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2015 DIGILAW 372 (TRI)

Janardhan Nath v. State of Tripura

2015-06-16

S.TALAPATRA, U.B.SAHA

body2015
JUDGMENT U.B. SAHA, J. 1. The accused-appellant by way of preferring this appeal challenged the judgment dated 26.4.2013 passed by the learned Sessions Judge, South Tripura, Udaipur in ST 57 (ST/S) 2007 convicting him under Section 302 IPC for commission of offence of murder and sentencing him to suffer RI for life and to pay a fine of Rs. 10,000/- to suffer SI for six months. 2. It is to be stated here that the accused-appellant earlier also approached this Court in Criminal Appeal (J) No. 24 of 2009 challenging the judgment and order dated 5.5.2008 in the aforesaid sessions trial wherein the learned Sessions Judge convicted him under Section 302 IPC for commission of offence of murder and sentenced him to suffer RI for life and to pay a fine of Rs. 2,000/- to payment of fine money, to undergo further RI for one year. 3. This Court after hearing the learned counsel for the parties in Criminal Appeal (J) No. 24 of 2009 set aside the judgment of the learned Sessions Judge dated 5.5.2008 as well as the statements recorded earlier under Section 313 Cr. P.C. and remitted the matter back to the trial court directing it to examine the accused-appellant afresh under Section 313 Cr. P.C. by way of putting all the circumstances appearing against him for enabling him to explain the incriminating circumstances including his defence case providing him all opportunities to adduce evidence, if any, if he so wishes, in his defence. Thereafter, the learned Sessions Judge examined the accused-appellant under Section 313 Cr. P.C. giving him all opportunities and passed the impugned judgment. 4. Heard Mr. Ratan Datta, learned counsel for the appellant as well as Mr. R.C. Debnath, learned APP for the State. 5. Brief facts of the case are as under: The appellant Janardhan is in jail for committing murder of his wife Ratna Nath since his date of conviction i.e. 5.5.2008 and challenges the impugned judgment. 6. According to the prosecution, on 7.5.2007 at about 7 a.m. the wife of the appellant, Ratna was killed by the appellant in his house at Harinarayanpur with dao, a sharp cutting weapon, on suspicion that she had an illicit relation with his younger brother (PW-8). After commission of offence, the appellant fled away from his house with the said dao by which he had killed his wife. After commission of offence, the appellant fled away from his house with the said dao by which he had killed his wife. Thereafter, he surrendered before the duty officer, (PW-4) of the Sabroom P.S. 7. Prior to that incident, the police received an information from one Rabindra Das (PW-14) that the accused/appellant was trying to kill his wife and creating disturbances in the place of occurrence and PW-14 sought for police help. Accordingly, GD Entry No. 191 was made and on the strength of the said GD Entry as endorsed to him, PW-21 Sri Jatindra Ch. Das rushed to the place of occurrence wherein he found that there was a deep cut injury in the neck of the deceased and she was lying dead on the sty of the house of the accused/appellant. The said police officer (PW-21) then received a written complaint from one Dhananjoy Nath (PW-16) and registered the same as FIR No. 14 of 2007 of Sabroom P.S. under Section 302 of the IPC against the accused/appellant. 8. The I.O. prepared the inquest report of the deceased Ratna and thereafter sent the dead body to the Sabroom Hospital for post mortem examination. Subsequently, on return to the police station from the place of occurrence, he found the accused/appellant in the police station detained by the duty officer of the aforesaid police station as surrendered along with a dao and ultimately arrested the accused/appellant in connection with the aforesaid police case and sent the dao which was seized by PW-4, Sri Samir Das, Sub-Inspector of Police of the said police station and the blood sample of the deceased collected by him to the Tripura Forensic Science Laboratory, Agartala. The I.O. also sent the accused/appellant to the Sabroom hospital to know as to whether the accused is mentally fit or not. Thereafter, the accused/appellant was produced before the learned Sub-divisional Judicial Magistrate for recording the statement under Section 164(1) of the Cr. PC as the accused/appellant confessed his guilt before PW-4. 9. After completion of the investigation, the investigating officer submitted the charge-sheet against the accused/appellant before the learned Sub-divisional Judicial Magistrate, Sabroom who in his turn committed the case before the learned Sessions Judge, South Tripura, Udaipur being the case is exclusively triable by the Court of Sessions. 10. PC as the accused/appellant confessed his guilt before PW-4. 9. After completion of the investigation, the investigating officer submitted the charge-sheet against the accused/appellant before the learned Sub-divisional Judicial Magistrate, Sabroom who in his turn committed the case before the learned Sessions Judge, South Tripura, Udaipur being the case is exclusively triable by the Court of Sessions. 