B.N. Misra, J.
1. The State Government has filed this appeal under Section 378 of the Criminal P. C. The respondent was charged under Section 302, I. P. C, but he was convicted by the learned Sessions Judge under Part I of Section 304,1. P. C. and sentenced to rigorous imprisonment for seven years. The State Government has prayed that the acquittal of the respondent of the offence under S, 302, I.P.C. should be set aside as the evidence justifies conviction under Section 302, I P. C. and not under Part I of Section 304, I.P.C.
2. The prosecution case may be briefly stated, Deceased Gharjogi' has married the accused respondent about four years prior to the occurrence which took place on 17-7-1976 at Rugudimunda-Sagarpada road. Gharjogi was living in the house of her father-in-law at Chandapuri. A month before the occurrence the deceased and the accused came to Bolangir and resided in a rented house for some time. Thereafter they shifted to the house of the deceased's father. The accused did not do any work but lived on the earnings of his wife who was working as a maid-servant. The accused and deceased quarrelled at time.-; on account of the fact that the accused did not endeavour to earn anything for them. On the day previous to the occurrence the deceased had again rebuked the accused asking him for how long he proposed to depend upon her for his living. On the date of occurrence which was a Saturday the deceased went to work and returned home around 10 a. m. Thereafter she went to the Sagar tank to take her bath. While returning home after her bath, the accused is alleged to have stabbed her with a knife several times as a result of which she sustained bleeding injuries, fell down at the spot and died. P. Ws. 4 and 8 from the village chased the accused who ran away from the spot and caught him near the office of the postal Superintendent at RugudipadA.P. W. 4 informed the police over telephone and after arrival of the police. P. W. 4 handed over the accused to the police. P. W. 4 returned to the spot and lodged F. I.R. Ext. 5 with P. W. 13, the Officer-in-charge of the Police Station. A case under Section 302, Indian Penal Code was registered against the accused and the police took up investigation. The dead body was sent for post-mortem examination The confessional statement of the accused was recorded before the Magistrate P. W. 11. After conclusion of investigation charge-sheet was submitted against the accused. The accused was charged under Section 302, I.P.C. and put on trial.
3. The defence plea is one of complete denial. In his statement recorded under Section 313, Cr.P.C. the accused stated that he did not remember if he had stated be- fore the Magistrate in the manner recorded in his statement (Ext. H). The accused further stated that he did not remember how or whether he had sustained any injuries on his finger.
4. On behalf of the defence it has been suggested to the brother of the deceased that the deceased used to return home late at night, that she used to help her father in vending illicit liquor to young boys in whose company the deceased spent a lot of time in spite of protest by the accused, that on Friday night preceding the date of occurrence, she spent the night with two young boys and that the accused had chastised the deceased for her bad character.
5. Thirteen witnesses were examined on behalf of the prosecution and none on behalf of the defence. The learned Sessions Judge who tried the case acquitted the accused of the charge under Section 302, I.P.C. but convicted him under Section 304 Part I, I.P.C. and sentenced him to rigorous imprisonment for seven years.
6. P. W. 5 is the doctor who had done post-mortem examination on the dead body of deceased Gharjogi on 17-7-1976 on police requisition. He had found the following injuries on her person:
(1) Deep wound at the level of the thyroid cartilage on the right side of the neck, of the size 1/2' x1/2' x1/2' at the wider part up to common carotid artery.
(2) An incised injury 1/4' x1/2' x1/4' on the right side of the chest, 1/2' below the mid-point of right clavicle.
(3) One punctured wound on the left side in the posterior axillary line at 6th rib, size 1' x1/4' x1/2' in the wider part, piercing up to the lung on the left 'side.
(4) One punctured wound on the left side at the mid axillary line at the 8th rib, 3/4' x1/4' x1/2' at the wider part, reaching up to peritoneum.
(5) One punctured wound on the left side back at the level of lumber vertebrae No. 2, 3/4 x1/4' x1/2' at the wider part x up to left kidney.
