R. Chandra, J.
1. This is a Jail appeal by Shyama Charan (40), resident of village Malhpur Kaurha, Police Station Kant, district Shahjahanpur, against his conviction under Section 302, I. P. C. by the Sessions Judge, Hardoi. He has been awarded death penalty. The Sessions Judge has also made the usual reference for confirmation of the death sentence.
Since this was a capital sentence case, and the appellant could not afford to engage a counsel, Shri J. N. Misra was appointed amicus curiae to represent him. We have heard Shri Misra for the appellant and the Assistant Government Advocate for the State.
2. Shyama Charan appellant is a Sadhu. He probably belongs to the sect of 'Dandi Sadhus' who carry a stick with them which is regarded sacred. The case of the prosecution in short was, that on 29th May, 1967 at about 3 P. M. he visited village Mahmudpur, police station Pali, district Hardoi. When he was going on the village pathway he passed through a chabutra which was situated close to the chaupal, which belonged to one Mathura Singh. Srimati Bitta a widow (sister of Mathura Singh), was sitting in that chaupal and talking to her son Mahesh Pal, aged about fourteen years. She had come to the village only a few months ago, from her late husband's place Ramapur. Mahesh Pal had come that very morning to take her back home. She, however, deferred the departure for a couple of days. When they were busy chatting in the chaupal they saw Shayama Charan appellant. He went there and sat at the door of the chaupal. Srimati Bitta and her son on seeing the Sadhu respectfully wished him with the usual words 'Siya Ram'. To their utter surprise, they found that the appellant did not like that form of greeting and completely lost temper. He remarked, 'why do you wish with the words 'Siya Ram'. Do you not know their misdeeds (referring to 'Sita' and 'Ram'). Ladies like you were a disgrace to the country. Would you die, if instead you used the words ''Namo Narayan'.'
Srimati Bitta could not tolerate those disrespectful remarks for Sita and Ram who among the Hindus are normally regarded as the incarnations of God. She immediately retorted 'What type of Sadhu you are, when you are talking in these terms, are you a Sadhu or an imposter. I shall call my men who will take you to task'. With these words, she got up and came out of the chaupal. While going she also kicked the stick which the appellant was carrying. When she was going through the pathway towards the house of her brother Mathura Singh which was situated about 10 paces from there, Shyama Charan also got up and took out a knife from his jhola which he was carrying and chased Srimati Bitta. He threw her on the ground, and by sitting on her chest showered knife blows on vital parts of her body. The boy Mahesh Pal saw the entire incident from the chabutra like a helpless spectator. He raised an alarm and a number of persons from inside the house of Mathura Singh and others arrived there. Thereupon the assailant took to his heels. He was chased, overpowered and arrested. He was also dispossessed of the knife and was taken to the chabutra. The victim succumbed to her injuries on the spot.
3. Mahesh Pal and his cousin Om Pal went to the police station where the former lodged the report Ext. Ka-1 at 6.30 P. M. (The distance of the police station from the scene of occurrence was about eight miles). Head Constable Mobin Ahmad P. W. 4 recorded the report. A case was registered under Section 302 I. P. C. vide extract from the general diary report Ext. Ka-3. At the time of making of the report no Sub-Inspector was present at the Thana. Constable Dhani Ram was deputed to convey the information to Sub-Inspector Chandrapal Singh, who was at Chowki Panch Deura. Head Constable Mobin Alimad himself went with some constables to village Mahmudpur. They reached there at about 10 P. M. The dead body of Srimati Bitta was found lying in the galiyara and a number of villagers were watching it. Shyama Charan appellant had also been detained there by the villagers. The Head Constable prepared the inquest report Ext. Ka-4. After the necessary formalities he despatched the dead body of Srimati Bitta through Constable Ziledar Singh P. W. 3 for post mortem examination to Fatehgarh. (It was sent to Fatehgarh and not to Hardoi, because it was nearer from village Mahmudpur). Sub-Inspector Chandrapal Singh P. W. 5 also returned early next morning. He recovered the sacred stick Ext. 1, knife Ext. 2 and jhola (not exhibited) under the memos Exts. Ka-8, Ka-9 and Ka-10. These articles were duly sealed at the spot. The sub-Inspector also collected plain and bloodstained earth from the scene of occurrence under the memo Ext. Ka-11. After inspecting the locality he prepared the site plan Ext. Ka-12. He also interrogated the witnesses.
