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Shanker Pandit Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 189 of 1968
Judge
Reported in1970WLN744
AppellantShanker Pandit
RespondentState of Rajasthan
Cases ReferredK.M. Nanavati v. State of Maharashtra
Excerpt:
.....(2) in india, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first exception to section 300 of the indian penal code (3) the mental background created by the provious act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence (4) the fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation 'bearing the above principles in mind their lordships of the supreme court held in that case that the accused that case is clearly distinguishable..........some mucoid froth in the mouth of the deceased. learned counsel for the appellant challenged the medical evidence that as all the symptoms on the various parts of the corpse were normal, it would be risky to hold that mst. ram bai died of strangulation.5. from the above medical evidence, it is manifest that there were two abradded acchymosis on the lower part of the left cheek placed parallel to each other and that there were 5 patches of abradded acchymosis in the area of 1/7' x 1/10' on the front of the neck left to the medial line. there were also multiple abrasions in the above area.6. in taylor's principles and practice of medical jurisprudence, twelfth edition, vol. 1, pages 384 to 387 it is given:swelling and protrusion of the tongue between the lips not noticeably more marked.....
Judgment:

L.S. Mehta, J.

1. Accused Shanker Pandit has been convicted under Section 302, I. P. C, for murdering his wife Mst. Ram Bai, aged 16 years, and sentenced to imprisonment for life by the learned Sessions Judge, Jaipur City, on February 27, 1968. The accused appeals against that judgment to this Court.

2. The material facts of the case, as alleged by the prosecution, are that the accused Shanker Pandit worked as ayce in 61, Cavalry, C squadron, Jaipur. He was residing in quarter No. 9, located in the family lines of the above Cavalry. As a groom, it was his duty to take care of the Cavalry horses and to keep ready a horse for the use of his officer Dafedar Abdul Gafoor P.W. 4. In the morning of September 19, 1967, the said Dafedar went to the stable where he did not find his horse ready to take for a ride. On his inquiry, Shanker Pandit candidly told him that he had killed his wife as he had suspected that she had been in liason with some other person. Abdul Gafoor, having been so informed, apprised Dafedar Major Faiz Mohammed Khan PW 8 of what he had been told. Shanker Pandit was called by Faiz Mohammed Khan. On his query he too was told by the groom that he had murdered his wife. Then reported the matter to Rasaldar Fateh Mohammed Khan. Faiz Mohammed Khan as also to Captain R. S. Sodhi (PW 8). These two officers also made separate inquires from the accused and he reiterated before them the facts as to how he had killed his wife. Dr. J. P. Mathur, P.W. 2, Regimental Medical Officer, 61, Cavalry, Jaipur, was called by Mr. Sodhi for the examination of Mst. Ram Bai. Dr. Mathur found the woman dead as a reasult of the ottling. The accused was then put into the custody of the quarter-guard. The police station, Sadar, Jaipur, was informed by the military authorities, P. W. 9 Ramchander, station officer of the said police station, registered a case against Shanker Pandit under Section 302, IPC , and started investigation The dead body of Mst. Ram Bai was sent to Dr. S N. Dugar, P. W. 3, Medical Jurist, S.M.B. Hospital, Jaipur. He conducted the post mortem examination of the corpse on September 19, 1967, 4. 45 p. m. He found the following injuries on the person of the deceased:

1. On the face two abradded acchymosis on the lower part of the left check placed parallel to each other. Both the above injuries were place 1.3' and 1 7' from the middle of the chin. The size of each of the said injuries was ' X 1/10'.

2. Four patches of abradded acchymosis in an area of 1' X 7/10' on the front of neck slightly left to the medial line. The biggest patch was triangular shaped 1/3' X 1/3' in size.

3. There were multiple abrasions in an area of 1.2' X ' on the right lateral side of the neck, 3' below the lower part of the right ear. The said injury was consistent with nail and finger marks.

