Kumaravel v. The State

JUDGMENT(Delivered by P.D.DINAKARAN,J)Totally two persons were tried in S.C.No.29 of 2005 on thefile of Additional Court of Sessions (Fast Track Court)Dharmapuri under Sections 302 and 201 I.P.C. A.2 was acquitted bythe learned Trial Judge for the charge under Section 201 I.P.C.However A.1 was convicted under Sections 302 and 201 I.P.C., forwhich he stands sentenced to undergo imprisonment for lifetogether with a fine of Rs.1,000/- carrying a default sentence forthe offence of murder and for causing disappearance of evidence ofoffence, he stands sentenced to undergo two years rigorousimprisonment with a fine of Rs.1,000/- in default to undergo threemonths simple imprisonment. Therefore A.1 alone is before thiscourt in this appeal. The State has not challenged the acquittalof A.2 till date. 2. A.1 and A.2 are the husband and mother-in-law of thedeceased Valarmathi respectively. The charge against the accusedis that on 25.9.2002 at about 9.00 p.m. at the matrimonial home atKottrapatti Kottai, A.1, suspecting the fidelity of his wifeValarmathi, cut her with M.O.4 aruvamanai over the left side ofher neck and caused her death instantaneously and thereafter, inorder to cause disappearance of evidence of offence, both theaccused placed the body of the deceased in a gunny bag, took it ina bicycle and placed it on the railway track nearby Chinthalpadiperiapalam near Thonganoor railway station, thereby A.1 committedthe offences punishable under Sections 302 and 201, I.P.C. and A.2committed the offence punishable under Section 201 I.P.C.3. The case of the prosecution, as discerned from theevidence of prosecution witnesses, is as follows.(i) A.1 and A.2 are the husband and mother-in-law of thedeceased respectively. P.W.3 Mooka Gounder and P.W.4 Adhimoolamare the father and brother of the deceased respectively. (ii) P.W.1 Shaji, who is the Assistant Station Master,Morappur, had deposed that on 26.9.2002 at about 9.15 a.m., P.W.2Kaveri, who is working as Gang Mestri, had informed him that afemale dead body was found on the railway track near Sinthalpadiperiapalam and that he lodged a complaint to the railway police.(iii) P.W.14 Vijayakumar, Head Constable, Morappur OutpostPolice Station, on receipt of written complaint from P.W.1,registered a case in Salem Railway Police Crime No.285 of 2002 https://hcservices.ecourts.gov.in/hcservices/ under Section 174 Cr.P.C., prepared Ex.P6 First Information Reportand sent the same to the Tahsildar, Aroor and to the higherofficials. He took up the case for investigation and went to thescene of accident along with with P.W.13, Alagesan, Constable, andas nobody claimed the body, he sent the same to the mortuary atSalem Government Hospital. However, on 27.9.2002, P.W.3 informedhim that the deceased is his daughter Valarmathi.(iv) P.W.3, father of the deceased, had deposed that themarriage between A1 and the deceased took place ten months priorto the occurrence and both of them lived in their matrimonial homealong with A.2, that the deceased complained that A.1 neglectedthe family and spent his earnings for alcohol, that on one dayprior to the date of occurrence, the deceased came to her parentalhouse and after doing agricultural work, she went home at about8.30 a.m. on the next day stating that she had to go to her fieldfor weeding, that on 26.9.2002 at about 7.00 p.m., the firstaccused came to his house and asked whether the deceased had cometo their house and he replied that she had not come, thatthereafter, he along with P.W.4 went in search of the deceased atvarious places and that on coming to know that a dead body wasseen near Thonganoor and it was taken to the mortuary at SalemGovernment Hospital, he went to the hospital and identified thedeceased as his daughter. (v) P.W.4, brother of the deceased, had deposed that sinceA.1 suspected the fidelity of the deceased, there were frequentquarrels between A.1 and the deceased and panchayat was alsoconvened, that on 24.9.2002, he went and brought the deceased tohis house and the deceased went home on the next day i.e. on25.9.2002 at 8.30 a.m. after doing agricultural work, that therewas quarrel between A.1 and the deceased on that night and thatthereafter, he had not seen the deceased and then he along withP.W.3 searched for the deceased and identified the deceased onlyat the hospital.