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2006 DIGILAW 1962 (MAD)

Sumathi v. State rep by The Inspector of Police

2006-08-04

A.C.ARUMUGAPERUMAL ADITYAN, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Prayer: This Criminal Appeal has been filed against the judgment dated 4.9.2003 passed in S.C.No.474 of 2000 on the file of the II Additional Sessions Judge, Chennai.) A.C. Arumugaperumal Adityan, J. This Appeal has been preferred against the Judgment in S.C.No.474/2000 on the file of the Court of II Additional Sessions Judge, Chennai. 2. The case of the prosecution in brief relevant for the purpose of deciding this Appeal are as follows: The accused on 19.11.1999 between 3.00 p.m. and 10.00 p.m. had committed murder of her son aged 4 ½ years and a daughter aged 2 ½ years by administering Bacon poison (a pesticide) and thereafter, attempted to commit suicide. P.W.4 is the husband of the accused, who after returning from his duty at about 10.45 p.m. on the same day, came to the house found the door locked inside and inspite of his repeated knocking at the door, the door was not opened hence he broke open the door with the help of P.W.7 and went inside the house and saw both his minor children lying dead on the bed and his wife, the accused herein, lying on the bed unconsciously. Thereafter, he took his wife to a private nursing home where first aid was given to the accused and on their advice, he took her to Raiyapettai Hospital and admitted her. After admitting her in the said Government Hospital, P.W.4 informed P.W.1, the father of the accused, who had preferred Ex.P.1-complaint on 20.11.1999 before P.W.12-Inspector of Police. P.W.12, who had registered the case under Section 302 and 309 IPC, proceeded to the place of occurrence and prepared observation mahazar and a rough sketch Ex.P.13 and conducted inquest on the corpse of the deceased minor Sairam and minor Indumathi and also seized the letter alleged to have been written by the accused to her father and send the corpse for postmortem and went to the Raiyapattai Hospital and arrested the accused on 30.11.1999 at about 2.00 p.m. and recorded her confession statement-Ex.P.14 and on the basis of the confession statement he recovered Bacon spray container(M.O.10) in the presence of the witnesses under Ex.P.15/Mahazar. The Doctor, who had conducted autopsy on the corpse of the children, was examined as P.W.11 and he issued Ex.P.7 and Ex.p.9 postmortem certificates respectively. The Doctor, who had conducted autopsy on the corpse of the children, was examined as P.W.11 and he issued Ex.P.7 and Ex.p.9 postmortem certificates respectively. After examining the witnesses and recorded their statements and completing the investigation, P.W.12 filed charge sheet against the accused. 3. The case was taken on file by the learned XVII Metropolitan Magistrate, Saidapet, who had furnished copies to the accused under Section 207 of Cr.P.C and since the case is triable by a Court of Sessions, had committed the case to the Court of Sessions under Section 209 of Cr.P.C. The learned Sessions Judge had framed the charges under Section 302 IPC (2 counts) and also under Section 309 IPC against the accused. When questioned the accused had denied her complicity in the crime. P.Ws.1 to 12 were examined and Ex.P.1 to 15 were filed and M.Os.1 to 10 were marked. After going through the oral and documentary evidence, the learned Sessions Judge has found the accused guilty under the above said provisions of law and consequently convicted and sentenced to undergo life imprisonment under Section 302 IPC (2 counts) and three months RI under Section 309 IPC. Aggrieved by the findings of the learned Sessions Judge, the accused has preferred this Appeal. 4. Now the point for determination in this Appeal is whether the conviction and sentence passed in S.C.474/2000 on the file of the Court of II Additional Sessions Judge, Chennai, is liable to be set aside for the reasons stated in the grounds of Appeal? 5. The point: It is a heart rendering pathetic murder case in which the mother is cited as the accused having murdered her 4 ½ year old son-Sairam and 2 ½ year old daughter-Indumathil by administering poison (pesticide) mixed in milk, she had also consumed the poison, but due to the treatment given to her, she had survived. Hence, she was charged under Section 302 IPC (2 counts) and under Section 309 IPC. Hence, she was charged under Section 302 IPC (2 counts) and under Section 309 IPC. P.W.4, the government transport bus driver, who is the husband of the accused, when returned from his duty on 19.11.1999 at about 10.45 p.m. saw the house locked inside and made an attempt to open the door, but failed to do so, with the help of P.W.7, a carpenter, who is residing in the same locality, broke open the door with the help of a chisel, and found inside the house both his children were lying dead with froth and blood oozing out from their mouth respectively and his wife/accused lying in an