Rajesh vs State

M. Chockalingam, J.—This Referred Trial case has arisen from the judgment of the Principal Sessions Division, Thanjavur made in S.C.

No. 44 of 2007, whereby the sole accused therein stood charged under Sections 302 (3 counts), 506(ii), 427 and 324 IPC, tried and found guilty

as per the charges and awarded capital punishment of death sentence for 3 counts u/s 302 IPC (3 counts), 2 years S.I. u/s 506(ii) IPC, 2 years

S.I. u/s 427 IPC and 2 years S.I. u/s 324 IPC.

The said judgment is also challenged by the accused therein in C.A. No. 155 of 2008. Both the Referred Trial, seeking confirmation of the

sentence made by the Sessions Court and also the Criminal Appeal filed at the instance of the appellant/accused are taken up together for

consideration this day.

Necessary facts for the disposal of this matter can be stated thus:

a) The accused is the son of one Thasaiya through his first wife. Thasaiya had his senior aunt, by name Gnanambal, who had no issues and hence

she has taken him as her first son and has also given him certain properties. 10 years prior to the occurrence, Thasaiya married one Bagyam as his

third wife, who lost her husband, since his first two wives became mentally deranged. The said Thasaiya and Bagyam had two children, namely

Selvarani and P.W.3, Chelladurai. P.W.1 is the elder brother of Bagyam and P.W.2 is the cousin brother of P.W.1. Thasaiya along with family

members were residing at Udaiyalur. The accused was also living with Thasaiya and Bagyam during the relevant time.

b) There were certain ancestral properties belonged to their family and apart from that, the said Gnanambal had immovable properties. Some

properties, which were given to Thasaiya by Gnanambal, were sold by him. The accused was aggrieved over the same. It was passed in his mind

that if all the properties were sold away, then he could not have any share in the property and therefore, he was demanding for partition. A few

months prior to the occurrence, he informed to P.W.9 and also P.W.10 and sought for partition. He even met Gnanambal and demanded for

partition between himself and his father Thasaiya, but nothing had happened. On the contrary, an immovable property was sold to P.W.11 through

P.W.10 for a consideration of Rs. 85,000/- and the same was also fully received by Thasaiya, but no amount was given to the accused.

c) On 03.04.2006, there was Ear boring ceremony of the accused, Selvarani and P.W.3, Chelladurai, which was conducted by Thasaiya and

Bagyam, for which P.Ws.1 and 2 were invited, but they could not attend the same, since they went to Mannargudi to sell plantain during festival

occasion. On the date of occurrence, namely on 06.04.2006 at about 4.00 p.m., P.Ws.1 and 2 went to the house of Thasaiya to make an enquiry

over the ear boring ceremony, which was held on 03.04.2006. At that time, they were staying there for a while. P.Ws.1 and 2 were sitting in front

of the house when the deceased Thasaiya was taking firewood, which was lying outside. Bagyam went to the nearby pipe for washing the clothes.

d) At that time, suddenly the accused came with M.O.1, aruval and uttered the words ""You want to give all the properties to your wife, thereby

you want to leave me in the street as a beggar"". So saying, he delivered cuts on Thasaiya and caused his instantaneous death. When Gnanambal

intervened questioning as to why are you attacking my son, the accused also attacked her on different parts of her body and caused her death

instantaneously. Then, the accused searched for Bagyam. On seeing the 4 years old child, P.W.3 Chelladurai, the accused gave a blow on his

chest. On seeing the same, Bagyam took the child and began to run. The accused chased her and delivered cuts on different parts of her body,

thereby caused her instantaneous death. On hearing the alarm and distressing cry, a crowd gathered. The accused fled away from the place of

occurrence.

e) The severely injured P.W.3 was taken to the Government Hospital, Papanasam, where P.W.12, the Doctor, who was on duty at about 8.45

p.m., gave treatment to him. Ex.P.10 is the Accident Register in this regard.

f) P.W.1 went to the respondent police station, where P.W.14, the Sub Inspector of Police was on duty. At about 6.30 p.m., P.W.1 gave Ex.P.1,

the report to P.W.14. On the strength of the same, P.W.14 registered a case in Crime No. 57 of 2006 under Sections 302, 324 and 506(2) IPC.

