Judgment : ARUNACHALAM, J.: 1. Accused 1 in S.C.No.12 of 1984 on the file of the First Additional Sessions Judge, Madurai, is the appellant Chinnamuthan who was arrayed as accused 2 in the same Sessions Case and charged under Sec.201, I.P.C, was however acquitted by the learned trial Judge. 2. The appellant was charged under Sec.302, I.P.C, for having caused the death of his minor daughter Radha, by cutting her throat with a ‘pannai aruval’ M.O.5, on the night of 16.5.1983 at Vadakathianpatti village, under the mistaken impression that he was killing his wife Kachamall, examined as P.W.1. The trial Court found the appellant guilty of murder and sentenced him to life imprisonment. 3. The prosecution case will have to be narrated in brief, for the disposal of this appeal. P.W.1 Kachammal had married the appellant ten years prior to the occurrence and had two male children and the female child deceased Radha, born out of this wedlock. Deceased Radha aged about nine years was the eldest child. The appellant, P.W.1 and their children were living at Vadakathianpatti village. P.W.2 Raju is the son of the second accused Chinnamuthan, who was acquitted. Accused 2, the junior paternal uncle neighbour of the appellant, was living along with his son P.W.2 and Vellaiammal P.W.3 (wife of P.W.2). Pandiammal, P.W.4, was also a resident of the same village living about 10 or 15 feet away from the house of the appellant. 4. The appellant had suspected illicit intimacy between his wife P.W.1 and Raju P.W.2. The appellant used to scold and chastise P.W.1 quite often in the fond hope that she would put an end to her amorous activities with P.W.2. P.W.1 appears to have persisted in her illicit relationship with P.W.2 and that was the animosity which had led to the unfortunate death of deceased Radha, whom the appellant had cut, under the mistaken impression that he was terminating the life of his wayward wife. 5. The prosecution would have it, through P.W.1 that on the night of the occurrence, the appellant was not available at his residence and had gone away to his land for watching the crops. 5. The prosecution would have it, through P.W.1 that on the night of the occurrence, the appellant was not available at his residence and had gone away to his land for watching the crops. P.W.1 who was not sleeping inside the house since it was sultry, had taken her bed outside and at or about 5 a.m., on the early hours of 17.5.1983, when she entered into her house she found her daughter Radha dead with her neck cut. She cried. Her cries attracted the neighbours who chose to bury the dead body of Radha even before the appellant could return home. 6. P.Ws.1 to 4 who were examined to speak about the appellant being the perpetrator of this grave crime, chose not to support the prosecution and hence were treated hostile. However, it has to be mentioned, that it was P.W.1 who had proceeded to Elumalai Police Station, situated five kilometres away from the scene of occurrence, to prefer the complaint Ex.P-25 before P.W.13, the Head Constable of the said police station. P.W.1 reached the police station at or about 4 P.M. on 17.5.1983 and her narration of the incident was recorded by P.W.13 in which her thumb impression was also obtained. Ex.P-25 statement of P.W.1 was registered as Crime No.78 of 1983 under Secs.302 and 201, I.P.C., P.W.13 forwarded copies of the express F.I.R. prepared to his superior officers and the Judicial II Class Magistrate; Usilampatti.‘ The original F.I.R. had been received by Court even at 7 P.M., on the same night. P.W.13 informed P.W.16 Jawaharlal, Inspector of Police, about the registration of this crime over the telephone. On the directions of P.W.16, P.W.13 proceeded to the burial ground where the deceased had been buried, along with two other Constables. 7. The sum and substances of the information laid before P.W.13 by P.W.1, to facilitate commencement of investigation is in material particulars as follows: “For over a year my husband has been suspecting my conduct and had been abusing me quite often. Once in a month at nighttime he used to call me for sex. I used to refuse stating that physical contacts were not necessary after the birth of three children. My husband used to abuse me, stating that I found sweetness in contacts with my paramour but not in enjoying sex with him. Once in a month at nighttime he used to call me for sex. I used to refuse stating that physical contacts were not necessary after the birth of three children. My