Judgment :- Sivasubramaniam, J. R.T.No.1 of 1989 comes before us for a reference made for confirmation of death sentence under Sec.366, Criminal Procedure Code made in S.C.No.107 of 1988 on the file of the IX Additional Sessions Judge, Madras Division. Criminal Appeal No.31 of 1989 is an appeal preferred by the accused against the Conviction and sentence passed by the learned Sessions Judge in the said case. 2. Theappellant/accused was tried by the learned Sessions Judge for an offence under Sec.302, Indian Indian Indian Penal Code on four counts for having murdered his wife Kasthuri, his son Balachander, his daughter Padmasini and his another daughter Anitha by first administering as dative namely, barbiturates mixed with the drink ‘Frooti’ to them and subsequently while they were in a state of stupor under the influence of the sedative and were sleeping by triangulating them with a nylon rope resulting in asphyxia. 3. This is the most unfortunate case where four innocent persons of a family were killed as a result of certain blind and superstitious faith in God and disturbed mind without any motive whatsoever. 12. The prosecution has not examined any eye-witnesses in this case and, therefore the entire case rests upon the circumstantial evidence and the confessional statement given by the accused. Insofar as the cause of the death of the four deceased is concerned, there is no doubt that they died of homicidal violence.....Ex.P2 is the letter containing 11 sheets written by the accused and it contains not only the admission about his guilt but also various details concerning his properties and money dealings. The accused has made several provisions regarding the disposal of his properties and settlement of his loans. On the basis of the said letter, P.W.24 went to Tambaram on 29th January, 1988 and examined P.W.9 and recorded his statement. P.W.9 admitted that he had attested Ex.P2 and stated that it was written by the accused and he signed the same on going through the contents of the same. P.W.9 took the Inspector to P.W.10 Nagarajan. His statement was also recorded by P.W.24. P.W.10 admitted that he sold 10 sleeping pills to the friend who came with P.W.9. The articles seized by P.W.24 were sent to Court on 29.1.1988 itself. Thereafter P.W.24 took steps to trace the accused. 13. P.W.9 took the Inspector to P.W.10 Nagarajan. His statement was also recorded by P.W.24. P.W.10 admitted that he sold 10 sleeping pills to the friend who came with P.W.9. The articles seized by P.W.24 were sent to Court on 29.1.1988 itself. Thereafter P.W.24 took steps to trace the accused. 13. After making a search for the accused on 30.1.1988 and 31.1.1988, P.W.24 came to the bus stand in Tirupathi. There he saw the accused and arrested him in the presence of one Dayalan (P.W.15) and Verghese. According to him, the accused voluntarily gave a confessional statement which was recorded by him in the presence of the said witnesses. As per the admissible portion of the confession, Ex.P11 the accused is alleged to have stated that he was prepared to show the place where the stick, syringe and frooti packets are placed and also show the places from where they were purchased. At that time, he was having a bag M.O.25 containing M.Os.26 to 32 which were seized under the mahazar Ex.P12 attested by the same witnesses. [Discussion of facts omitted - Ed.] 14. From the evidence of the prosecution witnesses P.Ws.1 to 5 and 24, we find that Ex.P2 letter alleged to have been written by the accused gave a clue in this case and the police proceeded on that basis. After the police arrested the accused, the accused is stated to have given a voluntary confessional statement the admissible portion of which is Ex.P11. Even though conviction cannot be based solely on the basis of the confession Ex.P11, it is admissible in evidence since P.Ws.10 to 14 were pointed out by the accused in different places stating that he had purchased several articles mentioned above from him. Apart from the evidence of the police officer, Ex.P24, we have got the evidence of P.W.15 who was present at the time of recording his statement and other witnesses P.Ws.10 to 14 who have spoken about the purchase of those articles by the accused from them. Nothing has been elicited to discredit testimony to any of these witnesses and, therefore, we incline to rely on the said piece of admission and the consequent recovery of the articles from P.Ws.10 to 14. This conclusion of ours is strengthened by the subsequent judicial confession given by the accused to the learned Magistrate, P.W.22. Nothing has been elicited to discredit testimony to any of these witnesses and, therefore, we incline to rely on the said piece of admission and the consequent recovery of the articles from P.Ws.10 to 14. This conclusion of ours is strengthened by the subsequent judicial confession given by the accused to the learned Magistrate, P.W.22. Therefore, this part of the evidence proved that the accused had made certain preparations preceding the murder of the deceased. But this evidence alone cannot prove that the accused is