Suyambukkani vs State of Tamil Nadu

David Annoussamy, J.—The accused/Appellant belonging to Nammalvarpet was married at the age of 19 to P.W.1, a barber by profession

living in I.C.F. Colony, Murthy Nagar, Villivakkam, Madras. The marital life lasted about five years and two boys, respectively aged 2-1/2 years

and 10 months at the time of the occurrence, were born out of the wedlock. But there was no happiness in the family on account of the husband''s

callousness. He used not to give enough money for household expenses. He became more and more addicted to drink and poverty and destitution

were the lot of the mother and the children. There were constant quarrels between the spouses, the accused being inclined to go back to her

parents'' house along with her husband, but the husband. P.W.I, being obstinately opposed to such a course. He would not even willingly allow the

accused to go to her parents'' house. He has even ordered his wife not to meet her mother or brother and that none of them should come to his

house. However, whenever the situation became unbearable the accused/Appellant used to go her parents, who after keeping her for Some time

would send, her back to her husband''s house with some money. 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 25-6-83. 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. P.W.I, 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. He

went to his parents-in-laws'' house and learnt that she did not come there. P.W.I, his brother-in-law-P.W.2, and his father-in-law searched for the

accused and the children during night time and their search proved fruitless. On the next morning P.W 2, witnessed the poignant spectacle of the

accused and her two children in a well in the I.C.F. Colony in the neighbourhood of P.W. 1''s house. With the help of some neighbours and a

rope, P.W.2 went into the well and took out the accused and the two children at about 6:30 a.m. The children, were found dead and the accused

was motionless. P.W.2. went to meet P.W.I, informed him about the tragedy and threatened him. The accused told P.W.2 that life having become

unbearable to her and as she was not willing to leave the children alone she jumped into the well after ascertaining that there was water on 27-6-

1983 at 2:00 p.m. in order to commit collective suicide. However, when she landed in the well she did not die since there was not enough water

and she remained in the well throughout the night.

The father of the accused went to the I.C F. Police Station and narrated all the sad circumstances to P.W.I 1, Inspector of Police, who

recorded the same as the first information report, Ex.P-12. P.W.11 took up investigation, which was made rather simple on account of the

elaborate confession made by the accused and he filed a report under S. 173 of the Code of Criminal Procedure to the effect that offences u/s 302

(2 counts) and 309, Indian Penal Code, appeared to have been committed by the accused. Charges were framed accordingly by the Sessions

Court.

The prosecution produced the evidence collected during the course of investigation, the main piece of evidence being the detailed judicial

confession by the accused narrating motives and acts. That confession was supplemented and corroborated in respect of the strained relations

between the spouses and the ill treatments meted out by P.W. 1. by the testimony of P.W.2. In respect of the injuries and cause of deaths we have

the medical evidence of P. Ws. 6 and 8. P.W.8, doctor, who examined the accused on 28-6-83 at 7:45 p.m., found injuries on her body. P.W.6,

doctor, who conducted the postmortem of the two children, found several abrasions on the body of the children and opined that both of them died

of asphyxia due to drowning.

When examined u/s 313 Code of Criminal Procedure regarding the incriminating circumstances appearing against her, the accused accepted full

responsibility for the facts imputed to her and explained the reasons for her desperate course of action. The trial court found the charges proved,

convicted the accused accordingly and sentenced her to life imprisonment for the offences u/s 302 (2counts) and to a fine of Rs. 100 for the

offence u/s 399 IPC.

The accused appealed against the judgment of the Sessions Court of Madras dated 6-3-1984 in time with the help of an Advocate. That

Advocate having passed away, notice was ordered to the accused and she stated that she bad no means to engage another Advocate. So, this

Court appointed Mr. K.N. Basha, Advocate, as amicus curiae to defend the accused,

Mr. N.T. Vanamamalai, Senior Advocate, appearing for Mr. K.N. Basha, amicus curiae, stated that the appeal was restricted only to the

convictions and sentences u/s 302, I.P.C.