10. On receipt of the case records, the learned Sessions Judge framed the charge against the accused/appellant under Section 302 of the IPC and the same was read over and explained to the accused/appellant who in his turn pleaded not guilty. The charge framed by the learned Sessions Judge is as under:- "That, you on 7.5.2007 A.D. at about 07:00 hours at Harinarayanpur (B.K. Palli G.P.) under P.S. Sabroom, South Tripura District, committed murder by causing death of Ratna Nath (wife of you) by sharp cutting dao and you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried on the said charge by this Court." 11. To establish the charge against the accused-appellant, the prosecution produced and examined as many as 21 witnesses including the official witness and also placed certain documents including post mortem report as well as Tripura State Forensic Science Laboratory Report which were exhibited. 12. The learned trial Court on completion of the examination of the witnesses also examined the accused/appellant under Section 313, Cr. PC and as the appellant declined to adduce any evidence in support of his defence, the trial Court finally on consideration of the evidence on record and also hearing the learned counsel for the parties convicted the accused/appellant under Section 302, IPC and sentenced him as stated supra. 13. Before discussing the evidence of the prosecution witnesses, it would be proper to analyze the submission of the learned counsel appearing for the parties. 14. Mr. Dutta, learned counsel appearing for the appellant, while taking us through the evidence on record has submitted that there is no substantive evidence in support of the prosecution version that the appellant had caused the death of his deceased wife. He further submits that the learned trial court convicted the accused-appellant mainly relying upon the alleged confessional statement of the accused which he has retracted at the time of his examination under Section 313 Cr. P.C. 15. He further submits that the learned trial court convicted the accused-appellant mainly relying upon the alleged confessional statement of the accused which he has retracted at the time of his examination under Section 313 Cr. P.C. 15. He has further submitted that the confessional statement before the duty officer, PW-4 while surrendering himself with the Dao is not legal evidence as the same is hit by Section 25 and 26 of the Indian Evidence Act and the confessional statement recorded under Section 164 Cr. P.C. is also not trustworthy as the accused-appellant was not in a fit state of mind to make the confessional statement (Exhibit-6, 6/1 and 6/2 series). In support of his aforesaid contention, he has placed reliance on a judgment of the Gauhati High Court in Bijoy Majhi vs. State of Assam, (2012) 4 GLR 1. 16. He again submitted that it is now settled that an extra judicial confession by its very nature is a weak type of evidence and requires appreciation with a great deal of care and caution and if the extra judicial confession is surrounded by suspicious circumstances, then the same should not be relied upon. In the instant case, the alleged confessional statement before PW 4 should be disbelieved as the said witness is a chance witness. 17. He further contended that the alleged weapon of offence, i.e. the Dao, though seized but was not shown to the accused and the forensic expert was not examined but the report was considered by the Court. In support of his aforesaid contention, he has placed reliance on a decision of the Apex Court in Varun Chaudhry vs. State of Rajasthan, AIR 2011 SC 72 , particularly paragraph 21 of the said decision which reads as follows:- “21. So far as identification of the motor cycle is concerned, PW-6 merely stated that he saw one digit of registration number of the motor cycle, which was 9. In our opinion, on the basis of one digit of the registered number, it would be dangerous to believe that the motor cycle recovered, which also had digit 9 in its number, was used in the offence. In our opinion, on such a scanty evidence it cannot be said that the accused had been identified or the motor cycle which had been recovered was the one which was used by the accused at the time of the offence.” 18. In our opinion, on such a scanty evidence it cannot be said that the accused had been identified or the motor cycle which had been recovered was the one which was used by the accused at the time of the offence.” 18. He has also contended that even if the prosecution case is believed on the basis of the evidence adduced, then also the conviction under Section 302 IPC cannot be maintained as there was a quarrel between his wife and him regarding illicit relationship of his wife with his younger brother just after leaving of the panchayat people, and he entered into the kitchen wherefrom he took the Dao (sharp edged weapon), dragged his wife and struck a hacking blow on her neck with the said Dao. Thus, there was no intention to kill her and he is entitled to the benefit of Exception 1 to Section 300 IPC. More so, at best he would be guilty of an offence under Section 304 Part 1. 19. In support of his aforesaid contention he has placed reliance on a judgment of the Apex Court in State of U.P. vs. Lakhmi, wherein the Apex Court considering the fact of that case held as under: “20. There 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-tampered 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. 