4. There was a small abrasion ' X 1/6' one inch above the injury No. 3.

In the opinion of the Doctor, the cause of death was possibily manual strangulation. The effect of the injuries could have caused death. After necessary investigation the police put up a challan against the accused Shanker Pandit in the court of the Additional Munsiff-Magisarste (West), Jaipur City. The said Magistrate conducted preliminary inquiry in accordance with the provisions of Section 207-A., Cr P C, and committed the accused to the Court of the Sessions Judge, Jaipur City, to face trial under Section 302, I P.C On December 13, 1967, the accused was charged by the trial court for the offence of murdering his wife Mst. Ram Bai, to which he pleaded not guilty and claimed trial. The prosecution examined nine witnesses. In his statement recorded under Section 342, Cr. P. C, the accused stated that his wife had fallen ill on the previous day of her death. She could not sleep in the night and in the morning when he got up, he found her fast asleep. Abdul Gafoor came to him and he was told that his wife had fallen ill. He saw his wife. When he found her in a precarious condition, he suggested to him to confess his guilt as nobody would believe that his wife died of natural death. Soon after Faiz Mohammed, R. S. Sodhi, Sardar Singh and several other persons arrived at his quarter. R. S. Sodhi put him in the custody of the quarter-guard. Thereafter he was taken to the police station. The accused had further stated that the prosecution witnesses are Mohammedans and he being a Hindu, they are giving false evidence against him. Shanker Pandit did not produce any evidence in his defence. Eventually the trial court convicted and sentenced him as aforesaid.

3. Learned counsel for the appellant, while arguing the appeal, raised the following points:

1. That the trial court went awry in holding that Mst. Ram Bai died of strangulation. The evidence of Dr J. P. Mathur, P.W.2, and that of the Medical Jurist Dr. S.N. Dugar, P.W.3 is not reliable as they are not certain that Mst. Ram Bai died of manual strangulation.

2. That the trial court went wrong in placing reliance on the extra-judicial confession alleged to have been made by the accused before Risaldar Fateh Mohammed, P.W.1, Dafedar Abdul Gafoor, P. W. 4, Dafedar Major Faiz Mohammed Khan, P. W .6, and Captain R. S. Sodhi, P. W. 8. Learned counsel pointed out several discrepancies in the statements of these witnesses and he further urged that the alleged confession was made in the presence of Station House Officer Ramchander, P. W. 9, and, therefore, it is not admissible in evidence.

3. That having regard to the facts and the circumstances of the cape offence under Section 302, I.P.C., cannot be said to have been brought home against the accused. His conviction for the offence under Section 302, I.P.C., therefore, should be set aside.

4. As for the first point, Captain Dr. J. P. Mathur, P.W 2. examined Mst. Ram Bai at 6.30 a.m. on September 19, 1967 at the resident of the accused. He noticed two marks of ecchyomsis viz., (1) on the right side of the neck in the lower part, and (2) on the left side of the neck in frontal middle part just medial to the traches. The eyes of the dead body were half closed. In the opinion of Dr. Mathur injury marks on the neck indicated that Mst. Ram Bai died of throttling. The two injury marks were superficial & there sizes were probably ' X 1/6'. The condition of the tongue of the deceased was normal. Her lips were not blue, nor were her eyes protruding. Dr. S. N. Dugar, Medical Jurist, S.M S. Hospital Jaipur, conducted the post-mortem examination of the dead body of Mst. Ram Bai. The injuries found by him have already been set out above. In the opinion of the Doctor it was possible that the cause of death was due to manual strangulation. The injuries were ante-mortem and their effect could have caused the death. The Doctor further opined that it was not necessary that there must be any internal injury. If pressure was put on the carolid cartilage, the victim would die much quicker than the pressure on the thyroid cartilage. A little pressure on carolid cartilage could easily cause death and in that case there might be no injury on the outer part of the body. In the cross-examination the Doctor stated that he did not come across any such case of strangulation in which there were no external injuries. In the present case there was a definite evidence of the finger marks on the neck and therefore, it could be concluded that strangulation was the cause of death. The Doctor further expressed the view that the face of the deceased was neither swollen, nor congested, the pupils were not dilated, the tongue was also not found protruded. The Doctor also told the court that he could find some mucoid froth in the mouth of the deceased. Learned counsel for the appellant challenged the medical evidence that as all the symptoms on the various parts of the corpse were normal, it would be risky to hold that Mst. Ram Bai died of strangulation.

5. From the above medical evidence, it is manifest that there were two abradded acchymosis on the lower part of the left cheek placed parallel to each other and that there were 5 patches of abradded acchymosis in the area of 1/7' X 1/10' on the front of the neck left to the medial line. There were also multiple abrasions in the above area.

