1. This is an appeal preferred by the accused in Sessions Case No. 14/1956 on the file of the Sessions Court at South Kanara, questioning the sustainability of the conviction entered against him under Section 302 of the Indian Penal Code and the sentence of life imprisonment awarded to him. The charge against the accused is that on the morning of 4th February 1956, he murdered his uncle Kunhambu Nair by shooting him with the gun which has been recovered and marked as M. O. 1 in the case.
The act is admitted by the accused in his statement given by him before the Sessions Judge and the plea of the accused is that he committed the act under grave and sudden provocation and as such the act cannot amount to the offence of murder punishable under Section 302. In the appeal memorandum also the same plea is reiterated and it is urged that the conviction of the accused should only be under Section 304 and not under Section 302 of the Penal Code.
2. At the time of the occurrence, the accused along with his wife Kamalakshy, who has been exa^ mined as P. W. 2 in the case, was living with his uncle Kunhambu Nair and his wife P. W. 1 in the same house. The position of this house and its surroundings is shown in the sketch Ext. P-9 prepared by the Investigating Officer who has been examined as P. W. 11. Kunhambu Nair was as agriculturist and in his work of cultivation he was being assisted by the accused. For about a year prior to the date of the occurrence, Kunhambu Nair could not go out for work as he was suffering from an ulcer on his leg and the entire work was being attended to by the accused himself.
He married P. W. 2 about 8 months prior to the date of the occurrence and some time later he began to suspect the fidelity of his wife. He had a strong suspicion that his uncle Kunhambu Nair and P. W. 2 were on terms, of illicit intimacy and had even complained about it to P. W. 4 an influential neighbour to these people and had requested him to ask Kunhambu Nair to arrange for a separate residence for the accused and his wife. But nothing came out of such a request. The gun M. O, 1 belonged to Kunhambu Nair, it is a muzzle loading gun and it was being used by the accused also for shooting pigs and other animals coming to destroy the crops raised by these people.
For the purpose of guarding such crops the accused had frequently to go out to the fields during night time. On the night of 3rd February 1956 he went out as usual with the gun M. O. 1 and returned only by about day-break next day. P. W. 1 the wife of Kunhambu Nair was sleeping with her children in the main room of their house. It was only 28 days after her confinement and she was also ill. Her husband Kunhambu Nair was sleeping on the verandah to the north of the main room and the door leading to that verandah from the main room was left open. P. W. 2 was sleeping in the kitchen room on the western portion of that house. P. W. 3, the servant boy in that house was also sleeping On the northern verandah.
According to the prosecution, this was the situation when the accused returned home at about day break on 4-2-1956. He got on to the front verandah of the house and called his uncle Kunhambu Nair who woke up and sat on his bed. The accused talked to Kunhambu Nair about his illicit intimacy with P. W. 2 and then shot Kunhambu Nair on his abdomen with the gun M. O. 1. The victim fell back on his bed. Even before the firing of the shot P. W. 1 who had heard the threatening words uttered by the accused, had called out to him not to shoot her husband and thus render her helpless.
This appeal had no effect and before P. W. 1could do anything further, the shooting took place. P. W. 3 who woke up on hearing the shot, saw Kunhambu Nair lying wounded and the accused standing on the verandah with the gun M. O. 1 in his hand. P. W. 2 also woke up and came out from the kitchen room and witnessed the same situation. P. W. 1 directed P. W. 3 to the nearest neighbour P. W. 4 and he rushed to the spot. He was told by P. Ws. 1 to 3 and Kunhambu Nair that it was the accused who shot Kunhambu Nair. P. W. 4 and others who had gathered at the spot, removed Kunhambu Nair to the GovernmentHospital at Kasargod where his dying declaration Ext. P-7 was recorded by P. W. 8 who was at that time the Sub-Magistrate at Kasargod.
The victim died at 11 a.m. The fact is provedby the Medical Officer, P. W. 6, who conducted thepost mortem examination of the body of KunhambuNair and issued the autopsy certificate Ext. P-5. Atthe autopsy, the pellet M. O. 6 and the fibre wadM O 7, were recovered from inside the body ofKunhambu Nair. P. W. 12, the Fire-Arms Experthas stated that M. O. 6 and M. O. 7 could havebeen discharged from the gun M. O. 1. The pelletM. O. 8 and the fibre wad M. O. 9 were found onthe mat on which Kunhambu Nair was sitting whenhe was shot and on which he fell down on being hitby the shot. M. Os. 8 and 9 were recovered bythe Sub-Inspector P. W. 1,1 when he prepared thescene mahazar Ext. P-10 a few hours after theoccurrence.