guilty of murder. Therefore, we have to consider the other circumstantial evidence and the judicial confession of the accused for deciding as to the part played by the accused in the commission of murder. We shall consider the admissibility of Ex.P22 later on. 15. Coming to the judicial confession of the accused, we find that the prosecution relies upon it as a very important piece of evidence to prove their case. It is no doubt true that the accused has retracted on his judicial confession during the course of his statement given under Sec.313, Cr.P.C. Therefore, we have to find out whether the judicial confession has been corroborated on material particulars and whether it is reliable, x x x x x ...We are, therefore, satisfied that the said statement was given by the accused voluntarily and, therefore, we propose to consider the same as a reliable piece of evidence, x x x x x 16. At this stage, it would be relevant to extract the English version of the confessional statement, Ex.P27.xxx 17. Now we have to find out whether the above said confessional statement of the accused has been corroborated on material particulars. Immediately after arrest, the accused took the police party to the scene of occurrence and produced M.O.10 and M.O.23 series in the presence of P.W.16 under the mahazar Ex.P13. He took out M.O.24 syringe with needle. M.O.33 glass tumbler and M.O.34 bamboo stick which were recovered under Ex.P14. Thereafter, he pointed out P.W.11 in Bharathi Street in Triplicane. P.W.10 in Visalakshi Medical Shop at Tambaram, P.W.12 in Ramakrishna Sweet and Snack Bar at Bharathi Street, P.W.13 Lalitha Medicals near Egmore Station and P.W.14 in Blue Moon Stores in Royapettah Bazaar Road stating that he had purchased M.Os.9, 10 sleeping pills, M.O.23 series, M.O.24 and rat poison from them respectively on 27.1.1988. P.W.10 in Visalakshi Medical Shop at Tambaram, P.W.12 in Ramakrishna Sweet and Snack Bar at Bharathi Street, P.W.13 Lalitha Medicals near Egmore Station and P.W.14 in Blue Moon Stores in Royapettah Bazaar Road stating that he had purchased M.Os.9, 10 sleeping pills, M.O.23 series, M.O.24 and rat poison from them respectively on 27.1.1988. The fact regarding his sending of telegraphic message on 28.1.1988, 29.1.1988 and 30.1.1988 was also verified by P.W.24 for which he obtained the certificate Ex.43. The accused took the police party to Ranga Stores in Kanjeepuram and pointed out the witness Masthan stating that he had purchased M.Os.26 and 27 from him. One Balu Mudaliar from whom the accused purchased M.O.29 was also examined by the police. Again, the accused pointed out P.W.18 Ethiraj at Vandavasi whose statement was recorded by the police. The evidence of these witnesses has not been shaken in any manner. Therefore, their evidence corrborates the judicial confession of the accused in all material particulars. Apart from that, we find additional corroboration from Ex.P2 the letter left by the accused and the subsequent letters Exs.P4 and P5 written by the accused to P.W.5 two or three days after the occurrence and the letter Ex.P45 written to P.W.24. Even though the contents of the said letters are not admissible in entirety, the conduct of the accused in writing those letters will be an additional piece of corroboration. 18. Coming to Ex.P2 which contains 11 sheets of paper, it was contended by the learned counsel for the accused that since it is in the nature of a first information report to the police, it is not admissible in evidence. A perusal of Ex.P2 shows that the first sheet alone is addressed to the police officer wherein the accused has stated that all these acts are done by him and where he noted down the time of death of each of the deceased. He ended it by saying that his wife and children must always remain with him and he cannot afford to leave them. The other sheets are in the nature of various disposition of his properties and settlement of his debts which have nothing to do with the police investigation. They are addressed to various persons and attested by the witnesses as above referred to. It is also in evidence that the attestation was taken much earlier to the commission of the crime. The other sheets are in the nature of various disposition of his properties and settlement of his debts which have nothing to do with the police investigation. They are addressed to various persons and attested by the witnesses as above referred to. It is also in evidence that the attestation was taken much earlier to the commission of the crime. Therefore, the entire sheets of papers cannot be taken as a single document and it cannot be said that they were intended to be given to the police in connection with the present case. Simply because they were found together, all of them cannot be treated as the first information report given by the accused. Insofar as the first sheet is concerned, if it is treated as the first information report, we find that the question of admissibility of such a document is the subject matter conflicting judicial opinion. The Supreme Court in Nisar Ali v. State of U.P., 1957 M.L.J. (Crl.) 