VIJAY @ GYANCHAND JAINversusTHE STATE OF MADHYA PRADESH

A                       VUAY@GYANCHAND JAIN
                                   v.
                     THE STATE OF MADHYA PRADESH

                               SEPTEMBER 2, 1994

B                       (G.N. RAY AND N.P. SINGH, JJ.]

           Indian Penal Code, 1860: Sectipn Joo-Exception ~Sections ~02 and       >
    309.

C          Accused--Fntstrated on account of Heavy indebtedness-Killing wife
    and attempting suicide-Letter written by accused unfolding decision to mur-
    der and then commit suicide-Defence-Consent of victim-Held Exception
    5 should receive strict interpretation-Act alleged to be consented must be
    considered with a close scrutiny-Consent by necessary implication should
D   not be pemiitted-Conviction under 302 and 309 upheld.

           Evidence Act, 1872 : Section 73.

         Murder-Accused-Procurement of handwriting by Naib Tehsil-
    dal-Specimen obtained and a letter purported to have been written by
E   accused sent to expert-Section 73 held not violated.

          The appellant was prosecuted under Sections 302 and 309 of the
    Indian Penal Cod~, 1860 for murdering his wife and attempting to commit
    suicide. The prosecution case was that the appellant, who was in difficult
    financial circumstances, murdered his wife by causing knife injuris on her
F   neck and chest in a r'oom of his home where there was no outsider
    excepting his minor son and an infant daughter.

          Immediately after the murder a letter written by the appellant un-
    folding his decision to kill his wife and then to commit suicide was found
G at the spot of murder by an independent witness. The appellant's son had
                                      1
    deposed that when he woke up he saw that his mother was lying on the
    Door with a bleeding injury on her neck and the appellant was wiping out
    the blood; he informed his grandfather who came to the room of occur-
    rence and saw that appellant's wife was lying injured and the appellant
    was hanging with a rope tied around his neck, which was removed from
H . the appellant's neck.
                                          80
                      GYANCHAND JAIN v. STATE                             81

      The Naib Tehsildar obtained the speciman writings from the appel-         A
lant and sent to the State Examiner of Questioned Documents along with
the letter purported to have been written by the appellant who conftrmed
that the specimen writing and admitted writing were by the same hand.
From the evidence it also transpired that the wife consented to sufl'er the
murderous attack of husband and therefore, she dis not raise any sound          B
while suffering the attack. The appellant's case was that he was not present
in the room when the murderous attack was made on his wife and on
coming back he found that she was critically injured with no chance of
survival and therefore he became remorse and attempted to commit
suicide.
                                                                                c
       The Trial Court convicted and santenced the appellant under Sec-
tions 302 and 309 of the IPC. On appeal the High Court came to the
conclusio.n that the letter found at the place of murder was written by
appeallant and rejected the appellant's contention that the specimen writ-
ing obtained from him were inadmissible in view of the bar contained in         D
Section 73 of the Indian Evidence Act. The High Court also held that the
deposition of appellant's son to the efl'ect that he informed his grandfather
that he found his father wiping out the blood from the neck of his mother
completely demolishes the appellant's case that he was not present in the
room when attack was made on his Wire and that it was only on seeing her        E
critically injured he attempted to commit suicide. Accordingly the High
Court dismissed the appeal and affirmed the conviction and sentence
imposed by the Trial Court.


       In appeal to this Court, it was contended on tiehalf of the appellant    F
that (i) there was no reliable and congent evidence establishing murder by
the appellant and it was only with reference to the appellant's letter that
complicity was found by the Courts; (ii) the specimen writing obtained
from the appellant was inadimissible in evidence under Section 73 of the
Evidence Act; (iii) there was no motive to murder the wife; the absence of      G
a strong motive is a relevant consideration in a case of circumstantial
evidence like the present one; and (iv) the testimony of the appellant's son
that he had not heard the shriek or sound of agony of his mother reveals
that the victim had not resisted the attack but was sufl'ereing silently.
Therefore, the defence of consent was available to the appellant and
consequently the case is governed by Exception S of Section 300 I.P.C.          H
    82                    SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.,.

