Duraisamy Gounder vs State

C. Shivappa, J.—The appellant stood charged for having committed the offence u/s 302, IPC and was tried by the learned Sessions Judge,

Velore in S.C. No 84 of 1996 who convicted him u/s 302, IPC, imposing Rigourous Imprisonment for life for causing the murder of his wife

Danabakiyam Ammal and imposing sentence of death for committing the murder of his daughter Nagammal.

Against the said conviction and sentence, the appellant herein has preferred the Crl. A. No. 461 of 1997 and a reference has been made by the

Court of Sessions u/s 366 of the Code of Criminal Procedure for confirmation and it is numbered as R.T. 3 of 1997. Thus, both the reference and

the criminal appeal are before us for hearing.

The prosecution case is that the appellant Duraisamy, with his wife and children, was living in a shed situated in the midst of a garden, belonging

to the family, at Devarisikuppam village. He was addicted to liquor and used to demand money from his wife for the purpose of consuming liquor,

when resisted he used to quarrel with his wife on several occasions. On 18-10-1994, at about 2.00 p.m. PW 1 Chellappan, one of the sons of the

appellant, who went Gudiyatham market along with his brother for sale of agricultural products, while returning to his shed, heard the noise of the

appellant herein quarrelling with his mother. At that time, PW 3 Ganapathy and PW 3 Vinayagam, who were returning from the nearby village also

came there. Then, the appellant, with a sickle, assaulted on the head of Danabakiyam Ammal indiscriminately. On seeing this, the daughter

Nagammal intervened. In that process, she was also assaulted with the same weapon on the head and face. Nagammal fell at the entrance of the

shed. Dhanabakiyam Ammal fell outside the shed. When PWs. 1 to 3 went near the accused to catch him, he cut his own throat with sickle. PWs.

1 to 3 found Nagammal and Danabakyam Ammal dead. Immediately, PW 1 went to the police station at K. V. Kuppam. The appellant also went

to K. V. Kuppam Police Station on the same day at 4.30 p.m. with bleading injuries on his neck and he was not in a position to speak. He wrote

his father''s name, as per the evidence of PW 11, the Head Constable of the Police Station. PW 11 took him to the hospital for treatment under

requisition 41 of 1994, PW 10 Dr. Vennila, Civil Assistant surgeon, attached to Government Hospital, Gudiyatham, saw the accused at 5.55 p.m.

and at that time, the accused was not in a position to speak. From the signs showed by the accused PW 10 understood that he was cut by another

person by means of a knife and she found the following injuries on the person of the accused :

An horizontal incised wound on the front of the neck 5 cm. x 3 cm. x trachea depth. Wound gaping in the middle with tailing at either end.

Underlying trachea exposed with an horizontal incised wound in the front wall of the trachea. Fresh bleeding present.

The wound certificate is Ex. P-10. At 5.00 p.m. on the same day, PW 1 Chellappan appeared in the Police Station and gave an oral statement

which was reduced to writing by PW 15. As per Ex.P1, a case was registered in Cr. No. 390 of 1994 u/s 302, IPC. F.I.R. was sent to Court

with copies to the officers concerned, and the said F.I.R. is Ex. P-19.

PW 16, the Inspector of Police, Gudiyatham, received information at about 5.30 p.m. and reached the place of occurrence at 7.00 p.m. Since it

was dark, with the help of Petromax light, he prepared observation mahazar, Ex. P-2 in the presence of PW 5 Natarajan, the Village

Administrative Officer and one Perumal. The blood stained earth found near the body of Dhanabakiyam (M.O. 2) and sample earth (M.O. 3) and

the blood stained earth found near the body of Nagammal (M.O. 4) and sample earth (M.O. 5) were seized under the cover of mahazar Ex. P-3.

He prepared a rough sketch as per Ex. P-20 and photos were taken by PW 7. The photographs were marked as M.O. 7 series and the negatives

were marked as M.O. 8 series. After inquest as per Ex. P-21, he prepared the report in the presence of witnesses. The body was handed over to

PW 13 with a requisition, Ex. P-8, for post-mortem examination.

