Sadananda Swamy, J.
1. The appellant has been convicted for an offence Under Section 302, IPC and sentenced to undergo imprisonment for life. The victim of the crime is Shantavva, the eldest daughter of Shivappa Tukkappanavar, a resident of Aminbhavi Her mother is Gangavva. Gulappa and Ramappa are her brothers and Yellavva is her sister, Shantavva was aged about 22 years and was married about two years prior to her death which took place on 5-11 1958. Her husband is one Gangappa Shibargatti. She had returned from her husband's house since 5 or 6 months prior to her death and was residing with her parents at Aminbhavi. She was in illicit intimacy with one Basappa Petunavar of Aminbhave.
2. Shivappa Tukkappanavar, his wife and children resided in a portion of the house situated in Basti Oni at Aminbhavi separately from Shivappa's father Tukkappa. In another portion of the same house, Yellappa with his wife Yamanavva and their sons Basappa and Fakirappa (the accused) resided. Yellappa is the brother of Tukkappa who is the paternal grand-father of the deceased. Tukkappa also resided in another portion of the said house.
3. The said house has a backyard towards its south. On 5-11-1968, a Tuesday, which was also a full-moon day, in the morning at about 9.30 A. M. Shantavva was cleaning the utensils in the backyard of that house. At that time her father and her grand-farther had gone out of the house for cooly work, her mother Gangavva was besmearing the floor of her kitchen, and her children Ramappa and Yellawwa were playing in the house. The accused Fakirappa who had gone out returned to his house. While returning to his house, he saw Shantavva engaged in making signs to her paramour Basappa Petunavar, who was at a distance. After returning to his house, he was with his mother in his house for some time. Then he went to the backyard. Then there was exchange of words between him and Shantavva. The accused seems to have taken exception to the conduct of Shantavva. Shantavva reiterated saying that he had no business to question her even if she carried on an affair with others.
The accused got offended and said that his family reputation was being spoiled by her and attacked her with a sickle and delivered blows at her neck with it. Gangavva went to the rescue of her daughter and cried for help. One Subbaiah came. She then ran bawling out to the house of the police patil which was nearby and informed him that the accused was attacking her daughter. Then the patil and Gangavva returned to the house, but by that time Shantavva was lying dead having sustained cut injuries on her chest and neck. On seeing the police patil, the accused who was in his portion of the house began to run away, but he was immediately caught by the patil. The patil kept a walikar on watch over the dead body and brought the accused to the Dharwar Police Station with the assistance of another Walikar and produced the accused before the Sub Inspector of Police and lodged a complaint.
4. The offence was registered as Crime No. 82/68 and the accused was arrested and his blood-stained shirt and dhoti on his person were attached under the panchanama. The Police Sub-Inspector questioned the accused. The accused volunteered information and produced a sickle. The P. S. I. recorded the information furnished by the accused and proceeded with the accused to Aminbhavi.
5. The accused produced the sickle from inside the kitchen of his house and the same was attached under a panchanama. Then an inquest panchanama was drawn up, the dead body was sent to the Civil Hospital at Dharwar for post-mortem examination. The panchanama of the scene of offence was drawn up and the blood-stained earth removed from the spot and the Mangalasutra or Guladali lying on the ground were attached.
6. The Medical Officer, Sri Kalaburgi, conducted the post-mortem examination on 6-11-1968 and the clothes and ornaments found on the dead body were returned with the dead body to the police. The P. S. I. conducted the investigation till 6-11-68 and thereafter the Circle Inspector of Police, Dharwar, took up further investigation. The P. S. I, assisted him. The blood-stained clothes and articles etc., were sent to the Chemical Examiner and they were got examined. A sketch of the scene of offence was also got drawn up. The Charge sheet was sent to the Court of the J. M. F. C. Dharwar.
7. During the inquiry, the Committal Court recorded the evidence of four eye-witnesses Gangavva, Yellavva, Ramappa and one Subbaiah and the last witness was treated hostile. The accused pleaded not guilty. A charge was framed against the accused for an offence Under Section 302, IPC and he was committed to take his trial in the Court of Session at Dharwar.
