C.B. Capoor, J.C.
1.This appeal by Chet Ram and Criminal Appeal No. 28 of 1961 by the Union of India arise out of the same order of the learned Sessions Judge Mandi and Chamba districts and in order to facilitate matters I propose to dispose of them by this order.
2. Chet Ram, hereinafter to be referred as the appellant, was prosecuted for an offence under Section 302, I.P.C., for having caused the death of his wife Smt. Teja on the night between 15th and 16th of April 1961. The learned Sessions Judge found him guilty of the offence under Part I of Section 304, I.P.C. and sentenced him to undergo rigorous imprisonment for a period of 10 years. He has appealed against the order of conviction and sentence and the State has filed an appeal against the order acquitting the appellant of the offence under Section 302, I.P.C.
3. Briefly stated the prosecution case was as below:
About 11/2 years prior to the incident under consideration the appellant was married to Smt. Teja, the daughter of Som Datt (P.W. 4) and Smt. Rukmani, residents of village Seeiha. This marriage took place in exchange of the marriage of the appellant's sister's daughter with Inder Dev, the brother of Smt. Teja. Smt. Teja was not agreeable to the marriage as the appellant had developed illicit intimacy with her mother but was forced to marry the appellant by her mother and brother. The relations between the husband and wife were not cordial and the latter used to go away to her father's place without the permission of the former. In the month of Poh prior to the incident under consideration she went to her mother's place and did not return to her husband's place in spite of the fact that her husband went to fetch her.
A Panchayat was convened in village Sheelha in order to bring about reconciliation between the husband and wife. The Panchayat was attended among others by Lalman (P.W. 3) and Param Dev (P.W. 5) and at that Panchayat Smt. Teja openly accused the appellant of having illicit connection with her mother. The Panchayat failed to persuade her to go to her husband's place. Smt. Durmati (P.W. 2), the aunt of the appellant, however, succeeded in persuading Smt. Teja to return to her husband's place. The appellant was working as a labourer in connection with the construction of a road. On 15-4-1961 he returned to his house in the evening. Smt. Teja was churning milk. He asked her to prepare meals as he was hungry but she refused to do so. He himself cooked the food and served it in two thalis one for himself and the other for his wife. The latter, however, refused to partake of the food. He then asked her to spread the beds but she declined to do so and he spread a bed for himself, He then went to his wife in order to appease her but she gave a kick at his chest and said that he should have sexual Intercourse with his mother and sister rather than with herself and he should take charge of the household effects as she would leave the house next morning. This infuriated him and he picked up a stone battu Ex. P-3 lying close by and hurled it at the head of his wife who succumbed to the injury shortly afterwards.
On the following morning at about 5 A.M. (5 P.M. in the statement of Bhikam Ram P.W. 1 is obviously a mistake) the appellant went to Bhikam Ram and told him that he killed his wife by chance and that he should take care of the house. He locked the house and went to police-post Bahi and made a report which was recorded in the daily diary. He handed over key Ex. P-2 to the Head-Constable. The shirt (Ex. P-13) and the cap (Ex. P-12) which he was wearing at that time were blood-stained and they were taken into custody. A copy of the report was sent to Sadar P.S. Mandi through Tegu Ram constable. On receiving the aforesaid copy a first information report (Ex. P.L) was prepared and Shri Kanshi Ram S.H.O. (P.W. 14) proceeded to the scene of occurrence. The lock put to the house & the appellant was opened with key Ex. P-2 and on enteringinto the room a dead body which was Identified to be that of Smt. Teja was found on one of the beds. The battu Ex. P-3 was also on the same bed. The Investigating Officer took into custody the stone battu, the khinds Ex. P-4 and 5, the manjri pral Ex. P-6, mat of date palm Ex. P-7, woollen coat Ex. P-8, gunny bag Ex. P-9 and a quilt Ex. P-10 as the aforesaid articles were bloodstained.