6. In Taylor's Principles and Practice of Medical Jurisprudence, Twelfth Edition, Vol. 1, pages 384 to 387 it is given:

Swelling and protrusion of the tongue between the lips not noticeably more marked in strangulation than in hanging... In manual strangulation the marks of bruising and acchymosis will be on the front or sides of the neck, chiefly about the larynx and above it. Marks of pressure of fingers may, however, be slight.... A person may be strangled, and yet the ligature, if soft and of a yielding nature like a scarf, may not cause a perceptable mark scarcely any thing more than a slight depression or flush of the skin.

John Glaister in his Medical Jurisprudence and Toxicology (1962) writes at page 171:

The mark more or less completely encircles the neck transversely. In some cases it may be continuous, but in others it may be invisible at some part of the neck.

The said author further opines at page 176:

In some cases, there may be practically no evidence of bruising on the surface of the neck... Occasionally bruising of the muscle may be very slight.

The same author also states at page 179:

The absence of appreciable injury, however, is not unusual, since throttling quickly renders the victim more or less powerless, and unconsciousness supervenes rapidly.

In Lyon's Medical Jurisprudence, (1953), page 358 it is given:

1. These marks may or may not become parchmentised, according as the force used has not been sufficient to abrade the skin, which is seldom the case:

2. Protrusion of the tongue. It will depend on how the presure was applied,if above the larynx and in an upward direction the tongue will protrude, if below it the position of the tongue will be normal.

Modi in his Medical Jurisprudence and Toxicology (1963), Fourteenth Edition, expresses his view at page 166:

In some cases they (eyes) may be closed.

From the above authorities it is manifest that it is not necessary that there must be internal injury in the case of a strangulation. A little pressure on cricoid cartilage could be enough to cause strangulation and in such a case there might not be an injury on the dual part of the body. It is also not necessary in the case of strangulation that the face of the deceased should be swollen or congested, and that the public should be dilated, or that the tongue should be protruded. In the case under examination, there is the definite medical evidence of the injury of the finger marks on the neck of the victim, It is also in the medical evidence that mucaid froth was found in the mouth of the deceased. From these symptoms it can safely be concluded that the cause of death of Mst. Rami Bai was throttling. The trial court's trust or confidence in the medical evidence, as given by Dr. J. P Mathur, P.W. 2, and Dr. S. N. Dugar, P.W. 3, therefore, cannot be said to be erroneous.

7. We now turn on the examination of the extra-judicial confession, alleged to have been made by the accused in the presence of certain procecution witnesses. The most important evidence in this regard is that of Abdul Gafoor, P. W. 4. We say that he enquired from Shanker Pandit why he had not put saddle on the horse, He kept quiet for sometime and thereafter he told him that he had killed his wife. He further told him that when he had been at the water tap in front of his quarter, he had seen one person entering his quarter and that when he had gone to his quarter after cleaning his mouth at the water tap he had found the door of his quarter closed from inside. He also told him that he had knocked at the door whereupon it had been opened. He had entered the quarter and had inquired from his wife as to who that person was who had entered the house. His wife had not replied to his question for sometime. He had again inquired from his wife and thereupon she had told him that no person entered the quarter. In the end, he had told him that he had strangulated his wife. According to the first information report the police reached the repot at 8 30 a.m., on September, 19, 1967: Ex. P. 2. The Station House Officer, Ramchander, P.W, 9, his stated:

I commenced investigation of the case after the receipt of report Ex. P. 5. I actually reached the spot at 8.30 A.M. on 1-9-67.

P.W. 4 Abdul Gafoor further says in the cross-examination that the accused informed him of the mishap at 5.30 a.m. though in the police statement Ex. D.1 he had stated at portion marked A to B that the information had been conveyed to him at 4.30 a.m., but that appeared to have been incorrectly recorded There is nothing in the cross-examination of Abdul Gafoor as to why he should tell a lie against the accused. His testimony appears to us to be irrefutable. We refuse to take a contrary view from the one taken by the trial court in regard to the credibility of the statement of P.W. 4. The statement of Abdul Gafoor is corroborated by Risaldar Fateh Mohammed P.W. 1. He says:

I enquired from the accused whether he had killed his wife by strangulation and whether the report made by Faiz Mohammed was correct. The accused hesitated for a moment and then replied that 'yes' he had killed her... The accused replied that he pressed throat of his wife with the result that she died.

