Arunachalam, J.— The appellant Guruswami Pillai is the father of the deceased Pandiammal aged about seven years at the time of her death. In S.C No. 131 of 1984 on the file of the Principal Sessions Judge, Madurai, the appellant was charged not only for having caused the death of his minor daughter Pandiammal by cutting her throat with a blade, but also for having attempted to commit suicide, under Section 309 I.P.C, by cutting his throat, similarly with a blade, in the course of the same transaction.
Page: HC1542. The learned trial Judge found the appellant guilty on both the charges. For the former charge, he was sentenced to undergo life imprisonment while for the latter no separate sentence was awarded.
3. The occurrence had taken place at or about 11 a.m on 17.2.1984 at Modakathan Chettiar Kanmai, Soolamangalam Road, Madurai. The appellant was residing as a tenant in the house belonging to P.W 1 Murugesan at Sivagami Street, Sellur, on a monthly rental of Rs. 30/-. Five months prior to the occurrence, his wife died of tuberculosis. He was 63 years old at or about the time of the occurrence and he had to take care of his minor daughter Pandi, all by himself. For some time he sold the household utensils and maintained himself and the deceased. Due to stalk poverty, he was unable to take care of himself and his minor daughter any further. Starvation was the order of the day. He had to necessarily vacate the premises let out to him by P.W 1 and take refuge in the public platforms. Inspite of poverty, he could not persuade himself to beg initially, but when he did “no alms” frustrated him and the deceased. It was under those circumstances, he decided to kill his daughter Pandi and put an end to his life as well.
4. P.W 2 Rajamani, while he was returning from work at or about 6 p.m on 17.2.1984, found the appellant lying down under a tamarind tree near the Modakathan Chettiar Kanmai. The appellant was mumbling in a very low voice. He confessed to P.W 2 the hardships he had faced along with his daughter and said that both of them had starved for the past four days. He also told P.W 2 that the deceased would not allow him to leave her alone. Placed in such circumstances, he confessed of having cut the throat of the deceased with a blade leading to her death and later attempting to kill himself in the same pattern. P.W 2 took the appellant to a nearby mandapam. On information being passed on, P.W 8 Ramamurthy, Sub-Inspector of Police, Samayanalloor police station, arrived at the scene at or about 10.30 p.m The statement of the appellant was reduced into writing by P.W 8. The statement so recorded is Ex.P-1.
5. P.W 8 registered Crime No. 39 of 1984 on Ex.P 1 under sections 302 and 309 I.P.C He prepared printed F.I.R Ex.P 11 and forwarded copies of the same to the Court and superior officers. He seized M.O 1 bloodstrained dhoti of the appellant under a mahazar Ex.P 2 attested by P.W 2. Since P.W 8 noticed injuries on the appellant, he forwarded the latter to the Government Rajaji Hospital for examination and treatment.
6. P.W 5 Dr. Amudhan examined the appellant at or about 12.45 p.m on 18.2.1984 He found an incised wound 1½″ × 1″ over the centre of the neck. Bubbles of air escaped through the wound while the appellant breathed. The appellant was admitted as an in-patient in the hospital. In the opinion of the doctor, the injury found on the appellant was grievous in nature and could have been caused by a blade, due to self-infliction. If that injury had not been attended to, the patient would have died. Ex.P-5 is the wound certificate issued by him.
7. P.W 9 Balagururajan, Inspector of Police, Oomachikulam Police Station, received information of the registration of this crime at or about 1 a.m on 18.2.1984 He reached the scene of occurrence at about 3 a.m and prepared observation mahazar Ex.P 3 and drew rough scene sketch Ex.P 12. Between 7.30 and 9.30 a.m, he conducted inquest over the corpse of Pandiammal, during the course of which he examined P.Ws 2, 3 and others. Ex.P 13 is the inquest report. After inquest, he sent the body through P.W 6, Constable, to P.W 4 Dr. Thiyagarajan for the conduct of postmortem.
8. P.W 4, Dr. Thiagarajan conducted autopsy over the dead body of Pandiammal at 12.15 noon on 18.2.1984 and found the following injuries:
1. Three transverse linear incised wounds present in front of neck one below the other.
Page: HC155a. An incised wound 5 cms. below the chin 4 cms. × 0.5 cm. × muscle deep.
b. An incised wound 5 cms. below the previous wound 3 cm. × 0.5 cm. entering upto the air pipe.
c. A gaping incised wound 2 cms. below the previous wound 8 cms. × 2.5 cms entering the air pipe passing through the tracheal rings.
On dissection of injury No. c. surrounding tissues full of blood clots right jugular vein found cut off. Trachea infiltrated with blood clots.
2. Three linear crescentric lacerated wounds present in the inner surface of front of lower lip each .25 cm. × linear × muscle deep.
Other internal organs — Normal.