husband used to abuse me, stating that I found sweetness in contacts with my paramour but not in enjoying sex with him. He also used to threaten that one day or other he would kill me and go to jail. Hoping that my husband would not act as he had threatened, I did not complain to anyone else. Six months prior to occurrence, my husband called me for intercourse and I refused. On that day he threatened to find out my paramour and kill him and me. I asked my husband not to unnecessarily hurl allegations at me. He kicked me resulting in an injury near my right eye. I complained to my Master Muthan and another Thangasamy. They told me that my husband had “TAMIL” Yesterday night he came home in the early hours of the morning. Since it was sultry inside the house I and my children were lying outside the house on the southern portion. My husband woke me up. I handed over to him the house keys. At that time he shouted that a man was running away and questioned me who it was by twisting my hand. 1 told my husband that I did not know. He threatened me to inform him, as to whom my paramour was. I swore on my children that I did not know anything about it. I took my children inside the house. My husband called me to share bed with him. I refused. I prepared “TAMIL” My husband was sitting without sleeping. After switching off the light, I took my bed near deceased Radha. The way in which my husband was staring at me created a sense of suspicion in me. My husband also took his bed a little later. The house was totally dark. I slowly slipped out of the house and sat outside. I heard the sound of the house-door being closed. I peeped through the window. Sometime later I heard the sound. “TAMIL” On hearing such noise, I brought to the scene of my neighbours P.W.2 and his wife P.W.3. All the three of us peeped through the window. We tapped at the door. My husband came out of the house with a ‘Pannai Aruval’. I peeped through the window. Sometime later I heard the sound. “TAMIL” On hearing such noise, I brought to the scene of my neighbours P.W.2 and his wife P.W.3. All the three of us peeped through the window. We tapped at the door. My husband came out of the house with a ‘Pannai Aruval’. On seeing me he shouted “TAMIL” and came towards me. P.Ws.2 and 3 prevented my husband reaching me. A little later my husband fell down and cried that he had killed his daughter by cutting her neck under the mistaken impression that he was killing me. Subsequently, he left northwards along with the weapon, I went inside and saw my daughter Radha dead. I shouted and cried. P.W.4, A. and others came. A-2 suggested that before dawn Radha should be buried. All who had assembled took away the body of Radha. I followed the group. Near Kannimaar Sunai Odai, in the burial ground, the body of Radha was buried by digging a pit. I cleaned the house with cow-dung. Fearing that one day or the other, the crime would come to light, I have come to the police station and given this statement.” 8. Though P.W.1 had given a detailed F.I.R. in the witness box, she has chosen to deny her authorship of this document. Though at one particular stage in her evidence, she accepted that her thumb impression was obtained in the statement narrated by P.W.2 later she had chosen to deny her knowledge of the contents of this document. The only fact that remains in her evidence is her admission of her illicit intimacy with P.W.2, though P.W.2 himself has chosen to deny such relationship. Since P.W.1 has been treated hostile, no probative value can be attached to her complaint Ex.P-25. All that remains as far as the F.I.R. is concerned, is the conduct of P.W.1 in having proceeded to the police station, and the evidence of P.W.13 of his having recorded this statement Ex.P-25 to the narration of P.W.1. 9. Let us now revert back to further facts placed before court by the prosecution. P.W.16. Inspector of Police, reached the scene of occurrence at 6.20 P.M. on 17.5.1983. At the scene, he prepared Ex.P-1 observation mahazar and Ex.P-29 scene sketch in the presence of P.W.5. 