of U.P. Vs. Lakhmi  INSC 95 (12 February 1998)
K.T. Thomas, M. Srinivasan Thomas, J.
this case of uxoricide the husband was found guilty by the Sessions Court but
the High Court found him not guilty and acquitted him. That judgment of the
High Court is in challenge in this appeal by special leave.
case can be compendiously stated thus. The deceased "Omwati" was the
young wife of the respondent- accused. They with their two little children were
living together in the house of the respondent. Intermittent skirmishes used to
erupt between them as the wife was accusing the husband for dissipating his
money on alcoholic drinks. During the wee hours of 8.2.1970 respondent
inflicted blows with a Phali (a spade like agricultural implement) on the head
of the deceased. Her skull was smashed and she died on the spot. PW2 (Ramey)
who was working in the adjacent field, on hearing the screams of the deceased,
rushed up and peeped through the window and witnessed respondent thrashing his
wife with the said weapon. PW2 made a hue and cry and some of the neighbours
who heard the noise, ran to the place or occurrence. As the door of the room
was bolted from inside they broke it open, over-powered the berserk assailant
and trussed him up on a pole with a rope.
was lodged by PW1 Baljeet who was one of the persons rushed to the place of
occurrence on hearing the noise of PW2 (Ramey). Police after registering the
case, reached the place of occurrence and took the tethered assailant into
custody and proceeded to conduct investigation.
respondent too did not dispute the fact that his wife (deceased) was murdered
by inflicting blows on her head it is unnecessary to further consider the
question whether death of the deceased was a case of homicide.
Sessions Judge, on evaluation of the prosecution evidence, found that the
accused had killed the deceased and then considered whether he did the act
without knowing the nature of it by reason of any unsoundness of mind. Though
the trial Judge felt that accused was not quite a normal person it was not
possible to conclude that his cognitive faculties were as impaired as to
deprive him of the capacity to know the nature of his acts. Accordingly,
learned Sessions Judge convicted him under Section 302, IPC and sentenced him
to imprisonment for life.
Division Bench of the Allahabad High Court which heard his appeal felt that the
evidence of PW2 (Ramey), which is of crucial importance in this case, was not
credit- worthy and at any rate it was not supported by other reliable evidence.
The Division Bench did not attach any importance to the statement of the
respondent which he made while being examined under Section 313 of the Code of
Criminal Procedure (`Code' for short) wherein he practically admitted that he
murdered his wife. Learned Judges took the view that the prosecution cannot
succeed on the strength of what the accused said during examination under
Section 313 of the code. Accordingly, the High Court sent the verdict of acquittal.
being an appeal against acquittal we heard learned counsel for both sides in
detail and scrutinised the evidence. In our considered opinion the High Court
has gone wrong in holding that prosecution has failed to prove that the
deceased was murdered by the accused. High Court has not given due regard to
the cogent circumstances leading to the only conclusion that deceased was
slashed to death by the accused.
legal proposition we cannot agree with the High Court that statement of an
accused recorded under Section 313 of the code does not deserve any value or
utility if it contains inculpatory admission. The need of law for examining the
accused with reference to incriminating circumstances appearing against him in
prosecution evidence is not for observance of a ritual in a trial nor is it a
mere formality. It has a salutary purpose. It enables the Court to be apprised
of what the indicted person has to say about the circumstances pitted against
him by the prosecution. Answers to the questions may sometimes be flat denial
or outright repudiation of those circumstances. In certain cases accused would
offer some explanations to incriminating circumstances. In very rare instances
accused may even admit or own incriminating circumstances adduced against him,
perhaps for the purpose of adopting legally recognised defences. In all such
cases the Court gets the advantage of knowing his version about those aspects
and it helps the Court to effectively appreciate and evaluate the evidence in
the case. If an accused admits any incriminating circumstance appearing in
evidence against him there is no warrant that those admissions should
altogether be ignored merely on the ground that such admissions were advanced
as a defence strategy.
(4) of Section 313 of the Code contains necessary support o the legal position
that answers given by the accused during such examination are intended to be
considered by the Court. The words "may be taken into consideration in
such enquiry or trial" in sub-Section (4) would amount to a legislative
guideline for the Court to give due weight to such answers, though it does not
mean that such answers could be made the sole basis of any finding.
and again, this Court has pointed out that such answer of the accused can well
be taken into consideration in deciding whether the prosecution evidence can be
relied on, and whether the accused is liable to be convicted of the offences
charged against him; vide: Sampath Singh V. The State of Rajasthan (1969 (1) SCC 367) Jethamal Pithaji
V. The Assistant Collector of Customs. Bombay and another Pradesh (1997) 4 SCC 161.
make it clear that answers of the accused, when they contain admission of
circumstances against him are not by themselves, delinked from the evidence be
used for arriving at a finding that the accused had committed the offence.
this case, PW2 (Ramey) said that while he was working in the field he heard a
loud cry from inside the house of the deceased and when he peeped through the
window he witnessed accused thrashing his wife with Phali. PW3 (Bhudia) and PW4
(Raje) have stated in their evidence that they too heard the sound of cry and
rushed to the scene and then they saw the accused standing with Phali and Kunda
near the deceased who was lying on her bed with bleeding head injury and that
the room was bolted from inside.
answer which the accused gave to the following question put to him in the
examination under Section 313 of the Code is said to contain his admission of a
very vital circumstance against him.
question was this:
have you to say about the evidence of Ramey (PW2) that he peeped through the
window and saw you standing near her bed and you killed her with Phali (Ex.Ka1)
and Kunda (Ex.Ka2)?" The answer of the accused to the said question was
was not like that. I murdered her with kunda and not with Phali." The
above answer would certainly help in appreciating the statement of the
prosecution witnesses who saw the accused standing near the bed of the deceased
with a Phali and Kunda and that the deceased was bleeding with injuries then.
