering a sound. While we were so sitting on the pail, we felt drowsy. In the early morning at about 6 a.m., my wife? raised cries that her father-in-law had been done to death. Then we noticed the dead body of the deceased lying naked near the coconut tree on the left side of our house.
12. Nothing worthwhile is elicited in the cross-examination to discredit the testimony of this witness. The evidence of P. W. 10 corroborates the evidence of P. W. 9 in all material particulars. Precious little is elicited in the cross-examination of P. W. 10 also. The learned Sessions Judge, therefore, has relied on the testimony of these witnesses and in our opinion rightly.
13. The learned advocate appearing for the appellants strenuously contended that the evidence of P. W. 13, Smt Maniamma, wife of P. W. 9 Mahadevaiah cannot be relied upon, as it is not stated in the complaint Ex. P. 3 that she-also attended along with P. Ws. 9 and 10. There appears to be some justification in the submission so made for the-reason that P. W. 13 in her evidence has stated inter alia thus :
At about day break, when the cocks began to crow, I came out of my house; I then noticed the dead body of the deceased lying naked near a coconut tree on the left side of our house. I raised cries hearing which P. Ws. 9 and 10 also-came there.
14. This gives an impression that the-lady saw the dead body for the first time. Hence, it cannot be safe to place reliance on the evidence of P. W. 13; but even otherwise, the evidence of P. Ws. 9 and 10 sufficiently establishes the acts of atrocity committed by the accused.
15. It was submitted by the learned advocate for the appellants that the evidence of these witnesses cannot be relied upon, because they are close relatives of the deceased. But it is well settled that the evidence of close relatives need not be rejected as interested, because normally close relatives have no motive to shield the real offender.
16. It was next argued that the son of the deceased had cause to do away with his father. The learned Counsel submitted that the deceased, father of P. W. 9, had borrowed Rs. 600/- from P. W. 7, the Police Patel and had squandered that money and in that connection there was a quarrel between the father and the son (P. W- 9) and P. W. 9 he submitted, had even gone out with an axe to assault his father. Therefore, according to him, the probability that P. W. 9 himself had done away with his father could not be ruled out. The learned Sessions Judge has rightly rejected this suggestion. Even the Patel does not say and in fact, positively denied that the deceased had taken Rupees 800/- from him. That being so, it is not correct to indulge in mere flights of fancy. The suggestion put should be reasonably probable before it could give rise to any reasonable doubt in the mind of the Court. In view of the positive evidence and other circumstances to which we would advert later, we have no hesitation in rejecting this submission.
17. It is in the evidence of P. Ws. 14 and 15. the Headman and the Junior Headman of Harijans in the locality of Thayur that they were called by the accused in the night itself. P. W. 14, Put tamalla has stated that he is the Yajman of the Harijan community and that on that Monday night at about mid-night when he was sleeping, one Kariya son of the 1st accused Suntaiah, came to his house and called him stating that the 1st accused had sent for him. P. W. 5 Kenchamma is the wife of P. W. 14 Puttamalla. They opened the door and P. W. 14 Puttamalla went to the scene of occurrence. By then P. W. 15, Ven-kataiah, the junior Yajaman had also arrived there. Accused No. 2 had gone to call him and before these headmen, the accused told that since the deceased in spite of several warnings before, had come in the night at about 11 p.m. to their house to have clandestine relation 'With accused No. 3, wife of accused No. 1, they caught him and tied him to the pole and assaulted him. According to them, both of them saw the deceased being tied to the pole and according to-P. W. 14 Puttamalla, the deceased was-unconscious while according to P. W. 15 Venkataiah, the deceased was already dead.