314: A.I.R. 1957 S.C. 366: 1957 S.C.J. 392: 1957 S.C.R. 657, held that a report by a person who became an accused afterwards is not relevant. The Supreme Court again held that if a report is not a confession of the guilt but is only an admission by the accused of certain fact, it is relevant as reported in Faddi v. State of M.P., A.I.R. 1964 S.C. 1850: (1964)2 Crl.L.J. 744. Almost the same view was taken by the Supreme Court in A.Nagesia v. State of Bihar, A.I.R. 1966 S.C. 119: 1966 M.L.J. (Crl.) 134: (1966)1 S.C.R. 134 : (1966)1 S.C.J. 193: 1966 Crl.L.J. 100. But we find that on an identical case as the one we have now, the Supreme Court in Sitaram v. State of U.P., A.I.R. 1966 S.C. 1906: 1966 Crl.L.J. 1512, held that the letter like Ex.P2 is relevant and admissible. In that case also, the accused addressed a letter to the Sub-Inspector of Police stating that he had committed the murder of his wife and that nobody else had perpetrated the crime. That letter was found by the Sub-Inspector of Police near the dead body of the deceased. Therefore, there are all shades of opinion ranging from total exclusion of confession to total inclusion of all incriminating facts except the actual commission of the crime. That letter was found by the Sub-Inspector of Police near the dead body of the deceased. Therefore, there are all shades of opinion ranging from total exclusion of confession to total inclusion of all incriminating facts except the actual commission of the crime. We feel that it is unnecessary to decide this question in this case since we have already found that the judicial confession made by the accused is a voluntary one and has been corroborated on material particulars. Therefore, it is wholly unnecessary to consider this aspect of the matter for the disposal of this case. Insofar as other sheets in Ex.P2 are concerned, they do not contain anything about the crime, and, therefore, there is no difficulty in taking them into consideration. Those sheets would show the conduct of the accused before the commission of the crime. Such a conduct is admissible under Sec.8 of the Evidence Act. The fact that he had left detailed instructions about the disposal of his entire properties and settlement of his debts totally excluding his wife and children, shows that he was preparing to end his life and the lives of his other family members. Apart from that, no significance can be attached to Ex.P2. We are therefore not relying upon the first sheet of paper in Ex.P2 addressed to the police but we rely upon the other sheets for the limited purposes as stated above. 19. Mr.Rajagopalan, learned counsel for the accused further submitted that even if the judicial confession is accepted, there is no admission by the accused about the killing of his children. He pointed out that the accused has stated that he has strangulated the neck of his wife with the help of a rope and stick as a result of which she died. But on the other hand, there is no such reference to the death of his children. The accused has simply stated that his children also died. It was contended that such a statement cannot be taken as an admission of guilt by the accused. We are totally unable to accept the said argument. After having described the manner in which he caused the death of his wife, the accused has stated that his children also died in a similar manner. It only means that the same modus operandi was adopted by the accused in respect of all the deceased. We are totally unable to accept the said argument. After having described the manner in which he caused the death of his wife, the accused has stated that his children also died in a similar manner. It only means that the same modus operandi was adopted by the accused in respect of all the deceased. For the sake of brevity, the accused has stated so.... [Discussion of evidence omitted-Ed.] xx xx xx 22. After a careful consideration of the entire evidence adduced by the prosecution, we find that the evidence is totally acceptable. Apart from that, there is a judicial confession by the accused and the confession made to the police coupled with the recoveries admissible under Sec.27 of the Evidence Act. Therefore there is no difficulty in finding that the prosecution has proved its case beyond all reasonable doubts and the conviction of the accused by the learned Sessions Judge under Sec.302, I.P.C., is perfectly correct. 