1. Petition for Anticipatory Bail filed under Section 438, Cr.P.C
2. Offences alleged are under Sections 309, 302, 302 r/w 109 of I.P.C
3. According to the learned Counsel for the Petitioner, Petitioner's husband is a drunkard. He used to torture her. He spent the entire money on liquor. Unable to bear his harassment, Petitioner had thrown her two daughters into the well. She also jumped into the well. Her daughters died. But she has survived. Unable to bear the harassment of her husband, she committed the offence.
4. The learned Counsel for the Petitioner further submitted that she has lost everything in life. She will not run away. She has fair antecedents. She is ready to co-operate with the Investigation Agency.
5. On the other hand, the learned Govt. Advocate (Crl. side) submitted that she is a killer mother. She has committed double murder. Investigation pending.
6. I have anxiously considered the rival submissions, perused the FIR and the Confessional Statement of A2.
7. This is a most unfortunate event/case. A pathetic story of poor people.
8. 22 years ago, Petitioner (A1) married Desingu (A2). Her daughters Aswini and Thenmozhi were married. Nivedha (15 years old) and Pavithra (13 years old) are Petitioner's daughters. They are studying in X Std. and VIII Std. in a Government School.
9. On 8.7.2014, evening, in a well, in the village, dead bodies of Nivedha and Pavithra were found. Petitioner was also found in the said well struggling for life. She was saved.
10. Chengam Police registered a case in Cr. No. 249 of 2014 for offences under Section 309, I.P.C as against Petitioner for having attempted suicide and also Section 302, I.P.C for having killed her daughters.
11. It is a case of double murder.
12. Very very serious allegations are made against her.
13. We have to see whether she has a prima facie case in her favour? Whether in the facts and circumstances of the case she could be granted pre-arrest/advance/Anticipatory Bail, in other words, Bail before jail.
14. In the presence of witnesses, Confessional Statement of her husband (A2) has been recorded by the Investigation Officer.
15. Confession to Police is inadmissible. It cannot be used against the Accused except to the extent provided in Section 27 of the Indian Evidence Act. (See Sections 25, 26 & 27 Indian Evidence Act, 1872). The total bar is for using the Confessional Statement only as against the Accused. A Confessional Statement may also contain many information including the circumstances under which the offence has been committed. It may be used in favour of the Accused. (See Hasil v. Emperor, AIR 1942 Lah. 37; Lalkhan v. Emperor, AIR 1948 Lah. 43; In re Mottai Thevar, AIR 1952 Mad. 586; In re Rayappa Asari, 1972 Crl. LJ 1226; In re Thandavan, 1973 Crl. LJ 1041, Manickam v. State, 2012 (2) MWN (Cr.) 339 (DB) : 2011 (3) Crimes 509, Rohidas Manik Kasrale v. State of Maharashtra, 2012 Crl. LJ 917; and Rajesh v. State, 2012 (2) MWN (Cr.) 524 (DB).
16. Thus, we can refer to the Confessional Statement of the Accused to know why the double murder took place? Why the Petitioner had pushed her two daughters into the Well?. What motivated her to do so? Why she has gone to such a level? Why she has attempted suicide?
17. From the Confessional Statement of the Accused, it is seen that Petitioner belongs to poor strata of society. Their's is hand to mouth. A penury striken family. They are battling for their everyday survival. The Petitioner is an Agricultural labourer. Her husband is a mason. He is a drunkard. He used to come to the house fully drunk. He used to beat his wife mercilessly. The family borrowed heavily for the marriage of their two daughters. They have to pay huge money to the fleecing local moneylenders. Petitioner's husband is also not going for a job. Petitioner has been under tremendous pressure from various quarters.
18. She is engulfed in family worries. On 8.7.2014, morning, Petitioner's husband received Rs. 5,000/- from a shop keeper. He spent the entire money on liquor. In this connection, quarrel arose between the spouses. As usual, he had beaten her mercilessly. Their daughters Nivedha and Pavithra wept. The beast left the place.
