1. This is an appeal of Nannhu, son of Gobrya, aged about 20 years, of mauza Khardhana, who has been convicted and sentenced to death for an offence under section 302 I.P.C. This judgment shall also govern the disposal of criminal reference No. 8 of 1959 for confirmation of the death sentence.
2. At the relevant time the accused and his elder brother Rameshwar (P. W. 2), with their wives Mst. Saraswati (P. W. 1) and Mst. Gita respectively, were living in their hut on the field to watch the crops. On 30 December 1957 the accused was taking his mid-day-meal when he had an altercation with Mst. Gita who abused him and went towards the field where the crops were standing. Thereupon, according to the prosecution, the accused picked up a lathi (Article A) and followed her. Shortly after, Mst. Saraswati (P. W. 1) heard her cries and, when she came out of the hut, she saw the' accused giving blows to her with the lathi (Article A). She went to the spot to save Mst. Gita but the accused pushed her back to the hut.
He then took out an axe and dragged Mst. Gita towards the adjoining jungle. There he cut her into three pieces and concealed the dismembered parts at different places. He also hid her clothes and ornaments in the jungle, and returned to the hut in the afternoon. He then took his bath and washed the axe (Article B) and concealed it is the bagud. He also washed his clothes and kept them in a batloi (Article G) which also he concealed there. Subsequently, he confessed his guilt to Sunderlal Patel (P. W. 3). After his apprehension by the police, he made statements contained in Exs. P. 3, P. 4 and P. 5 which led to the discovery of the parts of the dead body and other articles.
3. It was not disputed that the dead body which was found was that of Mst. Gita, Dr. Nigam (P. W. 4) who performed the post-mortem examination, found two contused wounds on the upper part of the left pinna, which were likely to be caused by a lathi. He also found two contusions, one on the left temporal area behind the ear and the other on the left eye on internal side. He further found four incised wounds. The dead body was cut into three pieces from the neck and the pelvic girdle bone. In the opinion of Dr. Nigam, the two contusions on the left pinna and three incised wounds and the wound round the neck were ante mortem, and that the cause of death was shock and haemorrhage which resulted from the cutting injury on the neck. That the death was homicidal is clear from the medical opinion and was not disputed before us.
4. The eye-witness of the occurrence is only Mst. Saraswati (P. W. 1). From her evidence it is clear that the accused followed Mst. Gita and struck her with the lathi (Article A) and then taking the axe (Article B) from the hut, dragged her towards the jungle. The prelude to this incident was that while taking food Mst. Gita began quarrelling with the accused that he. had eaten her gud and when he denied she abused him by saying that she would make him cat her excreta. Her statement that when she went and touched the body of Mst. Gita, she was already dead is only her surmise, for it is clear from the evidence of Dr. Nigam (P. W. 4) that Mst. Gita was alive when her neck was severed.
5. The version of the accused that Mst. Saraswati (P. W. 1) implicated him falsely because she wanted to marry another person and had even attempted to give him powdered glass through food has been disbelieved by the lower Court on good grounds. No such questions were put by the accused to her or to his brother Rameshwar (P. W. 2). There is, therefore, no special reason to disbelieve the word of Mst. Saraswati (P. W. 1) as regards the complicity of the accused. She had told the same thing to Sunderlal Patel (P. W. 3) and Mojiram Kotwar (P, W. 5). She further testified to telling Rameshwar (P. W. 2) that Mst, Gita was killed by the accused. That she gave this information was, also disclosed by Rameshwar (P. W. 2) in his first information report (Exh. P. 1). It is true that he denied in the witness-box that she had named the accused as the culprit and attempted to throw doubt On his own report. This obviously, however, he did to shield the accused, who is his own brother. There is, therefore, no reason to doubt the veracity of Mst. Saraswati (P. W, 1) and also of Sunderlal Patel (P. W. 3) and Mojiram Kotwar (P. W. 5) against whom the accused did not allege any grudge.
6. The discrepancies between the evidence of Mst. Saraswati (P. W. 1) before the lower Court and before the committal Court (see Exh. D-2) and also her statement during the investigation (see Exh, D-D, have been considered by the learned Judge of the lower Court to be of a minor nature. In her statement before the police, Exh. D-1, she had said that on coming out of the hut she got upon the mandua and saw the accused from that plaee beating Mst. Gita with a lathi, while before the lower Court she stated that at that time she was standing on the ground and climbed the mandua when Mst. Gita was being dragged by the accused towards the jungle, This is not a discrepancy of any vital nature. Before the committal Court she had stated that she did not actually see the accused beating Mst. Gita: see Exh. D-2, portion-A. However, that she saw the accused following Mst. Gita and standing near her when she cried and fell down cannot be disputed. Her further statement that she saw the accused dragging Mst. Gita towards the jungle was consistently made by her at all stages and is not open to suspicion.
7. The veracity of the evidence of Mst. Saraswati (P. W. 1) is confirmed by other facts of the case. Exhs. P. 3, P. 4 and P. 5 are the statements alleged to be made by the accused, leading to the discovery of the dead body and other articles. Exh. P. 6 is the seizure memo of the trunk of the dead body which was hidden in the leaves under a dhawda tree; Exh. P. 7, of her clothes which were hidden in a cavity of a mango tree; Exh. P. 8, of the head of the deeeased which was hidden in the caviiy of a fallen mango tree; Exh. P. 9, of the lower part of the dead body which was hidden in a thicket; and Exh. P. 10 is the seizure memo of the ornaments of the deceased, tied in a baniyan (Article D), which wererecovered from the dried bushes and leaves lying in a part of the accused's field. These articles were recovered in pursuance of the information given bythe accused in Exh. P. 3. The axe (Article B) was likewise recovered by the accused from a corner of his hut in pursuance of the information given in Exh, P. 4 and was seized under seizure memo Exh. P. 13. The lathi (Article A) was also recovered from under the bushes of ber in his field in pursuance of information given in Exh. P. 4 and was seized under seizure memo Exh. P. 11. Exh. P. 12 is the seizure memo of his dhoti (Article C) which was kept in a batloi (Article G). This article was recovered from underneath the standing grass in his field in pursuance of the information given by him in Exh. P. 5.
