Sellathurai vs State

Maruthamuthu, J.—This appeal arises from the judgment of the Principal Sessions Judge, Madurai South in Sessions Case No. 157 of 1984 dated 22-7-1985 convicting and sentencing the appellant (first accused) to undergo imprisonment for life under S.302, I.P.C. The charge against the appellant was that on 18-4-1984 at about 5-30 p.m. at Door No. 4-A, Subramaniapuram Third Street, Madurai, the appellant committed the murder of Indira on the instigation of the second accused Mariammal who has been acquitted by the Sessions Judge of the charge under S.302 read with S.109, I.P.C. The appellant pleaded not guilty to the charge.

The prosecution case briefly stated is this:

(i) The deceased Indira is the wife of the appellant (first accused). The second accused Mariammal (who has been acquitted) is the mother of the deceased Indira. The marriage between the deceased Indira and the appellant took place about five years prior to the occurrence and they lived in Salem. The appellant was eking out his livelihood by driving autorickshaw. A child which was born to them during that period, died. Thereafter, the appellant tried to involve his wife, the deceased Indira, in immoral way of life. The deceased Indira opposed the same and returned to Madurai where her mother, the second accused, was living. Even prior to the marriage, the deceased Indira was having intimacy with Chandran (P.W.5) at Madurai where P.W.5 was selling eatables. The deceased Indira was staying with her mother (the second accused) at Madurai for about one and half years. The illicit intimacy between P.W.5 and the deceased Indian got resumed about one year prior to the occurrence in this case. [The discussion relating to facts is omitted-Ed.]

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The categorical evidence of P.Ws.1 and 2 is that the appellant stabbed the deceased first in her abdomen on her giving of a negative reply to the appellant who asked her to go with him, soon after entering into the compound and that the deceased ran towards the terrace along the staircase and came down from the terrace while the appellant stabbed her inflicting number of injuries on her body. It is, therefore, probable that P.W.17 had found bloodstains in the first step of the top of the staircase and other places of the staircase and in the terrace. The bloodstains would be heavy in the terrace of the building if the stabbing incident had taken place there itself. But, P.W.17 has noticed only some blood drops in the terrace and has accordingly noted the same in Ex.P-6. These facts would dispel the theory that the appellant saw the deceased at first in a naked position in the terrace and that he stabbed her there.

It is of little consequence if there were bloodstains in the knife (M.O.1) and the dress of the appellant (M.Os.14 to 16) and if they were found to be as B group blood of human origin. This is a case in which the appellant would admit that he stabbed the deceased with the knife and caused her death and therefore, there might have been bloodstains of one and the same group in all those material objects the contention on behalf of the appellant is that the knife (M.O.1) was not his and that he did not take the same to the house of the deceased with an intention to attack her, but that the weapon was already in the hands of Ibrahim who was found in the company of the deceased in the terrace of the house and that he handed over the weapon to the deceased directing her to attack the appellant that the deceased also did so by causing injuries on his right hand and that the appellant somehow snatched the weapon from the hands of the deceased and retaliated by stabbing her with the same knife. The statement of the appellant under S.313, Cr.P.C. is that he produced the knife (M.O.1) while surrendering at the police station while P.W.17''s evidence is to the effect that M.O.1 was recovered by him in pursuance of the arrest of the appellant and the confession statement given by him. Anyway, it is certain that M.O.1 is the weapon with which the appellant attacked the deceased and caused her death.

Once we reject the plea of the appellant holding that there could be none by name Ibrahim in the house of the deceased and that too in the company of the deceased sharing her bed, it has to be said that the further theory that the alleged Ibrahim gave the knife (M.O.1) to the deceased asking her to stab the appellant on his right hand caused the injuries Nos.1 and 2 noted in Ex.P-5 also must fall to the ground. Here, the injuries on the appellant are not anything serious. They are not certainly grievious injuries, but simple injuries found in between the thumb and index finger. According to P.W.8, the Medical Officer, those injuries could even be self-inflicted. It is also possible, as observed by the learned Sessions Judge, that the appellant might have sustained those injuries when he stabbed the deceased with M.O.1 several times indiscriminately. The number of injuries found on the deceased and the statement of the appellant that he stabbed her until his wrath got subsided will show what amount of vehemence and rashness with which he should have attacked her. He must have been using only his right hand when he used the knife against the deceased. This hypothesis is based on common sense and inherent probability.

The entire edifice of the defence with its foundation would get shattered if we see the medical evidence of P.W.7 with regard to the deceased. P.W.7 after conducting autopsy, says:

The uterus was empty normal. She could not have had sexual intercourse when she was stabbed. There was no vaginal discharge.