19. Under these circumstances, Petitioner took her daughters to the nearby Well, thrown them into the Well one by one and she also jumped into the Well. Her two daughters died. But she survived. Very very pathetic. Very very sad. It is heart rendering. Our heart bleeds. She remind us of our ancient Nallathangal.
20. In Chapter XVI of Indian Penal Code, in Section 299, I.P.C ‘Culpable homicide’ has been put as under:
“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commit the offence of culpable homicide.
(Emphasis supplied)
21. It is pertinent to note that in Section 299, I.P.C, ‘mens rea’ (guilty mind) has been expressed in three dimensions.
22. It is apposite here to note ‘Exception 1 to Section 300 of I.P.C’. It runs as under:
“Exception 1-When culpable homicide is not murder: Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person, who gave the provocation or causes the death of any other person by mistake or accident.”
23. In re Duffy, 1949 (1) All ER 932, the English Court of Appeal, described ‘provocation’ as under:
“Provocation is some act, or series of acts, done by the dead man to the Accused, which would cause in any reasonable person, and actually causes in the Accused, a sudden and temporary loss of self-control, rendering the Accused so subject to passion as to make him or her for the moment not master of his mind.”
24. Under certain circumstances, the offence of murder will not be murder. Those circumstances are stated in Section 300, I.P.C in the form of “Exceptions”. In those exceptional circumstances, killing of a person will be ‘culpable homicide not amounting to murder’.
25. One such circumstance/exception is provided in Exception 1 to Section 300, I.P.C It is, if the offence is committed, when the offender has lost his power of self-control due to grave and sudden provocation, it will not be murder but culpable homicide not amounting to murder. It will be punishable under Section 304, I.P.C Part (I) (if it is an intentional act) and under Part-(II) (if it is committed with sufficient knowledge as to its ensuing consequence).
26. ‘Provocation’ stated in Exception-1 to Section 300, I.P.C gives the impression that it must be sudden, it must be on the spot, it must be on the spur of moment, a provocative act erupted at the moment.
27. When provocation was nurtured, sustained in the mind of the offender for a reasonable period and got exploded at a later point of time the problem arises. Such a situation has not been explicitly expressed in Lord Macaulay's Section 300, I.P.C
28. In K. M. Nanavati v. State Of Maharashtra , 1962 (1) MLJ (Crl.) 531 (SC), the Hon'ble Supreme Court read into the Exception the following propositions:
“1. The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society to which the Accused belongs, and placed in the situation in which the Accused was placed, would be so provoked as to lose his self-control.
2. In India, words gestures may also, under certain circumstances, cause grave and sudden provocation to an Accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code.
3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.
29. In re Suyambukkani, 1989 LW (Crl) 86, this Court has occasion to consider the proposition as to provocation in Indian Criminal Law.