21. We are, therefore, inclined to afford to the respondent accused benefit of Exception 1 to Section 300 IPC. As the corollary, we find the respondent guilty only under Section 304 (Part I), IPC.” 20. Mr. Debnath, learned APP while supporting the judgment of the trial court and countering the submissions of Mr. Dutta would contend that after the remand of the matter the accused was examined under Section 313 Cr. P.C. afresh and in his statement he has denied the recording of confessional statement under Section 164 Cr. Mr. Debnath, learned APP while supporting the judgment of the trial court and countering the submissions of Mr. Dutta would contend that after the remand of the matter the accused was examined under Section 313 Cr. P.C. afresh and in his statement he has denied the recording of confessional statement under Section 164 Cr. P.C. but PW 11, the Sub-Divisional Judicial Magistrate in his deposition specifically stated that he has recorded the statement of the accused-appellant following all the legal formalities and confirmed that the accused-appellant had expressed his willingness even after knowing that he would give confessional statement voluntarily and accordingly, he had reduced the said statement of the accused-appellant in writing wherein the accused-appellant confessed that he had killed his wife and the said witness was not cross-examined. Thus, the statement of PW 11 cannot be disbelieved. He further submitted that forensic report of the Tripura State Forensic Science Laboratory is admissible evidence. 21. He again submits that the extra judicial confession before PW-5, Dr. Bibekananda Roy, who has done the postmortem examination and before PW-14, Shri Rabindra Kumar Das, as well as PW-11 Shri Pankaj Kumar Dutta are voluntary in nature and made in a fit state of mind. Thus, on the basis of the said confessional statements, conviction can be made and the instant case, the learned trial judge rightly relied upon those statements and taking note of the other circumstantial evidence convicted the accused-appellant as those statements did not suffer from any legal infirmity. 22. In support of his aforesaid contention, he has placed reliance in Darshan Lal vs. State of Jammu and Kashmir, (1925) 4 SCC 33 wherein the Apex Court noted: "5. The only evidence to connect the accused with the death of his wife are his extra judicial confessions. The High Court has very properly left out of consideration the confession made by the appellant to his commanding officer and the Inspector but it has relied upon the confession made by the appellant to his wife's uncle and cousin. The wife's uncle has stated that he told the appellant that what had happened and he should tell the truth about his wife and that on this accused told him that he had killed his wife with a knife and thereafter thrown her body in the river. To the same effect is the statement of his son. The wife's uncle has stated that he told the appellant that what had happened and he should tell the truth about his wife and that on this accused told him that he had killed his wife with a knife and thereafter thrown her body in the river. To the same effect is the statement of his son. We agree with the High Court that these two persons cannot be said to be persons in authority and the confession made by the appellant does not suffer from any legal infirmity. If that confession is reliable the conviction of the appellant has to be upheld. We are of opinion that this confession is reliable." 23. He has further contended that as the information entered into the General Diary was not relating to cognizable offence, it cannot be said that the subsequent information lodged by PW-16 is hit by Section 162 Cr. P.C. and by this time it is also settled that even if the person who lodged the first information report is not examined, then also the court can convict the accused on the basis of other evidence led by the prosecution subject to the same is reliable. In the instant case, even if the evidence of PW-16 is kept aside, then also on the basis of the other evidence as available, the order of conviction and sentence passed by the learned trial court can be maintained. 24. In support of his aforesaid contention he has placed reliance on the decision of the Apex Court in Krishna Mochi and Others vs. State of Biahr, (2002) 6 SCC 81 wherein the Apex Court noted that:- "In recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. A witness may not stand the test of cross-examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful crossexaminer and at times under the stress of cross examination, certain answers are snatched from him." 25. In the said judgment, while considering the submission of the learned counsel for the appellant that due to non-examination of the informant, the First Information Report cannot be used as a substantive piece of evidence inasmuch as on this ground as well the appellants are entitled to an order of acquittal, the Apex Court held that such submission is totally misconceived and even if the first information report is not proved, it would not be a ground for acquittal as the case would depend upon the evidence led by the prosecution. 26. Now let us discuss the evidence of the prosecution witnesses. Out of the aforesaid 21 witnesses, PW-1 Shri Jutan Debbarma and PW-2 Shri Satya Ram Debbarma are the seizure witnesses relating to the wearing apparels. PW-3 Shri Tanu Barman is also the seizure witness relating to the wearing apparels of the deceased, thus it is not necessary to discuss their evidence in detail. 