unconscious state. The evidence of P.W.4 was corroborated by the evidence of P.W.7, the carpenter. P.W.3 had also deposed to the fact that two children were lying dead in the house of the accused lying unconsciously on the bed. The accused was taken to the hospital by P.W.4. P.W.9, the doctor, who had examined her, issued Ex.P.6, copy of accident register. The accused was in the hospital from 20.11.1999 to 30.11.1999. P.W.11, the doctor, who had conducted autopsy on the corpse of minor Sairam aged 4 ½ years, has opined that due to poisoning and injuries over the neck the boy would have been dead. P.W.11, the doctor, has also conducted autopsy on the corpse of minor Indumathi and has given Ex.P.9-Postmortem certificate and has opined that the minor Indumathi would have died due to asphyxia due to strangulation. Ex.P.14 is the confession statement of the accused before P.W.12, the Inspector of Police, wherein she has admitted the fact of having committed the crime. During question under Section 313 of Cr.P.C., the accused had stated that her husband had boiled the milk and gave it to their two children and also to her to drink and after she took the milk, she became unconscious. But, there is no evidence on record to show that her husband had given the milk mixed with poison to the children and to the accused. On the other hand, the evidence of P.W.4 and P.W.7 would go to show that both the children and the accused were found in the house, which was locked inside. So, from the available evidence it is clear that the accused alone had committed the crime. 6. On the other hand, the evidence of P.W.4 and P.W.7 would go to show that both the children and the accused were found in the house, which was locked inside. So, from the available evidence it is clear that the accused alone had committed the crime. 6. The learned counsel for the appellant/accused relied on the decision reported in 2004(1) LW(Crl) 67 (Muthuvel & another Vs. State, etc) and contended that the confession statement of the accused can be taken also in favour of the accused under certain circumstances. The exact observation in the above said dictum runs as follows: "For deciding the nature of the offence committed by the first accused, it is stated that the confession statement given by him to the Police Officer, P.W.21 can be considered in entirety in view of the fact that it contained some facts which would be in favour of the accused. This principle has been laid down in Venkatesan Vs. State by Inspector of Police, Thirupporur (1997(2) MWN (Cr.) 141" A reading of Ex.P.14 confession statement will go to show the circumstance under which the accused was forced to take an extreme step of murdering her children, who were at very tender age at the time of the occurrence. After administering poison, the accused had also strangulated them to ascertain that they are dead, before committing suicide. The situation which pushed her to take the extreme step as narrated by her in Ex.P.14, is that her husband and her mother-in-law suspected her fidelity that she is having illicit intimacy with some other person and that her mother-in-law used to keep her under lock and key in the house and that since her sister Chitra had eloped with a boy by name Geevan, her mother-in-law used to abuse her referring to the past incident and due to the unbearable shame received at the hand of her mother-in-law, she had decided to inform this to her father through an inland letter on 13.11.1999 at 2.00 p.m. and administering poison to her children in the milk and also strangulated them and after committing murder of the children she also took the poison in order to commit suicide. 7. 7. Taking into the piquant situation under which the accused was placed, which led her to take an extreme step of murdering her own children and also to put an end to her life, now derive us to consider whether the accused is liable to be punished under Section 302 IPC (2 counts) and under Section 304, Part I, IPC. This position has been clarified in a Judgment of a Division Bench of this Court reported in 1989 L.w.(Crl) 86 (Suyambukkani Vs. State of Tamil Nadu). The facts of the said case are exactly similar to the present facts of the case, which are as follows: "The accused in the said case had caused the death of her two children aged 2 ½ years and six months and also attempted to commit suicide by throwing the children and herself by jumping into a well. She was sentenced to undergo life imprisonment. The accused in that case took such an extreme step of murdering her children and also to commit suicide only because her marital life was not happy because of her husband's callousness. Her husband used not to give enough money for meeting the household expenses and also he became addict to drink, which resulted in poverty and destitution to the murder of the children. There were constant quarrel between the spouses and her husband never allowed her to go to her parents' house and never allowed her mother or