PW 8, Dr. Amuthamani, Civil Assistant Surgeon, attached to the Government Hospital, Gudiyatham received the body on 19-10-1994 at 1.30

p.m. As per Ex. P-6, she commenced the post-mortem examination at 3.25 p.m. on the same day and found the following injuries :

External Examination :

Lacerated wound about 6 cm. x 2 cm. on the left side of the occipital region.

A lacerated injury about 4 cm. x 2 cm. over the right eye-brow.

A lacerated injury about 3 cm. x 1 cm. over the right ear lobe.

A contusion about 5 cm. x 3 cm. over the right temporal region.

Internal Examination :

Thorax, Heart-250 gms. Lungs-right 400 gms; left 350 gms. Both lungs pale. Abdomen : stomach empty. Liver-1100 gms. Spleen-75 gms.

Kidneys-each 100 gms. Bladeer-empty. Uterus-normal in size. C/S empty. Hyoid bone-fracture of hyoid bone on left side. Skull-farcture of

occipital bone extending from left to right side involving the right temporal bone. Fracture of sphenoid bone present. Brain-1100 gms. Contusion

over the temporal lobe seen.

PW 8 was of the opinion that the deceased died of shock and haemorrhage due to the injuries on the vital organs of skull and brain and fracture of

hyoid bone, 22-27 hours prior to post-mortem examination Ex. P-7 is the postmortem certificate issued by him.

Dr. Prakasam, PW 9, Civil Assistant Surgeon, attached to Government Hospital, Gudiyatham on receiving the body on 19-10-1994 at 2.00

p.m. commenced the postmortem examination on the body of Nagammal and found the following injuries :

External injuries :

An incised wound about 2 cm. x 1 cm. over the right side of the chin.

An incised wound over the right maxilla about 4 cm. x 1cm.

An incised wound about 3 cm. x 1 cm. over the right eye-brow.

Contusion over the face on right side extending to the back of the right ear.

Fracture of the mandible on both sides with chin protruding out.

Internal Examination :

Heart-250 gms. Lungs-right 350 gms., left 300 gms. congested. Stomach-empty. Liver-1100 gms. Spleen-75 gms. Kidneys-100 gms. each

bladder empty. Uterus-normal C/S cavity empty. Hyoid bone-right side carotid vessles incised and fracture of hyoid bone on right side in same

line. Skull-normal. Brain-1100 gms.

PW 9 was of the opinion that death was due to shock and haemorrhage due to injury to vital organ. Right carotid vessles and facture of hyoid

bone right side, 22-26 hours prior to post mortem. Ex. P-9 is the postmortem certificate issued by him.

Later PW 16 examined witnesses and recorded their statements. He went to Vellore Hospital and found that the accused was in a seiosu

condition and was undergoing treatment for the injuries sustained by him. The accused was discharged from the hospital on 7-11-1994 and

thereafter, Pw 16 submitted a petition to hand over the accused to police custody for the purpose of investigation and on the order of the learned

Magistrate, took him to the custody and later, after voluntary confession of the accused, the admissible portion of which is Ex. P-4, he was

remanded to the custody as per the orders of the learned Magistrate. M.O. 1 sickle and M.O. 6 blood-stained dhoti were seized under the cover

of mahazar as per the confession, from near the lake known as ""Kanaru"" from a bush on the southern side of the road leading to Kalyana Periyan

Kuppam from Devarisikuppam. All the material objects seized were subjected to chemical examination with a covering letter, Ex. P-16 and the

chemical examiner''s report was marked as Ex. P-17 and the Seroligist''s report was marked as Ex. P-18.

After completion of the investigation, chalan was submitted and on being committed, the prosecution examined as many as 16 witnesses and

exhibited number of documents and material objects. The defence did not examine any witness but the accused pleaded not guilty and denied the

prosecution case on the grounds of improbability, interestedness and fabrication in the evidence of the prosecution.

The learned Sessions Judge has placed reliance on the testimony of PWs. 1, 2 and 3, the medical evidence of PWs 8 and 9 and the recovery. In

addition to these circumstances, the past conduct of the accused and the motive suggested by the prosecution have also weighed to some extent.

Vital aspects to be considered in this case are whether the appellant herein intentionally committed the murder of his wife and his daughter and

the materials available in this case warrant a penalty of death sentence.