8. The recovery of these articles by the accused is testified to by Sunderlal Patel (P. W. 3) and Mojiram-Kotwar (P. W, 5). As already stated, nothing was disclosed by the accused in his examination to throw doubt as regards their veracity. All that he stated that they held offices in the village and were, therefore, trying to help the police. That is not, however, sufficient to hold that they would try to implicate an innocent person. It is no doubt true that the statement of the accused that it was Mst. Saraswatt (P. W. 1} who discovered the parts of the dead body and other articles finds support from the evidence of his brother Rameshwar (P. W. 2). However, the statement of Rameshwar (P. W. 2) is belied by his version in the first information report Exh. P. 1 and is not reliable. In this connection, the statement of Mst. Saraswati (P. W. 1) is that she had shown during the night of the occurrence the places to Sunderlal Patel and Mojilal Kotwar (P. Ws. 3 and 5) where the dead body was lying and the batloi (Article G) was kept by the accused. It, however, appears that he made this statement in a moment when she was feeling soft to (he accused, or that being a backward young girl, that statement was unwittingly taken out from her mouth during the stress of cross-examination. Her version is not supported by the statements of Sunderlal Patel (P. W. 3), and Mojiram Kotwar (P. W. 5), which we see no reason to doubt.
9. Mst. Saraswati identified the baniyan (Article D) as belonging to the accused and the axe (Art, B) and the lathi (Article A) as belonging to his family members. Her version has been controverted by Rameshwar (P. W. 2) consistently with his attempt to save the accused and implicate Mst. Saraswati (P. W. 1). Hi's denial, therefore, carries no weight. The baniyan (Article D) and the axe (Article B) were found stained with human blood: sec report of the Serologist Exh. P. 31, and, since these articles were discovered by the accused, they indicate that he was the culprit irrespective of the incriminatory statements made by him in Exts. P. 3, P. 4 and P. 5.
10. In the above view, it is not necessary to consider whether the accused made any confession to Sunderlal Patel (P. W. 3). We may, however, notice that it is clear from the evidence of Sunderlal Patel (P. W. 3) that the accused confessed the guilt only when he told him that he would not be harmed in any way. There was, therefore, inducement by him, which made the accused make the confessional statement. The question is whether Sunderlal Patel (P. W. 3) can be said to be a person in authority within the meaning of Sec. 24 of the Indian Evidence Act. In this connection, the view expressed in Jiwan v. Emperor, AIR 1936 All, 470 that a person in authority in that provision is one who has authority to interfere in the matter of the charge against the accused appears to be too restrictive. In Mohmmad v. Emperor, AIR 1936 Lah 264, the confession of the accused to the servant of his landlord was heldto be made to a person in authority. Similarly, in Ram Din v. Emperor, AIR 1948 All 101, a Mukhiaof the village who had no statutory authority was held to be a person in authority for purposes of Sec. 24. It appears to us that a person in authority within the meaning of Sec. 24 should be one who, by virtue of his position, wields some kind of influence over the accused. In that view, the confession made to Sunderlal Patel (P. W. 3) as a result of inducement would be hit by Sec. 24 of the Indian Evidence Act. However, as already stated, this question is immaterial because on other facts and circumstances discussed above, the guilt of the accused is established. The question is what offence was committed by the accused.
11. It was urged before us that the accused should be deemed to have been under an impression that Mst. Gita had died when she was hit by the lathi (Article A) and accordingly his subsequent act of cutting her body into pieces should not be deemed to be committed with the mens rea necessary to constitute an offence of murder. In support of the contention that the accused believed her to be dead, we were referred to the statement of Mst. Samwati (P. W. 1) who said that when she felt the pulse of Mst. Gita; she found her to be dead. It was contended on that basis that the accused also was likely to be under the same impression. There is, however, nothing on record to indicate that Mst. Saraswati (P. W, 1) had declared at the time she felt the pulse of Mst. Gita that she was dead. There is also nothing on record to show that the accused made any attempt himself to ascertain the condition of Mst. Gita or Otherwise believed her to be dead. In these circumstances, he did not exercise any clue care and caution and since he acted under a sudden impulse, he must be deemed to have knowledge of the consequence arising from his act: see the Law of Crimes by Ratanlal and Dhirajlal, 19th Edition, page 596. Mst. Gita had received only two blows from the lathi, Article A when she had fallen down. These blows had fallen on the upper portion of the left pinna, which was not a vital part of the body. Accordingly, there was no reason for the accused to believe that she was dead, and, therefore, when he cut her into pieces, he would be guilty of the offence of murder.
12. The abuse of Mst. Gita was of a vile nature and this had doubtless provoked the accused to commit the offence. However, he had not acted just when he was abused. Accordingly, the case docs not fall within exception I to section 300 of the Indian Penal Code. Mis conviction under section 302, Indian Penal Code, is, therefore, maintained.
13. While this is so, there is no doubt that the accused had acted under grave provocation from Mst. Gita. It is also likely that he cut her into pieces in the belief that she would not survive. The brutality of the subsequent act, therefore, should not determine the punishment. In view of the provocation received by him and his young age, we set aside the sentence of death and, instead, sentence him to imprisonment for life.
14. Subject to the above modification, theappeal is dismissed.