In the cross-examination the witness deposed:

The accused told me that he killed his wife because he suspected some man in the quarter with her.

Faiz Mohammed Khan, P.W. 6, says:

I called Shanker Pandit and asked him why he had killed his wife. In answer to my question, Shanker Pandit told me when I was cleaning my mouth at the water tap outside my quarter I found some person entering my quarter. When I went to my quarter after cleaning my mouth I enquired from my wife as to who that person was who entered the quarter just now. My wife did not reply to the question. I again put the question to my wife. My wife thereupon told me that nobody came to the quarter. I could not resist the delay and I strangulated my wife to death.

Captain R.S. Sodhi, P.W. 8, has stated that on inquiry he was told by the accused that when in the morning he was washing at the tap, he thought that some man had entered his quarter. The accused further stated that thereafter he immediately went to his quarter and found that its door was bolted from inside. It was opened after several knocks having been repeatedly struck. Thereupon he got annoyed and killed his wife. Learned counsel for the appellant has assailed the testimony of this witness on the ground that the confession alleged to have been made in the presence of the police and, therfore. it is not admissible in evidence. No doubt the witness has said that at about 7 a.m., when he presonally went to the quarter of Shanker Pandit, the police had arrived. Subsequently the witness corrected himself, and deposed that he was not sure whether the police had arrived by that time. We have already held above that the police reached the spot at about 8.30 on September 19, 1967. The extrajudicial confession as made before the witness at about 7 a.m. It is, therefore, not believable that this confession was made before R.S. Sodhi in the presence of the police.

8. An extra-judicial confession, if voluntary, can be relied upon by the court. The value of the evidence as to the confession, which is like any other evidence, depends upon the veracity of the witness to whom it is made. It is for the court, having regard to the credibility of the witness and his capacity to understand the answers given by the accused, to accept the evidence or not. As has been laid down in Mulk Raj Versus State of UP. AIR 1959 SC 902, it is not an invariable rule that the court should accept the extra-judicial confession, if not the actual words, but the substance was given. If the rule is inflexible that the court should insist on the exact words, that evidence sometimes most reliable and useful will stand excluded. The reason is simple. Except perhaps in the case of a person gifted with rich memory, many witnesses cannot, after the lape of considerable time, repeat the exact words spoken by the accused. In this case the confession made by the appellant was not a complicated one. The witnesses stated practically the exact words used by the accused. The witnessess before whom the extra-judicial confession was made are responsible military officers. There is no reason why all there officers should tell a lie, more especially against their own employee. There may be minor contradictions hers and there in the witnesses statements, but they are not of much significance. The extrajudicial confession made by the appellant leaves no room for doubt that it was he who strangulated his wife. The trial court, therefore, was amply justified in acting upon such a confession.

9. An extra-judicial confession must be accepted and acted upon as a whole: vide Re Ramayee AIR 1960 Mad 187. We think that the principle laid down in the Madras case has long been followed by the various High Courts. This Court has also accepted the principle that where there is no other evidence, then the confession is to be rejected or accepted as a whole. But if there is other evidence whereby the truth of falsity or a part of the confession can be tested, the court will examine the truth or falsity of the confession with the help of that other evidence and may accept that part of the confession which it believes to be true and reject that part which it believes to be false. When there is no other evidence as to certain facts to which the accused in his confession testifies, the court will take into consideration the confessional statement as a whole and will draw proper inference This principle has also been laid down in Balmakund v. Emperor : AIR1931All1 , which, with respect, we agree. Here there is no other evidence, connecting the accused with the crime except the extra-judicial confession made before the above-named military officers. Therefore, the confession will have to be treated as whole.

10. In his confession the appellant has made four points clear:

1. That in the morning of September 19, 1967, he came out of his house and went to a water tap which was at a distance of 20 to 25 paces from his residential quarter.

2. That from the tap he had seen a man entering his house, where upon suspicion arose in his mind.

3. That after sometime he went to his quarter and found the door of his room chained from inside and it was subsequently opened by his wife after he had repeatedly knocked it.

