In re: Antony Cruz

N.K. Jain, J.—The appellant/accused Antony Cruz, stood charged for having committed the offence under S. 302 I.P.C. (two counts) and

was tried by the learned Additional Sessions Judge-cum-Chief Judicial Magistrate, Vellore N.A. District in S.C. No. 22 of 1996, who by

judgment dated 2-5- 1997 convicted the accused under S. 302 I.P.C. imposing sentence of imprisonment for life for causing the murder of his wife

Pachaiyammal and imposing sentence of death for committing the murder of his mother-in-law Muniamma. Both the sentences to run concurrently.

A Reference has been made by the Court of Session under S. 366 of the Code of Criminal Procedure for confirmation. It is numbered as R.T.

No. 5 of 1997. Against the conviction and sentence imposed, the appellant herein has also preferred Criminal Appeal No. 965 of 1997. Thus,

both the Reference and the Criminal Appeal are before us for hearing.

Now, the prosecution case in brief is:

P.W. 1 Mani @ Ravi, alongwith P.W. 4 Sundaravel, appeared before Vaniyambadi Police Station on 1-1-1994 and gave an oral complaint of the

incident, which was reduced in writing by P.W. 13, Vijayaraghavan. The date of the incident was 31-12-1993 whereby Pachaiyammal and her

mother Muniamma were murdered by Antony Cruz, husband of Pachaiyammal.

It is alleged P.W. 1 Mam @ Ravi was the brother''s son of Muniamma, and her daughter was Pachaiyammal. Pachaiyammal''s husband is

Antony Cruz. They were residing in a rented house, near the house of P.W. 1. Accused was residing at Udayendram, his native place.

Pachaiyammal and accused were having one daughter and three sons. Accused, later, shifted his residence to Buddar Nagar. Pachaiyammal was

working at a leather factory. There one Subramani was also working as a collie and they developed an illicit intimacy which fact is known to

Antony Cruz. Several problems arose in the family due to this and there is often quarrel and at that time Antony Cruz used to go to his mother''s

house at Udayendram, and P.W. 1 used to sleep in the house of Antony Cruz so as to guard them. Often there is a quarrel in the family. Prior to

two years also, a Panchayat was sorted out by headman of the Panchayat and he settled a compromise between them. Thereafter again there is a

quarrel. Antony Cruz went to his mother''s place and in that time, Subramani regularly visiting the house of the accused and performed the marriage

of Antony Cruz''s daughter with one of his relatives, on his own money. On account of that, enmity developed both on account of illicit intimacy

and on account of the marriage of his daughter. About 15 days prior, he again quarreled and he told that he would either kill her or Subramani.

On 31-12-1993, since Antony Cruz did not turn up to the house, at 9:00 p.m. P.W. 1 Mani went to the house of accused as usual and was

sleeping outside. Suddenly, he heard the noise at about 10:00 p.m., Antony Cruz was quarreling with Pachaiyammal and Muniamma. On hearing

the noise, P.W. 1 shouted at him ""why you are making quarrel. At that time, P.W. 2 Moorthy and P.W. 3 Pratap came there. Pachaiyammal also

scolded Antony Cruz stating let me see whether you can beat me"". Antony Cruz took a crow-bar, which was kept in the outside room, and gave

two blows forcibly on Pachaiyammal''s head, inspite of the warning of P.W. 1. It is also alleged that Muniamma, who was sleeping, asked Antony

Cruz, as to why he is beating her daughter. Accused gave two blows on her head, by the crowbar stating ""let you also die"". Then he sped away in

the dark. P.W. 1 found both Pachaiyammal and Muniamma dead. P.W. 1 informed about the incident to the relatives and headman and searched

Antony Cruz till morning. But, he was not traceable. Hence, he came along with headman to the police station and lodged the complaint. Ex. P. 1.

P.W. 13, Vijayaraghavan, Sub Inspector of Police, registered the case under S. 302 I.P.C. The F.I.R. is Ex. P. 17. The case was handed over

to P.W. 14, Aandi for further enquiry. On 1.1.1994, P.W. 6 Malligairaj produced the accused before P.W. 14, P.W. 14 arrested the accused and

made a confession statement. Then, P.W. 14 visited the scene of occurrence, enquired P.W. 7, Ramamurthy, Village Administrative Officer,

prepared Ex. P.2 observation mahazar, prepared Ex. P.18 sketch and then arranged to take photographs regarding the place of occurrence. P.W.