8. The prosecution examined 17 witnesses. The accused admits his relationship with the deceased. His plea is that the relationship between his father and his senior uncle were not cordial and that due to ill-will, Gangavva and his children have reported against him. He also pleaded that he was formerly a servant of the police patil P.W. 1, that the latter had to pay him wages and when he insisted on payment, the patil had not paid him and removed him from service, and that Gangavva and the police patil together have filed a false complaint against him. No witnesses have been examined on behalf of the defence.
9. The points which are set out by the trial Court for its decision are as follows:-
(i) Whether it is established by the prosecution that the deceased Shantawa met a homicidal death?
(ii) If so, whether this accused is responsible for her death as alleged?
(iii) If so, what offence the accused has committed?
The trial Court answered the first two points in the affirmative and convicted and sentenced the appellant for the offence Under Section 302, IPC to imprisonment for life.
10. In this appeal, the same points as set out above arise for decision.
11. The parents of the deceased and their family resided in one portion of the house. The grand-father Tukkappa resided in another portion. Yellappa, along with his wife and son including the accused resided in another portion of the same house. The house faces towards the north and it has a back yard towards its south. On entering the said house, there is a 'padasala' on the right side and in a portion of one ankanams out of the three ankanams, the mother of the deceased. Gangavva, had a kitchen. There is also a door connecting that house to the back-yard. The sketch prepared by the Supervisor of the Public Works Department shows the place where the dead body was lying and the door towards the backyard of the house by the letters A and B respectively. The house of the accused is shown just adjacent to that of the family of the deceased. Just behind the back yard of the house to the south of it, is situated the house of one Basappa Ligade. The door of the back yard of the house is just in line with the front door and the Husi running in between the two, according to the evidence of P.W. 1 the patil. P.W. 3 Laxman stated that the distance between the place where the dead body was lying and the place where the cart was left at point 'C is about 90 feet and that there is a compound wall in between these two places.
12. The fact that the deceased met a violent death is not seriously disputed. She was married and was aged about 22 years. The evidence of P.W. 1 the police patil, the P. S. I. and the panch witness P.W. 6 and the contents of the inquest panchanama Ex. P. 5 show that the deceased was found lying dead in the back yard at about 9-30 A. M. on sustaining injuries. Immediately after the inquest panchanama, the dead body was sent for post-mortem examination with P.W. 12 to the Civil Hospital, Dharwar at about 5-30 P. M. on that day.
The Medical Officer conducted the post-mortem examination at about 3-30 P. M. the next day. He found eight in- cised injuries on the dead body. He also found two internal injuries one at the right rib, also the right lung was punctured, the spinal cord was opened and it was cut across the level of the sixth article vertebra corresponding to internal injury No. 7. He maintains that all these injuries were antemortem and the, external injuries at S. Nos. 7 and 8 with the corresponding internal injuries were together or individually sufficient to cause the death of the deceased. According to him, all the injuries might have been caused by a hard and sharp weapon like the sickle before Court, In his opinion, the death was due to shock and haemorrhage on account of the injuries Nos. 7 and 8. He has issued the postmortem certificate Ex. P 2. It's contents support his evidence. He has also stated that the stomach contained the semi-digested rice and vegetable particles of the Quantity of 14 ozs. and according to him, the death might have taken place within about three hours after the last meal. The sickle before the court was sent for his opinion and he gave the opinion Ex. P. 14. The lower court was therefore right in holding that the prosecution has established that the deceased Shantavva met with homicidal death.
13. The next question to be considered is whether the appellant is responsible for causing the death of the deceased by delivering blows with the sickle as alleged by the prosecution. The prosecution relies upon both direct and circumstantial evidence. Out of the four eye witnesses, three have been examined Gangavva P.W. 9 is the mother of the deceased. P.W. 4 Ramappa, P.W. 8 Yellavva, the younger brother and the younger sister of the deceased respectively are child witnesses. The other witness Subbaiah was examined in the Committal court and since he did not support the prosecution case, he was treated as hostile and he was not examined in the trial court. The prosecution relies upon the following circumstances:
1. The movement of the accused just prior to the incident;
2. His attempt to run away from his house on seeing the police patil;
3. His being caught by the police patil immediately and the presence of blood-stains on his shirt and dhoti;
4. The information furnished by the accused to the P. S. I. which led to the discovery of the sickle and the recovery of the blood stained sickle in the house of the accused.