(6) An incised injury 1/2' x1/4' on the left shoulder.
(7) An incised injury 1/2' x1/4' over left forearm, 1 1/2' below left elbow, on the anterior part of the forearm.
(8) An incised injury 1/2' x1/4' on the left forearm 1' below the injury No. 7.
(9) An incise-looking injury on the left side just above the iliac crest of size 3/4' x1/4' x1/4'.
(10) An incised injury 1/2' x1/4' mandible deep on left side at the middle of left mandible.
(11) An incise-looking injury over the scalp on the left parietal bone 2 1/2' above the tip of the pina of the left ear, size 1' x1/4' x scalp deep.
(12) An incise-looking injury over the scalp and 1' above the left sternum astoid bone, size 3/4' x1/4' x scalp deep.
(13) An incise-looking injury l' back to the injury No. 12, size 1/4' x1/4' x scalp deep.
(14) An incised injury just above the external auditory meatus, cutting the pina of left ear obliquely, size 1' x 1/10
On dissection P. W. 5 found that corresponding to injury No. 1 on the right side of the neck, the right sternum astoid muscle, scalone muscle, internal jugular vein and common carotid artery were cut. Corresponding to injury No. 2 he found one haematoma of the size 2' x 2' over the right side chest between second and third ribs. He also found corresponding to injury No. 3 one punctured wound of 1/2' size in the left 6th intercostal space reaching up to and cutting the pleura of left side on the posterior latoral aspect of the lower lobe. One punctured wound was found at 7th intercostal space protruding out of greater omentum at the 8th rib of left side chest. On further dissection of the same injury it was seen that the diaphragm on the left side was puncture i and the peritoneum was also punctured through which a portion of greater omentum escaped corresponding to injury No. 4. Corresponding to injury No. 5 he found one punctured wound reaching up to posterior surface of left kidney at its hilum and a cutting of 1/2' x1/4' size there.
According to P. W. 5, injuries 1, 3, 4 and 5 were grievous and homicidal in nature. All the injuries were caused by a sharp cutting and pointed weapon with a long blade. Death was due to shock and haemorrhage. The injuries were ante-mortem in nature. Ext. 7 is the postmortem report. P. W. 5 has further stated that injuries 1, 3, 4 and 5 can independently cause death in the ordinary course of nature. Ext. 8 in the opinion of P. W. 5 that the injuries on the deceased could have been caused by the knife M. O. I. In cross-examination P. W. 5 has stated that injuries 3, 5 and 9 on the back of the deceased could be caused in a standing position but these injuries were not pos- sible if the victim was lying on the ground with her face upwards. Injuries 6, 7 and 8 were not on the vital parts of: the body. P. W, 5 did not. notice any abrasions or scralches etc. on the dead body and according to him, if the deceased had been resisting or struggling such scratches and abrasions would have been found on her body. The above medical evidence clearly establishes that the death of Gharjogi was homicidal in nature and that, injuries 1, 3, 4 and 5 were sufficient in the ordinary course of nature to cause death,
7. P. W. 6 is the doctor who had examined the accused on police requisition at 12-50 p. m. on the date of occurrence. He had 1'ound the following two injuries on the accused :-
(i) Two parallel incised wounds at the middle phalanx of the right hand little finger separated by 1/2' and this injury was 1' long and 1/4' deep; and
(ii) Two parallel incised wounds at the middle phalanx of the right hand ring finger separated by 1/2'; the injury at the proximal end was l' long and 1/4' deep and the injury at the distal end was 1/4' long and 1/4' deep.