9. Let us now revert back to further facts placed before court by the prosecution. P.W.16. Inspector of Police, reached the scene of occurrence at 6.20 P.M. on 17.5.1983. At the scene, he prepared Ex.P-1 observation mahazar and Ex.P-29 scene sketch in the presence of P.W.5. He sent communication to P.W.8, the Tahsildar of Usilampetti, to come to the scene to exhume the dead body. P.W.8 in his turn sent intimation to P.W.10 Dr.Pancharathinam to go over to the burial ground, to conduct post mortem on the dead body of Radha to-be dug out. P.W.16 was present along with P.Ws.8 and 10 at the burial ground on the morning of 18.5.1983. In the presence of P.W.8 Tahsildar, P.W.7 Talayari and others dug the pit, and removed the dead body of deceased Radha. P. W.9 Varadarajan took photographs of the dead body inside the pit, as well as the pit and the surrounding places. Exs.P-10, P-12, P-14, and P-16 are the photographs, while Exs.P-11, P-13, P-15, and P-17are the corresponding negatives. P.W.8 conducted inquest over the corpse of Radha and Ex.P-8 is the inquest report. Thereafter P. W.8 requested P.W.10 Dr.Pancharathinam to conduct post-mortem. Meanwhile, P.W.16 seized M.O.6 bloodstained earth, and M.O.7 sample earth from the scene, under mahazar Ex.P-2. He also prepared Ex.P-10 the observation mahazar relating to the place of burial of the deceased. Ex.P-31 is the sketch prepared at the burial ground. He also seized from the burial ground M.O.2, the dhoti which had been used to cover the dead body, M.O.1 the petticoat, M.O.3 bloodstained earth and M.O.4 sample earth under mahazar Ex.P-32. 10. P.W.10 Dr.Pancharathinam conducted autopsy on the dead body of Radha at the spot at 1.15 p.m. on 18.5.1983. The body was that of a well nourished female aged about nine years. Eye balls were protruding jaws were clenched. Rigor mortis was present in lower limbs while it had passed off in upper limbs. There was discharge of blood from nose, left ear and mouth. Externally, P.W.10 noticed cut injury on the anterior aspect of the neck, at the level of upper border of thyroid cartilage extending towards left side, crossing sternomastoid muscle to the level of mastoid process, 12 cm × 3 cm at thyroid cartilage and sternomastoid muscle, of 1 cm depth at mastoid processes. Internally, the left common carotid artery and vein were found cut at the level of thyroid cartilage. Internally, the left common carotid artery and vein were found cut at the level of thyroid cartilage. Hyoid bone was broken. The body of the hyoid bone was found cut and severed from thyroid cartilege. In the opinion of the doctor, the deceased would appear to have died instantaneously due to haemorrhages shock by cut of carotid artery about 80 to 86 hours prior to commencement of autopsy. The injuries noticed on the deceased could have been caused by a cut with a weapon like M.O.1. The injuries were necessarily fatal. Ex.P-20 is the post-mortem certificate. 11. P.W.16 arrested the appellant at 2 a.m. on 22.5.1983 on the road leading to Elumalai from Usilampatti, in the presence of P. W.6. The appellant volunteered a statement, the admissible portion of which is Ex.P-33. In pursuance of his statement, the appellant took P.W.16 and his party to the eastern portion of Kannimaar sunai Odai and from a karuvel bush produced M.O.5 Pannai Aruval, which was seized under a mahazar Ex.P-35. M.O.8, the shorts worn by the appellant, was seized under mahazar Ex.P-34. The material objects seized during investigation were forwarded to the Laboratory for chemical analysis, through court. Exs.P-23 and P-24 are the reports of the Chemical Analyst and the serologist respectively. M.Os.1,2 and 5 were found to contain human blood, though no grouping was possible. 12. On a requisition from the Investigating Agency, P.W.15, Judicial II Class Magistrate, Tirumangalam, directed production of the appellant before him on 8.6.1983, for the ostensible purpose of recording his confessional statement. On 8.6.1983 when the appellant was produced P.W.15 gave the usual warnings contemplated in law vouchsafed by Ex.P-26. He gave time for reflection to the appellant and directed his production on the next day. On 9.6.1983, P.W.15, on being satisfied that the appellant wanted to confess voluntarily, recorded his confessional statement Ex.P-27. Ex.P-28 is the certificate of P.W.15 appended to Ex.P-27. In Ex.P-27, the appellant had clearly narrated all that had happened on the fateful night, inclusive of his having seen his wife P.W.1 and P.W.2 together, in pari delicts, his approach to his wife P.W.1 to have sexual contacts, her refusal and a little later his cutting the neck of his daughter under the mistaken impression that he was killing his wife. After completing investigation, P.W.16 filed the final report against the appellant and Accused 2 before the Committal Court 20.8.1983. 13. After completing investigation, P.W.16 filed the final report against the appellant and Accused 2 before the Committal Court 20.8.1983. 