18. Having regard to the previous circumstances, the version of these witnesses cannot be brushed aside as unreliable. It is on record that there were disputes between the 1st accused and the deceased on account of the fact that the deceased was having illicit intimacy with the wife of accused No, 1. We have the evidence of P. W. 1, V. Krishna Murthy, the Head Constable and P. W. 2, T. N. Deviah on this point. Accused No. 1 had submitted Ex. P.I to P. W. 1 V. Krishamurthy on 27-4-1977 complaining that the deceased was having illicit intimacy with his wife and. that there was a quarrel between him and the deceased on account of that and that the deceased should be warned. Accordingly, the Sub-Inspector of Police had registered a case and the deceased was called and warned not to have anything with the wife of accused No. 1. The deceased had given an undertaking that ha would behave himself in future. In spite of it, the deceased had managed obviously to enter into the house of the accused to have clandestine affairs with the wife of the 1st accused. In the circumstances, it is probable that accused Nos. 1' and 2 were suddenly provoked and in the heat of passion they assaulted and killed the deceased and in the same-mood they must have intimated the headmen of the community. There is nothing unnatural or improbable about their conduct in reporting to the headmen and the headmen, who came to the spot, did observe that the deceased was tied to the peg and he was having bleeding injuries on the person.
19. It is true that P. W. 15 Venkataiah has not reported what he saw to anybody else. According to him, he went away from the village the next morning. But, P. W. 14 Puttamalla has sworn that he told his wife P. W. 5 Kenchamma what he saw. She has corroborated the version of P. W. 14. In the circumstances and on the facts of this case, we have no hesitation to believe the evidence of these two witnesses which fully corroborates the evidence of P. Ws. 9 and
20. In addition, we have other circumstances to lend assurance that it is Accused Nos. 1 and 2 who assaulted the -deceased and killed him. The C. I. of Police (P. W. 17) has stated that he on going to the cow-shed, found the clothes if the deceased which were blood-stained as also the peg, the rope, the stone -and the broken club which were all blood-stained. In addition, when he .searched the house of the accused he found M. 0. 10, the shirt of the 2nd accused which was also blood-stained. There is no dispute on this part of the evidence of the C. I. of Police (P. W. 17). The report of the Chemical Examiner is .at Ex. P. 12 and that of the Serologist at Ex. P. 13. The certificates make it clear that the broken club, the stone, the clothes found in the cow-shed as well as the shirt M.O. 10 of the 2nd accused, were stained with human blood and the blood was of the same group, namely. 'B' group. That further corroborates the evidence of P. Ws. 9 and 10 that the present accused are the persons who assaulted the deceased.
21. The learned Counsel for the appellants-accused then invited our attention to Ex. P. 3, wherein the name of accused No. 3 is not mentioned at all. It is so and that is the reason why the learned Sessions Judge has acquitted accused No. 3. He, however, commented further that since these witnesses, namely, P. Ws. 9 and 10 had gone to the extent of involving accused No. 3 also, their evidence should not be believed. Falsus in uno, falsus in omnibus is not a doctrine adopted in India. The Court should make an honest attempt, to disengage the truth from falsehood; to separate the grain from the chaff. Simply because in their evidence they have involved accused No. 3 also, it cannot be the sole reason to discredit their entire testimony especially so when the names of accused Nos. 1 and 2 are positively mentioned in the complaint Ex. P. 3.
22. Then it was submitted by the learned Counsel for the appellants that the fact that the 1st accused urinated in the mouth of the deceased is not mentioned in the complaint. That is so. But, there is always a tendency among the villagers and in the instant case, the witnesses are illiterate village rustics, to embellish the version. Discrepancies on the fringe and embellishment on the periphery would not go to destroy the deep undercurrent or substratum of prosecution case. Hence, the embellishment or the discrepancy discussed above would not be sufficient in our considered view to discard the entire evidence of P, Ws. 9 and 10, especially so, when the same is corroborated by other materials as discussed above.
23. In a recent decision on the Supreme Court in the case of Inder Singh v. State (Delhi Administration) : 1978CriLJ766 , his Lordship Justice V. R. Krishna Iyer, who spoke for the Bench, has observed thus (at p. 767 of Cri LJ):
Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary, that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes.
24. Viewed in that light, we have no hesitation to hold that the evidence on record in this case is sufficient to lead us to the inescapable conclusion of the guilt of the accused. Hence, we concur with the finding of the learned Sessions Judge that it is accused Nos. 1 and 2 who assaulted the deceased resulting in his death in the manner made out by the prosecution.