4. That on his questioning his wife had kept quiet and she had answered his query in the negative after some wavering or hesitation.

11. In so far as the circumstances under which the accused killed this unfortunate woman, we have nothing but to go on with the statement in the confession. This gives rise to a fair inference that the accused found somebody having liason with his wife though not in the actual act of sexual intercourse. It is true that when the door was opened, no male person was found in the quarter of the accused. The police tried to find out the foot prints on the other side of the accused's house, where there was a window. That shows that the opening on the other side was without iron bars & the person concerned might have escaped through it when the main door of the house was closed and was being knocked at by the accused Under that circumstance, it can safely be presumed that the accused acted under provocation when he killed the woman. Taking into account the nature and the temper of the people of the area and of the class of the accused, we think that this case squarely fall within exception 1 to Section 300 I PC.

12. Provocation in law, as has been held by their Lordships of the Privy Council in Lee Chun-Chen v. Reginam 1963 ALER (1) 73, consists mainly of 3 elements--(1)the act of provocation, loss of self-control, both actual and reasonable, and (3) retaliation proportionate to the provocation Lord Goddar in Attorney-General for Ceylon v. K.D. John Perera 1953 AC 200 has said:

The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm, but his in ention to do so arises from sudden passion involving loss of self control by reason of provocation.

The trial court, in this case, did not deal with the matter with correct approach. If there was some material on which a court acting reasonably could have found that the offence committed fell under exception 1 to Section 300, it could have converted the offence of murder into one of culpable homicide not amounting to murder. All that the defence need do is to point out to the material which could induce a reasonable doubt. A classic statement of this aspect of the law was made by Viscount Simon in Holmes v. Director of Public Prosecutions 1946 AELR (2) 146. If on the other hand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject to passion or loss of control as to be led to use the violence with fatal results and (b) that the accused was in fact acting under the stress of such provocation, then it is for the court to determine whether on its view of the facts culpable homicide not amounting to murder is the appropriate verdict. On the facts of this case, the question whether the provocation was enough to make a reasonable man to do as this appellant did admit of only one answer and that answer was 'yes'. In other words, notwithstanding the fact that the accused did not specifically seek the verdict of culapable homicide not amounting to murder at the trial, it was incumbent upon the Judge to examine the issue of provcation, with the assistance of the material available on the record. The learned counsel for the State cited K.M. Nanavati v. State of Maharashtra (7). In that case their Lordships of the Supreme Court stated the relevant law thus:

(1) The test of 'grave and sudden' provocation is whether a reasonable man, belonging to the same class of society as the accused, placed, in the situation in which the accused was placed would be so provoked as to lose his self-control (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code (3) The mental background created by the provious act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation ' Bearing the above principles in mind their Lordships of the Supreme Court held in that case that the accused Nanavati's attitude clearly indicated that he had not only regained his self-control, but on the other hand he was planning for the future and that there was sufficient time for him to regain his self control. His act, therefore, by shooting PremAbuja was calculated to be a deliberate and cold blooded murder despite the confession having been made by his Mrs Sylvia. That case is clearly distinguishable from the facts & circumstances of the case under examination. Provocation, however, great, is insufficient if it is not recent and if there has been a sufficient time between the provocation and the killing for passion to subside and for reason to interpose vide para 1363 Halsbury's Laws of England, Third Edition volume 10. In Nanavati's case enough time elapsed between the provocation and the actual murder and for the accused to be cooled down. But in the case in hand no such time had elapsed to enable the accused to regain his self control. Thus, it is manifest that the accused was provoked and lost his selfcontrol and that in the heat of such provocation he committed the crime.

13. For the above reasons, this court will partially allow this appeal, and will substitute a verdict of culpable homicide not amounting to murder under Section 304 Part I, I.P.C. for the offence of murder under Section 302, IPC. This court has also carefully considered as to what is the appropriote sentence to be awarded in this case It was in every sense of the word a terrible crime, strangulating a young wife, under provocation, with the intention to kill. It is true that there was grave and sudden provocation, but it was not so great as in the case where the woman is found in the act of intercourse with the man. We accordingly alter the conviction from one under Section 302 to one under Section 304, Part I, I. P. C, and reduce the sentence of life imprisonment to seven years' rigorous imprisonment. The appeal is thus partially accepted.


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