Vanarani vs State

N. Dhinakar, J.—The accused appeals. The appellant, who hereinafter will be referred to as the accused stands convicted by the learned I

Additional Sessions Judge, Tirunelveli for the offence of murder under two counts. The charge against her is that she at about 6.00 P.M. on

4.9.1989 caused the death of her two children Jayakanth and Sunilkanth by pushing them into a well and throttling them and that during the course

of the same transaction, she also attempted to commit suicide. The learned Sessions Judge, while convicting the accused, for the above charges,

sentenced her to undergo life imprisonment for the offence of murder (under two counts) and rigorous imprisonment for a period of, six months for

the offence punishable u/s 309 of the Indian Penal Code. Hence, the appeal,

Facts necessary to dispose of the appeal are as follows:

P.W.3 is the younger sister and P.W.4 is the elder sister of the accused. P.W.3 was residing in the first floor of a house, where P.W.4 was

residing. The accused was given in marriage to one Gunaselan. Two children were born to the accused. The husband of the accused deserted her

and went away to Rajasthan. As the deceased had no other relatives. She took shelter along with her two children in the house of P.W.3 her

younger, sister. The life of the accused in her sister''s house was not happy. P.W.3 always found fault with the accused and even she used to abuse

her saying that she is in illicit relationship with her husband P.W.5. The accused, ashamed on account of this according to the prosecution took her

two children at about 1.00.P.M.on 4.9.1989 to a well and after pushing her two children into the well. She also jumped into the well to commit

suicide. As the water level of the well was only knee-deep, she suffered a fracture and the children survived. She, thereafter, throttled the children

to death and attempted to commit suicide by constricting her neck, in which attempt she failed to her misfortune. She remained in the well with her

two dead children till about 11.00 a.m. on 5.9.1989.

P.W.6, who went to the well to irrigate her lands finding the accused in the well informed the villagers. The accused and her two dead children

were brought out dead. The accused was taken to P.W.16, the doctor by her brother, P.W.7. P.W.16 examined her and found a fracture on her

right knee. He advised her to take an X.Ray. After first aid, she was sent away by the doctor. P.W.7 thereafter, took the accused and produced

her before P.W.1 the Village Administrative Officer, to whom the accused narrated the incident, which was reduced into writing by him. The said

statement of the accused is Ex.P.1. P.W.1 prepared Ex.P.2 yadasth. A copy of the yadasth and the statement of the accused are Ex.P.3. After

preparing the yadasth. P.W.1 sent Exs.P.1 and P.2 through P.W.2 Talayari. P.W.2 produced the said documents at 8.30 p.m on 5.9.1989 before

P.W.19, the Sub Inspector of Police. Uthumalai Police Station, on the basis of which he registered a case against the accused under Sections 302

(2 counts) and 309 of the Indian Penal Code. Ex.P.17 is the copy of the printed first information report. He informed P.W.20 the circle Inspector

of Police, Alangulam.

P.W.20, on receipt of the information reached the police station and after obtaining the printed first information report, reached the scene of

occurrence. At the scene of occurrence, an observation mahazar. Ex.P.4 was prepared. He also drew a rough sketch, Ex.P.18. M.Os.1 and 2

series were recovered under a mahazar, Ex.P.5, Inquest was conducted over the dead body of Jayakanth between 1.30.a.m. and 3.30.a.m and on

the body of Sunilkanth between 3.30.a.m. and 5.30.a.m. Exs.P.19 and P.20 are the inquest reports. At the time of inquest P.Ws. 1, 3 and 7 were

examined. P.W.20 proceeded to the house of the father of the accused and arrested her. Nylon saree, M.O.3 and the underskirt, M.O.4

produced by the accused were recovered under a Mahazar, Ex.P.6 attested by P.W.1. The accused was brought to the police station and sent for

treatment. P.W.20 also sent to requisition to conduct autopsy on the dead bodies.

On receipt of the requisition P.W.18 went to the scene of occurrence and conducted autopsy on the body of the two children. He found the

following injuries on the dead body of Jayakanth:

Body lies on its back.