Ex.P.14, the F.I.R. was despatched to the Court through P.W.17, the Constable.

g) The investigation was taken up by the Inspector, P.W.21, on receipt of the copy of the F.I.R. He proceeded to the spot and made an inspection

at the place where the Dasaiya and Gnanambal were murdered, in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar

and Ex.P.17, the rough sketch. He also recovered the material objects, namely M.O.2 to 8, under a cover of mahazar. Then, he made an

inspection at the place where Bagyam was murdered. He prepared Ex.P.4, the observation mahazar and Ex.P.18, the rough sketch. He also

recovered the material objects, namely M.Os.9 to 11, under a cover of mahazar. Then, the places of occurrence were photographed through

P.W.15, the photographer and all the photos and negatives were marked as M.O.14 (series).

h) P.W.21, the Inspector of Police, conducted inquest on all the three dead bodies, namely Bagyam, Thasaiya and Gnanambal, in the presence of

the witnesses and panchayatdars and prepared Exs.19 to 21, the inquest reports respectively. All the dead bodies were sent for the purpose of

post-mortem to the Government Hospital, Papanasam.

i) P.W.13, the Doctor attached to the Government Hospital, Papanasam, on receipt of the requisition, has conducted post-mortem on the dead

body of Bagyam and has issued Ex.P.11, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of

shock and haemorrhage due to the injury to major vessels of the neck, 16 to 20 hours prior to post-mortem. P.W.13 also conducted autopsy on

the dead body of Thasaiya and has issued Ex.P.12, the post-mortem certificate, wherein she has opined that the deceased would appear to have

died of shock and haemorrhage due to the injuries sustained, 18 to 22 hours prior to post-mortem. P.W.13 also conducted post-mortem on the

dead body of Gnanambal and has issued Ex.P.13, the post-mortem certificate, opining that the deceased would appear to have died of shock and

haemorrhage due to the injuries sustained, 20 to 24 hours prior to post-mortem.

j) When P.W.7, the Village President, was in his office along with his Assistant, the accused appeared before him at about 4.00 p.m. on

08.04.2006 and gave confessional statement that he has committed the crime and the same was recorded by P.W.7, who took him to the police

station, where P.W.21, the Inspector of Police was on duty, to whom P.W.7 handed over the confessional statement and the accused. Following

the same, the accused voluntarily came forward to give a confessional statement, which was recorded in the presence of the witnesses, the

admissible part of which was marked as Ex.P.8. Pursuant to the same, the accused produced M.O.1, aruval, M.O.12, pant and M.O.13, shirt,

which were recovered under a cover of mahazar. The accused was sent for judicial remand. All the material objects recovered from the place of

occurrence, from the dead bodies of the deceased and the M.Os recovered from the accused were sent for chemical analysis by the Forensic

Science Department, which resulted in three reports, namely Ex.P.15, the Serologist''s report, Ex.P.16, the Biological report and Ex.P.24, the

Chemical Analyst''s report. On completion of the investigation, the Investigating Officer has filed the final report.

The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution

marched 21 witnesses and also relied on 24 exhibits and 31 M.Os. On completion of the evidence on the side of the prosecution, the accused was

questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false.

No defence witness was examined. The trial court, after hearing the arguments advanced and looking into the materials available, took the view

that the prosecution has proved the case beyond reasonable doubt and was of the view that it is one of the rarest of rare cases, which require the

capital punishment of death sentence and accordingly, it was awarded along with the other punishments, as referred to above, which is the subject

matter of challenge before this Court in the above appeal.

This Court perused the entire materials, since the matter has been referred to for confirmation of the death sentence. The court heard the learned

Counsel for the appellant, who made his sincere and honest attempt in assailing the judgment of the trial court.

