1. The condemned prisoner in the referred trial who is appellant in C. A. 860 of 1963 (hereinafter referred to as appellant) has been convicted by the learned Sessions Judge, Salem Division, for the offence of murder and sentenced to death under Section 302 I. P. C. for having murdered his wife Muthayee by stabbing her with a knife at 9-30 a.m. on 19-4-1963, while she was going to Singalandapuram from Palanimoopanur. In the Sessions court, including the appellant, five persons were charged and tried for the offence punishable under Sections 147, 148, 302 and 302 read with Section 149 1. P. C. Accused 1 to 4 are brothers and the 5th accused is the son of the second accused. All of them are residents of Palanimoopanur. The case for the prosecution that the other accused formed themselves into an unlawful assembly and assisted the appellant in committing the offence, was not accepted by the learned Sessions Judge and they were acquitted by him. We are, therefore, concerned only with the case of the appellant.
2. The brief facts, according to the prosecution are as follows. The deceased Muthayee who was the daughter of Paratrayan (P. W. 1) was married to the appellant about 6 years back and they lived happily for over 5 years, and about 3 1/2 years back a boy was born of this marriage. But in Karthigai 1962, Muthayee went to Bangalore eloping with one Kannayan and returned to the village after 25 days. Naturally disputes arose between the husband and the wife, and, at the village panchayat it was decided by the village Panchayatdars that the marriage between the appellant and. Muthayee should be dissolved, that the boy should remain with Muthayee, that, in respect of the property purchased in the name of the appellant, he should convey it to Muthayee's father (P. W. 1) and that the latter should pay a sum of Rs, 350 to the appellant in connection with the same. In pursuance of the Panchayat, a deed of dissolution was executed, and two promissory notes were exchanged between the appellant and P. W. 1 in regard to conveyance of the property to P. W. 1 by the appellant. On 19-4-1963, the deceased as well as her father, V, W, 1, set out to Singalandapuram at 9 a.m. to purchase some articles for the grocery shop of P. W, 1. Muthayee went first, and her father joined her sometime later after answering calls of nature in a pit nearby.
Muthayee was carrying her son with her and also a hand bag, M. O. 2, while her father, P. W. 1, carried with him a gunny bag, M. O. 1 and a cash of Rs. 57. While P. W. 1 was easing, he got up and saw Muthayee proceeding along the road, to the south of one Raja Goundan's land. Immediately he observed the appellant running from the fence of Raja Goundan's land and stabbing Muthayee on her back with a knife (M. O. 3) after catching hold of her tuft. P. W, 1 heard Muthayee crying out and falling down. By that time, the other accused. 2 to 5 came running from the fence. The second accused caught hold of the head of Muthayee, the third accused sat on her legs and the appellant : stabbed Muthayee several times with the knife M. O. 3. When P. W. .1 and P. W. 2 (Sakkari) attempted to go near the scene of occurrence with a view to rescue Muthayee, the 4th and 5th accused stood at some distance and threatened them, with the result the two witnesses had to stop on the way. After stabbing Muthayee, all the accused left the scene and ran away.
3. Shortly thereafter, P. W. 1 and P. W. 2 went to Muthayee, and, she told them that she had been stabbed by her husband and brothers-in-law. P. W. 2 bandaged the wounds on her abdomen and also gave her some water. But she died immediately after taking water The father of Muthayee, (P, W. 1) gave the first information report, Ex. P. 6, to the village munsif at 11-45 a.m. At 12-30 p.m. on the same day, the appellant appeared before the Station writer of Belukurichi police station with the knife, M. O. 3, and gave a statement before him. The police registered the case and the usual investigation and inquest were conducted. The doctor, P. W. 4, who conducted post mortem examination submitted post-mortem certificate (Ex. P 7) from which it is clear that Muthayee died of several fatal injuries on account of stabbing and whoever inflicted those injuries was clearly guilty of the offence of murder punishable under Section 302 I. P. C.