30. In Suyambukkani (supra), Dr. Justice David Annousamy while referring to the eloquent submission of Mr. N.T Vanamamalai, the learned Senior Advocate, who appeared for the Accused that in the facts and circumstances of the case, the act of the Accused did not amount to murder within the meaning of I.P.C
31. The learned Judge observed as under:
“21. It is clear from the opinion of the important architects of the Indian codification that Anglo Indian Codes, which were the first experiments in English language in the art of codification, in spite of their immense value, are far from being perfect and were intended to be overhauled from time to time. Therefore, though technically the Exceptions to Section 300, I.P.C appear to be limitative they can no longer be considered so, after the efflux of time. In fact, Courts have added one more exception known as ‘sustained provocation’. The leading decision in that field is the well known Nanavati's case, AIR 1962 SC 605. That decision is not the first one to take into consideration the situation of sustained provocation. There are previous decisions, which are reviewed in that case are: The Empress v. Khagayi, ILR (2) Mad. 122; Boya Munigadu v. The Queen, ILR (3) Mad. 33, In re Murugien, 1957 (2) MLJ. 9 : 1957 MLJ (Crl) 271 : 1957 Crl. L.J 970 : ILR 1957 Mad 908 : AIR 1957 Mad. 541; In re Chervirala Narayan, In re., 1958 (1) An.W.R 149 : AIR 1958 Mad. 235; Balku v. Emperor, AIR 1938 All. 532; and Babu Lal v. State, AIR 1960 All. 223. Thereafter, several decisions have been pronounced and recently by this Court dealt with the same subject in the following unreported cases C.A No. 70 of 1981, dated 15.12.1982, Lakshmi v. State; C.A No. 417 of 1985, dated 10.2.1986, Dhaman v. State; C.A No. 184 of 1983, dated 6.2.1983, Dsvanthan @ Mani v. State; C.A No. 301 of 1984, dated 4.8.1988, Gopal v. State. Though there has seen here and there attempts, in those decisions to bring the sustained provocation under Exception 1 to Section 300, I.P.C, there is a cardinal difference between provocation as defined under Exception 1 and sustained provocation. 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 1 to Section 300, I.P.C Sustained provocation is undoubtedly an addition by Courts as anticipated by the architects of the I.P.C
(emphasis supplied).
32. The principle evolved by Dr. Justice David Annusamy in In re Suyambukkani (supra), has become ‘Nallathangal Syndrome’ in Indian Criminal Law.
33. Only after several years in R v. Ahluwalia, 1992 (4) All ER 889 : 1993 (96) Cr. APP. R 133, when a battered women of Indian origin, who had killed her husband after years of physical violence at his hands, came to the Court of Appeal, the English Court had the occasion to overhaul its perspective of the law relating to provocation with respect to manslaughter and homicide.
34. In Ahluwalia (supra), the Appellant pleaded for substitution of her conviction for manslaughter for that of murder. The English Court started looking at the past provocative incidents as relevant provocation.
35. Lord Justice Taylor of Gosforth, C.J addressing the Appellant's submission that expert evidence showed that women, who have been subjected frequently over a period to violent treatment may react to the final act or words by “slow burn” reaction rather than by an immediate loss of self-control held that “we accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a ‘sudden and temporary loss of self-control’ caused by the alleged provocation.”
36. The principle evolved by Chief Justice Taylor in Ahluwalia (supra), has become ‘Battered Woman Syndrome’ in English Criminal Law.
37. Thus, the English Courts do accepted the Indian innovative principle of “sustained provocation” as “cumulative provocation” in their Criminal jurisprudence.
38. Prof. Stanley Yeo of School of Law and Justice, Southern Cross University, Australia made a comparative study of law relating to provocation and self-defence in India, England and Australia and in his admirable book “Unrestrained Killings and the Law” (Oxford University Press, 2002) at page 27 concluded:
“This comparative survey shows that, while cumulative provocation is now recognized in all three jurisdictions, the Indian Courts were the earliest to adopt it, followed by the Australian Courts with a few exceptions, and only lately by the English Courts. Accordingly, an appraisal of Indian law on the matter by English and Australian lawmakers might well have persuaded them to sooner embrace the concept of Cumulative Provocation.”
39. In Poovammal v. State, 2012 (2) MWN (Cr.) 276 (DB) : 2012 (2) MLJ (Crl) 482, this Court referred to the offence of manslaughter in English Law, an offence committed during provocation and observed as under:
“30. Under the English Criminal Law, the provocation must be grave and also sudden. But, by way of judicial thinking, the Indian Criminal Law has gone ahead. K.M Nanavati v. State of Maharastra (supra). In our system, there is the concept of “sustained provocation”. It is concerned with the duration of the provocation. There may be incidents/occurrences, which are such that they may not make the offender suddenly to make his outburst by his overt act. However, it may be lingering in his mind for quite sometime, torment continuously and at one point of time erupt, make him to loss his self control, make his mind to go astray, the mind may not be under his control/command and results in the offender committing the offence. The sustained provocation/frustration nurtured in the mind of the Accused reached the end of breaking point, under that Accused causes the murder of the deceased.”