13. When the appellant was questioned under Sec.313, Cr.P.C. by the learned trial Judge, to explain the incriminating circumstances appearing against him in evidence, he chose to deny hid complicity in the crime. He went on to add that on the fateful night, he was away in his garden land, keeping watch. In the early hours of the morning, two boys came and informed him that his daughter had been found dead. On reaching home, he found his wife P.W.1 in tears. He was also in great distress. The police came to the scene, arrested him and his wife P.W.1 and took them both to the Elumalai Police Station. He did not voluntarily confess before P.W.15, but due to fear and pressure by the police, he was constrained to confess to the crime. No defence witness was examined, but the appellant chose to mark the statement of P.W.1 before the Magistrate as Ex.D-1 after confronting her in the witness box. 14. The learned trial Judge, on an appreciation of the oral and documentary evidence, found that the guilt of the appellant had been established beyond doubt and chose to deal with the appellant in the manner indicated earlier. 15. The facts narrated clearly indicate the unfortunate circumstances under which minor Radha breathed her last. The appellant had no animosity against his own daughter. He had only a grievance against his wife, initially suspecting illicit relationship between her and P.W.2, and later on the fateful night having seen them both together, shortly prior to occurrence. Though P.W.2 had denied having had illicit relationship with P.W.1, in spite of her hostility, P.W.1 has admitted that she had illicit relationship with P.W.2. Ex.P-27, the judicial confession of the appellant, also details the amorous activities between P.W.1 and P.W.2, and his having seen them both together on the occurrence night. It can therefore be safely taken that the appellant had not only a motive to do away with P.W.1, but on the occurrence night, was so suddenly and gravely provoked to do away with P.W.1 immediately, while in the grip of such grave and sudden provocation. 16. It can therefore be safely taken that the appellant had not only a motive to do away with P.W.1, but on the occurrence night, was so suddenly and gravely provoked to do away with P.W.1 immediately, while in the grip of such grave and sudden provocation. 16. Unfortunately for the prosecution, the substantive evidence sought to be placed before court through P.W.1 to 4 had to be treated as non-est, in view of the hostility shown by these ‘set of witnesses. Probably, if the appellant had not confessed and we had not been satisfied that the confession of the appellant was voluntary, there would have been practically no evidence to connect the appellant with the crime. However, we are satisfied that the appellant had voluntarily given his statement Ex.P-27 before P.W.15 the Judicial II Class Magistrate, Tirumangalam. P.W.15 had administered the necessary warnings to the appellant both on 8.6.1983 and on 9.6.1983 after the appellant had sufficient time to reflect, before he ventured to confess. The learned Magistrate had definitely told the appellant that he would not be taken as an approver and the confession if any made by him was likely to be used against him in the trial. In spite of it, the appellant had expressed his desire to confess to the crime. The wealth of details given by him in the confessional statement also proclaim, that it must have been made voluntarily by the appellant. It will be better to extract the confession of the appellant. When translated into English, it reads as follows: “My name is Andi alias Thothandi. Muthan is my fathers name. My wife Kachammal P.W.1 illicitly joined with Raju P.W.2. I noticed my wife P.W.1 and P.W.2 Raju sharing bed together inside Rajus house and coming out later. I questioned my wife as to why she slept with P.W.2. She replied that there was no breeze inside our house and that was why she took her bed in the house of P.W.2.1 brought my wife back to my house. I asked her to prepare “TAMIL” After she prepared “TAMIL” I called her to have sexual relationship, with me. She refused. I was so angry that I went to kill her. When I caught hold of her hand to make love to her, she escaped my clutches. To my knowledge, I did not see her go out of the house. I closed the door. She refused. I was so angry that I went to kill her. When I caught hold of her hand to make love to