A         Dismissing the appeal, this Court

          HELD : 1. There is no reason to interfere with the order of conviction
    and sentence passed against the appeallant. In the facts and circumstances
    of the case the trial court and the High Court have correctly appreciated
    the evidence and have come to the finding that the husband had planned
B   to murder the wife and in execution of the said plan had murdered the wife
    and thereafter tried to commit suicide. (88-E, HJ

          2. In the facts of the case, Section 73 of the Evidence Act has not·     )'

    been violated, That a part, the High Court has compered the writings in
C   the letter found by the doctor at the place of murder with the admitted
    writing of the appellant and on comparison had come to the finding that
    both the writings were by the same hand. Such letter indicates the motive
    for committing the said offences. (89-A]

          3. Exception 5 to Section 300 I.P.C. must receive a very strict and.
D not a liberal interpretation and in applying the said exception the act
    alleged to be consented to or authorised by the victim must be considered
    with a very close scrutiny. Consent by necessary implication shoo: .ot be
    permitted to be raised by way of defence. The appellant at no poiltt of time
    had spoken about such consent and simply on account of the son not
E   hearing any shriek or sound of agony, it cannot be held that the deceased
    wife had consented to or authorised the appellant to cause the murderous
    assault. (89-B·D]                       ·

          Queen Empress v. Nayamuddin and Ors., Indian Law Reports Cal·
    cutta Vol. XVIII 484, referred to.
F
         Dasrath Paswan v. State of Bihar, AIR (1958) Patna 190; Ujagar Singh
    v. Emperor, AIR (1918) Lahore 145 and In Re Ambalathil Assainar, AIR
    (1956) Madras 97, cited.

G        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    250of1986.

         From the Judgment and Order dated 6.2.85 of the Madhya Pradesh
    High Cour.t in CrL A No. 279of1981.

H         N.P. Midha, Suresh Gupta and Sunil Kr. Jain for the Appellant.
                 GYANCHAND JAIN v. STAIB [RAY, J.]                      83

      U.N. Bachawat and Sakesh Kumar for the Respondent.                      A

      The Judgment of the Court w~ delivered by

      G.N.RAY, J. This appeal is directed against the judgment dated
February 6, 1985 passed by the High Court of Madhya Pradesh at Jabalpur       B
in Criminal Appeal No. 279 of 1981 affirming conviction and sentence
passed by the learned Sessions Judge, Shajapur, in Sessions Trial No. 28
of 1981. By the aforesaid judgment dated September 24, 1981, the learned
Sessions Judge, Shajapur, convicted the accused/appellant Vijay under
Section 302 l.P.C. for murdering his wife Komal Bai and sentencing him
to imprisonment for life for the said offence and also convicting him under   C
Section 309 l.P.C. for attempting to commit suicide and sentencing the
accused/appellant rigorous imprisonment for one year by directing that
both the sentences would rtln concurrently.

      The prosecution case in short is that the appellant murdered his wife   D
Komal Bai aged 29 years at about 11.00 P.M. on November 11, 1980, by
causing knife injuries on the neck and the ~hest of his wife. Such act of
murder was committed in a room in the upper storey of the appellant's
home at Agar, Shajapur. The appellant along with his family members
consisting of the deceased-wife, minor son, Chetan aged 9 years and infant
daughter Kumari Seni, used to reside at the said home with his father,        E
Bansantilal. At about 11.00 P.M. on November 11, 1980, the brother of the
appellant called Dr. Chandra and informed him that his sister-in-law
Komal Bai had been bleeding from the neck. Dr. Sharma (P.W.1) on
reaching the residence of Basantilal found that in a room in the upper
storey the said Komal Bai was lying dead with a bleeding injury on her        F
neck. Letter dated October 11, 1980 purporting to be written by the
appellant holding himself responsible for the murder of his wife and for
his suicide was also found lying there. The police was informed by Dr.
Sharma about the said incident who rushed to the spot. On the arrival of
the police, Dr. Sharma scribed the Dehati Nalishi (Ex.p/3) and handed it      G
over to Mokamsingh Nain (P.W.26) the Station House Officer, Agar. The
crime under Sections 302 and 309 I.P.C. was registered at about 12.30 A.M.
on the same night and investigation was started. The appellant who was
admitted in the Agar hospital and examine.d at 12.17 A.M. on November
12, 1980 by Dr. Sharma (p.w.l) who found a ligature remark around the
neck of the appellant and it was noted by the doctor that .such a ligature    H
    84                    SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.