4. Before the committal court, the appellant did not admit the act of stabbing; but in the court of sessions, he admitted that he stabbed the deceased, and the reason why and the circumstances under which according to him he stabbed the deceased, may be stated in his own words:
After weaving in my master's house at Singalandapuram at about 9 or 9-30 a.m. I was going home to take morning meal. On the way I saw Muthayee standing. I asked her, to come with me, to lead a family life, she refused to come on the ground that she is having another husband; and abused me in vulgar language. She beat me on my chest with one of her chappals; I pushed her by her neck and tried to take her to my house and she refused to come with me. I was very hungry and I lost my temper. 1 do not know what I did. On account of anger, I stabbed her 5 or 6 times with a knife and ran away.
5. The case for the prosecution mainly rested upon the first information report, Ex. P. 6, given by P. W. 1, the father of the deceased, his own oral testimony as well as the oral evidence of P. W. 2, Sakkari. Besides these, there was the con-duet of the appellant in going to the Balukurichi police station with the bloodstained knife, M. O. 3, immediately after the occurrence, and the statement before the sessions court in which the appellant had admitted that he stabbed the deceased.
6. The documentary and oral evidence adduced in the case amply prove that, for sometime prior to the occurrence, the relationship between the deceased and her father, P. W. 1 on the one hand and the appellant on the other was pronouncedly hostile, and there; was no love lost between the husband and wife. The divorce brought about by the village panchayat and the provision for the conveyance of the property back by the appellant to P. W. 1, in the background of the deceased eloping with one Kannayan, had strained the feelings of the appellant to a very great extent, with the result he harboured deep rooted malice and grudge against the deceased. We are inclined to think that this background of the case furnishes ample motive for the commission of the offence in question.
7. As regards the veracity of the oral evidence of P. W. 2, the other direct eye-witness, we share the same doubt as the learned Sessions Judge.
(After discussing the evidence His Lordship proceeded):
8. In the course of the hearing of the present appeal, arguments were advanced by learned Counsel for the appellant as well as by learned Public Prosecutor, on the question, as to how far, a statement of the accused under Section 342, Cr. P. C. can be acted upon whether it would be open to the court to dissect and separate the statement of the accused and rely upon one portion of the same rejecting the rest - and as to how far it would be legal to base a conviction solely upon the statement of the accused under Section 342 Cr. P. C. when the court finds the evidence on the side of the prosecution insufficient and unsatisfactory. In the view we have taken of the evidence in this case as indicated above, it may not be necessary to express a final opinion on the several points urged by learned Counsel on both sides. We would however, like to make a brief reference to the same.
9. It is settled law, that, if a statement of an accused under Section 342 Cr. P. C., consists of a confession or admission that he committed an offence coupled with qualifying circumstances constituting a defence so as to exculpate the accused, it will not be open to the court to separate the incriminatory portion and use it against the accused. Either the admission should be taken as a whole or should be completely rejected. In Hanumant Govind v. State of Madhya Pradesh : 1953CriLJ129 the law was stated in these terms at page 350:
It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If the statement of the accused is used as a whole it completely demolishes the prosecution case and if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not written on the date it bears.
In a later case, Karnail Singh v. State of Punjab AIR 1954 SC 204 it was pointed out that the normal rule is that an admission or statement of an accused under Section 342 Cr. P. C. must be read and used as a whole, but in some cases when the statement consisted of distinct and separate matters, there was no reason why the admission contained in one matter should not be relied on without reference to the statement relating to the other separate matter. The question in each case would, therefore, be whether the statement of the accused under Section 342 Cr. P. C. is inseparable and an integrated whole, or whether it consists of distinct and separable portions dealing with distinct and different matters. In Dronacharya v. State : AIR1959All526 the statement of law in the Supreme Court decisions referred to above came up for discussion, and the learned judges held that it was not open to a court to separate the statement of an accused person, accept a portion of it and reject the other portion, on the facts of that case. In that case, the accused made a statement, that, while he was plucking mangoes from a mango tree, the deceased came there and abused the accused, and, that, when the accused got down, the deceased assaulted the accused with a lathi and continued to do so even after the accused got down. The accused further stated that, in view of this, he struck the deceased with a lathi in self defence.