14. P.W. 4 Ramappa is aged about 3 or 4 years. Though he gave his age as 8 years, when asked to point out by his fingers, he pointed out three fingers indicating his age to be three years. His deposition has been recorded in the question and answer form at the request of the defence and also having regard to his age. He has stated that his elder sister Shantavva died on account of the blows dealt by the accused with his sickle. He claims that he witnessed the incident when he was playing with Yellavva. In the first instance he stated that he was playing with his elder sister Shantavva the deceased and that a blow was given by the accused to Shantavva's neck. According to him, his mother was at that time besmearing the floor inside the kitchen and he was himself just outside the door of the back yard. He was not able to state as the game he was playing at the time of the incident. He stated that he had not left the place after the incident and that he had not been tutored to depose in the court.
P.W. 8, is the elder sister of P.W. 4. She has given her age as five years. She states that the accused is her uncle and that her elder sister Shantavva died on being attacked by the accused with the sickle with blows on her neck at the time when the witness was playing in the back yard with P.W. 4. in the morning at the time the cattle were taken for grazing and at that time her mother was besmearing the ground in the kitchen. She also states that on hearing the cry, her mother came running trying to rescue the deceased and at that time her mother sustained an injury to the pointing finger on the right hand. According to her evidence, the deceased was sitting in the backyard and cleaning utensils and that the accused attacked her while she was so sitting and as a result of it, she fell down to the ground. She stated that the accused gave four blows to the deceased and denied having stated before the police that the accused gave only 3 or 4 blows. She also denies having stated before the police that being afraid she and her younger brother ran away from the place.
The evidence of P.W. 16 the Sub Inspector of police who recorded the statement of this witness shows that this witness has not stated before him that she and her younger brother were playing in the backyard and also the fact of her mother sustaining injury on her finger while trying to rescue the deceased. This witness has not stated before the police that the accused dealt blows on the neck of the deceased. She has also not stated that the accused gave the deceased four blows with the sickle. But she has stated that the accused gave two or three blows. It is elicited from this witness, as per Ex. D-l, that she stated before the police that at the time of the offence she and her younger brother ran away being afraid.
15. The other eye witness is P.W. 9. Gangavva, the mother of the deceased. She stated in her evidence that on that Tuesday, a full-moon day, about two hours after sunrise, while she was besmearing the ground in the kitchen, the deceased Shantavva was cleaning the utensils in the backyard and her children P. Ws. 4 and 8 were playing near the back yard door of her house. She heard the exchange of words between the accused and Shantavva the deceased. She went to the back yard and at that time she heard her daughter saying to the accused 'What will you do if I carry on an affair', and the accused, replied 'you have destroyed the honour of my family. It is better you perish'. On hearing these words, she went to the backyard and found the accused giving blows with the sickle on the neck of Shantavva. She attempted to rescue her and in that attempt sustained an injury on the pointing finger of her right hand and then she left the place bawling out and went to the house of the patil. According to her, one Subbaiah was also present at that time. She identifies M.O. 5 as the sickle in the hand of the accused with which he dealt the blows to the deceased. According to her evidence, by the time she returned with the police patil to the spot, her daughter was lying dead with injuries on her body. On the chest and the neck and blood was flowing out fully at the place where Shantavva was lying in the back-yard. She also states that the accused at that time tried to run away from the kitchen and the police patil caught hold of him and took him to Dharwar.
16. P.W. 9 Gangavva has stated that at one time it was intended that Shantavva should be given in marriage to her brother, but the betrothal did not take place. She has denied the suggestion that the marriage was not approved because of the suspicion that her daughter was of bad character. She has denied that she and her daughter have been working with P.W. 1 Petunavar, but she admits that she and her daughter were attending the agricultural work in the field of police patil. She has also denied the suggestion that Basappa Petunavar, one Malleshi, one Gulappa Pradhani and Peerya Tammannavar were often coming to her house and that her son-in-law had left her daughter Shantavva on account of her illegal intimacy with these persons. It was also suggested to her in cross-examination that there had been a quarrel amongst the said four persons in connection with her daughter's affairs with them and she pleaded ignorance about it. Another suggestion made to her and denied by her is that one Bhimappa Tukkappanavar has also got a share in the said house and that there is a dispute between her husband and the father of the accused in that connection.