23. On the question of sentence, learned counsel for the accused pleaded that there was absolutely pleaded that there was absolutely no motive on the part of the accused to murder all his family members. It is borne out by the fact that the prosecution itself has let in evidence to show that they were in very cordial terms. Therefore, he submitted that merely because four persons were killed by the accused, it cannot be characterised as a gruesome murder deserving death sentence. He submitted that the Supreme Court held that a sentence of death can be awarded only in rarest of rare cases and not in routine manner. In support of his contention, he relied on a decision of the Supreme Court reported in Gopalan Nair v. State of Kerala, A.I.R. 1973 S.C. 806, where the Supreme Court held as follows: “There is nothing to show that he was not suffering from a mental obsession which may not amount to insanity but which would affect a person’s mind in a way quite different from that of a normal person. The appellant seemed to harbour some sort of grudge that his trouble was due to the evil influence of Gowri Ammal. If he had been quite normal his reactions might have been different. He was in all likelihood not in a position to weigh and analyse in a rational manner whether his trouble could be due to the reason mentioned before. If he had been quite normal his reactions might have been different. He was in all likelihood not in a position to weigh and analyse in a rational manner whether his trouble could be due to the reason mentioned before. Nor is it clear from the prosecution evidence as to what transpired between Gowri Ammal and the appellant before he started stabbing her. In other words, the origin of the incident is not known. In our judgment, this is not a case in which the penalty of death should have been inflicted.” Again, the Supreme Court in Namu Ram v. State of Assam, A.I.R. 1975 S.C. 762, held as follows: “After hearing learned counsel for the parties and on perusal of the judgments of the two Courts below and specially in a view of the confessional statement made by the appellant when he was examined under Sec.342 of the Cr.P.C., we have come to the conclusion that there was no particular motive for the appellant to commit the ghastly crime. He said that he was suffering from mental disorder since after he suffered a dog bite and committed the murder in such a state of mind. His claim to that extent may be correct or not but we think that the triple murder was committed by the appellant as a result of some mental imbalance. It was not a pre-planned ghastly act of a criminal. The facts and circumstances of the case lead to the conclusion that in a certain stage of imbalance of mind he committed the crime. He, therefore, does not deserve the extreme penalty of death. Due to the special circumstances, a lenient view is warranted in his case. We, therefore, allow the appeal on the question of sentence only and commute the death sentence to one for imprisonment for life.” 24. We have bestowed our careful consideration on this vexed question of sentence and we feel that there are no special reasons for awarding death sentence in a case like this. Sec.302, I.P.C., prescribes death or life sentence as the penalty for murder. We have bestowed our careful consideration on this vexed question of sentence and we feel that there are no special reasons for awarding death sentence in a case like this. Sec.302, I.P.C., prescribes death or life sentence as the penalty for murder. The Parliament took note of contemporary criminological thought and movement, and introduced a new concept of punishment in case of murder in Sec.354, Cr.P.C. Sec.354, Sub-cl.(3) of the new Code provides as follows: “When the conviction is for an offence punishable with death, or in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.” Therefore, according to the new Code, imprisonment for life is a rule and death sentence an exception in the matter of awarding punishment for murder. If a death sentence is to be awarded to a person found guilty of murder, the Court awarding, it has to justify it by giving special reasons. It is not possible to lay down any hard and fast rule of universal application and each case must be decided on its own merit and punishment should be awarded suitable to each case. Therefore, it is the duty of the Courts to award appropriate punishment in exercise of their discretion. But such a discretion must be exercised judiciously and not arbitrarily. It is no doubt true that where the offence committed is vindictive, pre-planned and cold-blooded, ordinarily death sentence should be imposed. The Courts have held that when heinous murders, committed in cold-blood, are goal oriented against weaker and defenceless members of the society and they also indicate total absence of basic human tenderness, good reasons exist to clamp the highest penalty provided by law. The question of sentence has to be determined not with reference to the volume or character of the evidence, adduced by the prosecution, but it must be with reference to the fact where there are any extenuating circumstances which can be said to mitigate the enormity of the crime. The preponderance of judicial opinion is that in cases of murders committed on the spur of the moment and actuated by anger, jealousy, pride or sense of honour and the like, the murder may call for the lessor penalty. The preponderance of judicial opinion is that in cases of murders committed on the spur of the moment and actuated by anger, jealousy, pride or sense of honour and the like, the murder may call for the lessor penalty. On the other hand, Courts have categorically held that when murder has been planned before hand and has been committed with cruelty or for a sordid purpose, and without the least trace of any spirit of fair play or sportsmanship, without giving a chance to the victim, it should necessarily be punished with the extreme sentence. 