The trial court found the portion of the statement relating to self defence false and convicted the accused; but the High Court reversed that judgment and acquitted the accused, on the ground that the statement of the accused related to the same transaction and should be read as a whole and could not be dissected. In Bachanlal v. State : AIR1957All184 the accused made a statement under Section 342 Cr. P. C. to the effect that the other accused threatened him with serious consequences, that, out of fear, he accompanied the other accused and the deceased to a grove, and that by reason of threats of others, he held the legs of the deceased, while the other accused killed the deceased by cutting his neck. It was held that this statement was wholly insufficient to hold that the accused committed the murder of the deceased or had any common intention with the others to commit the murder.
10. The question as to how far the statement of the accused under Section 342 Cr. P. C. can be dissected into parts and some portion only used against the accused, came up for decision quite recently before the Supreme Court in Narain Singh v. State of Punjab . In that case the accused, while admitting that he had caused the injuries to the deceased, stated that, at the time of the occurrence, the accused alone was present at the scene of occurrence, and, that, after the accused had fallen on the ground, the deceased attempted to strangulate him, and thereupon, the accused used the weapon in self defence causing certain injuries to the deceased. Both the courts of Sessions as well as the High Court came to the conclusion that the evidence of the prosecution witnesses and the dying declaration made by the deceased were not worthy of acceptance. At the same time, the two courts relied upon the statement of the accused under Section 342 Cr. P. C. and convicted the accused for an offence punishable under Section 304 Part II I. P. C., holding that the accused had exceeded the right of self defence. On appeal, the Supreme Court acquitted the accused holding that the statement of the accused under Section 342 Cr. P. C. was not capable of dissection and that it should be considered as one single composite plea. The Supreme Court pointed out that it was not open to the court to use that portion of the statement that the accused inflicted the injuries and at the same time throw the burden upon him to establish that the injuries were inflicted by him in the exercise of right of self defence.
From the judgment, it is quite clear that, if an accused admits to have done an act and also given an explanation, and if the admission of the commission of the act would, but for the explanation furnished by him, be an offence, the admission cannot be used against him divorced from the explanation. This rationale of this decision is well brought out in the following observations of the Supreme Court at page 327:
Where a person accused of committing an offence sets up at his trial a plea that he is protected by one of the exceptions, general or special in the Indian Penal Code, or any other law defining the offence the burden of proving the exception undoubtedly lies upon him. But this burden is only undertaken by the accused if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged. The prosecution case, however, did not by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. His responsibility, if any, arose only out of the plea raised by him; if the plea amounted to a confession of guilt the court could convict him relying upon that plea, but if it amounted to admission of facts and raised a plea of justification the Court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification.
It is unnecessary to refer to further cases on the I point, as the legal position is clear that, where a statement is an integral and indivisible whole containing a composite plea, it is not open to the court to discard the exculpatory element in the statement and accept only the inculpatory element as against the accused. Applying this rule to the instant case, we are unable to see how his statement under Section 342 helps the accused, so as to make out that the offence committed by him, at the most is culpable homicide not amounting to murder, as contended by learned Counsel for the appellant. The exculpatory portion of the statement, even if accepted as true, does not bring the case within any of the exceptions to Section 300 I. P. C, After the customary divorce has been effected followed by the exchange of the promissory notes, the appellant had no right to inflict the fatal injuries, simply because his wife refused to join him. In his statement he says that, when he called her to come back, she refused to go with him and abused him and so he lost his temper and stabbed the deceased with a knife. Clearly this case does not make the offence any the less a murder. In other words, without dissecting the statement of the accused and accepting it as a whole, it does not help the appellant.