It is also elicited in her cross-examination that round about her house, there are big lanes and there are a few houses in between her house and that of the police patil. But she has stated that only Subbaiah came on hearing her cry and that she did not meet anybody else to rescue her daughter. According to her evidence, the police patil caught the accused within two paces from the front door of the house beyond the threshold in the front yard. She denies the suggestion that she stated before the committal court that the accused was in the kitchen when the police patil caught him. She has stated that at the time the accused gave blows with the sickle to Shantavva, the latter got up and fell down on sustaining injuries though not immediately. She has also stated that she sustained injuries on her finger and blood began to bleed from the injury. She has stated that blood was sprinkled on the utensils which the deceased was cleaning. She has admitted that on that day, it being a: fullmoon day, she was in the kitchen and neither she nor her daughter had taken food or meals in the morning. She has also stated that if any food remains in the night, it will be eaten by others in the family after some time.
17. As per Ex. D-2 she has stated before the police, that her son Ramappa and daughter Yellavva were playing in the 'padasala' at the time of the incident. But in her evidence she has stated that her children were playing near the back yard door at the time of the occurrence. It is in the evidence of P.W. 6, the panch witness, that persons who will be in the padasala at that house will be unable to understand what is happening in the back yard or in the front yard of the main door.
18. P.W. 1 is the police patil who corroborates the evidence of P.W. 9 to the effect that when he was sitting in his house, P. W, 9 came to him bawling out that her daughter Shantavva was being cut by the accused Fakirappa at about 9 or 9-30 A. M. He accompanied her immediately and went to her house. He asked her the reason and she told him that due to a quarrel and exchange of words that went on between the accused and the deceased, the accused was enraged and dealt blows to the deceased with the sickle. She has also told him according to the evidence of P.W. 1, that her children Yellavva and Ramappa and one Subbaiah were present at that time near the spot. P.W. 1 has stated that by the time he went to the spot, Shantavva was dead and he saw the dead body lying in the back yard of the house of P.W. 9. At that time, the accused came out from the kitchen of his house and attempted to run away. He followed him, stopped him and caught hold of him He has stated that the accused at that time was wearing a shirt and dhoti, M. Os. 1 and 2 respectively and that they were blood-stained. He took the accused with the assistance of Bhimappa Walikar to Dharwar Police station and produced him before the Sub Inspector of Police and lodged his complaint, Ex. P-l. The contents of the complaint, Ex. P. 1, makes it clear that P.W. 9 had told him that she and her two children and one Subbaiah were present near the scene of occurrence at that time. He has mentioned therein that the accused was wearing the blood-stained clothes and that immediately on catching hold of him, he proceeded with the accused to the police station. This supports the explanation why P.W. 1 did not record the first information given by P.W. 9 to him.
He also identified M. Os. 1 and 2 as the clothes worn by the accused. He has stated that P.W. 9 did not tell him anything' more than the accused delivering blows with the sickle on her daughter and also that he did not feel it necessary to ask as to the details of what had happened. He was in his house for about five minutes after P.W. 9 came, After seeing the dead body, he was entering the house of P.W. 9. At that time, he saw the accused running through the front door and he then caught hold of him. He admits having been in the back yard of the house of P, W. 9 for about ten minutes. According to his evidence, the police came at about 3 P. M. that day. He also states that he kept one Walikar to watch over the dead body before proceeding to the police station with the accused. A suggestion has been made to him in the cross-examination that there is dispute between him and the accused in respect of wages due to the accused and that therefore he and Gangavva P.W. 9 have falsely involved the accused in this case. This suggestion has been denied by him.
19. Abdul Rahim Tahsildar P.W. 14 is the Walikar who was kept to watch over the dead body. He has stated that one day he went to the house of the Police Patil P.W. 1, that at that time P.W. 9 came bawling out that her daughter was being attacked, that the police patil then asked him to keep watch over the dead body and that P.W. 1 went, away stating that he would go to Dharwar. This witness was treated as a hostile witness by the prosecution. During the cross-examination, he has stated that he has not seen the police patil taking the accused to Dharwar. He has, on the other hand, stated before the police, as per Ex. P-l2, that the police patil with the accused went to Dharwar. In view of the evidence of P.W. 1G and the circumstances that the accused was produced by P, W. 1 in the police station and in view of the panchanama drawn up immediately in the police station, it is evident that the witness has purposely gone out of his way ta help the accused. But even this witness has said that P.W. 9 came to the police patil at about 9 A. M. though he has not v stated that P.W. 9 named the accused as the person who was dealing blows with the sickle.