(vi) P.W.8 Sankar, nephew of P.W.3, had deposed that on25.9.2002 at about 1.30 a.m. while he was coming from Kadathur, hesaw the first accused was carrying a gunny bag in the cyclecarrier and when he questioned the same, the first accused repliedthat the gunny bag has groundnuts meant for the market. He hadalso deposed that the first accused was wearing bloodstained shirtand lungi and when he enquired the same, he replied that it wasbecause of plucking of groundnuts. He also added that two daysthereafter, he heard that a female body was found at the railwaytrack near Periapalam and A.1 murdered his wife. (vii) P.W.17 Nallusamy, Special Sub Inspector took up thecase for further investigation. Since the deceased died withinten months from the date of marriage and as P.W.3, father of the https://hcservices.ecourts.gov.in/hcservices/ deceased, made a complaint suspecting the death of the deceased,he gave a requisition to the Revenue Divisional Officer forconducting inquest over the body of the deceased. (viii) On receipt of requisition from P.W.17, P.W.19, RevenueDivisional Officer, Salem, conducted inquest over the dead body inthe presence of panchayatdars on 28.9.2002 and prepared Ex.P.14inquest report and Ex.P.15 special report sent by him to theJudicial Magistrate No.III, Salem. He gave Ex.P.11 requisitionfor conducting post-mortem.(ix) P.W.16 Dr.Ravi Sankar attached to Government Hospital,Salem, on 29.9.2002 conducted autopsy over the dead body and foundthe following injuries:1. Obliquely placed, widely gaping cut injury withsharp margins and acute ends over the left side offorehead from the inner end of left eyebrow extendingupwards and outwards 3.5cms x 1cm bone deep.2. Obliquely placed widely gaping cut injury withsharp margins and acute end over the left side offorehead from the outer end of left eye brow extendingupwards inwards 3.5cms x 1cm bone deep.3. Obliquely placed widely gaping cut injury withsharp margins and acute ends over the right side of chin3 x 1cm – bone deep.4. Obliquely placed widely gaping cut injury withsharp margins and acute ends over the left side of chin3 x 1cm bone deep.5. Transversely placed widely gaping deep cutinjury with sharp margins over the upper part of rightside of neck 1.5cms below the angle of lower jaw 3.5cmsx 1cm, deeper at the back portion and with tailing atthe front portion.6. Transversely placed widely gaping deep cutinjury with sharp margins over the upper part of leftside of neck 1.5cms below the angle of lower jaw 3.5cmsx 1cm, deeper at the back portion and with tailing atthe front portion.7. Obliquely placed, widely gaping cut injury withsharp margins over the front and inner aspect of rightupper arm deeper at the front and with tailing at theinner side muscle deep.8. Obliquely placed widely gaping cut injury withsharp margins and acute ends over the back of upper1/3rd of left forearm. 5X2cms muscle deep.9. Obliquely placed widely gaping cut injury withsharp margins 24x6cms – thoracic cavity deep over thefront of chest on the right side, 2cms below the levelof right nipple involving the right 4th intercostal https://hcservices.ecourts.gov.in/hcservices/ muscle. The wound deeper on the outer side and withtailing on the inner side.Corresponding to the above mentioned injury Nos.1to 9.(a) Extraction of blood into the deep subcutaneoustissues and muscle over the whole of left half offrontal region of scalp.(b) The lower jaw was found cut through and throughcorresponding to the internal injuries with loosening ofteeth and infiltration of blood into the surroundingmuscles and soft tissues.(c) Over the upper part of both sides of neck themuscles were cut through and through, the common carotidartery, jugular vein were cut through and through andall other structures in that area were clean cut andthere was evidence of massive haemorrhage from the cutmajor vessels and other statures. (d) The right 4th ic muscle was found cut throughand correspondingly upper part of middle lobe and frontaspect of right lung were found cut entirely withevidence of infiltration of blood into the surroundingtissues and massive drainal of blood from the right sideof thoracic cavity out side. Thus indicating thatinjury nos. 1 to 9 were antemortem.10. Abrasions seen over (a) outer aspect of upper1/3rd of right thigh 4x3cms. (b) front of right knee2x1cms and (c) front of left knee 3x2cms.The following injuries were seen with no evidencewhatsoever of any vital tissue reaction with theinvolved tissues dry, pale and bitreless.11. Head and face were found crushed from side toside with communicated fracture involving all the bonesof vault and base of skull and facial bones.12. Decapitation at the level of C6-C7 withcrushing of all tissues, shattering of left collar bonecrushing of left collor bone crushing of left shoulderjoint, pulping of upper lobe of left lung total crushingof tissues and shattering of bone of upper half of theftupper arm, the rest hanging by means of crushed tagesskin and subcutaneous tissues. The Doctor opined that the deceased would appear to have died ofshock and haemorrhage due to multiple cut injuries. Ex.P12 is thepost-mortem certificate issued by him. After completion of thepost mortem, blood stained clothing of the deceased wererecovered.