In Re: Jamaluddin

Panchapakesa Ayyar, J.—Jamaluddin, the accused in Sessions Case No. 96 of 1954, on the file of the Sessions Judge of Tirunelveli, has been convicted u/s 302, Indian Penal Code and sentenced to death. He has also been convicted u/s 309, Indian Penal Code, for attempting to commit suicide, immediately after the murder, and sentenced to simple imprisonment for one year. The prosecution case was very simple. The accused, Jamaluddin, aged twenty-eight, was looking after the affairs of his first cousin, the deceased, Kairunnisa, aged twenty-two, for some five years before the occurrence, as her parents were dead, and her husband and brother were in Ceylon. He was not her guardian; nor was she living under his protection. He was merely her friend and helper, looking after her affairs. There was a rumour that the deceased, Kairunnisa, was living a loose life. On the evening of 25th March 1954, at about 5-30 p.m., P.Ws. 1 and 2, husband and wife, saw, from a neighbouring shop, the accused entering the house of the deceased, and, shortly afterwards, they heard the deceased''s death cries. They rushed to the deceased''s house, along with some others, and found the deceased and the accused lying there with bleeding injuries on their abdomens. The deceased''s intestines had come out through the wound on her abdomen. The village munsif, P.W. 5, went to the spot at 6-30 p.m., having been taken there by P.W. 4 the Talayari, who had heard about the crime. He recorded the dying declarations of both the deceased and the accused. They are exhibits P-1 and P-2 respectively. In exhibit P-1, the deceased stated that the accused had got into her house at 5-30 p.m. that day, tied her eyes and hands, and stabbed her in the stomach inflicting the fatal injuries, and that she did not know the reason for his stabbing her. In exhibit P-2, the accused stated that, at 5-30 p.m. that day, he went to the house of the deceased and found the deceased and some man actually having sexual intercourse ; that, on seeing him, the man, who was having sexual intercourse with the deceased, got up and ran away through the back-door ; that, unable to control his anger, the accused stabbed his cousin, Kairunnisa, with a knife in her stomach, after tying her eyes and hands; and that, thereafter, he stabbed himself also in the stomach with the very same knife. He stuck to this statement throughout. The learned Sessions Judge held that even if the accused''s story of the sexual intercourse of the deceased with the stranger were true, the offence would only be one u/s 302, Indian Penal Code, and that there was no extenuating circumstance even to reduce the sentence to one of transportation for life. So he convicted and sentenced the accused as stated above.

We have perused the entire records, and heard Mr. Ethiraj, for the Appellant, and the learned Public Prosecutor contra Mr. Ethiraj urged that there could be no doubt whatever that the story of the Appellant, that he saw the deceased having sexual intercourse with a stranger when he entered her house at 5-30 p.m. that day and that he stabbed her in his uncontrollable anger, must be true, as one Pakkirisa, a valiant beggar, had been found singing in the street that day, as on previous occasions, and had suddenly vanished, and left no trace behind, the police being unable to trace him, and that this Pakkirisa must have been the stranger who was having sexual intercourse with the deceased then, as stated by the Appellant later on, in his statement in the Sessions Court. The learned Public Prosecutor was not able to meet this contention. But he contended that, even so, the conviction of the lower Court u/s 302, Indian Penal Code, was correct. We agree. Though there are rulings to the effect that when a wife or mother or married sister, living under the protection of the husband or son or brother, is caught in the act of having sexual intercourse with a stranger, the killing of that stranger, before there is time to get over the sudden anger, would be only an offence u/s 304, Indian Penal Code, there is no ruling that a person, like the Appellant, not being the guardian or custodian of a woman like the deceased, a mere first cousin, would have a similar right to kill her and claim to be convicted only u/s 304 , Indian Penal Code. We consider that the ruling referred to above should not be extended to first cousins, second cousins and others, especially when they are also not in the custody or protection of the individual killing them. So, as the injuries inflicted by the accused on the deceased were necessarily fatal, and with a deadly weapon, we confirm the conviction of the Appellant u/s 302, Indian Penal Code, but, in the circumstances, reduce the sentence for this offence to transportation for life. The conviction and sentence u/s 309, Indian Penal Code, are confirmed. That sentence will run concurrently with the sentence of transportation for life.