PWs. 1, 2 and 3 are the eye-witnesses. They have deposed that they witnessed the incident. The topography indicates that PWs 2 and 3 were

passing the way and on hearing the noise came to the scene. All the three eye-witnesses have deposed that they had seen the appellant when he

inflicted the injury on the deceased persons with the sickle. It is in evidence that the deceased also cut himself in the presence of the eye-witnesses

and he also went to the police station immediately. These factors probablise his presence at the scene and his participation and there is no material

contradiction in the substratum of the prosecution case on this aspect.

Culpability in criminal jurisprudence is fixed taking into consideration the degree with which the intention cherished or the gravity with which the

incident had taken place or executed by the accused. The manner how the incident took place and the position of the victims at the time of the

incident are not stated by PWs. 1, 2 and 3, except stating that he weilded the sickle indiscriminately on the head of both the deceased. His

intention to kill or the strained relationship or that he designed to kill the daughter or he ever cherished to do away with them have not been spoken

to. The other aspect that he might have developed such intention during the incident has also to be ruled out, because it is not the prosecution case

that when the wife fell down he pursued his assault nor is it the prosecution case that when the daughter fell down, he attempted to inflict injuries on

her. Instead, the moment he saw the daughter sustaining injuries he had cut himself. This conduct during the incident and subsequent to the incident

takes away the fact that he developed intention at the spot.

It is in the evidence of the doctor that the death was due to shock and haemorrhage and as a result of profuse bleeding. It is also in evidence

that M.O. 1 sickle is the weapon of offence. No doubt, it is a curved, sharp edged weapon with a blunt edge on the one side. The injuries found

on the wife are all lacerations, contusions and abrasions. If he had really intended to kill his wife, he would have used the sharp edge of the

weapon, which would have naturally resulted in incised injuries. The daughter sustained injury when she came to rescue the mother just

accidentally, no doubt, on the vital part of the body. That was a deed not by a design nor by pre-meditation. But, happened just in the thick of

events. If he had really cherished the intention to do away with the deceased, there was no reason why he made himself available to the police.

Generally, a person is not made liable for serious crimes unless he intends to cause or foresees that he will probably cause or at the lowest, that

he may cause, the elements which constitute the offence in question. The elements of a crime are brought about intentionally, where a person brings

them about with a desire to do so. Where he has this aim or purpose he acts intentionally, though to his knowledge, his act is likely to result in the

death of the person or persons. Only then such person can be said to intend the doing of an act knowing the consequences of his own conduct.

Intention is not the same thing as motive. The mental element of a crime ordinarily involves no reference to motive. A bad motive is no more reason

for convicting a person of crime than a good motive is an excuse for acquitting him. It is not enough that a person intended to do an act the natural

and probable consequences of which would be to bring about those elements. Strictly, the mental element must be proved. Whenever an offence is

defined so as to require proof that a person intended or foresaw a particular result, the Court is bound in law to infer that such person intended or

foresaw that result by reason only of its being a natural and probable result of his actions, but must decide whether he did intend or foresee that

result by reference to all the evidence drawing such inferences from the evidence as may be proper in the circumstances. At best, it may be a case

of recklessness without intending or foreseeing the consequences of his act.

From what had been proved, it is clear that the accused was addicted to liquor, when his demand for money was refused by the wife that

refusal provoked him suddenly and he attacked the wife and consequently on the daughter who came to rescue the mother. The manner how the

incident has happened, it can be said that the accused did not attack the deceased deliberately or after pre-meditation, but, when he had lost his

control becoming emotional and therefore, the offence if any committed by him is not murder. His habit overtook his sense of discrimination and

reason.

Intention is a state of mind cherished either prior to the occurrence or at the spot, to achieve an object intended, causing injury, having

knowledge that such injury is likely to cause the death of the victim. Intention should not be misconceived for a motive. Motive is not a condition

precedent for any criminal act but to attract Section 300, IPC intention is a condition precedent. It serves as the basis to assess the culpability of

the accused with reference to several factors, such as the weapon of offence used, citus of the injury, the manner how the injuries were inflicted,

the position of the accused and the victim, at the time of the occurrence, and the conduct of the accused prior, during and subsequent to the

incident.