4. Dr. M. R. Khetrapal, Medical Officer, Sadar Hospital, Fatehgarh, conducted the post mortem examination on the dead body of Srimati Bitta on 30th May, 1967 at 4 P. M. He estimated the age of the deceased as 45 years, and time since death about one day. He found the following ante mortem injuries on her person:--
1. Punctured wound 3/4' x 1/4' x 2/3/4' on the right side on the neck, 1/2' above the inner side of the right collar bone clean cut margins with sharp angle at the lower end and raggedness on the upper end of the wound. Directed obliquely and downwards and backwards.
2. Incised wound 3/4' x 1/4' bone on the chin in the front, clean cut margins obliquely downwards with tailing at the lower end.
3. Punctured wound 1/2' x 1/4' x 1' on the right side on the lower part of the chest in the midelavicular bone 11' below the right collar bone, clean cut margins with sharp angle at one end and raggedness on the other end of the wound, directed obliquely and forwards.
4. Incised wound 1/2' x 1/4' muscle in front of the right thigh, 7' above the knee, clean cut margins with tailing upwards and directed obliquely upwards.
5. Incised wound 1' x 1/4' muscle on the outer side of right thigh 5' above, the right knee. Clean cut margins with tailing upwards, directed from behind upwards.
6. Incised wound 3/4' x 1/8' x 1/4' on the left palm. Clean cut margins, obliquely downwards with tailing at the lower side.
7. Incised wound 1/2' x 1/4' x 1/4' on the left side back 81/2' below the left shoulder blade, clean cut margins with tailing at the lower part, directed obliquely downwards and forwards.
Several vessels below injuries Nos. 1 and 2 were found ripped open.
5. In the opinion of the doctor death was due to shock and haemorrhage as a result of the injuries on the neck, vide post mortem report Ext. Ka-2, and the statement of Dr. Khetrapal Ext. Ka-14. After completing the investigation the charge sheet was submitted on 7-7-1967.
6. The appellant pleaded not guilty and denied the charge. It was, however, admitted that he was arrested in village Mahmudpur on the afternoon of 29th May, 1967. His contention was that he was going to village Mahmudpur but did not enter it, because he found a big crowd gathered there. He stayed in a grove just outside the village. (From the site plan it appears that the distance of the grove from the chaupal of Mathura Singh was about 60 paces). That was actually the place where according to the prosecution, he was chased, overpowered and arrested. The defence was that he was sitting in the grove and taking rest, because he wanted to avoid the crowd in the village. It was further pleaded that some persons from the village approached him and asked him to take some intoxicants. He refused. Whereupon, the village people got annoyed, and gave him a beating. He became unconscious. He regained consciousness sometime in the night and found himself in police custody. It was only then that he learnt that he had been charged for committing the murder in the village.
7. The prosecution in support of its case examined five witnesses. The accused did not produce defence.
8. The medical evidence on the record conclusively proves that Srimati Bitta did not die a natural death, but it was the result of violence used against her. Mahesh Pal P. W. 1, the fourteen year old son of the deceased narrated at the trial the circumstances in detail under which Shyama Charan committed the murder of his mother. It appears that on behalf of the appellant an attempt was made to get from the witnesses that the deceased had abused him (the appellant) and due to that he lost his temper. But in that attempt he completely failed. He was a most natural witness of the occurrence. On all material details of the incident he was fully corroborated by the evidence of Chhotey Singh P. W. 2, who was a neighbour of Mathura Singh. There were no material contradictions in the evidence of these witnesses nor any direct enmity with the appellant could be established. They had no apparent motive to implicate him falsely. The trial Judge has rightly relied upon their evidence. We entirely agree that the charge of murder has been fully brought home to Shyama Charan.