(x) P.W.18, Inspector, Railway Police, Salem, on receipt ofthe case particulars from the Deputy Superintendent of Police, https://hcservices.ecourts.gov.in/hcservices/ Railway Police, Salem, altered the offence to one under Sections302 and 201 I.P.C. and prepared Ex.P13 alteration report and sentthe same to the Judicial Magistrate No.III, Salem and handed overthe case records for further investigation to P.W.20. (xi) P.W.20, Inspector of Police, Morappur Police Station, on6.11.2002 received the case in Crime No.285 of 2002 from theSuperintendent of Police, Dharmapuri and registered a case inCrime No.404 of 2002 under Sections 302 and 201 I.P.C. andprepared Ex.P16 First Information Report. He took up the casefor further investigation, went to the place where the body of thedeceased was found, examined P.Ws.1 and 2 and others and recordedtheir statements and seized Ex.P17 Rough Sketch which had alreadybeen prepared by railway police. Thereafter, he went to thematrimonial home of the deceased at 12.30 p.m. and prepared Ex.P18Observation Mahazar and Ex.P19 Rough Sketch in the presence ofP.W.6 Rajendran and P.W.7 Kalvendran. At about 2.00 p.m., heseized M.O.8 bloodstained pillow cover, M.O.9 a piece ofbloodstained cloth and M.O.10 sample cloth under Ex.P1 Mahazar inthe presence of the same witnesses and Exs.P2 and P3 are thesignatures of P.Ws.6 and 7 in Ex.P1 Mahazar. On the same day, heexamined P.Ws.3, 4, 5, 6 and 7 and recorded their statements. On7.11.2002 at 6.00 a.m., he arrested A1 and recorded his voluntaryconfession in the presence of P.W.12 Thanikachalam, VillageAdministrative Officer and another. Ex.P4 is the admissibleportion of the confession statement. Pursuant to the confession,A1 took P.W.20 and witnesses to his house and produced M.O.4aruvamanai, M.O.5 bloodstained shirt, M.O.6 bloodstained lungi andM.O.7 cycle and the same were recovered under Ex.P5 mahazar. Onthe same day, he had also arrested the second accused. On25.11.2002, he gave Ex.P7 requisition to the Judicial Magistrate'sCourt to send the case properties for chemical examination. (xii) P.W.15 is the Court Clerk, who received the materialobjects from P.W.20 and on the direction of the learnedMagistrate, sent the same to the Forensic Lab for chemicalexamination. Exs.P9 and P10 are the Chemical Analysis Report andSerology report respectively. (xiii) P.W.20 completed the investigation and afterfollowing all the legal formalities, filed the final report in thecourt against the accused under Sections 302 and 201, IPC on31.12.2002.4. After the case was committed to Court of Sessions, theaccused were questioned and they denied their complicity. Hence,the trial commenced. To substantiate the charge against theaccused, the prosecution examined 20 witnesses, marked 20 exhibitsand produced 10 material objects. On completion of evidence on the https://hcservices.ecourts.gov.in/hcservices/ side of prosecution, the accused were questioned under Section 313Cr.P.C. on the incriminating materials, for which the accused madea total denial. Neither any witness was examined nor any documentwas marked on his side. 5. The trial Court, on scrutiny of materials placed and onhearing the arguments of both sides, found the appellant/firstaccused guilty of the charges under Sections 302 and 201 I.P.C.and accordingly, convicted and sentenced him as referred toearlier and acquitted the second accused of the charge underSection 201 I.P.C. Hence, the present appeal by the first accused.6. Mr.John Sathyan, learned counsel for the appellantassailing the judgment of the trial Court, made the followingsubmissions:(i) the entire prosecution case rests on thecircumstantial evidence and the prosecution has notproduced any clinching circumstance implicating theappellant in the crime and there are several missinglinks and as such, the chain of circumstances is notcompleted;(ii) the prosecution failed to establish the motivepart of the occurrence, which is vital in the case ofcircumstantial evidence, as no independent witness wasexamined to speak about the frequent quarrel between theappellant