The intention of the accused as distinguished from knowledge about the consequence of his act is the determining factor to attract Part I of

Section 304, IPC. Where the accused had knowledge but no intention that the blows with the sickle were likely to result in death, it has to be held

that the offence committed is culpable homicide not amounting to murder, punishable u/s 304, Part II, IPC. If we examine from this angle, on the

facts and circumstances of the case, it does not appear possible to infer that the accused intended to kill the deceased. So far as the wife is

concerned, he was annoyed by her refusal to pay the money and so far as the daughter is concerned he was annoyed by the intervention. Where

the act appears to have been done with knowledge that it was likely to cause death but without any intention to cause death or to cause such

bodily injury as is likely to cause death will fall within the meaning of Part II of Section 304, IPC.

In Ramesh Vithalrao Thakre and another Vs. State of Maharashtra, , the Apex Court has held thus :

From the evidence on the record and the established circumstances, it is not possible to say with certainty that the appellant intended to cause the

death of Rekha. Even though the principle contained in Section 301, IPC would be applicable to the case, it appears to us that the appellant can

only be clothed with the knowledge that the injury which he was causing was likely to cause the death of Rekha but without any intention to cause

her death or to cause such bodily injury as is likely to cause death. The offence, under the circumstances, would be one which would fall u/s 304,

Part II, IPC.

Even in the instant case, the accused on a spur of a moment gave blow with sickle. It is a case of no intention to commit murder by weilding a

weapon like sickle, it could be attributed with knowledge that he was likely to cause an injury which was likely to cause death.

Now, we have to see whether the past conduct, as motive, has any relevance. It is in the evidence of PW 1 that the accused used to quarrel

with his wife and on one such occasion, he was punished by the Court. In order to make a past conduct as a circumstance, it has to be established

by cogent materials with particulars. The particulars regarding the date of occurrence, punished by which Court and how are not available. Of

course, a previous conviction is admissible in evidence in a case in which the accused is liable for enhanced punishment on account of having been

previously convicted. But, evidence of bad character is not admissible even to corroborate the prosecution story, on the principle that ""protection

of the law is due alike to the righteous and unrighteous. The sun of justice shines alike for evil and the good, the just and unjust. Crime must be

proved, not presumed."" Evidence of bad character may create prejudice and not lead to a step towards substantiation of guilt. Where both

prosecution and accused have let in evidence of character and antecedent of the accused, no question of prejudice arises and the inhibition

contained in Section 54 of the Evidence Act is not attracted. Therefore, a past conduct, which is not immediate in point of time will never serve as

a circumstance to weigh the evidence in any given case. An earlier unproved conduct cannot be the basis to infer intention on the part of the

accused to kill his wife and daughter.

The prosecution has suggested that the motive for the offence is the refusal to pay the money by the wife when he demanded to satisfy his

addiction to liquor. Any fact is relevant which shows or constitutes a motive or preparation or any act in issue. Such conduct is influenced by any

fact previously if it is significant and put forward as a motive or a circumstance it has to establish that motive or circumstance like any other

incriminating circumstance. If not established, it detracts the prosecution case on that ground, but if it is suggested, then such motive, the

prosecution is not bound to prove. But, if proved, it has to be taken into consideration whether it is adequate. In the instant case, it is in evidence

that he was addicted to liquor and demanding money from his wife and the refusal by the wife made him emotional to react violently.

The next aspect of the case is quantum of sentence. Sentencing policy in criminal jurisprudence is a delicate aspect. Regarding quantum of

sentence, after giving our anexious consideration to the facts and circumstances of the case, it appears to us that for deciding just and appropriate

sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be

delicately balanced in a dispassionate manner. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Lounde

Megautha v. State of Calfornia (402) US 183 L Ed II, 711 that ""no formula of a full proof nature is possible that would provide a reasonable

criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime of murder.

In the absence of any full proof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to

the consideration of gravity of crime of murder, the discretionary judgment in the facts of each case, is the only way in which such judgment may be

equitably distinguished.