27. PW-4, Sri Samir Das, a Sub-Inspector of police of Sabroom Police station before whom the accused/appellant surrendered with a blood stained dao and made confession regarding the murder of his wife and thereafter, made GD entry regarding the said statement of the accused appellant and seized the weapon of commission of murder and also wearing apparels of the accused appellant preparing the seizure list wherein the accused appellant put his signature. 28. PW-5, Dr. Bibekananda Roy who was the medical officer of Sabroom Sub-Divisional Hospital at the relevant time and had conducted the postmortem examination over the dead body of the deceased along with one Dr. U.K. Das and Dr. Narayan Chandra Ghosh (PW-18) who found the following injuries over the dead body of the deceased. 28. PW-5, Dr. Bibekananda Roy who was the medical officer of Sabroom Sub-Divisional Hospital at the relevant time and had conducted the postmortem examination over the dead body of the deceased along with one Dr. U.K. Das and Dr. Narayan Chandra Ghosh (PW-18) who found the following injuries over the dead body of the deceased. (1) Chop wound through and through encircling the neck from left mastoid bone, the posterior, lateral and anterior aspect of the neck, below the midpoint of left mandible. The margin of the wound is evarted. The cutting the structure of neck as spinal cord, vertebrae of 4th and 5th cervical. Catotic arteries, jugolar veins, larynx, oesophagus through and through. (2) Incised wound over the top of left shoulder, size 4" x ½" x ½." (3) Incised wound ventral support of the left forearm over wrist, size 1½" x ½" x ½." 29. In his evidence, this witness also stated that according to their opinion, the cause of death of the deceased was because of sustaining chop wound due to massive haemorrhage as well as chop of head, the vital structure of the body. He also confirmed that the injuries were caused by sharp cutting weapon and the said injuries were homicidal in nature and the wounds were antimortem. This witness on seeing the dao (Ext. M.O. 1) stated that the same could be used in the commission of offence of murder of the deceased. He also reiterated that on the same day, the accused/appellant was produced before him by the police for examining the mental and physical status of the accused/appellant and accordingly, he examined and found that the accused/appellant was both physically and mentally fit and was also of sound mind on the relevant date and time. He also identified the postmortem report (Exbt. 4) and his signature therein marked as Exbt. 4/1 and also identified the signature of Dr. U.K. Das and Dr. N.C. Ghosh as Exbt. 4/2 and Exbt. 4/3. 30. He also identified the postmortem report (Exbt. 4) and his signature therein marked as Exbt. 4/1 and also identified the signature of Dr. U.K. Das and Dr. N.C. Ghosh as Exbt. 4/2 and Exbt. 4/3. 30. In his cross, this witness categorically admitted that on his query the accused/ appellant had stated to him that he had killed his wife as she had illicit relation with his younger brother and he further stated that the accused/appellant had also stated to him that he had asked his wife not to commit such offence, but as she did not rectify herself and on the previous night of the commission of murder, he had seen that his wife herself involved with illicit relation with his brother, he could not control himself and had committed murder of his deceased wife. 31. PW-6, Sri Golakchand Tripura, a constable of police in the Sabroom Police Station, escorted the dead body of the deceased to the Sabroom hospital till the postmortem examination was over and thereafter handed over the dead body to the relatives of the deceased. He is also a witness of wearing apparels seized by PW-4. 32. PW-7, Smt. Radharani Debnath, the mother of deceased, has stated that her deceased daughter was killed by the accused/appellant within 2½ months of her marriage. This witness also identified the accused/appellant in the dock. The defence did not cross-examine her. 33. PW-8, Chakradhan Nath, is the younger brother of the accused/appellant who has stated that the deceased was his sister-in-law who was killed on 7.5.2007 by his elder brother, the accused/appellant, chopping her head, but he was not present in the house at the time of occurrence. In his cross, he denied the suggestion made by the prosecution that he had an illicit relation with the victim though he stated that there was village baithak regarding his illicit relation with the deceased. He further stated that he had enmity with his elder brother, the accused/appellant. 34. PW-9, Bina Nath, wife of PW-8 and sister-in-law of the deceased, in her evidence, has stated that the deceased was killed on 7.5.2007 at the early morning and at that time, she was present in their house and the accused was her next door neighbour. He further stated that he had enmity with his elder brother, the accused/appellant. 