IMPORTANT POINT
For an incident of death occurring on sudden and grave provocation by deceased, accused would be liable to be convicted u/s 304 Part I.

JUDGMENT :

Mohan M. Shantanagoudar, J.

The appellants herein were charged, tried and convicted for offences punishable under Section 302 read with Section 34 and Section 201 of the Indian Penal Code (hereinafter ‘IPC’). The High Court confirmed the judgment of conviction passed by the Trial Court and hence they are in appeal before us.

2. The brief facts of the case are as under:

Accused No. 1 – Smt. Ragila had an illicit relationship with Accused No. 2 – Shri Nawaz. The accused No. 1 is the wife of the deceased.

3. The deceased used to suspect the fidelity of Accused No. 1 as well as his daughter’s integrity. He was of the opinion that Accused No. 2 Nawaz not only had an illicit relationship with Accused No. 1 but also with the elder daughter of the deceased.

4. On the date of the incident at about 9.00 a.m., the deceased quarrelled with Accused No.1 and called her a ‘prostitute’. He also told her that Accused No. 1 has converted the daughter into a prostitute as well. At that point of time, Accused No. 2 came from the first floor and asked the deceased not to quarrel with Accused No. 1 and her daughters. Since the deceased did not stop, Accused No. 2 slapped the face of the deceased. Immediately, thereafter, both the accused throttled the deceased with the help of a towel and burnt the dead body to try to conceal the offence. Subsequently, they transported the dead body in a Maruti Car owned by PW 15 and abandoned the body elsewhere.

5. The dead body was found after two days following the incident by PW 1, who lodged the First Information Report. After about 40 days, extrajudicial confession of Accused No.1 was recorded by PW 8 (teacher of the village) and based on the same and other material collected subsequent thereto, the chargesheet came to be filed.

6. The Trial Court as well as the High Court convicted both the accused for the offences punishable under Section 302 and Section 201 of IPC.

7. Shri S. Nagamuthu, learned senior counsel appearing on behalf of the appellants, taking us through the material available on record contends that the entire case is built up on the extrajudicial confession which is a weak piece of evidence. He further submits that there is no reason for Accused No.1 to confess before PW 8 who is a teacher of a school and stranger to the family and that too after 40 days. He further draws our attention that the dead-body was not identified even after superimposition test. The aspect of motive is deposed by PW 17, who is the maid servant working in the house of accused. According to him, if the extrajudicial confession is disbelieved, the accused are entitled to get acquitted. Alternatively, he submitted that even assuming that extrajudicial confession is believed in its entirety, the case may fall under Section 304 Part I of the IPC.

8. Mr. M. Yogesh Kanna, learned counsel appearing for the State argued in support of the judgments of the Trial Court and the High Court.

9. Both the Courts below have relied upon the extrajudicial confession which is said to have been made by Accused No.1 before PW 8 who is a teacher of the school. We have perused the extrajudicial confession, read over to us by Shri Nagamuthu, learned senior counsel, and translated by him in English.

10. It is no doubt that the extrajudicial confession is recorded by PW 8 who is a teacher after about 40 days of the incident in question. Admittedly PW 8 is not the relative of the deceased nor the relative of the accused. If one goes through the extrajudicial confession, it is clear that the same is recorded as if it is a statement recorded under Section 161 of the Code of Criminal Procedure, 1973.

11. Be that as it may, both the Courts below on facts have relied upon the extrajudicial confession and we find that the extra judicial confession in all probability might have been made by Accused No. 1 implicating herself and other accused. In other words, we also subscribe to the views of the Trial Court as well as by the High Court that such a confess