her, she escaped my clutches. To my knowledge, I did not see her go out of the house. I closed the door. The time would be about 1 a.m. It was dark inside. I put my hand in the place where she used to take her bed. I caught hold of her head. Thinking that it was the head of my wife I cut in with a ‘Pannai Aruval’. Later I realised, that on the mistaken impression I had cut the throat of my daughter Radha, aged about nine years. It was only later that I realised, that my wife had gone out of the house, even earlier. She had gathered a crowd outside the house. I opened the door and exclaimed on seeing my wife, that thinking that I had killed her, I had -terminated the life of daughter Radha. I attempted to attack my wife. P.W.2 caught hold of me. P.W.1 escaped “My wrath”. In depression I went to my garden land and sat near the ‘odai’ I recapitulated in a state of shock my having caused the death of my daughter by mistake. I returned home. Even before then, the body of my daughter had been buried. I again went and sat near the ‘odai’. On information being passed on to the police, through the villagers, they caught hold of me. Actually I was produced before the police, in the village, by the villagers, who directed me to surrender.” The statement of the appellant is so clear, categoric and detailed as to all that had happened on that unfortunate night. We are totally prepared to accept the confession of the appellant as true and voluntary. 17. Though the confession of the appellant had been retracted, we do not find any impediment in acting upon Ex.P-27, when we are able to find general corroboration of this judicial confession, from the other evidence on record, relatable to the crime. As far as the illicit intimacy between P.W.1 and P.W.2 is concerned, we have the positive evidence of P.W.1, in the witness box. To a limited extent, since P.W.1 had been confronted with Ex.P-25, we can also rely upon such material brought out in record from the evidence of P.W.1, based on Ex.P-25. As far as the illicit intimacy between P.W.1 and P.W.2 is concerned, we have the positive evidence of P.W.1, in the witness box. To a limited extent, since P.W.1 had been confronted with Ex.P-25, we can also rely upon such material brought out in record from the evidence of P.W.1, based on Ex.P-25. A word about Ex.D-1 at this stage. Ex.D-1 has no probative value, especially when P.W.1 has not supported the prosecution. Ex.D-1 recorded on 9.8.1983 is more in line with her hostile version. Ex.D-1 does not in any way help the appellant. Though P.W.1 has been treated as hostile, in law, it is permissible to accept a part of her evidence, relating to her illicit intimacy with P.W.2, to have the truth of the judicial confession affirmed. We also have the medical evidence furnished by P.W.10,of his having noticed a cut injury on the anterior aspect of the deceased at the neck level. The medical evidence again corroborates the judicial confession as to the manner in which the deceased had met with her death due to the act of the appellant. Further, the conduct of the appellant on seeing his wife on his coming out of the house and realising his mistake, as found in the judicial confession, gets corroborated by the evidence of P.W.3. Though P.W.3 had also treated as hostile, she has admitted of having stated before the police that the appellant on coming out and seeing his wife shouted that he had cut the neck of his daughter, thinking as though it was her neck. She has also affirmed having stated before the police about the appellant having run away with the ‘Pannai Aruval’. The confession of the appellant about the body of his daughter having been buried has also been corroborated by the evidence of P. Ws.5,7,8,10 and 16. Considering in total, the facts and circumstances of the cases, we conclude that the appellant is the offender. 18. The next question to be considered is the nature of offence that the appellant could be stated to have committed. If in fact there had been no mistaken identity, and the appellant had killed his wife P. W.1, we would have had no hesitation in applying Exception I to Sec.300, I.P.C. and finding the appellant guilty under Sec.304, Part I, I.P.C. In such an event, we could not have found the appellant guilty of murder. 19. If in fact there had been no mistaken identity, and the appellant had killed his wife P. W.1, we would have had no hesitation in applying Exception I to Sec.300, I.P.C. and finding the appellant guilty under Sec.304, Part I, I.P.C. In such an event, we could not have found the appellant guilty of murder. 