The learned Counsel appearing for the appellant has made the following submissions:

a) In the instant case, the case was committed to the Court of Sessions by the Judicial Magistrate concerned. At the time when charges were

framed, the accused had no legal aid. When the accused was actually produced before the court, a duty was cast upon the Magistrate to ask him

as to whether he requires any legal aid, but not done so. Apart from that, when he was produced before the Sessions Court even before framing of

charges, the court is duty bound to ask him whether he requires any legal aid, but not done so. The framing of charges would be a part and parcel

of the trial and under these circumstances, the trial court has not performed its duty by asking him whether he requires any legal aid. But, only after

framing of charges, legal aid counsel was appointed to defend him. Had a counsel been appointed before framing of charges, there would have

been an occasion for him to get instruction or to advise the accused to say that he was only 21 years and under these circumstances, since he had

no legal aid, the trial is vitiated and therefore, the entire judgment has got to be set aside and the mater has got to be remitted back to the trial court

for fresh trial.

b) At the time of questioning u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, the incriminating

circumstances in the evidence of P.W.2 were not directly put to the accused. It was simply stated that P.W.2 has given evidence in the line of

P.W.1 and in that line, the question was put. Under these circumstances, the mandatory provisions, while questioning u/s 313 Cr.P.C., were not

properly followed. On that ground also, the entire trial is vitiated and hence, it has got to be set aside.

c) Though P.Ws.1 to 5 are the eyewitnesses, P.Ws.1 and 2 are close relatives. All the P.Ws. could not have seen the occurrence at all. P.Ws.1

and 2, admittedly, belonged to the place situated 10 Kms. from the place of occurrence. Hence they were planted witnesses and their evidence is

planted in order to suit the convenience of the prosecution case. Their evidence is not only inconsistent, but also self discrepant and hence their

evidence should have been rejected by the lower court. Further, in the instant case, according to P.W.4, one of the deceased Bagyam went to the

pipe to wash the vessels, but according to the prosecution, she went to wash the clothes. So far as P.W.5 is concerned, it is not the case of the

prosecution that he saw the occurrence, but he saw the accused running from the place of occurrence. Thus P.W.5 has given a different version

from the one stated by P.Ws.1 and 2. Though P.Ws.1 and 2 have stated that they have seen the occurrence, P.W.5 has stated that he saw the

accused running from the place of occurrence.

d) In the instant case, the prosecution placed much reliance on Ex.P.6, the extra judicial confession alleged to have been given by the accused to

P.W.7, the Village President, pursuant to which, another confessional statement was recorded by the Inspector of Police and the accused also

produced M.O.1, aruval. A careful perusal of the entire testimony of the witnesses would clearly indicate that the extra judicial confession, the

confessional statement given before the Inspector of Police and the recovery of M.O.1, aruval, were nothing, but a false introduction. According to

the prosecution case, the accused appeared before P.W.7, the Village President at 1.00 p.m. and he was produced before the police officer at

about 4.00 p.m. and the accused produced M.O.1, aruval at about 6.00 p.m. Contrarily, P.W.7 has deposed that when he was in his office, the

accused came at about 4.00 p.m. and thereafter, he was taken to the police officer. All would go to show that the entire extra judicial confession

and the confessional statement, thereafter, given to the police officer and the recovery of M.O.1, aruval were all nothing, but false.

e) In the instant case, the evidence what was brought before the lower court, was thoroughly discrepant from the prosecution case, which was

already given. According to the prosecution case, a complaint was given by P.W.1 to P.W.14, the Sub Inspector of Police at the police station.