and the deceased though the house of theappellant was surrounded by number of houses;(iii) there is absolutely no circumstance or anyevidence available on record to show that both theaccused and the deceased were seen together, as theevidence of P.Ws.3 and 4 only shows that the deceasedleft the house on 25.9.2002 morning to the field forweeding and the evidence of P.W.8 shows that he saw theaccused with bloodstained shirt, but nobody had statedanything about the seeing of the accused with thedeceased prior to the occurrence;(iv) if the occurrence took place as alleged by theprosecution, there would have been more blood on thefloor of the house, but no blood was found as per theobservation mahazar, except the seizure M.O.10, a smallpiece of bed sheet containing bloodstains and thereforethe prosecution has miserably failed to prove the placeof occurrence as that of the house of the appellant; (v) though the headless body and head of thedeceased were found in different place, P.W.16, post- https://hcservices.ecourts.gov.in/hcservices/ mortem Doctor, had not conducted autopsy over theheadless body and head separately and therefore, hisevidence could not be relied upon to come to theconclusion that he has conducted autopsy on the body ofthe deceased; and(vi) the arrest and recovery of material objectswere not substantiated through the acceptable evidenceand therefore, the circumstances relied on by theprosecution are not at all sufficient to connect theappellant with the crime.7. Per contra, Mr.N.R.Elango, learned Additional PublicProsecutor submits that the prosecution has put forward clinchingand consistent circumstances to implicate the accused; that themotive put forward by the prosecution is proved through theevidence of P.Ws.3 and 4, who had categorically stated about thefrequent quarrel between the appellant and the deceased and as perthe evidence of P.W.4, the appellant suspected the fidelity of thedeceased; the last seen theory is also proved through the evidenceof P.Ws.3, 4 and 8, as P.Ws.3 and 4 had stated that the deceasedleft their house prior to the occurrence and on the next day, theappellant came to their house and enquired as to whether thedeceased had come to their house and P.W.8 had stated that he sawthe accused after the occurrence with the bloodstained cloth; thatthe recovery of M.O.10 bloodstained piece of bed from the house ofthe appellant clearly shows that the incident could have takenplace inside the house; that the suspicious conduct of theappellant in not lodging any complaint to the police and in notseeing the body of the deceased at the hospital and abscondingtill his arrest; and that the prosecution has proved the arrestand recovery of weapon through the evidence of P.W.12, VillageAdministrative Officer and that therefore, the conviction andsentence are sustainable in law.8. We have perused the entire materials available on record,heard the submission of both sides and considered each and everycircumstance put forward by the prosecution. 9. It is not in dispute that the deceased Valarmathi died onaccount of homicidal violence. A perusal of the evidence of thedoctor, P.W.16 and Ex.P12, post-mortem certificate would revealthat the deceased died on account of shock and haemorrhage due tomultiple cut injuries. The doctor has specifically stated in hisevidence that 1 to 9 injuries could have been caused with M.O.4aruvamanai. Therefore, we have no hesitation to hold that thedeath of the deceased was due to homicidal violence. https://hcservices.ecourts.gov.in/hcservices/

10. The point for consideration in this appeal is whether theprosecution has brought home the guilt of the accused beyond allreasonable doubts?11. The prosecution case hinges upon circumstantial evidence,as the occurrence was not witnessed by anyone. Before delvinginto the issue, it is apt to refer the ruling on thecircumstantial evidence. 12.1. In Sharad Birdhichand Sarda v. State of Maharashtra[AIR 1984 SC 1622], it has been held that the onus was on theprosecution to prove that the chain is complete and the infirmityor lacuna in prosecution cannot be cured by false defence or plea.The conditions precedent before conviction could be based oncircumstantial evidence, must be fully established and they are: (1) the circumstances from which the conclusion ofguilt is to be drawn should be fully established; (2) the facts so established should be consistentonly with the hypothesis of the guilt of the accused,that is to say, they should not be explainable on anyother hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusivenature and tendency; (4) they should exclude every possible hypothesisexcept the one to be proved; and(5) there must be a chain of evidence so completeas not to leave any reasonable ground for the conclusionconsistent with the innocence of the accused and mustshow that in all human probability the act must havebeen done by the accused. 