14 conducted inquest on the corpse of both deceased which are exhibits P. 19 and P.20. Requisition was sent through P.W. 9 Raja and another

constable. The corpse of the deceased were also handed over to P.W. 9 Raja and another constable for conducting post-mortem.

P.W. 10, Dr. Indrani, on 2.1.1994 at 2:00 A.M. conducted post-mortem on the body of Muniamma and found four injuries. She opined that

the deceased Muniamma would have died 34 to 40 hours prior to post-mortem due to the injury caused on her head. He gave Ex. P.9 certificate.

At about 3:30 P.M. P.W. 10 Dr. Indrani conducted post-mortem on the body of Pachaiyammal and found four injuries. She opined that deceased

Pachaiyammal would have died about 36 to 40 hours prior to the post-mortem due to the injuries caused on her head.

P.W. 14, Aandi, recovered M.Os. 2, 3, 4 (series), 6, 7, 8, 9 (series) 10, 11, 12 and 1 which is crow-bar (M.O.1) in the presence of P.W. 1

Mani @ Ravi and one Babu under mahazar Ex. P.3 P.W. 14 enquired witnesses and recorded their evidence. P.W. 14 recovered M.Os.21 and

22 from the accused, under Form 95, which is Ex. P.22. The accused Antony Cruz was sent to judicial custody. P.W. 14, also recovered M.Os.

23, 24, 25 produced by police constable Govindasamy, under Form 95. P.W. 14 sent a requisition, Ex. P. 11, to the Court requesting to send the

material objects for chemical examination which were duly sent by the Head-clerk of that Court, P.W. 11 Narasimhan. Biological examination, Ex.

P. 14 was received on the same day and serologist report, Ex. P. 15, was received on 5.6.1995. On 6.6.1995, another serologist report, Ex. P.

16 came.

P.W. 14 made arrangements to obtain confession statement from the accused. On 13.1.1994, P.W. 8 Ganesan, after administering the warning,

recorded the confession statement as per the procedure. Ex. P.6 is the confession statement of the accused.

After completing the investigation, P.W. 15, Natesan, filed the charge sheet against the accused under S. 302 I.P.C. The case was originally

committed to Sessions Court, and then transferred to the trial Court.

On being committed, the prosecution examined as many as 15 witnesses and exhibited 22 exhibits and 25 material objects. The defence did

not examined any witness. The accused pleaded not guilty and denied the case of the prosecution when questioned under S. 313 Cr.P.C. and

submitted that a false case has been made out by taking his clothes from his house and seeks trial.

The learned Additional Sessions Judge, after considering the material on record and hearing both the parties, came to the conclusion that since

there was an illicit intimacy between Subramani and Pachaiyammal and they often quarrel, even there was a compromise by panchayat and the

accused having in mind his wife had illicit intimacy with Subramani and had the grudge to murder his wife, He also found that not only that, but he

murdered his mother-in-law for which action was not justified to take that stand. Hence, for the brutal murder committed on his mother-in-law the

court has awarded capital punishment having stated as above. For committing the murder on Pachaiyammal, the Court awarded imprisonment for

life as stated above.

Learned Counsel for the appellant submits that the learned trial Judge has not appreciated the evidence in the right perspective. He submits that

the presence of paramour Subramani at the time of occurrence has been admitted by P.W. 1, even then, the learned Judge has ignored this

material and also has not considered the argument and the fact that the accused inflicted the blows which ended in murder because of sudden and

grave provocation. Under the circumstances, it is prayed that the benefit of provision, exception of S. 3 00 may be given to the appellant and the

sentence may be imposed under that provision accordingly.

It is also argued by the Learned Counsel for the appellant that on the basis of the material evidence, same degree of provocation should also

be considered for the offence of murder of mother-in-law. Learned Counsel further submitted that, in the facts and circumstances of the case on

hand, death sentence cannot be granted and as such he prays for the rejection of referred Trial 5 of 1997 and the criminal appeal 965 of 1997 can

be disposed of accordingly.