A mark had been caused within three hours of the examination. From the
  investigation it was revealed that the minor son of the appellant, Chetan
   (PW.4), was sleeping in the room where the said incident of murder had
  taken place. Chetan woke up and saw that his mother was lying on the floor
  with, a bleeding injury on her neck and the appellant was there in the room.    I...
  Chetan thereafter unbolted the door, went down and informed his grand
B father Basantilal. When Basantilal reached the place of occurrence, he
  found that said Komal Bai was lying injured and the appellant was hanging
  with a rope tied around his neck. Basantilal with the help of the knife lying
                                                                                   y
  in the room cut the rope and removed it from the appellant's neck. Kamal
  Bai's dead body was sent for post mortem examination and Dr. Sa~ish Jain
c (p.w. 24) on November 12, 1980 at 9.30 AM. conducted the post mortem,
   and the said doctor found one ante mortem incised wound on the right
  side of the neck and another on the left side of the chest. According to the
  doctor, injury No.1 on the neck was sufficient in the ordinary course of
  nature to cause the death of Kamal Bai. The post mortem report is Ex.P/54.
D It transpired from the investigation that the appellant was· in difficult
  financial circumstances and was indebted to several persons. It also
  transpired that the appellant had earlier contacted P.W.17 Charikhan to
  ascerain from him as to ho~ the licence for a pistol could be obtained. It
  may be stated that P.W.9 Chironjilal Kushwah after disclosing his identity
  as Naib Tehsildar, Agar, asked the appellant to prepare copies of the
E letters stated to have been written by him and the appellant agreed to make
  such copies and the contents of letters being dictated he wrot~ the same.
  Such writing was· sent to the Additional State. Examiner of Questioned
  documents, Navinchandra Deshpande (P.W.36) for comparison with the
  specimen writing of the appellant and on comparison, the said State
F Examiner had found that the specimen writing and the admitted ~iting
  were by the same hand. The learned Sessions Judge after considering the
  evidence adduced in the case' inter alia came to the finding that. the
  appellant had murdered his wife Komal Bai by causing the injury on the
  neck and thereafter he attempted to commit suicide by hanging. Accord-
  ingly, he convicted the appellant under Section 302 and also under Section
G 309 I.P.C. and passed the aforesaid sentences.       '

          It may be noted in this connection that the appellant denied his
    complicity in murdering his wife and the appellant's case was that he had
    gone out of the room where his wife and the son and daughter were
H   sleeping and when he came back he found that the wife was lying seriously
                GYANCHAND JAIN v. STATE [RAY, J.]                      85

injured and had been bleeding profusely. After seeing that there was very A
little chance of her surviving, he became remorsed and wanted to end his
life by hanging. It may also be noted here that before the learned Sessions
Judge on behalf of the appellant, it was contended that his writings which
were obtained by the Naib Tehsildar for comparison should not be taken
into consideration because procurement of writing was contrary to Section B
73 of the Evidence Act. Such contention, however, was not accepted by the
learned Sessions Judge.

       The appellant thereafter preferred the said Criminal Appeal No. 279
of 1981 in the High Court of Madhya Pradesh at Jabalpur but the High
Court dismissed the appeal and affirmed the convictions and sentences C
passed by the learned Sessions Judge. Before the High Court the appellant
also contended that the said specimen writing was inadimissible in evidence
in view of bar under Section 73 of the Evidence Act but the High Court
rejected the said contention on the finding that the Court did not give any
direction for specimen writing thereby offending the provisions of Section D
73 of the Evidence Act but in course of the investigation, the police got
the specimen writing from the accused and sent it for comparison before
the hand-writing expert. The High Court also compared the contents of
the letters which were found at the place of murder by Dr. Sharma with
the admitted writings of the aecused/appellant. The High Court on com-
parison came to the finding that both the writing were by the same hand. E
The case of the appellant that he was not present in the room when the
murderous attack was made on Komal Bai but on coming back when he
found that the wife was critically injured with no chance of surviving, he.
attempted to commit suicide by hanging, was not accepted by· the High
Court by pointing out that the son of the appellant deposed to the effect F
that when he went to inform his grand father he found his father wiping
out the blood from the neck of his mother. At that time, a rope with a knot
tied on it was hangllig from the roof. The High Court has indicated that
the said fact completely demolishes the case of the appellant that the
attempt to commit suicide was taken when the wife was found critically
injured with little chance to survive. It has been held by the courts below G
that being indebted heavily the appellant decided to kill his wife and
thereafter to end his life by committing suicide and he noted such intention
in a letter which was found imm~diately after the occurrence by the doctor
at the said place of murder. It has been held that the writing of the said
letter was by the appellant.                                                 H
    \ 86                  SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.