12.2. Again, in Padala Veera Reddy v. State of A.P. [AIR 1990SC 709] it was laid down that when a case rests uponcircumstantial evidence, such evidence must satisfy the followingtests: "(1) the circumstances from which an inference ofguilt is sought to be drawn, must be cogently and firmlyestablished; https://hcservices.ecourts.gov.in/hcservices/ (2) those circumstances should be of a definitetendency unerringly pointing towards guilt of theaccused;(3) the circumstances, taken cumulatively, shouldform a chain so complete that there is no escape fromthe conclusion that within all human probability thecrime was committed by the accused and none else; and(4) the circumstantial evidence in order to sustainconviction must be complete and incapable of explanationof any other hypothesis than that of the guilt of theaccused and such evidence should not only be consistentwith the guilt of the accused but should be inconsistentwith his innocence."12.3. The above judgments were quoted with approval by theApex Court in the judgment in Manjunath Chennabasapa Mudalli v.State of Karnataka (2007) 3 SCC (Crl.) 101.12.4. It is, therefore, clear that the prosecution must proveall the circumstances connecting unbroken chain of links leadingto only one inference that the accused committed the crime. 13.1. Now, let us analyse the circumstances put forward bythe prosecution in the light of the settled principle of law laiddown by the Apex Court in the decision cited supra.13.2. In the case on hand, the prosecution placed reliance onthe following circumstances:(i) Motive as spoken to by P.Ws.3 and 4, thefather and brother of the deceased;(ii) Last seen theory as spoken to by P.Ws.3, 4 & 8;(iii) Recovery of bloodstained bed sheet fromthe house of the accused to establish that theoccurrence took place inside the house;(iv) The arrest and recovery as spoken to byP.W.20 Investigating Officer as well as P.W.12Village Administrative Officer; and(v) The conduct of the accused in not lodgingany complaint to the police and in abscondingtill the date of his arrest i.e. on 7.11.2002. https://hcservices.ecourts.gov.in/hcservices/

13.3. As regards motive, we have no hesitation to concludethat the prosecution has proved it through the evidence of P.Ws.3and 4. P.W.3 had stated that the appellant neglected the familyand used his income for alcohol and P.W.4 had specifically statedthat the appellant suspected the fidelity of the deceased, due towhich there were frequent quarrels between them and panchayat wasalso convened. Their evidence is not shattered by the defenceduring the course of cross examination in respect of the allegedmotive of the appellant suspecting the fidelity of the deceasedand the frequent quarrel between them. 13.4. The next incriminating circumstance viz., the last seentheory, is also proved by the prosecution beyond reasonable doubtthrough the evidence of P.Ws.3, 4 and 8. P.Ws.3 and 4 in theirevidence have stated that the deceased left their house prior tothe occurrence i.e. on 25.9.2002 morning and the occurrence issaid to have taken place in the night at 9.00 p.m. It is theirfurther evidence that on the next day i.e. on 26.9.2002 at 7.00p.m., the appellant came to their house and asked him about thewhereabouts of the deceased. The evidence of P.W.8 is also veryvital to prove that he saw the appellant with the bloodstainedcloth and for that no proper explanation was given by theappellant. Therefore, the contention of the learned counsel thatthe prosecution failed to establish the last seen theory isrejected. 13.5. Yet another clinching circumstance is to the effectthat the occurrence took place in the house of the appellant forwhich prosecution has rightly placed reliance on the seizure of apiece of bloodstained bed sheet from the house of the appellant.Though it is stated by P.W.6 in the cross examination that hesigned the mahazar only at the police station, the fact remainsthat his version of seizing the said bloodstained piece of bedsheet M.O.10 from the house of the appellant remains unchallengedby the defence. Therefore, it is quite clear that the occurrencecould have taken place inside the house of the appellant and assuch, it is for the appellant to give proper explanation for thedeath of the deceased. 13.6. The prosecution has convincingly proved the nextcircumstance viz., the arrest and the recovery of weapon from theappellant, as the evidence of P.W.20, Investigating Officer iscorroborated by the evidence of P.W.12, Village AdministrativeOfficer and his evidence is not shattered during the crossexamination by the defence. https://hcservices.ecourts.gov.in/hcservices/

