Kunhi Raman, C.J.
1.The first accused in sessions Case No. 4 of 1950 in the Court of Session at Kottayam, is the appellant. The second accused, who was tried along with the first accused, was found to be not guilty of the charged and he has been acquitted. There is no appeal presented on behalf of the State in respect of that order. The charge against the first accused was that he committed murder by killing his wife, The learned Sessions Judge accepted the -case for the prosecution, held that the first accused was guilty under Section sol of the Travancore Penal Code and sentenced him to undergo rigorous imprisonment for life, subject to confirmation by the High Court. The records have been submitted to this Court for confirmation, and the appeal preferred by the accused was also argued by his learned counsel.
2. The case disclosed by the evidence for the prosecution was that the dead body of the wife of the first accused was found hanging from a branch of a jack fruit tree in the compound adjacent to the house where the first accused and his wife resided. In that house was also residing a widow, whose husband was the maternal uncle of the deceased wife of the first accused. The case for the prosecution was that there was illicit intimacy between the first accused and this woman and that he was frequently ill-treating his wife as a consequence. There was a child born to the deceased woman, about; four months prior to the date on which her dead body was discovered. The main evidence against the first accused was the confession made by him which was recorded by a competent Magistrate. This confession has been marked as Ext. W at the trial. In that confession, ha had stated that on the night of 7-7-1124 he had caused injuries to a vital part of the body of his wife by means of piece of pointed stick, which has been marked as M.O. V. These injuries resulted in severshemorrhage and the victim collapsed. The first accused tried to retract this confession in the Sessions Court, but there is sufficient corroboration of the statements contained in the confession, especially in the evidence of P. W. 2, a neighbour.
3. When the accused feared that his wife had died as a result of the injuries inflicted by him, he went straight to his neighbour P. W. 2's house and called her son, the second accused, and whispered something in his ear, and later appealed to her son-in-law (P. W. 3) to come and help him to hang up the dead body on the branch of a tree in an adjacent compound in order that people may believe that it was a case of suicide and that he may not be suspected of murder. P. W. 2 in her evidence clearly states that the request made by the first accused to her son-in-law, P. W. 3, was distinctly heard by her. The first accused had said words to the effect that he had caused injuries to his wife and that he was afraid that she might die as a result of those injuries and that be wanted to dispel the suspicion that he was responsible for bringing about the death.
4. The first point that was attempted to be argued on behalf of the first accused appellant by his learned counsel, was that the retracted confession should not be acted upon. But there is material corroboration to be found in the evidence of P. W. 2, and we see no reason to ignore the confession altogether, since it is fully supported by the circumstantial evidence in this case. The paramour of the first accused, who was the deceased woman's maternal uncle's widow, was examined as P. W. 11 in the trial Court. She was also suspected to be implicated in this murder, and since she was prepared to make a dear breast of what had actually happened, she was treated as an approver and her evidence was recorded at the trial, There is nothing in her evidence to implicate her in the commission of the offence except the fact that she assisted the first accused in removing the body of his wife and banging it up on a branch of a jack tree as already stated. She was only one of the people who assisted the first accused in hanging the body. The other person who assisted him, was the second accused, the son of P. W. 2, who was ultimately found to be not guilty. The learned trial Judge considered that the evidence of P. Ws. 2, 3 and 7 corroborated the material averments in the confession made by the first accused. We see no reason to take a different view. Therefore so far as the criminal acts done by the first accused are concerned, there is evidence to prove them.
5. But the main question for consideration is as to whether the first accused has committed the offence of murder as found by the learned trial Judge, or only a lesser offence. This has to be judged mainly from the evidence of the doctor, who has been examined as D. W. 9, According to the Doctor's evidence, the injuries inflicted by the first accused by means of M.O. V. on the body of the victim, might have made her collapse, but did not result in her death. The first accused, on the evidence in this case cannot be said to have entertained any idea of killing his wife when he started attacking her. He was greatly annoyed at her denying to grant him the favours that he asked for, and he wanted to retaliate. In a fit of anger he indulged in a brutal attack on a vital part of her body. This was not done by him with the intention of causing her death. But, when he found that she fell down in a state of collapse mainly as a result of haemorrhage, he jumped to the conclusion that she was already dead, and that was the reason why he sought the aid of p. w. 11 and the second accused to remove her body from inside the house to the adjacent compound and hang it on a branch of a jack fruit tree. According to the Doctor's evidence, death was caused by asphyxia as a result of hanging. The question then is, what is the offence which the first accused has committed by doing these unlawful acts The acts that were done by him by using M.O. V. if they had resulted in the death of the victim, would certainly have made him liable for murder because it could then have been said that be had the knowledge that he was doing something that was likely to result in death. But these acts done by him did not result, in death and therefore for doing the acts he can. not be held liable for murder. The act that actually resulted in the death was the hanging by the neck of the victim on the branch of a jack fruit tree. When the first accused and his accomplices carried the body to the foot of the tree with the nefarious object in view, they were all under the impression that the woman was already dead and they were trying to screen the person, who was responsible for causing her death, from criminal liability. It was with that object that they carried her body, fully believing that she was dead and hanged it by the neck to a branch of a tree. In doing that act, It cannot certainly be said that they had the intention of causing death or the knowledge that death would result from such act, because they fully believed that death had already taken place. There could not be any liability for murder in such circumstances.