20. P.W. 12 Lingappa states that on the date of the occurrence at about 9 or 9-30 A. M. he saw Gangavva P.W. 9 proceeding towards the patil's house shouting that her daughter was being attacked by the accused. He claims to have got up into the parked cart which in front of Lingade's house near the place where he saw Gangavva and Shantavva the deceased falling in the back-yard. He also states that P.W. 1 came with P.W. 9 to the house and within about two minutes P.W. 1 went away with the accused. This witness is the younger brother of the police patil, P, W. 1. He has stated before the police, as per Ex. D-3, that while he was passing in front of Shantavva's house P.W. 9 went to call the police patil. He denies the suggestion that he has given evidence only at the instance of P.W. 1.
21. P.W. 13 is the son of P.W. 12. He has stated in his evidence that he saw Basappa Putenavar making signs from a distance to the deceased. In the first instance he stated that when he was near the Dyamavva's temple at about 8 or 8-30 A. M. on that day he saw Basappa Petunavar standing in the arch of the temple and making signs to Shantavva and at that time the accused went away passing by that spot. During cross-examination he stated that since there is a compound wall, he could not see inside the back yard as to where Shantavva was. He denies the suggestion that he has stated falsehood in having seen Basappa Petunavar engaged in making signs. In re-examination, he speaks to the latter version as the correct one, i. e., that he could not see where Shantavva was. He also stated that at the time he saw Basappa Petunavar, the latter had in his hand a sickle, the handle of which he could see, but stated that he has not seen the sickle with Basappa. The evidence of this witness shows that he has half-heartedly supported both the prosecution as well as the defence.
22. P.W. 17, the C. P. I. has stated that he sent the articles seized to the Chemical Examiner and to have received the report, Ex. P-l3, and the report of the Serologist, Ex. P-16.
23. It is contended on behalf of the appellant by Sri Deshpande, that Shantavva was of immoral character and having a number of paramours and one of them being aggrieved or disappointed or having quarrelled with her, might have killed her during the previous night itself and that the appellant has been falsely involved on account of his enmity with the police patil and the family of Gangawa P.W. 9. He contends that the evidence of child witnesses cannot be safely relied on and that they appear to be tutored. P.W. 4 has given his name as Kittappa in the committal court and has admitted that his elder brother's name is Ramappa alias Gulappa. Keeling on this admission, it is contended that probably Ramappa must have been a different person. It is quite possible that the witness got confused and stated that his elder brother is also known as Ramappa. P.W. 9 his mother is definite that it is this witness who is Ramappa. P.W. 4 stated that was' playing with Shantavva, the deceased. It is contended on behalf of the appellant that if this version is correct, the version of P.W. 8 that Shantavva was cleaning the utensils at that time must be false. As per Ex. D-2, P.W. 9 has stated before the police that P. Ws. 4 and 8 were playing in the 'padasala'. He contended that if this statement is correct, P, Ws. 4 and 8 could not possibly be near the backyard at the time of the occurrence.
P.W. 8 stated that Shantavva was sitting at the time of the incident and according to P.W. 9 she was standing. But considering the injuries on the person of the deceased, it is possible that the deceased was standing at the time injuries were inflicted on her as stated by P.W. 9. P.W. 4 has not given the number of blows given by the accused with the sickle. P.W. 8 has .given the number of blows as four, though in her previous statement she has stated that she saw 3 or 4 blows given with the sickle. But being of tender age, it cannot be expected that P. Ws. 4 and 8 could remember all the details of the incident which they saw which was very unusual and which caused great excitement in their minds at that time. It is also urged that though according to P.W. 8 as well as P.W. 9, an injury was caused on the finger of the right hand of P.W. 9, there is no evidence that P.W. 9 was treated for the injury. It is also urged that the utensils though said to have been sprinkled with blood, according to the evidence of P.W. 9 have not been attached and got examined by the Chemical Examiner for the presence of the bloodstains. But it is in the evidence of P.W. 9 that immediately after the incident, she stated to the police patil that P. Ws. 4 and 8 as well as one Subbaiah were present at the spot. This was also found in the complaint which was filed immediately thereafter. It is also in the evidence that P.W. 1 has caught the accused at the latter's house when he had gone there at the request of P.W. 9. P. Ws. 12 and 14 have stated that P.W. 9 went on shouting that her daughter was being attacked by the accused. The police patil P.W. 1 has immediately caught hold of the accused who was wearing the blood-stained clothes and the accused was taken to the police station.