The age of the injuries was about two hours. The injuries were simple in nature and might have been caused by a sharp cutting weapon, Ext. 9 is the injury report. P. W. 6 has further stated that as per Ext. 10 in his opinion the injuries on the accused could have been caused by the knife M. O. I. He has explained that if the assailant gave successive blows while holding the knife M. O. I. tight in his hand, he was likely to receive injuries on his middle and ring fingers as described in Ext. 9. In cross-examination he has further clarified that the assailant was not likely to receive the injuries as described in Ext. 9 while trying to cut anything with M. O. I. unless his grip on the handle of M. O. I. slipped at the time of hitting the object. It may be recalled that in his statement recorded under Section 313, Cr.P.C. the accused has stated that he did not remember whether he had sustained injuries on his fingers.
8. P. W. 10 is the younger brother of the deceased He has stated that the accused and the deceased were married about four years before the occurrence. After the marriage the deceased had gone to her father-in-law's bouse at Chandapuri. A month before the occurrence, the couple had come to Bolangir and had stayed there for some time in a rented house. Subsequently they came to live m the house of the parents of P. W. 10. According to P. W. 10, the accused was lazy in nature and did not do any work. He was living on the earnings of the deceased who worked as a maidservant. At times the couple quarrelled since the accused was not earning anything and they were in want. In the evening on the day previous to the date of occurrence, the deceased had abused the accused saying how long he proposed to depend on her earnings. On the date of occurrence, the deceased returned home at about 10 a. ra. after finishing her work. P. W. 10 and her mother came to the house at about the same time. The accused was then not present in the house. The deceased went to take her bath in the Sagar tank. Sometime thereafter P. W. 10 learned that the deceased had been killed and that her dead body was lying on the road near a light post close to Rugudi-mundA.P. W. 10 has denied that her sister was of bad character or that she had any illicit intimacy with two young boys. P. W. 10 has withstood his cross-examination quite well and he has also denied the suggestion made to him by the defence that his sister was of loose character. P. W. 10 has further stated that the knife M. O. I. belonged to him. He had not seen the accused taking the knife M. O. I. from his possession. It is clear from the evidence of P. W. 10 that the accused did not do any work and lived on the earnings of his wife, the deceased, and on account of this, they quarrelled at times and that in the evening on the day preceding the date of occurrence the deceased had taunted the accused saying how long he proposed to live on her earnings.
9. P. Ws. 4, 8 and 9 are the eye-witnesses to the occurrence. P, W. 9, who was the first to see the occurrence, was declared hostile by the prosecution. P. W. 9 has stated that after returning to Rugu-dimunda at about 11 a. m. he went to the Pinda of P. W. 4 and was smoking Kahali along with others. Suddenly he heard a female voice shouting 'Ho Bua Marigali'. Then he turned and noticed a man giving blows to a woman near the light post by the side of Rugudipada road. He saw both the assailant and the victim woman in a standing position. He called P. W. 4 and thereafter he went away. He denied to have seen the accused stabbing the woman. He has stated that he had no ac- quaintance with the accused prior to the occurrence. However, he identified the accused in the dock as the person who had assaulted the woman during the occurrence.
10 P. W. 4 knows the accused who used to live in his father-in-law's house in the same village as that of P. W. 4. P. W. 4 has stated that at about 10.30 a. m. he was sitting in his house along with P. W. 8 and Anr.. At that time P. W. 9 came to his Pinda and smoked Pika with some others. He was called by P. W. 9 to come out and see what was happening. P. Ws. 4 and 8 both came out of the house. P. W. 4 saw the accused stabbing his wife, the deceased near the light post. He saw this from a distance of about 40 feet. He rushed to the spot. On coming closer he saw that the accused was stabbing the deceased with the knife M. O. I. He had seen the accused sitting on and stabbing the deceased who was lying on the ground. When P. W. 4 came closer the accused threatened him with the knife. P. W. 4 went to his house and returned with a lathi. On seeing P. Ws. 4 and 8, the accused ran away throwing the knife into a drain. P. Ws. 4 and 8 chased the accused and caught him near the office of the Superintendent of Post Offices. The accused was smeared with blood. P. W. 4 informed the Police over telephone and on arrival of the police he handed over the accused to the police. P, W. 4 lodged the F. I.R. Ex. 5 at the spot. In cross-examination P. W. 4 has described in detail the location of his house in the village. He has further stated that from his verandah he had seen that the accused was already sitting on the deceased and was striking her holding something in his hand. On coming closer P. W. 4 saw the knife in the hand of the accused.
