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2000 DIGILAW 1225 (MAD)

VANARANI v. STATE BY INSPECTOR OF POLICE

2000-12-01

MALAI SUBRAMANIAN, N.DHINAKAR

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Judgment : N. DHINAKAR, J. (1) THE accused appeals. The appellant who hereinafter will be referred to as the accused stands convicted by the learned 1 Additional sessions Judge. Tirunelveli for the offence of murder under two counts. The charge against her is that she, at about 6. 00 p. m. on 4-9-1989 caused the death of her two children Jayakanth and Sunil Kanth by pushing them into a well and throttling them and that during the course of the same transaction, she also attempted to commit suicide. The learned Sessions Judge, while convicting the accused for the above charges sentenced her to undergo life imprisonment for the offence of murder (under two counts)and rigorous imprisonment for a period of six months for the offence punishable under section 309 of the Indian Penal Code. Hence, the appeal. (2) FACTS necessary to dispose of the appeal are as follows: p. W. 3 is the younger sister and P. W. 4 is the elder sister of the accused. P. W. 3 was residing in the first floor of a house where p. W. 4 was residing. The accused was given in marriage to one Gunaseelan. Two children were born to the accused. The husband of the accused deserted her and went away to Rajasthan. As the deceased had no other relatives she took shelter alongwith her two children in the house of p. W. 3 her younger sister. The life of the accused in her sister's house was not happy. P. W. 3 always found fault with the accused and even she used to abuse her saying that she is in illicit relationship with her husband. P. W. 5 the Accused ashamed on account of this according to the prosecution took her two children at about 6. 00 p. m. on 4-9-1989 to a well and after pushing her two children into the well, She also jumped into the well to commit suicide. As the water level of the well was only knee-deep. She suffered a fracture and the children survived. She there after throttled the children to death and attempted to commit suicide by constricting her neck. In which attempt she failed to her misfortune. She remained in the well with her two dead children till about 11. 00 a. m. on 5-9-1989. (3) P. W. 6 who went to the well to irrigate her lands. She there after throttled the children to death and attempted to commit suicide by constricting her neck. In which attempt she failed to her misfortune. She remained in the well with her two dead children till about 11. 00 a. m. on 5-9-1989. (3) P. W. 6 who went to the well to irrigate her lands. Finding the accused in the well, informed the villagers. The accused and her two dead children were brought out dead. The accused was taken to P. W. 16 the doctor by her brother P. W. 7. P. W. 16 examined her and found a fracture on her right knee. He advised her to take an X-ray. After first aid, she was sent away by the doctor. P. W. 7 thereafter took the accused and produced her before P. W. 1 the Village Administrative officer to whom the accused narrated the incident, which was reduced into writing by him. The said statement of the accused is ex. P-1, P. W. 1 prepared Ex. P-2 yadasth. A copy of the yadasth and the statement of the accused are Ex. P-3. After preparing the yadasth. P. W. 1, sent Exs. P-1 and P-2 through p. W. 2 Talayarl. P. W. 2 produced the said documents at 8. 30 p. m. on 5-9-1989 before p. W. 19 the Sub-Inspector of Police. Uthumalai Police Station. On the basis of which he registered a case against the accused under Sections 302 (2 counts) and 309 of the Indian Penal Code. Ex. P-17 is the copy of the printed First Information Report. He informed P. W. 20 the Circle Inspector of police, Alangulam. (4) P. W. 20 on receipt of the information reached the police station and after obtaining the printed First Information report reached the scene of occurrence. At the scene of occurrence an observation mahazar, Ex. P-4 was prepared. He also drew a rough sketch Ex. P-18. M. Os. 1 and 2 series were recovered under a mahazar ex. P-5 Inquest was conducted over the dead body of Jayakanth between 1. 30 a. m. and 3. 30 a. m. and on the body of Sunil Kanth between 3. 30 a. m. and 5. 30 a.m. Exs. P-19 and p-20 are the inquest reports. At the time of inquest P. Ws. 1, 3 and 7 were examined. P-5 Inquest was conducted over the dead body of Jayakanth between 1. 30 a. m. and 3. 30 a. m. and on the body of Sunil Kanth between 3. 30 a. m. and 5. 30 a.m. Exs. P-19 and p-20 are the inquest reports. At the time of inquest P. Ws. 1, 3 and 7 were examined. P. W. 20 proceeded to the house of the father of the accused and arrested her. Nylon saree, m. O. 3 and the underskirt M. O. 4 produced by the accused were recovered under a mahazar Ex. P-6 attested by P. W. 1. The accused was brought to the police station and sent for treatment. P. W. 20 also sent a requisition to conduct autopsy on the dead bodies. (5) ON receipt of the requisition P. W. 18 went to the scene of occurrence and conducted autopsy on the body of the two children. He found the following injuries on the dead body of Jayakanth: (1) Body lies on its back. (2) Head: No evidence of fracture. (3) Eye swollen and protruded outside the orbit. (4) Embedded into the swollen face. (5) Mouth opened and tongue protruded outside in between teeth. (6) Neck swollen. (7) Chest swollen and skin over was peeled off with occasional blisters and vesicles. (8) Neck and thigh flexed at the knee joint with swelling. Internal Examination: (1) Brain andMeninges congested. No evidence of