In view of this evidence, the discrepancies in the evidence of the eye witnesses, lose their importance and they are of a minor and insignificant nature. Even if the children were play-ins in the 'Padasala', as stated by P.W. 9 before the police, there is the probability of their having gone up to the back yard door and having seen the accused attacking their sister with the sickle. It is urged that the conduct of P.W. 9-in running away to fetch the patil from the scene of the crime, instead of asking Subbaiah, who is alleged to have been present, to fetch the patil is unnatural and that it would be natural to expect her to stay and try to help the deceased. It must be remembered that she must have been taken by surprise and fear when she saw suddenly that the accused was attacking her daughter with the sickle and the immediate reaction was to go to the police patil, whom she knew, shouting in her excitement as stated by P.W. 12. It cannot be said that her conduct is unnatural.
24. According to the evidence of the Medical Officer, some deposit of rice and vegetable particles of the quantity of 14 ozs. were found in the stomach of the deceased. P.W. 9 stated in her evidence that on that morning she and her daughter had not taken food. According to the Medical Officer, death must have occurred about three hours after the last meal. It is therefore argued that Shantavva must have been killed at about mid-night, as she must have taken her last meal only in the previous night. It has to be remembered that the presence of semi-digested food in the stomach is not conclusive in itself for determining the time of death. There is the possibility of Shantavva being young and therefore of her having taken what remained of the food left over the previous night early in the morning without informing her mother. It is not reasonable to expect that P.W. 9 would have waited until 9 or 9-30 a. m. if the death had taken place earlier in the night as contended on behalf of the appellant, especially when the dead body was lying in the open back yard of the house, and many others would also have noticed it much earlier. It is further contended that the prosecution should have examined independent witnesses to the occurrence and that admittedly Subbaiah who was an eyewitness has not been examined by the prosecution. It is no doubt true that it is in the evidence of P.W. 9 that there are houses nearby the house of P.W. 9, but according to her evidence it is only Subbaiah who came to answer to her shouting. It is possible that the persons in the nearby houses did not hear her shouting for help, or that the persons in the neighbouring houses had gone out of the house for working in fields. Subbaiah was already treated hostile in the Committal court and it is not reasonable to expect the prosecution to examine him. There is no reason why P.W. 9 Gangawa should falsely involve the accused who is her close relative. Even if the alleged dispute regarding the share in the house is true, it cannot be expected that on account of such a dispute, she would falsely involve the accused in a serious crime. The allegation that the accused had quarrelled with the police patil in regard to the wages, even if it is true, cannot afford a basis for P.W. 1 to falsely involve the accused in the crime. Hence, the evidence of P. Ws. 1, 4, 8 and 9 has to be accepted.
25. It is further contended that there are discrepancies with regard to the description of the blood-stains on the clothes of the deceased. In Exhibit P-13, the report of the Chemical Examiner, it is stated that there were two irregular stains, one of which was on the upper part of the shirt in its front, when it should have been stated that it is in the lower part. But on reading the description of the bloodstains as described in the panchanama drawn up when they were seized, there appears to be no discrepancies.
26. P.W. 15 has spoken to the information furnished by the accused in pursuance to which the blood-stained sickle was recovered from the house of the accused. P. Ws. 6 and 7 have stated that the contents of the panchanama are correct as to the recovery of the sickle M.O. 5. The evidence of P.W. 9 that the police had come to the village at 9 a. m. must be a mistake in view of the evidence of P. Ws. 1 and 15 in that behalf. The P. S. I. has stated in his evidence that they came to the village after registering the case in the afternoon. There is no reason to disbelieve the evidence of P.W. 15 with regard to the information furnished by the accused and the recovery of the blood-stained sickle M.O. 5 in pursuance of the information furnished by the accused.