9. On behalf of the appellant it was strenuously urged, that this was a case of grave and sudden, provocation, and was fully covered under Section 300, Exception 1 of the Indian Penal Code. The relevant portion from that section may be reproduced below:--
'. . . . .Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
2ndly -- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
3rdly -- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
4thly. -- If the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death, or such bodily injuries as is likely to cause death and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid .......
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.'
10. The above Exception is subject to the following provisos:--
'First -- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly -- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly -- That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation -- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. . . . . '
11. Unless the act done constitutes, at least prima facie, murder by reason of the intention with which it is found to be done, the Court need not consider the exceptions. Where a person causes the death of another person it is for him to show that his act was removed from the category of murder by one of the exceptions to the section. The provocation must be such as will upset not merely a hasty, hot-tempered and hyper-sensitive person but would upset also a person of ordinary sense and calmness. The law does not take into account abnormal creatures reacting abnormally in given situations. The law contemplates the acting of normal beings in given situations and, the protection that is offered by the Exception is the protection for normal beings reacting normally in a given set of circumstances. A court has to consider whether a reasonable person placed in the same position as the accused was, would have reacted under that provocation in the manner in which the accused did. Where the provocation is sought by the accused it cannot furnish any defence against the charge of murder.
The facts proved in the case clearly show that Srimati Bitta showed due respects to the Sadhu which he deserved, by greeting him with the words 'Siya Ram'. Normally, it could not be expected that he would feel annoyed with that form of greeting. He uttered words which were disrespectful both to 'Sita' and 'Ram' and he further condemned the woman as a disgrace to the society. He also suggested to her that instead of 'Siya' Ram' she should have greeted him with the words 'Namo Narayan'. Naturally Srimati Bitta could not tolerate those unwarranted remarks, from a person who appeared before her in the garb of a Sadhu. In a fit of anger, she told him that she genuinely suspected if he was a real Sadhu or an imposter. She also told him that she would call her men who would take him to task. While going towards the house of her brother, she also kicked the stick which the Sadhu was carrying. So, it was abundantly clear that the provocation was provided from the side of the appellant himself. In the circumstances he could not claim any benefit under Exception 1 to Section 300 of the I. P. C. So, this submission of the learned counsel for the appellant has no substance.
12. It was next urged that the entire incident was the outcome of a sudden quarrel, and it was not premeditated and the appellant deserved a lenient consideration. It was submitted that he may be awarded the lesser penalty provided under law. But we find it difficult to accept that request. The manner in which the murderous assault was made on the helpless woman, the appellant could not claim any lenient consideration. As already pointed out, he himself was responsible for giving the provocation. Then, he chased the woman, threw her on the ground, showered knife blows on vital parts of the body and virtually butchered her to death on the spot. It could not be doubted that the crime was committed in a most inhuman and brutal manner. The death penalty awarded to the appellant by the Sessions Judge is fully deserved. We see no good reasons to interfere with the discretion which he has judicially exercised.
13. Before we part with the case, we may point out that the Sessions Judge was not justified in questioning the appellant to find out the antecedents of his past life. The following passage appears towards the end of the judgment :--
'I questioned him further about his life so that the quantum of punishment may be determined accurately. The accused narrated that when he was not a 'Sadhu' he used to be troubled by the police. He had been detained for one year under Section 109 of the Criminal Procedure Code. To save himself from police, he became a 'Sadhu'. He thought that those who did not become 'Sadhu' hated 'Sadhus'. It appears that the accused did not have a very clean past and was even dissatisfied with his new way of life.'
In criminal proceedings, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant (See Section 54 of the Evidence Act). The bad character of the appellant was not itself a fact in issue in the case. Under law, the Sessions Judge could examine the appellant only about the evidence, which was proposed to be used against him. So, this kind of evidence was clearly inadmissible, and we have ignored it completely, while judging the guilt of the appellant.
14. The appeal is, accordingly, dismissed, and the conviction and sentence ofShyama Charan appellant on thecharge under Section 302, IndianPenal Code are maintained. The referencemade by the Sessions Judge for confirmation of the death sentence passed onShyama Charan, is also accepted. Thesentence shall be carried out accordingto law.