(Somasundaram, J.)

The Additional Sessions Judge of Salem has found the accused guilty of murder of one Sellappa Goundan, uncle of the accused and sentenced him to death.

The occurrence is said to have taken place adjoining the road which leads Sank ri Railway Station near a betel mundy. On the night of 19th October 1950 at about 10 p.m P. Ws. 7 and 12 who were living near the mundy heard cries “Aiyo, water, water.” They came out each with a lantern and found the deceased Sellappa Goundan sitting on a cot in front of the mundy under a pandal with a spear in his hand which is M. O. 1 in the case. His dhoti was bloodstained. They gave him water and as the deceased wanted that word should be sent to his wife. P.W 7 sent P. W. 8, one of the boys working in the mundy, to go and fetch his wife. He went and told the wife of the deceased (P. W. 1) that her husband was lying on a cot in front of the mundy with a wound on his abdomen and that he was sent by P. W. 7 to inform her. P. W. 1 then, with the assistance of her brother (P. W. 3) who is also her son-in-law engaged a cart and came to the scene with her daughter P.W 2, aged about 9 years and her son, P. W. 5 aged about 6 years. They saw Sellappa Goundan lying on a cot with a bleeding injury in the abdomen. They also saw a spear underneath the cot. They found P. Ws. 7 and 12 present there and also a woman called Pavayee (the wife of the accused). P. W. 1 questioned her husband as to how became by the injuries and the deceased stated that the accused had stabbed him with the spear, M.O 1 which was lying nearby. P. W. 12 suggested that the deceased may be taken to the hospital. The cot was therefore, carried up to the road and kept there waiting for jutka or other transport to be brought.

In the meantime, P. W. 1's brother, (P. W. 3) who, as already stated, is also her son-in-law was sent to fetch P. W. 1's mother's sister. The wife of the accused, Pavayee who was staying there till then left the place. After P. W. 3 left the scene, P. W. 1, her daughter P. W. 2, and her son P. W. 5, and one Pachayee who has not been called as a witness stayed there by the side of the cot. While they were so staying by the side of the deceased, the accused is said to have come again with a covering on his head and given four or five stabs in quick succession on the chest and other places with a weapon like M. O. 2. The deceased immediately collapsed on the spot. The accused then ran away in the southern direction. While the accused was stabbing, P. W. 1, who recognised him, shouted for help. No one came, but as the accused was going away from the scene he was met by P. W. 3 coming in the opposite direction and the accused is said to have chased P. W. 3 also and then left and ran away. P. W. 3 came back to the scene to see his father-in-law dead. Later, after 11 p, m. P. W. 9 also, on receiving information about the death of Sellappa Goundan, came to the scene. Though a number of these persons were present near the dead body none of them appears to have gone to the village munsif till next morning at about 7 a.m The village munsif recorded a statement from P. W. 9 who went to give the information. The village munsif came to the scene of occurrence and was present till the Sub Inspector came and held the inquest. The accused was arrested on the 20th of October 1950, at about 2pm. at the Sankari shandy on the Edapadi road. The Weapon M O. 2 was found in the hollow of a tamarind tree on which the thatched shed of the father of the accused was built. On examination by the chemical Examiner no blood was found on this weapon, though the spear was stained with human blood.

The post mortem was held by P. W. 17 on 20-10-1950 and found on the deceased seven injuries of which, according to the opinion of the doctor, the first three were the fatal injuries. They were: (1) An oblique incised wound 1¼” long ¼” wide at its middle and tapering towards the ends from above slightly downwards and inwards 3” above and inner to right nipple; (2) An oblique incised wound 1½” long ¼″ wide at its middle and narrowing towards the end directed from above downwards and inwards 3” below and outer to right nipple; (3) An oblique incised wound 2½″ long 1½″ wide at its middle where it is slightly irregular and narrowing towards the end 1” below and to the left of the lower end of breast bone and directed from above downwards and inwards. The fourth injury also was an incised wound directed from above downwards and outward 3” below and to the right of the naval. On dissection of injury No. 1 if was found that it had penetrated into the thorax, through the second intercoastal space and cut the right lung. Injury No. 2 on dissection was found to have penetrated into the thorax between the 6th and 7th right ribe and cut through the diaphragm resulting in an incised wound to the liver. The third wound had also penetrated into the abdomen through the liver and stomach. Death was due to shock and haemorrhage as a result of the penetrating injuries to the thorax and abdomen and wounds to the liver, lung and the stomach. According to the doctor, death must have been almost instantaneous after receiving injuries Nos. 1 to 3. There can be no doubt, therefore, that whoever inflicted these injuries did so with the intention of causing the death of the person and is therefore guilty of murder.