Head : No evidence of fracture.

Eye swollen and protruded outside the orbit.

Embedded into the swollen face.

Mouth opened and tongue protruded outside in between teeth.

Neck swollen

Check swollen and skin over was peeled off with occasional blisters and vesicles.

Neck and thigh fixed at the knee joint with swelling.

Internal Examination.

Brain and Meninges congested. No evidence of fracture skull.

Neck: Hyoid bone of both comers fractured.

Chest : Both lungs were congested with liquid blood.

Abdomen : Food particles. No evidence of poison.

Intestine (small) digested food particles.

Urinary Bladder: Full of urine.

He issued Ex.P.14 post mortem certificate with his opinion that the deceased Jayakanth would appear to have died of asphyxia due to throttling.

He also found the following injuries on the dead body of Sunilkanth:

Body lies on the back.

Both upper limbs fixed at the elbow joint.

Both lower limbs fixed at the knee joint.

Head and face swollen.

Nose embedded into the swollen face.

Neck swollen. Skin was peeled off with appearance of vesicles here and there.

Abdomen swollen.

Chest : Swollen

No evidence of head bone.

Internal Examination

Head: No evidence of fracture bone meninges and brain congested.

Neck: Major blood vessels of the neck congested with fracture of both comers of hyoid bone.

Lungs are congested with watery fluids.

Heart: left side of the heart empty.

Right side with clotted blood.

Abdomen : Stomach full of food particles. No evidence of poison.

Intestine Skull: digested food particles. .

Urinary bladder: full of urine.

Pubis normal.

He issued Ex.P.15 post mortem certificate with his opinion that the deceased Sunilkanth would appear to have died of asphyxia due to throttling.

P.W.20 continued his investigation questioned the witnesses and recorded their statements. The material objects were sent to Court with a

request to forward them for analysis. Further investigation was conducted by P.W.20 who after verifying the investigation done by P.W. 20 and

after recording the statements of some of the witnesses laid the final report on 12.1.1990.

When questioned u/s 313 of the Code of Criminal Procedure including the circumstances appearing against him the accused denied them.

P.W.18 the doctor, who conducted autopsy on the dead bodies of the two children gave evidence before court and stated that the two children

died on account of asphyxia due to throttling. The children being young and they having been taken out from a well, there can be no doubt in our

mind that the said asphyxia was caused on account of homicidal violence. Since this court had no other evidence to come to the conclusion that

they committed suicide. Along with the two children the accused was also in the well and was seen by P.W.6. The accused was lifted along with

two dead children from the well by P.Ws.8 and 9, when it is proved that the accused was seen in the well along with two dead children, it is for the

accused to explain as to how the two children died on account of asphyxia due to throttling. She has no explanation to offer. Therefore, we have

no hesitation in coming to the conclusion that the non- explanation is a circumstance against the accused. The said inference of ours supported by

two other circumstances, namely, the fracture sustained by the accused on her right leg and the extra judicial confession given by her to P.W.1, the

Village Administrative Officer at about 6.00.p.m. on 5.9.1989. Though to the doctor, it was stated that she fell into the well accidentally, we are

unable to accept the said theory, as it is seen from the observation mahazar prepared by the investigating officer, that the well had no parapet wall.

We are unable to hold that the deceased and the two children fell accidentally and the two children died on account of drowning, especially in the

background of the evidence of the post mortem doctor. The post mortem doctor was definite and he has stated that the two children died on

account of asphyxia. The internal examination, which he noted in the post mortem certificates also indicate that the children could not have died on

account of drowning but could have been done to death by throttling. Hence, the statement made to the doctor, P.W.16 that the accused

accidentally fell into the well is an incorrect statement made by the relative of the accused with a view to save her from prosecution. We, therefore,

reject the said statement given to the doctor.