When evidently that was the symptom noticed by P.W.7 in the deceased, it has to be said that the whole story of the appellant that one Ibrahim was in amorous position with the deceased in the open terrace of the house of the deceased, that the said Ibrahim handed over M.O.1 to the deceased directing her to attack the appellant, that the appellant somehow snatched M.O.1 from the hands of the deceased and stabbed her and caused her death must be said to be false and baseless. We have to observe here that the appellant has miserably failed to show that the offence committed by him comes under Exception I to S.300, I.P.C. We find that the learned Sessions Judge has correctly found, on the materials placed before Court in this case, that the offence committed by the appellant clearly falls under S.302, I.P.C. inasmuch as the appellant has deliberately gone to the house of the deceased with the intention to commit her murder and has accordingly stabbed her several times indiscriminately on her and brought about her death.

Having disposed of all arguments advanced on facts, inclusive of the applicability or otherwise of exception to S.300 Indian Penal Code, we have to address ourselves, to the following question posed by Mr. Sundar:

Whether S.302, Indian Penal Code providing the sentence of life imprisonment as the only alternative sentence to death is not violative of Article 14 and Article 21 of the Constitution of India in view of the case reported in Mithu Vs. State of Punjab, .

Neither the law laid down in Mithu Vs. State of Punjab, , nor the prior pronouncements of the Apex Court in Bachan Singh Vs. State of Punjab, or Jegmohan''s case AIR 1973 SC 947, would permit this argument, for, if the enunciation of law is that S.302, Indian Penal Code is constitutionally valid, the said principle will equally apply to imprisonment for life being the rule, exception being death penalty.

Arunachalam, J.—I have had the advantage of perusing the judgment dictated by my learned brother. I entirely agree with his conclusions.

Here are my reasons in refusing to accede to the argument of Mr. Sundar, that the alternative sentence of life imprisonment under S.302 Indian Penal Code is ultra vires of the Constitution, for want of guidelines. Though this ground had not been taken in the appeal memorandum, Mr. Sundar placed the question before us, in the following form.

Whether S.302 of I.P.C. providing the sentence of life Imprisonment as the only alternative sentence to death is not violative of Art.14 and Art.21 of the Constitution of India in view of the case reported in Mithu Vs. State of Punjab, .

We have very carefully considered this question and our conclusion is that there is no merit in this submission. This question is no longer res integra for, the Apex Court has held that S.302 Indian Penal Code as a whole is constitutionally valid. We are aware that the Supreme Court in a series of cases, including Jagmohan Singh Vs. The State of U.P., and Bachan Singh Vs. State of Punjab, , was concerned with the validity of S.302 Indian Penal Code, only in so far as it related to the sentence of death. But, then it seems to us that the ratio decidendi of those cases are equally applicable to the present question. In Jagmohan Singh''s case, the Supreme Court held that if the entire procedure for criminal trial under the Criminal Procedure Code for arriving at a sentence of death was valid, then the imposition of death sentenced in accordance with the procedure established by law, cannot be said to be unconstitutional. In Bachan Singh''s case, the Apex Court, by 4 to 1, held that Article 19 unlike Article 21 does not deal with the right to life and personal liberty and is not applicable for judging constitutionality of the provision of S.302, Indian Penal Code. As regards Article 21, the Supreme Court observed that the founding fathers recognised the right of the state to deprive a person of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law and there were several other indications also in the constitution which show that the Constitution maker were fully cognizant of the existence of the death penalty.

Now, the rule as to punishment for the offence under S.302 Indian Penal Code is life imprisonment and the exception is death sentence vide S.354(3) Cr.P.C. In Ambaram Vs. The State of Madhya Pradesh, , the Supreme Court held that under the new Criminal Procedure Code emphasis is that life imprisonment for murder is the rule and death sentence an exception to be resorted to for special reasons to be stated. In Bachan Singh''s case, it was observed that death sentence has to be imposed only when life imprisonment appears to be altogether inadequate punishment having regard to the relevant circumstances of the crime and provided, and only provided the option to impose the sentence for imprisonment for life cannot be conscientiously exercised. Having regard to the nature and circumstance of the crime and all other relevant circumstances, a balance-sheet of aggravating and mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances, before the option is exercised. If the Supreme Court has held the exception to be valid a fortiorari, the rule should also be held valid. In Mithu Vs. State of Punjab, , the Apex Court was concerned with the validity of S.303, Indian Penal Code, since it prescribed the sentence of death as the only sentence. For a variety of reasons, the Supreme Court held that such law must necessarily be stigmatized as arbitrary and oppressive.