27. The fact that P.W. 9 the mother of the deceased has stated that her daughter openly told the accused that it was none of his business to question her carrying on an affair with her paramour, shows that her evidence is true and it is probable that the accused got enraged and attacked the deceased with the sickle.
28. P.W. 16 the Inspector of Police who was working as Sub-Inspector of Police, Dharwar Rural Police Station on 5-11-1958, has given evidence that he found the accused in the police station brought by Police Patil. He questioned him and recorded his say as per Ex. P-ll. Admissible portions are marked. Further, he deposed that he proceeded to Aminbhavi along with the accused and secured two panchas. The accused voluntarily led them to his house and produced the sickle from his kitchen room. He attached the blood-stained sickle in the presence of the panchas, packed and sealed it under panchanama Ex. P. 6. Suggestions that the accused did not give any information, that Ex. P. 11 was falsely prepared and further that he falsely prepared the panchanama Ex. P. 6 have been denied by him. It is significant to note that this witness has not deposed to the information actually given by the accused. He merely says that he recorded his statement and it is Ex. P. 11. Without the direct evidence given by P.W. 16 with regard to the information furnished by the accused, Ex. P. 11, a record made by P.W. 16, in our opinion, does not prove the information (vide Criminal Appeal No. 238/69).
P.W. 6 Mari Thimmappa Hullur is the panch witness who has attested Ex. P. 6. His evidence is that a panchanama of the search of the house was drawn after the panchanama of the dead body was drawn up. The accused Fakirappa was present with the police. He has deposed that himself and other panchas and others were present when he had gone to search and the sickle was found in the kitchen room. It was bloodstained. They drew panchanama as per Ex. P. 6 and he has signed it. He identifies M.O. 5 as the sickle. P.W. 7 Padappa Gulappa Boodihal is another witness who was present at the time of seizure of M.O. No. 5 under Ex. P-6. His evidence is that the S. I. of Police, himself and another panch went inside the kitchen room in search and found a sickle on the oven. It had little bloodstains. They took it and drew up a panchanama. He has signed the panchanama Ex. P. 6. He identifies M.O. No. 5 as the sickle. The evidence of the panchas P. Ws. 6 and 7 does not corroborate the evidence of P.W. 16, the S. I. of police, that the accused voluntarily led them to his house and produced the sickle from his kitchen room. Their evidence is that the police and the panchas searched and secured M.O. S from the kitchen room of the accused. They do not say that the accused produced M.O. No. 5 taking it out from the kitchen. They have not been treated hostile. There is no reason to disbelieve their evidence. Ex. P-15 discloses that M.O. No. 5 has been stained with human blood. Though the information has not been satisfactorily established by the prosecution, it has been satisfactorily established that M.O. No. 5 was stained with human blood and it was recovered from the kitchen of the house of the accused in his presence. P.W. 9 has deposed that the accused cut the deceased with M.O. No. 5. She has identified M.O. No. 5. Her evidence in this regard has not been challenged in the course of cross-examination. This is another piece of circumstance which connects the accused with the crime. Therefore, we may safely conclude that the accused cut the deceased with M.O. No. 5 and kept it in the kitchen.
28-A. The evidence of P. Ws. 4, 8 and 9 coupled with the fact that the accused was caught by P.W. 1 with blood-stained clothes on his body immediately after the incident and the recovery of the sickle from the kitchen room of the house of the accused and identification of M.O. No. 5 by P.W. 9 as the one with which the accused cut Shantavva are sufficient to establish the guilt of the accused.
29. It is contended on behalf of the appellant that even according to the case of the prosecution, the conversation that took place between the accused and the deceased shows that the words of the deceased were sufficient to provoke the accused to make him lose his self-control and that even if it is to be found that the accused has committed the crime, it would amount only to an offence Under Section 304, IPC and not one Under Section 302 IPC A similar contention was urged in the case reported in I. L. R. (1955) Mad 1227 (In Re: Jamaluddin). The accused in that case was looking after the affairs of his first cousin, the deceased, aged twenty-two, for some five years before the occurrence as her parents were dead, and her husband and brother were residing outside the country. The accused was not her guardian nor was she living under his protection. He was merely a friend and helper, looking after her affairs. There was a rumour that the deceased was living a loose life. According to the accused in that case, he went to the house of the deceased and found her having sexual intercourse with some man, but the man on seeing him ran away and that unable to control his anger, the accused stabbed his cousin, the deceased. The case as set out by the accused was accepted as true.