Learned Counsel appearing for the accused/Appellant very eloquently represented that the act of the accused did not amount to a murder within

the meaning of the Indian Penal Code, that the accused was herself a victim of circumstances, that she has chosen the path of death, that her

survival was her misfortune arising out of the failure of her plan and that therefore she cannot be convicted for the most heinous crime. In fact, the

circumstances of the case are very peculiar to India. Almost every week one can read in the newspaper the sad story of a mother committing

suicide along with her children. It looks as if the mother, as a corollary to her duty to nurse the children considers it as a duty not to abandon her

progeny. When she has decided to meet death she hardly reconciles with the idea of dying leaving the children behind. In Tamil there is even a well

known piece of literature, viz. Nallathangal ballad, narrating in a heart gripping manner the tribulations of a rich lady reduced to an unbearable

misery and who committed suicide along with her seven children. Unfortunately the poet has extolled the act of his heroine instead of castigating the

practice The ballad has rather created an imitative propensity among the women-folk and the Nallathangal''s syndrome is still largely prevalent.

Usually the unfortunate mother succeeds fully in her attempt and the matter does not reach the Court. Here is a rare case where we are seized with

the problem and we have to determine the true nature of the offence committed by the mother surviving against her will.

The endeavour of the learned Counsel for the accused/Appellant was to show that there was no offence at all committed by the accused. In this

connection, he first contended that there was no actus reus, that is to say, no guilty act. In other words, he contended that the death could not be

traced to the act of the accused. He stated that, in this case, the mere fact of falling down in the well with the children has not directly caused the

death of the children, because at the time of jumping into the well she held the children firmly clasped to her chest, that her intention was only to fall

in such a manner, but, when she jumped, unexpectedly, the children fell off her chest into the water and that fall has caused their death. The falling

off from her chest was not in her contemplation and was a supervening circumstance, not forming part of the act as intended by her, is the

contention.

Learned Additional Public Prosecutor maintained that the actus reus was very much present in the present case, as disclosed by circumstances.

We have considered the rival contentions very carefully. It is true that the act of the accused should be a direct cause of death, but not just a

proximate cause. But, in the present case, as per the judicial confession of the accused, she went near the well, verified whether there was enough

water and jumped into the well with the children clasped in her arms. Though at the time of jumping into the well she had the children clasped in her

arms, as soon as she left the firm soil and was in the air, the children escaped from her hands. Her contemplation was not, as contended by the

learned Counsel for the Appellant, that even at the time of falling into the water she would still hold firmly the children in her arms. Such an act is

impossible; once a person jumps into the well he loses the control of himself and he is not sure of what will happen thereafter. Therefore, the only

contemplation of hers is that all the three should fall into the water and get drowned. It is not the case of the accused that she wanted to keep the

children clasped firmly in the hands till the end, or that she landed into the well with the children clasped in her arms, that she lost consciousness

afterwards and that the children thereafter drifted away. If we examine the injuries sustained by the children and those sustained by the mother,

they corroborate, the version of the accused that the children fell into the well separately from her(sic) On the body of the mother (accused) we

find contusions below the right eye, right side nose, right side lower lip and in front of the knee. On the body of the elder child (deceased 1) we

find abrasions on the left fore arm, back of the scalp, right scapula, back of the right trunk, right cheek, front of right fore arm above the wrist line

and back of the right elbow. On the body of the younger child (deceased 2) we find abrasions just below the right subcostal margin along the

posterior axillary line and on the front of the left fore arm. If the accused landed into the well with the children clasped in her arms, she would have

sustained most of the injuries and the two children would have sustained injuries, one on the right side alone and the other on the left side alone. It

is not so in this case. We, therefore, come to the conclusion that the act of the accused jumping with the children is the causative factor of the death

of the children and that the actus reus is clearly established.

In his perseverant endeavour to obtain the complete exoneration of the accused, her learned Counsel secondly contended that the offence

committed by the Appellant would not be one punishable u/s 302 IPC, because intention to cause the death of the children is not established. He

will more specifically argue that the intention is the desire to bring about a particular consequence and foresight that the acts of the accused will

result in that consequence. He will emphatically point out that it will be stretching logic to a breaking point to say that the accused/mother desired

the death of her own children. Her desire and anxiety were to put an end to the agony to which her children would be exposed after her death.

This was the dominant idea in her mind and she did not desire and therefore not intended to bring about their death, he concluded.

Learned Additional Public Prosecutor would on his side point out that the intention to kill the children was evident from the own saying of the

accused.