We are not disposed to by-pass the impact of the aforesaid answer of the
accused in determining as to who would have caused the death of the deceased.
counsel for the respondent however, pointed out that as the doctor who
conducted post-mortem examination on the dead body was not put in the witness
box in this case and it was argued on its strength that in the absence of
legally proved medical evidence no finding can be reached that the deceased
died due to blows inflicted with "Phali." No reason is seen noted by
the trial court or the High Court for the non-examination of the doctor who
conducted the autopsy No doubt it is the duty of the prosecution to prove
post-mortem findings in murder cases, if they are available.
of such proof in the prosecution evidence in a murder case is a drawback for
prosecution. However, we are not disposed to allow this case to be visited with
fatal consequences on account of such a lapse because the accused has admitted
that death of the deceased was a case of homicide.
the above circumstances, there is no escape from the conclusion that deceased
had died at the hands of the accused. Still, that finding is not enough to
dispose of this appeal. Accused attempted for a defence presumably under
Section 84 of the Indian Penal Code by examining DW2, his mother to show that
he was of unsound mind. But the trial judge had, according to us rightly,
repelled the said defence since he did not succeed in making out that he had
such a mental case when he committed the act and further that he did not know
the nature of the acts committed by him by reason of such mental impairment.
However, we have noticed that accused had adopted another alternative defence
which has been suggested during cross-examination of prosecution witnesses i.e.
his wife and PW2 (Ramey) were together on the bed during the early hours of the
date of occurrence. If that suggestion reserves consideration we have to turn
to the question whether the benefit of Exception I to Section 300 of the IPC
should be extended to him? The law is that burden of proving such an exception
is on the accused. But the mere fact that accused adopted another alternative defence
during his examination under Section 313 of the IPC without referring to
Exception No. 1 of Section 300 of IPC is not enough to deny him of the benefit
of the Exception, if the Court can cull out materials from evidence pointing to
the Existence of circumstances leading to that exception. It is not the law
that failure to set up such a defence would foreclose the right to rely on the
exception once and for all. It is axiomatic that burden on the accused to prove
any fact can be discharged either through defence evidence or even through
prosecution evidence by showing a preponderance of probability.
above context, we deem it useful to ascertain what possibly would have prompted
the accused to kill his wife. The prosecution case as noted above, is that the
accused was not well-disposed to his wife as she was always speaking against
his drinking habits. we are inclined to think that, while considering the
manner in which he had suddenly pounced upon his young wife who bore two
children to him and smashed her head during the early hours, he would have had
some other strong cause which probably would have taken place within a short
time prior to the murder. Certain broad features looming large in evidence help
us in that line of thinking.
counsel put a definite suggestion to PW-2 (Ramey), during cross-examination,
that the incident was preceded by a liaison between Omvati, the deceased, and
Ramey (PW-2). The suggestion was, of course, rebuffed by the witness. One of
the defence witnesses (DW-1) was examined to say that the accused was working
in his field till 4
A.M. on the night in
question. As that version was not inconsistent with the prosecution story, the
aforesaid evidence of DW-1 was not rejected by the trial court. If that version
is correct, he would have gone back to his bedroom some time thereafter, In
this connection, we refer to the evidence of PW-3 who said even during chief
examination itself that when he saw the accused standing near the bed side of
his wife, the witness asked him what did he do, to which he snorted out that he
would not spare Ramey (PW-2) also. That evidence of PW-3 (Bhondia) was binding
on the prosecution which has a very significant impact on the plea based on the
First Exception to Section 300. It indicates that the motive for the accused to
murder his wife had some nexus with Ramey (PW-2). According to PW-4 (Raje), he
rushed to the house of the accused and saw PW-2 scampering away and then saw
the accused inside the bedroom muttering that Ramey had done foul acts with his
wife and that he would murder him. Though the Public Prosecutor challenged that
part of the witness's testimony, he did not treat the witness as hostile for
above features positively suggest that the accused would have seen something
lascivious between his wife and PW2 just when he entered the house from the
can be little doubt that if the accused had witnessed any such scene, his mind
would have become suddenly deranged. It is not necessary that a husband should
have been hot-tempered or hypersensitive to lose his equanimity by witnessing
such scenes. Any ordinary man with normal senses or even sangfroid would be
outraged at such a scene.
therefore, inclined to afford to the respondent accused benefit of Exception I
to Section 300 IPC. As the corollary, we find the respondent guilty only under
Section 304 (Part I), IPC.
result, we allow this appeal and set aside the judgment of the High Court, but
in alteration of the conviction passed by the Sessions Court, we convict him
under Section 304 (Part I), IPC. We sentence him to undergo rigorous
imprisonment for a period of six years. We direct the Sessions Judge, Meerut to take steps to put the accused in
jail for undergoing the remaining portion of the imprisonment term in
accordance with the sentence imposed on him now.