A        At the hearing of this appeal, the learned counsel appearing for the
  appellant has contended that the room where the appellant was taking rest
  with the members of the family including the deceased wife had also
  another entry from the back side and it was, therefore, not improbable that
  during the short absence of the appellant, somebody entered from the
B other side and had murdered the wife. The learned counsel for the appel-
  lant has contended before us that from the deposition of the son of the
  deceased it tr.anspires t)iat the son woke up when the deceased mother put
  her hand on the forehead of the son and he found his father wiping out
  the blood from the neck of the mother. It has been contended by the
  learned counsel for the appellant that the said deposition clearly shows that
C the appellant was trying to save the wife by wiping the blood and seeing
  the injured wife he was extremely remorse and weeping. Such fact runs
  counter to the case of murder with pre-meditation as sought to be alleged
  by the prosecution. It has also been contended by the learned counsel for
  the appellant that there is no evidence to indicate that the appellant had
  been bearing any grudge against the wife and the relation between the two
D was strained at any point of time. In' the aforesaid circumstances, there
  cannot be any motive for murdering the wife. If the prosecution case is
  accepted to the effect that the appellant was indebted heavily to various
  persons and he lost interest in his life it was highly improbable that on that
  account he would commit the murder of his innocent wife with whom there
E was no ill-feeling and love between the two was not lost. In such cir-
  cumstances, it will be only consistent with the normal human behaviour that
  one would try to end his own life to avoid shame and harassment in the
  society. The learned counsel for the appellant has submitted that the
  absence of a strong motive is a very relevant consideration in a case of
  circumstantial evidence. The learned counsel has also contended that
F admittedly at the dictation of Naib Tehsildar, Agar, the appellant had
  prepared the contents of the letter. It was not open to the police to dictate
  to the appellant to prepare a document against him. Such document was,
  therefore, inadmissible in evidence being contrary to Section 73 of the
  Evidence Act and no reliance should have been placed on the contents of
G the said letter and comparison of the same with the admitted writing of the
  appellant should not have been made. It has also been contended· by the
  learned counsel for the appellant that there was no reliable and cogent
  evidence establishing the fact of murder being committed by the appellant
  and it was with reference to the said letter, the appellant's complicity in
  the said murder was found by both the courts. The learned counsel for the
H appellant has, therefore, contended that the case of murder depending on
                   GYANCHANDJAINv. STATE[RAY,J.]                            87

 circumstantial evidence had not been established by events so complete in A
 chain that the irresistible conclusion about the complicity of the appellant
 in committing the murder could be drawn safely.

        The learned counsel has also contended that admittedly the son who
  was sleeping by the side of the deceased did not hear any shriek or sound
  of agony from the mother and he has stated in his deposition that he woke B
  up when her mother put her hand on his forehead. At that time, he noticed
  the mother critically injured in the neck and the father was wiping out
  blood from the wound. Such fact clearly indicates that wife did not give
  any resistance before suffering the murderous attack on her. The prosecu-
  tion case is that the appellant contemplated to kill the wife and then to C
  commit suicide by hanging. From the evidence, it reasonably transpires that
  the wife consented to suffer the murderous attack so as to carry out the
  plan of the husband and precisely for the said reason she did not raise any
  sound but silently suffered the murderous attack. The learned counsel for
  the appellant has contended that although the appellant did not come out D
  with any case of consent by the wife but if such defence is available to him
  on the face of the evidence adduced in the case, the Court should take into
  consideration whether the case is covered by Exception 5 to Section 300
  l.P.C. The learned counsel for the appellant has submitted that if Excep-
  tion 5 to Section 300 I.P.C. is pressed into action, no conviction for murder
  under Section 302 is warranted, but the appellant at best can be convicted E
  under Section 304 Part I I.P.C. In support of such contention, the learned
  counsel has referred to the decision of the Patna High Court in Dasrath
· Paswan v. State of Bihar, AIR (1958) Patna 190, a decision of the Lahore
  Court in Ujagar Singh v. Emperor, AIR (1918) Lahore 145, and also a
  decision of the Madras High Court in Ambalathil Assainar's case AIR
  (1956) Madras 97.
                                                                                F

        Learned counsel for the State, however, has submitted that the case
 of committing murder by the appellant has been clearly established by
 cogent evidence adduced in the case. Being frustrated on account of his G
 heavy indebtedness, the appellant decided to kill his wife and thereafter to
 commit suicide so that both of them might not suffer humiliation in the
 society. Such contemplation has been clearly indicated in the letter written
 by him which was found at the spot of the murder immediately after the
 incident by an independent witness, namely, Dr. Sharma. It has been
 established that .tbe contents of the said letter unfolding his decision to kill H
    88                     SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.