brother to visit his house. The accused would endure the ill-treatments meted out to her, but it was hard to her to swallow the total absence of care and affection of the husband towards the children. Even when they were sick she will have to carry both of them herself and he would not oblige by carrying one of them. Under the above circumstances, the younger child has fallen sick for about a month. Then she managed to get permission to go to her parents' house, where she stayed for 10 days and came back on 25.6.1983. She was scolded for having remained for such a long time in her parents' house. She on the contrary on account of the continuous bad health of the small baby wanted to go back. Then she managed to get permission to go to her parents' house, where she stayed for 10 days and came back on 25.6.1983. She was scolded for having remained for such a long time in her parents' house. She on the contrary on account of the continuous bad health of the small baby wanted to go back. Misunderstanding and quarrel between the spouses reached a climax and she was beaten, upon her return, then morning and evening on 26.6.1983 and also on the 27th in the morning and at the lunch time. The husband, who left the house after lunch came back home at about 9.30 p.m. on the 27th and found the door open without anybody inside. Upon enquiry with neighbours he learnt that she left the house and his search proved fruitless. On the next morning, the children and accused were found in the well. Under such circumstances, it was held by the Division Bench of this Court in the above said dictum as follows: "In this case, it is to be noted that more than the misery to which she was subjected, the accused was afflicted by the sufferings of her children. The father was not only indifferent, but even barbarous towards them. She got persuaded that after her death the children will be uncared of and would suffer innumerable torments and she could not reconcile with that idea. So it is after draining the cup of sorrow to the dregs that she decided to follow the Nallathangal's way. It is obvious that an act like that of the accused would not come within the meaning of murder, as contemplated in the Indian Penal Code. No doubt, the social fabric, as it prevails now in India, is responsible for the creation of situations like that of the accused. But the society will crumble, if each person even the mother who gave life to the children is to decide about life and death. The society expects the citizens, however ill placed they may be, to react to the situation, to call for help and to make an endeavour to survive. The act of the accused is obviously an offence in the contemplation of law. The society expects the citizens, however ill placed they may be, to react to the situation, to call for help and to make an endeavour to survive. The act of the accused is obviously an offence in the contemplation of law. But it cannot be considered as an offence under Section 302 IPC, which is the most heinous crime dealing with the most dangerous activities to the society, and the authors of which could be exterminated by the imposition of sentence to death. In fact, it would be incongruous to impose the sentence of death on a person who attempted to commit suicide and who was saved therefrom. The extreme course of family suicide, the mother along with her children, is clearly in our opinion an excusing circumstance equivalent to those enumerated in the exceptions to Section 300 IPC, and will be therefore in the nature of an exception, when the mother escapes and children die, bringing the offence to one punishable under Section 304, Part I, IPC." While allowing the above said Appeal, the learned Judges constituting the Division Bench after confirming the conviction under Section 309 IPC, convicted the accused under Section 304, Part I, IPC (2 counts) instead of under Section 302 IPC and sentenced to imprisonment for the period already undergone by the accused. 8. The facts of the above said case squarely applies to the present facts of the case. A reading of Ex.P.14 herein will clearly go to show that due to the unbearable torture received at the hand of her mother-in-law and her husband-P.W.4, the accused herein had taken the extreme step of committing murder of her two children and also had decided to put an end to her life by committing suicide. 9. So, we are of the considered opinion that the accused is liable to be convicted only under Section 304, Part I, IPC and under Section 309 IPC since she comes under the exceptions to Section 300 IPC under the category of sustained provocation. The point is answered accordingly. 10. In the result, the Appeal is partly allowed and the conviction and sentence in respect of under Section 309 IPC is confirmed and conviction and sentence under Section 302 IPC (2 counts) are set aside and the accused is convicted under Section 304, Part I, IPC (2 counts) and sentenced imprisonment for the period already undergone by her.