G.K. Misra, J.
1. The appellant has been convicted under Section 302 I.P.C. and sentenced to imprisonment for life.
2. The appellant was working as a sweeper in the Primary Health Centre at Manmunda Hospital. A quarters had been allotted to him within the premises of the said hospital. He was living with his wife the deceased. On 4,8.1966 the accused went to P-W. 9, who was working as a Dhai in the said Health Centre, and told her that he assaulted his wife. P. W. 2 intimated this fact to P. W. 3 who is a servant of the Primary Health Centre. The appellant also went to Manmunda Police Station at about 7 A. M. and told the writer constable (P. W. 1) that he assaulted his wife severely. A station diary entry was made to that effect and be was detained in the Police Station.
P. W. 1 went to the spot and found the deceased with bleeding injuries on her head lying in a senseless state. Her glass bangles were lying broken. There was a piece of stone lying in the room with bloodstains. The deceased was sent to the Sonepur Hospital, the died in the after-noon in the hospital. The defence is that on 3-8-1966 the Doctor (P. W. 4) went to Boudh and the accused was directed to guard his house. He slept on the verandah of the residence of the Doctor, went home in the morning and found his wife lying, being assaulted by somebody. The accused became senseless and his cloth was stained with blood of the deceased. The learned Sessions Judge held that the death was homicidal and that the accused killed the deceased.
3. The Doctor (P.W. 6) held the post mortem examination. 10 external injuries were found on the body of the deceased. The injuries, according to him could have been caused by assaulting the deceased several times on the bead with a stone and were sufficient to cause death. The finding that the death was homicidal is correct on the evidence of the doctor and the post mortem report.
4. The next question for consideration is whether the accused killed the deceased. There is no eye-witness to the occurrence. The conviction can be sustained only on the extra-judicial confession made by the accused to P. W. 2, The confession has been retracted. It accordingly needs corroboration. P. W. 2 'deposed that the accused came to her in the early morning on 4-3-1966, smoked a Biri at her house and disclosed to her that be assaulted his wife. She was not cross, examined at all. Only a suggestion was made to her that the accused had enmity with her which she denied. Nothing was suggested as to why P. W. 2 would falsely implicate the accused in such a heinous crime. P. W. 2 narrated as to how the accused made an admission before her and she informed the fact to P. W. 8 who was also a servant of the Primary Health Centre. P. W. 8 went to the house of the accused and found the deceased lying with bleeding injuries. The confession made by the accused thus stands corroborated by the factum of the deceased lying, being assaulted by somebody. We accordingly place reliance on the evidence of P. W. 2 and hold that it is the accused who severely assaulted the deceased as a result of which the deceased ultimately died.
It is to be noted that the accused also went to the Police Station and made a similar statement to P. W. 1 the writer constable. Such a statement is hit by Section 162, Criminal P.C. and is inadmissible in evidence. We accordingly ignore it from our consideration. The learned Sessions Judge, who is fairly senior, should not have utilised the statement made to P. W. 1 as an incriminating evidence.
5. The accused in his statement under Section 842, Criminal P.C., stated that in the night of 8-3-66 he slept on the verandah of the residence of the Doctor (P. W. 4). Though the Doctor denies that he gave any such direction to the accused, he admits that there were no inmates in his house and he went to Boudh by locking it up. No witness has also been examined that in fact the accused did not sleep on the verandah of the residence of the Doctor, P. W. 4 who was absent on that day. Such evidence was available to the prosecution. In the absence of any denial, we accept the version of the accused that he slept on the verandah of the Doctor (P. W. 4) during the night of 3-3-66.
The accused made a statement in the committing Court that when he returned to his house in the early morning on 4.S-66, he found Lakshman Padhau, Chairman of the Panchayat Samiti, and another coming oat of his house. The accused accepts the position that he complained to the Doctor (P. W. 4) a month before the occurrence that Lakshman Padhan was giving indication of having illicit love with his wife. The statement of the accused in the committing Court is evidence under Section 287, Criminal P.C. We accept his statement that when he went back to his house from the residence of P. W. 4 in the early morning of 4.8-66, he found Lakshman Padhan and somebody else coming out of his house. From the aforesaid facts we are led to an inference that on seeing Lakshman Padhan and the other person coming out of his house the accused lost control over himself by grave and sudden provocation on account of his suspicion about his wife's character, and it is for this reason that he assaulted the deceased.
6. To sum up, on the extra-judicial confession made before P. W 2 we hold that the accused killed the deceased. On his statements, which do not stand rebutted by any prosecution evidence, we further bold that he lost control over himself by grave and sudden provocation on seeing that strangers were coming out of his house when his wife was alone during the night of 8.8-66. In these circumstances, Exception 1 of Section 300, I.P.C., applies. That Exception says:
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.
In this case, the provocation was given by the wife by her conduct in entertaining strangers during the absence of the husband. The conviction tinder Section 302, I.P.C., must accordingly be set aside.
7. In the result, we set aside the conviction and sentence under Section 302, I.P.C., and convict the appellant under Section 304,1. P.C., and sentence him to undergo R. I. for 5 years. The appeal is thus allowed in part as indicated above.
S. Acharya, J.
8. I agree.