13.7. Yet another factor to be borne in mind is the conductof the appellant which is also relevant while considering thecircumstances relied upon by the prosecution to prove the guilt ofthe accused. It is already pointed out by us that the appellanthad not given any report to the police, he had not even gone tothe hospital to see the body of the deceased and he was abscondingtill the date of his arrest i.e. on 7.11.2002. Therefore, theconduct of the appellant is one of the clinching and incriminatingcircumstance against him pointing out his guilt.13.8. The contention that since P.W.16 had not conductedautopsy over the headless body and head separately, his evidencecould not be relied upon is rejected, as he had categoricallystated that though the head was severed, the head and sequence ofother part of the body were found to be together to some extentfrom the body and therefore, the same was not sent for chemicalexamination. We are of the view that merely because the head wasfound to be severed, the medical evidence cannot be rejected.13.9. Therefore, we are of the opinion that the prosecutionhas proved each and every link in a complete manner so as tocomplete the chain of circumstance. Thus, all the circumstancesnarrated above, put together, would lead to the conclusion thatit is only the accused who committed the offence without givingroom to any other hypothesis. 14.1. Now, we are left with the question of considering thenature of the offence said to have been committed by the accused.In order to find out whether the appellant had intention to causethe death of the deceased or he cut the deceased due to grave andsudden provocation, we have to consider the several circumstancesavailable on record. It is seen that the appellant suspected thefidelity of the deceased. P.W.4, brother of the deceased, hadcategorically stated that the appellant suspected the fidelity ofhis wife and on that ground, there were frequent quarrels betweenthem. P.W.3, father of the deceased, had stated that there werefrequent quarrels between the appellant and the deceased and heused to pacify them. Therefore, it is clear that the appellantwas nurturing sustained provocation in view of the suspicion offidelity of the deceased. 14.2. To substantiate the said sustained provocation, we haveto scrutinise the other materials available on record. A perusalof the entire statement recorded under Section 27 of the EvidenceAct leading to the recovery of weapon and bloodstained cloth etc.clearly shows that the appellant had nurturing sustainedprovocation in view of the conduct of the deceased having illicit https://hcservices.ecourts.gov.in/hcservices/ intimacy with other persons. It is evident from the abovesaidstatement that even on the fateful time of occurrence, there was awordy quarrel between the appellant and the deceased, the deceasedwent to the extent of kicking the appellant, the appellant scoldedthe deceased stating that she was having illicit intimacy withother persons and aggrieved by the same, the deceased took outM.O.4 iron aruvamanai and attacked the appellant and whilepreventing the same, the appellant sustained a cut injury on hisleft hand thumb finger and being provoked by such conduct of thedeceased, the appellant snatched the aruvamani and cut thedeceased on her left side of the neck and the deceased fell downand died instantaneously. Therefore, it is clear that theappellant had nurturing sustained provocation over the conduct ofthe deceased. 14.3. Though P.W.5 turned hostile, he had supported theinadmissible portion of the confession of the appellant withregard to the injury sustained by him, in his cross examination bythe prosecution. P.W.5 had admitted in his cross examinationthat on 26.9.2002, he questioned the appellant about the deceasedand the appellant told him that the deceased left for her mother'shouse and at that time, he saw a cut injury on his left hand thumbfinger and it was informed by the appellant that he sustained suchinjury while his wife/deceased attempted to cut him with M.O.4aruvamanai. 