In the opinion of the doctor, the deceased would appear to have died of shock and haemorrhage due to neck injury sustained by her. Ex.P 4 is the postmortem certificate. Injury No. 1 a, b and c could have been caused by cutting with a blade. Injury No. 2 could have been caused by compression of the lip against the teeth. By closure of the mouth by compression of the lips with hand could have caused such a type of inner crescentric lacerated wound. Injury No. 1 (c) was sufficient to cause death, in the ordinary course of nature. Death could have occurred between 11 and 12 noon on the previous day.
9. P.W 9 obtained police custody of the appellant. He searched for the broken blades, the weapons of offence at Modakathan Chettiar Kanmai, but in vain. On 23.2.1984 he forwarded the material objects seized during investigation to the Laboratory for analysis, through court. Exs.P 15 and P. 16 are the reports of the Chemical Analyst and the Serologist respectively.
10. P.W 9 sent a requisition Ex.P 6 to the Chief Judicial Magistrate, Madurai, on 1.3.1984 to have the confession of the appellant recorded. P.W 7, the Judicial II Class Magistrate, Madurai, directed production of the appellant before him on 15.3.1984 When so produced, P.W 7 administered warnings as found in Ex.P 7 to the appellant. P.W 7 afforded opportunity for reflection to the appellant and had him produced over again on 16.3.1984 On 16.3.1984 P.W 7 administered warnings to the appellant as found in Ex.P 8. On being satisfied that the appellant at his own volition, wanted to confess, P.W 7 recorded Ex.P 9, the judicial confession of the appellant. Ex.P 10 is the certificate appended by the Magistrate. After completion of investigation, P.W 9 filed the final report against the appellant before the Committal Court on 31.3.1984
11. When the appellant was questioned under section 313 Cr.P.C on the incriminating circumstances appearing against him in evidence, he chose to deny his complicity in the crime. He went on to add that the police ill-treated him, which led to his statement before the Magistrate, which was not voluntary. The learned Sessions Judge, on an appreciation of the oral and documentary evidence, found the appellant guilty of both the charges and dealt with him in the manner indicated above.
12. The only question that has to be considered in this appeal is whether the appellant is guilty of the grave charge of murder. As far as the second charge is concerned, there cannot be a divergent opinion that on the evidence available, he is certainly guilty. We have the judicial confession of the appellant Ex.P 5, which is the basis for this prosecution. The lead assurance to his confession, we have the extra-judicial confession made by the appellant himself to P.W 2, within a short while of the occurrence. It may be that the judicial confession and the extra-judicial confession may not alone may not be sufficient to safe record a conviction on the appellant, but we have other intrinsic evidence and circumstances which corroborated the confession of the appellant generally in respect of the crime. In Ex.P 9, the appellant has stated as follows:
“I, the appellant, belong to Sokkanampudur. I came to Sellur, Madurai, about 35 years ago. I was in the Army before that for 2½ years. I was earning my livelihood by doing weaving work. I was living with my wife and minor daughter. Five months prior to occurrence, my wife was admitted in a hospital and without improvement she died. Thereafter, along with my daughter Page: HC156Parasakthi alias Pandiammal I was staying in the compound of Murugesa Mudaliar at Sellur. Without a job for me, we were hard-pressed even for food. None was prepared to offer us even alms. My daughter and I were so desperate. I asked my daughter as to what could be done. On Manimagam day (Friday), we suffered without food. We could not bear our hunger. To my daughter who was crying for food, I gave tamarind fruits. She asked for a sweet. I did not have even five paise. I cried stating I do not have any money. My daughter cried, requesting me not to leave her. I asked her what could be done. My daughter told me that both of us could die. I felt shattered. I purchased two blades from Pudur. Both of us were lying down, in a Pillayar temple. Next morning both of us spent some time underneath a tamarind tree at Chettiar Kanmai in Modakathan village. At or about 12 noon, hunger killed us. I asked my daughter as to what could be done. She told me there was no use living in this world and that both of us could die. I agreed with the wish of my daughter. Both of us went to the kanmai and had our bath. I bathed her and she helped me in my taking a both. Immersing my daughter by her neck underneath the water, I cut the front portion of her neck with a blade. My daughter died. The blade broke into two pieces. With another blade, I cut my throat. After cutting my throat, the blade broke into two. In the cut portion of my neck I put my fingers in and tried to tear my throat. Inspite of it I could not die. I came out of the water and swooned in the nearby field. The villagers took me to the police station. I was later forwarded to the hospital where surgery had been performed. Due to poverty and inability to maintain my minor daughter, I had committed this crime.”
13. The narration of his confession by the appellant is so natural, that inspite of retraction, we have to hold it as totally true and voluntary. The circumstances under which the offence was committed has been meticulously detailed. The story itself is heart-rending. Though the appellant had taken a stand before the trial Magistrate that the confession was not voluntary, in this appeal filed from jail, he has stated that he chose to deny his confession on legal advice. Contrary to his conscience. He has reiterated that his confession to the Magistrate was true and voluntary.