The subtle and liberal contention of the learned Counsel for the accused/Appellant is hard to accept in this case. In the first place, it is not

proper to equate intention With desire. ''Desire'' which is a wider term and which at the same time springs at a deeper level of conscience, does not

always have a direct link with any act. ''Intention'' on the contrary is an operation of the mind directed towards an act. No doubt, no mother unless

she is in a highly depressed mood, desires that her children should die. In fact, the accused was struggling to save the life of her younger baby who

was sick. But once she has decided to put an end to her life she has clearly decided also to put an end to the lives of her children too, for their

benefit after due deliberation, as she has unequivocally stated in her judicial confession. Therefore, she intended clearly the death of her children. In

fact intention can exist when death is caused with the idea of doing service to the person killed, as it could be gathered from the fifth exception to

Section 300 IPC. What is the motive for the intention is immaterial when we decide whether the intention exists or not. In the present case, the

motive of the accused was in her view noble and justified, but the fact that she intended clearly to cause the death of the children is beyond any

pale of doubt.

Learned Counsel for the accused/ Appellant however contended very strenuously that the act of the accused cannot amount to murder, as

there was an ocean of difference between her act and that, for instance, of a person killing another out of vengeance or for gain and even of a

mother disposing of her illegitimately conceived baby in order to save her reputation. He stated that this accused was compelled by circumstances

to wind up her life and by way of consequence that of her children and that what should be condemned are the socioeconomic conditions which

placed her in such a predicament and not the poor forlorn woman, who saw no other way out.

In this case, it is well established that the accused caused the death of her two children and she did it intentionally. Therefore, the offence would

be one of murder, unless it comes under the exceptions embodied in Section 300, I.P.C. The wording of Section 300, I.P.C, would suggest that

those exceptions are limitative. However, one has to take a deep look at the way in which the Code was framed, the intention with which it was

drafted and the time when it was made applicable.

Indian Penal Code is the first piece of codification by the British of their case-law. The master draftsman, Lord Macaulay, had a very uphill

task in moulding in the form of a Code the entire case-law which were spread in a number of volumes on the subject. Such a maiden attempt in

spite of the genius of the person concerned cannot be a perfect piece of legislation. Secondly the draftsman did not resort to frame the Code in the

form of broad principles which would accept interpretations according to the needs of time. He knew that the Code had to be applied not by

professional Judges but by natives and English Officers of various ranks. That is why he introduced in the Code along with the main provisions,

explanations, exceptions and illustrations. On the other side, though Lord Macaulay took pains to get informed of the conditions in India and had

made provisions accordingly whenever he got reliable information, did not appear to have been informed of the Nallathangal''s syndrome. At any

rate, the Code drafted, as stated above, was passed in 1860 and is based mostly on the English law as it prevailed at that time.

Lord Macaulay himself was aware of the imperfections of his work. In his letter to Lord Auckland dated 14th October, 1837 he would state

among other things:

Every Judge of every rank whose duty it is to administer the law as contained in the Code should be enjoined to report to his official superior every

doubt which he may entertain as to any question of construction which may have arisen in his court. Of these doubts all which are not obviously

unreasonable ought to be periodically reported by the highest judicial authorities to the Legislature.

. . .

Sometimes it will be found that a case has arisen respecting which the Code is silent. In such a case it will be proper to supply the omission....

In this manner every successive edition of the Code will solve all the important questions as to the construction of the Code which have arisen since

the appearance of the edition immediately preceding. Important questions, particularly questions about which courts of the highest rank have

pronounced opposite decisions, ought to be settled without delay; and no point of law ought to continue to be a doubtful point more than three or

four years after it has been mooted in a Court of Justice"", Codification in British India (by) Bijay Kisor Acharyya� p. 143

Sir James Stephen who was in charge of the legislative portfolio between 1862-72 along with Sir H.S. Maine, and who was responsible for

having many of the Indian Acts passed would opine as follows in respect of Anglo-Indian Codes:

Re-enactments of the various codifying Acts are as necessary as repairs are necessary to a railway. I do not think that any act of importance ought

to last more than ten or twelve years. At the end of that time, it should be carefully examined from end to end and whilst as much as possible of its

general framework and arrangement are retained, it should be improved and corrected at every point at which experience has shown that it

required improvement and correction.""(Gazette of India. Supplement, May 4, 1872 P.534).,