The dead body was sent for post-mortem examination-which was conducted by Dr. Shiv Dev Singh (P.W. 18 on 17-4-1961. As a result of external examination a lacerated wound 2 1/2' x 1' x bone deep was found on the occipital region to the left of the middle line. The bone underneath was fractured and depressed in an area of 11/2' x 1' and there was laceration of the duramater. The cause of death was concussion passing on to compression of the brain due to grievous skull fracture. The shirt (Ex. P-18), salwar (Ex. P-17) and dupatta (Ex. P-23) which were on the dead body were blood-stained' and were taken into custody. The aforesaid articles, the battu Ex, P-3, the cap and the shirt Ex. P-12 and 13 were sent to the Chemical Examiner and the Union Serologlst and human blood was detected on them, vide Exs. P.R. and P.S. The appellant offered to make a statement and his confession Ex. P.W. was recorded by Shri Jit Ram, Magistrate first class (P.W. 17) on 18-4-1961.
4. The appellant pleaded to be not guilty to the charge. He denied that he had illicit connection with his mother-in-law or that his wife suspected that he was carrying on with his mother-in-law. His version of the incident was as below: On the night between 15/16th April 1961 his wife said that she would leave his house immediately and proceeded towards the door. He caught hold of her and made her sit on the bed. She gave a kick at his chest. He enquired of her if she had gone mad and she said that he should not touch her and should commit sexual intercourse with his mother and sister. She was making efforts to get out of the room and he was making her sit on the bed. A tussle took place between them during the course of which she fell down and cried out 'oh mother I am dead'. He lifted' her and placed her on the bed and massaged her hands and feet. After some time she breathed her last.
5. In view of the medical evidence there can be no doubt that Smt. Teja met her death as a result of violence done to her person. According to the Investigating Officer the battu Ex. P-3 weighed 14 ch. and 4 tolas and Dr. Shiv Dev Singh who conducted the postmortem examination has stated that the injury found on the dead body could have been caused with the battu, Ex. P-3. The first question, even though it was not seriously raised on behalf of the appellant, that falls for determination is as to whether it was the appellant who had intlicted injury on the person of Smt. Teja. There is no direct evidence bearing on that question. The circumstantial evidence, however, leaves no doubt in one's mind that it was the appellant and none but he who Inflicted the injury on the head of his wife. Even according to the appellant there was none except for himself and his wife in the house at the time of, the incident. His wife had refused to cook the evening meals or to spread the beds. Bhikam Ram, the brother of the appellant (P.W. 1), has stated that during the night at about 10 P.M. he had heard Smt. Teja raising the following two cries 'do not pull my pig-tail' 'oh my mother'. He has also stated that on the following morning the appellant went to him and said that he had killed his 'wife by chance. The appellant himself had confessed his guilt before Shri Jit Ram Magistrate first class. The aforesaid magistrate was satisfied that the statement made toy the appellant was a voluntary one. He had taken the precaution of not recording the statement on the day that the appellant was produced before him and had directed that he be kept In judicial custody and be produced before him on the following day. When he was produced before him again on the next day he gave him about an hour's time to coolly think over the pros and cons before making a statement. He stuck to the confessional statement even in the inquiry Court. The learned Sessions Judge was satisfied as to the voluntary nature of that statement and my attention has not been invited to any circumstance justifying a departure from that view.
6. It may be mentioned that the report which the appellant made at the police post Bahl was also a confession of his guilt and relying upon the case of Nisar Ali v. State of Uttar Pradesh : 1957CriLJ550 the learned Sessions Judge ignored the aforesaid report and in my opinion rightly.
7. The first serious contention advanced on behalf of the appellant has been that the appellant did not aim a blow at the head of his wife and that accidentally the blow fell on the head. Both the aggressor and the victim were at close quarters and one finds it difficult to believe that a blow aimed at some other part of the body could have fallen on the head. There could be no doubt that the appellant intended to cause injury on the head a vital part of the body - of his wife with battu Ex. P-3. Dr. Shiv Dev Singh has stated that the Injuries caused in all probability must have resulted in the death, The instant case, therefore, clearly falls with-in the third clause of Section 300, I.P.C.
8. The second contention urged on behalf of the appellant is that the sentence awarded by the learned Sessions Judge is excessive but before I advert to that contention I propose to dispose of the appeal, preferred by the State.