14.4. It is well settled that the evidence of the hostilewitness cannot be rejected in toto and any portion either infavour of the prosecution or in favour of the defence could berelied on. Therefore, the version of P.W.5 probablises thedefence version of the appellant in the statement recorded underSection 27 of the Evidence Act. 14.5. It is well settled that the inadmissible as well asadmissible portion of the statement recorded under Section 27 ofthe Evidence Act could very well be placed reliance in theinterest of justice to decide the nature of the offence committedby the accused. This Court in Ganesan, In re (1973 L.W.(Cri.) 42),has held as follows :3. The evidence shows that the appellant went straightto the police station at 9.15 a.m. and made astatement. In fact, that is the first informationreport in the case. It contains the confession thatthe appellant inflected cuts on his wife. The learnedSessions Judge has excluded this portion and marked therest of the statement, as Ex.P.6. This, however, isnot correct. In Aghnoo Nagesia V. State of Bihar (AIR1966 SC 119) it has been observed :- https://hcservices.ecourts.gov.in/hcservices/ “Now, a confession may consist of several partsand may reveal not only the actual commissionof the crime but also the motive, thepreparation, the opportunity, the provocation,the weapons used, the intention, theconcealment of the weapon and the subsequentconduct of the accused. If the confession istainted, the taint attaches to each part ofit. It is not permissible in law to separateone part and to admit it in evidence as a non-confessional statement. Each part disclosessome incriminating fact, i.e., some fact whichby itself or along with other admitted orproved facts suggests the inference that theaccused committed the crime, and though eachpart taken singly may not amount to aconfession, each of them being part of aconfessional statement, partakes of thecharacter of a confession. If a statementcontains an admission of an offence, not onlythat admission but also every other admissionof an incriminating fact contained in thestatement is part of the confession”.…………… Little substance and content would beleft in Ss.24, 25 and 26, if proof ofadmissions of incriminating facts in aconfessional statement is permitted.“Some of the decided cases took the view thatif a part of the report is properly severablefrom the strict confessional part, then theseverable part could be tendered in evidence. We think that the separability test ismisleading, and the entire confessionalstatement is hit by S.25, and save and exceptas provided by S.27, and save and except theformal part identifying the accused as themaker of the report, no part of it could betendered in evidence.”The above decision has been followed in Khatri HemrajAmulkah V. State of Gujarat (AIR 1972 SC 929).According to these decisions (of this Court and theHon'ble Apex Court), the only portion of the statement,which could be admitted is the initial portion that hewas making the statement, which would not be of any useto the prosecution. But there is no bar to theappellant using the statement in his favour – see alsoMottai Theva, In re [(1951) 2 M.L.J. 605]. We arereferring to this at this stage itself, because Ex.P.6 https://hcservices.ecourts.gov.in/hcservices/ contains statements favourable to the appellant. It isa long statement, but for our purpose, it is enough togive a brief summary. Ever since the marriage, thewife has been refusing to have conjugal relationshipwith him. On the other hands, he had good reason tobelieve that she had been carrying on with P.W.6, herelder sister’s husband. On one night, Kamala and P.W.6had gone out for the ostensible purpose of answeringcalls of nature, but evidently for having sexualrelationship. On the night previous to the day ofoccurrence also she refused him conjugal felicity. Onthe morning of the day of occurrence according toEx.P.6, the appellant gave ten paise to P.W.1 and askedher to get onions. But his wife, Kamala said that sheshould not go out. He pointed out that P.W.1 wasrendering service for all, and sundry in the village,but why not for them. In reply to that, Kamala abusedhim, ……. (you silly-fellow, you run away) and buried avegatable-cutter (….) on him. He warded it off withhis left hand. It fell down. But she threw it on himagain with force. He warded it off with his righthand. This time it caused an injury on the palmeraspect of his right little finger. It was about 8-30a.m. He could not control his anger. He thereforetook cut the koduval and inflicted cuts on her. Hecame out with a rope with the idea of hanging himselfthat day. But on nearing Manonmani’s house he thoughtthat it was not proper to do so and threw it aside. There used to be frequent quarrels between him and hiswife, and Andalammal (P.W.2) and Devaraja Pillai(P.W.7) knew about it. So runs Ex.P-6.