Sir John Romilly who succeeded Macaulay and who had the Macaulay''s draft passed into law observes; ""Each successive edition after such a

revision should be enacted as law, and Would contain, sanctioned by the Legislature, all judge-made law of the preceding interval deemed worthy

of being retained. On these occasions, too, the opportunity should be taken to amend the body of law under revision in every practicable way, and

especially to provide such new rules of law as might be required by the rise of new interests and new circumstances in the progress of society

Lord Romilly''s report dated 23rd June, 1863 Gazette of India, Extraordinary July, 1, 1864 p.56. Codification in India (by) Bijay Kisor Ao

haryya�p. 144.,

Sir Courteney Ilbert, Law Member of the Governor General''s Council, after the bulk of the Anglo-Indian Codes have been passed would

make the following appraisal:

It would seem as if Indian codifiers built, not with brass or stone, but with materials more nearly resembling the brick and stucco of lower Bengal.

These structures soon show signs of weathering and require to be patched or pulled down and rebuilt.""(Gazette of India. Supplement, May 4,

1872 P.534).

Speaking more specifically on the provisions of the Indian Penal Code relating to ''murder'' and ''culpable homicide'' Whitley Stokes, Law

Member of the Council of the Governor General of India, in his introduction to the Indian Penal Code in the Anglo Indian Codes. Volume I,

published in 1887, page 4.1, observes as follows:

The definitions just referred to are the weakest part of the Code, and the law on the subject should be recast so as to express clearly what is or

Ought to be the intention of the legislature.,Legislative Methods and Reforms(by) Sir Courteney Ilbert-p.154.

It is clear from the opinion of the important architects of the Indian codification that Anglo-Indian Codes, which were the first experiments in

English language in the art of codification, in spite of their immense value, are far from being perfect and were intended to be overhauled from time

to time. Therefore, though technically the exceptions to S. 300, I.P.C.. appear to be limitative they can no longer be considered so, after the efflux

of time. In fact, Courts have added one more exception known as ''sustained provocation''. The leading decision in that field is the well known

Nana-vati''s case,A.l.R. 1962 S.C. 605. That decision is not the first one to take into consideration the situation of sustained provocation. There

are previous decisions, which are reviewed in that case are: The Empress v. Khagayi, ILR 2 Mad. 122; Boya Muni-gadu v. The Queen, ILR 3

Mad. 33; Murugien, In re AIR 1957 Mad. 541; Chervirala Narayan, In re, AIR 1958 A.P 235 : 1958 1 A.W.R 189 Balku Vs. Emperor, .

Thereafter several decisions have been pronounced and recently this Court dealt with the same subject in the following unreported cases ; C.A.

No. 70 of 1981 dated 15th December, 1982, C.A. No. 417 of 1983 dated 10th February, 1986, C.A. No. 184 of 1983 dated 6th February

1983 and C.A. No. 301 of 1984 dated 4th August, 1988. Though there has been here and there attempts in those decisions to bring the sustained

provocation under Exception 1 to Section 300. I.P.C, there is a cardinal difference between provocation as defined under Exception 1 and

sustained provocation. The only word which is common is ''provocation''. What Exception 1 contemplates is a grave and sudden provocation,

whereas the ingredient of sustained provocation is a series of acts more or less grave spread over a certain period of time, the last of which acting

as the last straw breaking the camel''s back may even be a very trifling one. We are therefore far from grave and sudden provocation contemplated

under Exception 1 to Section 300, I.P.C. Sustained provocation is undoubtedly an addition by Courts, as anticipated by the architects of the

Indian Penal Code.

Now that it is clear that the exceptions u/s 300, I.P.C, are not limitative, we have to examine whether Nallathangal''s syndrome can be

considered as one of the exceptions. Since the Code in its structure makes the Exceptions limitative, Courts have to show restraint on

circumspection in adding Exceptions and such additions should be ejusdem generis. In this connection, it is necessary to examine what is the true

nature of the Exceptions. The Exceptions are in the nature of important excusing circumstances and they have the following characteristics:

Nature of the excusing PremeditationIll-will

circumstance towards the

victim.

Sudden provocation No Yes

Exception 2

Private defence No Yes

Exception 3

Discharge of public dutyYes No

Exception 4

Sudden fight No Yes

Exception 5

Consent of the victim Yes No

One thing is clear from the above analysis viz., in all the Exceptions either premeditation or ill-will is absent. Therefore, when both are present, it

will be impossible to counter the matter as an exception.

