Sumathi vs State

A.C. Arumugaperumal Adityan, J.—This Appeal has been preferred against the Judgment in S.C. No. 474/2000 on the file of the Court of

II Additional Sessions Judge, Chennai.

The case of the prosecution in brief relevant for the purpose of deciding this Appeal are as follows:

The accused on 19.11.1999 between 3.00 p.m. and 10.00 p.m. had committed murder of her son aged 4 1/2 years and a daughter aged 2 1/2

years by administering Bacon poison (a pesticide) and thereafter, attempted to commit suicide. P.W.4 is the husband of the accused, who after

returning from his duty at about 10.45 p.m. on the same day, came to the house found the door locked inside and inspite of his repeated knocking

at the door, the door was not opened hence he broke open the door with the help of P.W.7 and went inside the house and saw both his minor

children lying dead on the bed and his wife, the accused herein, lying on the bed unconsciously. Thereafter, he took his wife to a private nursing

home where first aid was given to the accused and on their advice, he took her to Raiyapettai Hospital and admitted her. After admitting her in the

said Government Hospital, P.W.4 informed P.W.1, the father of the accused, who had preferred Ex.P.1-complaint on 20.11.1999 before

P.W.12-Inspector of Police. P.W.12, who had registered the case u/s 302 and 309 IPC, proceeded to the place of occurrence and prepared

observation mahazar and a rough sketch Ex.P.13 and conducted inquest on the corpse of the deceased minor Sairam and minor Indumathi and

also seized the letter alleged to have been written by the accused to her father and send the corpse for postmortem and went to the Raiyapattai

Hospital and arrested the accused on 30.11.1999 at about 2.00 p.m. and recorded her confession statement-Ex.P.14 and on the basis of the

confession statement he recovered Bacon spray container(M.O.10) in the presence of the witnesses under Ex.P.15/Mahazar. The Doctor, who

had conducted autopsy on the corpse of the children, was examined as P.w.11 and he issued Ex.P.7 and Ex.p.9 postmortem certificates

respectively. After examining the witnesses and recorded their statements and completing the investigation, P.W.12 filed charge sheet against the

accused.

The case was taken on file by the learned XVII Metropolitan Magistrate, Saidapet, who had furnished copies to the accused u/s 207 of Cr.P.C

and since the case is triable by a Court of Sessions, had committed the case to the Court of Sessions u/s 209 of Cr.P.C. The learned Sessions

Judge had framed the charges u/s 302 IPC (2 counts) and also u/s 309 IPC against the accused. When questioned the accused had denied her

complicity in the crime. P.Ws.1 to 12 were examined and Ex.P.1 to 15 were filed and M.Os.1 to 10 were marked. After going through the oral

and documentary evidence, the learned Sessions Judge has found the accused guilty under the above said provisions of law and consequently

convicted and sentenced to undergo life imprisonment u/s 302 IPC (2 counts) and three months RI u/s 309 IPC. Aggrieved by the findings of the

learned Sessions Judge, the accused has preferred this Appeal.

Now the point for determination in this Appeal is whether the conviction and sentence passed in S.C.474/2000 on the file of the Court of II

Additional Sessions Judge, Chennai, is liable to be set aside for the reasons stated in the grounds of Appeal?

The point: It is a heart rendering pathetic murder case in which the mother is cited as the accused having murdered her 4 1/2 year old son-

Sairam and 2 1/2 year old daughter-Indumathil by administering poison (pesticide) mixed in milk, she had also consumed the poison, but due to the

treatment given to her, she had survived. Hence, she was charged u/s 302 IPC (2 counts) and u/s 309 IPC. P.W.4, the government transport bus

driver, who is the husband of the accused, when returned from his duty on 19.11.1999 at about 10.45 p.m. saw the house locked inside and made

an attempt to open the door, but failed to do so, with the help of P.W.7, a carpenter, who is residing in the same locality, broke open the door

with the help of a chisel, and found inside the house both his children were lying dead with froth and blood oozing out from their mouth respectively

and his wife/accused lying in an unconscious state. The evidence of P.W.4 was corroborated by the evidence of P.W.7, the carpenter. P.W.3 had

also deposed to the fact that two children were lying dead in the house of the accused lying unconsciously on the bed. The accused was taken to

the hospital by P.W.4. P.W.9, the doctor, who had examined her, issued Ex.P.6, copy of accident register. The accused was in the hospital from

20.11.1999 to 30.11.1999. P.W.11, the doctor, who had conducted autopsy on the corpse of minor Sairam aged 4 1/2 years, has opined that

due to poisoning and injuries over the neck the boy would have been dead. P.W.11, the doctor, has also conducted autopsy on the corpse of

minor Indumathi and has given Ex.P.9-Postmortem certificate and has opined that the minor Indumathi would have died due to asphyxia due to

strangulation. Ex.P.14 is the confession statement of the accused before P.W.12, the Inspector of Police, wherein she has admitted the fact of

having committed the crime. During question u/s 313 of Cr.P.C., the accused had stated that her husband had boiled the milk and gave it to their

two children and also to her to drink and after she took the milk, she became unconscious. But, there is no evidence on record to show that her

husband had given the milk mixed with poison to the children and to the accused. On the other hand, the evidence of P.W.4 and P.W.7 would go

to show that both the children and the accused were found in the house, which was locked inside. So, from the available evidence it is clear that

the accused alone had committed the crime.