Mr. Sundar argued that the principle enunciated in Mitu''s case will be applicable to S.302, Indian Penal Code as well for, the court had no discretion to award any sentence other than life imprisonment, the minimum, for murder even if the grave crime was committed by a sadist intentionally or as in this case, murder of wife on suspicion of her fidelity. In Mini''s case while striking down S.303 Indian Penal Code as unconstitutional and void, it was added that all cases of murder would fall under S.302 of the Penal Code and there shall be no mandatory sentence of death for the offence of murder. The Supreme Court took note that under S.302 Indian Penal Code, the sentence of imprisonment for life and not death was the normal punishment for murder and the sentence of death was an alternative penalty to be resorted to in the most exceptional cases and the discretion to impose or not to impose the sentence of death was given to the Judge. The ruthless rigour of the sentence of death, even as an alternative penalty, was thought to be tempered by the wide discretion given to the Judge. Judicial discretion was what prevented the outlawing of the sentence of death even as an alternative penalty for murder. Even so, the court took care to declare that it could only be imposed in the ''rarest of rare'' cases. As a matter of legislative practice and history, penal statutes provide for alternative, consecutive, cumulative, maximum, minimum and single punishment sentence taking into account the social, economic, religious and political needs of the Society. These provisions are based upon a rational classification of offences and resultant punishments thereof, with a purposeful object and nexus with the object sought to be achieved. So viewed the offence of murder is a class by itself and the legislature in its wisdom has prescribed two alternatives, leaving the choice to any one of these alternatives to the judiciary under the provisions of the Criminal Procedure Code.

In Inderjeet Vs. State of Uttar Pradesh and Another, while holding that Ss.7 and 16 of the Prevention of Food Adulteration Act were not unconstitutional, V.R. Krishna Iyer, J. speaking on behalf of the Bench, observed as follows:

Fact that Ss.7 and 16 of the Act read together impose inflexible minimum sentence of six months'' R.I. on offenders guilty of sale of adulterated food do not by itself render those provisions unconstitutional. Judge proof sentencing is not per se bad. Principle of equal protection is not breached either. It is possible that small men become victims of harsh law in absence of any executive policy which guides prosecution of offenders. But the matter of penal policy in constitutionality is out of bounds for judicial advice.

This enunciation of law would answer the argument of Mr. Sundar that all murderers cannot be treated equally, irrespective of notice and the manner in which the offense was committed. Prescription of sentences on conviction is essentially a legislative function and if such prescriptions do not transgress any other constitutional mandate, Courts will have no say in the matter. The application of that prescription is a judicial function and the very fact that the power is entrusted to the judiciary is a sufficient safeguard against any attack on its vulnerability under Articles 14, 19(1) and 21 of the Constitution of India. Even so, sufficient safeguards arc built in the sections themselves to guard against any apprehension of an arbitrary exercise of imposition of sentence of life imprisonment. If the charge of murder is proved, then there is no alternative but to impose any one of the alternative punishments, but it is not to say that in every case where death is caused by the act of the accused, the resultant offence is murder. Exceptions are provided under S.300 Indian Penal Code, where the offence may not be murder but culpable homicide requiring imposition of lesser penalty. Under the cognate Sections of the Indian Penal Code, it may be a case of death by a rash and negligent act or it may be a case of grievous hurt, where still lesser penalty is to be imposed.

The offence of murder being a class by itself, the prescription of life imprisonment as alternative sentence does not violate any of the constitutional prohibitions. Further, it does not appear right to test the validity of the Sections imposing alternative sentences in a truncated and segmented fashion. In relation to the offence, the section has to be viewed as a whole and seen as to whether there was any arbitrariness or unfairness in its application. To reiterate, the offence of murder is a class by itself. The deterrent and capital sentences, contemplated for its commission, have a rational relation to the object sought to be achieved, with the result that both classification and object sought to be achieved passed the test of Art.14 of the Constitution.

Even if there be some error in the awarding of life sentence, there is always a corrective mechanism of vertical judicial review by way of appeals right upto the Apex Court. Should they also fail, there is collateral executive review of the sentence by exercise of powers under Articles 74 and 161 of the Constitution, which again subject to judicial review. Viewed in the light of the above observations, it docs not appear that the law enabling the imposition of life sentence for an offence of murder trespasses on any concept of fairness. It is only a deprivation of the freedom of a convict by a valid law, within the meaning of Article 21 of the Constitution. It will also be pertinent to make two observations.

1) In the context of the commission of a crime, the freedom of a criminal convict cannot be equated to those of a free citizen and he can only be allowed such freedom as is permissible with his status and class.

2) The logical result of accepting the argument placed by Mr. Sundar, that prescription of the alternative sentence is ultra vires, would be to render void every other such sentence, with reference to other offences also void, consequently erasing out of the penal statutes, all prescriptions of sentences. Such a construction has to be naturally avoided.

The argument of Mr. Sundar, that a person would be entitled to his fundamental right, irrespective of his waiver as enunciated in Basheshar Nath Vs. The Commissioner of Income Tax, Delhi and Rajasthan and Another, has no application to the facts of the present case.

Where the Legislature recognises two sorts of punishments it implicitly recognises the existence of degrees in crimes, technically the same. Although the law has provided an alternative punishment either is not to be passed indifferently and that is where the judicial discretion intervenes. We hold that there is no discrimination of persons who commit murders, for the procedure established by law is followed, for all accused. We are unable to see any violation of Articles 14 and 21 of the Constitution of India. We negate the contention that S.302, Indian Penal Code suffers from the same vice as S.303, Indian Penal Code, since no further discretion other than imposing life imprisonment is vested in Courts.

Arunachalam, J. and Maruthamuthu, J.

The net result of our analysis is that this appeal shall stand dismissed.