The evidence against this accused with regard to the first stab, rests mainly on the declaration made by the deceased to P.Ws 1, 2, 3 and 5; and with regard to the other stabs which clearly resulted in his instantaneous death solely on the evidence P.Ws 1, 2 and 5 who actually witnessed the stabbing and the evidence of P W. 3 who saw the accused coming opposite to him and giving him a chase.

It is contended by the learned counsel for the accused that the story that the accused came a second time and gave these injuries is improbable and that there has been long delay in giving the first information to the village munsif, which has not been satisfactorily explained and this delay is due to the fact that none of the witnesses knew as to who caused the injuries but they suspected the accused on account of the strong enmity that existed between the deceased and the accused. There is no doubt that there mast have been a strong feeling of enmity between the accused and the deceased on account of the fact that the deceased is said to have pulled out one of the eyes of the accused's father some years before the occurrence resulting in a case against the deceased and in which he was acquitted. The deceased was also said to be in illicit intimacy with the wife of the accused. The third cause of the enmity suggested is that the accused was charged in a theft case in which the deceased is said to have given evidence against him. There is no doubt that there was a strong feeling of enmity between these two and this, it is urged, has been exploited by the prosecution witnesses to implicate the accused.

As regards the accused coming for a second time and giving stabs to the deceased, no doubt it may appear to be strange that after giving the first stab the accused should have gone away and come back again and given the stabs further while the witnesses were present. But none the less we think that the story is true and truth can sometimes be stranger than fiction. The evidence shows that at the time when P.Ws 7 and 12 came to the spot on hearing the criesthey found the deceased sitting in a cot with M.O 1 in his hand. P.W 1 who came to the spot after being informed by P.W 8 found Pavayee, the wife of the accused, present at the scene of occurrence. She (P.W 1) herself says in her evidence that her husband was keeping this Pavayee for the past two or three years. It appears that after she left the accused a month or two before the occurrence she was staying in a house which is about 50 yards from the mundy or the place where the deceased was found injured on the cot (vide plan). We think that at the time of the occurrence the deceased was perhaps sleeping with Pavayee and the accused who came there with a spear intending to use it if his suspicions were confirmed acted more or less under grave and sudden provocation at the sight of his wife sleeping by the side of the deceased. This accounts not only for the deceased sitting on his cot when he was injured but also for the presence of Pavayee at the time when P.W 1 arrived at the scene. On receipt of the first injury with the spear, the deceased must have caught hold of the weapon and practically snatched it from the accused who after finding that the weapon was in the hands of the deceased must have disappeared from the scene for fear that the same might be used against him. At the same time time we think that he was smarting under the very grave provocation that he received at the bands of the deceased and came back with another weapon and dealt the other stabs which were subsequently found on the person of the deceased. We believe the evidence of P.Ws 1, 2 and 5 when they say that the accused came on a second time and gave the stabs.

As regards the delay, there was no doubt that although the village munsif was living only at a distance of two miles from the place of occurence information was not given to him till about 7 am. in the morning. It is not as if there were no persons present to go and give the information to the village munsif. There was P.W 3, and according to the evidence of P.W 9, who came at about 11 o'clock, he remained till about the next morning. It was only then that he was asked to go and give the information. But this delay in our opinion does not detract from the truth of the prosecution story. It must not be forgotten that the accused is a nephew of the deceased and he had also a grievance against the deceased in that the deceased was keeping the accused's wife, Pavayee. At the time when P.W 1 and others came to the scene, the accused's wife was present assisting the deceased. The conduct of the deceased therefore must have caused displeasure even to the nearest relatives and this relationship which the accused's wife had with the deceased must have prevailed with the relations and prevented them from going to the village munsif immediately. As already stated, we do not think the delay in this case in any way affects the truth of the story given by the prosecution witnesses.