But, it could be seen from the evidence of P.W.1 that it is contra. Taking into consideration the said fact, it is highly doubtful whether Ex.P.1, the

report, has come into existence as put forth by the prosecution. Hence the prosecution has not proved the case beyond reasonable doubt, but the

lower court has taken an erroneous view, since it was a case of triple murder.

f) Coming to the question of punishment awarded, the lower court has inflicted capital punishment of death sentence, which is not warranted by the

circumstances. The learned Counsel relied on the decision of the Supreme Court reported in Om Prakash Vs. State of Haryana, . The learned

Counsel took the court to the different parts of the evidence available on hand to show that the properties were given to Thasaiya by his senior

aunt and those properties should have been divided between the accused and his father; that actually, the said Thasaiya drove away both his first

and second wives after they became insane and mentally deranged; that he has not even cared to maintain them and he did not give shelter and

food to them; that there was a quarrel regarding the partition of the property and these things were not paid heed by the said Thasaiya. The

accused was also cruelly treated by Bagyam all along in the past. He also made a request to one of the deceased Gnanambal for partition, but

nobody has paid heed. On the contrary, he was given cruel treatment and thus, he was provoked and it continued in his mind. Under these

circumstances, he has acted so. It was not premeditation or wanton or cold blood murder. All attendant circumstances would go to show that it is

not the rarest of rare case. Under these circumstances, if the court comes to the conclusion that the factual positions are to be accepted, the court

has to consider the punishment, which was awarded by the trial court.

The Court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions

made.

It is not in controversy that on 06.04.2006 at about 5.00 p.m. at the place of occurrence, as put forth by the prosecution, one Thasaiya,

Bagyam, namely the third wife of Thasaiya, and Gnanambal, namely the Senior Aunt of Thasaiya, were done to death within a short span of about

15 minutes. Following the inquest made by the Investigator, all the three dead bodies of the deceased, namely Bagyam, Thasaiya and Gnanambal,

were subjected to post-mortem by P.W.13, the Doctor, who has issued Exs.P.11,12 and 13, post-mortem certificates respectively, wherein she

has opined that all the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. The fact that all the deceased

died out of homicidal violence was not the subject matter of challenge before the trial court and hence without any impediment, it could be factually

recorded so.

In order to substantiate that it was the accused who killed all the three persons at the time and place of occurrence, the prosecution relied on the

evidence of P.Ws.1 to 5. It is pertinent to point out that all these five witnesses have spoken about the occurrence. It is not in dispute that P.Ws.1

and 2 belonged to a place situated about 10 Kms. away from the place of occurrence. There was ear boring ceremony that took place on

03.04.2006, for which they were invited. Since they went to Mannargudi to sell the plantain during festival occasion, they could not come and

attend the function. Hence they wanted to make a visit and enquire about the function, for which purpose, they have come to the village of

Thasaiya on the date of occurrence. Thus, P.Ws.1 and 2 had sufficient explanation to offer.

In the instant case, the occurrence has taken place at about 5.00 p.m. Immediately, P.W.1 went to the police station and gave the complaint at

about 6.00 p.m. within a few hours. Thus, it would be quite indicative of the fact that P.W.1 without being present in the place of occurrence,

could not have narrated the entire incident in Ex.P.1, the report. It would be quite clear that P.W.1 was the eyewitness and P.W.2 also

accompanied him. Apart from that, though certain discrepancies were found in the evidence of P.Ws.1 to 5, they are minor most, in the considered

opinion of the Court and therefore, it has got to be accepted as rightly done by the trial court. Their evidence is natural, convincing and hence

acceptable. Thus, the evidence of those witnesses was fully corroborated by the medical evidence through P.W.13, the Doctor and the post-

mortem certificates issued by her. Further, all the injuries sustained by the ocular testimony put forth by the prosecution stood fully corroborated by

the medical evidence. Added further circumstance is the recovery of M.O.1 aruval from the accused, pursuant to the confessional statement given

by him to the police officer.