In Shankar @ Gauri Shankar and Others Vs. State of Tamil Nadu, , this Court has indicated that the choice as to which one of the two

punishments provided for murder is a proper one in a given case will depend upon the particular circumstances of that case and the Court has to

exercise its discretion judicially and on well recognised principles after balancing all the mitigating or aggravating circumstances of the case.

In Jashubha Bharatsinh Gohil and Others Vs. State of Gujarat, , it has been held by the Apex Court that in the matter of death sentence, the

Courts are required to answer new challenges and would operate the sentencing system to meet these challenges. The object should be to protect

the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would

operate the sentencing system as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern

where it should be.

In Dhananjay Chatterjee alias Dhana Vs. State of W.B., , the Supreme Court has observed ""that shockingly large number of criminals go

unpunished thereby increasing encouraging the criminals and in the ultimate making, justice suffers by weakening the system''s credibility. The

imposition of appropriate punishment is the manner in which the Court responds to the society''s cry for justice against the criminal. Justice

demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not

only keep in view the right of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of

appropriate punishment.

Similar view has also been expressed in Ravji alias Ram Chandra Vs. State of Rajasthan, it has been held in the said case that it is the nature

and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be

failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also

against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform

to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public

abhorrence and it should ''respond to the society''s cry for justice against the criminal. If for extremely heinous crime of murder perpetrated in a

very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

While imposing the sentence of death, the learned Sessions Judge has taken into consideration the number of deaths and also opined that in

order to send a right signal, an extreme penalty of death is called for. This reason is incorrect, because it is the felonious propensity of an offender

which requires consideration while dealing with the question of imposition of sentence of death, but that alone cannot be the sole basis and all other

factors relating to the commission of the crime, including the motive, manner, magnitude, age, composition of the family, circumstances under which

the offence was prompted, keeping in view the entire evidence let in the case have also to be taken into consideration. In the instant case, the

appellant is aged about 65 years (now 68 years) and father of eight children amongst whom two sons and two daughters are already married and

has four minor children and the last son is studying in the III standard. They are without mother and PW 1 even according to his own evidence, is

living with another man''s wife, another son living separately with his wife. PW 1 has engaged all the three younger brothers in agricultural work and

they have to be at the mercy of PW 1 to settle in their future life. The absence of the father in their midst may make life miserable and there will be

no person to give the parental care. It is the environment that shapes the character and way of life of any person. There may be various reasons to

make a person habituated to any particular way of life. It is a different aspect. But, when ego kindled in his mind he though that his word should go

unresisted, when unheeded, he joined issue with his wife and in a frayed temper lost his reasonableness and reacted recklessly. In such a situation,

when a man was swayed by emotion, it has to be judged from the objective standard of reasonableness from the accused point of view how an

ordinary man would react in such circumstances, and that will provide the test, and if these circumstances are regarded as probable, then it is not

one of ""rarest of rare cases"" where the appellant should be sentenced to death. The conduct of the accused cutting himself with the same weapon

immediately after the daughter sustained the injury is indicative of his repentance and there is every possibility of his reformation. Keeping in view

the life of four minor children, imposing maximum punishment will deprive the accused of an opportunity for reformation, consequently taking care

of his minor children. In addition to these factors, in view of our reasoning that the offence is one without intention, awarding maximum punishment

is not just and appropriate. Keeping in view the circumstances which prompted to become violent, the manner how the offence was committed, the

age of the accused and composition of the family, we are of the opinion that in the circumstances of this case imposing rigorous imprisonment for

four years will meet the ends of justice.

In the result, (a) the conviction and sentence passed by the learned Sessions Judge in S.C. No. 84 of 1996 against the accused/appellant is

modified and instead, the accused is found guilty u/s 304 (Part II) IPC, on two counts, and is convicted and sentenced to undergo Rigorous

Imprisonment for four years and the sentences to run concurrently. The period of sentence already undergone shall be set off against the term of

imprisonment imposed on the accused, under Sec. 428 of the Cr.P.C. 1973 (b) In the view we have taken that it is not one of the rarest of rare

cases, the reference made by the Court of Session for confirmation is liable to be rejected. Accordingly, R.T. 3 of 1997 stands rejected.

Order accordingly.