1. The appellant has been convicted and sentenced to death by the learned Sessions Judge of Ramnad for the murder of his wife by cutting her throat with a razor in the early hours of the morning of 13th March last. He was also convicted of having at the same time and place attempted to commit suicide, an offence under Section 309, I.P.C. The facts of the case, that is to say, the circumstances of the crime, are not in dispute. The parties are Pallas by caste and of an humble station in life earning their life by agricultural-labour. The appellant is aged 24 or 25. His-wife was aged 20. On the night of the 12th the appellant and his wife lay down to sleep in the house of the appellant's mother P.W. 6. About 4-30 in the early morning P.W. 6 heard a gurgling sound and went into the room where the appellant and his wife had gone to bed. She saw that the deceased was dead from a great wound in her throat and the appellant was lying beside her with a wound in his throat and unable to speak. P.W. 6 was closely followed by her eldest daughter P.W. 3, a girl of 18, and is corroborated by her. The deceased's mother P.W. 4, who lives in another house a few yards away, and P.W. 7, the uncle of the appellant, P.W. 5, a near neighbour, and many others immediately came on the scene. P.W. 7 went and told the Village Munsif what had happened and he at once came to the place and remained there until on receipt of his report the Sub-Inspector P.W. 9 arrived.
2. The Sub-Inspector found that the body of the deceased had not been disturbed. He found that the appellant was not able to speak and he sent immediately to Sathur which is only three miles away to summon the doctor, P.W. 1, who came to the scene arid attended to the injured man. At 7-15 the appellant produced from underneath the mat on which he was lying a razor and delivered it up to the Sub-Inspector P.W. 9. That razor was stained with blood. The Sub-Inspector, P.W. 9, and the Village Munsif, P.W. 8, testify to the production of this blood-stained razor by the appellant. The deceased's mother P.W. 4 says that she was present and saw it being produced and given to the Inspector by the appellant. This evidence has not been rebutted or in any way shaken in cross-examination and there is no evidence to the contrary effect. The conclusion to be drawn from these facts is that the appellant killed his wife by cutting her throat with this razor M.O. 1 and then cut his own neck.
3. Learned Counsel for the appellant has been able to put before us three arguments. First that the door from the street into the room in which the deceased and the appellant were sleeping was open and therefore there is some ground for the statement of the appellant made in the Magistrate's Court and in the Sessions Court that the offence was committed by some person unknown and that he himself only woke up when he was actually being attacked by the murderer. The evidence on this point is discrepant. The mother of the appellant and his sister (P.Ws. 6 and 3) do say that the southern door was open. The southern door is the door that leads into the street directly from the room where the deceased and the appellant were sleeping. On the other hand, P.W. 4, the mother of the deceased and P.W. 5, a neighbour who came along with P.W. 4, say that that door was closed and fastened from inside when they arrived at the house hearing the noise and they say moreover that it was opened for them by P.W. 3, the appellant's sister. In our opinion, it is not very important whether this door was open or closed because all the circumstances point to the appellant being the culprit and to nobody else. The allegation that there were other people who might have committed this awful crime rests on the slenderest of foundations. The appellant says that his wife's maternal uncle resented him being married to his wife thinking that the choice should have fallen upon that uncle's brother. And the appellant again says that he incurred the hostility of another relative because he opposed the marriage of that relative to his sister, P.W. 3. It is quite clear, in our opinion, that even if these causes of friction did exist they could not for a moment be regarded as furnishing a motive for the murder of the unfortunate girl, the wife of the appellant.
4. Another argument of learned Counsel is that the appellant was not likely to have had a razor as razors are not generally kept by people of the appellant's caste. But we do not see much force in this argument because after all the evidence is that the appellant did have a razor which of course if he did not already possess he must have got from some place before committing the crime. It only makes the crime more heinous if we are to suppose that in order to commit it the appellant had to secure a weapon which was not easily available in his own house or in the house of his friends. Learned Counsel also takes some objection to the evidence of the production of the razor and has carefully explained the evidence on that point to us but as we have said we do not find any flaw in that evidence. Lastly learned Counsel has animadverted and quite properly we think on some of the statements made by the appellant which were for all practical purposes allowed in evidence against him. It will be remembered that in the morning when the crime was discovered the appellant was not able to articulate. Later in the day, that is to say about 7 o'clock in the evening when he was lying in the hospital at Sathur, he became able to speak and the Magistrate was sent for to take his statement not as a person accused of the crime but as a dying declaration, it being feared that at the time the appellant might die. As the Magistrate knew that what the appellant was going to say was likely to be of an incriminating nature he warned the appellant. But the fact remains that the statement given by the appellant to the Magistrate that evening was not taken under the conditions prescribed by Section 164, Criminal P.C. It was a statement made after the appellant had been arrested and it was presumably made in the presence of a police officer because even in the hospital an accused person is always in the immediate custody of a police officer. Under Section 26, Evidence Act, therefore no such confession can be proved against the person making it unless it is made in the immediate presence of a Magistrate.
5. The Magistrate recording a confession under Section 26 when he knows that the confession relates to some definite crime which has been committed and which is being investigated at the time acts under Section 164, Criminal P.C. and has to observe the rule laid down in Sub-section (3) of Section 164, that is to say, he shall before recording the statement explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him. Here it appears that the Magistrate said to the appellant that he should think over the matter and state what really happened as otherwise the statement would be used against him. This of course did not satisfy the rule in Sub-section (3) of Section 164. The learned Sessions Judge has allowed the Sub-Magistrate who was examined in the case as P.W. 10 to give evidence of what the appellant said when he made this statement and also the statement was exhibited and presumably was read out and came to the knowledge of the learned Judge and of the assessors. The learned Judge when he came to the stage of pronouncing his judgment said that he did not place much value on the dying declaration, Ex. E. It is obvious that he was aware of the rules relating to the recording of confessions by Magistrates, and it would have been better if, instead of admitting this irrelevant document and the evidence of what the appellant said to the Magistrate while in police custody, he had disallowed that part of the evidence altogether. But apart from any incriminating statement made by the appellant shortly after the crime, the evidence is conclusive, in our opinion, that he did cut his wife's throat and afterwards attempted to cut his own.
6. This crime is one that has certain singular features about it. The evidence is that the appellant and the deceased were on the best of terms. They had only been married a few months and their married life had been made unhappy by the quarrels between their respective families, the mother of the deceased on the one hand and the mother of the appellant on the other. The crime must have been committed by the appellant when ho was in an abnormal frame of mind induced by unhappy domestic circumstances. It looks as if he wanted to end his wife's life and his own at the same time. In these circumstances we think the lesser penalty will meet the ends of justice. We confirm the conviction of the appellant for murder and his conviction for the offence of attempt to commit suicide. We do not confirm the sentence of death but we sentence the appellant for the offence of murder to transportation for life. The separate sentence under Section 309, I.P.C., will stand but will run concurrently.