S.S. Sharma, J.
1. In Sessions Trial No. 8 of 1981, Sessions Judge, Raigarh, by his judgment dt. 15-5-1981 convicted the appellant under Section 302, I.P.C. and sentenced him to imprisonment for life. Since the appellant bad preferred an appeal from jail, a counsel had been provided to him by the registry.
2. The appellant was alleged to have committed the murder of his wife Alizabeth 18-12-1980 at about 10 P.M. in village Ghueetangar. It is said that the appellant had recently been married with the deceased.
3. The prosecution case briefly stated is that in the night of 18-12-1980 when the appellant returned back to his house, he was heavily intoxicated. Appellant asked the deceased to serve him the food. The deceased seeing the appellant to be heavily intoxicated was annoyed and instead of serving the food, kicked him. Thereafter the deceased collected her clothes etc. and kept them in a plastic 'Theli' and left the house to go to her parents' house. At a distance of two furlongs from village Ghueetangar is a church. At a distance of about 7 yards from that church is the path way which goes from village Ghueetangar to village Karnatara. The appellant is said to have insisted the deceased to return back. When the deceased did not agree, appellant assaulted her by 'Balua'.
4. The next morning at about 6 O'clock appellant went to the house of Kotwar Piyus (P.W.I) and told him that he has killed his wife and the dead body is lying behind the church. Appellant wanted to lodge a report in the police station at which the Kotwar told him that let the panch and patel be first collected and told about the incident. Accordingly the panch and patel were informed and even the mother of the deceased who was living in village Kamatara was informed about it. When the village people collected, all these along with the appellant went behind the church and found the dead body of appellant's wife. Appellant is said to have confessed his guilt even before the village people and on being asked further pointed out that he killed his wife by 'Balua' which was lying at his house. That 'Balua' was obtained from the house of the appellant and preserved by Upsarpanch flius Panna (P.W.3).
5. 'Linus Minj (P. W.2), an employee in the Central Industrial Security Force, had come to Ghueetangar during X'mas holiday. Ilius Panna (P.W.3) wrote out the report Ex. PI which was sent to the police station Kunkuri through Linus Minj (P.W.2). The police station is at a distance of about 15 kms. from village Ghueetangar. Sub-Inspector Sisodiya (P.W.12) on the basis of the report Ex. PI which was brought by Linus Minj (P.W.2), registered the offence Ex, P2 at 11.50 of 19-12-1980. After registering the Marg Ex. P27, the Sub-Inspector reached the spot by motor-cycle at about 3 P.M. He held an inquest over the dead body of Alizabeth, The blood stained and unstained earth were seized from the spot. Some other clothes and articles were also seized. Near the dead body there was a letter Ex. P4 wrapped in a paper Ex. P5. This letter and .the paper were also seized vide memo Ex. P6. The dead body of Alizabeth was forwarded to the hospital for post mortem examination.
6. It was on 20-12-1980 that the appellant from his house produced a plastic Theli' which had blood like stains and wherein some clothes etc. were kept It was seized vide memo Ex. P9. A shirt wherein some blood like stains were visible was also seized vide memo Ex. P10 from the appellant. The Sub-Inspector also stated that on 19-12-1980 Ilius Panna (P.W.3) had also produced a 'Balua' but owing to the other seizures etc. he forgot to prepare the seizure memo on that day and the 'Balua' had also been taken away by Ilius Panna to his house. This was then seized on 20-12-1980 vide memo Ex. PH.
7. Dr. Prabodh Kumar Dan (P.W.9) on 20-12-1980 performed the post mortem examination over the dead body of Alizabeth who was aged about 22 years. He found as follows:
1. One incised wound 31/2' X 21/2' cutting the lower cervical vertebra on the lower part of the back of the neck.
2. Spindle shaped incised wound 3' X 21/2' X bone deep on the upper part of the back of the neck.
3. Spindle shaped incised injury 21/2' X 1' in between the two scapulas.
4. Incised wound 21/2' X 1/2'' on the right side and upper part of the back. .
5. Incised wound 1/2' X 1/2'' on the left side and upper part of the back.
6. Spindle shaped incised wound 2' X 1' X bone deep cutting the left carotid artery.
Her stomach contained undigested food particles. These injuries could be caused by the 'Balua' article 'C. According to him injuries Nos. 1, 2 and 6 were individually sufficient in the ordinary course of nature to cause death. In his opinion the cause of death was shock and haemorrhage due to injuries. He also opined that in all six strokes must have been dealt on the deceased.
8. Appellant in his examination stated that he had consumed two bottles of liquor and so due to heavy intoxication he did not return to his house and slept in the field. When he came in the morning he found the door of his house open and his wife was not there,- When he went out to search her he saw the dead body and so he embraced her and wept. For that reason the 'Chadar' and the shirt may have got the stains of blood. He denied to have made any confession. The appellant did not examine any witness in defence.
9. It was not disputed that the death of Alizabeth was homicidal in nature and in our opinion rightly. There is ample evidence to support that finding. The main evidence against the appellant is that of extra judicial confession.
10. Piyus (P.W.I) has stated that even before sunrise which may be roughly about 6 A.M., appellant had come to his house and told him about his having committed the murder of his wife and the dead body being behind the church. The evidence of Piyus (P.W.I) stands corroborated by the evidence of Ilius Panna (P.W.3) to whom Piyus had informed about it shortly thereafter. Sarfina (P.W.4) is the wife of Piyus (P.W.I). She was present at the house when the appellant had come and made the confession to Piyus(P-W-1).