Learned Additional Public Prosecutor submits that because the accused wanted to dispose of the wife, he made the blows on her and

committed the offence of murder. The brutal attack on the innocent mother-in-law should be viewed seriously by tins Court and he submits, in such

circumstances the death sentence awarded by the Trial Judge is to be upheld.

The main question for consideration is whether under the circumstances of the case and on the material on record, whether the appellant herein

intended to murder his wife and mother-in-law and whether this case does warrant a penalty of death sentence.

We have considered the entire evidence independently afresh. We have given our careful consideration to the arguments of the leaned counsel

appearing on either side. We have perused the material on record meticulously.

It is seen from the evidence available on record that there is sufficient material to show that the deceased Pachaiyammal had illicit intimacy with

one Subramani, who had been working in a factory. Subsequently, Pachaiyammal, the wife of the accused, stopped from going there for work.

But, Subramani often used to visit her house. Witnesses also deposed that due to this fact, often quarrel existed between the accused and

Pachaiyammal and that the dispute has gone to the stage of panchayat in the village. So, it is clear that the accused has got hatredness towards the

deceased and whenever the quarrel reached high degree, the accused used to go to his native place. In those circumstances, P.W. 1 used to sleep

as a guard at the residence of the deceased. It has also come on record that P.W. 1 is a close relative of the deceased.

On the fatal day also, P.W. 1 was at the house of Pachaiyammal. When the accused came late to his house, there was a quarrel about

Subramani. The accused quarrelled with Pachaiyammal as to who had visited the place when he returned home late. This fact could be seen from

the evidence of P.W. 1, who as usual, had the slept at the residence of Pachaiyammal, outside the house, in a cot.

It is seen from the evidence that the accused quarreled as to who went out of the house. This also finds place in F.I.R. corroborated by P.W. 1

that the paramour was seen in the house on the date of the incident. After collecting the material on investigation, P.W. 14 has stated in Exs.P.7

and P.8 to the effect that on 31-12-1993 at about 23:00 hours, when the accused returned to his house, he found that the alleged paramour

Subramani came out from his house. It can also be seen from the evidence of prosecution witnesses, that the accused got infuriated by the words

uttered by Pachaiyammal. Pachaiyammal asked him, ""will you beat me, let me see"". This version came to light by the evidence of P.W. 1 who is an

ocular witness. P.W. 2 another eye witness corroborates this version. It is supported by the allegation made in the F.I.R. So, it is clear that the

wordy quarrel which took place went to the highest degree, in which, the accused inflicted two blows on the head of Pachaiyammal, by crow-bar.

This act of accused was spoken to by P.W. 1 to P.W. 3 categorically, in a cogent manner. No iota of discrepancy appeared in the version of

P.Ws.1 to 3, which is supported by Ex. P.1 complaint and also by medical evidence. It is also seen that Doctor in her evidence had opined that the

deceased would have died due to the head injury. In view of the above, we are of the opinion that the prosecution has proved its case, in this

regard, beyond reasonable doubt.

Learned Additional Public Prosecutor has not been able to controvert the above facts and take us to a different view as per the material

evidence.

Now the only question to be seen is whether the act of the accused hitting on the head by a crow-bar on Pachaiyammal has attracted the

provision under S. 302 I.P.C. or whether the accused is entitled to get any of the benefits under any of the exceptions to S. 300 and will fall under

S. 304 Part I, I.P.C.

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 action.

Undoubtedly 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. Whether the

provocation was grave and sudden enough to prevent the offence from committing the murder is a question of fact.

Intention is not the same thing as motive. The intention of the accused as distinguishable from knowledge about the consequence of his act is

the determining factor to attract Part I of S. 304 IPC.

The feelings of anger, vendetta, vengeance and revenge are ingrained in human body and brain. These feelings become predominant in a

common man, when he is provoked.

Anger is an emotion ingrained in the human nature. Some men are capable of suppressing it and some are not. It all depends upon the

circumstances by the state of mind of individual and time varies from mind to mind.