The learned advocate raised a point that the Sessions Judge in this case has not complied with the provisions of S. 342 Cr.P.C and therefore the trial is vitiated. In the Sessions Court the statement made by the accused before the committal court was read out to him and after marking it as Ex. P. 5 and recording his answer that it is correct the Sessions Judge simply asked the accused whether he wished to say anything more. The accused said he had nothing to add: and then the learned Judge proceeded to ask if the accused had any defence witnesses, to which the accused said that he had none. In the committal court all the circumstances that appeared against the accused in the evidence given before the committing magistrate were put to the accused and his answers were obtained from him. There is not a single circumstances on which that court could rely on against the accused that was not put to the accused. In the Sessions court no circumstance different from what appeared in the evidence in the committing court is found in the evidence given before the learned Sessions Judge. There has been no variation and the little variation if any was only in favour of the accused; so that all the circumstances that appeared in the evidence in the sessions court had been put to the accused by the committing magistrate as the same appeared in the evidence in the other court and the answers of the accused obtained thereon. The question for consideration is whether a Sessions Judge should again put all the questions to the accused and record the answers from him. The learned advocate relied on two decisions in support of his contention, one of which is the decision of a Bench of this Court in Sagili Solomon, in re1 and the other a decision of the Supreme Court in Tara Singh v. The State 1951 M.W.N 757. In view of the decision of the Supreme Court, it is unnecessary to refer to the decision of this Court reported in Sagili Solomon, in re. In the case before the Supreme Court the scope of S. 342 of the Code of Criminal Procedure was considered; and the learned Judges pointed out how the circumstances which the Sessions Judge relied on did not appear in the evidence before the committal court but appeared only in the evidence before the Sessions Judgs, This is what their Lordships say at page 523 of the journal: (only the relevent portion is extracted here).

“Now this was evidence which was recorded exclusively in the Sessions Court. The eye witnesses before the Sessions Judge had resiled from the previous statements which they made in the committal proceedings. Accordingly, a questioning by the committing magistrate would not and could not cover the point made here, and naturally, the magistrate has not questioned the appellant about that circumstance ……

He next relied on the evidence of these witnesses as recorded in the court of the committing magistrate. One point he used against them was the evindence of motive which these witnesses supplied in the committal proceedings. The appellant was not told what that evidence was nor was he asked to explain it. He was questioned about this motive in the committal proceedings by the committing magistrate, but even there he was not told who had given the evidence and the material on which the committing magistrate relied to establish the presence of motive was not disclosed.

The Sessions Judge also relied on the fact that the appellant had confessed to the three eye witnesses that he had killed his uncle and injured his father. There is not a single question regarding that either in the committing magistrate's court or in the Sessions Court.

Another ground on which the Sessions Judge proceeded was the extra-judicial confessions made by the appellant to Ujagar Singh, Fauja Singh and Gurbakhsh Singh. The appellant was questioned about an extra-judicial confession by the committing magistrate but not about one made to these three persons.”

Next, the Sessions Judge considered that the most important piece of evidence damaging to the accused was the dying declaration of Hakam Singh recorded by the magistrate, P.W 5. Neither the Sessions Judge nor the committing magistrate questioned the appellant about that. The Sessions Judge also relied on the two statements of Jakam Singh made before the Police; one of which the police recorded as his dying declaration. Again not one word was put to the appellant about this-”

The circumstances therefore on which the learned Sessions Judge in that case relied were not put to the accused either by the committing magistrate or by the Sessions Judge. Their Lordships therefore held that under S. 342 of the Code of Criminal Procedure, for the learned Sessions Judge to rely on the circumstances he should have questioned the accused. Here such a complaint cannot be made. All the circumstances have been put in the committing magistrate's court and no circumstances on which the learned Sessions Judge relied appeared in the evidence in the Sessions Court, which had not already appeared in the committing court and which had not been put to the accused. We think therefore that there is no substance in the contention of the learned advocate that S. 342 Cr.P.C has not been complied with. We must say however that the Sessions Judge should himself put separate simple questions to the accused so that the trial court itself may observe the demeanour of the accused explaining the incriminating circumstances alleged against him. However desirable it may be and however much we may say that the Sessions Judge should follow such a procedure, we do not think that in this case the failure to do so either vitiates the trial or has resulted in any prejudice to the accused.

On the evidence, as already stated, we accept the finding of the Sessions Judge that it was the accused who dealt the stab which resulted in the death of the deceased and that he is therefore guilty of murder.

But the question of sentence has given us some anxiety. We find in this case, as already stated, that the accused must have seen the deceased sleeping with his wife on the cot and he must have, therefore, acted under grave and sudden provocation when he first speared him. If he had given the other injuries as well at the same time his act certainly falls under exception I to S. 300 I.P.C and the offence would only be one under S. 304 I.P.C But we think that when he came a second time and stabbed the deceased with a knife he did so under sustained provocation which was still grave but not sudden. The gravity of the provocation, we think, is a circumstance which can be taken into consideration on the question of sentence. We therefore reduce the sentence to transportation for life. With this modification of sentence we dismiss the appeal.

N.T.RSentence reduced