A  the wife and then to commit suicide had been written by the appellant
   himself. Apart from the hand-writing expert's opinion, the High Court
   compared the said writing with the admitted writing of the appellant and
   had categorically found that on comparison it transpired that both the
   writings were written by the same hand. In the room where the said act of
   murder was committed, there was no outsider excepting the young
B. daughter and son of the deceased and accused/appellant. The son has
   deposed to the effect that when he woke up by the touch of the hand of
   his mother, he found the mother critically injured and the father was wiping
   out the blood. In the aforesaid facts, the accused had a duty to explain as
   to how the wife had suffered such injuries. The defence takei:i by the
C appeallant that when he came to the room from outside he found the wife
   critically injured and then he decided to commit suicide is completely
   belied by the very fact that the son had noted that the preparation for
   committing suicide had already been done. The learned counsel for the
   State has submitted that simply because the appellant had no bitter feeling
D against the wife, it cannot be held that there was no motive for him to
   murder the wife. It has been submitted by the learned counsel for the State
   that this is a case where the appellant lost the usual frame of mind because
   of serious indebtedness and decided to end his life by committing suicide
   after killing the wife so as to avoid humiliation in the society. Such decision
   might not have been taken by a man with normal frame but how a human
E mind reacts in s sensitive situation is very difficult to appreciate at times.
   He has submitted that the learned Sessions Judge and the High Court by
   indicating cogent ·reasons have accepted the pr-0secution case and in the
   facts of the case, no interference is called for in this appeal. He has
   submitted that the submission.of the learned counsel for the appellant that
F the case is governed by exception 5 to Section 300 l.P.C. should not be
    accepted. Such case runs completely counter to the defence tak~n by the
    appellant. There cannot be any case of implied consent of the wife to suffer
    the murderous injury. Such consent is bound to be established by sufficient
    direct evidence and there is no such evidence on the record. Hence, the
    contention should be rejected straightaway.
G
           After considedng the facts and circumstances of the case and the
     evidence adduced at the trial, it appears to us that the learned Sessions
     Judge and the High Court have correctly appreciated the evidence ad-
     duced in the case ai:id have come to the finding that· the husband had
H    planned to murder· the wife and in execution of the said plan had murdered
                      GYANCHANDJAINv. STATE[RAY,J.)                         89
     the wife and thereafter tried to commit suicide. In the facts of the case, A
     Section 73 of the Evidence Act has not been violated. That apart, the High
     Court has compared the writings in the letter found at the place of murder
     by Dr. Sharma with the admitted writing of the appellant and on com-
     parison had come to the finding that both the writings were by the same
     hand. Such letter indicates the motive for committing the said offences. B
     The submission of the learned counsel for the appellant that Exception 5
     to Section 300 1.P.C. is attracted in the facts of the case, is an argument in
     despair. It may be noted that exception 5 to Section 300 1.P.C. must receive
     a very strict and not a liberal interpretation and in applying the said
     exception the act alleged to be consented to or authorised by the victim
     must be considered with a very close scrutiny. In this connection, reference C
     may be made to an qld Full Bench decision of the Calcutta High Court in
     Queen Empress v. Nayamuddin and others, Indian Law Reports Calcutta
     Vol. XVIII 484. In our views, the learned counsel for the State is justified
     in his contention that consent by necessary implication should not be
     permitted to be raised by way of defence. The appellant at no point of time D
     had spoken about such consent and simply on account of the son not
     hearing any shriek or sound of agony, it cannot be held that the deceased
     wife had consented to or authorised the appellant to casue the murderous
     assault. We, therefore, find no reason to interfere with the order for
     conviction and sentence passed against the appellant. The appeal, there-
     fore, fails and is dismissed. If the appellant has been enlarged on bail, he E
     should be taken into custody to serve out the sentence.

     T.N.A.                                                 Appeal dismissed .




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