As discussed, there is no evidence of any preparation, consult to premediate to cause the death of Pachaiyammmal - the wife of the accused,

and the action of the accused appears to be, more as a result of a sudden provocation impulse than of a deliberate intention to murder his wife. It

cannot be lost sight that due to lapse of time, the state of mind can be cooled and no hard and fast rule can be said. Now, it is to be seen that

whether the act of the accused appears to have been done in such a manner, that the injury so called was likely to cause death without any

intention. Considering the law on this aspect and in the facts and circumstances of the case, it is seen that on seeing that somebody had gone out

from the house, who is Subramani, according to the evidence of P.W. 1, and on questioning, the accused did not have any response, but rather the

deceased Pachaiyammal uttered the words, ""Will you beat me, let me see"", place the accused on the heap of anger, a sort of challenge, and

sufficient reason to believe that the accused lost self-control, and caused two blows on Pachaiyammal, which ended in her death. As such, the

possibility that the act of the accused is nothing but a sudden and grave provocation cannot be ruled out. So, in our considered opinion the accused

gave two blows on Pachaiyammal, because of sudden and grave provocation and the offence falls within the exception and the accused is entitled

to the benefit to that extent. In those circumstances, we hold that the accused is liable to be convicted under S. 304 Part I, I.P.C. in so far as the

murder of Pachaiyammal is concerned. Accordingly we set aside the conviction and sentence passed by the learned trial Judge, in this aspect and

instead modify the conviction under S. 304 Part I, I.P.C. and sentence him thereunder, to undergo rigorous imprisonment for a period of seven

years.

On considering the murder of Muniamma, the legal position is that culpable homicide is not murder if it is committed without premeditation in a

sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual

manner. In the instant case, the quarrel started when the accused came to his house and when the accused gave blow on the head of

Pachaiyammal, the mother Muniammal asked the accused, ""You devil, why are you beating my daughter like this"". It is stated by the prosecution

witnesses that the accused by saying, ""because of you, my life has been spoiled, you also die"", gave two blows by crow-bar, on her head. It is

quite natural that who so ever he/she may be, at the time of such incident and at the time of such act, one can be provoked. Considering this aspect

in the facts of this case and in the absence of any evidence that there is any resistance, for mere asking, ""why are you beating my daughter like this,

that too by a mother in our opinion, the same degree of sudden and grave provocation, as it had passed on his wife, would have been passed on

mother-in-law, cannot appear to be a reasonable one. Therefore; we are unable to accept the contention of the Learned Counsel for the appellant

that the act of the appellant/accused giving blows on the head of Muniamma also would attract the act of sudden and grave provocation.

That apart, the accused Antony Cruz knew that any injury caused to Muniamma would cause death as she is more than 65 years old and

under the circumstances available on record, it is clear that the accused had taken undue advantage and acted in unlawful manner. Therefore, for

the offence committed, the accused Antony Cruz is liable to be convicted under S. 302 I.P.C. and accordingly, we convict him and uphold the

conviction imposed by the learned trial Judge, in this aspect.

Now, we have to consider the fact about the imposition of sentence. Undoubtedly, for a person convicted for an offence under S. 302 I.P.C. a

sentence of imprisonment for life is to be awarded. It is the rule, and death sentence is the exception. Taking in life through law''s instrumental

should be in the rarest of rare cases, when the alternative opinion is unquestionable, foreclosed. An opportunity should be given to make him as

reformist. As discussed above, in the instant case, considering the aggravating and mitigating circumstances, in our humble opinion, the sentence of

death is too much excessive and does not warrant so as to attract the highest penalty of death. In the facts of the case as discussed, in our humble

opinion, the ends of justice will be served if the accused is imposed the punishment of imprisonment for life, for committing the offence of the

murder of Muniamma. Both the sentences so imposed, to run concurrently.

In the result, R.T.5 of 1997 is rejected. Criminal Appeal 965 of 1997 is allowed, the conviction and sentence passed by the trial Judge are set

aside and instead Antony Cruz the accused is found guilty of an offence under S. 304 Part I, I.P.C. in respect of the murder of Pachaiyammal and

accordingly, he is convicted thereunder and sentenced to undergo rigorous imprisonment for a period of seven years. As far as the murder of

Muniamma is concerned, Antony Cruz the accused is found guilty of an offence under S. 302 I.P.C. and he is accordingly convicted thereunder

and sentenced to undergo imprisonment for life thereunder. Both the sentences imposed on Antony Cruz the accused, to run concurrently. The

period of remand, already undergone by the accused, during trial, is set off. The order of learned trial Judge in respect of disposal of Material

Objects shall stand upheld.