19. We have now to decide as to what would be the offence committed by the appellant, for having killed his daughter mistakenly, presuming the victim to be his wife. Sec.301, I.P.C. incorporates the doctrine which is christened, ‘Transfer of malice’. This transfer of malice is the transmigration of motive. In other words if the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out. Courts have observed as hereunder: “It is common knowledge that the man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act and has that which the Judges call general malice, and that is enough.” In other words, there will be no difference, while the injury intended for one falls on another, by accident or mistake. If the appellant has caused the death of his wife and Exception I to Sec.300, I.P.C. could not have been applied, the same malice which he had towards his wife would be deemed to have been transferred or transmigrated to the killing of his daughter. Glanville Williams in his “Textbook of Criminal Law”, II Edition, 1983, while dealing with general and transferred intentions has stated as follows: “If the defendant did not aim at anyone in particular, he is still liable on the basis of what is sometimes called ‘general malice’ -better, ‘general intention’. The most obvious example is the terrorist ‘bomber’, though of course his crime is much graver than assault. An intention to hit anyone within range is always, in logic and law an intention to hit the particular person who is hit. Another possibility is that D aims at VI but accidentally hits V2. This is an instance of what is traditionally called ‘transferred malice’ - more precisely, transferred intention. An intention to hit anyone within range is always, in logic and law an intention to hit the particular person who is hit. Another possibility is that D aims at VI but accidentally hits V2. This is an instance of what is traditionally called ‘transferred malice’ - more precisely, transferred intention. Although D aimed to hit VI, since his blow took effect on V2 it is deemed at common law to be an intentional attack upon V2. The rule is that D is guilty to the same extent as if he had intended to injure the person whom he actually did injure. The intention in respect of one victim is transferred by a legal fiction to another One other point; defences are transferred with the intention. So if D was acting in self-defence against VI, he will be deemed to have been acting in self-defence against V2.” 20. In this background, a look at Exception I to Sec.300, I.P.C. along with illustrations a and b, appears very useful: Exception I reads as hereunder: “Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.” This exception takes note of the death of any other person by mistake or accident whilst the offender was deprived of the power of self-control by grave and sudden provocation. Illustrations a and b are extracted hereunder: “a. A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Zs child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation. B. Y, gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder but merely culpable homicide.” The case on hand will certainly be covered by Illustration ‘b’. 21. A kills Z. Here A has not committed murder but merely culpable homicide.” The case on hand will certainly be covered by Illustration ‘b’. 21. We are satisfied that the appellant, who had committed the crime, whilst deprived of the power of self-control on grave and sudden provocation caused by his wife P.W.1, must be deemed to have been acting under such provocation, while he had caused the death of his miner daughter by mistake. Exception I to Sec.300, I.P.C. taken along with Sec.301, I.P.C. will lead to setting aside of the conviction of the appellant under Sec.302, I.P.C. and instead finding him guilty under Sec.304, Part I, I.P.C. We, accordingly, alter his conviction. 22. As far as the sentence to be imposed on the modified conviction is concerned, it was brought to our notice by learned counsel for the appellant, that the appellant is still in jail and had not been released on bail. If that be so, the appellant has spent more than six years in jail. The period already undergone by the appellant would be sufficient to meet the ends of justice. 23. This appeal is allowed in part in the manner indicated above. The appellant shall be set at liberty forthwith, unless he is required in any other case.