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1989 DIGILAW 592 (MAD)

Abdul Khader, In re. v. .

1989-12-13

BHASKARAN, SIVASUBRAMANIAM

body1989
Judgment :- Bhaskaran, J. R.T.No.6 of 1989 comes before us for a reference made for confirmation of death sentence under Sec.366 of the Code of Criminal Procedure made in S.C.No.22 of 1989 on the file of the Additional Sessions Judge, Erode. 2. Crl.A.No.771 of 1989 is directed against the conviction and sentence of the appellant under Sec.302 of the Indian Indian Indian Penal Code (Four Counts) and also under Sec.309 of the Indian Indian Indian Penal Code in S.C.No.22 of 1989 on the file of the Additional Sessions Judge, Erode. The charge against the appellant-accused is that on 22.4.1988 at about 5.00 P.M. the accused stabbed his wife Rahamathul Kamila and his three children, Alauddin, Ansathul Bhanu and Abudhakir, with ‘Chisel’ in his house at Door No.57, Nanjappa Veethi, Gobichettipalayam. Thereafter, he also attempted to commit suicide by stabbing himself with the chisel. On this allegation he was charged under Sec.302 of the Indian Indian Indian Penal Code (Four counts) causing the death of his wife and his two minor sons and a minor daughter and also under Sec.309 of the Indian Indian Indian Penal Code for attempt to commit suicide. The learned Sessions Judge convicted him for all the charges and sentenced him to death under Sec.3C2 of the Indian Indian Indian Penal Code (four counts) and also further sentenced him simple imprisonment for a period of three months and the sentence to merge with the sentence of death. 3. The prosecution case in brief is as follows: The accused is a resident of Gobi Karatadipalayam. He was employed in ‘J’ Traders in a shoe mart for sometime. Thereafter, he joined the shoe mart opened by his friend, one Akbar Ali, P.W.1 as manager. The shop is located in No.57, Nanjappa Street. He was living with his wife and three children in the house which is behind the shoe mart. The house is separated from the shoe mart by a wall and there is a door in the said wall to go to the shoe mart from his house. The accused was heavily indebted in various persons in Bhavani and Gobicheetipalayam and some amount is also due to him from some persons. Therefore he was very much dejected. On 22.4.1988, P.W.1 came to the shoe mart where in the accused alone was present. The accused was heavily indebted in various persons in Bhavani and Gobicheetipalayam and some amount is also due to him from some persons. Therefore he was very much dejected. On 22.4.1988, P.W.1 came to the shoe mart where in the accused alone was present. The accused had narrated to him his financial strains and also expressing to him that he had to sell a site purchased by him in the name of his wife at Bhavani to clear of the debts. He was feeling about his plight. At about 4.00 P.M. the accused invited P.W.1 to his house. Both of them took food in the house of the accused. The three children were also in the house at that time. They came back to the shop. There the accused sent one Subbian, the attendant boy to the Tea shop to bring tea. Desingu Raja, P.W.2, a customer came to the shoe mart and placed orders for purchasing chappel. He paid an advance of Rs.10 to P.W.1 for which he issued a receipt, Ex.P2. The accused suddenly went to his house and bolted the door of his house but the door separating the house from the shop was not closed. Shortly thereafter P.W.1 heard exchange of heated words between the accused and his wife, she accused when demanding the document with respect to the site standing in the name of his wife. She was refusing to give him. Suddenly there was a cry from the deceased wife of the accused not to do any harm to her. There was also further cry, Tamil words on hearing the said cry of the deceased wife of the accused, P.W.1 went to the house of the accused and forcibly opened the door which was closed. At that time it was found the accused was stabbing his wife with a chisel, M.O.1 on her neck and chest. The deceased wife of the accused fell down unconsciously in the store room of the house where she was stabbed. Thereafter, the accused also stabbed his six years’ old son, Alauddin, who came out from the bed room. Alauddin fell down. The accused went into the bed room of his house and stabbed his daughter, Ansatthul Rabia Bhanu disregarding here plea not to stab her. She also fell down. Again he stabbed on her neck. Thereafter, the accused also stabbed his six years’ old son, Alauddin, who came out from the bed room. Alauddin fell down. The accused went into the bed room of his house and stabbed his daughter, Ansatthul Rabia Bhanu disregarding here plea not to stab her. She also fell down. Again he stabbed on her neck. The accused went to the bed room of his wife where his son Alauddin was trying to escape. The accused also dragged him and stabbed him on his neck with the same chisel. He also fell down. The accused thereafter removed his shirt and inflicted injuries on himself in his throat and stomach with the same M.O.1 chisel. P.W.1 witnessed the entire