It is conclusively established by these items of evidence that Kunhambu Nair received a gun shot wound on the morning of 4-2-1956 and that he died as a result of that wound at 11 a.m. on the same day. In the autopsy certificate Ext, P-5, the cause of death of Kunhambu Nair is mentioned as internal haemorrhage and shock due to gun-shot wound on the abdomen. This opinion is confirmed by P. W. 6 who has further stated that the injury sustained by Kunhambu Nair was a fatal injury and that he must have been shot from a close range i.e., from a distance of 3 or 4 feet.
3. As already stated, the accused himself has stated in his statement that he shot Kunhambu Nair on the early morning of 4-2-1956. The evidence of P. Ws. 1 to 4 and the statement of Kunhambu Nair in his dying declaration Ext. P-7, also go to confirm tin's fact. P. W. 1 who was sleeping in the main room of the house, woke up on hearing the accused questioning Kunhambu Nair about his illicit intimacy with P. W. 2, Since the door of that room leading to the verandah was let open, P. W. 1 was also able to see what transpired at the verandah.
After waking up Kunhambu Nair from his sleep, the accused asked him as follows : 'Are you not satisfied with lying with my wife'? Kunhambu Nair asked the accused by way of reply ; 'Who told you that? The accused retorted by saying 'No one told me. I myself have come to know of it'. Then Kunhambu Nair asked the accused : 'What are you going to do me about it.' The accused replied : 'I will shoot you''. It was at 'that stage that P. W. 1 called out to the accused 'Chindan, don't render me helpless'. But this appeal was of no avail and the accused straightway fired the shot at Kunhambu Nair who fell back on his bed on receiving the shot.
All these facts have been clearly sworn to by P. W. 1 and we see no reason to doubt the correctness of the version given by her. Hearing the sound of the shot and also the cry of P. W. 1, Kamalakshi, the wife of the accused, woke up and opened the door of the kitchen room and rushed to the front verandah and saw the accused standing there with the gun in his hand while Kunhambu Nair was lying on his bed with a wound on his abdomen, The servant boy P. W. 3 who was lying on the eastern side of the verandah also woke up on hearing the gun shot and he too saw the victim lyingon the bed and the accused standing by with the gun in his hand.
Nothing has been brought out in the cross-examination of P. Ws. 2 and 3 to discredit their evidence which fully corroborates evidence given by P, W. 1. P. W. 4 who came to the scene soon after the occurrence, has also stated that he was told by both Kunhambu Nair, and P. W. 1 how the accused had shot Kunhambu Nair. In the dying declaration Ext. P-7 also Kunhamhu Nair has stated that the accused woke him up on the early hours of the day and after telling him that he will shoot him, fired the shot at his abdomen. Consistent with these items of evidence, there is also the admission of the accused as to having shot Kunhambu Nair on the morning of 4-2-1936.
4. What remains to be considered is whether in shooting Kunhambu Nair, the accused was acting under grave and sudden provocation as pleaded by him. In the statement of the accused he has described the situation under which the firing took place in the following terms : 'When I returned home at 5 a.m. after hunting and got into the verandah and flashed my torch, I found my uncle and my wife lying together in the embrace and I do not know how the gun went off.' He has also stated that when he shot after flashing the torch, his wife ran away.
If really the accused had seen his wife and Kunhambu Nair in the compromising situation as described by him, there can be no doubt that his act of shooting Kunhambu Nair must have been done under the impulse of grave and sudden provocation. But beyond the accused's own statement there is absolutely nothing in the evidence on record to support his version that he saw his wife and Kunhambu Nair lying together in embrace on the front verandah of the bouse. The positive evidence given by P. Ws. 1 and 2 is to the effect that P. W. 2, the wife of the accused, was sleeping in the kitchen room with its door bolted from inside and that she opened the door and came out only after she woke up on hearing the sound of the gun shot.
This version agrees with the probabilities while the version given by the accused on the face of it appears to be unnatural and improbable. Even if it is assumed that Kunhambu Nair was on terms of illicit intimacy with P. W. 2, it is extremely unlikely that they would have been lying together in embrace in the front of the verandah of the house even at the time of day break on that day. There Was every risk of their unlawful performance being detected by Kunhambu Nair's wife, P. W. 1, who was lying in the adjoining room with the door leading to the verandah left open. Anybody coming from outside to that house on the early hours of the day could also witness Kunhambu Nair and P. W. 2 in the same situation.
The servant boy P. W. 3 who was lying on the eastern portion of the verandah could also see the same situation on his waking up in the morning. There was also the risk of the accused returning home at any time during the night. It is too much to imagine that Kunhambu Nair and P. W. 2 would have been so foolish as to overlook all these dangerous possibilities and to think of misbehaving themselves on the open verandah in front of the house at such an untimely hour. If really they wanted to mis-behave as suggested by the defence, they had ample time to do so in the kitchen room occupied by P. W. 2 alone during the night time when the accused was away.