25. That leads us to the question whether on the proved facts of this case the learned Sessions Judge was justified in holding the accused guilty for the offence punishable under Section 302 of the I. P. C. The learned advocate for the appellants accused strenuously contended that on the showing of the prosecution itself, the case falls within Exception No. 1 to Section 300 of the Indian Penal Code. The Exception provided reads:
Exception 1. 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.
26. In the instant case, the learned Counsel for the appellants submitted that the very fact that the deceased at about mid-night entered the house of the accused with the intention of having a clandestine affair with the wife of accused No. 1, namely, original accused No. 3, was a sufficient factor that could provoke suddenly the accused Nos. 1 and 2. The submission so made is persuasive.
27. The Supreme Court of India in the leading case of K. M, Nanavati v. State of Maharashtra : AIR1962SC605 has explained the scope of the 1st Exception to Section 300 of the I. P. C. His Lordship Justice Subba Rao as he then was, who spoke for the Bench, has stated thus in para 85 of his judgment:
The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of 'grave and sudden' provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.
28. We .shall proceed to appreciate the evidence on record in the light of the above observations made by the. Supreme Court of India. The mental background created by the previous act of the victim in the case is that there I was dispute and hatred between the accused and the deceased on account of the fact that the deceased was having illicit intimacy with the wife of accused No, 1. We have already referred to the fact that the 1st accused had even filed a complaint to the Police as per Ex. P. 1 prior to the date of incident complaining against the conduct of the deceased in having illicit intimacy with his wife. In that connection, the deceased had even assured that he would in future behave himself. But in spite of it on that fateful night at about 11 p.m., the deceased stealthily entered the house of the accused obviously for a clandestine affair with the original accused No. 3, wife of accused No. 1. Viewed in the background of the previous conduct of the parties, it becomes obvious that the act of the deceased entering the house of the accused in that night for a clandestine affair with the wife of accused No. 1, is normally sufficient to provoke accused Nos. 1 and 2, accused No. 1 being the husband of the woman (A-3) and accused No, 2 being the son. The accused being unsophisticated rustics, cannot be expected to weigh the consequences in a golden scale. Naturally they caught hold of the deceased, who had entered the house for such a clandestine affair, dragged him out and in the very heat of passion, tied him to a pole and assaulted him which resulted in his death. Thus, on the showing of the prosecution itself,, all the ingredients of Exception 1 of Section 300, I. P. C. are fully satisfied on the facts of this case.
29. In the circumstances, the learned Sessions Judge, in our considered view, was not justified in finding the accused guilty for the offence under Sec 302 of the I. P. C.
30. It may also be observed in this connection that the learned Sessions Judge has himself observed that the accused assaulted not with the intention to kill, but with the knowledge that the assault in the ordinary course of nature was likely to cause death. If really the accused wanted to kill the deceased, nothing prevented them from hitting the head of the deceased with the stone M.O. 2. The Doctor, P. W. 11, who carried out the post-mortem examination and issued the post-mortem report Ex. P. 8, has stated that the skull was not fractured. In the circumstances, considering the manner of assault on different parts of the body except the head, it can safely be said that the accused assaulted and caused the injuries with the knowledge that they in the ordinary course of nature were likely to cause the death of the deceased. That falls within Clause (3) of Section 299, of the I. P. C. which says 'whoever causes death ... with the knowledge that he is likely by such act to cause death;1 and the offence so done becomes punishable u/s. 304 (2) of the I- P. C. Hence, we are of the considered view that the offence as made out by the prosecution becomes punishable under Section 304 (2) of the I. P. C.
31. In the result, for the reasons discussed above, the appeal is partly allowed. The appellants accused 1 and 2 are found guilty for an offence punish- able under Section 304 (2) of the I.P.C. and the conviction and sentence passed against them under Section 302 of the I. P. C. is hereby set aside; and on hearing the counsel on the aspect, the appellants-accused i and 2 are each sentenced to undergo rigorous imprisonment for four years instead of suffering imprisonment for life.