It was held rejecting the contention of the accused, that:-
though there are rulings to the effect that when a wife or mother or married sister, living under the protection of the husband or son or brother is caught in the act of having sexual intercourse with a stranger, the killing of that stranger, before there is time to get over the sudden anger, would be only an offence Under Section 304, India Penal Code, there is no ruling that a person, like the appellant, not being the guardian or custodian of a woman like the deceased, a mere first cousin, would have a similar right to kill her and claim to be convicted only Under Section 304 Indian Penal Code. We consider that the ruling referred to above should not be extended to first cousins, second cousins and others, especially when they are also not in the custody or protection of the individual killing them.
The conviction Under Section 302, IPC was confirmed. We are in full agreement with the above-said observations.. In the present case, the father of the deceased is the cousin of the accused. The family of the accused and the family of the deceased were living in different houses though they are of different portions of the same building. It cannot be said that the deceased was in any way under the protection or care of the accused. On the other hand, the suggestion made in her cross-examination to P.W. 9 is that there is a dispute with regard to the house property between the family of the deceased and the family of the accused and that the two families are not on good terms on that account. Hence, the appellant cannot urge that the offence committed by him comes only Under Section 304, IPC and not Under Section 302, IPC
30. A number of decisions were relied on by the appellant. In : AIR1957Mad541 (In Re: Murugian) the accused asked his wife to give up her illicit intimacy with her paramour. The wife said that she would not give him up and abused the accused and said that she would continue her intimacy with her paramour. The accused immediately hurt his wife and killed her. It was held that the case comes within the purview of Section 304 (1) IPC In : AIR1953Mad579 (In Re: Kannan) it was held that beating another person with a shoe is considered to be the height of shame and particularly in the midst of a number of villagers right in the street, and that an attempt to beat a man with shoe would give sufficient provocation to the man intended to be beaten and that it would constitute grave and sudden provocation bringing the offence Under Section 304 (1), IPC if the person who was sought to be beaten retaliated by stabbing the deceased with a pen knife, which he was carrying in his pocket. The present case is not one of attempting to beat with a shoe in the presence of villagers in the street.
In (Atma Ram v. State) it was held that the foul words used by the deceased wife to her husband would be sufficient to provoke such a degree of frenzy and resentment, in the man situated in the position of the accused they would make him lose all the power of self-control so as to bring the killing of the wife by the husband under the provisions of Section 304 (1) of the Indian Penal Code. In , (Amarjit Singh v. State), the son on hearing the father abusing him and saying that he must provide him with money even though he had to get his mother prostituted for raising it, immediately inflicted blows with a knife on the father and killed him, was held to be an offence committed under grave and sudden provocation entitling the accused to the benefit of exception I to Section 300 and consequently, the offence committed by him was one Under Section 304 IPC In the present case, the language used by the deceased was not such as to amount to insulting the mother of the accused. On the other hand, the deceased only questioned the right of the accused to interfere with her own affairs.
In A.I.R. 1939 Lah 471 (Hussain v. Emperor) it was held that the accused killing another man found in his wife's bed in an attempt to commit adultery with her is entitled to the benefit of Exception I to Section 300 IPC and that he can be convicted only Under Section 304 IPC The present case is not a case of the husband being taken by surprise in finding his wife being unfaithful or a case of provocation by the wife. Hence, the cases dealing with the offence committed by the husband on being prorogated by the misconduct of the wife are not applicable.
31. The learned State Public prosecutor has relied on the following observations in : AIR1962SC605 (K. M. Nanavati v. State of Maharashtra).
In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilt of the accused: to put it in other words, the accused is presumed to be innocent until his guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or Proviso contained in any other part of the Penal Code, or in any law defining an offence. Section 105 of the Evidence Act raises a presumption against the accused and also throws a burden on him to rebut the said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved.
and contends that the burden is on the accused to show that the offence committed by him comes under any of the Exceptions and that he has failed to do so in this case. His contention has to be upheld.
32. The appeal is therefore dismissed, and the conviction and sentence passed on the appellant are confirmed.