40. In Vashram Narshibhai Rajpara v. State Of Gujarat., 2009 (9) SCC 168, the house purchased by the Accused was not to the liking of his wife and daughter and they continuously rebuked him, unable to bear this at one point of time he killed them.
41. The Hon'ble Apex Court held that though they were all living together, the continuous harassment and constant nagging could have very well affected his mental balance and as such sustained provocation could have reached a boiling point resulting in the dastardly act and ultimately set aside the death sentence and awarded him life sentence. (also see Santosh Satish Bhusan v. State of Maharashtra, 2009 (6) SCC 498)
42. Thus, in the backdrop of the law relating to provocation, particularly sustained provocation, when we look at the facts of the present case it comes to light that as between the Petitioner and her husband there was continued strained relationship. The reason being the harassment of the Petitioner by her husband.
43. On the occurrence day, prior to throwing her daughters into the well, there was wordy altercation between the spouses relating to his continued torture and irresponsible behaviour when the family is in utter financial crisis. Because of such treatment, her sufferings nurtured in her mind, fairly for a long time got errupted. Because of the behavior and conduct of her husband, her mind got agitated.
44. In the circumstances, the ‘triggering incident’, namely, the quarrel just before the occurrence and in view of his previous provocative conduct, the Petitioner had lost her power of self control, then she was not master of her mind. Under these circumstances, the Petitioner had pushed her daughters into the well, she also don't wished to live in this world and decided to leave the world and thus, jumped into the well. But, fate was also cruel to her. She has survived to undergo further agony. Her misery did not end, it continues.
45. It is seen that there was heart burning on the part of the Petitioner. It is because of the continued torture of her husband actuated by his drinking habit, continued beating and spending the entire money on liquor. It had sustained in her mind. Further, the family is already heavily indebted. Under these circumstances, on the occurrence day, he spent the hard earned Rs. 5,000/- also on liquor. When Petitioner questioned him, he mercilessly beaten her in front of their two daughters and left the house. The passion, in her mind suddenly aroused. It has motivated her to take a drastic decision. Suddenly, she took her two daughters to the nearby well and pushed them into well and she also jumped into the well. Her two daughters have drowned in the water and died. She was saved. She killed her daughters due to sustained provocation. It is also due to grave and sudden provocation.
46. Petitioner's husband is a useless husband. He is a drunkard. She lost her two daughters. Petitioner caused the deaths under tragic circumstances. Her two elder daughters are married and are residing somewhere. Petitioner has roots in society.
47. In the circumstances, she cannot interfere with the investigation. She will not flee away from justice. In the circumstances, her arrest is not necessary. In the circumstances, her arrest does not serve any justifiable purpose. It will add fuel to her sufferings. But, there is no bar for the Investigation Officer to do his lawful work. Let the Trial Judge decide the case based on evidence, merit and law. But, now no need to arrest her.
48. In the circumstances, there is prima facie case in her favour.
49. We have taken such a view for the limited purpose of granting her pre-arrest Bail.
50. In view of the for goings, I am inclined to grant her Anticipatory Bail.
51. Ordered as under:
(i) Anticipatory Bail granted.
(ii) Petitioner shall surrender before the learned Judicial Magistrate, Chengam, within 15 days of receipt of a copy of this order;
(iii) Petitioner shall execute a bond for Rs. 5,000/- (Rupees five thousand only).
(iv) Petitioner's daughters Ashwini and Thenmozhi shall execute surety bond for Rs. 5,000/- (Rupees five thousand only) each to the satisfaction of the said Magistrate;
(v) Petitioner shall report before the Respondent-Police on every Monday and Friday at 10.30 a.m for two weeks and thereafter as and when required for interrogation.
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