In the instant case, the prosecution relied on the extra judicial confession given by the accused to P.W.7. The learned Counsel for the appellant

made much comment that according to the prosecution, the accused appeared before P.W.7 at 1.00 p.m. and was produced before the police

officer at about 4.00 p.m. and thereafter, the recovery of weapon of crime was made at about 6.00 p.m. But, according to P.W.7, the accused

appeared before him only at about 4.00 p.m. Thus, the alleged confession and also the recovery of M.O.1, aruval should not be believed. This

Court is unable to agree with the learned Counsel for the appellant. Before accepting the extra judicial confession, in a given case, the Court has to

apply the test to whom it is given and whether the evidence of the person, to whom it is given, inspires the confidence of the Court. If these tests

are applied, in the instance case, the Court has to necessarily accept the evidence of P.W.7. P.W.7 is the Village President and no circumstance or

reason is brought forth as to why the evidence of P.W.7 should not be believed. No inimical terms is urged by the accused between him and

P.W.7 or he was in any way interested over the deceased party. Under these circumstances, merely because of minor discrepancies, the Court

cannot reject his evidence. Apart from that, the witnesses examined for the confessional statement given to the police officer and the recovery of

M.O.1, aruval from the accused, are thoroughly intact, despite cross examination in full.

The yet another circumstance is the scientific evidence. The scientific evidence with regard to the material objects is in favour of the prosecution

case. Thus, the prosecution has not only the ocular testimony, which was fully corroborated by the medical evidence, but also the recovery of

weapon of crime pursuant to the confessional statement and also the scientific evidence, which would point to the nexus of the accused with the

crime. It is true, certain discrepancies were brought to the notice of the Court, but the Court is of the considered opinion that those discrepancies

are minor most, which will not shake the truth of the prosecution case either, or tilt the balance in favour of the accused. Thus, they are stated only

for the purpose of rejection and accordingly, they are rejected.

The other contention put forth by the learned Counsel for the appellant is that before framing charges, the Trial Judge has not asked him as to

whether he requires any legal aid, but after framing of charges only, legal aid was given to him. It is true, at the time when the charges have been

framed, no counsel was engaged. Further, in the instant case, when questions were put to him u/s 313 Cr.P.C., he denied all the questions and

pleaded that he was not guilty. When the Court asked him whether he has got his own counsel or whether anybody was to be appointed by the

Court, he submitted that he was unable to engage a counsel. Under these circumstances, the court has appointed a counsel through legal aid.

The contention put forth by the learned Counsel for the appellant can be appreciated, if any prejudice was caused to the appellant. Since after

framing of charges, he denied all the charges and pleaded that he was not guilty, it would be quite clear that there was no prejudice that was

caused to the appellant. The contention as to the age that if the counsel was appointed, it could have been brought to the notice of the court,

cannot be countenanced, even for a moment, for the simple reason that the accused had an opportunity of raising the point not only before the trial

court, but also before the appellate forum. The age of the accused, as per the questioning u/s 313 Cr.P.C., was 23 years and therefore, he was not

an adolescent offender at the time when the matter was under trial. Under these circumstances, the Court is of the considered opinion that that

contention, though attractive at the first instance, will not stand the legal scrutiny.

So far as as questioning u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of P.Ws.1 and 2 are concerned, the

incriminating circumstances in the evidence of P.W.1 have been fully narrated. But, insofar as P.W.2 is concerned, since it stood in corroboration

with the evidence of P.W.1, the court has asked that the evidence of P.W.2 is in the line of P.W.1. This Court is unable to appreciate the

contention that there are discrepancies. As pointed out above, the discrepancies found in the evidence of P.Ws.1 and 2 are minor most and both

P.Ws.1 and 2 have spoken in one voice. Under these circumstances, it cannot be stated that the mandatory provisions to be followed while

questioning u/s 313 Cr.P.C., have been flouted or given up or deviated by the trial court. Hence the said contention also has got to be necessarily

rejected.

So far as P.W.3 is concerned, at the time of occurrence, he was attacked by the accused with aruval and necessary medical opinion was also

canvassed and was produced before the court. There was ocular testimony available. The lower court has also found the accused guilty u/s 324

IPC. After scrutinizing all the materials available, the court is thoroughly satisfied that the trial court has taken a correct view as to the factual

position and no legal infirmity is found in recording the findings that it was the accused who caused the death of three persons and also caused

injury to P.W.3. It is a case where suddenly the accused came with aruval and attacked them and caused the death of three persons. Thus, the act

of the accused cannot, but be termed only as murder. Under these circumstances, the findings of the trial court that the accused was found guilty

u/s 302 IPC (3 counts) is factually and legally correct and therefore, it does not require any disturbance at all.