fracture skull. (2) Neck: Hyoid bone of both corners fractured. (3) Chest: Both lungs were congested with liquid blood. (4) Abdomen: Food particles. No evidence of poison. (5) Intestine (small) digested food particles. (6) Urinary bladder: Full of urine. He issued Ex. P-14 post-mortem certificate with his opinion that the deceased Jayakanth would appear to have died of asphyxia due to throttling. He also found the following injuries on the dead body of Sunil Kanth: (1) Body lies on the back. (2) Both upper limbs flexed at the elbow joint. (3) Both lower limbs flexed at the knee joint. (4) Head and face swollen. (5) Nose embedded into the swollen face. (6) Neck swollen: Skin was peeled off with appearance of vesicles here and there. (7) Abdomen swollen. (8) Chest Swollen. (9) No evidence of head bone. Internal Examination: (1) Head: No evidence of fracture bone meanings and brain congested. (3) Both lower limbs flexed at the knee joint. (4) Head and face swollen. (5) Nose embedded into the swollen face. (6) Neck swollen: Skin was peeled off with appearance of vesicles here and there. (7) Abdomen swollen. (8) Chest Swollen. (9) No evidence of head bone. Internal Examination: (1) Head: No evidence of fracture bone meanings and brain congested. (2) Neck: Major blood vessels of the neck congested with fracture of both corners of hyoid bone. (3) Lungs are congested with watery fluids. (4) Heart: left side of the heart empty. (5) Right side with clotted blood. (6) Abdomen: stomach full of food particles. No evidence of poison. (7) Intestine skull: digested food particles. (8) Urinary bladder: full of urine. (9) Pubis normal. He issued Ex. P-15 post-mortem certificate with his opinion that the deceased sunil Kanth would appear to have died of asphyxia due to throttling. (6) P. W. 20 continued his investigation questioned the witnesses and recorded their statements. The material objects were sent to court with a request to forward them for analysis. Further investigation was conducted by P. W. 21 who after verifying the investigation done by P. W. 20 and after recording the statements of some of the witnesses laid the final report on 12-1-1990. (7) WHEN questioned under Section 313 of the Code of Criminal Procedure including the circumstances appearing against her the accused denied them. (8) P. W. 18 the doctor who conducted autopsy on the dead bodies of the two children gave evidence before Court and stated that the two children died on account of asphyxia due to throttling. The children being young and they having been taken out from a well there can be no doubt in our mind that the said asphyxia was caused on account of homicidal violence. Since this court had no other evidence to come to the conclusion that they committed suicide. Alongwith the two children the accused was also in the well and was seen by P. W. 6. The accused was lifted alongwith two dead children from the well by P. Ws. 8 and 9. When it is proved that the accused was seen in the well alongwith two dead children, it is for the accused to explain as to how the two children died on account of asphyxia due to throttling. She has no explanation to offer. The accused was lifted alongwith two dead children from the well by P. Ws. 8 and 9. When it is proved that the accused was seen in the well alongwith two dead children, it is for the accused to explain as to how the two children died on account of asphyxia due to throttling. She has no explanation to offer. Therefore, we have no hesitation in coming to the conclusion that the non-explanation is a circumstance against the accused. The said inference of ours is supported by two other circumstances namely the fracture sustained by the accused on her right leg and the extra judicial confession given by her to P. W. 1 the village Administrative Officer at about 6. 00 p. m. on 5-9-1989. Though to the doctor it was stated that she fell into the well accidentally. We are unable to accept the said theory as it is seen from the observation mahazar prepared by the Investigating officer that he well had no parapet wall. We are unable to hold that the deceased and the two children fell accidentally and the two children died on account of drowning especially in the background of the evidence of the post-mortem doctor. The postmortem doctor was definite and he has stated that the two children died on account of asphyxia. The internal examination which he noted in the post-mortem certificates also indicate that the children could not have died on account of drowning but could have been done to death by throttling. Hence, the statement made to the doctor. P. W. 16 that the accused accidentally fall into the well is an incorrect statement made by the relative of the accused with a view to save her from prosecution. We, therefore, reject the said statement given to the doctor. (9) IN this background we will look at the evidence of P. W. 1 the Village administrative Officer within whose jurisdiction the occurrence had taken place. According to him at about 6. 00 p. m. on 5-9-1989 the accused was produced before him by P. W. 7 the brother of the accused (treated hostile) and the accused gave a statement, which was reduced into writing. On the basis of the said statement a crime was also registered by P. W. 19 at 8. According to him at about 6. 00 p. m. on 5-9-1989 the accused was produced before him by P. W. 7 the brother of the accused (treated hostile) and the accused gave a statement, which was reduced into writing. On the basis of the said statement a crime was also registered by P. W. 19 at 8. 