34. PW-9, Bina Nath, wife of PW-8 and sister-in-law of the deceased, in her evidence, has stated that the deceased was killed on 7.5.2007 at the early morning and at that time, she was present in their house and the accused was her next door neighbour. She also confirmed that she had seen the body of the deceased and her head was chopped and she had not found the accused/appellant in the place of occurrence. Subsequently, she came to know that the accused/appellant had gone to the police station. In her cross, she has stated that the accused/appellant used to tell everybody that her husband had an illicit relation with the deceased, the wife of the accused/appellant and she also admitted that there held a village bhaitak on the issue of illicit relation between her husband and the deceased. She categorically said that after the village bhaitak, they had no relation with the accused/appellant. 35. PW-10, Uttam Majumder, is a hearsay witness who heard from the mother of the deceased that the accused/appellant, her son-in-law, had killed her daughter, the deceased. 36. PW-11, Sri Pankaj Kumar Dutta, the Sub-Divisional Judicial Magistrate, Sabroom who recorded the confessional statement of the accused/appellant under Section 164(1) of the Cr. P.C. has stated that the accused/appellant was produced before him by the Warden and accordingly, he recorded the statement of the accused/appellant following all legal formalities and confirmed that the accused/appellant had expressed his willingness even after caution that he would give confessional statement voluntarily to him and accordingly, he had reduced the said statement of the accused/appellant into writing. He identified the confessional statement of the accused/appellant (Exbt. 6) and his signature over the same marked as (Exbt. 6/1). He further confirmed that the confessional statement was read over and explained to the accused/appellant who in his turn put his signature on the statement stating that his statement was recorded correctly. The defence did not cross-examine this witness. As such, the evidence of this witness remained unshaken. 37. PW-12, Sri Dipak Das, was the In-charge of the Subroom P.S. on 7.5.2007 who in his evidence stated that on receipt of the written complaint from Dhananjoy Nath (PW-16), he had registered the police case against the accused/appellant under Section 302, IPC and endorsed the case to PW-21 for investigation. As such, the evidence of this witness remained unshaken. 37. PW-12, Sri Dipak Das, was the In-charge of the Subroom P.S. on 7.5.2007 who in his evidence stated that on receipt of the written complaint from Dhananjoy Nath (PW-16), he had registered the police case against the accused/appellant under Section 302, IPC and endorsed the case to PW-21 for investigation. He has identified his signature over the FIR (Ext. 7/1) and also his endorsement over the FIR which was marked as Ext. 8/1. The defence did not cross-examine this witness. 38. PW-13, Sri Bhakta Tripura, was a Daily Rated Worker in the Sabroom P.S. on 7.5.2007 who witnessed the seizure of blood stained dao which was seized in his presence along with wearing apparels of the accused/appellant and he has identified his signature over the seizure list (Ext. 3/3) and also identified the Ext. M.O.I. i.e. the seized dao and wearing apparels. The defence did not cross-examine this witness. 39. PW-14, Rabindra Kumar Das, is a star witness before whom the accused/appellant had made confession regarding his guilt. This witness in his evidence has stated that on 7.5.2007, the accused appellant approached him to take him to the police station and on his query, the accused appellant stated that he had killed his wife with a dao and he also showed him the said dao which was blood stained. As he refused to comply with his request, the accused/appellant thereafter alone went to the police station and he followed the accused/appellant. The police officer (PW-4) seized the said dao and the other articles from the accused/appellant by preparing a seizure list in which he stood as a witness. He has also identified his signature over the seizure list which was marked as Ext. 3A and also identified the accused/ appellant in the dock. In his cross, he denied the suggestion that he had not stated before the police officer what he stated in chief. 40. PW-15, Miss Priyanka Nath, the daughter of the accused/appellant and the step daughter of the deceased is a hearsay witness who has stated that she found her deceased mother lying dead and her father was not present in their house and she came to know from the local people as well as from her younger sister, who was in the house, that her father had killed her mother. 41. 41. PW-16, Dhananjoy Nath, the informant of the case who was declared hostile by the prosecution, has stated in his evidence that on 7.5.2007, getting information that the accused/appellant had killed his wife (the deceased) with a dao and thereafter he surrendered before the Officer-In-charge, Sabroom Police Station, went to the house of the accused/appellant along with police and found that the dead body of the deceased was lying on the ground. Thereafter, he had lodged the FIR before the police on spot. He also identified the said FIR marked as Ext. 8 and the signature on the same as Ext. 8/2. He also confirmed that the police officer had seized some articles in his presence after preparing the seizure list. He had also witnessed the seizure of some blood collected near the dead body of the deceased from the ground of the courtyard which was found and said to have come out due to the cut of the throat of the deceased and some blood stained cropped hair of the head of the deceased and blood stained earth collected from the place of occurrence. 