The lower court was of the view that it was a fit case where the capital punishment of death sentence was to be awarded. This Court

considered the contentions put forth by both sides and is of the considered opinion that it is not a case where it could be recorded that it is the

rarest of rare case, awarding death penalty. In the instant case, the judgment of the Supreme Court reported in Om Prakash Vs. State of Haryana,

, would squarely apply to the present facts of the case. At the outset, the court has to point out that the number of persons being killed cannot be

the criterion in a given case warranting death penalty. It may also be the one of the criteria, but it cannot be the sole criterion. In the instant case, it

is true, the accused aged 23 years has murdered his father, his step mother (the third wife of his father) and his grand mother but, it cannot be the

sole reason warranting capital punishment of death penalty. In order to award the capital punishment of death penalty, the court must thoroughly be

satisfied that it is the rarest of rare case. But, in the instant case, if the attendant circumstances are looked into, the Court cannot come to such a

conclusion.

The accused/appellant is the son of the one of the deceased Thasaiya through his first wife. The first wife, during the relevant time, was very

well alive and she was mentally deranged, but she was living 10 or 15 Kms. away from the place of occurrence. There was ear boring ceremony

on 03.04.2006 and the function was not only held for the children of Thasaiya through his third wife Bagyam, but also for the accused. There was

a request made by the accused to his father that his mother, who was living 10 Kms. away, should be invited. But, the said Thasaiya was not

prepared to invite his first wife. Really, the son, who is the accused, would expect his mother to witness such a function, though she is mentally

deranged. But, it was denied. Further, the said Thasaiya was given certain immovable properties by the other deceased Gnanambal and there was

an occasion, in which the said Thasaiya and also Gnanambal were requested by the accused to divide the property and to give the share to him.

But, the said Thasaiya was not ready. On the contrary, he was going on selling the property. It was passed in the mind of the accused that if all the

properties were sold, nothing would be left for him. He went to panchayatdars to advise his father Thasaiya, but they did not do so. Thasaiya was

going on selling the property. The words uttered by the accused at the time of occurrence would clearly indicate what was passed in the mind of

the accused. The words uttered by him was ""You want to give all the properties to your wife, thereby you want to leave me in the street as a

beggar"". Despite request, the property was not given and the said Thasaiya was going on selling the properties. On the contrary, the accused was

meted out cruel treatment by Bagyam and he was actually under torture. Hence what was passing in his mind was to do the crime. The attendant

circumstance was that even his mother was not called for the ear boring ceremony of the accused, though she was living nearby. Thus, the

circumstances, denying partition of the properties and also the cruel treatment meted out to him and all other attendant circumstances led him to do

such a crime. The Court is of the considered opinion that it was not a case of provocation, but it was intentionally done. Therefore, it is a case of

murder, but at the same time, the court cannot say that it is the rarest of rare case. Even if it is the rarest of rare case, it is not a fit case where the

death penalty could be imposed.

Though the Trial Judge has taken a correct view that it was a case of triple murder, the court cannot agree that it is a case warranting capital

punishment of death sentence. Under these circumstances, the judgment of the trial court finding the accused guilty of murder on three counts is

affirmed. So far as awarding capital punishment of death sentence is concerned, it could be modified to one of life imprisonment (3 counts).

Accordingly, the death sentence imposed by the trial court u/s 302 IPC (3 counts) is modified to one of life imprisonment (3 counts). In other

respects, the judgment of the trial court will hold good. The life imprisonment (3 counts) and the punishment imposed under Sections 506(ii), 427

and 324 IPC are ordered to run concurrently. Accordingly, the Referred Trial is disposed of. The criminal appeal preferred by the appellant,

seeking to set aside the judgment of the trial court, is devoid of merit and the same is dismissed. Consequently, the connected MP is closed.