In this background, we will look at the evidence of P.W.1 the Village Administrative Officer, within whose jurisdiction, the occurrence had

taken place. According to him,, at about 6.00 p.m. on 5.9.1989 the accused was produced before him by P.W.7 the brother of the accused

(treated hostile) and the accused gave a statement, which was reduced into writing. On the basis of the said statement, a crime was also registered

by P.W.19 at 8.30 p.m. In that statement, the accused had stated that she jumped into the well along with two children in order to die. Since she

was leading a miserable life on account of the desertion of her husband and on account of insinuating remarked of her younger sister, P.W.3. under

whose care, they were living. We have no reason to reject the evidence of P.W. 1 and Ex.P. 1 the statement given by the accused. We,

accordingly, accept them. Once the evidence of P.W.1 is accepted that the accused had throttled the two children to death, then, there is no

hesitation for this court to come to the conclusion that the two children dies at the hands of the accused. We, accordingly, hold so.

Learned counsel for the appellant/accused contends that the accused, when caused the death of her two children, was in a highly depressed

stage and was also under severe strain. He submits that the accused had been provoked to the maximum extent by the words and deeds of her

younger sister, P.W.3 who must have provoked her to commit suicide along with two young children. In support of his plea, he relies upon the

evidence of P.Ws.6 and 8 as well as the statement of the accused found in Ex.P.1. P.W.6 in cross examination has stated that during the relevant

period the accused was in a mentally depressed stage and was saying to every body in the village that she is being called by the God. The said

evidence is also supported by P.Ws.8 and 9. The three witnesses who had come out with a version in favour of the accused were not treated

hostile by the prosecution, we therefore on the evidence hold that during the time of the incident the accused was under severe mental strain though

we cannot say that she was insane. From the recitals in Exs.P.1 the state of mind of the accused could also be inferred. In Ex.P.1 the accused had

stated that after her husband deserted her she was living in her sister''s house and that her sister abused her stating that she is in illicit relationship

with her husband and that she was put to shame on account of this. This statement of the accused when looked at he background of the evidence

of P.Ws.6 8 and 9 shows that the accused was provoked to such an extent that she believed that she has no other choice except to leave the

world. Therefore, she went and jumped into the well along with her two children and at that time she was deprived of her self control which made

her to throttle the children and attempted to commit suicide by strangling herself. To her misfortune, two children dies and she survived. We, on the

circumstances, feel that the appellant/accused can be given the benefit of Exception 1 to Section 300 of the Indian Penal Code.

In this regard it is relevant to cite the decision in Suyambukkani v. State of Tamil Nadu 1989 L.W. 86, wherein the Division Bench of this

Court has held that there is a cardinal difference between provocation as defined under Exception I and sustained provocation''. The Division

Bench went on to observe in the same judgment as follows:

The only word which is common is provocation. What Exception I 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 I to

Sec. 300, IPC. Sustained provocation is undoubtedly an addition by Courts as anticipated by the architects of the Indian Penal code.

As held by the Division Bench in the above judgment the exceptions u/s 300, IPC are not limitative and the Courts have to examine whether

Nallathangals/s syndrome can be considered as one of the exceptions. In all the exceptions, as the Division Bench has observed either

premeditation or ill will is absent and only when both are present, it will be possible to consider the matter as an exception. By any stretch of

imagination, it cannot be said that the accused in this case had ill-will against her children. The absence of ill-will coupled with the circumstances in

which she was placed indicate that she caused the death of her children when she was deprived of her self-control and therefore we hold that she

is entitled for the benefit of Exception I to Section 300 of the Indian Penal Code. On the above circumstances, the conviction of the accused u/s

302 of the Indian Penal Code cannot be maintained.

Therefore, the conviction and sentence imposed on the accused for the offence punishable u/s 302 of the Indian Penal Code (2 counts) are set

aside and instead, she is convicted u/s 304 Part I of the Indian Penal Code (2 counts) and for the said conviction, considering the peculiar

circumstances discussed by us above, she is directed to undergo rigorous imprisonment for a period of three years. The conviction and sentence

imposed on the accused u/s 309 of the Indian Penal Code are maintained. The sentences imposed on the accused will run concurrently.

In the result, with the above modification in conviction and sentence, the appeal is disposed of.