11. Piyus (P.W.I) and Ilius Panna (P.W.3) have further stated about the appellant having made a confession even when the village people had collected. Appellant had also stated before all those people that he had killed his wife by 'Balua' which was lying at his house. Accordingly, Piyus was told by Ilius Panna (P.W.3) to get that 'Balua' from appellant's house. Piyus then called appellant's servant Budhnath (P.W.5) and on being told by the appellant, this Budhnath (P.W.5) brought the 'Balua' from the place in the house as had been mentioned by the appellant. Ilius Panna (P.W.3) has also stated that Kotwar had been told to bring the 'Balua' which ultimately was brought and seized from him by the Sub-Inspector Sisodiya (P.W.12) vide memo Ex.P 11.
12. On behalf of the appellant it was contended that in the report Ex. PI there is no mention about the appellant having made any confession about his having killed his wife. No doubt in the first information report there is no mention about the extra judicial confession but beneath the subject, name of the appellant with full address has been mentioned and even in the body it is specifically mentioned that the appellant killed his wife. Nothing more could have been expected from these village illiterate people and the omission about the declaration in the report Ex. PI is in our opinion of no advantage to the appellant.
13. It was then urged that Piyus (P.W.I) had mortgaged his land with the appellant for an amount of Rs. 700/- and since the appellant did not agree to release the loan, he has been falsely implicated by Piyus (P.W.I). In our opinion, this contention cannot also be accepted. It is not only Piyus (P.W. 1) who has deposed about the extra judicial confession having been made by the appellant but there is other evidence also to show that even subsequently, the appellant had made extra judicial confession before the village people when they had collected. The suggestions that had been made to Piyus (P.W.I) have been denied by him and similarly even Sarfina (P.W.4) denied the suggestions that the appellant had told her husband about somebody having killed his wife. According to her appellant had confessed that he had committed the murder of his wife.
14. There is another circumstance against the appellant. Budhnath, a boy then aged about 13 to 14 years, has stated that the appellant had given him a white Terrycot shirt in the morning at about 7 to 8 A.M. which had blood like stains on it for being washed. This shirt had been seized. The appellant had given an explanation that the 'Chadar' and the shirt had got stains of blood because he having found his wife dead he had embraced her. There is no evidence whatsoever to support that plea of the appellant. Even if that were to be so, there was no reason for the appellant to be in a hurry to get the shut washed at about 7 to 8 A.M. This goes to indicate that the appellant wanted to get the blood stains removed which could be taken to be adverse circumstances against him. The shirt had stains of blood on it, but the origin could not be determined. The 'Balua' has been found to be stained with human blood.
15. In our opinion the extra judicial confessions made by the appellant before Piyus (P.W.1) and Sarfina(P.W.4) and subsequently before the village people including Piyus (P.W.I) and Ilius Panna (P.W.3) were true and voluntary and the Court below has rightly accepted the evidence about extra judicial confession. These confessions stand further corroborated by the other material which has been indicated above.
16. The appellant had inflicted repeated blows by 'Balua' on the vital parts of the body of the deceased. Three of those injuries were individually sufficient to cause the death of the deceased. Learned Counsel for the appellant contended that Exception 1 of Section 300, I.P.C. would in the instant case be attracted. He referred 'to a decision in Madhavan v. State of Kerala : AIR1966Ker258 . In our opinion this contention of the learned Counsel, in view of the facts of the present case cannot be accepted. Appellant had come dead drunk to his house. It was for that reason that the deceased had quarrelled with him and did not even serve the food. According to the confession made by the appellant his wife i.e. the deceased had even kicked him. Thereafter the deceased left the house and proceeded to her parents' house in village Kamatara. The dead body has been found on that path behind the church. The murder did not take place in the house where the deceased is said to have kicked the appellant. According to the evidence of Patwari Padumlal Sahu (P.W.8) the place where the dead body was found is at a distance of about 2 furlongs from village Ghueetangar. Village Kamatara is about ^furlongs from the place where Alizabeth was killed. What, therefore, flows out is that the appellant attacked his wife when she had gone away from the house and had reached at a distance of about two furlongs. It is not the case of the appellant that he was kicked at that place where he had assaulted his wife. Thus, in view of the facts of the present case the repeated blows inflicted by the appellant on his wife cannot be traced to the influence of passion arising from the kicking by the wife. There was certainly a time lag between what transpired at the house and when the appellant assaulted the deceased. The facts of the Madhavan's case (supra) are clearly distinguishable. The appellant is not entitled to the benefit of Exception 1 to Section 300, I.P.C. The case is clearly covered-by Clause Thirdly of Section 300, I.P.C. and so the offence would be clearly that of murder.
17. Consequently, this appeal fails and is hereby dismissed. The conviction and the sentence of the appellant are upheld. In view of the decision of their Lordships in Kartar Singh v. State of Haryana : 1982CriLJ1772 and the order dated 1-7-1982 of this Court passed in Misc. Petn. No. 619 of 1982 (Munna alias Ram Gopal v. State of Madhya Pradesh) Section 428, Cr. P.C. would not be applicable as the appellant has been sentenced to life imprisonment for the offence of murder. The appellant be informed accordingly.