occurrence which took place so suddenly. P.W.2 along with the shop boy subbian, went to the side lane on hearing the cries. He saw the accused stabbing his wife from the eastern window of the house. He peeped into the ventilator of the house and heard a cry from a boy and found the boy being stabbed by the accused, he also heard cry from a girl but he could not see what had happened to her. He went to the top of the house and saw two boys, a girl lying in the house with stab injuries besides the wife of the accused. P.W.2 also witnessed the accused inflicting injuries on himself. P.W.1 immediately went to the hospital and brought an ambulance van and took all the four injured, viz. the wife and children of the accused, to the Government Hospital, Gobi, at about 5 P.M. The accused also came to the hospital immediately and handed over the chisel, M.O.1 to P.W.1. The wife and the three children of the accused were found dead when they were brought to the hospital. P.W.4, Dr.Pandurangan, Assistant Surgeon in the Government Hospital, sent the death intimation, Ex.P9 to the Gobi Police Station. He also examined earlier the accused, who came to the hospital with certain injuries said to have been caused by himself by using a chisel. He noted three cut injuries each measuring 1 cm x 1 cm x 1 cm., in front of the neck. He was conscious and admitted in the hospital and wound sutured. He also examined earlier the accused, who came to the hospital with certain injuries said to have been caused by himself by using a chisel. He noted three cut injuries each measuring 1 cm x 1 cm x 1 cm., in front of the neck. He was conscious and admitted in the hospital and wound sutured. P.W.12 a constable attached to the Gobi Police Station, on receipt of Ex.P9, death intimation from the Gobi Government Hospital handed over the same to the Sub Inspector of Police, P.W.13. He in turn immediately went to the Government Hospital, Gobi, by 7 P.M. saw the four dead bodies and also P.W.1 and recorded the statement from P.W.1, viz., Ex.P1. He also saw the injured accused in the hospital. He registered a case on the statement Ex.P1 in Cr.No.212 of 1988 under Secs.302 and 309of the Indian Indian Indian Penal Code, prepared the F.I.R., sent express report to the Court and superior officials. P.W.14 Inspector of Police on receipt of the express report went to the hospital at 9.30 P.M. He also received M.O.1 which was handed over to P.W.13 by P.W.1 and sent the same to the Court at 10 P.M. He went to the scene place, prepared the mahazar, Ex.P18, in the presence of the Village Administrative Officer, P.W.10 and another. He prepared a rough sketch of the scene place, Ex.P32 He made arrangements to take photographs of the place of occurrence. From 1.00 AM. to 5.00 A.M. on 23.4.1988 he held inquest over the four dead bodies in which he examined P.W.1, P.W.2, P.W.9 and others; and prepared four inquest reports, Exs.P33 to P36, and also seized the bloodstained dhothi and shirt, M.Os.2 and 3, produced by P.W.1. He arrested the accused who underwent treatment in the hospital at about 6 P.M. and also seized his bloodstained clothes, M.Os.20 and 21 under the mahazar, Ex.P21. He sent the accused to the Court for remand. He also sent requisitions. Exs.P10, P12, P14 and P16, for conducting postmortem over the dead bodies. P.W.5, Dr.Sarojadoss, the then civil assistant surgeon in the Government Hospital, Gobichettipalayam, conducted autopsy on the dead body of the wife of the accused at 2.00 P.M., on 23.4.1988 and recorded the injuries as mentioned in the postmortem certificate, Ex.P11. He also sent requisitions. Exs.P10, P12, P14 and P16, for conducting postmortem over the dead bodies. P.W.5, Dr.Sarojadoss, the then civil assistant surgeon in the Government Hospital, Gobichettipalayam, conducted autopsy on the dead body of the wife of the accused at 2.00 P.M., on 23.4.1988 and recorded the injuries as mentioned in the postmortem certificate, Ex.P11. P.W.5 was of the opinion that the deceased would have died of shock and haemorrhage due to injury to heart, major vessels and spinal cord about 18 to 24 hours prior to the autopsy. The injuries found on the deceased wife of the accused are possible by a weapon like M.O.1 and the injury to the heart is necessarily fatal and death would have been instantaneous. P.W.6, another Doctor of the same hospital conducted autopsy on the same day on the body of Alauddin, deceased minor son of the accused. He recorded in the post-mortem certificate, Ex.P13 the injuries found on the deceased. He was of the opinion that the external injuries 1 and 2 are possible by the weapon like M.O.1 and the neck injury was necessarily fatal and the death would have been instantaneous. P.W.7, Dr.Channiangiri, conducted autopsy on the dead body of the deceased minor son, Abudakir and recorded the injuries found on the dead body and recorded in the post-mortem certificate, Ex.P16. The injury noticed according to him is possible by a weapon like M.O.1 and the same is necessarily fatal and the death would have been instantaneous. P.W.8, another