30 p. m. In that statement the accused had stated that she jumped into the weil alongwith two children in order to die. Since she was living a miserable life on account of the desertion of her husband and on account of insinuating remarks of her younger sister. P. W. 3 under whose case they were living. We have no reason to reject the evidence of P. W. 1 and ex. P-1 the statement given by the accused. We accordingly accept them. Once the evidence of P. W. 1 is accepted that the accused had throttled the two children to death then there is no hesitation for this court to come to the conclusion that the two children died at the hands of the accused. We, accordingly hold so. (10) LEARNED Counsel for the appellant/ accused contends that the accused when caused the death of her two children was in a highly depressed stage and was also under severe strain. He submits that the accused had been provoked to the maximum extent by the words and deeds of her younger sister. P. W. 3 who must have provoked her to commit suicide alongwith two young children. In support of his plea he relies upon the evidence of PWs. 6 and 8 as well as the statement of the accused found in Ex. P-1 p. W. 6 in cross-examination has stated that during the relevant period the accused was in a mentally depressed stage and was saying to every body in the village that she is being called by the God. The said evidence is also supported by P. Ws. 3 and 9. The three witnesses who had come out with a version in favour of the accused were not treated hostile by the prosecution. We therefore, on the evidence hold that during the times of the incident the accused was under severe mental strain though we cannot say that she was insane, from the recitals in Ex. P-1 the state of mind of the accused could also be inferred. In Ex. We therefore, on the evidence hold that during the times of the incident the accused was under severe mental strain though we cannot say that she was insane, from the recitals in Ex. P-1 the state of mind of the accused could also be inferred. In Ex. P-1 the accused had stated that after her husband deserted her she was living in her sister's house and that her sister abused her stating that she is in illicit relationship with her husband and that she was put to shame on account of this. This statement of the accused when looked at the background of the evidence of P. Ws. 6, 8 and 9 shows that the accused was provoked to such an extent that she believed that she has no other choice except to leave the world. Therefore, she went and jumped into the well alongwith her two children and at that time she was deprived of her self control which made her to throttle the children and attempted to commit suicide by strangling herself. To her misfortune two children died and she survived. We on the circumstances feel that the appellant accused can be given the benefit of Exception 1 to Section 300 of the Indian Penal Code. (11) IN this regard, it is relevant to cite the decision in Suyambukkani vs. State of Tamil nadu wherein the Division Bench of this court has held that there is a cardinal difference between provocation as defined under Exception 1 an sustained provocation. The Division Bench went on to observe in the same judgment as follows: the only word which is common is provocation. What Exception I contemplates is a grave and sudden provocation whereas the ingredient of sustained provocation is a series of acts more or less grave spread over a certain period of time the last of which acting as the last straw breaking the camel's back may even be a very trifling one. We are therefore, far from grave and sudden provocation contemplated under exception I to Section 300 I. P. C. Sustained provocation is undoubtedly an addition by courts as anticipated by the architects of the indian Penal Code. We are therefore, far from grave and sudden provocation contemplated under exception I to Section 300 I. P. C. Sustained provocation is undoubtedly an addition by courts as anticipated by the architects of the indian Penal Code. ( 12 ) AS held by the Division Bench in the above judgment the exceptions under section 300, I. P.C. are not limitative and the courts have to examine whether nallathangal's syndrome can be considered as one of he exceptions. In all the exceptions as the Division Bench has observed either premeditation or ill will is absent and only when both are present, it will be impossible to consider the matter as an exception. By any stretch of imagination it cannot be said that the accused in this case had ill-will against her children. The absence of ill-will coupled with the circumstances in which she was placed indicate that she caused the death of her children when she was deprived of her self control and therefore, we hold that she is entitled for the benefit of Exception 1 to section 300 of the Indian Penal Code. On the above circumstances the conviction of the accused under Section 302 of the Indian penal Code cannot be maintained. (13) THEREFORE, the conviction and sentence imposed on the accused for the offence punishable under Section 302 of the indian Penal Code (2 counts) are set aside and instead, she is convicted under section 304, Part 1 of the Indian Penal Code (2 counts) and for the said conviction, considering the peculiar circumstances discussed by us above. She is directed to undergo rigorous imprisonment for a period of three years. The conviction and sentence imposed on the accused under Section 309 of the Indian Penal Code maintained. The sentences imposed on the accused will run concurrently. (14) IN the result with the above modification in conviction and sentence the appeal is disposed of.