42. In his cross by the prosecution, this witness has stated that he did not see that the accused had been loitering in the sty of his house with dao in his hand. He also did not agree that he stated to the I.O. of the case that the accused/appellant told to him that he had killed his wife with that dao as her character was suspicious. He also did not agree that he stated to the I.O. of the case that the accused/appellant told to him that he had killed his wife with that dao as her character was suspicious. I.O. of the case on being asked by the prosecution confirmed that this witness stated that the accused appellant with a hand dao stained with fresh blood was running about in his courtyard and many people gathered on the road by the side of the house and he also found Smt. Bakul Das (PW-17), Upapradhan of their village panchayat was present there and on being enquired by him and Upapradhan, the accused/appellant told that since the character of his wife was not good, he had murdered his wife by cutting her throat by delivering hacking blows with dao in his hand and on showing that blood stained dao, he told them that he would deposit that dao at the police station and would surrender and narrate the entire incident before the Court and on saying so, he went away from his house carrying the said dao in his hand. In his cross-examination by defence, this witness stated that he had lodged the FIR as a member of the Gaon Panchayat and he had not seen the incident. He did not admit that he had deposed falsely. 43. PW-17 Smt. Bakul Das, the Upapradhan of the village of the accused/appellant has stated in her evidence that she knew the accused/appellant and identified him in the dock and reiterated that she came to know from the various sources that there was a dispute between the accused/appellant and his wife and they did not approach her with heir problems. But the younger brother of the accused/appellant approached them alleging against the accused/appellant that he had been accusing him unnecessarily. She has further stated that local people had tried to solve the problem, but the accused appellant used to suspect his younger brother that he had illicit relation with his third wife. She confirmed that thereafter they had tried to settle the dispute amicably and they had pursued them not to agitate such matter again in future. She has further stated that local people had tried to solve the problem, but the accused appellant used to suspect his younger brother that he had illicit relation with his third wife. She confirmed that thereafter they had tried to settle the dispute amicably and they had pursued them not to agitate such matter again in future. She has also stated that on the date of incident, the accused/appellant had approached her stating that he had seen in the previous night, his wife was in compromising position with his younger brother and on hearing the same; she had told him to ask the local people and report the said matter to them. Just after half an hour of the meeting with the accused/appellant she heard a hue and cry from the house of the accused/appellant and came to know that the accused/ appellant had killed his wife. Getting information of such killing, she went to the house of the accused/appellant where subsequently police also came and she learnt that the accused/appellant surrendered before the police with dao and stated that he had killed his wife. 44. In her cross, she has stated that the accused/appellant had married earlier twice and both the wife of the accused/appellant had died because of illness, but there was no dispute in between the accused/appellant and his earlier two wives. 45. PW-18, Dr. Narayan Ch. Ghosh, a medical officer who along with Dr. Bibekananda Roy (PW-5) and Dr. U.K. Das had conducted the postmortem examination over the dead body of the deceased, identified the postmortem report and his signature over the same marked as Ext. 4/3. 46. PW-20, Smti. Srimati Das, has stated in her evidence that she knew the accused/ appellant being her next door neighbour and her elder brother-in-law. She has also reiterated that on the date of incident, while she was cooking in his kitchen, heard that the accused/appellant had killed his wife. She does not know anything more than that. 47. At this stage, the prosecution declared this witness hostile as she had deviated from her earlier statement. In her cross by the prosecution, she has stated that she did not state to the I.O. that she had rushed to the place of occurrence and found the deceased lying on the ground with bleeding injuries and the accused/appellant was loitering with dao. In her cross by the prosecution, she has stated that she did not state to the I.O. that she had rushed to the place of occurrence and found the deceased lying on the ground with bleeding injuries and the accused/appellant was loitering with dao. She has further confirmed that she did not state to the I.O. that the accused told them that he had killed his wife. This portion was marked by the trial Court as Ext. 11 and subsequently, I.O. (PW-21) confirmed the same. In cross by defence, she stated that she had not seen the incident and she only narrated the story as she heard. 