Doctor of the same hospital conducted the autopsy on the body of the deceased daughter, Bhanu, he noted the injuries on the dead body and recorded in the postmortem certificate, Ex.P17. He was of the opinion that the injuries found on her are possible by a weapon like M.O.1 and the second injury which is on the neck is fatal and the death would have been instantaneous. The bloodstained clothes seized and sent to the Court were sent for chemical examination. P.W.24 is the report of the Chemical Examiner and Ex.P25 in the report of the Sexologist. P.W.14, the Inspector of Police during his investigation sent the requisition Ex.P3, to the Judicial Magistrate, Bhavani, to record the confession of the accused. P.W.3, the Judicial Magistrate, Bhavani, had the accused produced before him from the Sub Jail on 27.4.1988 and questioned him. The accused was willing to give him confession voluntarily. P.W.14, the Inspector of Police during his investigation sent the requisition Ex.P3, to the Judicial Magistrate, Bhavani, to record the confession of the accused. P.W.3, the Judicial Magistrate, Bhavani, had the accused produced before him from the Sub Jail on 27.4.1988 and questioned him. The accused was willing to give him confession voluntarily. However, P.W.3 warned him of the consequences of his confession and it will be used against him and directed him to be kept in the sub jail separately for reflection and again had him produced before P.W.3 on the next day. After giving the warning to the accused and after satisfying himself that the accused was willing to give confession voluntarily, recorded his confession statement Ex.P6. In Ex.P6 the accused had stated about his financial strain and how he could not succeed in his life though, he was employed in different places and his joining in the shoe mart started by P.W.1, about two months prior to the occurrence. He also stated that the business was not encouraging. So he was in mental strain. He further stated that in order to clear of his debts, he wanted to sell the site purchased in the name of Ms wife but his wife was not willing and she was quarreling with hint. On the date of the occurrence at about 5.00 P.M. he went to his house in a dejected mood, while P.W.1 was in the shop. He bolted the door of his house. He was angry with his wife who was seeking divorce from him. His wife was also not agreeable to sell the land standing in her name. He further stated that he was in tension, unable to bear the anger and stabbed with the chisel which was lying there and also stabbed his children also. Since nobody would look after his children after him and thereafter he also inflicted injuries on himself with a view to end his life. Neighbours came to his house on hearing the noise. P.W.1 took the wife of the deceased and the children in an Ambulance van to the hospital and the accused also went to the hospital. 4. Theprosecution examined the brother of the deceased wife of the accused as P.W.9. Neighbours came to his house on hearing the noise. P.W.1 took the wife of the deceased and the children in an Ambulance van to the hospital and the accused also went to the hospital. 4. Theprosecution examined the brother of the deceased wife of the accused as P.W.9. He had deposed that his brother-in-law, the accused was running shoe mart and grocery shop and incurred heavy loss, that he had purchased a house site in the name of the wife by selling the jewels of his wife and that he wanted subsequently to sell the same in order to clear of his debts, but P. W.9 advised his sister not to agree for the sale of the site. Accordingly she refused to adhere to the request of the accused for the sale of the site. 5. P.W.14 after completing the investigation laid The charge sheet against the accused under Secs.302 (four counts) and 309 of the Indian Indian Indian Penal Code. When examined under Sec.313 of the Code of Criminal Procedure with reference to the incriminating circumstances appearing against him in the evidence, the accused admitted having given the confession statement to P.W.3. However, he denies and stated that P.Ws.1 and 2 are deposing falsely. He did not examine any witness on his side. The learned Additional Sessions Judge, Erode on consideration of the entire evidence came to the conclusion that the charge against the accused is proved beyond doubt and found him guilty for the charges framed against him, convicted and sentenced him as stated above. 