The learned Counsel for the appellant/accused relied on the decision reported in 2004(1) LW(Crl) 67 (Muthuvel and Anr. v. State, etc) and

contended that the confession statement of the accused can be taken also in favour of the accused under certain circumstances. The exact

observation in the above said dictum runs as follows:

For deciding the nature of the offence committed by the first accused, it is stated that the confession statement given by him to the Police Officer,

P.W.21 can be considered in entirety in view of the fact that it contained some facts which would be in favour of the accused. This principle has

been laid down in Venkatesan v. State by Inspector of Police, Thirupporur 1997(2) MWN 141

A reading of Ex.P.14 confession statement will go to show the circumstance under which the accused was forced to take an extreme step of

murdering her children, who were at very tender age at the time of the occurrence. After administering poison, the accused had also strangulated

them to ascertain that they are dead, before committing suicide. The situation which pushed her to take the extreme step as narrated by her in

Ex.P.14, is that her husband and her mother-in-law suspected her fidelity that she is having illicit intimacy with some other person and that her

mother-in-law used to keep her under lock and key in the house and that since her sister Chitra had eloped with a boy by name Geevan, her

mother-in-law used to abuse her referring to the past incident and due to the unbearable shame received at the hand of her mother-in-law, she had

decided to inform this to her father through an inland letter on 13.11.1999 at 2.00 p.m. and administering poison to her children in the milk and

also strangulated them and after committing murder of the children she also took the poison in order to commit suicide.

Taking into the piquant situation under which the accused was placed, which led her to take an extreme step of murdering her own children and

also to put an end to her life, now derive us to consider whether the accused is liable to be punished u/s 302 IPC (2 counts) and u/s 304, Part I,

IPC. This position has been clarified in a Judgment of a Division Bench of this Court reported in 1989 L.w.(Crl) 86 (Suyambukkani v. State of

Tamil Nadu). The facts of the said case are exactly similar to the present facts of the case, which are as follows:

The accused in the said case had caused the death of her two children aged 2 1/2 years and six months and also attempted to commit suicide by

throwing the children and herself by jumping into a well. She was sentenced to undergo life imprisonment. The accused in that case took such an

extreme step of murdering her children and also to commit suicide only because her marital life was not happy because of her husband''s

callousness. Her husband used not to give enough money for meeting the household expenses and also he became addict to drink, which resulted

in poverty and destitution to the murder of the children. There were constant quarrel between the spouses and her husband never allowed her to go

to her parents'' house and never allowed her mother or brother to visit his house. The accused would endure the ill-treatments meted out to her,

but it was hard to her to swallow the total absence of care and affection of the husband towards the children. Even when they were sick she will

have to carry both of them herself and he would not oblige by carrying one of them. Under the above circumstances, the younger child has fallen

sick for about a month. Then she managed to get permission to go to her parents'' house, where she stayed for 10 days and came back on

25.6.1983. She was scolded for having remained for such a long time in her parents'' house. She on the contrary on account of the continuous bad

health of the small baby wanted to go back. Misunderstanding and quarrel between the spouses reached a climax and she was beaten, upon her

return, then morning and evening on 26.6.1983 and also on the 27th in the morning and at the lunch time. The husband, who left the house after

lunch came back home at about 9.30 p.m. on the 27th and found the door open without anybody inside. Upon enquiry with neighbours he learnt

that she left the house and his search proved fruitless. On the next morning, the children and accused were found in the well.

Under such circumstances, it was held by the Division Bench of this Court in the above said dictum as follows:

In this case, it is to be noted that more than the misery to which she was subjected, the accused was afflicted by the sufferings of her children. The

father was not only indifferent, but even barbarous towards them. She got persuaded that after her death the children will be uncared of and would

suffer innumerable torments and she could not reconcile with that idea. So it is after draining the cup of sorrow to the dregs that she decided to

follow the Nallathangal''s way. It is obvious that an act like that of the accused would not come within the meaning of murder, as contemplated in

the Indian Penal Code.

No doubt, the social fabric, as it prevails now in India, is responsible for the creation of situations like that of the accused. But the society will

crumble, if each person even the mother who gave life to the children is to decide about life and death. The society expects the citizens, however ill

placed they may be, to react to the situation, to call for help and to make an endeavour to survive. The act of the accused is obviously an offence in

the contemplation of law. But it cannot be considered as an offence u/s 302 IPC, which is the most heinous crime dealing with the most dangerous

activities to the society, and the authors of which could be exterminated by the imposition of sentence to death. In fact, it would be incongruous to

impose the sentence of death on a person who attempted to commit suicide and who was saved therefrom.

The extreme course of family suicide, the mother along with her children, is clearly in our opinion an excusing circumstance equivalent to those

enumerated in the exceptions to Section 300 IPC, and will be therefore in the nature of an exception, when the mother escapes and children die,

bringing the offence to one punishable u/s 304, Part I, IPC.

While allowing the above said Appeal, the learned Judges constituting the Division Bench after confirming the conviction u/s 309 IPC, convicted

the accused u/s 304, Part I, IPC (2 counts) instead of u/s 302 IPC and sentenced to imprisonment for the period already undergone by the

accused.

The facts of the above said case squarely applies to the present facts of the case. A reading of Ex.P.14 herein will clearly go to show that due to

the unbearable torture received at the hand of her mother-in-law and her husband-P.W.4, the accused herein had taken the extreme step of

committing murder of her two children and also had decided to put an end to her life by committing suicide.

So, we are of the considered opinion that the accused is liable to be convicted only u/s 304, Part I, IPC and u/s 309 IPC since she comes under

the exceptions to Section 300 IPC under the category of sustained provocation. The point is answered accordingly.

In the result, the Appeal is partly allowed and the conviction and sentence in respect of u/s 309 IPC is confirmed and conviction and sentence

u/s 302 IPC (2 counts) are set aside and the accused is convicted u/s 304, Part I, IPC (2 counts) and sentenced imprisonment for the period

already undergone by her.