11. P. W. 8 knows the accused. On the date of occurrence at about 10.30 a. m. P. W. 8 went to the house of P. W. 4 at Rugudiapada. He was talking with P. W. 4 in the outer room of P. W. 4's house when two persons came and stood on the outer verandah of P. W. 4. After some time, P. Ws. 4 and 8 were called to come out and see. Both of them came out and P. W. 8 saw that a person was sitting upon a woman on the road near the light post and was giving strokes with his hand. P. Ws. 4 and 8 both ran to the spot and from a distance of about 8 feet P. W. 8 saw that the accused was giving blows to the woman with a knife. The accused when challenged got up and raised his knife to attack P. W. 4. P. W. 4 went back to his house and returned with a lathis P. W. 8 had seen the accused giving knife blows 8 to 9 times. When P. W. 4 returned with the lathi the accused ran away from the spot after throwing the knife. P. Ws. 4 and 8 chased the accused and caught him in front of the office of the Superintendent of Post Offices. They came back to the spot where the accused was handed over to the police. In cross-examination P. W. 8 has admitted that he had not stated before the Investigating Officer that he had seen the accused giving 8 blows to the deceased, but he has explained that he had not given the number of blows since he was not asked about it by the Investigating Officer. He has also stated that on coming closer he saw that the accused was stabbing the deceased with the knife. Both P. Ws. 4 and 8 have been cross-examined at length and their testimony remains unshaken except for a few minor omissions and contradictions. Both of them have consistently stated that they had seen the accused stabbing the deceased and killing her at. the spot. Their evidence fully supports the evidence of P. W. 9 who was the first to see the occurrence.
12. Ext. 11 is the confessional statement of the accused recorded bv P. W. 11, the Judicial Magistrate. Though in Ext, 11 the learned Magistrate has not mentioned the time when the accused was produced before him and the time that he had given to the accused for cool reflection, P. W. 11 has stated in Court that the accused was produced before him at 11.45 a, m. and he had recorded his statement at 1.30 p. m. on the same dav. He has also stated that he had observed all the formalities of law and had given due warning to the accused. He had also ensured that no police personnel was present in the Court. The learned Sessions Judge accepted Ext. 11 as the voluntary statement of the accused in Para 8 of his judgment and there is no reason to differ from this conclusion. In his Section 313, Cr.P.C. statement, the accused was confronted with Ext. 11 and his reply was that he did not remember if he had said like that before the Magistrate. A confessional statement which is true and voluntary is not to be rejected merely on the ground that the accused retracts from the same at the trial. In Ext. 11 the accused has stated that the deceased used to return home late at night and that he did not appreciate the 'manner in which the deceased spent her time with two young boys. He has further stated that on the date of occurrence he had taken a knife to prepare a flute. At that time the deceased returned from the Sagar tank after her bath. According to the accused the deceased caught hold of the neck of the accused on account of which the accused gave her a slap. The deceased then caught hold of the throat of the accused. The accused lost his temper and stabbed the deceased on her back and since the deceased did not release her grip, the accused gave her five, or six knife blows. As a result, the deceased fell down with bleeding injuries. The accused was then caught by the villagers and handed over to the police. In paragraphs 9, 10 and 11 of his judgment, the learned sessions Judge has accepted the whole of the confessional statement contained in Ext, 11 containing both inculpatory as well as exculpatory facts. In this connection, reference may be made to the following observation of the Supreme Court reported in : 1969CriLJ671 , (Nishi Kant Jha v. State of Bihar) (at p. 679 of Cri LJ):-
In this case the exculpatory part of the statement in Ex. 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant's attempt to catch hold of the hand of Lai Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Section 342, Cr.P.C. to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to attract the attention of Ram Kishore Pandey, P W. 17 and asking him about the cause therefor. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post-mortem report this knife could have been the cause of the injuries on the victim. To circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex. 6 the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime.