14. Along with Ex.P 9, we have scrutinised the evidence of P.W 2 Rajamani. P.W 2 has no motive whatsoever to falsely implicate the appellant in this crime. It appears natural that the appellant had confessed to P.W 2 when he saw him near the kanmai. This P.W 2 who had seen the appellant had set the law in motion by getting P.W 8 to the scene. We have no reason whatsoever to reject the evidence of P.W 2 which not only rings true but inspires total confidence. Ex.P 9 and the evidence of P.W 2 confirm the appellant as the offender. The medical evidence furnished by P.W 4 Dr. Thiagarajan in respect of the deceased and P.W 5 Dr. Amuthan in respect of the injury on the appellant himself, fully corroborate the manner in which the occurrence had taken place, so found in the judicial confession and the evidence of P.W 2. That the injuries sustained by the deceased and the appellant must have been caused by blades, has been fully affirmed by medical evidence. We have no hesitation whatsoever in holding that the appellant had not only killed his daughter minor Pandiammal, but had also attempted to commit suicide.
15. Having arrived at this conclusion, we have to now decide the nature of offence committed by the appellant, under the capital charge. This Court, in similar circumstances, had occasion to consider the nature of offence, that could be attributed to the set of accused similarly placed in Suyambukkani v. State of Tamil Nadu (1989 L.W Crl. 85). David Annoussamy, J. speaking on behalf of the Bench held as follows:
“In this case, it is to be noted that more than the misery to which she was subjected, the accused was afflected 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 drege that she decided to follow the Nallathangal's way. It is obvious that an act like that of the accused would not come Page: HC157within the meaning of murder, as contemplated in the Indian Penal Code.
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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 take 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 S. 302 I.P.C, 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 of 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.
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The accused was struggling to save the life of her younger baby who was sick. But once she has decided to put an end to her life she has clearly decided also to put an end to the lives of her children too, for their benefit after due deliberation, as she has unequivocally stated in her judicial confession. Therefore, she intended clearly the death of her children.
Here is a rare case where we are seized with the problem and we have to determine the true nature of the offence committed by the mother surviving against her will.
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It is well established that the accused caused the death of her two children and she did it intentionally. Therefore, the offence would be one of murder, unless it comes under the exceptions embodied in S. 300 I.P.C The wording of S. 300 I.P.C would suggest that those exceptions are limitative. However, one has to take a deep look at the way in which the code was framed, the intention with which it was drafted and the time when it was made applicable.
….
Therefore, though technically the exceptions to S. 300 I.P.C appear to be limitative they can no longer be considered so, after afflux of time. In fact, Courts have added one more exception known as ‘sustained provocation’.
….
Now that it is clear that the exceptions under S. 300 I.P.C are not limitative, we have to examine whether Nallathangal's syndrome can be considered as one of the exceptions. Since the Code in the structure makes the exceptions limitative, Courts have to show restraint on circumspection in adding exceptions and such additions should be ejusdem generis.
….
One thing is clear from an analysis of exceptions, namely, that in all the exceptions either premeditation or ill-will is absent. Therefore, when both are present, it will be impossible to consider the matter as an exception.
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As pointed out earlier, ill-will and premeditation should be both present in a case of murder. The absence of one of them coupled with an important excusing circumstance would transform the offence into a culpable homicide. In the present case, there is of course premeditation, but obviously no ill-will. 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 S. 300 I.P.C and will be therefore in the nature of an Exception, when the mother escapes and children die, bringing the offence to one punishable under S. 304, Part I, I.P.C”
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We are in full agreement with the observations of the Division bench in Suyambukkani's Page: HC158case. On facts, on the first charge, the appellant will be liable to be convicted under section 304, Part I, I.P.C and not under Section 302 I.P.C We accordingly alter the conviction. As far as the sentence to be imposed on the appellant is concerned, Mr. N. Duraisamy represents that the appellant is still in jail. The appellant has obviously spent more than 6½ years in jail. The period already undergone by him in prison would be sufficient to meet the ends of justice, on the modified conviction imposed by us. The maximum sentence imposable under Section 309 I.P.C is only one year, and on this court no separate sentence was imposed by the trial Court.
16. This appeal is partly allowed in the manner indicated above. Mr. B. Sriramulu, learned Public Prosecutor, had taken steps to find out possible rehabilitation of the appellant who will now get released from prison. Daya Sadhan, Perambur, which is an organisation run with Government grant, should be in a position to accommodate the appellant as an inmate. We direct the appellant be taken to Daya Sadhan, Perambur, by the Inspector of Police, Odmachikulam, soon after his release from prison, to be admitted as an inmate. The State will facilitate admission of the appellant at Daya-Sadhan, Perambur.
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