11. The question then arises as to how far it is open to the Court to act upon the statement of an accused under Section 342 Cr. P. C. Mr. Mohan Kumaramangalam, learned Counsel for the appellant contended that it is settled law, that the statement of an accused under Section 342 Cr. P. C. cannot constitute substantive evidence against the accused, and that, if otherwise the evidence adduced on the side of the prosecution is unreliable and unacceptable to clearly bring home to the accused the guilt, it would not be open to the court to rely upon the statement of the accused and base a conviction thereon. He urged that the provision under Section 342 Cr. P. C. is an enabling one, and that the same had been executed with a view solely to give an opportunity to the accused to explain the circumstances appearing in the evidence against the accused and for no other purpose. He also contended that, if the evidence adduced on the side of the prosecution is worthless, it would not be open to the court, under the guise of giving an opportunity to the accused under Section 342 Cr. P. C. to convict the accused, as any other view would mean that the prosecution, on whom the burden of establishing guilt lies, would be filling up the gaps in the prosecution case by the admission of the accused. He drew our attention to the difference in the language employed in Sections 287, 342 and 342-A of the Criminal Procedure Code and Section 3 of the Evidence Act, as indicating that the statement of the accused under Section 342 Cr. P. C. is no evidence, and that a conviction cannot be based solely upon such statement. Even though we are in agreement with the substantial portion of this argument of learned Counsel for appellant, we are not expressing a final opinion, as it is unnecessary to do so on the facts of this case.
12. It is unnecessary to refer in detail to the case law bearing on this aspect, as all the courts have uniformly taken the view that no conviction can be based solely upon the statement of an accused under Section 342 Cr. P. C. It is enough to refer to the judgment of the Supreme Court in Vijendrajit v. State of Bombay : AIR1953SC247 and the judgment of the Calcutta High Court in Moral Majhi v. State : AIR1958Cal616 . If the prosecution evidence is discarded as worthless, there will be no justification or necessity for questioning the accused person under Section 342 Cr. P. C. at all and the accused should not be convicted merely on his statement. But the recent judgment of the Supreme Court in appears to suggest that, even if the evidence adduced on the side of the prosecution is unacceptable, it might be open to the court to rely upon the statement under Section 342 Cr. P. C. and base the conviction thereon. It must, however, be noticed in this connection, that this question in this form did not arise for decision before the Supreme Court, and the only argument that was advanced there was as to whether it would be competent to the court to dissect and separate a statement of the accused under Section 342 Cr. P .C.
As the point was not directly argued in that form, we are not inclined to take the view that that decision lays down any principle inconsistent with that laid down in the earlier decision of the Supreme Court in Vijendrajit v. State of Bombay : AIR1953SC247 . To say, that a conviction cannot be based solely upon the statement of an accused under Section 342 Cr. P. C. is totally different and not the same thing as that the statement of the accused cannot be taken into account for any purpose whatsoever. The statement can be relied upon for collateral purposes, such as to find out whether it disproves the truth of the evidence of the alleged eye witness who claims to have witnessed the occurrence or whether it corroborates such evidence. In other words such a statement of the accused can certainly be used as a touchstone to test the credibility of a particular piece of evidence on the side of the prosecution-vide State of Mysore v. Hanumantha Reddi 1962 MLJ 355 (Mys). In the instant case we hold the appellant guilty not solely upon the statement of the appellant. On the other hand, we are of opinion that the statement of the appellant fully corroborates the evidence of P. W. 1, as well as the other circumstances in the case,
13. For all the foregoing reasons, we find the appellant guilty of the offence of murder under Section 300 I. P. C. Nothing has been made out to bring the case under any of the exceptions under Section 300 I. P. C.
14. As regards the sentence, however, we think that extreme penalty of law is not called for on the facts of the case. The murder was not a premeditated one, but was committed by the appellant in a sense of frustration, all of a sudden, when he saw the deceased walking along the road. He was very much chagrined in mind, that his wife eloped with a stranger. The Panchayatdars also effected a dissolution approving as it were, the conduct of the deceased to refuse to live with her husband and elope with a stranger, In view of this background of the case, we think that ends of justice would be amply met if the appellant is sentenced to imprisonment for life. Subject to this modification in the matter of sentence, we dismiss the appeal.