25. Inthe background of these principles, we have to find out whether the extreme penalty of death is called for in this case. We have already noticed that there was absolutely no motive for the accused for committing the murder of his wife and children at a time and that on the other hand, they were living in very cordial terms. The confessional statement of the accused shows that he was having certain heart-ailment and he was living under fear of death at any time. Therefore, he entertained a foolish thought that after him his family members would be left as orphans. Apart from that, he has stated that there was a constant inner call from his sub-conscious mind commanding him to take his family members, along with him. It is also seen that after the killing of all the family members, he wanted to kill himself. He had purchased rat poison for that purpose and actually consumed the same after killing the deceased. According to him, he vomitted once or twice and, therefore, the poison had no effect. Therefore, he left the scene and went to Tirupathi not knowing what to do. Even at the time of his arrest, he was having a rope measuring 10 feet and Baygon Spray and that shows that he was still contemplating to commit suicide. It is true that a person is not privileged to take away the life of his wife and children in the way the accused had done. But we have to consider the framework of his mind at the time when he committed the crime. It cannot be stated that he had committed gruesome or ghastly murder with an intention to commit such a crime. But we have to consider the framework of his mind at the time when he committed the crime. It cannot be stated that he had committed gruesome or ghastly murder with an intention to commit such a crime. Considering the fact that he was heavily indebted and was without any avocation, he came to the conclusion that there was no scope to support his family and maintain its status. Therefore, there is no difficulty in coming to the conclusion that he was in an abnormal frame of mind induced by unhappy domestic circumstances. In similar circumstances, this Court in Perumal Kudumban, In re., A.I.R. 1940 Mad. 562: 191 I.C. 37: 42 Crl.L.J. 64, even before the new Procedure Code, held that where the crime was committed by the accused when he was in an abnormal frame of mind induced by unhappy domestic circumstances, and it appeared as if he wanted to end his wife’s life and his own at the same time, the lesser penalty would meet the ends of justice. We can safely assume that the accused was suffering from a mental obsession though not amounting to insanity, but which would affect a person’s mind in a way quite different from that of a normal person. He seemed to have harboured a peculiar notion that he and his family members should die at the same time actually by some sort of false security for his family members. Therefore, it is not possible to hold that he was in a position to weigh and analyse in a rational manner as to whether what he was about to do was proper or not. We have noticed earlier that the Supreme Court has taken the view that the extreme penalty of death is not called for in such circumstances. In Muniappan v. State of Tamil Nadu, A.I.R. 1981 S.C. 1220:1981 Crl.L.J. 726: (1981) 2 S.C.C. 11: 1981 S.C.C.(Crl.) 617, the Supreme Court held as follows: “All murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, then every murder shall have to be visited with that sentence. In Muniappan v. State of Tamil Nadu, A.I.R. 1981 S.C. 1220:1981 Crl.L.J. 726: (1981) 2 S.C.C. 11: 1981 S.C.C.(Crl.) 617, the Supreme Court held as follows: “All murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, then every murder shall have to be visited with that sentence. In that event, death sentence will become the rule, not an exception and Sec.354(3) will become a dead letter.” Further, the Supreme Court pointed out that it is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. After the Judge decides to convict the accused, generally the question of sentence would come in for consideration. The Supreme Court pointed out that the question of sentence is a matter in which not merely the accused but the whole society has a stake. It has been highlighted that the Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. Therefore, we find that merely because four persons were killed, the crime cannot be termed as gruesome and ghastly done with a deliberate motive calling for an extreme penalty of death. For these reasons, we find that there are no special reasons for awarding the sentence of death on the accused and, therefore, the sentence awarded by the learned Sessions Judge calls for interference at our hands. Accordingly, we modify the sentence of death to one of life imprisonment. 26. In the result, this appeal is partly allowed confirming the conviction passed by the trial Court and modifying the sentence of death to that of life imprisonment.