6. In the appeal, the learned counsel for the accused submitted that P.Ws.1 and 2 could not have been the eye witnesses to the occurrence. He also commented adversely for the non-examination of Subbian, who was employed in the shop of P.W.1 and the accused. The deceased wife of the accused and the three children died of homicidal violence admits of no doubt. The evidence of the postmortem doctors clearly establish that they died due to injuries sustained by infliction on them by a weapon like M.O.1. In this case, the prosecution case rests not only on the evidence of P.Ws.1 and 2 but also on the judicial confession of the accused which has not been retraced. The accused had admitted in the statement under Sec.313 of the Code of Criminal Procedure having made a confession to P.W.3. In this case, the prosecution case rests not only on the evidence of P.Ws.1 and 2 but also on the judicial confession of the accused which has not been retraced. The accused had admitted in the statement under Sec.313 of the Code of Criminal Procedure having made a confession to P.W.3. In the confession, Ex.P6 the accused has clearly admitted that due to financial strain in their family, he murdered his wife and the three children and thereafter attempted to commit suicide by inflicting injuries on himself by the chisel, M.O.1. As regards the presence of P.W.1, the accused has not stated in Ex.P6 that P.W.1, was not present. He admitted in Ex.P6 that P.W.1 was in the shop but he stated that the shop is in a far off place. But the sketch, Ex.P32, clearly shows that the shop is adjacent to the house of the accused and even in Ex.P6, he also stated that immediately after the occurrence, P.W.2 alone came to his house in an ambulance van took all the injured persons to the hospital. Therefore, the presence of P.W.1 and his witnessing the occurrence could not be doubted. So far as P.W.2 also, his presence in the shop at the time of the occurrence is established by the receipt, Ex.P2, which was handed over by him in the hospital to the Investigating Officer when examined at the inquest. If he had not been in the shop on that day and witnessed the occurrence, there was no necessity for him to go to the hospital the same night. The accused has not mentioned the presence of P.W.2 in his confession. That does not mean that P.W.2 could not have been present. The accused also told the doctor P.W.4, when treated that the injuries were self-inflicted on him with M.O.1 and also produced M.O.1 in the hospital. The judicial confession made by the accused, the truth of which is admitted by the accused himself and he has not gone back on the confession by itself clearly establishes beyond doubt that it is the accused who cut his wife and three children and caused fatal injuries and there by caused their death. It is also corroborated by the evidence of P.Ws.1 and 2, when the two eye witnesses have been examined, the non-examination of another eye witness, Subbian, is not fatal to the prosecution case. It is also corroborated by the evidence of P.Ws.1 and 2, when the two eye witnesses have been examined, the non-examination of another eye witness, Subbian, is not fatal to the prosecution case. The motive for the cause of the prosecution case. The motive for the cause of the death, viz., extreme financial strain is also proved by the evidence of P.Ws.1 and 9. There is no difficulty in confirming the finding of the learned Sessions Judge that the accused cut his wife and children with M.O.1 and caused the death and also cut himself and thereby attempted to commit suicide. The conviction of the appellant under Sec.302 of the Indian Indian Indian Penal Code as well as Sec.309 of the Indian Indian Indian Penal Code has to be confirmed and accordingly it is confirmed. 7. The next question for consideration is what is the proper sentence to be imposed on the accused. The learned Sessions Judge imposed the sentence on the accused on all the four counts holding that the act of the accused in killing his wife and children is a gruesome one and therefore it requires deterrent sentence. The learned Counsel for the accused submitted that merely because the accused killed his wife and children, it does not automatically imply that it requires deterrent sentence All the surrounding circumstances which lead to the accused to murder his wife and children have to be taken into consideration. If those circumstances have been taken into consideration it is a case for imposing lesser of the two sentences, viz., life imprisonment. He has referred to few decision in this connection. 8. The learned Public Prosecutor relied on the observation of the learned Sessions Judge that in view of the gruesome murder, death sentence is a proper one. We have bestowed our anxious consideration to the facts of the case and the contention put forward by the learned counsel for the accused. 9. The decision reported in State of U.P. v. M.K.Anthony, A.I.R. 1985 S.C. 48, is a case where also the accused murdered his wife and two children. The Sessions Judge convicted the accused and sentenced him to death. The High Court disbelieving the evidence of the prosecution witnesses, gave him the benefit of doubt and acquitted the accused. The Supreme Court reversed the finding of the High Court and restored the conviction imposed by the Sessions Court. The Sessions Judge convicted the accused and sentenced him to death. The High Court disbelieving the evidence of the prosecution witnesses, gave him the benefit of doubt and acquitted the accused. The Supreme Court reversed the finding of the High Court and restored the conviction imposed by the Sessions Court. However, the Supreme Court modified the sentence of death to