9. The learned Sessions Judge, it has already been noticed, has held that the case was covered by the first Exception to Section 300, I.P.C. The circumstances relied upon by the learned Sessions Judge were that Smt. Teja had successively refused to cook the evening meals and to spread the beds; that she threatened to leave the house on the following morning; that when he fondled her and asked her as to why would she be leaving the house she asked him to get away from her bed and to have sexual intercourse with his mother and sister. The aforesaid circumstances are amply borne out by the confessional statement (Ex. P.W.) and the statement made by the appellant in the Court of the committing Magistrate (Ex. P.Z). On behalf of the State it has been urged that the aforesaid circumstances were not sufficient to bring the case within the first Exception to Section 300,' I.P.C. That Exception reads as below;
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
10. The question as to whether the provocation given to the offender is grave and sudden or not is one of fact and has to be decided on the circumstances of each case. As to whether a provocation is sudden is not a question of difficulty and it may at once be stated that the provocation given to the appellant was sudden. The other question as to whether a provocation is grave or not is sometimes not easy to decide. Generally the gravity of the provocation is judged by the reaction to it of a reasonable man. Oak J. has observed in the case of Mahmood v. State : AIR1961All538 , that 'a reasonable man is not the ideal or the perfect being but a normal and average man' and that 'a Judge should not impose his personal standards in this matter' as 'by training' he 'is a patient man'. With respect, I agree with the aforesaid observations and will add as an attribute of a reasonable man that he is not hypersensitive or easily excitable. More often than not sudden and grave provocation makes one lose the balance of mind and the power of self-control. Applying the aforesaid test to the circumstances of the instant case it is clear that the refusal on the part of Smt. Teja to cook the meals or to spread the beds should not normally have deprived the appellant of the power of self-control so as to cause her death.
11. At the same time, it appears to be pretty clear-that the circumstances that when the appellant had gone to Smt. Teja to assuage her feelings and fondle her she kicked him in the chest and said that he should have sexual intercourse with his mother and sister were sufficient to provoke a reasonable person to the extent of depriving him of the power of self-control,
12. It has been urged on behalf of the State that as the deceased lady had even previously accused the appellant of having illicit connection with his mother-in-law the abusive language used by her in the night in question should not have provoked him to lose the power of self-control and to cause her death. I am, however, unable to agree with that contention. Under the Hindu Law and so far as I am aware under other laws also a mother is, while a mother-in-law is not, within the degree of prohibited relationship for the purpose of marriage and a mother-in-law cannot be equated with the mother. Thus the mere fact that Smt. Teja suspected or even beiievea that the appellant was in liaison with her mother was no justification for her to ask the appellant to have intercourse with his mother and sister.
13. In the case of Pancham v. Emperor AIR 1947 Oudh 148 the accused and the deceased woman lived as husband and wife in the house of the latter. The deceased began to entertain some suspicion as to the accused's. fidelity and told him to get out of her house and constantly abused him and finally starved him for four days and when the accused attempted to assuage his hunger by cooking some food for himself the deceased hurled upon him the imprecation that 'he would be eating cow's flesh if he cooked and ate in the house. The accused thereat picked up a mathai lying close by and inflicted with it a blow on the head of the deceased as a result of which the skull was fractured and the victim succumbed to the injury. It was held that the case fell within the first Exception to Section 300, I.P.C.
14. The facts of the aforesaid case, it is true, are not identical with the facts of the instant case and for the matter of that the facts of no two cases can be alike in all particulars but the case may well serve as a guide.
15. In view of the facts that the appellant had gone to appease Smt. Teja and that in return he was given a kick in the chest and was asked to have sexual intercourse with his mother and sister it may well on. held that the provocation was sudden and grave so as to deprive him of the power of self-control. The appellant virtually got a stone when he asked for bread and the learned Sessions Judge in my opinion did not err in acquitting the appellant of the offence under Section 302, I.P.C.
16. It only remains to consider if the sentence awarded by the learned Sessions Judge was severe. An offence under the first part of Section 304, I.P.C. is punishable with imprisonment for life also. The deceased according to the post-mortem examination report was of averge built and about 18 and 19 years only at the time of the incident. Normally she would have lived and enjoyed the worldly pleasures for a long number of years. The sentence awarded can by no stretch of imagination be said to be severe.
17. The result of what has been said above is that both the appeals fail and are hereby rejected. Let a copy of this order be placed on the record of Criminal Appeal No. 28 of 1961.