6. If the legal position is analysed,it amounts to this. For causing the injuries to the person of the deceased by using M.O. Y. the first accused appellant caused grievous hurt, and it is only under Section 325, TravancoreP.C. that he could be held liable. The learned Public Prosecutor contends that M.O. V in this case would come within the category of instruments that are described in Section 326, Travancore P.C. The description given in the section is as follows:
Whoever .... voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon ofoffence is likely to cause death....
M.O. V can certainly not be described as an instrument that would come within the scope of the above description. It is a blunt piece of wood and it is because of the brutal manner in which it was used in a delicate part of the body of the victim, that it brought about severe hemorrahage. We are not satisfied that the provisions of Section 326, Travancore P.C. will be attracted in the present case to make the first accused liable under that section. In our judgment, it is Section 325, TravancoreP.C. that will apply, and under that section the first accused has become liable for voluntarily causing grievous hurt, as defined in Section 320, Travancore P.C.
7. The problem that has arisen in this Criminal Appeal is not entirely new. In the case-reported is Queen Empress v. Khandu, 15 Bom.194, there was a somewhat similar legal position. There, the accused bad struckthe deceased' three blows on the head with the intention of killing him. In thepresent case, as we have already stated, there is no evidence to show that therewas any intention to kill the woman. The intention was only to hurt. In thatrespect the present case differs from the case in Queen-Empress v. Khandu, 15 Bom. 194. In that case after the accused, had dealt three belows on the head of the victim the latter fell down senseless on the ground. The accused believed that he was dead, and with a view to remove all evidence of the crime committed by him, he set fire to the hut in which the victim was lying. The medical evidence disclosed that the blows struck by the accused were not likely to cause death and did not in fact cause death but that death was really caused by the injuries from burning: when the accused had set fire to the hut. It waft held by a majority of the Judges of the Bombay High Court that the accused was guilty of an attempt to murder underS. SOT, Indian Penal Code. A different view was expressed by Parsons J., which was followed in somewhat similar cases by certain other High Courts. The learned Chief Justice of Bombay, whose opinion finally prevailed, has stated in his judgment that the accused undoubtedly believed that he had killed his victim and that since 'there would be difficulty in regarding what occurred from first to last as one continuous act done with the intention of killing the deceased,' the offence commited by the accused must be held to be only attempt to murder.
8. Another case, which is more to the point, is the Full Bench decision of the Madras High Court reported in Palani Gounden v. Emperor, 49 Mad. 517 :A.I.R. (7) 1920 Mad. 862 : 20 Cr. LJ 404 F.B. There the accused struck his wife a blow on her head with a ploughshare which, though not shown to be a blow likely to cause death, did in fact render her unconscious and, believing her to be dead, in order to lay the foundation of a false defence of suicide by hanging, the accused hanged her on a beam by a rope and thereby caused her death by strangulation. It was held by the Full Bench that the accused was not guilty of either murder or culpable homicide not amounting to murder. That was the opinion expressed by the Full Bench on a reference made to it, and the learned Judges agreed with the decision of Sergeant, C.J. in the case reported in Queen Empress v. Khandu, 15 Bom.194, When the matter went back again to the Division Bench, the Judges, whooriginally heard the case, convicted the accused of grievous hurt under Section 326,Indian Penal Code. In another case, that came up before the Madras High Court,reported in In re Kaliappa Goundan, 57 Mad. 158 A.I.R. (20) 1933 Mad. 798 : 34 Cr. L.J. 1109, the Court took the view that since the intention of the accused throughout was to kill the woman, who was the victim, they were clearly liable for murder. The headnote which describes the facts of the case fairly and accurately is as follows:
The accused, who had formed a deliberate plan to kill a woman and who had intended to kill her, decoyed her under pretence of taking her to a sink relation. On the way they had a struggle with the woman during which her thalifell off or was removed. An attempt might have been made to strangle her. She was immediately dragged either in an unconscious or semi conscious condition on to the railway line, her body was put across the railway line in such a waythat her neck lay across the rails, and she was killed by a passing train. The accused did not put forward the case that they believed the woman to be dead when they put her body across the railway line.
Held : That the accused were guilty of the offence of murder and that the Sessions Judge erred in holding that they were guilty only of the offence of an attempt at murder under Section 307, Indian Penal Code.
It will be seen that the facts in that case differ from the facts of the present case, because the accused never put forward the defence that they believed the woman to be dead when they put her body across the railway line. The intention was clearly to murder, and the manner in which they put the neck of the victim on the railway line in order that the wheels of the train might pass over it and kill her, clearly indicated what the object was in resorting to this gruesome method of killing the woman. In our view, the present case is very much like the case reported in Palani Goundan v. Emperor 12 Mad, 547 : A.I.R. (7) 1920 Mad. 862 : 20 Cr. L.J. 404 F.B. Here, as in that case, the evidence does not disclose that there was any intention to kill the woman and in the circumstances, we have, as already stated, taken the view that the offence committed by the first accused appellant is not murder, but only of causing grievous hurt under Section 325, Travancore Penal Code. The decision of the trial Court should accordingly be altered.. The conviction for murder cannot stand. The conviction can be only under Section 325, Travancore Penal Code, The sentence also must be set aside.
9. The next question is what punishment should be awarded to the accused. He has indulged in torturing his wife in such a manner that she collapsed as a result of the torture. A very atrocious method of torture was adopted by the accused, and in our judgment, he deserves the maximum punishment which is provided in Section 325, Travancore Penal Code, namely, rigorous imprisonment for seven years. We accordingly alter the sentence to a sentence of rigorous imprisonment for seven years.