If P. W. 2 and Kunhanibu Nair were lying together in embrace when the accused fired the shot, there was every chance of both of them being hit by the pellet which proceeded from gun. The absence of any gun shot wound on P. W. 2 is in itself a clinching circumstance exposing the falsity of the accused's version that he fired the shot when he saw P. W. 2 and Kunhambu Nair lying together in embrace. It is urged on behalf of the accused that the injury found on the right elbow of P. W. 2 was caused by a pellet hitting her at that part of her body. But the medical evidence is to the effect that the said injury could not have been caused by a pellet in the course of 8 gun shot.
The Medical Officer who examined the injury found on the right elbow of P. W. 2 and issued the wound certificate Ext. P. 8 has been examined as P. W. 9. In Ext. P. 8 the injury is described as an abrasion on the back of the right elbow. P. W. 9 is definite that this was a simple injury and the same could not have been caused by a gun shot. There is also satisfactory and convincing evidence as to how P. W. 2 sustained the abrasion on her right elbow. When she came out of the kitchen room on hearing the gun shot on Kunhambu Nair, the accused caught hold of her and dragged her into the front yard of the house and there beat her.
Subsequently he dragged her to the fields nearby. While she was thus being dragged out through the wicket gate, her hand struck against a bamboo stick in that gate and it was in this manner that she sustained the injury on the right elbow. P. W. 2 has clearly deposed to these facts and her evidence is fully corroborated by the evidence given by P.W. 1 & also by P. W. 5, both of whom swear to have seen the accused dragging P. W. 2 out into the fields & beating her. The position of the injury sustained by Kunhambu Nair will also indicate that he was not shot while he was lying on his bed embracing P. W. 2.
The autopsy certificate Ext. P. 5 shows that the pellet emanating from the gun entered his body at a place just to the right of the ambilicus. The peritoneum was torn and the peritoneal cavity was full of dark blood. The descending colon was pierced. There was a fracture on the right aliac bone at its aliac crest and the pellet was seen lodged on the outer rib. The nature and position of these injuries clearly go in support of the version given by P. W. 1 that Kunhambu Nair was sitting on his bed when the accused standing in front of him fired the shot at his abdomen. The Medical Officer P. W. 6, has also stated that the injury found on Kunhambu Nair must have been sustained by him while he was in a sitting posture and not while he was lying down.
Such being the conclusive nature of the evidence available in this case, the statement of the accused that he fired the shot at Kunhambu Nair, when himself and P. W. 2, were seen lying together embracing each other, has to be rejected as baseless and untrue and the version given by P. Ws. 1 to 3 has to he accepted as true and correct. It follows therefore, that when the accused returned home at day break on 4-2-1956, there was nothing strange or un-usual in that house to cause any grave and sudden provocation to him to induce him to fire at his uncle Kunhambu Nair and to take his life.
5. There is evidence in this case to show that for some time past the accused was entertaining a firm belief that Kunhambu Nair and P. W. 2 were in terms of illicit intimacy. P.W. 5 has stated that he had heard ot such a scandal. It has also come out from the evidence of P. Ws. 1 and 2 that the accused used to accuse P. W. 2 of being in terms of illicit intimacy with Kunhambu Nair and to assault her for that reason, According to P. W. 14 the accused had complained to him about the misconduct of P. W. 2 and Kunhambu Nair and to have requested him to persuade Kunhambu Nair to arrange for a separate residence for the accused and P. W. 2.
Nothing came out of this request and naturally, therefore, the ill-feeling of the accused towards Kunhambu Nair must have become highly embittered. The accused's feeling that Kunhambu Nair was misbehaving with P. W. 2, must have caused a provocation to him to retaliate. But when such feeling of provocation is a long-standing one gaining intensity from clay to day until finally the person harbouring such feeling yields 'o the provocation, by attacking his enemy it cannot be said that he is acting under grave and sudden provocation. On the other hand, the provocative feeling which he was entertaining for some time can only be termed the motive for the act committed by him.
The accused in this case had evidently such a motive to attack his uncle Kunhambu Nair against whom he was harbouring an ill-will for some time prior to the occurrence, and this feeling and its outward demonstration on the morning of 4-2-1950 when he disclosed his mind to Kunhambu Nair by openly telling him about his illicit intimacy with P. W. 2 and then firing the fatal shot at him. This cannot be said to be an act done under grave and sudden provocation so as to bring it under Exception 1 of Section 300 of the Indian Penal Code.
On the other hand, it was a deliberate and preconceived act of retaliation and the weapon used was unquestionably a dangerous weapon and the shot was fired at a vital part of the body of Kunhambu Nair obviously with the intention of killing him. Every ingredient of the offence of murder has been clearly established and the learned Sessions Judge was therefore right in convicting the accused of the offence of murder punishable under Section 302 of the Penal Code. Such conviction has only to be confirmed. Only the lighter sentence of imprisonment for life has been awarded to the accused and we see no reason to interfere with the sentence either.
6. In the result, the conviction entered againstthe accused and the sentence awarded to him areconfirmed and the appeal is dismissed.