48. PW-21, Sri Jatindra Chandra Das, is the Investigating Officer of the case who stated that he had rushed to the place of occurrence on the strength of G.D. entry No. 191 dated 7.5.2007 of Sabroom P.S., which was made on the basis of the information of Sri Rabindra Kr. Das (PW-14). He has also stated that he was endorsed the Sabroom police case No. 14 of 2007 for investigation by the Officer-in-charge of the said police station. Accordingly, he investigated the same by way of recording the statement of the witnesses under S. 161, Cr. P.C. seized the bloodstained soil and some hair of the deceased by preparing the seizure list. He has also stated that on return from the place of occurrence, he found that the accused appellant was detained by the duty officer along with dao and being found him in the police station, as I.O. of the case, he arrested the accused/appellant in connection with the aforesaid police case and sent the dao and blood stained sample of the deceased to the Tripura Forensic Science Laboratory, Agartala for examination. He has also reiterated that the accused/appellant was sent to the Sabroom hospital to know as to whether he was mentally fit or not. He has further stated that he had produced the accused/appellant before the learned Sub-divisional Judicial Magistrate (PW-11) for recording his statement under Section 164(1), Cr. P.C. and accordingly, the learned Sub-divisional Judicial Magistrate recorded the statement of the accused/ appellant who had confessed his guilt. He also stated that on receipt of the Forensic report (Ext.14) and after perusal of the case record and the postmortem examination report being a prima facie case was made out against the accused/appellant, he had filed the charge-sheet. 49. P.C. and accordingly, the learned Sub-divisional Judicial Magistrate recorded the statement of the accused/ appellant who had confessed his guilt. He also stated that on receipt of the Forensic report (Ext.14) and after perusal of the case record and the postmortem examination report being a prima facie case was made out against the accused/appellant, he had filed the charge-sheet. 49. As the heart of the argument of the learned counsel for the parties are mainly on as to whether an accused can be convicted either on extrajudicial confession or confession before the judicial magistrate and as to whether an accused can be convicted on the basis of incriminating materials which were not put to him at the time of examination under Section 313 Cr. P.C. and if so, whether such conviction can be maintained, it would be proper on our part to discuss the law on the aforesaid points. 50. In Balwinder Singh vs. State of Punjab, 1995 Supp (4) SCC 259, the Apex Court while discussing regarding extra judicial confession stated that: "(10) An extrajudicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance." 51. In Pakkirisamy vs. State of Tamil Nadu, (1997) 8 SCC 158 , the Apex Court held that: “8. It is well settled that it is a rule of caution where the Court would generally look for an independent reliable corroboration before placing any reliance upon such extrajudicial confession." 52. Again in Kavita vs. State of Tamil Nadu, (1998) 6 SCC 108 , the Apex Court stated the dictum that: "4. There is no doubt that convictions can be based on extrajudicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the (witnesses) to whom it is made." 53. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extrajudicial confession, the Apex Court in State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180 stated the principle that: "19. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extrajudicial confession, the Apex Court in State of Rajasthan vs. Raja Ram, (2003) 8 SCC 180 stated the principle that: "19. An extrajudicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made." 54. In Aloke Nath Dutta vs. State of West Bengal, (2007) 12 SCC 230 , the Apex Court while holding the placing of reliance on extra judicial confession by the lower courts in absence of other corroborating material as unjustified, observed: "87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time from the basis for conviction. It is, however, trite that for the said purpose the Court has to satisfy itself in regard to (i) voluntariness of the confession; (ii) truthfulness of the confession and (iii) corroboration. 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof." 55. In the instant case, it would be evident from the statements of PW5, PW11 and PW14, who are the independent witnesses, that the accused-appellant made the confessional statement to them and such confessional statement is voluntary in nature. Thus, the learned trial court in its findings rightly contended that on careful scrutiny weighing the evidence it is found that the accused made confessional statement before the Judicial Magistrate. It is a judicial confession and voluntary in nature. Just after the occurrence the accused went to the police station and handed over the dao to PW-4, the police officer. Dao was also seized in presence of witnesses. The seizure of the Dao is proved from Exbt.3, seizure list and the seizure witnesses. 