Now, we shall proceed to analyse the facts of the case whether it would amount to an excusing circumstance analogous to five circumstances

enumerated in the Code. The case of the accused is that she has been living since her marriage in a situation of continuous adversity, that when the

situation became unbearable she decided to commit suicide along with her children, went to the nearest well with the children in her arms and

jumped into the well after ascertaining that there was water therein and that unfortunately there was no sufficient water for her getting drowned.

This confession of her before the Magistrate is corroborated by her statements to P.W.2, her brother, as soon as she was taken out of the well and

P.W.8, doctor, when the accused was brought before him for examination.

We have already set out in the beginning the continuous misfortune in the life of the accused and the desolation which she was subjected to on

account of the ill-treatments meted out by the husband to the children. No doubt her parents were extending a helping hand whenever the misery

became acute, but they would send her back as soon as possible and the husband also would not tolerate her maintaining close connections with

her parents. This situation of distress reached a climax after she returned from her parents on the 25th June, 1983 with her ailing baby. She was

beaten in that evening and again beaten on the 26th morning and evening. The quarrel was about the accused having remained in her parents''

house for so many days and the desire of the accused to go back there again to complete the treatment of the ailing baby. ""Even if the baby should

die, let him die here,"" was the blunt reply of the husband. When the husband of the accused noticed the talisman attached to the neck of the baby in

order to remove the evil, he became infuriated and scolded and beat his wife having done so in her mother''s house.

On the ill-fated day, viz. 27-6-83, after the mid-day meal. she was beaten again and the accused could not bear it. P.W.4, a neighbour,

overheard the following exchange of words: ''go anywhere and pass out of my sight'' to which the accused replied: "" better die than live with you "".

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 surfer

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.

The attempt of the learned Counsel for the accused/Appellant while pointing out all the circumstances of the case, was that the accused had no

other alternative and that she should be completely exonerated. Learned Additional Public Prosecutor while conceding that the acts of the accused

deserved special consideration would contend that the acts of the accused in causing the death of her two children amounted certainly to an

offence. 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 of 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.

As pointed out earlier, ill-will and premeditation should be both present in a case of murder. The absence of one of them coupled with an

important excusing circumstance would transform the offence into a culpable homicide. In the present case, there is of course premeditation, but

obviously no ill-will. 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. I.P.C. 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, I.P.C.

Turning to the sentence, learned Counsel for the accused/Appellant made a pathetic appeal for clemency. He said that the accused, who tasted

only bitterness in life till the occurrence, having seen death at close quarters, after three months spent in prison has overcome her deep aversion for

life and is in the process of resettling and reconciling herself with her present life conditions. He also brought to our notice the judgment of the

Supreme Court in Radharani v. State of Madhya Pradesh, AIR 1981 S.C. 1776, where the court observed as follows:

The circumstances of the case are very sad and touching. A desolate woman jumped into a well with her two children. She was charged under Ss.

307 and 309 of the I.P.C. She has been released on admonition for the offence u/s 309, JP.C. and has been sentenced to imprisonment for three

months for the offence u/s 307. We see no valid reason for making this distinction and therefore direct that she shall be released on admonition for

the offence u/s 307 also.

After due consideration of the facts and circumstances of the case and also the efflux of time between the occurrence and now we consider

that sentencing the accused to the period already undergone would meet the ends of justice.

In the result, the appeal is allowed in part, the conviction and sentence u/s 309, I.P.C. stand confirmed, the conviction and sentence u/s 302, (2

counts), I.P.C. are set aside, the accused is found guilty of an offence u/s 304, Part I, I.P.C. (2 counts), convicted thereunder and is sentenced to

imprisonment for the period already undergone by her.

Before parting this case, it gives us pleasure to thank Mr. N.T. Vanamamalai, Senior Advocate, appearing for Mr. K.M. Basha amicus curiae,

for drawing our attention to the socio-economic dimensions of the problem, to the distressed conditions of life of the accused and to the extreme

mental torture to which she was subjected to prior and after the occurrence, and also Mr. N. Dinakar, learned Additional Public Prosecutor, for

his fairness coupled with his promptness in pinpointing the fallacy of defence whenever it occurred and for his lucidity to perceive the nuances of life

situations and to attune his indictment accordingly.