one for life imprisonment. The Supreme Court regarding the question of sentence, had observed as follows: “23. The last question is what sentence should be imposed upon the respondent. The learned Sessions Judge has imposed minimum penalty that would be imposed under the law namely sentence of death. The murder of near and dear ones including two innocent kids is gruesome. We must however be careful lest the shocking nature of crime may induce as instinctive reaction to the dispassionate analysis of the evidence both as to offence and the sentence. One circumstances that stands out in favour of the respondent for not awarding capital punishment is that the respondent did not commit murder of his near and dear ones actuated by any lust, sense of vengeance or for a gain. The plight of an economic have not sometimes becomes so tragic that the only escape route is crime. The respondent committed murder because in his utter helplessness he could not find few chips to help his ailing wife and he saw the escape route by putting an end to their lives. This one circumstance is of such an overwhelming character that even though the crime is detestable we would refrain from imposing capital punishment. The respondent should accordingly be sentenced to suffer imprisonment for life”. 10. In the decision reported in Machhisingh v. State of Punjab, (1983)3 S.C.C. 470 : 1983 S.C.C. (Crl.) 681: 1983 Crl.L.J. 1457: A.I.R. 1983 S.C. 957, the Supreme Court regarding imposing of the sentence in a murder case has observed as follows: “The extreme penalty of death need not be inflicted except in gravest, cases of extreme culpability. Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’. Life imprisonment is the rule and death sentence is an exception. Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’. Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances”. 11. Inanother decision reported in Muniappan v. State of Tamil Nadu, A.I.R. 1981 S.C. 1220, the Supreme Court has observed as follows: “All murders are terrific and if the fact of the murder being terrific is an adequate reason for imposing the death sentence, than 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”. Taking into consideration of the principles laid down in the abovesaid decisions, if we consider the factors of this case, we are of the firm opinion that this case does not warrant imposition of capital sentence. The accused was highly indebted to several persons prior to the occurrence and he was not in a position to pay off the debts. His successive attempts in starting one business or other failed and he incurred heavy loss. The only property viz. house site which he had purchased in the name of his wife was available to discharge his debts. His wife was unwilling to part with the property. He was suffering from mental agony for several months prior to the occurrence. In this background, even on the date of occurrence, he requested his wife to give the document of the house site so that he can sell the same to clear some of his debts. His wife was unwilling and even went to the extent of demanding divorce from him. Finding no way to lead a peaceful family life, he thought of putting an end to the life of the members of his family as well as his life. He did not want his children to lead a miserable life after his death. His wife was unwilling and even went to the extent of demanding divorce from him. Finding no way to lead a peaceful family life, he thought of putting an end to the life of the members of his family as well as his life. He did not want his children to lead a miserable life after his death. In these circumstances, he cut his wife and children with the chisel which was available in the house and also attempted to commit suicide. It cannot be said that the accused has planned beforehand and committed the murder with cruelty or for a sordid purpose. It is a case of murder committed by the accused on the spur of the moment and actuated by anger on the pitiable position in which he was placed by the financial strain and the refusal of his wife to cooperate. That the accused intended to commit suicide after murdering his wife and children is not in dispute. Though actually he cut himself with the same Chisel and caused injuries to him, he survived against his wish. These circumstances clearly go to establish that the accused did not intend to cause death of his wife and children in sense of vengeance or for any gain. Because of his poor economic condition, he thought the only escape route is putting an end to the life of the entire family including himself. Taking these factors into consideration, we feel that the accused should be sentenced to lesser punishment. Accordingly we modify the sentence of death to one of life imprisonment on all the four counts. We confirm the sentence imposed under Sec.309 of the Indian Indian Indian Penal Code which will stand merged with life imprisonment. 12. In the result, this appeal is partly allowed confirming the conviction passed by the trial Court and modifying the sentence of death to life imprisonment.