In the present case, as already noted, the first part of the statement of the accused in Ext. 11 relates to the conduct of the deceased. The allegation of the accused that the deceased maintained illicit connection with two young men and did not conduct herself in a proper manner has been clearly contradicted by P. W. 10, the brother of the deceased. P, W. 10 is quite firm in his denial that the deceased was a woman of loose character. The quarrel between the accused and the deceased, according to P. W. 10, was not on account of the immoral conduct of the deceased, it was because the accused did not bother to engage himself in any work for his livelihood, but depended entirely on the earnings of the deceased. Therefore, the allegation of the accused regarding the conduct of the deceased must be rejected as it is not supported by any material or evidence. The more important exculpatory part of the statement of the accused in Ext. 11 is that on the day of occurrence the deceased rebuked the accused, caught hold of his neck on account of which the accused gave her a slap, that the deceased next caught hold of his throat and the accused lost his temper and stabbed the deceased on her back, but as the deceased still did not release her grip, the accused gave five or six knife blows on her front side. The aforesaid statement of the accused is not supported by any other evidence or material. The accused himself does not support the story in his statement recorded under Section 313, Cr.P.C. No such suggestion is also given to P. Ws. 4, 8 and 9 who are eye-witnesses. These three prosecution witnesses have also not stated anything about the deceased having caught hold of the neck and throat of the accused. Further, this defence plea is contradictory to the medical evidence. P. W. 5 has stated that had the deceased been resisting or struggling there should have been abrasions, scratches, etc. on her body. The post-mortem report and the evidence of P. W. 5 indicate that there were no such abrasions and scratches on the deceased. It also appears from the medical evidence that the accused had inflicted no less than fourteen Injuries on the body of the deceased of which injuries 1, 3, 4 and 5 were grievous and homicidal. The large number of injuries indicate that the accused had stabbed the deceased in a most brutal and savage manner. P. Ws. 4 and 8 have stated that the accused was sitting on the deceased and stabbing her. p. W. 9 who has identified the accused in Court has also stated that the accused had stabbed the deceased while both of them were in a standing position. This evidence of the eye-witnesses is fully corroborated by the medical evidence. Thus the statement of the accused in Ext. 11 that the deceased had caught hold of his neck and throat on account of which he had stabbed her is not only inherently improbable but is contradictory to the evidence of the eyewitnesses and the medical evidence. However, the inculpatory part of the statement of the accused that he had stabbed the deceased is fully corroborated by the evidence of the eye-witnesses. As discussed above, there being enough evidence to reject the exculpatory part of the statement of the accused in Ext. 11, the learned Sessions Judge was not right in accepting the same.
13. The evidence of the eye-witnesses which has already been discussed clearly establishes that the accused had inflicted the stab injuries on the deceased resulting in her death. This conclusion is fully corroborated by the medical evidence. Further assurance comes from the fact that accused had himself sustained injuries on his fingers and according to P. W. 6, these injuries were possible if the assailant gave successive blows while holding the knife tightly in his hand or if his hand slipped to the blade of the knife.
14. On consideration of the entire evidence adduced in this case it must be held that the prosecution has clearly brought home the charge under Section 302, I. P. C, against the accused and the present case does not and cannot come under Exception I to Section 300, I. P. C,
15. In the result, this appeal is allowed. The acquittal of the accused of the offence under S, 302, I. P, C. and his conviction and sentence under S, 304, Part I, I.P.C. are set aside. The accused is held guilty under Section 302, I.P.C. In the facts and circumstances of the case, the extreme penalty is not called for. Sentence of imprisonment for life should meet the ends of justice. Accordingly, the accused-respondent is convicted under S, 302, I.P.C. and sentenced to rigorous imprisonment for life.
P.K. Mohanti, J.
16. I agree.