………Taking all these circumstances together we hold thatKamala threw the vegetable cutter on the appellant andcaused injury on the right little finger. In ouropinion, this cannot afford a ground for self defenceunder Exception II because after throwing it at herhusband, Kamala, did not try to attack him with it andit was not justifiable for the appellant to inflictcuts on Kamala. But at the same time it seems to usthat her act in throwing the vegetable cutter at himconstituted grave and sudden provocation which deprivedhim of the power of self-control within the meaning ofException I.” (Emphasis supplied).14.6. In K.M.NANAVATI VS. STATE OF MAHARASHTRA (AIR 1962 SC605), the Supreme Court has laid down the following principlesregarding the Exception 1 to Section 300 I.P.C. : https://hcservices.ecourts.gov.in/hcservices/ "1. The test of grave sudden provocation iswhether a reasonable man, belonging to the sameclass of society as the accused, placed insituation in which the accused was placed wouldbe provoked as to lose his self-control.2. In India, words and gestures may also,under certain circumstances, cause gave andsudden provocation to an accused so as to bringhis act with the first Exception of Section 300I.P.C.3. The mental background created by theprevious act of the victim may be taken intoconsideration in ascertaining whether thesubsequent act caused grave and suddenprovocation for committing the offence.4. The fatal blow should be clearly tracedto the influence of passion arising from thatprovocation and not after the passion has cooleddown by lapse of time, or otherwise giving roomand scope for premeditation and calculation."14.7. The above well settled principle of law laid down bythe Apex Court as well as this Court is squarely applicable to thefacts of the instant case. In the instant case, as alreadypointed out, there were frequent quarrels between the appellantand the deceased as the appellant suspected her fidelity and asper the entire confession recorded under Section 27 of theEvidence Act, it is crystal clear that the appellant scolded thedeceased for having illicit intimacy with other persons and thedeceased cut the appellant with aruvamanai and as a result, theappellant sustained a cut injury on his left hand thumb finger,which added fuel to the fire as the appellant was alreadynurturing sustained provocation, lost his self control and due tosuch grave and sudden provocation, the appellant snatched theweapon viz., aruvamanai from the deceased and cut the deceased onher left side of neck, which resulted in her death. Thus, ascould be seen from the sequence of events, there is no difficultyin holding that the accused had a sudden provocation due toprevious conduct of the deceased and that he totally lost hisself-control and in a heat of anger, he inflicted injuries on thedeceased.15. For the aforesaid reasons, we are of the considered viewthat the appellant is entitled to Exception 1 to Section 300I.P.C. and as such, he is liable to be convicted under Section304-Part I I.P.C. Accordingly, the appeal is partly allowed andthe conviction and sentence imposed on the appellant for theoffence under Section 302 I.P.C. is hereby set aside and insteadthe appellant is convicted under Section 304 Part-I I.P.C. and https://hcservices.ecourts.gov.in/hcservices/ sentenced to undergo seven years rigorous imprisonment and theconviction and sentence under Section 201 I.P.C. are confirmed.As the appellant is reported to be on bail, the bail bonds shallstand cancelled and the learned Sessions Judge shall take steps tocommit him to jail to undergo the remaining period of sentence.ATRSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Chief Judicial Magistrate, Pudukottai.2. The Judicial Magistrate, Harur, Dharmapuri District.3. The Chief Judicial Magistrate, Dharmapuri at Krishnagiri(for information)4. The Additional Sessions Judge (Fast Track Court), Dharmapuri.5. The Inspector of Police, Morappur Police Station Morappur, Harur Taluk, Dharmapuri District.6. The Princial Sessions Judge, Dharmapuri (for information)7. The Public Prosecutor, High Court, Madras.8. The Superintendent, Central Jail Vellore.9. The Director General of Police, Chennai.10. The District Collector, Dharmapuri at Krishnagiri.+ 1 cc to Mr. V. Nilcholas, Advocate SR No. 29536SS(CO)SR/17.7.2008Crl.A.No.567 of 2006