56. It is a judicial confession and voluntary in nature. Just after the occurrence the accused went to the police station and handed over the dao to PW-4, the police officer. Dao was also seized in presence of witnesses. The seizure of the Dao is proved from Exbt.3, seizure list and the seizure witnesses. 56. There is no doubt that a confessional statement before the police cannot be relied upon as the same is hit by Section 25 and 26 of the Evidence Act but the confession made before an independent witness like the doctor and the judicial magistrate is definitely admissible when it is voluntary in nature. From the confessional statement and other circumstantial evidences, the prosecution proved its case that it is the accused who had killed his deceased wife. Now the question is as to whether the accused had killed the deceased with an intention to commit murder or on a sudden quarrel, the accused hit the deceased in her vital part of the body with Dao. According to us, there was no premeditation and that the incident of killing the deceased was the result of sudden fight/quarrel. 57. In Virsa Singh vs. State of Punjab, AIR 1958 SC 465 , His Lordship Justice Vivian Bose has stated inter alia that: "11. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that "twelve good men and true" could readily appreciate and understand. 12. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that "twelve good men and true" could readily appreciate and understand. 12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 thirdly: First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 13. Once these four elements are established by the prosecution (of course, the burden is on the prosecution throughout) the offence is murder under Section 300 thirdly. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional." 58. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional." 58. In Pulicherla Nagaraju vs. State of Andhra Pradesh, (2006) 11 SCC 444 , the Apex Court again examined the issue as to what relevant factors should be kept in consideration while deciding the question as to whether the case in hand falls under Section 302 or Section 304 Part I or Part II of IPC. Held: “29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:- (i) Nature of the weapon used. (ii) Whether the weapon was carried by the accused or was picked up from the spot. (iii) Whether the blow is aimed at a vital part of the body. (iv) The amount of force employed in causing injury. (v) Whether the act was in the course of sudden quarrel or sudden fight or free for all fight. (vi) Whether the incident occurs by chance or whether there was any premeditation. (vii) Whether there was any prior enmity or whether the deceased was a stranger. (iv) The amount of force employed in causing injury. (v) Whether the act was in the course of sudden quarrel or sudden fight or free for all fight. (vi) Whether the incident occurs by chance or whether there was any premeditation. (vii) Whether there was any prior enmity or whether the deceased was a stranger. (viii) Whether there was any grave and sudden provocation, and if so, the cause for such provocation. (ix) Whether it was in the heat of passion. (x) Whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner. (xi) Whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.” 59. In Ahmed Shah and Another vs. State of Rajasthan, 2015 AIR SCW 594, the Apex Court held: “18. As per Exception 4 to Section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. To invoke Exception 4 to Section 300 IPC, four requisites must be satisfied namely:- (i) It was a sudden fight. (ii) There was no premeditation. (iii) The act was committed in a heat of passion. (iv) The assailant had not taken any undue advantage or acted in a cruel manner. 19. This Court in Sridhar Bhuyan vs. State of Orissa, (2004) 11 SCC 395 held as under: "7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden (pic) fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. 8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage. In Satish Narayan Sawant vs. State of Goa, (2009) 17 SCC 724 , the same principle was reiterated.” 60. There is neither any motive nor any intention on the part of the appellant to eliminate his deceased wife Ratna. Admittedly, there was a fight on the spur of the moment between the deceased and the accused on the issue of illicit relationship of his wife with the younger brother of the accused. More so, from the evidence also it appears that the accused-appellant inflicted injuries on his deceased wife by Dao blow only once and left the place of occurrence. Had there been any motive or intention to commit murder of the deceased then he would not have left the place of occurrence. 61. Applying the aforesaid principle of law to the facts of the case in hand and keeping the same in consideration when we examine the evidence of the prosecution, we find that this is not a case where the appellant should have been convicted under Section 302 IPC but it is a case of conviction under Section 304 Part I IPC. 62. 62. In view of the foregoing discussion, we set aside the order of conviction under Section 302 IPC and sentence thereto, and the appellant is convicted under Section 304 Part I IPC and sentenced to suffer RI for 10 years. The period of detention during investigation, trial and pendency of the appeal shall be set off from the term of imprisonment, as ordered. 63. In the result, the appeal is partly allowed. Send down the LCR.